Emory F. Skinner, Appellant, vs. John Pinney, Appellee, 19 Fla. 42

The Chief-Justice delivered the opinion of the court. Under the statute of this State (McClellan’s Big., 514, S. 8,) a certified copy of a record of a deed is not made evidence without other proof of the original than the proof or acknowledgment taken before the acknowledging officer. The statute says that such certified copy shall be received in evidence in the same manner as the original thereof may be and with the like force and effect. How is an original deed of conveyance by a third person duly acknowledged made evidence ?

The rule is well established that a deed offered in evidence by a party claiming under it must be proved by the subscribing witnesses if they are living and within the reach of the process of the court, or, if their testimony is not so obtainable, by proving their hand-writing or that of one of them. (Greenl.

Ev., §569, et seq.) There are exceptions (applicable to circumstances not existing in the present case) mentioned' by Greenleaf and other writers, which need not be noticed here.- The statute relating to the acknowledgment (McClellan, 215, S. 6,) says that '“ in order to procure the recording of such conveyance ” it must be acknowledged or proved in a certain manner, but we have no law substituting the acknowledgment or proof for the purpose of recording, as evi- ■ dence of due execution before a court, for the usual methods of proof.

How can it be contended that a certified copy of the record is evidence without other proof, while the original duly acknowledged or proved for the purpose of record and recorded, is not evidence, unless its execution is duly proved by the subscribing witnesses ? To so hold would make a certified copy of a forged deed arid a forged acknowledgment better evidence than a genuine duly acknowledged original deed, and without the sanction of a statute.

So long as the statute does not provide that the acknowledgment duly certified shall be deemed evidence of the genuineness of the signatures of the grantor arid the witnessesj the courts cannot make them so' without asserting the power of legislation. According to the statute a certified copy of the record of the deed is to be received in evidence in like manner as though the original were produced, and not otherwise. In the case of Hogans’ Heirs vs.

Carruth, 18 Fla., 593, this court said that “ the certificate or acknowledgment is not a common law certificate, but is altogether statutory in its. character and can serve no other purpose under the • statute than that declared by the statute, which is to authorize a record thereof in the office assigned by law- for that-purpose,” and “where a different rule prevails it is because the statute in letter or effect makes deeds thus acknowledge*! and recorded evidence.” See authorities cited in that case ; and note 479, p. 582, Vol. 2, Cowen & Hill’s Notes to 4th Am. Ed. of Phil. Ev.

The result is that under our statute a certified copy- of a private deed duly recorded may be received as evidence-only where the original is duly proved to have been executed, or as secondary evidence. Until the Legislature shall declare that the certificate of the officer taking an acknowledgment shall be deemed sufficient proof of due execution, otherwise than for the purpose of record, we cannot change this rule of evidence.

The plaintiff has here shown, however, that he was in posT session as. a purchaser and under claim of title and had been in such possession for twenty-three yearn, his agents having resided thereon and “looking after ” them. The lands had been granted to his predecessor by

an act of Congress of May 28, 1828. The defendant commenced cutting timber trees on this land in-December, 1880, or before, and plaintiff’s agent notified him that it was on plaintiff’s land, but he-persisted in cutting and put into the water- of -the bay adjoining 1,423 logs aud took them away with his tug. Defendant introduced deeds and certificates of purchase from the Trustees of the Internal Improvement Eund of' Florida, but these gave him no title or right of possession of the land because the United States had granted it to the predecessor of the plaintiff before the grant to the State.

While these logs remained upon the premises in possession of plaintiff they were in his possession, and this possession was sufficient to maintain his action of trover for their conversion. (Weymouth vs. Ch. & N. W. R. Co., 17 Wis., 550.) The conversion was complete when they were removed away from the boundary of the land, for while they remained upon the land they were still iu his possession.

