author: Campbell J.

text:
    Joel P. Cooper v. Marcia V. Cooper.

      Divorce; Separation: Agreement. Where husband and wife have parted, and agreed on a permanent separation, a wife, who has been induced by the urgency of her husband to return to him, will be justified in leaving him again if there is no improvement in their domestic affairs, although his misconduct may not be such as would have afforded sufficient proof of cruelty to justify a divorce on that account.

      Divorce: Unruly tempers. Courts can not lawfully divorce parties merely because, from unruly tempers and mutual wrangling, they can not live happily together. They are bound to submit to the ordinary consequence of human infirmity and unwise selection, and the misconduct which will authorize a divorce must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable.

      Extreme cruelty. The statutes do not confine the definition of extreme cruelty to physical violence, but the grievances, whether mental or physical, must be of the most aggravated nature, in order to justify a divorce.
    Desertion, when a ground of divorce. A. divorce can not be granted for desertion, unless it is against the consent or acquiescence of the deserted party; and when a separation has once been deliberately consented to, nothing but an unconditional resumption of former relations can restore the parties to such a position as would make a new separation by the departure of the wife such a grievance as would amount to a criminal desertion.

      Alimony: Costs. The wife in this case was allowed a sum towards her expenses, beyond taxed costs, it not being deemed equitable, under the circumstances, to throw the whole burden on her separate allowance, which had been agreed upon at the separation, without reference to any such contingency.

      Heard My 8th.

      Decided July 13th.
    Appeal in Chancery from Kalamazoo Circuit.
    The bill in this cause was filed by complainant to obtain a divorce from defendant on the ground of desertion.
    The cause was heard on the pleadings and proofs, and a decree granted in favor of complainant.
    The facts are stated in the opinion.

      Stuart, Edwards & May, for complainant.
    1. The bill in this case charges the defendant with desertion, and that only.

      a. It is therefore insisted that the defendant can not charge the complainant with adultery occurring subsequent to the desertion, and where it in no way caused or tended-to produce it.

      It is no answer to the charge of desertion, and the statute .does not contemplate, nor was it made to favor this species of equitable set-off.

      b. The statute permits recrimination for the same crime or misconduct; and hence by fair implication excludes every other crime or misconduct, expressio unius est exclusio alterius.

      c. The powers of the court as to divorces, depend on the statutes of this state, and not on any law derived from England.— Hopkins, 557; 3 Edw. Ch. 462.

      ' A defendant can not resist a divorce for adultery by setting up the desertion of the complainant.— 4 Porter, (Ala.) 467; 12 Mo. 53; 4 Rawle, 460; 14 Wend. 637.

    2. But if not correct in this construction of the statute, it is well settled that the defendant must plead and clearly prove the charge. In other words, her proof must be sufficient to entitle her to a decree in case she were complainant.— 4 Paige, 432; 6 Mass. 276; 3 Barb. S. C. 236; Tyler on Inf. and Gov. § 689.

    3. As regards condonement, the rule is, that where the party cohabits with the offender, after probable knowledge of the offense, he shall be presumed to have remitted it. Bishop on Mar. and Div. § 859.

    This rule is nevertheless based upon the implied promise of the complainant that he would abstain from personal violence in the future.

      4. The cruelty which entitles the injured party to a divorce, is conduct which endangers the life or health of the complainant, and renders cohabitation unsafe.— 2 Paige, 501; 2 J. J. Marsh. 322.

      Balch, Smiley & Batch, for defendant.
    1. The ill usage of the defendant by the complainant is a sufficient cause for her leaving him. It is always a defense to desertion when it constitutes cruelty or neglect, and it has been held to be by some when it did not amount to such legal cruelty as would constitute an affirmative cause of action. — 1 Bishop on Mar. and Div. 791; 2 Danes. Ab. 308; Reeve Dom. Rel. 207; 5 Ire. 674; 16 Md. 213, 219; 4 Rand. 662; 18 Texas, 528.

    2. Such conduct by tbe husband as justifies the wife in leaving him is not only a defense to his action, but it constitutes desertion of the wife by him. There is no difference in law between leaving a wife to take care of herself, and making her life intolerable by cruelty and neglect, so that she can not live with her husband or in his presence. 1 Bish. on Mar. and Div. 569, 791, 792, 793, 794; 5 Ire. 674; Reeves Dom. Rel. 207; 18 Texas, 528.

    3. The articles of separation constituted an acknowledgment by him of his improper conduct towards her, and of her right to a maintenance separate and apart from him. He was liable to support her, and made provision for it. — 1 Bishop, 568, 578.

    4. The evidence shows that his conduct towards her was the same after her return as -before — swearing at her, calling her names, accusing her of unchastity, etc. 'This was sufficient to revive the original cause of cruelty, neglect and desertion: A less degree of cruelty being required to revive a former cause than to constitute original cruelty or desertion. — 2 Bishop on Mar. and Div. $ 58; 25 Vt. 678; 4 Barb. 217; 2 Greenl. on Ev. 53.

    5. It seems the other party may set up acts as a bar to a suit, that have been condoned, although the condonation might be a bar to a suit by the other party setting up the condoned acts. This is founded in the doctrine that the party complaining and asking relief must show himself blameless. — 2 Bishop on Mar. and Div. 97; 1 Hag. Ec. 789, 797.

    6. Slighter acts will bar, than found an original suit. Astzley v. Astley, 1 Hag. Ec. 714, 721.

      7. The adultery proved also revives the acts of cruelty, desertion and neglect. It is not necessary that the reviving act should be of the same kind as the original act. If the original cruelty, desertion or neglect were ever condoned, the subsequent act of adultery revived it and made it available as a defense, or as a cause of action against the complainant.— 2 Bishop on Mar. and, Div. §§55 to 64; 4 Paige, 460; 8 Hag. Be. 618; 1 Hag. Be. 788, 761.

    8. Condonation is always conditional. It is conditioned not only that the same act, or same species of acts, shall not be repeated, but also that the condoning party shall be henceforth treated with conjugal kindness. — 10 Paige, 24; 1 Ed. Ch. 439; 14 Wend. 637; 1 Hag. 734; 3 Ed. Ch. 173; 7 Paige, 60.

    9. Condonation of cruelty is not easily inferred against the wife. It has been held in Massachusetts and Pennsylvania, that the doctrine of condonation does not apply to cases of cruelty at all.— 6 Mass. 69; 6 Barr, 449; 2 Bishop on Mar. and Div. 51 and 52.

    10. The adultery constitutes a bar to the act of desertion. The question of whether one cause of divorce a vinculo matrimonii, would bar another of the same kind, though the acts be of a different nature, is answered in the affirmative by Mr. Bishop, in his work on Marriage and Divorce. — 2 Bishop, 98. — And even where the defense set up is of a different grade, but sufficient to entitle the defendant to a divorce a mensa et thoro, he thinks it should be a bar.
    Dissolution of the marriage has reference to a second marriage, and he who asks this privilege should have discharged properly the duties of the first.— 2 Bish. 92, and note to § 94, 76; Wright, 286; Paige on Div. 240; 11 Ohio, 233; Walk. Miss. 474; 29 Ga. 718; 1 Johns. Ch. 604; 2 Swab. and T. 467; 12 Mo. 53, 157; 9 Id. 539; 10 Cal. 249; 17 Abbott’s Pr. Rep. 48.

      11. Evidence of adultery is usually circumstantial. It need not be proved to have taken place at any particular time or place; general cohabitation is enough.— 2 Bish. 613, 615; 2 Hag. Con. 1; 2 Hag. Con. 223.

   Campbell J.

Complainant filed his bill to obtain a divorce on the ground of desertion. Defendant is shown, beyond dispute, to have left him in a somewhat clandestine manner in May, 1861, and to have remained away from him ever since, and it does not appear that 'there was at that time any immediate provocation which would, of itself, have explained or justified such a departure in the case of a wife, without some further reason lying back of it. Unexplained, such a desertion would come within the statute.

