author: Campbell J.:

text:
    Robert Montgomery and others v. Alexander Henry.
    ■Whore a rocognizauce of special "bail is lost from the files of the Court, and the. plaintiff moves to substitute a copy to stand in lieu of the original, he must give the sureties notice of the motion,; and the Court has no jurisdiction ’ order the substitution to be made without such notice.

      jHeard April 9th.

      Decided April 22d.

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

      L W. Longyear, for plaintiffs in error.

      O. M. Barnes, for defendant in error.
   Campbell J.:

This was an action upon a recognizance of special bail, alleged to have been given in a case wherein Robert-Henry was plaintiff and Alexander Montgomery was de-„ fendant.

Upon the trial the original recognizance was not introduced, but only a substituted copy of a recognizance ordered to stand in lieu of the original which was said to be lost. The order of substitution was made upon the application of the plaintiff Henry, upon notice to Alexander Montgomery, No notice was given to the sureties, and they did not appear on the motion. An objection made on this account in the Court below to the introduction of the substituted copy of the recognizance was overruled.

We think the Court below erred in receiving the proofs. The action of the Circuit Court in allowing an alleged copy to be substituted in lieu of the original directly affected the sureties by establishing against them a liability to respond for the debt of another person, without giving them any opportunity to be heard. There was nothing then standing •of record to charge them; and the fact of their liability, which was sought to be fixed by the proceeding, was made out on what was; as to them, an ex, parte proceeding, on affidavits. This is against every principle of judicial action. No court can lawfully adjudge any person to be responsible in any shape, without giving him a proper opportunity to be- heard in his own behalf. This notice is necessary to give the court jurisdiction. The so - called amendment relied on was in effect an adjudication that the plaintiffs in error had agreed in due form of law to pay any judgment rendered against Alexander Montgomery upon Ms default. They cer-. tainly had a legal right upon such a motion to controvert the allegations of the plaintiff by showing that no lawful recognizance made by them had ever' been on the files of’ the Court.

It is unnecessary to consider any of the other points raised in the case, and we therefore omit any discussion of the ■ questions open on suits of this nature.

The judgment must be reversed, and a new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy J.:

license: Public Domain

text:
    Edmund Hall v. Anson Redson and others.
    Where a deed from several grantors is put upon record, as to only a part of whom it is properly executed and witnessed, the record is only evidence of the deed as to those parties by whom it has been properly executed, and whose execution of it has been duly witnessed so as to entitle it to record had they been tho only grantors named.
    Where therefore husband and wife joined in a deed of conveyance of the husband’s, lands, and the deed appeared to have been executed by them separately at different times, and there was but one subscribing witness to the execution by the husband, but the execution by the wife was duly witnessed and acknowledged, it was heldj that the record of this deed was no evidence of its execution by the husband.

      Heard April 10th and 11th.

      Decided April 22d.
    Appeal in Chancery from Shiawassee Circuit. The bill was filed to quiet the title to lands, and the case, so far as passed upon, is sufficiently stated in the opinion.

      JEJ. Mall, complainant in person.

      Goulds <& Mcmohett, for defendants.
   Christiancy J.:

Complainant claimed title to the land in question by several mesne conveyances through Hayward, who purchased; 6om the Government. The title of complainant was denied foy the answer. Hayward conveyed to James Crombie. The -original deed from James Crombie and wife to Stebbins, 'through which complainant claims to derive his title, was not introduced; but complainant, for proof of this deed, produced and relied upon a transcript of the record from the registry of deeds. It is objected by the defense that the record was not competent proof of this deed, on the .ground that it has but a single subscribing witness to its execution by James Crombie', and was not therefore entitled to be recorded as to him.

The execution and witnessing of the deed, so far. as this point is involved, was in the following form.

■“ Signed, sealed and delivered James Crombie. [seal.]

in the presence of Calista A. Crombie. [seal.]

B. Rush Bagg.

John Crombie, 7 Witness to the signature of Calista

Stephen Cook, j Crombie.”

Crombie and wife are described in the deed as being '“ of Rochester in the State of New York.” The deed is acknowledged by James Crombie before B. Rush Bagg (the subscribing witness), a Notary Public in and for the county of Wayne, in the State of Michigan, and by the wife, Calista A. Crombie, before Henry Pratt, a commissioner of deeds in and for the county of Monroe in the State of New York. We are therefore entirely satisfied from what appears upon the deed that it ivas executed by James Crombie in Wayne county, Michigan, and by the wife in Monroe county, New York, or, at least, not at the same time and place as by the husband; that the witnesses John Crombie and Stephen Cook intended to confine their attestation to the execution by the wife alone, in accordance with the restrictive words opposite their names, for which there could otherwise have been no use or propriety, and consequently that Bagg is the only subscribing witness to the execution by James Crombie.

The statute in force at the time this deed ivas executed and recorded, required two witnesses to its execution by the grantor, “or person from whom the estate or interest was intended to pass,” to entitle it to record. — Comp. JO. §§ 2720, 2727. It is therefore clear that a sole deed of James Crombie, thus witnessed, would not have been entitled to record: Galpin v. Abbott, 6 Mich. 17; and the record

would be entirely inoperative either as notice to purchasers or as evidence of the deed. This is admitted; but complainant insists that, as it was properly executed by the wife, and duly witnessed as to her, the entire deed was entitled to record, and the record becomes evidence of the deed as to both, and for all purposes, under the statute which provides that “the record or a transcript certified by the register may be read in evidence in any Court of this State,” &c. Comp. JO. § 2750. The record doubtless would be evidence of the due execution of the deed by the wife, as to any interest she might have had the power by her, sole deed to convey, but she had no interest but the contingent right of dower, which she could probably convey only by joining, with her husband in the conveyance: Comp. L. §§2731, 2732; and this presupposes a proper deed from the husband conveying the estate; at all events she could not convey the contingent right of dower while the estate in the land remained in the husband unconveyed.

We are not called upon to decide whether a deed with a single witness, if duly proved as at common law, would, as between the grantor and grantee, convey the land to the latter; nor whether the record of this deed might operate as notice to purchasers; because, until some instrument 'having the effect to transfer the title has been duly proved in some way, no [question of such notice can arise. The only question here is whether the record is competent proof of the execution of the deed by James Crombie, in whom this title was vested; and we are all of opinion the record constitutes no proof of the deed as to Mm; and that when a deed from several grantors is-recorded, as to only a part of whom it is properly executed and witnessed, the record can only he evidence of the deed as to those parties by whom it has been properly executed, and whose execution of it has been duly witnessed so as to entitle it to record had they been the only grantors named. In other words, a defective execution or attestation as to one grantor, can not be aided by a perfect execution and attestation as to other parties. To hold otherwise would be to defeat the manifest object of the registry laws, and to open a wide door to fraud. There being therefore no evidence of this deed, there is. a link wanting in the chain of complainant’s title, and none of the other questions raised uponi the argument can properly be noticed.

