author: Christianoy, J.

text:
    Charles Thayer v. Melville McGee, et al.

      Evidence: Judicial records. The enrolled decree and the proceedings in a suit in Chancery, collected and attached together as provided by the statute, {Comp. Laws, §§ 3512, 3513,) constitute the record of the cause. When any part of it is read in evidence by one party, every other part of it, — being properly on the files of the cause, — is also in evidence, and may be read by the opposite party.

      Practice in Chancery; Jurisdiction: Decree. When the complainant and one or more defendants, to an ordinary foreclosure suit, by stipulation filed in the cause, adjust the controversy between themselves as to a portion of the mortgaged premises, so that such portion is not to bebaffected by the decree, the Court has no authority to make any decree affecting such defendants, or the premises thus released; and no lands not covered by the mortgage at the time of the decree, could, at least, as between the parties and those having notice of the facts, be conveyed or affected by the Master’s deed.

      Deci'ee in Chanceip; Inteipr station. Stipulations between parties, or signed by the party to be bound, in a Chancery suit, and filed with the papers in the cause may be considered in determining the true interpretation of the decree.

      Mortgages: Interest of moi'tgagee: Assigned or released. A quit claim deed by a mortgagee of premises covered by his mortgage may operate as an assignment, — Hilts v. Ransfoi'd, 1 Mich., 338 — or as a release, at the option of the grantee; or if the interest of the grantor be such as would require a deed of bargain and sale to convey it as a reversion, then under the statute, ( Comp. Laws, § 2722), this effect will be given to it.

      Acts of Boards of Supervisors: Pt'eswned to be for a valid purpose. The acts of Boards of Supervisors in taking title to real estate, for the use of the county, will be presumed, pilma facie, to be for a legitimate purpose, and to be in accordance with their official duty and the true interests of the county.

      Dedication: Reversion. Whether any assignable interest remains in the grantor of premises dedicated to public uses under the act of April 12, 1827, which he could convey to any other than the party in possession holding the qualified or conditional fee; — Quzere ?

      Heard April 7.

      Decided April 19.

      Error to Jackson Circuit.
    This was an action of ejectment brought by Charles Thayer, to recover the southwest quarter of what was formerly known as the public square, in the city of Jackson.
    The imperfection of the record brought up by the writ of error, — the character and extent of which appear from the opinion of the Court, — makes a full statement of the facts in controversy, on which the errors of the Court below are assigned, impossible.

      M. McKernon, for Plaintiff in error.
    I. The Court below clearly erred in admitting the supposed stipulation in evidence and allowing the same to be read to the jury. 1. This paper or writing never was signed by the plaintiff, or his Attorney or Solicitor, and consequently is not now, nor ever was, binding on him. Circuit ■ Court Rule 12. Chancery Court Rule 81^. 2. But even independent of the rules of Court it could not be used against him (under any circumstances) in any case except the one in which it is entitled, (and it is even doubtful if it could in that one) and then only when signed by the party or his Attorney. — 1 Cow. & Hill’s Notes to Phil. So. Note 182 ; Brown v. Munger, 16 Vt., 12; Brittingham v. Stevens, 1 Hall, N. Y., 379; Harrison’s Devisees v. Baker, 5 Litt., 250. 3. Again, it could not be properly admitted in any case (even the one in which it is entitled) without other evidence connecting the plaintiff with it, which was not even offered in this case. 4. It may be claimed that this is only a trivial and not a vital error, but it becomes one of vital importance, since it is impossible to ascertain how far it influenced the verdict of the jury. 5. Again, it may be said that this supposed stipulation is mentioned in the decree or orders in the Chancery case, and hence admissible. To this we reply that if any stipulation appears or is mentioned in any such orders or decrees, there is no evidence showing that it is this pretended one adduced on the trial of this cause.
    II. There was manifest error in admitting the deed of Packard, Cooper, Van Dorn and Moody in evidence.
    It was a deed between other parties and has no connection whatever with the plaintiff and defendants in this action. As all the title the grantors had to the premises was cut off by foreclosure of the mortgage, it is plain this deed was utterly worthless as a muniment or evidence of title.
    III. The Court below erred in admitting the quit claim deed of the plaintiff in error, in evidence on behalf of the defendants in error.
    1. The above deed is void on its face. It purports to be a deed of bargain and sale between an individual and the Board of Supervisors of Jackson County, for a consideration, but without defining the subject and use for which the land is to be used or appropriated. We claim the Supervisors (as such) had no power or authority to buy unless there was some special legislation authorizing them to do so. — Per. Stat. 1888; pages 89 & Jfi; Laws of 181$, page 22. %. Again, if the Supervisors had power to buy without authority of law, they could, on behalf of the County, buy any or all the real estate in it, and run the County in debt for the payment, and raise a tax as well upon personal as real property to pay for it, and become general dealers in goods, wares and merchandise. .
    IV. The Court below erred in charging the jury that the quit claim deed given by the plaintiff was a bar to this action.
    1. The covenants contained in the deed do not bind or run with the land, and the only remedy of the defendants (if any) is by an action for the breach of such covenants. — Collins v. Plummer, 1 P. Wm’s., 104; 1 Shep. Touch., 184, [Pd. of 18081. The deed in question is void from the fact that if it conveys anything, it only conveys a bare possibility of an interest which is uncertain and not grant-able.— 1 Shep. Touch. 289. \_Ed. of 1808]. 3. Again, it is void because it is evident that it purports to convey an interest (if there was any) that was wholly in suspense, and therefore was not grantable. 4. So this deed was and is absolutely void, since the plaintiff not being in possession nor having a right to the possession of the premises in question, he could not make a valid conveyance of the same. — 1 Shep. Touch. 2J8, [ Ed. of 1808 ]. 5. The only way in which this deed could convey any title to the premises, would be by coupling it with a conveyance or assignment of the mortgage debt or a portion of the same provided it could be apportioned. Otherwise it can convey nothing. — Furbush v. Goodwin, 5 Foster [ N. H]. 425 ; Ellison v. Daniels, 11 N. H, 274 ; Aymar v. Bill, 5 John. Ch. 570; Lamprey v. Nudd, 9 Foster, [ N. H]. 299 ; Weeks v. Eaton, 15 N. H., 145; Hobson v. Roles, 20 N. H., 41; Huntington v. Smith, 4 Conn., 235; Blair v. Bass, 4 Blackf. 539; Martin v. McReynolds, 6 Mich. 70. 6. It may be urged that as the plaintiff subsequently acquired the title to the premises in question by virtue of the decree and Master’s deed such title should accrue to his grantees and those claiming under them. But we submit that such can only be the case where the conveyance is made by a deed containing a covenant of warranty. — Somes v. Skinner, 3 Pick., 60 ; White v. Patten, 24 Pick., 324.

      W. E. Gibson and Johnson & Higby, for defendants in error.
    "Whatever right the plaintiff in error has to the premises in question, is derived solely through the foreclosure of the mortgage from Moody to "Van Dorn, and the Master’s deed upon the sale of the mortgaged premises.
    I. At the time of the execution and delivery of the quit claim deed from plaintiff in error to the county of Jackson, the common law doctrine respecting the rights of mortgagor and mortgagee prevailed in this State. Stevens v. Brown, Wal. Ch., 41; Mundy v. Munroe, 1 Mich. 68 ; Crippin v. Morrison, 13 Mich. 23; Comp. Laws, Sec. Jfill^

    II. The quit claim deed of plaintiff in error was operative, either as a release of so much of the mortgaged premises as the deed contained, or was an assignment of the mortgage pro tanto; and whether a release or an assignment, depends upon the intention and object to be accomplished. 1 Washburn on Real Estate, 520; Jerome v. Seymour, Har. Ch., 357; Hunt v. Hunt, 14 Pick. 374-380; Freeman v. McGraw, 15 Pick. 82; Murdock v. Chapman,

      9 Grey, 157; Russell v. Coffin, 8 Pick, 143; Ruggles v. Boston, 13 Grey, 506.

    III. That such deed was intended by plaintiff in error as a release, is clearly shown by the following facts:
    1. It was given, during foreclosure of the premises in question, by Thayer, the complainant, to the county of Jackson defendant, and was recorded the same day on which a stipulation was made in the cause between the parties to the deed, in which stipulation the object and intent of the deed is defined.
    2. Thayer not only treated such deed as a release in the order pro confesso entered in said cause, but also in the decree and Master’s deed, by adopting a different description of the premises from that in the mortgage, and consistent with the idea of a previous release by him.
    IY. Thayer’s deed should receive a construction consistent with the intent and design of the grantor, especially where a different construction would aid in the perpetration of a fraud. 14 Pick. 374; Proctor v. Thrall, 22, 262; 1 Green Ch. 145.

    Y. In construing deeds and other instruments, the situation of the parties, the subject matter of the transaction, and the attending circumstances, are all proper matters to be considered by the court, since the object is to carry into effect the intention of the parties. — Paddock v.

      Pardee, 1 Mich., 421; Adams v. Frothingham, 3 Mass. 352. The same rule of construction is applicable to the decree and Master’s deed.
    VI. The term “Block” has not a strict legal signification. It is not used in the statute, nor are blocks required to be designated on town plats.— 1 Yol. Comp. Laws, Sec. 1188.

    VII. Such being the case, the Court will go outside the deed to determine the true meaning and construction of the language used. — 1 New Yorlc, [ Comstock ], 96; 1 Johnson’s Cases, 91, 899; 8 Mass. Rep., 214.

    VIII. The Court properly charged the jury that the plaintiff in error would be estopped, in this particular case, by his quit claim deed. The question in this case is not whether a quit claim deed estops the grantor from setting up a subsequently acquired title of a different character, or from a different source, but whether the plaintiff in error, having undertaken to release by quit claim deed the premises in question, pending foreclosure, to a party defendant thereto, and having thereby induced such defendant to retire from the case and withhold his defense, can now set up against such defendant a title acquired solely through such foreclosure.
    IX. The quit claim deed was given as a release of the mortgaged premises, and by both parties to it in a cotemporaneous stipulation, solemnly affirmed to be a release, coupled also, with a promise of the grantor not to take a decree against the released premises, acted upon as a release in the order pro confesso, and it would violate the plainest rules of law to allow the grantor now to deny either the intent or the effect of such deed in a suit against the grantee. — 8 Wend. 488 / 5 New Hamp., 458; 4 Sandford, 861• 28 Maine, 525; 20 Conn., 568.