But the defendant resists the divorce on two grounds; First, Because she claims they had previously separated for good cause, and that their reconciliation had been conditional, and the conduct of her husband justified her leaving; and, Secondly, Because he had since been guilty of adultery, and had thereby debarred himself from claiming a divorce on any ground.

It appears that the parties had lived very unhappily together for several years, and that complainant’s conduct had been unkind and harsh, and, at times, violent. In 1859, they agreed on articles of separation, whereby certain property and the custody of a part of the children were secured to the wife, with the usual covenants on her behalf, by a third person, who was made a temporary trustee to effect the transfers. In December, 1860, she was induced to return and live with him, and continued to do so until the time she left in May, 1861. During most of this time it appears that their domestic relations were very much as they had been formerly.

It is claimed by complainant that this return amounted to a condonation of the former grievances, and that there had been no new cause of divorce which she could have relied on. "We do not think that, in the technical sense, there was any case for condonation. The rights of the parties depend on very different grounds than those to which the effect of a condonation is usually sought to be applied. If they had never separated, it is not clear that the wife would have had any ground for a divorce previous to 1859. The law does not permit courts to sever the marriage bond and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable. Our statutes do not confine such cruelty to mere physical violence, which is by no means the worst injury that can be inflicted on persons of refined sensibility, but the grievance of whatever kind must be of the most aggravated nature to justify a divorce. While the proof shows that these parties lived in very unpleasant relations, it is not clear that matters had proceeded to extremity.

But desertion can only be complained of when it is against the will of the party who is deserted, and constitutes a grievance which deprives him of the society of his wife without his consent or acquiescence. If there be a separation by consent, that consent shows that the parties deem it no grievance to be deprived of each other’s society, and nothing but an unconditional and entire resumption of their early relations can restore them to such a position as would make a new separation by the departure of the wife, as in this case, a criminal desertion.

In the case before us, although the wife returned, there was no cancellation of the articles'of separation, and no return of the property which had been divided, although there is some reason to believe that the husband had in view the purpose of getting her means away from her more than that of restoring’ the harmony of his household. It is very evident that the wife did not intend to remain with him unconditionally, and did not renounce her right under the articles. But she did not find the peace and harmony she desired, and he is estopped by the articles and by his conduct from now complaining of her desertion. It can not in law be regarded as a violation of his rights.

As we do not regard the defendant as having been guilty of desertion, it becomes needless to inquire whether she could, if guilty, rely on his subsequent adultery by way of recrimination. We shall, therefore, omit any discussion of the evidence on that subject.

The decree of the court below, granting a divorce, must be reversed, and the bill must be dismissed, with costs of both courts.

It is proper also to make complainant chargeable to some extent for tbe expenses of litigation, which should not he thrown entirely on the funds given for her separate maintenance. He must,- therefore, pay a further sum of one hundred and fifty dollars to the defendant, by way of allowance for such expenses.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Ann Bishop v. George Bishop.
    Divorce; Extreme cruelty. Where a husband, in a moment of passion, and on provocation, told Ms wife if she could not behave herself she had better go, but there was no reason to believe he intended or expected her to leave, and she went away without any further cause, he is not guilty of extreme cruelty, and she has no ground for a divorce.
    Where, after such departure, the conduct of the parties showed that each was manoeuvring to get up a ground of divorce against the other so as to obtain, some legal advantage, no weight should be allowed to such grievances as the parties have thus sought to provoke.

      Adultery not to be lightly inferred. Where adultery is sought to be made out by proof of freedom of manners, unchastity should not be inferred from want of refinement, if the conduct of the party accused is not such as to offend the general sentiment among the class of people with whom she habitually associates. The law can not, without cruelty and injustice, require a higher standard of behavior than virtuous people in the same position accept for themselves and their fellows.

      Adultery: Proof to be closely scanned, even though direct. Proof of adultery, however direct, is to be scanned very closely when the circumstances are improbable, and rejected if intrinsically incredible — as the testimony in the present case was held to bo, even independent^ the character of tho only direct witness, who not only averred himself to be parbiceps criminis, but showed himself otherwise to be of infamous character.

      Alimony: Costs. An allowance was made to the wife for expenses, notwithstanding the dismissal of the bill, the proceedings appearing to have been bona fide on her part. And costs of this court were for the same reason denied to defendant.

      Heard July 10th.

      Decided July 13th.
    Appeal in Chancery from Kalamazoo Circuit.
    The bill in this case was filed by the complainant to obtain a limited divorce from her husband on the ground of cruelty and neglect to support his family. The bill also prayed for the custody of the children and a sufficient provision for maintenance.
    The cause was heard on pleadings and proofs and a decree granted as prayed for.
    The facts are stated in the opinion.

      J. W. Breese, and D. D. Hughes, for complainant.
    1. Although the relief sought by the complainant is to be determined entirely by the statutes above referred to, yet, the general prayer for relief in complainant’s bill, is in the disjunctive, and the court may, under such general prayer, grant any other specific relief consistent with the case, made by the bill. — 2 Paige’s Ch. 396, and cases there cited; 1 Daniells Ch. Pr. and Pl. 455.

    2. The husband, being of sufficient ability, is bound to support his wife in his family. — 2 Kent, Com. 180, 181. And, under our statute, the wife is not obliged to seek some person who is willing to trust her, and take the chances of collection at the end of a law suit.— Bishop on Marriage and Divorce, 637, 638, ignoring the doctrine held in 6 N. H. 87.

    But it is -not claimed in defendant’s answer that the complainant has any remedy at law.
    3. The gravamen of this action is the defendant’s ordering his wife to leave his house, and locking the doors against her; threatening her life if she attempted to enter; and being of sufficient ability to provide a suitable maintenance for her, grossly, wantonly and cruelly refused and neglected so to do.
    This clause is intended for a new cause for divorce, and is entirely independent of that of utter desertion for the term of two years.
    We insist that this case does not present the sole questions of extreme cruelty, but a refusal to support under the statute, is the real point of inquiry.
    We concede that, in an action for extreme cruelty only, the weight of authority is that the proof must show “reasonable apprehension of bodily hurt.” — Tyler on Infancy and Coverture, 886.

    4. The adultery of the complainant; her habit of drinking; want of modesty and leAvd behavior, attempted to be proven by the defendant, is no defense to this action, even if true.

      First. Because adultery is not set up in the answer as a bar to this suit.

      Second. Adultery of the wife is probably a proper subject for a cross bill, an independent matter, and no answer to the bill of complaint, and so of the other matters complained of by the defendant in his answer. — ^ Paige Ch. 432.

    But we deny that adultery on the part of the complain,ant has been proved.

      Batch, Smiley & Batch, for defendant.
    1. Cruelty must consist in acts of violence to the person, or other acts equivalent thereto, such as prey upon and injure the physical health of the person against whom they are exhibited; anything short of such physical injury, falls far short of open and gross cruelty. The cruelty, in fine, must be such as to endanger the life and health of the complainant, and renders cohabitation unsafe.— 2 Paige Ch. 501; 3 Robertson, N. Y. S. C. 669; 4 Barb. 217; 11 Paige, 166.

    2. In this case, in seems complainant first left her husband’s house voluntarily, and in such a case she would not be entitled .even to alimony, much less a divorce.— Anonymous, 4 Desau, 64.

    She did not leave by reason of any cruelty, or threatened cruelty. “Occasional sallies of passion do not amount to legal cruelty, so long as there is no bodily harm or threat of bodily harm.” — 1 Edwards, 278.

    There may have been unhappiness in this family, but no cruelty on the part of the defendant; and courts of justice can not furnish remedies for all the ills of life. — 7 Hag. Con. R. 77; 11 Paige, 46.

    8. In this case there is no allegation of, or pretence that any threats were made, nor the least fear of personal injury apprehended by complainant; one or both of which must exist to constitute legal cruelty. Sir William Scott says in Evans v. Evans, the causes for such apprehension must be grave and weighty, and such as show an absolute impossibility that the duties of the married life can be discharged.— 7 Hag. Con. R. 57.

