Opinion
March 14, 1949.
1. Logging contract — statute of frauds.
A written contract of the landowner by which the other party thereto was to cut and remove certain timber from owner's lands, payment to be made therefor when cut, on a stumpage basis, but which did not describe the land was unenforceable under the statute of frauds as to any standing timber, but until revoked will be good as a license or permit to the logger to cut on any contemplated lands of the owner.
2. Logs and logging — license, timber cut under — when title passes.
When timber has been cut on the lands of another under a permit or license by which the logger was to pay for the timber on a stumpage basis when cut, the title to the logs passes to the logger as soon as, but not before, he has felled the timber, subject to the right of the landowner to enforce his purchase money lien against the logs.
3. Trover and conversion — parties who with notice remove logs title to which is in another liable in an action of trover and conversion.
When logs have been cut by a logger under an existing license by the landowner to do so, the title to all logs cut passes to the logger, and the landowner, as well as the party who removes and converts them with notice of the logger's rights, are liable to the logger in an action of trover and conversion.
4. Logs and logging — license to cut — revocation of license — effect as to timber cut before notice of revocation.
The revocation of a license to cut timber does not affect the title of the logger to timber cut before notice to him of the revocation, and the logger has a reasonable time to cut the timber felled by him into logs and to remove the logs.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Perry County; F. BURKETT COLLINS, J.
T.J. Wills, for appellant.
If the court please, trover and conversion will not lie where the interest of the plaintiff is an equitable interest. In 65 Corpus Juris, page 60, par. 94, it said: "An equitable title or right will not suffice for the maintenance of trover, or, at least, it alone is not sufficient. Equitable ownership and actual possession are sufficient." See also, Baldwin v. McKay, 41 Miss. 357; Hook v. Bank of Leland, 134 Miss. 185, 98 So. 594; Albasi Bros. v. L. N. Railroad, 115 Miss. 803, 76 So. 665.
Appellee had only an equitable right in the timber and the logs cut. Title would only pass to him upon the delivery of the logs to the mill and the scaling of them. He then could pay for the logs and he couldn't own them up until that time. The right only existed to him to haul the logs and pay for them.
The instrument that was introduced in this case as evidence doesn't describe the lands by Government surveys, or otherwise. It doesn't tell in what county the lands are located, and there is no description in this instrument which is Exhibit "A" to the declaration. The trees were being cut around the grantor's home. The wife's consent to the sale of the timber nowhere appears. In fact, it is admitted by the testimony introduced by plaintiff that Schaffer alone made the contract for the cutting of the timber. Without the legal title or equitable title with possession thereof appellee could not maintain trover and conversion. The vendor, Schaffer, had the actual title to be divested from him when the logs were hauled and paid for. He had possession of the logs and having possession of them he disposed of them to protect his interest after the logs had begun to decay.
Whatever might be appellee's rights against Schaffer, it certainly was not one that lies in trover and conversion unless Schaffer was guilty of trover and conversion. No subsequent dealings with the logs would make a person guilty of trover and conversion.
We submit to the court that under no view of this case, as reflected by this record, was the appellee Breland entitled to recover.
E.C. Fishel, for appellee.
The appellee, the plaintiff in the court below, claimed to be the owner of said logs so cut by him on the Schaffer lands, by and under virtue of the written contract, and with the consent of J.C. Schaffer, and his wife. Their contention was, and is here, that when timber was severed from realty it became personal property. There was no equitable title or any other title in the defendant immediately when this timber was severed from the ground, and whatever the weakness of the written contract this fact would have been true even though the contract for cutting had been in parol. See 34 Am. Jur. p. 496 and 38 C.J. p. 146.
Plaintiff in the case before the court never contended that the written contract and the verbal understanding, was anything more than a license to cut, but would claim that this, together with the action of Schaffer, constituted a complete license to cut; and that the written memoranda merely fixed the price to be paid for the stumpage; and that having had this license to cut and remove the timber under the memoranda immediately when the timber became severed they became the owner thereof, subject only to the payment to Schaffer for the agreed stumpage.
