Russell v. Sweezey

• Decision Date: 10 January 1871
• Citation: 22 Mich. 235
• Court: Michigan Supreme Court
• Parties: George H. Russell v. James A. Sweezey

22 Mich. 235

George H. Russell v. James A. Sweezey

Supreme Court of Michigan

January 10, 1871

Heard January 6, 1871; January 7, 1871.

Error to Barry circuit.

This was an action of ejectment, brought by George H. Russell, in the circuit court for the county of Barry, against James A Sweezey. Both parties claim under Hosea B. Huston, who purchased the land of the United States government in 1839. Under the charge of the court the jury found a verdict for the defendant; and the judgment entered thereon comes into this court by writ of error.

Judgment affirmed, with costs.

J. L Hawes, for plaintiff.

D Darwin Hughes, for defendant.

OPINION

Graves, J.

The plaintiff in error brought ejectment against Sweezey for the north half of the northeast quarter of section nineteen, in township three north, of range eight west, in the county of Barry. The case was tried by a jury, who returned a verdict for the defendant, upon which judgment was entered.

It appeared on the trial that one Hosea B. Huston obtained a patent from the United States, dated May 1, 1839, for the whole northeast quarter of said section nineteen. The plaintiff proved that the patentee died at Kalamazoo in August, 1849, leaving Mary A. Huston, his widow, and Ellen A. Huston, Marcella M. Huston and Charles A. Huston, his children and sole heirs at law. He also gave in evidence the record of a deed for the land described in the patent bearing date the 21st of January, 1867, and executed by the widow and heirs before named of Huston to plaintiff. The defendant offered in evidence the record of a deed bearing date September 3, 1847, from the patentee, Hosea B. Huston, and Mary A. Huston, his wife, to Nathaniel M. Brown, purporting to convey to the latter in fee "all that certain tract or parcel of land known and described as follows, to wit: The northeast quarter of section numbered nineteen (19), in town three (3) north, of range numbered eight west, containing one hundred and sixty acres, according to the United States survey, be the same more or less." This deed described the grantor and wife as residing in the county of Kalamazoo, and appears to have been acknowledged before a justice of the peace of that county on the day it bears date, and to have been executed in the presence of the acknowledging officer, who signed it as a subscribing witness. It was placed on record July 10, 1869. The admission of this record as evidence in the cause was objected to by the plaintiff on two grounds: First, that the deed was not recorded until after the commencement of this suit; and, second, that being unrecorded at the time of the purchase by the plaintiff, it was void as against the prior recorded title of the latter. The evidence was admitted, and the plaintiff excepted.

The defendant then offered in evidence the record of a deed from Nathaniel M. Brown to Isaac Fryer, describing the land embraced by the patent. This was also admitted, but under an objection by the plaintiff that it did not appear that Brown, the grantor, had any title. The record of a deed from Isaac Fryer to defendant purporting to convey the land in question, was next admitted in evidence, under the objection that it did not appear that Fryer's grantor had any title.

It appeared on the cross-examination of defendant that the land covered by the patent was sold several times for taxes, and deeded sometimes to him and sometimes to one Frank Allen, and that in 1866 the latter deeded to Sweezey the lot in controversy, and Sweezey deeded to Allen the other half of the quarter. The defendant does not rely upon any tax title, although the record does not, as we observe, disclose any infirmity in it.

It appears incontestably from the record that the plaintiff's counsel here, Mr. Hawes, was the plaintiff's agent in bargaining with the widow and heirs of Huston for their deed and transfer of the 21st of January, 1867, and that whatever the plaintiff may have done in the matter, or whatever he may have paid as consideration, was transacted and paid through Mr. Hawes. The close and peculiar relation which seems to have subsisted between these persons in relation to this business must preclude all doubt respecting their attitude to each other and to the transaction; and we think the case is an extremely safe one for applying as far as needful the general rule that whatever is known to the agent in the business of his agency is, in legal contemplation, known to the principal.

It clearly appears from the evidence, which on this subject is unopposed and uncontroverted, that for a period beginning several years before and continuing to a time subsequent to the deed to Russell, the defendant was in the actual possession of the premises in dispute, first, under an agreement to purchase, and then under a conveyance from Fryer, with knowledge of the deeds from Huston to Brown,...