57 So. 837 | Ala. | 1912
Lead Opinion
The appellee sued the appellant in ejectment to recover possession of all of the timber of a certain size growing on certain lands. These lands were originally owned by one J. A. McDaniel, who sold the timber in question to one A. M. Lewin on February 28, 1903. Lewin’s deed was not recorded until April 10, 1909. Lewin in turn sold and conveyed the timber to the Curtis-Attalla Lumber Company, (plaintiff and appellee) on September 28, 1903, by deed recorded on October 17, 1903. On October 15, 1904, McDaniel sold and conveyed the lands of Avhicli this timber formed a part, by general description and Avithout exception or reservation, to Obal Christopher, the defendant in ejectment, by deed recorded on November 1, 1904. McDaniel Avas continuously in possession of the land until October 15, 1904, Avhen he delivered the possession to the purchaser, Christopher. The material and controlling issue in the case Avas Avhether the purchaser, Christopher, had, at the time of Ids • purcha.se, actual or constructive notice of the rights of the plaintiff Lumber Company under their unrecorded deed. Upon this issue the evidence, though strongly preponderant in favor of the defendant, Avas in sharp conflict, and the jury found the issue in favor of the plaintiff. The assignments of error relate to rulings on the admission of testimony, and to instructions given and refused by the trial court.
The case of McCarty v. Nicrosi, 72 Ala. 332, 47 Am. Rep. 418, often approved and folloAved by the later
An important qualification of the rule is that-a prior possession, which has terminated before the second purchaser's rights are acquired, cannot operate as constructive notice to him. — 2 Pom. Eq. Jur. § 662, cited and approved in O’Neal v. Prestwood, 153 Ala. 443, 449, 45 South. 251. Of course, however, such a possession, actually known to the second purchaser, may, especially in connection with other evidence, tend to show actual knowledge of the antecedent claim — a question quite distinct from that of the constructive notice resulting from contemporaneous possession, the effect of which does not depend upon actual knowledge of it.
A sale of growing timber may pass the legal title to the purchaser; but, without more, it passes no interest in the soil generally, and confers no right of possession that can be exclusive of the general owner’s possession. The right to take possession of such timber can be executed only by entering upon the land and severing it from the soil; and until this is done the actual possession of the timber, undelivered as yet, remains in the general owner in possession of the land, as the quasi bailee of the owner of the timber. This, it seems to us, belongs to the category of self-evident truths, which need no demonstration. — See Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776.
It results from this that the principle of constructive notice to the defendant, through the plaintiff’s alleged possession of the timber while still standing on McDaniel’s land, cannot be applied to the facts of the
The case of Bolland v. O’Neal, 81 Minn. 15, 83 N. W. 471, 83 Am. St. Rep. 362, is quite different from the instant case.. There the timber purchaser — to quote from the opinion — “took actual and open possession of about 20 acres of the central portion of the land, along the roads, and scattered buildings all over it. No one could go along that way without being challenged at once by open, notorious, adverse acts of possession. They had commenced to cut the trees down, and Avere in the act of cutting timber upon the land, Avhen plaintiff purchased.” This actual possession, adverse, to the general OAvner, was visibly evidenced by the establishment on the land of a large hunber camp to accommodate a hundred men and many horses, including barns, sleeping quarters, cookhouse, storehouse, office, and blacksmith shop. It appears, therefore, that there Avas an extensive and exclusive possession of the land for the patent purpose of removing the timber, as distinguished from a mere occasional entry and cutting as in the present case; and, on such facts, it Avould seem that the Minnesota coiu-t correctly ruled that there Avas such a possession of the timber as imported constructive notice of ownership.
The evidence here sIioavs that McDaniel remained continuously in possession of the land, and that the timber claimant never had possession of any part of the land; his action being confined to merely entering and cutting and hauling aAvay the logs at intervals.
The trial court ex mero motu charged the jury as folloAVS: “The fact, if it be a fact, that Christopher or Elliott, or both of them, kneAV or had notice that the timber had been cut or Avas being cut and removed
This charge is, Ave think, a correct statement of the law as applicable to the evidence before the court, with the exception of a single paragraph, as follows: “If defendant knew, or had means of knowing, of the cutting of the timber at or before the time of defendant’s purchase, then he would be chargeable Avith notice of plaintiff’s claim.” This was a flagrant contradiction
Charges 4, 5, 7, 9, 11, 12, 13, 14, 15, 16, 17, and 18, requested for the defendant, correctly state the law of constructive notice as above declared; and in view of some of the evidence, should have been given by the court, except that some of them are deficient in not qualifying the “notice” referred to as “constructive” notice.
