
    *Truss v. Old.
    November, 1828.
    Trespass Quare Clausum Fregit — Possession.—Possession is indispensably necessary to support trespass quare clausum fregit.
    Guardian and Ward — Interest in Ward’s Land — Trespass by Guardian -Gaardians in Socage, and Testamentary Guardians, (altboug-h they have no-beneficial interest, yet) have a legal interest, and the possession of the Ward’s land during the Guardianship. If. therefore, a person trespass on the lands of an infant, and-cut and carry away his trees, without the license of the Guardian, the Ward cannot maintain Trespass, but the Guardian may, and must account to the Ward for the damages recovered.
    Same — Trespass by Ward, — If the trees are cut and carried away by permission, of the Guardian, no Trespass is committed, and the infant, even after the Guardianship has ceased, cannot maintain Trespass for the act. The wrong must be compensated to the Ward by the Guardian.
    Same — ‘Timber Trees Thrown Down — Right of Guardian to Sell. — it seems that if timber-trees, growing on the inheritance of a Ward, are thrown down by tempest, or otberwi.se, they become personal property, and tie Guardian has a legal right to sell them, as being perishable and of no value exceptas a subject oi sale, and in such case, the infant cannot bring Trover for them.
    This was a Supersedeas toa 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 clausum 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 Piain-tiif replied generally. The Jury found a verdict for the Plaintiff for $160 damages, and Judgment was accordingly given for this sum and costs. To maintain the issue on his part, the Plaintiff proved that in the year — the Defendant entered on the Plaintiff’s lands, situated in Norfolk County, and cut down 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 appoined *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 that 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 no 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 no satisfaction of the said trespass, and no sufficient 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.
    The Defendant, by Eeigh, his Counsel, prayed this Court to grant him a Superse-deas to the said Judgment, on the following grounds:
    1. That in this country growing timber may bo 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.
    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.
    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 was awarded.
    Eeigh, for the Appellant.
    Stanard for the Appellee.
    
      
       Trespass. — See monographic note on “Trespass”appended to Quarles v. Lacy, 4 Munf. 251.
    
    
      
      Guardian and Ward, — See monographic note on “Guardian and Ward” appended to Barnum v. Frost. 17 Gratt. 398.
      See the principal case cited in Hunter v. Lawrence. 11 Gratt. 130; Cochran v. Hyre, 49 W. Va. 315, 38 S. E. Rep. 555.
    
    
      
       Same — Rights of Guardian in Ward’s Land — Trespass by Guardian. — The guardian has the legal right to the possession of the ward’s land during the guardianship. He may maintain trespass for an inj ury to the soil; or even ejectment for its recovery. He may grant a copyhold in reversion or remainder in his own name. He may have a writ of right of ward, and recover the land and damages, as well as the body of his ward. Zirkle v. McCue, 26 Gratt. 526, citing the principal case, and 2 P. Wms. 122, as its authority. And in Ware t. Ware. 28 Gratt. 673, it is said: “Although the guardian has no beneficial interest in the estate of his ward, still his authority is coupled with an interest, and is not barely an office. In respect to the real estate, he may make a lease for years, upon which ejectment may be maintained; he may have an action of trespass against a stranger, in his own name, for spoiling the grass: he may have a writ of right of ward, and recover the land and damages, as well as the body oi the ward; he may assign dower and institute proceedings for partition. Truss v. Old, 6 Band. 556 ” To the same effect, the principal case is cited in Brockenbrough v. Turner, 78 Va. 454: Burdettv. Gain, 8 W. Va. 285; McDodrill v. Pardee, etc., Lumber Co.. 40 W. Va. 567, 21 S. E. Rep. 878 (in this case, it was held that, not a guardian by nature, but only a guardian appointed, who has given bond a.s and when required by law, is entitled to the possession, care and management of his ward’s estate.)
    
   November 12.

JUDGE GREEN

delivered; his opinion.

Possession is indispensably necessary to support an action of Trespass, quare clausum fregit; (See the cases collected 20 Vin. Abr. 463, pi. 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 haw, the possession is in the Guardian, or Ward.

Our 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 Executor 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 con-troul of the infant’s property, so long1 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 of making 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.

Accordingly, the authorities are uniform that a Guardian in Socage has a legal right to the possession and disposition of his Ward’s land, during the continuance of his Wardship. Littleton (B. 2, §123,) 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 copy holding 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 ejectment may be maintained, 14 Vin. Abr. 185, pl. 4; and see Ibid. pi. 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, pi. 17S; Br. Garden, pi. S, cited in Vin. Abr. 196, pi. 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, pi. 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. pi. 11, cited 14 Vin. Abr. letter N. pi. 1, note. And to the same effect was the Civil Law, from which the Law of Guardianship in Socage was in a great degree taken. “Tutores *sive pupilti 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.

It 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 which he might have maintained Trover, and chat 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, even the tenant (Uvedale v. Uvedale, 15 Vin. Abr. 142, pl. 3,) yet, in this case, the Plaintiff could not have maintained such an action against the Defendant, because 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 asked for.

The PRESIDENT and JUDGE CARR concurred. 
      
       Absent, Judges Cabell and Coalter
     