text:
    Horace T. LeBaron v. Cornelius Shepherd.

      Pleading in Equity: Title: Condition: Allegata et iwobaia / Hypothetical and ambiguous statements: Effect of demurrer. When, the title of the complainant as stated in the bill depends upon the performance of a condition, and the proof shows that the condition was not performed according to ita terms; the complainant will not be entitled to the relief he seeks by showing in his proofs an excuse for the non-performance of the condition, — there being no allegation in the bill, on which an issue could bo taken, of the facts relied upon to justify or excuse the non-performance of the condition.
    A hypothetical statement, — “ that if the said J. E. H. left, etc., he did so from and upon a good, sufficient, and justifiable cause,” — is too indefinite to answer any legitimate purpose of pleading. It is, in effect, an indefinite and ambiguous statement of the pleader’s opinion, as to the effect of facts not set forth.
    General statements in a bill bearing upon the legal effect of a devise are not the subject of an issue of fact; and if such a bill lie demurred to, the deinnrrer would not admit the construction of the devise to be as claimed by the complainant.

      Heard May 11.

      Decided October 4.

    Appeal in Chancery from Washtenaw Circuit.
    Horace T. LeBaron filed his bill in the Circuit Court for the County of WashtenaAV in Chancery, against Cornelius Shepherd, to quiet his title to certain lands in Washtenaw County, of which he claimed to be in possession. He sets forth his title generally, that the premises were originally entered and purchased of the Government of the United States by James Hankenson, Jr., and that the same has been conveyed by a regular chain of title, by deed and will, from the said James Hankenson to him; and more particularly that the premises were conveyed by the United States to James Hankenson, and by James Hankenson to Hannah Shutes (late Shepherd) and James Edgar Hanson, in equal undivided shares, by the last will and testament of said James Hankenson; that said will had been duly-admitted to probate by the Probate Court for said County of Washtenaw, and the premises had been duly conveyed by sa^d Hannah Shutes and the said James Edgar Hanson to him; that the said James Edgar Hanson is, and for a long time has been, twenty-one years old, and has had born and still has living issue of his body. He further states that-the said will of said James Hankenson in the devise of the one undivided half of said premises to said James Edgar Hanson contained the following provision, to wit: “Provided that my grandson, James Edgar Hanson, shall live and remain with Cornelius Shepherd and Hannah Shepherd until he is twenty-one years of age. But in case James Edgar Hanson, my grandson, shall leave the above Cornelius and Hannah Shepherd before he is twenty-one years old, or dies without issue, then and in such case I give and bequeath the above described land to Hannah Shepherd during her natural life, then to descend to Isaac Hankenson, my brother, his heirs and assigns forever.” And “ that if the said James Edgar Hanson left the said Cornelius and Hannah Shepherd before he Av.as tAventj-one years old, he did so from and upon good, sufficient, and justifiable cause.”
    The defendant admits the-possession of the complainant, the title, ay ill and death of Hankenson, and “admits that the said James Edgar Hanson is twenty-one years of age, and that he has had born, and still has liAung issue of his body, and he says that the said James Edgar Hanson Avas about ten years old at the time said aauII was made and executed by the said James Hankenson, that he continued to live with the said Hannah Shutes, then Hannah Shepherd, and this defendant after the death of the said James Hankenson, and until he was-about fifteen years old; that this defendant took care of, educated, clothed, and fed the said James Edgar Hanson during the time lie was so living with the said Hannah Shutes and this defendant, and that he used all his efforts to persuade him to continue to live with the said Hannah and this defendant, but that he voluntarily left the said Hannah and this defendant, when he, the said James Edgar Hanson, was about fifteen years old, contrary to the provisions of said will, and that he did so without any good, sufficient, or justifiable cause, and contrary to the wishes and solicitations of this defendant, and remained away till after he was twenty-one years of age.” And he insists, “ that the absolute title to said lands became vested by the will of the said James Hankenson, the conditions thereof having been broken, in the said Isaac Hankenson, subject to the life estate, in said lands, of the said Hannah Shutes, and that the said Isaac Hankenson conveyed said lands to this defendant by a quitclaim deed.”
    The defendant claimed in his answer the benefit of a demurrer to the bill, alleging among other grounds of demurrer,
    “Because it does appear in and by said bill that upon the failure on the part of the said James Edgar Hanson to perform the conditions specified in said will, the said premises were devised to the said Isaac Hankenson,' and it does not appear by said bill that the said conditions were performed, nor that the said Isaac Hankenson was guilty of any act, saying, or doing to prevent the performance of the • said conditions, or to defeat or divert the estate so devised to him.”
    A replication was filed, and a large amount of testimony taken as to the causes which induced Hanson to leave the house of defendant and cease to live with him.
    The cause was heard on pleadings and proofs, and the Court adjudged the complainant to be the owner of a conditional fee in tlie undivided half of the lands claimed, “ and. that said defendant is not lawfully entitled to claim any right, title, or interest in said lands, or any part thereof, by reasons of or through the failure of said James Edgar Hanson to live and remain with said Cornelius Shepherd and Hannah Shepherd until he was twenty-one years of age, or by reason of said James Edgar Hanson having left the said Cornelius Shepherd and Hannah Shepherd before he, the said James Edgar Hanson, was twenty-one years of age.” The defendant was perpetually enjoined from setting up any such failure, etc., and was required to ■execute and deliver to the complainant a release of all claims to said land founded on any such leaving by said James Edgar, as aforesaid, or on any such failure of the said James Edgar to live and remain ivith said Cornelius and Hannah.
    From this decree, the defendant appeals to this Court.

      Joslin & Blodget and H. J. Beakes, for complainant.

      Fetch & Grant for defendant.
    The complainant’s case, as made by the proofs, is imperfect and defective; is still more so on his pleadings. The testimony has added beyond the allegations in the bill,— First, the entire will of James Hankenson; second, the relation and relative situation of the several parties named therein; third, the conveyance of J ames Hankenson’á interest to the defendant; and fourth, evidence intended to show an excuse for Edgar’s failing to perform the condition attached to the devise to 'him. Much of this testimony was objected to, as not within the allegations made in the bill.
    No allegation as to whether the condition was performed or not, is contained in the bill. We insist upon these allegations:
    That the complainant has not in his bill alleged title in himself sufficiently clear, definite and certain to enable him to maintain the suit.
    It shows that Edgar had no estate in the premises but on condition. It should show cither that he remained with Cornelius and Hannah till twenty-one, and so took the title, or that he left before he arrived at that age, and give facts constituting a legal waiver of the condition. It is now in the alternative — not alleging that he remained, nor that he left — and if he left, not- saying what the reasons for so doing were. This is insufficient under the general rules of pleading. Complainant’s title must be set out with certainty.—Story Eq. Plead. § 242, 244, 245, 245 a, 246, 247, 254, 255; 1 Dan. Ch. P., 373; Soulmire v. Heidelborg, 32 Miss., 268; Keer v. Freeman, 32 Miss., 292; Wormland v. DeLisle, 3 Beavan’s Ch., 18; Houghton v. Reynolds, 2 Hare, 264 a,nd note; Moran v. Palmer, 13 Mich., 368. And this rule' applies more forcibly still in the proceeding to remove a cloud on complainant’s title. Complainant must show a perfect, clear, unconditional title, either legal or equitable.—2 Comp. Laws, § 3490; Stockton v. Williams, Walk. Ch., 120; Stockton v. Williams, 1 Doug., 546; Ross v. Young, 5 Sneed, 627; Alton Ins. Co. v. Buckmaster, 13 Ill., 201.

   Graves, J.

