Missouri Lumber & Mining Co. v. Zeitinger , 45 Mo. App. 114 ( 1891 )

Rombatjek, P. J.

— This is an action to recover treble damages for trespass in cutting timber on plaintiff’s' lands. Upon the trial it appeared that the defendant committed the trespass, if there was one, while he was claiming title to the lands in good faith, whereupon the court limited plaintiff’s recovery to-single damages. The jury found a verdict for the plaintiff in the sum of $67, and from the judgment entered thereon the defendant prosecutes this appeal.

The appeal was taken August 8, 1890, with leave to-defendant to file his bill of exceptions on or before the following September 1. The bill of exceptions, as appears by the clerk’s entry made in vacation, was filed August 27, 1890, and is properly attested by the trial judge; hence the plaintiff’s contention that it was-filed without authority of law is untenable.

The only point made by the motion for new trial, and now, is that the verdict is not supported by the evidence. This contention is made on two-grounds: First, that the plaintiff had neither the legal title to-the land, nor actual possession thereof at the date of the alleged trespass, nor at the date of the institution of this suit; and, next, that there was no evidence in the case warranting the jury in rendering a verdict for-substantial damages against the defendant, because it was not shown what timber, if any, he had cut off the land.

The plaintiff’s evidence tended to show that the land was patented to one Wells, who conveyed it in 1870 to Williams by deed duly recorded in September, 1871. On the eighteenth day of April, 1888, the heirs of Williams executed a deed to the plaintiff, which did not correctly describe the lands mentioned in the petition, which deed was filed for record May 25, 1888. On the twenty-sixth of February, 1890, the heirs of Williams executed another deed to plaintiff, correcting the misdescription in the first deed and conveying the lands by a correct description. This deed was filed for record March 31, 1890. There was no evidence that the plaintiff ever had any actual possession of the land at any time. This suit was instituted on the eleventh of September, 1889.

The defendant’s evidence tended to show that, at the April term, 1879, of the Wayne circuit court, in a proceeding had by the collector of Wayne county solely against Wells, the original owner, a judgment was rendered against this land for back taxes for the years 1873 to 1876, both inclusive; that a special execution was issued on that judgment, under which the land was sold to one Morrison. The defendant also-gave evidence showing that the title to the land had passed by mesne conveyances from Morrison to himself.

The court took the view that, while the defendant’s-evidence was sufficient to show a claim of title in good faith, it was insufficient to show a valid title, as the title to the land was not in Wells at the date of the assessment of these taxes, nor at the date of the proceedings for their enforcement, and the true owner was not made a party to these proceedings. This holding was correct. The court took the further view, that the execution of the deed of correction by the heirs of Williams in 1890 related back to the date of the first deed in April, 1888, and that, therefore, the defendant was liable for whatever trespasses he may have committed after April, 1888. This holding was incorrect. The plaintiff’s evidence fails to show that it had any legal title or actual possession of the land at any time prior to the institution of this suit. It has been held in this state that the equitable owner of lands, who is in actual possession himself or by his tenant, may maintain an action of trespass or trespass on the case for injury to the freehold. Fitch v. Gosser, 54 Mo. 267; Watts v. Loomis, 81 Mo. 236. But it has never been held that an equitable title gives the owner such con-3tructive possession, even where there is no adverse occupancy of the lands, as to enable him to maintain either of these actions.

As there is no evidence to support the judgment on the ground above stated, it is immaterial to consider the further claim made by the defendant that there was no evidence showing, or tending to show, what, if any, timber he had cut off the land.

The conceded facts showing no right of action in the plaintiff prior to the institution of the suit, the cause will not be remanded. The judgment is reversed.

Judge Biggs concurs. Judge Thompson dissents.