Clow v. Plummer

• Citation: 85 Mich. 550,48 N.W. 795
• Court: Michigan Supreme Court
• Decision Date: 08 May 1891
• Parties: CLOW v. PLUMMER.

48 N.W. 795

85 Mich. 550

CLOW v. PLUMMER.

Supreme Court of Michigan

May 8, 1891

Error to circuit court, Saginaw county.

Tarsney & Weadock, for appellant.

Markey & Hall, for appellee.

LONG J.

The plaintiff is a resident of the state of New York, and is the widow of Charles Clow, deceased. The action is trover brought in the Saginaw circuit court, to recover from defendant the value of two-thirds of the pine timber cut and removed by him from lands in Ogemaw county, and manufactured into lumber. Defendant resides in Saginaw county. The verdict and judgment was for the plaintiff in the court below for about $3,200. Defendant brings the case here by writ of error. The plaintiff claims to be a tenant in common with the defendant of the lands from which the timber was taken. The land was patented by Edmund Heather, May 10, 1867, and by successive conveyances passed to the parties to this action,-as plaintiff claims, one-third to defendant one-third to plaintiff and Ellen J. Keller, and one-third to Julia D. Lewis. Before the commencement of the present suit Ellen J. Keller and Julia D. Lewis assigned their right of action to the plaintiff. The plaintiff, on the trial, introduced in evidence the patent to Heather, a warranty deed from Heather to William P. Irwin, and warranty deed from Irwin and wife to Harriet N. Andrews, of Sodus, Wayne county, N.Y. Plaintiff then offered a warranty deed from Cyrus Andrews, of Sodus, Wayne county, N. Y., and Harriet, his wife, to Chauncey Ives, dated February 14, 1867, purporting to convey the lands in question. The introduction of this deed in evidence was objected to by defendant's counsel for the reasons: (1) That it purports to be a deed of Cyrus Andrews and Harriet, his wife, and does not purport to be the deed nor to convey the individual interest, of Harriet Andrews, as the only covenant in the deed is that of Cyrus Andrews, as follows: "With all the estate, right, title, and interest therein of the said party," etc., of the first part; "and the said Cyrus Andrews does hereby covenant." (2) That it is signed and acknowledged by Harriet only, and that the Harriet Andrews, grantor in this deed, is not shown to be the Harriet N. Andrews to whom the land in dispute was conveyed. The court overruled these objections, and permitted the deed to be introduced in evidence as a link in the chain of plaintiff's title.

Before passing upon the questions raised here, we will notice the claim of title of the respective parties, as they both claim title, if either have title, under the deed of Cyrus and Harriet Andrews, above noted. Chauncey Ives conveyed by deed of warranty to George E. Clow, Charles Clow, and Abram Clow. On December 5, 1875, and after the deed from Edmund Heather to him, William P. Irwin acquired a tax-title under tax-deed from the auditor general. William P. Irwin, Abram Clow, and Charles Clow died after the interests in said land had vested in each of them, and each leaving a last will and testament. At the time of their decease they were all residents of the state of New York, and their several wills were duly admitted to probate in that state. Certified copies of these wills were filed in the probate court for Saginaw and Ogemaw counties, this state, and the three wills were subsequently admitted to probate in those counties The executrices under the Irwin will conveyed their interest in that estate to Julia D. Lewis, George E. Clow, and Charles Clow. Julia D. Lewis also took, as sole devisee under the will of Abram Clow, all his interest in the land.

By the will of Charles Clow, his widow, Lucy Clow, took a life-estate, and the remainder in fee vested in Ellen J. Keller. Subsequently, Julia D. Lewis and Ellen J. Keller assigned their cause of action against the defendant to Lucy Clow, the plaintiff in this suit; thus placing in the plaintiff full interest in the undivided two-thirds interest owned by the representatives of Abram and Charles Clow, deceased. The defendant acquired the sole ownership to the undivided one-third interest owned by George E. Clow. Certain objections were made to the introduction in evidence by the plaintiff of certain of the proceedings for the probate and allowance of the wills of Abram Clow and Charles Clow. These will be noticed after having disposed of the questions raised upon the admissibility in evidence of the deed of Cyrus and Harriet Andrews to Chauncey Ives.

1. The objection that the deed is made and executed by Cyrus Andrews and Harriet, his wife, and does not purport to be the deed, and does not convey the individual interest, of Harriet N. Andrews, has no force. That question was fully settled in Heinmiller v. Hatheway, 60 Mich. 395, 27 N.W. 558. It was there said: "When the wife joins with her husband in the conveyance of the fee of land of which she is, in whole or in part, the sole owner, she conveys all her interest therein, though she can only be held liable upon her covenants in such deed to the extent of her sole property conveyed."

2. It is claimed that there was no proof of identity of Harriet Andrews who signed the deed as the wife of Cyrus Andrews as the same Harriet N. Andrews to whom William P. Irwin conveyed the land. It is said by counsel for the defendant that, before the deed could be offered in evidence for the purpose of showing the transfer of title, the plaintiff should have introduced proof showing such identity; that, the attention of the party having been called to the fact, and the opportunity given to show such identity, if it existed, it raised a strong presumption that the person who signed the deed with Cyrus Andrews as Harriet, his wife, was not the Harriet N. Andrews who took title from William P. Irwin. There might have been some force in this objection did it not appear that Harriet N. Andrews who took title from Irwin was a resident of Sodus, Wayne county, N. Y., and that Harriet Andrews who joined with Cyrus Andrews as his wife in the execution of the deed to Chauncey Ives was also described as a resident of Sodus, Wayne county, N. Y., and was also described in the body of this deed as Harriet N. It is also of some significance that the defendant claims title under and through this same conveyance. If the plaintiff's title is not perfect and complete under this conveyance, then the defendant's title is also an imperfect one; for under defendant's contention the title to the whole property would yet rest in Harriet N. Andrews. We think this was a sufficient identity of the parties, and the court was not in error in admitting the deed in evidence as a link in the chain of title of the parties to this controversy.

3. As before stated, Abram Clow devised all his property, both real and personal, after certain specific bequests, to his daughter Julia D. Lewis; and Charles Clow devised his property, both real and personal, to his widow Lucy Clow, during her natural life, and after her death to his daughter Ellen J. Keller; and the rights of action were assigned by Julia D. Lewis and Ellen J. Keller to the plaintiff. The tax-deed to Mr. Irwin having been introduced in evidence, the plaintiff, for the purpose of showing the title in herself, offered in evidence the files of the probate court of Saginaw county in the matter of the estate of William P. Irwin. Counsel for the defendant objected to the introduction of these proceedings for the reason that the will-an authenticated copy of which was admitted to probate in that court-had never been recorded, and that the petition for the probate of the will was not made by any one having an interest in the estate of William P. Irwin, and the petitioner was not authorized by law to make the same. Section 5804, How. St., provides that "no will shall be effectual to pass either real or personal estate unless it shall have been duly proved and allowed in the probate court as provided in this chapter, or on appeal." Section 5805 provides that "all wills which shall have been duly proved and allowed in any other of the United States, or in any foreign country or state, according to the laws of such state or country, may be allowed, filed, and recorded in the probate court of any county in which the testator...