delivered the opinion oe the court.

In this action is involved the recovery of the possession of forty thousand pieces of timber called headings., made out of timber standing upon the ground alleged to belong to the plaintiff. The timber was taken from the defendant under an order of delivery and delivered to the plaintiff. The right of property[*390] was asserted by the defendant under a purchase made from one William Reid and his son, and on the trial the verdict being for the defendant, he was allowed the value of. the headings, six hundred dollars, and a judgment rendered. This judgment is not only informal, but erroneous, for the reason that the Civil Code, section 388 (Carroll’s), requires the judgment to be in the alternative, with the right on the part of the plaintiff to return the property or pay its value. It is plain that John W. Reid, the son of William Reid, was either a trespasser when he cut this timber, or the right to its use and appropriation, as well as the land itself, belonged to the father.

That the defendant was innocent of the want of title in John W. Reid, considering the latter to have been a trespasser, is plain from the facts; still, Ms innocence of the wrong can not vest him with title as against the lawful owner, who has been deprived of his title by the trespasser. There is testimony in the case showing that the plaintiff, John W. Reid, and the witness, William Reid, are brothers, and that this land from which the timber was cut descended to them and to their other brothers and sisters from their father. William Reid sold his undivided interest in this land to his brother John, and those interested with Johp. being the absolute owners, as they claim, brought this action. A conveyance was made by William to John, and recorded in the county where the land lies; but William testified that he never surrendered the. possession of the land, and only made the deed in secret trust to his brother to save his interest from being sold to pay his debts.[*391] John W., who sold the headings to the defendant, says that .his father was; in the possession of his interest at the time he ent and sold the timber; and if this secret trust is established, as stated by William, the plaintiff can not recover, and instruction No. 1, not embodied in the bill of evidence, should have been, in substance, given. This court would not notice the instruction if a reversal did not necessarily follow, as it is not properly in the record. The mere possession by William or his son John W. would not authorize them to cut and dispose of this timber; but if the title was held in secret trust by John W. for his brother’s use, and the latter was in its use and possession, the sale to defendant by the son of William, under the authority of the latter, passed the title. It is true that as between the vendor and the vendee the title passed, whether fraudulent or tona fide, but where innocent parties appear who are not connected with the fraud, they may show the real facts connected with the transfer, and thus establish the authority of the vendor in possession to cut and dispose of the timber as his own.

It was not necessary for the plaintiff to identify the headings, under the facts of this case, to enable him to maintain the action. They had been mingled with other headings of a like description and value; so if there had been forty thousand of the headings in the one pile, and ten thousand of them belonged to the defendant by purchase from the ^real owner, and thirty thousand from one who was a trespasser by taking them from the plaintiff, the latter «luid maintain detinue or replevin for the thirty thousand ; and, obtaining[*392] possession under an order of delivery, would leave the defendant with his ten thousand, of which he is the' rightful owner.

There was no perceptible difference in the headings, as to size, kind, shape and value, and when you separate the thirty thousand from the forty thousand, each party has what he is entitled to. Where the articles-are different in quality, size or shape, it is not practicable to make the separation ; but where it is practicable, the action for the recovery of the specified property may be maintained. Kent says, where corn or flour of equal value is mixed, the party injured may take his quantity. (2 Kent, 365.) Cooley says, where the grain mixed is all of the same kind, a like rule applies. (Co®ley on Torts, page 53.) So the appellee may have been innocent of any wrong when he mingled the goods-with his own. Under the proof, the action could be maintained; and the only question arising on the facts, as they now appear, is, did John W. have the right, under the authority of his father, to sell the timber; and was the title passed to the plaintiff, John W., that he might hold it in secret trust for his brother, and without any other consideration \

Judgment reversed, and remanded for a, new trial consistent with this opinion.