Ladd v. Ladd , 121 Ala. 583 ( 1898 )

McCLELLAN, O. J.

— This is an appeal from tbe order of tlie probate court confirming a sale of land for ■ division among tenants in common. Tbe only issue litigated in tbe court below Avas Avbetber tbe price paid for tbe land was greatly less than its value. Tlie court overruled tbe exceptions made to tbe report and confirmed tbe sale. Tbe questions presented for our consideration arise on tbe probate court’s rulings upon tbe competency of testimony. Tbe land in question was a body of about 1800 acres valuable only for tbe cypress timber on it. In arriving at the value of tbe timber tbe court confined tbe evidence to tbe stumpage, that is to tbe number of trees on tbe land and-their value as they stood; and excluded testimony offered by tbe appellants going to show tbe value of tbe timber in tbe markets nearest tbe land and tbe costs of getting out tbe timber and transporting it to those markets. We think tbe court erred in this ruling. While it is true that it was tbe land and not tbe timber that Avas sold, this Avas so only in a nominal sense. It appeared most clearly that tbe land dissociated from tbe timber was wholly valueless. Tbe purchase though nominally of tbe land was really of tbe timber upon it. Not only so, but all tbe evidence that was received by tbe court went directly to tbe value of tbe timber and only indirectly to tbe value of tbe land in that the timber valuation represented tbe entire value of the land. Under the peculiar circumstances of tbe case tbe real issue to be tried and which was tried was Avhether the price bid for the land at tbe sale was greatly less than tbe value of tbe timber on tbe land. And we see no reason for not applying tbe same rules of evidence in trying that issue that would have obtained bad tbe sale been nominally as well as in reality of tbe trees standing on the land and of those which bad. been felled but bad not been removed from tbe land, and we think those rules should have been applied: Of course even under this view evidence of stumpage values was competent: that would still be one way of proving the issue; but it is not the only way. Evidence of the market value of the timber itself at near-by markets — there being no market at the land — and of the cost of marketing the timber should have been received to show the value of the timber as it stood on the land, and constituted the value of the land itself. This was independently competent, and it would also have gone to show the value of stumpage strictly speaking. The same rule should obtain here as in an action of trover for timber severed' and converted.—Illinois Central Railroad Co. v. LeBlanc, 21 So. Rep. 748; Grand Tower Co. v. Phillips et al., 23 Wall. 471, 479-80.

The facts that it was difficult to get this timber off the land and to market and that it could only he done at high stages of water which were of uncertain recurrence should, of course, be taken into account in ascertaining the net market value of the timber, but these .considerations are just as much to be dealt with in fixing stump-age values, and in the former case no more than in the latter are they insuperable objections to the mode of proving the value of the land.

Evidence of the price at which other like lands in the same locality sold about the time of the sale in question, and under like circumstances, is competent at least on cross-examination.

Evidence of what witnesses intended to bid for this land should not have been admitted, except perhaps on cross-examination.

.The judgment must be reversed. The cause will be remanded.