
    Harris v. Newman.
    A reversal of a judgment places the parties in the same position that they occupied before its rendition.
    This court has frequently decided that to enable it to- judge of the admissibility of evidence, it must he set out in the bill of exceptions.
    Possession or qualified right is sufficient to enable a party to maintain an action of trespass or trover against any one except the true owner.
    ERROR from the circuit court for the county of Bolivar.
    The defendant in error instituted an action of trover for the unlawful conversion of a quantity of cord-wood, and obtained a verdict for two hundred and fifteen dollars and fifty cents. During the trial the defendant below took a bill of exceptions which in substance discloses this case, to wit: the plaintiff below being in possession of a tract of land, cut therefrom the wood in question, before the 26th of September, 1839, the value of which was proven, and also demand and refusal. It was also proven that the wood was on the land when the sheriff by virtue of a writ of habere facias possessionem, put the defendant below, now plaintiff, in possession, to wit, on the 9th of September, 1839. After the 9th, and before the 26th of September, the wood was demanded, but the defendant below refused to deliver it, and claimed it as his own, under a judgment then recently given in ejectment, by which he had recovered the land. The defendant then offered to read the judgment; but it appeared that an appeal had been taken, and the judgment reversed, and that the plaintiff below had been restored to his possession. This was shown by a certificate from the clerk of this court, and thereupon the court refused to let the judgment of the circuit court and the writ of possession which issued thereon go in evidence. The title by which the defendant claimed the land Avas also offered and refused; but this evidence was not set out. The bill of exceptions stated merely that the defendant then offered to read before the jury the deed of Hugh Foster to defendant and Joseph Plummer, to show defendant’s legal right and title to the land aforesaid; but the counsel for the plaintiff objected, and the court sustained the objection.
    Anderson, for plaintiff in error.
    Trover is an action in form ex delicto ; the ground of action is the wrongful conversion. The plaintiff must have a title of some sort, and right to possession, at the time of the alledged conversion. The result of the case must rest on the right of the plaintiff to possession at the time of the act alledged to be a conversion, and on the character of that act at the time it is done.
    The court below rejected all evidence of title to the land in the plaintiff in error, on the ground that the plaintiff below having been in possession when he cut the wood, that he acquired a title to the wood by accession.
    That this was a mistake of the law is made perfectly clear by recurring to the authorities on that head, which however neither court or bar had the power of doing at the trial. This doctrine is discussed in 2 Kent, 293. See also 5 Johns. Rep. 348, Bill & Church v. Lee; 6 do. 168, Curtis v. G-root; 7 Cowen’s Rep. 97, Brown v. Gex & Kemble.
    If the cutting of the wood is not such a change of the substance as to change the property, as is clearly shown from the above authorities, then the right and possession were still incident to the right and possession of the land, unless the wood had been removed from the land. No one would pretend that if the judgment had not been reversed, that Newman had a right to take off the wood. Notwithstanding a judgment may be reversed, yet what is lawfully done in execution of said judgment before its reversal is valid and stands good. Bac. Ab. Title Executions, titles P. and Q.
    Neither the sheriff nor Harris were trespassers in taking possession of the land and the wood; at the time that Harris refused to give up the wood, (the only act of conversion,) and at the time this suit was brought, Harris was lawfully in possession; retaining the possession was not then a wrong, and the act cannot be converted into a wrong by subsequent events.
    The sheriff who seized the goods of a bankrupt after an act of bankruptcy, but before commission and assignment, cannot be sued in trover, although the seizure did not change the property, and it passed to the assignees; because the act of the sheriff at the time was not wrongful, but his retaining the goods or selling them after the commission and assignment, would be a conversion for which trover would lie. 1 Burr, 25, Cooper v. Chitty. 1 Term Rep. 475, Smith v. Miller.
    But if the character and circumstances of Harris’ possession are not conclusive, we insist he had a right to show his title to the land. I see in the brief of defendant’s counsel filed, it is said as the deed offered is not set out in the bill of exceptions, the court cannot determine whether it was properly rejected or not. Whenever it is proper to show title to land, the court cannot control the party in the manner of assigning his title. He may begin at the source of the title and trace it down to himself, or he may begin at the last link and trace it up. This principle of practice is so familiar to all, I do not trouble the court or myself by citing authorities.
    The bill of exceptions states that «the defendant then offered to read before the jury the deed of Hugh Foster to defendant and Joseph R. Plummer, to show defendant’s legal right and title to the land aforesaidthis was rejected. Now the court will not presume that the deed was rejected for some unmentioned technical ground. It is said to be a deed: a deed is a deed in form and substance, and it was offered to show the defendant had title, and was rejected. This shows with sufficient certainty that the court below rejected, and intended to reject any evidence of title in the defendant below. This was the fact, and we think it appears by this bill tvith sufficient certainty; and we insist it was error. See Townsend v. Blewett, at the present term of this court.
    N. D. Coleman, on the same 3ide.
    Clark, for defendant in error.
    The first and second assignment of error are that the court refused to receive the evidence of the judgment in ejectment, and the habere facias possessionem, set forth in the record. It is a sufficient answer to these objections, that the said judgment (the same upon which said writ issued) had been reversed by this court, and it is not necessary to argue the question whether a judgment (after reversal) could be introduced as evidence of title existing at any time. The reversal of said judgment is shown by the record.
    As to the third assignment, the supposed deed in the record mentioned is not set out in the record, and this court cannot therefore judge of its validity, or eifect, or whether it was a deed, or any evidence of title. The deed not being embodied, in the bill of exceptions, the court cannot judge of the propriety of its rejection, and will not presume error. If the capias was defective as supposed in the fourth assignment, it might have been abated on plea, but after appearance and trial on the merits, it is too late to take the objection.
    In an action of ejectment nothing is recovered but the possession of the realty, any chattels upon the land are not to be dili-vered by the sheriff. If the defendant in the ejectment has cut timber, or committed any waste, damages for these can be recovered with rents, &c. as damages in the action for mesne profits. The plaintiff in error if he has sustained injury has his remedy after he establishes his title at law to recover his damages, without the absurdity of examining the title lo lands in a trial upon general issue .in trover.
   Opinion of the court by

