gendered an express trust, is wholly unne
essary, since it is admitted that had the
the state through its agents cut timber upon
the land before the passage of the forfeiture
act, a right of action would have arisen on
behalf of the United States against the
state as upon a covenant by the state that
it would keep the land and its incidents for
railway purposes only. This conclusion nec-
essarily carries with it as a legal resultant
the proposition that the granting act contained
an express trust. How, then, I submit, can
it in reason be held that there was a right
which could only exist upon the hypothesis
of an express trust arising from the grant-
ing act, and yet it at the same time be de-
cided that there was no trust whatever im-
plied in the act, or that the rights which
would obtain if there were a trust have no
It cannot be doubted that the act

while it so held the land, "possessed all the power and dominion over it that belonged to an owner." Stanley v. Colt, 5 Wall. 167 [18: 510]. As the timber when severed belonged to the true owner of the land, the state, as the trustee of an express trust and representing such owner, was the proper party, during the continuance of the trust, to recover any portion of the inheritance wrongfully converted by a trespasser, and this would have been the case even if the United States had stipulated to retain possession until a conveyance of the land by the state. Wooderman v. Baldock, 8 Taunt. 676; White v. Morris, 11 C. B. 1015; Barker v. Furlong [1891] 2 Ch. 172; Myers v. Hale, 17 Mo. App. 204. Clearly this was so, because, to maintain replevin or trover, it is 22] essential that the plaintiff *have at the time of suit brought the legal title to the prop-being? erty, and, until the enactment of the forfeit ing act, the legal title to this timber was in the state of Michigan.

restricted the use to a particular purpose,
nor can it be gainsaid that the right of re-
entry was stipulated only as respects the
non-completion of the railroad. But the
failure to preserve a right of re-entry in
case of the misuse of the property did not
destroy the terms of the act restricting the

It was manifestly because the legal title
was in the state that this court in Schulen-
berg v. Harriman, 21 Wall. 44 [22: 551],
declared that a state was the owner of tim-
ber which had been wrongfully cut by tres-use, and as, therefore, the restriction as to
passers from land granted in aid of a rail-use was unaccompanied with a clause of re-
road by a statute similar to the one above entry, the effect was to give rise to a trust
referred to. The Schulenberg action was in- upon the grantee with reference to such use.
stituted, however, at a time when no for- This last principle, I submit, is sustained
feiture had been declared, and the contro- by authority. Stanley v. Colt, 5 Wall. 119,
versy was simply between a trespasser and 165 [18: 502, 509]; Packard v. Ames, 16
the state as to their respective rights in tim- Gray, 329, and cases cited; Sohier v. Trinity
ber which had been unlawfully severed from Church, 109 Mass. 1, 19.
the granted land. That land so conveyed,
with all that formed part thereof, was
deemed to be held upon trust is manifest
from the opinion, for, speaking through Mr.
Justice Field, the court said, p. 59 [22: 554]:
"The acts of Congress made it a condition
precedent to the conveyance by the state of
any other lands that the road should be con-
structed in sections of not less than twenty
consecutive miles each. No conveyance in
violation of the terms of those acts, the road
not having been constructed, could pass any
title to the company."

As the state held the land with power simply to sell on the happening of a particular event, until the occurrence of that event the state had no greater rights in the land than would have existed in favor of one who was entitled to the mere use and occupancy of the land. It could not therefore sell the timber for purposes of mere profit, for, as said in United States v. Cook, 19 Wall. 591 [22: 210]:

And this view was reiterated by this court, speaking through Mr. Justice Brewer, in Lake Superior Ship Canal R. & I. Co. v. Cunningham, 155 U. S. 354 [39: 183], when, in interpreting the very statute now under consideration, it was said, p. 373 [39: 190]: "Further, the grant to the state of Michigan was to aid in the construction of a railroad. Affirmatively, it was declared in the acts of Congress that the lands should be applied by the state to no other purpose. Even if there had been no such declaration such a limitation would be implied from the declaration of Congress that it was granted for the given purpose. As the state of Michigan had no power to appropriate these lands to any other purpose, certainly no act of any executive officer of the state could accomplish that which the state itself had no power to do." To reason, however, to establish that, in so far as the granting act restricted the state [223]to the use of the land and that *which adhered in it for a particular purpose, it en426

"The timber while standing is a part of the realty, and can only be sold as the land could be. The land cannot be sold, consequently the timber, until rightfully sev ered, cannot be."

