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Only the party having the eldest entry is permitted to give it in evidence.

Wilson v. Kilcannon, 1 Overt. 202; Hendrick v. Dallum, 1 Overt. 427; Anderson v. Cannon, Cooke (Tenn.) 27; Conn v. Haislip, 1 Swan, 31.

of Clark and others against Lieberman, Loveman, & O'Brien and the estate of Hizar Beaty (J. T. Wheeler, administrator), and the latter alone appealed. There was evidently a purpose on the part of Hizar Beaty, in taking the logs, to compel de

Messrs. Evans & Snodgrass also for ap- fendants in error to try the title to the pellee Clark. land on which the logs grew, through the agency of the replevin suit; but His Honor

Neil, J., delivered the opinion of the found as a fact that the defendants in error were in possession of the land on which the logs grew at the time they were cut by the said Hizar Beaty, and he declined to consider the question whether the defendants in error had the superior title. He passed upon certain title papers of the plaintiffs in error, holding them void on the ground of champerty, for the purpose of


This action was brought in the circuit court of Fentress county, in replevin, by defendants in error, to recover of plaintiffs in error 45 logs. The case was tried before Hon. D. L. Lansden, chancellor, sitting as circuit judge, without the intervention of a jury. He rendered a judgment in favor

After the entry and occupation of defendant upon land under a claim of title, an action in replevin for crops severed is not maintainable against him by the disseisee out of possession. De Mott v. Hagerman, 8 Cow. 220, 18 Am. Dec. 443.

A plaintiff not in the possession of land cannot maintain replevin against one in possession in good faith under a claim of right, although under a contract utterly illegal and void, for crops planted and harvested by him. Groome v. Almstead, 101 Cal. 425, 35 Pac. 1021.

It seems to be the opinion of the court in Brewer v. Fleming, 51 Pa. 102, that replevin will not lie against one in the actual possession of land under a claim of title, for timber, slate. or other products severed by him from the freehold. But this doctrine is abrogated in Pennsylvania by the statute set out in I., b, supra.

The purchaser of an equity of redemption in land, who makes an open and peaceable entry under a sheriff's deed, thereby becomes seized and possessed of the land conveyed to him, including the crops thereon; and may maintain an action of replevin against the former owners, who had continued to occupy two dwelling houses upon the premises, for hay taken by them from the land. Nichols v. Dewey, 4 Allen, 386.

One who entered upon a tract of land under a conveyance in fee, claiming title to it, and exercising acts of dominion over the whole, may maintain replevin for boards made from trees cut from a part of the land, in the nature of woodland, by a trespasser, and although that part was not inclosed, and no improvements had been made thereon, and no dominion exercised over it, except to use it for purposes of fuel and timber. Davis v. Easley, 13 III. 193.

A trespasser who goes upon lands of another without claim or color of title cannot acquire a right or title to crops or timber by severing and removing the same from the freehold; yet, if the owner has notice that the trespasser is upon the premises, exercising acts of ownership, and acquiesces therein; or if, upon a notice by the owner to the intruder to desist, the demand is refused, and he remains upon the premises. and continues to exercise acts of dominion, such possession becomes actual and adverse to that of the owner, to the extent only, however, of the land actually occupied. The trespasser. therefore, cannot maintain an action of detinue against the legal owner for corn planted and

harvested by the latter upon other portions of the tract of land than the part actually occupied by him. Stewart v. Tucker, 106 Ala. 321, 17 So. 385.

An owner of timber land, although not in actual possession thereof, may maintain replevin for timber cut therefrom against one who temporarily occupied the land while engaged in lumbering operations under the belief that the part occupied by him was within his lines. Young v. Herdic, 55 Pa. 172.

And so an action of replevin will lie by the owner of land, although not in actual possession thereof, against one who wrongfully enters upon it under a void deed, and cuts down and carries off timber and bark, when the latter had notice of the legal title of plaintiff since his possession, which was merely temporary for the purpose of cutting the timber and bark, was not an adverse claim made in good faith. Youmans v. Francisco, 15 N. Y. Week. Dig. 312.