This case was brought to a hearing at the last spring term, and was then argued by counsel for the defendant upon an elaborate brief containing the points, and a reference to the authorities relied on. The counsel for complainant, not being then prepared with a brief, submitted a number of points chiefly upon the facts, and containing no citation of authorities upon any of the important questions of law involved, and he did not pretend to address himseli to the material law points in the case. It was, however, arranged by counsel, in order to get the case before the Court and avert the consequences of an ex parte hearing, that a brief upon the law of the case should be thereafter prepared within a week on the part of complainant, which, on being examined by counsel for defendant, and answered, if thought needful, by counter citations, should be delivered to the Court. Under these circumstances the Court reluctantly consented to take the case under advisement. A re-argument having in the meantime been required in another important case, in which the counsel was engaged who was to prepare the brief, we were informed on such re-argument, that in consequence of the labor which a preparation for that had imposed, it had been. found impossible to prepare the brief in the present case within the time specified; and that the counsel for defendant had allowed further time. Failing to receive the promised brief, an examination of the case was deferred, in the expectation that the neglect would be explained in some way at the July term. This expectation not being realized, but the matter remaining at the end of that term as it stood at the adjournment of the former term, we think the complainant abandoned the right to be further heard, and that it is due to the defendant to dispose of the case at this term.

In all cases of doubt and difficulty, it is of much importance that the Court should have the assistance of counsel, not only because the judges may thereby be relieved from unnecessary labor, but because the ability and diligence of counsel may materially lighten the path of investigation, and assist in reaching a result which might otherwise be missed. Every one at all conversant with the subject must be aware that in the examination of intricate cases embracing points which admit of considerable debate, and deserve to be viewed from different positions and under various aspects and relations, the judicial mind will often be led by thorough discussion by opposing counsel, to conclusions very different from any which would have been formed upon an ex parte or one-sided argument. It is, therefore, not without danger, that a Court proceeds to adjudicate such a case without a full hearing in some form on both sides. This view, which accords, with all our experience, has been always recognized by the Courts in this country and in England, and is sanctioned by the theory and general course -of our system.

Now, the fundamental question underlying the present case, is one of considerable difficulty. It deserves to be investigated with care by counsel, in the light of reason and authority, and to be critically considered by the Court after such assistance; and unless that question has been so brought forward by complainant as to require its determination upon the present record, I think we ought not to pass upon it. Upon a careful inspection of the bill, and bearing in mind that the answer contains a clause of demurrer, I am satisfied that it would not warrant a decree for complainant upon his. own theory. Nearly all the evidence is directed to the question alluded to, but I think the bill is not so framed as to allow that question to be litigated in the face of the objection taken by the defendant.

It is true, that in some cases when the whole matter has been gone into and been fully heard, and the court has seen that the only obstacle to a decree upon the merits, and which Avould terminate the litigation, consisted in a defect in the bill Avhich could and ought to be remedied by an amendment, the point has been settled by the appellate court in anticipation of an amendment in' the court below under an order of the former. But in all instances of that kind the appellate court has encountered no objection to a disposition of the case in that way, except the defect in the pleading. No case in the position of this has been so disposed of. Here, aside from, the difficulty arising from the defect in the bill, the real question being one of great nicety in its legal aspect, is before us without argument or the citation of authority by the complainant to support that legal view which is indispensable to him. I think, therefore, we ought not to pronounce an opinion upon that question.

It is seen to be assumed that the point agitated by the evidence, and on which the complainant relies for a decree, is not properly triable under the allegations of the bill. To show that this assumption is' well founded it is necessary to recur to the record.

The bill was filed to quiet the title of complainant to the east half of the northeast quarter of section twenty in the township of York in the County of Washtenaw, and was founded on section 3190, Compiled Laws. One James Hankenson, Jr., being the owner of this land, by his last will devised one undivided half to Hannah Shepherd absolutely, and the other undivided half to James Edgar Hanson under conditions, failing which, then to Hannah Shepherd for life, remainder in fee to Isaac Hankenson. At the time of the death of the devisor, Hanson was about ten or eleven years, of age, and was residing with the defendant and Hannah Shepherd. The defendant claims under the residuary devisee, Isaac Hankenson, and insists that he has acquired the right devised to him. He disclaims any possessory right during the life of Hannah Shepherd. The question which the complainant makes relates to- the right acquired by Hanson under the devise, he insisting that under the circumstances disclosed by the evidence Hanson became absolute owner. The defendant, on the contrary, contends that Hanson disentitled himself under the condition and that Isaac Hankenson, defendant’s grantor, became vested with the remainder in fee.

The bill,- following the terms of the will so far, states that the undivided half in question was devised to James Edgar Hanson, complainant’s grantor, upon condition that he should live and remain with Cornelius Shepherd and Hannah Shepherd until he should be twenty-one years of age, but that, if he should leave them before he should be twenty-one, or should die without issue, that then it should go to Hannah Shepherd for life and on her death descend to Isaac Hankenson in fee.

The complainant by the bill asserts Hanson’s title through this devise, but does not allege performance of the condition nor set up any facts whatever as serving to prevent performance, or as constituting an excuse for nonperformance, nor does the bill contain any explicit admission that Hanson failed for any reason to keep the condition. In short it is impossible to gather from the bill whether the condition in the devise was kept or not, and, if not kept, what was the occasion of the failure.

The only passage in it which refers in any manner to the performance or non-performance of the condition is in the following words: — “And your orator charges the truth to be that ir said James Edgar Hanson left the said Cornelius and Hannah Shepherd before he was twenty-one years old, he did so from and upon good, sufficient and justifiable cause.” This neither admits that he went away nor denies it. It is a hypothetical declaration merely, and even then is so much at large and so indefinite as to answer no legitimate purpose of pleading where it is found.—Grim v. Wheeler, 3 Edwards R., 334; McIntyre v. Trustees Union College, 6 Paige, 239, 251. It is not laid as a pretense. It contains no facts upon which an issue could be formed. It is not only equivocal but seeks to embody a conclusion composed of fact aud law, wbicli the Court might or might not sanction after seeing the facts. Or in other words it is an indefinite and ambiguous statement of the pleader’s opinion of the effect of facts not set forth, and based upon a hypothetical premise, aud according to well established principles, it should be taken most strongly against the pleader.—Shedden v. Patrick, 28 E. L. & E. R., 56, 68; Foss v. Harbottle, 2 Hare, 461, 502; Vernon v. Vernon, 2 Mylne & Craig, 145; Attorney General v. The Mayor of Norwich, Ib., 406, 423; Balls v. Margrave, 3 Beav., 284; Case v. Humphrey, 6 Connect. R., 130; Columbine v. Chichester, 2 Phil., 28; McElwain v. Willis, 9 Wen., 549; Ferries & Eaton v. North American F. I. Co., 1 Hill, 71; Slocum v. Clark & Saxton, 2 Hill, 475. The word “if” involves the whole sentence in a degree of uncertainty repugnant to the rules of pleading. Besides there is no attempt to state the nature of the cause of Hanson’s leaving, if his going away had been set up, nor by whom, if by any one, he was prevented or excused, nor any fact or circumstance regarded as a “justifiable cause.” That this extract is quite insufficient to bring into question the point that Hanson left by compulsion of defendant, or in consequence of such bad conduct on the part of the latter as to “justify” or excuse the act of leaving, supposing the non-performance of the condition could be answered on such grounds, — a matter on which no opinion is expressed, — appears to me to be certain. In the absence of any clause of demurrer in the answer, I should think the bill insufficient, in the particular alluded to, to warrant a decree for complainant.—Story’s Eq. Plead., § 447; Adams Eq., 303, margin; Cheuvete v. Mason, 4 Greene (Iowa), 231; Munson v. Sears, 12 Iowa, 172; Grim v. Wheeler, 3 Edwards R., 334; Mechanics’ Bank v. Levy, 3 Paige, 606, 612; also 1 Daniel C. P., 365, 366, 367, 374. It was for complainant to show title in himself to the undivided interest conditionally devised to young Hanson, inasmuch as the equity of complainant depended upon it. It was, therefore, necessary to allege in direct and positive terms and with reasonable certainty that the condition had been performed or kept, or according to complainant’s theory he should have admitted expressly and unequivocally that Hanson left before he was of age, and then followed the admission by'a statement in direct and unambiguous terms of the facts relied upon to excuse or justify his leaving; and the following authorities, it is believed, support and illustrate this position: Story’s Eq. P., §§ 241, 255, 257; Adams Eq., 308, margin; 1 Daniel C. P., 328, 330, 366, 374; Opinions of Parke, Wightman and Earle, Judges in Egerton v. Earl Brownlow, 4 House Lords cases, 1; Arkwright v. Colt, 2 Young & Coll., 4, 8; Balls v. Margrave, 3 Beav., 284; Wormald v. DeLisle, 3 Beav., 18; Hunter v. Daniel, 4 Hare, 420, 432; Attorney General v. Norwich, 1 Keene, 700, 710, 713; Same case on appeal, 2 Mylne & Cr., 406; Hammond v. Messenger, 9 Sim., 327, 335, 336; Baker v. Harwood, 7 Sim., 373; Stansbury v. Arkwright, 6 Sim., 481; Jossaume v. Abbot, 15 Sim., 127; Ryves v. Ryves, 3 Ves. Jr., 343; Walburn v. Ingilby, 1 Mylne & K., 61, 77; Davis v. Harrison, 4 Litt., 262; Cruger v. Halliday, 11 Paige, 314; McElwaine v. Willis, 9 Wend., R., 549; James v. McKernon, 6 Johns., 543, 564; Woodcock v. Bennett, 1 Cow. R., 711, 734; Bard & Wetmore v. Chamberlain, 3 Sandf. Ch. R., 31; Hutchinson v. Brown, 1 Clarke R., 408, 421, 422; Peck v. Mallams, 6 Selden, 509; Rainier v. Howell, 1 Stockton R., 121; Hough v. Canby, 8 Blackf., R., 301; Newhouse v. Hill, 7 Blackf. R., 584; Beach v. Norton, 9 Connect. R., 182; Wolcott v. Jones, 4 Allen, 367; Langdon v. Goddard, 2 Story R., 267; Beaubien v. Beaubien, 23 How., 190; Wilson v. Stolley, 4 McLean, 275; Cook v. Beacher, 1 Root, 483; Wigram on Discovery, 54, 126, 127, 133, 134.

