72 Wis. 503 | Wis. | 1888
It is conceded that the plaintiffs were the owners of the land upon which the timber was cut by the defendants, and are entitled to recover damages therefor. The only controversy relates to the measure of damages. The plaintiffs claim that they are entitled to the damages given by sec. 4269, R. S.; while the defendants claim that they are only liable for the actual damages, that is to say, for the value of the stumpage. The plaintiffs were allowed to recover the larger damages of the statute. Whether they were entitled thereto under the circumstances of this case, and, if so, whether the jury were properly instructed in that behalf, are the questions to be determined on this appeal.
In Smith v. Sherry, 54 Wis. 114, the question was left open and undetermined “ whether a tax-title claimant, who has never acquired the actual possession of the land, can recover against the former owner, as damages, the highest
We think it was the intention of the legislature in this enactment to settle the question thus left open in Smith v. Sherry, by subjecting the owner of the government title, who has taken timber from the land after his title has been divested, to the penalties of sec. 4269, unless he brings himself within the saving clause of the amendment of 1882. To do this he must not only prove that he acquired his title in good faith, but also that he entered upon the land, cut the timber, and removed the same therefrom, believing his title to be valid. And further, it cannot truly be said that he believes he has a valid title, if he has knowledge or notice of the facts which show that his title has been divested and transferred to another. Warren v. Putnam, 68 Wis. 481. That cáse also holds, that knowledge by the original owner of a mere claim by another of adverse title to the land, is not necessarily incompatible with good faith on the part of such former owner in taking the timber from the land. These propositions do not seem to be controverted by counsel on either side.
The evidence in the present case tending to show that Sherry cut and removed the timber in question in good
If the grantee in an unrecorded tax deed can, either before or after he records his deed, recover against the original owner for taking timber from the land covered by such deed while it remained unrecorded, we are not prepared to hold that he may recover the penalty of sec. 4269, in addition to actual damages. That section must receive a strict construction. Cotter v. Plumer, ante, p. 476 (decided herewith). That rule requires us to hold that the owner of a mere conditional title, which does not carry with it the right of possession, is not within the section and cannot recover the penalty therein prescribed in an action against the original owner for a trespass committed upon the land while the plaintiff’s title thereto remained conditional.
In this case, however, the tax deed was of record when the timber was taken. It is conceded that Sherry then had notice that such a deed was m existence. The controlling question is, therefore, Did he know, or had he notice, when he took the timber, that the deed had been recorded? The answer .to this question is the test of Sherry’s good faith. Had the court instructed the jury that the proofs conclusively established the good faith of Sherry, it would be difficult to hold the instruction erroneous. But assuming, for the purposes of the case, that there was sufficient in the testimony to send that question to the jury, we find manifest error in the instructions given by the court on that subject. In the charge to the jury we find the following clause: “Mere notice that the plaintiffs claimed the land would not bind Mr. Sherry to judge *at his peril the validity of such claim, if he believed with good reason that he was the owner. But if he was placed in possession of facts, be-
Under this instruction it was competent for the jury to find that the notice by plaintiffs to Sherry, of December 12, 1886, that one of them took a tax deed on the land in 1818, and the general claim of title made to Ingersoll (which is no more significant than the notice to Sherry), were sufficient to cast upon the defendants the duty of making inquiry and ascertaining whether such tax deed was of record. We hold, as matter of law, that such notices alone were not sufficient to charge the defendants'with that duty; A person who seeks to recover the higher, and sometimes unconscionable, damages of the statute for a trespass upon his land committed by one who once owned the same but whose title has been divested by tax proceedings or other process of law, must see to it that such original owner is informed of all the material facts essential to a transfer of the title. If ignorant of these, he should be held to have acted in good faith and in the belief that he was still such owner when the trespass was committed. The plaintiff cannot give notice to a person whose title has been thus divested, of one material fact, and (as in this case) suppress another material fact, and then successfully claim that the information given is sufficient to put the other upon inquiry to find out, as best he may, the existence of the suppressed fact, and thus hold him liable to the penalty of the statute if he has taken timber from the land after his title was lost.
There is another objection to the instruction, not so vital, perhaps, as that already commented upon, but still worthy
We do not forget that the failure of the plaintiffs, in the letter of December 12, 1886, to inform Sherry that the tax deed was of record, was suggested to the learned' counsel for the defendants on the argument, by a member of the court, and that the counsel did not seem to regard the circumstance as of any importance. Indeed he admitted that the'letter of December 12, 1886, might fairly be considered as implying a notice that the tax deed was recorded. The concession would not have been made, we think, could counsel have had time to consider the matter. Besides, the case of Hewitt v. Week, supra, was temporarily forgotten, no doubt, or counsel would have discovered more in the suggestion thus made than he did. The concession was unadvisedly made, and inasmuch as we regard it against the law we cannot act upon it.
The court was requested, on behalf of the defendants, to give the following instruction to the jury: “ The certificate
The errors above indicated are fatal to the judgment. Although we must order a new trial, yet, if neither ] arty expects to be able to change the proofs materially on another trial, we venture the suggestion that the parties would do well to stipulate to allow judgment to go for the plaintiffs for the value of the stumpage as found by the jury, and interest thereon from date of verdict to date of judgment, thus saving the delay and expense of another trial.
By the Court. — The judgment of the circuit court is reversed,- and the cause will, be remanded for a new trial.