author: Wing J.

text:
    May v. Rumney et al.
    Under the Ordinance of 1787, a widow is entitled to dower, as at common law1, in all the lands of which her husband was seized during coverture.
    Actions for the recovery of dower are not within the statute of limitations of 5th Nov. 1829, Laws 1838, p. 408.
    The right to dower is unlike any othor right to land known to the law, and its . peculiar nature is such as to exempt it from the operation of all general stat-< utes of limitations, however broad and comprehensive, in which it is not named, or by unavoidable implication included.
    Case reserved from Wayne circuit court. Ejectment for dower. Rlea not guilty. On the trial the jury found a special verdict, stating' that James May and Margaret May, the plaintiff, were married on the 80th September, 1797 ; and that James May, on the 20th March, 1807, was seized in fee of the land in question, and that on the l7tb June of the following year he conveyed the premises to Daniel Me Niel, by a good and sufficient conveyance, in which the plaintiff did not join. That James May died in January, 1829, leaving the plaintiff Lis widow surviving him, and tliat her dower in tlie premises Lad not been made assigned or recovered. The defendants were in pos-sessión as tenants to John Garland, who, at the time the suit was commenced, was seized in fee of the estate conveyed by James May to Me Niel; and' McNicl and those claiming under Mm had been in the peáceable and undisturbed possession of the premises from the 17th June, 1807, down to the commencement of the present action. The plaintiff moved for judgment on the special verdict, and the question-was reserved by the circuit court for the opinion of this court.

      Davidson, for plaintiff.

      Douglass <Sc Wullcer, for defendants.-
   By the Court,

Wing J.

The first question presented by the special verdict is, whether' tlie" plaintiff was, on the decease of her husband, entitled to dower in a lot of land of which her husband was seized during the coverture, but off which ho was not seized at the time of Ms death.

It is admitted by the parties that this question is to be determined-by the Ordinance of 1787, which contains the only express provision in relation to dower that has any bearing on this point.

The second section of the first article of the ordinance provides, “That the estates both of resident and non resident proprietors in the said territory dying intestate, shall descend [here follows the course of descents], saving in all cases to the widow of the intestate, her third part of the real estate for life, and one tMrd part of the personal estate ; and this law relative to descents and dower shall remain in full force until altered by the legislature of the district.”

It is'insisted by defendants’ counsel, that as the provision for dower is connected with the provision directing one third of the personal estate to bo assigned to the widow, it is- manifest the framers of the ordinance intended that they should both be placed upon the same footing. And as' both were innovations upon the common law, the provision to bo made for the widow, out of the personal estate, was intended as a compensation to the widow for her loss of dower in lands of wMch the husband had been seized during the coverture, but which he had alienated ; thus limiting her claim to dower, to lands of which-the husband died seized-

The previous part of the section is employed in regulating the ¿e-■scent of estates, and a different rule vras established from any that had ■prevailed in any part of the country over which the ordinance was designed to be operative. Had the common law rule in relation to descents been adopted, this saving clause in relation to dower woulcfliot have been necessary ; but as if to avoid misconstruction, and to prevent the new rule from operating injuriously to the interests of the widow, a saving clause -was introduced, recognizing -some existing right. If the words used had been saving to the widow one third, instead of her one third part of the real estate for life, the defendant might have insisted with more reason that it was intended to provide a new rule of dower; but the right of the widow being mentioned in a saving clause, and the terms used being her third part, there is an obvious recognition of some ascertained existing right, protected and defined by some previous law, and which it was intended to affirm and continue in all its force and extent. This construction is strengthened by the fact, that in the other part of the sentence, relating to the personal estate, the word her is dropped. Then to what law in force in this country was reference made in this part of the ordinance ? It appears •to me most manifest that the reference could have been to no other than the common law, for the terms used are common law terms, having a well known meaning. The word dower used in the concluding part of the sentence is a common law term, and it is there used to designate the widow’s third part of the real estate before mentioned.

It is matter of history, that fora long period previous to 1783, Great Britain held dominion over the district of country embracing much of what has been known and designated as the north-western territory. Previous to that period, and as-far back as 1763, (when it was ceded by France to Great Britain as a conquered province) this portion of territory continued in the exclusive possession and occupancy of Great Britain, formed a part of her colonial possessions, was a part of the province of Upper Canada, and continued to -be governed by her laws.

That the common law of England was in foree 'in Upper Canada with such modifications as may'havc been made by the local legislature of the province, can hardly be doubted. It was the basis of their rights, and formed the rule of decision in civil and criminal cases?. This being a matter of history, will be noticed by courts.

In 1783, the territory was ceded hy Great Britain to the United States, but its actual possession was not relinquished to the United States until July, 1796, at which period we find the common law in force here, as it was generally in the United States. In 1787, the ordüÉmce was adopted by the congress of the United States. It was designed for the whole north-western territory, including Ohio, Indiana and Illinois, as well as the country now embraced within the limits of this state. The instant the United States took possession, the ordinance became operative, and laid down the principles which constituted the groundwork of the future government. And the law of dower referred to and affirmed in this instrument continued, for many years after Ohio, Indiana and Illinois were erected into separate states, to be the only law on this subject in those states respectively.

It was never questioned, so far as I can learn, in either of these states, that the widow was by the ordinance entitled to dower in lands as at common law, until the case of Betts v. Wise, reported in 11th Ohio Rep. 219, in 1842, which arose under this clause of the ordinance, and in which it was insisted, for the defendant, that the widow’s dower was limited to one third part of the real estate of which her husband died seized. Chief Justice Lane delivered the opinion of the court, an4 after stating the common law, remarks: <( Such is the common law of dower, an institution existing wherever the common law obtains — a rule which each people has the right to change, but a conception which none could shake off without substituting some other provision in its stead. It was to a people under the dominion of this idea that the ordinance was addressed, and far from assuming’ to prescribe a different rule or confer a new right, it does no more than re- • cognize an existing institution, and takes care that it receives no prejudice hy the operation of the law of descents. We can regard it as no less than an authoritative acknowledgment of the estate in dower at the common law, to which law we must refer to learn the signification of the term, and the extent of the dowress’ interest.” The judge adds: “ Since the organization of the territory, a wife was dowable of all lands within, it of which her husband was seized at any time diu'ing the coverture,” This opinion of Judge Lane appeal's to be quite conclusive upon this subject.

In afiditiori to this judicial construction of the ordinance, we find provisions in the Woodward and Cass codes of laws, adopted in the territory of Michigan soon after the organization of the territory, and in subsequent codes, requiring the wife to unite with the husband in the sale of real estate, and declaring the manner in which she should be barred of her dower, which shows the construction put upon the ordinance by our earliest law makers. See Woodward Code, 1805, pp. 53, 81; Laws 1820, pp. 30, 158; Laws 1827, pp. 65, 259; Laws 1833, pp. 264, 332. Thus we have a legislative and judicial construction of this clause in the ordinance which seem! to establish its true meaning to be, (as at common law), that the wife is entitled to be ¡endowed for her natural life of the third part of the lands whereof her husband was seized, either in law or in deed, at any time during the coverture. 4 Kent’s Com. 35; Park on Dower 5.

So highly (says Judge Kent) was the law of dower esteemed, and so anxious were our forefathers to secure its undisputed establishment, that in its modern sense and enlarged extent, as applying to all lands of which the husband was seized during the coverture, it was incorporated amongst the provisions of Magna Chacta, and it has continued in the English law to the present time; and with some modifications it 'has been everywhere adopted as part of the municipal jurisprudence of the United States. 4 Kent’s Com. 36.

To the consummation of the title to dower three things are requisite, viz.; marriage, seizin of the husband, and his death. 4 Kent’s Com. 36. The concurrence of the two former circumstances is properly the groundwork of the title, of which the death of the husband is the consummation, 4 Kent’s Com. 36; Park on Dower 7. From the period when the husband dies, the incipient title which existed in the wife during the coverture becomes consummated and perfected, and her right of action to obtain the fruits of that title commences. Park on Dower, 247.

At common law it was competent for the heir to assign the widow’s •dower on the death of the husband, but if it was not assigned she had certain remedies. She had no right of entry until the dower was assigned to her, and she could not maintain a possessoiy action. The legal remedy to enforce an assignment of dower was by writ of dower, unde nihil hctbei, or writ of right of dower, brought against the tenant ¡p.f the freehold, upon which, if she obtained judgment, dower was a?.signed. She might then proceed to recover possession by ejectment Park on Dower, 283.

No demand of dower was necessary; the right of action was perfect without it; and the widow, by foiling to make demand, lost her portion of the profits of the estate previous to the demand. Park on Dower, 288; 7 Cowen 288; 6 John. Rep. 295. Thus stood the rights ,and remedies of the widow, in reference to dower, at the common law.

