28 Mich. 3 | Mich. | 1873
The controversy in this case originated in conflicting claims to certain timber cut on the south half of the south east quarter of section 19, and the south west quarter of section 20, in township 4 north, of range 13 west, in this state. The defendant in error recovered in replevin that portion of it consisting of pine, and the plaintiffs in error complain of rulings at the trial.
The bill of exceptions indicates numerous questions, but a portion seem to have been abandoned, and some others are not regularly raised, or are so clearly untenable as not to justify discussion. I gather from the record and the brief of plaintiffs in error that there are but three or four points which are worthy of examination.
The defendant in error, Robert M. Moore, being owner of the land on which the timber was afterwards ent, conveyed it to one William Bradley by warranty deed dated,
The result of these dispositions, as indicated by the instruments, was that Kinnison and Hinton were equal tenants in common of the land, blit that, as to the standing pine and whitewood, Kinnison, Hinton and Bowen were owners in common in the proportion of an undivided half in the latter, and an undivided quarter in each of the two former. The timber seems to have been cut by these parties or by their authority, and the plaintiffs in error claim as purchasers from and under them, and so trace their title back to the deed from defendant in error to Bradley in 1866.
There is no dispute about these respective conveyances of the land, aside from the interest in the timber. It appears, however, that on the day of the acknowledgment of the deed from the defendant in error to Bradley, that is the 21st of November, 1866, the latter gave back to Moore, the defendant in error, an instrument in writing which, besides covering these and other parcels of land, was of the tenor following: “Whereas I have this day purchased of Bobert M. Moore of Allegan county, the following descriptions of land, to wit:” [The description of these and other lands then follow.] “This is to certify that all the sawing
William Bradley.”
The court below held that this instrument was of force to clothe defendant in error with the right to the timber as against Bradley and all others claiming from him with notice, subject to the qualification as to time. The plaintiffs in error maintain that it was of no force except as a bare revocable license to remove the timber, and that the subsequent unqualified grant from Bradley to Kinnison actually revoked it.
There was nothing to raise an inference that the deed from Moore to Bradley was delivered later or earlier than the time of its acknowledgment, and we must therefore assume that it was delivered at that time. — Blanchard v. Tyler, 12 Mich., 339 ; Dresel v. Jordan, 104 Mass., 407, 417. And as this paper given back by Bradley to Moore was of that date, referred to the deed as given on that day, was connected with the deed in sense, and as there was no evidence to separate the taking effect of the two instruments, they should be regarded as parts of a single transaction.— Kittle v. VanDyck, 1 Sand. Ch. R., 76 ; Cunningham v. Knight, 1 Barb. S. C., 899. And to ascertain the sense and meaning of the parties they should be read and construed together. — Bronson v. Green, Walk. Ch. R., 56; Norris v. Showerman, ib., 206; Norris v. Hill, 1 Mich., 202; Dudgeon v. Haggart, 17 Mich., 275; Rawson v. Lampman, 1 Seld., 456 ; Clap v. Draper, 4 Mass., 266 ; Rogers v. Smith, 47 N. Y., 324; Stocking v. Fairchild, 5 Pick., 181; Makepeace v. Harvard College, 10 Pick., 298; Carpenter v. Snelling, 97 Mass., 452; Hills v. Miller, 3 Paige, 254; Cow. & H. Notes, 1420.
It is not a matter of any vital importance that the parties may not have looked upon the disposition they were
This idea is unequivocally expressed in the writing given at the same time, and intended to carry out one branch of the identical arrangement of which another branch was to be carried out by the deed. Manifestly something more was designed than a bare permission to enter in order to take timber. It was expressly declared that Moore should have property in the timber at the very time. He was then constituted “ sole owner,” or secured in the “ sole ownership.” The parties cautiously attended to this consideration as their first and leading idea in respect to this feature of the' transaction. It appears to have been first in their minds and as something distinct from a right to enter, and is provided for in explicit terms. A right to enter is expressed in a subsequent clause, and is mentioned as a matter of “ agreement,” and as if it were a matter of second
The point suggested in the’ brief, that the writing only applied to severed timber, is not well taken. If any such limitation had been intended, it is reasonable to suppose that some expression would have been used to indicate it. But no such expression appears. On the contrary, the language is broad and general, and well adapted to denote standing timber. Besides, there is no evidence that any part of the sawing pine and whitewood was severed, and yet the writing called for “all” the sawing pine and whitewood then upon the land. If we defer to probabilities it is very improbable that the whole had been severed; and unless it had been, the word “all” must have been used, according to the construction contended for, to denote a part, and not all. This is hardly reasonable.
Horace D. Moore testified to a conversation in December, 1867, with Kinnison aud Hinton in relation to Robert M. Moore’s claim to the timber. It seems that this witness had been negotiating with Kinnison and Hinton for logs from these lands, and he stated that he asked Kinnison' why he did not tell him about the reservation of the timber, as it would have- ended their talk about the logs; that Hinton replied that that would make no difference, as they had got a deed of the land; that Kinnison then
•The assignment of error founded upon the supposed rejection of a question to Horace D. Moore is unsupported by the record. No such question appears to have been put to that witness. A similar question was put to another witness and rejected, but no error is assigned on this ruling.
The remaining objection to be noticed is that the court erred in charging the jury that the detention of the logs was not disputed. For the point is reduced to this by the assignment of error. Now what is the meaning of this word “detention” in reference to replevin? In Clements v. Flight, 16 M. & W., 42, which was an action of detinue, the word “detain,” as used in that form of action, was held to mean that the defendant withheld the goods and prevented the plaintiff from having the possession of them. Nothing more, I am persuaded, would be needed to show a detention to satisfy our replevin laws.
What was the case here ? William E. Sawyer, a witness for the plaintiffs in error, testified in their behalf as follows : “ I sold the logs in question here, that were replev
The defendant in error testified as follows: “ I had a conversation with Mr. Stockbridge before this suit was brought, in regard to these logs, at his store, and with Mr. Johnson, on the road going towards Diamond Springs. Johnson spoke to me about these logs, and told me I had better go and replevy them, for he said he would not give them up unless I replevied them. He said they had made a trade with Sawyer. I had notified Mr. Stockbridge previous to this about owning the timber, and he bought it.”
The record contains other matters importing that the plaintiffs in error asserted a right of property and of possession adverse to the defendant in error and inconsistent with his claim, and the record discloses nothing different. Indeed the case was tried on both sides upon the theory that the plaintiffs in error insisted upon their title and right of possession as valid and exclusive, and that they were entitled to a return, or judgment for the full value. In point of fact they actually recovered for the whitewood which was involved in the same controversy. In view of the undisputed facts, and considering the course of the trial, there was no room for saying that the plaintiffs in error did not withhold the logs and prevent the defendant in error from having the possession of them, and it was eminently proper for the court to so inform the jury and to that extent simplify their investigation.
This disposes of every material point raised by the record and noticed in the brief of plaintiffs in error, and as no error is shown the judgment should be affirmed, with costs.