The action is for the penalty prescribed by section 3551 of the Code of 1876, for willfully and knowingly cutting down and destroying trees on another’s land, without the consent of the owner. — Code, 1886, § 3296. The plaintiffs in the action are trustees of a church,' or religious organization, to whom the land belonged, and the act of damage, which is the ground of the suit, was committed before the appointment of the plaintiffs as trustees of the property, while there was an existing vacancy in the trust by reason of the death of their predecessors.
1. A plea of former recovery, or res adjudicata, is interposed, to which a demurrer was sustained; as we think, properly. This plea sets up in due form the fact that one Stanley, as deacon of the church, had, prior to the present suit, brought an action of trespass qnare clausum jregit against the defendant for the same act of trespass, and had recovered one cent damages therefor with costs. The *516defect about this plea is, that tbe party plaintiff in tbat suit, and the party plaintiff in this suit, are not the same. To make the plea of former recovery good, the parties to both actions must be the same, or representatives of the same parties litigant. Identity of person is just as essential as identity of subject-matter, or of the cause of action. The gist of the action of trespass is injury to the possession of the plaintiff, actual or constructive. It can be maintained only by one who is the owner, or who is in the actual occupancy of the land. Stanley is not averred to have been either owner or actual occupant. As a mere naked agent, or officer of the church, out of actual possession, he could not be entitled to bring the action, although authorized to do so by the congregation ; and the suit could well have been defeated on this ground. The parties in the two suits being different, the recovery in the former could not be set up in bar of the latter. The court so correctly ruled in sustaining the demurrer to the plea. Whether, under section 3299 of the present Code (1886), a recovery of damages in trespass would constitute a bar to a subsequent suit for a penalty incurred for cutting trees, each action being for the same injury, is not decided, as it is unnecessary to be considered.
2. The certified transcript of the deed, bearing date on February 21st, 1831, purporting to be made by one Jarmon to certain trustees therein named, and conveying to them the land from which the trees were cut, was properly admitted in evidence. This deed was more than twenty years old, and was recorded in the proper office on the day of its date, being thus registered within the period required by statute at that time. The presumption from this great lapse of time was, that the execution of the instrument had been lawfully proved, or acknowledged, and that the proper certificate had been “written upon or under the deed.” The subscribing witnesses are presumed to be dead, and it was . unnecessary to call them to prove the execution of the original paper. The grantees in the deed being deceased, and the plaintiffs having been appointed their successors in the trust, there is no presumption that the plaintiffs have the custody of the original deed. Hence, no necessity arose for accounting for the loss of such original, before introducing the copy. — White v. Hutchings, 40 Ala. 253; England v. Hatch, 80 Ala. 247; Hendon v. White, 52 Ala. 597; Beard v. Ryan, 78 Ala. 37.
*5173. The register in chancery was invested by statute with authority to appoint the plaintiffs as trustees of the church property, to fill the vacancies occasioned by the death of their predecessors, who were the original grantees of an express trust, upon the application of any party in interest. Code, 187G, § 3732. The applicant, Little, was clearly a party in interest, within the meaning of the statute. He was not only a member of the congregation of the religious society which owned the property in controversy, but this congregation had authorized him to act as one of the trustees, with others named.. The best evidence of the action of the register was .the record of his proceedings, which could be proved by certified copy. • So, the church proceedings, selecting trustees, were relevant to show the authority conferred by the congregation on Little, as their agent to make the application, although such selection may have had no legal validity without ratification by new appointment from the register. It may be that the church minutes do not belong to that class of records which are authorized to be proved by mere certified copies; but no objection was interposed to the evidence on this ground in the court below, and it must be considered as waived. — Baucum v. George, 65 Ala. 259.
4 The action of the church authorities, imputing the cutting of the trees to the defendant, Allison, and appointing a committee with authority to compromise the matter with him, was not relevant to any issue in the cause, and should not have been admitted in evidence. The court erred in not sustaining the objection to it.
5. It was no defense to this action, that the defendant had cut the trees by the instructions of certain persons, who had no lawful right to confer on him the authority to do so, although he believed they had such authority. He was the victim of his own credulity, and must be the sufferer by his negligence of inquiry, rather than visit the loss on another who is innocent. The fact that he acted in good faith, without the intention to trespass, was immaterial, and the evidence bearing on this point was properly excluded, to say nothing of the rule which precluded the defendant from testifying to his uncommunicated intention accompanying the alleged act of trespass. The evidence shows no mistake of fact as to whose land the trees were on, as in Russell v. Irby, 13 Ala. 131, where the defendant honestly believed that he was cutting trees on his own land, having mistaken the .boundary line. — Givens v. Kendrick, 15 Ala. 648.
*5186. The action would lie in the name of the plaintiffs, notwithstanding their appointment as trustees of the property was subsequent to the alleged trespass. This is precisely the kind of case to which the doctrine of relation will be applied. The original trustees were dead, and the trusteeship was vacant at the time of the trespass. The statute provides that, on the death of a sole or surviving trustee of an express trust, the trust estate shall not descend to the trustee’s heirs, or pass to his personal representatives, as at common law. — Code, 1852, § 1323; Code, 1886, §1848. The legal title of the trust property must thus always, in legal contemplation at least, remain in the original trustee, or his lawful successors. — McDougald v. Carey, 38 Ala. 320. Upon the appointment of any successor, his title will, for certain purposes, relate back to the date of the death, resignation or removal of his predecessor. The rule applicable to administrators, that the grant of letters of administration relates back to the time of the intestate’s death, is precisely analogous. — Kelly v. Kelly, 9 Ala. 908; s. c., 44 Amer. Dec. 469. In either case, the trustee is entitled to sue for any injury or damage done to the trust property during the intermediate vacancy in the trusteeship, His title, for this purpose, is permitted to relate to the time of the wrong done. This is based on the necessity of the case, and is designed to promote justice. If the law were otherwise, trust estates would be subject to the most iniquitous spoliation by wrongdoers, who might select the period of accidental vacancies in administrations and other trusteeships for carrying out their schemes of plunder. — Jackson v. Ramsey, 3 Cowen, 75; s. c., 15 Amer. Dec. 242, Note, pp. 246-255; Hendon v. White, 52 Ala. 597, 605; Laurissini v. Corquette, 25 Miss. 177; s. c., 57 Amer. Dec. 200.
The charges of the court, and other rulings not particularly considered, are free from error.
Reversed and remanded.