Mathews v. Mulvey
| Decision Date | 30 April 1888 |
| Citation | 37 N.W. 794,38 Minn. 342 |
| Parties | Samuel Mathews v. James Mulvey and another |
| Court | Minnesota Supreme Court |
Action of trespass, brought in the district court for Kanabec county, for cutting and carrying away pine timber belonging to the plaintiff. Defendants, in their answer, denied plaintiff's ownership of the timber. The action was tried by Crosby, J., certain issues being submitted to a jury. The court found that on November 14, 1881, Castle & Marsh, being owners of the timber and of the land on which it was standing, made with the plaintiff the contract mentioned in the opinion; the neglect of plaintiff to pay taxes, and his subsequent taking the certificate mentioned in the opinion on December 9, 1884; that on December 4, 1884, Castle & Marsh, by proper warranty deed, recorded December 10, 1884 conveyed the land to defendants, and that during the winter of 1884-5, the defendants entered on the land, and cut and carried away the timber, with probable cause to believe it was their own. The jury found that when defendants took their deed they knew the timber had been sold to plaintiff. Judgment was ordered and entered for plaintiff for the value of the standing timber and interest, and the defendants appealed.
Judgment affirmed.
Searles & Gail, for appellants.
Plaintiff's taking a void assignment was not done in the interest of the land-owners or in performance of the contract, but on his own behalf and in opposition to the land-owners and the contract and therefore cannot be held in his favor to be a payment of the taxes and a performance of the condition. Clementi v. Jackson, 92 N.Y. 591.
James N. Castle and Fayette Marsh, for respondent.
The contract in this case differs from that in King v Merriman, ante, p. 47, in that the contract in that case granted only the "right, privilege, and permission to enter and cut," during a specified time, all the pine timber fit for saw-logs growing on certain land described, while in this case the contract is, in terms, a sale of "all the pine timber" on land described, "said Mathews to have as long as he wishes to cut the same, provided he pay the taxes on said land." In that case the contract was held to be one for the sale of only so much timber as the grantee might cut during the time specified, and that he had no interest in timber remaining uncut at the expiration of that time. In this the contract must be construed as a present, executed sale of all the timber, vesting the title at once in the grantee. If nothing had been said in the contract as to the time within which the timber should be cut, there would have passed, by implication, a right to enter on the land, and cut and remove the timber, certainly for a reasonable time. But the grantee is given "as long as he wishes, provided he pay the taxes on the land." When this right should expire, the practical effect would be to divest the right in the timber, or at any rate to leave it a barren and unavailable right, for, as the court said in the case referred to, "it would be an anomaly in the law that one man should own standing timber on the land of another, with no right of entry to cut and...
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