117 S.W. 915 | Tex. App. | 1909
This suit was instituted by appellants against Wm. Cameron Company, a corporation, J. L. McElyea, William Parker and his wife, Callie Parker, and W. W. Cruse to try title to 320 acres of land, and to recover the sum of $5,000 alleged to be due appellants for pine lumber cut by them off of the 320 acres of land belonging to appellants. All of the appellees pleaded misjoinder of causes of action. Cameron Co. and McElyea disclaimed all interest in the land. The corporation also answered that it bought the timber on the land from McElyea, who represented that he was the owner of the land sued for, and that it had no notice that appellants claimed the land, and that appellants had no cause of action against it. McElyea filed a general denial, and plea of two years limitation. Cruse pleaded general denial, not guilty, and three and five years limitations. Parker and wife disclaimed all interest in the land, except as tenants of W. W. Cruse. The court instructed a verdict for appellants for one-half the land and against them as to the damages.
It seems to be conceded by all parties that appellants own now and owned at the time of the conversion of the timber a one-half undivided interest in the 320 acres of land, and it is not controverted that McElyea sold the timber to Wm. Cameron Company for himself and Cruse, and that they appropriated the proceeds thereof to their own use and benefit. It is also conceded that Wm. Cameron Company cut the timber off the land, one-half of which belonged to appellants, and converted it to its own use.
If appellants owned one-half of the land they owned one-half of the timber attached thereto, and when the timber was converted they had the right to recover its reasonable value from those who converted it. As said by the Supreme Court of Minnesota in the case of Shepard v. Pettit,
Not only is the cotenant liable for the timber sold by him, as in this case, but the purchaser of such timber, with a knowledge of the cotenancy, would also be liable. As said in the Kentucky case of Nevels v. Kentucky Lumber Co., 49 L. R. A., 416: "It is clear that it is waste to cut and remove the timber off the timbered land, and where this is done by a tenant in common his cotenant may, at his election, claim the property in the hands of a purchaser, or hold him liable for a conversion." As to the liability of the cotenant, see also Hunter v. Hodgson (Texas Civ. App.),
It was held in the case of Gillum v. Railway, 5 Texas Civ. App. 338[
In the same report as the case last mentioned the Court of Civil Appeals of the Second District held that where the property has been lost to a cotenant through the agency of a vendee of another cotenant, the vendee would be liable for such loss to the other cotenant. Worsham v. Vignal, 5 Texas Civ. App. 471[
In the case of Trammell v. McDade,
In the case of Worsham v. Vignal, 14 Texas Civ. App. 324[
In the case of Mast v. Tibbles,
In the case of Cosgriff v. Dewey,
The evidence showed without contradiction that McElyea and Cruse acted together in the appropriation of pine timber, one-half of which they knew belonged to appellants, and they are liable for its conversion; and if Wm. Cameron Company had notice that appellants owned an interest in the timber, or if it was put upon inquiry by the circumstances as to that fact, it too should be held liable to appellants for one-half the value of the lumber.
The part of the judgment which gives one-half the land to appellants is not assailed, and it will be affirmed in all particulars, but in so far as it adjudges that appellants should not recover any damages of McElyea, Cruse and Wm. Cameron Company it will be reversed and the cause remanded for a trial in consonance with this opinion.
The evidence shows that practically all the timber was cut that was growing on the entire tract. Pedago swore: "The pine timber on that tract of land has been cut." Salter, the manager of Wm. Cameron Company, swore that before he went on the tract to cut the timber he estimated that the land had seven hundred and fifty thousand feet of lumber on it, but that he cut about a million feet on the tract. In another place the witness stated, in connection with the cutting of timber on another tract, "I think we had cleaned up *157 the Mancil before we cut this." If they had "cleaned up" the land in controversy, it would justify a finding that all the timber of any value had been cut.
There is no merit whatever in the motion and it is overruled.
Affirmed in part and reversed and remanded in part.