Summary
In Hunt, this Court stated that it is possible for a judgment creditor to levy execution on an insured's cause of action against an insurer and subsequently purchase such chose at a sheriff's sale.
Summary of this case from Maranatha Faith Center v. Colonial TrustOpinion
No. 26802.
April 2, 1928. Suggestion of Error Overruled May 7, 1928.
1. EVIDENCE. Witnesses. Witness with assistants counting stumps on land from which timber was cut may testify as to number of trees cut and introduce memorandum; principle of shop book rule held applicable to admissibility of memorandum of number of trees cut, counted by witness and assistants.
In a suit for trespass for the value of timber cut and removed from lands, it is competent for a witness, who, with others under his directions, makes a count of the stumps upon the land involved and at the time makes a memorandum of the count, and from such memorandum, to testify as to the number of trees so cut, and to introduce the memorandum, although such witness did not personally count all of the trees so cut. The principle of the "shop book" rule is applicable. Panola County Bank v. Lbr. Co., 117 Miss. 593, 78 So. 516, cited.
2. EVIDENCE. Witness with large experience as estimator of number of trees standing or cut from lands may give opinion as expert as to proximate number of trees on or cut from land; in admitting testimony of expert as to number of trees on or cut from land, liberal rule prevails.
It is competent for a witness, who has large experience as an estimator of the number of trees standing or cut from lands, to testify, giving his opinion as an expert based upon experience, as to the proximate number of trees upon or cut from the land. In such case a liberal rule prevails. Carter v. Studdard, 118 Miss. 345, 79 So. 225.
3. TRESPASS. Where defendant believed that timber cut was on his lands, statutory penalty for cutting is not allowable but only actual value.
In a suit for both the statutory penalty and actual value of timber cut from lands belonging to plaintiff, where it appears that the defendant acted in good faith, under the belief that the timber cut was on lands purchased by him from another source, the statutory penalty is not allowable, but only the actual value of the timber so taken is recoverable in such case.
4. TRESPASS. In bill for attachment in chancery for cutting and removing timber, pleadings need only aver ownership and prove perfect title or possession under color of title; refusal to permit amendment of bill for attachment for cutting timber deraigning title to show actual possession under color of title is error.
In a bill for attachment in chancery for trespass for cutting and removing timber from lands, it is not necessary that the pleadings deraign title, but is only necessary to aver ownership and to prove either a perfect title or actual possession under color of title, as against a trespasser; and it is error to refuse to permit an amendment to a bill which has deraigned title, so as to show actual possession under color of title.
5. ASSIGNMENTS. Vendor and purchaser. Landowner's right to recover for cutting timber is assignable; deed conveying land, with all rights of action accrued or to accrue, for depredations and trespasses, assigns right of action for wrongfully cutting timber prior thereto ( Hemingway's Code 1927, sections 511, 512, 1834, 1835).
The right of a landowner to recover from a trespasser cutting timber from his lands is assignable; and where a deed conveying land conveys same "with all of its rights of action accrued or to accrue, for any and all depredations and trespasses committed upon any and all of the lands in this conveyance described," such deed operates to assign the right of action for wrongfully cutting timber upon such land prior to the execution of the conveyance.
6. ABATEMENT AND REVIVAL. Assignments. Penalties. Action to recover personal property, or to enforce contract to recover damages for breach of contract, or for injury to person or property survives; action for recovery of personal property or to enforce contract or recover damages for breach of contract or for injury to person or property is assignable; pure penalty intended as punishment for misconduct does not survive; pure penalty intended as punishment for misconduct is not assignable ( Hemingway's Code 1927, sections 511, 512, 1834, 1835).
Under sections 1834 and 1835, Hemingway's 1927 Code (sections 2091, 2092, Code of 1906), an action for recovery of personal property, or for the enforcement of some contract, or to recover damages for breach of a contract, or for recovery for injury to person or property survives and is assignable. This is not true as to a pure penalty intended as a punishment for misconduct in the nature of police regulations.
7. ADVERSE POSSESSION. Where persons have been in possession exercising ownership for long time to exclusion of state and nothing in record or proof shows state's continuous title, grant from state will be presumed.
Where persons are in possession of lands, exercising ownership thereover, and have done so for a long period of time, to the exclusion of the state, and there is nothing in the records or proof to show continuous title in the state, the court will presume a grant from the state to the person in possession of the land, or his predecessors. Caruth v. Gillespie, 109 Miss. 679, 68 So. 927, cited.
8. TAXATION. Tax sales held not void for failure to publish notice that rolls were on file and time of hearing objections; filing of assessment roll held to charge all persons with notice thereof, of roll's contents, of time for objecting, and of board of supervisors' power to raise assessments ( Ann. Code 1892, sections 3782, 3791).
A tax sale made in 1897 for the taxes of 1896 is not void because of the failure of the tax assessor to publish notice to the owners of land that the rolls were on file as required by law, and that the board would, at a designated date, hear objections to such roll. Under section 3791, Code of 1892, the filing for the assessment roll in the office of the clerk of the board of supervisors by the assessor on the date fixed by law charged all persons with notice of that fact and of the contents of the roll so filed, and charges them with notice of the time within which to file objections and of the power of the board of supervisors to raise the assessments thereat.