    X. A grantor and his heirs are estopped by the grantor’s deed conveying land bounded on streets to deny that there are streets to the extent of the land bounded thereby. —11 Mass., 4.13 ;*2 Grey, 271.

    XI. The statute of 1827, chapter 2d, sections 3 and 4, and subsequent statutes, confer all necessary power upon the county to take and hold lands, however conveyed; and aside from the statute, the power existed at common law.
   Christianoy, J.

This was an action of ejectment brought by the plaintiff in error in the Circuit Court for the County of Jackson, to recover a piece of land in the city of Jackson, formerly a part of the public square, and situate upon the we'st half of the northeast quarter of section three, in township three south, of range one west, originally purchased from the United States by Benjamin H. Packard, by him conveyed to George B. Cooper, by him to Charles H. Van Dorn, and by him to William J. Moody, the last conveyance bearing date January 16, 1835. Moody gave back to Van Dorn, a mortgage of the same date, which, after describing an eighty acre lot, excepted and reserved certain lots in the (then) village of Jacksonburg (now being the city of Jackson ), described by numbers and blocks, but not excepting that portion of the-public square here in question, unless the latter was included in lot one, of block one south, of range one west, on said village plat — a question which from the view we have taken of the case, it is not necessary to discuss. •

This.mortgage would seem to have become the ^ropperty of the plaintiff in some way not shown by the record, and to have been foreclosed by the plaintiff in the (old) Court of Chancery for the Second Circuit, in a cause wherein the plaintiff was complainant, and William J. Moody and the Board of Supervisors of the County of Jackson, and many others were defendants, the bill having been filed January 15, 1845, and taken as confessed in August, 1846. The date of the final decree (for reasons presently to be stated,) does not appear. Under a sale on this foreclosure plaintiff claims title.

We have said this mortgage would seem to have been thus foreclosed, because the counsel for both parties assumed this upon the argument, and the course of the defense, as shown by the bill of exceptions, furnishes an inference to this effect. But the record does not in its present shape show this fact. The bill of exceptions, without anything to show that this was the mortgage involved in that suit, and without any previous or subsequent explanations of the suit or its objects, states only that “the plaintiff then offered in evidence so much of the record, by exemplification thereof, of the enrolled decree in a foreclosure suit commenced by filing a bill in Chancery, in the Second Circuit for the said state, on the 15th day of January, 1845, wherein Charles Thayer, the plaintiff in this action was complainant, and William J. Moody and many others, including the Board of Supervisors of the County of Jackson were respondents; to wit: the bill of complaint, return of subpoena, final decree, and order of sale; which bill of complaint, so far as read in evidence to the jury, and decree and order of sale are hereto annexed, marked respectively £A & B.’

“The plaintiff, further to maintain said issue on his part, offered in evidence (contained in said exemplification) the Master’s report of sale in pursuance of said decree, the order of confirmation, the deed of Samuel Higby, the Master making the sale, to the plaintiff in this action, was produced in evidence, which said Master’s deed was made and dated the first day of August, in the year 1847, and duly recorded.”

But the exhibits referred to are not attached, and do not appear in the record before us. Error was assigned upon the record as it is; and though the omission was specially called to the attention of counsel for plaintiff in error, no motion was made- to have it sent back for correetion or amendment. It does not, therefore, appear that there was any record offered in evidence in the Court below, of a suit for the foreclosure of this mortgage, nor what was the decree, nor whether the premises in question were included in the decree, or sold or deeded by the Master.

But assuming, (what seems to have been conceded on the argument), that the suit referred to was for the foreclosure of this mortgage by an ordinary foreclosure bill, and that it was thus foreclosed, — without, however, assuming that the decree covered the premises here in question, which was denied by the counsel for the defendant in error, and of which the record furnishes no proof, — we proceed to dispose of the case upon this hypothesis, in connection with the facts which do appear upon the record;

Long prior to the mortgage in 1830, and while this eighty acre lot belonged to Benjamin H. Packard, he, in conjunction with other owners of adjoining lands, duly made, acknowledged and recorded the plat of the (then) village of Jacksonburgh, (in the now city of Jackson), on which plat, at the intersection of Main and Jackson streefs, was located a piece of ground designated as a public square, the southwest corner of which (in substantially a square form), south of Main street and west of Jackson street, is the land claimed in the declaration.

That the land in question was thus dedicated to the public use as a public square, and accepted and used as such, does not appear to be questioned. But the theory of the plaintiff’s claim is, that all the conveyances from Packard down to the mortgagor, conveyed the interest in' the land which remained in Packard after the dedication, which he claims was the naked fee or possible reversion, when the land should cease to be used by the public for the purposes of the dedication, — that the mortgage covered this interest, and that he obtained the same by the purchase under the foreclosure sale; that some time after he had thus obtained this interest, the public authorities, by abandonment and nonuser, and the appropriation of the land to purposes foreign to the dedication, extinguished the public right or easement, and that the land has reverted to him in fee simple, and that he is entitled to recover the same in this action, discharged of the public easement.

And for the purpose of showing these facts, he introduced the exemplification of a record of the Circuit Court for the County of Jackson, showing a petition filed by the Board of Supervisors, May 5th, 1850, to vacate a lárge portion of said south west portion of the public square (the premises in question), and an order made by said Court in pursuance thereof, on the 12th of May,-1851, granting the petition, and ordering a portion of the village plat to be vacated and set aside, including most of the premises in question, (and which, so far as any question arises here, may be treated as the whole); and introduced proof of a leasing of a part of the premises, by the supervisors in 1865 to one Mitchell and others.

That these proceedings were equivalent to an abandonment of the public right or use given by the dedication, if the County or the Board had not, in the mean time, obtained the reversion, does not seem to have been denied. But the defendants claimed on the trial, that the supervisors had obtained whatever reversion or right remained in Packard after the dedication, and that they became the owners of the fee, long before the acts of abandonment shown by the plaintiff, and prior to the decree in the foreclosure suit. And, for the purpose of defeating the plaintiffs claim, and to show title in themselves, the defendants introduced in evidence, under objection from the plaintiff, a quit fclaim deed from the plaintiff himself, to the Board of Supervisors, dated July 13th, 1846, during the pendency of the foreclosure bill, (and prior to the decree or the order pro confesso, hereafter to be noticed), purporting to remise, release, and forever quit claim to said Board and their successors in office, for the use of the County, the premises in question; also, under like objection, a like deed to the County Commissioners of said County, dated December 27th, 3838, executed by said Packard, Cooper, Van Dorn and Moody. They also introduced under objection, from the enrolled decree and proceedings, in the foreclosure suit, a stipulation, signed by the solicitor for the Board of Supervisors, (who were defendants in said Chancery cause), reciting that such release and quit claim had been given by complainant to them, and consenting that complainant might take such decree as he was entitled to without notice to them or their solicitor, provided he should not take a decree for the sale of the premises so released to the Board. They also introduced from the same enrolled decree and proceedings, an order taking the bill as confessed; which order, so far as the supervisois were concerned, purported to be based upon a stipulation signed by their solicitor.

The first error assigned is the admission of the above stipulation. But as we deem this entirely immaterial, we shall not notice it here further than to say, that the stipulation was one, which, in its nature, required only the signature of the defendant’s solicitor, as there was no undertaking on the part of complainant, and that the plaintiff having himself introduced the enrollment of the decree and proceedings, which, by the statute, (Comp. L. Sec. 8512 and 8518) constituted collectively the record, of the Chancery cause, and the plaintiff having read a portion of the papers constituting that record, the whole was in evidence, and the defendants had the right to read any other portion, and that, without any further proof of such papers; as it was a part of the same record, (unless it might be some paper, which in its nature could not properly constitute a part of the files in the cause, or unless shown to have been wrongfully filed, if that were competent). The defendants had a right to use any such evidence for the purpose of explaining or construing the decree, or to show what were the grounds or even the jurisdiction upon ■which it was founded; and the plaintiff certainly cannot object to the stipulation on the ground that it tends to impeach the decree by showing that the premises in question, were not included in the decree, when he does not show us they were included, nor exhibit the decree by which Ave can ascertain it; and this fact is disputed by the defendants.

The second exception on which error is assigned, was to the admission of the deed executed by the plaintiff to the supervisors, dated July, 18é6, and to that executed by Packard and others to the County Commissioners. It is, for reasons which will presently appear, only necessary to consider the objection as relates to the plaintiff’s own deed, — though the ground of objection as assigned was the same as to all.

This objection was expressly made on the sole ground “ that the deed appeared to be a deed of bargain and sale and the County of Jackson at the date of the delivery of the same, could not take by purchase or bargain and sale under the statute of Michigan.”

We are not sure that we have been able to divine the precise meaning intended to be conveyed by this objection. The deed does not, upon its face, purport to be a deed of bargain and sale. Its operative Avords are “ remise, release, and forever quit claim.” If the objection was intended to assert that the statute declaring that “ a deed of quit claim and release of the form in common use, shall be sufficient to pass all the estate Avhick the grantor could lawfully convey by. a deed of bargain and sale,” necessarily converts it into a deed of bargain and sale; the objection is founded upon a misapprehension of the statute. It has no effect to comert a deed of release and quit claim into one of bargain and sale, except in cases, when, Avithout the statute the latter Avould be the appropriate form and operation of the conveyance. When the circumstances are such that the instrument, to effect the apparent purposes of the parties, must operate as a release, or when that is the appropriate form to be adopted, the statute has no effect, but leaves the deed to operate according to its terms.

