13 Minn. 501 | Minn. | 1868
By the Court Tbis case comes before us on an appeal from an order denying tbe plaintiff a new trial.
, Great stress is laid by tbe appellant on tbe alleged fact “ that at tbe time the mortgage was executed and delivered, tbe possession of tbe land described in said inortgage-was
The appellant^ therefore, could not have been permitted to
The plaintiff having neither the possession, nor right of possession, cannot maintain this action. Berthold vs. Holman, 12 Minn., and cases there cited.
The fact that Taylor and Fox were the mortgagors, and owners of the land, and Fox and his partner O’Brian cut and removed the timber, does not change the aspect of the case.
The possession of one tenant in 'common, is presumed no^ to be unlawful, or adverse to his co-tenant, and it is not doubted but that O’Brien acted in the premises under license and authority from Fox.
It is alleged as error, that the Court permitted the defendants on the trial to show what had been the highest market value of the logs at any time after they were replevied.
There does not appear in this case a word of evidence to show fraud, malice, negligence or oppression on the part of the plaintiff, and there is no circumstance distinguishing this from an ordinary action for the claim and delivery of personal property, to the possession of which the plaintiff honestly believes himself entitled. Under these circumstances, at any rate, the jury should have found the value of the property at or about the time it was replevied by the plaintiff, and it-was error to permit evidence to go before them of its value at any other time. Bee Sedgwielc on Measure of Damages, 481, and cases therein referred to. The verdict shows that the jury was probably misled by this evidence, for the damages found far exceed what they would be, measured by the rule above indicated.
The order, appealed from is reversed and a new trial ordered.