25 Wash. 661 | Wash. | 1901
The appellant brought this action to recover from the respondents certain saw logs, alleging in his complaint that he was the owner and entitled to the immediate possession of the same. The answer, so far as it is necessary to be considered, was a- general denial of the allegations of ownership and right of possession in the appellant. The trial developed the following facts: In June, 1890, the respondent, Joseph Clyde, Sr., acquired title from the United States to- the lands upon which the logs in controversy were grown. After the issuance of the patent, Clyde and his wife executed two mortgages upon the lands to secure certain indebtedness owing by them; the first in 1891, and the second in 1893. In 1895 these mortgages came into the possession of the receivers of the Aberdeen Bank, and during the same year were by them foreclosed in separate actions, the decrees of foreclosure being entered on the same day, namely, August 9, 1895. An order of sale was issued on one of these decrees, and the land sold thereunder to the receivers on the 16th day of September, 1895. On the 18th of September the receivers entered into a contract with the mortgagors, in which it was agreed that the mortgagors should cut and sell from off the mortgaged lands sufficient logs to satisfy and discharge the mortgage indebtedness. The mortgagors entered at once upon the performance of the contract, and while engaged thereon the. interests of the receivers in the property were transferred and conveyed to the appellant, Clarke. Clarke thereupon brought an action upon the contract, alleging
In Churchill v. Ackerman, 22 Wash. 227 (60 Pac. 406), this court held that the owner of land out of possession could not recover in replevin or conversion for crops grown upon such land from one in possession holding adversely to the true owner; that he must first recover possession of the land, when he might maintain his action for mesne profits and for waste, but that crops and other products of the soil, when severed therefrom, became chattels, and the property of the person in possession. Quot
“But when one who is in the adverse possession gathers a crop in the course of husbandry, or severs a tree or other thing from the land, the thing severed becomes a chattel, but it does not become the property of the owner of the land; for his title is divested — he is out of possession, and has no right to the immediate possession of the thing, nor could he bring any action until he regains possession. . . . The owner of the land cannot sue for the thing severed in trover or detinue as a chattel; for it is not his chattel — it did not become so at the time it was severed, and the title to it as a chattel cannot pass to him afterward, when he regains the possession, by force of the jus postliminii.”
The principle of this case is decisive of the one before us. The appellant was out of possession of the land at the time the logs were severed and removed. The respondents were in possession, holding the lands adversely to him under a claim of right. The appellant cannot, therefore, maintain an action against them for the recovery of the logs removed, or for their value; and, as but one judgment could be entered upon the undisputed facts of the case, it is unnecessary to discuss the many errors the appellant has assigned for reversal.
Affirmed.