¶1It appeared from the amended complaint demurred to that on January 14, 1902, the respondent Emil Auster, at the United States land office at Ashland, Wisconsin, made a timber and stone cash entry under the laws of the United States of the southeast quarter of section 33, in township 46 north, of range 9 west. A patent by the United States to the said Auster was issued November 13, 1905. January 15, 1902, Auster and wife executed to the plaintiff a warranty deed of said land in the form authorized by sec. *5832208, Stats. (1898). By mutual místate of the parties to said deed the deed failed to contain an assignment or conveyance of the rights of action -which had accrued or might accrue to Amier for trespass on said lands or for unlawful cutting or taking of timber from the "same, although this was agreed upon between the parties and intended to' he inserted in the deed. After January 15, 1902, the Central Lumber Company, a corporation, wrongfully entered upon the said premises and cut and removed much valuable timber therefrom. The land was at all times vacant and unoccupied. The defendants refused to execute a conveyance containing an assignment of rights of action for trespass. The appellant asked that the deed be reformed so as to include such conveyance or transfer. The complaint states no cause o£ action because there was no such right of action in the grantors which they could assign. The court below was warranted in refusing an ineffectual decree. Leffler v. Burlington, 18 Iowa, 361; People, ex rel. Barry v. Mercein, 8 Paige, 41. See cases 16 Cyc. 126, 118. Defendant’s interest in the land began on January 14, 1902, and he sold to the appellant the next day by warranty deed. When the patent issued to the defendant Auster on November 13, 1905, the title thereby •conveyed inured to and vested in appellant by virtue of the warranty deed of January 15, 1902. Dillingham v. Fisher, 5 Wis. 475; Knight v. Leary, 54 Wis. 459, 11 N. W. 600. The title thereby conveyed carried an estate in fee simple and all right, title, and interest which the United States had in such land on January 14, 1902. Peyton v. Desmond, 129 Fed. 1; Gilbert v. McDonald, 94 Minn. 289, 102 N. W. 712; Krakow v. Wille, 125 Wis. 284, 103 N. W. 1121. The right of action, if any, to recover for the trespass averred in the complaint was in the appellant, not in the respondent. Cawley v. Johnson, 21 Fed. 492; Jones v. U. S. 35 Fed. 561; Montgomery v. U. S. 36 Fed. 4; Krakow v. Wille, 125 Wis. 284, 103 N. W. 1121; Gunsolus v. Lormer, 54 Wis. 630, 12 *584N. W. 62. Such, a case is not within the rule which prevents a holder of a mere equitable title to vacant and unoccupied lands from maintaining trespass, because that rule presupposes the right of action for such trespass to be in the holder of the legal title, and it applies only to such cases where the holder of the legal title has this right of action. Where the holder of the legal title has, prior to the trespass, parted with all interest in the land, and is bound to the execution of a deed at a later date which shall relate back to the time of creation of the equitable title and to- a date prior to the trespass complained of, he is not the real party in interest and the right of action for the trespass is not in him. Eor this reason the right of action must belong to the other party to the grant.
¶2By the Court. — The order of the circuit court is affirmed.