The decree of the Court below dismissing the bill must therefore be affirmed, with costs, but with this modification* that the dismissal must be without prejudice.

The other Justices- concurred.


text:
    James N. Cross v. The People.
    In a proceeding under the statute to compel the support of a bastard child by its father, no complaint, distinct from the “accusation and examination” by the mother in writing under oath, is required. And where such accusation and ex» amination appears, preceded by a formal complaint made by another person, this complaint may be treated as surplusage.
    Where the complaint shows, in the body thereof, that it has been taken on oath before the proper justice, it is not necessary that the words “before me” be contained in the jurat.
    In proceedings under the bastardy act there is no necessity for a formal issue, but if the defendant dpes not admit the charge, it is to he left to the jury.
    An order which, after adjudging the defendant to be the father of a bastard child, directs him to pay towards the maintenance of the child a specified sum “with the amstmee of the mother? is bad for uncertainty. It should definitely point out and fix i¿he liability of the defendant.

      Submitted on briefs October 16th, 1861.

      Decided April 22d.

      Certiorari to the Circuit Court for the county of Washtenaw.
    Cross was brought before a Justice of the Peace on a warrant based upon the following complaint:
    “County of Washtenaw ss.: To Charles H. Wallace, a justice of the peace for said county: Harriet Donaldson, a minor of the age of fifteen years, of Saline in said county, having been delivered of a female bastard child, the undersigned being the father and guardian of the said Harriet Donaldson, hereby applies to you to make inquiry into the facts and circumstances of the case.

      Q

    Jonathan Donaldson, father and guardian.
    Dated Saline, February l'/th, 1859.”
    “ County of Washtenaw ss.: Jonathan Donaldson of Saline, in said county, hath this day made complaint to me, Charles H. Wallace, one of the justices of the peace of the township of Saline in said county, that Harriet Donaldson, a minor, and daughter of the said Jonathan Donaldson, and a single woman, has been delivered of a female bastard child, and desires to institute a prosecution against James N. Cross of Saline, in said county, whom he and the said Harriet Donaldson accuse of being the father of said child: I, the said justice therefore do proceed to take the accusation and examination of the said Harriet Donaldson in writing, under oath, respecting the said James N. Cross, the person accused, the time when and the place where the said Harriet Donaldson was begotten with child, and such other circumstances as the said justice shall deem necessary for the discovery of the truth of such accusation, as follows, to wit: The accusation and examination of Harriet Donaldson of Saline, in said county, single woman, taken on oath before me, the justice aforesaid, who saith that she has been delivered of a female bastard child, and desires to institute a prosecution against the said James N. Cress, whom she accuses of being the father of said child, and that he did beget her with child in Saline, in the county of Washtenaw, on the ninth day of May, a. d. 1858, at the house of the said James N. Cross, at Saline aforesaid and county aforesaid, and was delivered of a female child on the 29th day of January, 1859, which child the said.James N. Cross is the father thereof. Thereupon she prays me to issue my warrant to apprehend the said James N. Cross, to answer the said accusation, and to be further dealt with thereon, a'ccording to law. Harriet Donaldson.
    Taken, signed and sworn to this 1 llth day of February, a. d. 1859. j
    C. H. Wallace, Justice of the Peace,”
    On being brought before the justice, Cross waived an examination, and entered into recognizance for his appearance at the Circuit Court. In that Court he was found guilty on trial by jury, and the following order entered:

      “The People v. James JST. Gross. In this cause the said James N. Cross having been found guilty in manner and form as appears by the record thereof. Therefore it is adjudged by the Court here, that the said James N. Cross is the father of the child charged by the complainant, Harriet Donaldson, in her complaint to have been begotten by him; and it is therefore ordered, on motion of S. Abel, attorney, that the said defendant James N. Cross, do pay, for the maintenance of said child, with the assistance of the mother, Harriet Donaldson, within thirty days from this date, twenty-five dollars, and the further sum of four dollars and fifty cents for each and every month thereafter, payable at the end thereof, and until the further order of this Court; and it is further ordered, on like motion, that the defendant James N. Cross give a bond to the Superintendents of the Poor of the county of Washtenaw, with good and sufficient sureties to be approved by this Court, to perform this order,, and to indemnify the county from all damages they may. sustain by reason of their becoming •chargeable with the maintenance of said child; and that the said defendant be committed to th% county jail, and there remain until he shall execute and deliver such bond,5’ It no where appeared in the proceedings, either before the justice or in the Circuit Court, that Cross was called •upon to plead or did plead to the complaint.

      O. Hawkins, for plaintiff in error,
    argued that the complaint was the complaint of the father, and not of Harriet Donaldson as it should have been: — 3 Pick. 164; that the .jurat ought to show before whom the complaint was sworn to: — 3 Mich. 590; that there was no issue upon which Cross could have been tried: — 6 Cush. 111; and that the Order was void for uncertainty.

      C. Upson, Attorney General,

    contra, to show that the complaint was sufficient, cited, 8 Vt. 130; 24 Vt. 517. But as this objection was not made below, it is now too late to make it: — 24 Vt. 517; 8 Vt. 130; 7 Vt. 419; 4 Ired. 484; 2 Ired. 46; 5 Conn. 541; 4 Denio, 93; 9 Humph. 450.
    A formal joining of issue upon the complaint is not required by the statute.
   Campbell J.:

The first error assigned is that no complaint was made by Harriet Donaldson, nor was any accusation and examina'tion taken in writing under oath of the said Harriet before the justice who assumed to act.

The statute does not contemplate any complaint distinct from the “ accusation and examination in writing under oath.’’ R. S. 1846, p. 189. Inasmuch as the case shows no other such accusation and examination than that of Harriet Donaldson, and that contains all the necessary facts required by law to be enumerated, we do not think that the action of her father outside of and in addition to her complaint can in any way affect its validity. It ■may be regarded as matter of surplusage. It preceded her complaint, and the latter is complete without it. The-objection that the complaint does not appear to have been sworn to before the justice is also unfounded. Where it appears in the body of the instrument to have been taken on oath before the justice, there is no force in the objection that his certificate at the foot does not also contain the words “before me,’’ whether the objection would have been valid or not otherwise — a point we are not called on to decide.

The next objection is that no issue was formed in the Circuit Court to be presented to the jury. The statute declares that “the issue to the jury shall be whether the defendant is guilty or not guilty.” The charge contained, in the complaint is required to give time and place, and it is evident the statute designed that this should be the-formal accusation, and the only one for any purpose. If the defendant did not admit the charge, it was to be left to the jury. There was no occasion for any formal issue therefore, as the law defined it, and a trial could not be had upon any special one. The proceedings are not designed to be in the regular form of common law prosecutions,, and a statutory issue exists whenever the defendant fails, to admit the charge (see section 4).

