Newlon v. Reitz
| Decision Date | 15 September 1888 |
| Parties | NEWLON v. REITZ et al. |
| Court | West Virginia Supreme Court |
Submitted June 8, 1888.
Syllabus by the Court.
A count in a declaration for trespass on real estate that alleges that "the defendants cut and removed all the timber from the land, including oak, poplar, pine, walnut, etc., of the value of $3,000," without specifying the number and value of each kind of trees, is sufficient.
Where a count alleges that before a judicial sale and before its confirmation a party cut and destroyed timber on the land purchased, the purchaser so alleging such matter shows no right of action.
Where there is a count in a declaration which contains matter which will sustain the action, and also matter upon which no recovery can be had, and there is a demurrer to the whole count, the demurrer must be overruled; but if the good and bad in the count are divisible there should be a demurrer to such part of the count as sets up matter upon which there could be no legal recovery.
Error to circuit court, Ritchie county.
R. S Blair, for plaintiff in error.
T. E Davis, for defendants in error.
JOHNSON P.
This is an action of trespass on the case brought in 1887 in the circuit court of Ritchie county by James B. Newlon against Lewis P. Reitz, Frederick W. Reitz, John W Martin, Thomas G Martin, George N. Martin, and Thomas G. Davis, to recover for certain timber cut on and taken from the land of the plaintiff. There are two counts in the declaration. The first alleges in substance that on the ___ day ___, 1884, plaintiff was the owner in fee and possessed of a certain tract of about 400 acres of land in said county, describing it, and being so seized and possessed, the said defendants on the ___ day of ___, 1885, and divers other times from then until the commencement of the action, unlawfully, knowingly, and willfully did enter on said land, and unlawfully, etc., from time to time and from day to day, did cut down, destroy, saw remove, and carry away all the valuable timber of every kind and description, including oak, poplar, pine, walnut, etc., growing on said land, and which was of the value of at least $3,000, and did also erect a saw-mill and long tram-road upon, over, and through said land, etc., to the plaintiff's damage $5,000. The second count alleges in substance that one Granville E. Jarvis was the owner in fee of said tract of land, and was largely in debt; and a suit in behalf of creditors was brought to subject said land to the payment of his debts, and a decree entered in said suit on the 18th day of December to sell said land, and said land was, under said decree, on the 20th day of March, 1884, sold, and the defendant Thomas E. Davis became the purchaser at the price of $2,025, and the plaintiff, being a large creditor of said Jarvis, and believing said land very valuable on account of the timber thereon, offered an upset bid of $3,025, and resisted the confirmation of the sale to Davis; that said bid was accepted by the court, and the land ordered resold by the court, and the commissioner again offered said tract for sale on the 20th of January, 1886, when it was sold to the plaintiff at his bid of $3,025; that said last sale was confirmed to the plaintiff on the 16th day of March, 1886, and a deed was ordered to be made to plaintiff, which was afterwards executed; that Davis appealed from said decree of confirmation, which was, on the 13th day of November, 1886, affirmed by the supreme court of appeals; that plaintiff purchased said land, believing it to be in the...
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