Monds v. Elizabeth City Lumber Co.

Fuechies, C. J. This is stated to be an action to remove a cloud upon the title of plaintiff’s land; but the pleadings and trial of the case resolve it substantially into an action of trespass upon the plaintiff’s land, and crrtting and removing timber therefrom. It appears that on the 20th March, 1888, R. E. Parrish and wife sold and undertook to convey the timber on this land to the Gay Manufacturing Company, for which it paid Parrish $130. On 'the 5th of March, 1892, said Parrish and wife sold and -conveyed said land to the plaintiff by deed in fee simple. The plaintiff at once entered and took possession, and has held the actual possession of said land under said deed ever since. On the 28th of June, 1900, the Gay Manufacturing Company sold and assigned all its interest in said timber to the defendant company, and this is the only claim the defendant, has to said timber. In October, 1900, the defendant entered upon said land and cut and carried away the timber therefrom, and this action is for trespass and the value of thei timber so cut and carried away. The contract of Parrish and wife with the Gay Manufacturing Company and the deed from Parrish and wife to the plaintiff were offered in evidence, and the trespass in cutting and taking away the timber was admitted, its value was found by the jury, and judgment being rendered for the plaintiff, the defendant appealed. It rvas admitted by counsel for the defendant that the contract- betAveen Parrish and the Gay Manufacturing Company was the same in terms as the one declared on in Rumbough v. Gay Manufacturing Company, 129 N. C., 9, and ws absolutely void. This, it seems to us, puts an end to- the case, but *24 tbe defendant did not think so, and filed the following eixcep^-tions: At the dose of the testimony the defendant asked the Court to charge as follows: 1. There is no evidence for-the consideration of the jury that the plaintiff owned the land described in the complaint at the time the trespass was committed. Refused and defendant excepted. 2. There is no evidence for the consideration of the jury that the plaintiff owned the timber described in the complaint at the time the trespass was committed. Refused and defendant excepted. The Court charged the jury that, inasmuch as the plaintiff claimed the title under R. E. Parrish and wife, under whom the defendant also claimed the right to cut the timber by virtue of the said timber contract, the defendant was' estopped to deny the plaintiff’s title to said land, and i£„fhey believe the evidence in the case they should answer the first issue, “Yes.” To this charge the defendant excepted. None of these exceptions can be sustained, and, in our opinion, do not call for a discussion at our hands. In the argument before us the learned counsel contended that tire defendant had an equity upon the plaintiff for the $130 the Gay Manufacturing Company paid Parrish, which the plaintiff should pay; and that he must do that, or offer to do so, before he had any right of action; that it was an, equitable action and he must do equity. No- such ground as this was taken in the pleadings, nor on the trial below, so far as we are informed; nor do we see any ground to rest such a defense upon. This question was expressly decided in Rumbough v. Gay Manufacturing Company, supra, argued by the same attorneys, and which would have to be overruled if we were to sustain this contention. But the defendant has never’ paid the plaintiff anything, *25 nor Has tbe plaintiff ever recovered anything from the defendant, and we see no privity between them or equity in the case. As the plaintiff never received anything from the defendant, we fail to- see any right of action against the plaintiff, if it had been set up in the answer. Davison v. Land Co., 126 N. C., 704. Affirmed.