LAUGHLIN v. NORTH WISCONSIN LUMBER, CO. et al., 193 F. 367

KOHLSAAT, Circuit Judge (after stating the facts as abové). Complainant brings this cause to this court .after he has obtained from the .Circuit Court a decree giving him substantially every right to which the original contract entitled him. He is to receive a deed of the lands in question from Savage on paying the moneys reserved in the agreement. Save for the timber which was destroyed by fire, and his expenses incurred in the various phases of the litigation, matters not here involved, he is placed in the same position he would have held, had there been no conveyance to Savage.

He is given both the warranty of the lumber company and of Savage; that of the former being as effective in law as though'’made directly to him. No adverse interests having intervened, these fully satisfy the rights of Laughlin as assignee of the contract. Bateman v. Johnson and Another, 10 Wis. 1; Gaven v. Hagen et al., 15 Cal. 208. The bill was properly dismissed as to the lumber company at complainant’s costs.

The rest of the relief sought consists mainly in his prayer to have the •conduct of Savage characterized as inequitable and unfair, and Savage himself penalized to the extent of the moneys paid by him to the lamber company to satisfy all unpaid installments under said contract, together with taxes and interest. Assuming that the conduct of Savage was, under the evidence, reprehensible, and that the court ivas justifiable in assessing against him the costs, how does that affect complainant? He himself was in default, from which Savage was in position to suffer damage.

Instead of tendering Savage the amount due and curing the default, complainant chose to bring suit, and was apparently himself to blame for an extended litigation and its concomitant expenses. There is no justification for the statement that Savage was a mere volunteer in making the payments. He had an interest, and was in law justifiable in protecting his liability, even though he may have liad other and improper motives in so doing.

Nor was his act any warrant in law for appellant’s refusal to negotiate further for the .sale of the limber, no matter how unfair his conduct as to the attempted forfeiture, or from what source he obtained the funds with which to make the payments. He (Kauglilin) was the equitable owner in fee of the land, while the vendor held the legal title only as security for the payments reserved. Church v. Smith, 39 Wis. 492. The right to possession was in the vendee. Martin v. Scofield, 41 Wis. 167. This included the standing timber, which complainant could sell and give a good title thereto (Northrup v.

Trask, 39 Wis. 515; Krakow v. Wille, 125 Wis. 284, 103 N. W. 1121), unless restrained from cutting the timber to prevent impairment of security, it therefore seems clear that it was only Laughlin’s self-imposed legal restriction that interfered with the sale of the timber, provided he had a customer, which is not clearly established by the evidence.

Considerable stress is placed upon the circumstance that by the contract the installments were made payable to the lumber company at Hayward, Wis., where the lumber company was located at the date of the contract, whereas it had moved its offices afterwards to Chippewa Falls. It is not apparent from the record that this fact was of Ihe slightest importance to either of the parties, so far as affects questions here involved, and we deem it of no importance now.

It is urged that the court erred in restraining l.aughlin from cutting or otherwise disposing of the timber on the land in suit within the period given him to perform his part of the decree. If the Circuit Court deemed such an order necessary to protect the rights of Savage, it was a proper order to make, and no reason is shown why there was error in entering it. We find no error in the decree of the Circuit Court, which is therefore affirmed.