Martin v. Thompson

The Court: The action is brought to recover the possession (or the value thereof) of certain grain sown and harvested by defendant upon lands to which he claimed title, and of which he had the actual adverse and exclusive possession. The action can not be maintained.

In Halleck, Executor, v. Mixer, 16 Cal. 574, a demurrer to the complaint had been sustained in the Court below upon the ground that the complaint showed the title to land to he involved in such sense as precluded the action. The complaint alleged that the plaintiff’s testator was seised and possessed of certain real estate at the time of his death, and that the executor, ever since his appointment, had been in possession of the same; that persons (whose names were not designated) had entered upon the lands without authority and cut down timber growing thereon, to the amount of three hundred cords; that defendant afterward also entered upon the premises, without authority, and removed the wood thus cut, and still detained it, etc. There was no suggestion or pretense that the defendant, or any other person than plaintiff [620]and his testator, ever had possession of the land on-which the wood was cut.

It was said by the Supreme Court, in reversing the judgment of the District Court, that the complaint in Halleck v. Mixer did not show title to the land to be involved in such sense as to preclude the action. “In all cases where the owner of real estate sues for property severed from the freehold, the action must .rest upon the proof in the first instance of title or right of possession (or possession) taken previous in the plaintiff; and, if the position of the respondent were tenable, no action for the recovery of said -property would ever lie. If the complaint alleged the title, it would, upon his argument, be demurrable; if it merely alleged ownership of the property, the party would be excluded on the trial from the proof of his title, or be nonsuited on its production. The true rule is this: The plaintiff out of possession- can not sue for property severed from the freehold, when the defendant is in possession of the premises from which the property was severed—holding them adversely in good faith under claim and color of title; in other words, the personal action can not be made the means of litigating and determining the title to the real property as between conflicting claimants. But the rule does not exclude the proof of title on the part of the plaintiff in other .cases, for it is, as we have already observed, upon such proof that the right of recovery rests. * * * A mere intruder or trespasser is in no position to raise the question of title with the owner so as to defeat the action.” The Court then cites with approval Harlan v. Harlan, 15 Pa. St. 513.