text:
    NORTON v. HAYDEN.
    Sale—Agreement to Arbitrate—Right oe Action.
    Where one member of a partnership transfers his interest in the firm assets to his copartner under an agreement that the amount to be paid therefor shall be determined by arbitrators, the making and delivery of an award in the manner-provided for is a condition precedent to the right to maintain an action for the purchase price; and this, even though the arbitration has failed by reason of the inability of the arbitrators to agree.
    Error to Jackson; Peck, J.
    Submitted April 29, 1896.
    Decided June 30, 1896.

      Assumpsit by Ernest Y. Norton against Henry Hayden to recover the purchase price of goods sold. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The declaration in this case contains two special and the common counts. The first special count alleges that the defendant purchased and received from the plaintiff divers goods, wares, merchandise, chattels, and property, described in a bill of sale, said property being situated in the hotels known as the “Hibbard House” and the “Hurd House,”in the city of Jackson, and used in carrying on the hotel business in said houses; and also the right, title, and interest of said plaintiff in and to the partnership property, and in and to the leases and agreements under which said property was held by said partnership; also all the book accounts and outstanding credits belonging to the firm,—subject to certain incumbrances existing thereon; and that defendant promised and agreed to pay as purchase price for such property all the obligations of said firm theretofore existing, of every description, and to pay to said plaintiff for such sale one-half of the excess of the value of the assets of said copartnership over its liabilities, deducting therefrom any sums which said plaintiff had drawn from the partnership business in excess of the money drawn by defendant. The second count is similar to the first, but alleges a promise to pay whatever such property was reasonably worth. After the attorney for the plaintiff had made his opening statement of his cause of action, the court directed a verdict for the defendant.
    On October 1, 1892, plaintiff and defendant entered into written articles of copartnership, the business to be the carrying on of these hotels. The partnership was to run 10 years, and at the end of that time, or if sooner terminated, each was to render to the other a full, true, just, and perfect account of all things pertaining to the business, and adjust the same. The business did not prove profitable, and at the end of a year they entered into an agreement reciting that they desired to effect an amicable dissolution of the copartnership, and agreeing to submit all matters connected with their said copartnership affairs and business to two arbitrators named therein, who should ascertain and determine the amount and value of the assets and liabilities of said firm, the ainount which each had drawn, the excess of assets over liabilities or liabilities over assets, and determine whether said defendant should pay to said plaintiff any sum of money, and, if so, the amount thereof, and, in case they were unable to agree, they should choose a third arbitrator, and the award of any two of said arbitrators should be binding. It was further recited in said articles of arbitration that said award should by each be faithfully kept and performed, and that plaintiff, upon the making and delivery of said award, should transfer, assign, and convey to said defendant all his interest in said business and assets upon such terms as said arbitrators should determine and adjudge between them. This award was to be made on or before October 17, 1893.
    While these arbitration proceedings were pending, and on October 18, 1893, plaintiff executed to defendant a bill of sale of the property above mentioned, and upon the terms above mentioned. This bill of sale contained the following clause:

      “ It is understood and agreed between the parties hereto, and this bill of sale is executed, delivered, and accepted with the understanding, that the same shall in no wise affect or prejudice the rights of either of the parties hereto under a certain agreement and submission for arbitration heretofore, to wit, on the 7th day of October instant, made and entered into between them, but that this bill of sale and transfer is made for the purpose of carrying out said agreement and submission for arbitration.”
    The arbitrators met, and each party presented his proofs before them. They failed to agree. They then selected a third arbitrator, but no two of them could agree. Meanwhile, by stipulation, the time for the arbitration was extended by mutual consent to December 10th, at which time no two of the arbitrators were able to agree, and the attempted arbitration proved abortive.

      Barkworth & Blair, for appellant.

      Wilson & Cobb, for appellee.
   Grant, J.

(after stating the facts). Two questions are involved: (1) Had the court of law jurisdiction ? (2) Was the making and delivery of an award a condition precedent to the right of action ? The two questions are so intimately connected that they will be discussed together.

In his opening statement to the court and jury, after stating the facts, the attorney for the plaintiff thus stated his claim:

“This action is brought in assumpsit, based upon the agreement of October 18, 1898, and the actual transfer by bill of sale at that time of the property to Mr. Hayden, and to carry out the terms of that agreement, and recover the purchase price mentioned in the bill of sale and the previous articles providing for the arbitration.”

In their brief counsel for plaintiff thus state their claim:

“We contend that a fair construction of the contract warrants the interpretation that defendant purchased from plaintiff his interest in the business on the terms of the recital, and submitted the ascertaining of the value of the assets and liabilities to arbitrators, and that this submission, being at the common law, was revocable thereafter by either party, and enforceable only by action.”

We are unable to agree with this contention. We must construe the contract as the parties have made it. The arbitration agreed upon was just as much a part of the contract as was the agreement on the part of one to sell and of the other to buy. Mr. Hayden did not agree to buy Mr. Norton’s interest, and to pay what a jury or court might find that he ought to pay, or what his interest might be worth. He agreed to take the property, and assume all the liabilities of the firm, upon condition that certain arbitrators, agreed upon, should determine what, if anything, he should pay Mr. Norton. It is too obvious to require further comment that Mr. Norton could not, at his will, revoke the arbitration, and hold Mr. Hayden liable upon the remainder of the contract. No case cited sustains any such doctrine. A revocation of the arbitration portion of the contract by either party would have been a revocation on his part of the entire contract. No action at law could be maintained by either of these partners against the other until an award had been made, or until one of them had repudiated the contract, or the provision to arbitrate had been waived. Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250; Campbell v. Insurance Co., 1 MacArthur, 246 (29 Am. Rep. 591); Ball v. Doud, 26 Or. 14; Scott v. Avery, 36 Eng. Law & Eq. 1, 18; Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116; Boots v. Seinberg, 100 Mich. 134; Guthat v. Gow, 95 Mich. 527. In Scott v. Avery, the court say:

“If I covenant with A. not to do a particular act, and it is agreed between us that any question which might arise should be decided by an arbitrator without bringing an action, then a plea to that effect would be no bar to an action; but if we agreed that J. S. was to award the amount of damages to be recoverable at law, then, if sjich arbitration did not take place, no action could be brought.”

No revocation is, however, involved in the case. Neither party is responsible for the failure of the arbitration. Both parties acted in good faith in their attempt to secure an award. The failure of the arbitrators to agree was probably not contemplated, and the parties in their contract made no provision for such a contingency. The effect, therefore, was to place them in statu quo, and to leave them in the same position as they were before the contract was made. Both parties appear to have treated their action as a dissolution of the partnership. It is elementary that in such cases the sole and appropriate remedy is by a bill in equity for an accounting.

The judgment is affirmed.

Montgomery, Hooker, and Moore JJ., concurred. Long, C. J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    PEOPLE v. BUCK.
    1. Criminal Law—Disorderly Persons—Successive Offenses— Sufficiency of Information.
    An information for a third offense under the act in relation to disorderly persons (3 How. Stat. § 1997a et seq.) must allege that convictions were had for such previous offenses, ' and, properly, it should also state the date and the occasion of such convictions.
    2. Same—Appeal—Assignments of Error.
    An objection that an information for a third offense is defective in not averring prior convictions may be raised on appeal by assignments alleging error in the charge, authorizing a conviction as for a third offense, and in the sentence, imposing a punishment appropriate to such a conviction, and in excess of that which could be lawfully imposed for a first conviction; and this, notwithstanding the respondent pleaded to the information before moving to quash for the reason stated.
    Error to Ingham; Person, J.
    Submitted April 30, 1896.
    Decided June 30, 1896.
    Jessie Buck was convicted, under the disorderly act, of being a common prostitute, and sentenced to imprisonment in the Detroit House of Correction for two years.
    Judgment reversed.

      Jason E. Nichols, for appellant.

      L. B. Gardner, Prosecuting Attorney, for the people.
   Montgomery, J.

Respondent was convicted of being a disorderly person, to wit, a common prostitute, and was sentenced to the Detroit House of Correction for two years. The information contained the following language: “Said offense being, and is hereby charged as, a third offense.” There was no description of the previous alleged offenses, nor was it averred that there had been any previous convictions.

It is clear that, under the statute (section 1997al, 3 How. Stat.), it is not only necessary to charge the offense as a second or third offense, as the case may be, but it is also essential to charge that there has been a conviction for such previous offense or offenses; and, properly, the information should state, at least, the date and the occasion of such conviction. Com. v. Harrington, 130 Mass. 35; Ex parte Hiser, cited in Blackburn v. State, 50 Ohio St., at page 436. The case of State v. Gorham, 65 Me. 270, is cited by the prosecutor, but that case does not go far enough to sustain the information in this case as an information for a third offense under our statute. Moreover, the holding in State v. Gorham is based upon a statute. See State v. Wentworth, 65 Me. 247 (20 Am. Rep. 688).

The prosecutor also contends that the respondent is not in position to raise the question, as she pleaded to the information before moving to quash. But we think the assignments alleging error in the charge and in the sentence sufficient to raise the question. In the absence of an averment of previous convictions, a sentence could not lawfully be imposed for a longer term than 30 days.

The conviction will be set aside, and the respondent discharged.

Grant, Hooker, and Moore, JJ., concurred. Hong, C. J., did not sit.


text:
    PETERSON v. FREY.
    ■Justices of the Peace—Appeal—Right to Dismiss.
    Under 3 How. Stat. § 7014, relating to appeals from justices’ courts, and providing that, “on filing the return of the justice, the circuit court shall become possessed of the cause the same as if it had been originally commenced in said appellate court, subject to the same rules and regulations,” the appellant cannot, as against the protest of the appellee, dismiss his appeal.
    Error to Newaygo; Palmer, J.
    Submitted April 29, 1896.
    Decided June 30, 1896.

      Assumpsit by Andrew Peterson against Alton S. Erey for labor performed. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. G. Day, for appellant.