In Blair v. Frank B. Russell Company, 120 Miss. 108, 81 So. 785, the court held that a void deed was a license to cut and held that but for the issue of good faith there could be no question of the right of the plaintiff to recover for the trees cut; and that this deed which was void for want of description, and also because the wife had not signed same, which was a deed to the homestead, the court said: "This deed would, at most, only constitute the defendants licensees, which license would be terminated when the plaintiffs gave notice not to further cut the timber." Therein a great many cases are cited.
Appellee never made any claim to any further rights of the timber after the Schaffers had terminated the contract by selling the standing timber to Dixie Pine Products Company, as well as the logs of plaintiff, but did lay claim to their logs which they had cut and in which they had the investment of $509.74 for cutting and piling the logs.
A striking case wherein the right to the standing timber cut, comes from our Sister State of Alabama, and is cited in 85 So. 829, and the facts in that case were so similar to the facts in the case at bar, we quote therefrom: "Samford, J. (103) Under the facts of this case, the defendant had a verbal license to cut timber on the lands of plaintiff. This did not have the effect of conveying title to the standing timber. Colbey-Hinkley Co. v. Jordan, 146 Ala. 634, 41 So. 962. But as to the timber cut, the title passed to the defendant subject to the lien for stumpage as declared in Code 1907, #4814, et seq. Notwithstanding the time limit attempted to be fixed by plaintiff, the defendant had a reasonable time in which to remove the timber already cut at the time the license was revoked. Johnson v. Bumpus, 34 Pa. Super. 637; Johnson v. Truitt, 122 Ga. 327, 50 S.E. 135. To the same effect is the great weight of authority."
In the case at bar the court, after hearing the testimony of plaintiff's witnesses and the testimony of W.O. Sellers, and Mrs. Schaffer, and Les Williams for the defendant herein, and whereby it became so palpable that the defendant, Dixie Pine Products Company, took these logs over the protest of the plaintiff which protests were made by plaintiff direct to the vice president and to W.O. Sellers, general manager, and which were made on November 5, 1946, by letter from plaintiff's attorneys, then granted the peremptory instruction to find for the plaintiff for the fair market value of all logs as they were on the date at the place of taking. The defendant had an instruction given to the effect that if Les Williams was an independent operator that the defendant cannot be held liable for anything that the said Les Williams did. It will, therefore, be seen that the case was submitted to the jury on the question also of whether or not Les Williams was an independent contractor, and the jury decided against the appellants on that issue.
The appellants having tried their case on the issues made up in the circuit court now raise the issue in this court that the appellee only had an equitable interest in the timber.
The court will readily see that the question of equitable rights do not enter into the case at all; that under the authorities herein cited plaintiff became the owner of the timber when it was cut, subject only to the rights of the Schaffers to be paid for the stumpage, and there was no more equitable rights involved in this than there is in a case of a man who goes to a haberdasher and purchases a hat on credit. The purchaser became the absolute owner and while the seller might have a right to a lien that would be his greatest rights in the premises, and the seller would not have a right to convert the property to his own use.
On July 28, 1946, the appellee, Eugene Breland, entered into a written agreement with J.C. Schaffer, a codefendant of the appellant, Dixie Pine Products Company, whereby he was to cut certain pine and hardwood timber on the lands of Schaffer at a stated price per thousand feet of stumpage to be paid as the timber was cut and delivered by the appellee at his own sawmill. (Hn 1) The written agreement did not describe the land, and the contract was therefore unenforceable under the statute of frauds as to the standing timber on any particular lands after the license, or permit, as evidenced by the writing, to cut and remove any further timber was revoked by the seller, on or about November 4, 1946, when he undertook to sell the standing timber and the logs which had been cut to a third party.