    Mere austerity of temper, petulance of manner, occasional sallies of passion, if they do not threaten bodily harm, can .not amount to legal cruelty.— 4 Eng. Ecc. 310; 7 Id. 144; 3 N. Y. S. C. 669; 1 Bishop on Mar. and Div. §§ 717, 718, 719 and 740; 4 Johns. Ch. 187; 9 Dana, 52; 10 La. 249.

      4. A complainant in a case like this should come into court upon the fundamental principles of equity, free from blame on her part. The evidence clearly shows the reverse. 1 Bishop on Mar. and Div. § 784; 8 N. H. 307; 11 Paige, 46; 2 Barb. 309.

    The defendant therefore claims that there has been no act of violence on his part towards complainant, no injury to her person, and no allegation or proof of any reasonable apprehension of any bodily harm.— 1 Hag. 34; 4 Eng. Ecc. R. 810, 311; 17 Conn. 189; 3 Mass. 321; 2 Paige. 501; 3 Id. 267; 2 Phillimore, 132.

    Nothing was done in this case which could subject him to a criminal prosecution, nothing which could injure the person qf complainant.— 1 Edwards. 218; 1 Eng. Ecc. R. 232; 4 Mass. 588; 2 Paige, 502.

    5. The prayer of the bill in this case is for a divorce a mensa et thoro, or a limited divorce; such a prayer should always be answered with great caution.— 4 Johns. Ch. 187, 500; 1 Bishop on Mar. and Div. §§ 740, 743; 12 Md. 294; 1 Wright, Pa. 225; 1 Grant, Pa. 389.

    The amount of alimony reported and allowed in this cause is beyond all reason. It being just about one third of his entire property, leaving him to support and educate his children, and her to do nothing.— 3 Paige, 270, 272; 6 New Amer. Enc. 224, 225; 1 Bishop on Mar. and Div. 703, 704; Reeves Dom. Relations, 207, and note; 1 Johns. Ch. 604; 2 Atkins, 96.
   Campbell J.

Complainant filed her bill for a divorce on the grounds . of cruel treatment and neglect to provide means of support. There is no evidence in any way tending to show such neglect, and the only ground upon which any serious controversy could arise is that of cruelty.

This question lies within a narrow compass. Up to October, 1864, the parties are shown not to have lived on terms of enmity, and to have got along without any more •difficulties than might be expected from two persons of no refinement and of quick tempers and ungoverned tongues. Neither appeared to be dissatisfied with the other, but they had occasional differences of no serious or lasting kind.

In October, 1864, complainant claims in her bill that defendant ordered her to leave the house, and she left and continued away until December 1st. She says the anger of her husband was caused by some remark made by her concerning one Phoebe Holmes, a girl staying in the house, but she fails to state what the remark was. Defendant says she charged him and Phoebe with improper intercourse, and it is altogether probable that this is the true account. If so, defendant had good cause for exasperation, and could not be blamed for harsh language in reply. It does not appear in proof that he meant to turn her out of the house. He only admits saying that if she could not behave herself she had better go, and she went without any compulsion. It does not appear that she had any cause for her jealousy beyond her own suspicions, and we can not perceive in this departure any result of extreme cruelty, or anything more than foolish and excessive passion.

Complainant then, according to her own story, remained away at a relative’s, having taken her effects with her, but having left her children at home, and continued to absent herself until December 1st. Having been advised, by some one whom she had consulted, to go and insist upon her rights, she returned home without her baggage, and her husband informed her that her room was better than her company, and refused to allow her to sleep in his room. The next morning he told her he intended to lock up his house and take the children to his mother’s. They had some discussion concerning terms of settlement, but no conclusion Avas reached, and she left. A day or two aftenvards she came back with her trunk, in company with some relatives, and it Avas announced to him that she desired to come back, but he would not allow the house to be unlocked. Negotiations were again opened for a settlement, and she made an offer to settle for three thousand dollars, which he declined, but proposals were made and entertained for referring it to third parties. Nothing was accomplished, but in a few days this bill was filed. Defendant subsequently went for complainant to get her to return, but she refused. He had also made her offers through an agent.

In all of these transactions there is nothing tending to show personal violence or any species of cruelty. The worst construction which can be put on defendant’s conduct is that he desired to desert complainant; while it is equally manifest that she was trying to, get a cause of divorce against him, and in their several proceedings each was endeavoring to get some legal advantage. ' It is not necessary to enlarge upon the testimony, as the impression made upon our minds is very clear that complainant has shown no cause of divorce.

But it would possibly lead to some misconception if we were to reverse the decree and dismiss the bill without some remark upon the recriminatory charges made in the answer, and the mass of disparaging testimony returned in the cause. The answer charges complainant, in addition to faults in temper and conversation, with being too immodest ■ in her behavior to be consistent with entire chastity. • We deny relief only because complainant’s own case is weak. So far as her personal conduct is concerned, while it was such as would not be found among, people of any refinement, it does not appear to have caused any serious remark among her associates; and had it been that of a vicious woman it is not likely she would have been tolerated as she undoubtedly was. There is no uniform rule of behavior for all times and places, and, among a great many people, a very considerable freedom of manners may exist, without justifying suspicions of unchastity. It would be cruel and unjust in these suits to require a standard of behavior higher than is accepted by virtuous people for themselves and their associates.

Much of the evidence is so plainly exaggerated that it shows all the marks of having been affected by personal prejudice. And the testimony of actual criminality is so improbable in its circumstances, and comes from such doubtful sources, that it has not produced in our minds any conviction of its truth. The witness Maybee, who is the chief authority for the most disgusting stories, appears to be a very precocious young villain, and no confidence could be placed in his statements, even if they were not intrinsically incredible.

We reject entirely from our consideration all the charges brought against complainant, but we do not think she has made out any cause for a divorce. Her bill must therefore be dismissed and the decree below must be reversed. But an order must be entered allowing her temporary alimony up to this time, so far as it has not been paid, at the rate fixed by the Circuit Court, and a further allowance for expenses of two hundred dollars. And no costs will be awarded to defendant, as there is no reason to doubt the good faith of the proceedings.

The other Justices concurred.


author: Cooley Ch. J.

text:
    Alvin N. Hart v. Henry L. Henderson.

      Ejectment: Tax Sales: Judgment fo?' taxes paid. In an action of ej ectment for certain lands bid off at the annual tax sale, judgment was rendered in favor of defendant for the possession; but on a finding by the court that some of the taxes, on which the sale was based, were illegal, judgment was rendered in favor of plaintiff for the entire amount of said taxes and interest, under the provisions of the law of 1865, p. 575.
    Held, That this judgment was erroneous. The Legislature has full power to correct any mere irregularity in the proceedings for the assessment and collection of taxes authorized by law, but when the original tax was levied without any authority of law, no subsequent legislation can make it a legal demand. If any of these taxes were 'warranted by law, but, irregularly assessed, the Circuit Judge would have been justified by the terms of the act of 1865, to render judgment therefor, but not otherwise.

      Heard July 7th.

      Decided July 13th.

      Error to Ingham Circuit.
    This was an action of ejectment, brought to recover the possession of certain real estate bid in by defendant in error at the annual state tax sale for the non-payment of taxes for the year 1863.
    The declaration was in the usual form.
    The case was tried without a jury, and the court found the following facts, to wit:
    “This was an action of ejectment brought by the plaintiff to recover block £A/ city of Lansing, Michigan, who based his claim to the land, and right to recover, upon a tax deed made by the Auditor General of the State of Michigan to him, for the delinquent taxes for the year 1863; the taxes for the non-payment of which said premises were sold, were as follows:
    “State tax, $1.33; county tax, $6.93; city tax, $3.42; highway tax, $0.45; school tax, $3.70; bridge tax, $4.56; ward tax, $1.80. Amounting in all to $22tW; which sum, with the addition of $3TVo interest and charges, amounting to $25t3tV; was the sum paid by the plaintiff when he purchased the premises at the annual tax sales, for the purchase of the premises.
    And further finds that the defendant, in the Fall of 1864, and before the time of redemption had expired, applied to the- office of the Auditor General, at Lansing, to redeem the premises in question by paying the amount for which it had been sold, with interest, which application was in writing, and contained other descriptions of land, at the same time leaving with said Auditor General money to pay the redemptions of all the descriptions, but by mistake at the office of the Auditor General, no redemption certificate for the premises in question was made, which was not discovered until the time for the redemption had expired; that no money was retained by the Auditor General for the redemption of these premises.
    And the court further finds that the city, highway and school tax were illegally assessed; which fact was admitted by the parties upon the trial of said cause.
    From the foregoing facts, the court deduces the following conclusions of law:

      First, That the tax deed from the Auditor General to the plaintiff for the delinquent taxes of 1863 was void, and the defendant entitled to a judgment for the land in question.

