Rohrer v. Lockery

• Decision Date: 20 October 1908
• Citation: 136 Wis. 532,117 N.W. 1060
• Parties: ROHRER v. LOCKERY ET AL.
• Court: Wisconsin Supreme Court

136 Wis. 532

117 N.W. 1060

ROHRER

v.LOCKERY ET AL.

Supreme Court of Wisconsin.

Oct. 20, 1908.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action of replevin by D. J. Rohrer against Michael Lockery and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded for a new trial.

Plaintiff having given a land contract for certain real estate for something over $2,000, of which about $200 was paid, which contract had by assignment become the property of Levi Bergstrasser, who had, however, taken no manual possession of the real estate, an arrangement was made between plaintiff and Levi Bergstrasser for the latter to procure certain pine timber on the premises, to be cut and delivered to the plaintiff at a designated point, and that the plaintiff should pay the expenses of cutting, hauling, and of sawing, and should dispose of the lumber and apply the net proceeds thereof upon the purchase price of the land. In pursuance of this arrangement George Bergstrasser, father of Levi, cut and hauled the logs to the designated place, at the sawmill of a third party, and there left them. A few days afterward, and after some had been sawn, they were levied upon under an execution against George Bergstrasser, and, without plaintiff's knowledge, were sold by the sheriff, Lockery, to the defendants Hoffman and Rockdaschel, or one of them. Plaintiff, learning of this fact, made demand for redelivery of the logs and lumber into which they had been sawed, which was refused by the defendants Hoffman and Rockdaschel. Whereupon this action in replevin was brought therefor. The defendants set up as their only claim the sale on execution against George Bergstrasser. Upon the trial, after proof tending to establish the facts above stated, the court, on motion of the defendants to dismiss the action, held that the plaintiff sought to recover on the strength of an oral agreement made after the land contract, which was void under the statute of frauds, because the growing trees were real estate. He thereupon entered judgment reciting a directed verdict of the jury in favor of the defendants, but merely adjudging that the defendants recover costs from the plaintiff, from which judgment the plaintiff appeals.Olen & Olen, for appellant.

Giles H. Putnam (Brown, Pradt, Genrich & Anderson, of counsel), for respondents.

DODGE, J. (after stating the facts as above).

We need not consider the extent of the right of the vendor in a land contract who holds the legal title, though only in trust for the security of unpaid purchase money, and for the equitable title of the vendee, to vindicate those rights against a mere stranger, who wrongfully invades them, as by...