1. The proposed amendments of the complaint, were founded in a misconception of the nature and character of the action, and were properly disallowed. Though in form an action of debt, it is founded in fact on a tort — the trespass committed in the cutting @f the trees and saplings on the land of the plaintiff. For the trespass, the statute (Code, 1886, § 3296 ; Code, 1896, § 4137) inflicts penalties varying in amount with the character of the tree or sapling cut or destroyed. The statute not prescribing the remedy to be pursued for the recovery of the penalties, the common law principle *197applies, that when a statute gives a penalty and provides no remedy for its recovery, an action of debt is the appropriate remedy, because the sum demanded is certain and fixed.—1 Chit.Pl. 108; Blackburn v. Baker, 7 Port. 284; Russell v. Irby, 18 Ala. 131; 1 Brick. Dig. 526, § 19. The introduction, as was proposed, of a count for the recovery of damages for the trespass, would have been a radical departure from the cause of action stated in the original complaint, not allowable by amendment, varying the nature of the pleadings and the character of the judgment to be rendered. — 1 Chit. Pl. 199-201; M. & M. R. R. Co. v. McKellar, 59 Ala. 458. In Blackburn v. Baker, supra, it was sought by an action of trespass to recover the statutory penalties, but the court held that in that form of action the plaintiff was entitled only to damages proportioned to the injury done to the lands, without regard to the value affixed to the tree by the statute. In the absence of statutes providing otherwise, the form of the action, rather than its subject matter, is the test of the propriety of the joinder of counts ; and when the same pleas may not be pleaded, or the judgment the law requires to be rendered on the several, coxxnts is essentially different, they cannot be joined.—Whipple v. Fuller, 11 Conn. 587. The count in assumpsit could not be introduced for the simple reason, that counts ex contractu,, and counts ex delicto may not be joined in the same coxnplaint.—Copeland v. Flowers, 21 Ala. 472.
2. The case was before the court at a former term (Higdon v. Kennemer, 112 Ala. 351). It was then decided that the appellant was the owner of the land from which the trees or saplings were cut, within the meaning of the statute on which the action is founded, entitled to recover the penalties it imposes. The change in the evidence, which it is insisted by the appellee, necessitates a different conclusion, is caused by the introduction of the patent for the land issued by the United States to John Gilliam on the first day of May, 1848. The admissibility of this patent, and its legal effect as matter of evidence, is the more important question now presented. The fact remains undisputed, as when the case was formerly before the court, that at the time of the trespass, the appellant was in possession of the land,- *198and had been from the conveyance thereof to him by Barnes and wife on the 14th January, 1890, the conveyance purporting to pass the fee simple, and that his possession and title had been recognized by the appellee. The land was not cultivated nor improved, but there was claim of title by the appellant, and there were acts of possession adapted to the character and condition, of tlie land, and .the extent of the possession was denned and marked by the conveyance from Barnes and wife, which, though it may nod have been so acknowledged and certified as to be self-proving, was color of title.—Saltmarsh v. Crommelin, 24 Ala. 352; Dillingham v. Brown, 38 Ala. 311; Farley v. Smith, 39 Ala. 38; Riggs v. Fuller, 54 Ala. 141.
The statute on which the action is founded, as is insisted by the appellee, has been uniformly construed as intended for the protection of the freehold from spoliation or destruction, and the remedy it gives as extending to the owner of the freehold exclusively.—Gravlee v. Williams, 112 Ala. 539; Higdon v. Kennemer, supra, and the authorities cited. But no higher or other evidence of ownership of the freehold is necessary to support an action founded on the statute, than would be necessary to support an action of trespass, the common law remedy for the injury to the freehold, or an action of ejectment for the recovery of possession. Possession of land, however recent, is prima facie evidence of title, and will support an action for an injury to the freehold, or for the recovery of possession against one who does not show a better right.—McCall v. Doe, 17 Ala. 533; Edkin v. Brewer, 60 Ala. 579; Eagle & PhoenixMan. Co. v. Gibson, 62 Ala. 369. In Tyler on Ejectment, 70, it is said : “It is a maxim of the law that the party in possession of lands is presumed to have a valid title thereto, and this presumption can be overcome only by proving title out of such party. Indeed, it has been said that possession of real estate is prima facie evidence of the highest estate in the property ; that is, a seisin in fee.” In Garrett v. Lyle, 27 Ala. 586-90, it was said by Goldth watte, J.: “We do not deny, that in equity, as well as at law, the plaintiff must recover on the strength of his own title ; but because this is the rule, it does not *199follow that he must show a good title against all the world. It is enough that he show a right to recover against the defendant; and there are many cases in which he has this right, although another person might recover it from him.” In the more recent case, Wilson v. Glenn, 68 Ala. 383, the doctrine is stated : “As against a mere trespasser, however, a bare peaceable possession by an actual occupant, under claim of ownership, is ordinarily sufficient to authorize a recovery, and such trespasser cannot defend himself by showing an outstanding title with which he in no way connects himself.” The appellee was a-mere trespasser on the land — his entry upon it was in recognition of the right and title of the appellant, in expectation of procuring a license or consent from him to open the contemplated public road; and if he were permitted to justify his trespass, by setting up an outstanding title in a stranger with which he has no connection, violations .of law would be encouraged, possessions rendered insecure, and vexatious litigation fostered. The objection taken to the introduction in evidence of the patent issuing to Gilliam should have been sustained. There is no aspect of the case in which it is relevant; the appellee not deducing right or title from it. It shows of itself- no more than at one time, more than forty years before the entry and possession of the appellant, the legal estate resided in the patentee; but it does not neutralize the presumption that the possession of the appellant was rightful, nor prove title out of him. This consideration renders erroneous the affirmative instruction given for the defendant. We need not consider any other questions involved in the assignment of errors — they will not probably arise on another trial.
Let the judgment be reversed and the cause remanded for further proceedings in conformity to this opinion.