Reed v. King

• Decision Date: 17 December 1889
• Citation: 89 Ky. 388,12 S.W. 772
• Parties: REED v. KING.
• Court: Kentucky Court of Appeals

12 S.W. 772

89 Ky. 388

REED v. KING.

Court of Appeals of Kentucky.

December 17, 1889

Appeal from circuit court, Casey county.

"To be officially reported."

Action by John M. Reed against Benjamin King to recover certain headings purchased of John W. Reed, nephew of plaintiff. Judgment for defendant, and plaintiff appeals.

Stone &amp Stone and Hill & Alcorn, for appellant.

R. J Breckinridge and J. B. McFerran, for appellee.

PRYOR J.

In this action is involved the recovery of the possession of 40,000 pieces of timber, called "headings," made out of timber standing upon the ground alleged to belong to the plaintiff. The timber was taken from the defendant under an order of delivery and delivered to the plaintiff. The right of property was asserted by the defendant under a purchase made from one William Reed and his son; and, on the trial the verdict being for the defendant, he was allowed the value of the headings, $600, and a judgment rendered.

This judgment is not only informal, but erroneous; for the reason that the Civil Code, (Carroll,) § 388, requires the judgment to be in the alternative, with the right on the part of the plaintiff to return the property or pay its value. It is plain that John W. Reed, the son of William Reed, was either a trespasser when he cut this timber, or the right to its use and appropriation, as well as the land itself, belonged to the father. That the defendant was innocent of the want of title in John W. Reed, considering the latter to have been a trespasser, is plain from the facts; still his innocence of the wrong cannot vest him with title as against the lawful owner, who has been deprived of his title by the trespasser. There is testimony in the case showing that the plaintiff John M. Reed, and the witness William Reed are brothers, and that this land, from which the timber was cut, descended to them, and to their other brothers and sisters, from their father. William Reed sold his undivided interest in this land to his brother John; and those interested with John, being the absolute owners, as they claim, brought this action. A conveyance was made by William to John, and recorded in the county where the land lies; but William testifies that he never surrendered the possession of the land, and only made the deed in secret trust to his brother, to save his interest from being sold to pay his debts. John W., who sold the headings to the defendant, says that his father was in the possession of his interest at the time he cut and sold the timber; and, if this secret trust is established as stated...