Gates

This action was brought against defendant, Philips, to recover stumpage for shingle timber sold to Philips. Defendant, Mary Lindley, intervened, claiming stumpage for the timber taken off a portion of tlie land.

Philips admitted the contract with plaintiff, and that there was due somebody four hundred and twenty-eight-dollars and eight cents; that he owed the plaintiff of *452 this sum three hundred and thirty-three dollars and forty-four cents, and that the timber taken off the portion claimed by Mary Lindley amounted to ninety-four dollars and sixty-four cents, and that he was ready to pay the whole to whomsoever the court found was entitled thereto.

The cause was submitted to the court upon agreed findings covering all the facts, from which the court drew the conclusion of law that plaintiff was entitled to recover three hundred and thirty-three dollars and forty-four cents, and Mary Lindley ninety-four dollars and sixty-four cents, and entered judgment accordingly, from which the plaintiff appeals.

One Osborne filed his application to purchase this land from the state in'1858. He conveyed by quitclaim deed and assignment of his certificate to Whitmore and Dix, and in June,…