Smith v. Forbes

• Decision Date: 18 December 1906
• Court: Mississippi Supreme Court
• Parties: PHILANDER L. SMITH v. JEFFERSON D. FORBES

42 So. 382

89 Miss. 141

PHILANDER L. SMITH v. JEFFERSON D. FORBES

Supreme Court of Mississippi

December 18, 1906

November 1906

FROM the circuit court of Prentiss county, HON. WILLIAM D ANDERSON, Special Judge.

Smith the appellant, was plaintiff in the court below, and Forbes the appellee, was defendant there. From a judgment in favor of defendant the plaintiff appealed to the supreme court.

The suit was a demand for the statutory penalty under Code 1982 § 4412, for cutting trees. The defendant admitted cutting the trees, but, setting up a mortgage on the land from which they were cut, to secure the purchase money for which he had sold it, claimed that, under Code 1892, § 2449, providing that before sale under mortgage or trust-deed, the mortgagor or grantor shall be deemed the owner of the legal title except as against the mortgagee, plaintiff could not assert title to the property as against him. The opinion of the court states the additional facts.

Reversed and remanded.

E. C. Sharp, for appellant.

The appellant, Smith, in July, 1905, purchased from the appellee, Forbes, the land from which the timber was cut, and executed to Forbes, in consideration therefor, his six promissory notes, aggregating the purchase price. On the same day Smith executed a trust-deed on the land in Forbes' favor to secure the payment of the notes mentioned. Forbes was to remain in possession of the land until November 15, 1905, according to Smith's testimony; or until January 1, 1906, according to Forbes' testimony. Immediately after the sale of the land to Smith, Forbes began to cut timber from it. Forbes says he cut it for firewood, and that he hauled it to Rienzi, Mississippi; he admits that he cut the timber without the knowledge or consent of Smith. The cutting was certainly without due care and caution on the part of Forbes, and was willful. While he admits that he cut the timber without knowledge or consent of Smith, Forbes' only excuses for his actions are that he sold to Smith "on time," and that as he had frequently sold land on time without cash consideration before this, and had to take the land back when the time of payment arrived and payment was not made, he presumed such would be the case with Smith. He says he "thought" he had a right to cut timber on the land as long as he remained on or near it, "as it had not been paid for." In justification of his cutting he states that he did not believe Smith would ever pay for the land, and he accordingly didn't feel as though he had actually sold it, although he had conveyed it to Smith by warranty deed, and before possibility of default in payment of the notes.

If the excuses put up by Forbes will justify trespasses of this kind, a man who is unable to pay cash for land cannot safely purchase real estate. The vendor holding notes for the purchase money of land may, according to appellee's logic, cut from it such timber as he sees fit, remove the same without accounting therefor to the owner, and then excuse his actions and escape a just penalty by showing that while he cut the timber, yet he was living on or near the land from which he cut it, and the owner, to whom he had just sold, had not paid for the land in cash, he had a legal right to cut the timber, for he did not feel that the sale was real or that the vendee would pay the purchase price.

We emphasize the fact that Forbes sold the land to Smith under general warranty deed, and Smith had not made default in any of the deferred payments or in any way breached the conditions of sale when the trees were cut.

This case is different from Therrell v. Ellis, 83 Miss. 494. referred to by counsel for appellee, for in that case the ownership of plaintiff to the land was not established by proof, nor was there any agency shown. There was no certainty that the defendant, Ellis, cut the timber on Therrell's land. Moreover, it was shown that the defendant, Ellis, had taken every possible precaution to prevent the commission of a trespass, and he denied that he cut any of the trees on Therrell's land. But here Forbes well knew the boundaries of the property he conveyed to Smith; and with full knowledge of his own deed cut the timber, without inquiry to ascertain his own or Smith's rights in the premises.

A trespasser cannot escape liability on the plea that he didn't know plaintiff was the owner; he must have been reasonably diligent to ascertain. Mhoon v. Greenfield, 52 Miss. 434. By his warranty deed, Forbes has estopped himself from asserting title adverse to Smith. The court accordingly erred in not granting peremptory instruction in plaintiff's favor; for defendant in his testimony admitted the facts of which the peremptory instruction should have been predicated. It is contended by counsel for appellee that, however other things may be, appellee had a right to use such timber as might be necessary for his use as long as he remained in possession of the land; and that he had a right to remain in possession until January, 1906. Appellee, himself, however, says that he was to give up possession on November 1, 1905, if possible. But we say that even if appellee did have right to possession until January, 1906, he forfeited his rights, if any, to cut timber, when he removed from the premises. Had he remained thereon until January he would possibly have had such right to use timber necessary to his purposes, but his removing therefrom ended such right. When Forbes left the land, he removed enough timber therefrom to furnish him in his new habitation with sufficient fire-wood for the whole winter. Keirn v. Warfield, 60 Miss. 799, governs this case. In fact, this case is stronger than the Keirn case, for no conflict in testimony exists here as existed there.

It is immaterial what size of trees, if trees, were cut. Our suit is for statutory penalty; and Forbes was liable as a result of his cutting the trees, even though they may have been practically worthless. Clay v. Telegraph Co.,...