By an act of the governor and judges of the territory of Michigan, passed February 26, 1821, (Laws 1833, p. 38'7, § 40) all the common law remedies for the recovery of dower were abolished. It is insisted by defendants that this statute gives the writ of right instead thereof.

■ By an act of the legislative council, (Laws 1833, p>. 332, §1) it was provided, that if the heir or other person having the next immediate estate of inheritance, should not within one mouth set out to the widow of the deceased her dower, &e., then such widow might sue for and recover the same by writ of dower brought against the tenant.” The remedy provided by this act is substantially the same as the common daw remedy by writ of dower, which was in the nature of a real action. The form given in the statutes seems designed to embrace a declaration in substance, as at common law. The difference is, the declaration or complaint is contained in the writ, and the common law proceeding is in other respects somewhat simplified. This act, and the ■act of February, 1821, continued hi force until repealed by the Revised Statutes of 1838.

Defendants’ counsel insist that this action is haired by the statute of ■■■limitations of November 5, 1829, (Laws 1833, p. 408) the first section of which provides, “ that no writ of right or other real action, no action ■of ejectment or other possessory action, of whatsoever name or nature, shall hereafter be sued, prosecuted or maintained for the recovery of any lands, tenements or hereditaments, if the cause of action has now .accrued, unless the same be brought within ten years after the passing of this act, any law, usage, or custom to the contrary notwithstanding.”

This statute seems to be broad enough to cover all possible remedies -for the recovery of an interest in lands, and yet it does not in terms ..enumerate the action of dower provided by the acts to which I have .referred. It becomes necessary, therefore, to determine whether the -nature, of the widow’s right, and the remedy provided for the recovery of dower, previous to the Revised Statutes of 1838, were such as to-bring them within this statute.

From an examination of the English and American statutes of limitations, and the decisions upon them, it will be found that the rights of widows to dower have been highly favored. It has been fully es-tablished in England by a uniform course of decisions,- and in most of the United States, that the wife’s remedy by action for her dower is not within the ordinary statutes of limitations. Wells v. Beall, 2 Gill & John. 468; 3 Kent’s Com. 3d edit. 70, in note; Swift’s Digt. edit. 1822, p. 85; Barnard v. Edwards, 4 N. H. Rep. 109; Spencer v. Weston, 1 Dev. & Bat. 213; Guthrie v. Owen, 10 Yerg. Rep. 339; and yet if we examine some of the American statutes, it will be foirnd they are as broad and comprehensive as the statutes under consideration. It will also be seen that the reasons why the action- for dower is held not to be Within the statutes,- are, that the action for the recovery of dower is not exjn'essly named — that no implication can be raised against such action on account of the favor with which courts have regarded the widow’s rights, and because the peculiar nature of the right,' and the general object of such statutes, is such as to exempt this action from then- influence.

The English statute of 32 Hen. 8, c. 2, applies only to cases where the demandant counts only upon his own seizin or that of his ancestor. In Angelí on Limitations, p. 33, it is stated that this statute extends not only to writs of right, but also to all other writs in the nature of a writ of right, in which the demandant must allege a seizin,, and in which he seeks to recover a hereditament. But it does not extend to cases where the demandant does not count upon the seizin of himself or his ancestor, as in the writ of right of doweiv In Bro.reading on this statute, it is said a woman brought' a writ of dower of-the seizin of her husband sixty years past. The action lyeth because that is not of her ancestor or predecessor, neither is it an action possessorie, and it is not prohibited by the statute. Appendix to Angelí on Limit. 55. In Park on Dower, pp. 311, 342, it is stated that no-statute of limitations has prescribed any period for bringing a writ of dower.

Chancellor Kent (4 Kent’s Com. 61) lays down the general doctrine that the widow cannot enter for her dower until it is assigned fey her, nor can she alien it, It is a mere chose in action,'and cannot be soM. She’ has no estate in the lands until assignment. The special verdict in this case finds the fact,- “ That said widow's dower in said premises has never been made, assigned or recovered.” That the widow cannot enter for her dower is affirmed in the following American authorities: 1 Yeates 425; 9 Mass. 13; 4 id. 388; 7 John. Rep. 247; 17 id. 167; 20 id. 411; 5 Munford 346; 16 Mass. 193; and that the statute of limitation does not run against dower until such assignment is made, is clear from the same authorities.

But it.is insisted that our statute is more extensive than the English statute of Hen. 8, and 21 Jas. 1, c.-16, upon which the English déci-* sions are made — that it is not limited to a right of entry or possession, but extends to the right of action. The following statutes are similar to our own, and are quite as broad and comprehensive. The statute of North Carolina provides- “ That no person nor then- heirs, which shall hereafter have any right or title to lands, &c., shall enter or make claim but within seven years next after his or their right or title which descends or accrues, and in default thereof shall be utterly excluded from entry or claim thereafter.” In that state iit has been decided that a widow’s right of dower is not subject to the statute of limitations until after it is assigned.

The Georgia statute of limitations enacts, “ That all wilts of forme-* don, &c. (enumerating those of 21 Jas. 1) or any other wilt, suit or . action whatsoever, at any time hereafter to be sued or brought by-means of any title or cause hereafter accrued, &e., shall be sued and taken within seven years next after the piassing- of this act, or after the title or cause of action shall or may descend or accrue to the same, and that no person or persons that how hath or have, or which hereafter may have, any right or title of entry into any lands, &e;, shall at any time hereafter make any entry but in seven years.” This statute is Surely as comprehensive as ours, and does not contemplate solely the case of a seizin which once existed, and from which the statute is to run. The supreme court of Georgia, in the ease of Wakeman v. Roache, 1 Dudley’s Rep. 123, which was an action for the recovery of dower, in which the statute was plead,- say: “ These words (referring to the first part of the section above quoted) would seem sufficiently comprehensive to embrace every remedy, and unless the case of dower’ is excepted because of its oto.distinguishing peculiarities, it must be included. Every title, as it accrues, carries with it and confers on him in whom it is invested, a right to reduce the same to possession by entry. In this respect the title of dower is- peculiar, and forms an exception. It -is, as Park observes, the only probable case in which a complete title does'not confer the right to reduce the same to possession by entry. The title of the widow to be endowed is not of an undivided third of the entirety, but of a third part in severalty; until that-third part is ascertained and assigned by metes and boimds, she has no right of entry. Upon what would she enter? An undivided third? •She is- not a tenant in common, and therefore this 'cannot be. Before the assignment of dower, her right rests merely m action, and until that right is reduced to certainty by the ascertainment' of her third part in severalty, there is nothing upon which she can enter, or which she may reduce to possession. Upon this subject the authorities are conclusive.” The court further remark: If, however, the- statute should be held to operate as a bar to the enforcement of a mere right, mat-tended by a right of entry to be affected by it, there is nevertheless an insuperable difficulty in the court’s mind to the operation of it in this-case. There is a continuity of title from the husband to the wife. After assignment she is in by relation from the death of the husband. The-intermediate entry and seizin of the heir between the death of the husband and seizin is not adverse, and does not disturb the continuity of title. Coke says, the law adjudgeth no mesne seiein between the husband and wife. Park on Dower, 156, 340. The assignment is-considered as proceeding from and made by the husband, and this notwithstanding the estate is created by operation of law, without regard to the will of the husband, and notwithstanding the- intermediate estate of the heir. It is obvious from these principles, that the- right of action to have an assignment of dower does not result from any adverse right of possession in the hen- or feoffee, and as a consequence, says Park, the mere possession of the heir or feoffee can never become a bar to the title of the wife. A possession under a claim or color of title, to be a good bar under the statute, must be founded on an adverse right of possession; and an adverse possession will be negatived ■when the parties claim under the same title, or when the possession of one peri/ i.; coiHsient with tim title of the oilier par.ti”. Adams on Eject. 40. Tie court gave judgment for the demandant.

The Revised Statutes of Massachusetts, c. 119, §1, provide “That no person shall commence an action for the recovery of any lands, nor shall make any entry thereupon, unless within twenty years after the right to malee such entry or bring such action first accrued, or within twenty years after he, or those from, by, or under whom he claims, shall have been seized or possessed of the premises, except as horein¡rfter provided.” In the ease of Parker v. Obear, (7 Metcalf 24) a writ of dower was brought. The tenant derived his title to the premises from the husband of the demandant, through Joseph Parker, decomed, and he relied upon the above recited statute of limitations as a bar to the action. The court say, “the language of the statute is very broad. That a writ of dower is a writ for the recovery of lands, and taking the language of the statute without any qualification, it would seem to be a bar.” And after referring to and commenting upon some of the authorities above cited, the court say, “ We are clear that the statute of limitations was made with another purpose, and however broad the general words may be, they are not applicable to claims for dower.”