      A. F. Tibbitts (Martin Bozema, of counsel), for appellee.
   Montgomery, J.

This case originated in justice’s court. The plaintiff recovered a judgment before the justice in the sum of $30.14 and costs. The defendant took a general appeal to the circuit court. The case came on for trial, and on the trial the defendant claimed the right to dismiss his appeal. The circuit judge refused to permit this, and held that the plaintiff was entitled to proceed with the trial, and plaintiff on the trial recovered a larger sum.

The defendant proposed a bill of exceptions, and failed to incorporate his assignments of error, under Circuit Court Rule No. 85, as amended. We might properly refuse to consider the point made, but, as we think the court was clearly right, we prefer to rest our conclusion on the merits.

Whatever may have been the right of an appellant as to dismissal of an appeal before the amendment of 1883, under the statute as it now exists, we think it clear that he cannot, as against the protest of the appellee, do so. The statute, as embodied in section 7014, 2 How. Stat., reads:

“On filing the return of the justice, the circuit court shall become possessed of the cause the same as if it had been originally commenced in said appellate court, subject to the same rules and regulations.”

It would be novel procedure for a defendant to dismiss a suit originally commenced in the circuit. The plaintiff in this case may have been prevented from taking an appeal himself because the case was appealed by the defendant. It is apparent that the very purpose of the statute was to prevent an appellant from playing fast and loose with the appellee. The cases from other States, depending upon statutes differing substantially from ours, are of no avail in determining this question.

Judgment affirmed.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


author: Moore, J.

text:
    DETROIT CHAMBER OF COMMERCE v. SECRETARY OF STATE.
    Corporations—Chamber oe Commerce—Amendment op Articles of Association.
    A chamber of commerce incorporated under Act No. 166, Pub. Acts 1863 (1 How. Stat. chap. 108), may amend its original articles of association, increasing its so-called “capital stock ” to an amount not exceeding the limit fixed by Act No. 52, Pub. Acts 1893, in the manner prescribed by 1 How. Stat. § 4866, which is applicable to all corporations when no other provision is specially made.

      Mandamus by the Detroit Chamber of Commerce to compel Washington Gardner, Secretary of State, to receive and file relator’s amended articles of association.
    Submitted April 28, 1896.
    Writ granted June 30, 1896.

      Warner, Codd & Warner, for relator.

      Fred A. Maynard, Attorney General, for respondent.
   Moore, J.

This is a hearing upon an order to show cause why a peremptory mandamus should not issue compelling respondent to receive and file the amended articles of association of relator, and to accept the franchise fee for the same.

The petition filed shows that the Detroit Chamber of Commerce is a body corporate, organized under the provisions of Act No. 166, Pub. Acts 1863, being also 1 How. Stat. chap. 108. Section 3 of that act reads as follows:

“Said corporation, by the name and style which shall be adopted, may receive and hold property and effects, real and personal, by gift, devise, or purchase, and dispose of the same by sale, lease, or otherwise, said property so held not to exceed at any time the sum of one hundred thousand dollars.”

The organization thus effected was capitalized with stock in the sum of $100,000, the same being 1,000 shares at $100 each. In 1893, by Act No. 52, the legislature amended section 3, above quoted, by changing the words “one hundred thousand dollars” to “seven hundred and fifty thousand dollars.” Desiring to increase the amount of so-called “capital stock” in order to meet outstanding liabilities, relator caused to be made amended articles of association, increasing the so-called “capital stock” to the sum of $225,000. These amended articles were transmitted to respondent, together with a franchise fee, as provided by Act No. 182, Pub. Acts 1891. Respondent refused to file the amended articles, and returned them, with the franchise fee, to relator.

Respondent answered the petition, and, concerning his refusal to file the amended articles, bases his action upon the following reasons: That the original articles of association are not on file in his office; that Act No. 166, Pub. Acts 1863, does not contemplate articles of association; that the corporation cannot have capital stock, and has no authority to issue certificates of stock; that Act No. 166, as amended, does not provide for the filing of amended articles of association with the secretary of state, nor confer upon him authority or power to file the same; that the authorization of capital stock and the issuance of certificates is antagonistic to the policy of the act in question; that the intent of the act is that corporations formed under it shall have members standing upon an equal basis, with equal interests, and equal benefits and advantages, which is impossible where the standing, interest, and advantage of members is regulated by the amount of stock held.

The relator contends: That the original association adopted by-laws by which any eligible person, by the payment of $100, and by a majority vote of the board of directors, should be admitted to membership. In addi? tion to this, any member might purchase shares of stock, but no member, whether a stockholder or not, was entitled to more than one vote. That, desiring to increase their capital stock, and finding no statute expressly authorizing the same, they made amended articles, under the general law applicable to “all corporations when no other provision is specially made,” being section 4866, 1 How. Stat. This section provides that any corporation amending its articles shall file the same with the secretary of state. That the tender of the franchise fee was in accordance with the general law of corporations having a capital stock. Relator further contends that they are authorized to hold “property,” that the capital stock is property, and that there is nothing antagonistic between the original articles and the amended articles of association.

The only questions necessary for us to determine are: (1) Is the relator entitled to amend its original articles of association ? (2) Has it the right to do so in the manner prescribed by section 4866,1 How. Stat.? We think both questions should be answered in the affirmative.

The writ will issue as prayed, but without costs.

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


author: Hooker, J.

text:
    AUDITOR GENERAL v. AYER.
    1. Taxes—Equalization—Presumption op Regularity.
    It will be presumed that an equalization under section 34, Act No. 206, Pub. Acts of 1893, was based upon the real estate, as the section requires, and not upon both real and personal property, where the basis of such equalization does not appear from the proceedings of the board of supervisors.
    2. Same.
    In view of such presumption, the requirement of said section that the amount added to or deducted from the valuation of the taxable property in any township, ward, or city shall be entered upon the records of the board is substantially complied with where the records show separately the real estate and personalty as assessed, and the aggregate of the real and personal property after equalization.
    Appeal from Ontonagon; Haire, J.
    Submitted June 4, 1896.
    Decided June 30, 1896.
    Petition by Stanley W. Turner, Auditor General, for the sale of certain lands delinquent for tbe taxes of 1893. Objections were filed by Frederick F. Ayer and others, trustees of the estate of James O. Ayer, deceased. From a decree for petitioner, defendants appeal.
    Affirmed.

      W. R. Adams, Prosecuting Attorney (Chadbourne & Rees, of counsel), for petitioner.

      A. B. Eldredge and A. E. Miller (M. J. Sherwood, of counsel), for defendants.
   Hooker, J.

This case turns on the validity of the equalization of assessment rolls by the board of supervisors. Section 34 of Act No. 206, Pub. Acts 1893, makes it the duty of the board of supervisors, in equalizing the property of the various townships, wards, and cities for the apportionment of State and county taxes, to—

“Examine the assessment rolls of the several townships, wards, or cities, and ascertain whether the relative valuation of the real property in the respective townships, wards, or cities has been equally and uniformly estimated. If, on such examination, they shall deem such, valuation to be relatively unequal, they shall equalize the same by adding to or deducting from the valuation of the taxable property in any township, ward, or city, or townships, wards, or cities, such an amount as, in their judgment, will produce relatively an equal and uniform valuation of the real property in the county, and the amount added to or deducted from the valuation in any township, ward, or city shall be entered upon the records. They shall also cause to be entered upon their records the aggregate valuation of the taxable real and personal property of each township, ward, or city in their county as determined by them.”

The record of the board is as follows:

“Wednesday, October 11, 1893.
“The board met, pursuant to adjournment. Supervisors present: Messrs. Sawyer, Trevarrow, Anderson, Bond, Stannard, Geismar, Biggs, and Hawley. The meeting was called to order by Mr. Sawyer, chairman. The following is a statement of the assessed valuation of the real estate and personal property in the county, to wit:
Township. No. Acres. Real Estate. Personal Estate. Total.
Ontonagon.... 202,655.45 §731,405 00 §320,898 60 §1,052,303 60

[Here followed the remaining townships in the table.]

“The board proceeded to equalize the several assessment tax rolls. Thereupon, on motion, the following amounts were declared to be the valuation of the real estate and personal property in each township for the apportionment of the county and State taxes for year 1893, to wit:
Real and No. Acres. Personal Estate.
Ontonagon township 303,655.45 I960,000
McMillan “ 98,814.94 450,000
Rockland “ 63,363.38 305,000
Carp Lake “ 140,633.00 330,000
Interior “ 105,309.83 400,000
Bohemian “ 54,777.55 310,000
Greenland " 31,398.51 108,000
Total. 685,840.55 13,753,000”

The alleged defects are:

1. That the equalization was based upon both real and personal property, instead of real estate only.

2. The amounts added or deducted were not entered in the record.

Had the law required that the record show the amount of real estate as assessed and also as equalized, it would conclusively appear whether additions and deductions were from the real estate; but it does not. It only requires that the table show the amounts added and deducted, and the aggregate of taxable property. And if only the amount of taxable property as equalized were given, there would be no way of determining the amount added or deducted. Inasmuch, however, as the table did include the real estate as assessed, and also the personal as assessed, the difference between the aggregate of these and the amount of taxable property as equalized would show the amount added or deducted. It would do no more if the amount of such addition or deduction appeared in the proper columns, unless it was explicitly stated that they were additions or deductions to or from the real estate as assessed, which the law does not require. There is nothing to indicate that the equalization was based upon the aggregate of real and personal property unless we are to assume it, which, as shown, we might as easily do in any case, unless the board was so careful as to state that it was based on the real estate only, or included columns in its table showing assessed and equalized valuation of real estate, which, as already said, the law does not explicitly require. In our opinion, we should rather presume regularity than irregularity, and must conclude that the equalization was upon the real estate, as the law requires, rather’ than that it was based upon both real and personal property, which the law does not permit. Such presumption is in accordance with the provisions of the tax law and the settled rule. Mills v. Richland Tp., 72 Mich. 100; Silsbee v. Stockle, 44 Mich. 562; Chamberlain v. City of St. Ignace, 92 Mich. 332. If we do this, we shall have no difficulty in finding a compliance with the provision that the amounts added and deducted should be entered in the record, by the application of the maxim, “Id cerium est, quod cerium reddi potest.”

