Warner, Richardson & Lawrence and H. W. Childs, for appellant. If the permit was issued without authority, it is no defense. The evidence offered by plaintiff, and excluded, tended to show that the steps necessary for the issuance of a valid permit were not taken. The state is not bound by a permit so issued. Clark v. United States, 95 U. S. 539; Attorney General v. Smith, 31 Mich. 359; Clark v. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423; People v. Center, 66 Cal. 551, 5 Pac. 263, and 6 Pac. 481; Delafield v. State of Illinois, 2 Hill, 159; Delafield v. State of Illinois, 26 Wend. 192; State of Illinois v. Delafield, 8 Paige, 527; State of Wisconsin v. Torinus, 24 Minn. 332; The Floyd Acceptances, 7 Wall. 666; Whiteside v. United States, 93 U. S. 247; Mitchell v. Commissioners of St. Louis Co., 24 Minn. 459; Tamm v. Lavalle, 92 Ill. 263. See, also, Parsel v. Barnes, 25 Ark. 261; Curtis v. United States, 2 Ct. of Cl. 144; State v. Bevers, 86 N. C. 588; McCaslin v. State, 99 Ind. 428; State v. Bank of State, 45 Mo. 528; Dement v. Rokker, 126 Ill. 174, 19 N. E. 33. The permit was at most an executory contract of sale. But even if the permit were as safe from attack as a patent, it can be attacked. Where a public officer has no authority to make a sale, but attempts to do so and issues a patent, the instrument may be attacked even collaterally. Polk's Lessee v. Wendal, 9 Cranch, 87; Sherman v. Buick, 93 U. S. 209. The land commissioner had no jurisdiction to dispose of the timber in question. Reynolds v. Iron Silver Min. Co., 116 U. S. 687, 6 Sup. Ct. 601; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228; Simmons v. Wagner, 101 U. S. 260. The purchaser cannot rely on the recitals to establish the validity of an instrument, where the officers who issue it have no authority to determine whether or not the condition referred to in the recitals has occurred. Dixon County v. Field, 111 U. S. 83, 4 Sup. Ct. 315; Daviess County v. Dickinson, 117 U. S. 657, 6 Sup. Ct. 897; Citizens' Bank v. City of Terrell, 78 Tex. 450, 14 S. W. 1003.

J. B. Atwater and A. B. Jackson, for respondent.

If the same rule applies to the permit as to a patent, it cannot be assailed collaterally upon any of the grounds urged. State v. Bachelder, 5 Minn. 178 (223); McKinney v. Bode, 33 Minn. 450, 23 N. W. 851; Winona & St. P. Land Co. v. Ebilcisor, 52 Minn. 312, 54 N. W. 91; Smelting Co. v. Kemp, 104 U. S. 636; Doolan v. Carr, 125

U. S. 618, 8 Sup. Ct. 1228; Sioux City Land Co. v. Griffey, 143 U. S. 32, 12 Sup. Ct. 362; Lakin v. Dolley, 53 Fed. 333; State v. Morgan, 52 Ark. 150, 12 S. W. 243; State v. Dennis, 39 Kan. 509, 18 Pac. 723. The permit was similar to a patent as regards its im munity from collateral attack. The principle applies to any formal instrument executed by the state and transferring an interest in real estate. 19 Am. & Eng. Enc. Law, 355; Minnesota L. & I. Co. v. Davis, 40 Minn. 455, 42 N. W. 299; Winona & St. P. Land Co. v. Ebilcisor, supra; McKinney v. Bode, supra; Blakeslee Mfg. Co. v. Blakeslee's Sons I. Works, 129 N. Y. 155, 29 N. E. 2. A conveyance of standing timber is a conveyance of an interest in real estate. Pine County v. Tozer, 56 Minn. 288, 57 N. W. 796; Herrick v. Newell, 49 Minn. 198, 51 N. W. 819; 13 Am. & Eng. Enc. Law, 1020; Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90. The state has the same right as a private individual, and no more, to question its conveyance collaterally. United States v. Stone, 2 Wall. 525. The state is subject to the same rules which apply to othe: suitors. United States v. State Bank, 96 U. S. 30. See State v. Dennis, supra; United States v. Scott, 38 Fed. 393; Com. v. Philadelphia Turnpike Co., 153 Pa. St. 47, 25 Atl. 1105; United States v. Scholl, 45 Fed. 758; United States v. White, 17 Fed. 561; United States v. Minor, 114 U. S. 233, 5 Sup. Ct. 836; People v. Morris, 77 Cal. 204, 19 Pac. 378; State v. Morgan, supra; Holland v. Ross, 19 Can. S. C. R. 566. The burden is on the government in an action to cancel a patent, and the proof must be full and conclusive. United States v. Iron Silver Min. Co., 128 U. S. 673, 9 Sup. Ct. 195; Maxwell Land Grant Case, 121 U. S. 325, 380, 7 Sup. Ct. 1015; People v. Swift, 96 Cal. 165, 31 Pac. 16. See Colorado Coal Co. v. United States, 123 U. S. 307, 8 Sup. Ct. 131; United States v. Marshall S. M. Co., 129 U. S. 579, 9 Sup. Ct. 343; United States v. King, 9 Mont. 75, 22 Pac. 498. Even if the permit has not the same legal effect as a patent, still, considering it as a contract, the state cannot dispute as against innocent purchasers the fact set out in its recitals. Citizens' S. & L. Ass'n v. Perry County, 156 U. S. 692, 15 Sup. Ct. 547; Northern Bank v. Porter Township, 110 U. S. 608, 4 Sup. Ct. 254; Cairo v. Zane, 149 U. S. 122, 13 Sup. Ct. 803; Knox County Com'rs v. Aspinwall, 21 How. 539; Grand Chute v. Winegar, 15 Wall. 355.

