Gambar halaman
PDF
ePub

Skinner v. Pinney-Opinion of Court.

the plaintiff's land, and the jury should find against the defendant for the market value of such logs at such time and place, with interest to the time of the verdict."

To this the defendant excepted. The jury found for the plaintiff, and assessed the damages at $2,047.36, and defendant appealed.

The errors assigned are:

I. The admission in evidence of the certified copy of the deed from J. L. White to John Pinney.

2. The admission of the testimony of Geo. L. Wright as to the market value of the logs in the water of Blackwater bay at Garzon's point.

3 and 4. The exclusion of the testimony of plaintiff and Lewis; and 5. The charge of the court.

W. A. Blount for Appellant.

John C. Avery and John A. Henderson for Appellee.

THE CHIEF-JUSTICE delivered the opinion of the court.

Under the statute of this State (McClellan's Dig., 514, S. 8,) a certified copy of a record of a deed is not made evidence without other proof of the original than the proof or acknowledgment taken before the acknowledging officer. The statute says that such certified copy shall be received in evidence in the same manner as the original thereof may be and with the like force and effect. How is an original deed of conveyance by a third person duly acknowledged made evidence? The rule is well established that a decd. offered in evidence by a party claiming under it must be proved by the subscribing witnesses if they are living and within the reach of the process of the court, or, if their testimony is not so obtainable, by proving their hand-writing or that of one of them. (Greenl. Ev., $569, et seq.) There

Skinner v. Pinney-Opinion of Court.

are exceptions (applicable to circumstances not existing in the present case) mentioned by Greenleaf and other writers, which need not be noticed here.

The statute relating to the acknowledgment (McClellan, 215, S. 6,) says that "in order to procure the recording of such conveyance" it must be acknowledged or proved in a certain manner, but we have no law substituting the acknowledgment or proof for the purpose of recording, as evidence of due execution before a court, for the usual methods of proof.

So

How can it be contended that a certified copy of the record is evidence without other proof, while the original duly acknowledged or proved for the purpose of record and recorded, is not evidence, unless its execution is duly proved by the subscribing witnesses? To so hold would make a certified copy of a forged deed and a forged acknowledgment better evidence than a genuine duly acknowledged original deed, and without the sanction of a statute. long as the statute does not provide that the acknowledgment duly certified shall be deemed evidence of the genuineness of the signatures of the grantor and the witnesses, the courts cannot make them so without asserting the power of legislation. According to the statute a certified copy of the record of the deed is to be received in evidencein like manner as though the original were produced, and not otherwise.

In the case of Hogans' Heirs vs. Carruth, 18 Fla., 593, this court said that "the certificate or acknowledgment is not a common law certificate, but it is altogether statutory in its character and can serve no other purpose under the statute than that declared by the statute, which is to authorize a record thereof in the office assigned by law for that purpose," and "where a different rule prevails it is because the statute in letter or effect makes deeds thus ac

Skinner v. Pinney-Opinion of Court.

not, by bestowing labor upon the property of another, which he has tortiously taken, thereby divest the title of the original owner, but the latter may retake it in whatever form so long as its identity can be established. And in determining the question of recaption the law must allow the owner to retake the property, or it must hold that he has lost his right by the wrongful act of another. If retaken at all it must be taken as found, though enhanced in value by the trespasser. It cannot be restored to its original condition. The law, therefore, being obliged to say either that the wrong-doer shall lose his labor, or the owner lose the right to take his property wherever he may find it, very properly decides in favor of the latter."

This case comes far short of establishing the rule contended for that this defendant is liable only for the value of the standing trees, and that he ought not to be made to pay for the enhanced value consequent upon his labor in converting plaintiff's trees into timber upon plaintiff's premises. The difficulty is that a trespasser cannot by converting the trees of another into timber on the premises claim any property in the timber, because he is a trespasser and the property in the timber remains in the owner.

Defendant's counsel also cites Single vs. Schneider, 30 Wis., 57. (replevin) in which it is held that where logs are knowingly and wilfully cut by one man from the land of another, the value of the logs cut will be the ordinary meas-ure of damages. In that case the defendant had manufactured the logs into boards and the court said that the plaintiff could not recover the value of the boards. This decision is in conflict with the uniform ruling of other courts which hold that the property has not changed ownership by the wrongful act of one who has taken possession of it without the consent of the owner. It was expressly condemned in Nesbit vs. St. Paul Lumber Co., 21 Minn., 491,

Skinner v. Pinney-Opinion of Court.

where the court says that the decision in Single vs. Schneider was "at variance not only with every adjudication on the point, but with principle; for the wrong-doer can be permitted to retain a part of the value, only on the ground that he has a property in the chattel, to the extent of that part of the value that he is allowed to retain." The rule is stated in Silsbury vs. Coon, 3 N. Y., 379: "If the wrong-doer sell the chattel to an honest purchaser having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser has none to give. The owner of the material may still retake it in its improved state, or he may recover its improved value. The right to the improved value is a consequence of the continued ownership. It would be absurd to say that the original owner may retake the thing by an action of replevin, in its improved state, and that he may not, if put to his action of trespass or trover, recover its improved value in damages.'

[ocr errors]

In Moody vs. Caulk, 14 Fla., 50, cited by appellant, it was held that the measure of damages in trover where the property converted was ordinary merchandise and the like perishable property the subject of traffic, the rule of damages was the value of the property at the time of conversion with interest, and not the highest price between the time of conversion and the trial with interest, as was charged to the jury at the Circuit. In other words, the rule we adopted gave the plaintiff compensation for his loss at the time of the conversion and interest, whether the conversion was fixed by the unlawful taking or by a refusal to deliver on demand made.

The same rule was enforced in Robinson vs. Hartridge, 13 Fla., 501, 515.

In neither case is there an intimation that the plaintiff is not entitled to any enhanced value produced by the con

Skinner v. Pinney-Opinion of Court.

duct of the wrong-doer prior to the actual removal of the property from the owner's possession.

The claim made by the plaintiff here is for the value of the logs at the time of their removal from his premises, and that is the conversion complained of. It cannot be disputed that he had a right to the possession of the logs at least until they were taken away, and the authorities say he could reclaim the property even after their removal to any other place, because they were still his property. The argument of counsel for defendant is that the plaintiff ought not to profit by the labor of the defendant in making the property more valuable-in converting trees into timber-but the answer is that the defendant acted wrongfully, whereby he lost his labor, and though the timber is more valuable than standing trees, yet the timber belongs to the owner of the trees and not to the trespasser.

There are a few cases where courts have modified the rule of damages in trespass and trover and confined then to the actual damage sustained by the cutting of trees, but they are rather exceptions to the general rule and are generally cases of innocent mistake or the suit is against an innocent purchaser after conversion, or where the article converted has been manufactured into other forms of merchandise. None of these cases apply to the facts before us.

The plaintiff here makes no claim for any value added to the logs after they were taken from his possession, but only for their value while lying in the water upon and adjoining his land. No exemplary damages were asked or

awarded.

The charge of the court that the conversion was complete only when the logs were removed from plaintiff's land, and that the plaintiff was entitled to recover the value at the time and place of removal by the defendant, with interest, if the logs were shown to have been removed

« SebelumnyaLanjutkan »