Clement v. Wright

The opinion of the court was delivered, by Strong, J. This was an action of replevin for a number of pine logs, in which the pleas were non oepit, property, and property in the heirs of John Baird and others. On the trial, the plaintiff attempted to prove that the logs had been cut on a tract of land belonging to him, and of which he had possession. To meet the proof thus offered, the defendant then proposed and was permitted to give evidence tending to show that the timber was not cut on the land of the plaintiff, but on land at the-time belonging to and in possession of his, the defendant’s, vendors. The admission of this evidence is the matter complained of in the first assignment of error, and the reason alleged for the complaint is, that it was allowing the title to land to be tried in a transitory action. It is easy to see, however, that the objection is based upon an entire misconception. While it is true that, in actions of replevin or trover, the title to real property cannot be directly tried and adjudicated upon, it is equally true that it may be incidentally brought in question, and may therefore be admitted in evidence. So it has often been held, and the mischief would be intolerable were it not so. In the case now before [255] us, the evidence was not received for the purpose of trying the title to any tract of land. It was material to the defence to show that the logs replevied had not been taken from land in the possession of the plaintiff; and this was directly proved by the evidence received by the court. In the absence of any actual adverse possession of timber lands, such as these were from which the logs were taken, the law casts possession upon the owner, Proof of title in the defendant’s vendor, therefore, was also proof of at least constructive possession in him, and consequently was fatal to the plaintiff’s action. That it was legitimate, is shown by the language of Mr. Justice Rogers, in Elliott v. Powell, 10 Watts 455, and Chief Justice Gibson, in Wright v. Guier, 9 Watts 177. The proof of title was introduced, not for the purpose of trying it, but in order to prove possession by the heirs of John Baird, whose possession of the logs the defendant had acquired by purchase. The second and third assignments of error raise the question whether the court was right in rejecting evidence that John Baird, under whom the defendant claimed, owned but an undivided half of the land upon which it was alleged the timber was cut. It is obvious that the evidence admitted, would not have disproved the possession of his heirs, or tended to maintain the plaintiff’s action. But it is urged that it would have tended to reduce the damages to which the defendant, if successful, was entitled. By the writ of replevin, the logs were taken from the defendant and delivered to the plaintiff, in 1854, nearly seven years before the ease was tried. Both parties agreed that if the jury found for the defendant, they might find the value of the timber. Under these circumstances, we do not perceive that the proposed evidence should have affected the question of damages. We think, therefore, there was no error in rejecting it. The fourth and fifth assignments are to the rejection of the warrant and survey of a tract of land claimed by the plaintiff. The warrant was indescriptive, and the survey was made on the 25th day of July 1840, nearly ten years after the date of the warrant and survey to John Baird. They call for John Baird as an adjoiner. The only avowed purpose for which the offer was made, was to show boundary, not that of the plaintiff’s land, of course, but that of the John Baird tract. Doubtless, it would have been competent to give any evidence tending to establish that the boundary of that tract did not include the land upon which the logs were cut, for the constructive possession which the title drew after it could not extend beyond the boundary, but the indescriptive warrant and survey under it, made of the plaintiff’s land, were no evidence of the boundary of the John Baird tract, for the survey was made long after that tract had [256] been located. The evidence therefore had no tendency to prove either the extent of the boundary or the possession. There is no merit in the sixth assignment. Eor what purpose the connected draft was offered did not appear, and we do not discover that it could have benefited the plaintiff. The seventh and last assignment is also not sustained. The diagram is not shown to us, and it is impossible to say that it would either have explained or contradicted the testimony in chief of the witness. The judgment is affirmed.