
    Van Doren and another, Appellants, vs. Fenton and another, Respondents.
    
      April 8
    
    May 2, 1905.
    
    
      Sale of standing timber: Farol warranty of title: Failure of title: Implied warranty.
    
    1. Plaintiffs’ evidence slio-wed that timber purchased by them was standing when the contract was made, the title to the land being in the United States, and that the purchase was oral. Held, there could be no express warranty oí title thereto lly parol, • such timber being then real estate.
    2. In suclj case there could be no implied warranty, such timber then being neither personal property nor in the vendor’s possession.
    Appeal from a judgment of tbe circuit court for Shawano county: JohN GoodlaND, Circuit Judge.
    
      Affirmed.
    
    Eor tbe appellants there was a brief signed by Weed & Van Doren, and oral argument by B. N. Van Doren.•
    Eor tbe respondents there was a brief by B. A. Cady and Kreutzer, Bird & Bosenberry, and oral argument by C. B. Bird.
    
   WiNsnow, J.

Tbe plaintiffs are manufacturers of lumber, and they claim in this action that they purchased standing timber of tbe defendants, and paid them $228.58 therefor-‘upon a warranty of title, which warranty failed, said timber being tbe property of tbe United States, and tbat tbey were compelled to pay tbe purchase price of tbe logs a second time to tbe United States, and tbey bring tbis action to recover upon tbe warranty of title. Tbe plaintiffs’ evidence showed tbat tbe timber purchased was standing when tbe contract was made, tbe title of the land being then in tbe United States, and tbat tbe purchase was oral. Thus it appears tbat tbe purchase was a purchase of real estate, and it is well understood tbat there can be no warranty of title to real estate by parol. Tbe respondent claims tbat there is an implied warranty under tbe rule tbat when personal property in possession of tbe vendor is sold at a fair price there is an implied warranty of title. Tbis principle might apply except for two slight difficulties, viz., tbe timber sold was not personal property, and was not in tbe vendor’s possession. So it seems tbat there is a total failure to prove either an express or implied warranty of title,, and tbe verdict was rightly directed.

By the Court. — Judgment affirmed.  