Grant v. Smith

• Decision Date: 23 November 1872
• Citation: 26 Mich. 201
• Court: Michigan Supreme Court
• Parties: Charles W. Grant v. Elias W. Smith and another

26 Mich. 201

Charles W. Grant v. Elias W. Smith and another

Supreme Court of Michigan

November 23, 1872

Heard October 16, 1872; October 17, 1872.

Error to Saginaw circuit.

Judgment affirmed, with costs.

Sutherland & Wheeler, for plaintiff in error.

Gaylord & Hanchett, for defendants in error, on the admissibility of the patent in evidence, cited: Lester's Land Laws, pp 169, 285; Sess. L., 1851, p. 322; Sess. L., 1853, p. 116; Sess. L., 1857, p. 234; Sess. L., 1858, p. 169; Dart v Hercules, 34 Ill. 395; Branch v. Mitchell, 24 Ark. 431; Fremont and Mills Counties v. Burlington & Mo R. R. Co., 22 Iowa 91; Same Case, 9 Wall. 89; Railroad Company v. Smith, 9 Wall. 95; Allison v. Halfacre, 11 Iowa 96; Ballou v. Watson & O'Brien, 20 Mich. 304; Patents for California Land Claims, 12 Op. Attorney General, 251; Waterman v. Smith, 13 Cal. 419; Goodlet v. Smithson, 5 Port. (Ala.), 243; Clark v. Hall, 19 Mich. 356; Minter v. Crommelin, 18 How. 87; Polk v. Wendell, 9 Cranch. 87; Newson v. Pryor, 7 Wheat. 7; Cary v. Whitney, 48 Me. 516; Surget v. Doe, 24 Miss. 118; United States v. Arredondo, 6 Pet. 691, 727, 728, 729; Trustees v. Allen, 21 Ill. 120; People v. Livingston, 8 Barb. 253; Rice v. Harrell, 24 Ark. 402.

Graves, J. Christiancy, Ch. J., and Campbell, J., Cooley, J. concurred.

OPINION

Graves J.:

This was an action of trover by Smith and Wilson against Grant to recover damage for the conversion of a large quantity of pine timber taken in 1870 from the southwest quarter of the southeast quarter of section two, in township thirteen north, of range two west, in this state.

The jury returned a verdict for the plaintiffs below, for four thousand two hundred and forty-four dollars and seventy-seven cents, and the defendant below now asks a review by this court, of several of the rulings made during the trial. The first question relates to the validity of the evidence of the title of Smith and Wilson to the property alleged to have been converted.

That evidence consisted, first, of a patent by the governor in August, 1858, to Abel A. Brockway, of the land on which the timber was cut; and second, of an assignment of the right of action by Brockway to Smith and Wilson in October, 1870, which was subsequent to the conversion.

This assignment was in a contract made by Brockway with Smith and Wilson for the sale of the land. The assignment clause reads as follows: "Said first party hereby sells, assigns, and sets over unto said second parties, all rights of action which he now has by reason of any trespass having been committed on the lands herein described, or any part thereof, and hereby authorizes said second parties to sue and recover therefor, but at their own cost and expense."

The patent indicated by its statements that it was issued for swamp land, and recited that the patentee had paid for the land pursuant to the conditions of sale and the laws of the state, and referred to certificates of the proper officers on file in the office of the secretary of state.

It was objected that it did not appear that the state had any title at the emanation of the patent, or that the governor was authorized to issue the patent. On the first glance this objection appeared somewhat plausible, but examination and reflection have satisfied me that it is wholly untenable.

The law has provided for giving patents to swamp land buyers as evidence of their title, and has provided for placing in their hands no other evidence of it. It has indicated no design to put the holders of such lands on any more unfavorable footing as to presumptive evidence of their ownership than the holders of other lands under state patents. And in view of these considerations, it seems to me little less than absurd to say that, when the holder of an apparently regular and formal patent, purporting to have been given for swamp land, offers it in evidence of his title against a wrong doer, he is told that the law after all regards it as no evidence of title by itself.

He presents his patent. It bears the great seal. It possesses all the features which can recommend it to judicial credence. It purports to convey swamp land. According to the objection, however, he is to be told that the law assumes that it bears a lie upon its face, and must, on that assumption, be ignominiously excluded. The authorities, I think, afford no warrant for such a result, and I can discover no sound reasoning for it: Thayer v. McGee, 20 Mich. 195; Hall v. Kellogg, 16 Mich. 135; Mc Cormick v. Bay City, 23 Mich. 457. In the case of the Railroad Company v. Smith, 76 U.S. 95, 9 Wall. 95, 19 L.Ed. 599, the supreme court of the United States decided that the act of congress granting swamp lands, by its own force vested the title in the respective states in which the lands are situated, and that the lands were subject to disposal by the states without any action whatever by the department of the interior.

Such being the settled law on that point, the citations from the statutes and decisions, by the counsel for defendants in error, support the view which has been expressed, and show that the patent was sufficient to warrant the presumption, at least, that all prerequisites had been duly and legally complied with, and that it gave title to the patentee.

The patent was, therefore, properly admitted as evidence of title in the patentee, from whom the plaintiffs below claimed. In addition to the cases cited in the brief of counsel for defendants in error, the following favor the same view: Wallace v. Maxwell, 24 Ky. 447, 1 J.J. Marsh. 447, 450, 451; Woodson v. Buford, 7 Monr. 418; Hickman v. Boffman, Hardin R., 362; Brown v. Galloway, 1 Pet., Cir. C. R., 291; James v. Betz, 2 Binn. 12; Thompson v. Hauser, 2 Const'l Court R. (S. C.), 356; Williams v. Sheldon, 10 Wend. 654; Patterson v. Winn, 5 Pet. 241; Boatner v. Ventress, 8 Mart., Lou. R. (N. S.), 644; Whitmire v. Napier, 4 Sergt. & R., 290; Downing v. Gallagher, 2 Sergt. & R., 455; People v. Livingston , 8 Barb. 253; People v. Mauran, 5 Denio 389; Brady v. Begun, 36 Barb. 533; De Camp v. Eveland, 19 Barb. 81.

The assignment was properly admitted. Final v. Backus, 18 Mich. 218, is decisive on this point. We there held that the right of action for a tort of this description is assignable by our law and enforceable by suit in the name of the assignee. And the form of the assignment in question will admit of no construction which will exclude it from the operation of that decision.

The next question arises upon the exclusion of evidence offered by the defendant below, that one Sias claimed to have acquired a tax-title to the land, and that Grant took a deed from him on a consideration of some four or five hundred dollars before the timber was cut. This evidence was tendered to show that Grant, in cutting the timber, honestly supposed that he was the owner of the land, and acted in perfect good faith.

This evidence, if it had been admitted, could have served only to reduce the damages. It was irrelevant in any other view, and we are unable to see that it ought to have changed the result if it had been allowed. The logs were cut and removed to Grant's mill, and the question as to the measure...