Adams v. Corriston

• Decision Date: 01 January 1862
• Citation: 7 Minn. 365
• Parties: JAMES E. ADAMS vs. JOHN T. CORRISTON.
• Court: Minnesota Supreme Court

7 Minn. 365

JAMES E. ADAMSvs.

JOHN T. CORRISTON.

Supreme Court of Minnesota.

Error to district court, Nicollet County.

Points and authorities for plaintiff in error: —

1. The court below erred in overruling the defendant's (now plaintiff in error) motion for judgment upon the pleadings (the complaint). First, because the complaint contains no cause of action, and does not show that either law or justice has been violated. Second, the complaint also does not allege or set up, that either the taking or detention of the timber was wrongful or tortuous or unlawful, or in any manner obnoxious to law or justice. Chit. Pl. [162]; 3 Black. [146]; 2 Chit. Pl. 843; 2 Monell Pr. 278; Howe Pr. 79; Van Sant. Pl. 278; Van Sant. App. Prec. 493; Comp Stat. 512, § 87.

2. The judge of the district court erred in denying the defendant a jury trial, and in trying the cause himself, upon the defendants declining to advance three dollars for jury fees. A jury trial was claimed by defendant, and defendant excepted and objected to the court's trying the action. In violation of the constitution and express enactments of the legislature, as well as of other considerations, the defendant was required to advance his money for the inalienable right of a jury trial, or be deprived thereof. Const. Minn. art. 1, §§ 4 and 8; Comp. Stat. 557, § 6; id. 562, § 40; Weller v. City of St. Paul, 5 Minn. [95].

3. The court erred in giving judgment for the plaintiff upon the facts found. First, the facts found do not support the complaint. Second, the timber, when taken by defendant, was upon the premises of Mr. Cullen; hence he would be the presumptive possessor of it, and presumptively entitled thereto. Third, no damage was shown, either to give force to the allegation of damages in the complaint, or to show a wrongful or unlawful taking or detention of the timber. Fourth, the claims of the plaintiff are built upon fraud, and cannot be respected or enforced in courts of justice. Fraud vitiates and destroys all transactions as against innocent parties. Silsbury v. McCoon, 3 N. Y. 379, and notes; Van Pelt v. McGraw et al. 4 N. Y 110. Fifth, the timber, being a chief portion of the realty, could not have been changed to personal property, without the consent of the defendant (or his principal), or absolute conversion of its species. The mere laying it, with the axe, upon the ground, is no change of its species; it is timber still. Silsbury v. McCoon, 3 N. Y. 379. The timber belongs to the rest of the mortgaged premises, rather than to plaintiff, and as he has no claim to them, he has none to it, while defendant has both. Sixth, the legal title, as well as the virtual estate of the mortgaged property, of which the timber was part and portion, was in the owner of the mortgage. And as defendant, in behalf of the said owner, was in possession of the timber at least, and in lawful possession, for aught that has been shown, of the timber and not of the said property, his possession will not be disturbed. Pace v. Chadderdon, 4 Minn. [499]. The owner of the mortgage (especially after default, as in the case at bar) has a right to the timber cut from mortgaged premises wherever he can find it, or, if it be converted or destroyed, can recover its value of the wrong-doers, or any of them. Gore v. Jenness, 19 Me. 53; Lull v. Matthews, 19 Vt. 322; Van Pelt v. McGraw, 4 N. Y. 110; Bussey v. Page, 14 Me. 132; Frothingham v. McKusick, 24 Me. 403; Langdon v. Paul, 22 Vt. 205; Thomas v. Crofut, 14 N. Y. 474; Fernald v. Linscott, 6 Me. 234.

Points and authorities for defendant in error: —

1. The complaint is sufficient, and shows a good cause of action. Under our statute it is not necessary to allege or prove a wrongful or unlawful taking of personal property to maintain an action for the recovery of the possession thereof, though it is done in this case.

