This action was brought to recover the statutory penalty imposed by sections 4137 and 4138 of the Code. • To successfully maintain the suit, it was incumbent upon the plaintiff to show a legal title to the trees or saplings and that defendant cut or carried them away knowingly, willfully and without his consent.—White v. Farris, 124 Ala. 461; Clifton Iron Co. v. Jemison Lumber Co., 108 Ala. 581; Gravlee v. Williams, 112 Ala. 539. Nor is it of any consequence that the plaintiff was in possession of the trees, if it has not the legal estate in them.—Allison v. Little, 93 Ala. 150; Turner Coal Co. v. Glover, 101 Ala. 289; Gravlee v. Williams, supra.
The plaintiff upon the trial introduced in evidence a deed from one Thurman of the trees, who claims to have acquired his title from the defendant, to a portion of the land from which it is alleged they were cut or removed. The defendant offered to shoAV that his signature to the deed which he executed to Thurman was obtained by fraud. The court on the objection of the plaintiff declined to allow the evidence to be introduced. The trial resulted in a verdict and judgment for the plaintiff. On motion for a new trial, assigning twenty-seven grounds, the verdict and judgment were set aside because of the rulings of the court in refusing to allow the defendant *516to make the proof above indicated. From the granting of the motion this appeal is prosecuted by the plaintiff.
It is thoroughly well settled by this court that if a party named as a grantee in a deed, by misrepresentation of what the paper contains or other fraudulent means, obtains, the grantor’s, signature to a paper he did not intend to sign, and did not know he was signing, this is fraud in the execution of the instrument which is available in a court of law.—Foster v. Johnson, 70 Ala. 249; Davis v. Snider, Ib. 315, and cases cited. This principle does not seem to be controverted. The contention is that it has no application and cannot be invoked by defendant against the plaintiff because it is a bona fide purchaser for value without notice. If that status had been shown it would present the contention insisted upon by appellant for our consideration and decision. But as the evidence does not show it to be a bona fide purchaser for value of the trees, the principle is applicable and affects the validity of the deed under which it claims title as much so as the deed under which Thurman claimed title to the land and trees before making the conveyance to the plaintiff.
The recital in the plaintiff’s deed of value paid for the trees is not evidence against the defendant who is not a party to it or a privy under it.—Fitzpatrick v. Brigman, 130 Ala. 455, and cases cited therein.
There is no merit in the contention of appellant that the evidence offered by defendant, to show fraud in the execution of the deed to Thurman, should have been excluded because the deed or the record of it was not produced. He did not rely upon it to show title to the trees in himself, or to show an outstanding title to them in a third person. He admitted 'signing it and admitted that it conveyed the title to the land, unless he could successfully show that his signature was obtained by fraud. Besides, it was shown to have been delivered to the plaintiff and in its possession. Nor can it be said, as contended by appellant, that the exclusion of the evidence offered was error without injury. Under the evi-*517deuce it is impossible to say, that the damages assessed by the jury were for the trees cat on lands purchased by Thurman for the Houston heirs and not for any tree or trees cut or removed from the land claimed by Thurman under the deed from the defendant.
Affirmed.