We see therefore no error in any of the proceedings whereby the verdict of the jury can be vitiated.

The order of maintenance, however, is not sustainable^ The statute makes it the duty of the Court upon a Verdict of guilty to make an order directing in what manner the defendant with the assistance of the mother shall stand chargeable with the maintenance of the child. The form in which the order here is • entered makes the liability to, support the child’ joint throughout, and does not point out what amount the defendant shall pay himself. While it was probably designed by the Court that he should furnish the money and the mother take care of the child, yet the order can hardly be made to bear that construction, as it stands. It must point out bis duty and liability expressly; and until that is done there is nothing to be •enforced.

The order of the Circuit Court must be quashed, and the cause must he remitted for the entry of a proper order •upon the verdict. No costs will he awarded.

The other Justices concurred.


author: Chbistiancy J.:

text:
    Dennis Daily and Another v. Liba L. Litchfield and Another.
    ’Where land contracted to "be conveyed, is deeded away to a third person, both the party to the contract and the person to whom the land has been conveyed, are necessary parties to a bill for specific performance.
    'Bill for the specific performance of a contract to exchange certain lands of defend-» ants for other lands of complainants. The bill alleged complainants to be owners, in fee simple of the lands to be exchanged by t}iem. Held a sufficient state* ment of what the title was.

      -Held further, that if defendants intended to deny the title, or to insist on incumbrances as an objection to performance, they should put the title or encumbrances in issue by their answer. And the burden of proof would then be upon them to show defects.
    ‘'Complainants notified the other party to the contract to meet them at the office where the contract was drawn, and exchange deeds —that placo having been agreed upon between them for that purpose at the time the contract was entered into. They went to the office at the time specified, executed a deed of the land to- be conveyed by them, and left it there for delivery — the other party not having appeared. They afterwards notified him of what they had done. Held equivalent to a tender of their deed, and a sufficient request for a deed, from the other party. It is not necessary in such case for the party claiming; specific performance to prepare and tender a deed to be executed by the ofche^ fcarty
    ‘ín a bill for the specific performance of a contract for the conveyance of land, a part of the consideration for which was certain clearing and fencing, a general allegation that the same has boen performed by complainants in accordance with the contract is sufficient.
    One of the defendants held, under a contract of purchase, the land agreed to be conveyed by him. Instead of taking a deed to himself, ho had it made to the other defendant, his wife, who had notice of the agreement to convey to complainants, and paid no consideration. Held, not necessary to demand a dee^ of the wife before filing a bill for specific performance.
    ‘•In such a case the wife can have no right of dower.

      Where by the terms of a contract' a sum is mentioned as “liquidated damages’4 for the non-performance of several distinct stipulations of very different de*v grees of importance, and this sum is to be payable equally on a failure to \ perform the least as of that to perform the most important, or the wliolo of* them together, it is in legal effect a penalty, and not stipulated damages? and the fixing of such a penalty by the contract is no objection to specific-performance.
    Complainant tendered a deed describing the lauds as “(supposed to be) thirty-eight acres of land off from the east side of the south-east fractional quarter of section number thirty-two, in Township number four south of range number sixteen west; being the same number of acres off from said east side of said south-, east fractional quarter of said sction as there is in the west part of the south-, east fractional quarter of section number four in township number five south, of range number sixteen west, in the county of Cass and State aforesaid, here-, tofore owned and occupied by said Litchfield, (the defendant) and in exchange, for which this conveyance is made, be the same more or less.” Held a sufficient description — it being made good by reference to the other tract, and the-land thus capable,of being identified by survey.

      Heard January 15th.

      Decided April 22d.

    Appeal from Cass Circuit in Chancery.
    Dennis and Patrick Daily filed their bill of complaint against Liba L. and Sarah Litchfield, setting forth, that ■on August 29, 2856, said Liba L. Litchfield was possessed of thirty-eight 'acres of land in Cass county, which on that day he agreed to exchange with complainants for the same-quantity of land owned by them in fee simple-, and for that purpose they entered into a contract with said Liba L. Litchfield, of which the following is a copy:
    “This contract, entered into this twenty-ninth day of August, 3 856, by and between Liba L. Litchfield, of the township of Silver Creek, county of Cass, and State of Michigan, of the first part, and Dennis Daily and Patrick Daily, of the same place, of the second part, witnesseth^ that the said parties hereby agree to exchange the follow-, ing described parcels of land, to wit:
    “The said party of the first part agrees to exchange the west part of the south-east fractional quarter of section number four, in township number five south of range number sixteen west, in the State of Michigan, and county of Cass, containing thirty-eight acres of land, be the same more or less, and now occupied by Mm, for the same-quantity of land owned by tbe said party- of tbe second part, being the same number of acres off from the east side ‘ of the south-east fractional quarter of section thirty-two, in township number four south of range number sixteen west, -in the State of Michigan aforesaid, and county of Van Burén. Each party hereto is to give the other a full and perfect warranty deed of his land, as above described, on or before the first day of June, 1838, or within sixty days thereafter.
    “The said party of the second part are also to break up, before the first day of December next, as much land on the land they exchange and heretofore belonging to them, as there is broken up on the north side of the highway on the land heretofore belonging to the party of the first part, which they receive in exchange as aforesaid, and on or before the first day of May next are to fence as much land on the above described land which the party of the first part receives, as there is now fenced on the land they receive; and are also to furnish lumber for the doors and flooring for a. house the same size as that on the land they receive. Either party forfeiting the above contract, by- failing to comply therewith, is to forfeit to the opposite party the sum of fifty dollars, as liquidated damages for the non-performance thereof.
    “ In witness whereof, said parties have hereunto set their hands and seals, the day and year first above written.” (Signed and sealed by the parties).
    The bill states that the reason why an exchange of deeds was not made at the date of the contract, was that said Liba had not then a title to that to be conveyed by him,-but held under a contract of purchase from one Lawrence.
    That complainants took possession of the lands to be conveyed to them, except of the house thereon, and have since occupied and worked the same, and Litchfield has occupied and worked the land so to be conveyed to him. That complainants “did break np and fence the land as agreed in said contract, within the time therein agreed upon, and said Litchfield has, since the date of said contract, been in the sole occupancy and possession of the same, and put in and cultivated and harvested crops thereon, and exercised all the acts of ownership and control of the whole thereof to this date.” “ That they did also furnish the lumber for the doors and flooring for house, as agreed in said contract; that the same was not received by said Litchfield at the time, a,s said Litchfield then said he did not want to use it then, and that he then agreed to notify complainants of the time when he should want it; that he should not want it until some time this fall. But they say and aver, that they have kept said lumber on hand, both at the time agreed upon and up to this time, and have been ready and willing to let said Litchfield have the same at any and all times, and of which readiness said Litchfield has been at all times informed, and that no' such notice has been given to your orators by said Litchfield.”
    They say “and aver, that said contract, and all things therein contained, by them to be done or performed, have been by them done and fully performed, as therein agreed; and that within the time agreed upon, to wit: on the thirtieth day of July, 1858, and of which time and place they had given said Liba L. Litchfield more than five days’ notice; that they met at the office of N. B. Hollister, in the village of Dowagiac, in said county, that bein'g the place where said contract was entered into, and being also the place at which complainants and Litchfield had, at the time of entering into said contract, agreed upon for the purpose of exchanging deeds, and that they then and there made and executed, ready for delivery to Litchfield, a warranty deed of the land which they had exchanged with Litchfield as aforesaid, which deed was signed and acknowledged by them and their wives, and left with said Hollister to be delivered to Litchfield upon his complying with the conditions of said contract, on his part to be performed, and of which performance of said contract on their part they duly notified said Litchfield on the next day.
    That Litchfield did not attend at the time and place so appointed for the exchange of deeds, nor at any other time, but has wholly and entirely neglected and refused to perform his contract, and to convey said land to complainants as agreed by him in said contract, and for the purpose of defrauding complainants, has caused the land which was to be conveyed to complainants, to be deeded by said Lawrence to said' Sarah Litchfield, the wife of said Liba, without consideration except that paid by said Liba to said Lawrence, and with full notice of the existence of the contract between her husband and them.
    The bill prays that the deed to said Sarah be declared fraudulent and void, and that defendants be decreed to convey the lands to complainants in accordance with the contract.
    To this bill Sarah Litchfield demurred, on the ground that not being a party to the contract, she could not properly be made a party to the bill. The other defendant also demurred, and assigned the following causes:

      JBirst. There is no allegation that at the time when said exchange was to be made, or at any other time, said complainants were seized, in fee simple, of a sure and indefeasible estate in the land to be conveyed by them, or that the same was free from incumbrance.

      Second. There is no allegation they tendered the deed executed by them to the defendants, or tendered to said defendants a deed for the conveyance of their land to complainants, and requested defendants' to execute and acknowledge the same.

      Third. There is no allegation showing how said complainants performed the stipulations for- breaking and fencing to be done by them.

      Fourth. It appears from complainants’ bill that defendants are husband and wife, and it farther does not appear that the wife, Sarah, is unwilling to convey any estate she may have in the land, or that she has ever been requested to convey to said complainants, or that she is a party in any manner or degree to the fraud charged.

      Fifth. That said bill ought at least to have contained an averment that said defendant, Sarah, is ready and. willing to convey her right of dower which she would have had in said land had the same been conveyed, as agreed, to her husband.

      Sixth. That the relief prayed for, viz: that said defendants be divested of all estate in said land, and then be compelled to convey the same to said complainants, is absurd and impossible, and is not in accordance with the case made by the bill, which is for the specific performance of a contract set out therein.”
    The demurrers were overruled, and the defendants then put in' their joint answer.
    The answer admits the contract for exchange of lands, &c., set up in the bill; denies that the complainants did the breaking and fencing, or furnished the lumber as agreed; denies that any deed of conveyance on the part of complainants was ever actually tendered to them, or any deed on their part ever demanded of them; claims that a survey was to be made before execution of conveyances, and-that the same has not been done; admits the conveyance toj the defendant, Sarah, and that she received the same with notice of the said contract, but claims that such conveyánce was made to her for the purpose of securing to the said Liba and his family a homestead.
    They also say: “ Said defendants admit that said Liba L. Litchfield has not conveyed to complainants, for the reason that said complainants have not performed on their part: and they admit said Lawrence conveyed said land to said Sarah Litchfield, but not for the purpose or with the intent charged in complainants’ bill, but for the purpose and with the intent of securing to himself and family a homestead, either in said land, or in the land to be conveyed by complainants.
    “ Said defendants further say, that in the month of March, a. d. 1858, said Liba L. Litchfield, for the purpose of ascertaining complainants’ title to the land they proposed to convey to him, went to the town of Paw Paw, in the county of Van Burén,, in which said land lies, and caused an examination to be made by some person in the office of the register of deeds for said county, of the records of deeds, and that from said examination it appeared that complainants had no title in or to said premises, nor could said Liba ascertain in whom the title to the land vested.”
    A general replication was filed, and proofs taken by both parties. It is deemed unnecessary to give any further statement of the evidence than is contained in the opinion. The description of land contained in the deed executed by complainants to Liba L. Litchfield, as stated in the bill, is as follows: that “piece or parcel of land situate and being in the county of Van Burén and State-of Michigan, and described as (supposed to be) thirty-eight acres of land off from the east side of the south east fractional quarter of section number thirty-two, in township number four south of range number sixteen west, being the same number of acres off from said east side of said south-east fractional quarter of said section as there is in the west part of the south-east fractional quarter of section number four, in township number five south of range number sixteen west, in the county of Cass and State aforesaid, heretofore owned and occupied by said Litchfield, and in exchange for which this conveyance is made, be the same more or less.”
    The Circuit Court made a decree in accordance with the prayer of the bill, and defendants appealed.

      J. W. Longyear and N. B. Hollister, for complainants.

      D. Blackman, for defendants,
    insisted, among other things, that the parties by liquidating the damages, have, by the contract, provided what the remedy should be:- 21 Penn. 50. The Court has therefore no jurisdiction to grant specific performance:— 1 Hemp. 245; 2 Jones, 267; 4 Md. 59. Also that it was complainant’s duty to have made and tendered a deed to Sarah Litchfield: — 6 Rich Eq. 324. And to have given her notice of their readiness to perform: — 9 S. & M. 207. And to demand the deed from her.
   Chbistiancy J.:

The demurrer of Sarah Litchfield was not well taken. She and her husband were both necessary parties to the ease made by the bill; the husband, as the party to the contract, and the wife by wrongfully taking a conveyance to herself of the land which by the contract was to be conveyed to complainants.

The demurrer of Liba Litchfield was also properly overruled. He assigns six distinct causes of demurrer, which, without repeating them, may be answered in their order.

1. The bill alleges the land to be owned by complainants in fee simple. This is a sufficient averment of title, especially as the contract contained no special stipulations in reference to any particular kind of title, or the evidence by which it was to be shown.

2. The facts and circumstances set forth in the bill are equivalent in this case to a tender of complainants* deed to defendant, Liba Litchfield, and a direct request to defendants to execute a deed to complainants. It was not necessary for complainants to prepare the latter and present it to defendants for execution.