•

If, therefore, the state could not rightfully acquire the absolute ownership, in its own[224] right, of timber, the cutting of which it had authorized, it is clear that it would not become such owner by reason of the unlawful act of an unauthorized person. As the state of Michigan was without power to have authorized a sale of the timber contrary to the purpose of the trust, it is obvious that the act of a mere trespasser, without authority from the state, in denuding the land of its timber, could not operate to vest the state or the trespasser with the absolute ownership, in its or his own right, of said timber; and it is the settled doctrine of this court that the sale of timber by a trespasser does not devest the title of the real owner, and that a purchaser, even though acting in good faith, is liable to respond to the true owner for the timber or its value. United States v. Cook, 19 Wall. 591 [22: 210]; E. E. Bolles Wooden-ware Co. v. United States. 106 U. S. 172 U. S.

432 [27: 230]; Stone v. United States, 167 | magis valeat quam pereat." And in Lord
U. S. 192, 195 [42: 133, 134].
Coke's comments on the case he observes (p.
30a): "The law will never make any fic-
tion, but for necessity and in avoidance of a
mischief."

The simple question presented, then, is
this, and this alone: Where the legal title
to land, with its incidents, is in one person
burdened with an express trust in favor of
another, can the cestui que trust, upon the
cessation of the trust, when the title to the
land and its incidents has revested in him,
recover from a wrongdoer the value of timber
cut, without color of right and unlawfully
removed from the land while the legal title
and possession thereto was in the trustee?

Early in England the doctrine of relation was applied in favor of the King in cases where, until office found, the title or right of possession to property, real or personal, was not in the Crown. Thus, Viner in the eighteenth volume of his Abridgment, at page 292, title Relations, states the following

case:

This question is, I think, fully answered by the rulings of this court in Schulenberg v. Harriman and Lake Superior Ship Canal R. & I. Co. v. Cunningham, supra, because, as already stated, in the first case it was said that "no conveyance in violation of the terms of these acts, the road not having been constructed, could pass any title to a grantee of the state;" and in the second, that, "as the state of Michigan had no power to appropriate these lands to any other purpose, certainly no act of any executive officer of the state could accomplish that which the state itself had no power to do.". Now, no one will gain. say that this court in those cases declared that if the land was conveyed in violation of the terms of the act of Congress, an occupant under such an unlawful grant might be ousted by the United States, either forcibly [225]*or by suit in ejectment. With this doctrine thus settled by this court in opinions which are now approvingly cited, is it yet to be held that if the occupant under a void grant from the state before forfeiture denuded the land of all its timber,—that is, of one of its material incidents, the land might be recovered by the United States from the trespasser, but not the timber or its value? I submit that, upon general considerations, as between the wrongdoer and the cestui que trust, the better right is in the latter, that such right can be enforced, and that though ordinarily in an action of trover it is essential that the plaintiff should have had at the time of the unlawful conversion the legal title and right of possession to the property claimed by him, yet, under such circumstances as I have indicated, a title by relation is a sufficient basis

for the action.

Relation is a fiction of law, adopted solely for the purposes of justice (Gibson v. Chouteau, 13 Wall. 100 [20: 537]), and by it one who equitably should be so entitled is enabled to assert a remedy for an injury suffered, which otherwise would go unredressed. The doctrine is considered at much length in Butler v. Baker, 3 Coke, 25, in resolutions of the Justices of England and the Barons of the Exchequer, and "many notable rules and cases of relations" (p. 35b) are there stated. The action was trespass, and the refusal of a wife, after the death of the husband, to accept a jointure by which an estate tail had vested in her prior to the death of the husband, was held to relate back as to certain lands, and not as to others. It was laid down (p. 286) "that relation is a fiction of law to make a nullity of a thing ab initio (to a certain intent) which in rei veritate had essence, and the rather for necessity, ut res

"2. In quare impedit, where the King is entitled to the advowson by office by death of[226] his tenant, the heir being within age and in ward of the King by tenure in capite, this office shall have relation to the death of the tenant of the King; so that if there be a mesne presentment the King shall avoid it by relation. (Br. Relations, pl. II. cites 14 H. VII. 22.)"

Several instances of the application of the doctrine in favor of the King are referred to at length in the report of the case of Nichols v. Nichols, 2 Plowd. 488 et seq., one of which, I submit, is precisely parallel to the case at bar, and is thus stated in the report:

"In an action of trespass brought in 19 Edw. IV. for entering into a close and taking the grass, the defendant pleaded that it was found by office that the tenement escheated to the King before the day of the trespass, and there it seems that, as to such things as arise from the land, as the grass, and the like, the action which was well given to the plaintiff was taken away by the office found afterwards, which by its relation entitled the King thereto; but, as to the entry into the land, or breaking of fences, which don't arise from the land, nor are any part of the annual encrease of it, the action was not taken away by the office."

