Hilliard v. Dean ( 1891 )

The opinion of the court was delivered by

START, J.

In this case the plaintiff seeks to recover the value of a quantity of lumber purchased by him of one Fred B. Wilkins, and taken by the defendants from his possession. The defendants claim title to the lumber by reason of their owning the land from which it was severed. The lumber was severed from land the legal title of which was in the defendants. The defendants had given Wilkins a bond conditioned that they would convey the land to him when he paid twelve hundred and fifty dollars and gave a mortgage back to secure the payment of the further sum of twelve hundred and fifty dollars. Payments were to be made by delivering to the defendants yearly thirty thousand feet of lumber. Wilkins went into possession of the land, and, with the knowledge of the defendants, and without objection, took therefrom lumber with which to make one payment, and sold some of the lumber to other parties. The plaintiff was notified before he paid Wilkins for the lumber that the defendant, Lucia Dean, claimed it, and that he must not draw it away.

Upon these facts, we hold that the defendants were the owners of the lumber in question. They had not parted with their title to the land from which the lumber was taken. They were obligated by their bond to convey to Wilkins when he should pay twelve hundred and fifty dollars. At the time the lumber in question was severed from the land, Wilkins had made but one payment of thirty thousand feet of lumber, valued at about three hundred dollars. The legal title to the land being in the defendants, they owned the trees standing and growing thereon; and the trees having been severed from the land and sawed into lumber, without license from them, they were the owners of the lumber, and could assert their right to it in the manner they did. Dickerman v. Ray, 55 Vt. 65; Whitcher, Admr., v. Morey, 39 Vt. 459.

Judgment reversed and judgment for the defendamos.