Hoffman v. Harrington

• Decision Date: 14 October 1873
• Citation: 28 Mich. 90
• Court: Michigan Supreme Court
• Parties: John M. Hoffman v. Daniel B. Harrington

28 Mich. 90

John M. Hoffman v. Daniel B. Harrington

Supreme Court of Michigan

October 14, 1873

Heard April 30, 1873

Error to St. Clair Circuit.

Judgment affirmed, with costs in both courts to defendant in error.

Trespass. Plaintiff brings error. Affirmed.

A. E Chadwick, for plaintiff in error.

Trowbridge & Atkinson, for defendant in error.

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

OPINION

Christiancy, Ch. J.

This was an action of trespass, brought by Hoffman against Harrington in the St. Clair circuit, for entering upon certain lots in the city of Port Huron, tearing down a fence placed around the lots by the plaintiff, and removing the sills of a house he was preparing to build there.

The evidence tended to show that, for some two years prior to the trespass complained of, the defendant was, and up to the time the plaintiff commenced building the fence, continued to be, in possession of the lots, claiming to own them under certain deeds from the auditor general for delinquent taxes, and certain leases from the city for delinquent city taxes, as well as under a quit-claim deed from one Geel, who, the evidence tended to show, was one of the heirs of John Thorn, the patentee of the lands; and that he used the lots for storing spars, boom poles and other timber thereon, driving piles in front of the lots along the river and filling up portions of some of the lots with sawdust; though he had never fenced the lots, as a fence would interfere with their use for such purposes; that on Friday or Saturday, the 18th or 19th of February, 1869, the plaintiff, having just then obtained the quit-claim deed of the lots from Hamilton (more particularly noticed hereafter), employed a number of men and teams, entered upon the lots, drew off the spars and timber of defendant, and in a hurried manner built a fence around the lots, and drew on some sills for a house. On the Monday following, Harrington drew part of his spars, etc., back upon the lots, and tore down, or was tearing down, the fence, when he was forcibly resisted and driven off by Hoffman and his men. These acts of Harrington constitute what is claimed as the trespass in this case; and it was conceded on the trial that these acts constituted a trespass for which the defendant was liable, unless his acts were justifiable as against the plaintiff.

Upon the evidence in the case, the court properly instructed the jury that the tax deeds and leases, under which the defendant claimed, were void; but that they might, nevertheless, be treated as color of title; and if possession had been taken under them, they were admissible as tending to show what, and how much land defendant claimed. And the question of defendant's prior and continued possession under claim and color of title was fairly submitted to the jury.

If the defendant was, at the time of plaintiff's hurried entry and building of the fence, and had previously been, so in possession, it is clear, under the circumstances, not only that he had a right to enter, tear down the fences so recently and hurriedly put up, and to regain his possession, if he could peaceably do so, unless the plaintiff had the title, or the legal right of possession under the true owner; but it is equally clear that unless the plaintiff had such title or right, prior to his own entry, that entry and the building of the fence, and other acts done by him, made the plaintiff a trespasser in taking the possession, rather than the defendant for retaking it.

But the plaintiff claimed title through a sale and deed, claimed to have been made by one Hamilton, as administrator on the estate of John Thorn, the patentee, to one Minnie, a deed from the heirs of said Minnie to said Hamilton, and a subsequent deed of February 18th, 1869, from Hamilton to the plaintiff. The deed from Minnie's heirs to Hamilton, and from the latter to the plaintiff, were duly proved, and no question arises upon them.

On the other hand, the deed from Geel to the defendant was made subsequent to the sale by the administrator, and a question is raised whether this deed was intended to convey any interest Geel might have had or claimed as heir of Thorn, or only such interest as he had acquired by purchases for taxes.

But, as the deed from the administrator, if valid and sufficiently proved, must defeat the deed of Geel as to any interest he may have had as heir, whether he intended to convey it or not, we will first consider the proof and the validity of the alleged deed from the administrator.

