McCLELLAN, J.
This case was defended below, and the rulings of the trial court are assigned as erroneous here, mainly upon the theory that a landlord can not’ maintain trover "for timber wrongfully cut off the demised premises, sawn into fire-wood and sold by the tenant, until after the lease has been forfeited, or the tenancy has otherwise been terminated, and the landlord [122] in consequence lias a right to the immediate possession of the land. This contention is sought to be rested on the doctrines, perfectly well established in themselves, that trespass for injuries done to land by a tenant can not be maintained by the landlord while the tenancy continues, and that trover can not be maintained by the owner of land for timber, fixtures, gravel and the like, severed from the freehold and converted, against one who is in the adverse possession of the land. But neither of these principles has any bearing upon or application to the question raised in this case. Trespass will not lie against a tenant pending the term, because the wrong which is the gist of the action is an offense against the actual possession and right of possession, and these are in the tenant; and trover will not lie at the suit of the owner of land against one in adverse possession, for the conversion of things severed from the freehold, because in such case a trial of the title to the land, from which the severance has been made, would be necessary, and title to realty is beyond the issues triable in this form of action. But there is no question in this case, either as to the possession and right of possession of the land, or as to the title to the land : the recovery sought does not depend upon inquiry into these matters. The tenancy of the defendant entitled him to the possession, of course, and it is not the object of this suit, and can not be its effect, to disturb that right or its enjoyment. The tenancy of the defendant is also an unequivocal admission of the plaintiff’s title to the land: the defendant, so long as he continues in possession under the lease, and his sole right to the possession is referable to the lease, can not dispute the plaintiff’s title — can not set up any claim to title in himself against the plaintiff— can not hold adversely to the plaintiff. His possession is that of his landlord. He has contracted for the landlord’s right of possession for the term of his lease. His possession of the land entitles him to the possession, of course, of all that is attached to it so as to constitute a part of the freehold — as trees — so long as they remain so attached and continue to be a part of the freehold ; but he has no title to trees, and can assert no adverse claim to them against his landlord. The title to them, as to the land, remains in the landlord. When they are severed from the freehold, they cease to be a part of the [123] thing leased by the tenant: they are no longer a part of the realty, but at once become personal chattels, the right to the immediate possession of which is in the landlord, because the title is in him and the right of possession of personalty is referred to the title. This, with conversion by the defendant, is all that is necessary to the maintenance of trover — the title and right to immediate possession in plaintiff to the personalty converted. To show title to the personalty in such case, involves no inquiry as to the title of the land from which the severance has been made, and no inquiry as to the right of possession of the land. The plaintiff is not required to say he had title to the land, and the defendant is not allowed to say that plaintiff had not title ; that issue can not be made : the relation of landlord and tenant entirely eliminates it. Similarly, defendant’s right of possession of the land is not involved ; but that right of possession is confined to the land itself : it does not pertain to things which have ceased to be land, or appurtenant to land, through unauthorized and wrongful severance.. The plaintiff, having title to the thing severed and the right to the immediate possession of it, may, of course, maintain trover where there has been a conversion of the thing by the defendant. These views, which lead to and result in the concrete proposition, that the action of trover will lie at the suit of a landlord against his tenant, pending the tenancy, for wood into which trees wrongfully severed from the demised premises by the tenant have been converted by him, are abundantly supported by the authorities. — 2 Brick. Dig., 484, §§ 1, et seq; 3 Brick. Dig., 779, §§ 1, et seq.; Street v. Nelson, 80 Ala. 230; Mather v. Trinity Church, 3 Ser. & Rawle, 509; s. c., 8 Am. Dec. 663, 668-9; Harlan v. Harlan, 15 Pa. St. 507, 513; Anderson v. Hapler, 34 Ill. 436; s. c., 85 Am. Dec. 318; Truss v. Old, 6 Randolph, 556; s. c., 18 Am. Dec. 748, 751; Moores v. Wait, 3 Wend. 104; s. c., 20 Am. Dec. 667; Farrant v. Thompson, 5 Barn. & Ald. 826; 2 Taylor, Land., & Ten., § 74; Congregational Society v. Fleming, 11 Iowa, 533; s. c., 79 Am. Dec. 511. And it is upon these considerations that the landlord, the owner of the land, may maintain an action on the case for waste inj urious to the inheritance, or detinue or replevin for fixtures, trees, ores and the like, or debt for the statutory penalty for felling trees, [124] against Ms tenant during the term, and without recovery of possession of the land. They are all actions which do not rest upon possession, or right to immediate possession of the land, and, being between landlord and tenant, they involve no inquiry as to title; the fact of the relation being itself determinative of that question.— Rogers v. Brooks, 99 Ala. 31; 11 So. Rep. 753.
