78 Miss. 522 | Miss. | 1900
delivered the opinion of the court.
We think the appellants show no right to recover for the logs made from the thirty-four trees cut off the school lands. No sufficient action was taken by the board of trustees of the Alcorn Agricultural and Mechanical College to pass any right to appellants for any trespasses committed upon the lands sold previous to the sixteenth of December, 1899, when sold to them. The property rights vested for management in public boards can only be .passed by them by appropriate action taken in open session and by a majority vote of those present.
The board here did not consider an assignment of its claims for previous trespasses upon the land sold by it, and expressed no intention to make such an assignment. Such assignment, if made, could be evidenced only by its minutes to that effect. Here only some random talk was had with or between the members of the board or of its executive committee, and that is so indefinite that no claim of an assignment or the right of assignment can be predicated of it. The sale of the land gave title to the land only, and not to any rights of action for former trespasses, upon it. The plaintiffs, however, should have recovered for the other logs sued for, because McCarty, Seal’s vendor, had intentionally mixed his own logs with the logs from the six trees cut from appellant’s land, and thereby bestowed upon the appellants the right of selecting the quantity due them. 2 Kent’s Com., *365, note 1c, Chandler v. DeGraff, 25 Minn., 88.
Where a wrongdoer has intentionally mixed the goods of another with his own, so as to be indistinguishable from his own, such other has the right to select the quantity due him from those with which they are confused or intermingled, and
The judgment is reversed, and a neto trial is awarded.