The decree of the circuit court is affirmed, with costs.

The other Justices concurred.


text:
    WEAVER v. RIX.
    Justices oe the Peace—Jurisdiction—Nonresidents.
    Under 2 How. Stat. § 6819, providing that actions in justice’s court may, where the plaintiffs are all nonresidents of the county, or the defendant is a nonresident of the county, “he brought before any justice of the township or city where such plaintiffs or defendants, or either of them, may he,” it is not essential that either the plaintiff or the defendant, at the time of taking out the summons, be personally present in the township.
    Error to Tan Burén; Buck, J.
    Submitted June 4, 1896.
    Decided June 30, 1896.
    William Weaver commenced suit in justice’s court against George H: Rix by writ of summons. Plaintiff

      had judgment, and defendant removed the cause by certiorari to the circuit court, where the judgment was affirmed. Defendant brings error.
    Affirmed.

      T. J. Cavanaugh, for appellant.

      Hammond & Hammond, for appellee.
   Montgomery, J.

This is a writ of error to review a decision of the circuit court affirming a decision of a justice of the peace holding that he had jurisdiction of the parties. The facts, as they appear in the return of the justice, are that plaintiff, at the time of the commencement of the suit in justice’s court, was a resident of Eau Claire township, in the county of Berrien. The defendant was a resident of the township of Antwerp, in the county of Van Burén. A summons was sued out before a justice of the peace of the township of Keeler, in Van Burén county. The defendant moved to dismiss, for the reason that neither the plaintiff nor the defendant was a resident of the township, nor of any township next adjoining or contiguous thereto, and therefore the court had no jurisdiction. This motion was overruled.

Section 6819, 2 How. Stat., provides that “if the plaintiffs be all nonresidents of the county, or if the defendant be a nonresident of the county, then such action may be brought before any justice of the township or city where such plaintiffs or defendants, or either of them, may be.” It is contended by the appellant that, under this section, the plaintiff must, at the time of taking out the summons, be present in the township, or the defendant must be shown to be present in the township. It might be sufficient to say that this point was not made distinctly before the justice; but, if we should assume that it was considered by him, his ruling was right. Our statute was borrowed from that of New York, which had a construction by the supreme court as early as 1833, in Hunter v. Burtis, 10 Wend. 358; and it was there held that, under a statute precisely like the provision of section 6819, above quoted, it is not essential that the plaintiff, being a nonresident, be personally present in the town when the writ issues. In adopting this statute from New York, it will be presumed to have been adopted with the judicial construction previously placed upon it.

Judgment affirmed.

The other Justices concurred.


author: Grant, J.

text:
    RANSPACH v. TEUTONIA FIRE INSURANCE CO.

    Fire Insurance—Vacancy Clause—Waiver.
    A condition in a policy of fire insurance that it shall be void if the building insured “be or become vacant, and so remain for 10 days,” is not waived by the fact that, at the time an agent of the company consents to an assignment of the policy, he is informed that the building is then unoccupied.
    Error to Wayne; Hosmer, J.
    Submitted June 3, 1896.
    Decided June 30, 1896.

      Assumpsit by Charles C. J. Ranspach against the Teutonia Fire Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.
    One Dillon obtained an insurance policy in the defendant company upon a dwelling house situated upon his land. The policy was the usual Michigan standard policy, and provided that it should be void “if .the building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for 10 days.” It further provided that all waivers of the conditions should be in writing, and that no agent or officer should have the power to waive such conditions unless in writing. The house was rented and occupied until Dillon sold and conveyed the land to plaintiff and his wife. The premises were vacant at the time of the fire, and had so remained for three months previous. No notice of vacancy or application for a permit had been made. About the time of the deed to plaintiff, Dillon took the policy to the local agents, stated that he had sold the land to plaintiff, and asked that the policy be assigned to him, which was done. At that time Mr. Dillon testified that he thought he told the agents that, at the time he was selling it, he saw the occupants were packing up ready to go out, and that they told him they were going. How long this was before the assignment does not appear. This is the sole testimony upon which the jury were permitted to find that there was a waiver of the clause as to vacancy, and to render a verdict for the plaintiff.

      Corliss, Andrus & Leete, for appellant.

      R. I. Lawson and D. B. Hayes, for appellee.

       Rehearing denied October 6, 1896.

   Grant, J.

(after stating the facts). We think the court should have directed a verdict for the defendant. Plaintiff accepted the policy subject to all its terms and conditions. He knew, or must be held to have known, that the policy would be void if the house remained vacant beyond 10 days. Even if the agent had been told that the house was vacant at the time of the assignment, this did not make a new contract to keep the property insured beyond the 10 days of vacancy. The proposition is too plain to require further argument or citation of authorities.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


author: Christiancy J.:

text:
    James H. Morris v. Alfred M. Hoyt and others.
    Persons who, after a contract has been made for the conveyance of lands, acquire interests in the lands derived from the vendor, are necessary parties to a bill for the specific performance of the contract.
    An answer in chancery without oath, is but a pleading, and of no effect as mere evidence. So far as it admits the case made by the hill, it relieves the complainant from proof. So far as it controverts that case, it puts the complainant to his proof. But so far as it alleges any new matter of avoidance, or any • matter the burden of proving which would naturally rest upon the defendant, it is of no effect without proof.
    The failure of the vendee to tender performance and demand a deed before filing a bill for the specific performance of a contract for the sale and conveyance of lands, only affects the question of costs.
    A stipulation in such a contract, that the vendee shall “improve the premises’ * ■ but specifying neither the kind nor extent of the improvements, is so indefinite that the intention of the parties can not be .known; and on a bill fon specific performance, it will be treated as immaterial.
    A failure of the vendee to pay the taxes as stipulated in such a contract, stands upon the same basis, as respects specific performance, as a default in the payment of instalments of the purchase money.
    A provision in such a contract, that on failure by the vendee to fulfill the agreements on his part at the times specified, the vendor may re-enter and take possession of the land, and all rights of the vendee under the contract shall be null and void, and all payments and improvements made by Til™ shall be forfeited, does not make time so far of the essence of the contract, as that all rights of the vendee become ipso facto forfeited merely by a failure to pay at the times agreed upon, without any act on the part of the vendor indicating an intention to insist upon the forfeiture.
    Tinder such a provision, the only mode by which the vendor can forfeit the rights of the vendee, is by re-entering and taking possession of tbe land, or some act equivalent thereto.
    Where a vendee seeks the specific performance of a contract after default in the payment of instalments of principal and interest, he will be required to pay interest on the instalments of interest from the time they fell due.

      Heard July 17th and 18th.

      Decided November 13th.

    Appeal in Chancery from Saginaw Circuit.
    Bill for specific performance. It sets forth, that on the 24th clay of February, 1854, Alfred M. Hoyt, being. then the owner in fee of lots four to thirteen inclusive, in block three of the village of East Saginaw, by his agreement in writing, contracted to sell said lots to complainant for $3,000, to be paid as follows: $100 at the date of the contract (which was duly paid), $725 August 1, 1854, $725 August 1, 1855, $725 August 1, 1856, and $725 August 1, 1857, with interest on all unpaid sums at the time of each payment; and that complainant agreed to purchase said lands, and pay as aforesaid. The agreement is set forth, and it appears that the contract of said Alfred M. Hoyt was to convey “upon the perfect and complete performance of the covenants and agreements” of complainant; that said complainant, in addition to the payments mentioned, bound himself “to improve said property,” but the agreement did not state how, or to what extent; that complainant was “to pay all taxes and assessments, of whatever name, nature or description, that may in any manner be assessed, levied or charged” upon said lands after the date of said agreement; and it was further agreed that, in case of the non - fulfillment by complainant of all and singular the covenants and agreements on his part, at the times or time above specified, the said Hoyt might re - enter and take possession of said real estate, and all right and interest of complainant, under said agreement, should cease and be null and void, and all payments which should have been made, and all buildings or other improvements that should have been placed upon the premises by complainant prior to any default, should be retained by said Hoyt, as liquidated damages for the non-performance of the contract.
    The bill states that, in addition to the $100 paid at the date of the contract, complainant paid the instalment -^hud1 fell due August 1, 1854; that he failed to make the payments which fell due August 1, 1855 and August 1, 1856, but that said Hoyt never intimated to him that he should consider said contract forfeited on account of such failure, and that on'the first .day of August, 1857, when the last payment became due, he tendered payment of all the money then due on the contract, and demanded a deed of 'the lands, but that the payment was declined and the deed refused; that said Jesse Hoyt was in some way or manner interested with said Alfred M. in the sale of said lands, but that the legal title, for the convenience of parties, was in ■■said Alfred M. Hoyt; that some change has been made in the business relations of said Hoyts, of the particulars of which complainant is not informed, and that said parcels of land have been conveyed by said Alfred M. to said -Jesse Hoyt, but with full notice of the rights of complainant: The bill alleges that, since the date of the contract, complainant has “in all things done and performed what was by him to be done and performed according to the terms of the contract,” except as therein before stated; that neither of said Hoyts has ever tendered or offered to ■complainant a deed for said lands: that said lands are now (May, 1858), unoccupied; claims that complainant is entitled to a deed on payment of the balance due on the ■contract, which payment he offers to make, and in all things, to perform the contract on his part; calls for an ■answer without oath, and prays that said Iioyts may be decreed specifically to perform the agreement, and to convey the lands, &c. This bill, before answer, was amended by making Curtis Emerson a party defendant, charging that he claims some interest in said lands adverse to complainant, by virtue of a pretended purchase from Jesse Hoyt, but charges that the interest of Emerson was acquired with ■a full knowledge of the rights of complainant.
    The bill was taken as confessed as against Emerson.
    The defendants Hoyts answer, admitting the contract as set out in the bill, and the payment of the $100 at ■date of the contract, and of the instalment due August 1st, 1854, but allege that complainant failed to improve the land, and also failed to pay the taxes assessed on the lands, after the date of the contract, and that defendants or one of them have been compelled to pay large sums for said taxes; that after the default of complainant, about the first day of October, 1855, defendants again took possession of all said lots, and have ever since had the same in their possession, and that complainant has not since put forth any claims to the same, till the filing of the bill. They deny that a tender was ever made of the sum due by. the contract as alleged in the bill; insist that time is made of the essence of the contract by its terms, and that by the failure to pay the instalments and taxes and to improve the lots, complainant has released all claim or rights to the lands, and that defendants had a right to re-enter, take possession and hold said lots as if no such contract had existed.
    A replication was filed to this answer, and the case was heard in the Court below upon the pleadings and the pro confesso of Emerson, and the Court below decreed a specific performance, and made a reference to a Notary Public (the Circuit Court Commissioner being one of the solicitors in the case) to ascertain which of said defendants “now holds the legal title to the premises,” and whether a good title can be made thereto, and also to ascertain the amount due from complainant on the contract, the Court reserving the consideration of all further directions, and of the costs, until the making of the report. The Notary 'reported that defendant Alfred M. Hoyt “ now holds the” litle and can make a good title, and that there was due on said contract from complainant for principal and simple interest thereon from February, 1854, to date of report, §3,262 74, and the further sum of §237 90 for interest on the annual instalments of interest from the time when they were respectively payable to the date of the report, and the further sum of §247 50 for the taxes paid by defendants Hoyts for the years 1854, 1856, 1857> 1858, 1859 and 1860; and the evidence showing the pay' ment of the taxes is returned with the report.