      Second, That the plaintiff is entitled to recover a judgment against the defendant for the sum of $25T3J„, being the whole amount of taxes, interest and costs paid by him for the purchase of said land at the annual tax sale, with interest at the rate of twenty-five per cent, per annum, and that judgment should be entered accordingly.”
    "Whereupon judgment was entered accordingly.

      Dart and Wiley, for plaintiff in error.

      Huntington and Boot, for defendant in error.
   Cooley Ch. J.

Henderson, as it appears from the record, brought ejectment against Hart for a lot of land in the City of Lansing, claiming to recover under a tax sale made for delinquent taxes of 1863.

The taxes for which this sale was made amounted to $22.19, of which three items,- amounting to $7.57, were conceded by the parties on the trial to have been illegally assessed, and the Circuit Judge so found. Whether the other taxes were legal or not is not found. The tax deed was clearly void, and being so, it would not, under the statute, be evidence of the correctness of any of the taxes, and Henderson, under the common law rule, would be compelled to show their validity by affirmative evidence.

Under these circumstances, the Circuit Judge felt bound, under "An act to provide for the.recovery of taxes paid on real estate by persons claiming title thereto in certain cases,” approved, March 20, 1865- — Lems 1865, p. 5¶5 — to render judgment against Hart for the full amount of the taxes for which his land had been sold, including the costs of advertisement and sale, and twenty-five per centum interest thereon; at the same time that he rendered judgment in Hart’s favor on the main issue in the ejectment. suit. And the only question before us is as to the correctness of this pecuniary judgment.

The first section of the act referred to is as follows:

Section 1. The People of the State of Michigan enaet, That in all suits and controversies involving the title to land claimed hy either party, under a conveyance executed by the Auditor General for nonpayment of the taxes assessed thereon, if such deed shall prove to be invalid for any cause, other than such as are enumerated in section three of this act, the lien thereon for state, county and township taxes, or for either of them, or for any portion of either of them, which may have been rightfully assessed, shall not be discharged thereby, but shall remain in full force, and shall be transferred by said deed to, and vested in the grantee therein named, his heirs and assigns; and the owner of such lands shall not thereby be acquitted from the payment of the taxes for which the same was sold, but the party in such action or controversy, holding and claiming title under such Auditor General’s deed, shall be entitled to judgment or decree in the same action, against the adverse party, for-the sum paid upon such sale for the purchase of said land, and for the sum of all taxes paid upon such lands subsequent to such sale, by such purchaser, his heirs and assigns, with interest on each of said sums from the time of payment, at the rate of twenty-five per cent, per annum, and all legal costs, aud such costs of suit as the court may award, which judgment or decree may be enforced as in other cases, and shall remain a lien on such land until paid; and the land, or so much thereof as shall be necessary, may be sold for the payment thereof, with costs, if sold within such reasonable time as the court may order.”

The true construction of this section is matter of some doubt. It is not very clear whether its purpose is to give a remedy only for those taxes which are “rightfully assessed,” or for the whole sum paid upon the sale, whether the land was properly chargeable with them or not. The latter construction would clearly make the act unconstitutional. "While it is unquestionably within the power of the legislature to cure irregularities in the proceedings for the assessment and collection of any taxes which are authorized by law, and to perpetuate their lien upon the land until paid, it is not within its province to declare that a demand which is asserted against a citizen, without authority of law, shall constitute a lien upon his property, and that he shall be precluded from asserting his rights in the courts in regard to the property, except subject to a judgment for the unlawful demand. Curative statutes may cover any mere irregularity in the course of proceeding for the enforcement of a lawful demand; but they can never cure a want of jurisdiction, either in tax proceedings or those of any other description. Nothing is a tax simply because of being called so; but any -proceedings by which a man’s property is to be taken from him on a claim which has no other basis than the naked declaration of the legislature that it shall constitute a demand against him, is unconstitutional and void, as not being “according to the law of the land,” but, on the other hand, wholly unwarranted by legal principles. In this case, the Circuit Judge was to render judgment upon his finding of facts. That finding did not show that any of the taxes were legal, but it did show affirmatively that more than a third of them were illegal. Under these circumstances, there was nothing to show that Hart’s land was legally chargeable with anything, and no judgment should therefore have been rendered against him. The judgment in favor of Henderson must, therefore, be reversed, with costs of this court.

The other Justices concurred.


author: Grates J.

text:
    School District No. Thirteen of The Township of Oshtemo v. Isaac S. Dean et al.

      Equity Jurisdiction: School Districts: Account. On February 7, 1867, the legislature, by an act which took immediate effect, established a new school district, out of parts of three old ones, in the same township, and provided that a tax, levied in the latter districts for 1866, should be collected in the same manner as though they had remained unaltered; and that the old districts, together with the new one, should respectively be entitled to certain relative portions of the whole tax. The new district having been organized on the 1st of March, 1867, pursuant to law, the township board of school inspectors, on April 2d, 1867, assumed to set back to the old districts the territory carved out of them by the special act, and to dissolve the new district; and, one of the old districts holding and refusing to account to the new district, for a part of the tax of 1866, in which the latter was entitled to participate, according to said act, the new district filed a bill against the inspectors and such old district, for an account, and to enjoin the proceedings had, and threatened, for the extinction of the new district.

      Held, That under the circumstances shown, the court had jurisdiction on the case made for an accounting, if not on other grounds.

      Held further, That the inspectors had no power under Comp. L. wl. 1, %231k, to suspend or prevent the operation of the special act in respect to the distribution of the tax for 1866, nor to extinguish the new district established by the direct action of the legislature.

      Costs. It appearing that one of the defendants was a school district, and the others school inspectors, and that the proceedings in question were had at the instance and with the approval of the superintendent of public instruction:

      Held, That neither party should recover costs as against the other.

      Heard July 10th.

      Decided July 13th.

    Appeal in Chancery from Kalamazoo Circuit.
    The bill in this cause was filed to enjoin the Board of School Inspectors of the Township of Oshtemo, Kalamazoo County, from proceeding to dissolve, reorganize or .alter School District No. 13 in said county; and also to account for certain taxes collected.
    The cause was heard upon stipulation, and a perpetual injunction was granted.

      Stuart, Edwards & May, for complainant. ,
    The legislature has the power to organize school districts, either by special or general law.

      School District No. 13 was created by a special act, and the board of school inspectors have no power to destroy - or alter it until its repeal.— 5 Pick. 334; 23 Vt. 630; 22 Ill. 66; 9 Mich. 548.

    The history of school legislation in Michigan is familiar to the court. Under the constitution the legislature passed a general law and provided for the organization of districts by school inspectors, and conferred upon them large powers. R. S. 1838, 245; R. S. 1846, 227; 2 Doug. 121.

    The legislature have frequently, by special acts, in the charters of cities and villages, provided for other and different modes for organizing school districts.— Vide charters City of Detroit, 1842, 112; Id. 1846, 101; City of Port Huron, 1859, 646; City of Niles, 1859, 355; Village of Kalamazoo, 1861, 401.

    In charters of Bay City, 1867, vol. 2, 598; City of Flint, 1867, vol. 2, 258, and City of Adrian, 1861, 232, the legislature has incorporated certain territory into school districts.
    In all these instances the language of incorporation is substantially like that used in section one, organizing complainant.— Vol. 2, Laws 1867, 22; 9 Mich. 541.