In Hew York,, in the case of Hogle v. Stewart (8 John. Rep. 104),. which was an action- for dower, the facts were shortly these. The v.iit was returnable Hov. Term, 1808. The demandant was married to John Hogle before the revolutionary war. He was seized of the demanded premises when, he died in 1777, and Elizabeth his wife continued a widow. Hogle was duly attainted for adhering to- the enemies of the state, in the late war. The commissioners of forfeiture sold the premises in which dower was demanded to one Henry, who conveyed to the tenant who held them ever after. One of the provisions of the act of attainder was, “ that no person, &c., who now have, or shall or may hereafter have, any estate, right, title, claim or demand, to any lands, (fee, supposed to have been forfeited, &c., and which have been heretofore granted or conveyed to any person, &c., shall after the expiration of five years from and after the passing of this act, &c., prosecute, sue, or maintain any action or suit at law, for the recovery thereof, against the right and title so granted by the people of this state, as •‘/.hove -rid.” The court say, Ho action shall be prosecuted or main.tained, after the expiration of five years, against the right and title granted by the commissioners; the right of dower is neither adverse to the right forfeited, nor is it against the right and title granted by the state, but is in concurrence with both. The seizin of the purchaser from the state is derived from the husband, and is a continuation of that seizin upon which the claim of dower is founded.” Spencer dissented. Kent, Thompson, Yates and Van Ness conetured in the opinion given as that of the court. In the case cited from Massachusetts, the court say the reasons in this case of Hogle are applicable to the case before them.

I do not find any decisions in any of the states which give a different construction to their statutes of hmitations, except a case in South Carolina, in 1 Const. Rep. 112. I have not seen the volume containing the case, but the court in the case of Parker v. Obear, in speaking of it say, The court held that “ the statute of limitations of that state was a bar to the claim for dower, unless prosecuted within five years.” But the decision was principally grounded on the express words of the statute, and the court were not unanimous in their opinion, and the English decisions there referred to relate to a case of alienation by fine, with proclamations. Stat 4 Hen. 7, c. 24.

The stat. of South Carolina provides: If any person to whom any right or title to lands, tenements or hereditaments shall descend or «some, do not prosecute the same within five years after such right or title accrued, then he, she, or they shall be forever barred to recover the same.” Brevoid Justice says, It is true dower is favored in law, and .the act of limitations, being in restraint of the common law, is to bo ■construed strictly, but it is equally true that the act of limitations, in this state, plainly and certainly limits the right of action to recover the possession of lands to five years after the right of the party accrued, descended or came.

It is well settled as a principle of law, that there must 'be an adversé possession before the statute of limitations can commence to run. 8 East 248; 2 Bos. & Pul. 542; 1 Dall. Rep. 67; 1 Caines’ Rep. 394; 1 John. Rep. 156; 2 id. 230; 1 Wash. Rep. 37; 4 Crunch 367.

In Blanchard on Limitations, pp. 9, 13, it is stated that “these statutes of limitations never run against a ■ man whilst he continues in the' ..seizin, therefore, to malee the length of possession a bar under them, it must be a possession adverse to and inconsistent with the title of the trae .owner.” “ And though the owner be out of possession, the statute only begins to operate from the time of right to enter accruing.” Lord Mansfield, also, in the case of Fairchild v. Stockton, asserts the same doctrine. The widow is not a joint tenant nor tenant in common with the heir, devisee or grantee.

Then is the title and possession of the defendant in this case adverse to that of the demandant 2 If not, it_, is not perceived how the plaintiff’s action can be defeated. Park, in his treatise on dower, p. 153 {335) says, “ Although a title of dower is for most purposes nothing more than a right of action, and consequently transferable in no other mode than by release to the terretenant by way of'extinguishment, yet it differs from all .other mere rights of action in not being the result of any adverse jus possessions acquired by the heir or feoffee, and as a .consequence tire possession of the heir or feoffee can never become a bar to the title of the wife.”

It would seem, then, from an examination of the statutes, and authorities on this subject in England and many of the United States, that the tight of dower is unlike any other right to land known to the law, ■ and that its peculiar nature is such as to exempt it from the operation of all general statutes of limitations, boweyer broad and comprehensive, in which this action is not named or by unavoidable implication included. Those statutes apply as a bar to those persons whose tight of entry is lost by their own laches, or by the laches of those under whom they claim, but the widow has no right of entry.' Independent of the favor with which courts are bound to regard the tight of dower, it is such that tire possession of the heir or purchaser cannot be adverse to the claim of the -widow. The estate of the widow arises by operation of law, and is not created by grant. And as the lands, when held by the husband, are subject to the .inchoate or incipient rights of the wife, if the husband deed them the purchaser takes them in the same way, subject to the same legal incidents, of which they cannot be divested except by the act or death of the wife. The purchaser enters into possession, not under a full and perfect title, but under a title subject to the dower of the wife, with which his title well .¡consists, and to which it is in no wise opposed.

It was urged in the case of Hogle v. Stewart, that as a purchaser entered under a deed from the state, in which there was a warranty of tide, the purchaser must be considered as having entered under a title' adverse to all others. But it was said by the court, that “ it was true the state was bound to defend the purchasers of forfeited estates against all claims whatsoever; the deeds given by the commissioners of forfeitures were for an absolute estate, but as it was known that the attainder did not 'impair the widow’s right of dower, the state intended to indemnify the purchaser against such right whenever it should bo made and enforced.” So in this case. It will not be said the purehar ser did not know he took the land subject to the wife’s right of dower; and if there is a covenant of warranty in the deed, in case of a recovery of dower the estate of the deceased husband must respond for the value'of the dower interest recovered by the widow of the purchaser. If it be said the estate may not be worth anything, it may be replied, the purchaser knowingly ran his hazard in this regard.

There are strong reasons why the widow should not be compelled, at the peril of a -loss of her rights, to enforce them within the period limited by the statute in question; as, where the husband conveys without her joining, and receives the full value of the land, 'the wife, being otherwise provided for, would not disturb the grantee, unless misfortune befel her. But if. limited to ten years, widows would uniformly enforce their rights within that period, in anticipation of a day of need.

I can see no reason why comts should not now, as formerly, look upon the claim of dower with great favor, and maintain the truth of what Lord Coke says was commonly said, that three things be favored in law, — life, liberty and dower.

Certified accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Lockwood v. Drake.
    Under R. S. 1838, ejectment must be brought against the person in actual possession of the premises, when they are'occupied by any one.
    A verdict in ejectment was as follows": “ The jury find for the plaintiff, and that the plaintiff is entitled to the possession, during her lifetime, of the one undivided third part of [describing four eighty acre lots, according to the United States survey], except so much of said two last described portions or parcels of land as is contained in the record of the plat of the village of Royal Oak, recorded in. record of deeds for said county of Oakland, as the reasonable dower of the said plaintiff in said premises.” Held,
    1st. That the description of the land in the verdict was sufficiently certain, and that it would be good in a declaration.
    2d. That although the verdict, did not find defendant wrongfully withheld the premises, yet that it was good, as it was intelligible, and no doubt could arise as to what was the intention of the jury.
    Case reserved from Oakland Circuit Comt. Ejectment for dower, • commenced on 29th May, 1844. On the trial, one Cooper testified defendant claimed to be the owner of the land at the time the suit was brought; that previous to October, 1843, witness was a tenant to defendant of a part of the land; that defendant’s brother had been in possession of the premises since May, 1843, and had controlled them, as his own; and that in the fall of 1843, defendant said he owned the -property. Several other witnesses testified, that at the time the suit was commenced, defendant claimed to own the property; but there was no testimony showing him in actual possession. The court charged the jury, that if they found the defendant was not in possession of , the premises , at the time the suit was commenced, they must find for the defendant. That the plaintiff must bring the. suit against the person in actual possession.
    The jury rendered the following verdict:

      “ The jury find for the plaintiff, and that the plaintiff is entitled to the possession, during her lifetime, of the one undivided third part of the west half of the north east quarter of section numbered twenty-one, .'and east half of the north west quarter of section numbered twenty-two, in township one north of range eleven east, in the county of Oakland and state of Michigan. Also the west half of the north west quarter of section twenty-two, and the east half of the north east quarter of section twenty-one, in township one north of range number eleven east, in said county; except so much of said two last described portions or parcels of land as is contained in the record of the plat of the village of Royal Oak, recorded in record of deeds for said county of Oakland, as the reasonáble dower of the said plaintiff in said premises.”
    Defendant moved to set aside the verdict, and for a new trial, on the following grounds: 1st. That the verdict of the jury was uncertain and indefinite as to the description of the land, which it did not describe with the certainty required in a declaration. 2d. That the verdict was contrary to the evidence and the charge of the court. 3d, That the jury did not find defendant unlawfully withheld the premises from the plaintiff. Which motion was reserved for the opinion of this court.