      Exception was taken to the report on the ground that the sum of $232 90 had been thereby allowed for interest on the several instalments of interest from the time when such instalments of interest respectively became due; and this exception was allowed by the Court, and the interest upon the interest disallowed; but said report in all other respects confirmed, and a final decree entered that com. plainant pay to defendant Alfred M. Hoyt, within ninety days, the sum of $3,510 24, being the amount of the instalments due on the contract, with simple interest, and the taxes paid and interest thereon, and that defendant Alfred M. Hoyt, upon such payment, convey to complainant, •&c., and that neither party recover costs against the other. From this decree an appeal was taken by the defehdants ■Hoyts.

      Moore & Gaylord, and T. M. Cooley, for complainant:
    1. The answer without oath is but a pleading, and having been replied to, as evidence has no greater effect: its admissions are indeed evidence for complainant, but no matters therein stated by way of avoidance, or affirmative allegations, are evidence for any purpose whatever :— Wal. Ch. 94; Ibid. 267; 14 Johns. 73; 4 Paige, 33; Ibid. 507; 2 Mich. 237.
    2. Courts of equity do not treat time as of the essence of a contract for the payment of money upon an agreement for the sale and conveyance of lands, though it is frequently held otherwise on an agreement for the sale of chattels: — 11 Paige, 363; 9 Johns. 466; 8 Mich. 463; 5 Wis. 206; 6 Wheat. 633; 3 Bibb, 366; 2 Sch. & Lef. 684; Story Eg. Juris. §§ 775, 776; 2 Lead. Cas. in Eg. 75 to 79; Willard Eg. 279. And a stipulation that a failure to pay an instah ment when due shall forfeit the contract, will not have the effect to make time essential, for this is but the legal result -of the contract without such stipulation: — 11 Paige, 363.
    Undoubtedly the parties have the right to make time of the essence of the contract. In many cases it is really so, ■whether declared or not. Where the subject matter of the contract — the object and purpose of it — are such that performance at the time will alone effectuate that object and purpose, and a failure to do so cannot be compensated, no Court could be expected to look in the contract for words expressly declaring time to be of its essence. That is already apparent, and needs no such declaration. But agreements for the mere payment of money are not often of this character. The payment of the money., as an increase to a man’s means, is their purpose and object. The law has a definite standard of damages for any delay of this kind. It has fixed that standard in express reference to such delays. As a rule, time is not of the essence of these contracts, and where it is not so in fact, a declaration in the contract that it shall be, will not make it so.
    The neglect to pay the money after it comes due must be gross neglect, or equity will grant relief. Whether it is gross or not depends entirely on the circumstances. It is gross if it operates unjustly; it is not gross if, under the circumstances, no one is harmed by it. That neglect is gross which has continued till the relative position of the parties has so changed that the contract if made now would not be an even one. And that is gross also which continues after the defaulting party has been fairly notified of an intent to put an end to the ^contract. Till such notice is given, the néglect can not be called gross unless, the interests of the other party are injuriously affected in consequence.
    It is said in this case, that complainant shows no equitable circumstances entitling him to relief. But a party is only required to show such circumstances when asking relief against gross neglect. ’As a general rule equity enforces these contracts, notwithstanding the time has expired. But if there has been gross neglect to perform, working injustice to the other party, 'a strong showing of equitable circumstances must be made. And then equity may relieve notwithstanding relief sometimes operates harshly upon the opposite party. But the large payment made in this case is a circumstance of strong equity. And it is but reasonable to hold that the vendor acquiesces in the delay so long as he neglects to give notice of an intent to put an end to the contract. Until then he has a remedy against the vendee upon the contract; and while he retains the right to call for payment, the vendee should have the right to make payment. See 9 Johns. 466; 7 Mich. 420; 3 Green Ch. 157; 4 Brown Ch. Cas. 332; 3 Jones, 84; 6 Rich. Eq. 324; 9 Texas, 145; 4 Johns. Ch. 561.
    In this case the act agreed upon in the contract, as evidence of Hoyt’s design to cancel the contract, was his re-entering and taking possession of the lands. It is not shown that this has been done. • ■
    3. The failure to pay taxes is like any other failure to pay money under the contract, and is to be relieved upon the same terms. As to the stipulation for improvements, it is too indefinite to be enforced. And there is nothing in the case showing that Hoyt had any interest in having the improvements made, or that he has lost any thing by their not being made; and nothing is claimed in the answer on that ground.
    4. The failure to prove a tender only affects the question of costs: —12 Ves. 25; 2 Comst. 415; 6 Barb. 281.
    5. The decision of the Court on the question of interest was correct: — 4 Paige, 100; 7 Greenl. 48; 1 Binn. 165; 8 Mass. 455; 6 Johns. Ch. 313; 1 Johns. 13.

      W. L. Webber, for defendants Hoyts:
    1. The bill is multifarious, for that it prays relief against Jesse Hoyt and Emerson, who are not parties to the contract : — Welf. Eq. Pl. 54; Story Eq. Pl. § 272; 3 Mich. 459; 3 Myl. & Cr. 63; Dart on V. & P. 465-6.
    2. By the terms of the contract, time is material, and of the essence of the contract. Unless the vendee performed, at the time and in the manner in the contract specified, he lost all right to the premises: — 7 Ves. 265; 3 Madd. 440; 1 J. S W. 410; 2 Sim. 78; 1 J. & C. Ex. Cas. 401 — 416; 3 Am. Lead. Cas. (3d Ed.) 81 — 85; Adams’ Eq. 88; 2 Story Eq. § 776; 5 Cranch, 278; 8 Cranch, 471; 14 Pet. 172; 1 Johns. Ch. 370; 2 Edw. Ch. 78; 7 Paige, 22; 2 Conn. 512; 13 Ill. 573 ; 2 Stock. Ch. 577; 5 Gilm 309; 1 Hare, 341; 2 Ohio S. R. 326; 3 Leigh, 161; 1 C. Greene (Iowa) 302; 7 Ohio, 424; Ibid. 432; 4 Mich. 570. Complainant shows no special equity taking this case out of the general rule.
    3. By the terms of the contract, the vendor was under no obligation to convey until after “full, perfect and complete performance.” As a part of the consideration, the vendee was to improve the property. The improvement was a condition precedent to the deed. Though the stipulation was not as definite as such stipulations usually are, the evident intention of the parties was that the lots should be made more productive and valuable, and that they should be used and occupied. See 8 Granch, 371.
    4. But the case made by the bill is not sustained by proof. Complainant must recover, if at all, upon the bill and his proofs. The bill and answer are of equal weight, and neither outweighs the other: — 9 Mich. 540. But if complainant resort to the answer for proof, he must take the whole of it, relating to the same subject, that would be responsive to the bill had the answer been on oath : Story Eq. Pl. §875a; 6 Mich. 232; 1 Greenl. Ev. §§201, 202. The only facts on which the bill and answer agree are that the contract was made, and that two payments were' made on it. Complainant made no proofs, and we must infer that none existed. But the proof on the reference showed that he had neglected to pay the taxes, and that Hoyt had paid them. A party can not call upon a court of equity for a specific performance unless he has shown • himself “ ready, desirous, prompt and eager” to perform, even though he may have paid part of the purchase money: — 4 Ves. 686; 13 Ves. 225.
    5. The Court erred in sustaining the exception to the Commissioner’s report on the question of interest: -— 23 Pick. 167; 2 Pars, on Cont. 430; 1 Am. Lead. Cas. 522; 2 Mass. 576; 1 N. H. 179; 3 N. H. 40; 16 Vt. 46; 10 Rich. Eq. 582; 1 Taylor, 231; 4 Ohio, 373 ; 8 Mo. 41.
   Christiancy J.:

A preliminary objection is urged by the appellants, that the bill is multifarious, inasmuch as it prays relief against Jesse Hoyt and Curtis Emerson, who are not parties to the contract. We see no ground for this objection. There is. but one subject matter; and as by the bill it appears that Jesse Hoyt and Emerson had or claimed- to have an interest in the property, obtained from Alfred M. Hoyt, the contractor, after the date of the contract, and with notice of complainant’s rights, they would seem, upon the case made by the bill, to be necessary parties.