One in possession of land, claiming under a pre-emption right under the act of Congress June 1, 1840, cannot maintain replevin to recover rails made from timber upon the land, before his right to a pre-emption was proved and patent issued. Bower v. Higbee, 9 Mo. 259.

Where neither of the parties in possession of the land set up color or claim of title, but each was diligently seeking to acquire the title of the United States to the same parcel of public lands, in the honest belief that, under the laws of the United States, he was entitled to the preemption, and would ultimately acquire the legal titie, an action of replevin will not lie in favor of one against the other for hay cut from the land. Page v. Fowler, 28 Cal. 605. This holding was restated as the court's opinion upon a subsequent appearance of the case, reported in 37 Cal. 100.

b. Incidental trial of title.

"It being thus necessary that the adverse possession be in good faith, under claim, and perhaps color, of title, and more than a mere unsubstantiated claim, it is obvious that, notwithstanding the rule that title is not triable in a transitory action, the nature of the parties' claims must be to some extent inquired into in order to determine whether the adverse holding is sufficient to give the claimant the right to the possession and disposition of the chattels.

This doctrine and practice appear nowhere

The plaintiff in error appealed from the judgment of his honor, and has filed numerous grounds of error. These assignments cover a wide scope, ranging over the whole field of title, and, besides, raising numer. ous questions of evidence. In the view we take of the case, it will be necessary to notice only a few of the assignments.

determining the question of conflicting 5, 1890. There is also in the record a possession. lease, of date August 3, 1896, made by Bruno Gernt, Sidney Beckwith, W. L. Jenks, W. W. Jones, and James N. Clark (defendants in error), to one Abe Franklin, covering this same land. There is also testimony in the record to the effect that, while Abe Franklin was holding under this lease, residing in a house built upon the land, the said Hizar Beaty entered upon the land and cut the logs. Upon the strength of this testimony, His Honor held that the defendants in error were entitled to recover in replevin, regardless of the question concerning the ultimate title to the land, since the special property conferred by possession is sufficient to support the action of replevin against a trespasser. We think His Honor's view was correct. The rule referred to is necessary to the preservation of the peace of society. If it should not be maintained, it would soon result that men, everywhere, in cases of disputed title to personal property, would seize the property by the strong hand, at the outset, for the purpose

There is some evidence in the record to support the finding of His Honor that the defendants in error were in possession of the land from which the logs were cut by Hizar Beaty at the time they were cut. So on this appeal that question must be determined in their favor. The land referred to was covered by grant No. 3,329, issued on the 22d of April, 1834, to Milton King. There are in the record two deeds purporting to convey the same land to Bruno Gernt, one of the defendants in error; a deed from A. Litton, Jane E. Litton, and Alice W. Litton, of date September 13, 1889; and a deed from Claiborne Beaty, of date March

more clearly than in WHEELER V. CLARK, although there are other earlier decisions to the same effect.

So, the title to land may certainly be looked into to determine the rights of the parties, and incidentally tried in a transitory action, when necessary to establish the title to personal property severed from realty. Thus, in an actiongation, and permit the respective parties to of replevin for hay claimed by plaintiff by make out their case by the best testimony in reason of his ownership of the land, which he their power. Busch v. Nester, 70 Mich. 525, 38 had inclosed and otherwise improved, against a defendant who broke down a portion of the fence, entered upon the land, and took possession, presumably under a claim of pre-emption, the latter is a naked trespasser, making an unwarranted entry upon the inclosure of another, and the granting of a nonsuit to him is error. Laurendeau v. Fugelli, 1 Wash. 559, 21 Pac. 29.

