1. The court is invoked on rehearing by counsel for the appellee to declare whether the learned trial court has defined the measure of damages, in the event recovery on the trover count may be had. The jury were instructed in accordance with the decisions of this court extending from Jenkins v. McConico, Adm'r, etc., 26 Ala. 213, to Ford v. Bradford, 218 Ala. 62, 65,117 So. 429; the rule being, where the thing converted has a fixed value, the measure of damages is that value at the time of the conversion with legal interest; if its value is fluctuating, the jury may, at its discretion, take the highest value at any time between the conversion and the trial. However, this is not a matter of right to the plaintiff, but a discretion of the jury to so award.
2. We have indicated that there were provisions in the sales contract — between the plaintiff and Washington Lumber Turpentine Company — for the right as to the timber and its release from the original or trust instrument, on selection and payment, which were for the protection of the original grantors as to subsequent installment payments accruing.
It will be noted further that the contract between plaintiff and Washington Lumber Turpentine Company of date of April 11, 1924, expressly recited, as a part of the consideration and inducement to such sale, that:
"Whereas, said party of the first part no longer has facilities for watching over and protecting its said lands and timber from loss and damage by fire, theft, trespass and depredation; and
"Whereas the timber standing, growing, lying and being upon said party of first part's lands, is no longer useful or necessary for the purposes of party of first part, and * * *
"Whereas the Board of Directors of party of first part, at a regular meeting called for that purpose, at which there were present and voting a majority of the members of said Board of Directors, has adopted a resolution to the effect that said timber is no longer useful or necessary for the purposes of party of first part, and that its sales at $3.25 per Thousand feet, log measure, to party of the third part, is for the best interest of all parties concerned, in that said sale will provide custodian ship over said timber that will lessen waste thereof by fire, theft, trespassing and other depredation and further provide the necessary funds for the payment of taxes and for the reduction of the bonded indebtedness of party of first part, and
"Whereas said party of first part has, pursuant to the aforesaid resolution of its board of directors, in conformity with the terms and conditions of the aforesaid amended deed of trust, made application to party of second part as successor trustee, under said amendment of trust, to release to party of third part all of the aforesaid timber from lien retained in the aforesaid deed of trust according to the terms and conditions thereof, and of these expressed in this conveyance;
"Now therefore, In consideration of the premises and the mutual premises and covenants, considerations and agreements therein contained, the said parties of first and second part, do hereby grant, bargain, sell, and convey unto party of the third part, all of the merchantable timber, standing, growing, lying or being upon the lands of party of first part, situated in the Counties of Mobile and Washington, State of Alabama, together *Page 190 with all rights of way, easements and privileges, over and across said lands, that may be necessary for the cutting, removal or manufacture into lumber of said timber, or the use thereof for the turpentine or other naval stores operations, and also the right to locate upon any of said lands at such places as party of third part may deem necessary and advisable, saw mills, lumber or timber yards, turpentine and naval stores, plants or stills, camps, logging roads or causeways. * * *
"Party of third part has paid to party of second part, the sum of $19,500.00 cash, in advance, at the time of the execution and delivery of this conveyance, the receipt thereof is hereby acknowledged, said sum of $19,500.00 being in full of the first year's guaranteed payment of $17,000.00 and $2500.00 of which is to be credited on the guaranteed installment of $8500.00 which may become due one year from the date thereof."
