H.M. Loud & Sons Lumber Co. v. Elmer Tp.

• Decision Date: 20 February 1900
• Citation: 123 Mich. 61,81 N.W. 965
• Parties: H. M. LOUD & SONS LUMBER CO. v. ELMER TP.
• Court: Michigan Supreme Court

81 N.W. 965

123 Mich. 61

H. M. LOUD & SONS LUMBER CO. v. ELMER TP.

Supreme Court of Michigan

February 20, 1900

Error to circuit court, Oscoda county; William H. Simpson, Judge.

Action by the H. M. Loud & Sons Lumber Company against the township of Elmer. Judgment for plaintiff. Defendant brings error. Reversed.

John A McMahon (De Vere Hall, of counsel), for appellant.

Main J Connine, for appellee.

LONG J.

The plaintiff was the owner of a quantity of pine lands in the defendant township. Oscoda county, prior to March, 1894. These lands were deeded by a deed of quitclaim to one Charles Crofoot, of Plattsburg, Ohio, in March, 1894. The deed was sent to the office of the register of deeds of Oscoda county but was not recorded, on account of unpaid taxes on the lands described. These lands were assessed to the plaintiff in April, 1894, by the supervisor of the township. It appears that on April 7, 1894, Mr. George A. Loud, vice president of the plaintiff, wrote the supervisor of defendant township that these lands had been conveyed to Crofoot, and asked that they be assessed to him. The supervisor, however declined to do this, and assessed the lands to plaintiff. The plaintiff paid the taxes under protest on February 26, 1895 and on March 5, 1895, commenced this suit to recover the moneys so paid. On the trial the plaintiff called Mr. George A. Loud as a witness, who testified to the transfer of the lands to Mr. Crofoot. On cross-examination he testified as follows: 'A large portion of these lands in 1894 were stripped of timber previous to that time. I could not say how long previous. It ranges from a considerable space of time to one, two, or three years. The timber was taken from them from 1891 to 1894, inclusive. By '1894' I mean the winter of 1893-94. We did not get through lumbering there in the spring of 1894 on all of them. On the last page of the exhibit there were three descriptions still had timber on them, partly. All of the others were presumed to be stripped. There was another description that had not been lumbered,--up in ten,--making four. The plaintiff did the lumbering, and at the time it was done the title stood in the plaintiff, I think. I do not know from whom the plaintiff purchased these lands. It buys lands from different persons. Most of them have been owned for a number of years. I know Mr. Crofoot. He was a farmer. His wife's name is Martha. She is my cousin. I acted for the corporation in making the deal by which the lands were sold to Crofoot. It was at Oscoda, and Mr. Crofoot was there. He did not go to look at the lands. I described the nature of them, and the deal was made at that time. * * * The lands were all included in one instrument,--a quitclaim deed. I cannot recall the exact consideration, but it was a nominal consideration. I believe the timber had all been removed from the lands, practically. Q. And these lands were put in his name because he was a nonresident of the state, were they not, Mr. Loud? A. They were sold to him because we did not want them. Q. Wasn't it for the purpose of placing them where you would know your property would not be subject to a levy for the taxes? A. I presume that would be a fair statement of the proposition. We had no further use for them, and gave them away for a nominal consideration. Q. Now, you found the taxes, I suppose, somewhat of a burden on those lands? A. We did. Q. And the purpose in so placing them was to have that burden removed. Have I got that right? A. Practically.' The witness further testified that, after the conveyance to Crofoot, plaintiff drew the deeds from Crofoot when any of the lands were sold, acted as adviser about sales, fixed the prices for which sales should be made, and took timber from the lands as before the deed was made; that the timber removed belonged to plaintiff, and was mixed with the remaining timber taken from its other lands, and no account thereof kept, and no credit given Crofoot therefor; that it was the understanding that it should continue to own the timber, although not reserved in the deed; that after the deed to Crofoot no direction was given the wood superintendent, Mr. Parks, to mark the lands off his plat book, and that on his and George A. Loud's books the lands still appeared as plaintiff's; that it had deeded other lands to Crofoot under similar arrangements; that George A. Loud, without consulting Crofoot, bought other lands from the receivers of the Potts Salt & Lumber Company in his (Crofoot's) name, fixed the price to be paid therefor,...