and extending from 1871 to 1887, which payments were indorsed upon the note accompanying the mortgage. Defendant's grantor died in 1887, at the age of 100. His son, William G. Knight had attended to his business for about ten years previous to his death. The amount then due upon the mortgage was about $6,000, which was greatly in excess of the value of the land. The deceased left no debts, and no minor heirs. It was agreed between the heirs that William G. and Godfrey E. Knight should attend to the settlement and division of the estate without the expense of administration. Defendant was financially irresponsible, and all that could be obtained for the debt was the land. Defendant, knowing that he could not pay the mortgage, offered at first to raise $2,000, if they would take that in discharge of the debt and mortgage. They agreed to accept this, and gave him time to raise the money, but he could not do it. They then proposed to take the land for the mortgage debt. At the same time they proposed to resell it to him for $2,000. Defendant and his wife executed a deed to the two Knights, and they executed to him the contract in question. The note and mortgage were surrendered. Defendant's theory appears to have been that the deed to the Knights was merely for their accommodation. He testified as follows: "Q. Why didn't you raise the money within that time to pay this debt? "A. I wasn't to raise any money; that wasn't the bargain. "Q. You were to live there indefinitely, were you? "A. No; I was to pay it. "Q. How were you to pay it if you wasn't to pay any money? "A. Well, I would pay for it after he had deeded it back to me. "Q. Was it to be deeded to you before you had the money to pay the debt? "A. That was the way they agreed to; they agreed to it, and Godfrey was to write it in himself." The court instructed the jury that their verdict depended upon the nature of the transaction between the parties; that if they found that the defendant made an absolute sale of the premises to the Knights in consideration of the giving up of the mortgage, and that they then resold the premises to the defendant at an agreed price of $2,000, and that the contract was executed in pursuance of, and as evidence of, the agreement of sale and purchase, their verdict should be for plaintiff; but if, on the other hand, they found that the arrangement was that, to save the expense of a foreclosure of the Godfrey Knight mortgage, and to enable the heirs of Godfrey Knight to settle their father's estate, he agreed to deed the property to the Knights, and take the contract of sale, such contract would stand in place of the mortgage, and their verdict should be for the defendant. The defendant requested the court to instruct the jury to find a verdict for him, on the ground that the contract was a mortgage. His counsel rely upon Batty v. Snook, 5 Mich. 231; Enos v. Sutherland, 11 Id. 538; and Ferris v. Wilcox, 51 Id. 105. Neither of these cases controls the present one. An examination of them will readily disclose the difference in the facts. The evidence on the part of each of the parties tended to sustain the claim made. The question was one of fact for the jury, and their finding against the defendant is conclusive. The defendant himself valued the property at about half the amount of the mortgage. The two cases first above cited were in equity, where this Court has jurisdiction to determine the facts, while in the last case there was no conflict in regard to the facts. The court properly rejected evidence by the defendant himself of payments claimed to have been made to Godfrey Knight in his life-time, because the facts to which he sought to testify were equally within the knowledge of the deceased, and were therefore incompetent under the statute. We find no error upon the record, and the judgment is affirmed. The other Justices concurred. OSCAR A. WILSON V. JOHN M. HOFFMAN. [See 54 Mich. 246; 70 Id. 552.] Trover-When maintainable-Ejectment-Rents and profits-Res judicata. 1. A plaintiff in ejectment, after the title to the land has been determined in his favor, may maintain an action of trover for logs cut by the defendant from standing timber and removed from the land during the pendency of the suit, and while in possession of the land under a bona fide claim of title adverse to the plaintiff. 