      Dr alee,.in person.

      Ilosmer, for plaintiff.
   By the Court,

Wing J.

The 4th sec. of chap. 2, title 3, part 3, of the Revised Statutes of-1838, expressly provides that the action shall be brought against the-actual occupant, if the premises for which the action is brought are ae7-tually occupied by any one; and in such case the 13th section requires service of a copy of the declaration to be made on such occupant. If not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title' thereto, or some interest therein, at the commencement of the suit.

The proof shows without a shade .of controversy, that defendant’s brother was in the actual occupation of the premises claimed at the time of the commencement of the action; that he had so occupied them from May, 1843, and had controlled them as his own. It is in p>roofj. that in the fall of 1843 defendant said he owned the property; and it was proved by other witnesses, that at" the time of the commencement" of the suit, the defendant claimed to own the property; but there was7 no evidence to show that defendant was in the actual possession..

There appears not to have been the slightest ground for the verdict of the jury under the charge of the court, (which was undoubtedly correct) and the proof. It was clearly contrary to evidence, and therefore ought to be set aside. Suppose judgment was rendered upon this verdict, could the sheriff deliver possession to the widow ? He could not disturb the occupant in his possession, nor deprive him of whatever rights he might have. He may be the owner, as it is said he controlled the land as his own. The occupant is' prima facie the owner, and until he is made a party he cannot be ejected by a judgment against a person out of possession, claiming title, though no title in him is shown. It does not appear from the testimony who is the legal owner of the premises. The law would have been satisfied if suit had been brought against the occupant, and it dees not authorize a suit against any one else, so long as there is an occupant. It says such actual occupant shall be named defendant in the declaration. On this ground we think the verdict should be set aside.

As to the first reason alleged for setting aside the verdict, we are of opinion that the description of the land, as set forth in the verdict^, is sufficiently definite, and that it would have been sufficient if so stated in a declaration. The numbers of the lots are given. This complies with the first requisite of the statute. In reference to the lands ex-cepted out of the last two lots, it does not appear they were or had been occupied, or that there were any natural boundaries. The metes and bounds are given, which furnish as accurate a designation as perhaps could be given without inserting a long description, which probably would not enable a surveyor to find the lines any more readily than he could from the description given; 11 id cerium est quod potest cerium fieri.”

As to the third point: The principles established in the case of Lamberton v. Foote, 1 Doug. Mich. R. 102, would appeal to be aj>plicable to this case. The verdict is intelligible, and no doubt can arise as-to what was the intention of the jury.

Certified accordingly„


author: Whippe-e,- J.-

text:
    Harrington et al. v. Scott.
    'WIicto A obtained possession of the promises occupied by B, by knocking the door opon with ¡t hammer in B’s absenoé',- arfd in A’s afeeneo B soon after-wards re-entero® by similar violence. Held, that A’s temporary occupation so acquired was not such qmet ami peaceable possession as would' enablo him to maintain forcible entry and detainer under ¿..Sr
    To Bustain a complaint for unlawful and forcible entry and detainer, under B. 84 thero should be proof of such acts of violenoe as amount to a broach of the poace. Proof that the defendants (there being only two of them) repaired alone to tho premises, and that one of them pounded u’pon tÉíé' door and it was opened, whereupon they both entered, is not sufficient,-
    Certiorari £0 two justices of the peace of the county of St. Clair, to remove proceedings had before them, for a forcible entry and detainer. The facts appe'ar in the opinion of the court.

      Van Dyke db Dmtnons, for plaintiffs,, in error.
    Backus, for' defendant, in error.
   By the court,'

Whippe-e,- J.-

The transcript shows that the píairitiff below instituted proceedings' against Harrington and Young, under the forcible entry and detainer act. The complaint filed with the justice does not appear in the re-' turn, it having, as the parties state, been lost. Enough appears, however, to show that the proceedings were under the' provisions of the 1st,-2nd and 3rd secs, of chap. 5, tit. 3, part 3 Rev. Stat.- The form prescribed by statute for the warrant to be issued,- contemplates that the substance of the complaint should- be inserted therein! The warrant,among other things; recites that Scott was in- the quiet and peaceable possession of lots number three and twelve, in the village of Port Huron ; and that being so' quietly and peaceably possessed, the said Harrington and Young,-with foreffand arms, and with strong-hand and multitude of people, made forcible' entry into and upon the lands, &c,, and still do with strong hand detain- the same.

Without noticing the various points made by counsel upon the argument, it will be sufiicient to consider the case upon- its merits, The evidence shows that on the 24th of October, 1845, Scott, accompanied by one Follensby, repaired to the premises, and that the former demanded of Young the keys of the two buildings situated thereon; that Young gave to Scott the key of the bake-house, and upon being asked where the key to the other building' was, replied that he did not know, but supposed that Harrington had it. Young, upon being requested by Scott to remove some effects- out of the building,' replied that he would not, as he had nothing to do with it; Scott at the same time saying that he wanted possession of the building: that Scott having gone to the shop of one Saunders,, soon returned with some tools, and with' a hammer knocked the door of the building open. He then directed Saunders to take off the lock on the door and replace-it by another, which being done, the door was locked, and the key handed to Follensby by Scott, with directions to take care of the premises. Follensby further testified, that on the 27th October following, Harrington and Young went to the premises, and that he saw Harrington “ pound ” on the door of the building, which was opened,- and both then entered. There was no evidence whatever to show that Scott had any interest iff the premises, or that he was ever in the possession of the buildings referred to by the witnesses. The question now arises, whether the jury, under such evidence, were authorized to render a verdict of guilty against the defendants. We think they were not. The evidence, if it shows anything, proves conclusively that Scott was a mere intruder; that he obtained possession of the buildings by violence ; and that his actual possession, thus obtained, continued but a few minutes. Scott then seeks to dispossess the defendants-and obtain restitution of the buildings, by a proceeding under the provisions of the statute above referred to. In the first place, the allegation in theeomplaint, that he was-in the quiet and peaceable possession of the premises, is proved, if at all, by the testimony of his own witness, who-swears that this peaceable and quiet possession was obtained by knocking tbe door open with a hammer, while Harrington, it is fail- to infer from the evidence, was in possession. How it is very clear, that a possession acquired in this peaceable and quiet ivay, does not constitute such a possession as would enable a party to maintain trespass under the facts disclosed in the return. A party canüot make a possession,thus acquired, the ground-work of an action. If he could, then should we hold our homes by a precarious tenure. Beside, what evidence ia there to maintain the allegations contained in the complaint, that the defendants, with force and arms, and with strong hand and multitude of people, made forcible ‘entry, &c., and with strong hand detain, &c. 3 The summary proceeding provided by our statute is a substitute for a proceeding hy indictment in England : it is in its nature a criminal proceeding, and the same proof is required to convict a party under such a proceeding, as would he required to convict him if indicted. The language of the complaint is not satisfied hy proof that one of the defendants pounded on the door of the building: there should have been -proof of such facte as would amount to a breach of the peace: there is an entire absence of proof going to show, either that the entry was made by the defendants with strong hand and multitude of people, or that the premises were with strong hand detained by them. The testimony fully establishes the faet, that the defendants repaired alone to the premises, and that hut one of them, without doing any act calculated to excite -a breach of the peace, re-entered into possession. But it is useless to pursue the subject auy further: the plaintiff below has sought to predicate a right to obtain restitution of premises, the possession of which he first acquired by. violence and wrong j and for this reason, if no other existed, the judgment must he reversed.

Judgment reversed.


author: Wing, J.

text:
    Spear v. Carter et al.

    Nothing is to be presumed in favor of the jurisdiction of a justice of the peace, which must be shown, affirmatively.
    By statute, the jurisdiction of justices of the peace was restricted to certain actions, and judgments hy confession might be entered for any sum not exceeding $150, “provided that such confession he in writing, signed hy the person mating the same, in presence of the justice or one or more competent witnesses.” Laws 1833, p. 193. A judgment was rendered by a justico in these words, after entitling the cause : “ Judgment by written confession of the above named dafendants, in favor of tlie above named plain”?)?, for cishty-eiglit dollars and .eigliteen cents damages, and co?ts of suit.” JTM, Ibe judgment did not ¡.Row, and was not prima facie evidence that the jirslioe liad bnNú'.oíiim of either the persons of tlie defendants, or of the subject matter of the suit, and that it was therefore void.
    A justice can render judgment on confession of the party only in those actions which he has jurisdiction to try.
    Where jurisdiction is unqualifiedly withheld, consent, or the confession of a judg- ' ment, will not render the proceedings valid.
    ■ Case reserved from Macomb Circuit Court. Jfcn. action was brought by plaintiff on a judgment rendered in his favor against defendants by one Sheldon, a justice of the peaces on 8tíj Septejnb®1» 1887, .of winch the following is a copy:
    Archibald Spear, vs. Harlehigh Carter and James H. Rose.
    Judgment by written confession of the above named defendants in favor of the above named plaintiff, for eighty-eight dollars and eighteen ■cents damages, and costs of suit.
    On the trial the justice’s docket was proved, containing an entry of which the above js a copy, and .was then offered in evidence by the plaintiff and admitted by the court, though objected tp by defendants on the ground the judgment was void. Evidence was also given to .show the original papers in the case could not be found, that the justice had left the state, but no written confession w;as produced. A. •yerdict Was rendered for plaintiflj and (je/endants afterwards moved foy .a new trial, which motion was reserved by the court,

      Goodrich, for plaintiflj

      Terri/, for defendants.
   By the court,

Wing, J.

