85 Mich. 550 | Mich. | 1891
The plaintiff is a resident of the state of New York, and is the widow of Charles Clow, deceased.
The action is trover, brought in the Saginaw circuit court, to recover from the defendant the value of two-thirds of the pine timber cut and removed by him from lands in Ogemaw county, and manufactured into lumber. Defendant resides in Saginaw county. The verdict and judgment were for the plaintiff in the court- below for about 83,200. Defendant brings the case here by writ of error.
The plaintiff claims to be a tenant in common with the defendant of the lands from which the timber was taken. The land was patented to Edmund Heather, May 10, 1867, and by successive conveyances passed to the. parties to this action, as plaintiff claims, one-third to> defendant, one-third to plaintiff and Ellen J. Keller, and one-third to Julia D. Lewis. Before the commencement of the present suit, Ellen J. Keller and Julia D. Lewis
1. That it purports to be a deed of Cyrus Andrews and Harriet, his wife, and does not purport to be the deed, nor to convey the individual interest, of Harriet Andrews, as the only covenant in the deed is that of Cyrus Andrews, as follows: “With all the estate, right, title, and interest therein of the said party of the first part; and the said Cyrus Andrews does hereby covenant,” •etc.
2. That it is signed and acknowledged by Harriet only, and that the Harriet Andrews, grantor in this deed, is not shown to be- the Harriet N. Andrews to whom the land in dispute was conveyed.
The court overruled these objections, and permitted the deed to be introduced in evidence as a link in the chain of plaintiff’s title.
Before passing upon the questions raised here, we will notice the claim of title of the respective parties, as they both claim title, if either have title, under the deed of Cyrus and Harriet Andrews, above noted. Chauncey Ives conveyed by deed of warranty to George E. Clow, Charles Clow, and Abram Clow. On December 5, 1875, and after the deed from him to Harriet N. Andrews, William P. Irwin acquired a tax title under tax deed from the Auditor General. William P. Irwin, Abram Clow, and Charles Clow died after the interests in said land had vested in each of them, and each leaving a last will and testament.
“When the wife joins with her husband in the conveyance of the fee of land of which she is, in whole or in part, the sole owner, she conveys all of her interest therein,*554 though she can only be held liable upon her covenants in such deed to the extent of her sole property conveyed.”
The tax deed to Mr. Irwin having been introduced in evidence, the plaintiff, for the purpose, of showing the title in herself, offered in evidence the files of the probate court of Saginaw county in the matter of the estate of William P. Irwin, Counsel for the defendant objected to the introduction of these proceedings, for the reasons that the will — an authenticated copy of which was admitted to probate in that court — had never been recorded, and that the petition for the probate of the will was not made by any one having an interest in the estate of William P. Irwin, and the petitioner was not authorized by law to make the same. How. Stat. §§ 5804-5807, provide as follows:
“Sec. 5804. No will shall be effectual to pass either real or personal estate unless it shall have been duly proved and allowed in the probate court as provided in this chapter, or on appeal, etc.
“Sec. 5805. All wills which shall have been duly proved and allowed in any other of the United States, or in any foreign country or state, according to the laws of such state or country, may be allowed, filed, and recorded in the probate court of any county in which the testator shall have real and personal estate on which such will may operate in the manner mentioned in the following sections.
“Sec. 5806. When a copy of such will, and the probate thereof, duly authenticated, shall be produced by the executor, or other person interested in such will, to the probate court, such court shall appoint a time and place of hearing,” etc.
“ Sec. 5807. If, on hearing the ease, it shall appear to the court that the instrument ought to be allowed in this State as the last will and testament of the deceased, the copy shall be filed and recorded, and the will shall*556 have the same force and effect as if it had been originally proved and allowed in the same court.”
It is claimed that under this statute the recording of the will was a necessary prerequisite to the conveyapce of any title to the lands in controversy. The mere fact that the will was not recorded would not be a fatal defect to the proceedings in the probate court. The will, it appears, was duly approved and allowed as provided by the statute, and the authenticated copy deposited and filed in that court. ■ The recording was a mere omission of clerical duty on the part of the court, and could be performed at any time, having relation back to the time of its allowance.
