Opinion
No. 32411.
November 23, 1936.
1. TRESPASS.
Vendor selling standing timber is not liable for trespasses or conversions by purchaser when vendor conveys by quitclaim merely, or grants a license without any assurance of good title so that purchaser takes it on his own responsibility and at his sole risk and consideration is finally determined, fixed in amount, and paid or secured at time of sale.
2. TRESPASS.
Vendor of standing timber will become a joint actor in conversion of timber and will be liable for proceeds received by him, when he conveys for consideration based on stumpage or log or board measure calculation as the timber is cut or is removed or sold as lumber even when he conveys without assurance of title.
3. TRIAL.
In suit by holder of trust deed against purchaser of timber who acquired title thereto after execution of trust deed and who conveyed timber to another who converted timber, instruction that purchaser would be liable even though having no actual part in cutting and having received no part of proceeds thereof, if purchaser conveyed timber to parties who did the cutting held erroneous in absence of evidence as to kind of conveyance.
4. APPEAL AND ERROR.
Error, if any, in permitting examination of witness as an adverse witness could not be raised for first time on appeal.
ON CROSS-APPEAL.5. REFERENCE.
References may be made in courts of law only in cases arising in contract and are not available in actions in tort.
6. REFERENCE.
Action for conversion by holder of trust deed against purchaser of standing timber who had conveyed its interest to another and such other party had removed timber held not action capable of reference, since action was one of tort (Code 1930, sec. 597).
7. REFERENCE.
Party objecting to reference of tort action to referee held not to have waived its objection to reference by fact that it afterwards appeared and contested liability before referee (Code 1930, sec. 597).
APPEAL from circuit court of Itawamba county. HON. THOS. H. JOHNSTON, Judge.
Arthur T. Cleveland, of Fulton, and Leftwich Tubb, of Aberdeen, for appellant.
In a suit for cutting trees, the plaintiff must either prove title or possession of the land from which the trees were cut.
Gathings v. Miller, 76 Miss. 651, 24 So. 964; Darrill v. Dodds, 78 Miss. 912, 30 So. 4; Therrell v. Ellis, 83 Miss. 494, 35 So. 826; Houston Bros. v. Linhart, 136 Miss. 841, 101 So. 289.
It is true the first three of these cases involve the statutory penalty for cutting trees, but our statute has now been amended to apply also to suits where the actual value of the timber is involved. Furthermore, these cases announce the rule that it is always incumbent upon the plaintiff to show that he had title to the timber and that it was cut without his consent. He must then prove its market value and that the defendant cut and removed the timber.
There is no proof in this record to show that the plaintiff had title to this land except that it had mortgage and that by the foreclosure of this trust deed it acquired title to the land, or rather the timber, some two months after the time for cutting and removing the timber, provided in the deed, had expired.
It was certainly incumbent upon the plaintiff to show a good title either by deraignment of title down to the time the timber was cut or in lieu thereof show actual possession. He did not show either in this case. This, we think, is fatal to his cause. The motion for a directed verdict should have been sustained because there is no proof whatever in this record which tends to connect the defendant, Gilmore-Puckett Lumber Company, with the cutting and removal of this timber.
It is clear so far as this record is concerned that C.C. Morgan conveyed the timber to the Gilmore-Puckett Lumber Company, Inc., by warranty deed on April 2, 1927. It also appears that at that time the Bank of Tupelo, the plaintiff, had a mortgage on this timber. There is no competent evidence of any kind or character which will disclose that the defendant, the Gilmore-Puckett Lumber Company, Inc., ever dealt with the timber in any manner or form, after it acquired its deed in April, 1927.
If we are correct in our contention that the evidence in this case is not sufficient to sustain the verdict; then as a matter of course the court committed error in giving each and every charge requested by the plaintiff.
63 C.J. 934; L.R.A. 1918D, 220.
In instruction No. 5 the jury is told that if they believe that the Gilmore-Puckett Lumber Company, Inc., sold the timber to the B.H. Bain Lumber Company and if they believe the B.H. Bain Lumber Company, Inc., cut and removed it from the land it was then the duty of the jury to return a verdict in favor of the plaintiff.
In instruction No. 6 it is stated if the jury believed that the Gilmore-Puckett Lumber Company, Inc., had acquired this timber and transferred or conveyed the same either standing or cut to the B.H. Bain Lumber Company, Inc., "or any other party," then the jury is warranted in bringing in a verdict for the plaintiff. The last four words of that sentence, "or any other party," being the dragnet that would catch the defendant and hold it liable, even though it may have conveyed or assigned this timber to some outside third party and even though that outside third party had folded its hands and done absolutely nothing toward cutting and removing the timber, then the defendant is liable in this cause and the plaintiff is entitled to a verdict against it for the market value of the timber sued for.
