Fleming v. Sherry

Lyon, J.

It is conceded that the plaintiffs were the owners of the land upon which the timber was cut by the defendants, and are entitled to recover damages therefor. The only controversy relates to the measure of damages. The plaintiffs claim that they are entitled to the damages given by sec. 4269, R. S.; while the defendants claim that they are only liable for the actual damages, that is to say, for the value of the stumpage. The plaintiffs were allowed to recover the larger damages of the statute. Whether they were entitled thereto under the circumstances of this case, and, if so, whether the jury were properly instructed in that behalf, are the questions to be determined on this appeal.

In Smith v. Sherry, 54 Wis. 114 , the question was left open and undetermined “ whether a tax-title claimant, who has never acquired the actual possession of the land, can recover against the former owner, as damages, the highest *507 market value, under see. 4269, R. S., for timber removed while the same is in the latter’s possession.” The opinion in. that case was filed January 10, 1882. At the session of the legislature which convened immediately thereafter, ch. 239, Laws of 1882, was enacted, which adds to sec. 4269 the following: “Provided, that when the defendant shall have in good faith acquired a title to and entered upon the land under the same, believing such title to be valid, and shall have cut the timber therefrom under such circumstances, then the plaintiff, if he shall recover, shall recover only the actual damages sustained by reason of such cutting. The defendant in his answer shall state the facts upon which he relies to establish such claim of title, and the burden of proof shall be on the defendant.”

We think it was the intention of the legislature in this enactment to settle the question thus left open in Smith v. Sherry, by subjecting the owner of the government title, who has taken timber from the land after his title has been divested, to the penalties of sec. 4269, unless he brings himself within the saving clause of the amendment of 1882. To do this he must not only prove that he acquired his title in good faith, but also that he entered upon the land, cut the timber, and removed the same therefrom, believing his title to be valid. And further, it cannot truly be said that he believes he has a valid title, if he has knowledge or notice of the facts which show that his title has been divested and transferred to another. Warren v. Putnam, 68 Wis. 481 . That cáse also holds, that knowledge by the original owner of a mere claim by another of adverse title to the land, is not necessarily incompatible with good faith on the part of such former owner in taking the timber from the land. These propositions do not seem to be controverted by counsel on either side.

The evidence in the present case tending to show that Sherry cut and removed the timber in question in good *508 faith, believing he had a valid title to the land from which he took it, is very strong. 'He had an abstract of title of the land, purporting to have been certified by the proper register of deeds under his official seal, which showed that no tax deed of the land had been recorded between August, 1877, and March, 1880. It is common knowledge that such abstracts and certificates are frequently accepted as sufficient evidence of the state of the record title to land, and prudent men purchase land and pay their money therefor on the faith of them. Sherry did so in this case, and it is manifest that he had no knowledge, or even suspicion, that the plaintiffs had a tax deed on his land, until he received Fleming's letter of December 12, 1886, informing him that the writer took a tax deed thereon in 1878. That letter did not inform Sherry that such tax deed was recorded, and there is not the slightest proof in the case that he had any notice, before the trial, from any source, that it avas recorded. This is a most significant fact, for until the deed was recorded it conferred upon the grantees therein at most only a conditional fee, without the right of possession. Had the tax deed remained unrecorded, the plaintiffs could not have maintained ejectment for the land, and the same would have been subject to redemption. It was so held, after much consideration, in Hewitt v. Week, 59 Wis. 444 . Hence notice to Sherry of the existence of a tax deed was not notice to him that his title was absolutely divested. At most it was only notice that a conditional estate in fee had been, so to speak, carved out of his absolute estate, which conditional estate did not interfere with his right to the possession of the land, and which he might terminate at any time by redemption. Moreover, Sherry was told by Harriman, his grantor, that all previous taxes had been paid, and this information might reasonably induce the belief that the tax deed (if one existed) was invalid, — perhaps the belief that none existed. It may be observed, also, *509 that in the interview between the defendant Ingersoll and one of the plaintiffs the latter did not state any particulars of his title. He merely claimed that the plaintiffs were the owners of the land. So Ingersoll had no better notice of the plaintiffs’ title than Sherry .

If the grantee in an unrecorded tax deed can, either before or after he records his deed, recover against the original owner for taking timber from the land covered by such deed while it remained unrecorded, we are not prepared to hold that he may recover the penalty of sec. 4269, in addition to actual damages. That section must receive a strict construction. Cotter v. Plumer, ante, p. 476 (decided herewith). That rule requires us to hold that the owner of a mere conditional title, which does not carry with it the right of possession, is not within the section and cannot recover the penalty therein prescribed in an action against the original owner for a trespass committed upon the land while the plaintiff’s title thereto remained conditional.

