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27 Va. 555

Truss v. Old

Supreme Court of Virginia

Decided November 12, 1828

Supreme Court of Virginia · decided 1828-11-12

<p>This was a Supersedeas to a Judgment of the Superior Court of Norfolk County. James Old, an infant by Edward J. Wilson, his Guardian and next friend, brought an action of Trespass quare clau,~ sum fregit, in the said Court against Wm. Truss. The Plaintiff, in his Declaration, complains that the Defendant with force and arms, entered on the land of the Plaintiff, and cut down, took and carried away certain pine trees, and underwood growing thereon, of the value of @1,000. The Defendant pleaded “ not guilty,” with liberty, by consent of parties, to prove any thing under this plea that he might do under accord and satisfaction, and the Plaintiff replied generally. The Jury found a verdict for the Plaintiff foi; $160 damages, and Judgment was accordingly given for this sum and costs. To maintain the issue on his part, the Plaintiff proved that in thé year-the Defendant enj.er.pd on the Plaintiff’s lands, situated in Norfolk County, and cut ddvvn and carried away seven or eight pine trees, of the value of •$ —--. The Defendant proved that at and before the time of the said entry, cutting and carrying away, 'Kedar Old was the Plaintiff’s Guardian, legally appointed and qualified by the County Court of Norfolk: that as'Guardian, the'Defendant made a contract with him, by which the said Guardian gave him liberty to enter upon the land and cut and' carry away the trees mentioned above, upon paying their value, and that afterwards the Defendant paid the said Guardian the sum of one hundred and five dollars, the sum estimated by the said Guardian and' the Defendant to. be the value of the said trees: that at the time the said contract was made, the Plaintiff had little or no income, although he had some personal property, and thát his Guardian, who was his' Grand father, stated that he wanted some money to pay for his Ward’s schooling and clothes: that Kedar Old has since died, and the next friend has qualified as Guardian. On motion of the Plaintiff’s Counsel, the Court instructed the Jury, that the said Kedar Old, as Guardian, had ño authority to grant liberty to the Defendant to cut down the said trees, and that notwithstanding the contract between'the Guardian and the Defendant, the cutting was a trespass, for which this action was well brought, and that the said sum of one hundred and five dollars having been paid by the Defendant in execution of the contract so made with the Guardian, was ho satisfaction of the said trespass, and no suificient defence under the plea of accord and satisfaction. To this opinion of the Court, the Counsel for the Defendant filed his Bill of Exceptions, from which the above statement is extracted.</p> <p>,The Defendant, by Leigh, his Counsel, prayed this Court to grant him a Supersedeas to the said Judgment, on the following grounds:</p> <p>1. That in this country growing tmober may be sold by a Guardian from his Ward’s land, and the proceeds of such timber may well be considered as fair profits of the'estate.</p> <p>2; That if not, the Guardian who has permitted another person to cut the timber, is guilty of the waste, and the Guardian alone is responsible to the Ward.</p> <p>3.' That the license of the Guardian to any person to cut and take away timber from his Ward’s land, at all events, works a complete bar to the action of Trespass. The Supersedeas 5 was awarded.</p>

Decided 1828-11-12

Judge Green

¶1delivered his opinion.*

¶2Possession -is indispensably necessary to support an action of Trespass, quare clausum, fregit; (See the cases collected 20 Vin. Abr. 463, pl. 9, 12, 13, 14;) and whether an infant can maintain such an action for a trespass done to his lands, whilst he is in the wardship of his Guardian, depends on the question, whether, in point of Law, the possession is in the Guardian, or Ward.