This last case is reviewed, approvingly, in the opinion of Bayley, J., in Harper v. Charlesworth, 4 Barn. & C. 587, where, in an action of trespass brought by one in the possession of lands under a parol license from agents of the Crown, which possession was not good as against the Crown because not granted in conformity to statute, it was adjudged that, as the King had not proceeded against the occupant, the action might be maintained, though the right of such occupant to recover for the trees was denied in the opinion of Holroyd, J., presumably be cause they form part of the inheritance.

The doctrine was early enforced in Eng. land to vest a right of action in trover in an administrator. In 18 Viner's Abr., title Relation, p. 285, it is said:

"(1. If a man dies possessed of certain goods, and after a stranger takes them and converts them to his own use, and then administration is granted to J. S., this administration shall relate back to the death of the testator, so that J. S. *may maintain an ac-[227] tion of trover and conversion for this conversion before the administration granted to him. Trin. 10 Car. B. R. between Locksmith and Creswell adjudged, this being moved in arrest of judgment, after verdict for the plaintiff. Intratur. Hill, 9 Car. Rot. 729.)"

In the marginal note it is stated: "For this is to punish an unlawful act; but relations shall never devest any right legally vested in another between the death of the intestate and the commission of administration."

however, that before the determination of the ejectment suit the logs had been skidded upon adjoining land, would the ownership or right of possession depend upon which party first reached the skids? As is said in the Busch Case, as between the wrongdoer and the true owner of the land, the title to what is severed from the freehold is not changed by the severance, whatever may be the case as to strangers. If the true owner may keep his own property when he gets it, why may not he get it if another has it?"

An administrator has likewise been held, by relation, to have such constructive right of possession in the goods of the intestate before grant of letters as to be entitled to maintain an action of trespass. Tharpe v. Stallwood, 5 Mann. & G. 760, and cases there cited. And, in Foster v. Bates, 12 Mees. & W. 226, Parke, B., said (p. 233):

*

"It is clear that the title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate; and that he may recover against a wrongdoer who has seized or converted the goods of the intestate after his death, in an action of trespass or trover. All the authorities on this subject were considered by the court of common pleas, in the case of Tharpe v. Stallwood, 12 L. J. C. P. N. S. 241 (a), where an action of trespass was held to be maintainable. The Among the cases recognizing and applying reason for this relation given by Rolle, C. the doctrine that the legal title when ac-[229] J., in Long v. Hebb, Style, 341, is, that other-quired may be held, for certain purposes, to wise there would be no remedy for the wrong relate back to the inception of an inchoate done." right in the land, which, however, was in no sense an estate in the land, may be cited the following: Ross v. Barland, 1 Pet. 665 [7: 302]; Landes v. Brant, 10 How. 348 [13: 449]; Lessee of French v. Spencer, 21 How. 228, 240 [16: 97, 100]; Grisar v. McDowell, 6 Wall. 363 [18: 863]; Beard v. Federy, 3 Wall. 478 [18: 88]; Lynch v. Bernal, 9 Wall. 315 [19: 714]; Stark v. Starrs, 6 Wall. 402 [18: 925]; Gibson v. Chouteau, 13 Wall. 92, 100 [20: 534, 537]; Shepley v. Cowan, 91 U. S. 330 [23: 424]; Heath v. Ross, 12 Johns. 140; and Musser v. McRae, 44 Minn. 343. As was said in Gibson v. Chouteau, supra, 13 Wall. 101 [20: 537], the doctrine of relation is "usually" applied in this class of cases, but Another illustration of the application of is so applied "for the purposes of justice." [228]the doctrine is where a grantee or mortga- I submit it is clear that the inchoate rights gee ratifies an unauthorized delivery of a in land held in the cases above cited to be conveyance or mortgage to a third person, in sufficient to warrant the application of the which case it is held that the title may relate doctrine of relation were of no greater legal back to the unauthorized delivery, except as or equitable merit or efficacy than the interto vested rights of third persons. See a re- est or expectant right in land with its inciview of numerous authorities in Rogers v. dents reserved to the United States by virtue Heads Iron Foundry Company, 51 Neb. 39 of the granting act of 1856 here consid[37 L. R. A. 429]. See also Wilson v. Hoffered, and this it strikes me is patent when it man, 93 Mich. 72, where it was held that a is borne in mind that it is conceded that the successful plaintiff in ejectment might main-interest of the United States in the land was tain an action of trover for logs cut by the such that, if the timber had been cut by the defendant from standing timber and re- state, the United States had the better right moved from the land during the pendency of to the avails, and might, by an action for the suit, and while in possession of the land breach of covenant, recover the same under a bona fide claim of title adverse to from the state. But if the state, which held the plaintiff. In that case the court said the legal title subject to an express trust, (p. 75): can be held to account by way of damages in an action of covenant for timber cut under its authority, why "for the purposes of justice" should not the doctrine of relation be applied in favor of the United States, at this time when, otherwise, a naked trespasser, who had no title of any kind, and whom the state, while it was trustee, chose not to sue and cannot now sue, will escape liability and the United States be defrauded

