Green v. Bennett

• Decision Date: 10 October 1871
• Citation: 23 Mich. 464
• Court: Michigan Supreme Court
• Parties: James H. Green v. Eli G. Bennett

23 Mich. 464

James H. Green v. Eli G. Bennett

Supreme Court of Michigan

October 10, 1871

Heard October 3, 1871 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Branch circuit.

This was an action of trover, brought by Eli G. Bennett against James H. Green, to recover the value of certain wood and timber. The cause was tried before the court without a jury and the court, on the written request of the defendant, found the following facts, viz:

The plaintiff and the defendant and one Charles B. Case, then all of Bronson, in the county of Branch, Michigan, on the 16th day of November, 1866, made, executed and entered into the following contract, in writing, for the sale, by the defendant and said Case to the plaintiff, of certain wood and timber as therein specified, on the north half of the southwest quarter of section three in said township, of which premises the said defendant then held the title in fee; and the said Case then had a written contract from said defendant to sell and convey the same to him, said Case, on his completing the payment to defendant of the purchase price of the same as therein specified. Said written contract for the sale of said wood and timber, by said defendant and said Case, to the plaintiff, was in the words and figures following, to wit:

"Know all men by these presents, that James H. Green and Charles B Case, of the town of Bronson, in the county of Branch and state of Michigan, of the first part, for and in consideration of the sum of six hundred dollars, lawful money of the United States, to them paid by Eli G. Bennett, of same place, of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his executors, administrators or assigns, all the wood and timber on the west side of Swan Creek, on the following described premises, to wit: the north half of the southwest quarter of section three, in township seven south, of range eight west, in the county and state aforesaid, excepting ten acres on the north side. Excepting also rail timber enough to make an eight-rail fence around the lot of timber and wood hereby sold--to be taken from the smallest-sized trees to be found suitable for rails. Eight acres of said wood and timber on west end to be taken off by the 1st of May next by said Bennett, and ten acres more by the first of September next, and all the rest and residue of said wood and timber to be taken off by the said Eli G. Bennett within one year from the first day of September next; and that said Bennett hereby agrees to take the same off as above specified, and also, to pile the brush in good order. To have and to hold the same unto the said party of the second part, his executors, administrators and assigns forever. And the said parties of the first part, for themselves, their heirs, executors and administrators, do covenant and agree to and with the said party of the second part, his executors, administrators and assigns, to warrant and defend the sale of the said property, goods and chattels hereby made unto the said party of the second part, his executors, administrators and assigns, against all and every person or persons whatsoever. In witness whereof the parties to this instrument have hereunto set their hands and seals this 16th day of November, one thousand eight hundred and sixty-six." [Signed and sealed by respective parties.] At the time of the making and entering into the contract for this wood and timber, Case was in possession of the premises under his contract of purchase from Green. Plaintiff gave his promissory notes to Case for the amount of the purchase price for the wood and timber which was not paid down, and Case subsequently transferred them to defendant, to whom they were paid in full by plaintiff, some of them after the expiration of the year 1868. Case, in the spring or summer of 1868, sold and transferred back to the defendant his contract for the purchase of the land, and all his interest in the land and in the wood and timber contract aforesaid, and gave up to him possession of the premises. Plaintiff, before such transfer by Case, had cut and taken off the first eight acres of wood and timber, and also most of the ten acres; but Case, in the spring or fore part of the summer of 1868, before he sold back to defendant, had slashed over and felled promiscuously on the ground, and left in that condition, about ten or twelve acres of the said wood and timber included in plaintiff's contract, and had so done this without any authority or permission of the plaintiff. The said Case also, before giving up possession to defendant, girdled another portion of said wood and timber included in said plaintiff's contract, and left it standing on the ground. This girdling by Case...