¶3Our Statute concerning Guardians, recognizes only two descriptions of Guardians who have any power over the property of their Wards; Guardians in Socage, and those appointed by the father under that Statute, who are put in all respects upon the footing of the former, our Statute in this respect being a copy of the Statute of 12 Car. 2, ch. 14. Under that Statute it has been held, that although the Statutory Guardian, and Guardian in Socage, have no beneficial interest, yet their authority is coupled with a legal interest, and Is not barely an office. Shaftsbury v. Shaftsbury, Gilb. Rep. 172; Eyre v. Shaftsbury, 2 P. Wms. 102, S. C. It is an interest like that of a Trustee for the separate use of a married woman, an Exeecutor in trust, or an Administrator of an estate of which there is no surplus, after the payment of debts, all of whom have a legal, without any beneficial interest. When we consider the purposes for which the law appoints Guardians to infants, it is obvious that to enable them to effect the objects of their appointment, they must have a legal right to the exclusive possession and controul of the infant’s property, so long as the Guardianship continues, without which they could not manage the property beneficially for the infant, as by renting, or cultivating, and disposing of the produce of their lands, hiring their other property, and selling that Which is perishable, and which might otherwise be wholly lost. The infant being incapable-af^paking any contract in respect to these subjects, his Guardian could not make a valid contract in his name, and must of necessity transact all in relation to his Ward’s property, in his own name.

¶4Accordingly, the authorities are uniform that a Guardian in Soc-age has a legal right to the possession and disposition of his Ward’s land, during the continuance of his Wardship. Littleton (B. 2, §■ *559123,) takes this for granted, by stating that when the Guardianship terminates, the Ward may enter, and oust the Guardian. So the Guardian in Socage may justify the occupation of the land against the heir himself. Kelw. 46, b. He may grant a copyhold in reversion, or remainder, in his own name, as dominus pro tempore, 2 P. Wms. 122; Shopland v. Ryoler, Cro. Jac. 55 and 99: He may sue and avow in his own name, 2 P. Wms. 122: He may make a lease for years, during the Wardship, upon which an ejeetment may be maintained, 14 Vin. Abr. 185, pl. 4; and see Ibid.pl. 3, and 6, and cases there cited. He may have an action of Trespass against a stranger, for spoiling the grass in the Socage lands, in his own name, and, not in the name of his Ward. Br. Trespass, pl. 175; Br. Garden, pl. 5, cited in Vin. Abr. 196, pl. 3, note. He may have a Writ of Right of Ward, and recover the land and damages, as well as the body of the Ward, 14 Vin. Abr. 190, pl. 1, 2. He may have an ejectment of Ward, and if the Ward himself enters and ousts him of the land, he may recover it by a Writ of Intrusion of Ward. Br. Eject Custod. pl. 11, cited 14 Vin. Abr. letter N. pl. 1, note. And to the same effect was the Civil Law, from which the Law of in was in a taken. “ Tutores sive pupilli eorum, sive ipsi possident, possessorum loco habentur.” Dig. Lib. 2, c. 15, § 5. If the Defendant in this case had entered and cut and carried away the trees without the license of the Guardian, the Ward could not have maintained the action of Trespass. That would have belonged to the Guardian, who must have accounted to the Ward for the damages recovered. But, being done by the permission of the person legally in possession, there was no trespass whatever.

¶5It was argued, that the trees being a part of the inheritance whilst standing, became, when severed from the soil, personal property belonging to the Ward, for whieh he might have maintained Trover, and that the misconception of the action is cured after verdict, by our new Statute of Jeofails. The Statute of Jeofails gives that effect to a verdict only when the verdict is given without exception, but here the objection is to the verdict itself, as given under a misdirection of the Court, and if improperly given, cannot cure any error. Besides, although it is true that when timber trees growing on lands held temporarily by another, are cut, or thrown down by tempest or otherwise, they become personal property belonging to the owner of the inheritance, for which he may maintain Trover against any one who takes them, oven the tenant ( Uvedale v. Uvedale, 15 Vin. Abr. 142, pl. 3,) yet, in this case, the Plaintif could not have maintained such an action against the Defendant, *560because the moment the trees became personal property, the Guardian had a legal right to sell them, as being perishable,, and of no value, but as a subject of sale. The wrong, if any, done to the Plaintiff, must be compensated by the Guardian. The Judgment should be reversed, the verdict set aside, and a new.trial awarded, in which the instruction excepted to is not to be given, if again ask- '■ ed for.

¶6The President and Judge Carr concurred.

¶7 Absent, Judges Caiieie and Coai.ter
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