#### Rufus F. Learned *v.*William F. Ogden et al.

1. Tenancy by Curtesy. *Waste. Gutting trees. Trespass.*

A tenant by the curtesy is without right to sell for mere profit trees growing on the inheritance, and his vendee who cuts and removes the same is liable in trespass to the reversioners.

2. Same. Statute *of*limitatioiis. *Joint*acticms. *Infants.*

A joint right of action for waste which accrues to remainder-men while they are infants is not barred by limitation as to any of them until the lapse of the statutory period after the youngest has attained his majority; but a joint right of action therefor which accrues to them after the eldest has attained his majority is barred as to all of them after the lapse of the statutory period.

3. Same. *Evidence. Instructions.*

Instructions properly limiting the plaintiff’s recovery do not, in an action by remainder-men for waste, cure the error of admitting evidence of waste prior to defendant’s trespasses and acts of waste barred by limitation.

4. Evidence. *Saw-mill boohs.*

In an action for waste in cutting timber, the saw-mili books of the defendant are inadmissible in evidence.

5. Same. *Stumps of trees. Quality of evidence.*

It is incumbent on the plaintiff in an action for waste in cutting timber to show with reasonable certainty what trees were severed by the defendant,' and the number of stumps counted by witnesses does not tend to fix the number of trees cut by defendant. n

6. Life Tenant. *His right to*sue. *Effect of same.*

The fact that a life tenant should protect the inheritance and might sue for injuries thereto, does not affect the right of remainder-men to sue for waste committed by a third party.

From the circuit court of Adams county.

LIon. W. K. Harper, Special Judge.

■ Ogden and others, appellees, were plaintiffs, and Learned, appellee, was defendant in the court below. The opinion sufficiently states the ease.

*770*Ernest E. Brown*and *Green & Green,*for appellant.

1. The court erred in permitting plaintiffs over defendant’s objection to file their second replication to defendant’s second plea.

In order to obtain leave to file their second replication under § 692 of code, plaintiffs made affidavit that they had just cause to traverse the matters proposed to be traversed by them in their second replication, and defendant objected to the filing of the replication, because it was not a traverse, but in confession and avoidance. The court has no power to waive the affidavit provided by § 692 of code or to mitigate its terms, and the court had no more right to permit the filing of the second replication on a defective and improper affidavit than it had to permit it in absence of any affidavit. *Hunter*v. *Wilkinson,*44 Miss., 721; *Hartford*v. *Green,*52 Miss., 332; and *Wilmot*v. *7. & M. V. B. B. Go.,*76 Miss., 374.

“The court erred in sustaining the general demurrer of plaintiffs to defendant’s third plea.” This third plea averred that the land from which defendant cut the cypress trees was a swamp or marsh — valueless for any purpose except getting timber therefrom — and that the trees removed were sold defendant by the tenant by the curtesy, who ‘ as such had the right to sell them to defendant.

The matters alleged in this plea constituted a full defense to plaintiffs’ action. Where the land upon which the trees are growing is used or fit for agricultural purposes or the like, the life tenant has no right to sell the trees. *Elliott*v. *Smith,*2 N. IT., 430; *Lane*v. *Thompson,*43 N. H., 320; *Dorsey*v. *Moore,*100 N. O., 41. Where however the land is as alleged in third plea a swamp or marsh — valueless for any purpose except to obtain timber therefrom and incapable of enjoyment otherwise — then the life tenant has the right to dispose of the timber or trees. 2 Minor’s Institutes, pages 128 of second edition or 147 of third edition and cases there cited; *Campbell*v. *Clark,*2 Dough (Mich.), 143; *Seager*v. *McCabe,*168 E. A. (Mich.), 247.