The cases of Cooper v. Watson, 73 Ala. 252, and Beatty v. Brown, 76 Ala. 267, are clearly distinguishable from this one in that the defendants in those cases held adversely to the plaintiffs — a fact which is, as we have seen, of controlling importance — and the recoveries sought involved trials of the conflicting claims of title, which could not be adjudicated in these transitory actions. The case of Little v. Allison, 93 Ala. 150, 9 So. Rep. 388, did not involve the relation of landlord and tenant, and, perhaps,. what is there said should be limited by a consideration of the fact, which does not appear as prominently in the report of the case and in the opinion as it should, that the wrong-doer was a mere naked trespasser, who set up no. claim to the title or possession of the land against the trustees — though not a tenant of the plaintiffs, he still was not in the adverse possession of the premises'.'
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McCLELLAN, J.
This case was defended below, and the rulings of the trial court are assigned as erroneous here, mainly upon the theory that a landlord can not’ maintain trover "for timber wrongfully cut off the demised premises, sawn into fire-wood and sold by the tenant, until after the lease has been forfeited, or the tenancy has otherwise been terminated, and the landlord [122] in consequence lias a right to the immediate possession of the land. This contention is sought to be rested on the doctrines, perfectly well established in themselves, that trespass for injuries done to land by a tenant can not be maintained by the landlord while the tenancy continues, and that trover can not be maintained by the owner of land for timber, fixtures, gravel and the like, severed from the freehold and converted, against one who is in the adverse possession of the land. But neither of these principles has any bearing upon or application to the question raised in this case. Trespass will not lie against a tenant pending the term, because the wrong which is the gist of the action is an offense against the actual possession and right of possession, and these are in the tenant; and trover will not lie at the suit of the owner of land against one in adverse possession, for the conversion of things severed from the freehold, because in such case a trial of the title to the land, from which the severance has been made, would be necessary, and title to realty is beyond the issues triable in this form of action. But there is no question in this case, either as to the possession and right of possession of the land, or as to the title to the land : the recovery sought does not depend upon inquiry into these matters. The tenancy of the defendant entitled him to the possession, of course, and it is not the object of this suit, and can not be its effect, to disturb that right or its enjoyment. The tenancy of the defendant is also an unequivocal admission of the plaintiff’s title to the land: the defendant, so long as he continues in possession under the lease, and his sole right to the possession is referable to the lease, can not dispute the plaintiff’s title — can not set up any claim to title in himself against the plaintiff— can not hold adversely to the plaintiff. His possession is that of his landlord. He has contracted for the landlord’s right of possession for the term of his lease. His possession of the land entitles him to the possession, of course, of all that is attached to it so as to constitute a part of the freehold — as trees — so long as they remain so attached and continue to be a part of the freehold ; but he has no title to trees, and can assert no adverse claim to them against his landlord. The title to them, as to the land, remains in the landlord. When they are severed from the freehold, they cease to be a part of the [123] thing leased by the tenant: they are no longer a part of the realty, but at once become personal chattels, the right to the immediate possession of which is in the landlord, because the title is in him and the right of possession of personalty is referred to the title. This, with conversion by the defendant, is all that is necessary to the maintenance of trover — the title and right to immediate possession in plaintiff to the personalty converted. To show title to the personalty in such case, involves no inquiry as to the title of the land from which the severance has been made, and no inquiry as to the right of possession of the land. The plaintiff is not required to say he had title to the land, and the defendant is not allowed to