Alliance Trust Co. v. Nettleton Hardwood Co

• Decision Date: 15 February 1897
• Citation: 21 So. 396,74 Miss. 584
• Court: Mississippi Supreme Court
• Parties: ALLIANCE TRUST CO. v. NETTLETON HARDWOOD CO

21 So. 396

74 Miss. 584

ALLIANCE TRUST CO. v. NETTLETON HARDWOOD CO

Supreme Court of Mississippi

February 15, 1897

October 1896

FROM the circuit court of Lee county HON. NEWNAN CAYCE, Judge.

In 1890, S. H. Taylor and wife executed a deed of trust on lands to secure a debt, which was foreclosed in 1891, and the land was purchased by appellant. The land, however, was sold under an execution, after the making but before the foreclosure of the deed in trust, and was purchased thereunder by E. B. K Taylor. This execution sale was vacated by a suit in equity instituted in 1892 by appellant against E. B. K. Taylor and others, and the decree setting it aside was affirmed by the supreme court. Taylor et al. v. Alliance Trust Co., 71 Miss. 694. Pending said suit, the trees were cut for which the present action was instituted.

Plaintiff's evidence showed, or tended to show, that defendant went on to the land and cut the trees pending the equity suit, and after plaintiff's deed and the deed of trust were recorded. Defendant did not deny getting the trees, but claimed to have purchased them from E. B. K. Taylor, who was at the time in possession of the land, and denied actual notice of the deeds and of the equity suit. it is not necessary to an understanding of the legal questions decided, that the instructions, referred to by numbers in the opinion, should be given. The plaintiff had regained possession of the land when this suit was begun.

Reversed and remanded.

William D. Anderson, for appellant.

The court should have instructed the jury to find for the plaintiff, for, admitting everything to be true which the defendant's testimony tended to establish, and still the plaintiff's case was made out. There is no conflict in the testimony as to these facts: That, when the logs in question were cut off of the plaintiff's land, the plaintiff was the true owner of the land; that the defendant knew the logs were cut off of the land; that the defendant got the logs and used them; that the plaintiff had regained possession of the land at the time this suit was brought, Now, on this state of facts, what was there for the jury to pass on in the case except the value of the logs taken? The question of good faith on the part of the defendant, or Taylor, or anyone else, in reference to the ownership of the land and the logs, had nothing whatever to do with the matter. The question was, who really did own them? The purchaser had to look to the title of the seller and see that he was getting a good title.

Gilleylen & Leftwich, on same side.

The first count in this declaration is technically trespass, the second is for debt, waiving tort, the third for trover and conversion. Now, the question of the possession of the land can only arise under the first count. There was no demurrer. The only pleas which are to all the counts in the declaration are not guilty and nil debet; the first plea alone applying to the first count. Under these pleas the possession of the locus in quo at the time of the trespass by the plaintiff cannot be denied by the evidence on the trial, for these pleas admit the possession of the plaintiff. Chitty on Pleading, p. 520 (10 American Edition); Ostram v. Potter, 62 N.W. 170. When the disseizee regains possession, he can maintain his action for damages suffered between the disseizen and re-entry. Emrich v. Ireland, 55 Miss. 390. As to the count for trover and conversion, possession of the realty was not necessary; plaintiff only had to have the right of possession the conversion is the gist of the action. 4 Minor's Insts., 487-489; Ib., 389-491. If the land was plaintiff's when the trees were cut (and that has been fully adjudicated, 71 Miss. 694), the trees still belong to the owner of the land after they are cut. Harris v. Newman, 5 Howard, 654. Trover may be brought for the value of a house which was a fixture, removed from the land of another. Stillman v. Hamer, 7 Howard, 421. Trees are fixtures or part of the realty before they are severed. Harrell v. Miller, 6 George, 700. The defendant cannot claim want of notice, if notice was necessary, for the deed of appellant was of record. Taylor's deed was also on record, but it was a sheriff's deed, under a satisfied judgment, and was therefore void as defendant is charged with knowing. Taylor v. Alliance Trust Co., 71 Miss. 694. Defendant had constructive notice. Notice by lis pendens defendant had also, for suit had been brought by appellant for the land when appellee got the trees. Chaffe v. Patterson, 61 Miss. 28; Allen v. Poole, 54 Miss. 323.

