This is an appeal from part of a judgment entered in favor of the appellants in the court below, for the foreclosure of a land contract made with the defendant.
The parts of the judgment complained of are: 1. That the court did not find the value of the timber cut by the defendant as great as it should have found. 2. That the court found that the title of the timber cut from the lands of’ the defendant, was in the defendant, and not in the plaintiffs. 3. That *49the court improperly vacated the order granting an injunction and appointing a receiver in the case. 4. That the court should have adjudged the costs in favor of the plaintiff.
By the terms of the contract, the price to be paid for each forty acres of land agreed to be sold by the plaintiffs to the defendant, was to be determined by the amount of pine timber and lumber upon the same, “ either standing, growing or being thereon.” The amount was to be estimated in the way specified in the contract. There is no complaint made by the appellants that the amount of timber cut by the defendant was not properly estimated; and no fault is found with the finding of the court below as to the quantity of the timber cut and taken from the lands by the defendant; but the appellants insist that in estimating the value the court should have charged the defendant $2.50 per M. feet for each M. feet cut by him, whereas the court charged him $2.50 perM. for 63-100 of the amount and $1.00 per M. for 27-100 of the amount.
This finding is based upon a finding of the court below that, after the written contract was entered into and before the timber was cut, it was agreed between the parties that the defendant should pay for the damaged and down timber on the lands at the rate of $1.00 per M. feet. "We think the evidence is quite satisfactory that such subsequent agreement was made between the parties; and we are also of the opinion that such agreement, though by parol, must be sustained so far as the same has been acted upon by the parties.
Under the original contract, it was a matter of at least some doubt whether the defendant was bound to pay for any lumber or timber which was damaged or not merchantable; this new agreement may therefore be treated as an amicable settlement by the parties of the construction which should be given to the original contract, and limiting it to such timber as was undamaged and merchantable, and making a new contract by which the defendant, in consideration of such construction of the original, agreed to take the down and damaged timber upon the lands at the rate of $1.00 per M. feet, and have the same estimated at that price, with the other timber, in fixing *50the value of tbe lands sold, and to be taken and paid for at that price when taken from the lands not sold.
There was certainly a sufficient consideration to sustain the contract; and though it may be a contract for the sale of an interest in real estate, there can be no doubt but that the plaintiffs could enforce the same against the defendant, after the defendant had executed the same on his part by cutting and converting the timber to his own use. Certainly there can be no ground for refusing to enforce the same, so long as the defendant does not object to its enforcement.
But as tlie learned counsel for the appellants did not press tills point upon our consideration, and very strongly intimated that they were disposed to admit that the new arrangement was in fact made, and was in itself an equitable and just one, and that, if there had been no other grievances in tbe findings of the court below than tlie one relative to the value fixed upon the timber and lumber cut and removed by tbe defendant, they would not have felt called upon to ask this court to review tbe judgment of the court below, we content ourselves with the statement made above, without entering into any further discussion on the point.
The point taken by appellants’ counsel by their second exception to the findings of the court below, raises the question as to whether tbe title to the timber and lumber cut and converted by the defendant was in tbe appellants or in tbe defendant. The court below held that the title vested in tbe defendant. This ruling the counsel for the appellants insist was erroneous, and most prejudicial to their interests, and that the court ought to have found that the title to such timber and lumber remained in the plaintiffs until the same was fully paid for by the defendant. The ground of this claim is, that, as to a part of the timber, the land upon which it stood was not paid for by the defendant as agreed in tbe contract or in any other way, and as to a part, the timber itself (there being no agreement to sell and purchase tbe lands on which it stood) was not paid for 'according to the contract or in any other way.
*51The learned coimsel for the plaintiffs urge that, as the original written contract expressly provided that no timber should be cut or taken from either class of the lands before it was paid for, the cutting and taking without such paymept were mere acts of trespass, and did not divest the plaintiffs of their title to the same. If that condition as to payment has not been changed or waived by a subsequent agreement, then we should agree with the plaintiffs that the title to the timber cut and taken from the land would still be in them.
