Stephen Johnson Field

“ It would have been entirely proper for the defendant to have amended his answer by striking out that portion embracing this defense. But he did not take that course, and the plaintiff relied upon its allegations as evidence. If the pleadings are construed as in the state court, there was an admission by them of an important fact in the case; namely, of title by a deed from the former owner of the lands. In the state courts, where an answer sets up several distinct defenses, a denial in one is held to be qualified by an admission in another. ”

“ Standing timber is a part of the realty, and goes with its title or right of possession. When severed from the soil, its character as realty is changed; it has become personalty, but the title to it continues as before. The right, therefore, to recover for what is severed from the freehold depends upon the right to the freehold itself. If the plaintiff is in possession, he is presumed to be lawfully so, having the right of possession, and therefore entitled to what is severed. If he is out of possession, he must show a title to the land, or right to its possession. ”

“ The case was then removed, on application of the defendant, from the state court to the circuit court of the United States. In that court the equitable defense could not be made available. In the court of the United States, to legal actions legal defenses only can be interposed. If the defendant have equitable grounds for relief against the plaintiff, he must seek to enforce them by a separate suit in equity. ”