As to the administrator's sale, the bill of exceptions states that, "the plaintiff's counsel offered the probate records, showing the appointment of Samuel W. Hamilton as administrator of John Thorn's estate, and also tending to show sale of the lots in question to one Joseph P. Minnie, and the execution of a deed which had been lost." As no deed was to be made by the administrator, till the report of the sale made by him, and its confirmation (Rev. Stat. of 1846, ch., 77, § 21), and the confirmation of the report would be the last entry upon the probate record, it is difficult to see how that record could tend to show the loss of the deed, if in fact it could have any tendency to show its execution (Ives v. Ashley, 97 Mass. 198); yet, as I understand the language above quoted from the bill of exceptions, it refers to the probate record as the evidence tending to show both the execution and the loss of the deed. Evidence, however, was subsequently given (which will presently be noticed) of the execution of the deed from the administrator, and of its being left with a third person for the purchaser, but no evidence of any search for the deed is stated at all, and none of its loss, except that above quoted from the bill, which refers only to the probate record, as tending to show the loss. But, as it is possible the last clause above quoted from the bill may have been understood by counsel in framing the bill, as intended to state that "evidence was also given tending to show" the loss; and the counsel for defendant in error does not specially object that there was no evidence tending to show the loss, but only that the contents were not proved, I do not rest my opinion upon the point that there was no evidence of the loss, but shall proceed to consider the case as if the loss had been shown. As to this objection, that the contents of the deed were not proved, I do not think it can be sustained (if the loss was shown). What are we to understand by the statements of the record, that evidence was given tending to show the sale of these lots by the administrator to Minnie, and the execution of a deed upon that sale, if it is not a sale and conveyance of these lots by the administrator to Minnie, and that such were the contents of the deed?

Hamilton testified that he "made the sale as administrator; made deed and left with one McAlpine, by arrangement with Minnie, for Minnie to get whenever he wanted it." On cross-examination he testified "that it was the understanding between him and Minnie that Minnie should buy the lots to protect his" [Hamilton's] "interest as a creditor,--he being the largest one,--of the estate; that Minnie did so bid; that there were other bidders at the sale, but Minnie was the highest bidder. It was understood that Minnie should hold the land for his" [Hamilton's] "benefit."

The fact that Minnie bid in the land for the administrator, thus making the administrator's sale indirectly to himself, is undisputed, and there is no evidence or pretense to the contrary.

The court charged the jury that if they believed this evidence, and that by an arrangement between the administrator and Minnie, the latter was to pay nothing for the lands, but was to convey them to the administrator, or to hold them for his special benefit, then, as matter of law, such sale was void as against the heirs of Thorn.

This charge raises the question of the validity of this deed, and if invalid as to any parties, the further question, how far its invalidity will affect the plaintiff as a purchaser from Hamilton, without notice of the facts rendering it invalid.

The statute (Rev. Stat. of 1846, ch. 77, § 18; Comp. L. 1871, ch. 163, § 18) provides: "The executor or administrator making the sale, and the guardian of any minor heir of the deceased, shall not directly or indirectly purchase, or be interested in the purchase of any part of the real estate so sold; and all sales made contrary to the provisions of this section shall be void; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward."

It does not distinctly appear from the record when this administrator's sale took place; though I infer from the judge's statement in the charge, that John Thorn died not very long previous to 1864, and that this sale was made since the passage of the above statute. At all events, as it devolves upon the plaintiff to show affirmatively the error of which he complains, his failure to show, by the bill of exceptions, when the sale was made, requires us to presume in favor of the correctness of the charge, that the sale was subsequent to this statute, if the statute upon that state of facts would justify the charge. I shall therefore proceed upon this hypothesis.

Now, if the purchase by Minnie, above stated, for the benefit of Hamilton, the administrator, does not constitute an "indirect purchase" by the administrator, within the plain meaning of this section, then it is impossible to assign any intelligible meaning to the prohibition. Had he purchased in his own name, the purchase would have been a direct one; procuring another to purchase for his benefit, is precisely what is intended by the statute as...