3. We are aware of no rule or principle of pleading requiring a more specific allegation of the mode of performance, or of the manner in which the clearing or fencing was done.

4. It was unnecessary to allege that Sarah (the wife) was requested to convey before suit brought. Having wrongfully taken the conveyance to herself with full notice of complainant’s rights, and without any consideration, she stood only in her husband’s rights, and must be bound by the request made upon him. Her taking the title under-the circumstances stated in the bill was a fraud upon complainants.

5. It was not necessary to allege in the bill that the wife was willing to convey her right of dower. The title never having vested in the husband, there can be no question of dower in the case. Had the title been con-, veyed to the husband instead of the wife, it might have been necessary to determine whether the prior equities of' complainant under the contract should or should not pre-* vail over her contingent right of dower.

6. The sixth and last ground assigned relates to mere matter of form, and would be cured by the general prayer had it been in itself a defect of substance.

This disposes of all the causes of demurrer assigned,, One objection, however, was taken on the argument which, if well founded, would defeat all relief by way of specific performance, and as the objection is raised on matter apparent on the face of the bill, it may be appropriately considered under the demurrer. It is insisted by the coun-. sel for defendants that, by the terms of the contract set out in the bill, the parties have agreed upon the stipulated damages which either party is to pay in case of a breach; that these damages are agreed upon as a substitute for performance; and therefore that either party had the option to perform or to pay the fifty dollars agreed upon.

It is sufficient answer to this to say that, though the parties have called this sum stipulated damages, yet as it applies to several different stipulations of very different degrees of importance, and , by the terms of the stipulation would be payable equally qn the failure to perform the least as of that to perform the most important, or the whole of them together, it is, in leg-al effect, but a penalty, and not stipulated damages; since it is evident the parties themselves .could not have treated it as a mere compensa'tion for actual damages: — Jaquith v. Hudson, 5 Mich. 123. As a penalty, it is no objection to specific performance: Dart on Vend. & Pur. 496 and note 1. We must therefore -consider the case on pleadings and proofs.

The bill, as we have seen, contains a sufficient allegation of the title of complainants: if the defendants intended to deny it, or to insist upon incumbrances as an objection to performance, they should, by their answer, have put the title in issue, or alleged encumbrances (and the burden of proof would be upon them: — Dwight v. Cutler, 3 Mich. 566). But instead of this, they have rested their refusal or failure to convey upon another and distinct ground, the non-performance by complainants of their part of the contract, not stating the want of title, nor encumbrances, as even one of the reasons for the refusal to convey.

It is true, that after having rested their refusal expressly upon the ground of non-performance by complainants, the -defendants in another part of the answer “further say,” “that said Liba Litchfield, for the purpose of ascertaining complainants’ title to the land,” “ caused an examination to be made by some person in the office of the register of deeds for said county, of the records of deeds, and that, from said examination, it appeared that complainants had •no title in or to said premises, nor could said Liba ascertain in whom the title to the land vested.” Whatever-effect this loose allegation of a hearsay examination might have had if .set forth as one of the reasons for refusing a conveyance, yet standing alone as it does, and the defendants not appearing to have sufficient confidence in the examination to enable them to express even a belief as to its •correctness, or of the want of title in complainants, we do not think it a sufficient denial of title to put the question in issue; and it is entirely silent as to encumbrances.

But had .the defendants properly alleged encumbrances and a want of title, no defect of title, nor any encumbrance, is shown by the evidence. The tax title, the prior existence of which was shown only by complainants’ evidence, was also shown to have been conveyed to complainants before the time when by the contract the deeds were to be exchanged, and before the conveyance executed by complainants. A release of mortgage is returned with the evidence, dated after the commencement of the suit, but its prior existence is not otherwise shown, nor does the evidence show that the mortgage ever affected or related to the land complainants had agreed to exchange.

The question of performance is therefore the main question in this case; and though the direct evidence of the manner of performance is somewhat conflicting, yeh when, taken in connection with the fact that Litchfield made no objection at the time to the manner in which the clearing and fencing was done, though present and aware of all the facts, his admissions and conduct, and his long acquiescence— never objecting to the mode of performance till called on to convey — the evidence we think satisfactorily shows a substantial performance by the complainants.

The defendants, in their 'answer, insist that a survey was to be made prior to an exchange of conveyances, and it was urged upon the argument that such survey was a necessary pre-requisite to a proper conveyance, and that the description contained in the deed executed and ready to be delivered by complainants was bad for uncertainty.

The contract calls for no survey, and we see no necessity for it before the execution of the deed., All that was necessary was such a description in the deed of complainants that the land described might be identified by a survey* This could easily be done here by first ascertaining the quantity in the lot Litchfield had agreed to convey, and then surveying off a tract of equal quantity from the east part of the south - east fractional quarter of section thirty-two (defendant’s land) in such manner that . the tract so surveyed off should be bounded on the west by a north and south line; and such is the legal effect of the description in the deed executed by complainants. The desci’iption is made good by the reference it contains to the other tract.

The decree of the Court below must be affirmed, with costs.

The other Justices concurred.


text:
    George Caruthers v. Edmund Hall and Others.
    Where apportion of the land covered by a mortgage is conveyed subject to the» payment of the entire mortgage by the grantee, the subsequent purchaser of' another parcel has a right to insist that the parcel so before conveyed shall be first sold to satisfy the mortgage, before resort is had to the parcel so purchased by himself.
    And when a bill in chancery is filed to foreclose the mortgage, it is not necessary for such subsequent purchaser to file a cross bill in order to protect this right, but he may set out tfie facts in his answer, and the Court, where it can be done without prejudice to the rights of complainant, should make a decree pro* tecting his priority.

      Heard April 12th.

      Decided April 22d.

    Appeal in Chancery from Shiawassee Circuit. The case is sufficiently stated in the opinion.

      McCurdy & Raynale, for complainant:
    Defendant Hall, in his answer, asks for positive relief which the hill will not afford; and this can only be obtained by filing a cross bill. Wal. Ch. 170; 9 Cow, 755; Story Eq. Pl. §§ 389, 392; 2 Barb. Ch. Pr. 126, 127; 3 Dan. Ch. Pr. 1742, 1743.