By the written contract, the appellants agree to sell to the defendant a large tract of pine lands, the defendant agreeing to pay for them a price to be determined by the quantity of pine timber on the same, and this price, it is agreed, shall be paid in installments as the timber is cut, the installments to be paid in each case before the timber is cut; and the defendant is to have a conveyance for none of the tracts paid for, except such as he may sell to other parties, until the whole contract is performed on his part. To make the contract more readily understood, it may be treated as though it were an agreement to sell the defendant a single tract of pine land, the price to be fixed by - the quantity of pine timber on the same valued at a definite sum per M. feet, to be paid before the defendant should be authorized to cut and remove the timber on the same. It is clear that in such case there is a valid contract for the sale of the lands; the only thing left un determined is the value, and that can easily be fixed according to the terms of the agreement; and when the price is fixed and paid, there can be no doubt of the right of the defendant to cut and remove the timber, and convert the same to his own use.
By the contract, his right to cut and remove the timber is restricted only by the condition that he must pay before cutting or removing. What is to hinder the plaintiffs from waiving the condition of payment before the cutting and removal? And if the condition be waived, and the defendant cuts and removes the timber, does not the title vest in him just as certainly as though the contract had in terms provided *52that be might cut and remove the timber before paying for the land? It would not be insisted, if the plaintiffs had taken the defendant’s note at sixty days or six months, for the as-' certained value of any specified parcels of lands sold, that he would not have had the right to go on and cut and remove the timber. If, by waiving the condition of payment in advance, the plaintiffs induced the defendant to go to the expense of cutting, removing and manufacturing the timber, it would be most inequitable for them to claim that the timber so cut, removed and manufactured belonged to them.
It is insisted by the appellants that the proof of such waiver of the right given by the contract to have payment made before the cutting is done, varies the written contract in an essential part, and is void because not founded upon any adequate consideration, and because it is an attempt to establish a contract for the sale of an interest in real estate by an agreement not in writing.
We are of the opinion that the waiver of payment at the time fixed in a contract for the sale of real estate, or the extension of the time for such payment, is not such a variation of the terms of the written contract as to exclude it from being received in evidence in a court of equity; and that in all cases where such waiver or extension of time has been given, either by parol or otherwise, and the purchaser has acted upon the faith of such extension or waiver, the courts have held the vendor bound by his contract. Most of the cases put it on the ground that time of payment, as a general thing in such contracts, is not of the essence of the contract; and some upon the ground that it would be inequitable to permit the vendor, after having induced the vendee to go on with the contract and expend his time and money in the further performance thereof after there had been a technical or other forfeiture thereof, to insist upon the forfeiture and refuse to perform the contract because the payments were not made according to the terms of the original contract. In Hunter v. Daniel, 4 Hare, 420, the vice-chancellor held that, under a contract in which the time of payment was affirmed by him to *53be of tbe essence of the contract, the plaintiff, who had failed to make the payment, was entitled to have the contract performed, because, after forfeiture by nonpayment at the time, the party to whom the payment was to be made accepted a part of the money due. The vice-chancellor says: “I agree with the defendants that each breach on the part of the plaintiff, in the nonpayment of money, was a new breach of the agreement; and that, time being of the essence of the contract, each breach gave the defendants a right to rescind the contract; but that right should have been asserted the moment the breach occurred. The defendants were not at liberty to treat the agreement as still subsisting, and to take the benefit of it at the expense of the plaintiff, if they meant to insist that it was at an end.”
