majority">Cook, J.,

delivered the opinion of the court.

The record in this case reads like a paige torn from the history of the Spanish Main in the good old days when might was right, and when the distinction between Meum et tuum was frankly disregarded. The Ingram-Day Lumber Company, appellant, coveting and longing for the valuable pine timber standing upon a certain quarter section of land in Harrison county, looked up appellee (an ignorant and illiterate man), who was in possession of same under color of title, and had been in such possession for seven or eight years, and offered to buy the much-desired timber; but appellee declined to be persuaded *41and refused to part with the timber. Failing along this line, appellant searched the records of land titles and, discovering an outstanding title in J. T. Jones, endeavored to secured this title; but, as fate would have it, this title could not be obtained. Then it was that the spirit of the buccaneer was aroused, and so appellant proceeded to take by force that which it had failed to secure by the methods usually adopted by civilized men. Without decent pretense of legal or moral right, the timber was, over the protest of appellee, cut down and converted to the use of appellant. When appellee, a mild-mannered man, resorted to the courts and demanded judgment against appellant for this high-handed destruction and conversion of the trees, appellant sought cover behind the title of J ones, in spite of the fact that Jones had declined to give it his title, and in the face of the fact that Jones had, in the meantime, quitclaimed the land to appellee.

Assuming that the outstanding title in Jones is superior to the title of appellee, the question is: Can this avail appellant as a defense in a case where its trespass was wanton and in total disregard of the rights of appellee, and also of the rights of the holder of the outstanding title?

It will be noted that appellant did undertake to set up some sort of license from Jones — but this was a mere pretense without foundation in law or fact. The bald facts are that appellant wanted the timber, and, being unable to get it by fair or lawful methods, it proceeded to cut the timber without the leave or license of anyone. Are the courts so supinely helpless as to be -unable to right the wrong because it appears that Jones had the superior title to the land, with which title appellant can claim no connection? In the court below appellee obtained a judgment for the actual value of the timber. Several decisions of this court are cited in support of the contention that, if a naked trespasser sued for his depredations upon land in the possession of the holder of a *42color of title can produce a superior outstanding title in another, he can defeat the action by the holder of the possession and color of title for the value of the trees cut from the land.

Ware v. Collins, 35 Miss. 231, 72 Am. Dec. 122, is one of the cases cited, and a quotation is made from this decision. In Davany v. Koon, 45 Miss. 71, the question involved was the admissibility of a defective lease to sixteenth section lands as color of title to support an action by a party in possession of a sixteenth section against a trespasser cutting trees thereon, and the court in reversing the case said: “Nevertheless, the paper was: competent evidence of a color of title, to which the plaintiff might refer his possession. Possession under it would enable him to sustain this action. This would have been enough to have developed upon the defendant to show title in himself, or some third person, in order to defeat the action.” Judge Simrall in the above opinion cited Ware v. Collins, supra, in support of the above-quoted principle.

The next case cited is Carpenter v. Savage, 93 Miss. 233, 46 South. 537, and, as the opinion is short, we quote it in its entirety: “We decline to consider any objections made to the action of the court below in permitting and refusing to permit the introduction of testimony, for the reason that the motion for a new trial does not direct the attention of the court to the particular rulings. In this case the plaintiff, in his action to recover the statutory penalty for cutting trees, established clearly that he was in possession under color of title, claiming as owner, and this was enough to sustain his action. But he further proved that his title was recognized and acknowledged by the actions of the defendant himself. We do not hold that the defendant might not have successfully resisted by showing a perfect title in himself or outstanding. This he did not do, nor propose to do. ’ ’

In Ware v. Collins and Carpenter v. Savage, a recovery was had for the statutory penalty, and the rule stated was-*43entirely accurate. In such eases the trespasser may show an outstanding title in a third person in bar of recovery, because the statute fixes the right of action in the owner of the land from which the trees were taken. In Davany v. Koon, the court was treating the lessee of sixteenth section land as the proper party to bring an action for the value of trees severed from the land in his possession, he claiming under a proper lease, the precedent facts leading up to the lease not being shown. The court merely held that the paper lease was prima facie evidence of his title, and quoted the rule as announced in Ware v. Collins. We think neither of the cases cited are decisive of the point involved in this case.

38 Cyc. 1017, announces the rule as follows: “It is a general rule, which is supported by decisions from nearly every jurisdiction, that, as against a mere tort-feasor, mere actual possession of land is alone sufficient to maintain trespass. This general rule has been held to apply, although such possession is altogether unsupported by evidence of title. So the doctrine has been held applicable although it appears that plaintiff is without title, and that title is in a third person. ’ ’

The rule announced by Cyc. seems to be the proper rule. That a mere tort-feasor can hide behind the claim of a third person where the third person makes no claim, and where the wrongdoer claims no right from the third person, does not seem to be a rational rule. In this case the third person not only made no claim, but, when his attention was called to the matter, he immediately made a voluntary conveyance of the land to the plaintiff below.

The land pirate, a comparatively recent importation, does not appeal to this court when he comes into court admitting the piracy, but defending a suit for the value of the trees taken by force with the plea that some third person, a stranger, has the record title to the land from which the trees were cut.

Affirmed.

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