Courts are liberal in construing deeds so as to give them effect, ut magis valeat quam pereat, and if they cannot operate as that species of conveyance indicated by the letter, they will generally be held to operate in somé other form, so as to effectuate the object, which, from the whole instrument and the circumstances and condition of the title, the parties appear to have intended: “ For in these later times the judges have gone farther than formerly, and have had more consideration for the substance, to wit: the passing of the estate according to the intention of the parties, than the shadow, to wit: the manner of passing it.” Osman v. Sheaf, 3 Lev., 370, cited in Doe demise Lewis v. Davis, 2 M. & W., 508 ; per Maule J. Borradaile v. Hunter, 5 M. & G., p. 653; per Willes, C. J. Smith v. Packhurst, 3 Atkins, 136; Cholmondeley v. Clinton, 2 B. & Ald., 637 ; 2 Williams Sound, 96, A. Note (1) The maxim “ Quando res non valet, ut ago, valeat quantum valere potest,” is liberally applied in such cases; and the instances are very numerous where deeds in one form have been made to operate in another to effect the intention of the parties, and when a deed may inure in different ways, the person to whom it is made has his election, which way to take it. See 1/. Greenleaf’s Oruise, 2J/8 to 251; 8 Washb. R. Pr. (3d Bd.) 809, 810, id. 330, 881. And in pleading, upon the principle that the deed must be described according to its legal effect; a deed, for instance, which by its words purports to “ give and grant,” must sometimes be alleged as a release, &c. 1 Ohitty’s PI., 83\l, 885.

It is to be remembered that the plaintiff at the time of executing this deed was, upon his own theory of the case, but the mortgagee of a reversion, seeking to foreclose his mortgage; the supervisors representing the public, being in possession of the land and vested of a freehold interest in the easement, with the right to hold it in perpetuity for the purposes of the dedication; and that no abandonment or non user had then taken place. And, for the purpose of conveying or extinguishing his interest in a part only of the mortgaged premises, by a deed to these parties then in possession, a release was the appropriate instrument, and this deed is exactly in the usual and technical form of a common law release, appropriate to such a case. Greenleaf’s Cruise, 78, § 20; id. p. 82, § 89.

Had the plaintiff’s deed been made to a stranger, or one not in possession, and having no estate in the land, and had it covered the whole mortgaged premises it would have conveyed all his interests as mortgagee, operating in that case as an assignment, (Niles v. Ransford, 1 Mich., 338), and a like deed to the supervisors in this case, of'the whole mortgaged premises, might perhaps have operated as an assignment, as to all the residue of the premises, and as to the portion in which they already had an estate in possession, as an assignment, or release at their option. But if the plaintiff had at the time such an interest as required a deed of bargain and sale to convey it as a reversion, then under the statute, this effect must be given to it.

But it was further urged that the Board of Supervisors had no power to purchase on behalf of the county any greater interest in this land than that already vested in the county, and that if they had such power they might buy all the real estate in the county, and impose taxes to pay for it, and thus become general dealers in real estate.

We are unable to see the force of this objection in the present case. Counties often have need of real estate for public buildings, county offices and poor houses, aud other purposes for which it would be highly judicious, at least, to obtain and hold the absolute fee simple. The supervisors, at that time as now, had full power to erect such buildings, to borrow money for that purpose, to make such orders respecting the corporate property of the county as they might deem expedient; to represent the county, to have the care of the county property, and the management of the business and concerns of the county, in all cases not otherwise provided for; to raise the money necessary to defray the county charges, and the expenses incident to the execution of such authority. — Rev. Stcit. 1888, pp. 89 and Ifi; Laws of 181¡.2, p. 22.

If this deed could be held void for any abuse of these powers, such abuse must, at least, be first affirmatively shown. It cannot be presumed from the one dollar consideration mentioned in a release, which converts an easement in this small parcel of land into a full title in fee simple. (Regents, &c. v. Detroit Young Men’s Society, 12 Mich., 138.) We are bound, on the other hand, to presume that the title was wanted for a legitimate purpose, and that the supervisors acted in accordance with their official duty and the true interests of the county.

It is manifest then, that all the interest of' the plaintiff, (if any he had,) in the premises in question, had been conveyed or released, and vested in the supervisors before any decree in the foreclosure suit, and before the order pro confesso upon which it was based. And the complainant (plaintiff) having no further interest, as mortgagee or otherwise, in this portion of the mortgaged premises; and the supervisors, as defendants, having no further interest in or concern with that suit; we are to enquire what, if any, effect the subsequent proceedings and decree, and sale in the foreclosure suit, could have as to the supervisors who had been defendants, and the premises thus released.

Neither the complainant nor those defendants having any further interest, or subject in controversy between them to be litigated, we think the effect of the release was equivalent to a dismissal of the bill as to the supervisors. And as the fact of the release was brought to the attention of the Court by the stipulation filed in the cause, and the order pro confesso upon which the decree was entered; the Court of Chancery, under an ordinary foreclosure bill (which this must be inferred, and is stated to have been,) had no authority to make any decree affecting those defendants or the piemises thus released.

The decree and sale in an ordinary foreclosure suit must rest wholly upon the mortgage, and no greater interest can be sold than was covered by it; and no lands, not covered by the mortgage at the time of the decree could, at least, as between the parties and those affected by notices of the facts, be conveyed or affected by the master’s deed, though both the decree and the deed should inadvertently include them.

It may be true, that by filing a supplemental bill after the release was executed, setting up its invalidity, that question might be put in issue, and in this way the release set aside. But nothing of this kind is pretended, or that there was any ground for setting it aside, or that this was anything but an ordinary foreclosure bill. And neither the bill nor the decree being shown, we cannot presume any supplemental bill, nor can we presume in the face of the release, that these premises were included in the decree. Falsehood and wrong are not to be presumed.

Putting the case, therefore, in the most favorable aspect for the plaintiff that the record will warrant, and giving him the benefit of all the admissions on the argument of facts which ought to have been made to appear upon the record; the release of the plaintiff having been shown, and no evidence given or offered to controvert its execution or impeach its validity; no ruling or charge of the court, however erroneous could have prejudiced the plaintiff’s case; since, upon any ruling or charge the Court could have given, the jury must have properly found against him. And had they found otherwise, it would have been the duty of the Court, at once, to set aside the verdict. It is therefore quite unnecessary to consider any of the other errors assigned.

It is proper to say that .there is another theory of the effect of the dedication upon which it might have been more proper, had it been so argued, to consider the case.

By the act of April 12, 1827, (Laws of 1827, pp. 278 and 279), in force at the time of the dedication, the fee vested in the County in trust, for the public uses and purposes of such dedication “and for no oilier use or purpose whatever.”

This might not be held to be a fee simple absolute-But if, 1st — a base, limited or determinable fee; (2 Bl. Com,. 109; 1 Inst. 27 (a); 1 Cruise by Greenleaf, title 1, sec. 71 to 76; State v. Brown 3 Dutcher (N. J.), 13; 4 Kent’s Com. 9); or, 2nd — a fee defeasible upon a condition subsequent; (4 Kent’s Com. 125, 126; Nicoll v. N. Y. & Erie R. R. 2 Kernan, 121); the question might arise whether, after • the dedication by Packard, any assignable interest remained in him which he could sell and convey to other parties than those in possession, holding the qualified or base fee, or. the conditional fee. (2 Greenlea,f’s Cruise Title 17, § 6; f id. title 18, ch. 2; 8 Wasb. R. Pr. 808; 8 id. 78, 79 — 2 id. 687.)

If no such assignable interest or reversion remained in Packard after the dedication, then no interest in the public square passed to Cooper, Yan Dorn or Moody, and there was nothing in this portion of the premises for the mortgage to operate upon. And the deed of all those parties to the County Commissioners may have vested in them a perfect title in fee, unaffected by the mortgage.

If, on the other hand, there remained in Packard a reversion which he could convey to others, and which, in that event, went to his grantees, and became subject to the mortgage, according to the plaintiff’s theory; then the release of the plaintiff vested in the supervisors a full title, clear from the mortgage incumbrance as already noticed.

We have considered the case on the theory most favorable to the plaintiff, and express no opinion upon the effect of the other, except to say that it could not help the plaintiff’s case.

The judgment must, therefore, be affirmed with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell, Ch. J.

license: Public Domain

text:
    Charles Kingsbury v. Asa Kingsbury.

      Appeal in Chancery: Order confirming a Commissioner's report. The confirmation of the report of a Commissioner upon a reference to examine and state a partnership account, — there having been no pre-adjudication upon the questions involved in the reference, — is not a decree or final order which may be appealed.

      Practice in Chancery; Commissioner's repoi't. It is not necessary to except to the conclusions of a Commissioner, either of law or fact, if the statement of facts found, on which he bases his conclusions is satisfactory. The Court will decide as the facts reported warrant. A Commissioner’s report stands in the same relation to a decree, as a verdict to a judgment.

      Heard April 14.

      Decided April 19.

    Motion to dismiss an appeal in Chancery from the Cass Circuit.
    The bill was filed by Charles. Kingsbury against Asa Kingsbury for an account of partnership dealings, and transactions, and the cause having been brought to a hearing on bill and answer, the Court “ordered that it be referred to Strother M. Beeson, a special Commissioner, to take an account between the parties as to all matters growing out of their partnership relations, and that said special Commissioner state said account from the first day of August, A. D. (1842), eighteen hundred and forty-two; and also a separate statement of said account commencing at the date of the partnership articles referred to in ' said bill, to wit, April twenty-fifth, in the year of our Lord one thousand eight hundred and forty-four. In taking of such account, the said Commissioner is to make to all parties just allowances, with a statement thereof. And for the better taking of the same, and the discovery of the matters aforesaid, they are to produce before said special Commissioner, on or before the twentieth day of September next, and leave with said special Commissioner, all deeds, mortgages, bonds and transfers, conveyances, books, papers and writings, in their custody, or power, relating to said partnership transactions whether the said transactions have been conducted in the name of the co-partnership or either of the parties thereto; and also an inventory of all personal property, including moneys; and said parties are to be examined on interrogatories or otherwise, as the said special Commissioner shall direct; and the said special Commissioner is hereby directed to make a report of the matters hereby referred to him, with all convenient speed, and if in taking said account any special matter shall arise, the said Commissioner is at liberty to state the same.”
    The Commissioner proceeded to take testimony which he certified to the Court with his opinion thereon; to which exceptions were taken by the complainant. The cause was brought on to be heard upon the exceptions, all of which were disallowed, and the report of the Commissioner was confirmed. The complainant appeals to this Court; and the defendant moves to dismiss the appeal.