The Justice Act of 1.833, in force in 1.837, authorized a jus? tice of the peace to enter judgment by confession for any sum not exceeding $150, provided that such confession be in writing, signed by the person maJcing the same, in presence of the justice or one Qr m>re competent vjitnesses, and every such justice is thereby authorized pg bold 3 WWÍ for (b? trial of ab gijcb actions, and hear, try, and de? termine the same: Provided always, that no justice of the peace shall have cognizance of any action where the title to laud shall hi any wise come hi question, or of false imprisonment, or of slander, or op malicious prosecution, nor of «natter of account where the sum total, &e.

Had the justice in this case jurisdiction of the subject matter of the action, or of the persons of the defendants ? Does this appear affirmatively on the face of the proceedings ?

The record only sets forth “judgment by written confession of the above named defendants, in favor of the above named plaintiff for $88..18, damages and costs of suit.”

It does not appear that suit vras commenced by the plaintiff against the defendants, or that the defendants voluntarily appeared before the justice, or that he ever saw them, or that any writing signed by the defendants in the presence of the justice or one or more competent witnesses, was before him. Nor does it appear what the cause of action was upon which the judgment was entered. And therefore it does not appear whether the claim or cause of action was of such character as that, by the statute, the -justice was .authorized to enter judgment upon it. None of these things being apparent from tbe record or proceedings in the cause before the justice, or in the case certified to this court, can it he affirmed -the justice had jurisdiction of the cause of action, or of the persons -of the defendants ?

In the ease of Borden v. Fitch, 15 John. Rep. 141, the court say: To give any binding effect to a judgment, it is essential that the court should have jurisdiction of person, and of-the subject-matter; and the want of jurisdiction is a matter that may always he set -up against a judgment, when sought to be enforced, or when any benefit is claimed under it. The want of jurisdiction makes it utterly void and unavailable for any purpose.” Mills v. Martin, 19 John. Rep. 33; Willes 199; 2 Har. and John. 130.

The act prescribes the causes in which the justice may act, and cases in which he may not act and is expressly prohibited from acting. Nothing is presumed in favor of jurisdiction; it must be shown affirmatively. In Wight v. Warner, 1 Doug. Mich. Rep. 384, and Clark v. Holmes, id. 390, all the cases are cited', and the doctrine above stated is fully illustrated and enforced. Goodwin, J, in giving judgment in the first case says, “ What is necessary to give jurisdiction must fully ^ppear,”

In the case of Beach v. Botsford, 1 Doug. Mich. Rep. 199, a judgment is stated to have been rendered upon the written confession of a defendant (which is given), signed by him but not attested. Morel], J. says, The justice derives his authority to enter the judgment solely from the statute, and the confession of judgment should show that the statute was complied with. It does not appear, from the entry of the judgment, that the confession was written and signed in the presence of the justice, or one or more competent witnesses. It was clearly the intention of the legislature that the witnesses should so subscribe.” He also says: “ The statute not having been complied with, the judgment is a nullity. The consent of the party cannot make a void judgment valid. The justice therefore had no jurisdiction over the person of the defendant”

The statute gives no authority to a justice to render a judgment upon confession except in the section cited. It is the basis of his jurisdiction, it is the foundation on which his judgment must rest. His authority must expressly appear, and that, too, clearly and affirmatively, before faith and credit can be given to his acts,

In the case of Tenny v. Filer, 8 Wen. 569, it appeared that no process was issued, and that defendant did not appear before the justice to confess judgment, but as the justice- was crossing the street the defendant told him to enter judgment against him in favor of the plaintiff in the judgment. The court say, by the act, “ a justice of the peace is authorized to enter judgment by confession of the defendant. The act of 1818 was the same, and under that statute the court laid down the broad principle, that a justice could not legally enter a judgment .unless the defendant appeared in person or by attorney before him, in cowrt, and confessed judgment, or had been duly summoned, as in ordinary cases.”

In this case there may have been a written confession, as in the case of Beach v. Botsford, or as in the case of Clark v. Holmes, or it might have been by letter without being attested; -and as it does not appear how it was done, and 'until it appears that it was done in compliance with the requirements of the statute, it cannot give the court jurisdiction. Besides, it does not appear to have' been entered in a case of which the court had jurisdiction. The plaintiff’s counsel urges that, ,(i as it appears there was a confession in writing, this prima facie gives jurisdiction, and aprima facie case of jurisdiction being thus made out, this court will presume the form of the confession to have been right.” But is a prima facie case made? A confession in writing, signed by the parties, does not make aprima facie case, and there is nothing in the record or case importing more than that there was a written confession, signed by the defendants. It was manifestly the object of the legislature to protect the rights of defendants. It was a matter of repeated complaint, that judgments were entered against defendants, purporting to be upon then confession, when they knew nothing of it; and to avoid all chance of fraud, the statute provided a mode, as the only mode, in which judgments- by confession could be entered; and it was to be done, if at all,' under such circumstances as to render it certain that the confession was actually made, before the -justice could act in the matter. If the judgment in question is to be held good, the requirements of the statute are nugatory.-

The plaintiff’s counsel admitted, on the argument, that the justice was limited as to the kind of actions he might “ try? But it was insisted he might “ taTce a confession in any form of action.” This re-mark was grounded on the fact that a confession was voluntary, and-the parties were not under any compulsion to confess. But it has been decided that consent will not confer jiu-isdiction, particularly as to the' Subject matter to be determined. 8 John. Rep. 409; 13 id. 218; 14 id. 432; 17 id. 471. Where jurisdiction is unqualifiedly withheld,, even consent or the confession of a judgment will not render the pro-ceedings valid, though it would take away a mere error. See the-case of an executor confessing judgment, in 3 Caines’ Rep. 129; and so where a justice, by consent, tries the title to land. Griffith’s Treat. 19, 20; Cowen’s Treat. 11; 6 Wendell 465.

The statute in question, after giving jurisdiction over certain actions by process as well as by confession, provides that the justice shall hear, try, and determine the same. Rendering judgment is a judicial deter-ruination upon the facts presented, and is to be made as well upon a confession of judgment as upon hearing the proofs and allegations of the parties.

Certified accordingly.


author: Whipí>x,é', J.

text:
    Dunn v. Sutliff.
    Surety for coats in a justice’s court, in oaso of appeal, is liable for ooste in tho appollato court.
    A submission to arbitration of tlie subject matter' of a suit is a disoontinuanoe of the suit, and discharges the surety for costs.
    Case reserved from Wayne Circuit Court, Assumpsit. Defendant became surety for costs in a justice’s court for one James Sutliff, in a suit brought by Sutliff against Dunn, the plaintiff. Sutliff recovered judgment-for $40 damages and I13..20 costs, before the justice, and Dunn appealed to the circuit court. Pending the appeal, the parties entered into an agreement to submit the subject matter of the suit to arbitrators, under the statute, and the arbitrators, after hearing the parties, awarded, “ they found for Dunn judgment for costs.” Judgment was afterwards rendered by tbe circuit court on the award,, in favor of Dunn for his costs, and an execution was taken out on the judgment and returned unsatisfied. These facts appearing on the face of the plaintiff’s declaration, the defendant demurred, and assigned as causea of demurrer : 1st. That the security taken before the justice did not follow the case on appeal into the circuit court. 2d. That the judgment before the justice in favor of James Sutliff discharged the surety. 3d. That if the security followed the cause into the appellate court, the arbitration discharged the liability of the surety. The plaintiff joined in demurrer, and the questions arising upon the record were reserved for the opinion of this court.

      jBackus, in support of demurrer:

      HcCrbaugh, contra.
   Mf tfie court,

Whipí>x,é', J.