*771In Ms sale of the cypress timber to defendant tbe life tenant reserved out sufficient for plantation purposes, and tbis was all tbe reversioners were entitled to require of tbe life tenant. In *Gannon*v. *Barry,*59 Miss., 289, a part only of tbe land was arable, and tbe larger portion was swampy in cbaracter and beavily timbered, wbicb was exactly tbe condition of Black Creek Tract, of wbicb plaintiffs were reversioners. Tbis court in their opinion in *Gannon*v. *Barry,*on page 304, after stating tbe right of life tenant to fell timber to redeem tbe land from taxes, and keep down the taxes on it in the future, further says: “As tenant for life, be has tbe right to do this- — even for purposes of profit.”

2. “Tbe court erred in sustaining plaintiffs’ demurrer to defendant’s first rejoinder to second replication to second plea. Tbe sole point involved in tbis rejoinder is whether there ■was such a right of action in the guardian of Dunbar .Ogden as would cause the statute of limitations to run against tbe guardian and thereby bar tbe ward — under § 2761 of code of 1892, wbicb reads as follows, to wit: “When tbe legal title to property, or a right in action, is in an executor, administrator, guardian, or other trustee, tbe time during wbicb any statute of limitations runs against such trustee shall be computed against tbe person beneficially interested in such property or right in action, although such person may be under disability, and within tbe saving of any statute of limitations, and may be availed of in any suit or action by such person.”

Since tbe enactment of above statute for first time as § 2694 of code of 1880, tbis court has only construed it four times to my knowledge, to wit: In *Bilis*v. *McGee*63 Miss., 168; *Weir*v. *Monahan,*67 Miss., 434-455; *Barr*v. *Lewis,*71 Miss., 727; and *Nelson*v. *Ratliff,*72 Miss., 656: In *Bilis*v. *McGee*the court-held the statute of limitations is no defense because of tbe infancy of tbe ward to whom tbe money is due by decree, and that tbe case is governed by tbe code of 1871, as tbe bar is not complete by § 2694, code of 1880. In *Nelson*v. *Ratliff**772the court held the trustee was barred, and hence also were the beneficiaries, notwithstanding the delinquency of the trustee in failing to protect their interests.

*Weir*v. *Monahan*was a suit by the minor children of Monahan by their guardian as next friend to recover a debt due them, and the court held they were not barred, because the right of action was not in the guardian, but in the minors. In *Barr*v. *Lewis*the court held in effect that the minor Lewis would have been barred had not his guardian died shortly before § 2694, code of 1880, became a law, and Campbell, O. J., in his opinion made no reference to *Weir*v. *Monahan.*

We respectfully submit that the construction placed in *Weir*v. *Monahan*upon § 2761, code of 1892, violates the spirit of said section, and the repose intended to be secured by it, is opposed to a very decided weight of authority from other states, and should be overruled. If mistaken in this, I earnestly contend the principle therein announced should be at least confined to suits to recover debts due minors, brought by their guardians as next friend, as in *Wevr*v. *Monahan,*and not extended to cases where the right of action is clearly in the guardian to sue in his own name to recover possession of his ward’s property or for injuries done thereto.

“In consequence of his right to the possession, the guardian may, and ought, to sue in his.own name for any injury or trespass to the ward’s property.” I, Minor’s Inst., page 439 of second edition, or 478 of third edition; see, also, 9 Enc. of PI. and Prac., 932. “An infant’s property is always held by a trustee. The infant cannot hold possession, or even sue for his property without the aid of a guardian.” *Fearn*v. *Shirley,*31 Miss., 304. In *Keith*v. *Jolly,*26 Miss., 131, it was expressly held the guardian could sue in his own name to recover possession of his ward’s property. See, also, *Go che*v. *Fuchs,*34 Miss., 108.

3. The court should never have admitted the count of the vast number of stumps without an offer by plaintiffs to *773prove later they were cypress stumps, aud were remains of trees removed and converted by defendant prior to January 18, 1881, and when plaintiffs rested without proving how many of the stumps counted were cypress ones, or when or by whom they were made or what number of cypress trees defendant removed before January 18, 1888, the court surely erred in overruling the motion to exclude the count of stumps, and in leaving this testimony before the jury to confuse and mislead them into the absurd verdict they found. *Keirn*v. *War-field,*60 Miss., 799, relied on by appellees, noted on quite a different state of facts from those heré involved. The doctrine applicable to this case will be found in *Mhoon*v. *Greenfield,*52 Miss., 434, and *Bank*v. Montgomery, 70 *lb.,*550. See, also, *Warren Gounty*v. *Craig,*29 So. Bep., 821.