APPEAL from chancery court of Coahoma county, First district; HON. HARVEY McGEHEE, Chancellor.
Maynard, Fitzgerald Venable, for appellant.
The court clearly erred in refusing to allow the count of stumps made by Hendricks and Holcomb. This counting was done in the presence of F.W. Wilcox, and under his supervision. Each man went down alongside each other, the strips laid off, and after the count was made it was all put down by Wilcox in his book. It was not necessary for Hendricks and Holcomb to be present and testify in person. A memorandum book kept by the man in charge of the counting was sufficient, under the "Shop-Book Rule." R.R. Co. v. Williams, 38 Tex. Civ. App. 405, 86 S.W. 38; Coal Co. v. Hull, 138 A.S.R. 453; Wigmore on Evidence, sec. 1530. Since the court ruled that the testimony of Wilcox as to the count of Mr. Hendricks and Mr. Holcomb was not admissible, then the calculation of Mr. J.J. McGovern, which is uncontradicted, should have been accepted as the only evidence in the case as to the number of trees cut.
In order to escape the statutory damages allowed for wilful trespass, appellee sets up the defense that one of the attorneys for appellee advised him that complainants held no title to the lands in controversy, but that the title to same was in appellee, under a deed from the Laconia Levee District of Phillips county, Arkansas, executed to him in the early part of September, 1924. An inspection of the record discloses the fact that the lands purchased from the said Levee District were situated in the state of Arkansas, and the nearest of said tracts of land to the lands in controversy was eight or ten miles up the river from the lands in controversy and on the west side of the river. No reasonable man could believe that the lands in controversy were accretions to, or any part of said Arkansas lands. The defense of advise of counsel is generally used in suits for malicious prosecutions. The rule as stated in Whitfield v. Westbrooks, 40 Miss. 311, is that the advise of counsel is not a legal defense unless all the facts touching the matter are proven to have been submitted to the lawyer giving the advice and that these facts were reasonable and justified in the opinion of the lawyer. The record does not disclose that the facts proven in this case, with reference to the matter upon which the advice of counsel was relied, were ever submitted to him; and if submitted, said counsel could not have reasonably given any such advice. R.R. Co. v. Smith, 37 So. (Ala.) 490; Whitfield v. Westbrooks, 40 Miss. 311; Pittsburg W.V. Gas Co. v. Pentress (W. Va.), 7 A.L.R. 901; Brewer v. Jacobs, 22 Fed. 217.
The court only allowed one dollar and ten cents a cord, whereas the weight of the evidence clearly is that he should have allowed one dollar and sixty-five cents a cord, if it was proper for the court to allow this wilful trespass to deduct the expenses of getting out and loading the timber. The court was in error in not charging appellee with two dollars and seventy-five cents per cord for the timber cut. Hunter, being a wilful and wanton trespasser, cutting this timber in defiance of his contract with Leavenworth and after Leavenworth had ordered him to stop cutting the timber, should not have been allowed a cent as expenses in getting the timber out. That is the rule in replevin and in trespass cases. Even if appellee honestly believed that this land was in the state of Arkansas, he was nevertheless a wanton trespasser as against Leavenworth. In Perkins v. Hackleman, 26 Miss. 41, the court said: "If a party intending to commit a trespass on public lands, through mistake cut down trees on the land of another person, he is liable to the penalty for such trespass." Here we have sued for both actual damages and statutory damages which is permissible under chap. 67, Laws of 1924. A review of the testimony of this case will clearly show that Hunter was a wilful trespasser. In case of wilful trespass the measure of actual damages is the same as in replevin. The rule is announced in Beard v. James, 48 Miss. 247. The court said that where cutting is wilful, the owner is entitled to value in improved state. See also, 38 Cyc. 2089 and 2090; Lumber Co. v. Rowley, 110 Miss. 824; Petterson v. Polk, 67 Miss. 168; Lesser v. Dane, 77 Miss. 198; Keirn v. Warfield, 60 Miss. 799; Telephone Co. v. Cassedy, 78 Miss. 670; Lumber Co. v. Cuave, 104 Miss. 32.
The lower court held that since appellant had deraigned his title through a deed of the Johnston Hunting Club, which contained an assignment of the rights of action in this case, that appellant could not recover the statutory damages, because claims for statutory damages are not assignable. In discussing the question as to whether or not statutory damages are assignable in the state of Mississippi, and whether or not the five dollars per tree sued for herein is in strict sense a penalty, we will first address ourselves to the error committed by the court in not allowing the appellant to prove that it was in fact in possession of the lands in controversy prior to and at the time of the cutting of the timber thereon by Hunter, under a contract or bond for title with the Johnston Hunting Club, and that appellant continued in possession of it up until the time of the execution of the deed. The court replied that appellant had deraigned title under the assignment of the Hunting Club made in the month of November, 1924, and that it would not be allowed to show possession under any other contract. Appellant's counsel replied to that contention of the court that in a suit for trespass for cutting timber it was not necessary to deraign title; that all it was necessary to do was to show actual possession, or if that was not true, possession under color of title. Nevertheless, the court erroneously refused to allow that testimony. In Ingram-Day Lumber Co. v. Cuave, 104 Miss. 32, the court held that to be the law. See, also, Stewart v. Kennedy Co., 118 Miss. 766; Harris v. Newman, 5 Miss. 654; Weir v. Collins, 35 Miss. 223; Gathering v. Miller, 76 Miss. 651; Darrill v. Dodds, 78 Miss. 912; Carpenter v. Savage, 95 Miss. 748.
