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Russell v. Hill

Citation. 22 Ill.125 N.C. 470, 34 S.E. 640 (1899)
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Brief Fact Summary.

The Plaintiff bought timber from McCoy, who had a grant issued by the state as to the land, but the same land had been previously granted to Busbee. Defendant later took the timber from Plaintiff without permission.

Synopsis of Rule of Law.

In order to maintain an action in trover, the Plaintiff must show title and possession, or a present right to the possession.


In 1887, after entry and survey, Busbee, trustee, received a grant, properly registered, from the state for the tract of land at issue. Thereafter, Mrs. McCoy entered and surveyed the same tract of land and also received a grant from the state. Mrs. McCoy had no notice of the grant to Busbee, except for that of the registration of Busbee’s grant implied by the law. Thereafter, Mrs. McCoy sold timber to Plaintiff, who then cut the timber and carried the logs to the Nantahalla River for the purpose of floating the logs to the Asheville Furniture Company. While the logs were situated on the bank of the river, the Defendant came and took them away and sold them to the Asheville Lumber Company for $686.84. The Defendants had no right to title or possession from anyone, including Plaintiff. The Asheville Lumber Company is insolvent and the lower court found that Plaintiff could not recover. Plaintiff appealed.


May Plaintiff maintain a trover action against Defendant for interference with any right of possession of Plaintiff?


No. Judgment affirmed.
Busbee, the trustee, was found to be the legal owner of the tract of land. McCoy was found to have not been in possession of the tract. If McCoy had been in adverse possession, then the title to the logs would have passed to Plaintiff, who could then maintain this action. In such a scenario Busbee would have been compelled to seek damages from McCoy for violation of the freehold.
This is an action in trover, and to recover, Plaintiff must show both title and possession or a present right to possession. This Court notes the decision of Armory v. Delamirie, infra, but states that this case is distinguishable insofar as the rightful owner of the logs and the land is Busbee, trustee. In Armory v. Delamirie, infra, the court stated that the case would be different if the rightful owner were known. In this case trover cannot lie in favor of Plaintiff, as finder, because the rightful owner is known. Allowing Plaintiff to recover for trover here would subject Defendant to being held liable both by the Plaintiff and by the rightful owner for the same logs.


This case illustrates the need for grants and deeds to be recorded and checked before being granted to another.

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