Edminster v. Sturges , 67 Wis. 438 ( 1886 )

LyoN, J.

Under the averments of the complaint the right to cut and remove the timber in question, at the time the defendant assumed to assign his interest therein to Whitney, was in the plaintiff. Assuming that the assignment by Benjamin Edminster to the defendant conveyed to the latter the right to cut and remove the timber, that right and any interest the defendant may have had in the contract or timber, was terminated by the payment of the debt which the assignment was made to sepure.

The right thus being in the plaintiff, and the defendant having received $500 from Whitney as the consideration for the assignment above stated, the plaintiff claims that the defendant has sold and conveyed her property, and that, in justice and equity, she ought to recover the consideration which he received therefor. If he sold the plaintiff’s property without authority and received the price therefor, it is quite probable that she might ratify the sale and recover of the defendant the consideration which he received therefor. But the complaint fails to show that the defendant assumed or attempted to sell the plaintiff’s property. It only shows that he sold his interest therein. It is a naked quitclaim of such interest, without any attempt to convey the interest of the plaintiff. The defendant had no interest ill the contract or timber, and hence no interest therein passed under this assignment to Whitney.

Had Whitney cut or removed any portion of the timber, or had he taken possession thereof under his assignment from the defendant, a different question would be presented.

But the complaint fails to show that he has had any of the timber, or the possession, or has ever interfered to prevent the plaintiff from cutting and removing it, or asserted any rights therein under his purchase. Indeed, it is not negatived that the plaintiff has taken the timber, as she had the right to do.

It may be that there was something in the transactions between the defendant and Whitney which gives the latter a right of action for the $500 which he paid the defendant, but certainly this complaint fails to show that, in justice and equity, the defendant ought to pay the $500 over to the plaintiff.

The order must be reversed, and the circuit court directed to sustain the demurrer.

By the Court.— Ordered accordingly.