    Again: there is nothing in the special acts above referred to, except by implication, to prevent the school inspectors, in the several localities from exercising the same control over the territory, as is claimed by the inspectors in this case.
    Similar statutes have received a construction by 'this court.
    By general law the highway commissioners have control’ over the highways in their respective townships, yet they have no power to disturb a highway established by an act of the legislature.— 15 Mich. 347.

      Vide Vol. 2, Laws 1867, 99, where the commissioners of highways . are first directly prohibited from acting in such cases.

      J. W. Breese and JET. F. Severens, for defendant.
    1. The bill sets out a case of an anticipated violation of public trust, and is filed to obtain an injunction restraining such anticipated violation. It is true that it also sues for a decree against School District No. 3, for its proportion of district moneys, and is objectionable for that reason. Still the main ground is that first indicated. But the people only can prosecute for a violation of public trust. The court has no jurisdiction of the case upon a bill of this kind. The suit is not properly framed for that purpose. The question is purely a political one. The complainant is a municipal corporation created for public purposes only; and whether the defendants interfere or usurp the franchises of the complainant, is matter proper, and only proper, for the determination of the courts upon proceedings instituted by the Attorney General.— 13 Mich. 540; 18 N. Y. 155; 11 Paige, 118.

      2. But if the court should think it had jurisdiction, then we say that the Board of School Inspectors had power to remodel the school districts in the Township of Oshtemo, and that they had the same power over this new district that they have over other districts in the township. The power given them is general.— Comp. L. § 2314.

      a. The mode in which the district was organized can make no difference, whether by the legislature or the board.
    There is nothing in the act to take this district out of the control of the school inspectors. If such had been the intention of the legislature, it was easy to have said so. On the contrary, they have left this school district after organizing it under the general law. There is nothing to show that it was to have special privileges and immunities, nor does it seem probable that the legislature intended to reserve to itself so special and limited a prerogative as the future control of this district.— 23 Vt. 630.

      b. The question being one of power is the same whether it is exercised within a month or in ten years. The fact that the power was exercised soon after the organization of the district, furnishes no fair ground of argument. The same state of things would have occurred if, on coming into office, the board had changed a district organized by the last act of their predecessors. The court does not interfere with the discretion of any public body. — 2 Doug. 121.

    The argument drawn from the facts of this particular case upon the general question of power is specious, but wholly delusive.

      c. It would lead to great inconvenience if the board should have no power to affect this district at any time when the necessities of the people require it. The constitution of a large number of other districts might be constantly encumbered and embarrassed by it. And yet the construction sought by the complainant would forever place the district beyond the possibility of change by the Board.

      d. The true construction is that the legislature intended the district to stand on the same footing with, other districts, subject to the like incidents, deriving its support in the same way, and in all things controlled and maintained as other districts.
    It could not be carried on at all, except from the support it draws from the general system under general laws. To say that reference must be had to the general law for all purposes, but one, is purely arbitrary.

      e. The moment the school district was organized, the act became functus officio. It repeals nothing, but leaves § 2314, Comp. L. untouched.
    /. Repeals by implication are not favored. The principle by which a special act supersedes a general one quoad hoc does not go the length of supporting the pretence that this act conferred special immunities and privileges upon this district. For the act relates simply to the organization, and as to this, Supersedes the general law, but it is a perversion of the principle to say that in addition to the organization of the district it gave its creature a title to immortality.

      Such an effect is to be given to the special act as shall make it harmonize, so far as possible, with the general law on the subject.— Sedg. on Stat. and Const. Law, 126, 127; 16 Peters, 342; 15 East, 371; 2 Barn, and Cress. 322; 9 Mees. and Wells. 777—789; 9 Barb. 260.

      g. The provisions in the special act for dividing the moneys were to enable the neiv district to get its proportion, because the general law did not cover such a case, and to meet the difficulty which existed in the Saginaw case. — 9 Mich. 541.

    3. As nothing appeared to indicate that the defendants had acted in bad faith, costs should not have been awarded against them. — 5 Id. 223.

   Grates J.

On the seventh day of February, 1867, the legislature, by an act made to take immediate effect, established a school district numbered 13, in the Township of Oshtemo, in the County of Kalamazoo, and to constitute the same detached portions of the territory embraced in districts 3, 9 and 10 of the same township. The second -section of the act required that the same course should be taken for th organization of the new district as already prescribed by law in the case of districts formed by township inspectors.

The third section provided that the tax for district purposes in the districts 3, 9 and 10, other than for the payment of debts of the districts, which had been levied for 1866, should be collected in the same manner as if no part of said districts had been set off, and that said three districts and the district established by the act should each be entitled to such proportion of said tax as the amount of taxable property in each part bore to the whole amount of taxable property on which the tax was levied.

■ On the first day of March, 1867, the new district was duly organized, pursuant to the act, and district officers regularly chosen; and on the 2d day of April thereafter, the Board of School Inspectors of the township convened for the purpose of re-establishing the districts as they were before the creation of the new district by the legislature. In pursuance of such design the Board of Inspectors resolved in due form- that the territory embraced by the new district should be and was thereby set back to the districts numbered 3, 9 and 10, and thus assuming at that time to dissolve the district which the legislature had established on the preceding seventh of February.

Thereupon the new district, No. 13, filed a bill in the Circuit Court in Chancery, for the county of Kalamazoo, setting forth the foregoing and other facts, and stating that said district No. 3, and said inspectors threatened to enforce by law the said determination of the latter, and that said district No. 3 held and retained from complainants the portion of the tax of 1866 belonging to them, amounting to $324.61.

The bill prayed an account, and that the defendants might be enjoined from further interference with the corporate rights of the complainants and for general relief.

The school inspectors and district No. 3 only appeared and answered, and the complainants filed a general replication. The material facts were admitted by stipulation, and it was agreed that the only question of law to be submitted was whether, upon th,e facts, the Board of School Inspectors had any power to re-district the township in such manner as to destroy the new district. The court below decided that the new district was legally constituted; that the action of the Board of Inspectors, complained of, was unauthorized and void, and perpetually enjoined the inspectors and their successors from making any change in the boundaries of the district, as established by the legislature.

The School Inspectors and the district No. 3 have appealed to this court.

Two points are made: First, that the case is not one of equitable jurisdiction, and that the remedy of the complainants, if any, could only have been found in a proceeding by the Attorney General; and second, that the school inspectors had the same power over the new district as over one formed by themselves.

The first point must be determined upon the theory of complainants’ bill, and not upon the nature of the relief given by the court. According to the theory of the bill, the District No. 3, in part, by means of the active and illegal efforts of the inspectors wrongfully and inequitably holds certain taxes belonging to complainants, and refuses to account therefor, and which taxes were among those mentioned in the act of the legislature, and collected in the original districts. We think that, under the peculiar circumstances of this case, the jurisdiction may be maintained, on the ground that an accounting may be called for, if not on other grounds.

In respect to the second point it is very clear that the power claimed for the inspectors did not exist to the extent insisted on. The act of the legislature not only established the new district, by combining portions of three old ones, but made positive provision for a portion of the taxes collectable for 1866 in the territory comprehended by the four districts, which was wholly incompatible with the asserted authority of the inspectors.

The exercise of power by them as they assumed to exercise it, and as they now insist upon as a matter of right, could not possibly co-exist with, the positive regulation as to the taxes made by the legislature. Either the legislative regulation was a law superior to the authority of the inspectors or the power of the inspectors was superior to the authority of the act.

The act itself did not purport to vest any authority in the inspectors to dispense with the law, and as the statute was the superior authority it was beyond the power of the inspectors to destroy .or invalidate its operation.

Since the regulation as to the taxes was necessarily in operation when the inspectors resolved to vacate the new district, and since such action necessarily involved the overthrow of that regulation, the proceedings of the inspectors were wholly invalid. If the .complete disposition of the case depended, therefore, upon the invalidity of the action of the inspectors, it would be unnecessary to go further. But, on looking into the record, it appears that the court below perpetually enjoined the inspectors and their successors from changing the boundaries of the new district. It seems necessary, therefore, to inquire whether the inspectors, under existing laws, would, if not enjoined, have the power at some future time to change the boundaries of that district.

