Russell v. Willette

MAYHAM, P. J.

The plaintiff prosecuted this action to recover the value of a quantity of hay which she alleges that the defendant had wrongfully converted to Ms own use. The answer of the defendant denied the conversion, and set up title in the defendant, alleging that the hay was the product of land owned by his principal, and that he took the hay by virtue of authority from the owner of such land. The evidence disclosed that the plaintiff for many years had been in the possession of the land from which ' the hay was cut, and was so in the possession at the time of cutting and gathering the hay. We do not deem it necessary in this case to discuss the question of the title to this land on this appeal. It is by no means clear that the plaintiff was not, by virtue of the trust deed under which she took possession of this land, entitled to retain the possession of the same, as that trust was coupled with the duty of supporting the cestui que trust. But we do not decide that point. It is enough for the purpose of this action that the plaintiff was in possession of this land, and the hay for which the action was brought. If the defendant’s principal has a better title, she must assert it in an action of ejectment, when she can be fully indemnified for mesne profits. We see no error, either in the rulings of the trial judge on the receipt of or rejection of evidence, or in his direction to the jury, or refusal to set aside their verdict. The judgment is affirmed, with costs. All concur.