The offer of the defendant to prove the value of the standing trees as the measure of damages for the conversion was properly rejected, because the action was brought to recover the value of the Jogs taken away and not for the trespass in cutting them down. And the offer of the defendant to prove the value of logs at some other place to which he had removed them was properly rejected because plaintiff was entitled to the value at the time and place of conversion.

The counsel of the respective parties agree that “ the measure of damages is the value of the thing converted at the time of conversion.” Defendant's counsel cites the case of Weymouth vs. Chicago & N. W. Railway Co., deciding that where wood was piled on defendant’s land for the purpose of selling it to defendant and was taken away by mistake by defendant •before the sale was completed, the measure of damages was the value of the wood where plaintiff had deposited it and not at the place to which defendant had carried it and mingled it with other wood so that it its identity was lost.

This was upon the ground stated that “ where the owner waives the right to reclaim the property itself and sties for damages the difficulty of separating the enhanced value from the original value no longer exists. It is then entirely practicable to give the owner the entire value that was taken." The court held that in trover where the property was taken by mistake the rule of damages should be the value where first taken. The court cites approvingly the case of Curtis vs.

Grant, 6 Johns., 168, where plaintiff had trespassed upon defendant’s land and manufactured his timber into coal which remained upon the land. The trespasser sued the owner of' the land for the coal, and it was held that he had no cause of action, for the coal belonged to the owner of the timber out of which it was made. For it. is conceded by all the cases that a wrong-doer can-not., by bestowing labor upon the property of another, which he has tortiously taken, thereby divest the title of the-original owner, but the latter may retake it in whatever form so long as its identity can be established.

And in determining the question of recaption the law must- allow the owner to retake the property, or it must hold that he has lost his right by the wrongful act of another. If retaken at all it must he taken as found, though enhanced in value by the trespasser. It cannot be restored to its original condition.

The law, therefore, being obliged -to say either that the wrong-doer shall lose his labor, or the owner lose the right to take his .property wherever he may find it, very properly decides in favor of the latter.” This case comes far short of establishing the rule contended for-that this defendant is liable only for the value of the standing trees, and that he ought not to be made to pay for the enhanced value consequent upon his labor in converting plaintiff’s trees.into timber upon .plaintiff’s premises.

The difficulty is that a trespasser cannot by converting the trees of another into timber on the premises claim any property .in.,the -timber, because he is a trespasser and the pro.per.ty in the timber remains in the owner. Defendants:-.counsel also cites Single vs. Schneider, 30 Wis., 57, (replevin) in which it- is held that where logs are knoAvingly and wilfully cut by one man from the land of another, the value of the logs cut will be the ordinary measure of damages.

In that ease the defendant had manufactured the logs into boards and the court said that the plaintiff could not recover the value of the boards. ■ This decision is in conflict Avith the uniform ruling of other courts which hold that the property has not. changed ownership by the wrongful act of one who has taken.possession of it without the consent of the owner. It was expressly condemned in Nesbit vs. St. Paul Lumber Co., 21 Minn., 491, where the court says that the decision in Single vs.

Schneider was “at variance not only with every adjudication o« the point, but with principle ; for the wrong-doer can be permitted to retain a part of the value, only on the ground that he has a property in the chattel, to the extent of that part of the value that he is allowed to retain.” The rule is stated in Silsbury vs. Coon, 3 N. Y., 379: “If the wrong-doer sell the chattel to an honest purchaser having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser has none to give.

The owner of the material may still retake it in its improved state, or he may recover its improved value. The right to the improved value is a consequence of the continued ownership. It would be absurd to say that the original owner may retake the thing by an action of replevin, in its improved state, and that he may not, it put to his action of trespass or trover, recover its improved value in damages.” In Moody vs.

Caulk, 14 Fla., 50, cited by appellant, it was held that the measure of damages in trover where the property converted was ordinary merchandise and the like perishable property the subject of traffic, the rule of damages Avas the value of the property at the time of conversion Avith interest, and not the highest price between the time of conversion and the trial with interest, as was charged to the jury at the Circuit.

