The present suit counts in trespass qua/re clausum fregit. The recovery was for precisely fifty dollars, and defendant moved to non-suit the plaintiff under § 3120 of the Code of 1876. That motion was rightly overruled. — King v. Parmer, 34 Ala. 416; Haws v. Morgan, 59 Ala. 508.
The suit was against Harlow and Morris, but the verdict was only against Morris — finding in favor of the defendant Harlow. It is objected to the verdict that it does not award to him his costs, under § 3143 of the Code. The judgment is that Harlow “ go hence, and recover of the plaintiff iiis costs in this behalf expended.” The meaning of this is, that he recover that part of thfe costs which he himself had incurred. The statute — § 3143 — declares that a defendant jointly sued with others, against whom plaintiff fails to recover, is entitled to have his aliquot proportion of the whole costs taxed against the plaintiff. There being but two defendants, this required that half of the whole costs should be taxed against the plaintiff.
In trespass quare clausum fregit, title is not necessarily in issue, although there are many cases in which it does become material. Possession is the great underlying fact which supports the action, but title is sometimes material, in defining the extent of the possession. There are other points of view in which title sometimes becomes a material inquiry. — 6 Wait. Ac. and Def. 64-5. And it maj become material sometimes in mitigation of damages. One having title, or honestly believing he has title to lands, who takes possession peaceably, in the honest belief he may do so, would receive less condemnation by a jury, than if he were a willful trespasser, asserting no claim of right. Punitive damages are largely dependent on the manner, animus of motive with which the tort is committed. — 1 Sedgw. Dam. * 115, n,
The testimony was permitted to take a somewhat latitudinous range on the trial of this cause. We are at a loss to perceive the pertinency of the mortgage to McWilliams & Woodfin, the sale and conveyance by them to Harlow, conveyance by Harlow and wife to S. E. Morris, and re-conveyance by her back to William G\ Robinson, the original owner and mortgagor. The effect of these was to revest the title in the original owner, and it is not perceived that any material question of law or fact, growing out of these several transactions, can shed any light on the questions at issue in this cause, or the motive which*influenced Morris in the alleged trespass. Imma*295terial testimony, though not apparently hurtful, should never be allowed to go before the jury.
Robinson and wife, in 1879, conveyed the lands on which the alleged trespass was committed, to Harlow and Robinson, Jr., on a recited consideration of two hundred dollars. The deed and certificate of acknowledgement are in all respects regular to convey the title to lands other than a homestead. There was no certificate of privy examination. There was no proof that the lands were part of the homestead, nor is there proof that they were occupied in connection with the lands on which Robinson resided. There were some facts and circumstances in evidence, which possibly might have justified their submission to the jury on the inquiry of homestead vel non; but they are too indeterminate to authorize us to predicate as fact, that the loous in quo was part of the homestead. In our rulings, therefore, we can not assume as fact, that the lands alleged to have been trespassed on, were a part of Robinson’s homestead. There is testimony, uncontradicted, that the deed from Robinson to Harlow and Robinson, Jr., though absolute in terms, was, by verbal agreement, intended only as a security.
More than four years after the conveyance from Robinson and wife to Harlow and Robinson, Jr., the said grantees, Harlow and Robinson, Jr., sold and conveyed the lands to H. L. Morris, the defendant in this action of trespass. There is no proof tending to show that the latter had any knowledge or notice that there were conditions, or verbal agreements of any kind, varying the absolute terms of the deed from Robinson to Harlow and-Robinson, Jr. The plaintiff was permitted to prove, against the objection and exception of defendant, that the deed he made to Harlow and Robinson, Sr., was intended and understood as a temporary arrangement, and that a deed to another piece of land was to be substituted for it, whenever the numbers or correct description of the latter tract could be ascertained. The testimony was in conflict on this. In admitting this testimony the Circuit Court erred. We can not perceive how, if such agreement was made, it could become a material element in the quantum of damages plaintiff had sustained from the tortious act of the defendant. If Morris had sued for the lands, relying on his title for a recovery such agreement would be no defense to the action. And in cases like the present, its only tendency was to confuse the jury by presenting an immaterial contention for their inquiry.
The Circuit Court did not err in the charges given and refused. — Turnley v. Harrison, 67 Ala. 101; Mason v. Hawes, 52 Conn. 12; s. c. 52 Amer. Rep. 552.
Reversed and remanded.