After the case was closed and during the argument for the appellant, the complainant in the court below, one of the counsel for complainant moved the court to allow the bill and deraignment of title to be amended so as to show that J.H. Leavenworth Son, Inc., were in actual possession of these lands and other lands in August, 1924, under a written contract with the O.H. Johnston Hunting Club, and remained in possession from that time on, until execution of the deed, and since. The court refused to allow the amendment on the grounds that appellant was too late in asking for the amendment. We submit to the court that the chancellor was in error in this. Appellant was certainly entitled not only to the amendment, but to an opportunity to make the proof under the amendment. Sec. 353, Hem. Code; Sec. 593, Code of 1906, states that "Amendments shall be allowed in pleadings and proceedings on liberal terms to prevent delay and injustice." See Russell v. Denson, 98 Miss. 862; Hart v. Potter, 80 Miss. 796.
It is of course desirable to determine what is the test of assignability and without question it seems to be one of survivability, so that a chose in action is assignable if it would survive to the executor or administrator of its owner in the event he should die. See R.C.L. Abatement and Revivability, sec. 46. The idea of the statute is to afford a remedy to the injured party and not solely and alone to punish a wrongdoer. The statute is remedial and not penal. The question arises, what was the legislative purpose in the statutes giving damages in fixed amounts for the cutting of trees? By section 3245, it is provided that a person who cuts down a live oak tree without the consent of the owner shall pay fifty dollars; by section 3247, it is provided that if a person shall cut down, girdle or destroy any ornamental tree of any kind, he shall forfeit to the owner forty dollars, Section 3248 provides that if any one shall destroy any ornamental shrubs, etc., he shall pay the owner twenty dollars for each shrub, plant, etc. Section 3249 provides for the payment of fifty dollars for fruit trees. Section 3252 provides for the payment of five dollars for boxing pine trees. Section 3246 provides for cypress, white oak, black oak, pine, poplar, black walnut, cherry, pecan, etc., fifteen dollars per tree, and for all other trees not therein described the sum of five dollars. The guilt of the trespasser who enters upon the land of another without his consent and cuts down an ash tree is just as great as one who enters upon the land of another and without his consent cuts a live oak tree. One is as guilty as the other. It is hard to conceive of any difference in that guilt, and yet we can clearly see the statutes provided in one case for the payment of fifty dollars and in the other for the payment of fifteen dollars. There could be no reason for this difference except that the live oak is considered more valuable than the ash and no reason for the difference in penalty unless the statute is to compensate the owners in proportion to the value of the tree lost or destroyed. The whole chapter shows an effort to fix the amounts to be recovered to the legislative estimate of the value of the tree to the owner. It will be noticed besides that the cause of action is given to the owner. The idea of the statute is compensation. It is sought, however, to call this a penalty because the damages are arbitrary and in some instances greater than the market value of the tree destroyed and hence it is argued that this shows exclusively that the statute is penal and the cause of action not assignable.
The next question is to determine how have the courts regarded and interpreted such statutes, whether penal or as remedial. We think it will appear from the cases hereinafter cited that the statutes are not penal in the sense that it urged upon the court. A statutory cause of action for double the value of property stolen, unless it is restored, is not a cause of action, for a penalty. Aylsworth v. Curtis, 79 R.I. 517, 61 A.S.R. 785, 33 L.R.A. 110. Reed v. Northfield, 13 Pick. 94, 23 Am. Dec. 662, was an action on the case to recover double damages for an injury caused by defect in the Highway. The court held the action was remedial. Chief Justice SHAW said: "All damages for neglect or breach of duty operate, to a certain extent, as punishment; but the distinction is, that it is prosecuted for the purpose of punishment and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a failure to perform that duty. The law gives him enhanced damages; but still they are recoverable to his own use, and in form and substance the suit calls for indemnity." See, also, Mitchell v. Clapp, 12 Cush. 277; Hunting v. Attrill, 146 U.S. 657, 36 L.Ed. 1123. It seems to be clear that the mere fact that double or treble or an arbitrary amount as damages is given to the person injured, does not prevent the statutes from being remedial. In Sullivan v. Associated Billposters and Distributors, 42 A.L.R. 503, the court says: "If a statute which is penal in part gives a remedy for injury to the person injured, to the extent that it gives such remedy it is a remedial statute, irrespective of whether it limits the recovery to the amount of actual loss sustained, or as cumulative damages as compensation for the injury."
If causes of action are assigned by operation of law to executor or administrator, they are equally assignable between parties inter vivos, this being the test. That a right to recover damages for trespass survives to the administrator was settled in Mississippi at an early date. R.R. Co. v. Moye, 39 Miss. 374; McInnis Lbr. Co. v. Rather, 111 Miss. 55; Anderson v. Kelly, 99 So. 382. In Wells v. R.R. Co., 96 Miss. 191, the court held that a cause of action for personal injury was assignable, adopting as the test whether or not it would survive to the administrator upon the death of the injured party. We wish, in conclusion, to call the court's attention to what the statutes of Mississippi say with reference to assignability of choses in action. The quotation of these statutes is not necessary. Section 497 provides for the assignee bringing the action in his own name if the assignment is in writing. Section 498 provides that any chose in action, whether it is one assignable under the laws of the state or not, shall be assignable if the suit is brought by the proper party. Section 1758 of the code provides as follows: "The executor or administrator may commence any personal action whatsoever, which the testator or intestate might have commenced in his lifetime," and it seems to us that this puts an end to the argument that a suit for a penalty, even a pure penalty, with no compensatory features, is not assignable.