This is certainly a dangerous doctrine. We have never before heard it invoked. If this court should establish this rule of liability, then the big lumber companies operating in Mississippi, before they should take or acquire a deed to timber, would be compelled to go to the courthouse and ransack all the records to ascertain whether or not there was any mortgage against the timber and whether or not the timber had passed through other hands prior to its acquisition.
The trial court did not commit error in sustaining the exceptions of the defendant to the referee's report and vacating the order and proceedings under which the referee acted.
Neither party to the suit had suggested a referee, but when the court made this suggestion, counsel for the plaintiff made his motion ore tenus, not in writing, asking that a referee be appointed. Mr. Tubb, counsel for the defendant, then and there objected and protested to the appointment of a referee and then and there demanded trial by a jury, and requested that the case be proceeded with before the jury then impaneled, but the court overruled him and appointed his son, Hon. Sam H. Long, referee, to hear the evidence and make his report to the next term of the court. This is not a consent reference as provided in section 596 of the Code.
It will be observed that the learned trial court manifestly had sought to have the referee appointed by consent of the parties in view of the fact that he suggested it himself and strongly urged it upon counsel, yet when counsel for the defendant objected to this proceeding the court went ahead anyhow and appointed a referee giving him power to employ a stenographer, summons witnesses, take proof and submit his report of his findings to the next term of the court. If consent had been given by both parties to the suit then whatever may have been done thereafter would have been binding and final upon each of them. The consent to the appointment of a referee is an agreement for another mode of trial, and waives the right of jury trial.
Anding v. Levy, 60 Miss. 487.
It is this consent of the parties to the suit which the courts have construed as waiving the right of trial by jury; and if the parties do not consent or if either party refuses to consent to the reference then there is no waiver upon his part to his constitutional right of trial by jury.
The Constitution of the United States has provided that "in suits at common law, where the value in controversy has exceeded twenty dollars, the right of trial by jury shall be preserved."
Article VII, U.S. Constitution, 7th Amendment.
The Constitution of the State of Mississippi has preserved this ancient and cherished right of trial by jury.
Bill of Rights, Mississippi Constitution, sec. 31.
It will be observed that our lawmakers in framing section 597 of the Code attempted to preserve this right of trial by jury by making this provision in the statute, "but either party may, at the time of ordering the reference, enter his dissent therefrom and, during the term to which the report is filed, may demand a trial by jury, in which case the cause shall be so tried, the costs of the reference to abide the result; and upon such trial the report of the referee shall be prima facie evidence of all the matters therein found and reported."
The reference is not in accordance with and not supported by section 597, Code of 1930.
The lawmakers never contemplated that the trial courts would appoint referees except in cases in which matters of account are in controversy. The Legislature never dreamed that a trial court would attempt to appoint a referee in a case arising ex delicto and for damages as in this case.
Except where and to the extent authorized to do so by statute, the court, before whom a case is pending, ordinarily has no power to order a compulsory reference to hear and determine all or any of the issues or questions of fact. Where a reference of a purely legal cause of action against the consent of the parties is an infringement of the constitutional right of trial by jury it cannot be made.
53 C.J. 681-682, secs. 10, 15; 17 Ency. of Pleading and Practice, pp. 992-999; 23 R.C.L. 286, sec. 3; Francis v. Baker, 11 R.I. 103, 23 Am. Rep. 424; Grim v. Norris, 19 Cal. 140, 79 Am. Dec. 206; Steck v. Colorado Fuel Co., 142 N.Y. 236, 37 N.E. 1, 25 L.R.A. 67, 39 L.R.A. (N.S.) 45-49; Killingstad v. Meigs, 147 Wis. 511, 133 N.W. 632, Ann. Cas. 1912d 1133; Russell v. Alt, 12 Idaho 789, 88 P. 416, 13 L.R.A. (N.S.) 146; St. Paul, etc., R. Co. v. Gardner, 19 Minn. 132, 18 Am. Rep. 334; See notes in 48 Am. Dec. 189, 3 L.R.A. 272, 25 L.R.A. 68-264, 13 L.R.A. (N.S.) 146; Andrus v. Home Ins. Co., 73 Wis. 642, 41 N.W. 956, 3 L.R.A. 271; Pierson v. Minnehaha County, 285 S.D. 534, 134 N.W. 212, 38 L.R.A. (N.S.) 261; McMartin v. Bingham, 27 Ia. 234, 1 Am. Rep. 265; Van Rensselaer v. Jewett, 6 Hill (N.Y.) 373, 41 Am. Dec. 750.