say that plaintiff had not title ; that issue can not be made : the relation of landlord and tenant entirely eliminates it. Similarly, defendant’s right of possession of the land is not involved ; but that right of possession is confined to the land itself : it does not pertain to things which have ceased to be land, or appurtenant to land, through unauthorized and wrongful severance.. The plaintiff, having title to the thing severed and the right to the immediate possession of it, may, of course, maintain trover where there has been a conversion of the thing by the defendant. These views, which lead to and result in the concrete proposition, that the action of trover will lie at the suit of a landlord against his tenant, pending the tenancy, for wood into which trees wrongfully severed from the demised premises by the tenant have been converted by him, are abundantly supported by the authorities. — 2 Brick. Dig., 484, §§ 1, et seq; 3 Brick. Dig., 779, §§ 1, et seq.; Street v. Nelson, 80 Ala. 230; Mather v. Trinity Church, 3 Ser. & Rawle, 509; s. c., 8 Am. Dec. 663, 668-9; Harlan v. Harlan, 15 Pa. St. 507, 513; Anderson v. Hapler, 34 Ill. 436; s. c., 85 Am. Dec. 318; Truss v. Old, 6 Randolph, 556; s. c., 18 Am. Dec. 748, 751; Moores v. Wait, 3 Wend. 104; s. c., 20 Am. Dec. 667; Farrant v. Thompson, 5 Barn. & Ald. 826; 2 Taylor, Land., & Ten., § 74; Congregational Society v. Fleming, 11 Iowa, 533; s. c., 79 Am. Dec. 511. And it is upon these considerations that the landlord, the owner of the land, may maintain an action on the case for waste inj urious to the inheritance, or detinue or replevin for fixtures, trees, ores and the like, or debt for the statutory penalty for felling trees, [124] against Ms tenant during the term, and without recovery of possession of the land. They are all actions which do not rest upon possession, or right to immediate possession of the land, and, being between landlord and tenant, they involve no inquiry as to title; the fact of the relation being itself determinative of that question.— Rogers v. Brooks, 99 Ala. 31; 11 So. Rep. 753.
The cases of Cooper v. Watson, 73 Ala. 252, and Beatty v. Brown, 76 Ala. 267, are clearly distinguishable from this one in that the defendants in those cases held adversely to the plaintiffs — a fact which is, as we have seen, of controlling importance — and the recoveries sought involved trials of the conflicting claims of title, which could not be adjudicated in these transitory actions. The case of Little v. Allison, 93 Ala. 150, 9 So. Rep. 388, did not involve the relation of landlord and tenant, and, perhaps,. what is there said should be limited by a consideration of the fact, which does not appear as prominently in the report of the case and in the opinion as it should, that the wrong-doer was a mere naked trespasser, who set up no. claim to the title or possession of the land against the trustees — though not a tenant of the plaintiffs, he still was not in the adverse possession of the premises'.'
The facts that plaintiff claimed a forfeiture of the lease existing at the time of the wrongful severance of the timber by the defendant, or of alease subsequently made of the premises covering succeeding years/ because of such severance, or upon any other ground ; that defendant denied the forfeiture, and put plaintiff to her action of ejectment to recover the land before the last lease had expired, which action was pending and being defended by the tenant when this cause was tried, or when it was instituted, were attempted to be availed of by the dedendant on the trial below of this case, as showing that defendant held the land adversely to plaintiff. These facts had no such tendency. They showed, indeed, that the defendant claimed the right to continue in possession, but they also showed that he based this right on his lease from the plaintiff — that he asserted no possession or right of possession except as plaintiff's tenant, and in full recogmtion of plaintiff's tit1 e. If either party was injured by the exclusion of this evidence, or by the refusal of the court to allow the defendant to file in this cause a [125] plea which he‘had interposed in the ejectment suit, and in which he asserted Ms right to possession for the term of the last lease entered into between the parties under that lease and as plaintiff’s tenant, it was the plaintiff. Certainly the defendant can have no ground of complaint based on the exclusion of evidence and judicial admissions of his going to show that he did not and had never claimed adversely to the plaintiff.