Ed. Brewer, Wassell Randolph and A.M. Coates, for appellee.
Much ado is made about the refusal of the chancellor to permit the witness Wilcox, to testify from certain memoranda he claimed was made by him at the time of the counting of the willow brush or saplings. Counsel say in their brief that under the "Shop-book Rule" this sheet of paper offered in evidence was competent and should have been admitted. We submit that the cases cited by counsel are not at all in point. For instance, they cite R.R. Co. v. Williams, 86 S.W. 38, in which the court says that a bookkeeper may testify as to the weights of cattle as shown by his books. The witness Wilcox never had any books and never produced any books, but simply offered in evidence a leaf which he says was torn from a memorandum book. Counsel cite Coal Co. v. Hill, 138 A.S.R. — in which it is said that the permanent record and not the slips is all that is required. Certainly no permanent record was offered by the witness Wilcox. The evidence of this witness should not have been considered at all; it has all the earmarks of manufactured testimony. The only positive testimony of the witness Wilcox is that he counted nineteen thousand nine hundred seventy-six willows. His testimony is that the other two men who were counting with him counted at least fifteen thousand. This would make a total of thirty-four thousand nine hundred seventy-nine. The witness Kimble was offered as a witness by appellant to prove the number of trees cut. Although he had never made any effort to count the number of willows cut, and although he knew nothing about lines, he testified that he was willing to swear that there were as many as forty thousand cut from the land. His testimony is very uncertain and indefinite and unsatisfactory. J.J. McGovern was offered as a witness for appellant and, while he never attempted to count any of the willows, he testified that figuring them so many feet apart, there must have been one hundred sixteen thousand two hundred seventy-two willows on the land in question. The memorandum of Wilcox offered in evidence, shows fifty-four thousand nine hundred eighty-seven trees on the total area, and Wilcox testified that the stumps where the willows had been cut were very easily seen and that he and the two with him counted every willow and cottonwood stump. Therefore, the evidence of McGovern as to the one hundred sixteen thousand two hundred seventy-two willows cannot possibly be true, and it goes to show the extent to which appellant went in attempting to prove the willows cut. No sound reason or argument has been advanced by appellant as to why this finding of fact should be disturbed. If the chancellor erred, the error was in appellant's favor.
Appellant complains that the court did not award it a sufficient amount for the willows cut, and that the wrong measure of damages was applied. If the wrong measure was adopted by the court, it was against appellee and in favor of appellant. The proof shows that appellee received two dollars and seventy-five cents per cord from the United States Government; the proof further shows that the actual cost of cutting these willows and hauling them to the water's edge was one dollar and sixty-five cents per cord; and this does not include any overhead expenses nor does it include anything for building roads or bridges, nor does it include anything for loss of time on account of bad weather, high water, or providential hindrances. The appellee never at any time, under the most favorable circumstances, made as much as one dollar and ten cents per cord on willows sold the Government. In view of the fact that the chancellor heard all the evidence and gave his finding of fact on this question, we submit it for the consideration of the court.
Counsel say that even if appellee honestly believed that this land was in the state of Arkansas he was, nevertheless, a wanton trespasser as against Leavenworth. We challenge the correction of this statement and say that it cannot be supported by any authority. Perkins v. Hackleman, 26 Miss. 41, is cited. This case, instead of being an authority for appellant, is directly in point for appellee. In this case it is held that if a person intending to cut timber on his own land, but by mistake he cut timber on the land of another, he would not be liable for the penalty but only for the actual damage done. The actual damage done in this particular case is not more than twenty-five cents per cord, as the record in this case shows conclusively that the maximum amount ever paid for willow brush along the Mississippi river was twenty-five cents per cord, and that most of it was purchased at ten cents a cord.
Counsel cite Heard v. James, 49 Miss. 247, and in answer to this case we quote from R.R. Co. v. LeBlanc, 74 Miss. 626, which is a case where suit was brought in trespass for the taking of gravel from a pit. The court held that the plaintiff was only entitled to recover the value of the gravel before it was taken from the pit. In the case at bar the court went much further and gave appellant several times the value of the willows as standing on the sand bar. Lbr. Co. v. Rowley, 110 Miss. 821, is cited by appellant. In the last paragraph of the opinion in this case it is said that the measure of appellant's damages is the value of the timber cut and removed. The word "timber" means standing trees and not logs in their improved state. In other words, the holding in this case is that the measure of damages is the value of the trees standing and before being cut. We refer the court to Bond v. Griffin, 74 Miss. 599, which case quotes with approval the rule laid down in the LeBlanc case.
