Learned v. Ogden

• Decision Date: 02 June 1902
• Citation: 32 So. 278,80 Miss. 769
• Court: Mississippi Supreme Court
• Parties: RUFUS F. LEARNED v. WILLIAM F. OGDEN ET AL

32 So. 278

80 Miss. 769

RUFUS F. LEARNED v. WILLIAM F. OGDEN ET AL

Supreme Court of Mississippi

June 2, 1902

FROM the circuit court of Adams county. HON. W. R. HARPER, Special Judge.

Ogden and others, appellees, were plaintiffs, and Learned appellee, was defendant in the court below. The opinion sufficiently states the case.

Reversed and remanded.

Ernest E. Brown and Green & Green, for appellant.

1. The court erred in permitting plaintiffs over defendant's objection to file their second replication to defendant's second plea.

In order to obtain leave to file their second replication under § 692 of code, plaintiffs made affidavit that they had just cause to traverse the matters proposed to be traversed by them in their second replication, and defendant objected to the filing of the replication, because it was not a traverse, but in confession and avoidance. The court has no power to waive the affidavit provided by § 692 of code or to mitigate its terms, and the court had no more right to permit the filing of the second replication on a defective and improper affidavit than it had to permit it in absence of any affidavit. Hunter v. Wilkinson, 44 Miss. 721; Hartford v. Green, 52 Miss. 332; and Wilmot v. Y. &amp M. V. R. R. Co., 76 Miss. 374.

"The court erred in sustaining the general demurrer of plaintiffs to defendant's third plea." This third plea averred that the land from which defendant cut the cypress trees was a swamp or marsh--valueless for any purpose except getting timber therefrom--and that the trees removed were sold defendant by the tenant by the curtesy, who as such had the right to sell them to defendant.

The matters alleged in this plea constituted a full defense to plaintiffs' action. Where the land upon which the trees are growing is used or fit for agricultural purposes or the like, the life tenant has no right to sell the trees. Elliott v. Smith, N.H. 430; Lane v Thompson, 43 N.H. 320; Dorsey v. Moore, 100 N.C. 41. Where however the land is as alleged in third plea a swamp or marsh--valueless for any purpose except to obtain timber therefrom and incapable of enjoyment otherwise--then the life tenant has the right to dispose of the timber or trees. 2 Minor's Institutes, pages 128 of second edition or 147 of third edition and cases there cited; Campbell v. Clark, 2 Dough (Mich.), 143; Seager v. McCabe, 168 R A. (Mich.), 247.

In his sale of the cypress timber to defendant the life tenant reserved out sufficient for plantation purposes, and this was all the reversioners were entitled to require of the life tenant. In Cannon v. Barry, 59 Miss. 289, a part only of the land was arable, and the larger portion was swampy in character and heavily timbered, which was exactly the condition of Black Creek Tract, of which plaintiffs were reversioners. This court in their opinion in Cannon v. Barry, on page 304, after stating the right of life tenant to fell timber to redeem the land from taxes, and keep down the taxes on it in the future, further says: "As tenant for life, he has the right to do this--even for purposes of profit."

2. "The court erred in sustaining plaintiffs' demurrer to defendant's first rejoinder to second replication to second plea. The sole point involved in this rejoinder is whether there was such a right of action in the guardian of Dunbar Ogden as would cause the statute of limitations to run against the guardian and thereby bar the ward--under § 2761 of code of 1892, which reads as follows, to wit: "When the legal title to property, or a right in action, is in an executor, administrator, guardian, or other trustee, the time during which any statute of limitations runs against such trustee shall be computed against the person beneficially interested in such property or right in action, although such person may be under disability, and within the saving of any statute of limitations, and may be availed of in any suit or action by such person."

Since the enactment of above statute for first time as § 2694 of code of 1880, this court has only construed it four times to my knowledge, to wit: In Ellis v. McGee 63 Miss. 168; Weir v. Monahan, 67 Miss. 434-455; Barr v. Lewis, 71 Miss. 727; and Nelson v. Ratliff, 72 Miss. 656: In Ellis v. McGee the court held the statute of limitations is no defense because of the infancy of the ward to whom the money is due by decree, and that the case is governed by the code of 1871, as the bar is not complete by § 2694, code of 1880. In Nelson v. Ratliff the court held the trustee was barred, and hence also were the beneficiaries, notwithstanding the delinquency of the trustee in failing to protect their interests.