4.-“The court erred in ordering, on motion of plaintiffs, the defendant to produce his cash book and ledgers, and permitting the plaintiffs over defendant’s objection to read from these books the entries therein.”

Before the entries from his books were introduced defendant had testified his books threw no light upon what cypress was removed from Black Creek tract, nor when removed, and that no separate account was kept with this tract, but one account designated “Swamp,” or “Black Creek Swamp,” embraced all the cypress from his various tracts in Black Creek Swamp. This evidence was fully corroborated by the books when produced in obedience to the court’s order. While the books showed no cypress brought from Black Creek tract, they did show large numbers of trees brought generally from Black Creek Swamp country, and the action of the court in permitting the books to be read in evidence could have no other effect than to mislead and confuse the jury and' prejudice them against the defendant.

5. We further earnestly and confidently insist defendant was entitled to a peremptory instruction on the merits, regardless of whether or not the administrators of Lizzie and Nash should *774have been joined. In actions for the possession of land the statute of limitation does not begin to run against the reversioner until death of life tenant, because the reversioner cannot bring a possessory action until death of. life tenant. Where, however, trees are removed from the land, they become the personal property of reversioner, and his right of action accrues at once to recover the trees or their value, or for injury to his inheritance; hence the statute begins to run from the removal of the trees, and not from the death of the life tenant. *Flliott*v. *Smith,*2 N. H., 430; *Lane*v. *Thompson,*43 N. II., 320; *Dorsey*v. *Moore,*100 N. C., 41, and notes to *Allen*v. *DeOroodt,*on pages 630, 632, and 635, and especially note at bottom of page 634 of 14 Am. St. Rep.

The cause of action in this cáse is joint, and therefore if any one of the plaintiffs was of age when the cause of action accrued, then all of the plaintiffs are barred. *Haley*v. *Taylor,*77 Miss., 867; *Stauffer*v. *Mortgage Co.,*77 Miss., 127; *Traiveelc*v. *Kelly,*60 Miss., 652. See, also, *Sullivan*v. *Davis,*29 Kan., 28.

In sixth instruction the court erroneously told the jury, “It is not incumbent upon the plantiffs to prove the precise number of trees cut and removed from said plantation during the period named in instructions one and two.” The cases, relied upon by counsel in lower court to sustain the above were *Carberry*v. *Burns,*68 Miss., 585, and *N. J. & C. B. B. Co.*v. *Bolls,*62 Miss., 50. *Carberry*v. *Burns*bears no analogy to the case at bar. In *B. B. Co.*v. *Bolls*the court did not instruct the jury it was not incumbent upon plaintiff to prove the number of cross ties taken, but sustained a verdict in his favor on the ground he had furnished the data for a verdict, and defendant’s employes who could give the exact number refused to do so. The language of the court is as follows: “The exact number could readily have been given by the railroad employes, but since they failed to give it, it was certainly competent for the jury to approximate it by an estimate, which they did, the *775data for that estimate being given by the witnesses for the plaintiff.” The trial court having held that the cause of action accrued as to each tree from time of its removal, plaintiffs were entitled to recover only for that number of trees they proved were removed and converted prior to January 18, 1888'; hence it was erroneous and misleading to instruct that plaintiffs did not have to prove the number of trees so removed. *Mhoon*v. *Greenfield,*52 Miss., 434; *Sullivan*v. *Davis,*29 Kan., 28; *Bank*v. *Montgomery,*70 Miss., 550; *Warren Gounty*v. *Qraig,*29 So. (Miss.), 821.

*Smith, Hirsh & Landau*and *Pintard & Ratcliff,*for appellees.

