Martin v. Hurlbut

• Decision Date: 01 January 1864
• Citation: 9 Minn. 132
• Parties: JOHN MARTIN vs. HENRY HURLBUT et al.
• Court: Minnesota Supreme Court

9 Minn. 132

JOHN MARTIN vs. HENRY HURLBUT et al.

Supreme Court of Minnesota.

J. B. Gilfillan and D. A Secombe, for appellant.

F. R. E. & W. B. Cornell, for respondents.

ATWATER, J.

This was an action by appellant to recover five hundred thousand feet of pine logs, or the value thereof, alleged to be $5,257, of which plaintiff alleged that he was the owner, and entitled to the immediate possession. The complaint alleges that on or about the sixteenth day of March, 1863, the defendants became wrongfully possessed of the same, and withhold possession from plaintiff after demand by him for the same. The answer denies title in the plaintiff, and alleges that prior to and at the time of the commencement of this action, the logs were owned by Henry Hurlbut, one of the defendants in this action. There was a jury trial, and a verdict for defendants. The case presents a large number of exceptions to the rulings upon the evidence offered, and also to the charge to the jury.

Both parties claim title to the logs under a purchase from Fuller and Lindsey, the persons who cut, and originally owned, the logs, or claimed them. The plaintiff offered in evidence a certified transcript of the record of the log mark, with which the logs in question were marked, and the certificate of the surveyor general attached, from which it appeared that the plaintiff filed this mark for record (N. *L.), on the 19th of March, 1863, and that said mark (being the mark upon the logs in question) had not been superseded by any other mark, as appeared from the records in the surveyor general's office.

The defendants offered in evidence, for the purpose of establishing their title, the following bill of sale, viz.: "For and in consideration of the sum of four dollars and twenty-five cents per thousand feet for all logs cut by me during the winter of 1862 and '63, on the east branch of Rum River, marked N. *L., containing seven hundred thousand and seven hundred feet as per bill of the surveyor general, with the exception of one hundred and seventy-five thousand feet to be stopped at St. Francis, the balance of the said logs we have bargained, sold, and delivered, to Henry Hurlbut, of Minneapolis, Hennepin County, Minnesota, at the above named price of four dollars and twenty-five cents per thousand feet. Payments to be made as follows: one quarter down (the receipt whereof I hereby acknowledge), one quarter in thirty days, one quarter in sixty days, and the balance in ninety days from date."

The instrument was signed by Fuller and Lindsey, and dated the sixteenth day of March, 1863, and was filed for record in the surveyor general's office, March 20, 1863.

The plaintiff in rebuttal offered in evidence the following instrument, viz.: "Memorandum of an agreement made the twenty-sixth day of February, 1863, by and between John Martin of St. Anthony, and M. J. Fuller of St. Francis, all of Minnesota. The said Fuller sells to me, said Martin, all the logs cut this season, marked N. * L., at the price of four dollars per M, scaled here by the surveyor general or his deputy. Payments to be ¼ down (before team goes out), ¼ 1st of June, ¼ 1st of August, and the last the first of September this year. It is understood that enough logs are to be left at St. Francis to pay the stumpage on said logs at four dollars per M, to be of an average quality." This agreement was signed by the parties and bore date February 26, 1863.

It appears from the case that the parties who cut these logs never filed the mark for record, nor does it appear ever to have been filed for record except by the plaintiff on the 19th of March, 1863. In purchasing these logs, therefore, neither plaintiff nor defendant were affected by any record notice of the log mark. And the rights of the parties must be determined without reference to the provisions of the recording acts, inasmuch as the purchase by Hurlbut was previous to the record of the mark by the plaintiff. Under this state of facts the first important question presented is, whether the contract between the plaintiff and Fuller and Lindsey of the 26th of February, 1863, vested the former with the title to the logs in question, or was merely an executory contract, giving the plaintiff only an action for damages for breach thereof by Fuller and Lindsey.

From the evidence in the case, which was uncontradicted, it appears that at the time the contract between the plaintiff and Fuller and Lindsey was made, the logging season was not over, and that the parties were then at work cutting and hauling the logs mentioned in the contract and so continued until about the middle of March. The plaintiff...