
    William S. DeCamp, as Executor, etc., Plaintiff, v. Christopher Wallace and Frank Wallace, Defendants.
    (Supreme Court, Herkimer Special Term,
    Dec. 1904.)
    Action for damages and injunction to restrain cutting of timber which was previously sold to the plaintiff — Effect of recording a contract for the sale of standing timber — When subsequent purchaser is put upon inquiry as to prior sale — A voluntary trustee may sue — Injunction granted though the damages are nominal.
    Plaintiff purchased of one Fisher certain standing spruce timber and recorded the contract of sale together with a declaration of trust that he held as executor of his wife. Fisher subsequently sold a portion of said standing timber together with other tim-. ber on the 'same lands to assignor of defendant who cut timber covered by the plaintiff’s contract. In an action for damages and injunction;
    Held, that Fisher had no right to sell defendant’s assignor timber already sold to plaintiff;
    That neither defendant nor his assignor was a bona fide purchaser for value, as a contract for the sale of standing timber is one for the sale of an interest in land and thus is entitled to record; that such record is constructive notice to subsequent purchasers.
    
      Semble, that defendants had such notice of plaintiff’s contract as to put them on inquiry as to plaintiff’s title to the timber;
    Held, further, that plaintiff was entitled to sue because by a valid declaration of trust one may constitute himself trustee for another as to property already held by him or which he acquires under a previous agreement;
    That, as defendant had cut the trees but had not removed them and as they were as valuable cut as uncut, the damages were nominal, but that plaintiff was entitled to a permanent injunction.
    Action for damages and for an injunction.
    Hiram H. Byel (H. W. Bentley, of counsel), for plaintiff.
    Snyder, Cristman & Earl, for defendants.
   Wright, J.

The material facts of this case are as follows: On September 11, 1899, DeCamp the plaintiff, herein accepted an offer of one Mrs. Fisher for the sale of all the spruce timber of and over ten inches in diameter standing on her lands in Township 7, Herkimer county, N. Y. This contract was recorded in the county clerk’s office December 7, 1901, together with a declaration by the plaintiff that he held the contract in trust as executor for the estate of his deceased wife. On June 12, 1902, DeCamp sold to the Gould Paper' Company, certain timber standing on his own lands and also 10,000 cords of spruce timber of and over ten inches in diameter standing on the lands of Mrs.Fisher, which he held under his contract. Counsel for the defendants claim that by this contract, DeCamp sold timber that did not belong to him. A close inspection of the contract does not reveal this fact. By its terms only spruce timber not smaller than ten inches in diameter was sold on the “ Easterly and Westerly lines,” and the 10,000 cords to be ent from the lands of Mrs. Fisher were subject to the “ above recited restrictions as to cutting.” Hence the timber sold by plaintiff on Mrs. Fisher’s lands was clearly limited within his rights. The Gould Paper Company employed one Joslyn to cut the timber. He cut the 10,000 cords from the lands of Mrs. Fisher. There is controverted evidence that while on the lands of Mrs. Fisher, he cut spruce under ten inches in diameter standing on a certain bnrned-over area. But it is shown that Mrs. Fisher’s timber agent Todd, gave leave to Joslyn to cut all the burned stuff whether of ten inches in diameter or not. There is no evidence that Gonld’s contract with DeCamp was violated in any other particular. In 'July, 1904, Mrs. Fisher sold to one Wakeley, all the-spruce, pine, hemlock, balsam, tamerac, also certain hard wood located on her three lots in ranges 1 and 2 in Township 7, and being the lands cut over by Joslyn during the season o£ 1903-4. This contract was recorded August 15, 1904 Wakeley sold and assigned his interest in the contract to Christopher Wallace, one of the defendants herein. The assignment was recorded. Later in August, the defendants entered on the said lands of Mrs. Fisher and cut seventy-five cords of spruce mostly of and over ten inches in diameter, in the virgin forest, on portions of the land not cut over by Joslyn. Plaintiff procured an injunction restraining the defendants from further cutting, and brings this action for damages and for a permanent injunction restraining the defendants from further cutting of spruce of and over ten inches in diameter on those lands of Mrs. Fisher covered by plaintiff’s contract, "which have not been previously cut over by Joslyn.

