Teasley v. Roberson

• Decision Date: 16 January 1928
• Docket Number: 26672
• Citation: 149 Miss. 188,115 So. 211
• Court: Mississippi Supreme Court
• Parties: TEASLEY et al. v. ROBERSON et ux. [*]

115 So. 211

149 Miss. 188

TEASLEY et al. v. ROBERSON et ux. ^[*]

No. 26672

Supreme Court of Mississippi

January 16, 1928

Division A

1. HUSBAND AND WIFE. Evidence jailing to show defendant's husband was doing business with her property, on which her liability depended, directed verdict was proper (Hemingway's Code 1927, section 2189).

Where it was sought to hold a defendant on the theory that her husband was doing business with her property, so that, under Code 1906, section 2521 (Hemingway's Code 1927, section 2189), he was to be considered her agent, and the evidence wholly failed to show he was doing so, direction of verdict for her was proper.

2 BOUNDARIES. Defendant, as regards liability for cutting timber, held not entitled to have old line treated as correct line because plaintiffs mistakenly pointed it out as such.

Though a line established more than ten years before had mistakenly been treated by plaintiffs and adjoining landowners as the correct dividing line, and plaintiffs, erroneously supposing it to be the true line, pointed it out as the correct line to defendant, who cut the timber up to it, defendant is not entitled to have it treated as the correct line, thus relieving him of liability for cutting trees on plaintiffs' land, there being no question of acquiring title by adverse possession up to the line.

3 TRESPASS. One is liable for value of timber cut on land of another, though under mistake of fact and in good faith.

That defendant cut timber on plaintiffs' land in good faith and under a mistake of fact as to the boundary line, does not relieve him of liability for the actual value thereof.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Simpson county. HON. W. L. CRANFORD, Judge.

Action by Mrs. Fannie Teasley and others against J. M. Roberson and wife. Judgment for defendants, and plaintiffs appeal. Affirmed in part, and reversed in part.

Judgment affirmed in part and reversed in part.

A. M. Edwards, for appellant.

The first assignment of error is that the court erred in granting a peremptory instruction for the defendant, Mrs. Allie Roberson. We submit that this assignment of error is well taken under section 2055 of Hemingway's Code. The facts in this case show most conclusively that in the year 1925 at the time said timber was cut and removed from plaintiffs' land that the said defendant J. M. Roberson was carrying on the business of cutting, hauling, shipping, buying and selling logs and timbers with mules, wagons, trucks and other means that belonged to his wife, and that said business was done in his own name and on his own account. Gross et al. v. Pigg, 73 Miss. 286; Porter et al. v. Staten, 64 Miss. 421.

The third assignment of error is that the court erred in granting instructions numbers I and 3 for the defendant. Instruction number 1 fails to properly announce the law in this case. According to this instruction a person might have forty or fifty trees cut on his land, but the proof failed to show exactly the number of trees cut, he could not recover for the statutory penalty for any of the trees so cut. Instruction number 3 is erroneous for the reason it has not sufficient evidence upon which to rest.

The fourth assignment of error, is that the court erred in refusing to giant instructions numbers 4, 5 and 6 for the plaintiffs. Defendant is liable under the law to plaintiffs for the actual value of the timber shown to have been cut and removed from their land, though it might have been cut.

Instruction number 5 should have been given for the reason it was shown without contradiction that the said line established by the county surveyor was correct.

The court committed grave error in refusing to grant instruction number 6. If it was shown from the testimony in the case that the defendant cut and removed any of the timber sued for in the declaration from the lands of plaintiffs, then plaintiffs would be entitled under the law to judgment in a sum equal to the value of such timber. The fact that Luther Teasley, one of the plaintiffs, might have pointed out the supposed boundary line between his land and other land to the defendant, J. M. Roberson, did not give defendant a legal right to cut and remove said timber, and transfer the title of same to the defendant. Evans v. Miller, 58 Miss. 124; Crisler v. Ott, 72 Miss. 166; Bond v. Griffin, 74 Miss. 599, 22 So. 187; 26 R. C. L., pages 939 and 940.

Hilton & Hilton, for appellees.

The first question raised by counsel is the construction of section 2055 of Hemingway's Code. This statute specifically states that it is restrictions as to contracts between husband and wife. It has no application here because it is not a suit by appellant on a contract, in which he sold appellee Roberson timber when his wife was the undisclosed principal. They are suing on a tort and not a contract. They are suing for the statutory penalty and incidentally actual damages arising by reason of the tort. Cook v. Ligon, 54 Miss. 368, says that the husband is liable only as her agent for debts contracted for by him as her agent. As a matter of law the very proceedings in this suit precludes any such interpretation.

The third assignment of error, is that the court erred in granting the instructions for the defendant. Instruction number 1 was drawn to require the plaintiff to prove the actual number of trees cut and the kind of trees cut and in arriving at this conclusion, speculation, conjecture or guessing should not be indulged in. It is to be remembered that this is a suit for statutory penalty and actual damages flowing from it. To support this instruction we cite the case of Rowan v. Beattie, 130 Miss. 449, 94 So. 232.

Other instructions complained of are drawn on the notice and special plea filed by defendant, that the land line that Roberson cut to was the established land line for more than ten years; this old land line between the Barwick and Teasley line had been established there more than ten years and so recognized as the correct line and so dealt with by the adjacent owners for ten years, that it became the correct land line in so far as the litigants are concerned. And that is even true if the county surveyor in 1926 established a different line. To support this instruction we call the court's attention to the testimony given by all the witnesses for plaintiff, in which they admitted that there had been an old established line for more than twenty years and Mrs. Teasley knew this old line and her son had known where this old land line was and he had been looking after the land for his mother. And the testimony further shows that he pointed out this old line to Roberson and claimed that it had been there for more than twenty years and under the settled rule adverse possession would apply and the instruction was proper.

Counsel complains of the court for refusing Instruction number 4. Instruction number 1 covers any complaint he makes on refusing instruction number 4. The instruction is bad for another reason. It should have had the further stipulation that the mistake was not caused by such wilful or overt act of any one of the plaintiffs to purposely mislead the defendant.

Evans v. Miller, 58 Miss. 120, cited by counsel, shows that when the line was pointed out by Evans that it was honestly done, believing it to be a true line, but by a survey it was shown not to be the true line. The case at bar is silent as to the motive of Teasley in pointing out this line, and the record is silent as to whether and when Teasley was advised as to whether the line he pointed out was correct or not. In other words, the rule of law is that a person cannot take advantage of his own mistake until he discloses to the court that it was an honest mistake and not a wilful one.

Counsel's instruction is wrong because of the rule laid down in the Miller case, supra. We call the court's attention to the case of Hicks v. Miss. Lbr. Co., 95 Miss. 353, 48 So. 64, which holds that a verbal license to enter land and cut timber thereon is a defense to an action for the statutory penalty.

When all the instructions are considered together plaintiff below got all he was entitled to and as a matter of fact more.

OPINION

COOK, J.

The appellants, Mrs. Fannie Teasley and her children, heirs at law of J. O. Teasley, deceased, instituted this suit against J. M. Roberson and his wife, Mrs. Allie Roberson, seeking to recover damages for the cutting of trees from the northwest quarter of the northeast quarter of section 20, township 2 north, range 3 east, in Simpson county. The declaration is in two counts; the first count being for the statutory penalty and the second for the actual value of the trees alleged to have been cut and removed. There was a verdict and judgment for the defendants, from...