It is shown by the agreed statement of facts that W. IP. Ogden, Sr., a tenant by the curtesy, died on April 26, 1899, and we submit there is strong authority for the contention that, as the right of possession of these appellees did not finally accrue until the death of said tenant by curtesy, the statute of limitations did not run against them until that date.

We respectfully maintain the appellees had a choice of remedies. “They might have sued for and recovered the value of che timber severed from the land, or they may maintain their action for the injury to the inheritance.” *Dorsey*v. *Moore,*6 S. E. Rep., 270 (s!o., 100 N. C., 41).

The reversioner can never determine the full extent of the injury to his inheritance until he enters upon the possession thereof, and he can only then finally determine the extent of the damage to his estate for which the life tenant is responsible. It may be true that when timber is severed from land it becomes personal property, and the right to seize that property or recover its value vests in the reversioner, but there seems no valid reason why the latter should be compelled to bring successive suits every time an act of trespass or waste is committed, and then, finally, when in the enjoyment of his estate, bring another action, and thus not only harass the tenant *776by tbe curtesy, but subject himself to *the*responsibility and annoyance of a multiplicity of suits, when he can obtain full reparation in one suit after bis title is unquestionably vested and bis possession unchallenged. Tbe trespasser acts at bis peril, and is not injured by tbe enforcement of this rule. He can never be called upon to account for more injury than be committed, and it is only when tbe full extent of tbis injury can be easily ascertained, tbat tbe responsibility rests upon tbe owner to institute an action. *Dorsey*v. *Moore, supra,*6; *Disprow*v. *Westchester Hardware Co.,*58 N. E. Rep., 519; *Dwight*v. *Railroad Co.,*132 N. Y., 199; *Lowry*v. *Rowland,*16 So. Rep., 88.

It may be argued tbat tbe declaration shows tbat tbis is simply a suit for the value of tbe personal property, to wit: 30,000 cypress trees of tbe value of $2.50 per tree. It is well settled in tbis state tbat a court will not consider tbe mere forms of pleadings.

Section 671 of the code of 1892 (§ 1536 of tbe code of 1880). abolishes all forms of actions. *Evans*v. *Miller,*58 Hiss., 120.

Tbe declaration on its face also charges tbat tbe trespasses complained of, to wit, tbe cutting and removal of tbe trees, caused tbe plaintiff to be “greatly injured, prejudiced and aggrieved in their reversionary estate and interest in and to said above described lands to tbe damage of said plaintiffs, $75,000.”

Tbe declaration, therefore, on its face, shows tbat tbe reversionary estate and interest was damaged $75,000.

Tbe appellant contends, first, that tbe court erred in sustaining tbe demurrer of appellees to tbe third plea of appellant. Tbis plea was in effect as follows: '

“Tbat tbe portion of Black Creek plantation, upon which was situated tbe cypress trees cut and carried away were low, marshy lands often covered with water and overflowed by tbe Mississippi river, and tbat because thereof, and because of their said low, wet, marshy condition, said lands were useless and valueless for agricultural or for any other purpose, save tbe *777one purpose and rise of getting and cutting timber thereon, and that all the cypress trees cut and carried away were purchased by the defendant for $3,000 cash from W. E. Ogden, Sr., the tenant by curtesy, and that such cutting and carrying away occurred after the purchase, and that said tenant by curtesy had the right to sell said cypress trees.”

'The decisions in opposition to this view are abundant and convincing. *Dorsey*v. *Moore, supra;*Tiedman on Eeal Property, “Waste in respect to Trees;” 1 Washburn on Eeal Property, 3d ed.; *Wilds*v. *Layton,*1 Del. Oh., 226; *Johnson*v. *Johnson,*2 Hills Oh., 277; *Clarice*v. *Rolden,*7 Gray, 8; *Webster*v. *Webster,*33 N. H., 18; *Clemence*v. *Steere,*1 E. I., 272; *Davis*v. *Gilliam,*40 N. O., 308; *Davis*v. *Clark,*15 Mo-App., 515; *Smith*v. *Smith,*100 Ga., 106; 31 S. E., 135; *Lunn*v. *Oslin,*33 S. W. Eep., 561; *Williams*v. *Jones,*43 W. Va., 562; 27 S. E., 411; *Wilkinson*v. *Wilkinson,*59 Wis., 557: *Dishe*v. *Dishe,*45 Neb., 110; 63 N. W., 368. This court in *Cannon*v. *Barry,*59 Miss., 303, announces the rule as follows: “With us, speaking generally, it may be said that nothing will ordinarily be held to constitute waste, which is dictated by good husbandry and promotes rather than diminishes the permanent value of the property as an estate of inheritance.”