Of course, it was competent for plaintiff to introduce the lease which was current at the time this suit was brought, as showing that defendant’s possession was under and not adverse to her title ; and we can conceive of no ground for the exclusion of any part of that instrument on any idea that some of its provisions might possibly be looked to by the jury to determine what were the stipulations of a previous lease in a certain particular. Moreover, the provision which was singled out by a special motion to exclude tended to contradict the oral testimony of the defendant as to what was said in certain conversations between him and the plaintiff and her husband, acting, it is insisted by defendant, as her agent; and for this reason alone the appellant can take nothing on account of the ruling in question. What we have said covers and disposes adversely to appellant of all the rulings of the court in respect of the pleadings, on the admission of testimony, and upon charges requested and given or refused, except rulings relating to the testimony, by deposition, of the plaintiff herself, and two or three charges to be presently considered.
It is to be observed with reference to the pleadings, that so far as this opinion bears upon questions intended to be raised in that connection, it is merely incidental to the disposition of the same questions arising on the evidence and instructions to the jury; for the record of the trial court does not show that any pleas were filed, or that any demurrers to pleas were interposed, or that any ruling was made as to the sufficiency of pleas, or indeed any thing but the complaint, certain demurrers to the complaint, which do not appear from the record to have been ruled upon, and a final judgment on verdict for the plaintiff: The bill of exceptions, which is no part of the record below, recites certain pleas, demurrers and judgments thereon, but, as has been many times decided here, such judgments can not be presented for the considera[126] tion and revision of this court in and by a bill of exceptions .
The refusal of the court to exclude the deposition of . Mrs. Rogers may be rested on the ground, among others, perhaps, that the motion to that end went to the whole deposition, and was not made before the trial was entered upon, the ground of the objection not appearing to have transpired or become known to defendant only after commencement of the trial. Code, § 2810 ; Moody v. A. G. S. R. R. Co., 99 Ala. 553.
If that part'of the testimony of Mrs. Rogers-which was objected to because not responsive to the cross-interrogatories under which it was given, was in fact not responsive, the defendant was not injured by its admission, since it was competent evidence in the cause, and but the repetition of facts to which the witness had deposed in response to interrogatories in chief.
The measure of damages in this case was the value of the wood at the time of the conversion of the trees into cord-wood, with interest to the time of trial, as declared by the court in its instructions to the jury. — 2 Brick. Dig., 488, §§ 67, et seq.; 3 Brick. Dig., 780, §§ 29, et seq.
The court correctly charged that the burden of showing that plaintiff had released this cause of action to defendant was upon the latter. — 3. Brick. Dig., 433, § 388.
Plaintiff’s acceptance of rent from the defendant, for a period subsequent to the severance and conversion of the trees, and the execution by her of a lease for a subsequent time, may have amounted to a waiver of the forfeiture of the lease current at the time thereof ; but these facts do not operate a release of defendant’s liability for the value of cord-wood made from the trees wrongfully severed by the defendant. The cause of action laid in this case is not dependent upon the waiver vel non of any forfeiture of the lease. Charges 8 and 9 requested for defendant were, therefore, properly refused.
Charge 12 of defendant’s series was, to say the least, invasive of the province of the jury. If they had a right to measure the damages by reference to the facts hypothesized in that charge, it was a matter within their discretion to do so or not, and the court properly refused to require them to do so.
We will not extend this opinion by discussing the ap[127] plication for a new trial. It was obviously without merit, and the court committed no error in overruling it.
The judgment of the circuit court is affirmed.