In Reed's Heirs and Adm'rs v. Chambers, 6 Gill & Johns., 490, the court of appeals of Maryland held that where there was a written contract, binding under the statute of frauds, by which the vendee agreed to pay one of the creditors of the vendor, by a.certain day, a part of the purchase money, a subsequent parol agreement, which postponed the day of the payment to the creditor, was not a variance of the original contract. In that case both the arguments were used that are relied on in this case, viz: that the written contract could hot be changed, altered or added to by any parol agreement, and that no parol contract is binding for the sale of land or any interest therein. To these arguments the court say: “The verbal agreement was no variation or change of the written contract for the sale of the land; it was in effect to carry that contract into execution, and not to add to, or vary, or change it. As to the objection insisted upon in the answer, that Spencer forfeited his interest under the contract of purchase by not paying the purchase money according to the terms of the contract, we think it wholly untenable, because the principle is well settled that even where the time of payment is of the essence of the contract, a strict compliance at the day may be waived by the vendor. • • • In this case, if the money was not paid as stipulated by the written contract, the nonpayment at the *54time originated from the express agreement of tlie parties, and the effect of such omission upon their respective rights must be considered as waived.” So it was held that if the vendee in possession desires to rescind the contract because the vendor does not procure the conveyance within the time limited by •the written contract, he must do so promptly by surrendering the possession of the jjremises, or he will be held to have waived the forfeiture. Schroeppel, Adm’r, v. Hopper, 40 Barb., 425; United States v. Hewett, 3 W. C. C. R., 620; Fleming v. Gil bert, 3 Johns., 528; Keating v. Price, 1 Johns. Cas., 23; Langworthy v. Smith, 2 Wend., 587; Leavitt v. Savage, 17 Maine, 72.
The same rule has been held repeatedly by this court. Crittenden v.Drury, 4 Wis., 205; Hall v. Delaplaine, 5 id., 206; Minert v. Emerick, 6 id., 355; Reed v. Jones, 8 id., 392. We are clearly of the opinion that the effect of the waiver of the time of payment of the purchase price of the land in the one case, and for the timber in the other case, under the contract between the parties to this action, gave the defendant full authority to go on and cut and remove the timber, and that he was not a trespasser in so doing. The sole object of the contract, so far as the defendant is concerned, was to acquire the power to cut, remove and manufacture the timber on the lands agreed to be purchased by him, as well as the other timber purchased on lands not agreed to be sold to him; and, under the terms of the contract, the only condition precedent to that right was payment of the purchase price before he could lawfully cut, remove and manufacture the timber se purchased. The condition precedent having been waived by the plaintiffs, there does not seem to have been any inqpediment to the defendant’s right to cut and convert the timber to his own use. There can hardly, therefore, be a doubt but that the title to -the timber so cut and severed from the realty by him, and converted into personal property, passed to the defendant.
There would be no dispute that, in the case of a sale of chattels, where, by the terms of the sale, payment was to be made before delivery, if the vendor waived or postponed the payment *55and delivered the chattels, the title to them would vest in the vendee upon such delivery. In the case at bar, there was a valid written contract for the sale of the lands and timber by the plaintiffs to the defendant, with the right in the defendant under such contract to cut the timber, convert it into personalty, and apply it to his own uses and purposes, upon the single condition that he should pay either for the land or timber before such cutting and conversion. That condition having been waived by the party having the right to insist on its performance, and the defendant having been permitted to cut and convert the timber without such performance, the title must vest in .him the same as it would had he performed the condition precedent.
This consequence is not strenuously denied by the learned counsel for the appellants. The strength of the argument is expended in. an attempt to show that if there was such waiver by a parol agreement, it could not be shown, because it varies or changes the written contract between the parties.
