Avera v. Williams , 81 Miss. 714 ( 1902 )

Calhoon, J.,

delivered the opinion of the court.

On September 11, 1901, appellee filed his declaration in trespass, charging that appellant forcibly and maliciously tore down and removed a storehouse of plaintiff from land of which he was the owner, in actual possession, and removed the same to. land belonging to defendant, and converted it to his own use. The case went to trial on the plea of not guilty — the only plea filed in the case — and Williams recovered damages, both actual and exemplary. From Avera’s own statement as a witness in his own behalf, his act was a grave trespass, ■ in contempt of law.; and if Williams was entitled to any recovery, punitive damages were a matter of course, and the assessment by the jury very lenient indeed.

Several persons bearing the name of Av.era appear in this record, but the appellant, W. W. Avera, is not in privity of estate with any of them, except upon a claim of his to be hereafter noticed. Formerly one Samuel W. Avera was the owner of the land on which the storehouse was subsequently erected, and erected by him — so he says ; the same being a part of a tract he occupied as his family homestead. On August 1, 1891 — more than ten years before these proceedings — he" conveyed to one Lawrence A. Avera, but his wife did not join in the conveyance. This conveyance was therefore void, but nevertheless was available as color of title to a claim of bar by the statute of limitations on adverse possession, and good as against strangers. It is, besides, distinctly shown in this record that Samuel W. Avera and his wife havé never set up any claim since the deed was made, and urge none now, but repudiate any interest in it. They moved to another place, and acquired at once another homestead, on which they now livé. The grantee, Lawrence A. Avera, with his wife, took possession and occupied the land as a homestead:; and so Lawrence, to say the least of it, was in under color of title. While so in possession the house which is the subject of this trespass was used as a country store. On December 8, 1896, this Lawrence A. Avera conveyed the land to Elisha Mohler, the _ father of his wife, Carrie L. Avera; but Carrie L. did not join her husband in that conveyance, and so it was void, but still was color of title, and good -as against strangers. Mr. Mohler subsequently conveyed the land to his daughter, Carrie L. Avera, and she on January 4, 1901, conveyed it to appellee, D. R. Williams, who was in possession under this title, whether it be good or bad, when the trespass was committed. Of' course, in order to relieve himself of the uncomfortable posture of a mere' stranger, appellant had to connect himself in some way with the title! In this effort he shows by Lawrence A. Avera that he, Lawrence A., and one Banks built the storehouse, and commenced and carried on in it a mercantile, business under the firm name of Avera & Banks, and that he made a deed, for the recited consideration of $1, to the firm of Avera & Banks, which was never recorded, but which he kept in the firm safe, and which has “become misplaced,” and cannot be found on search, conveying a little plot on which the storehouse stood. He says he ‘ ‘ showed ’ ’ this deed to Banks, and ‘ ‘ he expressed himself satisfied. ’ ’ It must be recalled here — what has been said before — that he subsequently conveyed the whole tract to Mohler without reservation, and: Mohler afterwards conveyed it to his daughter, the wife of the witness, who conveyed it to appellee, Williams, which sale to Williams this witness says he negotiated. This witness also testifies that Banks sold his interest in the mercantile business to Mrs. Kountz, and that, by divers transactions, appellant, W. W. Avera, became the owner of a twenty-one-thirty-sixth interest in that business, which had ceased to be carried on before appellee, Williams, bought the land. Appellant, as a witness in his own behalf, produces two bills of sale to interests in the partnership business (not land), and unrecorded, and undertakes to show that he had a twenty-one-thirty-sixth interest in the house because of the matters above described. It appears that the witness, while Mr. Williams was absent .as a, juror at the county town, deliberately went to the house with' workmen, went in at the back door (the front being locked), tore it down, took it bodily to his own land, and erected it there, without even consulting Williams on the subject. He says he did not care whether Mr. Williams was there or not; his purpose being to take the house, and leave Williams the land. Even if appellant owned a twenty-one-thirty-sixth interest, such removal .and appropriation of the house made him liable. 17 Am. & Eng. Ency. of Law, 700, and note 5.

.. Even if Mr. Banks had any interest in the storehouse and lot in virtue of the deed made and put in the safe as above set forth, his nonjoinder could not be availed of in the absence of written notice filed with the plea. Code, § 664.

Affirmed.

Terrall, J., took no part in this decision.