It was argued with much force, on the part of the defendants, that the reasoning of the complainants would place this district forever beyond the possibility of change by the inspectors, and that it was reasonable to suppose that the legislature intended to leave the district, when established, under the control of the inspectors to the same extent as districts formed by them. 0

It must be admitted that there is no middle ground. Either the district must be independent of change by the inspectors, or it must be as much under their sway as other districts. As a corporation, brought into existence by the direct act of the legislature, it could not be dependent upon any general act, or upon the inspectors for its continuance; nor could it exist if its organic act should be repealed. It would, therefore, stand by itself as an independent corporate existence, and deriving no vital support from the law under which inspectors form districts; and it is difficult to see how it could be essentially altered without an alteration of the act which stands, in some respects, in the place of a charter.

We have already seen that the inspectors could take no action which would change or extinguish the operation of that part of the act which regulated the taxes, and it seems manifest that in so far as that provision would be practically operative, the legislative intent would be plain against any intermeddling by the local authorities.

There would necessarily be a period then when, the corporation created by the act in question would be exempt from local interference. The legislature have not declared by this act, nor can it be implied from any other, when this period of exemption should terminate. It is a fair inference, then, that it was meant to be perpetual. The district in question was created by direct legislation, and a continuing independent power to dissolve it vesteil in another body, would be anomalous. It would suppose two powers in operation at the same time, one of which would have the right to create, and the other, at the same instant, the right to destroy, while one of these conflicting authorities could only exist by the sufferance of the other. v It seems to me, therefore, upon general reasoning, that it could not have been the purpose of the legislature to allow the inspectors to make any change in the boundaries of the district established by the statute.

There remains a single question relating to costs.

The court below decreed costs against the defendants to be collected by execution. One of the defendants is a school district, and the others are school inspectors, and I am persuaded that they ought not to be charged with costs.

Although the course pursued by them is open to the suspicion that personal feeling had a lively influence where none should have existed, yet we are informed by the answer that the proceedings to dissolve the new district were upon the suggestion and with the approval of the state superintendent of public instruction for the State of Michigan for the time being. This circumstance is entitled to weight upon the question of costs against this school district and their school officers.

I think that the decree below ought to be affirmed except as to the costs, and as to them, that it should be reversed, and that neither party should recover costs as against the other.

The other Justices concurred.


author: Christiancy J.

text:
    John S. Nash et al. v. Dwight Mallory et al.

      Writ of attachment; Return day; Omission of year. Where a writ of attachment was tested and issued on the 7th day of February, 1867, hut made returnable “on Tuesday the 2d day of April,” without expressing the year, held, that it must he understood as referring to April of the then current year.

      Heard July 10th.

      Decided July 13th.

    Error to Lenawee Circuit.
    Suit in this- case was commenced by attachment. The ivrit omitted to state the year of the return day. A motion to set aside the writ for said cause was denied, and judgment was rendered in favor of plaintiff.

      A. L. Millard, for plaintiff in error.
    The writ of attachment by which the suit Avas commenced is void for Avant of a proper return day.
    It is returnable on the second day of April; not specifying any year.
    A Avrit of attachment must require the .sheriff to summon the defendant to appear at a time and place to be specified in the Avrit.— 2 Comp. L. 4746.

    A writ not returnable on a certain day is void; and such a writ can not be amended.— 4 Mo. 222; 2 Johns. 190; 4. Id. 309; 9 Id. 386; 2 Wend. 259; 13 Pick. 90.

    So when the place at which the defendant was summoned to appear Avas uncertain, the writ Avas held void.— 20 Ill. 89; 23 Id. 473.

      Hodges é Dickinson, for defendants in error.
    The defendant in attachment is to be summoned to appear at the time and place specified in the writ, and the writ is sufficient if it specify a time and place with the same certainty as other writs issuing out of the Circuit Court. — 2 Comp. L. § 4746.
    In the case at bar the writ was returnable on the first Tuesday of a month within three months of its date, and was in all respects within the provisions -governing the issuing of other writs out of the same court. — Rule IS.

    The writ was dated February 7th and served March 11th, and the defendants could not have been misled by the omission of the insertion of the year, for they are bound to know the time for appearance. The month named will be held to mean the first month of that name within three months from the date of the writ.— 11 Wis. 71; 29 N. H 385, and cases cited.

    If the omission complained of makes the writ defective, it is such a defect as may be amended. — 2 Comp. L. 1202; 2 Doug. 90.

   Christiancy J.

The writ of attachment in this case was tested and issued on the seventh day of February, 1867, and made returnable “on Tuesday, the second day of April,” without the word next or anything expressly stating the year of the return. The writ appears to have been personally served on or prior to the eleventh of March, 1867.

The only question is whether, on account of this omission, the writ was void ?

By the statute — 2 Comp. L. Art. Jfllfi— the writ must require the sheriff to summon the defendant “to appear at a time and place to be specified in the writ.” It is insisted that this writ does not conform to this requirement, and is not returnable on any particular day.

Outside of courts of law, among people of common understanding, there can be little, room to doubt that every man would readily understand the month of April mentioned in this writ, as intended to indicate the April next to occur after the date of the writ: the April of the then current year.

No man of plain common sense would be likely to infer that the intention of the writ Avas to pass over the April first to occur, to pass over four or five terms of the court Avithout any authority of laAV, when the April first to occur would meet all those requirements; and, therefore, no man would be likely to be misled by the omission. And it would be an evidence of deplorable infirmity in courts of laAV, if they should be incapable of understanding what is so plain to the rest of mankind.

This is not therefore the case of a Avrit returnable out of term, or on a Avrong day, or no particular day, as in the eases cited by the counsel for the plaintiff in error. It is in effect, from Avhat sufficiently appears upon its face, returnable at the right term and on the proper day in the next April after its date.

The case of Kelly v. Gilman, 29 N. H. 385, is an authority precisely in point, where it Avas' held that a writ dated in February, 1853, returnable at the court to be holden on the fourth Tuesday of April, without the Avord “next,” was to be understood as returnable at the next April — the April of the then current year. See also Tillson v. Bowley, 8 Greenleaf, 163, and Drew v. Dequindre, 2 Doug. (Mich.) 93.

The judgment of the Circuit Court must be affirmed, Avith costs.

The other Justices concurred.


text:
    Dennis J. Campau v. William Coates.

      Circuit Courts: Vacation of judgment. The power of the Circuit Court to set aside a judgment, is not confined in its exorcise to the same term at which the judgment was rendered — 12 Mich. UU9 — and where it possesses such power it is usually a discretionary one and can not be reviewed.

      Circuit Courts: Writ of possession wrongfully issued. Where the Circuit Court set aside a judgment, and writ of possession issued thereon under which certain premises had been seized, held^ that it was authorized also to restore the possession of the premises so seized.
    It is a sound rule of practice that, when the process of a court has caused an abuse, and no innocent party has obtained rights under it, the court, in setting aside the process, may restore what it has wrongfully seized.

      Heard July 10th.

      Decided July 13th.

      Certiorari to Wayne Circuit.
    This was a proceeding commenced before a Circuit Court Commissioner to recover possession of certain premises, and removed to the Circuit Court on appeal.
    Judgment was rendered in favor of plaintiff below.
    The facts are stated in the opinion.

      Levi Bishop, for plaintiff.
    It has been hinted that the order of which we complain was in the discretion of the court. This certainly is not a tenable position. Our judgment was regular. No complaint was made of it. The parties stipulate that the execution upon it shall be stayed till another suit is determined. That suit is determined by a non-suit, granted by the court, on demand of the defendant himself. Thus the agreement and stipulation of the parties gives us oijr writ of execution on our judgment, and the possession of our property. There was no discretion here. The acts and agreement of the parties settled their rights and excluded all discretion in the case. The case therefore does not ,come within the rule of 12 Mich. JBft, J¡B1.

    A final judgment can not be disturbed after the term is closed at which it is rendered. At least the steps to set aside a judgment should be taken during that term. Then we should know, as the books say'we have a right to know, when a suit at law is finally determined.
    Where a case had been tried at nisi prius, if a motion was not made for a new trial, or in arrest of judgment, within the first four days of the court in banc'at its next term, judgment was entered up at that term, and then the matter was forever closed so far as that court was concerned. 3 Blackstone, 386, 395, 398 406, 412; 12 Mich. 459.