The final objection to the pleadings made in the motion for a new trial, was the action of the court below in sustaining appellee’s demurrer to the first rejoinder to the second replication to the second plea of defendant. By this rejoinder defendant undertook to interpose as a defense, after showing the respective ages of the plaintiffs then living, that on April-19, 1894, the clerk of the chancery court of Jefferson county appointed W. E. Ogden guardian of the fourth plaintiff, Dunbar H. Ogden; that this appointment was approved by the chancery court, and that Ogden continued as such guardian until his death, April 26,-1899, and that more than six years had elapsed after the appointment of said guardian, and after the cause of action mentioned in the declaration had accrued. The ages *778of the plaintiffs being stated in the rejoinder, it was evident that as they were minors when the right of action accrued, certainly W. E. Ogden, Jr., Annie E. Sears, and Estelle Ogden were not barred, and we do not presume that such a proposition would be seriously contended for here. If it is, it will be in opposition to the decisions of this court, since guardianship does not confer title. *Tippin*v. *Coleman,*59 Miss., 641; *Masters*v. *Dunn,*30 Miss., 264; *Bull*v. *Dagenhard,*55 Miss., 602; *Weir*v. *Monahan,*67 Miss., 484; *Wing-field*v. *Virgin,*51 Ga., 139.

The eighth ground of the motion for a new trial was the objection to the testimony of the two Taylors and McGraw, as to the number of stumps. This evidence was pertinent and proper' under any circumstances, even if there was no authority to support the action of the court below. *Keirn*v. *Warfield,*60 Miss., 799.

Argued orally by *E. E. Brown*and *Marcellus Green,*for appellant, and by *Joseph Ilirsh,*for appellees.

Terral, J.,

delivered the opinion of the court.

In 1878 Elizabeth Ogden departed this life intestate, seized of Black Greek plantation, containing more than 2,200 acres of land, lying north of Coles creek, and near the Mississippi river, in Jefferson county. She left surviving her her husband, W. E. Ogden, Sr., who was entitled to a life estate in said lands as tenant by the curtesy, and who died in 1899, and six children, entitled to said estate in reversion. Two of said children died in infancy, leaving the four others to inherit their interest in said lands. The four children of Mrs. Elizabeth Ogden, in June, 1900, brought suit against appellant, Learned, for trespass on the said Black Creek plantation in cutting, felling, removing, and destroying between January 1, 1879, and the commencement of this suit 30,000 cypress trees standing and growing upon said land, of the value of $2.50 per *779tree, aggregating $75,000, to the great injury of tbeir inheritance. They recovered a verdict of $68,267.92. IJpon a motion by appellant for a new trial tbe, court required appellees to remit one-half tbe amount of said verdict, and thereupon entered a judgment against appellant for $34,133.96, and from that judgment Learned appeals.

