#### Beckwith vs. Philleo and others.

To maintain replevin, the plaintiff must have, at the commencement of the action, a general or special property in the thing replevied, and the right of possession. •

A gave his bond to convey to B certain timbered lands on the delivery of a certain amount of lumber, part at the execution of the bond and the rest in annual instalments, at the sawmill on the premises; B to pay the taxes and to have possession and use of the premises “ without .impeachment of waste or claim of damages against him,” so long as he performed the conditions on his part to be performed. B assigned the bond to C. In replevin by A against C for lumber manufactured from timber cut by him on said lands after January 1, 1858, there was some evidence that an instalment of lumber due on that day had not been paid. *tMeUL,*that B had a right, under the contract, to cut timber from the land, and that such right passed to his as-signee.

*Held*further, that a default of C in not delivering the instalment of lumber when due, did not give A any property in the lumber in controversy, and he could not maintain replevin for it.

*224APPEAL from the Circuit Court for *Columbia*County.

Replevin for lumber, commenced in the Wood circuit court, aQ(j remove¿ for ^al to circuit court for Columbia coun-The bond referred to in the opinion of the court, was a penal bond, the condition of which, after reciting that *Beclmith*had agreed to sell and convey certain lands to one Palfrey, for which Palfrey was to pay in lumber at the saw mill on the premises, part at the execution of the bond, and the residue in equal annual instalments, and also to pay the taxes on the property, stated that the said Palfrey should *“*have the possession and use of said premises without impeachment of waste or claim of damage against him, the said Palfrey, as long as he performs the conditions herein contained, on his part to be performed,” and that if he should fail in the performance of any of the covenants and conditions on his part to be performed, or if, on such performance, *Beckwith*should execute to him a sufficient deed, &c., then said obligation should be void. The bond was assigned to the defendants *Philleo, Benchley & Hall,*and this action was brought against them in December, 1858, to recover a quantity of lumber manufactured by them out of timber cut upon the land referred to, in the summer and fall of 1858. There was proof on the part of the plaintiff, tending to show that an instalment of lumber due under the contract on the 1st of January, 1858, had not been paid. The defendants in traduced evidence for the purpose of showing that in Eeb ruary, 1858, they offered the plaintiff the amount of lumber then due, and that he examined it and said he thought he could not get it out, and they could use it if they wished, and pay him afterwards. There was evidence also of a demand of the lumber by the plaintiff, shortly before the commencement of this suit, and of a failure by the defendants to deliver -it.

The defendants asked the following instructions: “ 1. That in order for the plaintiff to recover in this action, the defendants must have cut the timber from which the lumber was manufactured, willfully, as trespassers. 2. The defendants were not trepassers, if they went into possession of the land under the written contract read in evidence, and remained *225in possession up to tbe time of cutting tbe timber. 8. Tbe right of tbe plaintiff to declare tbe contract forfeited did make tbe plaintiff tbe owner of tbe lumber cut from tbe land covered by said, contract. 4. Tbe contract read in evidence was in force until tbe plaintiff notified tbe defendants that be elected to consider it forfeited. 5. The contract read in evidence gave tbe defendants tbe right to cut timber while it was in force. 6. If tbe defendants bad tbe right to cut the timber at tbe time of cutting it, no subsequent failure or refusal to perform tbe contract on tbe part of the defendants could make tbe lumber manufactured from tbe timber tbe personal property of the plaintiff. 7. Independent of tbe question whether tbe bond is a valid bond to compel tbe conveyance of tbe land, and in and of itself to give tbe defendants tbe right of possession, and tbe right to cut timber, if tbe plaintiff knew that tbe defendants went into possession of said mill and land, claiming under said contract and assignment thereof, and acquiesced in it by treating with tbe defendants about payments under it, it would amount to leave and license to cut tbe timber, until such time as the plaintiff should notify tbe defendants not to cut any more. 8. If tbe defendants bad leave and license to cut tbe timber, tbe plaintiff cannot recover.”

Tbe court gave tbe sixth and eighth of these instructions, and refused tbe others. The court further instructed tbe jury as follows: “ Tbe law is, that tbe owner of tbe land may pursue and recover tbe lumber made out of tbe timber severed from it without bis permission. Tbe defendants have introduced a title bond for tbe land from tbe plaintiff to one Palfrey, and assigned to tbe defendants; which bond, I instruct you, is assignable, and gives tbe defendants, as assignees of the bond, tbe right of possession of tbe premises, and to cut timber from tbe land for tbe manufacture of lumber, sufficient to pay tbe instalments upon tbe bond; and further, in case they performed their bond, tbe right to cut timber generally, without any charge of waste. If tbe defendants performed tbe conditions of tbe bond, or were excused from performance by tbe plaintiff, then they bad a right to cut timber and make lumber from tbe land. If they *226not so perform, or were not excused from such perform-anee by the plaintiff, then they would be liable to the plain-tjg? and the plaintiff might recover the lumber made from the timber cut from the lands, notwithstanding the bond.”