The court was correct in excluding the alleged contract offered in evidence by appellant. This alleged contract of sale is not dated and is not signed by the O.H. Johnston Hunting Club and is not accepted by appellant. And in addition to this, the contract shows from its face that another contract for the sale and purchase of the timber is in existence. Counsel cite Hart v. Potter, 80 Miss. 796, in support of its contention. We know of no stronger authority for the appellee than the opinion in this case, wherein the court said: "The application to amend a bill of complaint after a cause has been submitted for consideration and decision comes so late in the proceedings that the granting of it is largely within the discretion of the chancellor, and where the evidence of the fact sought to be inserted in the bill might be manufactured for the occasion it is usually denied." Appellee takes the position that the alleged contract offered in evidence, even if admitted, would in no wise affect the decision of the court. The appellant said in its original bill that it derived its title to the lands in question by or from the O.H. Johnston Hunting Club, under date November 1, 1924, and the deed was by the appellant offered in evidence. In the deed an attempt is made to assign the right to sue for trespass. If appellant already had this right, why the necessity of this clause in the deed? This is clearly a case where appellant purchased what it thought was a right to sue appellee for statutory penalties and with the purpose of harassing and vexing appellee with a suit for an immense sum of money without any right or foundation to support the claim.
The right to sue for statutory penalty is not assignable. Prior to 1924 the owner of trees could not recover both statutory penalty and actual damages. The legislature of 1924, amended section 4977, Code of 1906, being section 3246, of Hemingway's Code. Since the passage of the above, it is clear that the appellant in this cause had the right to sue for both actual damages and for the penalty prescribed by the statute, and both, in proper cases, may be recovered in the same suit. It is insisted by counsel for appellant that the best test as to whether or not a chose in action is assignable is whether or not it would survive to the executor or administrator of its owner in the event he should die. Wilson v. Schrader, Ann. Cas. 1916, 889, specifically lays down the rule that the penalty as sued for in this case is not in any sense a chose in action. It is laid down in 1 C.J. 209, par. 406, as the general rule that "in the absence of express statutory provision to the contrary, actions and causes of action for the recovery of statutory penalties do not survive."
Counsel quote from R.C.L. under the head of Abatement and Revivability, sec. 46. This statement of the rule is clearly in appellee's favor. We quote from counsel's brief as follows: "As to what is a penal action, the rule is that where an action is founded entirely upon a statute and the only object is to recover a penalty or forfeiture, it is clearly a penal action." See McNeely v. City of Natchez, 148 Miss. 268, 114 So. 484.
The statute refers to five dollars a tree as a penalty and not otherwise. How can anyone, with any degree of consistency or sincerity, argue that the five dollars is not a penalty when the statute specifically says that it is, and does not call or denominate it anything else? Counsel refer to sections 3245, 3247, and 3248, Hemingway's Code. It will be noted that none of these sections denominate the amount provided for in each section as a penalty. Neither of these sections has been amended, and if a suit were brought now under either section, it is our opinion that the complaining party could not sue for both penalty and actual value, but would have to elect as to which one he would sue for. Counsel do not distinguish between the statute as it is now written and as it was prior to 1924. It may have been prior to the passage of the 1924 Act that the statute was partly penal and partly remedial. As the statute is now written, the right to sue for five dollars per tree is purely penal and cannot be otherwise. Wilson v. Schrader, supra, comes nearer being in point than any case heretofore decided on the question of assignability of a penalty. We commend this case to the court as authority in point for the appellee.
Counsel attempt to distinguish the Wilson case and say that the court in rendering the opinion was careful to point out that the legislature, in passing the statute under which the action was brought, could not have intended to compensate the owner. We say in answer to this that counsel cannot find in any law book any statute that is more specifically and highly penal than the Mississippi Statute of 1924, here under consideration. There are a number of cases to this effect, but we cite only the last, the case of R.R. Co. v. Coln, 145 Miss. 399. Appellant would not be entitled to penalty even though assignable. In conclusion, we say to the court that even though the right to sue for a penalty is assignable in Mississippi, nevertheless, under the facts in the case at bar, appellant is not entitled to the penalty of five dollars per tree or to any penalty whatever. We do not think that the court wants us to take up its time by long argument on this point.
Argued orally by Geo. F. Maynard, Sr., and Jr., for appellant, and Ed. Brewer, for appellee.
Appellant was complainant in the court below, and filed an attachment in the chancery court for actual and statutory damages for the willful trespass of appellee in cutting and removing from lands of appellant certain cottonwood and willow trees sold by appellee to the United States government for revetment work on the Mississippi river. The lands from which this timber was cut is situated in the northwest quarter of section 27, township 27, range 6, which was purchased by the appellant from the O.H. Johnston Hunting Club. This cutting was done between the 1st of September and the 8th day of October, 1924. During the month of August, 1924, appellant entered into a contract for the purchase of this land, and other lands, from the O.H. Johnston Hunting Club, evidencing same by a written instrument, and, on the 1st day of November, 1924, a deed was executed by the O.H. Johnston Hunting Club to appellant conveying said lands together with all rights existing in the grantor, the particular clause of which will be hereafter discussed. As a part of its suit, complainant has deraigned its title to said land, and, among other titles, is a deed from Robert J. Walker to John A. Quitman, and a tax deed made by the tax collector of Coahoma county in 1897, for the taxes of 1896, conveying a large body of land to various individuals, who afterwards formed the O.H. Johnston Hunting Club, incorporating same and conveying the land to such company.
