79 So. 119 | Ala. | 1918
The action was in trover for the conversion of timber, and was tried by the court without a jury.
It has been decided that, where the evidence adduced before the judge trying without a jury was developed ore tenus, or partly so, the findings of the trial court will not be disturbed "unless the conclusion below is plainly contrary to the great weight of the evidence." Ahlrichs v. Rollo,
There is no merit in appellant's contention that a sale of the premises after the action of trover had accrued defeated the suit for the damage for converting the chattel severed from the freehold. Hood v. Southern Railway Co.,
The undisputed evidence is to the effect that defendant was in the open and adverse possession of the land under color of title at the time the logs were severed and removed. Being a purchaser of the land at a regular tax sale, defendant assumed and held possession thereof under the tax deed, which was valid on its face, that he had received as such purchaser. It has been declared that a tax deed valid on its face, though insufficient of itself to convey a perfect title, will constitute color of title to the lands described therein and taken and held under a bona fide claim thereunder (Southern Railway Co. v. Cleveland,
The authorities hold that, when a part of the freehold, such as coal, mineral, gravel, trees, crops, and the like, has been severed, it becomes personalty, and that actions therefor — trover or detinue or other appropriate personal action — may be brought to recover the severed property as a chattel. Aldrich Co. v. Pearce,
The legal title to real properties draws to the owner and holder the constructive possession of such of the lands as he may not be in the actual possession of, provided the actual possession be not in another; whereas the possession of a naked trespasser without color of title, is limited to his actual possession. Bell v. Denson,
Being in possession of the land under color of title and bona fide claim of ownership, defendant was not guilty of trover when he cut and removed the trees or timbers therefrom. Trover did not lie for the damages sustained by the owner of the legal title through the severance and removal of the trees from her lands. Cooper v. Watson, Adm'r,
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.