Johnson v. Moore

• Decision Date: 08 October 1873
• Citation: 28 Mich. 3
• Court: Michigan Supreme Court
• Parties: Otis R. Johnson and another v. Robert M. Moore

28 Mich. 3

Otis R. Johnson and another v. Robert M. Moore

Supreme Court of Michigan

October 8, 1873

Heard May 16, 1873

Error to Allegan Circuit.

Replevin. Defendants bring error. Affirmed.

Judgment affirmed, with costs.

M. S Bowen and Moore & Moore, for plaintiffs in error.

Williams & Humphrey and F. J. Littlejohn, for defendant in error.

OPINION

Graves J.

The controversy in this case originated in conflicting claims to certain timber cut on the south half of the south east quarter of section 19, and the south west quarter of section 20, in township 4 north, of range 13 west, in this State. The defendant in error recovered in replevin that portion of it consisting of pine, and the plaintiffs in error complain of rulings at the trial.

The bill of exceptions indicates numerous questions, but a portion seem to have been abandoned, and some others are not regularly raised, or are so clearly untenable as not to justify discussion. I gather from the record and the brief of plaintiffs in error, that there are but three or four points which are worthy of examination.

The defendant in error, Robert M. Moore, being owner of the land on which the timber was afterwards cut, conveyed it to one William Bradley, by warranty deed dated November 19th, 1866, but acknowledged on the 21st of the same month. Bradley, by warranty deed dated October 12th, 1867, conveyed to Lansing Kinnison, and the latter by warranty deed bearing date the 4th day of January, 1868, conveyed an undivided half to Michael Hinton. Neither of these deeds contained any exception or reservation of timber, and on their face they purported to convey the land and standing timber as well. If taken as they read they served to invest Kinnison and Hinton with the title to the land and timber as tenants in common having equal interests. Kinnison and Hinton then united in an instrument of conveyance to one Mores S. Bowen, bearing date September 22d, 1868, and which purported to be, and was in form, a warranty deed of an undivided half of the standing pine and whitewood.

The result of these dispositions, as indicated by the instruments, was that Kinnison and Hinton were equal tenants in common of the land, but that, as to the standing pine and whitewood, Kinnison, Hinton and Bowen were owners in common in the proportion of an undivided half in the latter, and an undivided quarter in each of the two former. The timber seems to have been cut by these parties or by their authority, and the plaintiffs in error claim as purchasers from and under them, and so trace their title back to the deed from defendant in error to Bradley in 1866.

There is no dispute about these respective conveyances of the land, aside from the interest in the timber. It appears, however, that on the day of the acknowledgment of the deed from the defendant in error to Bradley, that is the 21st of November, 1866, the latter gave back to Moore, the defendant in error, an instrument in writing which, besides covering these and other parcels of land, was of the tenor following: "Whereas I have this day purchased of Robert M. Moore of Allegan county, the following descriptions of land, to wit:" [The description of these and other lands then follow.] "This is to certify that all the sawing pine and whitewood timber that is now upon the above described tracts of land belongs to the said Robert M. Moore, who is sole owner thereof; and that the said Robert M. Moore has by agreement thirty months from this date to remove the same. Dated Allegan, Nov. 21st, 1866.

William Bradley."

The court below held that this instrument was of force to clothe defendant in error with the right to the timber as against Bradley and all others claiming from him with notice, subject to the qualification as to time. The plaintiffs in error maintain that it was of no force except as a bare revocable license to remove the timber, and that the subsequent unqualified grant from Bradley to Kinnison actually revoked it.

There was nothing to raise an inference that the deed from Moore to Bradley was delivered later or earlier than the time of its acknowledgment, and we must therefore assume that it was delivered at that time.--Blanchard v. Tyler, 12 Mich. 339; Dresel v. Jordan, 104 Mass. 407, 417. And as this paper given back by Bradley to Moore was of that date, referred to the deed as given on that day, was connected with the deed in sense, and as there was no evidence to separate the taking effect of the two instruments, they should be regarded as parts of a single transaction.--Kittle v. VanDyck, 1 Sand. Ch. R., 76; Cunningham v. Knight, 1 Barb. S. C., 399. And to ascertain the sense and meaning of the parties they should be read and construed together.--Bronson v. Green, Walk. Ch. R., 56; Norris v. Showerman, ib., 206; Norris v. Hill, 1 Mich. 202; Dudgeon v. Haggart, 17 Mich. 273; Rawson v. Lampman, 1 Seld. 456; Clap v. Draper, 4 Mass. 266; Rogers v. Smith, 47 N.Y. 324; Stocking v. Fairchild, 5 Pick. 181; Makepeace v. Harvard College, 10 Pick. 298; Carpenter v. Snelling, 97 Mass. 452; Hills v. Miller, 3 Paige 254; Cow. & H. Notes, 1420.

It is not a matter of any vital importance that the parties may not have looked upon the disposition they were engaged in making about the timber, as a distinct and independent operation, and did not employ precise or technical language. The material inquiry is, what construction is due to what they did, and what view ought the law to take of their actual arrangement. We must not forget the positions and relations the parties occupied, nor the nature of the business they were about, nor the character of the interests they respectively wished to secure. Bradley was to have the land in fee simple. His interest was to be something general and permanent. Moore was to have the sawing pine and whitewood so far as he should get it off in thirty months. His interest was to be exceptional and temporary. It was not strange that the parties were much less formal and particular in that part of the transaction which concerned the partial and temporary right than in that which related to the general and durable interest. But is there any doubt as to what was intended? The transaction was really single. When Moore conveyed to Bradley it was understood as part and parcel of the arrangement his conveyance was given to carry out, that this timber should then belong to Moore, but that his right to enter and take it should only continue for thirty months.

This idea is unequivocally expressed in the writing given at the same time, and intended to carry out one branch of the identical arrangement of which another branch was to be carried out by the deed. Manifestly something more was designed than a bare permission to enter in order to take timber. It was expressly declared that Moore should have property in the timber at the very time. He was then constituted "sole owner," or secured in the "sole ownership." The parties cautiously attended to this consideration as their first and leading idea in respect to this feature of the transaction. It appears to have been first in their minds and as something distinct from a right to enter, and is provided for in explicit terms. A right to enter is expressed in a subsequent clause, and is mentioned as a matter of "agreement," and as if it were a matter of second thought. The adoption of these separate provisions respecting ownership and the right of entry, together with the particular circumstances, most clearly denotes that it was in the minds of the parties that Moore should hold an interest, as well as a right of entry. The written understanding...