Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-02

December 10, 1899.
"A PARTY WHO BOUGHT TIMBER
FROM ONE WHO WAS NOT THE
OWNER AND WHO CUT IT AND
LEFT IT ON A RIVER BANK, CAN
NOT RECOVER ITS VALUE FROM
ONE WHO TOOK THE TIMBER
AND SOLD TT.
This case was heard upon an agreed
state Of facts. the material parts of
which are as follows: In 1887, after
entry and survey T. H. Busbee, trus-
tee, received grant from the State for
a tract OF land in4 Swain county. Iowa
Mccoy made n subsequent entry and
survey, and received a grant from the
State for q part of the land embraced
In the grant to Busbee,1 trustee. Bus
bee, trustee, was the owner of the land
by virtue of his grant. which was pro-
perly registered, and registered before
the entry, survey, and grant of Mrs
Mccoy. Mrs. Mccoy mad no knowledge
of Busbee's. grant. except the notice
which the law implies from the fact Of
registration. Mrs. Mccoy sold to the
plaintiff certain timber standing on the
land embraced in her grant, and the
plaintiff cut the timber. and carried the
same, in the shape of logs, to the bank
OF Nantahalla river. q hoatable stream,
for the purpose of floating them to the
Asheville Furniture Company. While
the logs were lying on the river bank,
the defendants, without any claim OF
right or title to them from Busbee.
trustee, or from any one else, so far as
the record shows, took possession OF the
logs without, the consent of the plain
tiff. and sold and delivered them to the
Asheville Lumber Company for s6s6S4.
The lumber company is insolvent The
court. upon the fact agreed, adjudged
that the plaintiff could not recover, and
rendered Judgment accordingly.
The court says:
We are of the opinion that there was
no error in the ruling and Judgment Of
the court. Busbee, trustee. was the le-
gal owner OF the land. Mrs. Mccoy
was not In possession. IF she had been
In adverse possession, the title to the
logs would have passed to the plaintiff
and he could have maintained this ac-
ton: and Busbee would have been COM
PEELED to proceed against Mrs Mccoy
for damages to the freehold. The pres
ent action is in the nature of the old
action of trover. and. before the plain
tiff could recover in an action of that
nature. he had to show both title and
possession, or the right of possession.
The cases In our Reports seem to be all
one way on that point. So. in the case
before us. the title to the land from
which the timber was cut is shown by
the agreed state of facts to have been
In Busbee. trustee, and not in the plain
tiff or Mrs. Mccoy. The same point
arose in Barwick V. Barwick, SO N. c.
30, and wns decided In the same way.
The court said: but If 1T appears on
the trial that the plaintiff. although I'm
possession, is not in fact the owner. the
presumption of title inferred from the
possession Is rebutted, and 1t would he
manifestly wrong to allow the plaintiff
to recover the value of the propertv:
for the real owner may forthwith bring
trover against the defendant, and force
him to pay the value the second time.
and the fact that he paid 1t in a former
suit would be no defense Con-
sequently' trover can never be main
tained unless satisfaction of the tlidg-
ment will have the effect of vestinr q
good title in the defendant. excent
where the property is restored and the
conversion was temporary. Accord
ingly, 1T lis well settled as tho Inv of
this State that, to maintain trover. tho
plaintiff must show title and the nos
session, or present right OF posses
sIon." Affirmed.