Holmes v. Loud, 149 Mich. 410

149 Mich. 410 | Mich. | 1907

McAlvay, C. J.

Plaintiffs sued defendants in the circuit court of Iosco county to recover damages for injury to the freehold of certain lands asserted to be owned by them, such injury having been caused by defendants wrongfully entering upon said lands and cutting down and carrying away the timber standing thereon. Plaintiffs declared in trespass upon section 11204, 3 Comp. Laws, which provides for the recovery of treble damages. By stipulation the case was transferred to and tried in Alpena county. A verdict was rendered in favor of plaintiffs for $3,461.60. Certain special questions were answered by the jury, by which it was determined that a judgment for treble damages could not be entered, and judgment was duly entered for the amount above given, assessed by the jury.

Upon the- errors assigned by defendants, the first proposition discussed is that plaintiffs could not maintain this action, for the reason that at the time the alleged trespass .and injury were committed they had no such title to the premises, or right under the assignment of right of action, as would entitle them to a recovery. . .

The claim of plaintiffs to the title of these lands was the original title from the United States through regular transfer to Jonathan L. Clutton, and by conveyances from Clutton to Hannah Vaughn, February 9, 1899; from Hannah Vaughn to Fred P. Obenauer October 22, 1902; from defendant H. N. Loud to Obenauer'February 10, 1903; from Obenauer and wife to plaintiffs November 30, 1903. Plaintiffs, also had a bill of sale from Obenauer dated October 3, 1903 (claimed by Obenauer in his testimony this date was an error and should be October 33), of all standing timber on said lands removed prior to April 1, 1906, and also an assignment of all right of action to recover for the timber cut and removed by defendants, and for all damage to the freehold committed by them, dated December 16, 1903.

Defendants, for their right to enter and take timber from the land, relied solely upon a purchase from the State, represented by a tax deed, claiming that due notice had been served upon Jonathan L. Clutton, the holder of the last recorded title, on July 35,1903, and that the statutory six months in which he could redeem expired January 35, 1903. The record shows that the sheriff’s return of such service was duly filed August 33, 1903. The jury, in answer to a special question, found that defendants cut the timber between January 35, 1903, and February 10, 1903. '

Plaintiffs in their declaration set up the assignment of the right of action relied upon. This suit was commenced February 1, 1904. The court held that there was no evidence in the case disputing the proofs of plaintiffs that Obenauer acquired the original title from Hannah Vaughn, the grantee of Clutton, October 33, 1903. The record supports such holding. None of the conveyances to plaintiffs were claimed by them to have been recorded, except the deed from Clutton to Hannah Vaughn, which, on May 13, 1900, at 6 o’clock p. m., was received and entered for record by the register of deeds for Montmorency county, and such receipt indorsed upon the instrument, but the same was not recorded in the books.

To the objection of defendants that, as the law then was, Clutton alone could redeem, the trial judge properly held that by accepting from Obenauer, who in fact was the holder of the original title at the time, the amount of the tax, together with the 100 per cent, and costs, on February 9, 1903, and deeding the land to him on the next day, defendants had waived all right to raise any question as to the regularity of the redemption, and he further held that the time of redemption did not expire until six months after the sheriff’s return of service of the statutory notice had been filed. This, was in accord with the holding of this court. Pike v. Richardson, 136 Mich. 414.

The assignment of the right of action is not attacked as to its form or substance, nor is it contended that a right of action for injury to one’s estate is not assignable; but, that this action is to recover damages which are punitory or exemplary, and the right of action would not pass to the personal representatives of a deceased owner, and is therefore not assignable. We do not agree with the defendants. The injury, if any, was to the estate and not to the person of the owner, and would pass to the personal representatives of a deceased owner. The cause of action was assignable. Gates v. Comstock, 107 Mich. 546, citing Final v. Backus, 18 Mich. 218, 231, and Grant v. Smith, 26 Mich. 201.

Referring to the dates of service of notice and the filing of the return of the sheriff, it appears that the time of redemption would expire February 23, not January 25, 1903. It also appears that defendants entered upon the land January 26, and cut and removed timber until February 10, when they deeded to Obenauer, who had paid the amount required by law to redeem. Defendants, urge that, under the law, section 142 (1 Comp. Laws, § 3961), they were entitled to possession of the land upon the expiration of six months after the service of the notice.

This court has construed sections 140 and 141 of the general tax law (1 Comp. Laws, §§ 3959, 3960), holding.:

“ That these two sections should be construed together, and that, so construed, the time for redemption is coterminous with the period during which the holder of the tax title may not take action^ * * * And that, when personal service is referred to in section 141, a service completed by filing a return is intended.” Pike v. Richardson, 136 Mich. 414.

The provisions of these two sections are set forth at length in the opinion in that case. Briefly quoting from them, we find that section 140 provides:

“No writ of assistance * * * shall be issued until six months after there shall have been filed with the county clerk of the county where the land is situated a return by the sheriff of said county, showing that he has made personal service, or until substituted service * * * has been made,” etc.

Section 141 provides that the person who may redeem — ■

“ Shall be entitled to receive from the person so claiming under and by virtue of such tax deed, at any time within six months after the personal service of such notice, or the date of mailing said notice by registered letter, * * * a reconveyance of such interest in such lands,” etc.

Section 142, relied upon by defendants to support their entry upon the land, provides:

“No purchaser under any tax sale hereafter made, * * * shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest as provided for in the preceding sections.”

By its terms the construction of this section depends upon the construction already given to the preceding sections in Pike v. Richardson, supra.

Such construction gives harmony to the operation of the provisions of all of these sections, and gives expression to the clear legislative intent that the periods of six months mentioned in each of them should be coterminous. Under this construction defendants were trespassers. Corrigan v. Hinkley, 125 Mich. 125; Huron Land Co. v. Robarge, 128 Mich. 686; Adkin v. Pillen, 136 Mich. 682; Griffin v. Kennedy, 148 Mich. 583. The court therefore was not in error in holding that plaintiffs were entitled to recover and that the only question for the jury was to find the amount of the damages sustained by plaintiffs.

The questions raised upon errors assigned upon the admission or exclusion of evidence bearing upon the question of damages, in view of the fact that a new trial will be granted, need not be discussed. If error in this regard has occurred (which we do not concede) there is no probability that it will be repeated upon a new trial.

During the pendency of this case before this court, application was made by defendants to amend the bill of exceptions in order to show the prejudicial argument of plaintiffs’ counsel on the trial of the case. The court made an order that the argument be printed as part of the bill of exceptions. The portions objected and excepted to cover too much space to be repeated. During the course of the trial the court cautioned plaintiffs’ counsel as to making improper remarks, saying that he would let attorneys of experience take the consequences of such conduct, and that he would not attempt to cure such rank errors and save verdicts. Counsel did not profit by this caution, but in the argument to the jury went to an extreme, in the language used, which this court in its decisions has said cannot and will not be tolerated. This argument seems to have been purposely made to improperly influence the jury. The wealth, character, and influence of defendants were commented upon. Witnesses were charged as being under defendants’ influence and not daring to testify against them. Witnesses were charged with holding appointments secured by defendants and therefore their testimony was unreliable. Defendants and their employes were charged with coercing a witness to do certain things with a political job to win. Many other statements were made of like character, grossly prejudicial to defendants. It is unnecessary to cite the cases where this court has held that such arguments constitute reversible error. All of these comments were uncalled for, and entirely outside of any evidence in the case.

The case is reversed on account of such prejudicial arguments, and a new trial is granted.

Carpenter, Grant, Blair, and Moore, JJ., concurred.