Clark v. Hall

• Decision Date: 28 October 1869
• Citation: 19 Mich. 356
• Court: Michigan Supreme Court
• Parties: James W. Clark v. Edmund Hall

19 Mich. 356

James W. Clark v. Edmund Hall

Supreme Court of Michigan

October 28, 1869

Heard October 20, 1869; October 23, 1869 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit.

Ejectment: brought in the Circuit Court for the County of Wayne, by Edmund Hall, now defendant in error, against James W. Clark, now plaintiff in error.

On the trial the plaintiff proved that on the 5th day of May, A. D. 1835, Erastus H. Spaulding entered the premises in question, at the land office in Detroit, and that the certificate of such entry was numbered 12,714, and also, that a patent from the United States was issued to Shubael Conant, as assignee of Spaulding, of said premises, dated April first, A. D. 1837.

The plaintiff also offered in evidence an exemplified copy of the assignment by said Spaulding to Shubael Conant, duly authenticated by the Commissioner of the United States Land Office at Washington.

The introduction of the assignment was objected to as irrelevant, and that it conveyed no title to the lands therein described. The Judge overruled the objection and admitted the evidence, to which decision the defendant excepted.

The plaintiff further offered in evidence the record of a quitclaim deed of said premises from Shubael Conant to Sylvanus Russell, dated September 3d, A. D. 1835; to the introduction of which evidence the defendant objected, upon the ground that at the date of said deed said Conant had no title to said premises. The Judge overruled the objection and admitted the evidence; to which decision the defendant excepted.

And the plaintiff further gave in evidence the record of several deeds, and also the depositions of witnesses, showing a conveyance of said premises from Sylvanus Russell to the plaintiff.

The defendant claimed title under a tax deed from the State of Michigan to Alpheus S. Williams, of the premises, under a sale thereof by the Auditor General on the second day of June, 1858, for the taxes of the year 1857, and deeds proving the conveyance thereof from said Williams to the defendant; and offered testimony to prove that one George V. Clark was in the actual occupation of a small part of said premises, enclosed by a brush fence, and cultivated the same as a garden at the time of the commencement of this suit, and that he claimed to be in possession of the whole thereof, under a permission of the defendant that he might go on to said premises and work the same, and that he occasionally cut trees and wood upon other portions of said premises, he at that time residing upon a farm of his own adjoining these premises, and not on the premises in dispute.

The plaintiff offered rebutting evidence to prove that the said deed from the State of Michigan to Alpheus S. Williams was invalid and conveyed no title to said premises, for the reason that the tax for which the same was sold was excessive to a large amount, and beyond the amount authorized by law, and that it included a tax for rebuilding a bridge near the town of Ecorse, that was not only without authority of law, but contrary to law.

The defendant objected to the introduction of such evidence as incompetent, and also upon the ground that, under the provisions of the statutes, such evidence was not admissible and would not tend to invalidate the said tax deed, or defeat the title conveyed by such deed.

The Judge admitted the testimony; to which the defendant excepted.

At the request of the plaintiff, the Court charged the jury:

"If the jury find that Spaulding made an entry of the land in dispute in the Land Office of the United States, in due form of law, and subsequently assigned or conveyed his interest under the entry to Conant, who conveyed the land to Russell, and afterwards received the patent from the United States, offered in evidence by the plaintiff, then the patent relates back to the original entry, and inures to the benefit of Russell and his subsequent grantees.

"That the records from the United States Land Office, and the exemplified copy of assignment offered in evidence by the plaintiff is evidence of the regularity of the entry by Spaulding and of the assignment of his rights thereunder to Conant.

"That the conveyances and depositions offered in evidence in this suit show the plaintiff to hold the land as subsequent grantee of Russell.

"That as such subsequent grantee of Russell, the plaintiff is entitled to recover in this action, unless the jury find some person other than defendant to have been in the actual possession of the land at the time the suit was commenced."

To each of which the defendant excepted.