2. An action of trover brought by a plaintiff in ejectment to recover for logs cut and removed from the land by the defendant prior to the determination of the title in favor of the plaintiff is not barred by a judgment for damages for the rental value of the land, recovered by the plaintiff on a suggestion of a claim for damages for rents and profits, filed and prosecuted under How. Stat. §§ 7829-7835.1 'How. Stat. SS 7829-7835, provide: a-For the recovery by the plaintiff in ejectment, after a judgment in his favor (meaning the final judgment in the cause, as held in Williams v. Circuit Judge, 79 Mich. 549), of "damages for rents and profits of the premises recovered," if, within one year after the docketing of the judgment, he files a suggestion of his claim against the defendants liable for such rents and profits, which may be substantially in the form of a declaration in assumpsit for use and occupation. On filing such suggestion a rule to plead is entered, and the same proceedings thereafter had as in the case of the commencement of a suit by declaration. b-The defendant may plead to such suggestion, and give notice of any special matters in bar of plaintiff's claim, except such as Error to St. Clair. (Canfield, J.) Submitted on briefs July 1, 1892. Decided July 28, 1892. Trover. Plaintiff brings error. Reversed. The facts are stated in the opinion. Frank Whipple, for appellant, contended: 1. Under the following decisions, the verdict and judgment should be set aside: Grant v. Smith, 26 Mich. 201; Beeman v. Black, 49 Id. 598; Ribble v. Lawrence, 51 Id. 569; Clow v. Plummer, 85 Id. 550; Shepard v. Pettit, 30 Minn. 119. Avery Bros. & Walsh, for defendant, contended: 1. Trover will not lie for the cutting and removing of standing timber from premises in possession of a defendant in ejectment under claim of right; citing 1 Chitty, Pl. 151; Brown v. Caldwell, 10 Serg. & R. 114 (approved in Wright v. Guier, 9 Watts, 174); Mather v. Church, 3 Serg. & R. 509; Brothers v. Hurdle, 10 Ired. 490; Halleck v. Mixer, 16 Cal. 579; Stockwell v. Phelps, 34 N. Y. 364, 365; Snyder v. Vaux, 2 Rawle, 423. 2. Plaintiff was entitled to recover, if at all, in his action for mesne profits, not only the rental value of the premises, but also the profits, as indicated by How. Stat. §§ 7829-7831, accruing to the defendant while in the adverse possession of the were or might have been controverted in the main suit, in the same manner as in personal actions, and may show on the trial, in bar or mitigation of the damages claimed, a recovery by the defendant, or by any other person, of the same premises, or of part thereof, subsequent to the verdict in the main action. c-If an issue of fact is joined on the suggestion, it is to be tried as in other cases, and, if found for the plaintiff, the same jury assesses his damages, to the amount of the mesne profits received by the defendant since he entered into the possession of the premises, subject to the restrictions that the defendant may set off permanent improvements made on the premises to the amount of plaintiff's claim, and, in estimating plaintiff's damages, the value of the use by the defendant of any improvements made by him, or purchased by him in good faith from any person from whom he derives color of title thereto, shall not be allowed to the plaintiff. d-On the trial of the issue the plaintiff must establish, and the defendant may controvert, the time when the defendant entered into the possession of the premises, the time during which he enjoyed the mesne profits thereof, and the value of such profits, but the record of the recovery in the main action shall not be evidence of such time. premises; citing Murphy v. Guion, 2 Hayw. 162; Bacon v. Sheppard, 6 Hals. 197, Cunningham v. Morris, 19 Ga. 583; and when he saw fit to confine himself solely to the recovery of the rental value, he estopped himself from asserting any other claim to the profits. MCGRATH, J. Plaintiff recovered in ejectment against defendant after an adjudication by this Court (see 70 Mich. 552), and in April, 1889, filed a suggestion of damages in the circuit court. The bill of particulars of his claim in that proceeding contained the following items: For rent of premises 6 years, at $50 per year............. $300 00 538 70 For 77 cords of bolts, at $10................ 770 00 On the 8th of October, 1889, the trial resulted in a verdict for plaintiff for $72.1 Before filing the suggestion for rents and profits as above, plaintiff commenced this action of trover by summons, filing his declaration July 20, 1889, seeking "to recover the value of 500 pine trees, 100 oak trees, 100 hemlock trees, 500 pine logs, 100 oak logs, 100 hemlock logs, 100,000 feet of pine logs, and 100 cords of pine bolts, all of the value of five thousand dollars." Defendant pleaded the general issue, with notice of the pendency of the other suit involving the same matters. After the trial of the proceeding for assessment of damages, upon leave granted, defendant filed an additional notice, setting up the judgment in the other suit as a bar to this action. The learned circuit judge directed a verdict for defendant. Defendant's contention is: 1. That trover will not lie for the cutting and removing of standing timber from premises while in possession of a defendant in ejectment under claim of right. The recovery was confined to rent, the remainder of plaintiff's claim as set forth in his bill of particulars being withdrawn from the consideration of the jury. |