      D. Blaclcman, for the motion.

      C. I. Walker, contra.

   Campbell, Ch. J.

A motion is made to dismiss this appeal on the ground that the order confirming a Commissioner’s report upon a partnership accounting, is neither a decree nor a final order, as contemplated by the statute regulating appeals.

The appellant claims that the order does in fact decide upon the merits, and is therefore a decree. If it does so adjudicate, it was held in Campau v. Lewis, 14 Mich. 460, that it would be appealable, though not deciding the whole case; and if, as claimed, the rights passed upon, can not be reviewed at all unless on this appeal, there can be no doubt of its propriety. But we think the nature of the order and its consequences have been misapprehended.

The order under which the reference was had in this cause did not adjudicate finally upon anything, and merely required the Commissioner to examine and state the accounts of the partnership, without first adjudging when it was made, or on what terms, and without attempting to prejudge any important fact whatever. Until the report should come in and become absolute, there could be no decision at all upon the real merits of the cause. The proceedings reported were expected to enable the Court to obtain a proper basis for decision.

But a mere confirmation of the report, is not a final decision of the cause. The case must after such confirmation be brought on to be heard, and upon the final hearing, if the facts are sufficiently presented to make a decree, the Court will then proceed to adjudicate and direct what remedy is to be had against either party and give its decree in such a shape that it can be enforced. The present order contains no such feature.

In acting upon a report, the Master or Commissioner’s conclusions either of law or fact, are of no consequence, if not sustained by the facts found on which he bases them. The Court will decide as the facts warrant, and if the parties are satisfied with the facts themselves, they need not except because the Commissioner has mistaken the legal consequences. — Adams v. Claxton 6 Ves. 226. — And it is always in the power of the Court before decree to send the case back to the Commissioner, or to order an issue, even, if there is such doubt as seems to require it. — See 3 Dan. Gh. Pr. 1492, 1494-5, 1498, 1499, 1500,1506. — While, of course, these steps are not often taken, yet the Court will always be at liberty to postpone its decree, so long as there is not sufficient material to come to a conclusion.

A confirmed report, at best, stands in the same relation to decree, as a verdict to a judgment. It may be almost certain that the decree will follow it, but it cannot be enforced until the decree is entered.'

There are many cases where orders are made that purport to pass upon the merits, which will illustrate the same principle. An order taking a bill as confessed does not amount to a decree. The Court upon reading the bill may think it affords no ground for relief and it may be opened for cause shown, to let in a defense, even where the bill is good. But the plainest case, and the one most nearly resembling this, — as it is regarded by the appellant, — is that of an order sustaining a demurrer, which has been held merely interlocutory, unless it goes on to dismiss the bill. — Blackwood v. Van Vleet 10 Mich. R. 398; Heirs of de Armas v. U. S. 6 How. R. 103. — A case is in law undecided, notwithstanding any expressions of opinion, so long as there is no decree capable of enforcement, or enforcing itself. See further— Newbould v. Stewart 15 Mich. 155 ; Sellers v. Botsford 9 Mich. 490.

The order in question, not being a decree, is not appeal-able. It has no analogy to the other class of appealable decisions known as final orders, the nature of which we have several times been called upon to consider. Decrees relate directly to the merits of the controversy, and are decisions made upon the issues in the cause. Whenever finally adjudicating upon those matters, they are necessarily final as to both parties and therefore either, if aggrieved, may appeal. But what are known as final orders are adjudications upon motions or other applications, not involving a hearing upon pleadings and proofs, but upon other issues interlocutory or collateral, whereby some supposed right of a party is definitely cut off, or some liability fixed upon him. Usually, if not always, an order made on such a side hearing is only final if made in a certain way; whereas, if the decision had been otherwise it would have been interlocutory; while an absolute decree made in favor of either party is final. If the decision of a motion opens a case it is not generally final, unless it cuts off some acquired right under a decree. If it closes the matter and precludes any further hearing or investigation it is final. For illustrations of this we refer to Benedict v. Thompson 2 Dougl. R. 299 ; Webster v. Hitchcock, 11 Mich. R. 56; Bullard v. Green, 9 Mich. R. 222; People v. Simonson, 9 Mich. 492; Michigan Ins. Co. v. Whit temore, 12 Mich. 311; Romeyn v. Caplis, 17 Mich. R. 449. In all these cases the orders were regarded as final.

For instances of orders not final, we refer to Prentis v. Rice, 2 Doug. 296; Wing v. Warner, 2 Doug., 288; Romeyn v. Hale, 1 Mich. 93; Caswell v. Comstock, 6 Mich. R. 391; Enos v. Sutherland, 9 Mich. 148; Bennett v. Nichols, 12 Mich. 22; Perkins v. Perkins, 10 Mich. 425; Newbould v. Stewart, 15 Mich. R. 155; Duncan v. Campau, 15 Mich. 415; Demaray v. Little, 17 Mich. 386; Boinay v. Coats, 17 Mich. R. 411.

No rights have yet been lost to the appellant and until it is known what decree the Circuit Court will render upon the final hearing, it cannot be known which party will hare cause to be dissatisfied. When the decree is made, if it should be adverse to the appellant, he will be able to raise on appeal the same questions which would be open if this order were appealable.

This appeal must be dismissed with costs of the motion.

The other Justices concurred.


author: Cooley, J.

text:
    Frederick Hasceig v. James Tripp.

      Summary Proceedings: Divesting title. One who seeks by ex parte proceedings, which the law has put into his own hands, to divest the title of another, must keep strictly within the limits of his authority.

      Appraising beasts distrained damage feasant. The nephew of a distrainor is not a “ disinterested person ” within the meaning of the statute — (Comp. Laws § 5057), to whom a warrant may issue to appraise beasts taken damage feasant; and such a proceeding not being one in which the owner of the property was tak ingpart, there could be no waiver of objection: the appraisement therefore, by an incompetent appraiser, is fatal to the validity of the proceeding.

      pleading and Evidence: A count that “ the plaintiff was lawfully possessed, as of his own property, of one certain grey mare about — years old, of the value of two hundred dollars, and was lawfully possessed as aforesaid of two yearling colts of the value of two hundred dollars,” — sufficiently avers that the plaintiff was possessed of the colts as of his own property; and evidence of such ownership is. admissible.

      Heard April 15.

      Decided April 19.

      Error to Kalamazoo Circuit.
    James Tripp, plaintiff in the Court below declared against Frederick Hasceig, in trover, averring that “on or about the 17th day of June, 1867, at the Township of Brady, County and State aforesaid, the plaintiff was lawfully possessed, as of his own property, of one certain grey mare, about — years old, of the value of two hundred dollars, and was lawfully possessed, as aforesaid, of two yearling colts, of the value of two hundred dollars, and being so possessed of said property, as aforesaid, he, the said plaintiff, after-wards, to wit: &c., — averring loss and conversion by the defendant. The defendant pleaded the general issue and gave notice that he found the said grey mare and the said two yearling colts trespassing upon his premises and doing damage to his crops then and there growing; that he seized and took the beasts &o., and of his further proceedings under the statute providing for the distraint of beasts doing damage. The cause was tried by a jury, and under the charge of the Court, they found a verdict for the plaintiff. The judgment entered on the verdict is brought into this court by writ of error.

      Thos. R. Shemuood, for plaintiff in error,

      Severens & Burrows, for defendant in error.
   Cooley, J.

In those cases in which the law puts into a party’s own hands an authority under which he may, by ex parte proceedings, divest the title of another, it has always been held that he must keep strictly within the limits of the authority, and observe all the precautions which may have been prescribed by law for the protection of the owner’s interest. — Newsom v. Hart, 14 Mich., 233.

Under the statute for distraining beasts damage feasant, the distrainer, before he can proceed to a sale, is required to obtain a warrant from a Justice of the peace, directed to two “disinterested and discreet persons” who are to appraise-his damages under oath.— Comp. L. § 5057. — This is a condition precedent, without which the sale would be absolutely void. The warrant obtained in the present case was directed to a step-son of the Justice and a nephew of the distrainor; and a question arises whether these persons possess the statutory qualifications.

The relationship to the Justice was brought to our notice as tending to show that the proceedings were collusive ; but as we think the nephew of the party was clearly disqualified, we have no occasion to consider any question of fact. The statute, it is true, does not undertake to define precisely what is meant by discreet and disinterested persons, but the phrase is one which clearly precludes all idea that the near relatives of a party may lawfully be called into pass upon his controversies with strangers. Freedom from prejudice or partiality were meant to be secured; and it is evident that a person cannot be held disinterested, whose relationship to one of the parties is so near that the law presumes his judgment will be biased thereby. A nephew of one of the parties would be an incompetent juror at the common law. — 8 Bl. Com., 868; Denn v. Clark, Coxe, 446; Paddock v. Wells, 2 Bard. Ch., 332: — and under our statute he would also be incompetent to act in any judicial capacity in a case in which his uncle was interested.— Comp. L., §§ 4064, 8661. — This presumption of bias is not one resting upon peculiar grounds in the case of judge or juror, but it has its foundation in nature and reason, and we cannot overlook or disregard it in any statutory proceeding where impartiality is made a requisite. We think the nephew was not a competent appraisor.

Had the proceeding been one in which the owner of the property was taking part, with a right of challenge, a question of waiver might arise if he failed to take the objection there; but no such question is presented by this record. The distrainor took the proceeding at his peril, and the objection we have pointed out is fatal to it.

