Long v. Nadawah Lumber Co.

• Decision Date: 18 April 1918
• Docket Number: 1 Div. 993
• Citation: 81 So. 25,202 Ala. 523
• Parties: LONG et al. v. NADAWAH LUMBER CO.
• Court: Alabama Supreme Court

81 So. 25

202 Ala. 523

LONG et al. v. NADAWAH LUMBER CO.

1 Div. 993

Supreme Court of Alabama

April 18, 1918

On Rehearing, November 14, 1918

Appeal from Circuit Court, Monroe County; A.B. Foster, Judge.

Action by the Nadawah Lumber Company against V.W. Long and T.A Moore, for conversion of timber.Judgment for plaintiff, and defendants appeal.Reversed and remanded.

Gordon & Edington, of Mobile, and Hare & Jones, of Monroeville, for appellants.

Barnett Bugg & Lee, of Monroeville, and H.H. McClelland and Stevens McCorvey, & McLeod, all of Mobile, for appellee.

SOMERVILLE J.

The fact that a count charging conversion of chattels after a wrongful taking does not make it any the less a count for conversion, and it is not subject to a demurrer as for joining trespass de bonis and trover in the same count.

A wrongful taking is of course a form of conversion, which, being charged as a conversion, waives the trespass, and becomes a count in trover only.The demurrers to counts 2 and 3 were properly overruled.

The deed from the First National Bank of Pensacola to plaintiff was properly admitted in evidence.Although the premises describe the grantor as the First National Bank of Pensacola, a corporation, etc., and the signature is simply, "First National Bank, by F.C. Brent, President," the corporate seal attached reads, "First National Bank, Pensacola, Fla."; the testimonial clause declares that "the First National Bank of Pensacola has caused these presents to be executed"; and the acknowledgment shows that Brent executed the deed for, and as president of, the First National Bank of Pensacola.The variance in the signature, if it can be regarded as a variance, is fully cured, and the identity of the grantor made clear beyond any doubt, by the deed itself.

On cross-examination, defendants' witness Betts testified, with respect to the tract claimed by plaintiff in fee simple, that plaintiff's remote grantor, one Farrar, "went into possession," and, after him, his grantee, one Rothschild, "went into possession."On rebuttal examination he stated that Farrar did not go on the land, or do anything on it, and that in saying that Farrar went into possession, he merely meant that he got a deed to it.Defendants thereupon moved for the exclusion of the witness' statement that "Farrar went into possession," on the ground that it was but an opinion based on a fact which did not support it.It may be that the witness' statement should have been disregarded as evidence of Farrar's prior possession, and perhaps an instruction to the jury to that effect would have been proper.But it would certainly have been improper to exclude the statement entirely, elicited as it was on the cross-examination of the movant's own witness, and affecting, it may be, both his credibility and his intelligence.We think the motion to exclude was properly overruled.

The statement of defendants' witness Rothschild that he rented this tract to one Betts, after receiving a deed to it, was the statement of a fact within his own knowledge, and was not objected to when made.His statement on cross-examination that he never did see the land, and did not know whether Betts was ever on the land or not, did not render his first statement subject to the objection that the witness "had no personal knowledge of the matters testified about," and the motion to exclude all of his testimony on that ground was properly overruled, even though some of it may have been thus objectionable.

Whether or not plaintiff was the prima facie owner of this tract in fee simple by virtue of the prior possession of any one of the grantors in his chain of title was a question of fact for the jury, and the general charge for defendants under the first count was properly refused.

The question of primary importance in the case is with respect to those portions of the timber in suit, as to which, by the express limitations of plaintiff's deeds, his right to enter and remove had been lost before the conversion complained of.In other words, did plaintiff, as to such standing timber, have such a right to its immediate possession when cut as will support an action in trover against a subsequent claimant who enters upon the land and cuts...