74 Miss. 584 | Miss. | 1896
delivered the opinion of the court.
That the appellant is the real owner of the land from which the trees were cut, whose actual value is sought, in this suit, to be recovered, and had title, was settled in Taylor v. Trust Co., 71 Miss., 694 (15 South., 121). The declaration in this case contains three counts — trespass quare clauswn fregit, trespass de bonis asportatis, and trover. The plea of not guilty was interposed to all these counts, as was also the plea nil debet. It is not disputed that the appellee got the timber from Taylor, who had no title, and has converted it to its own use. The trees were cut by employes of the appellee, acting, as appellee claimed, as Taylor’s agents. It is shown, also, that, when cut, the deed of appellant was of record, and the former chancery suit in which appellant’s title was established, begun before the code of 1892 went into effect, was pending, and that the appellee was not in. possession of the land. -It is manifest from the
But it is insisted with great ingenuity and , earnestness that neither trespass de bonis asportatis nor trover will lie to recover of a purchaser from a disseizor, or from the disseizor himself, the value of trees cut from the land of the true owner, during possession by such disseizor. It is said that the doctrine of Emrich v. Ireland, 55 Miss., 390, goes to the extent of holding only that trespass quare clausum fregit may be brought against the disseizor to recover damages to the close intermediate the disseizin and re-entry by the true owner, after reentry; that case being a suit to recover the damages t.o the freehold occasioned by the removal of a log house and fence. The reason assigned for the distinction is, that the possession of the true owner, by a legal fiction, relates back for this particular purpose of bringing quare clausum fregit for such damages to
But the precisely opposite doctrine is announced in an opinion of great force by Savage, C. J., in Morgan v. Varick, 8 Wend., 587, in the course of which it is said with great power: “If that be law, any irresponsible person may turn the owner forcibly out of possession of his real estate, sell the buildings and the timber, and thereby destroy the value of the property; he may sell it, too, under ever so suspicious circumstances, and according to the doctrine quoted [the identical doctrine of Brothers v. Hurdle], the purchaser is safe, and the owner has no remedy.” And the law, as thus announced, is also emphatically approved in Truber v. Miller, 48 Conn., 347, and Green v. Biddle, 8 Wheat., 75, and by Mr. Freeman in a note of great clearness and learning to Anderson v. Hapler, 85 Am. Dec., 318, where he distinctly shows that the possession relates back to enable the owner, after re-entry, to bring trespass de bonis or trover for timber, etc., cut and carried away by the disseizor, while in possession, against such disseizor, and then, after adverting to the authorities holding that such suit could not be brought against strangers or anyone other than the disseizor, he says: “On the other hand, there is weighty authority to the contrary, and to the effect that after re-entry the disseizee may have his action of trespass, either against the disseizor, his lessee, donee, or feoffee, or against a stranger, for mesne profits and trespass done during the disseizin, on the ground, of course, that by relation the possession is regarded as having been continuously in the plaintiff since the disseizin, ’ ’ citing, with approval, Morgan v. Varick, supra
But the very opposite of this doctrine is held in Harris v. Hewman, 5 How. (Miss.), 651-658, and in Evans v. Miller, 58 Miss., 120. In the first named case, Harris v. Hewman, Sharkey, C. J., declared that if Harris, the defendant in trover, had really had title and right of possession, trover could not have been maintained, “because, being owner of the timber before it was cut into wood, he would own the wood also,” and (page 658) that, “ when trees are severed from the soil, . . . the right of the owner of the trees is not divested,” etc. It was an action of trover by Newman, the true owner, for the value of cord wood cut by Harris, the disseizor, while in possession, Newman having re-entered.
So, in Morgan v. Varick, Savage, C. J., wrestles with Li-ford’s case as contrary to his view, when it directly supports him. What he quotes is merely Coke’s statement of what the year books have held. What Coke himself says on page 515 is as follows: “But, upon consideration of all the books, it has been resolved and adjudged that it is all one [as to fructus industriales and naturales], and there is no diversity betwixt them; for the rule and reason of the law is, as has been said, that, after the regress of the disseizee, the law adjudges, as to the disseizor himself, that the freehold has continued in the disseizee, which rule and reason doth extend as well to corn as to trees or grass, etc.; the same law if the feoffee or lessee or the second disseizor sows the land, or cuts down trees or grass, and severs or carries away or sells them to another; yet, after the regress of the disseizee, he may take as well the corn as
As to trover — and one of these counts is in trover — it is express Jy so held in Heath v. Ross, 12 Johns., 140 (85 Am. Dec., 325, note). See, particularly, the whole of this masterly note, to which we make special reference. And see, also, 26 Am. & Eng. Enc. L., 774-8. Miller v. Wesson, 58 Miss., 831, does not militate against this doctrine. The cases cited there (Mather v. Trinity Church, 3 Serg. & R., 509, and others) merely hold that the true owner, while. out of possession, cannot maintain trover for the value of things severed from the freehold, and converted, as against one in actual adverse possession, claiming title, on the ground that it would necessitate a trial of the title to the land in an action of trover, which would be greatly inconvenient. We say nothing as to this last point, though this very case, Miller v. Wesson, held that such title was triable in an action of debt to recover the statutory penalty for cutting trees. But the general proposition that the disseizee, while disseized, cannot maintain trover, against one in actual adverse possession for trees cut by him while in possession (see 85 Am. Dec., 322, note), provided the possession is adverse, so as to amount to a disseizin,” affords appellee no comfort; for it was not in adverse possession, but simply bought the trees, as counsel well says, ‘£ miles away, at its mill. ’ ’
The effect of not guilty in trover, under the Hilary rules, is clearly pointed out in 26 Am. & Eng. Ene. L., 809, 810, where it is said: “The general issue in trover is not guilty. There is some conflict of authority as to the right of the defendant to show, under such plea, that the plaintiff had no such interest in the property as would authorize him to sue in trover. It is generally held in the United States that he can, and this
Reversed and remcmded.