This conclusion justifies the judgment of the Court below, if the declaration was such as to warrant the evidence the plaintiff gave under it. The declaration alleged that “ the plaintiff was lawfully possessed, as of his own property, of one certain grey mare, about — years old, of the value of two hundred dollars, and was lawfully possessed, as aforesaid, of two yearling colts, of the value of two hundred dollars,” &e. The defendant objected to any evidence of ownership pf the colts by the plaintiff, because not alleged in the declaration. The Court overruled the objection. We think the objection was based upon a misconstruction of the declaration. The plaintiff having alleged that he was lawfully possessed, as of his own property of the mare, proceeds immediately to say that he was lawfully possessed, as aforesaid, of the colts; which in the connection can mean nothing else than that in like manner, that is to say, as of his own property, he was possessed of them also. There was no occasion to repeat the words of ownership, and the evidence was clearly admissible. We express no opinion as to the validity of the objection, had the proper construction of the declaration been as the defendant claims.

The judgment of the Circuit Court must be affirmed with costs.

The other Justices concurred.


author: Per Curiam.

text:
    The City of Detroit v. William Blackeby, et al.

      Practice in the Circuit Court: Settling bills of exceptions. A bill of exceptions •will not be stricken out for delay in settling it, when the party presenting it is not responsible for the delay.

      Heard and decided April 19.

      Geo. II. Prentis,

    moves to strike out the bill of exceptions in this cause, on the ground that it was not settled within the time prescribed by the rules and practice of the Court.

      J. P. Whittemore

    read an affidavit in opposition to the motion, showing that the bill of exceptions was presented to the Circuit Judge during the trial term; and that the time for settling it was extended from time to time, in order to afford an opportunity for the defendant in error to prepare amendments.
   Per Curiam.

Where parties have prepared their bill of exceptions, and presented it in season to the Judge, they are not responsible for subsequent delays for which they are in no wise at fault; and the bill will not be stricken out under such circumstances. In the present case plaintiffs in error were prompt, and the delays were on the other side. The motion to strike out the bill of exceptions is denied with costs.


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    The People ex rel. The Ætna Live Stock Fire and Tornado Insurance Co., v. The Judge of the Wayne Circuit Court.

      Practice in the Circuit Court • New trials; Newly discovered evidence. Circuit Court Rule 31, was not intended to interfere with the common law discretion of the Court to entertain motions for new trials.
    Whether Rule 31 applies to motions for new trials hasod on newly discovered evidence; Quaeref

      Mandamus. A decision within the discretion of the Circuit Court will not he reviewed in this Court hy mandamus.

      Heard April 14.

      Decided April 20.

    Application for mandamus: To compel the Judge of Circuit Court for the County of Wayne, to vacate an order granting a new trial.

      During the January Term, 1870, of the Circuit Court for the County of Wayne, — on the 28th of February, — a verdict was rendered, and judgment entered thereon, in favor of the defendant in a suit brought by Jay Olmstead against The ¿Etna Live Stock Fire and Tornado Insurance Company. A bill of exceptions was settled and signed by the Circuit Judge on the 5th of March. A writ of error, out of this Court, was issued on the 7th of March, returnable on the 28th, and was served on the 17th. The January Term of the Circuit Court expired on the 21st of March.
    On the fourth day of the succeeding March Term, a motion was made for a new trial, on the ground of newly discovered evidence. This motion came on to be heard on the 29th of March; and was opposed on the ground: —1 That leave to make it had not been obtained. 2 — That it was not made within the time allowed by the rules and practice of the Court. 3 — Because a bill of exceptions had been settled and signed, and a writ of error issued and served. The Circuit Court sustained the first ground of objection, and overruled the second and third. Whereupon a motion was made for leave to move for a new trial, which was granted and the argument, by consent, immediately proceeded. The Court granted the new trial on condition that the plaintiff should dismiss the writ of error he had sued out. This application is for a mandamus to compel the Circuit Judge to vacate the order granting the new trial.

      F. A. Baker, for the motion.

      L. T. Griffin, contra.

   Per Curiam.

A mandamus is asked for, to compel the Circuit Court of Wayne County to vacate an order granting a new trial.

The first ground taken is that it is too late to make the motion after judgment. Practically the judgment is generally entered at once upon the coming in of the verdict. But it only operates conditionally, until the time has expired for moving for a new trial, or in arrest, and it cannot therefore prevent any action to grant a new trial, unless there is some other obstacle.

Rule 31, requiring motions for new trial to be made in two days, is subject to the further provision in Rule 72, allowing the Circuit Courts to extend or shorten the time, and was not intended in any way to interfere with the common law discretion of the courts, but only to fix a time beyond which no one could move as a matter of right and without leave.

It is not clear that motions for new trial based on newly discovered evidence, would come within the rule fixing a time; for the facts may not be ascertained until afterwards. It is not desirable to compel parties to resort to courts of equity to obtain new trials where it can be avoided, and in such cases the courts of law should act on equitable principles, and do, if they can, what justice requires.

As the motion was properly before the Court below, we cannot review its decision on the facts, so as to decide whether the new trial should have been granted. It was a matter of discretion, where the action of that Court is not open to review.

Mandamus denied with costs.


text:
    J. Martin Shoemaker, v. Amelia C. Shoemaker.

      Pleading in Chancery: Divorce on the ground of adultery. No decree for a divorce can "be granted on the ground of adultery, which is not charged in the hill with specifications of time, place and circumstances. Dunn v. Dunn, 11 Mich., 28U.

      Heard and decided, April 21.

    Appeal in Chancery from Wayne Circuit.

      This was a bill for a divorce filed in the Circuit Court for the County of Wayne, in Chancery, by J. Martin Shoemaker for a divorce from Amelia C. Shoemaker. The ground of divorce charged as stated in the bill, was adultery “ with divers persons, whose names are at present unknown to your orator, at divers times and places; but at what times and places your orator is not informed.” The bill also contained a charge of adultery, specifying the time and place, with one John Park.
    The defendant answered denying adultery with John Park, as stated, or any other person. Proofs were taken, but there was no proof offered of adultery with Park. On the hearing in the Circuit Court a decree for a divorce was granted. The defendant appeals to this Court.

      JST. H. Redmond and H. M. & W. B. Gheever, for complainant.

      0. Kirchner and L. Bishop, for defendant.
   Per Curiam.

There was no attempt made by the evidence to prove any of the specific charges in the bill; and the general charges are without any element of time, place or circumstance. In the case of Dunn v. Dunn, 11 Mich., 284, this general and vague method of accusation was held insufficient to authorize testimony to be introduced under it. The case of Wood v. Wood, 2 Paige R. 109 had sufficiently shown its impropriety, and no decree can be based upon such charges. All the testimony in this case that has any tendency to prove adultery, relates also to a period not covered by, but subsequent to any of the times referred to in the bill. The decree therefore is entirely without foundation, and must be reversed.

But justice to the defendant requires that the case should not be regarded as decided on any technical ground. The proofs introduced have produced no effect on our minds beyond a conviction that they are fabricated, and utterly unreliable. Enough appears to show that there has been gross and outrageous villany on the part of some one in concocting them, and we trust the papers may be submitted to the proper criminal authorities. There is nothing in them which ought to injure the reputation of the defendant. We, therefore, shall reverse the decree below and dismiss the bill, with an allowance of $400.


text:
    John M. Dalrymple v. Daniel Sheehan and James McGonegal.

      Mortgage of vessel: Assignment: Bights of assignee: Equities of mortgagors. The assignee of a mortgage of a vessel takes it with all the rights and powers which were possessed by the mortgagee; and no equities existing between several mortgagors will deprive the assignee of any of the usual remedies for the enforcement of the security.

      Heard and decided April 23.

    Appeal in Chancery from Wayne Circuit Court.
    The complainant, Dalrymple, and one of the defendants, Sheehan, on the twenty-sixth day of December, 1867, bought of Thomas Reath the .brig Sunbury, used in navigating the northern lakes and rivers, at the agreed price of $8,500. The complainant in his bill avers that it was understood and agreed that he and Sheehan should each pay said Reath for said vessel, the sum of $4,250, and should be equal part owners of said vessel. That on such purchase the complainant paid to Reath, on his part of said purchase money, the sum of $3,500, leaving of his share of said purchase money, only $750; and Sheehan paid on his part of said purchase price only the sum of $2,510, leaving of the amount to be paid by Sheehan, $1,740 still unpaid.
    The bill further charges that Sheehan, for the purpose of obtaining an undue advantage, proposed that they should give their joint notes and a joint mortgage on the whole of the vessel to said Reath to secure the whole of said unpaid purchase money, and accordingly they gave their three joint notes, as follows: One for $1,000, payable July 1st, 1868; one for $1,000, payable December 1st, 1868; and one for $490, payable July 1st, 1869. And they also gave to said Reath as security for the payment of said notes, their joint mortgage on said vessel for said sum of $2,490. The bill further states that the first of said notes has been paid, leaving at most only $250 and interest of the part of said purchase money unpaid, which belonged to the complainant to pay, and leaving $1,240 of the share of Sheehan unpaid.
    The bill then proceeds to set forth the facts of a controversy existing between the two mortgagors, — the filing of a bill in the Wayne Circuit Court in Chancery by Dalrymple against Sheehan, and avers, that while proceedings were pending for the appointment of a receiver, Sheehan, entered into secret combination with James McGonegal, the particular terms of which combination are not stated, but the result of which is charged to be that McGonegal, on or about April 28th, A. D., 1869, purchased, or pretended to purchase, the two last named notes of said Reath, with the accompanying mortgage, and took an assignment of said Reath, and now pretends to own said notes and mortgage. The bill chai'ges McGonegal with notice of the equities existing between Dalrymple and Sheehan, and also charges him with the purpose and intent, in league with said Sheehan, to cheat and defraud Dalrymple of his rights in the vessel by a possession axxd sale thereof; and that he for that purpose had entered upon said vessel, lying at the port of Detroit, and assumed and claimed possession of her, and in pursuance of a power of sale contained in said mortgage, had given notice, that he should proceed to sell said vessel in pursuance of a power of sale, and upon an alleged default claiming that there was, at the date of said notice, $1,634 due on said mortgage.