Weir v. Monahan was a suit by the minor children of Monahan by their guardian as next friend to recover a debt due them, and the court held they were not barred, because the right of action was not in the guardian, but in the minors. In Barr v. Lewis the court held in effect that the minor Lewis would have been barred had not his guardian died shortly before § 2694, code of 1880, became a law, and Campbell, C. J., in his opinion made no reference to Weir v. Monahan.

We respectfully submit that the construction placed in Weir v. Monahan upon § 2761, code of 1892, violates the spirit of said section, and the repose intended to be secured by it, is opposed to a very decided weight of authority from other states, and should be overruled. If mistaken in this, I earnestly contend the principle therein announced should be at least confined to suits to recover debts due minors, brought by their guardians as next friend, as in Weir v. Monahan, and not extended to cases where the right of action is clearly in the guardian to sue in his own name to recover possession of his ward's property or for injuries done thereto.

"In consequence of his right to the possession, the guardian may, and ought, to sue in his own name for any injury or trespass to the ward's property." I, Minor's Inst., page 439 of second edition, or 478 of third edition; see, also, 9 Enc. of Pl. and Prac., 932. "An infant's property is always held by a trustee. The infant cannot hold possession, or even sue for his property without the aid of a guardian." Fearn v. Shirley, 31 Miss. 304. In Keith v. Jolly, 26 Miss. 131, it was expressly held the guardian could sue in his own name to recover possession of his ward's property. See, also, Cocke v. Rucks, 34 Miss. 108.

3. The court should never have admitted the count of the vast number of stumps without an offer by plaintiffs to prove later they were cypress stumps, and were remains of trees removed and converted by defendant prior to January 18, 1881, and when plaintiffs rested without proving how many of the stumps counted were cypress ones, or when or by whom they were made or what number of cypress trees defendant removed before January 18, 1888, the court surely erred in overruling the motion to exclude the count of stumps, and in leaving this testimony before the jury to confuse and mislead them into the absurd verdict they found. Keirn v. Warfield, 60 Miss. 799, relied on by appellees, noted on quite a different state of facts from those here involved. The doctrine applicable to this case will be found in Mhoon v. Greenfield, 52 Miss. 434, and Bank v. Montgomery, 70 Ib., 550. See, also, Warren County v. Craig, 29 So. 821.

4. "The court erred in ordering, on motion of plaintiffs, the defendant to produce his cash book and ledgers, and permitting the plaintiffs over defendant's objection to read from these books the entries therein."

Before the entries from his books were introduced defendant had testified his books threw no light upon what cypress was removed from Black Creek tract, nor when removed, and that no separate account was kept with this tract, but one account designated "Swamp," or "Black Creek Swamp," embraced all the cypress from his various tracts in Black Creek Swamp. This evidence was fully corroborated by the books when produced in obedience to the court's order. While the books showed no cypress brought from Black Creek tract, they did show large numbers of trees brought generally from Black Creek Swamp country, and the action of the court in permitting the books to be read in evidence could have no other effect than to mislead and confuse the jury and prejudice them against the defendant.

5. We further earnestly and confidently insist defendant was entitled to a peremptory instruction on the merits, regardless of whether or not the administrators of Lizzie and Nash should have been joined. In actions for the possession of land the statute of limitation does not begin to run against the reversioner until death of life tenant, because the reversioner cannot bring a possessory action until death of life tenant. Where, however, trees are removed from the land, they become the personal property of reversioner, and his right of action accrues at once to recover the trees or their value, or for injury to his inheritance; hence the statute begins to run from the removal of the trees, and not from the death of the life tenant. Elliott v. Smith, 2 N.H. 430; Lane v. Thompson, 43 N.H. 320; Dorsey v. Moore, 100 N.C. 41, and notes to Allen v. DeGroodt, on pages 630, 632, and 635, and especially note at bottom of page 634 of 14 Am. St. Rep.

The cause of action in this case is joint, and therefore if any one of the plaintiffs was of age when the cause of action accrued, then all of the plaintiffs are barred. Haley v. Taylor, 77 Miss. 867; Stauffer v. Mortgage Co., 77 Miss. 127; Traweek v. Kelly, 60 Miss. 652. See, also, Sullivan v. Davis, 29 Kan. 28.

In sixth instruction the court erroneously told the jury "It is not incumbent upon the plantiffs to prove the precise number of trees cut and removed from said plantation...