Lewis v. Myer , 116 Miss. 454 ( 1917 )

Cook, P. J.,

delivered the opinion of the court.

This case was first instituted in the justice’s court, the same being a suit to recover on a check for sixty-five dollars, executed by I. S. Lewis on March 10, 1916, and payable to W. B. Burns, or order, and indorsed as follows:

“Pay to the order of Joseph Myer without recourse. W. B. Bums.” ,

The' suit was dismissed in the justice’s court, and Joseph Myer appealed to the circuit court, where the following plea in this cause was filed:

“Comes the defendant in the above and foregoing cause, and for plea in this behalf says that the defendant in this cause did" give his certain check as alleged in the declaration and for the amount as therein stated, as a compromise and settlement of a certain claim taken up with him by the attorney for the plaintiff in this cause, and the defendant also admits that he requested the bank upon which this check was drawn not to pay the same, but defendant further says in this, his plea to the declaration filed, that the plaintiff in this cause ought not to have and recover the amount sued for, beeausé the defendant had the right under the law, not to pay said check, and the right to give instructions to the bank not to honor the same; that the check was given, and the consideration for the same was that defendant had cut certain timber on sixteenth section land of section 16, township 4, range 6 east, in Smith county, Miss., which said lands were owned, or the leasehold interest therein was owned and claimed, by said plaintiff for the unexpired term of the lease thereon at the time this check was given, and that the check given therefor was supported by an illegal consideration in this, to wit, that the plaintiff had no such right to the timber on said land as to entitle the said plaintiff to recover therefor, for any trespass or otherwise but the only party who could recover for said timber was the county of Smith, plaintiff not having bought the timber from the board of supervisors, and there being plenty of timber left for estovers, in which the title to said timber vested, and who was the only party entitled to recover therefor, and this the defendant is ready to verify. ’ ’

A demurrer was filed to this plea, setting forth that the special plea is insufficient in law; that said plea presented no defense to the cause of action herein. The court sustained the demurrer, and the defendant in the court below, appellant here, declined to plead further, and judgment was rendered in favor of the plaintiff, Joseph Myer, for the sum of sixty-five dollars, with interest, making a total of sixty-seven dollars and forty-four cents, and it is from this judgment of the court that the case is appealed to the supreme court.

The appellant rests his case upon the averment of the plea wherein the defense set out is that the compromise settlement was void because it appears that after the timber was cut from the land there remained on the land' a plenty of timber for estovers.

It is argued that the lessee of the sixteenth section did not have the right to cut the merchantable timber standing on the land except when the timber was to be used for estovers, and therefore he had no cause of action. We do not think that this is an open question in this state. In the recent case of Fernwood Lumber Co. v. Rowley, 110 Miss. 821, 71 So. 3, this court expressly decided that the owner of the lease to a sixteenth section had such an interest in the timber growing on the land as would entitle him to recover damages for the wrongful removal of the timber by a third person. It was also decided in that ease that the board of supervisors did not have the power to convey the timber to any one save the lessee or his assignees.

Referring to a situation similar in principle to the present case, this court, in Baggett v. McCromack, 73 Miss. 552, 19 So. 89, 55 Am. St. Rep. 554, said:

“The appellee, as borrower of the horse, had possession of and a special or transient property, for the time, in the animal, and was entitled to bring his action against a wrongdoer by whose negligence the animal was lost or destroyed. He had no legal interest in the animal as against his bailor, but he had a real interest, nevertheless, in the custody and care of the property, because he was liable to the lender for it, and his possession of and special interest in the horse gave, him an action against a wrongdoer. Either the lender or the borrower may bring suit in eases of this character, but a recovery by one of them may be pleaded in bar of any suit by the other for a like recovery; the bailee’s suit for the naked value only of the property, and a recovery therein, being in trust for the real owner. Schouler’s Bailment, pp. 63, 64, 86; Story on Bailments, 94, 234; Woodman v. Nottingham, 49 N. H. 387, 6 Am. Rep. 526; 2 Am. & Eng. Enc. L. 61, note 2, and cases there cited.

“The other contentions appear to us to be without merit. Affirmed.”

The declaration set out a cause of action, and the plea does not present any defense. On the contrary, the plea in legal contemplation confesses the rigljt of plaintiff to recover.

Affirmed.