McArthur v. Oliver

• Decision Date: 15 April 1886
• Citation: 27 N.W. 689,60 Mich. 605
• Court: Michigan Supreme Court
• Parties: MCARTHUR v. OLIVER and others.

27 N.W. 689

60 Mich. 605

MCARTHUR v. OLIVER and others.

Supreme Court of Michigan

April 15, 1886

Error to Alpena.

Kelley & Gilchrist, for plaintiff.

Turnbull & Dafoe, for defendants and appellants.

CHAMPLIN, J.

This is an action of replevin, brought by plaintiff to recover a quantity of Norway and white pine saw-logs, cut by defendant Oliver during the winter of 1882-83, from lots 1, 2 and 3, in township 29 N., of range 8 E. The plaintiff's claim to the timber, and his right to recover in this action, was based upon his alleged title to lots 1, 2, and 3, and, to make out this title, he introduced in evidence the following chain of conveyances: First. A patent from the state of Michigan to David D. Oliver, dated December 18, 1866, and recorded January 31, 1867, in Liber C of Deeds, on page 231 of Alpena county records, for said lots 1, 2, and 3. Second. The record of an execution levy against David D. Oliver, one of the defendants, dated August 21, 1881, and recorded on pages 31, 32, and 33 of Liber Q of Levies, Alpena county records, conveying said lots 1, 2, and 3. Third. The record of a sheriff's certificate of sale of said lots 1, 2, and 3 to Thomas White, dated May 20, 1882, and recorded the same day in Liber 1 of Sheriff's Certificates, on page 70 Alpena county records. Fourth. The record of a sheriff's deed of said lots 1, 2, and 3 to said Thomas White, dated July 16, 1883, and recorded July 17, 1883, in Liber 1 of Sheriff's Deeds, on page 13, Alpena county records, purporting to be based on said previous levy and sale on execution. Fifth. The record of a quitclaim deed of said lots 1, 2, and 3; from Thomas White to plaintiff, dated July 18, 1883, and recorded on the same day in Liber 11 of Deeds, on page 114, Alpena county records.

The plaintiff relied upon his title as thus shown, until the defendants put in evidence the following conveyances: First. The record of a warranty deed from said David D. Oliver and wife to George J. Robinson, dated November 15, 1867, and recorded November 22, 1867, in Liber D of Deeds, on page 119 Alpena county records, conveying an undivided one-fourth interest in said lots 1, 2, and 3. This was an ordinary form warranty deed. Second. The record of a warranty deed from said David D. Oliver and wife to Henry S. Cunningham, dated September 3, 1868, and recorded September 8, 1868, in Liber E of Deeds, on page 95, Alpena county records, conveying an undivided three-fourths interest in said lots 1, 2, and 3. This was an ordinary form warranty deed.

Plaintiff then introduced in evidence, against defendants' objections, the record of a decree of the circuit court of the United States for the Eastern district of Michigan, made on the twenty-first day of September, A.D.1882, and recorded on November 3, 1882, in Liber 7 of Deeds, on page 471, Alpena county records. This decree provides that David D. Oliver shall be entitled to a good and sufficient deed from defendants in that suit for the undivided three-fourths interest of said lots 1, 2, and 3, being the lands involved in this suit, within 30 days from date of decree; and if not conveyed within that time, then the record of the decree should operate as such conveyance.

There was no dispute as to the value of the timber, both sides conceding it to be two dollars per 1,000 feet for white pine and one dollar per 1,000 feet for Norway, and the only disputed question of fact, viz., the quantity of timber cut by defendant Oliver from said lands, was fixed by the jury, by the consent of the parties.

The counsel for the defendants requested the court to direct a verdict for defendants for the following reasons: First. Bec...