75 N.W. 262 | N.D. | 1898
Defendants have appealed from a judgment based upon the verdict of a jury. One of the errors assigned is that the District Court should have compelled the plaintiff to elect whether he would treat the action as an action for trespass to real estate or for the conversion of personal property. The averments of the complaint were that plaintiff was the owner of certain real estate, and that defendants forcibly entered the same, and tore down and removed a barn erected thereon. While it is possible that the pleading was vulnerable to attack by motion to render it more definite, we are clear that it states only one cause of action, i. e. an action for trespass to real property. It is true that the plaintiff does not allege that he was in the actual possession of the premises, but actual possession is not necessary. Constructive possession, resting upon title is sufficient where there is
It is claimed that the court eri'ed in refusinga request of defendants’ counsel to direct the jury to render a special verdict. But in our opinion what counsel for the defendants asked was not that the jury be requested to return a special verdict, but to answer certain questions fx'amed by counsel, which went more into details on the issues in the case than a jury are required to go, even when they ax-e directed to render a special verdict. The couid was requested to propound to them the following questions, among others: “How many loads of lumber wex-e taken down and carried away
It is urged that, inasmuch, as the plaintiff was not in actual possession of the land at the time of the trespass, he cannot recover because he has failed to show that he was at such time the owner of the legal title thereto. It appears that a time anterior to the trespass the premises were owned by Jay Russell, the plaintiff, and W. H. Davenport, under a deed to them which was duly recorded, each owning one-half. They conveyed through different grantees their respective interests, and finally the fee was vested in A. G. Divet. Divet sold the property to the plaintiff. However, instead of executing a deed to the plaintiff, he destroyed all the intermediate deeds, which had not been recorded, and caused a deed to be executed by Davenport to the plaintiff. Thus, upon the public records, when the latter deed should be recorded, it would appear that plaintiff was the owner of the entire lot, the deed to himself and Davenport vesting a one-half interest in him, and the deed from Davenport to himself transferring to him the other half. It is obvious, however, that Divet did not by the destruction of such deeds devest himself of his legal title to the premises. 2 Jones, Real Prop. § 1259, and cases cited; Rev. Codes, § 3519. There is, however, authority for the proposition that the effect of a voluntary destruction of a deed is to revest the legal title in the grantor if that is the purpose of the party, the ground of such holding being an equitable estoppel. He who has deliberately put it out of his power to prove his title by the best evidence shall not be permitted to produce secondary evidence to sustain it, and therefore, he can never establish such title in a court of justice. It follows that he has in law no title, because he is powerless to assert it. So runs the reasoning of these cases: Holbrook v. Tirrell, 9 Pick. 105; Barrett v. Thorndike, 1 Me. 73; Com. v. Dudley, 10 Mass. 403;
On one point, however, we think the learned trial judge erred. He charged the jury that, as a matter of law, the plaintiff was entitled to recover damages on the theory that plaintiff was the owner of the building, and that the only question for them to determine was the amount of plaintiff's damages. So far as this instruction rested upon plaintiff’s title to the land, we think the court was correct. But there is some evidence in the case tending to show that the ownership of the barn had been transferred to one who was not the owner of the land, and that at the time that Divet sold to plaintiff he (Divet) was not the owner of such structure. Of course, it was competent for the owner of the land to sever the building therefrom (considering the mode of its annexation thereto) by a sale thereof separate from the land. Such a sale would pass the title to the building as personal property. Shaw v. Carbrey, 13 Allen, 462; Long v. White, 42 Ohio St. 59. True it is that an innocent purchaser of the land would have a right to assume that the building was a part of the realty, and would, on putting his deed on record, be in a position to defeat the prior sale of the building by his grantor, he having no notice thereof. 2 Jones, Real Prop. § 1736. But no claim is made here under the recording act. Counsel for plaintiff merely argues that the alleged oral transfer of the building was void under the statute of frauds. And it is obvious from the record that the case was not litigated in the court below on the theory that plaintiff was entitled to protection on the ground that he was a bona fide purchaser under our recording law.
We think that there was a question of fact as to the ownership of the building which should have been submitted to the jury. It is true that the trespass upon the land was not justified, because