The necessity for adhering to the substantial rules of pleading, and also to the rule which confines the evidence to the issue has been often stated by eminent Judges and is certainly unquestionable. In Bellamy v. Sabine, 2 Phillips, 425, 448, Lord Cottenham said: — “The rights of parties litigating in equity must be decided secundum allegata ei prolata. Attempts to reach the supposed equities by departing from the rules of the court, which have been established for the purpose of ascertaining and administering justice, generally lead to results in the particular cases, the reverse of what was intended, and introduce disorder, uncertainty and confusion into the general practice of the court.” In alluding to the same general subject in an earlier case, Chief Justice Marshall said: — “The counsel for the appellant says it would be monstrous if, after the parties have gone to trial on the validity of the entry, and have directed all their testimony in the Circuit Court to that point, their rights should be made to depend in the appellate court on a mere defect in the pleadings, which had entirely escaped their observation in the court where it might have been amended and the non-existence of which would not have varied the case. The hardships of a particular case would not justify this tribunal in prostrating the fundamental rules of a court of chancery; rules which have been established for ages, on the soundest and clearest principles of general utility. If the pleadings in the cause were to give no notice to the parties or to the court of the material facts on which the right asserted was to depend, no notice of the points to which the testimony was to be directed, and to which it was to be limited; if a new case might be made out in proof, dif fering from that stated in the pleadings, all will perceive the confusion and uncertainty which would attend legal proceedings and ‘ the injustice which must frequently take place. The rule that the decree must conform to the allegations as well as to the proofs of the parties, is not only one which justice requires, but one which necessity imposes on courts. We cannot dispense with it in this case.” Crockett v. Lee, 7 Wheat., 522.

It is very clear that the general statements in the. bill bearing upon the legal effect of the devise are of no importance. They would have been without consequence if the defendant had rested the case on a demurrer, since a demurrer would not admit the complainant’s construction of the will, and statements of the kind in question would not be the subject of an issue of fact.—1 Daniel C. P., 566, 567; Williams v. Steward, 3 Meriv., 472, 503; Games v. Robb, 8 Iowa, 193; Smith v. Henry County, 15 Iowa, 385; Lea and others v. Robeson and others, 12 Gray, 280.

I think a proper construction of the bill warrants the conclusion that the ground relied on by complainant at the hearing, that Hanson went away from defendants’; that he was prevented from staying by the lattex, or justified in leaving by his harsh and cruel treatment, was not made by the bill, and that the evidence on the sixbjeet was foreign to any issue made by the pleadings. Under this view of the case, numerous decisions of this Court, as well as others, would require us to reject the evidence relating to Hanson’s going away and its cause.—See Moran v. Palmer, 13 Mich., 367, 372; Gorham v. Wing, 10 Mich., 486, 494, 495; Manning v. Drake, 1 Mich., 34; Montesquieu v. Sandys, 18 Vesey, 302, 312, 313, 314; Stuart v. Farmers & Mechanics’ Bank, 19 Johns., 496; Campbell v. Consalus, 25 N. Y., 613; Van Riper v. Claxton, 1 Stockten, 302; Boone v. Chiles, 10 Peters, 177, 208; and other cases-before cited. But if the passage in tbe bill which has been quoted and commented on is not to be considered as blotted out of the bill, I think it so fundamentally defective in its elements and frame-work, so objectionable on various grounds, as to . be insufficient to raise an issue of fact for the admission of the evidence in question.

Considering, therefore, the incongruity between the bill and the proof, and that upon complainant’s theory of the evidence, the bill would not warrant a decree, in his favor, and also considering that the point agitated by the evidence and relied on by complainant is. one of doubt and difficulty, and which he has not thought it needful to present or discuss in the light of authority, I think no opinion should now be pronounced upon that point, and that the decree below should be reversed and the bill dismissed with costs to the defendant, but without prejudice.

The other Justices concurred.


source: Caselaw Access Project

author: Cooley, J.

license: Public Domain

text:
    William E. Kimball v. Nathan S. Myers.

      Parol evidence affecting written instruments. It is competent to show, by parol, that a mortgage given to secure the payment of a specified sum of money, was in fact given to protect the mortgagee as a surety for the mortgagor, upon a promissory note for the same sum, and made at the same time the mortgage was given. The effect of such proof is not to contradict or vary the mortgage,, but to identify the demand to which it refers.

      Evidence: Conjlict: Credibility. In cases of conflict in oral testimony, that will . be entitled to a preponderance, which is most reasonable in view of all the , surrounding circumstances, and is most consistent with conceded facts.

      Heard July 7.

      Decided October 4.

    Appeal' in Chancery from Lenawee Circuit.
    William E. Kimball filed his bill in the Circuit Court for the County of Lenawee in Chancery, to compel Nathan S. Myers to deliver up to be canceled a certain mortgage,, executed by one George Morton and wife upon premises,. the title to which the complainant claims under Morton; the complainant alleging, as the ground of the relief sought, that the indebtedness which the mortgage was given to secure had been discharged. Answer and replication were filed and testimony taken. The cause was heard upon pleadings, and proofs by the Court below, and the bill dismissed ; from which the complainant appeals to this Court.

      Mdredge & Walker, for complainant.
    Payment may be proved by parol.—2 Wash. Real Prop., p. 122. Payment upon the mortgage of any specific item secured by the mortgage is a discharge thereof to that extent. If the sum paid as a performance of the conditions of the mortgage is of an amount equal to the sum thereby secured, the mortgage is extinguished at once.—Caruthers v. Humphrey, 12 Mich., 278; Spencer v. Perry, 18 Mich., 398; 2 Wash. Real Prop., p. 122, 123, 152, 162; Moynahan v. Moore, 9 Mich., 9; Van Husan v. Kanouse, 13 Mich., 306; Marvin v. Vedder, 3 Cow., 671.