The first qúbstich to be determined is, Whether th'e security taken before the justice, followed the case on appeal to the circuit court. This question must depend upon the Construction of the' 68th se'e. of the Justice’s Act of 1841, which is in these Words: “Any justice of the peace may ik all actions, either before or after issuing of process, require,, at Ms discretion,, security of the plaintiff for costs; and tlie person giving’ sitcK security shall sign a memorandum in writing to that effect, which the said justice shall keep as a part of .the record in the case;’and in all cases non-resident plaintiffs shall give such security before process shall issue.” It seems to me quite clear, that the security contemplated by this Section embraces all costs which the defendant may recover, either before the justice or on appeal to the circuit court. The statute does not limit the responsibility of the surety to costs which may be recovered in the justice’s court; and we see no reason for restricting the general language iff which the stat-" ute is couched. The surety, when he contracts the obligation contemplated by the statute, is fully advised that the judgment of the justice is not conclusive of the rights of the parties, and that the cause may be reviewed upon appeal. The" appeal; under our statute, takes up to the appellate court the same cause, and is a re-hearing of the cause upon the merits: it is in the nature of a new trial, and the same reasons which require security for costs in the justice’s court, apply with equal' force to the costs recoverable at the circuit, upon a re-hearing.

The second cause of demurrer is, that the security was discharged by rendition of a judgment in favor of the plaintiff before the justice. If we are right upon the first question, this cause of demurrer is not well taken.

The third case of demurrer asserts, that the reference of the subject matter of dispute between the parties, to arbitrators, under the provisions' of our statute, discharged the security. We are of opinion that the legal effect of such a reference was to discharge the surety from his' contract. The reference of the suit and of the matters in controversy _ between the parties, to arbitrators, operated as á legal discontinuance of the cause. By such a reference, the cause was withdrawn from the circuit court, and the whole controversy was committed to a tribunal selected by the parties. To' extend the liability of the surety to costs that may be awarded by the arbitrators, would be to enlarge the contract of the surety, which was limited to such costs as might be recov-’ ered against his principal, either before the justice or in the circuit court,' in the cause originally commenced before the former. The error of the counsel of the plaintiff consists in supposing that the judgment was rendered in the cause which was pending iá the circuit court, when; in' point of fact, no came was pending after tlie agreement to refer to arbitration.

Our Rev. Statutes did not re-enact tbe provisions' of the act of 1833, which authorized the reference, by rule4 of court, of causes pending in courts of record. If that provision had been retained, and the cause which was pending at the circuit had been referred to referees by a rule of court, then the reasoning of the counsel would have been pertinent. The judgment rendered by the circuit court upon the report of the referees, would have been a judgment in the cause originally commenced before the justice, and the liability of the1 surety Would have been unquestionable. As the matter is presented hi the declaration, it is manifest that the judgment in the circuit court was not rendered in the cause so commenced, but upon the award of the arbitrators,- made and returned to the circuit court under the- provisions of oue statute.

If our views be correct upon this point, it becemes unnecessary to express any opinion upon the other questions raised by the' demurrer.

It must be certified to the circuit court of the county of Wayne, as the opinion of this court, that the demurrer to the plaintiff’s declaration should be sustained,

Certified accordingly.


author: Whipple, J.

text:
    Malonny v. Mahar
    The oath required to bo taken by a collector of taxos (sec. 9, eh. 4, tit. 5, part 1, R. S.) on returning lands on Which the taxos have not been paid, may be administered by the deputy county treasurer, in the absence of the treasurer from his office.
    Case reserved from Washtenaw Circuit Court
    Hawkins, for plaintiff.

      Kingsley and Morgan, for' defendant-
   By the court,

Whipple, J.

Tbis cause comes before tbe court upon-a motion made by tbe' defendant for a new trial, and which was reserved for our advice by the presiding judge of. the circuit court of Washtenaw county.

The determination of the question, upon which the motion is founded, must depend upon the true construction of sec. 9, chap. 4, tit. 5, part 1, Rev. Stat. That section is in these words: “ If any of the taxes mentioned in the tax list annexed to his warrant shall remain unpaid, and the collector shall not be able to collect the same, he shall deliver to the county treasurer an account of the taxes so remaining due; and upon making oath before the county'treaswer, or in case of his absence, before any justice of the peace, that the sums mentioned in .such account remain unpaid, and that he has not, upon diligent inquiry,” &c. By the provisions of sec. 22, chap. 3, tit. 8, part 1, Rev. Stat., it is providedil that the county treasurer may appoint, a deputy, who, in the absence of the treasurer from his office, or in case of a vacancy in said office, may perform all the duties of the treasurer.’' The conditions of the bond required to be given by the treasurer, make him responsible for the acts of the deputy. The case shows that the oath was administered by the deputy, in the absence of the treasurer from his office, and that the jurat is in the following words: “ Sworn and subscribed before mo this 8th day of February, A. D. 1839.

Volnet Charin, treasurer of Washtenaw county,

By D. T. McCollum, deputy.”

It is to be kept in mind, in giving a construction to these provisions of the Rev. Stat., that they are embodied in one act, and must be construed with reference to that fact. If the provision last quoted stood alone, and disconnected from sec. 9, of chap). 4, no doubt could arise in respect to its construction. It contemplates that the'deputy, in the absence of the treasurer from his office, may perform all the duties of the treasurer. The case shows that the treasurer was absent from his office when the oath was administered by the deputy. The authority, then, to administer the oath, cannot be doubted, unless the general powers .conferred upon the depraty are restricted by sec. 9 of chap. 4, which provides that the oath may be administered by the treasiuer, ór ’ in his absence by a justice of the peace. Does the language of this section conflict with that which confers the general authority upon the deputy to act in behalf of his. pn-incipal? In the construction of statutes, it is a fundamental rule, that eonrts are to search for and give effeet to the intention, of the legislature; and that in giving a construction to an act, courts should strive to give full force and effect to all its parts. A strict construction of the 9th sec. of chap. 4 would seem to restrict the general powers conferred upon the deputy by the provisions of sec. 22, chap. 3. But was such the intention of the legislature ? After a careful examination of those provisions of the Bev. Statutes to which we are to look in arriving at a conclusion as to. what that intention was, I am led to the belief that no restriction was intended to be imposed upon the general powers so clearly conferred upon the deputy treasurer. It was contended in argument, that, as the legislature had provided in express terms that the oath should be administered by the treasurer, and in his absence by a justice of the peace, it followed, ex ni termini, that none other than the treasurer or a justice could administer the oath. This argument would be conclusive if the section which requires the oath to be administered by the treasurer or a justice, was to be construed irrespective of other provisions which axeinpari materia.

But in the interpretation of statutes, we are to take into view all such parts as relate to the same subject. Applying this rule to the various provisions relating to the question" before us, I am unable tot perceive why they may not be easily reconciled. It does not neoessarily follow, that any restriction is or was intended to be imposed upon the general powers of the deputy, because a duty devolved upon his principal might be performed by a justice of the peace'. The strict construction contended for by the plaintiff would have the effect to limit the meaning of the section which defines the general powers of the deputy. It is admitted that this court must so limit the general language used in sec. 22, unless we are enabled, by a reasonable and common sense construction, to give full force and effect to the two sections which it is said conflict with each other. But is there anything which authorize^ a justice to administer the oath required by see. 9, inconsistent with the provisions of sec. 22 ? I am unable to perceive that the authority to administer the oath by the justice, clashes with the authority previously given to the deputy: by one provision of the act, general powers were conferred upon the deputy, which would necessarily include that of administering the oath required to be taken by collectors upon making their returns of unpaid taxes: by another provision, the like power is conferred upon justices of the peace. In adopting sec. 9, it would have been unnecessary, in so many words, to confer upon deputies tbe authority to-administer the oath, inasmuch as, by a previous section, that authority is expressly granted. By this exposition of the two provisions, full force and effect is given to each^ without violating any rule of construction with which I am familiar. I have no doubt that this view of the statute Mfils the intention of the legislature, without doing- the least violence to the language by which that intention has been manifested. It is hardly credible that an authority like that contemplated by sec. 9, should constitute an exception to the general authority with which the deputy has been vested by a previous section. The form of the oath is prescribed in the section, so that the duty devolving upon the person by whom it is administered is merely ministerial. No reason was or can be given why the dep>uty should be prohibited from performing a duty so simple,- and yet be permitted to perform other duties much more complicated, and exacting the exercise of gj-e§t care and discretion.

The administration of the oath, then, by the deputy, is in law the administration of the oath by Ms principal ; for the act pf the deputy, witMp the scope of his powers, is the act of the principal, the deputy being the mej-e agent pf Ms principal. So that the j-equisitions of sec. 9 are fully satisfied if the deputy performs the duty it enjoins uppn the treasurer.

The construction I hayo gjven to the statute is the construction which it has received by the executive department pf the state government, and by the county treasurers, ever since the R. S, went into operation, and its correctness has never, up to the present time, been ques: tipned. TMs construction has become universal, and we are not disposed to disturb it at this time, without stronger reasons than were uj-ged by counsel upon the argument. It has become, to some extent, a rule of property. - Many titles depend upon it, and in this view it is important fo siistain the acts of the deputy, unless his authority to dp the act complained of is manifestly against law. TMs I have endeavoured to show is not the case.

