| Miss. | Oct 15, 1917
Lead Opinion
delivered the opinion of the court.
This case was first instituted in the justice’s court, the same being a suit to recover on a check for sixty-five dollars, executed by I. S. Lewis on March 10, 1916, and payable to W. B. Burns, or order, and indorsed as follows:
“Pay to the order of Joseph Myer without recourse. W. B. Bums.” ,
The' suit was dismissed in the justice’s court, and Joseph Myer appealed to the circuit court, where the following plea in this cause was filed:
“Comes the defendant in the above and foregoing cause, and for plea in this behalf says that the defendant in this cause did" give his certain check as alleged in the declaration and for the amount as therein stated, as a compromise and settlement of a certain claim taken up with him by the attorney for the plaintiff in this cause, and the defendant also admits that he requested the bank upon which this check was drawn not to pay the same, but defendant further says in this, his plea to the declaration filed, that the plaintiff in this cause ought not to have and recover the amount sued for, beeausé the defendant had the right under the law, not to pay said check, and the right to give instructions to the bank not to honor the same; that the check was given, and the consideration for the same was that defendant had cut certain timber on sixteenth section land of section 16, township 4, range 6 east, in Smith county, Miss., which said lands were owned, or the leasehold interest therein was owned and claimed, by said plaintiff for the unexpired term of the lease thereon at the time this check was given, and that the check*460 given therefor was supported by an illegal consideration in this, to wit, that the plaintiff had no such right to the timber on said land as to entitle the said plaintiff to recover therefor, for any trespass or otherwise but the only party who could recover for said timber was the county of Smith, plaintiff not having bought the timber from the board of supervisors, and there being plenty of timber left for estovers, in which the title to said timber vested, and who was the only party entitled to recover therefor, and this the defendant is ready to verify. ’ ’
A demurrer was filed to this plea, setting forth that the special plea is insufficient in law; that said plea presented no defense to the cause of action herein. The court sustained the demurrer, and the defendant in the court below, appellant here, declined to plead further, and judgment was rendered in favor of the plaintiff, Joseph Myer, for the sum of sixty-five dollars, with interest, making a total of sixty-seven dollars and forty-four cents, and it is from this judgment of the court that the case is appealed to the supreme court.
The appellant rests his case upon the averment of the plea wherein the defense set out is that the compromise settlement was void because it appears that after the timber was cut from the land there remained on the land' a plenty of timber for estovers.
It is argued that the lessee of the sixteenth section did not have the right to cut the merchantable timber standing on the land except when the timber was to be used for estovers, and therefore he had no cause of action. We do not think that this is an open question in this state. In the recent case of Fernwood Lumber Co. v. Rowley, 110 Miss. 821" court="Miss." date_filed="1916-03-15" href="https://app.midpage.ai/document/fermwood-lumber-co-v-rowley-7992292?utm_source=webapp" opinion_id="7992292">110 Miss. 821, 71 So. 3, this court expressly decided that the owner of the lease to a sixteenth section had such an interest in the timber growing on the land as would entitle him to recover damages for the wrongful removal of the timber by a third person. It was also decided in
Referring to a situation similar in principle to the present case, this court, in Baggett v. McCromack, 73 Miss. 552, 19 So. 89, 55 Am. St. Rep. 554, said:
“The appellee, as borrower of the horse, had possession of and a special or transient property, for the time, in the animal, and was entitled to bring his action against a wrongdoer by whose negligence the animal was lost or destroyed. He had no legal interest in the animal as against his bailor, but he had a real interest, nevertheless, in the custody and care of the property, because he was liable to the lender for it, and his possession of and special interest in the horse gave, him an action against a wrongdoer. Either the lender or the borrower may bring suit in eases of this character, but a recovery by one of them may be pleaded in bar of any suit by the other for a like recovery; the bailee’s suit for the naked value only of the property, and a recovery therein, being in trust for the real owner. Schouler’s Bailment, pp. 63, 64, 86; Story on Bailments, 94, 234; Woodman v. Nottingham, 49 N. H. 387, 6 Am. Rep. 526; 2 Am. & Eng. Enc. L. 61, note 2, and cases there cited.
“The other contentions appear to us to be without merit. Affirmed.”