The merits of the case depend mainly upon the facts admitted by the pleadings, no proofs having been taken except upon the reference after the preliminary decree. The answer, being without oath, is but a pleading, and of no effect as mere evidence. So far as it admits the case'made by the bill, as an admission in pleading it relieves the complainant from proof; so far as it denies the facts, or controverts the case made by the bill, it puts the complainant to his proof. But so far as it alleges any new matter of avoidance, or any fact the burden of proving which would naturally rest upon the defendants, it is of no effect without proof.

The making of the .contract, the payment of the one hundred dollars at its date, and that of the instalment due August 1st, 1854, as set forth in the bill, are admitted by the answer, and these facts require no proof.

The offer to pay the balance of the purchase money by complainant after all the instalments had become due, and the demand of a deed before suit brought, are denied by the answer, and there being no proof on the subject, the case stands as if these facts had not been alleged in the bill. But we think these facts were not necesssary before the institution of the suit. It is sufficient that complainant, by his bill, offers to make payment and to perform the contract on his part: — Stevenson v. Maxwell, 2 Comst. 415. The failure to make the offer before the institution of the suit could only affect the question of costs, which are in the discretion of the Court; and if the defendants, by their answer, relied upon the want of such offer, and offered on their part to convey upon payment, doubtless the Court, in decreeing specific performance,. would give costs to the defendants; but their answer relies upon other matter of defense, in no way connected with this, and entirely inconsistent with the idea that they would have accepted the money and performance if tendered at the time alleged.

The bill alleges full performance generally of the contract in all things except the payment of the three instalments due August, 1855, August, 1856, and August, 1857. The answer denies performance so far as regards the payment of taxes, and sets up that defendants paid large sums for such taxes, and denies that, complainants improved the property as stipulated by the contract.

As to the question of improvements, the stipulation in the contract is- so utterly indefinite (specifying -neither the kind or extent)* that the intention of the parties can not-be known, and it could furnish no definite basis for the estimation of damages for its breach; we must therefore treat it as immaterial to the present controversy.

As to the default in the payment of taxes, this stands upon the same basis, as respects the question of specific performance, as the default in the payment of the several instalments of the purchase money when due; and the offer of complainant in his bill of full payment and performance includes the taxes as well as the purchase money. In disposing, therefore, of the one we dispose of the other.

It is insisted by the counsel for the defendants, that time is of the essence of this contract, and that complainant, having failed to make the last three payments at the times agreed upon, has forfeited all hi's rights under the agreement.

We. do not think time was so far made of the essence of this contract that all the equitable rights of complainant became, ipso facto, forfeited, merely by his failure to pay at the times agreed upon, without anything done on the-part of the vendor indicating an intention to insist upon such forfeiture; especially after the payment of a considerable portion of the purchase money. His neglect to take any step to forfeit the contract on this account should rather be construed as an acquiescence in the delay. And in this case we think the only mode by which the vendor could forfeit the purchaser’s rights was by re-entry and taking possession of the premises, or some act equivalent thereto; this is the mode provided by the contract itself; and, by this portion of the agreement, the forfeiture seems to have been made dependent upon the re-entry. Until this or some equivalent act had been resorted to, the vendor, we think, could not forfeit the rights of the purchaser, so as to deprive him of the privilege of making-payment and calling for a conveyance. The answer avers a re-entry -or taldng of possession after default, October 1st, 1855 ; but this was a part of defendants’ case, and to be proved by them, and there is no proof on the subject.

The complainant is therefore entitled to a decree for specific performance on payment of the balance of purchase money, and the taxes, with the interest.

Exception was taken to the report so far as it allowed interest upon the several instalments of interest from the time they respectively became due; and this exception was allowed by the Court:

We express no opinion here whether interest upon such instalments of interest could have been recovered by the vendor in a suit for damages, or on a bill for specific performance brought by him. But the complainant comes into Court, acknowledging his default in making these payments when due, and asks a specific performance on making the payments now. As he asks equity he must do equity, and put the vendor in the same condition as if the payments had been made when agreed. Had this interest been paid when due, it would have earned interest from that time. We think, therefore, the exception to the report was improperly allowed, and that interest must be computed on the several instalments of interest from the time they respectively became due.

Let a decree be entered in this Court thus far modifying the decree in the Court below, and giving complainant sixty days from the entry of this decree to make payment of the sum due the defendant Alfred M. Hoyt.

The appellants are entitled to their costs on the appeal.

The other Justices concurred.


author: Martin Ch. J.:

text:
    Alvin Porter v. William Henderson.
    Ia an action for slander, for words actionable in themselves, where general damages only are claimed, the defendant is not entitled to show in mitigation of damages under the general issue, that “during the six years prior to the suit inveterate feelings of hostility had existed between the plaintiff and the defendant, and that the plaintiff had taken every opportunity to irritate th® defendant.”
    In an action for slander in charging plaintiff with perjury, evidence is not admissible on behalf of defendant, that on an occasion not appearing to have any connection with the matter in controversy, the plaintiff called him a liar and a perjured wretch. 3ffor where general damages only are alleged is evidence admissible in mitigation of damages that plaintiff has stated that the slander complained of did him no damage.

      Heard July 12th.

      Decided November 18th.

    Error to Lapeer Circuit. The case is sufficiently stated in the opinion.

      A. B. Maynard and A. C. Baldwin, for plaintiff in error,
    to the point that evidence of long continued hostility between the parties should have been admitted, referred to 8. Wend. 602; 8 Gratt. 31; Farr v. Rasco, 9 Mich. 323. To the other point, that evidence was proper that plaintiff (below) had stated the slander did him no injury, they cited: — 7 Ind. 567; 5 T. B. Monr. 368; 32 E. L. & E. 544.

      Crofoot & Dewey, and C. I. Walker, contra,
    cited: — 3 B. & C. 113; Ry. & M. 422; 13 Pick. 503; 4 Wend. 336; 7 Wend. 560.
   Martin Ch. J.:

This is an action of slander for words actionable in themselves. The declaration claimed general damages only, and the plea was the general issue. At the trial it appears that the utterance of the words charged to be slanderous was proven, and that the defendant (plaintiff in error) offered testimony in mitigation of damages, which the Court rejected; and upon the rulings-, and decisions of the Circuit Judge in rejecting • such testimony error is assigned: Birst, that the Court below “refused to allow evidence that during the six years prior to the trial inveterate feelings of hostility had existed between the plaintiff and defendant, and that the plaintiff had taken every opportunity to irritate the defendant.”

In this ruling there is no error. The declaration charges the defendant with the uttering of words imputing to the plaintiff perjury in testifying upon the trial of an indictment against one Shipley and one Baker, and also of words imputing larceny. The trial of the indictment occurred in August, 1859, and the slanderous words are charged to have been spoken in the March following; and as the bill -of exceptions furnishes no specific information of the times and occasions when the words were spoken, we can draw no inference that any of them were uttered before the trial; and indeed as to those imputing perjury, it is clear that they must have been uttered after. “It is obvious that the purposes of justice require us to look as far as practicable to the conduct and motives of both parties in connection with the subject matter of the grievance, in ■order to estimate fully and fairly the amount of damages sustained by the one, and of retribution which ought to be made by the other. If the plaintiff has been free from blame, and has been made the victim of the defendant’s cool and deliberate malice, the case presented is widely ■different from one where the plaintiff, by his own misconduct, occasioned or provoked the injurious imputation.” But I apprehend there must be either some misconduct or some provocation immediately occasioning the grievance, or so connected with it as to furnish to some degree a reason or excuse for it, to allow the act of the defendant to mitigate the damages the law would otherwise award for the injury. The proposition in this case was too broad, ■as it tended to . show no immediate provocation, or proper motive; but on the contrary malice and inveterate hostility on the part of the defendant as well as on that of the plaintiff, for years prior to the alleged injury. The plaintiff in 'error was rather benefited than damnified by the rejection of this offexq as the malice and hostility of the one afforded no excuse for that of the other, nor was the continued inveterate hostility of the one a provocation sufficient in the eye of the law to justify retaliatory hostility, or to mitigate damages for an unjustifiable and unprovoked injury. The offer of the plaintiff in error was* in reality, to show that he was moved by vindictiveness to utter the alleged slander. This is neither a justification nor an excuse, in ethics or in law for a wanton wrong. General evidence that the plaintiff had been in the habit of slandering the defendant is inadmissible to mitigate damages for slander deliberately uttered: — 3 B. & C. 113; R. & M. 422: much more, I think, would 'be the testimony offered in this case, which tended to show mutual hostility, but no overt act or immediate provocation for the slander. It is only in cases where the provocation is so recent as to induce a fair presumption that it occasioned the utterance of the slanderous words, and that they were spoken during the continuance of the feelings and passions excited by such provocation, that evidence of provocation can be admitted for the purpose of mitigating the damages which would otherwise be assessed for the injury done. See Child v. Homer, 13 Pick. 503; Beardsley v. Maynard, 4 Wend. 336; S. C. 7 Wend. 560.

It is secondly assigned as error that the Court refused to permit the defendant to prove, that on the occasion of a trial at Thornville, before a Justice of the Peace, the plaintiff called him a liar and perjured wretch. The foregoing reasons are equally applicable to show that there was no error in this ruling. But a further reason arises from the indefiniteness of the offer. The affair at Thornville is not shown to have any connection with the alleged grievance, or as having been any provocation to it. It appears to have been offered as evidence of hostility, or as a justification for retaliatory words, spoken, perhaps, long afterwards. In no light can I view the evidence as proper.