Charges 1, 2, and 3, given for the plaintiff, are at least abstractly correct.
Since possession of growing timber, independently of any possession of the land itself, is a legal impossibility, the statement of the witness Smith that plaintiff’s agent was in possession of the timber, though not in possession of the land itself, Avas a mere conclusion, which should have been excluded.
It was error also to alloAV the plaintiff to prove the fact of its several entries upon the land and its cutting of timber during the months of July, August, and September, 1904, Avithout some evidence of defendant’s knoAvledge thereof. In the latter case, such proof would • be competent as tending to show defendant’s actual knowledge of plaintiff’s claim, in connection with McDaniel’s testimony that he had expressly informed defendant of it. For the same reasons' it Avas error to allow plaintiff to prove the quantity of timber cut on those occasions.
The issue involved, in part, the bona tides of the defendant’s purchase of the land for a valuable consideration. As bearing upon his good faith, he should have been permitted to show that the property purchased by
For the errors noted above, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
Concurrence Opinion
I concur in the reversal and mainly in the opinion in this case; but I think there is a more important question which lies across the doorsill of this inquiry, that is not noticed in the opinion, and seems not to have been noticed by counsel nor by the trial court. This question, however, goes to the jurisdiction, and to the validity of the judgment, and therefore could and should be noticed at any stage of the proceedings, and the question should be considered by the court sua sponte. The question is: Will statutory ejectment lie, in this state, for the character of property sued for and recovered in this action?
The action is the statutory one, in the nature of ejectment. The property sued for and recovered is described in the complaint as follows: “All the saw timber 10 inches and larger at the butt, lying north of dry creek on the tract known as the 'E. P. Little place, and also all the timber 10 inches and larger at the butt on the northeast quarter of section 3, township 13, range'5 east, all situated in Etowah county, Alabama.”
I am of the opinion that such action will not lie in this state, nor in any other state unless expressly authorized by statute; and I do not know of, and never
The text-writers and the adjudged cases, both English and American, state the law to be that ejectment will not lie for anything upon which an entry cannot be made, or the possession of which, if recovered, the sheriff cannot deliver. The action will therefore lie only for corporeal hereditaments, and not for those which are incorporeal.
It is also said, in the older cases, and copied into some of the texts, that: “A party may have ejectment for right of herbage, pro prima tonsura; that is to say, if a man has a grant of the first grass that grows on the land every year, he may maintain ejectment against him avIio withholds it from him. — Ward v. Petifer, Cro. Car. 362. So, also, ejectment may be had on a demise of the hay-grass and aftermath (Wheeler v. Toulson, Hard. 330), on the principle in these cases, that the parties, being entitled to all the profits of the land, are entitled also to the land for the same time, and no one can enter thereon Avhile they are thus entitled Avithout being a trespasser.” — Tyler on Ejectment & Adverse Enjoyment, p. 39.
It must be remembered that in ejectment, in its original form, damages only Avere recoverable; but later the writ of habere facias possessionem Avas allowed, in conjunction Avitli the damages, and in some jurisdictions the plaintiff might succeed as to damages, but fail as to
The test as to when the action will lie is well stated in the above text, as follows:
“Sec. 100. Right of possession essential. — Whatever takes away the right of possession in presentí, is fatal, arid constitutes a complete defense to the action. The plaintiff must have a right of entry in virtue of or incident to some corporeal estate or interest in the premises, for the right to take actual possession of the land is the question to be tried, and constitutes the foundation of the action, whatever may be the character or source of the claimant’s title. Chitty says: ‘A party having a right of entry, whether his title be in fee simple, fee tail, in copyhold, for life, or years, may support an action of ejectment.’
“Sec. 101. True test as to when ejectment lies. — ‘The trust test of this action,’ says the New York Supreme Court, ‘seems to be that the thing claimed should be a corporeal hereditament, that a right of entry should exist at the time of the commencement of the action, and that the interest be visible and tangible, so that the sheriff may deliver the possession to the plaintiff in execution of the judgment of the court.’ Hence rights or interests in land which lie in grant, being invisible and incorporeal, are not, at common law, the subject of this action.”