At the time of the revocation of the above-mentioned license or permit, the appellee had cut approximately 60,000 feet of logs on the land of the value of $1,207.72, but had only removed and paid for the stumpage to the extent of $24.40, and he still owed to Mr. Schaffer approximately $500 on the stumpage for the remaining logs which had been cut and which were being bunched in the woods for hauling at the time of the revocation of the license or permit on November 4, 1946. The appellee had incurred an expense of $509.74 in connection with the cutting and the bunching of these logs.
The first notice to the appellee of the fact that Mr. Schaffer had revoked the license or permit was on or about the said 4th day of November, 1946, when he learned that Les Williams, an alleged independent contractor, was moving the logs from the woods to the mill of the appellant, Dixie Pine Products Company at Hattiesburg, Mississippi, and we think that the jury was warranted in finding as a basis for its verdict in the sum of $687.41 against the said appellant for converting said logs to its own use, that its representative was fully advised of the fact that the appellee had cut the logs from the timber on the homestead land of the codefendant, with the consent of both Mr. and Mrs. Schaffer, and that the appellee owned the said logs, subject to the right of Mr. Schaffer to collect the purchase price thereof per thousand feet. In fact, most of the said logs were removed to the plant of the appellant, Dixie Pine Products Company, after written notice given to it on November 5, 1946, by a letter written on behalf of the appellee by his attorneys, and after the appellee had personally protested to the Vice President of the appellant Corporation against the further removal of such logs.
But it is urged by the appellant that the plaintiff, Eugene Breland, could not maintain his action of trover and conversion against the appellant, Dixie Pine Products Company, and its codefendant, Schaffer, since the defendants claim that the plaintiff only had an equitable interest in the logs in question. Appellant cites authorities which hold that actions of trover and conversion cannot be maintained where the plaintiff owns only an equitable interest in the personal property involved. However, (Hn 2) we are of the opinion that the title to the logs in question passed to the purchaser, subject to the right of the seller to enforce a lien for the purchase money thereon, when the standing timber was cut into logs for removal from the lands; that the written agreement, although unenforceable as a conveyance of standing timber, was sufficient to constitute a valid license or permit for the cutting and removal of the same.
In 54 C.J.S., Logs and Logging, Section 29, sub-section c, p. 730, the rule is stated as follows: (Hn 3) "Timber severed from the soil under the provisions of a license or permit authorizing it, and before expiration or revocation of the license or permit, becomes the personal property of the licensee or purchaser, and he is vested with the rights incident to ownership of personal property. As fast as trees are severed from the realty, the contract of sale attaches to them as chattels, and the licensee is entitled to remove them as his own, and the owner of the land has no right to take the timber cut under the license without due process of law. (Hn 4) Where the timber is cut before the license is terminated by revocation or expires by limitation of time, the licensee is entitled to a reasonable time thereafter in which to remove it, or to cut up the timber already felled and remove it." See also 38 C.J. 186, sub-section b, 45 C.J.S., Logs and Logging, Section 29, and 34 Am. Jur., 522, Section 46, and the numerous authorities cited in support of the foregoing rule.
The codefendant, Schaffer, participated in the conversion of said timber in that he sold the same to the said Les Williams and received the purchase price therefor from the appellant, Dixie Pine Products Company, knowing that the same belonged to the appellee, subject only to his own lien for the purchaser price thereof. There was no material conflict in the evidence except on the issue of whether or not Les Williams was an independent contractor as to the liability of the appellant, but in view of what is herebefore stated as to its knowledge of the facts and the demand made upon it to let the logs alone, we are of the opinion that the conflict in the evidence in that regard is immaterial and that the instruction granted into the plaintiff as complained of were not erroneous.
No cross-appeal is taken by the appellee from the granting of a directed verdict in favor of the codefendant, Schaffer.
The judgment of the trial court rendered on the verdict of the jury must therefore be affirmed.
Affirmed.