CUNNINGHAM et al. v. METROPOLITAN LUMBER CO., 110 F. 332

CLARK, District Judge, after making the foregoing statement of the case, delivered the opinion of the court. The contention of plaintiffs in error is that the proviso to the act of congress of March 2, 1889, confirming the rights of homestead claimants, as construed by the supreme court of the United States in Iron Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct. 103, 39 L.

Ed. 183, had the effect to change the inchoate homestead claim recognized by the act into an absolute title, so that thereafter homestead claimants in the situation of Cunningham stood clothed with full title without the necessity of the payment of any sum to the United States, or. otherwise complying with such. regulations and conditions as would have been required by law in the absence of the confirmatory grant contained in this act of congress.

Under such circumstances it is insisted that Cunningham, being vested with full title, transferred to the Bay Shore Lumber Company, by his contract with it, a valid title to the timber cut and removed from the quarter

section in dispute, and that, while the consent decree entered in the United States circuit court in the suit in equity is conclusive against Cunningham, such decree did not defeat or affect the title to this timber previously acquired by said contract. Indeed, the defense in the court below, and the right to judgment on the replevin bond against the plaintiffs for the value of the timber, are distinctly rested upon the soundness of the proposition that the act of congress vested in Cunningham by confirmation a complete and valid legal title. In this view we are unable to concur.

Such a construction of the act would not be just to the United States, and it was certainly more than justice to a homestead claimant in Cunningham’s situation required. It'was- the intention of congress to recognize such equitable considerations as existed in favor of those who had undertaken in good faith to acquire a homestead, and to comply with the general law and regulations of the land office in relation to such a claim, and enable them to go forward in the ordinary way, and perfect their right by compliance with the law. Any other

interpretation would, as we have said, lead to manifestly unjust results, and such a construction is never to be adopted in the absence of words which clearly imply and necessarily require such a result.

It is now well established, and not controverted, that, if Cunningham’s position was that of a homestead claimant in possession of an inchoate right, not yet 'perfected so as to entitle him to a patent, he w.as without right or authority, until he perfected his claim to cut timber from the land, except so far as was necessary for cultivation of .the land, and that by cutting and removing timber under such circumstances neither Cunningham nor a purchaser from him could acquire any right or title to timber so cut as against the United Státes. Railroad Co. v. Lewis, 162 U. S. 366, 16 Sup. Ct. 831, 40 L. Ed. 1002; U.

S. v. Mock, 149 U. S. 277, 13 Sup. Ct. 848, 37 L. Ed. 732; Stone v. U. S., 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127; Shiver v. U. S., 159 U. S. 491, 16 Sup. Ct. 54, 40 L. Ed. 231. Such, also, hás been the uniform ruling in many adjudged cases on the circuit. As the lands had been forfeited to the United States by the act of March 2, 1889, subject only to the homestead claim of Cunningham, and others in like situation, it results from the views we have expressed that the title to the timber on the quarter

section in controversy was in the United States at the time of the contract between Cunningham and the Bay Shore Lumber Company; and when the timber was cut and removed a right of action existed in favor of .the United States against Cunningham and his purchaser, the Bay Shore Lumber Company, for the value of all timber cut and removed; and this'right, by the compromise decree in the equity suit, was, in effect, vested in the plaintiff below, now the defendant in error; and, if the court below possessed power and authority to render such judgment as would meet the ends of justice, it is quite clear that the judgment below was right.

The court’s instruction to the jury to return a verdict in favor of the defendants below for nominal damages, and the judgment pronounced upon the verdict for such damages and the costs, were rulings in favor of the defendants to which they could not and did not object, their contention being that they were entitled to demand judgment for the value of the property taken under the' writ, and delivered to and disposed of by the defendant in error. The principles governing the action of replevin as known to the common law have been modified by statutory enactments in Michigan.

Section 10,675 of the Compiled Laws of Michigan of 1897 reads as follows: “When either of the parties to an action of replevin at the time of the commencement of the suit shall have only a lien upon, or special property, or part ownership in the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages in all cases arising under this chapter; and the finding of the jury, or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall he just between the parties.” It is not deemed necessary for the purposes of this case to set out other provisions in relation to the same subject.

In Darling v. Tegler, 30 Mich. 54, the action was in replevin, and the plaintiff failed to maintain the suit for want of demand of possession before the institution of the suit, but it was established by the undisputed evidence that the defendant, while in lawful possession, was without any valuable interest in the property, and that the plaintiff was the true owner thereof.

The supreme court of Michigan, on error, construing the above and other sections of the Compiled Laws of Michigan, held that, as the uncontroverted proof showed that the defendant was a possessor without any valuable interest in the property, he could recover no damages beyond his special interest, and, as the proof stood, merely nominal damages. Mr.

Justice Campbell, speaking for the court, and referring to statutes regulating the action of replevin, observed that these statutes “limit the judgment to the just rights of the parties.” “For the reason,” continued the court, “that there is no foundation in the proofs or record for any damages, so much of the judgment as gives damages to defendant must be reversed, with costs of this court, and as to all other matters the judgment must be affirmed.” See, to the same effect, the late case of Joseph v. Braudy, 112 Mich. 579, 70 N. W. 1101.

Now, we do not understand that counsel differ as to the effect of this legislation in regard to the action of replevin.

On the contrary, it is conceded, or, if not, is too evident to be denied, that the court, in giving judgment for either party in the action, is not limited to a judgment for the recovery of the property in specie, or damages for its value, but may, in the very language of the statute, “render such judgment as shall be just between the parties.” It was suggested, rather than argued, that the Bay Shore Lumber Company was equitably entitled to such judgment as would reimburse it for the amount actually paid to Cunningham under its contract with him for the purchase of the timber.

It is not to be doubted that when that contract was entered into it was well understood that Cunningham’s title was in dispute. The right to this quarter

section of land was then, and had previously ljeen, in an atmosphere of controversy; and the contract, as we have seen, contained a stipulation designed to protect the company, as between itself and Cunningham, against payment beyond a certain sum until any question as to his title should be removed; and within 15 days after the execution of the contract that company was distinctly .notified' by letter of the suit brought in equity by the United States, and ‘that the question of title to this parcel of land was involved in that case.

There is no doubt that the validity of Cunningham’s title, and his right to sell and transfer timber on the land to the Bay Shore Lumber Company, were distinctly staked upon the proposition, so ably urged in this court, that the act of congress of May 2, 1889, had the effect to clothe Cunningham with a complete legal title to this quarter

section of land. The position of the Bay Shore Lumber Company is not different from that of any other person or party acting under a mistaken view of the law, but with full knowledge of all the facts. It is certain that there is, in the legal sense, no equitable consideration in such a situation as this. Judge EVANS, while entirely agreeing with the other views expressed, is of opinion that

section 10,675 of the Michigan Statutes and the justice of the case require that, instead of directing a verdict of six cents, the circuit court should have charged the jury to find for the Menominee Bay Shore Lumber Company the amount it had expended under the contract with Cunningham in cutting the timber and putting it on the water, prior to notice of the consent decree; but the majority of the court agree that the result reached in the court below was substantially “just between the parties.” Judgment affirmed.