In conclusion, we think that the deputy treasurer had, by a fair and reasonable construction of the statute, the authority to administer the path required by sec. 9; and that this construction having been uniformly given to the statute by the state and county authorities, we have the right, even if the statute were doubtful, to invoke the aid of the legal maxim, communis error facit jus, and sustain his authority.

It must be certified to the circuit court of Washtanaw county, that it is the opinion of this court that a new tidal be granted.

Certified accordingly.


text:
    Welch v. Frost et al.
    A justice of the peace who receives uncurrent or depreciated hank bills of a con - stable, and gives a receipt for the amount on the hack of the execution, is liable for so much money to the judgment creditor, in an action for money had and received, after demand and refusal, who is not restricted to the remedy given him by statute on the justice’s bond.
    Error in Lenawee Circuit Court. Assumpisit by Frost and Galo against Welch, for money had and received. On the trial it appeared Welch was a justice of the peace, before whom a judgment had been recovered by Frost and Gale against one Miles, on which an execution had been taken out and delivered to a constable, and that the constable had received of Miles on the execution, in part papunent of it, bills of the Erie and Kalamazoo Rail Road Bank, which he paid over to Welch, who receipted the amount on the hack of the execution. Frost and Gale afterwards demanded of Welch the amount of money mentioned in the receipt, when he tendered them the hills he had received of the constable, which they refused to aceeprt. Y/lien the hills were ¡receiyed by the justice, the proper of the hank was in circulation to some extent as money, but was not equal to specie. The court charged the jury, that a justice of the peace who had received money on a judgment rendered by him, was liable for it to the judgment creditor, jn an action for money had and received, after demand and refusal; .fhat in receiving money on a judgment, the justice acts under the law, as agent for the judgment creditor, with limited powers; that he is authorized to receive in payment the constitutional currency of the country only, and that if he receives depreciated bills and discharges the judgment, lie renders himself liable for the amount. The defendant excepted to the charge, and a verdict having been returned against him,, and judgment entered upon it, he sued out a writ of error.

      Bills, for plaintiff, in error.

      Beaman, for defendants, in error.
   By the court,

Wing, J.

The plaintiff in error insists he is not liable to the common law action of assumpsit, for money had 'and received by him as a justice of the peace: that it is only by statute such an office is created, and that the statute prescribes the duties and determines the liabilities of justices.

The Revised Statutes, page-67, sec. 57, provide that justices of the peace shall give a bond before entering upon tbe duties of tbeir office. The condition of the bond is prescribed, and is, “ if the justice shall pay to each and every person, during his continuance in office, such sums of money as he shall become hable to pay for or on account of any money which may come into his hands as a justice of the peace, &c., the bond shall be void.” Sec. 58 provides, that “if any justice shall make default in the condition of said bond, it shall be competent for any person to whom such justice shall become liable, by a breach of said condition, to sue such justice and his sureties, or any of them, in assumpsit, and declare against them generally, for money had and received to the use of the plaintiff; and if the plaintiff establish his light to recover, he shall have judgment for principal, interest and costs, according to the condition of said bond; and on the trial a, certified copy of the bond-shall he competent evidence to prove the contents and execution of said bond.”

On the trial, no allusion was made to the bond of the justice. The' action was not founded upon the bond, and if it had been, plaintiff in: error insists that no money was-received by him; that the defendants, in refusing to receive the' hills, have denied that any money was received, it being proved that the bills received by plaintiff were offered to the defendants: that the' judgment was not discharged by the receipt of the bills. Plaintiff admits, that if a justice receives anything else but money of a defendant, and discharges a judgment, he is liable to the plaintiff in the execution, but only in the form prescribed by the statute. If he receives uncurrent money, he is liable to an action on the case: if he receives money and refuses to pay over, he is liable under the statute for money had and received, in which case the bond must be proved, and a breach of its condition shown; and that if Miles ivas released, it was by the act of the constable, as he received the bills, and plaintiff received them of the constable as a mere" naked bailee, and liis receipt does riot preclude him from showing that money Was not fbceived.

The defendants insist that this case must be gbvémed by the decision of this court in the case of Heald v. Bennett, 1 Doug. Mich. Rep. 513.

In this case the plaintiff appears to’ lay some stress upon the fact that the judgment was not dfi&harge’d.' In the case cited the justice entered upon his doCkeÉ, “ Received in full; execution returned satisfied.” In this case diere is no proof of an entry in the justice’s docket of any amount paid, but I do not perceive how it can vary the effect of the receipt that it was indorsed upon the execution. Proof of a receipt in full, or of a part of the execution, indorsed upon it by the justice, would be equally effectual as a defence to the defendant in the judgméht, as' proof of the same receipt on the docket. Neither do I perceive -why the'payment of a part, and a receipt for it indórséd on the execution, is not as effectual, pro tanto, as 'a receipt for the whole and an entry of satisfaction by the justic'e. In neither ease could the móncy be Collect-' ed again of the defendant in the execution, supposing money to have been paid. In the case cited, the properly of the defendant in the execution was levied upon and sold by a constable, and he chose to receive in payment therefor, uncurrent and worthless bank bills. The levy upon and sale of the property to the amount of the debt discharged the defendant. Tlie constable is coimriárided to' make the money ón the elxecütióri'he Cannot" levy if tlie money is tendered to him, and therefore a payment is, equally Aith a sale of defendant’s property, a discharge pro tanto. In making the payment, the execution debtor pays bank bills, which ordinarily pass current as money. A tender of current bank bills to the constable would protect the defendant in the execution against the creditor, unless they were refused as not being-constitutional money. Such a tender would be good to a creditor,- arid' why not to a’ constable ?

If it is true that a payment to an officer of bills (not spurious) which passed in the community as current or passably current, would not pro! tect the 'execution debtor against further execution by his execution creditor for the amount the bills were depreciated below the standard valúe in dollars, then would not any execution ’debtor feel saféj and especially if the transaction occurred in 1841, as the currency was then, I know of no such case in which the creditor has been permitted to sue óút a new execution. It would be otherwise if the constable should receive a promissory note dr property of anykind other than money or bank bills. If this reasoning is not correct, and if in any case the execution creditor is not barred from taking out a new execution because the constable has not received from, the debtor money, but something else, and indorsed the amount on the execution or discharged it, yet the execution creditor may resort to the constable for money to the amount indorsed as received. By suing the constable, the creditor ratifies the act of the constable. By considering- the transaction as a payment, and demanding the money, he loses his remedy over against the execution debtor, and may maintain his action against the officer foi- money had and received. Armstrong v. Garrow, 6 Cowen 465.

If I am right in these views, the fact that there was a sale of the execution debtor’s property in the case cited from Douglass does not in principle distinguish it from this case. In that case, though the debt- or’s property was taken and sold, so far as the justice was concerned, he received the bills from the constable as in this ease, so that the position of the plaintiff in this casé is the same as that of the justice in that case; íf the wrongful act of the constable in that case was no protection to the justice, neither can it be in this case. In both cases the justice received bank bills, and is held responsible to the judgment creditor bei cause he, as the agent of the creditor, receipted so much, mbney, and has taken upon himself the responsibility of discharging the debt so far forth.

. I do not regard the statute as having any bearing upon this case.’ The bond of the justice is intended as additional security to those whose money may come into his hands; and a remedy may be had upon the bond against the sureties. But if the creditor chooses to resort to the justice alone, it was not intended to restrict him to an action upon the ' bond. In what way would such á proceeding benefit the justice?’ In' bo possible way that I can see. The remedy at common law is not ex-eluded by the statute. The statute recognizes a liability, or a possible liability, for which the justice and his sureties are to respond. It i» upon the common law responsibility that this action is brought.