N. W. 458.

In an action of replevin for rails cut and split by the plaintiff on uninclosed land claimed by him, and afterwards hauled away and appropriated by defendant, who also claimed title to the land, it was held relevant to prove title to the land for the purpose of showing who had the right to the rails. The court uses the following language: "The question before the jury in this case was, In whom was the title or right of possession of the rails? This did not depend, necessarily, upon the question as to who had the title to the land. But, situated as the trees were out of which the rails were made, the land being uninclosed, and therefore not in the actual possession of either party, it became a legitimate and necessary inquiry to ascertain upon whose land they stand, and not for the purpose of trying the question of title to the land, but as a means of determining who had the right to the possession of the rails when made." Hart v. Vinsant, 6 Heisk. 616.

Where a party claiming title to land by reason of tax titles brings an action of replevin for the possession of logs severed from the land, against one claiming title thereto, the validity of his title may be inquired into by the court, not to determine who has the legal title to the

land, but to determine who is the owner thereof, and entitled to the possession of the personal property. The court looks to the substance; and, when it can see that the action is one to determine the right to the possession of personal property, and not to try conflicting titles to land, it will proceed with the investi

As declared by the court in Harlan v. Harlan, 15 Pa. 507, 53 Am. Dec. 612: "The court looks to the substance; and, where it appears that in truth it is a trial of title, then it is properly ruled that replevin is not the proper action, but that it must be tried in another form."

IIad a plaintiff proved that he derived his title from a state government patent; or had he proved that he was in actual possession of land when logs were cut therefrom,-he would have thereby made prima facie proof of ownership, and, to defeat an action in replevin, the burden would have been upon the defendants to show that the legal title was in some other plaintiff; but, had he been in the actual possession and occupancy of the land when the logs were cut therefrom, he could have maintained at action in replevin without making any proof of a paper title, unless the defendants proved au adverse title thereto of a higher character than a mere possessory one. Hungerford v. Redford. 29 Wis. 345.

So, if a plaintiff was in the actual possession and occupancy of land when the trespass was committed thereon, he may maintain replevin without making any proof of a paper title, unless the defendant proved an adverse title there to of a higher character than a mere possessory one. McNarra v. Chicago & N. W. R. Co. 41 Wis. 69, obiter.

It was held in Elliott v. Powell, 10 Watts, 453, 36 Am. Dec. 200, that, in an action of replevin brought by one in the possession of land for a crop severed therefrom, evidence was

of forcing upon the adversary party the necessity of taking the initiative in a burdensome suit, and assuming the onus of proof as to title.

It is insisted that, if the chancellor was at liberty to decline to go into the final question of title to the land on which the logs grew, it was inconsistent and improper in him to look to the deeds above referred to for the purpose of defining possession. We do not think so. The use of deeds, and even title bonds, for this purpose is quite common. The question proposed for consideration was not one of title, but only of possession, a distinct, independent, and legal inquiry under our system of real property law. To meet this special phase of the case made by the defendants in error, the plaintiffs in error offered in evidence in the court below a deed purporting to have been made by the Union Land, Coal, & Coke Company to the Cumberland Coal & Coke Company, of date September 24, 1899, covering the same land, and testimony tending to show that Hizar Beaty cut the logs

admissible on the part of the defendant, showing that he was the real owner and as such entered into possession, and harvested the crop, and had since remained in possession; and that the plaintiff was merely a trespasser. The court says: "It is a mistake to suppose that the title to real estate may not be incidentally tried in a transitory action. Cases may be put where the greatest injustice would result if this could not be done." But this decision is criticized in Lehman v. Kellerman, 65 Pa. 489, supra, I., b, where the court says that, taken in the full extent of the principle stated in the opinion, the holding would conflict with subsequent, as well as previous, decisions. The court further points out, however, that, although the plaintiff was in the actual possession and sowed the grain, it does not appear that he did so under an adverse title; and that the opinion evidently proceeds upon the ground that there was no contested title, and that the defendant had an immediate right of entry.

III. Replevin of fructus industriales.

In a few decisions a different reason appears for refusing to allow replevin against an adverse possessor of land for disposing of crops, than the denial of trial of title in a transitory action.