Yerdict for the plaintiff; motion for a new trial overruled; and judgment upon the verdict.

*W. 0. Webb,*for appellants:

The defendants having entered into possession of the premises with the knowledge and assent of the plaintiff, claiming title under the bond as assignees, the plaintiff could only oust them from possession by an action of ejectment, or foreclose their equities under the bond; and can not maintain *replevin*for lumber manufactured by them from the land during their open, notorious and exclusive possession of it under such claim of title, whether they performed the conditions of the bond or not. *Halleclc v. Mixer,*16 Cal., 574-; *Rich v. Baker,*3 Denio, 79. In actions of replevin the plaintiff’s right to the *immediate*possession of the property must be complete at the time of the commencement of the action. E. S., chap. 128, secs. 1 and 2; 27 Miss., 198; 16 Ark., 90. Eeplevin is not the form of action in which to try conflicting claims to land. *Baker v. Howell,*6 Serg. &E., 476; *Brown v. Caldwell,*10 id., 114; *Halle&k v. Mixer, supra.*“ Eeplevin cannot be maintained when the plaintiff can make title to the *chattel*only by making title to the land from which it was severed.” *Powell v. Smith,*2 Watts, 126; 16 Cal., 674. “Eeplevin will not lie by one not in the actual, exclusive possession of land, whatever title he may claim, against one who is in the actual, visible, notorious occupancy and possession thereof, claiming right thereto.” 10 Serg. & E., 114; *Harlan v. Harlan,*15 Penn. St., 507 ; *Snyder v. Vaux,*2 Eawle, 428. When the owner is out of possession at the time of the commission of the tort, he cannot recover in re-plevin. 8 Denio, 79; 9 Miss., 259.

*Wheeler & Kimball,*for respondent:-

A bond or contract for the sale of real estate does not give the purchaser a right of possession, or right to cut timber, without an express stipulation to that effect. The words “without impeachment of waste,” gave to Palfrey a right or *227license to cut timber. This contract may be assignable like other contracts, so far as to give the assignee a right to force a conveyance of the land upon completing the payments ; bat that part of it which gives Palfrey the right of possession and use, without impeachment of waste, is not assignable. The license contained in the contract is a personal trust or privilege, confined to Palfrey alone by law, as well as by the terms of the contract. *Prince vs. Case,*2 Am. Lead. Oas., 727; *Jackson vs. Babcock,*4 Johns., 418; 4 G-reenl. Cruise, title 82, chap. 8, p. 122, note. If the license contained in the contract was assignable, it was revoked by a forfeiture, and all timber cut after the forfeiture by the default in payment, was as if cut by any other trespasser, and belonged to the plaintiff 7 Johns., 288; 9 id. 881, 885.

May 15.

*By the Court,*

Cole, J.

We cannot understand upon what principle the judgment in this case can be sustained. The action is replevin, to recover a certain quantity of pine lumber alleged to be wrongfully detained by the appellants, and of course cannot be maintained unless at the commencement of the suit the respondent had the general or special property in the lumber, and the right of possession.

It appears from the case that the appellants were in possession of a saw mill and timber lands, upon which pine logs were cut, out of which the lumber in controversy was manufactured, under and by virtue of a title bond given by the respondent to one Palfrey, and which had been assigned to them. The bond recited that the obligor had covenanted and agreed to sell and convey by a good and sufficient deed of conveyance, the lands therein mentioned, upon being paid an amount of lumber in instalments according to the conditions of the bond. Palfrey was to have possession and use of the premises so long as he performed the conditions of the bond in making payments, &c., and when the payments were all made, was entitled to his deed. An instalment of lumber not being paid when due, a demand was made for the amount due on the contract, and this suit brought.

