Shelby Iron Co. v. Ridley

• Decision Date: 15 January 1903
• Citation: 135 Ala. 513,33 So. 331
• Parties: SHELBY IRON CO. v. RIDLEY.
• Court: Alabama Supreme Court

33 So. 331

135 Ala. 513

SHELBY IRON CO. v. RIDLEY.

Supreme Court of Alabama

January 15, 1903

Appeal from city court of Talladega; G. K. Miller, Judge.

This action was brought by the Shelby Iron Company against J. T Ridley to recover $900 for willfully and knowingly, and without the consent of the plaintiff, cutting down or destroying or taking away 90 pine, oak, poplar, walnut, and hickory trees and saplings, in violation of section 4137 of the Code of 1896. From an order granting a new trial after verdict and judgment for plaintiff, plaintiff appeals. Affirmed.

Knox Dixon & Burr, for appellant.

Dryer &amp Webb, for appellee.

TYSON J.

This action was brought to recover the statutory penalty imposed by sections 4137 and 4138 of the Code. To successfully maintain the suit it was incumbent upon the plaintiff to show a legal title to the trees or saplings, and that defendant cut or carried them away knowingly, willfully, and without his consent. White v. Farris, 124 Ala. 461, 27 So 259; Clifton Iron Co. v. Jemison Lumber Co., 108 Ala. 581, 18 So. 554; Gravlee v. Williams, 112 Ala. 539, 20 So. 952. Nor is it of any consequence that the plaintiff was in possession of the trees, if it has not the legal estate in them. Allison v. Little, 93 Ala. 150, 9 So. 388; Coal Co. v. Glover, 101 Ala. 289, 13 So. 478; Gravlee v. Williams, supra. The plaintiff upon the trial introduced in evidence a deed from one Thurman of the trees, who claims to have acquired his title from the defendant to a portion of the land from which it is alleged they were cut or removed. The defendant offered to show that his signature to the deed which he executed to Thurman was obtained by fraud. The court, on the objection of the plaintiff, declined to allow the evidence to be introduced. The trial resulted in a verdict and judgment for the plaintiff. On motion for new trial, assigning 27 grounds, the verdict and judgment were set aside because of the rulings of the court in refusing to allow the defendant to make the proof above indicated. From the granting of the motion this appeal is prosecuted by the plaintiff.

It is thoroughly well settled by this court that if a party named as grantee in a deed, by misrepresentation of what the paper contains, or other fraudulent means, obtains the grantor's signature to a paper he did not intend to sign and did not know he was signing, this is fraud in the execution of the instrument, which is available in a court of law. Foster v. Johnson, 70 Ala. 249; Davis v. Snider, Id., 315, and cases cited. This principle does not seem to be controverted. The contention is that it has no application, and cannot be invoked by defendant against the plaintiff, because it is a bona fide purchaser for value without notice. If that status had been...