35 Minn. 429 | Minn. | 1886
This case is before us upon a bill of exceptions. The action is upon .a note or due-bill of the defendant, given to the plaintiff for the purchase price of a quantity of logs sold by plaintiff to the defendant. The defence rests upon an alleged want of title in the plaintiff to the greater part of the logs sold. The sole question [presented for determination relates to the effect under the statute, as respects the title of the plaintiff, of the fact that the log-marks had not been recorded in the office of the surveyor general at the time [when the sale was made to the defendant. It is stipulated that, “if
The statute referred to is the latter part of Gen. St. 1878, c. 32, § 27, which is as follows: “Any logs or timber cut in this state, or coming into this state in the First district, at any point on the lake or river St. Croix above the city of Stillwater, the marks of which are not recorded in the district in which they were cut, or into which they may come, and all logs or timber not bearing any distinctive mark, shall not, in favor of the person who has cut the same, or who claims to be the owner thereof, be recognized, deemed, or held, in any of the courts of this state, to be the property of any such person, for any purpose whatever, in any action or proceeding.” The respondent contends that this statute is unconstitutional. But it is unnecessary for the decision of this case for us to consider whether, as applied to any possible circumstances falling within the purpose and scope of the statute, it would be unconstitutional.
In Plummer v. Mold, 14 Minn. 403, (532,) it was held that the statute was not intended to apply to logs on land, and in the actual possession of the owner. It was considered that the statute was directed to purposes connected with the floating or driving of logs upon waters which were a common highway. Adopting that decision, little remains to be considered in this case. The mere fact that the log-mark was unrecorded, was insufficient to bring the case within the operation of this statute, or to establish affirmatively a defect in the title acquired by the sale.
Under some circumstances — such, for instance, as those existing! in the case of Plummer v. Mold, supra—the statute would be inapplicable, and the owner selling his logs would confer a good title. If the circumstances of the present case were such as to bring it within the operation of the statute, so that the title of the plaintiff, or his power to dispose of the property, was in any way affected, it was incumbent upon the defendant to show such circumstances; for he held the affirmative of this issue as to the want of consideration, and thq record here should show that such a case was presented.
Order affirmed.