It appears from the record that there was some correspondence during August, 1924, between Walter Hunter, a son of the appellant, acting, or purporting to act, on behalf of his father, and R.V. Kimble, one of the officers of the appellant company, for the purpose of obtaining a right to cut timber a distance of two miles along the river, beginning below the mouth of Old river, and going up the river, and, in this correspondence and negotiations a suit pending in Washington county was, or appears to have been, settled. The contract when presented to appellee, was not signed by him, he having been advised by an attorney that the land in question lying along the river, as above stated, was located in the state of Arkansas, and not in the state of Mississippi; and, thereupon, the appellee purchased the land from a levee district of the state of Arkansas, and claims to have cut timber under the belief that the timber was upon on such land, but, after the timber was cut, a survey disclosed that the land was not in Arkansas, but in Mississippi.
In the correspondence above referred to was a letter dated August 27, 1924, containing the following:
"Confirming our telegram of the 12th, it will be satisfactory for you to cut the willows along the bank above Sunflower Landing, and starting at the mouth of Old river, and working up the bank a distance of approximately two miles, and back a depth of one hundred yards. As explained, we prefer not to sell, but in view of the urgency of your need, it will be satisfactory, provided you follow instruction. Do not cut any cottonwood and pay us twenty-five cents per cord on government measure."
It was claimed that the cutting of this timber was contingent upon the signing of a contract by C.W. Hunter in regard to the settlement of a lawsuit in Washington county, and that appellant sent a contract to be signed by appellee, addressed to him at Memphis, Tenn., the contract being dated August 27, but Hunter declined to sign same. It appears that Walter Hunter gave directions to the force that cut the timber and told them about the contract, and that he testified with reference to the expense involved in the cutting. It appears that the timber cut ranged in size from three to eight inches in diameter at the base of the tree, and that practically the whole tree was utilized in revetment work.
The appellant offered the testimony of one Wilcox, who testified that he saw the cutting of the timber, and that some time after it was cut he counted the stumps and located where the government barge was landed.
It appears from the testimony that Wilcox took two helpers to count the stumps of the trees cut, and divided the strip of land into divisions of convenient sizes, and each of the three parties counted the stumps on one of the divisions, beginning at one, two, three, and so alternating until the whole strip was counted, and that the two helpers reported the number cut to Wilcox, and he made a memorandum of the number thereof, but did not personally count all the stumps involved, and that the other witnesses, the two helpers, were not present to testify, one being out of the jurisdiction of the court, and the other being dead. The complainant offered this testimony of Wilcox on the theory that the cutting was done under his supervision, and that he made a memorandum thereof at the time and introduced same at the trial, undertaking to testify from same as to the total number of trees cut. The court permitted him to testify as to the number he personally counted, but excluded evidence as to the other two helpers, and refused to permit Wilcox's memorandum to be introduced. The complainant also introduced witnesses who testified that they were skilled and experienced in the estimate of timber on lands, as a result of their business connections, and that they estimated the number of trees on this tract without actually counting same, and offered to give their opinion as to the number of trees, based upon their experience in estimating the average distance of trees apart, giving their estimate of same based on the number of trees per acre. The premises had been surveyed, and the acreage determined. The court refused to admit this evidence.
It will be noted that the plaintiff was undertaking to prove the number of trees cut and removed as a part of this case, by making out the value of the timber.
We think the testimony of Wilcox as to the number of trees cut and reported to him, and his memorandum thereof made at the time in a book kept by him, showing the number of trees counted by each party, was competent under the principle permitting "shop books" in evidence. Panola County Bank v. Lumber Co., 117 Miss. 593, 78 So. 517; Atchison, T. S.F.R.R. Co. v. Williams, 38 Tex. Civ. App. 405, 86 S.W. 38; Sheridan Coal Co. v. Hull, 87 Neb. 117, 127 N.W. 218, 138 Am. St. Rep. 435, and note, 453; Wigmore on Evidence, vol. 2, p. 1530, and notes.
We also think it was competent for McGovern and the others, experienced in such matters, to testify and give their opinion and knowledge of such matters, based upon their experience, as to the approximate number of trees upon the land or cut from the land, but we do not decide whether this would be competent to prove the number of trees in a suit for the statutory penalty, because, in our opinion, the chancellor was correct in refusing to allow recovery of the statutory penalty under the facts in this record.
In suits of this kind, in questions establishing value, a more liberal rule prevails than applies to ordinary suits. Value may be proved in this method, and it is competent for an experienced estimator to give his opinion, based upon observation and experience, in such matters, as to the number of trees, and, consequently, the court erred in excluding this evidence. It might be that the estimate of the several witnesses differs from the actual count made by Wilcox and his associates, but the jury and the court are entitled to have the aid of such testimony in arriving at a correct conclusion in such matters. Carter v. Studdard, 118 Miss. 345, 79 So. 225.
As stated above, the chancellor refused to allow the recovery of the statutory penalty on the theory that Hunter cut the trees in good faith, believing that they were on the land which he had purchased, and which was supposed to be in the state of Arkansas. Hunter did not sign the contract with complainant referred to above in the correspondence, and although his son may have acted under the belief that the contract existed, yet, if Hunter was acting in good faith and believed that the trees being cut were on his land purchased from the state of Arkansas, he would not be liable for the statutory penalty, although he would be liable for the actual value, where, as here, the land is not the land he is supposed to have owned, but belonged to another; consequently, the chancellor's decree in this regard will be upheld and affirmed.
