Strasson v. Montgomery , 32 Wis. 52 ( 1873 )

Lyon, J.

I. The first question to be considered is, whether the answer puts in issue the title to real property. In Murray v. Van Derlyn, 24 Wis., 67, this court held that in an action of trespass brought before a justice of the peace, for removing a fence, an answer setting up that the alleged trespass consisted in taking away a division fence, that the fence belonged to the defendant, and that he had a right to take it away, raises a question of title to real estate, which, if the proper bond be presented, deprives the justice of power to try the action. The reasoning in that case is applicable here. Standing timber, like a fence, is part of the realty. If the plaintiff was the owner of the timber in controversy, he owned it as a part of his land. If the defendant was the owner thereof, he owned it by virtue of the conveyance from Gleason to White, which was a conveyance of an interest in the land. Hence, although it is conceded that the plaintiff owns the soil, yet the dispute concerning the title to the standing timber raises a question of title to real property.

The defendant having given the proper bond, the circuit court acquired jurisdiction of the case, and properly denied the defendant’s motion to dismiss the same for the alleged want of jurisdiction. Knotts v. Hydrich, 12 Richardson’s Law R., 314.

II. Whether the plaintiff was entitled to recover depends upon the construction which is given to the conveyance of the timber by Gleason to White, and the exception or reservation in the deed to the plaintiff..

The former conveyance was of all the trees and timber on the premises, with the proviso that White should take the same off the land within .four years, or by December 4th, 1870. It is well settled, on principle and by authority, that the legal effect of the instrument is, that Gleason thereby conveyed to White all of the trees and timber on the premises which White should remove therefrom within the prescribed time, and that such as remained thereon after that time should belong to Gleason or to his grantee of the premises. Pease v. Gibson, 6 Greenl., 81; Boisaubin v. Reed, 2 Keyes, 323; Reed v. Merrifield,, 10 Met., 155; Howard v. Lincoln, 13 Me., 122.

Having thus ascertained what Gleason conveyed to White, we are next called upon to determine the legal effect of the exception or reservation in the deed to the plaintiff. The language is, “ excepting and reserving a certain amount of timber heretofore sold to Mias K White.'' But we have already seen that the timber sold to White was only such as he should take off the premises by December 4, 1870. Hence the timber remaining on the premises after that dáte is not included in the above language, and is not excepted or reserved at all, unless it is so by force of this further language of the deed, “ and the said Elias N.White or his assigns is to have until December, 1871, to take off said timber.” The timber here referred to, is, of course, the same mentioned in the first clause of the exception or reservation above quoted, and it is quite obvious that it cannot enlarge the operation of that clause. The whole exception taken together has the same signification as it would have had language like the following been used in its stead: “ excepting and reserving all of the timber on said premises which Elias N. White shall take from the same before December 4,1870, and the said Elias N. White or his assigns shall have until December, 1871, to take off said timber.” It requires no argument to show that, in such case, the last clause would necessarily be entirely inoperative.

But if we are wrong in all this, there is another view of the case which is fatal to the defense. Under the decision of this court in Rich v. Zeilsdorff, 22 Wis., 544, determining the character of similar language in a deed, it must be held that the last clause above quoted from the deed to the plaintiff, is a “ reservation,” as distinguished from an “ exception.” The opinion by Mr. Justice Cole in that case contains a discussion of the whole subject, and clearly explains the distinction between an exception and a reservation in a deed. It is unnecessary to repeat here what is there said. The provision in the deed to the plaintiff reserving to White and his assigns the right to take timber from the premises until December, 1871, is a reservation in favor of a stranger to the deed, and is void for that reason. 3 Washb. on Real Property (3d ed.), 377. See also cases cited to this point in brief of counsel for plaintiff. The only effect which such reservation could have would be to save Gleason from liability on his covenant to the plaintiff against incumbrances in case White had previously the right to take timber until December, 1871. But it is argued that because Gleason sold the timber to White with warranty of title, White is not a stranger to the reservation in the deed to the plaintiff, but is in privity with Gleason. Evidently this point is not well taken. The covenant of warranty was fully performed on the 4th day of December, 1870, and has no application whatever to the timber cut by the defendant after that time. Besides, it is not claimed that Gleason, while he owned the land, or at any other time, ever made any new contract with White in respect to the timber, or that he and White ever varied the terms of the original contract in that behalf.

The learned counsel for the defendant rely greatly upon the case of Rose v. Bunn, 21 N. Y., 275. But an examination of that case will show, we think, that it does not sustain their views. In that case tbe right in question was predicated upon a clause in a lease which was doubtless an “exception,” and it was made for the benefit of, and asserted by, a party who stood in the relation of a cestui que trust to the lessors. Besides, the party claiming the benefit of the “ exception ” in the lease established also a valid prescription for the right claimed.

We are of the opinion that the judgment of the circuit court should be affirmed.

By the Court.— Judgment affirmed.