      The bill prayed that an account might be taken and stated of the amount due on said two last named notes, and what parts and proportions thereof belong to Dalrymple and Sheehan to pay, that Sheehan might be decreed to pay and satisfy his part thereof, and McGonegal to accept the same, and to relieve and discharge Dalrymple and his property from all liens and responsibility in respect thereof, he offering to pay his part thereof and any sum ordered by the Court; that a receiver might be appointed, and if any sale of the property, or any interest therein, should become necessary that it might be done by the receiver, under the direction and authority of the Court; and if said Sheehan should not pay or satisfy his part of the debt, and a sale, become necessary, that the right and interest of said Sheehan might be sold in the first instance to pay the part of said debt belonging to said Sheehan to pay, before resorting to the right and interest of Dalrymple, and before holding him personally liable.
    The bill was taken as confessed as against Sheehan. McGonegal answers denying all knowledge of the facts on which the equities alleged in the bill are charged; denying that any portion of the amount due upon the said notes and mortgage, is the several debt of either, and insisting that the same is the joint debt of both. He denies the combination and conspiracy charged in the bill, and avers that he bought the said notes and mortgages in good faith and paid therefor their full value. He admits that he has taken possession of said brig and advertised her for sale, as stated in said bill, but denies that it would be just or proper to compel him to sell each half of said vessel separately, and insists that he has nothing to do with the state of the accounts between said Sheehan and Dalrymple. He claims also the benefit of a demurrer to the bill.
    The cause was tried in open Court, as in a suit at law, and the Court adjudged that there was due, at the date of the decree, on the notes and mortgage held by the defendant MeGonegal, being the two last notes mentioned in the bill, the first not having been paid, for principal and interest the sum of one thousand eight hundred and twenty-one dollars and seventeen cents, of which sum $283.25 belongs to the complainant to pay, and $1,437.92 belongs to the defendant, Sheehan, to pay. The Court directed the injunction to be retained, and that the vessel be sold by the receiver, and that he bring the moneys into Court. The receiver was also directed to give notice to creditors who have liens on the vessel to present their claims for adjustment to him, and that he report the list of claims presented, etc.
    From this decree, McGonegal appeals to this Court.

      Levi Bishop, for complainant.
    The bill sets forth the following grounds of equitable jurisdiction: 1. Account of sums due on the mortgage. 2. Account of what each mortgagor ought to pay. 3. To prevent a sale after our offer to pay. 4. To compel a sale in separate shares. 5. Injunction. 6. Receiver.
    The legal aspects of the case may be stated briefly as follows: "We were entitled to have an account stated of the amount due on the notes and mortgage, and the amount that each mortgagor equitably owed of that amount.
    McGonegal, when he attempted to sell, in May, 1869, did not stand in the place of a bona fide purchaser. There were two notes unpaid when he bought the mortgage; one was over due; and the other was. not yet due, so that he could take no proceedings on it.
    Again, we were cleaidy entitled to a decree, that Sheehan should pay his part of the mortgage before resorting to our property, and that we should be permitted to pay onrs, and that the mortgagee should be compelled to accept it. If the vessel was to be sold, we were entitled to have each one-half sold separately. To do otherwise would be against well settled principles of common and statute law. The owners of vessels, generally, and in the absence of special agreements, are part owners, and they are not partners. — 3 Kent, 216, 219, 20-1 ; Robinson v. Rice, 3 Mich. 240.

    In other words, each part owner has a right to a certain share of the property, distinct from the other part ownership thereof. Each part owner holds or may hold, by different title and conveyance from the other part owner, and may separately sell or encumber his share, without consulting the other part owner, or in any way affecting his interest. The offer to pay our share of the mortgage was a virtual extinguishment of our half of the debt on the vessel. — Fuller v. Parish, 3 Mich., 211; Moynahan v. Moore, 9 Mich., 9. A mortgagor may redeem, even after forfeiture.— Van Brunt v. Wakelee, 11 Mich., 177; Tannahill v. Tuttle, 3 Mich., 104; Hogsett v. Ellis, 17 Mich., 351. The case is the same therefore as that of the titles of different part owners of land. The rights and interests of all are distinct and separate, though they may be in the' same piece of property. And a mortgage of such interests by all or a part of the owners, is a mortgage of several rights and titles, as much as a mortgage of different rights of several parties in the same or in separate and distinct parcels of land. If two or more persons should join in a mortgage of separate parcels of real property held by each, there could be no doubt that a mortgagee would be compelled to sell the right of each in separate parcels. This is the common law rule in equity on the subject. — 2 Hoff. O. P., Iff.

    The same rule holds generally as to judicial sales of personal and chattel property. — Green’s Practice, 203; 2 0. L., 4,470; Perkins v. Spaulding, 2 Mich., 157. This is also the statutory as well as the common equity rule, in regard to sales of real estate on executions and on mortgages. — 2 G. I., 8,127, 3,564, 5,183.

    Now, it appears from McGonegal’s answer that he persists in selling the rights of these two part owners as a whole. What can be his object? He is entitled to his money and nothing more; and his attempt to sell the property in the manner proposed, is not only wrong, but it is doubtless intended to strip us of our share of the property to pay a debt of Sheehan’s, and is strong evidence of collusion with Sheehan.
    The injunction granted by the Court below was a proper relief in the case. The appointment of the receiver, was also a proper relief, pending the litigation. Eeceivers are granted as against tenants in common. — Edwards on Receivers, 441; 2 Daniels, G. P., 1,418, and note ; Williams v. Jenkins, 11 Georgia, 595. Eeceivers are appointed generally in cases of part owners of property. — Edwards on Receivers, 151. Of part owneis of steamboats, and the receiver may run the boat. — Same, 151-2; Crane v. Ford, Hopkins, 114. Of part owners of mines and collieries, who are tenants in common. — Edwards, 152-8. And of a newspaper establishment, which may be •carried on by the receiver. — Same, 156-7.

    We ask that the decree be modified, so as to require a sale of each share separately, if a sale shall be necessary, to satisfy the part of the debt which belongs to each mortgagor to pay, and that in other respects the decree be affirmed. This is the only way, as it appears to us, to prevent irreparable mischief, and even fraud, based upon collusion, as against the complainant.

      Newberry, Pond & Brown, for McGonegal.
    I. The bill not only shows no equity, but shows affirmatively that complainant could have none. As between himself and Sheehan, complainant is probably entitled to the account he sought in the other suit. But this cannot affect McGonegal. He is no party to their litigation, and only seeks to recover the amount due upon his mortgage, by the ordinary process of foreclosure. He has no interest in any account, except that of the amount due upon his mortgage; and even if something had been paid, as alleged in the bill, would be entitled to sell, if anything remained due.
    Even if Reath and McGonegal had been privy to the alleged misrepresentation of Sheehan, that each moiety was to be separately bound, complainant would not be entitled to relief,- as he only claims to have been misled as to the legal effect of the mortgage. This is a mistake of law against which equity will not relieve. — 1 Story’s Eq. Juris., §§ 110, mo.

    But the bill does not show that Reath was a party to the alleged misrepresentations, or had any knowledge of them, and of course, he cannot be prejudiced by Sheehan’s act. McGonegal is certainly entitled to all of Reath’s rights, and cannot be placed in a worse position than he. Though he purchased with notice of the alleged equity, he is no more bound by it than Reath. — 1 Story’s Eq. Juris., §§ 409, 410; Godfroy v. Disbrow, Walk. Ch., 260; Harrison v. Forth, Prec. Ch., 61.

    The apparent gist of the bill consists in the allegation that Sheehan and McGonegal conspired together “ to wrong and injure complainant, by a purchase and foreclosure of the mortgage.” But the law will not take notice of a conspiracy that is not formed either to accomplish an unlawful purpose, or a lawful purpose by unlawful means. — 2 Fish. Grim. Law, §§ llfi to 164; Alderman v. People, 4 Mich., 414; People v. Clark. 10 Mich., 310. — But how did this combination tend to wrong or injure complainant F The sale gives McGonegal no greater power than Reath had, and complainant had no assurance that Reath would not foreclose immediately.
    After asking for an account in which McGonegal has no interest, the burden of the prayer is that the brig, if she is to be sold, be sold in separate moieties. Complainant, however, is in no position to ask for a marshalling of assets. Equity will not interfere for this purpose, except in cases of conflicting claims of creditors. It will not take notice of disputes between debtors. — 1 Story's JEq. Juris. 688, 610 ; Gen. Ins. Co., v. U. S. Ins. Co., 10 Md., 517. — Complainant may have a claim against Sheehan, but even regarding him as Sheehan’s creditor, he has no lien upon his half of the vessel, and it is only a creditor having a lien who can ask for a marshalling of securities.
    Again: Dalrymple and McGonegal are not creditors of the same common debtor, — a fact that lies at the foundation of this jurisdiction. — 1 Story’s JEq. Juris. §§ 610, 6J/.5.

    The prayer for a sale in moieties certainly has the merit of such originality that we have been unable to find a case upon the point. We submit, however, that the utmost equity will ever do, is to prescribe the order of sale, where there are separate parcels of property to be disposed of. The power of dividing a single parcel into fractions no one has yet been bold enough to assert. It will not thus compel a party to become tenant in common with another. If a Court can divide a parcel into halves, it might with equal propriety divide it into fifteenths — an arrangement which would of course ruin the sale. It is a prime requisite with respect to the marshalling of assets, that no injury be done to the creditor, by which the value of his security shall be impaired. We submit that the bill shows nothing entitling complainant to relief.
    II. —If there is any doubt upon this point, however, the testimony effectually dispels it. There is not a word to show that either Reath or McGongal knew of Sheehan’s misrepresentations; that the purchase by McGonegal was the result of any collusion between him and Sheehan; that anything was ever paid upon the two last notes; or that McGonegal had knowledge of any litigation which could affect his rights.
    III. —The decree does not follow the allegations or prayer of the bill, but is in direct conflict with them. One of the material charges against McGonegal is, that he proposed to sell the vessel as a whole; and complainant prays particularly, that if she is to be sold, she may be sold in separate moieties. Yet the decree condemns her to be sold as an entirety. This is erroneous, for the complainant cannot have, under his general prayer, relief inconsistent with that specifically prayed. 1 Ban. Gh. Prac. 884, note: Story’s PHq. PI. See. 41: Stone v. Anderson, 6 Foster 506: Hilleary v. Hurdle, 6 Gill. 105; Wilkin v. Wilkin, 1 Johns. Ch. 117.