Judgment affirmed*


text:
    Manning v. Drake and others.
    ifémuirér to tiH in Chancery.
    MaaS;’ J.,- delivered the opinion of the oourt, of which the following is an ah; Btraot:
    "Where the discovery sought by a bill can only bo assistant to the relief prayed, a; ground of demurrer to the relief will also extend to the discovery; but if the discovery have a further purpose, the complainant may be entitled to it, though he has no title to the relief.
    Facts essential to the complainant’s title to maintain his bill and obtain the relief, must be alleged positively, and cannot be inferred from other facts stated.
    Accordingly, where a bill filed by a judgment creditor’ to reach land alleged tó háve'been1 fraudulently conveyed to C by his'debtor, set forth the convey-1 anee- and alleged that the debtor afterwards continued in possession the same os before, and as he from tíme to time sold parcels of the land, deeds were executed by C to the purchasers, or tó the debtor and then by Mm to the purchaser, hut contained no direct averment that at the time of the alleged fraudulent conveyance the debtor had or pretended to have any interest in the lands-It was held bad on general demurrer.
    'An averment that A and B were appointed" and acted' as administrators, without alleging that they accepted the trust, is a sufficient allegation that they were administrators.
    A hill filed hy a creditor against the administrators of Ms deceased debtor, and others, to set aside a fraudulent conveyance of land made hy the deceased in his life-time, so that the land might he available for the payment of his debts, is not witMn B. S. p. 288, sec. 10, prohibiting the commencement of suits against administrators within one year after their appointment, &c., the land not being assets in the hands of the administrators,
    ■Where a debtor makes -a voluntary conveyance of proporty in fraud of Ms creditors, to one who afterwards becomes bankrupt, the creditors of tho grantor will he entitled to the proporty for the payment of their demands as against the assignee of the bankrupt.


text:
    Parks v. Goodwin & Hand.
    Where, between the argument of a cause in error and the decision of the court affirming the judgment, the debtor has-been discharged in bankruptcy, on motion the court will grant a perpetual stay of execution.
    Motion for a perpetual stay of execution. Goodwin & Hand recovered a judgment in tbe circuit court of Oakland against Parks, wbo sued out a writ of error from this court, which affirmed the judgment of the circuit court. Between the argument of the cause and the decision of the court affirming the judgment, Parks was discharged in bankruptcy, and now moved for a perpetual stay of execution on the judgment.

      Paries, in person.

      Knight, contra.
   By the court,

Whipple, J.

If a party is sued uppn a claim or demand, from winch he has been discharged by a decree of bankruptcy, he must avail himself of the discharge by an appropriate jilea: if he fails to do this he may be made liable, notwithstanding his discharge. The mode in which a jiarty may avail himself of such a defence, is fully jiointed out in the bankrupt law. The act, however, makes no provision in respect to a case situated as this is. The party had not been discharged when called upon to jilead to the assignment of errors. The case had been argued upon the issue made uji between the parties, and submitted to the court for decision. After such agreement and submission it was too late to interpose a jilea: nothing remained ■ to be. done but to pronounce judgment upon the issue between the jiarties. But when the judgment of this court was pronounced, he had been discharged from the judgment rendered against him by the circuit court: that judgment had been Jiaid and discharged by operation pf.law/ The defendant in the court below having been thus discharged, it would seem proper that some' mode ought to be' devised by tvbich effect should be given to his discharge. Had he been present when the ojiinion of this court was announced and entry of affirmance directed, and suggested his discharge in bankruptcy, this court would either have suspended its judgment, or, having directed the judgment of the court below to be affirmed, would at the same time have ‘given the party’'the rights seciu-ed to him by his discharge, and directed a stay 'of.proceedings. Situated as this cause was when the decree in bankruptcy ivas granted, it woidd seem to me the course pursued was the approjiriate one. The cause having been argued and submitted, it was proper for the court to give judgment, reserving to the bankrupt the right of availing himself of the benefit of his discharge when aii attempt should be made to enforce the jiayment of the judgment by execution. It is very true that thb judgment in this case was a debt created subsequent to the discharge of the bankrupt; but the debt was founded upon a judgment from which the defendant in the court be-’ low had been discharged: the judgment had, in contemplation of law,' been paid and satisfied. Suppose, after the cause had been argued and submitted, the plaintiff in error had paid and satisfied the judgment below, and obtained a discharge from the same, this court would .not hesitate to direct a perpetual stay of execution, although the judgment below was affirmed; and yet, the debt created by the judgment rendered in this court had not in fact been paid, but the judgment in thq court below, upon which the judgment of this court is based. This is but the exercise of an equitable power over its own judgments, which comts of law possess. The case of Bostwick v. Dodge, 2 Doug. Mich, Rep. 331, decided by this court in 1846, is an authority to show tha| this power may be exercised in a proper case. Dodge had obtained a, judgment against Bostwick in the circuit court: Bostwick removed the ease to the supreme court by writ of error. Iiis counsel not having received advices from his client, proceeded to argue the cause in the supreme court upon the issue made in that court. The judgment below was affirmed, when Bostwick applied for an order to stay the execution, upon the ground that he had been discharged hi bankruptcy after the sueing out of the writ of error, and before errors were, assigned, apd the case argued, and that he did not think it necessary to take any further stepis in the case, or advise further with his counsel.

’ We think if the court could rightfully stay the process in that case, it may in the case before us.

Motion granted.


author: Miles, J.

text:
    Root et al v. Barnes.
    A certiorari will not lie to remove proceedings lad before a justice of tie peace, under B. S. 1838, to determine whether a mill pond is unhealtlful and productive of disease by reason of tie decay of standing, lodged, or fallen timber.
    Certiorari to a justice of the peace to remove proceedings before, him, under ch. 8, tit. 4, part 3, R. S. 1838.

      Farrand c& Higby, for plaintiffs, in error.

      J>, Johnson, for defendant, in error.
   By the court,

Miles, J.

The defendant in error, Edward M. Barnes made a complaint in writing to P. 0, Lawrence, Esq., a justice of the peace of the county of Jackson, that the plaintiffs jn error wore the proprietors and occupants of a ipill situated in th,e township of Leoni, in that county; that the pond to the mill was unhealthful and produce five of diseases by reason of the decay of a large quantity of standing, lodged and fallen timber within the bounds of the mill pond; and that the pond or a large portion of it was situated in said township. R. S. 1838, sec. 6, p. 535.

Upon this complaint being lodged with the justice, he proceeded to issue a notice, and to empannel a jury for the trial of the same. Two of the persons named in the complaint appeared and contested the matter before the justice, and took various exceptions to the regularity of the proceedings, which being overruled by the justice, they have assigned for error in this court, upon a removal of the proceedings in the case by certiorari.

The statute under which the proceedings in the case were had, R, S, 1838, p, 535, sec. 6, provides that “it shall be lawful for any resident of a township in .which a mill pond is situated, to make a complaint in writing against the proprietors or occupants of such mill to any justice of the peace in such township, that such mill pond is unhealthful and productive of diseases by reason of the decay of the standing, lodged or fallen timber, whereupon the said justice shall issue a venire facias io the sheriff or any constable of the county, to summon twelve disinterested men, who shall be freeholders and residents of the county, and said officer shall within a reasonable time summon the jurors to appear at the time and place mentioned in said venire, for the trial of such complaint, Provided, that before the venire shall issue, satisfactory .security for the defendant’s costs shall be given to such justice: And .provided also, that six d,ays at least before the time of issuing such ve-: ñire, a 'written notice of said complaint being made, signed by the justice, shall be served on the proprietors or occupants of such mill, so that they may be present at the time of selecting the jury; and such jury shall be selected by writing down the names of twice the number wanted, and each party may strike off six, and the names of the remaining twelve shall be embodied in the venire to try the cause.

The next section provides, that “ if upon the trial of such complaint the jury, after being sworn or affirmed to try the matter of such complaint; Uhd after hearing the testimony, if any be offered, shall determine said mill pond unhealthful or productive of disease, and that it' arises from the decay of standing, lodged or fallen timber in said pond; the justice shall record such determination on record, and if thereafter the proprietor or proprietors, occupant or occupants, shall neglect' or rehise to remove such standing, lodged of fallen timber from such pond, it shall be lawful for any horrseholder resident of the township to prosecute such proprietors or occupants before any justice of the peace of such County in an action of debt, and Stich householder is authorized to give in evidence the determination of the jury aforesaid, and upon the evidence thus produced, judgment shall be entered for a sum not exceeding the penalty Sained in the 5th section of this chapter.”

The ¿th section referred to makes it the duty of all proprietors of mills within this state to clear their mill ponds of all standing, fallen or' lodged timber, upon complaint made to them by any justice of the; peace of the township where the mill is situated, that the mill pond has' been determined unhealthful and productive of diseases in the manner before mentioned; and for every neglect a penalty of not more than-$150 is made recoverable in an action of debt, by any person who shall sue for the same.

No provision is made in the' statute' for reviewing the proceedings' thus had.

A certiorari lies in all judicial proceedings in which a writ of error does not lie, and does not lie to' retnove any other than judicial áets. Tomlin’s Law Die. title Certiorari, p. 299.

In the case before us, the justice does not appear to have acted judi-' dally.

This seems to be a preliminary proceeding to lay the foundation for an action of debt, to recover a penalty for non-compliance with the' provisions of the 5th sec.' of the act. “ The justice has no order tO' make, no judgment to give, no judicial act to perform.” Pugsley v. Anderson, 3 Wend. 468; 17 id. 15.

It will be time enough to question the validity of these proceedings when the action is brought to recover the penalty.

Certiorari dismissed.