The last error assigned is upon the refusal of the Court to allow Townsend to testify that the plaintiff had stated that the statements of Porter did him no damage. I can see no error in this ruling. The elements of -redress in an action for slander are the wrong done to the plaintiff, and the malice or vicious intent of the defendant; and •where no special damages are alleged, the jury are left to determine the amount of damages according to the character and enormity of the injury; and they are assessed as retributory rather than compensatory. Consequently, although the plaintiff may have declared that the words did him no injury, yet the jury might have thought the conduct of the defendant such as to demand exemplary damages; and they would not be bound by such admission. Had the plaintiff claimed special damages, or that he sustained any special injury, so that damages might be said to be the sole object of the suit, as it is said they are in Richardson v. Barker, 7 Ind. 567, then, undoubtedly, his statement that he has sustained no special damage or injury would be competent evidence to go to a jury in mitigation of damages, and perhaps in bar of the action. But from the utterance of words actionable in themselves, the law conclusively presumes some damage to have resulted, and through the intervention of a jury assesses the damages according to the nature and character of the grievance; and if special damages be not alleged, those given by the verdict may be said to be retributory, and not compensatory. The idea of compensation does not arise, for no standard for determining the amount of injury is given. But it was argued that the admission should be received' as the declaration of a party against his own interest; and Richardson v. Barker, is relied upon in support of' this proposition. To the authority of that case I do not yield. I do not well see how such an admission, if made,, can be regarded as "a declaration against a party’s interest, which would bind him. It is but an expression of opinion as to the effect of the grievance, and as such can have no binding force. Those declarations and admissions which bind the party making them, and which he is estopped to deny, are declarations or admissions of facts by which the rights of others are or may be affected, and must be-made with a purpose of affecting or influencing the judgment or action of another. But the loose conversations of one respecting the effect of a particular act upon himself can affect no right of any other party, and consequently can not be binding upon any one.

The case of Evans and wife v. Smith, 5 T. B. Monr. 363, is referred to ag sustaining this allegation of 'error. But that decision rests upon a very different principle, and of its correctness I have no question. That was slander of the wife; and evidence showing that the husband had said he did not believe that the defendant oi’iginated the report against his wife, and that he had merely related what he had heard, but that it -was necessary to sue somebody to stop the report, was held admissible in mitigation of damages, as it went to the circumstances of the slander, and the motives of the defendant, and to the question of malicious intent; as well also as to the object in bringing the suit. But the effect of the slander was not involved in the admission, nor so considered by the Court. It introdrxced no new rule of damages; while the proposition of the defendant in this case, if allowed, would tend to establish this rule; The fairer the character of the plaintiff, the less the injux-y, and consequently the smaller the damages to be given. Such a rule can not be tolerated.

The judgment is affirmed.

The other Justices concurred.


author: Manning J.: Campbell J.

text:
    Lyman D. James v. John Brown and others.
    "Where a mortgagee, with knowledge of a subsequent mortgage on a part of the premises mortgaged, to him, releases a part or the whole of the premises not covered by tbe subsequent mortgage, and. the remaining property is not sufficient to pay both, equity will postpone the payment of the first mortgage out of the proceeds of a sale of the remaining property to the extent of the injury done the subsequent mortgagee by .the release.

      Bat tbe rule of notice, in such case, is different from tbe rule equity acts on to protect bona fide purchasers. Where one purchases property which was subject to an equity in the seller's hands, it is enough that he hare knowledge of such facts and circumstances indicating tbe equity as would have led a prudent man to inquire in regard to it, and that be omitted to do so; while in the ease of mortgages, tbe existence of tbe second mortgage should be clearly brought home to tbe knowledge of tbe first mortgagee, in such a way that any act injuriously affecting the interests of the subsequent mortgagee will show an intentional disregard of tbe interests of such subsequent mortgagee.

      Heard July 11th and 12th.

      Decided November 18th.
    Appeal from Wayne Circuit in Chancery.
    The bill was filed against John Brown and Emma his wife, Uzziel Dunham and Walter C. Skiff, to foreclose a mortgage given January 21, 1855, by Brown and wife to Enoch James, to secure the payment of $13,000 in three payments, at three, four and five years respectively, with interest, for which notes were given. This mortgage was upon lot 39 in section number Y of the Governor and Judges’ plan of the city of Detroit, and was assigned to complainant January 19, 1858. The bill states that, before such assignment, and on January 21, 185Y, Enoch James released to John Brown a portion of the mortgaged premises particularly described in the bill. At the time of filing the bill the whole principal, and $1,600 of interest, were claimed to be owing on the mortgage.
    Brown and his wife answered, alleging that the mortgage was given to secure the payment of $6,500 money loaned, and $6,500 in satinet cloth, which was to be worth fifty cents per yard, to be thereafter delivered; that the requisite quantity of cloth was afterwards delivered, but of greatly inferior quality and value; and a deduction was claimed from the mortgage of $3,650 by reason of the inferior quality of the cloths.
    Skiff answered, that he was assignee of a mortgage of $8,500, given to Brown, August 22, 1855, by Uzziel Durham, on a portion of the premises covered by the James mortgage and not released therefrom, which portion Durham had purchased of Brown at that date; that this mortgage

      was duly recorded August 24, 1855, and was assigned by Brown to Skiff, August 21, 1855, to secure the sum of $2,000 Brown was owing him. The answer further states that before James released to Brown any of the premises covered by his mortgage, they were ample security for the two mortgages; that the value of the portion released was $14,000,, and of the remaining portion only $13,000, 'and that by the operation of the release Skiff’s security will be entirely destroyed unless the Court shall give him relief against the same — both Brown and Durham being ■entirely irresponsible. And it avers that James had notice ■of the Durham mortgage, and of its assignment to Skiff, before executing the release.
    Replications having been filed to the answers, and testimony taken, the Court below made a decree in favor of James, allowing him $6,500 for moneys included in the mortgage, but only twenty-seven cents per yard for the satinets; for the payment of which sums decree was made ■against Brown, but postponing the lien of complainant to that of Skiff on the premises covered by the Durham mortgage, to the extent that the security under that mortgage would be affected by the release to Brown. From this decree James appealed.
    C. I. Walker, for complainant,
    argued that the proof •did not establish the contract in regard to the satinets set up in Brown’s answer; that the record of the conveyance from Brown to Durham, and of the mortgage back, -and the -assignment of this mortgage to Skiff, was not ■constructive notice to James: —1 Johns. Ch. 409; 1 Sandf. Ch. 405; 2 Barb. Ch. 151; 3 Sandf. Ch. 192; 5 Rawle, 51; 2 Stock. 119; that the notice of a subsequent incumbrance, to affect a prior incumbrancer, in the absence of collusion or fraud, or of an intent to injure the subsequent incumbrancer, should be a full and clear notice from the latter, that he has and relies upon such subsequent incumbranee, and that the prior incumbrancer must do no act to lessen his security. Just this kind of notice is contemplated by the cases above cited, especially by 3 Sandf. Ch. 208; 2 Stock. 124, and 5 Rawle, 51. The burden of proof to show notice is upon Skiff, and it must be clear and distinct, so that James would have been acting in bad fajth to disregard it: — 4 Mich. 87; 2 Lead. Cas. in Eq. 136 and 190; 28 E. L. & Eq. 84.

      H. M. Cheever, for defendants Brown.

      Wells & Hunt, and G. V. N. Lothrop, for defendant Skiff, to the point that- the holder of a prior mortgage can not release a part of the mortgaged premises, and thus increase thé burden upon that part covered by a subsequent mortgage covering less than the whole, cited: — 2 Barb. Ch. 151; 6 Paige, 35; 1 Johns. Ch. 425; 3 McLean, 587; 19 Pick. 231; 11 Penn. 312; 4 Halst. 561; 8 N. Y. 271. And whatever is sufficient to put the party upon inquiry, is notice of the subsequent mortgage: — 4 Mich, 87; 3 Sandf. Ch. 192, 208; 2 Stock. 119.
   Manning J.:

Complainant, who is also appellant, insists that the decree of the Court below in his favor is erroneous in two particulars:

1st. In not allowing a larger sum to be due him on the mortgage.

2d, In making the decree in his favor subject to Skiff’s interest in the Durham mortgage.

The consideration of the mortgage the bill is filed to foreclose, was $6,500 cash, and $6,500 in satinet at fifty cents per yard. The satinet was afterwards delivered, but it was not worth over twenty-five or twenty-seven cents per yard, as appears by the testimony; and the question is whether it was to be received by Brown at fifty cents per yard, or was to be worth fifty cents per yard. * * * From the evidence before us' we must hold that there was a warranty that the satinet should be worth fifty cents a .yard. The Circuit Court was right, therefore, in deducting from the amount of the mortgage the difference between the actual value of the satinet per yard and the fifty cents.

2d. Had James notice of the assignment to Skiff when he released a part of the premises covered by his own mortgage? On the answer to this question depends th'e correctness of that part of the decree postponing complainant’s rights to Skiff’s interest in the Durham mortgage, so far as the release lessened the security for the payment -of what was due Skiff on the latter mortgage.

If A. has a mortgage on two pieces of property, and ■B. a subsequent mortgage on one of the pieces only, and A: files a bill to foreclose his mortgage, in order to protect B. without injuring A., equity will require A. first to sell the piece not covered by B.’s mortgage, before selling the latter, when it can be done without jnejndice to the recovery of A.’s debt, but not otherwise. Acting on this principle, if A., with a knowledge $ of B.’s mortgage, releases a part or the whole of the lot not covered by B.’s mortgage, and the remaining property is not sufficient fio pay both A. and B., the Court will postpone the payment of A.’s debt to the payment of B.’s out of the proceeds of a sale of the remaining property to the extent of the injury done B. by the release.

• The principle the Court acts on in this class of cases s different from the principle it acts on to protect bona fide purchasers. In purchasing property the buyer must look to the title of the seller. If the seller have no title the buyer acquires none. If he have the legal title and there be an equity affecting it in his hands, the purchaser may or he may not take the property subject to the equity. Actual knowledge of the equity is not necessary to charge him with it. It is enough that - he had a knowledge of -such facts and circumstances, indicating an equity in another, as would have led a prudent man to inquire in regard to. it, and that he omitted to do so.