Thus, in holding that an action to recover the possession of a quantity of prairie hay made from grass cut by one without right, although under a claim of right, he having purchased the right to make the hay of one who claimed to have authority to sell it, is not maintainable. the court says: "It is true the hay in stack is the grass which belonged to plaintiff, cut and cured, and preserved for use; but the labor of defendant, rendered in good faith under a claim of right, gave to the hay substantially all its value. Therefore, the plaintiff should not be permitted to enjoy the fruits of defendant's labor without paying therefor." Lewis v. Courtright, 77 Iowa, 190, 41 N. W. 615.

under the authority of the latter company. The deed was objected to by the defendants in error on the ground of champerty, because the testimony showed that they (defendants in error) were in possession of the land, by a tenant residing thereon, when the deed in question was made. This objection was sustained by the chancellor, and the deed excluded. To this action error is assigned here by the plaintiffs in error. There can be no doubt, under our statute, that such a deed is void. Green v. Cumberland Coal & Coke Co. 110 Tenn. 35, 72 S. W. 459. But plaintiffs in error reply to this that even a void deed may be "color of title," under our decisions, and a possession thereunder, if held long enough, may, under the statute of limitations, ripen into a good title, which is, of course, true. From this it is urged that the entry upon the land under the champertous deed in question was lawful, and neutralized, the prior possession under the two Gernt deeds referred to. We think the conclusion is based upon a false assumption. Possession under

So, an action of replevin will not lie on the part of the true owner of land for crops raised and harvested on the land by parties holding the possession thereof adversely to him. The court says: "In such case it is well settled that the annual crops fructus industriales can. not be recovered by an action of replevin." Pennybecker v. McDougal, 46 Cal. 661.

He who is in possession of, and cultivates, a piece of land, and harvests a crop grown thereon, and severs the same from the soil, cannot be dispossessed of said crop by the owner of the land, in an action of replevin. "This we consider the well-settled law of this state." McAllister v. Lawler, 32 Mo. App. 91.

Crops were held not intended to be included by the words "other property" in the act of 1871, providing that, "in all actions of replevin now pending or hereafter brought to recover timber, lumber, coal, or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute;" and, therefore, it was held that replevin will not lie on the part of one claiming title to land, for crops harvested by another, who is in actual, adverse posses. sion of the land under a claim of title. The court admits that the act of 1871 has changed the rule that replevin will not lie by one out of possession to recover against one in possession and claiming title, for chattels which had become such by severance from the land, so far as the property mentioned therein and other property of like character, such as slate, marble, iron ore, zinc ore, etc., are concerned; but, growing crops being produced by the labor of the adverse possessor, it would be a great hardship to subject him to a succession of actions for his various crops when harvested, and to the necessity of trying complicated and vexatious questions of title to land, in the determination of the ownership of his fruits, vegetables, and crops. Renick v. Boyd, 99 Pa. 555, 44 Am. Rep. 124. M. M. M.

a false deed cannot, in the very nature of things, be rightful. In fact and in law it is wrongful against the person having the true title, and the true right of possession attendant upon that title, during every day it lasts, until the full term of seven years has been completed. When that time arrives, the possession having been open, notorious, adverse, and undisturbed, and the deed having been registered during the full term of seven years, a distinct right is conferred upon the hitherto wrongful possessor by positive law,—our statute of 1819, based upon a well-known public policy, which need not be more particularly referred to. Shannon's Code, § 4456. When this term of seven years has been thus completed under color of title, various questions may and do arise, in estimating the value of that possession, looking back over its course. Among these is the question of the neutralization of one possession by another. It is held that in the case of the interlap of grants, rival possessions within the interlap will neutralize each other, and the case must be determined upon the strength of title.