In other Avorde, the rule Ave adopted gaAre the plaintiff’ compensation for his loss at the time of the conversion and interest, Avhether the conversion was fixed by the unlawful taking or by a refusal to deliver on demand made. The same rule Avas enforced in Robinson vs. Hartridge, 13 Fla., 501, 515. In neither case is there an intimation that the plaintiff is not entitled to any enhanced value produced by the conduct of the wrong-doer prior to the actual removal of the property from the owner’s possession.

The claim made by the plaintiff here is for the value of the logs at the time of their removal from his premises, and that is the conversion complained of. It canuot he ■disputed that he had a right to the possession of the logs at least until they were taken away, and the authorities say he could, reclaim the property even after their removal to any other place, because they were still his property.

The argumeut of counsel for defendant is that the plaintiff ought not to profit- by the labor of the defendant in making the property more valuable — in converting trees into timber — hut the answer is that the defendant acted wrongfully, whereby he lost his labor, and though the timber is more valuable than standing trees, yet the timber belongs to the owner of the trees and not to the trespasser.

There are a few cases where courts have modified the rule of damages in trespass and trover and confined them to the actual damage sustained, by the cutting’'Of trees, but they are rather exceptions to the general rule, and are generally eases of innocent, mistake or the suit is against an innocent purchaser after conversion, or where, the

article converted has been manufactured into other forms of merchandise. If one of these cases apply to the facts before us. The plaintiff here makes no claim for any value added to the logs after they were taken from his possession, hut only for their value while lying in the water upon and adjoining his land. If ó exemplary damages were asked or awarded.

The charge of the court that the conversion was complete only when the logs were removed from plaintiff’s land, and that the plaintiff was entitled to recover the value at the time and place of removal by the defendant, with interest, if the logs were shown to have been removed. from the plaintiff’s land by the defendant, is strictly in accord with the rule of law laid down by this court and by all other courts, as we understand them, with the exception mentioned of the few cases where courts modified the rule in favor of innocent purchasers after conversion and cases of innocent mistake.

It follows that the ruling of the Judge in excluding testimony as to the value of the standing trees and.the expense of cutting and hauling to the water, and the value of the logs at the place to which they had been towed by defendant’s boat after leaving plaintiff’s possession, was not erroneous. This ruling is in precise accord with the argument of appellant’s counsel that the value at the time of the actual conversion, aud not the value at a subsequent time or at another place, is the true guide.

The value of the logs when taken from the plaintiff’s possession was the measure given to the jury, and we- find no case where a rule more favorable to the defendant has -been given upon facts similar to those in the present case. The defendant claims that if he was a trespasser at all he was an innocent one; that he believed the property was his own, and there is no element of wilfulness or malice. But. before he removed the logs he was notified by plaintiff’s agent in possession that the land belonged to plaintiff. But he continued the cutting, and removed all the logs after this notice.

As to the evidence of title introduced by the defendant, it could not avail him because the Trustees of the Internal Improvement Fund or the State had no title, the land having been granted by Congress to a private party, under which title the plaintiff was in possession. The plea that the plaintiff had no title to the logs, and that he was not entitled»to possession, was not supported therefore by the deeds of the Trustees, orby any other evideuce in tlie case.

Bor could the defendant defeat the right of recovery even if the plaintiff’s title rested only in possession and the absolute title was in a third person, for according to the general tenor of authority in this country the defendant in trover cannot set up the title of a third person in defense, unless he, in some manner, connects himself with that, title. Duncan vs. Spear, 11 Wend., 54; Weymouth vs. C. & N. W. R. Co., 17 Wis., 550 ; Barwick vs. Wood, 3 Jones, 306; Harker vs. Dement, 9 Gill, 7 ; Moore vs. Aldrich, 25 Tex., (Supp.) 276. The judgment is affirmed.