On the trial of the cause, the appellant offered to prove by one Wildberger that he went into possession of the land in controversy under a contract entered into in August, and that he was in possession under color of title at the time the timber was cut.
The court refused to permit this proof, and refused to permit the pleadings to be amended so as to set up that contract as the basis of color of title and actual possession.
In our opinion, it was not necessary, in the bill, to deraign the title in this kind of case, but it was only necessary to prove the title, or color of title, with actual possession; and, consequently, that proof of possession under color of title was competent evidence in this suit, and the amendment should have been permitted.
In the deed from the O.H. Johnston Hunting Club to J.H. Leavenworth Son, Inc., which conveyed the lands involved in this suit, in the granting clause of the deed is the following:
"Party of the first part doth by these presents, unto the party of the second part, its successors, and assigns, grant, bargain, sell, convey, and warrant generally the following described lands, lying, being and situate, etc. [describing the property], . . . but the party of the first part does not warrant that the lands in section 8 and a portion of the lands in section 27 are not in the Mississippi river, but intends to convey and does convey especially all accretions and riparian rights to the lands in said last two-named sections with all of its rights of action accrued or to accrue, for any and all depredations and trespasses committed upon any and all of the lands in this conveyance described."
This deed is dated November 1, 1924, which is subsequent to the cutting of the timber by the appellee.
It is contended that this right could not be assigned, and was not assignable, because the action would die with the defendants, and, at common law, was not assignable; and considerable argument is made with reference to this point, which seems to have been the chief point in the case, and, apparently, was very influential in a decision of the case.
We are of the opinion that the right of action was assignable. Section 1834, Hemingway's 1927 Code (section 2091, Code of 1906), provides that:
"Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted. And they shall also be liable to be sued in any court in any personal action which might have been maintained against the deceased."
Section 1835, Hemingway's 1927 Code (section 2092, Code of 1906), reads as follows:
"When any decedent shall in his lifetime have committed any trespass, the person injured, or his executor or administrator, shall have the same action against the executor or administrator of the decedent as he might have had or maintained against the testator or intestate and shall have like remedy as in other actions against executors and administrators; but vindictive damages shall not be allowed, and such action shall be commenced within one year after publication of notice to creditors to probate and register their claims."
These statutes were construed by this court in the case of McNeely v. City of Natchez (Miss.), 114 So. 484, and, in the course of the opinion, at the bottom of page 486, the court discussed the question and construed these statutes, saying:
"The decision of this question turns upon the definition of the words `personal action' used in the above-quoted section. At common law, a personal action, in the absence of special statute, did not survive against the deceased. And sections 1834 and 1836, supra, are in derogation of the common law, and must be strictly construed. It will be presumed that the legislature used the technical words `personal action,' ascribing to them their strictly technical meaning. There were many kinds of actions, such as action at law, action ex contractu, action ex delicto, action in personam, action in rem, quasi in rem, amicable, civil, common law, equitable, hypothecary, local, mixed, penal, personal, petitory, popular, possessory, qui tam, real, remedial statutory and transitory. 1 C.J., pp. 929 to 933. A penal action is defined as `an action upon a penal statute; an action for the recovery of a penalty given by statute.' 1 C.J. 932, section 14, and note. The same authority, section 15, defines a personal action as `an action brought for the recovery of personal property, for the enforcement of some contract or to recover damages for its breach, or for the recovery of damages for the commission of an injury to the person or property.' See Hayden v. Vreeland, 37 N.J. Law, 372, 18 Am. Rep. 723."
At the bottom of page 487, we conclude this opinion as follows:
"We conclude that the term `personal action' in its broadest sense includes all actions except those relating to or for real estate, but in this statute is used in the restricted sense as defined in Corpus Juris and authorities there cited, heretofore set out."
It would appear that any action which is brought for recovery of damages for the commission of an injury to person or property is a personal action which survives under the above statute, and, of course, would be assignable.
Our law also recognizes the assignability of actions in section 511, Hemingway's 1927 Code (chapter 134, Laws of 1916); section 512, Hemingway's 1927 Code (section 718, Code of 1906). See, also, 1 R.C.L. title "Abatement and Revival," p. 47, sections 146, 147 and 148.
We are, therefore, of the opinion that the right of action was assignable, and, as the deed specifically made an assignment of the cause of action, the right of the appellant to sue thereon exists by virtue of said deed, although the timber was cut prior to the execution of the deed.
The defendant, appellee, introduced in evidence a sheriff's deed made by P. Poindexter, sheriff, on October 6, 1845, reciting that on the 23d day of June, 1845, a certain writ was issued from the circuit court of Adams county on a certain judgment against Robert J. Walker, E. Garnett Howell, and Peter M. Lapice, and that a sale to the state of Mississippi was made thereunder, the deed containing the lands involved in this controversy and other lands, and contended that complainant's chain of title was through the deed from Robert J. Walker and wife made subsequent to this sheriff's deed, by which the land in controversy was conveyed.