The question before us does not involve the duties of' a purchaser, but one’s duty in dealing with his own property.

The law requires every man so to deal with his own ■ as not unnecessarily to injure another. He may sell his. property to whom he pleases, without consulting his neighbor, or inquiring how it may affect his interests. And if he take a mortgage of A. to-day, he may to - morrow, or next week release a part or the whole of the mortgaged premises on the request of the mortgagor, without troubling himself to inquire whether in the mean time some one has not taken a subsequent mortgage, and if so, whether it would be agreeable to such person that he should release. It is the duty of a subsequent mortgagee, if he intends to claim any rights through the first mortgage?, or that may affect the rights of the mortgagee under it, to give the holder thereof notice of his mortgage, that the first mortgagee may act with his own understandingly. If he does not, and the first mortgagee does with his mortgage what it was lawful for him to do before the-second mortgage was given, without knowledge of its existence, the injury is the result of the second mortgagee’s negligence in not giving notice. While the law requires every man to deal with his own so as not to injure-another, it imposes a greater obligation on the other to take care of his own property than on a stranger to take care of it for him. And to make it the duty of the first mortgagee to inquire before he acts, lest he may injure some one, would reverse this rule, and make it his duty to do for the second mortgagee what the latter should da for himself. To affect the conscience, therefore, of the first mortgagee — for this whole doctrine is one of equity jurisprudence and not of positive law — it would seem that he should have actual knowledge of the second mortgage.

We do not say notice from the second mortgagee is absolutely necessary to enable him. to claim the rights of which we have been speaking; but we do think that the existence of the second mortgage should clearly be brought home to the knowledge of the first mortgagee, in such a way as to show an intentional disregard by him of the interests of the subsequent mortgagee.

We do not think this is done in the present case.

The Durham mortgage was one given by Durham to Brown, who could claim no property under it by reason of the release he had procured from James. James may, and we think did, know of the Durham mortgage; but did he know of its assignment to Skiff?

Brown’s testimony is the only evidence bearing directly on this question. It becomes necessary therefore to examine closely. He no where states in his testimony that he ever informed James that he had assigned the Durham mortgage to Skiff. It may be inferred, but it is not stated in clear and unequivocal language.

He says “some two or three months prior to the date of the release, I had a conversation with Enoch James in relation to what was called the Skiff mortgage, that is, the mortgage given by Durham to me, and by me assigned to Skiff.” The conversation according to this statement was relative to the Durham mortgage, and not to the assignment of it. By whom the Durham mortgage was commonly called the Skiff mortgage he does not say. But after saying the conversation related to the Skiff mortgage, he goes on to state what he means by the Skiff mortgage; that it was a mortgage given by Durham to him, and by him assigned to Skiff. It is in this roundabout way that Skiff and the assignment are mentioned. If the conversation related to the assignment by him of the Durham mortgage to Skiff, he should have said so, but he does not. A little further on in his testimony he says: “ During the conversation, Mr. James mentioned the Skiff mortgage, and contended he would have that mortgage to pay or take care of. I told Mm no; and I contended that he had a right to execute the release.” Here the Skiff mortgage is used again by the witness, and we must suppose in the sense in which it is first used by him, when he says he means by it the Durham' mortgage. It is used a third time by him in speaking of what occurred at Maynard’s office. He says it was there mentioned that the Skiff mortgage was for $2,000, or thereabouts. The' Durham mortgage was for $5,500, and it was assigned to Skiff for $2,000. It would therefore seem that in this instance he must have meant by the Skiff mortgage the assignment to Skiff and not the Durham mortgage. But this inference is too slight to charge James with a knowledge of the assignment to Skiff.

' Miller, defendant’s witness, heard a conversation between Brown and James before they went to Maynard’s office, and went with them there; but there is not one word in his testimony about Skiff, the Skiff mortgage, or the $2,000. He speaks of the Durham mortgage, but not one word of any assignment. It is a little singular if the assignment of the Durham mortgage to Skiff was what stood in the way of the release, that Miller, who was then negotiating to loan money to Brown on the property to be released, should make no mention of Skiff, the Skiff mortgage, or an assignment.

We have been thus particular in scanning Brown’s testimony, as the defense may be said to turn on the view taken of it. In our opinion it does not bring home to James a knowledge of the assignment of the Durham mortgage to Skiff.

There is other testimony of a circumstantial nature, which it is not necessary to notice, as it is consistent with a different theory from that maintained by "the defense; and with the view we have taken of Brown’s testimony is of no importance.

The decree, so far as it postpones what is due complainant to the rights of Skiff under the assignment of the Durham mortgage, is erroneous, and must be so modified as to give a priority of payment to complainant, with costs in this Court.

Martin Ch. J. and Christiancy J. concurred.

Campbell J.

concurred except as to the price of the. satinet, in regard to which he held the defense not to be sustained by the evidence.


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    Joseph G. Farr v. Betsey Sherman.
    It is not essential to tbe validity of a deed by a married woman of lands owned by her at the time the act of 1855 — Oomp. L. p. 966 — was passed, that her husband.shall join, in or assent to the deed.

      Heard November 4th.

      Decided November 18th.

    Case made from Oakland Circuit.
    Farr brought ejectment against Shermanj to recover lands which she had owned prior to 1855, and which, by deed bearing date in June of that year, she had conveyed to one Parish, through whom Farr claimed title. The defendant at the date of this deed was the wife of Samuel Sherman, since deceased, to whom she was married in 1843, and who did not consent to or have knowledge of this deed to Parish. The - Circuit Court held the deed so given without the husband’s assent to be void, and rendered judgment for defendant.

      M. L. Drake, for plaintiff.

      I. H. Parish, for defendant.
   Martin Ch. J.:

The land in question being the property of the defendant at the time of the conveyance by her to Parish, she had power, under the act of 1855, to sell and convey it Cfin like manner and with the like' effect as if she were unmarried.” The obvious intention of the act of 1855 was to give to a feme covert the same control over and power of alienation of her property as she would have if a feme sole; and the husband’s assent is no longer necessary to render valid a conveyance by her of her separate estate, as against herself. Whether the husband, if living with her, or surviving her, may not have rights adverse to the claim of her vendee to possession, and superior to that claim during the life of such - husband, is a question not involved in this case; certainly no one but the husband can dispute the plaintiff’s claim or title; and as the husband is dead, the right of the. plaintiff to the possession is perfect.

The judgment should be reversed, and a judgment rendered for the plaintiff.

The other Justices concurred.


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    Simeon Smith v. Calvin P. Austin and others.
    One whose sole interest in lands is under a trust deed by virtue of which he is to become entitled to the lands after payment of the mortgages upon it and certain other specified demands, is not entitlod, if he repudiates the trust, to file a bill to redeem from the mortgages.
    Nor can he make any arrangement with the holders of the mortgages by virtue of which he is entitled in equity to bo subrogated to the ’rights of the mortgagees without his paying the other demands specified to be paid by him in the trust deed.

      Heard October 22d.

      Decided November 18th.

