The question most strenuously urged upon the attention of tbe court relates to tbe inconsistency of tbe answers of tbe jury to questions No. 1 and No: 8. These questions both involved tbe good faitb of tbo appellant in cutting and removing tbe timber. Tbe answer to tbe seventh question finds that tbe appellant in good faitb cut and removed such timber believing bis title to be valid. Tbe eighth question presents in a special form tbe same controverted question, and in tbe answer thereto tbe jury finds that tbe appellant was notified in January, 1903, of tbe facts upon which tbe adverse title was based and which rendered appellant’s title invalid. It is conceded that part, if not all, of tbe timber was removed after such notice was given, although part, if not all, of tbe timber bad been cut prior to that date. Counsel for both parties at tbe time tbe verdict was rendered deemed tbe answers to tbe questions inconsistent, as is indicated by tbe motions to change tbe answers in tbe manner already stated. The court denied respondent’s motion to change the answer to question No. I from “Yes” to “No,” and there was no exception to this ruling; and denied tbe appellant’s motion to change tbe answer to question No. 8 from “Yes” to “No,” to which proper exception was taken. In passing upon these motions tbe court stated:

“That tbe eighth question and its answer determine the rights of tbe parties. There is not necessarily a conflict between tbe seventh and eighth questions and tbe answers thereto.”

Questions No: 5, No: 6, and No. Y were submitted substantially in tbe words of tbe statute as found in the proviso of sec. 4269. This form of submission has been approved by this court. Byington v. Merrill, 112 Wis. 211, 88 N. W. 26. Tbe seventh question was therefore proper, and its answer also determines tbe rights of tbe parties if the eighth question and answer are stricken out.

*430Counsel for respondent contends that the answer to- the seventh question was made by the jury in accordance with the instruction given by the court, which was erroneous and misleading. In the charge relating to the seventh question the jury were told, in substance, that if they found that the appellant was informed of the nature of the adverse claim to the land and was warned not to cut the timber, and he went, nevertheless, and cut and removed the timber, then they should find that the appellant did not act in good faith. Respondent’s counsel insist that the jury acted upon the instruction in answering the seventh question in the affirmative, and further contend that the language of the charge as italicized is erroneous and misleading. The contention may be correct, but it is to be noted that there was no exception to the submission of the seventh question or to the charge of the court-relating to the warning given to the defendant; nor is there any exception to the refusal of the court to change the answer to question No. 7. So far as respondent is concerned, the seventh question was properly submitted under proper instructions and properly stands in the record, and full effect must be given to the answer. After the verdict was rendered respondent’s counsel did not move to strike out the seventh question and answer, but his motion was to change the answer, which must have been made upon the assumption that the seventh question was properly submitted and under proper instructions.

Moreover, it is to be noted that the court in the charge given with respect to the seventh question says: “Ton will carefully apply these instructions in answering each question in which good faith is involvedand adds in the same connection :

“The burden is upon the defendant to prove that the cutting and removal was in good faith. So, whether Ellis in January, 1903, was notified of the facts upon which Mrs. Spies’s title was based and showing the invalidity of defend-. ant’s title is important on this question whether the cutting *431and removal of tbe timber was in good faitb, believing the title was valid. The jury will here apply the rules given in other portions of the charge on the subject of good faith.”

And further:

“The instructions which the court will give you under the eighth question involving an inquiry as to whether Ellis was informed of the facts upon which Mrs. Spies’s title was founded will be pertinent in answering the seventh question.”

It appears that the jury had some difficulty in arriving at the answers to the last two questions and came in for further instructions. The court then said, “Now, gentlemen, the inquiry involved in the eighth question is very important in answering the seventh question,” again emphasizing the fact that the appellant’s good faith was involved in the answers to these questions. It is clear upon this record that each of these questions embraced the same issuable fact and that the answers are in direct conflict. We must hold, therefore, that the answers to questions No. 7 and No. 8 are inconsistent. This conclusion necessitates a reversal of the judgment and obviates the necessity of a consideration of the alleged inconsistencies of the answers to the first four questions.

By the Oourt. — The judgment is reversed, and the cause remanded for a new trial