The declaration set out a cause of action, and the plea does not present any defense. On the contrary, the plea in legal contemplation confesses the rigljt of plaintiff to recover.
Affirmed.
Dissenting Opinion
(dissenting). I cannot concur in the decision of the majority in this case. The check upon which the suit was brought was given to W. B. Burns as a compromise for the cutting of timber standing on sixteenth section lands, of which the payee was lessee. This check
"Either the lender or borrower may bring suit in cases of this character, but. a recovery by one of them may be pleaded in bar of any suit by the other for a like recovery; the bailee’s suit for the naked value only of the property, and a recovery therein, being in trust for the real owner. ’ ’
The doctrine of that ease is that the borrower was a trustee for the owner, and that, as trustee, he had a right to institute suit for the owner and recover for the benefit of the owner. That does not authorize the trustee to compromise the beneficiary’s rights without the consent or knowledge of the beneficiary. The trustee in that case had power to bring suit and recover the full value, not for himself, but for the owner. In this case Burns not only compromised the county’s right without the consent of the county* and thus deprived the school children of the township of their rights, without the consent of their representative, but he assigns the check accepted in settlement without recourse on him, thus showing on the face of the check circumstances of suspicion. There is no allegation or proof of any knowledge on the part of the county to this assignment, nor is there any proof or any allegation that the suit was instituted for the benefit of
“Damages for Trespass. — If any person go or be upon any public land,and cut, fell, or otherwise injure any tree thereon, or commit any other trespass on such land, the damages for any such trespass shall not be assessed at less than the sum of two dollars . . . for each acre in every forty-acre subdivision of land upon which any trespass was committed by the defendant, besides the statutory damages prescribed for trespass committed as to any tree or timber thereon; and all such damages may be recovered in one and the 'same action, and the commissioner may institute suits for the recovery of any timber taken contrary to law; but this shall not apply to a person renting public land and having the license of the land commissioner to take trees or timber from contiguous woodland for fuel and the like.
See, also, section 2930, Code of 1906 (Hemingway’s Code, section 5265); section 4700, Code of 1906 (Hemingway’s Code, section 7510).
Under this section the authorized represenatives of the public could not compromise a trespass of the kind
These authorities, as well as statutes making it a crime to cut and remove timber from sixteenth section land, established' conclusively, to my mind, the right of the owner of the fee to recover the value of the timber cut and taken from the premises. If the principles announced in the present decision are sound, then nonresident landowners and the public (not only including sixteenth section land, but all-other public lands) will have to take some means of beating the lessee to the court in case of trespass, or they will be defrauded out of rights that they have in the matter. Landlords hereafter should be careful to see that their lease contract reads so as to extend only to cleared land; otherwise they will find that when they lease a plantation as such that the tenant will have the right to permit persons to cut timber or to sell the timber and pocket the proceeds. The history of litigation in this state shows that, so far as sixteenth section land is concerned, the lessees have frequently been employees of timber speculators and sawmill companies, and that they have frequently sold the timber to such sawmill companies or timber buyers, and all (under this decision) that it would be necessary to do to square the deal and enable the parties to the wrongful transaction to divide the “swag” is for the buyer of the timber to go upon the land and cut it, and then enter into a compromise with the lessee and thus be relieved of all liability to the state or to the authorities representing the state, because, under this opinion, the timber cutter, no matter whether he is a willful trespasser or not, can compromise with the lessee (who is frequently a hireling) for a nominal sum, and bind the public forever thereby. It
It would be interesting if time permitted to go into the history of the criminal neglect and waste of this princely patrimony, generously donated to the school children forever by the state of Georgia in ceding this territory to the United States. To begin with, parties charged with leasing the estates represented by these sixteenth section lands have leased them for long periods of time at a mere nominal sum, and the lessee securing this lease as a shadow of title or claim to protect him has entered into relations with timber grabbers and speculators calculated to make the judicious grieve and the righteous mourn, but have often been able to secure legal approval. Many of these sections are so situated as to be of but small or nominal value for agricultural purposes without large expenditures in draining and tiling, and are chiefly valuable for the timber; and the timber, through the manipulations of these vampires of infancy, these child robbers, has been taken for a mere nominal sum, diverted from its proper use, and the sections converted into a worthless waste fit only for the habitation of Peter Babbit, Molly Hare, and the Goat family.