Pleas 3 and 5 were pleas of confession and avoidance; the defendant admitting the cutting of the timber, but attempting to justify the same upon the permission and direction of the life tenant, Nancy I. Ward, who was then living and in the enjoyment of the life estate in the lands.
A life tenant is not under the will permitted to commit waste and thus damage or diminish the value of the inheritance, and to cut timber trees for sale is such waste as to give the remainderman a right of action. As to what cutting amounts to waste and the limitations on the life tenant in regard thereto has been the subject of much discussion as disclosed by the numerous cases found cited in the note to 16 Cyc. p. 628, where is found the following:
"The tenant in this country may usually remove timber so as to fit the land for pasture or cultivation, the rule being that such clearing is not waste if it does not damage or diminish the value of the inheritance and the acts of the tenant are conformable to the rules of good husbandry; and in such cases the timber removed may be sold by the tenant or used off the premises. The amount of clearing which may be done depends upon the circumstances of the particular case; and if it is in fact an injury to the inheritance, or the real purpose of the clearing is not the improvement of the land, but the sale of the timber, its removal is waste."
See, also, Lowery v. Rowland, 104 Ala. 420, 16 So. 88; Bell v. Burkhalter, 176 Ala. 62, 57 So. 460; 9 Michie, Encyc. 630.
Pleas 3 and 5 therefore evidently rest upon the theory that under the terms of the will quoted therein, the life tenant had a right without impeachment for waste to dispose of the timber.
We enter into no detailed discussion of the terms of the will, except to point out that while the gift to Nancy I. Ward of the personal property was in fee and absolute, yet her interest and ownership of the lands was expressly limited to a life estate with a direction as to the disposition of same at her death. The following quotation from Denson v. Mitchell,26 Ala. 360, is here in point:
"The authorities, both English and American, seem generally agreed in the position that an express estate for life given by will, negatives *Page 69 the intention to give the absolute property, and converts words conferring a right of disposition into words of mere power."
Likewise, the following from Pendley v. Madison's Adm'r,83 Ala. 484, 3 So. 618:
"The clear terms in which the first item of the will created an express estate for life negatived all intention to confer on the widow any absolute power of disposition during her life, or even after her death."
We are therefore of the opinion that under the terms of the will here in question the life tenant was without right to commit waste by cutting and selling the timber from the land, and that these pleas were subject to the demurrer interposed thereto. The demurrers should have been sustained, and in overruling the same the court below committed error.
As we construe count 4, it is a count in assumpsit for the recovery of plaintiffs' proportionate share of the proceeds of the timber cut, and plea 7, setting up the statute of limitation of one year, was not applicable thereto. The demurrer to this plea should likewise have been sustained.
Counsel for appellee, omitting any reference to the foregoing questions, confine their argument to the proposition that as the plaintiffs are remaindermen they cannot recover for injury done to the lands during the life of the life tenant, except in an action on the case, and as no count of the complaint is in case the affirmative charge was therefore due, citing Arthur v. Gayle, 38 Ala. 259.
That case dealt with personal property and the conversion thereof during the existence of the life estate. The opinion recognizes the right of action by the remaindermen, but indicating the remedy as an action on the case for the reason there was no right of immediate possession. That authority, in our opinion, is without application to the facts as here presented, for it has been held, and we think upon good reasoning, that timber trees, such as the life tenant is unauthorized to cut, became the property of the remaindermen whether cut by the life tenant or a third person. 16 Cyc. 639, where is cited Lane v. Thompson, 43 N.H. 320. This latter authority contains an interesting discussion of the rights and remedies in cases of this character, and upon the question here under consideration the court said:
"For cutting the trees by a third person the tenant may maintain trespass for the disturbance of his actual possession, and the reversioner may maintain case for the injury to the reversion; but where the trees are once cut and severed, the tenant ceases to have any interest in or right to the trees, and they then become the absolute property of the reversioner; and this absolute ownership draws after it and with it the legal possession, so that he can maintain trespass for carrying them away and converting them."
Applying this rule to the instant case, trees which were unlawfully cut by the life tenant, or under her authority, became, upon being severed from the land, the property of the remainderman or reversioner, for the conversion of which the reversioners could maintain their right of action, for having the legal title they likewise had the immediate right of possession.
There was evidence tending to show that defendant had cut the timber, sawn it into lumber, and sold the same. Under such circumstances, although the defendant owned a one-thirtieth undivided interest with the plaintiffs, yet the action of trover would lie against him, or the plaintiffs might waive the tort and sue in assumpsit. Smyth v. Tankersley, 20 Ala. 212, 56 Am. Dec. 193, Tankersley v. Childers, 23 Ala. 781; Snodgrass v. Coulson, 90 Ala. 349, 7 So. 736; Howton v. Mathias, 197 Ala. 457,73 So. 92; Cowles v. Garrett's Adm'rs, 30 Ala. 341. We construe count 4 as in assumpsit for the recovery of the share of the proceeds of the timber sold, which might also be recovered under count 2, which was the common count for money had and received. Farmers' Bank Trust Co. v. Shut Keihn,192 Ala. 53, 68 So. 363.
If count 5 is properly construed as an action in case, it was, of course, barred by the statute of limitation of one year under the undisputed evidence; but no question is raised separately as to such count in any of the assignments of error. There was error in giving the affirmative charge for the defendant.
The objection of plaintiffs to the testimony of defendant as to the permission for cutting the timber obtained from the life tenant was raised upon the grounds that as the life tenant was dead such testimony would be violative of section 4007 of the Code of 1907. This objection was not well taken. The estate of the life tenant was in no manner interested or involved in this litigation or the result thereof. Butler v. Jones, 80 Ala. 436,2 So. 300; Hendricks v. Kelly, 64 Ala. 388.
No question was presented separately as to the right of recovery for the rock chimney which was removed from the premises by the defendant, and is still in his possession. Whether or not there has been such destruction and exclusion of the rights of plaintiffs as to the same, which would sustain trover, we need not stop to inquire. Under the peculiar facts existing, an examination of the authorities may disclose some difficulty as to this question; but as it is one of such small consequence in the case, and not being treated or separately argued by counsel, we pass it by without further notice, as it may not be deemed of sufficient importance to be carried into another trial.
For the errors indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur. *Page 70