    A mortgage for future advances.is valid.—Mich. Ins. Co. v. Brown, 11 Mich., 270. But if the amount limited in terms by the mortgage has been advanced, it is incompetent as against a junior incumbrancer or a purchaser to show that it was intended to cover a larger amount.—Bank v. Finch, 3 Bart. Ch., 294; Stoddard v. Hart, 23 N. Y., 556; Ladue v. D. & M. R., 13 Mich., 380. Such mortgage will, as to the subsequent purchaser or incumbrance, be postponed to their rights.—Craig v. Tappin, 2 Sandf. Ch., 78; Ladue v. Detroit & Milwaukee R., 18 Mich., 380.

    So far as Myers is concerned, it is not competent for him to prove, even as between himself and Morton; and still more incompetent for him to show as to third parties without notice, that his mortgage was to secure more than one sum of $800.—Adair v. Adair, 5 Mich., 210; Savercool v. Farwell, 17 Mich., 319. By the terms of the mortgage, the sum of $800 was due upon it “on or before one year” from April 16th, 1866. The payment then to Myers, or for his use, of $800 after that day, discharged the mortgage.—Caruthers v. Humphrey, 12 Mich., 278.

    But it may be claimed that if it is not competent for Myers to show that the mortgage was given for something beside the payment of $800, in cash, that it is equally incompetent for the complainant to do the same, and that —as a result of this reasoning — unless the complainant can prove the payment of $800, in cash, to Myers after the date of the mortgage, as payment thereon, the words of the instrument will be conclusive, and it must be held as a mortgage for $800, and for nothing else.
    We think that while it is forbidden to the parties to enlarge the terms or the scope of -an instrument, that the rule has no application to third parties, who are allowed to show the whole agreement, untrammeled by the writing in any way.—1 Green. Ev., Sec. 279; 2 Phil. Ev., Cow. & H., & Ed. Notes, p. 650, note.

    If it be urged that upon the whole agreement, as shown by the evidence, it appears that while the mortgage was primarily given as security to Myers for signing the note, yet it was also as security for such sums as Morton then was, or thereafter might be, owing to Morton, we reply: First, That -this is not established by the evidence; and, Second, That it is unquestioned that the mortgage was given primarily to secure Myers for signing a note for $800; the exact sum secured by the mortgage and on the same day. And, as we claim, this legal liability of Myers — notwithstanding it was Morton’s debt — was the $800 secured by this mortgage, and that payment thereof by any one was as against third parties, an extinguishment of the .lien of the mortgage upon, the property. That if Kimball had inquired and learned that the mortgage was given to secure the payment of the joint note, and that the note had been so paid as to extinguish Myers’ liability without cost to him, he would have taken the place discharged of the mortgage, even though Myers had told him the whole agreement as he now claims it.
    At all events the only amount that can be recovered by Myers is such as was due before June 12th, 186(3, the date of the deed from Morton to the complainant, and under which he at once took possession,—Ladue v. D. & M. R. Co., 13 Mich., 380.

      A. L. Millard, for defendant.
    The mortgage in this case contains an express acknowledgment of an existing indebtedness of $800, and a covenant to pay the same to the defendant in one year from date, with interest. There is no ambiguity in the terms, and no charge is made either of fraud or mistake. It is just what the parties intended to have it. There is no claim that the mortgage has been paid according to its terms. The. bill alleges that instead of being intended for what it is on its face, it was for a totally different purpose; that the real contract between the parties was one of indemnity against the Waldby note, and nothing more j and that tlie note having been paid, the mortgage was satisfied.
    Is it competent to change the contract, by parol, from that stated in the writing, to one entirely different ? We think it clear that it is not.—1 Greenl. Ev., §§ 275, 281, 282; 2 Story’s Eq., Juris., §§ 1531, 767; Stevens v. Cooper, 1 J. C. R., 425; Barber v. Buel, 5 Cushing, 519, 31 Ill., 538; Columbia v. Amos, 5 Ind., 184, 30 Maine, 94; Jackson v. Cleveland, 15 Mich., 94; Adair v. Adair, 5 Id., 210. In this last case tbe question, was the precise one made here, and, as we submit, settles it for this state, whatever conflict of authority there may be elsewhere. And by consequence^ the allegations of the bill, having nothing but parol proof to sustain them, must fall to the ground.
    But if resort be had to the parol proof, the result must be the same. The answer denies that the sole purpose and agreement of the parties was. to indemnify the defendant against the Waldby note, and alleges that Morton was indebted to defendant aside from that, and that the mortgage should be taken and held as security for any indebtedness then existing, or thereafter to be contracted. The burthen of proof is, of course, on the complainant. He offers no testimony but that of Morton to sustain his allegation as to the agreement. The preponderance of proof is largely on the other side.
    This is not a bill to redeem. The complainant does not ask to have the amount due on the mortgage ascertained, and offer to pay it. The only case made by the bill is that the mortgage was given solely for indemnity against the Waldby note, and that that has been paid by Morton. The complainant must sustain this therefore by the proofs, or his case fails. The proof does not make this out, as we have shown. On the contrary, it is shown that the mortgage was intended as security for any indebtedness that he then owed or thereafter might owe to Myers.
    There is no charge in the bill that this indebtedness, if there was one, has been paid, and we are not called on, therefore, to make any proof on that subject. But there is not only no such charge in the bill, but the proofs do not show that it has been paid. Even if this issue had been made by the pleadings, the least that could be required of the complainant would be that he should show clearly and unequivocally that it was paid. The burthen would be upon him if he had asked to have the mortgage discharged on that ground.
    One other position of complainant’s counsel remains to be noticed. It was claimed on the argument in the Court below, that even if the mortgage was given to secure any indebtedness of Morton to Myers, proof of the payment of the amount thereof on any such indebtedness at any time since the mortgage was given would discharge the mortgage, notwithstanding he might still remain indebted to Myers. This we think cannot be sustained. The mortgage was given to secure any indebtedness he might owe from time to time — any balance that might be due to Myers. It was a continuing security. The case of the Bank of Utica v. Finch, 3 Barb. Ch. R., 293, cited by complainant for another purpose in the Court below, is an authority against this position of his counsel. And on this point it is not in conflict with any decision of this Court.
    There is, however, no proof of any payment of eight hundred dollars by Morton to Myers, since the making of the mortgage.
   Cooley, J.

The bill in this case sets forth that complainant, on the twelfth day of June, 1866, purchased of one George Morton a certain lot in the city of Adrian for the sum of one thousand dollars, and received a deed of conveyance thereof which contained full covenants of title and against encumbrances; that complainant immediately took possession of the premises, and has been in the sole and exclusive possession thereof ever since; that at the time of.purchase Morton assured complainant there was no incumbrance upon the premises except a mortgage of eight hundred dollars to one Wisner, and produced a certificate from the Register of Deeds to that effect; that complainant after-wards learned that on or about the sixteenth day of April, 1866, said Morton with his wife had given a mortgage on said premises to the defendant, Myers, conditioned for the payment by Morton to defendant of eight hundred dollars and interest within one year; that the mortgage was. recorded April 17, 1866; that the sole consideration therefor was the signature or endorsement of a note made by Morton to W. H. Waldby & Co., April 16, 1866, by said Myers, as surety, guarantor or otherwise, which note was for eight hundred dollars and payable twenty days from date; that the mortgage was given for the sole purpose of indemnifying said Myers against any liability, cost, charge, loss or damage ho might sustain by reason of having signed said note with said Morton, and for no other consid-. eration or purpose; that said note was paid when it matured by said Morton, and that said mortgage was then and thereby fully paid and satisfied, and the said premises released from the lien thereof; that said- Morton at the request of complainant afterwards, on the twenty-fifth day of March, 1867, presented to defendant a discharge of said mortgage, and requested him to execute the same, offering to pay all costs, etc., but that defendant refused and ever since has refused to execute the same; that the mortgage constitutes a cloud upon complainant’s title and prevents his selling the premises as he desires to do; that Morton is irresponsible and resides out of the state, and that defendant claims the whole sum of eight hundred dollars and interest as still owing on his mortgage, and insists on being paid the same. And the bill prays that said mortgage to defendant may be decreed to be satisfied and discharged, and be delivered up to be canceled.

