HALLECK et als., Executors of the last Will and Testament of Joseph L. Folsom, deceased, v. MIXER, 16 Cal. 574

Field, C. J. delivered the opinion of the Court Baldwin, J. and Cope, J. concurring. The complaint in this case is subject to a criticism which is applicable to a large number of complaints coming before this Court. It assumes, in some of its allegations, facts which should themselves have been distinctly and separately stated.

Thus, it alleges that the testator was seized and possessed of certain premises at the time of his death, on the nineteenth of July, 1855, and that the plaintiffs were appointed the executors of his last will and testament, without averring, in direct terms, either previously or subsequently, the fact of the testator’s death, or that he left a last will and testament. This mode of statement wants the precision and directness essential to all good pleading, and should not be countenanced. But it is not for defects of this character that objections are urged by the respondent to the complaint.

The demurrer is, that the complaint does not state facts sufficient to constitute a cause of action; that it shows the title to real estate is necessarily involved, and does not show that the plaintiffs are the owners of the property, or that they are the executor’s of Folsom, or have any authority to maintain the action. On none of these grounds can the demurrer be sustained. 1.

The material and substantive allegations of the complaint are, that Folsom was seized and possessed of certain premises at the time of his death; that the plaintiffs were appointed the executors of his last will and testament, and ever since their appointment have been in the possession of the premises; that certain persons, whose names are not designated, entered upon the same, without authority, and cut down timber growing thereon to the amount of about three hundred cords; that the defendant afterwards also entered upon the premises without authority and removed the wood thus cut, and still detains it from the plaintiffs; that they have demanded the possession of the same from him, and that he refuses to deliver it to them, to their damage of $1,100 —the alleged value of the wood.

What more than this should be stated to entitle the plaintiffs to recover, it is difficult to conceive. The averments of “unlawful and wrongful,” as applied to the entry upon the premises, and the cutting down of the timber, and to the defendant’s removal and detention of the same, may be stricken out as surplusage. Whilst they do no good, they do not vitiate the pleading. By the demurrer, the allegations are admitted to be true, and there would be a singular defect in the administration of justice, if, upon their admitted truth, the plaintiffs were remediless.

Against the cutting of timber, the owner of real property is entitled to the preventive remedy of injunction. WTiilst the timber is growing it is a part of the realty, and its destruction constitutes that kind of waste, the commission of which a Court of Equity will, upon petition, restrain. When once cut, the character of the property is changed; it has ceased to be a part of the realty and has become personalty, but its title is not changed.

It belongs to the owner of the land as much afterwards as previously, and he may pursue it in whosoever hands it goes, and is entitled to all the remedies for its recovery which the law affords for the recovery of any other personal property wrongfully taken or detained from its owner. And if he cannot find the property to enforce its specific return, he may waive the wrong committed in its removal and use, and sue for the value as upon an implied contract of sale. (Brown v. Sax, 7 Cow. 95; Baker v. Wheeler, 8 Wend. 505; Wingate v. Smith, 20 Maine, 287; Davis v. Easley, 13 Ill. 192.) 2.

The complaint does not show that the title to land is involved in any 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 to the premises in the plaintiff; and, if the position of the respondent were tenable, no action for the recovery of such 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 proof of his title, or be nonsuited on its production.

The true rule is this: The plaintiff out of possession cannot 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 cannot 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.

It is because the plaintiff owns the premises, or has the right to their possession, that he is entitled to the chattel which is severed, and that must of course be in the first instance established. 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 cases cited by the respondent from the decisions of the Supreme Court of Pennsylvania, recognize the distinction we have stated. They are all commented upon and explained by that Court in Harlan v. Harlan (15 Penn. State R. 513).

Here the complaint, so far from showing a case of conflicting titles, shows a case of lawless invasion upon the estate of the deceased, a destruction of its growing timber, and a tortious removal of the severed property by the defendant. 3. The complaint as to the appointment of the plaintiffs as executors is not liable to the specific objection taken by the demurrer. It avers that the plaintiffs were duly appointed executors of the last will and testament of the deceased, and have ever since been such executors, and as such have ever since been in possession of the premises.

These averments meet the special ground of demurrer, though they are subject to other objections. The complaint should state the death of Folsom; his leaving a last will and testament; the appointment therein of the plaintiffs as executors; the probate of the will; the issuance of letters testamentary thereon to the plaintiffs; and their qualification and entry upon the discharge of their duties as executors. 4. The plaintiffs possessed the right to institute the present action as executors under the general authority conferred upon them by the statute.

They required no special authorization for that purpose from the Probate Court. From the views we have expressed, it follows that the Court erred in sustaining the demurrer on the grounds upon which it was taken. The judgment must be reversed and the cause remanded; and it is so ordered.