The evidence as to defendant's good faith in cutting the timber

was admissible for the purpose of reducing plaintiff's money recovery to the stumpage value. Where defendant is a willful trespasser, the measure of damages is the full value of the property at the time and place of demand; where he is an unintentional trespasser, the measure is its value when taken; where he is an innocent purchaser from a willful trespasser, the measure is its value at the time of purchase. King v. Merriman, 38 Minn. 47, 35 N. W. 570; Whitney v. Huntington, 37 Minn. 197, 33 N. W. 561; Nesbitt v. St. Paul Lumber Co., 21 Minn. 491; Hoxsie v. Empire Lumber Co., 41 Minn. 548, 43 N. W. 476. See, also, Viliski v. City of Minneapolis, 40 Minn. 304, 41 N. W. 1050. The same rule should be applied in replevin. The first step in avoiding the evils that would follow from an inflexible carrying out of the common law principles of replevin was in denying to a plaintiff the right to retake an article the condition of which had been materially altered by the work and labor of a defendant acting in good faith. 2 Kent, Commentaries, 363; Wetherbee v. Green, 22 Mich. 311. In assessing plaintiff's money recovery in replevin, the court will be guided, as in trespass or trover, by the principle of awarding just compensation for plaintiff's loss and no more. If the added value of the logs was given to them by defendant acting in good faith, plaintiff's money recovery can be only for the stumpage value. La Crosse & M. S. Packet Co. v. Robertson, 13 Minn. 269 (291); Wheaton v. Thompson, 20 Minn. 175 (201); Becker v. Dunham, 27 Minn. 32, 6 N. W. 406; Jellett v. St. Paul, M. & M. R. Co., 30 Minn. 265, 15 N. W. 237; Deal v. Osborne, 42 Minn. 102, 43 N. W. S35; Cobbey, Replevin, § 910; Wells, Replevin, § 617; 2 Sedgwick, Damages, § 534; 20 Am. & Eng. Enc. Law, 1128; 3 Sutherland, Damages, 1154; McLean Coal Co. v. Long, 81 Ill. 359; Whitfield v. Whitfield, 40 Miss. 352; Herdic v. Young, 55 Pa. St. 176; Craig v. Kline, 65 Pa. St. 399; Phillips v. Stroup (Pa. Sup. Ct., Mch. 1889) 17 Atl. 220; Hungerford v. Redford, 29 Wis. 345; Single v. Schneider, 24 Wis. 299; Single v. Schneider, 30 Wis. 570; Peters B. & L. Co. v. Lesh, 119 Ind. 98, 20 N. E. 291; Buckley v. Buckley, 12 Nev. 423; Pennsylvania Co. v. Philadelphia, G. & N. R. Co. (Pa. Sup. Ct., Feb. 1893) 25 Atl. 1043. The court has power to prescribe such form of judgment as will protect the rights of both parties. Gentry v. Templeton, 47 Mo. App. 55; Peck v. Bonebright, 75 Iowa, 98, 39 N. W. 213; Caldwell v. Bruggerman, 4 Minn. 190