The answer of the defendant denies that the sole consideration for his mortgage was the signing by him of the Waldby note as security, endorser, guarantor or otherwise, and denies that any such note was ever signed or endorsed, or otherwise secured by him; but the defendant says he did, at about the time stated in the bill, at the request of Morton, give his own promissory note to said W. H. Waldby & Co., for the sum of eight' hundred dollars and interest, payable, according to his recollection and belief, in fifteen days from date; that previous to that time he had been accustomed to have dealings with Morton, and to loan him money and the use of his name, and advance money for his use; that when said mortgage was given, it was expressly agreed between said Morton and himself that it should be security for whatever amount was then or should thereafter be due or owing from time to time from said Morton to defendant; that at that time Morton was actually indebted to him in about the sum of three hundred dollars, independent of the Waldby note; that thereafter and before he had any notice or knowledge of the sale of the premises by Morton, he had advanced money to” him, relying upon the mortgage as far as it went; that the first intimation he had of the sale was seeing the premises advertised for sale by complainant;. that at that time, although Morton had taken up the Waldby note, he was indebted to defendant in the amount of near two thousand dollars, no part of which has since been paid; and he therefore denies that the mortgage is satisfied, and insists on retaining the same as a valid lien.

The answer having been put in issue by replication, the parties took evidence to prove their respective allegations. Both Morton and the defendant were examined at length, and in many particulars their evidence was directly in conflict. Defendant, however, admits in his testimony that the Waldby note was not given by himself alone, as stated in his answer, and was not payable in fifteen days, but was given by him with Morton, and payable in twenty days. The principal dispute between them was whether it was •agreed the mortgage should cover other indebtedness than the eight hundred dollar Waldby note. Morton expressly -denies that there was any such understanding, and defendant with equal positiveness affirms it.

Before determining the question of fact, however, it may be important to consider a question of law which is made on behalf of defendant, and which may dispose of the whole case if decided in his favor. The mortgage from Morton to defendant being given for the sum of eight hundred dollars, payable in one year, it is insisted that it is not competent to prove by parol that it was given to indemnify defendant for becoming security for Morton on the note to Waldby, as this would show that instead of being given for what appears on its face, it was for a totally different purpose; and thus the contract would be changed by parol from that stated in the writing to one entirely different. Several cases are cited in support of this position. Stevens v. Cooper, 1 Johns. Ch., 425, was a case in which it was attempted to attach to a mortgage of several lots a parol contemporaneous agreement, that in case the mortgagor sold either of the lots, the mortgagee would release it from the mortgage on being paid' a certain proportionate sum of the amount secured. This was so plainly incompetent that no question would now be made regarding the correctness of the ruling which excluded the evidence of such an agreement. Barker v. Buel, 5 Cush., 519, was where it was sought to show that a mortgage given to secure a surety against the whole amount of a debt was designed to secure him against one-third only. The same may be said of this case as of the last, and with equal reason. Foy v. Blackstone, 31 Ill., 538, holds that it is not competent for the maker of an absolute note to show, as against tlie payee or an endorsee, that by an oral contemporaneous agreement, it was only to be payable on a contingency. Columbia v. Amos, 5 Ind., 184, was in legal effect precisely like the case in Illinois. Cases of similar purport might be cited in great number, but it cannot be important, as no one at this day would venture to dispute the correctness of the principle declared. Jackson v. Cleveland, 15 Mich., 94, was a case where it was sought to establish a resulting trust in lands by parol. Adair v. Adair, 5 Mich., 204, seems to be the case most relied upon by the defense. That was a bill to foreclose a. mortgage for a certain 'sum of money, payable in definite installments at fixed periods. The defendant offered to show that when the mortgage was given, nothing was due' to the mortgagee, and that the mortgage was made- not to secure the payment of any sum of money, but as security for the performance by defendant of a parol contract by which he agreed to pay certain debts of the mortgagee, and to work for and assist him in supporting himself and his wife, they being the defendant’s parents. The Court held such evidence incompetent, as it entirely changed the character and legal effect of the instrument.

Now we are unable to see that any of these cases has a bearing upon the case at bar. We do not understand that the case, made by complainant’s bill and supported by his proof, imports into the mortgage any parol agreement which alters its terms or legal effect. The mortgage was for eight hundred dollars, payable in one year. The complainant does not dispute that the defendant had a right to enforce the mortgage in exact accordance with its terms, unless it was paid and satisfied. His case is, that the mortgage was satisfied by- the payment of the Waldby debt; and the parol evidence he offers is not to contradict or vary the mortgage, but to identify the demand to which it referred. This we understand, to be always competent. We understand, also, that evidence of the satisfaction of a demand actually received, though in a manner varying from that agreed, is always competent, notwithstanding it may have been received in accordance with, some contemporaneous agreement.—Bradley v. Bentley, 8 Vt., 245, per collamer J.; Hagood v. Swords, 2 Bailey, 305; Crosman v. Fuller, 17 Pick., 174.

We think, therefore, that complainant had a right to give this evidence, and that if the case made by his bill was established by it, he was entitled to the decree prayed for.

Whether the account given by Morton shall be received in preference to that by defendant, must depend very much on whether it is the more reasonable in view of all the surrounding circumstances. We attach no importance to the effort to impeach Morton, as we think it not satisfactory, and we cannot believe defendant would have dealt so largely and so confidentially with Morton as the record shows he did, had he been a man whom he regarded as unworthy of belief. It must be borne in mind that the important facts asserted by complainant, namely, that the mortgage was designed to cover the liability of defendant on the Waldby note, and that that note was satisfied by Morton, are conceded; and starting with these as unquestionable, we cannot resist the impression that the probabilities are all against the statement made by the defendant. When a party asserts an understanding that a mortgage given to him for a certain definite sum, and confessedly designed to secure him against an obligation for precisely the 'same amount, incurred on the same day, was in truth given to secure a further indebtedness then existing,, as well as other debts- to be afterwards created, wc think— especially as it is not pretended that the debtor was disindined to make the instrument express the real understanding, and the mortgagee, so far as we have any means of judging, might have made his own terms — that the probabilities which oppose this assertion ought to be overcome by a decided preponderance upon the oral evidence, before we should feel warranted in disregarding them. We do not find in this record any such preponderance o”f oral evidence as will justify the defendant in retaining the mortgage as an existing security, after an amount secured by it, equal to the sum expressed, has been paid off and satisfied by the mortgagor. We think, therefore, that the complainant was entitled to the decree prayed for.

The other Justices concurred.


author: Christiancy, J.

text:
    John Clee v. Ezra C. Seaman.

      Estoppel: Land contract: Possession: Covenant for summary removal. The vendee in a contract for the quit-claim of all the right, title and interest of the vendor in a parcel of land, — the contract not asserting any possession on the part of the vendor, and it not appearing that any actual possession was transferred by the vendor to the vendee, — will not be estopped in an action of ejectment by the vendor to deny the title of the plaintiff.
    In a contract for the conveyance of any interest in land which the vendor may have, an agreement by him that the vendee may enter on the land and cultivate the same, is not an agreement to convey and transfer the possession of the land.
    And if, in such a contract, the vendee agrees that if he violate any of its provisions, he shall forfeit all right under it, and may be removed in the manner provided by law for the removal of a tenant holding over, — while this might estop him- to deny, in the particular proceeding specified, the right of the vendor to remove him, he will not be estopped, in an action of ejectment, to deny the plaintiff’s title.