That the action in this case will not lie, to my mind, is conclusively shown by the fact that the books show the report of no case wherein such an action has been sustained. If such actions will lie, surely they would have been brought before this one, and some of them would have found their way into the books.
As the books contain no reported cases like this, of course they contain no reason why the action in the specific case will not lie. The cases which have been brought, for minerals, mineral rights, mines, mining-rights, for annexations to the soil such as houses, rooms, cellars, fixtures, horizontal divisions of land, vaults, for oil and gas wells, for made lands, land under water, etc., are not analogous to the extent of authorizing this action, though in some respects they are different from the ordinary actions of ejectment, and, in some respects, from this action. The chief difference is that in those actions there is an exclusive right to the possession of the thing recovered, and of the land upon which it is situated, for the use or purpose for which the thing- recovered is sued and to be used.
If a man should purchase all the timber and growth upon land, and the exclusive right to grow or cultivate timber thereon for a number of years, then he might have such an interest as would support ejectment; but when, as in this case, he merely purchases a part of the timber of certain dimensions and descriptions, the effect of his contract is to sever the timber so purchased from the land and the other growing timber, and to convert it into a chattel, with a mere license or privilege to go upon the land for the purpose of removing the timber purchased. Of course, ejectment will not lie-for a chattel, nor will a mere license or permit to go upon the land for the purpose of removing it support ejectment. This is the only right or title which the plaintiff claims in this action, and it will not, of course, support ejectment.
When the owner of land sells the mineral rights therein, and the right to mine the minerals, this, of course, under the same rule or fiction of law, works a severance of the two' estates, but in that case each estate or interest remains and continues to be real estate; while in the case of the sale of certain described timber, the sale,
It has been suggested that as ejectment at common law would lie for pasturage, herbage, and pannage, this is authority to support the action in this case; but this is not true, for the reasons above mentioned, and the subject is possibly best treated in Sedgwick & Wait on Trial of Title to Land, '§ 143. The reasoning is* to me so conclusive that I here set it out: “Sec. 143. Pasturage and herbage. — The early cases, decided in England, with regard to the right to bring ejectment for pasturage and herbage, are of little value at the present day. They seem to have turned chiefly on questions of evidence and pleading. These rights somewhat resemble fishery rights. With regard to both, it is clear that they may exist separate from the interest in the soil. Lord Coke says that the grantee of herbagium teme has- a ‘particular right in tlie land, and shall have an action quare clausm fregit; but by grant thereof and liverie made, the soile shall not passe.’ Where the right to the soil and the herbage are in the same person, the recovery of the one in ejectment would carry the other with it; but that the owner of the separate herbage or pasturage rights would now be permitted to maintain ejectment may-well be doubted. In an early case in the King’s Bench, often cited, it was held that ejectione firmse would lie for the pasturage of 100 sheep; but it does not appear from the report what the interest of the plaintiff in the soil was, and the question may have been only that of the proper description of the subject of the action; and in a later case in the Exchequer, where ejectione firmas was brought upon a demise de herbagio et pannagio of so many acres, the court stated
I know there is a great variety and contradiction of opinions as to the interest, if any which a purchaser or vendee of standing timber acquires in the land or soil upon which the timber is standing. The oldest cases, or a majority thereof, held that he acquired no title or
If the contract of sale fixes no time within which the timber must be removed, then the law says it must be removed within a reasonable time. When the contract limits or fixes the time in which the removal shall he made, the great majority, if not the great weight, of authorities, hold that, on the expiration of this time limit, all right, title, interest, claim, and demand of the vendee in or to the timber or land ceases or is determined. .
But some of the courts hold that the title to the timber does not so determine nor revert unless the contract expressly so provides, but only the right to enter upon the land is terminated; that the vendee after the expiration of the time limit still owns the timber, although he has no right to remove it — a paradox of contradictions. It is certainly illogical to hold that the contract and sale passed an interest in land, and that by virtue of the same contract, after the expiration of the time limit fixed by the contract, the vendee still owns the timber, but has lost his interest in the land. If the growing timber, which alone is sold and conveyed, is an interest in the land, when the interest in the land is
This court, however, is among the few courts which hold that the vendee still owns the timber, although he has no right to use or remove it. — Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 465, 16 South. 632, 27 L. R. A. 434, 53 Am. St. Rep. 73; C. W. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 386, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58; Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776.