(270); Robertson v. Davidson, 14 Minn. 422 (544); Babb v. Aldrich, 45 Kan. 218, 25 Pac. 558; Brown v. Johnson, 45 Cal. 76; Boley v. Griswold, 20 Wall. 486; Burton v. Platter, 10 U. S. App. 657, 4 C. C. A. 95, and 53 Fed. 901; Hanscom v. Burmood, 35 Neb. 504, 53 N. W. 371. A party may waive the provision for a money judgment for the value, and take simply a judgment for the return with damages for the retention. Adamson v. Sundby, 51 Minn. 460, 53 N. W. 761; Stevens v. McMillin, 37 Minn. 509, 35 N. W. 372; Thompson v. Scheid, 39 Minn. 102, 38 N. W. 801; Morrison v. Austin, 14 Wis. 601; Smith v. Coolbaugh, 19 Wis. 106. If defendant has sold the property or placed it out of his power to return it, a judgment for the value of the property only is not erroneous. Clouston v. Gray, 48 Kan. 31, 28 Pac. 983; Fromlet v. Poor, 3 Ind. App. 425, 29 N. E. 1081; Brady v. Cook, 68 Miss. 636, 10 South. 56; Seligman v. Armando, 94 Cal. 314, 29 Pac. 710; McGraw v. Franklin, 2 Wash. St. 17, 25 Pac. 911; Johnson v. Frazer, 2 Idaho, 371, 18 Pac. 48; Goodman v. Kennedy, 10 Neb. 270, 4 N. W. 987.

START, C. J. Action of claim and delivery for the recovery of certain pine logs cut from state lands, viz. section 36, township 19, range 44, which were in the possession of the defendant, at Minneapolis, at the commencement of the action.

The complaint alleges that the plaintiff is the owner of the logs, and entitled to the immediate possession of them; that the defendant wrongfully detains them; and that they are of the value of $25,000. The answer admits and alleges that the logs were cut by it from section 36 under and by virtue of a permit so to do, regular on its face, made, issued, and delivered to one Matthews, upon a sale to him of the pine timber on such section by the commissioner of the state land office, and duly assigned to it by Matthews, with the approval of such commissioner, who extended the time limited in the permit in which such timber might be cut and removed; that the defendant, in strict compliance with the terms of such permit, in good faith, without any notice or knowledge of any fact invalidating such permit, and relying thereon, cut and removed such logs. from such section, and transported them to Minneapolis, where they were of the value of $7 per 1,000 feet, but, without the labor and expenditure of the defendant in so cutting and transporting them,

they were worth only the stumpage value thereof, or only $2 per 1,000 feet; and, further, that it has always been ready to pay, and has tendered to the plaintiff, the full contract price, as stipulated in the permit, for all of the logs so by it cut. The reply alleges facts tending to show that the permit was and is void for the reason that the commissioner had no authority to sell such pine, and that the stumpage value of the same was $4.25 per 1,000.

Upon the trial the plaintiff offered evidence tending to establish a prima facie case, and rested. Thereupon the defendant introduced the permit, assignment, and extension thereof. It also of fered evidence tending to establish all the allegations of its answer as to its good faith, and reliance upon the permit in cutting the timber, and, further, that it expended the sum of $15,000 in so cutting and transporting the logs; that it obtained a redelivery of the logs to itself by giving the bond required by law; and that the logs, before the commencement of the trial of the action, had been sawed into lumber, as the most practical way of preserving them, and the lumber sold, or destroyed by fire. The court rejected this evidence, on the objection of the plaintiff, and defendant excepted. The plaintiff, in rebuttal, offered evidence tending to prove the allegations of the reply as to the invalidity of the permit, and particularly that such pine was not subject to sale, and that the sale thereof was prohibited by law, because it had never been appraised as required by law, and that the board or tribunal appointed by law for such purpose had never determined that a sale of such timber was necessary in order to protect the state from loss. The court, upon the objection of the defendant, rejected this evidence, and instructed the jury to return a verdict for the defendant, to which ruling and instruction the plaintiff excepted, and from an or der denying its motion for a new trial it prosecutes this appeal.

This record presents two questions for our decision: (1) Do the facts which the plaintiff offered to prove render the permit absolutely void? (2) If so, can the permit be assailed collaterally by proof of such facts in this action?

1. The first question is answered in the affirmative, for the reason that, assuming the existence of the facts offered to be proved, the commissioner had no jurisdiction to sell the pine in question, or to issue the permit.