      Heard July 8.

      Decided October 4.

    Error to Wayne Circuit.
    This was an action of ejectment brought by Ezra C. Seaman in tbe Circuit Court for tbe County of Wayne, against John Olee, for the recovery of the possession of a parcel of land, which the plaintiff claimed by his declaration to own in fee.
    On the trial, the plaintiff gave in evidence a contract bearing date November 1, 1853, executed by himself, as the party of the first part, and by one Thomas Guilfoil as the party of the seSond part, by which he agreed “ to sell to the said party of the second part, all the right, title, and interest of the said party of the first part, of, in and to the” land in controversy; and upon the faithful performance by the said party of the 'second part of the covenants and agreements by him to be performed, to “execute and deliver ,a good and sufficient quit-claim deed to the said party of the second part, his heirs and assigns.”
    It was further agreed “that the said party of the second part may immediately enter on the said land and remain thereon, and cultivate the same as long as he shall fulfill and perform all the agreements hereinbefore mentioned on his part to be fulfilled and performed, and no longer, and that if he shall at any time hereafter violate or neglect to fulfill any of said agreements, he shall forfeit all right or claim under this contract, and be liable to the said party of the first part for damages, and shall also be liable to be removed from the said land in the same manner as is provided by law for the removal of a tenant that holds over after the expiration of the time specified in his lease.” And further, — “said Seaman is only to quit claim and convey to said Guilfoil the right, title, and interest now held by said Seaman, in and of said premises.”
    It was further shown that Guilfoil admitted that he took such a contract of the plaintiff, and had paid part of the purchase money, and that he was in 1857 in possession of a poi’tion of the land. The death of Thomas Guilfoil, and a conveyance by his widow and his heirs-at-law of the premises to the defendant, and the possession of the defendant under such conveyance was proved.
    The plaintiff further offered in evidence Auditor General’s deed, dated the 9th day of February, A. D. 1854, which among other parcels purported to convey to the plaintiff the land in controversy. But upon the introduction by the defendant, in evidence of the tax assessment roll of Brownstown for the year 1847, the records of the proceedings of the electors and town board of said town, the sales book and records of the treasurer of Wayne County, the counsel for the plaintiff admitted that the tax for which said land was sold, and the deed given, was illegal, and the sale was void.
    The counsel for the plaintiff requested the Circuit Judge to charge the jury:
    Second. That said Guilfoil was estopped to deny the plaintiff’s right to the possession of the premises mentioned in the land contract upon his, said Guilfoil’s, failure to comply with the terms of said agreement, unless Guilfoil was in possession under a claim of title before he executed said agreement, or there was fraud, or mistake, or imposition in its execution. Which said charge and instruction was given to the jury by said Judge as follows: That is so, gentlemen of the jury. You will see that that charge meets ono of the main questions in the case, the question of possession before the contract was entered into. I will read the latter part of it again. The point is that he is estopped, from setting up a title unless Guilfoil was .in possession under claim of title before he executed such agreement, or there was fraud, mistake, or imposition in executing it.
    Third. That as the defendant in this cause claims through the heirs of Thomas Guilfoil, he stands in the same relation to the plaintiff as said Guilfoil did. Which said •charge was given as requested.

      Fourth. That if after entering into said agreement said Guilfoil or his representatives repudiated said agreement and plaintiff's rights thereunder, and set up a title in themselves, then said plaintiff might maintain ejectment against him or them for the recovery of the possession of said premises, without first giving notice to quit. Which said charge was given to the jury as requested.
    Fifth. If the jury find Thomas Guilfoil was not in possession of the land in question, claiming title before he took the contract from Seaman, but merely cut and sold wood thereon or cultivated it, such acts without a claim of title were mere trespasses, and gave him no title. Which said instruction and charge was by the said Judge delivered to the jury as follows: That is so, gentlemen of the jury. That is to say, if he was not in possession claiming title; if he was only in possession as a trespasser, only in possession cutting trees or anything of that kind, not claiming he had any title at all, he would be merely a trespasser, and that would give him no title.
    Sixth. Unless the jury find fraud or mistake in the inception or execution of the land contract, or that Thomas Guilfoil was in possession, claiming title, before he took the land contract, defendants are estopped to deny plaintiff's title. The evidence of the invalidity of the Auditor General’s deed is inadmissible, and they must not consider it. Which said instructions and charge the said Judge gave to the jury as follows, viz:
    I have already charged that, gentlemen of the jury, as-to the other part. That I charge as requested. If you find Thomas Guilfoil was not in possession claiming title it would not be admissible under the circumstances charged before, that there was no fraud or mistake. If you find he was in possession claiming title, then it would be admissible, but if you find that he was not in possession claiming title, then the other question comes in referring to fraud or mistake, then if you find there was no fraud or mistake, —it is not admissible.
    To which several requests to charge, and to each of the specified opinions, charges and instructions, so given to the jury by the said Judge as above set forth, the defendant excepted.
    The counsel for the defendant requested the Circuit Judge to charge the jury:
    Third. The proofs in this case show no legal title to the premises whatever, in the plaintiff at the commencement of suit. Which the Judge refused to give.
    Fourth. The contract of sale offered in evidence in this case being neither for the land described in the declaration nor for any definite or expressed estate therein, cannot of itself work such an estoppel as to entitle the plaintiffs to a verdict without proving what the plaintiff’s estate was, and that Guilfoil took possession under it. As to which request the Court charged and instructed the jury as follows, viz:
    That is very nearly true. You must find from the evidence not only that this contract existed, but you must find that he took possession under it in order to create estoppel. If that is all that is asked, that is true. You must find a contract, and also that he took possession under it. There might not be estoppel if he had possession before. The contract would not show estoppel necessarily. The contract and taking possession under it might, but not the contract alone. The charge is given with that explanation.
    To which refusals to charge as requested, and to the charge and instructions as given, the defendant excepted.
    Under the charge of the Court the jury found a verdict for the plaintiff, and the judgment entered thereon, the defendant brings into this Court by writ of error.

      E. Hall, for plaintiff in error.
    I. In this case plaintiff is not entitled to a verdict without proving affirmatively a valid subsisting interest in the premises and a right to recover. The plaintiff’s case must be proved not presumed. The defendant’s case stands good by presumption till overthrown by proof.—Comp. L., § 4556.

    II. The plaintiff’s proof must be of such definite character, that a verdict may specify the estate or right established by plaintiff, whether in fee, or for life, or a term of years, etc.—Comp. L., § 4582.

    III. The proofs in this case show no legal title to the premises whatever, in the plaintiff at the commencement of suit.
    IV. The contract of sale offered in evidence in this case being neither for the land described in the declaration nor for any definite or expressed estate therein, cannot of itself work such an estoppel as to entitle the plaintiffs to a verdict without proving what the plaintiff’s estate was, and that Guilfoil took possession under it.
    As to the general question of estoppel we add: 1st. Estoppels are not to be favored.—Taylor’s L. & T, § 87. 2d. They must be definite in' terms and free from fraud or mistake, and mutual in their operation.—Taylor’s L. & T, §§ 87, 90, 707, 92. 3d. By reason of want of mutuality a quit-claim deed or a deed poll cannot work an estoppel.—2 Hil. on Real Prop., p. 423; 2 Hil. on Vendors, p. 49. 4th. It follows that an agreement for a quit-claim deed works no. estoppel. 5th. An agreement to quit-claim whatever interest a party may have on a particular day, is too indefinite for an estoppel. Seaman could fulfill such an agreement if his interest was a reversion, a mortgage interest, an undivided part of the title, or a title to some unascertained acre. This contract lacks all the above requirements of an estoppel, and therefore cannot alone afford a basis of recovery. 6th. If this instrument is not to be used as a basis of title and right of possession independently, but is only to be used to estop the defendant from denying whatever title and possession he actually received from Seaman under it, then it must be held entirely inoperative until the plaintiff shows affirmatively what title and interest he did at that time have, and what Guilfoil took possession of under the contract.