The defendant also introduced a deed from the state of Mississippi to the O.H. Johnston Hunting Club, dated the 5th day of November, 1924, which deed, for the consideration of ten dollars cash, undertook to quitclaim and convey to the O.H. Johnston Hunting Club all the state's right, title, and interest in and to the lands involved in this suit, which were acquired under an execution sale. This deed was signed by the Governor and the land commissioner, and approved by the attorney general, Rush H. Knox, in the following words: "Approved for reason that I don't believe the state has any title."
The complainant offered to prove that, prior to this, on inquiry of the land commissioner, the state owned no such lands, and there was no record showing same. The deed does not show, on its face, that any such record existed showing the land to belong to the state, and the certificate of the attorney-general that, in his opinion, the state had no title to the land is very pertinent, because, for many years, there has been a statute, section 2946, Code of 1906 (section 6116, Hemingway's 1927 Code), by which it is provided that:
"If in his opinion the state has no title to said land, he shall so notify the auditor or land commissioner, who shall strike such land from the record in his office and notify the clerk of the board of supervisors of the county in which such land is situated with certified lists of lands so stricken off," etc.
This court held in the case of Caruth v. Gillespie, 109 Miss. 679, 68 So. 927, that where parties are in possession of land, and have been for a long time, making improvements on it, and dealing with it as their property, hostile to the state's claim, and where more than thirty years have elapsed between the taking of possession and the institution of the suit by the state, the law will presume a grant by the state of its title. We think the presumption is applicable to the facts of this case. In other words, there is nothing except the sheriff's execution deed to show that the state has ever claimed title. That deed was executed in 1845, and we find the land assessed to private owners in 1896, and was conveyed by the original owners subject to the execution sale, and was sold for taxes to the parties who organized the O.H. Johnston Hunting Club in 1897, and was purchased by said individuals, and has since been occupied and used by them, which is a sufficient indication that there had been a grant of same by the state.
It will be noted that the attorney-general, whose duty it is to pass judgment upon the legal title, under the statute above referred to, was of the opinion that the state had no title thereto. That opinion, we must presume, was based upon a careful examination of the records of the land office and any other sources which any other records furnished.
We are, therefore, of the opinion that the state had no title to the land, and, consequently, no right of action for the trespass committed upon it.
The tax sale in 1897 for the taxes of 1896 was challenged as being void for the reason that no notice was published notifying property owners of the filing of the assessment roll for the year 1896, and that, consequently, the assessment was void, and the sale thereunder conveyed no title.
By section 3782, Code of 1892, it was provided:
"The assessor shall complete the assessment and deliver the roll or rolls to the clerk of the board of supervisors on or before the first Monday of July in each year. He shall make an affidavit, and append it to each roll, showing that he hath faithfully endeavored to ascertain and assess all the persons and property in his county, and that he has not omitted any person or thing, or placed upon or accepted an undervaluation of any property, through fear, favor, or partiality; and, in case of a personal roll, the affidavit must further show that he hath administered the oath required in every case where it was in his power to do so, and called attention to its provisions."
Section 3783, Code of 1892, reads as follows: "The failure of the assessor to certify and swear to his assessment roll, or to return it on the day named for its return, shall not affect the validity of the assessment if approved by the board of supervisors, or by operation of law."
Section 3791, Code of 1892, reads as follows: "The return and filing of the assessment rolls in the office of the clerk of the board of supervisors by the assessor shall be notice to all persons of the fact, and of the contents of the roll or rolls so filed; and all persons shall be held to have notice of the time within which to file objections to assessments and of the time when the board of supervisors will hear the same; and of its power to raise assessments thereat."
It will thus be seen that no notice was required to be published under the Code of 1892, but that the filing of the roll in the office of the clerk, at the time fixed by law, charged all persons with notice thereof. It was clearly within the power of the lawmakers to so provide, and the roll therefore was not invalid; and, under section 2735, Code of 1892, it is provided that:
"Actual occupation for three years, after two years from the day of sale of land held under a conveyance by a tax collector in pursuance of a sale for taxes, shall bar any suit to recover such land or assail such title because of any defect in the sale of the land for taxes, or in any precedent step to the sale, saving to minors and persons of unsound mind the right to bring suit within such time, after the removal of their disabilities, and upon the same terms as is provided for the redemption of land by such persons."
It is also insisted by appellant that said appellant was entitled to recover the full value of the timber loaded on the barge, which the proof showed to be two dollars and seventy-five cents a cord, on the theory that appellee was a willful trespasser.
The court allowed only the value of the timber on the barge, less the expense of cutting and loading it thereon.
The ruling contended for is applicable to a willful trespasser, but, on the record before us, we think the chancellor was warranted, from the evidence, in believing that the appellee was not a willful trespasser, but was acting bona fide, relying on his purchase from the state of Arkansas.
We are, therefore, of the opinion, that the chancellor applied the correct rule herein, as he allowed damages against appellee, and, as applied to this case, the rule should be the value of the timber loaded on the barge, less the cost of cutting and loading thereon.
The judgment of the court below is affirmed as to the refusal to allow the statutory penalty, but is reversed and remanded, as to that part of the bill claiming actual damages, for a new trial in accordance with the views expressed in this opinion.
Reversed in part, and affirmed in part.