The title of an assignee in bankruptcy was also early held to relate back, for the purpose of maintaining trover, to the time of the commission of the act of bankruptcy. See the subject reviewed in Balme v. Hutton, 9 Bing. 471, particularly pages 524, 525, where Tindal, C. J., observed that in Brassey v. Dawson, 2 Strange, 978, Lord Hardwicke, then chief justice of the King's bench, stated this relation to be a fiction of law, but that, subsequently, when chancellor, in Billon v. Hyde, 2 Ves. Sr. 330, he seemed to be of opinion that the terms of the bankrupt act, by necessary construction, imported that such relation was intended.

"In the present case the true owner brings trover against the party who cut the logs, under a bona fide claim of title adverse to the owner, after the title to the land has been determined in favor of the plaintiff. . . If in the present case the logs had been upon the land when the ejectment suit was determined, that determination would have established the title in the plaintiff. Suppose,

Many decisions of this and other courts illustrate the application of the doctrine to various conditions of fact. Thus, where one has claimed land under a donation act, or has entered upon land under homestead or pre-emption statutes, the legal_title_subsequently acquired by patent has been held to relate back to a prior period, to quote the language of this court in Gibson v. Chouteau, 13 Wall. 100 [20: 536], "so far as it is necessary to protect the rights of the claimant to the land, and the rights of parties deriving their interests from him."

of the value of its property? To deny relief | ber from the land. Liford's Case, 11 Coke, under such a state of facts is, I submit, to 46b, 48a; Ward v. Andrews, 2 Chitty, 636; S. hold that if A conveys land in fee to B in C. 4 Kent, Com. 120; United States v. Cook, trust, to be held for C until the happening 19 Wall. 591, 594 [22: 210, 211]; Burnett v. of a certain event, and, after the contin- Thompson, 51 N. C. (6 Jones, L.) 210, 213; gency has happened, and the land has been Mathers v. Ministers of Trinity Church, 3 conveyed to C and the trust thus terminated, Serg. & R. 515 [ 8 Am. Dec. 663], and cases the former cestui que trust discovers that cited; Moores v. Wait, 3 Wend. 104, 108; the land had been stripped of all its timber Gordon v. Harper, 7 T. R. 13; 1 Chitty, [230] by a trespasser and rendered practically Plead. 16th ed. 217, star paging 168; 1 valueless, he is without remedy, and must en- Wash. Real Prop. 5th ed. 498, note T, star dure the pecuniary injury without com- paging 314; and the same principle applies plaint. to whatever is part of the inheritance and is wrongfully severed and removed from the land. Farrant v. Thompson, 5 Barn. & Ald. 826, 828.

If, as it seems to me is clearly the fact, the state of Michigan held title to the timber merely as an incident to the land, and could only exercise such powers with respect to the timber as it was entitled to exercise as respects the land itself, it results that the state did not stand in the attitude of a grantee of land upon condition subsequent, to whom an absolute conveyance had been made, for its sole use and benefit. Authorities, therefore, to the point that in the case of such a conveyance, the only right of the grantor is to receive back, upon re-entry, the granted land in the condition in which it might then exist, have no pertinency in a case like the present, where the grant was to the state, not as absolute owner, but as a mere trustee So, also, I submit that decisions which hold that upon the commission of a trespass upon land where the legal title and possession is in the real owner, or upon an infringement of a patent the legal title to which is in the real owner, a right of action to recover damages for the trespass or infringement immediately vests in such owner and becomes personal to him, so as not to pass upon a subsequent conveyance of the land or assignment of the patent, have no relevancy in cases like that at bar, where at the time of the trespass or infringement complained of the legal title and the possession were held by one who was a trustee for another, and had no real, beneficial interest in the land.

