¶1This is trover for timber cut from unoccupied lands. Defense, a tax title in defendant, and a tax title held by a third party. The court held both tax deeds void, and plaintiff had judgment.
¶2It is urged that- the action does not lie against one in possession. Clearly, under the evidence, the possession was but a fugitive possession, and for the purpose only of cutting the timber. The question is ruled by Cook v. Cook, 106 Mich. 164. The constructive possession was in plaintiff. The court having declared the tax deeds void, there were no conflicting titles for the jury to try. Busch v. Nester, 70 Mich. 525.
¶3Defendant’s testimony tended to show that he entered into an agreement with one Hull, whereby the latter was to cut and haul the timber to mill, and defendant was to *342receive a certain sum per M. as stumpage. The timber was cut and hauled by Hull, and defendant received the amount agreed upon. His own testimony, however, tended to show that at Hull’s suggestion, and with reference to this cutting, he procured a quitclaim deed from the holder of the tax title, and then made this arrangement with Hull. We think that the court properly left it to the jury to determine whether or not he was a joint-wrongdoer.
¶4The rule as to the measure of damages was that laid down in Grant v. Smith, 26 Mich. 201. In Winchester v. Craig, 33 Mich. 205, the jury expressly found that the defendants cut the timber by mistake. That case does not disturb the rule adopted in Grant v. Smith. As in that case, punitory damages were not allowed, and what was said by the court as to the nature of the trespass was without prejudice.
¶5The judgment is affirmed.