Miller v. Wesson , 58 Miss. 831 ( 1881 )

Campbell, J.,

delivered the opinion of the court.

The demurrer to the second plea was properly overruled. “An act to prevent certain trespasses” (Code 1871, sects. 2473 — 2482) is siti generis, and contains its own statute of limitations in sect. 2479, which makes no saving in favor of infants, or others, and none, therefore, exists.

The action is debt for the penalty given by the statute cited, and for the reasonable value of the trees, and for money received from their sale when transformed into sawed lumber, with a separate count for each, in the order just mentioned. The third plea is to the declaration, and presents the question whether the fact that the defendant was in the adverse possession of the land from which the trees were taken, under color and with claim of title, at the time of the taking of the trees, and at the time of pleading, bars the action. The statute prescribes the penalty to be recovered by the ‘ ‘ owner ’ ’ of the trees, and it has been held several times that he may unite with his demand for the penalty one for the value of the trees.

It is urged that title to land is not triable in an action of debt, and that the true character of this action is trespass quare clausum fregit, which is not maintainable by a disseizee.

That the trial may involve an investigation and determination of whether or not the plaintiff is owner, does not affect his right to sue for the penalty provided for him as such. There are many cases besides actions of ejectment in which the title to land may be involved, and our reported cases in volving a consideration of the statute now under discussion show that the title to land may be a matter in dispute in this class of cases.

The first count in the declaration is debt for the statutory penalty, and the third plea is not an answer to this count, because the owner has the right to recover, according to the statute, and is not precluded from it by the fact that the defendant may be in the possession of the plaintiffs’ land, claiming it under a conveyance to him, which, though good in form, may not confer on him any right whatever ; for it may be true that the conveyance was obtained, and claim made under it, and possession of the land taken, for the purpose of doing the injury complained of.

The other counts are for the value of the trees, and for money received for them, and not being for the statutory penalty, must be maintainable without the statute, for they do not rest on it. Their sufficiency, and what will bar them, must be determined by the general law ; and the test is, whether they would be maintainable without the first count, for each count is as distinct as if it was in a separate declaration, and must be tried by itself, except as it may contain a reference to another in express terms. 1 Chitty’s PI. 413.

It seems to be settled that a disseizee cannot maintain an action for the value of trees, or other part of the land removed and sold. Bigelow v. Jones, 10 Pick. 161; Allen v. Thayer, 17 Mass. 299 ; Baker v. Howell, 6 Serg. & R. 476 ; Mather v. Church, 3 Serg. & R. 509.

It follows that the demurrer to the third plea should have been sustained, because, although good as to the others, it is not an answer to the first count.

Eeversed and remanded.