Blair v. Frank B. Russell & Co.

• Decision Date: 02 June 1919
• Docket Number: 20695
• Parties: BLAIR ET UX v. FRANK B. RUSSELL & CO
• Court: Mississippi Supreme Court

81 So. 785

120 Miss. 108

BLAIR ET UX v. FRANK B. RUSSELL & CO

No. 20695

Supreme Court of Mississippi

June 2, 1919

Division B

1 PARTNERSHIP. Attachment. Nonresidence. Residental single partner.

In an attachment against a partnership, if one or more of the partners are residents of the state, the attachment cannot be sustained on the ground of nonresidence.

2. APPEAL AND ERROR. Directed verdict. Truth of evidence.

Where judgment was entered for the defendant on a peremptory instruction for the defendant and the plaintiff appeals to the supreme court, his testimony must be taken as true for the purpose of the appeal.

3 PARTNERSHIP. Attachment. Fraud. Evidence.

In this case which was a suit against a partnership to recover for trees wrongfully cut and carried away, the court held that the evidence was sufficient to sustain an attachment on the ground of defendants' fraud in drawing up a deed to certain timber not in accordance with the agreement between the parties.

4 EVIDENCE. Parol evidence. Affecting writing. Timber deed fraud.

In an action by husband and wife for the wrongful cutting of timber on a homestead under a deed to defendants purporting to be signed by the husband, which deed was void for uncertainty of description and invalid because the wife did not sign it. In such case testimony as to defendant's fraud on the husband in inducing him to sign the deed which did not correctly embody the agreement of the parties was not inadmissible as varying the deed by parol evidence.

5 HOMESTEAD. Conveyance of timber. Non-joinder of wife. License. Termination.

Where a husband by deed conveyed timber upon a homestead which deed was not joined in by the wife such deed was void as to the timber on the homested or at most constituted the grantee only a licensee, and such license was terminated when the grantor and his wife gave notice to the grantee not to further cut such timbers.

HON. CLAUDE CLAYTON, Judge.

APPEAL from the circuit court of Monroe county, HON. CLAUDE CLAYTON, Judge.

Suit by attachment by W. F. Blair and wife against Frank B. Russell & Co., a partnership. From a judgment for defendant, both on the attachment and debt issues, plaintiffs appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

McFarland & Holmes, for appellant.

This case is a suit by appellants against appellee under section 4977, Mississippi Code of 1906, which provides as follows: "If any person shall cut down, deaden, destroy or take away, if already cut or fallen, any cypress, white-oak, black-oak or other oak, pine, poplar, black-walnut, cherry, pecan, hickory, chesnut, birch, ash, or beech tree, on land not his own, without the consent of the owner, he shall pay to the owner of the tree or trees fifteen dollars for every such tree so cut down, deadened, destroyed, or taken away; and for every other tree not herein described so cut down, deadened, destroyed, or taken away, the sum of five dollars shall be paid."

As well said in Keirn v. Warfield, 60 Miss. 799: "The letter of the statute gives the penalty upon proof of any cutting upon the land of another. The courts have modified its right by holding that the defendant may defeat a recovery by showing that it occurred through accident, inadvertence, and mistake; provided reasonable care and caution were taken to avoid the mistake. The burden, therefore, of showing both the unintentional mistake and the exercise of reasonable care to avoid it, is upon the defendant. What will amount to the exercise of proper care must necessarily depend upon the facts of each case." In this case the question of reasonable care and caution or good faith, is one of fact and should be submitted to the jury. Hall v. Shean, 111 Miss. 223; Haley v. Taylor, 77 Miss. 867, at page 871. The bona-fides and reasonableness of the defendant's belief that he has the right to do what he does (cut timber) under a claim of title in himself is a question for the jury to decide from all the facts and circumstances in the case. Boykin v. State, 24 So. 141, 21 Col. 144.

Where testimony was introduced tending to support the averment of a trespass, and the conveyance relied upon by the defendant afforded no defense, the issue should be submitted to the jury. Goodson v. Stewart, 46 So. 239; See, also, I. & N. R. R. Co. v. Smith, 37 So. 490.