There can be no doubt that the bond and contract for the *228Sa^e was a^g^le- ^ts terms, tbe purchaser assignee had not only the right to the immediate entry and possession of the premises, but the right, without restraint, of cutting timber from the lands, manufacturing it into lumber, and selling the same, so long as the instalments and taxes were paid as specified in the bond. Thus far, probably, there would be no disagreement between the counsel as to the construction and effect of the instrument. The appellants were rightfully in possession of the premises; the equitable estate under the contract was in them, and they would be entitled to a conveyance in fee simple when the contract was executed on their part. The cutting of the timber was not a wrongful act, for it was the obvious intention of the parties that the purchaser should have the right to cut off the entire timber upon the lands sold, and manufacture it into lumber. The bond declared that Palfrey should have the possession and use of the premises, without impeachment of waste or claim of damage, so long as he performed the conditions by him to be performed. Regard being had to the nature, character and use of the property, it is most obvious that it was expected and intended that the timber on the lands sold should be cut off and manufactured into lumber. The case is, therefore, not analogous to that of *Suffern vs.*Townsend, 9 Johns., 35, where the court say that an agreement to sell land does not imply a license to enter and cut trees; and also that a license to enter would not authorize the cutting of timber, because one license does not imply the other; nor like that of *Cooper vs. Slower,*id., 331, where it is decided that a contract to sell and convey land upon the performance of certain'acts thereafter to be performed, does not, of itself, contain a license to commit waste; but at most only authorizes the parties under it to enter upon the lands as tenants at will and occupy them in a reasonable manner, cutting no. more timber than is requisite for the use and improvement of the same. Substantially the same thing is decided in *Moores vs. Wait, 3*Wend., 104. See also *Rockwell vs.*Saunders, 19 Barbour (S. C.), 473; *Halleck vs.*Mixer, 16 Cal. R., 574. Neither does the doctrine of *Farrant vs.*Thompson, 5 B. & Ald., 826; *Harlan vs. Harlan,*15 Penn. *229St. R., 507; *Morgan vs. Varick, 8*Wend., 587; *Elliott vs.*Powell, 10 Watts, 453, apply to it. Tbe property in tbis was to be used for manufacturing lumber. It was to be paid for in lumber obtained from tbe lands. And it is idle to say that tbe purchaser under tbe contract bad not tbe right to cut timber to any extent, and sell tbe lumber manufactured from it, because tbe legal title to tbe lands remained in tbe vendor.

But it is suggested on tbe brief of counsel for respondent, that tbis right to enter upon tbe land for tbe purpose of cutting down tbe timber and manufacturing it into lumber, was in tbe nature of a personal license given Palfrey alone, and not assignable; and that if tbe assignee attempted to exercise tbis right, be became a trespasser.

Tbis construction of tbe contract is entirely inadmissible. There is nothing in tbe contract warranting tbe assumption that tbe right to cut tbe timber and manufacture lumber was a personal trust, confined to Palfrey and not enuring to tbe benefit of his assignee. On tbe contrary we suppose tbe appellants stand in precisely tbe same relation to tbe property as did their assignor, and that their rights over it are as full and complete as bis. If be bad tbe unrestricted right to cut tbe timber, manufacture it into lumber, and sell tbe same upon making tbe payments, then they have tbe same right.

Tbe original question then returns, Upon what grounds can tbe respondent maintain an action of replevin for tbe lumber manufactured from logs cut from these lands ? Can be be said to have the absolute or qualified property in tbe lumber, with tbe right of possession? If so, why? We can imagine no reason or principle of law which would have tbe effect to vest tbe absolute property in the lumber in tbe respondent, unless it be tbe failure of tbe appellants to make payment on tbe contract as required by that instrument. And is a default in making a payment upon tbe contract attended with such legal consequences ? It seems to us not. We are unable to perceive why tbe respondent can bring bis action of replevin for tbe particular piles of lumber mentioned in tbe complaint, any more than for any other portion, or, indeed, all tbe lumber manufactured from timber taken *230^rom ^ail^S- Suppose tlie contract had required the payments to he made in money, would a default have vested absolute property in the lumber in the respondents? And could he at once treat the possession of the property by the appellant as wrongful, and reclaim the lumber when default was made ? It appears to us not. The appellants are in possession of the mill and lands under a contract of sale, and are making the precise use of the timber growing upon them that the parties contemplated. Why a failure to make a payment when due should have any other effect that in ordinary cases of land contracts, we cannot understand. And we suppose the parties hold substantially the same relations to each other as in the ordinary case of a contract for the sale and conveyance of real estate. A court of equity has jurisdiction in such a case to relieve as well the vendor as the vendees. *Button vs. Schroyer,*5 Wis. R., 598. Possibly it might grant an injunction to restrain the appellants from entirely destroying the security, while in default, though the case calls for the expression of no opinion upon that point, and we give none. The simple question before us is, will an action of replevin lie under the circumstances for the lumber mentioned in the complaint? Upon that question our opinion is adverse to the respondent. We do not think he has such an absolute or special property in the lumber as to enable him to maintain the action. See *Mather vs. The Ministers of Trinity*Church, 3 Serg. & Rawle, *509; Baker vs. Howell,*6 id., 476; *Brown vs. Caldwell,*10 id., 114.

These general observations upon the relations and rights of the parties under the contract, would seem to obviate the necessity for a more particular notice of the rulings of the court below upon the instructions asked and refused, as well as those given. In our opinion, several of those rulings were erroneous.

The judgment of the circuit court is reversed, and a new trial ordered.