D. L. Fair Lumber Co. v. Federal Land Bank of New Orleans

• Citation: 128 So. 733,158 Miss. 87
• Decision Date: 19 May 1930
• Docket Number: 28704
• Court: United States State Supreme Court of Mississippi
• Parties: D. L. FAIR LUMBER CO. et al. v. FEDERAL LAND BANK OF NEW ORLEANS

128 So. 733

158 Miss. 87

D. L. FAIR LUMBER CO. et al. v. FEDERAL LAND BANK OF NEW ORLEANS

No. 28704

Supreme Court of Mississippi, Division B

May 19, 1930

Suggestion of Error sustained in part, June 9, 1930.

APPEAL from chancery court of Winston county, HON. T. P. GUYTON Chancellor.

Suit by the Federal Land Bank of New Orleans against the D. L. Fair Lumber Company, a partnership, and others. Judgment for complainant, and defendant appeals. Reversed, and remanded for new trial.

Judgment reversed, and cause dismissed. Suggestion of error sustained.

E. M Livingston, of Louisville, and Bozeman & Cameron, of Meridian, for appellant.

In a suit for the cutting of trees, the plaintiff must either prove title, or possession of the land from which the trees were cut.

Houston v. Linhart, 136 Miss. 841, 101 So. 289.

Proof does not show that lumber came from land in question.

The award of an attorney's fee to appellee's attorney was clear error. It is never proper to award an attorneys' fee, unless provided for by contract or by the clear tenets of the law.

R. W. Boydstun, of Louisville, for appellees.

The trial court, after hearing all the evidence, seeing the witnesses on the stand, found that complainant was entitled to the relief prayed for.

The stenographer's report of the evidence is very incomplete and the findings of the chancellor on the facts are supported by far more evidence heard in the court than the stenographer shows in record.

The correctness of the judgment for attorney fee is sustained by the case of Turbeville v. Simpson, 47 So. 784.

Ethridge, P. J. Griffith, J.

OPINION

Ethridge, P. J.

The Federal Land Bank of New Orleans, Louisiana, filed a bill in chancery court of Winston county against the D. L. Fair Lumber Company, a partnership engaged in the business of manufacturing lumber, operating saw and planing mills, and purchasing and manufacturing rough lumber, etc., alleging that on or about the first of June, 1921, W. W. White and wife of Winston county were the owners of certain lands described in the bill, the same being valuable timber and agricultural lands, and the said White and wife, being indebted to the bank in the sum of four hundred dollars on said land, executed a mortgage on the lands and timber thereon to secure the said indebtedness, and that the said indebtedness was payable in thirty-five equal installments, and that said deed of trust was duly recorded in the records of Winston county. It was further alleged that on the first day of June, 1927, the mortgagor defaulted in the payment of the notes to the bank, and that the said bank advertised the said lands conveyed to it for sale and sold the same according to law, and that they were purchased by the said Land Bank at one hundred fifty dollars. It further alleged that the timber had been cut from the lands and sold to the D. L. Fair Lumber Company, and that by reason of the cutting of the said timber and removing it from the land the bank was damaged in the sum of two hundred ninety-three dollars and eighty-three cents.

It was further alleged that the bank was entitled to a reasonable attorney's fee for the bringing of the suit, and that one hundred dollars was a reasonable fee. It was further alleged that in March, 1924, or within a short time prior or subsequent thereto and less than six years before the filing of the suit, there was standing on the lands great amounts of valuable timber, the amount and value of which was unknown to the plaintiff and peculiarly was in the knowledge of the defendant, and that W. W. White and all parties primarily liable on the note were insolvent, and that the only remedy the complainant had to recover its loss was by relief in equity. It was further alleged that one J. B. White, not a party to the suit, nor to the original contract in any way cut and sawed into lumber a great amount of timber on the White lands and that D. L. Fair Lumber Company, acting through its manager and agents, appropriated the lumber manufactured by J. B. White and used it, and that the complainant had no knowledge, either actual or constructive, of the removal of the timber until long afterwards, and that it gave no permission or consent to such removal and conversion; and the bill prayed for the recovery for the amount of lumber so received by the D. L. Fair Lumber Company...