The provisions of the contract or conveyance of date of May 13, 1925, between United States Lumber Cotton Company, party of the first part, Cecil Barnes and Harrison B. Riley, parties of the second part, Washington Lumber Turpentine Company, party of the third part, and E. L. Jordon, called party of the fourth part, recite the sale of the standing timber to Washington Lumber Turpentine Company on April 11, 1924, and the transfer by the latter of the respective timber to Jordan and Brownlee; provide for extension of time for cutting, and recite further that:
"Whereas, by said indenture of April 11th, 1924, the time allowed to Party of the Third Part for the cutting and removal of said timber will expire on January 1st, 1930, and the party of the fourth part desires to secure an extension of said time to January 1st, 1934, and offers and is willing to pay the additional consideration hereinafter described for such extension, and also to bind himself personally to pay for such of said timber as is north of the aforesaid land and the rights with respect thereto acquired or to be acquired by him, at the price and under the provision contained in said indenture of April 11th, 1924, as hereby changed; and,
"Whereas, The party of the second part deems it to the interest of the Trust represented by him as Trustee as aforesaid, to obtain that assurance which will be furnished by the personal obligation of the party of the fourth part, that the said timber and rights will be paid for as provided and stipulated in the said indenture as hereby modified, it being understood and believed that the party of the fourth part is solvent and possessed of ample means to assure the performance of his obligation to make said payments; and * * *
"Whereas, the party of the second part deems it to the interest of the holders of the bonds secured by the aforesaid Trust Deed, that the said indenture of April 11th, 1924, be altered and changed as is hereby contingently done, but is unwilling to take final action in that behalf, unless and until the holders of a majority of said bonds approve such course and the said Trust Deed be amended by adding thereto and incorporating therein provisions authorizing and ratifying the execution of the aforesaid indenture of April 11th, 1924, the execution of this instrument, and the making of the arrangements, alterations and changes herein set forth, and * * *
"The timber which now stands released from the lien of said indenture of April 11th, 1924, because of having been paid for on estimates under the provisions of the said indenture, shall remain and continue so released, and the right to the party paying therefor to use and consume the same under the terms of the said indenture, shall not be impaired or affected hereby. It is hereby further agreed that after party of the third or fourth parts has paid the full purchase price for timber on any given section or fraction of section, and the same shall have become 'automatically released from the effect of the lien thereon,' reserved in said indenture of April 11, 1924, or by this instrument, any subsequent breach and forfeiture of the terms of either such instruments shall not prevent party of the fourth part, his heirs or personal representatives, from entering upon the lands of party of the first part and removing the timber so paid for in full within the time fixed by said indenture and this instrument."
The evidence affords the inference of the possession of Washington Lumber Turpentine Company, and that it was being looked after or cared for by Mr. Young, as an employee of said corporation. That witness testified:
"I could not tell what were cut for timber and what trees were cut for ties. Seeing those trees that were cut and being here where it was done, and then going there and checking the timber, I could tell what were cut for ties as there was none.I knew because I looked after it and saw that none was cut. With the exception of the past two years I have been on these lands very little — once when we estimated the hardwood, once when we were measuring the logs. Since then I have been on this '40,' that one, and the other. Don't remember what years I worked for Plaintiff. * * * Was working for Everitt and Boykin when I estimated the timber which was cut — looking after their general business. I was looking after all their property under the instruction of Frank W. Boykin and R. M. Boykin. I began to work for them the year the U.S. Lumber *Page 191 and Cotton Company went bankrupt, and have been working for them ever since, except for 6 months. Don't remember when the Company went bankrupt. * * * I started to work for them since Mr. Boykin and them bought the timber. The timber was cut byMr. Onderdonk while I had charge of it, for Everitt and Boykin. All of the cutting was done during that time, while I had charge of it for them. I got after Mr. Onderdonk about the cutting and checked up some stuff on NE1/4 of NE1/4 Section 23. It wasn't necessary to check it through. There was 13,445 ft., 258 logs and 92 trees. There was 19,027 ft., 130 trees, 357 logs on NW1/4 of NE1/4, Section 23, East of Railroad. There was some timber West of Railroad, but presume that it belonged to Mr. Granade, the Defendant. We had Mr. G. T. Loper to survey a line through there before we checked the timber — starting at the sand pit. * * * I checked up with Mr. B. L. Onderdonk and turned it in to his woodsman, and also turned in my report to Everitt and Boykin. This was no part of the 130 trees. It was cut by Onderdonk at an earlier date." (Italics supplied.)