The petition for the probate of the will was made by Edwin N. Hubbell. It is in the usual form of petition for the probate and allowance of foreign wills, and in it the petitioner states and represents that—
. “He is acting in this State as agent of the estate of William P. Irwin, deceased, in looking after its interests and estate here, and that he is authorized by the representatives of said estate to make this petition in their behalf and interest.”
The learned counsel for defendant insist that Mr. Hub-bell was not authorized to make this petition, as he does not come within the provision of the statute above stated, •as he is not “the executor named in the will, nor is he a person interested in such will;” and that therefore the probate court had no jurisdiction to proceed to its allowance and approval. Counsel cite, in support of this proposition, Besancon v. Brownson, 39 Mich. 392. But in that case it does not appear that the petition set forth that the petitioner was authorized by the representatives of said estate to make the petition in their behalf, or that Brownson was acting for and in behalf of the estate in which the petition was made. In the present case it
It is said, however, that this construction must be given to the statute, for the reason that no one could appeal from a decision of the probate court in the matter of the allowance of the will except some party aggrieved by such decision, and that it could no;fc be said that the petitioner, Mr. Hubbell, would be aggrieved by whatever disposition the probate court might make of the case. But this is the language used in nearly all of the statutes allowing appeals from inferior courts. In appeals from justices’ courts to the circuit court the statute provides that “ any party to a judgment rendered by a justice of the peace, conceiving himself aggrieved thereby, may appeal,” etc. In these cases it has been the constant practice for the agent and attorneys of parties to make the requisite affidavit for the appeal, setting out in such affidavit that the party to the record feels aggrieved by the judgment or decree of the inferior court. And so it is in appeals in other cases or proceedings in probate court to the circuit court, the party aggrieved may appeal. The court
Several more questions are discussed orally and in the briefs of counsel for defendant, but only one of which do we deem it necessary to notice. It appears that .the lands in question were of little or no value, except for the pine timber growing thereon, being about 1,500,000 feet; and that the defendant, without the knowledge or consent of the plaintiff, or the person through whom she claims her undivided two-thirds interest, cut and carried away during the years 1885-86-87 all of the pine timber upon these lands, and removed the same to his mills in Ogemaw and Saginaw counties, and there manufactured the same into lumber. In the year 1888, plaintiff and her assignors sent their agent from the state of New York to this State to examine the land, and procure a purchaser for their two-thirds interest therein. Upon the examination of the land, it was found by the agent of the parties that it had been stripped of every foot of the timber. Plaintiff’s agent then called upon defendant, and demanded a settlement of the plaintiff’s claim. The defendant admitted that he had cut and removed all of the timber, and had manufactured the same into lumber, and that most of the lumber had been sold and disposed of by him.
Upon the close of the plaintiff’s proofs, defendant’s counsel made a motion to the court in the nature of a demurrer to the evidence, for the reason and upon the ground that the plaintiff had not shown any conversion of the property by the defendant, and that no demand
It does appear that demand was made upon defendant for the settlement of plaintiff’s claim before the bringing of this action; and from the record it appears that while the defendant admitted the cutting and removal of the timber by him, and the manufacture into lumber of the same, yet he refused to recognize the plaintiff's right, and refused to settle her demand, although at that time a large part of the lumber had been sold and disposed of.
It is contended, however, that no such conversion was shown of all the common property as entitled the plaintiff to maintain an action of trover. The argument of counsel for the defendant is that it is admitted by the pleadings that the defendant was a tenant in common with the plaintiff; that it is shown by the evidence that the property (the timber converted) was in danger of destruction by fire and other causes; that, no sufficient demand having been made, if the plaintiff had a right of action it was an equitable action for an accounting, and that the defendant should not be charged with wrong
The fact that at the time of the commencement of the suit defendant yet had in his possession some of the lumber manufactured from logs taken from this land, and yet undisposed of, would not prevent the plaintiff from bringing and maintaining trover. Aldine Manfg. Co. v. Barnard, 84 Mich. 632. Under this view of the case, the court was not in error in its instructions to the jury upon the question of damagés.
The judgment must be affirmed, with costs.
The court charged that, if the timber was cut and removed by defendant in the ■ good-faith belief that he was the sole owner of the land in controversy, the measure of damages would be two-thirds of the stumpage value of such timber; but if not, under the circumstances of the case, plaintiff could recover two-thirds of the value of such timber at the place of conversion into lumber.