98 N.C. 465
N.C.
1887
MebjsimoN, J.,

(after stating the case). When this case was before us by a former appeal (Salisbury v. Railroad, 91 N. C., 490), the facts appearing then substantially as they do now, except that the deed of conveyance executed by the plaintiff to the trustee mentioned, has been decreed to be inoperative, we then decided that the possession and use of the mill by the plaintiff were such as entitled him to maintain his action against the defendant, and recover such damages as he sustained by reason of the injury complained of by him, although the trustee might also sue the defendant in a separate action, and recover like damages for such injury as might affect the land, including the mill, to the detriment of the owners thereof — that is, the trustees and the the cestui que trust. The right and the cause of action of the plaintiff, and the same of the trustee as against the defendant, arising out of the alleged injury, were plainly pointed out as separate and distinct, each from the other. Exactly what was the character and extent of the plaintiff’s pos *469 session did not then appear, and now it is left largely to conjecture. It seems that confusion and misapprehension on the first trial of the action grew out of the fact that he regarded himself as the absolute owner of the mill and the land on which it was situate, and the same to a large extent prevailed at the last trial. Indeed, it seems that he was at the latter trial regarded as the owner of the mill, as having sustained damages as such owner, and therefore was allowed to recover damages for the whole injury done to the property. , This was not in harmony with what we decided and said in the former appeal. What we then said is pertinent and applicable here in material respects, except in so far as it may be modified by the fact that the deed of conveyance to the trustee was decreed to be inoperative. It was a serious mistake to treat the plaintiff as the owner of the mill. While ordinarily, in a case like this, the plaintiff in posession is presumed to be the owner of the property injured, it becomes otherwise when his title to the land is put in issue and the evidence proves that he is not the owner, but has a naked possession, or a possession coupled with a particular interest. In this case he can only recover damage to the extent his possession, whatever its nature, has sustained injury; and the owner may. do likewise as to the injury sustained by him, in a separate action. A party cannot be allowed to recover damages for injury to the property of another person as to which he is not interested. Accepting the deed of conveyance executed by him to the trustee mentioned, as having been properly executed, proven and registered, he was not the owner thereof next thereafter until that deed was decreed to be inoperative and void. It appears that it was so decreed to be inoperative, only because of mistake. It was not, in any view of it, absolutely void — it was only voidable. The plaintiff might at any time have ratified it— indeed, he did not seek to avoid it for more than six years after he executed it. While it continued operative, and at *470 the time of the injury complained of, the legal title to the mill was in the trustee, and accepting the evidence of the plaintiff as true, the former had a distinct cause of action against the defendant arising out of the injury alleged, as certainly as the plaintiff had. He might have brought and maintained his action, and if he had made proof of his cause of action he would have recovered damages done to the property to the extent he sustained injury as the owner of it. The plaintiff was not interested in, and had no right to this damage; he was only entitled to damages tp the extent that his possession was injured, and the measure of his damage depended upon the character of his possession. If he had a mere naked possession, the measure of his damage would be nominal; if he had a possession coupled with an interest, it would be greater and substantial, more or less, as that interest might be more or less important and affected to a greater or less degree. We cannot conceive of a just reason why the plaintiff should be allowed to recover damages sustained by the trustee, the owner of the property; and if this were allowed, the defendant would not be protected against a recovery by the trustee as to his separate cause of action. It would be manifestly unjust and iniquitous to allow such results to happen. >

But it is contended that, inasmuch as the deed mentioned was annulled by a judicial decree, the plaintiff is in no wise affected by it — that the annulment relates back to the time of its execution, and the plaintiff stands, in relation to the injury complained of, just as if he had never executed the deed.

This view cannot be sustained. The deed was not void— it was only voidable, as indicated above, and without reference to how and to what extent the rights of the parties to it may be effected by the decree of annulment, as among themselves, it could not affect third parties without notice, to their prejudice as to rights and advantages that they acquired *471 under and by virtue of it. If, for example, the trustee, as indicated.above, had a cause of action against the defendant and recovered judgment for damages, as he might have done, and the defendant paid the same, surely, in that case, the plaintiff, after the annulment of the deed, could not again recover the same damages. And if the trustee had such cause of action, and the defendant had amicably paid the damages agreed upon, and taken a, proper acquittance, the plaintiff could not, after the deed was declared inoperative, receive the same in this or any action, because it would be grossly unjust to allow innocent third parties to be prejudiced by the acts of parties to the advantage of the latter, over which acts the former had and could have no control.

Nor could the decree of annulment have the effect to incorporate into the plaintiff’s cause of action, sued upon, another cause of action that he did not possess at the time his action began, but acquired afterwards. The plaintiff’s cause of action must generally exist and be his at the time he brings his action — otherwise, he might enlarge its compass indefinitely and impair the integrity and order of procedure. The course of procedure must be observed and upheld, however convenient it might be in this and like peculiar cases to depart from it.

While the defendant was not entitled to have the special instruction indicated, given precisely as prayed for, we think the Court should have given so much of it as was material and pertinent. If the deed was proven and registered, as it seems it was, the Court ought to have instructed the jury in substance, that uuder the circumstances and for the purposes of this action the plaintiff was not the owner of the mill and the land on which it was situate; that, if they believed the evidence, he had possession of the land and mill and used the same; and to have directed their attention to the character, extent and purpose of his possession, and the *472 injury done to the same, occasioned by the acts of the de-defendant through its agents, as developed by the evidence.

There-must be a new trial. To that end let this opinion be certified to the Superior Court.

Error.