Hickingbottom v. Lehman , 124 Miss. 682 ( 1920 )

Smith, C. J.,

delivered the opinion of the court.

This is an action of replevin in which the appellant seeks to recover from the appellees the possession of a number of oak and poplar logs cut by the appellees without the appellant’s consent from land in her possession. The appellant introduced no evidence in the court below for the reason that when the appellant rested her case the court excluded her evidence and directed the jury to return a verdict for the appellees.

The ground on Avhich it is sought to uphold the ruling of the court below is that the appellant has no title to the land from Avhich the logs Avere cut. It appears from the evidence that the appellant is the widow of Jake Hickingbottom, who died several years before the institution of this suit, and who purchased the land about thirty-five years before the logs were cut therefrom from a man by the name of Wentworth, who placed him in possession of the land, and he thereafter remained continuously in possession of it, claiming it as his own until his death. The appellant is now in possession of the land, and has been, since the death of her husband, claiming it as her own. The land was erroneously described in the deed from Went-worth to Jake Hickingbottom, which error Wentworth promised to, but did not, correct.

If this evidence is true, the title to the land vested in Jake Hiclringbottom by adverse possession (section 3094, Code of 1906; Hemingway’s Code, section 2458), and the appellant is now the sole owner thereof, unless her husband left other heirs who are entitled to an interest therein. But the title to land cannot be tried in an action of replevin Campbell v. Brooks, 93 Miss. 853, 47 So. 545, 20 L. R. A. [N. S.] 507, 17 Ann. Cas. 1017), and it is not necessary for the appellant to be the owner of the land from which the logs were cut in order for her to recover herein, for her possession of the land under claim of ownership is sufficient for that purpose as against the appellees, who in cutting the logs, according to the evidence, were mere trespassers. Miller v. Wesson, 58 Miss. 831; Phillips v. Gastrell, 61 Miss. 413; Cobbey on Replevin (2d Ed.), sections 69 and 376; 23 R. C. L. 868; 24 Am. & Eng. Enc. L. 488; notes to 85 Am. Dec. 322, 89 Am. Dec. 429, and 69 L. R. A. 732.

Reversed and rema-nded.