Mr. Jordan gave evidence to the effect that the Washington Lumber Turpentine Company had been in possession of these lands since 1910. Wiggins testified that the original of the instrument of April 11, 1924, was not in the possession of plaintiff company at the time of the trial; that "Mr. F. W. Boykin (for Washington Lumber Turpentine Co.) was supposed to take possession of all the property conveyed in said deed, but did not know if he did or not. There has been a joint contract since then — Mr. Boykin never had possession of the timber under that contract — No sir, except for turpentine purposes. He had a turpentine lease but didn't take possession of the property. We were selling Mr. Boykin the timber, he was paying Mr. Barnes, trustee for plaintiff, who furnished the money to the plaintiff with which the taxes were paid." Witness Wiggins was then asked: "As to the lands described in this suit, the two '40's' in 14, and two '40's' in 23, had the Washington Lumber Turpentine Co. submitted to the U.S. Lumber and Cotton Company any timber estimate as is called for by this contract, or had they paid the U.S. Lumber and Cotton Company, the agreed price for this timber?"
Defendant objected to the question as being "irrelevant, immaterial and incompetent; as calling for an opinion or conclusion of the witness; as seeming to vary the terms of the instrument (it must stand as it is)."
The court overruled the objection, whereupon the defendant then and there duly excepted.
The witness answered: "No sir, none of that had been released or paid for."
Counsel for defendant moved the court to exclude the answer as "irrelevant, immaterial, and incompetent, calling for the opinion or conclusion of the witness; as attempting to vary the terms of the instrument; and because it would not affect the title or rights of any one in this case."
The court denied the motion, whereupon defendant then and there duly excepted.
Witness Wiggins here testified "that plaintiff had a copy of that certain instrument executed May 13, 1925, by U.S. Lumber Cotton Co., Washington Lumber and Turpentine Co., and E. L. Jordan."
The witness Onderdonk testified that he was notified by Mr. Young that he was cutting over the line on the company's land, and that he settled for that cutting.
The evidence showed that, when the contracts of April 11, 1924, between plaintiff and the Lumber Turpentine Company, and of May 13, 1924, between the said two companies with Jordan and another, were made, Mr. Boykin was the president of the Washington Lumber Turpentine Company. Therefore it was important to show the nature of the agency of Young as to these lands and timber between these parties. And the question to Young, "Was it the Washington Lumber Turpentine Company you were working for when you had possession of this property?" should have been answered at defendant's insistence. It tended to show agency, and time.
3. The application for rehearing invokes expression and judgment as to plaintiff's right to maintain the action under either trespass or trover counts. The questions are presented on the giving of the general affirmative charges requested in writing by plaintiff, and given by the trial court, and in the refusal of the charge requested by the defendant to the contrary as to the respective counts.
The record evidence shows that the interest of Jordan accrued on and after May 13, 1925, the date of the supplemental or extended contract by plaintiff, the Washington Lumber Turpentine Company, to Brownlee, as to certain of the lands, and that certain of the timbers were regarded and treated as released from the lien of the first instruments, having been paid for in the original recited consideration and paid in cash for the first year (1924) installments, and as a part payment on installments for the year 1925. And the testimony of Jordan shows that he did not wait for a further ratification by the first party to this contract, but acted on his contract with the second and third parties, and went upon certain of the lands.
The time of the cutting is rendered certain when Onderdonk and Jordan reached the lands "about the same time." Onderdonk testified *Page 192 he went into possession and was cutting from December, 1924, and that Jordan told him he had his lease or right of turpentine "from Washington Lumber Turpentine Company, one of Frank Boykin's companies," and that this occurred in January or February, 1925. And Young testified it was cut before summer, as this was the time he measured up the stumpage and estimated the timber that was cut.
If plaintiff, at the time of bringing the suit, had no right or title to the timber in question, and was not then in possession of the same when cut, or was not entitled to the immediate possession thereof at the time of conversion, he could not recover for the conversion. Booker v. Jones' Adm'x,55 Ala. 275; Zimmerman Mfg. Co. v. Dunn, 163 Ala. 272, 274,50 So. 906.
