Smith v. Forbes , 89 Miss. 141 ( 1906 )

Calhoon, J.,

delivered the opinion of the court.

Smith’s declaration was in trespass for cutting and appropriating trees, claiming the statutory penalty only. The defense set up was that Smith was not in possession of the land at the time of, and for some time after, the alleged trespass, and was not the legal or equitable owner in fee. The defense further shows that Forbes had executed a conveyance of the land to Smith and at the same time had taken a trust conveyance from Smith to secure the purchase price of $3,000 in six annual payments, providing that default as to any one of them should make all due, and in such case Smith should pay rent; that Forbes had the two deeds recorded, and paid for recording both, and that this was the only delivery ever made of either; that, when these deeds were made, Forbes was occupying the land,, “and was to continue in occupancy thereof until his crop was gathered, or until the end of the year 1905, if necessary, or if he should so desire.” However, no such reservation of right to occupy appears in the deed itself. This deed is dated July 1, 1905, and the testimony shows that the alleged trespasses commenced subsequently, and in August of that year, and that seventy-eight trees were cut, converted into wood, and hauled to town by Forbes through his employes. The deed shows that payments were not to begin until November 15, 1906. Smith did not take actual possession of the land until November, 1905, and paid no part of the purchase money when the deeds were executed, but has made no default in payment under the terms of the deed. There was an oral understanding, as Smith testified, that Forbes should retain possession until November 15, 1905 ; Forbes says until January 1, 1906.

Forbes testified that he “felt he had the right to cut until he moved to town, and that he cut and hauled only firewood for the new home he was to move to.” The testimony of Forbes himself shows his liability. To hold otherwise would be a judicial repeal of section 4412 of the annotated code of 1892. He knowingly cut the trees from the land of Smith, to whom he himself had conveyed it. He cannot be heard to say that he “thought,” or “felt,” he had the right to cut. No case in our books warrants this. Neither can he be shielded by his misconception of section 2449, annotated code of 1892, that Smith, the grantor in the trust deed, cannot sue him, the beneficiary, in the trust deed. Under that section the mortgageor is the owner against the world, and is the owner as well against the beneficiary and the trustee before condition broken.

Reversed and remanded.