2. Whatever may be the interest or estate of the mortgagee in the real estate mortgaged, after forfeiture of the condition of the mortgage, it is very clear that he cannot maintain an action for the recovery of the possession of the land or of timber cut upon the land prior to foreclosure. Cooper v. Davis, 15 Conn. 556; Lane v. Hitchcock, 14 Johns. 213; Gardner v. Heartt, 3 Denio, 232; Waring v. Smyth, 2 Barb. Ch. 135; Davis v. Anderson, 1 Kelly, (Ga.) 176; The State v. Lawson, (6 Ark.) 269; Borst v. Boyd, Sandf. Ch. 501; Comp. Stat. 596, ch. 64, § 11. If he cannot maintain such an action, it follows, as a logical conclusion, that he cannot defend his possession wrongfully taken by such title or interest. But the plaintiff in error has no right to make this question on the return to the writ of error in this case. There is not anything in the record competent to show that the plaintiff in error, or his wife, was mortgagee of the land on which the timber was cut.

3. The tax on trial by jury in civil actions is valid. The right and power of the legislature to tax litigation in aid of the judicial fund cannot be questioned, and, as a means of collection of the tax, any particular proceeding or step in a case may be conditioned upon its payment. It is so in justices' courts, and the validity of the act requiring it has never been questioned. It is so in other states whose constitutions as forcibly as ours preserve the right of trial by jury.

Henry L. Warner, for plaintiff in error.

Chatfield & Buell, for defendant in error.

EMMETT, C. J.

This action was commenced before a justice of the peace, from whose judgment therein an appeal was taken to the district court, where pleadings were filed anew. The complaint alleges that the plaintiff (defendant in error), on or about a day therein named, owned and possessed certain timber of the value of fifty dollars; and that the defendant afterwards, and on or about the same day, took and carried the said timber away, and detains it against sureties and pledges, to the damage of the plaintiff in the sum of fifty dollars, besides the value of the property. Judgment is then demanded for a return of the property to the plaintiff, or that he recover the value thereof, with his said damages for the taking and detention, &c.

The answer denies that the plaintiff below owned or possessed the property. It admits the taking and detention complained of, but alleges property in a third person by whose authority the defendant below acted in the premises. And, as a further defense, the answer alleges, that the timber in question had been cut on lands which were, at the time, mortgaged to secure the payment of a certain sum of money; that it was cut and hauled off the mortgaged premises by the mortgagor, after default in the payment of the sum secured by the mortgage, and with the design of defrauding thereby the owner of the mortgage; that said mortgagor afterwards transferred the same to the plaintiff without adequate compensation; that the plaintiff, at the time, had full knowledge of all the facts before stated, and confederated and colluded with the mortgagor fraudulently to purchase, or pretend to purchase, said timber; that the defendant, as the agent, and by authority of the assignee of said mortgage, took and carried away the timber, as he lawfully might; and that the mortgage had been assigned and transferred to his principal prior to the time said timber was cut, as before stated. The reply denies that the timber was the property of Maria T. Adams, as alleged in the complaint; and also puts in issue the alleged agency of the defendant.

On the trial in the district court, the defendant demanded a jury, but declined paying the jury fee required by the statute, and thereupon the action was tried by the court, and the defendant took his exception. The court found the facts substantially as set up in the second defense of the answer, except as to the allegation of an intention to defraud, and as to that, the judge found that the plaintiff purchased the timber from the mortgagor, with a knowledge that it had been cut and removed from the mortgaged premises, after default in the payment of the mortgage, and after he had been notified that the assignee of the mortgage would claim said timber. He also found the value of the timber to be twenty-one dollars. From the facts, the court found, as a conclusion of law, that the plaintiff below was the owner of the property at the commencement of the action, and entitled to the possession thereof, and thereupon entered judgment for the plaintiff. The defendant then sued out his writ of error, and now insists, that the...