Busch v. Nester
| Citation | 28 N.W. 911,62 Mich. 381 |
| Court | Michigan Supreme Court |
| Decision Date | 08 July 1886 |
| Parties | BUSCH v. NESTER. |
Error to Marquette.
F.O. Clark, for plaintiff.
W.P Healy and Ball & Hanscom, for defendant and appellant.
In this case plaintiff, claiming to hold under certain tax sales, cut logs from several parcels of land on Huron river, in Baraga county, in the fall and winter of 1884-85, and in the summer of 1885 these logs were put in the Huron river, and brought down to Marquette in rafts which also contained logs belonging to defendant, Nester, and by tugs employed for both. After reaching Marquette, Nester held on to all of the logs which this action was brought to replevy. A considerable number were afterwards turned over to plaintiff, leaving only such as were disputed. The parties are at variance as to whether Nester had acquiesced previously in plaintiff's claims.
The controversy on the trial chiefly turned on the right of Nester and his associates to show that Nester owned the original title to most of the lands from which the logs were taken, and an undivided interest in one parcel. The court below ordered a verdict for plaintiff. The judge remarked, inadvertently, that, by arrangement plaintiff was to have possession against defendant. Nester denies that any such agreement existed, and says it was understood he proposed to take possession of his own logs and should assert his rights. It was assumed on the argument, and was no doubt the fact, that the decision was based on plaintiff's possession of the land, the nature of which was not left to the jury, but decided by the court to have been adverse and bona fide. The court held that no personal action would lie to determine the title to lands as a basis of fixing the title of the logs.
We have been somewhat embarrassed by the fact that counsel on both sides assumed, for the purposes of the argument, that this doctrine was correct, if applicable to the facts of the case. But defendant's counsel claimed that it was not so applicable. We cannot safely pass upon a question not argued, but we do not wish to be precluded from a future examination of that doctrine as applied to lands valued chiefly or only for timber; and some of the points which were dealt with on both sides we may refer to with propriety.
The argument that no case can be tried out of the county, when the title to lands comes in question, cannot be supported when stated so broadly. There may be many cases where such a question comes up for decision, upon covenants or contracts, in suits not brought directly to try title or get possession. Suits upon covenants of warranty or seizin directly involve the state of the title, and are certainly mere personal actions. In some states a judgment in trespass, which is usually a local action, is held to be evidence of the title. That doctrine, however, has been rejected in this state. Keyser v. Sutherland, 26 N.W. 865. It is difficult to see how a judgment in replevin can settle the title to land. If the doctrine contended for is true, it must rest on some other basis.
It has not been considered that, as between the original wrongdoer and the true owner of land, the title to what is severed from the freehold is changed by the severence whatever may be the case as to strangers. Mooers v. Wait, 3 Wend. 104; Farrant v. Thompson, 5 Barn. & Adol. 826; Morgan v. Varick, 8 Wend. 587. In the latter case reference is had to the old doctrine that when one who is disseized re-enters, he shall have remedy for all the waste done during his ouster; and it is no more than common sense to hold that title cannot,...
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