tion was brought within less than threemonths after the seizure of the logs. However, there can be no doubt that adverse possession of personal property for three years would vest title therein (Shannon's Code, § 4470; Morris v. Lowe, 97 Tenn. 243, 36 S. W. 1098) so as to bar an action for the property itself. But it is, beyond question, true that prior possession itself would furnish a sufficient basis of right to support an action against a trespasser for either real or personal property. Prior possession, in and of itself, confers a right as against all trespassers, or persons seizing property without due process of law; and the law will protect that right against such persons by restoring, through an appropriate possessory action, that possession, when it is violated in the manner indicated. Any other course of decision would soon fill the state with vexatious and wasteful litigation, if not with violence and bloodshed. Under the opposite theory, how easy it would be to disturb any man's title! And how great the reward for disrupting the peace of society! Any man coveting the land of another could cause a third party to make him a deed purporting to convey an estate in fee, and then enter upon the land and proceed to hold it, or even merely to cut timber; and, to enable the prior possessor to obtain redress, he must submit to a raking fire on his title, from turret to foundation stone. If such investigation reveal one spot of fatal weakness, his arms of both attack and defense are shattered in his hands, and the interloper is left in possession of the property; and this not because he has the better right, but because he was shrewd enough to discover the weakness of his victim's position, and bold enough to place himself in an attitude where that victim would be compelled to attack him under an irretrievable disadvantage, and to encounter inevitable defeat. The law does not encourage the spreading of such nets. The authorities support the principles above announced.

These doctrines find their most ordinary application in cases arising under the statute of limitations, albeit they are some times controlling in questions purely of possession. It is not true, however, that, if one be in actual possession of a portion of a tract of land, by a house or other inclosure built thereon, occupied by a tenant under a deed defining boundaries, under which state of facts the possession is extended by construction of law to the whole boundary covered by the deed (Mansfield v. Northcut, 112 Tenn. 536, 80 S. W. 437), another may enter upon the same land under a forged or a champertous deed, and force the former to bring ejectment against him, or proceed, after entering, to cut timber, and, when sued by the former in replevin for the timber itself, or when sued for the value, compel such prior possessor to try the title to the land on which the timber grew. Certainly, if such suit be brought within three years (Shannon's Code, § 5096) for possession against such interloper, the action would be one in forcible entry and detainer, and not ejectment; and in such an action the question of title would not arise, but only the question of prior possession. The same would necessarily be true of a suit brought within three years to recover for timber cut, whether in a direct action for the timber itself, as in the present case, or for the value of it. Whether this rule would be different after the expiration of three years, we need not consider, since the present ac

In Cartwright v. Smith, 104 Tenn. 689, 58 S. W. 331, it is said: "The gist of the action [replevin] is that the defendant is in possession of the property, and that plaintiff is entitled to the possession. Judge Caruthers, in treating the sections of the Code regulating actions of replevin, has said viz. 'Upon a fair construction of the whole of this act, and by it judging of the intention of the legislature, we are constrained to decide that it will lie in all cases where the plaintiff has a present right to the possession of any personal property in the possession of the defendant. In all such cases the property is unlawfully detained.

The point may be enforced by a few excerpts from other authorities:

In Anderson v. Hapler, 34 Ill. 436, 439, 85 Am, Dec. 318, it is said: "Our statute gives the remedy where the goods or chat

