author: Christiancy J.

text:
    In the Matter of the Appeal of Merchant H. Goodrich, Administrator of the Estate of Harrison W. Goodrich, v. Joshua G. Leland, Administrator of the Estate of Chauncey S. Goodrich, Jr.

      Partnership: Mortgage; Individual liability; Statute of Limitations. Harrison W. and Chauncey S. Gobdrich, Jr., in September, 1852, borrowed money of one Fasqiielle, and gave him a note or contract under seal for the payment of the same, and which fell due in September, 1865.
    The said note was secured by a mortgage of same date, executed by Goodrich, Sr. and wife, to secure the payment of the same.
    Goodrich, Jr., died previous to May, 1862; Harrison W. died in 1864; Goodrich, Sr., died in the life-time of Chauncey S., Jr. and devised to him the premises mortgaged, to secure the said debt.
    The mortgage was foreclosed, and the premises sold September 10, 1860, for $1,242 75; May 10, 1862, the administrator of said Chauncey S., Jr. redeemed the premises hy paying the amount due. Subsequently he presented his claim lor one half of the said amount against the estate of said Harrison W. for contribution, and which was allowed by the commissioners.
    On the trial of the appeal, the administrator of the estate’ of said Harrison W., offered to show.that said Harrison W. and Chauncey S., Jr. were partners with one Cornelius D., at the date of said note; that said money was borrowed with the knowledge and consent of the partnership, and used for partnership purposes; that said partnership was unsettled and debts due. This was refused, and a verdict rendered for the amount of the claim.

      Meld, that Goodrich, Sr., must be regarded as having executed the mortgage at the request of Harrison and Chauncey Goodrich, Jr., to secure their debt, of which the note was evidence. Had he been living at the time of the redemption and had paid the mortgage, he could have sued them for money paid for their benefit, and Chauncey S., Jr. being the devisee of the mortgaged premises stood in the right of the devisor, and was entitled to recover for the half of the redemption money paid by him as for so much money paid for the use of Harrison W. Goodrich or his estate.

      Meld further, that the action was not barred by the statute.
    The action arose from the time of redemption, and not from the time when the original creditor’s right of action accrued against the debtors, on the note-.

      Held further, that the .note being under seal, an action of debt could have been brought upon it at the time the claim was allowed.
    In the absence of any proof that the condition of the estate did not warrant the administrator to redeem, the court will presume that, in redeeming, he acted in the proper discharge of his duty.

      Heard April 6th.

      Decided April 13th.

    Error to Washtenaw Circuit.
    This was an appeal by Merchant M. Goodrich, executor of H. W. Goodrich, deceased, from the decision of commissioners allowing a claim in favor of tbe administrator of C. W. Goodrich, Jr. deceased.