   Per Curiam.

There were no equities attaching against the liability sued on, as against the original holder, who had a perfect right to enforce it according to its terms. This being so, there is nothing to prevent McGonegal, as assignee, from enforcing the same rights. He had a right to purchase it and to proceed upon it in any lawful way. The fact that there were equities between Dalrymple and Sheehan cannot raise equities as to third parties, who may require performance of the contract as the parties saw fit to make it.

As the mortgage was oh the entire vessel, it should be so treated on foreclosure. There would be no propriety in selling the half interest separately. In marshalling securities covering several parcels, the land may be sold in such order as will best carry out the principles of equity, but there is no instance where an entire parcel, mortgaged as such, has been sold in separate undivided interests; nor would such ■ a sale of a vessel tend to raise more money than a sale of the entirety. It would rather lead to mischief, as it might be a decided objection to purchasing one half, that the other was in bad hands.

There is no equity in the bill, and it should have been dismissed below, as it must be here.


text:
    George W. Enders v. The People.

      Criminal pleading: Statement of offense. The averment in an information for obtaining money under false pretenses, — that certain representations as to the quantity and value of land which the accused was about to sell to the party, to whom the representations were made, were false, “ by means of which said false pretences” the money was obtained, — there being no averment of facts showing any connection between the representations and the alleged resultt is essentially defective.
    The statute — ( Comp. Laws, § 6059), which provides that after verdict, an indictment for certain offenses shall be held sufficient “if it describe the offense in the words of the statute,” is not to be construed to excuse the neglect to aver any fact essential to the description of an offense; and such defect appearing, the judgment should be arrested on motion, or will be reversed on error.

      Heard April 6.

      Decided April 26.

    Error to Oakland Circuit.
    Enders was charged on the information of the Prosecuting Attorney for the County of Oakland, that he, said Enders, “on the 10th day of February, 1866, at the town of Groveland, in the County of Oakland, unlawfully, knowingly and designedly did falsely and feloniously pretend to one Frederick Brandt, that certain land which-he, the said Enders, was about to sell to the said Brandt, contained in amount 120 acres, being one 80 acre lot and one 40 acre lot; that there was not upon said land more than five acres of lake or water; that none of the land of either of the said 80 or 40 acre lots had been sold off by the said Enders ; and that said land was free from all incumbrances, except a mortgage of about one hundred and fifty dollars; by means of which said false pretenses, the said George W. Enders did then and there unlawfully, designedly and feloniously obtain of and from the said Frederick Brandt the sum of four hundred and fifty dollars in money, of the value of $450, and also a certain mortgage of the value of $450 with interest, then and there to cheat and defraud him, the said Brandt, of the same: Whereas in truth and in fact there was on said land more than five acres of lake or water, and was on said land 20 acres of lake or water; and the said Enders had sold off from said land four acres; and said land was encumbered with more than $150; all of which the said Enders then and there well knew, to the great damage and deception of the said Frederick Brandt,” etc.
    After trial and conviction, a motion was made in arrest of judgment, for certain defects alleged to be contained in the information; which motion was overruled by the Court. The cause now comes into this Court by writ of error, and errors are assigned upon the admissibility of testimony and the charge of the Court; and also that the Court erred in refusing to arrest judgment in said cause for the various defects appearing in the information: — 1st. That the information does not allege that it was by reason of the false pretenses that the grantor paid the defendant the money and property therein mentioned. 2d. That the information does not allege that any bargain was consummated between Brandt and Enders, nor that any conveyance was made; or that the lands were the consideration for the same. 3d. That the information does not contain any cause of action against the defendant.

      A. G. Baldwin, for plaintiff in error.
    I. The information, to sustain a conviction, must aver that the party defrauded, parted with his property by reason of such representations. It was undoubtedly attempted to make this averment, but an examination of the information -discloses the fact that Enders was about to sell, and there it leaves the subject. From the paper nothing can be inferred. What mattered it to Brandt, so far as appears from the record whether the land had five or forty acres of water on it, or whether part, or the whole, had been sold off. — State of Wisconsin v. Green, 7 Wis., 676; Wisconsin Statutes, ed. of 1858, p. 941, § 88; 2 Comp. Laws, 1517, § 5777; State v. Philbrick, 31 Maine, 401; People v. Gates, 13 Wend., 317; Com. v. Strain, 10 Met., 523; Com. v. Na-

      son, 9 Gray, 126; Com. v. Lannan, 1 Allen, 590 ; State v. Bacon, 7 Vt. 219 ; Com. v. Goddard, 4 Allen, 312.

    II. The information does not state that any bargain was consummated between Brandt and Enders, nor that any conveyance was made, or that the lands were the consideration of the same. These are all material averments. It matters not what conversation was had between Enders and other persons, if no trade was consummated. No matter what he stated he was worth, or how fair the condition of his land, if the information does not show that the trade actually made was the result of such conversation. The testimony discloses that Enders sold the land to Brandt, but the verdict cannot be sustained upon the testimony, unless there be a valid information. I cite the same authorities •upon this point as the preceding, as well as the following: ■ — Rex. v. Mason, 2 T. R., 581; Rex. v. Plestow, 1 Camp., 494; People v. Stone, 9 Wend., 191; Burrow v. State, 7 Eng. ( Ark.,) 65.

    The statutes in relation to false pretenses are nearly alike in the various states, and are copied substantially from the English statutes.

      Dwight May, Attorney General, for defendant in error.
    I. The information is in the language of the statute. It charges the facts and circumstances constituting the offense in substantial compliance with the law defining it. It specifies the ingredients, and alleges the offense in precise, affirmative terms. The “ scienter ” is alleged, together with “obtaining money by means of false pretenses,” which are fully and properly set out, and as fully and properly negatived. — 1 Ohitty Gr. Law, 286-9; 2 Bish. Gr. Proc., 181-2-5-8; Skiff v. People, 2 Park. Cr. Rep., 139; Com. v. Call, 21 Pick., 520; State v. Midleton, 11 Iowa, 246; Reddon v. State, 4 Greene, (Iowa,) 137-9; Fonda v. State, Ibid. 500; Session Laws, 1867, 219; Comp. Laws, § 6059.

      The information alleges that the defendant falsely pretended that certain lands which he was about to sell, contained, &e., and were free from lake or water over and above a certain quantity, &c. By means of which said false pretenses, he obtained, &c. But the defendant insists upon motion in arrest: 1st. That the information should have alleged a purchase on the part of Brandt, by reason of said false pretenses; and 2d. That the information is defective in that it does not charge a sale. These two propositions may be considered together.
    II. The facts and circumstances upon which the offense rests are sufficiently charged.

      (a) This offense is created by statute, and the ingredients thereof, as specified by statute — its very elements — in which the material facts and circumstances composing it, are compressed, are charged. The ingredients of the offense as defined by statute, expanded and particularized, constitute the material facts and circumstances in the case.— Stark Or. PI. U-6-7-8-105; 1 Oh. Or. Law, 282-6-7-8; People v. Haynes, 14 Wend. 567; Com. v. Call, 21 Pick., 520.

    (b) These then being laid, the manner in which the false pretenses were effectual in obtaining the money and mortgage was not a component part of the offense, but only an incident to be developed on proof; and hence we submit a •mere circumstance material as an allegation only so far a.s it is descriptive and a foundation for the introduction of proof. The obtaining money, and not the purchase or sale, under false pretenses, constitutes the ingredients of the offense to be affirmatively alleged. — Laws of 1867, 219; 1 Oh. Or. Law, 286-9 ; 2 Pish. Or. Proc., 181-2-5-8; Rex v. Airey, 2 East, 30; Skiff v. People, 2 Park. Cr., Rep., 139-45; Com. v. Call. 21 Pick., 520; Com. v. Tuck, 20 Ib., 362; People v. Haynes, 14 Wend., 567; People v. Johnson, 12 John., 292-3; Picard v. Stetson, 11 Mich., 75. —The information uses the language employed by statute.

      III. The materiality of the allegation of sale, depending then, not upon its being a component part of the crime, but upon its descriptive qualities merely, and foundation for proof as specified in Com. v. Strain, 10 Met., 521, it follows:
    1st. That if it be substantially laid it may be proved; and 2d. If it point the defendant fully to the facts he is to meet, it is sufficient. — Train & Heard Prec., 88-9; People v. Stone, 9 Wend., 191; Com. v. Hulbert, 12 Met., 446-8; Horan v. State, 24 Texas, 161; People v. Saviers. 14 Cal., 29; Com. v. Hessenkamp, 17 Iowa, 25-6; State v. Baldy, Ib., 39 ; Rex v. Airey, 2 East, 30.

    (a) The object of certainty in the allegation of facts and circumstances is to apprise the respondent of what he will be called upon to answer. The cases which hold that the means through which the pretenses effected the crime, whether by sale or exchange, should appear from the information, rests upon this principle. The case of Gom. v-Strain, the leading case upon this point, holds this doctrine. The cases in Maine and Indiana contain the same view; vide— Com. v. Strain, 10 Met., 521; State v. Philbrick, 31 Me., 401; Johnson v. State, 11 Ind., 481-2; State v. Orvis, 13 Ib., 569-71; Com. v. Goddard, 4 Allen, 312; vide also State v. Green; 7 Wis., 676-84; People v. Gates, 13 Wend., 311-22; Glackan v. Com., 3 Met., Ky., 232.

      (b j The crime is not a felony, but only a misdemeanor. —People v. Richards, 1 Mich., 221-2. — We submit, therefore, that the information is sufficiently certain. The allegation of sale is substantially made, so that the mind of the defendant could have been drawn thereby to no other conclusion. — Skiff v. People, 2 Park. Cr. Rep., 189-45-6-7; Evans v. People, 12 Mich., 27-33; Lambert v. People, 9 Cowen, 609-10-11; 1 Bish. Cr. Proc., 282, 276, Stark. Or., Pl., 76-7-8; Dedieu v. People, 22 N. Y, 180-1.

