Trespass, for taking and carrying away a black walnut log or logs from plaintiff’s land. Plaintiff Mary Morgan, was formerly the wife of one Nutt, who was the owner of the land, and from whom it descended to her. The testimony tends to show that defendant formerly owned the land, and while such owner the tree was cut down; that during Nutt’s lifetime, the tree thus upon the ground was bought and paid for by defendant, of which Mrs. Morgan had due notice.
Decided 1866-06-28
Wright, J.
¶1i descent: purchase!. This instruction was erroneous. The heir is not thus protected in property taken by devise or descent. He is not a purchaser. The contract Q|. ancestov must be observed, and if there was a sale of the logs by him, and payment therefor, the possession of the heir followed that of the ancestor, subject to the rights of third persons in and to the same, or any property thereon. The instruction ignores completely' the distinction between the rights of one taking by descent and those of a bona fide purchaser. As the ancestor could not recover for the value of the tree or legs, after being paid for the same, neither could plaintiffs, who take the land, not by purchase, but by descent. The proposition is so plain as not to need more than its statement. As to the rights and liabilities of one taking by descent, see generally, 4 Kent, 419-422 (2d ed.); Wood v. Manly, 11 Ad. & El., 34; Nettleton v. Sikes, 8 Metc., 34; Wilde v. Carlitton, *1191 Johns. Cas., 123; Pierpont v. Barnard, 6 N. Y., 379; Miller v. Auburn and Syracuse Railroad Company, 6 Hill, 61. It must be remembered that defendant not only bought, but paid for the tree after it was down. He therefore might have brought replevin, and stands on firmer ground than one having a mere license.
