## Facts

- F. H. Busbee, trustee, received an earlier state grant to a tract of land in Swain County, North Carolina, and recorded it before any later conflicting grant.
- Iowa McCoy later obtained a state grant overlapping part of Busbee’s tract; she had constructive notice of Busbee’s recorded grant and was not in possession of the land.
- McCoy sold Russell timber standing on the overlapping area; Russell cut the timber into logs and placed them on the bank of the Nantahala River to be floated to a buyer.
- Hill and Nelson, without consent and without any shown claim of right derived from Busbee or any other titleholder, took the logs and sold them for $686.84 to a lumber company that later proved insolvent.
- On an agreed statement of facts, the parties treated Busbee as the legal owner of the land under the prior recorded grant.

## Issues

1. Whether a plaintiff may maintain an action in the nature of trover for converted logs without proving title and possession (or a present right to possession).
2. Whether a plaintiff’s prior possession of chattels suffices against a mere wrongdoer when a third party is identified as the true owner with superior title.
3. Whether a seller lacking possession and holding only a subsequent overlapping grant can convey title to timber severed from land held under a prior recorded grant.

## Decision

- The Supreme Court of North Carolina affirmed judgment for the defendants.
- The court held Russell could not maintain trover because he lacked title to the logs and lacked a right of possession superior to the known true owner (Busbee).
- The court treated any presumption of title from Russell’s possession as rebutted by the stipulated proof that legal title to the land (and thus the timber) was in Busbee.
- Douglas, J., dissented.

## Legal Principles

- To recover in trover (or an action in the nature of trover), the plaintiff must prove title and possession, or a present right to possession.
- Prior possession may create a prima facie claim against a wrongdoer, but it does not support recovery once evidence shows title is in another identified person.
- A conveyance of timber rights from a grant holder who is not in possession and whose grant is subordinate to a prior recorded grant does not pass title effective against the true owner’s superior rights.
- Courts may deny trover recovery where recognizing the plaintiff’s claim would expose the converter to duplicative liability to both the possessor and the true owner.

## Conclusion

Because the agreed facts established a known third party as the true owner under a prior recorded grant and the timber seller was not in possession, Russell had no title or superior right to possession of the logs and could not recover in trover against the converters.


Russell v. Hill, 125 N.C. 470, 34 S.E. 640 (1899)