| Miss. | Mar 15, 1897
delivered the opinion of the court.
This is a replevin suit brought by W. E. Griffin, appellee, against Preston Bond, appellant, for pine saw logs cut and removed by said Bond from lands that the said Griffin claimed to own — section 16, township 2, range 12. The jury rendered a verdict for plaintiff for 966 logs or their alternate value, $121.75, and the court rendered judgment in accordance with the verdict. Both parties moved for a new trial, both motions were overruled, and both parties appealed to this court.
On the trial the plaintiff below set up a ninety-nine years lease of said section 16, township 2, range 12 by the board of supervisors of Harrison county, Mississippi, to Margaret C. Thomas, and deraigned his title from her, and proved to the satisfaction of the jury that 966 pine saw logs had been by defendant cut and removed from said land and put in Red creek and Caney creek and mingled with other logs cut from other lands, and proved the value of the logs in the trees, the court having refused to allow him to prove the value of the logs as they then were with additional value of cost of labor in cutting, hauling, branding and marking ready to float to market.
At that stage of the trial defendant moved to rule .out all the evidence introduced by plaintiff, because the title to said sixteenth section was in the State of Mississippi, and that the
There is no evidence in this record as to the character of the land from which the timber was cut, whether it is adapted to and specially valuable for husbandry, or whether only valuable for timber or other purposes, and we express no opinion on this assignment.
The record shows that at the tax sale of delinquent lands by the sheriff of Harrison county, on the sixth of March, 1893, the land here in question was sold to Preston Bond, who paid the purchase money, $10.48, and the sheriff gave him a receipt therefor showing that that was the purchase money, for this sixteenth section. The sheriff, by oversight, neglected to make and file with the clerk a deed of said lands, as the law requires and as appellant, Bond, supposed had been done, until the time for redemption of said lands had expired and called on the clerk for his deed. He called on the sheriff to know the reason of'his failure, and the sheriff then made him a deed, dated, however, October 23, 1895.
The defendant, Mr. Bond, was put on the stand as a witness for plaintiff, and, on cross-examination, testified to his good faith in cutting the trees.
To Mr. Bond: Ques. “How came you to cut timber on section 16?” Ans. “Because I thought it was mine.” Ques. “How came you to think it was yours?” Ans. “I bought it.” Mr. Ford, counsel for plaintiff: “We insist on the production of the deed.” (Deed handed to plaintiff’s counsel.) Ques. “Is that the deed, Mr. Bond?” Ans. “Yes, sir, that is the deed.” Mr. Evans, counsel for defendant: “We offer this deed in evidence. ” Mr. Ford: “We object to that deed. ” (Deed read to jury.) Mr. Ford: “Our objection is that this deed is a tax deed, made two years and six months after the date of sale; that it is not made in accordance with the statute. ”
Mr. Batson testified: “ After I went and counted the logs, I*607 went to see Mr. Bond, and told him what was going to take place if he didn’t turn the timber over. They were going to enter suit against him — the company would.” Qv.es. “What did he say? State what he said.” To these questions the witness answered at some length — to the effect that Bond said he thought the timber was his, he had the sheriff’s title for it, he bought it in 1893, and thought he had a right to cut it. In fact, Mr. Evans told him it was all right, but if it did not belong to him, he would return standing timber in its place. This witness further testified that he was representing Dantzler & Co.; did not remember whether he told Bond that Griffin claimed the land.
The timber here in dispute was cut in the fall of 1895, which was after the time provided for redemption of lands sold March 6, 1893.
Defendant asked the following instruction, which was given: , “The court instructs the jury that if they believe that the de- j fendant cut the timber in good faith, and not wantonly, care- j lessly, or negligently, then the j ury shmMnfmd-ihewalue of_the , timber at the, time of the .taking, and not the value at the time! the logs were seized. ’ ’ l
It seems from the foregoing that the question of the good/ faith of the defendant in cutting the timber was fairly submitted I to the jury, and was decided in his favor by their verdict. I
The court declined to instruct the j ury to find for plaintiff/ the value of the logs in the creeks at the time they were levied on, but modified the instruction so as to make it read that the jury should find the value of the logs in the creek, less the cost and labor of hauling and putting them in the creek.
It was error, we think, in the court below to give the instruction asked by plaintiff to the effect that plaintiff is entitled to the possession of the logs cut from the lands embraced in plaintiff’s deed from Dantzler, administrator, and so forth, without adding ‘ ‘ or the value of the limited interest of plaintiff therein, as shown by the testimony,” or some language of equal import.
And the judgment ought to have been rendered in terms comporting with the doctrines announced by the court, commanding the defendant and his bondsmen to restore the logs to plaintiff, or pay him the value of his limited interest therein, as found by the jury, to wit: $121.75. And that upon the payment of that sum by defendant, he may retain the logs, and the judgment thereby be satisfied.
The judgment of the court below is reversed, and judgment rendered here in accordance with this opinion. There are two separate and independent appeals from the same judgment, but the judgment here ordered to be entered will settle all the questions involved, and it will not be necessary to discuss further the other points made by either appeal. Both appellants use the same record, and the costs of the two appeals will be taxed half on appellee, W. E. Griffin, and half upon appellant, Preston Bond, and the cost of the court below must be paid by the defendant in that court, Preston Bond.