Opinion
1 Div. 993.
April 18, 1918. On Rehearing, November 14, 1918.
Appeal from Circuit Court, Monroe County; A. B. Foster, Judge.
Gordon Edington, of Mobile, and Hare Jones, of Monroeville, for appellants.
Barnett, Bugg Lee, of Monroeville, and H. H. McClelland and Stevens, McCorvey, McLeod, all of Mobile, for appellee.
The fact that a count charging conversion of chattels after a wrongful taking does not make it any the less a count for conversion, and it is not subject to a demurrer as for joining trespass de bonis and trover in the same count.
A wrongful taking is of course a form of conversion, which, being charged as a conversion, waives the trespass, and becomes a count in trover only. The demurrers to counts 2 and 3 were properly overruled.
The deed from the First National Bank of Pensacola to plaintiff was properly admitted in evidence. Although the premises describe the grantor as the First National Bank of Pensacola, a corporation, etc., and the signature is simply, "First National Bank, by F. C. Brent, President," the corporate seal attached reads, "First National Bank, Pensacola, Fla."; the testimonial clause declares that "the First National Bank of Pensacola has caused these presents to be executed"; and the acknowledgment shows that Brent executed the deed for, and as president of, the First National Bank of Pensacola. The variance in the signature, if it can be regarded as a variance, is fully cured, and the identity of the grantor made clear beyond any doubt, by the deed itself.
On cross-examination, defendants' witness Betts testified, with respect to the tract claimed by plaintiff in fee simple, that plaintiff's remote grantor, one Farrar, "went into possession," and, after him, his grantee, one Rothschild, "went into possession." On rebuttal examination he stated that Farrar did not go on the land, or do anything on it, and that in saying that Farrar went into possession, he merely meant that he got a deed to it. Defendants thereupon moved for the exclusion of the witness' statement that "Farrar went into possession," on the ground that it was but an opinion based on a fact which did not support it. It may be that the witness' statement should have been disregarded as evidence of Farrar's prior possession, and perhaps an instruction to the jury to that effect would have been proper. But it would certainly have been improper to exclude the statement entirely, elicited as it was on the cross-examination of the movant's own witness, and affecting, it may be, both his credibility and his intelligence. We think the motion to exclude was properly overruled.
The statement of defendants' witness Rothschild that he rented this tract to one Betts, after receiving a deed to it, was the statement of a fact within his own knowledge, and was not objected to when made. His statement on cross-examination that he never did see the land, and did not know whether Betts was ever on the land or not, did not render his first statement subject to the objection that the witness "had no personal knowledge of the matters testified about," and the motion to exclude all of his testimony on that ground was properly overruled, even though some of it may have been thus objectionable.
Whether or not plaintiff was the prima facie owner of this tract in fee simple by virtue of the prior possession of any one of the grantors in his chain of title was a question of fact for the jury, and the general charge for defendants under the first count was properly refused.
The question of primary importance in the case is with respect to those portions of the timber in suit, as to which, by the express limitations of plaintiff's deeds, his right to enter and remove had been lost before the conversion complained of. In other words, did plaintiff, as to such standing timber, have such a right to its immediate possession when cut as will support an action in trover against a subsequent claimant who enters upon the land and cuts and removes the timber under color of title and claim of right thereto, the seisin of the soil remaining meanwhile in the general owner and common grantor of the rival claimants of the timber?
It is elementary law that the right to maintain the action of trover depends upon the plaintiff's possession, or right to the immediate possession, of the chattel converted, at the moment of conversion. If the chattel was previously a part of the freehold, and was owned by the plaintiff as realty, being subject to his lawful removal by entering and severing from the soil, its severance and removal by the defendant would be a conversion for which trover would lie, provided the defendant was not in possession of the timber by virtue of his possessory occupation of the land; and, provided the plaintiff had not forfeited his right to take possession of it by entering upon the land and removing it. Creagh v. Bass, 190 Ala. 135, 67 So. 288; Christopher v. C.-A. Lumber Co., 175 Ala. 484, 57 So. 837.
In the Christopher Case we held that there could be no actual possession of standing timber apart from the possession of the land itself, and that, in the absence of possession of the land, the owner of standing timber can take actual possession of it only by entering and removing it. In the Creagh Case we held, in effect, that merely an entering on the land and cutting of the timber by a wrongful claimant — a transitory occupation without an actual seisin — though under a timber deed from the owner of the land, was not such an adverse possession of the timber at the time of its severance as would defeat an action in trover by a timber grantee under a former deed, for the conversion of the timber. See, also, Aldrich Mining Co. v. Pearce, 169 Ala. 161, 168, 52 So. 911, Ann. Cas. 1912B, 288.
In the instant case as to all but 160 acres out of 640, plaintiff had lost the right to enter and cut and remove the timber, by reason of the lapse of the stipulated time within which his right could be exercised, though theoretically it remained the owner of the timber. Ward v. Moore, 180 Ala. 403, 61 So. 303; Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 465, 16 So. 632, 27 L.R.A. 434, 53 Am. St. Rep. 73.
If its agent should have entered for the purpose of removing the timber, it would have been liable to an action of trespass quare clausum fregit, though the value of the trees would be no part of the recoverable damages. Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776; Goodson v. Stewart, 154 Ala. 660, 46 So. 239.
It is clear, therefore, that plaintiff, being without any right to enter and possess himself of his property, the standing timber, and therefore without any possessory remedy of any sort against the owner of the land, or his grantee, was not in any legal sense entitled to the possession of the timber at the time it was by defendants' wrongful conduct converted into personal property. And certainly the severance of the timber by cutting did not revive plaintiff's lost right to enter and take possession of the timber, nor substitute for the lost right to sue in ejectment for the timber a new right to sue in detinue for the logs. In short, plaintiff's constructive possession of the standing timber ceased upon the termination of his right to enter and take it.
The situation is, it must be confessed, rather anomalous, but we are clear that the rules of law and judicial logic must deny to plaintiff the right to maintain an action in the form of trover under the circumstances here shown.
The instructions given to the jury were not in accord with this conclusion, and the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.
On Rehearing.
Application for rehearing overruled.
MAYFIELD, GARDNER, and THOMAS, JJ., concur.
ANDERSON, C. J., McCLELLAN and SAYRE, JJ., dissent.