Hoffman v. H. M. Loud & Sons Lumber Co.

100 N.W. 1010, 138 Mich. 5, 1904 Mich. LEXIS 771

• Court: Michigan Supreme Court
• Decided: October 18, 1904
• Docket: Docket No. 30; Docket No. 2
• Status: Published

Opinions

Moore, C. J..

This case has been here before. It is reported in 111 Mich. 156. Upon the last trial the plaintiff recovered a judgment for $2,222. The defendants have brought the case here by writ of error. The suit was commenced February 8, 1892. It is trover brought for the conversion of logs which defendants bought from one Monroe, who, plaintiff claims, cut the logs from timber on land belonging to him. It is plaintiff’s claim that William H. Rix and Coolidge M. Comins obtained from the United States a patent of the land in July, 1872;. that those men were partners engaged in lumbering; that their partnership ended in the spring of 1872; that it was then agreed verbally that Comins should have the timber; that he cut and removed all that was valuable during the fall and winter of 1872 and 1873, when Rix and Comins abandoned the land, not even paying the taxes on it. The taxes were not paid for the years 1872 to 1881, inclusive, but for the taxes of each of these years the land was sold to the State. In 1882 the plaintiff bought the title of the State, obtaining a tax deed from the auditor general for the taxes of those years. In 1884 the plaintiff obtained another tax deed from the auditor general. January 20, 1886, William H. Rix deeded by quitclaim deed his interest in the land to Frank Hoffman, who conveyed the interest to the plaintiff. It is the claim of the plaintiff that in the winter of 1885 and 1886 John Monroe cut the timber into logs, and sold them to defendants, delivering them at the Au Sable river.

The defense, as stated by counsel, is:

1. That plaintiff’s tax titles were void.

2. That Monroe cut the timber and sold it to the said trustees under a license from the original owners, Rix and Comins, which license inured to the benefit of defendants.

3. The statute of limitations.

The first assignment of error argued in the brief relates to the testimony of Weaver in relation to what he understood about a controversy between Monroe and Hoffman, it being the claim that this testimony was hearsay. The question put to the witness did not call for hearsay testimony, but was a proper question. His answer was not responsive. No motion was made to strike it out because not responsive, or because it was hearsay. This being the situation, we'cannot reverse the cause because of the answer. See People v. Howard, 73 Mich. 12; Baumier v. Antiau, 79 Mich. 516; Mulliken v. City of Corunna, 110 Mich. 212; Weiser v. Welch, 112 Mich. 134.

Error is assigned upon the examination of the witness Annis. The record does not disclose that objection was made to the questions that the court ruled upon, or that exceptions were taken.

Error is assigned to the reading in evidence of the cross-examination of James Burton and the testimony of George A. Loud. Previous to the trial in St. Clair county a stipulation had been made “that any testimony heretofore taken upon the trials in Iosco county, and reduced to writing by the official stenographer” might be read in evidence. We think the stipulation broad enough to cover-what was done.

There are other assignments of error which relate to the admission of oral testimony. We have examined them, but do not deem it necessary to discuss them. One of the most important questions in the case is, Did the judge err in holding that the tax deeds held by plaintiff were prima facie evidence of title ? The deeds are dated October 19, 1882. It is claimed that because of the amendment made to the tax law by Act No. 7, Pub. Acts 1882, the deeds were not prima facie evidence of title. It should not be forgotten that the land was sold to the State at least four times before the passage of Act No. 7. Its title under each of its sales when it was obtained was prima facie valid. We do not think the effect of the “graduation act ” of 1881 (Pub. Acts 1881, Act No. 229), as amended by Act No. 7, Pub. Acts 1882, resulted in doing away with the prima facie effect of these deeds. See Tillotson v. Saginaw Circuit Judge, 97 Mich. 585; Harding v. Auditor General, 136 Mich. 358.

The next important question is, Did the court err in holding that defendant could not attack the tax title of plaintiff ?

Section 1166, 1 How. Stat. (Laws 1869, Act No. 169, § 164), provides:

“No person shall be permitted to question the title acquired by such auditor general’s deed, without proving that he, or the person through whom he claims title, had title to the land at the time of the sale thereof for nonpayment of taxes, or subsequently, which title was acquired from the United States or from this State.”

It is said plaintiff cannot invoke this provision of law because he did not purchase until seven months after it had been repealed by Act No. 11, Pub. Acts 1882. We have already said the State got a title long before Act No. 11, Pub. Acts 1882, was passed. If this was not a protection to the plaintiff, does the repealing clause have the effect for which defendant contends ? It reads'.

“The same is hereby repealed so far as relates to future assessment of taxes and the steps to collect the same. They remain in force only for the completion of all proceedings heretofore begun for the collection of taxes, except as otherwise provided by law, and for the protection of all rights gained thereunder and conveyance of land heretofore sold, or that may hereafter be sold, and all actions commenced and now pending under the provisions thereof.”

We do not think this had the effect to do away with the provision relating to who might attack the validity of the tax title. See Tillotson v. Saginaw Circuit Judge, 97 Mich. 585.

Counsel says, even though the section is in full force when the title to the land is in issue, it does not apply where the title to the timber taken from the land is in issue, and therefore defendant should have been permitted to attack these titles. If counsel is right in this contention, a person owning land chiefly valuable for timber would have a title unassailable by one claiming title, but, if the same person became a trespasser and remover of the timber, he could attack the title. A statement of the proposition is its own answer.

There are other assignments of error, which we have examined, but the only further question calling for discussion relates to the rate of interest. The jury computed it at 6 per cent. Counsel says that because of the provisions found in Act No. 207, Pub. Acts 1899, which reduces the legal rate of interest to 5 per cent., it should have been figured at that rate. The logs were converted in the winter of 1885 and 1886. The verdict was rendered in April, 1903. The legal rate was 7 per cent, until October, 1891, when it became 6 per cent., and so remained until September, 1899, when it became 5 per cent. If the computation had been made at these rates during these several periods of time, the amount would have been larger than the verdict which was rendered, so that defendant was not harmed. See 16 Am. & Eng. Enc. Law (2d Ed.), p. 1060.

Judgment is affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred. Grant, J., did not sit.