In this case, however, the tax deed was of record when the timber was taken. It is conceded that Sherry then had notice that such a deed was m existence. The controlling question is, therefore, Did he know, or had he notice, when he took the timber, that the deed had been recorded? The answer .to this question is the test of Sherry’s good faith. Had the court instructed the jury that the proofs conclusively established the good faith of Sherry, it would be difficult to hold the instruction erroneous. But assuming, for the purposes of the case, that there was sufficient in the testimony to send that question to the jury, we find manifest error in the instructions given by the court on that subject. In the charge to the jury we find the following clause: “Mere notice that the plaintiffs claimed the land would not bind Mr. Sherry to judge *at his peril the validity of such claim, if he believed with good reason that he was the owner. But if he was placed in possession of facts, be- *510 lore the cutting, showing that the Flemings were the owners,— was informed by the Flemings before such cutting that they held the deed which is the foundation of their title, and such information was such as should place a! reasonably careful man upon inquiry, and 3£r. Sherry, disregarding such information, thereafter ordered the tiinber cut,— he was not, under such circumstances, justified in believing himself the owner of the land.”

Under this instruction it was competent for the jury to find that the notice by plaintiffs to Sherry, of December 12, 1886, that one of them took a tax deed on the land in 1818, and the general claim of title made to Ingersoll (which is no more significant than the notice to Sherry), were sufficient to cast upon the defendants the duty of making inquiry and ascertaining whether such tax deed was of record. We hold, as matter of law, that such notices alone were not sufficient to charge the defendants'with that duty; A person who seeks to recover the higher, and sometimes unconscionable, damages of the statute for a trespass upon his land committed by one who once owned the same but whose title has been divested by tax proceedings or other process of law, must see to it that such original owner is informed of all the material facts essential to a transfer of the title. If ignorant of these, he should be held to have acted in good faith and in the belief that he was still such owner when the trespass was committed. The plaintiff cannot give notice to a person whose title has been thus divested, of one material fact, and (as in this case) suppress another material fact, and then successfully claim that the information given is sufficient to put the other upon inquiry to find out, as best he may, the existence of the suppressed fact, and thus hold him liable to the penalty of the statute if he has taken timber from the land after his title was lost.

There is another objection to the instruction, not so vital, perhaps, as that already commented upon, but still worthy *511 of notice. In order to avoid the penalty of the statute, tbe jury were told, not only that Sherry must have cut and removed the timber in good faith, believing that he had a valid title to the land, but also that he must have good reason so to believe, — - that he must be justified in so believing. Nothing of the kind is expressed- in the statute. It only requires good faith bn the part of the trespasser, and the belief that he has a valid title. It might well be that Some jurors would think the trespasser honestly believed he had a good title, and yet not think his reasons for so believing were very sound. Of course, a jury could not find the existence of the belief without some reasonable grounds upon which it was predicated. But when the belief is found to exist, the jury should not be required to enter upon a nice analysis of the grounds thereof, and to find against the belief if they judge those grounds unsatisfactory or inconclusive. It were better and safer to confine the instructions to the language of the statute.

We do not forget that the failure of the plaintiffs, in the letter of December 12, 1886, to inform Sherry that the tax deed was of record, was suggested to the learned' counsel for the defendants on the argument, by a member of the court, and that the counsel did not seem to regard the circumstance as of any importance. Indeed he admitted that the'letter of December 12, 1886, might fairly be considered as implying a notice that the tax deed was recorded. The concession would not have been made, we think, could counsel have had time to consider the matter. Besides, the case of Hewitt v. Week, supra, was temporarily forgotten, no doubt, or counsel would have discovered more in the suggestion thus made than he did. The concession was unadvisedly made, and inasmuch as we regard it against the law we cannot act upon it.

The court was requested, on behalf of the defendants, to give the following instruction to the jury: “ The certificate *512 of the register of deeds, showing no tax deed of record, made about two years after the record of such tax deed, was such evidence as Sherry might fairly rely on if he believed the certificate to be correct, and from which he might be justified in believing no such tax deed was on record, for the purpose of showing good faith in this action.” The court refused to give the instruction, and its equivalent is not contained in the general charge. It follows, we think, from what has already been said, that the instruction is correct and should have been given.

The errors above indicated are fatal to the judgment. Although we must order a new trial, yet, if neither ] arty expects to be able to change the proofs materially on another trial, we venture the suggestion that the parties would do well to stipulate to allow judgment to go for the plaintiffs for the value of the stumpage as found by the jury, and interest thereon from date of verdict to date of judgment, thus saving the delay and expense of another trial.

By the Court. — The judgment of the circuit court is reversed,- and the cause will, be remanded for a new trial.