    The practice has sometimes been indulged in this state, of setting judgments aside after the term was closed at which they were entered; but it is certainly a most dangerous practice, and ought not to be favored.

      G. J. O’Flynn, and, 8. T. Douglass, for defendant.
    If there was jurisdiction, whether the order should be made, it was matter of discretion in the court, and as such, not subject to review in this court.— 1 Doug. 106; 2 Mich. 404; 4 Id. 336; 12 Id. 449.

    The general jurisdiction of the Circuit Courts to set aside their own judgments can not be questioned.
    The lapse of the term in which the judgment was rendered did not deprive the court of such jurisdiction. — 2 Mich. 133; 5 Id. 30; 12 Id. 449.

    ' Nor the circumstance that the judgment had been executed by service of the writ of possession.— 12 Mich. 449.

    It was properly made a part of the order vacating the judgment that the defendant should be restored to the possession of the premises.— Green’s Pr. 196; 1 Burr. Pr. 292; 2 Tidd. Pr. 935, 936, 937; 15 Wis. 289; 15 Lou. Ann. 97; Yelv. 179.

    And that the sheriff should execute this part of the order. — 1 Qomp. L. $117.

   Campbell J.

Campan having obtained a judgment in the Wayne Circuit Court iu a case of proceedings on appeal to obtain the possession of lands under the landlord and tenant act, the court, at a subsequent term, set aside the judgment, and ordered restitution of the premises which had been obtained a few days before upon process issued on the judgment. This action is brought before us on certiorari.

We have heretofore held that the power of the court to set aside a judgment is not confined in. its exercise to the same term at which the judgment was rendered.— Van Rensselaer v. Whiting, 12 Mich. 449. It is also a well settled principle that an appellate court can not review the discretionary act of another tribunal acting within its jurisdiction, and therefore we can not inquire into the propriety of the order setting aside the judgment. If we could do so, it would not change our decision.

We also think the court was authorized to restore possession of the premises seized under the writ which was quashed. As a possessory writ, under which no new rights had accrued, there could be no propriety in allowing it to work a wrong without remedy, and it is a sound rule of practice that where the process of the court has caused an abuse, and no innocent party has obtained rights under it, the court, in setting aside the process, may restore what it has wrongly seized. The authorities cited by counsel sustain this view, which seems necessary to prevent a failure of justice.

The proceedings must be affirmed, with costs. An application was made for double costs, but, as the question concerning the power to order a restoration of property is a new one in this state, we can not regard the appeal as legally frivolous, and wo are hardly at liberty to inquire into the general merits.

The other Justices concurred.


author:
Cooley Oh. J. Christianct J.
      G-ravks J.

text:
    John L. Woods v. Andrew Monroe et al.

      Injunction: Equity Practice: Ejectment: Multiplicity. Where a party was in full possession of certain real estate, the record title to which was incomplete, and ejectment was brought by several parties as toa portion thereof: Reld, that as he liad a clear right to file a bill to quiet his title to the remaining lots, the question being the same as to all, it was proper to enjoin the ejectment suit, and thus avoid multiplicity of suits, and the questions in controversy be determined in one proceeding.

      Bill to quiet title: Administrator's sale: Probate Court. In a proceeding to quiet title to certain real estate, the title to which was derived through an administrator’s sale, the heirs of the intestate sought to show the invalidity of the appointment of the de facto administrator, who made the sale: held, that the Probate Court, having the jurisdiction to grant said administration, and having recognized its validity, and licensed such administrator to sell the estate, and confirmed his sale, this court would not inquire into the regularity of the appointment in this collateral proceeding.

      License to sell real estate: Supplemental order: Publication of 'notice. Where a portion of certain lots was omitted in the license to sell, but said omission was corrected by a supplemental order of the Probate Court, and appended to the license: Held, That this was a sufficient license to sell all the lands — £ Mich. %26. IMd further, That complainant’s title would not be affected by a failure to publish the notice for hearing of the petition the full statutory time. dojnp. L. § 3090.

      Proof of posting of notice to sell real estate: Report of Administrator. Where there was no affidavit of the posting of printed notices of'the sale of real estate under a Probate order, but it aj>peared from the sworn report of the administrator, duly confirmed, that such notices were posted, and also by other proof that said notices were duly published in a newspaper: Held, That this was sufficient evidence.

      Probate Court: Sale of equitable interest. Where an intestate has the complete equitable title in fee to real estate, the proceedings in the Probate Court to sell them should be the same as in other cases-.

      Bill to quiet title: Costs. Where in a bill to quiet title by making proof of certain defects in a Probate record, the defendants asserted in good faith a title apparently valid as to them, costs were awarded to defendants in the court below, notwithstanding decree was made against them on the merits; but on their appealing from that decree, no costs in the appellate court were given to either party.

      Chancery practice: Testimony. Testimony may always be taken by consent in chancery, as well before as after an issue in fact is joined.

      Administrator's sale: Affidavit of posting notices. Affidavits of the posting of notices of an administrators sale, made and filed in the Probate Court ten years afterwards, are not legal evidence of that fact.

      Leed: Admiivistrator's sale: Probate Judge: Bona fide purchaser; Notice. The fact that a lot of land, sold at an administrator’s sale, was deeded, by the purchaser, to the Judge of Probate, is not such notice of fraud or wrong as would preclude any other person becoming a purchaser in good faith, even though the deed was by mistake made to bear date before the confirmation of the sale.

      Heard Jxdy 10th.

      Decided July 13th.

      Appeal in Chancery from Sanilac Circuit.
    The bill in this case was filed to quiet the title of the complainant to., certain real estate in Sanilac county, the title to which was derived through an administrator’s sale.
    The case was heard on pleadings and proofs, and a decree granted in favor of complainant.

      Wm. T. Mitchell, for complainant.

      A. B. Maynard, for defendant.
   Cooley Oh. J.

The bill in this case is filed to quiet the title of the complainant to certain lands in Sanilac County, to which he derives title through sales made by the administrator of Samuel W. Monroe, of whom the defendants are heirs at law. The defendants contest the right of complainant to the decree he prays for, on grounds which it will be convenient to consider separately.

I. It is claimed that the case is not a proper one for relief in equity, inasmuch as the complainant claims by his bill a complete legal title, which could be fully examined and settled at law, and a part of the defendants had already commenced suits in ejectment for the recovery of their undivided interests in one of the lots in controversy, which suits were stayed by injunction in this proceeding.

We do not think there is any force to this objection. The complainant was in full possession of the lands, and was not, therefore, in position to -bring his right to trial by a suit in ejectment. ' The defendants were severally bringing actions against him in respect to one of the lots, and as he had an unquestionable right to file a bill to quiet his title to the others, and the questions were the same as to all, it was proper that to avoid a multiplicity of suits, the ejectment suits should be enjoined, and the questions in controversy be all determined in one proceeding. Besides, the record title was in the defendants, which, of itself, would justify the bill.

II. The first objection taken to the proceedings resulting in a sale by the administrator, r.elates to the validity of his appointment to that office. It appears that Hiram Bacon and Benjamin F. Luce were first appointed administrators on the Monroe estate, and that both qualified, but beyond joining in the inventory, Luce never acted, and soon left the state, which, under the statute, would have been cause for his removal. Bacon was in fact treated as sole administrator, and, as such, was. settled with and discharged by the Judge of Probate. No order of discharge was ever made as to Luce, but John L. Bell was appointed administrator ele lonis non, and acted and made sale 'of the lands as such.

Whether any question of the validity or regularity of Bell’s appointment could have been gone into under any o.ther circumstances than those disclosed by this record, we do not feel called upon to say, as we are clear that the question can not be raised as against this complainant. The statute — Comp. L. §3090 — is as follows: “In case of an action relating to any estate sold by an executor, administrator or guardian, in which an heir, or other person, claiming under the deceased, or in which the ward, or any person claiming under him, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear:

“1. That the executor, administrator or guardian was licensed to make the sale by ‘the Probate Court having jurisdiction ;
2. That he gave a bond, which was approved by the Judge of Probate, in case a bond was required upon, granting a license;
3. That he took the oath prescribed in this chapter;
4. That he gave notice of the time and place-of sale as in this chapter prescribed; and,
5. That the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who purchased them in good faith.”