      E. Hall, defendant in person,
    as to the doctrine of marshaling securities with reference to the equities of the several defendants, referred to Wel. Ch. 459; Saxton, 413; 2 Green Ch. 125; 1 Johns. Ch. 447; 5 Johns. Ch. 235; 1 Green Ch. 396; 8 Barb. 9; 24 Barb. 135; 3 Halst. Ch. 509.
   Campbell J.:

The bill in this ease was filed to foreclose a mortgage made by Wellington Johnson and wife to complainant. Hall, who is a subsequent purchaser, answered, showing that the mortgagor had conveyed a part of the mortgaged premises to one Lucina Redson subject to the entire mortgage, which the deed declared she was to pay, and that his own purchase was made subsequently. He claimed that in decreeing a sale the Court below should require the portion of the land sold to Mrs. Redson to be first offered, and that his portion should only be resorted to in case of deficiency. The evidence shows without contradiction that a sale in this order would not prejudice complainant. The Court below declined to protect his priority, and Hall appealed.

There can be no doubt of the right of the defendant Hall to have this course taken. The case of. Mason v. Payne, Wal. Ch. 461, fully settles the doctrine, which is a very familiar and reasonable one. The objection that a cross bill was necessary, is not well taken. The defendant does not seek any affirmative relief, neither does he seek to deny or destroy any right of the complainant, to whom, upon the case as presented, the order in which the parcels are sold must be a matter of .indifference.

The decree of the Court below must be so modified as to require the sale of Hall’s premises to be postponed, so that the remainder be first offered and sold. The appellant is entitled to the costs of this Court, but not of the Court below.

The other Justices concurred.


text:
    Jesse Davenport v. Aaron Parsons Jr.
    To mate a valid deed under a power of attorney, it is essential that there should he an intention on the part of the attorney to execute the deed under and hy virtue of the power; or at least that the contrary intention should not appear.
    "Where a deed purported to ho made hy attorneys under a power from the two grantors, and there was some testimony that a joint power had existed, hut it was not given in evidence, and only a separate power from one of the grantors was proved, it was held that the execution of the deed could not he referred to this separate power, and the deed sustained as the deed of the grantor who had executed such separate power.

      Heard November 6th and 7th, 1861.

      Decided April 22d.

    Error to Lapeer Circuit.
    Actiou of ejectment by Parsons against Davenport. On tbe trial, plaintiff traced title to the premises in controversy to Thomas Emerson, Frederick Pettis and Richard H. Morris, by deed dated Jauuary 30, 1837, and which granted them “ to the said party of the second part and to the survivors or survivor of them (not as tenants in common, but as joint tenants, with right of survivorship), his heirs and assigns forever;” habendun “to the said party of the second part, and to the survivors or survivor of them, and to his heirs and assigns forever.” A written stipulation of the parties was then given in evidence, admitting that the grantees named in said deed died, said Morris in November, 1837, said Pettis in November, 1838, and said Emerson in February, 1853 ; that Emerson left three heirs at law, who in July, 1857, gave a deed of the premises to Lewis R. Morris, and “that said defendant is in possession of said premises, and that the signatures to a certain paper purporting to be a power of attorney from Thomas Emerson, Richard H. Morris and Frederick Pettis, to Curtis Emerson and Royal H. Waller are genuine.” Plaintiff then put iu evidence the record of a deed of the premises from Lewis R. Morris to himself, and rested.
    The defendant then called'as a witness Curtis Emerson, who testified to the existence of a power of attorney from Thomas Emerson and Lncy his wife, to the witness and Royal H. 'Waller, dated in the summer of 1887, and its loss; that when this power of attorney was in his possession, he had also in his hands another power of attorney executed by said Thomas Emerson, Frederick Pettis and Richard H. Morris, constituting witness and said Royal H. Waller as their attorneys, and that he believed a paper produced and shown to him upon the stand, was substantially a copy of the first mentioned power of attorney. This copy was then given in evidence. It bore date June 18, 1887, and empowered the attorneys named, among other things “to sell and dispose of absolutely, in fee simple or otherwise,” “ all and singular the premises in •any manner belonging unto the said Thomas Emerson, whether in severalty, in common, or in any other way or manner” within the State of Michigan, “ and to sign, seal and deliver such deeds and conveyances as said' attorneys •shall unitedly think fit and expedient.”
    The above was all tbe testimony given on the trial relating to the authority of Curtis Emerson and Royal H, Waller to act as attorneys for said Thomas Emerson and, Frederick Pettis or either of them.
    The defendant then offered to read in evidence from the records of deeds of Lapeer county what purported to be the record of a deed of the premises in controversy, as follows;
    “This indenture, made the 27th day of December, a, d. 1887, between Thomas Emerson and Frederick Pettis, of Windsor, in the county of Windsor, and State of Vermont, of the first part, and Frederick Pettis, of Windsor aforesaid of the second part, witnesseth:” [The deed is then in the common form of warranty deeds to the attestation clause, which is as follows]: “In witness whereof the said Thomas Emerson and Frederick Pettis, have hereunto set their hands and seals the day and year first above written.
    Thomas Emerson, [seal.] Frederick Pettis, [seal.]

      J3y their Attorneys who sign in virtue of a power of Attorney-).

    Signed, sealed and delived, in presence of }R. H. Waller, Curtis Emerson.”
    Geo. G. Bull, Silas B. Waller.”
    The following certificate of acknowledgment was attached t
    State ok Michigan, ) gg County ok Wayne, j '
    On the twenty-eighth day of December, one thousand, eight hundred and thirty-seven, before me a Notary Public-for said county, personally came the above named R. H, Waller and Curtis Emerson, known to me to be the persons who executed the foregoing instrument, and acknowledged the same to be their free act and deed.
    Geo. G. Bull,
    • Notary Public, Wayne County) Michigan.”
    To the introduction of this record as evidence the plain-» tiff objected:
    1st. Because there did not appear or purport by the record thereof to be any acknowledgment of said deed, by the grantors or otherwise, sufficient to entitle it to, record.
    2d. Because the power of attorney, as proved, did not authorize the making or acknowledging of such deed by-said attorneys, and consequently no title of the grantors, named therein could be established thereby.
    Sd. Because it was manifest from the terms of the deed, that the same was not made under the power of attorney given in evidence, but purported to be made under a joint, power given by said Thomas Emerson and said Pettis, and no testimony was given to establish such joint power, 4th. Because such deed, if executed in the manner and form appearing by said record, conveyed no title, the grantee therein named being one of the grantors.
    Which objection was sustained, and the record excluded j and the plaintiff had judgment.