    Under the decision of Skiff v. People, it was necessary only to allege the offense in general terms, as given by
      statute, leaving the sale to be shown by proof.' — 1 Bish., Or. Proc., 276-82; Stark Or. PI., 105; Train & Heard’s Free., 90-169, 188-4, 107; Skiff v. People, 2 Park. Cr. Rep., 139-45; Hamilton v. Regina, 9 Queen’s Bench Rep., 271; King v. Airey, 2 East, 30; 2 Cox C. C., 11; 5 Ib., Appendix, 2; Queen v. Kenrick, 5 Ad. and Ell. N. S., 49; Com. v. Hulbert, 12 Met., 446-8; Com. v. Drew, 19 Pick., 179; People v. Crissie, 4 Denio, 525; People v. Clark, 10 Mich., 314; Reg. v. Ball, C. & M. 249; Young v. King, 3 T. R. 98.

    (c) The pretenses themselves — a component part of the offense — need not be directly and minutely laid, but may appear substantially. Why need a mere incident be so specifically laid? — Wharton’s Or. Law, 785, (8) and cases cited.. — But we submit the information not only alleges the offense in the general statutory terms, but it shows with precision the colloquium concerning a sale — the very inception of a sale, and to a legal certainty the sale itself. — 1 Oh. Or. Law, 288 ; 2 Hale, P. C., 187, note; Pritt v. State, 9 Humph., 312; Evans v. People, 12 Mich., 27-33; Com. v. Hulbert, 12 Met., Mass., 446-8; State v. Raymond, 20 Iowa, 582-45; People v. Crissie, 4 Denio, 525-7; Com. v. Griffin, 21 Pick., 525-6.

      {d) The information is sufficiently certain to enable the defendant on a second trial to plead a previous conviction or acquittal. — 1 Oh. Or. Law, 280-1; Stark. Or. PI., 78-4.

    IY. It was unnecessary to allege a purchase on the part of Brandt. The term “ sale ” includes this. The offense in the language of the statute is affirmatively alleged, a sale substantially averred, so that the defect in the information, if any, does not prejudice the defendant’s substantial rights, is technical, — formal merely, and cured by the verdict. — 2 Comp. Laws, §§ 6048, 6055, 6059 ; Train & Heard’s Prec., 87-8, note; Whart. Or. Law, 185, and cases cited; Whart.

      Free. 125; Arch.Cr. Pl., 51-2-8-4; 1 Ch. Cr. Law, 423-37; 1 Ch. Pl., 440-1; Hamilton v. Reg. 9 Queen's Bench, 271; Rex v. Airey, 2 East, 30; 6 McLean, 56; Rice v. People, 15 Mich., 14-17.

    V. As to the third assignment of error, it is a well settled law of pleading, that a motion in arrest will lie only where a demurrer for substantial defects would have stood. — State v. Carver, 40 Me., 593; State v. Nixon, 8 Vt. 70 — (a) The information alleges a substantial cause of action, for, independent of an allegation of sale, the information charges those facts, which, if in point of fact were found true, would render the. defendant liable. The Court can ask no more. It is the province of' the jury to determine their verity, and if upon the trial the prosecution attempted to support the naked allegations by proof of a sale, when none was in any manner alleged, it is quite clear that the proper mode for the defendant’s counsel would have been to object to the introduction of evidence apparently collateral, and except to the ruling of the Court on its admission. — Skiff v. People, 2 Park. Cr. Rep., 139-45; State v. Hubbs, 39 Me., 212-16; State v. Carver, 40 Ib., 588-93; Com. v. Griffin, 21 Pick., 525-6; Picard v. Stetson, 11 Mich., 75; 1 Bish. Cr. Proc., 4$ i Stark. Cr. Pl., 103-4-5. —But this is not done; hence, we submit in the absence of any record to this effect, and a substantial cause of action being alleged, that a motion in arrest was improper, and was rightly denied.
   Campbell, Ch. J.

The respondent, Enders, was informed against for obtaining property under false pretenses. The information charged him with representing that certain lands which he was about to sell to one Brandt, contained one hundred and twenty acres, and that there was not upon the land more than five acres of lake or water; that none of the land had been sold by him, and that the premises were free of all incumbrance, except a mortgage of about $150; by means of which pretenses he obtained of Brandt $450 in money and a mortgage of the value of $450. The pretenses were negatived, and alleged to have been knowingly false.

Enders moved in arrest of judgment, after conviction, upon the insufficiency of the information. The objections are principally upon the ground that there is no sufficient connection made out by allegations of material facts, between the pretenses and the parting by Brandt with his property, and that the materiality of the pretenses does not sufficiently appear.

It is not disputed that the information does not corn-form at all to any proper standard of pleading. All systems of criminal, as well as of civil pleading, require that such facts be averred, as will, if admitted, lead to a necessary legal conclusion of liability or guilt. And if the facts so alleged would not of themselves require this inference, no allegation of guilt could help them out. The result must follow from the facts, and not from the pleader’s conclusions.

There is no natural connection between an affirmation of the extent, or situation, or quality of the land, and the payment of money to the owner. Enders’ mere representations that his land was good or bad, could not have any tendency alone to induce a stranger to give him money. If he made such representations in order to induce some one to purchase the land, and did so induce him, and obtained the money and mortgage as a price which would not have been given without those statements, their materiality is thus made to appear, but cannot be seen otherwise. Until it appears a sale was thus brought about, the statements concerning his farm do not appear of any more importance, than if he had been talking about the weather. The facts alleged lead to no conclusions, and an allegation of their importance amounts to nothing. The Court must be enabled to judge of that for itself.

The only question that can arise upon this part of the case is, 'whether, after verdict, the defect is cured by the provision of our law, that when an offense has been created, or its punishment declared by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describes that offense in the words of the statute. — 2 G. L. 6059.

This provision, (which was first adopted in substance by Slat. 7 G. 4 G. 68 § 21,) has never been very accurately interpreted by any one. Its original purpose was to simplify the somewhat prolix and verbose descriptions of offenses in the common law indictments; and it is not by any means clear that it was then primarily intended to define the rules applicable to motions in arrest of judgment, or writs of error. The section in which it is contained enumerates first, several grounds as not to be thereafter allowed to arrest or reverse a judgment, while the latter clause of the section simply declares that the indictment shall be held sufficient to warrant' the punishment, if it describe the offense in the words of the statute. — Garr. Sup. 88. — It certainly could not have been supposed to warrant any charge against a prisoner which should set out no specific facts. No case has ever intimated, that it would be enough to charge false pretenses without stating what they were, or to allege the obtaining of property without showing what, and from whom. Yet this would be deviating from the language of the statute, and amplifying it. The common law and constitutional principle that the indictment should set out the offense so as to inform the prisoner fully, was not intended to be infringed, and so it has always been held. The substantial requisites of indictments have been regarded as just as necessary now as before the provision referred to was adopted.

Since the clause was first introduced in England, many cases have been decided, in reference to all sorts of statutory offenses, in which, after conviction, judgment has been reversed, or stayed for the lack of substantial allegations of fact, when the pleading has been entirely conformable to the words of the statutes. It will be sufficient to refer to some having a more direct bearing upon the crime of obtaining property by false pretenses.

In Rex v. Reed, 7 C. & P. 848, where the pretenses and other elements of the crime were fully set out, according to the language of the statute, and almost exactly as in the case before us, the indictment was held bad, because certain averments of the value of coals were regarded as mere affirmations, and false averments of its weight were held immaterial, because it was not made to appear by the indictment, that they were connected with a sale of the coal so as to show how they operated to defraud.

In Queen v. Wickham, 10 A. & E. 34, it was alleged that the defendant obtained the property by the pretenses _ that he was a Captain in the East India Service, and that a certain note which he produced and delivered to the person defrauded, purporting to be made for the payment of the sum of £21, was a good and valuable security, whereas he was not such a captain, and the note was not a good and valuable security for any sum whatever. The indictment was held bad for not sufficiently describing the note, or how it was wanting in value.

It has been uniformly held that a description in the words of the statute did not after verdict render an indictment valid, which omitted to allege the offense to have been “against the form of the statute,” &e. — See Rex v. Pearson, 1 Moody, Cr. Ca. 313; Reg. v. Radcliffe, 2 Moody Cr. Ca. 68— Our statutes have remedied this difficulty expressly.

It has been held with great strictness that the ownership of the property obtained must be averred, and yet the statute did not require this. — Reg. v. Norton, 8 C. & P. 196.

Reg. v. Martin, 8 A. & E. 481. — In this case the question of the ■ effect of the statute of G. 4, was directly passed upon, and it was held that statute did not apply to dispense with matters of substance.

In Sill v. Regina, 16 L. & Eq., 376, under the more recent statutes, the same decision was made, and the omission of such an averment was held not to be a matter of form.

So in Reg. v. Henderson, 1 C. & M. 328, and Reg. v. Philpotts, 1 C. & K. 112, indictments which were in all respects conformable to the language of the statutes were held defective, because they did not make further averments concerning the knowledge by the prisoner, of the falsehood of certain facts alleged than were required by the statute.

The American cases cited on the argument seem to favor the same doctrines, but in the absence of full citations of local statutes, we cannot tell how far they may be considered as authority on this controversy. The English courts are quite as liberal as our own in criminal practice.

If there is to be any averment beyond what is required by the words of the statute, defining an offense, it is only reasonable that when facts are set out at all, they should be such as lead directly to a conviction of guilt. And in the case before us, they are entirely meaningless, unless helped out by the allegations, which embody mere conclusions of law. And therefore, we think, the information is too defective to maintain judgment.

This renders it unnecessary to consider the errors alleged upon the exceptions. But justice to the defendant renders it proper to say that the materiality of the statements proved, and their legal sufficiency to justify a conviction, would not have required us to make the reversal of the proceedings depend merely on' technical grounds. But as there will be no new trial, it is not desirable to pass specifically on the exceptions.

Judgment must be reversed.

The other Justices concurred.