      H. M. Cheever, for defendant in error.
    We insist the second charge was correct, and Guilfoil would have been estopped, because, by this agreement he had, a. Recognized Seaman’s right to the possession of the premises in controversy, which were those mentioned - in such agreement, b. Covenanted and agreed to hold possession thereafter under Seaman, c. That his right to remain in possession, as against Seaman, should terminate upon default on his (Guilfoil’s) part to comply with the terms of su^h agreement, d. That whenever his right to possession should terminate, Seaman might recover possession, as stated in the agreement.
    It was insisted, however, in the Court below, that there was no estoppel; because, 1st. No interest passed from Seaman to Guilfoil. 3d. The estoppel was not mutual. As to the first objection: No interest need pass to the party. Under estoppel by record, no interest ever passes. Under estoppel by deed, the party from whom the interest passes, is estopped.
    What is the meaning of the expression “the interest feeds the estoppel?” — 2 Smith’s Leading Cases, 568.

      Counsel insists that if Seaman had no interest at the time he made the contract, there could be no estoppel, as no interest then passed. This is not the true meaning of this term. If A conveys to B, and at the time of conveyance has no interest in the premises conveyed, no interest passes; but if subsequent to said eonve3ance A acquires an interest, the title so acquired by A enures to B, and the interest passes and feeds the estoppel.
    As to the second objection, that the estoppel is not mutual. We insist it is. a. Seaman was estopped from treating Guilfoil as a trespasser. b. Or from denying his right to possession during the continuance of the agreement. But this element of mutuality does not apply in every case. It is always applicable to estoppels by record— but not always to estoppel by deed, and never to estoppel in pais.

    What is the nature of the estoppel in this case ? 1st. By Deed. At common law a seal estops.—14 Johns., 226; 12 Ib., 362. And in the absence of our statutory provision, no question could be made as to the consideratioh of the contract.—C. L., § 3, 180. But this contract is equivalent to a lease. It is, in legal effect, a demise. It gives the vendee possession until default.—10 Cush., 250; 8 Mich., 315. 2d. In Pais. Seaman acted upon the faith of Guilfoil’s admission, by the execution of the agreement, of a tenancy. Hence, he gave possession to Guilfoil, and Guilfoil is estopped, to deny that the right to the possession passed from. Seaman to him, to revert to Seaman upon his (Guilfoil’s) failure to comply with the conditions upon which he entered. Hence we say this charge correctly stated the laxo, and left to the jury to say whether Guilfoil did or did not enter under this contract, or, if he did, whether there was such fraud, or místate in its inception as would vitiate it, and prevent an estoppel. And the Court fully and clearly explained this request to the jury in the comments he made after giving it.
    The third request was a simple application of this doctrine to the defendant, for the reason that he stood in the same relation to the plaintiff as did Thomas Guilfoil, because he claimed through the heirs of Thomas Guilfoil. It will be claimed that the deed does not show this fact. The evidence shows this fact conclusively.

      a. — The contract was with “ Guilfoil <& Heirs.” b. — Margaret Guilfoil was the widow, and John and James Guilfoil were the heirs of Thomas Guilfoil. c. — Defendant admitted his purchase of these heirs aad the widow, d. — The deed under which defendant claimed was from these heirs and the widow as grantors, e. — There was some conflict of testimony as to whether Guilfoil entered under the Seaman contract or not. This question was submitted to the jury, and they found for the plaintiff. But upon the question whether Clee claimed through the heirs of Guilfoil or not there was no conflict of evidence. The record shows all the evidence given on the trial. Being no conflict on this point, there was no error in charging as requested.—Grand Trunk Railway v. Nichol, 18 Mich., 180.

    As to the' refusal of the Court to charge as requested hy plaintiff in error.
    The third was a request to charge that the evidence showed no legal title to the premises whatever, in the plaintiff. By “legal title” must be understood such title as would sustain ejectment. This is defined by statute as “ a valid subsisting interest in the premises, and a right to recover the possession.”—C. L., § 4556. Certainly, the evidence tended to show this, and the Court could not withdraw it from the jury.
    The fourth requested a charge that the contract was not for the land described in the declaration, or for any definite or expressed estate therein, and on this account, of itself could not work such an estoppel as to entitle the plaintiff to a verdict, without proof of what the plaintiff’s estate was, and that Guilfoil took posséssion under it.

    The latter portion of this request was given, — that is, that the contract and possession under it must both be proven. But what is claimed by the former portion of the request is this ; the contract does not show the quality or quantity of Seaman’s title, whereas the declaration claims a fee, and hence no estoppel could arise under the contract in the absence of proof of the nature of plaintiff’s title. We reply to this: a. — We did show this by the introduction of the tax deed, which was “prima facie evidence of a title in fee.” b. — There was also proof that Guilfoil was informed by Seaman of the nature of his (Seaman’s) title.
    But we insist that defendant could not dispute any title whatever that plaintiff claimed, without going out of possession, delivering up possession to plaintiff, and entering under claim of title in himself.
   Christiancy, J.

As a general rule, a defendant in ejectment is at liberty to controvert the plaintiff’s title. If the plaintiff' claims that defendant is estopped to deny his title, he must show the facts constituting the estoppel. ■ This the plaintiff undertook to do by the introduction of the contract with Guilfoil, with certain evidence tending, as he claims, to show that Guilfoil went into possession under it, and that defendant claimed the premises through Guilfoil by a deed from his widow and heirs.

It is not claimed that Guilfoil would be estopped by the contract alone from denying plaintiff’s title. If estopped at all, it is by having obtained from the plaintiff the possession of the land by means, and on the faith, of the contract» or by having placed himself in a position which estopped him from denying that he thns obtained the possession.

If he did thus obtain it, he would have been estopped while he continued in possession from denying any right or title of the plaintiff, expressly or by fair implication asserted or perhaps claimed by him in the contract.

The ground of this estoppel is, that the vendor gives up the possession to the vendee, and the latter obtains it, on the faith of the contract, and it would be a 'violation of good faith, and a fraud on the vendor, to allow the vendee, while he remains in the possession thus obtained, to deny such right or title of the vendor, as the latter by the contract claimed to have, or contracted to convey. Under such circumstances, the vendee, if he would contest such right or title, must first restore the possession to the vendor, and place him in statu quo, with all the advantages he had before he parted with the possession.

It is the obtaining the possession from the vendor, under and on the faith of the contract, and his obligation to restore the possession in case of a breach, which create the estoppel, if it exists. If the vendor have no possession, actual or constructive, it would seem to follow that he could not transfer it, and that, this fact appearing, there would be no estoppel.—Chettle v. Pound, 1 Ld. Rayd., 746. But as the vendee may estop himself from denying the title, so he may, doubtless,, under some circumstances, estop himself from denying the possession or right of possession of the vendor, and the fact of his having obtained it from him.

Thns, if A and B enter into a contract for the sale by the former to the latter of a piece of land, and A, by the contract, expressly or by fair implication, asserts a right to the possession and agrees to transfer it to B, and the latter, without any intimation of an intention to repudiate or give up the contract, goes into the possession, he would doubtless be estopped to deny that he obtained it from the vendor by means of the contract.

But if A, by the contract, neither expressly or by implication asserts any possession, or right of possession, and does not assume to transfer it, I see no ground upon which the vendee can properly be said to have gone into the possession under the contract, or could be held estopped to deny the possession or the right of the possession, of the vendor at its date. His denial would not be inconsistent with the contract, or any right asserted by it.