      C. I. Walker, for plaintiff in error:
    1. It is unquestionably true as a general rule that a deed, executed by an attorney, must be executed in tbe name of the principal, and this for obvious though technical reasons. It is the principal whose property is to be conveyed, or who is to be bound by the act; and it must appear upon the face of the papers, that it is his act by the attorney, and his seal; and not the act and seal of the attorney: —10 Wend. 88; 4 Hill, 351; 2 Cush. 337; 12 S & M. 542. But this rule is to receive a liberal construction, so as, if possible, to sustain the deed: — 7 N. H. 475; 10 Ibid. 490 ; 5 Gratt. 119; 8 Ibid. 241; 2 McMullen, 407; 21 Ala. 72. And in case of public agents they may convey in their own names: —5 N. H. 510; 18 Mo. 227. The -acknowledgment rests upon no such principles. It is no 'part of the deed, but a mode provided by the statute for its authentication to entitle it to record, so as to make it constructive notice.
    By the statute, a deed was to be acknowledged by the grantor, or proved, &e., “ as hereinafter provided:”— Laws of 1833, p. 280 § 1. It is afterwards provided that a deed shall be acknowledged by the party executing the same: — Ibid. §2. When a deed is made by an attorney, it is the deed of the principal, executed in his name, but by the attorney. The principal executes the power. That is his free act and d_eed, but the deed is the act of the -attorney under the p>ower. It is by his free will that this is executed, and his mind and his alone acts at the time of the acknowledgment. The acknowledgment of this act is, and must be, that of the attorney, and may be done in his own name. See Curtis' Conveyancer, No. 3; 6 Paige, 60; 3 Barb. 208, 240; 22 Vt. 274, 286; 11 Ala. 977; 1 H. & McH. 146; 1 Humph. 54; 3 Ind. 203, 207.
    In some of these cases the description of their representative character is appended to the name of the attorneys in the acknowledgment, but this does not affect the question in the least: for 1st. J.ust such a description appended to. the deed after the signature of the attorneys would not. make it the deed of the principal, — as the authorities already cited fully show, — nor could it make the acknowledgment any thing but that of the attorney. 2d. The only thing Which this description tends to show is, that the deed was. executed by the attorneys as attorneys for their principal: this is as clearly shown by a reference to the deed itself, and this reference may be made, if necessary, in order to help out the acknowledgment : — 22 Vt. 274; Ibid. 407; 11 Ala. 979; 20 Ill. 391, 402; 13 B. Monr. 535 ; 10 Iowa, 358.
    2. The second objection is that the power proved did. not authorize the making or acknowledgment of such a deed.
    The power is very broad in its terms, and fully authorizes the conveyance of any lands owned by Thomas Emerson, whether owned “ in severalty, in common, undivided, or in any other way or manner. Upon what principle can it be contended, that the attempted conveyance from Pettis to Pettis made void so much of the deed as purports to convey Emerson’s interest in the premises to Pettis? This 'the power fully authorized. This the attorneys fully intended.
    The parties owned the land in joint tenancy, and the-object of the conveyance, the clear intent of the parties, was to convey the entire interest to Pettis. This intent was legal, and the Court should so construe the deed as, if possible, to make it effective and carry out the intention of parties: — -4 Cruise, tit. 32, ch. 20, §§ 33, 49 ; Hobart, 277; 2 Wils. 77; 1 N. H. 64; 9 Fost. 498; 22 Me. 350; 6 Paige, 536 ; 20 Ohio, 602; 18 Mo. 229; 7 Mich. 77, Thus when a power is exceeded it is void only for the excess: —4 Greenl. Cruise, tit. 32, ch. 17, §41 and n; 11 Humph. 283 ; 5 Gratt. 110. So when a deed purporting to. be signed by two is signed by one only, it is good pro tanto: — 19 Geo. 14.
    In accordance with these principles, we can see no reason for holding the deed void as without authority.

      3. The third objection is that the deed was not made under the power given in evidence, but purports to be made under a joint power. In the body of this deed there is no reference to any power, nor was any necessary in the signature. It was surplusage. In the execution of powers, it is unnecessary to refer to them: — 4 Kent, 334; Sug. on Pow. 373; 1 Rawle, 249 ; 18 Mo. 229; 3 Johns. Ch. 551. When one has two powers over particular property, and does an act without referring to either, its execution will be referred to that one which will support the deed: — Sug. on Pow. 375. But if he specially refer to one of those powers, as the one under which he acts, it is an argument against his intention to execute the other : Ibid. 377; 8 Ves. 256, 292; 10 Ibid. 246, 258. But in such a case it is only an argument. The clear intent to do the act authorized by the other must prevail: — 1 Sim. and Stu. 477; 5 Russ. 341. In this case but one power is proved. There is a vague reference to a power, as if it might have been a joint one, but the object in view required no joint power, and none over this land is proved to have existed, and the words themselves are indeterminate. The power proved authorizes the act done, and the deed fails of effect unless it is referred to that power. The Court will not refer it to another upon any such vague ground merely to defeat the deed and the clear intent of the parties. Even a mis - recital of a power does not vitiate the deed under it:— 19 Geo. 279.
    4. The fourth objection, that no title passed because the grantee was one of the grantors, has already been considered.

      A. Fetch, for defendant in error:
    1. A deed acknowledged by attorney must be acknowledged as the deed of the principal — the grantor: — 2 S. & R. 80; 5 Pet. 132; 2 Hill. Real Prop. 283; 7 Mass. 14; 13 Pet. 17; 2 Cush. 337; Pars. on Cont. 119; 4 Greenl. Cruise, 49, notes. The cases in 11 Ala. 997; 1 Har. &

      McH. 141; 22 Vt. 274; 6 Paige, 60, all recognize the doctrine that 'the certificate must show that the person making the acknowledgment acted in so doing as the attorney of the grantor, and not in his individual capacity.
    2. The power' of attorney given by Emerson did not authorize the making of a joint deed with Pettis. It gives no authority to join Emerson with the owner of other lands, or of distinct interests in the same lands, in a deed of conveyance. If this deed is good, Thomas Emerson is not only made to convey lands that he did not pretend to own, but to join in full covenants of title for the interest claimed therein by a stranger.
    An agent can not do even the authorized act jointly with another: — 11 Gratt. 269; Story on Agency, § 5. Even in the case of a factor, it is his duty to keep the property of his principal unmixed with his own or the property of other persons: — 9 Beav. 284; Story on Agency, § 179, n, 205.
    8. The doctrine that a conveyance may be void in part and good in part never applies, unless, 1st. there is a complete execution of the power, and 2d. the boundaries between the excess and the rightful execution are clearly distinguishable:— Story on Agency, § 166; 2 Ves. 644. Here is no complete execution of the authority, nor indeed any legal execution of it. This related to and authorized only an individual transaction, and that as to individual interests only: the conveyance is a. joint transaction relative to another subject matter, and not within the scope of the power. The estates and covenants are also so commingled as to leave no defined line of distinction.
    The transaction is moreover tainted with fraud. Where that is the case, the rule never applies: — Kirby v. Ingersoll, Har. Ch. 172.
    The two joint tenants (so the deed shows), appoint by joint letter the same person as attorney to sell the entire property for both. The agent is bound to sell for the best price he can obtain; the union is made for the purpose of obtaining a higher price for the property than the several interests would bring at separate sales, and each party is bound to the other to use his efforts to sell for the best price. Pettis in becoming the purchaser from the agent of both, violates his plainest duty to Emerson. He uses the influence of his relation to the agent to buy cheap. So far as his share is concerned, it may make no difference what price he pays, but the less the sum the cheaper he acquires the title of his co-tenant. He trades with himself; he cheapens the article by the usual arts of the buyer; he depreciates it by chaffering with his own agent; he is both buyer and seller, and without injury to his original title seeks to obtain Emerson’s interest at the lowest possible figures. An agent to sell can not be the agent for a purchaser: — Moore v. Mandlebaum, 8 Mich. 434. If the attorneys did not act under a joint power, the case is no better. In that event the attorneys had a power from Emerson to sell his joint interest; Pettis, wishing to buy that interest, induces them to become his agent also, and thus after coupling the two interests together, drives his bargain with his own agent.
    4. It is manifest from the terms of the offered deed that it was not made under the power of attorney given in evidence. The one referred to in the deed, was a joint power; that proved was by Emerson and wife alone. The deed was therefore a nullity: — 5 Pet. 309; 6 Pet. 283; 1 Spencer, 347.
   Christiancy J.:

Was the deed from Thomas Emerson and Frederick Pettis, purporting to be executed by their attorneys R. H. Waller and Curtis Emerson, to said Frederick Pettis, properly excluded by the Court below?

This is the only question necessary to the decision of this cause.

The deed was objected to on four distinct grounds; but from the view we have taken of the case, we do not deem it necessary to allude to the second and fourth grounds, of objection, relating to the anomalous character of the deed growing out of the fact that one of the grantors is. also the grantee.

Nor is it necessary to pass definitely upon the form of the acknowledgment, though upon principle, and from the authorities cited, we are inclined to think the acknowledgment would have been sufficient had the deed been other- • wise properly executed.

But the fourth ground of objection to the deed is,, that it was manifest from the terms of the deed offered in evidence, that the same was not made under the power of attorney given in evidence, but purported to be made under a joint power given by Thomas Emerson and said Pettis, and no testimony was given to establish such joint power.

We think this ground of objection unanswerable. The deed did not purport to be executed by the grantors in person, the owners of the land; its validity must therefore depend entirely upon the power vested in the attorneys by whom it was executed. But to make a valid deed under a power of attorney,'it was essential that there should have been an intention on the part of the attorney or attorneys to execute the deed under and by virtue of the power, or at least that the contrary intention should not appear.

Now whatever might be the effect of such a deed as this, if executed by the grantors in person, or whatever may have been their object or that of the attorneys in making Pettis, the grantee, also one of the grantors, the fact that they did intend thus to join them, and that they intended to execute the deed in the name and on behalf of both, is, we think, extremely probable, if not clearly manifest from the face of the instrument and the form of the execution. It would seem therefore to follow that the attorneys must have intended to act either under a joint. power from the two grantors, or a several power from each; though, as we shall presently see, it is not necessary here to determine whether the several power from Thomas Emerson, which was given in evidence, would have authorized the deed had it appeared to have been executed under that power. But the power or powers which would authorize the deed must be given in evidence, or the deed could not be that of either grantor, or in any manner affect the title.

The most natural inference to be drawn from the mode of execution and reference to the power, is that the attorneys intended to act under and refer to a joint power-from both the grantors, in whose behalf the deed purports to be executed, and not a separate power from each or either of them; for after affixing the several signatures and seals of each of the grantors named, they add “By their attorneys who sign in virtue of a power of attorney.”

It is true this may not be a necessary inference, which would admit no proof to the contrary; and if two separ-. ate powers had been proved, one from each of the grantors named, it is possible this mode of execution and reference might be construed as intended to refer to the two. But the only power introduced in evidence to sustain this deed was that from Thomas Emerson and wife, to which Pettis was not a party.

It would, we think, be going a great ways to hold that this could be the power referred to by the attorneys in executing the deed, had no intimation appeared of the-existence of another power which might have been intended by the reference.

But the case is not even so strong as this for the plaintiff in error. It appears from the testimony of his own witness, one of the attorneys named in this power, that when he had this instrument in his possession, he had also another power of attorney, executed to the same attorneys, by both of the grantors and Richard H. Morris. (the latter of whom was dead and Ms interest vested in the other grantees before this deed was executed). It is true it does not appear what were the contents of this latter or joint power; but from the manner in which it is spoken of by the witness, there would seem to be some probability that it had, or was supposed to have, reference to this land; and this inference is strengthened by the fact that, by a stipulation between the attorneys of the respective parties in the cause, it was admitted “that the signatures to a certain paper purporting- to be a power of attorney from Thomas Emerson, Richard H. Morris and Frederick Pettis” to the same attorneys “are genuine.” From the nature of the case we should naturally infer that this fact in the stipulation was inserted at the instance and for the benefit of the defendant below (plaintiff in érror), as the case of the plaintiff below did not involve the necessity of any power. The inference is very strong, if not conclusive, that this was the same power of attorney spoken of by the witness' Curtis Emerson as. being in his possession at the same time with that from Thomas Emerson.

We have already remarked that the form of execution of the deed, and mode of reference to the power, would naturally suggest the idea of a single or joint power of attorney, executed by both grantors, under which the attorneys undertook and intended to act in executmg the deed, though no such instrument had been alluded to or shown to exist. But with the additional, fact that such an instrument, was ¡.in existence, and in possession of the same attorney, at the same time he held possession of the several power from Thomas Emerson, the mference of an intention to act under and refer to the joint, instead of the several power, becomes very strong. This inference it is true might have been weakened, possibly overcome, by the introduction in evidence of the joint power, if it had appeared to have no reference to the land, or to be so entirely different in purpose that the attorneys could not probably have intended to refer to it in the execution of' the deed, though the mere fact of its invalidity as an authority to convey the land, would not, of itself, take away the inference; because it might have been supposed sufficient, whether it were so pr not. But the omission to offer it in evidence when its execution had been admitted, and the deed had been objected to for want of a joint power, is a very significant fact, and warranted the-inference that, if produced, it would have increased the probability that this was the instrument under which the deed was intended to be executed.

Should it therefore be admitted that the several power-introduced in evidence would have authorized the execution of this deed had the attorneys purported or intended to. act under it, still that power could not render this deed valid; as they did not purport, and do not appear to have intended, to act under it in' the execution of the-deed; but it is, to say the least, much more probable that they intended to act, and understood themselves to. be acting, under another power not given in evidence, and therefore of no avail in supporting the deed.

"We think the deed was properly excluded, and the judgment of the Court below should be affirmed, with -costs.

Martin Ch. J. and Manning J. concurred.

Campbell J. did not sit in this case.