W. R. Harper, for the appellee.

It is first contended by counsel for appellant that the pleas did not put at issue its possession at the time of the wrong. Chitty, 520, is cited to sustain this position. But counsel failed to observe that Chitty is then writing of the state of the law in England "since the recent rules, " referring to certain rules of court adopted at Westminster. It is clear that defendant never entered the close or authorized anybody to go on the close and cut timber. It only bought timber cut on the close when delivered to it miles away.

If appellant recovers, it must be, then, only for value of the trees converted by it upon the counts of trespass de bonis asportatis and trover. But we say that these two forms of action cannot be maintained against defendant on the facts of the case here presented. We admit the doctrine laid out in Emrich v. Ireland, 55 Miss. 370, that he may maintain an action of quare clausum fregit against the disseizor for damages to the close intermediate the disseizin and re-entry, because, by a legal fiction, his possession is made to relate back for that particular purpose, but for no other. Brothers v. Hurdle, Ired., 490.

OPINION

WHITFIELD, J.

That the appellant is the real owner of the land from which the trees were cut, whose actual value is sought, in this suit, to be recovered, and had title, was settled in Taylor v. Trust Co. , 71 Miss. 694 (15 So. 121). The declaration in this case contains three counts--trespass quare clausum fregit , trespass de bonis asportatis , and trover. The plea of not guilty was interposed to all these counts, as was also the plea nil debet . It is not disputed that the appellee got the timber from Taylor, who had no title, and has converted it to its own use. The trees were cut by employes of the appellee, acting, as appellee claimed, as Taylor's agents. It is shown, also, that, when cut, the deed of appellant was of record, and the former chancery suit in which appellant's title was established, begun before the code of 1892 went into effect, was pending, and that the appellee was not in possession of the land. It is manifest from the record that the case was made to turn in the court below on the fact that appellee bought from Taylor, as is alleged, in good faith, without actual notice of appellant's title; and although appellant's deed was duly recorded, and its bill pending--governed, as to the lis pendens notice, by the law prior to the code of 1892--the court modified instructions 3, 4, and 5, asked by plaintiff so as to hinge plaintiff's right to recover on the want of such actual notice. These modifications were all erroneous. No notice was necessary, and, if any had been, the appellee was charged with knowledge of the true state of the title by the record of the deed of appellant, and was bound also by the lis pendens notice. Evans v. Miller , 58 Miss. 120; Allen v. Poole , 54 Miss. 323. The charges should have been given as asked, as should also charges 6, 7, 8 and 9. As to the ninth, plaintiff only asked for the value of the trees standing in the woods, which, as shown by the evidence, was several hundred dollars less than their value at the mill. If appellant was willing to take less than it was entitled to (as to which see Skinner v. Pinney , 45 Am. Rep. 1), appellee would be benefited, not harmed, thereby. And the charge No. 1, given for appellee, was erroneous for reasons above stated

But it is insisted with great ingenuity and earnestness that neither trespass de bonis asportatis nor trover will lie to recover of a purchaser from a disseizor, or from the disseizor himself, the value of trees cut from the land of the true owner, during possession by such disseizor. It is said that the doctrine of Emrich v. Ireland , 55 Miss. 390, goes to the extent of holding only that trespass quare clausum fregit may be brought against the disseizor to recover damages to the close intermediate the disseizin and re-entry by the true owner, after reentry; that case being a suit to recover the damages to the freehold occasioned by the removal of a log house and fence. The reason assigned for the distinction is, that the possession of the true owner, by a legal fiction, relates back for this particular purpose of bringing quare clausum fregit for such damages to the freehold, and for that purpose only, and that it does not so relate back to enable the true owner, after re-entry, to recover the value of trees severed from the freehold intermediate the disseizin and the re-entry, from a disseizor who has so cut them while in possession, or any purchaser from him, or any second disseizor; and Brothers v. Hurdle , 32 N.C. 490, 10 Ired. Law 490, s. c. 51 Am. Dec. 400, is cited in support of, and does squarely maintain, the contention.

But the precisely opposite doctrine is announced in an opinion of great force by Savage, C. J., in Morgan v. Varick , 8 Wend. 587, in the course of which it is said with great power: "If that be law, any irresponsible person may turn the owner forcibly out of possession of his real estate, sell the buildings and the timber, and thereby destroy the value of the property; he may sell it, too, under ever so suspicious...