As a new trial must be granted, it will be unnecessary tp notice in detail tbe pleadings or tbe evidence. While tbe law of waste, as established in- England, is modified by its transplantation to this country to suit tbe conditions of a new and uncleared country, and to allow a tenant for life to open wild lands for necessary cultivation or to change tbe course of agriculture without being liable for waste, yet tbe cutting down of trees for bis mere profit is here, as there, considered waste. A tenant by tbe curtesy, as an incident to bis estate, may take reasonable estovers of all kinds, and he may cut timber to pay taxes, or to improve tbe land, and when so cut it belongs to tbe tenant, and not to tbe reversioner. But tbe cutting down by tbe tenant of trees for sale is waste, and tbe felling of trees by the tenant or others for a sale of them is an injury to tbe inheritance, for which tbe reversioners have tbeir appropriate action. Trees, when felled, or severed from tbe soil, become personal property, in which tbe tenant in possession has no interest when cut for profit; and tbe reversioner may maintain bis action for the possession of tbe property, or for damages therefor, in tbe same manner and with like effect as if be were tbe owner of tbe estate in possession. A tenant by tbe curtesy in possession has no authority, as such, to represent tbe reversioner, or to bind him or bis estate in any manner whatever. Notes to *Allen*v. *DeGroodt*(Mo. Sup.), 14 Am. St. Rep., 628*et seq.*(s.c., 11 S. W., 240); notes to *Miles*v. *Miles,*64 Am. Dec., 367*et seq.;*4 Kent, Comm., 74 *et seq.*Erom these views of tbe subject it results that tbe sale of tbe cypress trees growing on Black Creek plantation by W. E. Ogden, Sr., tbe life *780tenant, to the defendant, Learned, of date February 8, 1881, was in every respect void, and of no force whatever.

As the action of the plaintiffs below is a joint action, we think the court correctly ruled that the plaintiffs were entitled to recover only for the injury to their inheritance inflicted upon it by the defendant prior to the 18th day of January, 1888, when the eldest of the plaintiffs became twenty-one years old, because it is perfectly manifest that for all injuries done to the inheritance since the 18th day of January, 1888, the plaintiffs are barred of all recovery by the statute of limitations relating to actions. A consideration of the record discloses the fact that the evidence of the felling of trees upon Black Creek plantation was not confined to proof of the injuries inflicted by Learned between February 18, 1881 — when it may be assumed, if specific proof justified it, that Learned commenced cutting timber upon the said lands — and January 18, 1888, as to all trespasses after which time plaintiffs were barred of remedy against him; but said evidence extended to any and all injuries done by any and all persons prior to February, 1881, and since January 18, 1888, aggregating many years of trespass upon said plantation, for which Learned was not liable in this suit. The court, in its instructions, correctly confined plaintiffs to a recovery for wrongs done by' Learned or his servants to their inheritance after February 8, 1881, for there is no pretense upon the evidence that he trespassed upon Black Creek plantation before that time, and before January 18, 1888, when the eldest of the plaintiffs came of age, as all trespasses committed by him ’ since said time are. barred. And yet evidence of trespasses committed before February 8, 1881, and since January 18, 1888, was freely and abundantly submitted to the jury, to the great detriment of the defendant. While the instructions put a proper limit upon the period during which plaintiffs could recover, the evidence relating to the cutting of the trees upon the lands to which plaintiffs were entitled in reversion extended *781to trespasses manifestly committed during a course of many years before and after the time for which defendant was liable to plaintiffs in this action, and for which it is evident from the record that the defendant is not liable in this action. The sawmill books of Learned furnished no evidence to determine his liability in this suit, and were not admissible in evidence, and the stumps of trees counted by McG-raw and the Taylors in nowise tended to fix the number of trees cut by Learned, or his servants under‘his direction, during the period for which he may be made responsible in this suit. In order that plaintiffs may have a recovery from the defendant, it is necessary for them to show with .reasonable certainty what trees were severed by him or his servants from the soil, or what other injury was done by him or his servants to their inheritance, during the period for which the bar of the statute does not apply. The sum here recovered is largely in excess of any sum justified by the evidence.

The fact that Ogden, the life tenant, should have protected the inheritance from injury, and might have sued for the injuries of others thereto, does not affect their right of action. Nor does his becoming the guardian of his minor children put the statute of limitations into operation so as to affect their right of action, for it is only where the legal title to the property is in the guardian that the statute of limitations begins to run. The legal title here was in the plaintiffs.

The verdict and judgment are contrary to the law and the ■ evidence, and must be reversed.

*Reversed and*remanded.