To summarize, therefore: The state of Michigan was not the beneficial owner of the land from which the timber in question was severed, but held the legal title merely as a trustee, though, by virtue of being vested with the legal estate, the state was entitled to enforce, for the benefit of the real owner, such remedies as the latter might have resorted to had he held the legal title. But if the owner, the United States, is not permitted to maintain the present action, it loses property which it had a clear right to receive, and the wrongdoer goes unpunished. These circumstances present all the elements which justify resort to the fiction of law by which a person who, in equity and good conscience, was the real owner at the time of an unlawful conversion, is to be regarded, as against the wrongdoer, to have had the legal title and possession, by relation, in him at the time of such conversion, and therefore as having had such a title and possession as, when his disability to assert his rights no longer exists, will entitle him to maintain

an action of trover.

Indeed, it seems to me that in reason it is impossible to deny the right of the true owner to recover the timber, without involv ing the mind in irreconcilable propositions and in addition making use of a complete nonsequitur, that is to say, first, that there Nor can I see the appositeness of the cita- was no trust, and yet that rights existed tion of authorities holding that, during the *which could only arise by reason of a trust;[232] existence of a trust, the trustee, and not the and second, that the trustee alone could sue cestui que trust, is the proper person to sue. during the existence of the trust, therefore, This is readily conceded, and such was the on the termination of the trust, the same decision of this court in Schulenberg v. Har- doctrine applies. Reduced to its last analyriman and in Lake Superior Ship Canal, R. sis, the doctrine now announced is, I submit, & I. Co. v. Cunningham. The question here really this: That the United States could is not, Who may sue during the existence of the trustee must assert the right, and that the trust? but, What are the rights of the it likewise could not recover after the tercestui que trust when the power of the trus-mination of the trust, and, hence, could not tee has ended and the property has reverted recover at all. The result in effect concedes under the terms of the trust? the existence of a right of property, but holds that it cannot be protected because the law affords no remedy. The maxim, Ubi jus, ibi remedium, lies at the very foundation of all systems of law, and, because, as has been stated at the outset, I cannot believe that the common law departs from it, I refrain from giving my assent to the conclusions of the court, and express my reasons for dissenting therefrom.

not recover whilst the trust existed because

429

The decisions are uniform, that even where land is in the possession of a lessee, upon an [231]unauthorized severance of growing timber, the title and right of possession to the severed timber is at once vested in the owner of the land, or, as it is sometimes expressed, the owner of the inheritance; and the latter may resort to the appropriate remedies against one who unlawfully removes the severed tim172 U. S.

WILLIAM GRANT, Receiver of the Estate | to the grantees their shares in the property of Oliver J. Morgan, Plff. in Err.,

v.

JOHN A. BUCKNER.

as the heirs of his wife, and secondly, to make
a donation from himself. He died in 1860.
In 1872 certain creditors of Morgan, credit-[34]
ors of him individually, and not of the com-
munity, brought suit in the circuit court of
the United States to set aside the convey-

(See 8. C. Reporter's ed. 232-239.)

Date of pre-existing right-set-off of rent-ance and subject his interest in the property suit in state court by receiver appointed to the payment of their debts. Their contenby Federal court-allowance of set-off. tion was sustained by the circuit court, and its decree was substantially affirmed by this court. 111 U. S. 640 [28: 547]. Thereaf ter, and in May, 1884, the circuit court appointed a receiver to take charge of all the plantation was at the time in the possession property conveyed by Morgan. Melbourne of the present defendant in error, claiming under the conveyance made by Morgan in 1858. After the appointment of the receiver the defendant in error, rather than be dispossessed, leased from him the plantation. The litigation continued, and, new parties being named, came to this court again in 1891. 139 U. S. 388 [35: 199]. It was then decided that one undivided half of the Melbourne plantation belonged to the defendant in error, and that only the remaining half was subject to the debts of Morgan. The language of the decree was: "The said heirs are entitled to have and retain a certain portion of said Oliver J. Morgan's estate free from the claims of his creditors, as

1. An adjudication that a party is entitled under a conveyance to one half the estate is a determination of a pre-existing right which dates from the time of the conveyance.

2.

One half the rent paid to a receiver by one who took a lease from him rather than be dispossessed, but who is subsequently adjudged to be the owner of one half the estate, may be set off against the rent thereafter accruing for the half that is subject to the receiver. 8. A receiver in a Federal court who voluntarily goes into a state court cannot question the right of that court to determine the controversy between himself and the other party.

4. A counterclaim or set-off comes within the spirit of the act of Congress of August 13, 1888, allowing a receiver of a Federal court to be sued in a state court without leave of

the court appointing him.

[No. 89.]

Submitted November 29, 1898. Decided De- follows, to wit: two fifths of the four plan-
cember 19, 1898.
tations, Albion, Wilton, Westland, and Mor-
gana, are directed and decreed to be reserved
for the benefit of the heirs of Julia Morgan,

one

IN ERROR to the Supreme Court of Louis