In the case of Zimmerman v. Daffin, 149 Ala. 380, 389, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58, this court used the following language: “If the limitation as to the time of cutting and removal should be construed as a covenant on the part of the purchaser that it would cut and remove the timber in the time specified, the title to the timber would remain in the purchaser after the time limit had expired, and he could still enter upon the premises and remove the same at his pleasure, being liable to the vendor for such damages as he should cause in so doing. The vendor would also have a right of action against the vendee for a breach of the covenant in not performing the covenant as agreed; or it may be that the vendor would be entitled to remove the timber after the time limit himself, but not to appropriate it to his own use.” Here is where the court went astray in following the Illinois rule, instead of the Michigan rule. The great number and weight of authorities are in line with the Michigan rule, and against the Illinois rule which our court followed.
If the sale of the timber originally was a sale of a chattel merely, as the oldest cases held, with a muni
This is well pointed out by the annotators, in the reports of the cases of McRae v. Stillwell, 111 Ga. 65, 36 S. E. 604, 55 L. R. A. 513; and Midyette v. Grubbs, 145 N. C. 85, 58 S. E. 795, 13 L. R. A. (N. S.) 278; and Adkins v. Huff, 58 W. Va. 645, 52 S. E. 773, 3 L. R. A. (N. S.) 649, 6 Ann. Gas. 246. The notes to these cases' collect and review the authorities upon the subject, the conclusion of which is thus well stated by the annotators in 55 L. R. A. at pp. 535, 536: “The title to standing timber passes at the time of the conveyance, and the purchaser acquires the right to enter on the land for the purpose of cutting and removing the timber, and also an interest in so much of the soil where it grows as is necessary to sustain and nourish the trees
I have examined all the authorities I can find upon the subject, and I think the conclusion of the annotator is not only supported by the great number and weight of authorities, but, as before stated, by reason and the very nature of things.
But as before stated, none of the reported cases hold that the vendee acquires any such interest or title as will authorize him to maintain ejectment against the vendee, or the owner of the freehold estate, while he might defend against an action of ejectment brought by the vendor, which was intended to prevent his entering and removing the timber which he had purchased, during the time mentioned in the contract or Avithin a reasonable time if no time limit was fixed by the contract. Such defense seems to be recognized in the case of Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776.
I am not able to find any case in which the owner of the timber has been allowed to recover in ejectment against the owner of the freehold. I concede that he might recover against a bare trespasser.
It is well-settled law in this state that, in order for a plaintiff in common law or statutory ejectment to recover, he must recover upon both “a title and a right of entry existing at the commencement of the suit and continuing to the day of trial.” — Anderson v. Anderson, 64 Ala. 403.
Applying these principles of laAV to the case in hand, it seems to me to he settled beyond doubt that plaintiff could not succeed in ejectment. If we conclude that the plaintiff was the absolute owner of the timber sued for, at the commencement of the action, and at the time of the trial, he certainly had no right of entry upon the premises at the time of the trial, and therefore no right of recovery in ejectment. The contract or deed under Avhich he claimed title expressly limited the time of entry for removal to three years from the date of the deed, Avhich was executed February 28, 1903. The trial was not had until April 13, 1909, more than three years after the time of entry had expired by the very terms of the deed, the only source of title by Avhich he claimed. —See deed, Tr., p. 3.
If the plaintiff rightly recovered in this suit, and the judgment in his favor is executed, such will be the effect of the judgment and orders of the court in this case.
There is another insurmountable practical difficulty in the way of the plaintiff’s recovery in this action. He claims only “the saw timber measuring 10 inches at the butt.” All the authorities agree that such a deed only passes title to or includes such trees as were comprehended in the description at the date of the deed to wit, February 28, 1903. Who could go into a forest 11 years after a given date, and point out with certainty the trees, and those only, that corresponded to the stated measurements at the time in question? The feat would he an impossibility. Again, how far from the ground should the measurement be made? And how is the sheriff to put the plaintiff in possession of the trees purchased without disturbing or interfering with the defendant’s undisputed and conceded rights?
An attempt to answer these questions will show that the action will not lie.