Mr. Chief Justice Shareev :

The rejection of this testimony is now assigned for error. If the facts disclosed constituted a good defence, and the evidence was in itself unobjectionable, it should of course have been admitted.

The right which was set up under the judgment and execution in ejectment cannot be maintained, for admitting it to be true that what is lawfully done towards executing a judgment which is afterwards reversed, still neither judgment or execution in ejectment could confer a title to personal property. If indeed the title to the land and right of possession had been finally settled in favor of Harris, the action could not be .maintained, because being owner of the timber before it was cut into wood, he would own the wood also; but as the judgment was reversed, the rights of the parties stood precisely as they did before it was rendered, at least in reference to all things which had transpired before the rendition of the judgment, and the wood it seems was cut befdre judgment, whilst Newman was in possession of the land. As the judgment could have no weight, after it was reversed, in settling the rights of the parties as they stood before it was rendered, it was properly rejected, and for the same reason the writ of habere, facias possessionem was also properly ruled out. And even if the wood had been delivered with the land under the Avrit of possession, Newman was restored to his rights by the reversal of the judgment; for when a judgment is executed by taking a specific thing which is not sold, the party is to be restored to that thing by writ of restitution, when the judgment is reversed. When the judgment was reversed and restitution awarded, the parties were in the same condition as though it never had been rendered.

It seems also that the defendant offered in evidence a deed from Foster to himself and Joseph R. Plummer, for the land which had been the subject of controversy. The object of this testimony is manifest. When trees are severed from the soil and converted into wood or other material, the right of the owner of the trees is not divested so long as identity can be given to the material in its altered state. If the defendant therefore was owner of the soil and the trees, he was also owner of the Avood, and as mere possession does not entitle the possessor to an action of trespass against the true owner, the same rule may Avith propriety be applied when the trespass is waived and trover is brought. Possession or a qualified right is sufficient, except as against the true OAvner. If Harris had title to the land and the right of possession, he had a good defence, otherwise a mere trespasser might in this form of action recover against the rightful owner.

This part of the evidence, however, is not before us to enable us to judge of its competency. The deed is not set out, nor are the reasons urged for its rejection. The bill of exceptions merely informs us that: “The defendant then offered to read before the jury, the deed of Hugh Foster to defendant and Joseph R. Plum-mer, to show defendant’s legal right and title to the land aforesaid, but the counsel for the plaintiff objected, and the court sustained the objection and refused the evidence.” We have uniformly held that to enable us to judge of the admissibility of evidence, it must be set out in a bill of exceptions. Even the objections made to. the deed are not shown. It may have been rejected for want of proof, or for a defect in its execution, ■■ or for ambiguity, or for some other defect fatal to its validity as a deed. A presumption is to be indulged that the court below acted correctly, and he who complains of its errors must show them. The deed should have been inserted in the bill of exceptions, and then we could have judged of its admissibility. The case of Townsend v. Blewett, cited by counsel, to show that the court will presume that it was a sufficient deed, differed materially from this case. There the deed was admitted and read to the jury, and although it was not set out in the bill of exceptions, in our comments it was treated as a sufficient deed. The fact that it had been admitted by the court as competent evidence was a circumstance in its favor. A fair presumption arose from its being received, that it was unobjectionable. In this case the rejection of the deed, furnishes a ground for a presumption that it was defective.

The judgment must be affirmed.  