The plaintiff requested the Court further to charge the jury:

"That if the jury find that any portion of the premises, which may be distinctly defined, were in actual possession of any person other than the defendant at the time this suit was commenced, yet the plaintiff may recover all the premises except such portion as was so actually occupied."

The Judge charged as requested by the counsel for the plaintiff, with the following addition: "I do charge you, gentlemen, that is, if you find in this case that some other party than the one made defendant here was in possession of the garden spot, and that garden spot can be described and defined, as it has been described by witnesses in this case, and he was not in like possession of the other part, then you can find for the other part, and for the defendant as far as the garden spot is concerned; but if you shall find that he was in possession of the whole, then of course they cannot recover in this suit, if you shall find that he actually occupied the whole," to which the defendant excepted.

The Court further charged the jury that the question of possession is a question of fact for the jury to decide.

The defendant requested the Court to charge the jury as follows:

"That the deed from Spaulding to Conant conveyed to the latter no legal title, as at the date thereof the title was still in the Government;

"That the deed from Conant to Russell conveyed no title, for the same reason;

"That the deed from Conant to Russell being a mere quitclaim deed, the legal title subsequently acquired by Conant did not enure to the benefit of Russell;" but the Judge refused so to charge said jury; to which refusal defendant excepted.

The defendant further requested the Court to charge the jury:

"That if the jury find that the premises in question were actually occupied by George V. Clark at the time this suit was brought, in July, 1865, then the plaintiff cannot recover in this suit." "The Judge charged as follows:

"I have already charged you that, gentlemen, if you find that at the time this suit was commenced, the witness, Clark, actually occupied these premises, all of them, the plaintiff cannot recover;" to which opinion of the said Circuit Judge, the counsel for the said defendant did then and there, on behalf of the said defendant, except.

The defendant further requested the court to charge the jury:

"That if George V. Clark was actually cultivating a portion of these premises in 1865, as a garden, and claimed to be in the occupation of the whole eighty, there being no adverse or other possession, and was occasionally cutting wood and timber thereon during the summer of 1865, that was an occupation within the provision of our Statute;" but the Judge refused so to charge, and said to the jury: "That I cannot charge you, gentlemen, as it is stated there. The question for you is, whether he was in actual possession, not whether he claimed to be;" to which refusals and charges the defendant in each case excepted.

The jury found a verdict for the plaintiff, and the judgment entered thereon is brought into this Court by writ of error.

Judgment affirmed.

C. I. Walker, for plaintiff in error.

I. It is claimed by the plaintiff in error that no legal title to the premises had vested in Conant, at the time of his conveyance to Russell, and there being no covenants of warranty in that conveyance, the legal title subsequently acquired by the patent, did not enure to the benefit of Russell or his grantees, and therefore, that the plaintiff below had not made out a title to the premises in question.

The assignment of July 7, 1835, cannot be held to be a conveyance, for the reason that it is not acknowledged as required by the act of 1827, then in force.--Laws of 1833, page 279. Nor can such assignment be proved by an exemplified copy from the land office. It is not a paper required by any rule of law to be filed or recorded in such office, and if there its existence must be proved, and then its contents, by a sworn copy or other proper secondary evidence--2 Comp. Laws. Secs. 4,308, 4,311; 2 Edward's Phillips' Ev. 523, 568, notes.

But there lies back of these a still more serious objection, viz: That neither Spaulding or Conant, when they conveyed the premises, had any legal title thereto, and there being no covenants of warranty, no title passed to Russell.

It is well settled that the holder of a duplicate or a certificate of entry of land before the issue of the patent has only an equitable title, and he cannot recover thereon at law, save by the aid of some local statute or usage.--Fenn v. Holme, 21 How. 488; Hooper v. Scheimer, 23 How. 236; Carman v. Johnson, 20 Mo. 110. In some States without statute, and in others by statute, the holder of the certificate of entry, is held to have such an inchoate legal title that he may recover thereon in ejectment.--McConnell v Wilcox, 1 Scam. 366; Waller v. Vanpuhl, 14 Mo. 87; 2...