The court will observe that the pretended deed or contract introduced by appellee conveyed the white-oak timber on "two hundred and forty acres in Monroe County, in section 14, Township 12, Range 16." While the timber cut was in another and different section and township and situated on the homestead of appellants; the purported contract or deed conveying timber on other land could not be introduced in this case. Besides even if the description was proper and purported to convey the timber actually cut, the deed was absolutely void because it was signed only by William F. Blair, the husband, and not joined in by his wife, Hanna Blair, said timber being cut from the homestead of appellants. This court on numerous occasions held that the conveyance of the homestead, or the timber thereon, by the husband alone is invalid, and operates nothing. It confers no right legal or equitable. Hubbard v. Sage Land & Improvement Co., 81 Miss. 616; McKenzie v. Shows, 70 Miss. 388; See, also, Bolen v. Lilly, 85 Miss. 344; Zukoski v. McIntyre, 93 Miss. 806.

"A deed executed by a husband alone purporting to convey a right of way over a homestead is void, and is no defense to an action of trespass by the husband and wife." G. & S. I. R. R. Co. v. Single Terry, 78 Miss. 772.

The court will bear in mind that in this case the evidence shows that William F. Blair thought he had sold to appellee one hundred trees only, and further that his wife, Hanna Blair, absolutely refused to convey any timber on her homestead. The testimony shows that Hanna Blair had once lost her homestead in Alabama by signing a mortgage thereof, and she absolutely refused to sign any paper connected with this homestead because she desired to protect her rights therein; and not having signed any agreement to allow the timber to be cut off of her homestead. We respectfully submit that this case should have gone to the jury for their decision, and the peremptory instruction by the court in favor of appellee is reversible error. The question in this case is whether or not appelle acted bona fide and in good faith and with reasonable care and caution, and this is a question of fact and should have been submitted to the jury. It certainly cannot be said as a matter of law that appellees claim of good faith based on this void deed, is a good defense. If this is true the protection of the law given to homesteads is of no value in Mississippi.

In the case of Cumberland Telephone Co. v. Cassidy, 78 Miss. 666, the court held that the authority given by a city council did not justify appellant in cutting trees of appellee over his protest, and that appellant was a naked and wilfull trespasser and liable for the penalty. And a peremptory instruction in such case in favor of defendant is reversible error. Brahan v. Telephone Co., 97 Miss. 326; See, also, Clay v. Telephone Co., 70 Miss. 406.

Under a warranty deed giving defendant the right to cut and remove trees, defendant is liable for the statutory penalty for boxing and turpentining the trees and setting out fire on the land. Rogers v. Lumber Co., 115 Miss. 339. If the statutory penalty was allowed in the above case, we submit that certainly the question of its allowance in this case should have gone to the jury.

The misconstruction of the law by a defendant is no defense for the statutory penalty under section 4977. Smith v. Forbes, 89 Miss. 141: "The permission given orally was a mere naked license, and defendant had no right upon the land after its revocation, and was a trespasser. This question of good faith on the part of the defendant was clearly for the determination of the jury." Ward v. Rapp, 44 N.W. 934.

Questions of fact are for the jury, and it is for the jury to determine whether the trespass was wilfull or careless, so as to subject the defendant to a penalty. 38 Cyc. 1174, (II): Telephone Co. v. O'Deneal 26 So. 966; 38 Cyc. 1151 and 1152.

Where there is conflicting evidence touching the material fact of the case, the latter should be submitted to the jury and a peremptory instruction is error. Bobbs Merrill Miss. Digest "Trial," 143.

A peremptory instruction will be error unless the evidence, conceding it to be absolutely true, discloses no legal right in the party against whom the instruction is given. Bobbs Merrill Miss. Digest "Trial" sec. 167.

We respectfully submit to the court that appellant's motion for a judgment by default should have been granted; appellee had failed to file any pleas to this cause for several terms of court and under the rules of practice plaintiff should have been given a judgment by default.

As we understand this case, the plaintiff made out a case for the statutory penalty when the cutting of the trees on their homestead was proved; it then devolved upon the defendant to prove some legal excuse for this cutting, or some evidence showing that he acted in good faith and bona fides. This he utterly failed to do, and in our opinion, if a peremptory instruction was proper it should have been granted the plaintiffs; at any rate the question of defendant's liability for the statutory penalty should have been submitted to the jury.

W. D. & J. R. Anderson, for appellees.

One assignment of error is that the court below erred in directing the jury to return a verdict for the appellees on the attachment issue. We did not understand that there was any very serious contention on...