I.L. Sheffield, of Fulton, for appellee.
In the case of Taylor v. Federal Land Bank of New Orleans, 165 Miss. 653, it was held that: "A stranger removing timber from mortgaged land without mortgagee's consent, thereby materially impairing value of security, is liable to mortgagee in an action for the value of the timber so cut and removed; and the burden of showing a material impairment of the security is met by proof that at a foreclosure sale the mortgaged property brought less than the mortgaged debt."
41 C.J. 652, par. 641.
There being no exceptions to the findings of fact by the referee it should have been confirmed by the court and judgment rendered thereon. 103 U.S. 90, 26 U.S.L.Ed. 310.
The appellant appeared before the referee on the date fixed for the hearing and there for two days contested the claim of the plaintiff, appellee. It is true appellant objected to the order of reference, but notwithstanding his objection he appeared before the referee and put his witnesses on the stand and there advocated his cause, took chances on a recovery before the referee, and then after the referee had rendered his decision and report finding the appellant, Gilmore-Puckett Lumber Company, indebted to the Bank of Tupelo in the sum of one thousand two hundred fifty dollars, moves the court to set aside the order of reference and all proceedings had in pursuance thereof. The question of interest on the one thousand two hundred fifty dollars was not decided by the referee, he holding this to be purely a matter of law, and I submit to this honorable court that there is no reason for not allowing interest on this according to the terms of the instrument which appellant had supplanted by the taking of timber secured to pay the notes. In other words, the rate of interest should be fixed according to the terms of the notes made by Morgan to the Bank of Tupelo.
Sections 596, 597, Code of 1930; Fewell v. American Surety Co., 80 Miss. 782, 28 So. 755.
The courts have repeatedly held that a reference will not be set aside where made to ascertain the amount due and especially where the accounts are voluminous, comprising the history of scores of transactions, covering the period of many years, etc.
45 So. 667; 56 So. 980.
It has been held also that where parties either consent or afterwards appear before the referee without raising any objection to the appointment, authority or jurisdiction, objection to reference or irregularities therein will be deemed waived.
3 So. 558, 83 Ala. 230.
The objections must be specific. Such objections must be supported by special statements of the master or by distinct reference to the evidence. No such reference to the testimony will be found in this case.
The report of the referee will be treated the same as the verdict of a jury.
The findings by a master on a question of facts are final and cannot be disturbed when evidence is not reported.
44 A.L.R. 567; 11 A.L.R. 575; Martin v. Odis, 6 A.L.R. 1340.
The court has inherent power to refer matters involving accounting and even other matters independent of any statute. In most jurisdictions references are provided for in the case of accounting. Our statute specifically provides for it.
23 R.C.L. 288; 52 Miss. 789.
It has also been held in many jurisdictions that while a reference may be authorized by the statute of the state, if the order of reference does not allude to the statute, it will be treated as a common law reference.
124 U.S. 157, 64 L.Ed. 919; 3 So. 558; 38 So. 831.
In order to avail the objector anything, his objection to the report of the referee must be clearly and not merely general denials, and must be supported by the overwhelming preponderance of proof. It is not even the duty of the referee, unless the order so provides, to report the evidence upon which his finding is based.
Anding v. Levy, 60 Miss. 487; 151 U.S. 285.
The referee's report must be approved and his report is final unless the evidence overwhelmingly demonstrates that it is incorrect.
44 A.L.R. 567; 6 A.L.R. 1340; L.R.A. 1917E, 389; 11 A.L.R. 575; State of Louisiana v. Mississippi, 282 U.S. 458, 75 L.Ed. 459.
Argued orally by T.J. Tubb, for appellant.
ON THE DIRECT APPEAL
On April 2, 1927, appellant purchased from C.C. Morgan all the timber of a certain description on a described tract of land, and received a deed therefor. At the time the property was encumbered by a recorded deed of trust given by Morgan to appellee and remained so encumbered for an amount greater than the value of the said timber; and although the deed of trust has now been foreclosed, there yet remains a balance due in excess of the value of the timber. In the fall of 1927, the timber was cut and removed by the B.H. Baine Lumber Company; but the bank being of the opinion that appellant, rather than the Baine Company, was liable for the trespass and conversion, sued appellant and recovered a judgment, from which this appeal has been prosecuted.