    Appeal in Chancery from Sanilac Circuit.
    This case was once before in the Supreme Court, and is reported in 9 Mich. 465. After.the decision then given the bill was amended so as to show:
    That on November 10, 1853, Rollin C. Smith and Alfred A. Dwight held the legal title to nine thousand acres of land in Huron county, known as the Port Austin property, the equitable title to which was in the firms of Smith, Dwight & Co., doing business in Michigan, and William F. Smith & Co., doing business in Ohio, both of which firms were composed of the persons named and William F. Smith, complainant’s son, who had saw mills thereon:
    That on the day mentioned, said R. C. Smith, Dwight and William A. Howard, loaned from Calvin P. Austin $30,000 for said partnership, to secure which a mortgage was given on said lands:
    That on January 3, 1855, R. C. Smith and Dwight conveyed said lands to Howard, who, on the fifth day of March following, gave a mortgage for $15,000 thereon to Almet Reed, and he, in December, 1855, assigned the same to Roswell Reed:
    That Howard conveyed the lands to Albert L. Catlin in March, 1855, and Catlin conveyed them to William Warner in October, 1856 :
    That prior to said conveyance to Howard, the said firms had become insolvent, and the said conveyances to Howard, Catlin & Warner, though absolute in form, were really given for the purpose of securing the payment of debts of said firms.
    That William F. Smith, who had had charge of the business of the Ohio firm, being particularly anxious to pay its indebtedness, amounting to about $100,000, induced complainant to co-operate with him in the attempt to manage said property and pay off the incumbrances and indebtedness, for the consideration of what should remain thereafter; said William F. Smith to act as complainant’s agent.
    That accordingly, at the request and by the procurement and for the benefit of complainant, Warner and his wife, on October 14, 1856, executed a trust deed of said land to Thomas B. Rose. This deed, which recited a consideration of one dollar paid by complainant, conveyed the lands to Rose as trustee “for whoever are or may hereafter become the lawful holder or holders of a certain contract and certain promissory notes hereinafter mentioned,” but upon the following trusts and considerations:
    ' 1. That complainant should be put in possession of said property, and the same should be operated, used and managed, and the proceeds disposed of in his name by W. F. Smith, as his agent.
    2. Complainant and his agent should apply such proceeds, first, to the performance and satisfaction of a contract between himself and Warner and Catlin of even date, for goods, feed, supplies, teams and other personal lumber property; second, to the payment and satisfaction of the incumbrances to the extent necessary to prevent the title of the property, or any of it, from passing by virtue of foreclosure; third, to the payment of twelve notes made by said W. F. Smith in favor of certain parties in Ohio, amounting to §29,465; fourth, to the payment of á note made by said^W. F. Smith to Catlin for §4,000 ; fifth, to the payment of an acceptance of Smith, Dwight & Co., of §3,000, and two drafts drawn in favor of parties in Ohio, by W. F. Smith & Co., for §4,000; sixth, to the payment of nine notes made by W. F. Smith, to parties in Ohio, amounting to §35,000; seventh, to the payment of three other notes amounting to §5,162.
    , 3. So long as complainant and his said- agent should perform the contract with Warner and Catlin, and make the said payments, and perform all other conditions and requirements of the trust deed, they were to retain the property, and operate, use and manage the same, with the right of disposing of the products for the purposes aforesaid.
    4. If they should fail in fulfilling the obligations of the Warner & Catlin contract, or of the notes, or of the trust deed, the trustee might take possession of the property, and operate the same, and apply the net avails in the manner above pointed out, and if the same should not be sufficient to pay all, after satisfying said contract and inducing the holders of the incumbrances not to foreclose, then to pay the successive classes in their order, and when 'all were paid the title to the property was to pass to complainant.
    5. If complainant and his agent should fail to perform the conditions of the Warner & Catlin contract, or to manage the property and dispose of the products with sound business discretion, or fail for three months to pay any of said notes as the same should come due, it should be the duty of the trustee, on the written application of the holder of said contract, or of six - tenths the amount of said notes then outstanding, to take possession of said property and operate the same, and dispose of the products in manner aforesaid; and on like application to make sale of said property and pay over the proceeds in like manner, and the balance, if any, to complainant.
    After the Warner & Catlin contract was satisfied, complainant might, with the ■ approval of the trustee, sell the lands, and apply the proceeds, first to the encumbrances, and next to the satisfaction of said debts; and the trustee was to execute the proper conveyances. And on the full performance of all the conditions of the trust deed, the title to the property, or to what should remain, was to vest in complainant.
    There were other provisions in the trust deed not necessary to be mentioned here.
    The bill then sets forth that complainant took possession of said lands, and invested about $20,000 in supplies, &c., to carry on the business; that he continued to manage the property up to the close of 185T, and paid off about $20,000 of the debts' provided for by the trust deed; that that year proved one of commercial disaster, and Roswell Reed, becoming convinced that complainant could not pay his mortgage and meet the requirements of said trust, filed his bill in chancery against complainant, Rose and others, to foreclose the same; that complainant also became convinced he could not pay the Ohio indebtedness and also the mortgages, and being desirous to save at least what he had been induced to put into said property, being about §30,000, made, agreements with the holders of said mort' gages pending said foreclosure proceedings, for an extension thereof so far as regards complainant, which agreements were made by complainant • on his own behalf as an individual, for his own protection, to enable him, if possible, to get back his advances, and not for the benefit of the creditors provided for under the Rose trust. These agreements — one being with Warner as trustee for Austiu, and the other with Reed — are set forth at length in the bill, and provide for the payment of the mortgages by complainant in certain instalments, to Warner as trustee for Reed and Austin. The bill states that complainant, relying on these agreements, paid no further attention to the foreclosure proceedings, and in pursuance of them the iDremises were sold and bid off by said Roswell Reed. The bill alleges that complainant made the payments as they became due under these agreements,- until the last day of July, 1859, when Warner, as’ trustee of Reed and Austin, on the pretence that complainant had not complied with his agreement, took possession of the trust property. The bill then,, after setting. forth various other facts not material to be here recited, asks an account, and a redemption from said mortgages, or that he be declared subrogated to the places of said Austin and Reed as purchaser or assignee of their said mortgages, and that the same be declared valid and subsisting liens upon the property in favor of complainant.
    Austin and Warner demurred to this bill, and the Court below sustained the demurrer and dismissed the bill. Complainant appealed.

      C. I. Walker, and A. Russell, for complainant.

      G. V. N. Lothrop, and D. C. Holbrook, for defendants.
   Christiancy J.:

This case comes before us for the second time on demurrer to complainant’s bill. The decision of the case as formerly presented, 9 Mich. 465, disposes of several questions which might otherwise arise.

The only questions which remain to be decided on the present demurrer to the amended bill, are those which grow out of the trust deed to Rose, which was not set forth nor its provisions sufficiently described in the former bill to enable us to judge of its effect upon the rights of the parties. The complainant there alleged that he was interested in the mortgaged premises by contract, but set forth no contract giving him an interest. And we there held that there was nothing in the trust instrument to Warner, nor in the contract with Reed, which gave him a' right to- redeem, or which would entitle him to be subrogated to the rights of a mortgagee under the Austin or Reed, mortgage, by paying them off, according to the terms of the trust instrument to Warner and of the contract with Reed; but that, without showing any interest in the premises derived from the mortgagors, and subject to the mortgages, he stood in the position of a mere volunteer or stranger. Ifj then, the complainant has, by his present bill shown any interest in the mortgaged premises to entitle him to redeem, or to have the mortgages released, or to subrogation under them on payment, that interest and the right of subrogation must be founded upon or grow out of the trust deed to Rose.

It is manifest from an examination of this deed, that no beneficial interest was to vest in complainant until the full payment of the Warner & Catlin contract, as well as of all the five classes of creditors known as the Ohio creditors (the claims of the latter amounting to some $70,000) ; and that it was for the complainant so far to pay .or take care of the Austin and Reed mortgages as to prevent the mortgaged premises being lost by foreclosure before all the above mentioned claims should be paid; and that if the property should be sold, either by the trustee, or, with his approval, by the complainant or his agent,, under the qualified power contained in the trust deed, complainant would be entitled only to such balance of the ¡proceeds as should remain after full payment of all these claims. It is true the deed, being executed only by Warner and wife, and not by complainant, did not, of itself, bind the complainant to pay these claims, but such payment (and the protection of the property from foreclosure until such payment) constituted the condition upon which alone he could obtain any interest in the mortgaged premises, or their proceeds if sold.

This deed, the bill alleges, was executed and delivered by Warner to Rose, at the request and by the procurement and for the benefit of the complainant. He states, and it is clear from the whole bill, that he went into possession and managed the property under this trust up to the close of the year 1857, and paid off about twenty thousand dollars of the debts therein provided for. It is clear also that it was by this instrument alone that he obtained any right to enter into the possession or in any, manner to interfere with the property, and that by this alone, and his possession under it, be obtained whatever right and power he possessed of entering into the trust agreement with Warner, of December 28, 1857, and the dependent agreement of the same date with Reed. The trust instrument to Warner professes on its face to be made subject and subordinate to the Rose trust, and the agreement with Reed refers to and adopts the Warner trust agreement. Roth these agreements relate to the payment of the mortgages, against which, by the Rose trust, it was the duty of complainant to fprotect the property by payment or otherwise, and are therefore merely subsidiary to the Rose trust.

Doubtless this Rose trust, while it remained open and subject to be performed by complainant, and not abandoned or repudiated by him, might constitute a sufficient interest pa complainant to enable him to maintain a bill for redemption or release of the mortgages, and perhaps for subrogation under them, if the case were such in other respects as to call for such subrogation; but that interest would be subject to all the trusts and conditions of the Rose trust deed until performance of the conditions by complainant. And, admitting that complainant, after, as he alleges, having gone into possession and paid off some twenty thousand dollars of the debts, might have repudiated or abandoned the trusts, without any liability on his part to pay more; yet if he elected to'do this, he could have no claim, legal or equitable, for the amount he had so expended; since it was only upon the faith of his paying this and a much larger sum, that he was permitted to go into possession, or to obtain any interest in the property. When, therefore, he declares his. inability, or repudiates all obligation, to make the payments-, which constituted the condition upon which his interest, was to depend, he abandons or repudiates all interest in the mortgaged premises, and stands as a mere stranger or-volunteer, without any interest whatever in the premises,, or in the redemption or release of the mortgages. This,, and even worse than this, is the position in which the. complainant has placed himself by his present bill; for after having alleged his going into possession and paying off some twenty thousand dollars of the debts, and stated the filing of Reed’s bill of foreclosure, he goes on to say that “your orator became also convinced that he coiild not pay. said Ohio indebtedness, and also said mortgages, and desiring to save at least what he had .'been induced to put into said property, being about thirty thousand dollars, pending the said foreclosure proceedings made certain agreements with the holders of said mortgages for an extension thereof” — referring to said trust instrument to Warner, and the Reed contract — “as far as regarded your orator, one of the defendants in said proceedings; ‘that said agreements were made on the part and behalf of your orator, as an individual, for his own protection, to enable him if possible to get back his advances, and not for the benefit of the creditors provided for under ■said Mose trust." So far, therefore, from claiming in subordination to the Rose trust, or offering to perform its •conditions, or asking relief for the purpose of enabling ¡him so to do, this is a clear repudiation of that trust. He claims his interest under this trust deed, and yet asks the court to aid him in defeating it, that he may obtain its benefits without bearing the burdens upon which alone those benefits were to depend. He claims under and against the instrument at the same time, and asks the aid of the Court to enable him to defeat the Ohio creditors, to the amount of seventy thousand dollars or more, which by the same instrument he was to pay as a condition precedent to the vesting of any interest of his own; and asks to be allowed to redeem the Austin and Reed mortgages, and to be subrogated to their rights under them, for the purpose of cutting off and defeating the claims of those creditors, when by the terms of the very instrument under which he claims, it was his duty, as a condition precedent to any rights of his own, to protect the property for the benefit of those creditors against these very mortgages. This, in plain English, is asking the Court to aid him to perpetrate a fraud upon the creditors provided for under that trust, and whose interests were by that very instrument made paramount to his own. This no court could permit, though all the parties to the suit should fail to make the objection.

It is no answer to this objection to say that these Ohio creditors were cut off by the foreclosure of the Reed mortgage against Rose, the trustee, who was a party to the foreclosure, when it was the complainant’s duty to those ■creditors to have protected the property from that fóre- ■ closure, and when, as assumed by the bill itself, complainant was not bound by that foreclosure. He could only be allowed, therefore, to set aside that foreclosure for their ■benefit as well as his own, and in preference to his own rights. This he has not asked, but he asks that their rights may be cut off while his are protected.

The decree of the Court below, allowing the demurrer 'and dismissing the bill, must be affirmed, with costs.

The other Justices concurred.