And as to an estoppel of the vendee to deny the title of the vendor, if A, in the case just supposed, has by the contract asserted any claim to a particular title or interest, and agreed to convey the same, or his right or interest in it, to. the vendee, — such as an undivided interest or other portion, or his claim through some particular title or instrument mentioned, — the vendee, though entering under the contract and estopped to deny the vendor’s right of possession, and perhaps the particular title or interest claimed by the vendor, would not be estopped to deny any other title or interest of the vendor, except that which he had by the contract professed to claim.

But when the vendor, as in this case, does not by his contract set forth, allude to, or undertake to convey any particular estate, title, interest or claim, but merely agrees to quit-claim such right, title, and interest as he may at the date of the contract have in the premises, — a contract which will be fully satisfied by the execution and delivery of the deed, whether he had or convoys any interest or not, — the most he can be said to assert (and it is doubtful if he can be said to assert even this) is that he claims to have some right, title or interest, which, if he has it, is susceptible of being conveyed or transferred by such quitclaim.

And, as the vendee cannot be held conclusively to admit any other or greater title or interest in the vendor than by his contract he appears to have claimed, it is difficult to see any ground upon which the vendee, though going into possession, can be estopped from denying any particular title or interest which the vendor may set up on the trial; since no claim to any one of these was asserted, nor, therefore, admitted by the contract; and though each should be disproved, or the vendee should prove any title in himself, less than a full and perfect title to the whole, this does not show that the vendor did not have some other interest or right, or all that, by the contract, he claimed to have; and the vendee is, at most, only estopped from denying that he had none at all.—See Sparrow v. Kingman, 1 N. Y., 242; Bigelow v. Finch, 11 Barb., and authorities cited in these cases. Besides the want of mutuality, there is no such certainty as is required to sustain, an estoppel.—3 Coke Lit. (Thomas’ Ed.), 431; Right ex d. Jefferys v. Bucknell, 2 B. & Ad., 278; 2 Smith’s Lead. C., 457.

But to estop the defendant from denying the title of the plaintiff in any form, or to any extent, in the present case, it was incumbent on the plaintiff to show that Guilfoil obtained the possession from the plaintiff under the contract. To do this he must show that he had the possession, or the right of possession, before the contract, and that he did transfer it to the defendant and give him the possession; or that the defendant, under the circumstances, is estopped to deny his possessory rights.

There was no proof tending to show that the plaintiff ever had any actual possession, or that he actually delivered possession to G-uilfoil, but the whole tendency of the evidence was the other way. He might, if the premises were vacant at the date of the contract, have shown a con-structure possession, or right of possession, by showing title in himself, which would give him the right of possession, or possession in law. This he undertook to do by the introduction of his tax deed, but this being void, he failed to show any possession in himself, actual or constructive, and therefore necessarily failed to show that he had transferred the possession to Guilfoil through whom, defendant claimed.

He gave evidence, however, tending to show that Guilfoil, after the date of the contract, went. into the possession, claiming under it. And to determine whether the possession thus taken estopped him from denying the plaintiff’s possession or right of possession, we must consider the possession with reference to the provisions of the contract. The substance of the contract was this: that, upon the payment of sixty dollars and interest by Guilfoil at certain times, plaintiff agrees to sell and convey to Guilfoil, — not the land mentioned in the contract, — but only the right, title, and interest then held by him of, in, and to the said land, — not stating what such right, title or interest was or was claimed to be, or whether any right or interest whatever. But the' plaintiff further agrees that Guilfoil “ may immediately enter on the land and remain thereon and cultivate the same, so long as he shall fulfill and perform” the agreement on his part “and no longer.”

This is the entire agreement on the part of the plaintiff. And, at a superficial glance, it might seem that the plaintiff had undertaken to convey and transfer the possession of the land. A little reflection, however, will show that this is not the effect of the contract. Suppose, upon the attempt of Guilfoil to go into the possession, he had been opposed by some person in possession, or having the right to it as against the plaintiff, and that he had been thereby prevented from obtaining possession, would the plaintiff have been liable, under this contract, for damages ? Certainly not. It is quite clear that the provision allowing Guilfoil to go into possession was intended to be co-extensive only with that in respect to the conveyance of the title, — a mere quit-claim of any right of possession the plaintiff might have, — and like that in reference to the title, on condition that he should turn out to have had such possession or right. He merely says to Guilfoil, “Bo far as I am concerned you shall be at liberty to take the possession. If I have a right to it, it is yours. If I have none, you get none.”

This certainly cannot be held equivalent to transferring the possession or putting Guilfoil in possession, nor is there any such mutuality as to create an estoppel.

So far as these provisions on the part of the plaintiff are concerned, I cannot see that there would have been any impropriety or inconsistency in Guilfoil’s taking any number of separate contracts of the same kind, from as many different parties, or how the provisions of, or the obligations under, one of them would conflict with those of the others.

There is nothing, therefore, in the provisions of the plaintiff’s agreement amounting to an assertion of possession, or right of possession, or the transfer of either to Guilfoil, without some evidence that he had such right to transfer, and nothing therefore to estop him from denying such right of possession in the plaintiff.

But the contract contains certain stipulations on the part of Guilfoil, and we are to see whether these estopped him upon the question of possession.

In immediate connection with the provision by which plaintiff asserts that Guilfoil may enter on the land and cultivate the same as long as he shall fulfill and perform the contract, and no longer, Guilfoil agrees that, “if he shall at any time hereafter violate or neglect to fulfill any of said agreements, he shall forfeit all right or claim under this contract, and be liable to the party of the first part for damages, and shall also bo liable to be removed from said land in the same manner as is provided by law for the removal of ^ tenant that holds over after the expiration of a term specified in his lease.” This is all the provision on the part of Guilfoil which affects the question I am discussing. No general right of re-entry is reserved, and there is no covenant to take the possession unless this can be so construed; and there being no other estoppel to the denial of the plaintiff’s title or right of possession, and no evidence showing or tending to show that the plaintiff either had or conveyed any interest in the land whatever, there is nothing tending to establish the relation of landlord and tenant before or after the breach, unless the covenant just quoted has that effect.

The plaintiff’s right, therefore, to recover in this action depends upon this covenant alone, and he must be confined to such remedy as this covenant gives him; if this is defective there is nothing upon which he can fall back to help out its deficiencies. ■

We think it clear from the language of this covenant that it refers to, and was intended to provide only for the statute remedy by summary proceedings, by which landlords aro authorized to recover possession of lands “held over by tenants after the time for which they arc demised or let,” as expressly provided by the statute for the particular species of case or state of facts mentioned in the covenant. See Chapter 150, Compiled Laws, §§ 12 to 18, especially the first subdivision of section twelve, to which we think the covenant evidently refers.

In a proceeding under this statute against Guilfoil, after the breach of the agreement, this covenant, if valid, would estop him from denying the plaintiff’s right of possession, or rather his right to recover it in such proceeding only, for this is the extent of the covenant; and we think it has no application, and cannot properly be extended to an action of ejectment.

The result is, therefore, that if this covenant is valid (of which, there may be room for doubt when applied to such a state of facts as is here shown), it does not help the plaintiff in this action of ejectment; if not valid it would not help him in this or any other case. In either event he has failed to show any thing which tends to establish a title or right of possession upon which he can maintain ejectment, or any state of facts which estops the defendant from denying his title or right of possession. He, therefore, made no case upon the evidence upon which, it would have been competent for the jury to find a verdict in his favor.

The charge of the Court, so far as it was in conflict with the principles or the result above stated, was erroneous.

The judgment must be reversed with costs and a new trial awarded.

The other Justices concurred.


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    Henry S. Hill v. John Bowers.

      Practice in the Supreme Court: Notice of motion. A motion to dismiss ^ writ of error, in a cause not on the docket of the term when the motion is made, will not be heard without notice.

      Heard and decided October 4.

      J. B. Shipman moves to dismiss the writ of error in this cause, for the reason that no notice of issuing it had been given as required by Rule 10 of this _Court. The cause was not on the docket for this term, and no notice of this motion had been given.
   The Court held that the motion could not be heard without notice.