In the case of Northrup v. Trash, 39 Wis., 515, it was held by this bourt that the title to a dwelling house upon lands in the possession of a vendee under a contract for the purchase thereof, upon which nothing had been paid, and where by its terms the contract had been forfeited for nonpayment of the purchase price, was in the vendee, although he severed the same from the soil and removed it after such forfeiture without the knowledge or consent of the vendor; and that no action could be maintained by the vendor to recover the possession of such house, either against the vendee or the person to whom lie sold the same. The learned chief justice, who delivered the opinion, says: “It is more difficult still to understand the right of the appellant to maintain the action. He had made a subsisting contract with Lee for the sale of the lot on which Lee built the house, and of which Lee was in possession under the contract when he removed the house. It is true that Lee had failed in making payments required by the contract. But the appellant had not foreclosed the contract, and his title in the lot was that of mortgagee in fee; the equitable estate, pos*56session and riglit of possession being in Lee as owner of tlie bouse and lot, subject to the right of the appellant as mortgagee. Lee had, therefore, perfect right to dispose of the house; and the appellant had no possessory title to it on which he could maintain this action.” Whilst the writer of this opinion does not approve of all the positions taken by the court in that case, such is, however, the law as fixed by the decision of this court; and it seems quite decisive of the question in the case at bar, as to whether the title to the timber cut, removed and manufactured by the defendant was in the defendant, if the same was cut, removed and manufactured by the defendant with the knowledge and assent of the appellants.
The appellants’ counsel, however, contend that there was no sufficient evidence that the plaintiffs either waived the conditions as to payment, or assented to defendant’s cutting, removing and manufacturing the timber without first paying for the same according to the conditions of the contract. We agree with the learned circuit judge that there was sufficient evidence of this fact. The defendant swears positively to the agreement; the attorney in fact for the plaintiffs, and who acted for them, does not positively deny it. ITis denial is at best a negative pregnant. He simply says: “No conversation that I ever had with JBellew would even admit the construction that I ever gave my consent to his cutting the timber contrary to the terms of the contract. When I was out there in the spring, he was doing a little cutting; I don’t know that I objected. I probably talked with him about it. The idea was that he could pay me when he got the stuff out. 1 gam Mm no direct formal agreement to wait for my pay until he could get out lumber. 1 did wait.” This denial, which is a qualified admission of the claim made by the defendant, together with the fact that the defendant was in fact permitted to go on for two years nearly, and cut and manufacture nearly 3,000,000 feet of timber, with the knowledge and without objection on the part of the appellants, is quite sufficient to justify the finding of the circuit judge upon this point.
*57It is argued by the counsel for tbe appellants, that if the defendant relies upon the parol alteration of the original written contract, as the foundation for his cutting and carrying away the timber in question, such license did not give a right to the defendant which could not be revoked by the appellants; that as the right was an interest in real estate, it could not be created by parol; and that the appellants might therefore revoke such license at pleasure. If this were admitted, it does not change the right of the defendant to the property which he cut and converted into personal property under such license before the same was revoked. In Tyson v. McGuineas, 25 Wis., 656, the court say: “If the license was revocable at pleasure, it would create no interest in the land, and would only serve as a justification for acts committed while it existed.” See Miller v. R. R. Co., 6 Hill, 64; Wallis v. Harrison, 4 M. & W., 538; Heaney v. Heeney, 2 Denio, 625; Nettleton v. Sikes, 8 Met., 34; Wood v. Leadbitter, 13 M. & W., 838; Wood v. Manly, 11 A. & E., 34; Thomas v. Sorrel, Vaughan, 351. In American Leading Cases, Vol. 2, 739, it is said: “ From what has been said it is evident that, although no interest in law can be created by a license, yet while it continues to subsist it will be as effectual for the purpose of sustaining and justifying all acts to which its authority extends, as if it operated on the estate instead of being merely personal to the party to whom it was given. So long as it remains unrevoked, the latter may without danger adopt the same course as if he possessed a substantial interest instead of a naked authority.” Chief Justice VaughaN, in the case of Thomas v. Sorrel, supra, says: “ But a license to hunt in a man’s park and carry away the deer killed to his own use, to cut down a tree in a man’s ground and carry it away the next day after, to his own use, are licenses as to the acts of hunting and cutting down the tree; but as to the carrying away of the deer killed and tree cut down, they are grants. So to license a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, firing my wood and warming him, they are licenses; but it is consequent necessar*58ily to those actions, that my property may be destroyed in the meat eaten and in the wood burnt. So as in some cases, by consequent and not directly, and as to its effect, a dispensation or license may destroy and alter property.” The authority of this opinion has never been denied by the English courts, as will be seen by a reference to the eases above cited.
