Busch v. Nester

• Decision Date: 08 June 1888
• Citation: 70 Mich. 525,38 N.W. 458
• Court: Michigan Supreme Court
• Parties: BUSCH v. NESTER ET AL.

38 N.W. 458

70 Mich. 525

BUSCH v. NESTER ET AL.

Supreme Court of Michigan

June 8, 1888

Error to circuit court, Marquette county; C. B. GRANT, Judge.

Replevin for logs, brought by William C. Busch against Timothy Nester and others The stipulation referred to in the opinion is as follows: "It is hereby stipulated that, without prejudice to the injunction heretofore issued in this cause and the order therefor now in force, George L. Burtis may take from the logs mentioned in said bill of complaint all the logs marked 'T. B.,' except 1,156,021 feet, and all the logs marked 'H.,' except 39,224 feet, to be according to his best judgment, a fair average of said logs as to quality, and deliver the same so taken to William C Busch, to be disposed of as he may choose. The possession of the remaining logs, and the rights of the parties with respect thereto, are to remain as they were before this stipulation was made, until the further order of the court and the claims of the parties are not to be affected hereby. This stipulation shall be without prejudice to the rights of either party to contest the title of the other, to any of the logs mentioned in said bill. It is further stipulated that an order of the court may be entered, in accordance with this stipulation. TIMOTHY NESTER, WILLIAM C. BUSCH." Judgment for plaintiff. Defendants appeal.

CHAMPLIN J.

On the 16th of September, 1885, the plaintiff brought an action of replevin against the defendants. The writ commanded the sheriff to take into custody "about twelve hundred thousand feet pine saw-logs, board measure, consisting mostly of white pine, and marked by the plaintiff, William C. Busch, with his mark, monogram B; also including in said amount of logs so marked by said Busch, and afterwards overmarked with 1111, by Timothy Nester, one of the defendants, the total amount so overmarked being about 57,730 feet, board measure; also all logs marked 'H,' amounting to about 220,563 feet, board measure; also all logs marked amounting to about 1,700 feet, board measure; said logs being intended to cover the logs got out by said William C. Busch in the winter of 1884 and 1885 on Huron river, or near thereto, and marked as above stated, and being intended to cover all the logs so marked being in the booms known as the 'George L. Burtis Boom,' and the boom at the Grace Furnace dock, near the mill of the said George L. Burtis, in the city of Marquette, Marquette county, Mich." No question is made upon the execution of the writ by the sheriff. On the trial it was shown that the logs were cut by the plaintiff upon lands in township 52 N., range 30 W. Of these lands, at the time the cutting began, the W. 1/2 of section 26, and the S. 1/2 of section 23, belonged to James B. Ross; the N.W. 1/4 of the N.W. 1/4 of section 35, and the N. 1/2 of N.W. 1/4 of section 23, belonged, one undivided quarter to Ursula R. Smith, and the remaining undivided three-quarters to Philo Allen; and the N.E. 1/4 of section 22 belonged to Thomas E. McEntee. December 1, 1884, the Ross lands were conveyed to D. H. Ball, and on December 30, 1884, Ross transferred to Ball all the logs that had been cut from the lands, and all right of action for cutting them. July 25, 1885, Ball sold and assigned to Timothy Nester all the logs cut from the Ross lands, and all rights of action for cutting the same, and all rights arising to Ball from the intermingling them with other logs. June 2, 1885, Ursula R. Smith sold to Nester and transferred to him all of her interest in the logs cut from the Smith and Allen lands. After this suit was begun, and on the first day of October, 1885, McEntee conveyed the N.E. 1/4 of section 22, with all the logs which had been cut therefrom, and all his rights of action therefor, to Timothy Nester. Before the commencement of this suit, the plaintiff had purchased outstanding tax titles upon the N. 1/2 of the N.W. 1/4 of section 23, and the N.W. 1/4 of the N.W. 1/4 of section 35; and there appears to be no question made that, so far as the undivided three-fourths of these parcels are concerned, he was the owner; and it was conceded by defendant that plaintiff had a bill of sale of Allen's interest in the logs. After the logs were put afloat in Huron river, they were run down to the mouth, and, in doing so, became intermingled with logs which Nester had put into the river during the same winter, and also with logs that plaintiff had put in from other lands. By mutual agreement between Busch and Nester the logs were rafted indiscriminately at the mouth of the Huron, and towed to Marquette, where the plaintiff, Busch, intended to assort his logs from Nester's; but after the logs arrived there Nester claimed title to the whole, and refused to let Busch assort out or take away any logs. Afterwards, by stipulation, the plaintiff took from the logs in the booms at Marquette all the logs marked "TB 9," (called in the writ "Monogram B,") except 1,156,021 feet, and all the logs marked "H," except 39,224 feet. He then brought this suit. His title and right to possession is based exclusively upon tax-titles; the tax deeds for the west half of section 26 bearing date not earlier than January 12, 1885. The suit has been twice tried. Upon the former trial the circuit judge directed a verdict for the plaintiff. He held that no personal action would lie to determine the title to lands as a basis of fixing title to the logs. The case will be found reported in Busch v. Nester, 28 N.W. 911. The court in the present case ruled that all of the tax titles relied on by plaintiff were invalid, and conveyed no titles to the land. Upon the question of the plaintiff's right to maintain the action he charged the jury as follows: "Now comes the question as to what were the rights of those parties; Mr. Busch having entered upon this land, or claiming to have entered, under his tax title, and cut off the timber in good faith. And as to this, gentlemen, I charge you that, if you find that Mr. Busch, after acquiring his tax deed, had advice of counsel relative to his rights thereunder; if he believed such deed conveyed a paramount title to the land, and the right of entry thereon, and the right of possession thereof; that in reliance upon such advice, and acting upon such belief, he assumed the actual adverse possession thereof in good faith, under color of title, intending permanently to occupy and hold the same,-then no inquiry can be made into the title of the timber cut and removed from such land after the actual assumption of such possession under the color of such title. As I said, the tax deed is made prima facie evidence of title; but that is not enough, as I read the decision of the supreme court. You must be able to find from the evidence in this case that the plaintiff, Busch, entered upon those lands, took adverse possession of them, such adverse possession as under the circumstances he could; that he did it in good faith, intending to hold the same; and if you find that he did so, then no inquiry can be made into the title to the timber that was cut therefrom. If he did not enter in good faith, and hold adverse possession, then he is not entitled to recover; for the adjudication of the court is that this tax title is void. The reasons for this rule are apparent. As a rule the title to real estate cannot be determined in a personal action, and when a party is in possession in good faith, relying upon his title as a valid one, and in adverse possession of the land, the law will not permit the original owner of the fee of the land to test the title to that property in a personal action until he has determined the title to the real estate in an action of ejectment."

This portion of the charge raises the principal question in the case; and that question is whether the facts disclosed by the record afford a case for the application of the principle of law laid down by the court. Says Mr. Justice FIELD, in Halleck v. Mixer, 16 Cal. 579 "The true rule is this: The plaintiff out of possession cannot sue for property severed from the freehold when the defendant is in possession of the premises from which the property was severed, holding them adversely, in good faith, under claim and color...