.If it shall appear in our subsequent examination of this case that the facts made necessary to the support of a sale by this section actually exist, we do not think the regularity of Bell’s appointment can be inquired into. He was administrator de facto, and his license to make the sale, whether valid or invalid, Avas by the Probate Court of Sanilac County, which alone had jurisdiction to grant it; Monroe having been a resident of that county at the time of his death.

III. The license is claimed to be void, because the petition therefor did not describe any lands. This objection is disposed of by the case of Howard v. Moore, 2 Mich. 226. The lands were fully and properly described in the license, except one lot; and as to that, a supplemental order Avas afterwards made and appended to the original license, Avhich authorized and directed the administrator to sell it. There Avas, therefore, a license by the court having jurisdiction for the sale of all the lands; and if, as is claimed, the order for hearing on the petition for license Avas not published the full four weeks required by the statute, the complainant’s title will not be affected thereby.

IV. The license to sell required Bell to give bond for the faithful discharge of his duties on the sale. No bond is found in the files, but both Bell and the Judge of Probate testify that they have no doubt one Avas given, and there is independent evidence that one was drafted. This evidence was met by that of a person who, as the Judge of Probate testified, Avas one of the sureties, and who denied having signed any such bond. The preponderance of evidence, however, is the other way, though it is quite possible that the Judge of Probate may have been mistaken as to the surety.

It is proper to say in this connection that the evidence of Mills, the Judge of Probate, is assailed by the defendants as utterly unworthy of credit, and also as not properly taken in the cause. That he was dishonest in the proceedings is strongly to be inferred from this record, and we should hesitate about basing judicial action upon his uncorroborated statements. The formal objection to it is based upon its having been taken in the case before the suit was at an issue of fact as to a part of the defendants; but the defendants all appeared by solicitor without objection, when it was taken, and as, under our practice, the complainant is always put to the proof of his bill, except where its allegations are expressly admitted, there is nothing in the way of taking testimony by consent, as soon as the bill is filed. And if the evidence of Mills should be disregarded in this case, that of Bell would still stand unimpeached, and would be supported by some collateral circumstances and inferences.

Y. It is insisted that there is no legal proof of the posting of notices of the sale by Bell, as was required by the statute. That notices were duly published in a newspaper, as the statute prescribed, was fully 'shown, and Bell, in his report of sale, stated under oath that he posted notices also. He subsequently, but not till ten years after-wards, made and filed in the Probate Court an affidavit of the posting in due form; but this does not appear to have been done by consent of the court, and under the decision in Mundy v. Monroe, 1 Mich. 68, can not be considered legal evidence. But the report of sale, Avhich was made at the time, and which was duly confirmed, is evidence, and sufficient, we think, on this point.

YI. As to two of the lots, the sale is claimed to be void, on the ground that they were bid off by one John Divine for Mills, the Judge of Probate, and actually deeded OArer to Mills before the sale was confirmed. The proof, however, does not support this allegation. Divine testifies that he bought the lots for himself, and that he deeded them over to Mills at the request of the latter, who claimed to want the title for one Buell. That Mills accounted to the administrator for the purchase price is conceded, but Divine says the sale was confirmed before he was spoken to on the subject by Mills. The suspicious circumstance at this point is that the deed is dated before the confirmation; but Divine swears that it was neither executed nor acknowledged until afterwards; and though no one pretends to explain this date, it does not seem sufficient to overcome the testimony of Divine, who could not well be mistaken in what he swears to, and whose candor is not impeached. Mills, it appears, afterwards conveyed to Buell, and we do not think the record gives any such notice of actual or probable fraud in the sale as should preclude the complainant becoming purchaser in good faith, and having the benefit of the statute.

VII. Some objection is taken to the sale on the ground that the. estate of Samuel Monroe had only an equitable title to the lands; the legal title being then held in trust for him by his brother in Canada. If this trust was declared by writing — as to which we have no evidence— it is very likely it was one which was executed by our Statute of Dses; but whether that was so or not is immaterial on this inquiry. Samuel Monroe had the complete equitable title in fee to the lands, and the proceedings to sell them should have been the same as in other cases. ■

This review of the case brings us to the conclusion that all the statutory requisites to a valid sale exist in the case, and that complainant should have the relief prayed. At the same time we have no doubt the sale was unnecessary, and brought about by dishonest procurement. But the complainant was in no way connected with this dishonesty, nor Avas it brought home to his knowledge before his purchase, so far as the testimony shows. He and the heirs are alike innocent parties, one or the other of whom must suffer by the' fraud which has been perpetrated, and under the circumstances the statute casts the loss upon the heirs.

’This disposes of the case, except as to the question of costs. These, we think, the court below ought not to have awarded against the defendants. They were asserting in good faith a title apparently valid, and the complainant was compelled to come into a court of equity to perfect his title by making proof of those proceedings which did not appear by the probate records, and thereby curing defects with notice of which he was fairly chargeable. We think the expense of correcting his record-title under such circumstances should have been borne by himself.

There was nothing unreasonable or unfair in the defense which was made, but the case on the other hand, was so doubtful as to fully justify defendants in putting complainant to his proofs.

The decree for costs in the court below will be reversed, and the defendants will recover costs. In other respects it will be affirmed. No costs will be awarded on this appeal.

Campbell J. concurred.

Christianct J.

I concur in the opinion of my brother Cooley, except upon one point, upon which, I think, the result of the case should be the reverse of that at which he has arrived.

It was incumbent upon the complainant to prove the giving of such a bond, under the license to sell, as the statute required; a bond upon Avhich the heirs in case of a breach might have sustained an action.

I am not satisfied from the evidence that such a bond was ever given.

The evidence that any bond was given was this: Bell, the administrator, does not profess to have any .recollection of the bond or of its execution. It is true h¿ declares he has no doubt the bond was given; but this, as I under-' stand his testimony, was only his inference, based upon his belief that he would not otherwise have proceeded to sell. Such testimony may be barely admissible, but to my mind is far from satisfactory. Mills, who was the Judge of Probate at the time, and the author of the whole scheme for defrauding these heirs, does, it is true, testify that a bond was given, and that Hutchins was one of the sureties. But the conduct of Mills in the whole transaction was such,- and shows him to have been so utterly void of any regard to truth, or any sense of moral obligation, that I am not prepared to believe anything, because-he has testified to it, which I would not equally have believed without it. Hutch-ins, who he says executed the bond as one of the sureties, (and he names no other), positively denies having executed the bond. "We have then only the testimony of another Avitness who says a bond was drawn up, but whether it was executed he has no knowledge.

This is all the evidence of the giving of any bond under the license.

But Ave should not only be satisfied that a bond was executed, but that it was such as the statute required. This is a point for us, and not for the witnesses, to determine. ~We can only determine this from its contents. But where is the evidence of the contents of this bond from which we can determine this question ? I have been unable to find any such evidence of the contents as would enable us to say it Avas a bond upon which the heirs, in case of its breach, could have maintained an action upon it. This I think is the true test of the sufficiency of the proof which it Avas incumbent upon the complainant to make. And it can hardly, I think, be claimed that the proof before us is such as, in an action by the heirs upon the bond, would at any time have entitled them to recover on proof of a breach. I can not, therefore, concur in affirming the decree.

G-ravks J.

I am not satisfied that the testimony is sufficient in this case to prove that Bell, on obtaining the license to sell, gave the bond required by the statute, and I am therefore in favor of reversing the decree granted by the court below.

Upon the question of costs I agree with the Chief Justice and my brethren.

While I feel the force of the reasoning of my brother Christiancy upon -the question discussed by him as to the necessity of proof of such a bond as would support an action by the heirs in case of breach, I prefer to withhold an opinion upon that subject until the nature of the case presented shall compel its discussion.