Whether, therefore, in the case at bar, the defendant cut and removed the timber and trees under the original written contract, or by a parol license to do so, upon condition that he should pay for the timber so taken at some future time, the title to the timber cut and removed under such parol license before it was revoked, would vest in the defendant.
Whether the order vacating the order for the appointment of a receiver was erroneous, depended entirely on the question as to the title of the property in his possession. That property having been found to be in the defendant, it follows that the receiver should be removed, and the property delivered to the owner.
We think there was sufficient evidence to sustain the seventh finding of fact, as to the location of the mill and the price to be paid for the lands about and upon which the same is situated; and that, such agreement having been executed by the defendant except as to the payment of the purchase price, equity will enforce it; that under the final judgment rendered no injustice can be done to the appellants in consequence of such finding, as the judgment provides that no redemption of any part of the premises contracted to be sold can be made without first paying the whole sum adjudged to be due to the appellants, both for the timber cut and removed and for the value of the lands about the mill; nor do we see how this finding can prejudice the appellants in any subsequent litigation which may arise as to the ownership of the mill under the deed to Hubbard, in case the defendant fails to redeem by paying the whole amount due the plaintiffs; the court below, in its eighth finding of fact, having found that the deed to Hubbard was made without any lawful authority.
So far as this judgment affects the title to the mill and the *59lands on which the same stands, it would seem to leave the title in fee in the appellants, unless the defendant redeems according to the terms of the judgment.
Plow far this judgment will bind Iiubbard, it is unnecessary to determine; but, as we have said, we thinlc it cannot on the whole prejudice the rights of the appellants in any contest with him as to the mill and premises, but on the other hand we think it favors their right, if it can be used by them for any purpose in any such litigation.
"Whether a court of equity, in a case of this kind, would under any circumstances have the power to give the vendor of real estate a lien for the purchase money upon personal property the title to which had become vested in the vendee, because of the fact that such personal property, in its natural state, had been a part of the realty, we do not decide; but content ourselves with the remark that the evidence does not present a case in which the equities demand that such a lien should be declared. The interests of other creditors of the vendee have arisen, which would apparently give them equal equities with the vendors; and in addition, in the case of failure to redeem, the vendors have not only a judgment against the defendant for the whole amount due them for the value of the timber taken from the lands, but they take the lands with all the improvements placed thereon by the defendant, amounting at the lowest estimate to a sum exceeding the whole value 'of the timber taken therefrom.
The costs in this action being a matter wholly in the discretion of the court below, we do not think that this court would be justified, upon the facts of the case, in holding that the refusal to give costs to the plaintiffs was an abuse of such discretion.
Eyan, O. J.I am not quite satisfied that the parol modification of the written contract was satisfactorily established by the evidence; or that, being so established, there was satisfactory evidence to take it out of the statute of frauds. But I write this opinion mainly to correct an error into which the *60learned counsel of the appellants fell in the construction of Daniels v. Bailey, 43 Wis., 566.
The learned gentleman contended that the case established the doctrine that the felling of timber by the purchaser of it, under a parol contract, was not a sufficient execution of the contract to take it out of the statute of frauds. This is a mistake.
The defendant in that ease purchased the standing timber by two several contracts: one a written contract with one Cav-anaugh; the other a parol contract with the plaintiff. The defendant cut the timber under the written contract with Cav-anaugh, and not under the parol contract with the plaintiff. The court therefore held the parol contract between the plaintiff and the defendant to be wholly unexecuted, and therefore void under the statute. The case is so stated in the report as to require a careful reading, or it might mislead others as it did the counsel in this case.
By the Oourt. — The judgment of the circuit court is affirmed, with costs.