Westbrook v. Miller

• Citation: 30 N.W. 916,64 Mich. 129
• Court: Supreme Court of Michigan
• Decision Date: 06 January 1887
• Parties: WESTBROOK v. MILLER and others.

30 N.W. 916

64 Mich. 129

WESTBROOK v. MILLER and others.

Supreme Court of Michigan

January 6, 1887

Error to Bay.

Avery Bros., for plaintiff and appellant.

Simonson, Gillett & Courtright, for defendants.

SHERWOOD J.

The plaintiff brings trover to recover the value of about 2,000,000 feet of pine saw-logs, worth over $20,000, which he claims defendants converted, the plaintiff having the title thereto. The lands from which the timber was taken, were held by the state for the taxes of 1872, 1873, 1876, 1877, 1879 and 1880, and John M. Hoffman, having purchased the state bid, procured a deed for these years from the state, February 9, 1883, for the sum of $56.49, under what is known as the graduation act of 1881, and the amendment thereto. Hoffman afterwards deeded the lands to the plaintiff, Westbrook. These conveyances furnished the only claim of title relied on by the plaintiff to establish his ownership to the lands or logs in question, and his right to the possession of the same. The land was unimproved, not inclosed, and unoccupied and the plaintiff never had any actual possession of the land or logs in question. The defendants entered upon the lands during the winter of 1883, commenced cutting and removing the timber therefrom, claiming to be the owners in fee through a deed of purchase from one John P. Phillips, for the consideration of $5,500. The land was located by Selden A Jones on June 27, 1853. Selden A. Jones conveyed to John P Phillips, November 28, 1853. John P. Phillips deeded to Oscar F. White, December 11, 1853, taking a mortgage back; and Oscar F. White, by circuit court commissioner, on foreclosure of this mortgage, conveyed to John P. Phillips, May 8, 1856, Phillips conveying to defendants Miller and Lewis subsequently. This suit was commenced February 19, 1884, while defendants were on the lands cutting and removing the timber, and having such actual possession as was necessary for carrying on lumbering operations. At the time the suit was commenced, and the alleged conversion claimed in the declaration, there were outstanding tax titles held by one Juan C. De Mier, covering the years 1862, 1864, 1866, 1867, 1868, and 1869. Juan C. De Mier conveyed to one Cain M. Cook, June 25, 1884, and Cook conveyed to defendants, June 28, 1884. De Mier purchased from the state, and had the deeds recorded several years prior to the commencement of this suit, and before the time that plaintiff obtained his tax titles. Thus, there were several outstanding tax titles in De Mier when this suit was commenced, and when plaintiff or his grantor obtained his tax deed.

On the trial the plaintiff offered in his evidence a conveyance by the auditor general to John M. Hoffman, for the taxes of 1872 and 1873, 1876 to 1880, inclusive, dated February 9, 1883, and a conveyance from Hoffman to the plaintiff, dated November 14, 1883, also evidence showing the cutting and carrying away of the timber to Bay City, where the logs were worth $12 per thousand at the time suit was commenced.

The grounds relied upon by the defendants were (1) the invalidity of the plaintiff's title, (2) ownership by the defendant under the original title; and (3) the title outstanding in John C. De Miers for the years hereinbefore mentioned. The cause was tried in the Bay circuit, before Judge GREEN, with a jury, who, under the charge of the court, rendered a verdict for the defendants, and plaintiff brings error.

The plaintiff, in order to recover against the defendant, had to show a valid title to the timber and...