This rule as to personal property was given application in Bynum v. Gay, 161 Ala. 140, 49 So. 757, 135 Am. St. Rep. 121, to the effect that trees cut from plaintiff's land, and without the knowledge or procurement of defendant, were converted into timber and incorporated in the latter's fences and buildings, it lost its character as personal property and became realty, and not subject to an action of trover. Thweat v. Stamps,67 Ala. 95; 26 L. Ch. 1106, §§ 15-19; 38 Cyc. 2016. And, on the other hand, it may be said to be the general rule that, where a part of the freehold, such as coal, minerals, timber, sand, gravel, crops, etc., or fixtures, is severed from the freehold, they become personalty, and trover will lie for the conversion. It is further well established that trover — a transitory or personal action — is not a proper form of action to try title to land. Aldrich Mining Co. v. Pearce, 169 Ala. 161, 166,52 So. 911, Ann. Cas. 1912B, 288, and authorities.
In Green v. Marlin, 219 Ala. 27, 29, 121 So. 19, it was recently declared that the owner of freehold cannot maintain trover for timber severed from it, if at the time of severance he had not actual or constructive possession thereof; that constructive possession by plaintiff following title to freehold is sufficient to maintain trover for cutting timber, unless defendant has actual adverse possession. White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am. St. Rep. 159.
After all that may be said of the rule of these cases, to maintain trover a plaintiff must have at the time of the conversion a concurrence of the right of property, general or special, with an immediate right of possession in plaintiff. Pinckard v. Cassels, 195 Ala. 353, 357, 70 So. 153, cited in L.R.A. 1917C, 16, and authorities; Long v. Nadawah Lumber Co.,202 Ala. 523, 81 So. 25; Holman v. Ketchum, 153 Ala. 360,45 So. 206; First Nat. Bank of Gadsden v. Burnett, 213 Ala. 89,90, 104 So. 17; Southern Ry. Co. v. City of Attalla, 147 Ala. 653,41 So. 664; Citizens' Bank v. Pearson, 217 Ala. 391, 397,116 So. 350; Vol. 27, Alabama Southern Digest, p. 344.
In Tallassee Falls Mfg. Co. v. First Nat. Bank, 159 Ala. 315,49 So. 246, the rule stated as above applied to growing crops required to remain with the mortgagor until a specified date, and the mortgagee could not bring trover where a conversion occurred before that time. And Long v. Nadawah Lumber Co.,202 Ala. 523, 81 So. 25, held the removal of standing timber by the owner after expiration of the time for removal would render him liable for trespass, though the value of the trees would be no part of the recoverable damages; that the owner of standing timber has no right to recover for conversion of timber by severing and removing it from the land, where severance was done after expiration of the period for removal, since the owner had no constructive possession of the timber at the timeof conversion.
In the instant case at the time of its conversion, plaintiff was without right to enter and possess itself of the realproperty and the standing timber thereon; or of the timber that was cut within the one-year period on advance payment therefor, which had been made by the Washington Lumber Turpentine Company. Therefore plaintiff was not, in the required sense, in possession of the timber, and at that time Mr. Onderdonk had actual possession of the land and timber; and the plaintiff was not entitled to the immediate possession of that timber at the time it was cut and removed by Onderdonk, who cut it from the land, converted it from real to personal property as a purchaser and not as an agent of defendant.
The affirmative charge should have been given for defendant as to the count for trover and conversion. Green v. Marlin, supra.
It is without dispute in the evidence that Granade did not, in person or by agent, enter upon the land in question in the removing of the timber therefrom by Onderdonk, and was therefore not liable under the count for trespass. Long v. Nadawah Lumber Co., supra; Williams v. Hendricks, 115 Ala. 277,22 So. 439, 41 L.R.A. 650, 67 Am. St. Rep. 32. Moreover, the evidence shows that plaintiff was not at the time in possession of the lands from whence the timber was cut, or had not at such time the immediate right of possession to such land and timber right. There was error in giving the general affirmative instruction requested by the plaintiff, and defendant's written charges B and C should have been given.
The application for rehearing is denied.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *Page 193