from the plaintiff by the defendant, and he regains possession." "To hold the law therefore falls within the plain language otherwise," as said in Smith's Leading and meaning of the act.'" In accord: Shad- Cases, quoted in the preceding case, “would don v. Knott, 2 Swan, 358, 363, 58 Am. Dec. be to bring the title to the land in dispute 63; Wilson v. McQueen, 1 Head, 17, 18; in a transitory action, although the plainBrammell v. Hart, 12 Heisk. 366; Shields v. tiffs had not adopted proper means for reDodge, 14 Lea, 356. And compare Crawford ducing his title to possession. For, if the v. Bynum, 7 Yerg. 381; Criner v. Pike, 2 general right to land, unaccompanied by Head, 398; Carson v. Prater, 6 Coldw. 565; possession, were viewed as giving first a Southern R. Co. v. Hall, 107 Tenn. 512, 64 general right of property in whatever may S. W. 481." Where property which has been be severed from the freehold, and then a annexed to the freehold is severed therefrom, consequent constructive possession, the only even by a wrongdoer, it becomes personal question in an action of trover or replevin property, so as to become recoverable by an brought against an actual possessor would action of replevin." 24 Am. & Eng. Enc. be as to the party in whom the title to the Law, 2d ed. p. 481, and cases cited; 28 realty lay." Am. & Eng. Enc. Law, 2d ed. p. 543. "Where the title to property which has become personalty by reason of its severance from the soil or freehold depends upon the ownership of the real estate, it has been held that the true owner, if out of posses-tels have been wrongfully distrained or othersion, could not in replevin recover the wise wrongfully taken, or shall be wrongproperty, where its severance from the free- fully detained. The possession of land was hold was made by a person holding adverse- always a sufficient title thereto as against ly and in good faith under claim and color a stranger. The rightful owner could not of title, as the action of replevin could not forcibly enter and eject a disseisor, nor quesbe made the means of litigating and de- tion his rights, excepting in a real or possestermining the title to real estate as between sory action for the recovery of the land. The conflicting claimants." 24 Am. & Eng. Enc. possessor of land might bring replevin for Law, 2d ed. p. 486. chattels severed from the freehold, and, as the ownership of lands drew to it the constructive possession, the owner might bring replevin for chattels thus severed where there was no adverse possession. But the owner could not bring replevin for chattels severed from land in the adverse possession of the defendant or of a third person. The law does not permit him to assert his title to the land against the person in adverse possession in that manner;" citing Morris, Replevin, 57, 58; 1 Smith, Lead. Cas. 485; 1 Chitty, Pl. 163; Eaton V. Southby, Willes, 131; Snyder v. Vaux, 2 Rawle, 427, 21 Am. Dec. 466; Vausse v. Russel, 2 M'Cord, L. 329; Mather v. Trin

In Cooper v. Watson, 73 Ala. 252, 255, it is said: "The doctrine seems well settled, upon principle and authority, that, if the owner of the land be not in the actual posity Church, 3 Serg. & R. 509, 8 Am. Dec. session,-if he can show title to things 663; Baker v. Howell, 6 Serg. & R. 476: severed from it only by showing title to the Brown v. Caldwell, 10 Serg. & R. 114, 13 land, a personal action for the taking, con- Am. Dec. 660; Powell v. Smith, Watts, version, or detention of such things will not 126; De Mott v. Hagerman, 8 Cow. 220, 18 lie. If he have the possession at the time Am. Dec. 443; Davis v. Easley, 13 Ill. 192. of the severance, the rule is different. But if his possession is devested,-if his right lie in entry, and the adverse possessor gathers a crop in the course of husbandry, or severs a tree or other thing from the land, the things severed are converted into chattels. But they do not become the property of the owner of the land. He is out of possession, and has no right to the immediate possession of such things; nor can he bring any action to recover them until

In Cobbey on Replevin, 1890 ed., it is said: "Under the authorities, it is allowable in a replevin action to examine into the title of the real estate .. just far enough to determine whether or not there are adverse claimants to the real estate. If there are, the validity of their claims cannot be tried in the replevin action; but, if there are not adverse claimants to the realty, the title may be shown in the replevin action for the purpose above stated." §§ 353, 374

376, 382.

In Stockwell v. Phelps, 34 N. Y. 363, 364, 90 Am. Dec. 710, it is said: "Replevin, or an action in the nature of replevin, in the cepit, can only be brought when trespass could be maintained, and that will only lie for an injury to land when the plaintiff is in possession (Rich v. Baker, 3 Denio, 79; De Mott v. Hagerman, 8 Cow. 220, 18 Am. Dec. 443); and [one] being in the actual possession of the premises, claiming them as his own, is regarded

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