Yocum v. Zahner

Opinion by

Mr. Justice Williams,

When the facts in this case are understood the legal questions presented by them are by no means difficult of determination. The land which is the subject of controversy was owned, as early as 1873, by Frederick Dootju He sold and conveyed it to his daughter Lucy, then the wife of Lawson Levan, in 1878. About two months after the deed to her, she died leaving her husband and an infant daughter Nora surviving her. Upon her death the title to the land descended to her daughter as heir at law, but it was subject to the life estate of the husband, given by the intestate laws. The relative situation and rights of the father and child were free from difficulty. The father was entitled to the possession during his life. The daughter held the fee subject to the life estate of her father, and was entitled to the possession when the life estate ended and not until then. In 1880 the land was sold by the treasurer of Columbia county for taxes, and Dooty, the grandfather of Nora and former owner, became the purchaser. In 1885 he seems to have regarded the failure of the infant to redeem the land from the tax sale as sufficient to vest in him a complete title. He accordingly sold the land in that year to Zahner, the defendant. After his purchase Zahner began to cut timber from the land, not for the purpose of clearing and cultivation, but for sale, and with a view to strip the land of its timber, in which its value mainly lay. In 1886 Yocum, the plaintiff, was appointed guardian of the person and estate of Nora Levan and undertook to look after her interest in the land. He began by redeeming it from the tax sale, and then brought an action of ejectment against Zahner who was in possession under the tax title, by a conveyance from Dooty the purchaser. Zahner thereupon took a conveyance from Lawson Levan of his life estate and on the trial of the action of ejectment defended against the title of the holder of the fee, by setting up the life estate as the basis of his claim to the possession. The action of ejectment failed because Zahner appeared to be the owner of the life estate of Lawson Levan and entitled to possession of the land under it. Whether he derived his title to the life estate under his purchase from Dooty, or under the deed from Levan was of no consequence. The guardian held only his ward’s title, and her right of possession did not accrue till the termination of the life estate. After her failure in the action of ejectment the guardian brought this action of trespass and declared for treble damages, under the provisions of the act of 1824, for the timber taken from the land by the defendant. He is again confronted with the life estate of his ward’s father, held by the defendant, and the proposition that, being rightfully in possession under the life estate, he is not liable to an action of trespass at the instance of the remainder-man or to treble damages under the act of 1824. Our first question is thus seen to be whether this action can be maintained.

The remedy for a remainderman on whose inheritance waste is being committed is well settled. It is not in trespass, but in case for the recovery of damages for the injury done to the freehold. The Act of 1824 does not change the rule in this respect, nor does it include in its provisions a remainderman. It does not give a new action to the owner of timber which has been cut without his consent. What it does give is a new statutory measure of damages in the common law actions of trespass and trover. Where these actions will not lie, the new measure of damages cannot be applied. It is too clear for serious contention that trespass will not lie at the suit of a remainderman against the life tenant in actual possession. This seems to be practically conceded, but it is contended that the action of trespass can be maintained on the theory that the guardian, by the act of redeeming the land from the tax sale, acquired the entire title that .passed by the sale. As the sale cut off both the life estate and the freehold or might have done so, it is argued that the redemption carried both estates to the guardian when he paid the redemption money. This is a mistake. Redemption operated to set aside or annul the sale, and left the title precisely as though the sale had not been made. The remainder was revested in the heir at law, the life estate in the husband or his' vendee. The heir neither gained nor lost in title by the process. This action cannot be maintained therefore on this theory.

But a substantial wrong has been done to the plaintiff. The defendant has been enabled, by what certainly appears to be the unnatural and inexcusable conduct of a father and grandfather, to strip the estate of the minor of its timber, embarrass her guardian in his efforts to protect her interests, and waste her little inheritance in costs and expenses. We are compelled to reverse this case, but we are not compelled to turn the plaintiff out of court. The court below has the power to amend upon such terms as may be equitable between these parties, and the form of action and the statement of the plaintiff’s cause of action may be so changed as to permit a trial of this case upon its merits. The errors assigned upon this record are however fatal to the judgment appealed from for several reasons, which have been clearly.pointed out by the learned counsel of the appellant. The action of trespass cannot be maintained. For that reason treble damages cannot be recovered under the act of 1824. The judgment entered on the original verdict, if done at the instance of the plaintiff, was a final judgment, and the time for trebling the damages had then passed. The judgment might have been set aside, on application, to permit the court to treble the damages, but while it remained in full force the damages were settled by it. Upon consideration of the whole case we shall reverse the judgment and award a new venire to afford opportunity for such amendments to be made as may be necessary to reach the true ground of complaint, or for an adjustment between the parties, as the case may be.