The defendants claim they had a right to cut the timber in question. Let us examine the terms of the Fisher-DeCamp and Fisher-Wakeley contracts. By the former contract all the spruce of and over-ten inches in diameter is sold to DeCamp; by the latter all the spruce, pine, hemlock, balsam and other timber on the six lots of Township 7 being the lands cut over by Joslyn ” is sold to Wakeley. If the FisherWakeley contract purports to sell spruce of and over ten inches in diameter on lands not cut over by Joslyn, it is to that extent void as against DeCamp. Mrs. Fisher had no right to sell that spruce timber to Wakeley because she had already sold it to DeCamp. Neither Wakeley nor his assignee, Christopher Wallace, had, therefore, any right to cut spruce timber of and over ten inches in diameter on those lots that had not been cut over by Joslyn. But it is claimed that Wakeley and the defendants are bona fide purchasers from Mrs. Fisher; that they had no notice of DeCamp’s rights; that the instrument DeCamp recorded, was a mere option and as such was not entitled to he recorded and hence was not constructive notice to them. But the option had ripened into a valid contract of sale by the acceptance of the offer therein. 21 Am. & Eng. Encyc. of Law (2d ed.) 929, 933; Clark Cont., 50, 51, 168, 169; Boston & Maine R. R. Co. v. Bartlett, 3 Cush. 224; S. C., 1 Keener Cas. Cont. 245. The declaration of trust recites that the contract was put in force by the “ notice ” given in conformity with its terms. The whole transaction amounting to a complete contract of sale is thus spread upon the record. The contract was for the sale of standing trees. It was, therefore, a contract for the sale of an interest in land. Green v. Armstrong, 1 Den. 550 ; McGregor v. Brown, 10 N. Y. 114; Lacustrine Fer, Co. v. Lake Guano & Fer. Co., 82 id. 476, 484; Thomson v. Poor, 147 id. 407; Tied. Real Prop., § 9. Such a contract is within the recording act. In Voreheck v. Roe, 50 Barb. 302, it was held that a contract for the sale of standing trees is one for the sale of an interest in lands and falls within the intent and meaning of the recording act. This case is recognized in Lacustrine Fer. Co. v. Lake Guano & Fer. Co., 82 N. Y. 476, 485. Under these authorities the contract was entitled to be recorded and was, therefore, constructive notice to Wakeley and the defendants herein, of DeCamp’s rights under his contract with Mrs. Fisher. Further, I think the evidence fairly shows that both Wakeley and Christopher Wallace had sufficient actual notice of DeCamp’s rights to put them on inquiry. Wakeley, testifies he knew when he took the contract with Mrs. Fisher that Joslyn had cut over a large area of the lots for Gould under Gould’s contract with DeCamp. He even settled with DeCamp for a trespass by his own men on these very lots. This settlement is signed by Wakeley and recites that the timber cut by him on range 2 and lot 4, had been already contracted to W. S. DeCamp by Mrs. Fisher, and that this cutting constituted a trespass against Fisher and DeCamp. The defendant Christopher Wallace as assignee of Wakeley is in the same position as his assignor. 4 Cyc. 79; Clark Cont. 536; Eaton Eq. 505. Christopher Wallace testifies he knew Mr. Gould had bought timber of Mr. DeCamp on Mrs. Fisher’s land and that they lumbered on it. He understood that DeCamp had bought this spruce and sold it to Gould and that Joslyn was cutting for him. He read the Fisher-Wakeley contract which recited and being the lands cut over by Joslyn.” His own assignment recites these same words and refers to the Fisher-Wakeley contract. Where facts or circumstances known to a person in relation to a matter in which he is interested, are sufficient to make it his duty to inquire concerning the rights of others in the same matter, which inquiry 'would, if followed with due diligence lead to the discovery of rights in conflict with his own, the general rule is that he will be held chargeable with notice of all that he might have discovered. 21 Am. & Eng. Encyc. of Law (2d ed.) 584.

The plaintiff is not estopped from asserting his rights to the spruce timber in question, simply because he did not define his rights when he gave Wallace a certain license. to cross his lands with timber*to be cut from Mrs. Fisher’s lands under Wakeley’s contract with her. DeCamp never saw Wakeley’s contract with Mrs. Fisher and he had no information whatever that Wakeley or Wallace claimed any rights in the spruce timber of and over ten inches in diameter on the lands of Mrs. Fisher not cut over by Joslyn. Moreover the Fisher-Wakeley contract purports to cover certain hard wood, balsam, hemlock, etc., besides spruce, so it may have been assumed by DeCamp that it did not cover the spruce of and over ten inches in diameter which he had already bought. Finally, by recording his contract, he discharged his whole duty toward Wakeley and the defendants and gave them constructive notice of his rights.

It is urged that DeCamp, as executor, has not sufficient title to the spruce timber in question to maintain this action. The contract was made by. him in his individual capacity. He made and recorded a declaration that he held the contract as trustee for his wife’s estate. A person by a valid declaration of trust may constitute himself a trustee for another of property already owned by him or upon its acquisition in pursuance to a previous agreement. 28 Am. & Eng. Encyc. of law (2d ed.) 898; Martin v. Funk, 75 N. Y. 134; Eaton Eq. 373. The estate is not shown to be prejudiced by the declaration of trust. DeCamp very properly appears in this action, therefore, for the protection of the interests of his trust.

It remains to inquire as to the. amount of damages. It appears that the defendants cut seventy-five cords of spruce mostly of and over ten inches in diameter, in the virgin forest which had not been cut over by Joslyn and which belonged to the plaintiff under his contract with Mrs. Fisher. The timber was not removed, and about one-half of it is skidded.' It appears under the circumstances of this case that the plaintiff has suffered no substantial damages by reason of this cutting. Plaintiff’s witness Wilcox, gives the only evidence as to damages. He testifies that the value of this cut timber is the same as if it were standing, namely, three dollars per cord. If this he true and it is not contradicted, the plaintiff is entitled to nominal damages only. The injunction, however, will he made permanent restraining the defendants from cutting any spruce timber of and over ten inches in diameter on the northerly parts of lots 4 in ranges 1 and 2, and being the parts of said lots not cut over,by Joslyn, excepting the timber standing within twelve chains of the border of Blaekfoot lake, this being reserved to Mrs. Fisher under her contract with the plaintiff.

Costs are awarded to the plaintiff. Findings and judgment may be prepared accordingly.

Judgment accordingly.  