It was the theory of appellee that if the Baine Company took the timber by virtue of any kind of written or oral arrangement with appellant, or was in any manner an assignee of appellant, the latter would be liable for the trespass and conversion, even though the vendor had no actual part in the cutting, removal, and conversion, and received no part of the proceeds thereof. Appellee obtained three instructions from the court which in broad language charged the jury to that effect.
The general rule is that one who merely sells property to which he has no title is not liable for trespass committed by his vendee. 63 C.J., p. 934. But an examination of the cases, many of which are grouped in the annotations under Hendrix v. Black, in L.R.A. 1918D, page 220 et seq., will disclose that there is a considerable weight of authority to the effect that when one claims good title to timber and conveys it with warranty, or with assurance of good title or right grants a license to another to cut and remove having reason to believe that such other will, on the faith of that assurance of title, act in accordance with the conveyance or grant, the vendor or grantor will be liable for the acts of the grantee in damaging or removing the timber. It is not necessary, however, in this case for us to either accept or reject as correct the foregoing statement as a rule in this jurisdiction; for we have used it merely as introductory to what we do hold and which is supported by all the cases, to-wit, that when the vendor for a consideration then finally determined and fixed in amount and then and there paid or secured, conveys by quitclaim merely or grants a license without any assurance of good title, so that the vendee or grantee takes it upon his own responsibility and at his sole risk of right or title, the vendor is not liable for trespasses or conversions by the vendee. If, however, even when there is no assurance of title, the payment for the timber is to be and is made to the vendor, based upon a stumpage, or log or board measure calculation as the timber is cut or is removed or is sold as lumber, then the vendor will become a joint actor in the conversion and will be liable for the proceeds received by him. Seward v. West, 168 Miss. 376, 382, 150 So. 364.
There is no evidence in the record as to what kind of conveyance, or grant or license, was given by appellant to the Baine Company. It may have been a mere quitclaim or some such arrangement as was no more than a mere quitclaim, from which it follows that the aforementioned instructions granted appellee were erroneous, and harmfully so. There is, however, some evidence sufficient to go to the jury that as a probability the Baine Company may have paid appellant for this timber or for some of it by measure as shipped. This evidence is weak almost to the point of feebleness; nevertheless we cannot safely say it is so lacking in probative force as to let in the peremptory instruction requested by appellant; and we would be better satisfied to award a new trial when the issues may be submitted upon correct theories of the law, and the case, if there be any, may be better developed, as, for instance, by recourse to the books of the two lumber companies.
Appellant devotes considerable argument to the action of the court in allowing the witness Bond to be examined by appellee as an adverse witness. We do not find in the record of the examination of this witness any objection by appellant specifically on this point, or that it was brought to the attention of the trial judge in such a manner as to make it his duty definitely to rule upon it. The trial judge was not required to raise the question of his own motion. Therefore, under familiar rules, the point cannot be for the first time raised and considered on appeal.
ON THE CROSS-APPEAL.
When the case was first ready for trial at a former term, appellee moved the court to appoint a referee under section 597, Code 1930, and the court sustained the motion, over the objection of appellant. A referee was appointed with directions to hear the entire case and every issue in it. The referee heard the case and made his report, whereupon appellant excepted to the report and moved the court to vacate the order of reference and to disregard the proceedings before the referee, which motion the court sustained.
The general rule, in other jurisdictions, under similar statutes is that references in courts of law may be made only in cases arising in contract, and are not available in actions in tort. 53 C.J., p. 690; sec. 30. This rule has heretofore been observed by the few cases that have appeared in this court wherein this statute was used; and we therefore hold to the general rule as stated. It follows that the court was correct in vacating the order of reference and in disregarding the entire of the proceedings thereunder. The testimony taken before the referee is no part of the case, except in so far as it was used in the cross-examination of witnesses actually and later before the jury. And appellant did not waive its objection theretofore made in open court, when the reference was ordered, by the fact that it afterwards appeared and contested liability before the referee. Having objected and entered its objection of record when the reference was made, appellant did not any more lose the benefit thereof than does a party waive his overruled objection to evidence, duly made and noted, when he cross-examines upon that evidence, or puts in evidence in the attempt to overcome it by proof.
Reversed and remanded on direct appeal; affirmed on cross-appeal.
Anderson, J., disqualified, takes no part.