      It appeared that Harrison W. Goodrich and Chauncey S. Goodrich, Jr. September 11th, 1862, borrowed thirteen hundred dollars of John Lewis Fasquelle, for which, they gave a note or contract, under seal, for the payment of said sum and interest, by instalments; the last of which fell due September 11th, 1865. This note or contract is also executed by Ohauncey S. Goodrich, Sr. and his wife; but it is therein expressly declared that the two latter named persons sign merely-to give their assent to certain stipulations, and the release therein referred to (in reference to entry of judgment, and release of errors), and not to be liable to the payment of said .Fasquelle. This note, or contract, also refers to a mortgage of the same date, executed by said Chauncey S. Goodrich and wife, to secure the payment of the note or agreement. And they (Ohauncey S. Goodrich, Sr. and wife) execute to said Fasquelle a mortgage upon the lands of said Ohauncey S. Sr. to secure the same note or contract. Chauncey S. Goodrich, Jr., one of the real makers of the note or contract died sometime previous to May, 1862, (the exact date the case does not show.) Harrison W. Goodrich, the other real maker of the note (and with Chauncey S. Jr. personally liable for its payment,) died September 10, 1864. Chauncey S. Goodrich, Sr. the mortgagor, died in the lifetime of Chauncey S. Jr. and devised to the latter the mortgaged premises, which was then subject to a part of the debt secured by it.
    The mortgage, by assignment, came to the hands of Sarah H. Goodrich, who foreclosed it, and sold the mortgaged premises, September 10, 1860, for $1,242 75.
    On the 10th day of May, 1862, the administrator of Ohauncey S. Goodrich, Jr., (the devisee of the mortgaged premises) redeemed the mortgaged premises by paying the account due, to the assignee. And for one-half of the sum thus paid the administrator presented his claim against the estate of Harrison W. Goodrich, (who, with him was one of the persons originally and personally liable for the amounts) for contribution, and this claim was allowed by the commissioners to the amount of $736 63.
    On the trial at the circuit, on appeal from this allowance by the commissioners, the administrator of Harrison W. Goodrich, deceased, offered to show that the deceased and Chauncey S. Goodrich, the real parties to the note or contract, were, at its date, co-partners in trade with one Cornelius D. Goodrich; that the money obtained on the note or contract was borrowed with the full knowledge and consent of all the partners, and was used in the partnership business; that the partnership business was yet unsettled, and that there were outstanding debts against the firm not yet paid.
    This offer was rejected by the court. He then requested the court to charge the jury:
    1st. That the appellee (the claimant) could not recover upon the facts in evidence, and the law applicable thereto.
    3d. That the payment made in discharge of the mortgage read in evidence, collateral to the note on which contribution is claimed, is not such payment as entitles the appellee to contribution on the notes.
    3d. That the claim is barred by the" Statute of Limitations, if the jury believe that the payments (admitted by the claimant to be endorsed upon the mortgage, but not otherwise proved) were endorsed on the mortgage only.
    4th. That the voluntary payment by Leland, the administrator of the estate of Chauncey S. Goodrich, deceased (one of the original debtors), there being no legal obligation upon said Leland or the estate he represented to pay said note, is not such payment as would entitle him or the estate to the contribution _claimed.
    All which requests were refused. The jury found a verdict for the claimant for $894 15, upon which judgment was rendered in the Circuit Court, and the case is removed to this court by the administrators of the estate of Harrison W. Goodrich, by bill of exceptions and writ of error.

      Norris & Uhl, for plaintiffs in error.
    1. It was error in the court to exclude the following offered testimony.

      a. That Harrison "W. Goodrich and Chauncey S. Goodrich, Jr., two of the makers and the only real makers of the note, were at the date of the note, co-.partners in trade with one Cornelius D. Goodrich — that the money obtained by and on this note, was borrowed with full knowledge and consent of all the partners, and was used in the partnership business.

      b. That the business of such co-partnership was yet unsettled — at the date of the trial.

      c. That there were outstanding and unpaid debts yet due by said co-partnership.
    Its effect was not to contradict or vary by parol the terms of a written instrument.
    It admits the contract or borrowing, and only seeks to show that in the present relations of the estates of the deceased makers, it would be illegal and inequitable, (and in these and other cases Probate Courts have a species of equitable iurisdiction — People v. Wayne Cir. Judge, 11 Mich. 898) to call upon one of the maker’s estate for any of it — and in any event for only one-third of it, if such should prove to be the relative interest of the several partners and their estates.
    This testimony tended to show that H. C. Jr. and C. were in business together. That H. and C. Jr. borrowed money for the firm and used it for the firm, with the knowledge and consent of all, — (the giving of a note is of no consequence as between these two makers.) Two of the partners die. The partnership matters are unsettled. Its debts are due, and before the partnership affairs are closed and the outstanding debts paid, one partner’s estate calls upon the estate of another (in a suit upon this single transaction) to pay one-half and interest, of this borrowed money, that he has voluntarily paid to protect his private estate. — Fernald v. Danby, 26 Me. 470; Grafton Bank v. Kent, 4 FT. H. 221; 21 Pick. 196; 10 Shop. 166; Tucker v. Peasely, 86 N. H.

    2. The court should have charged the jury that the appellee cannot recover upon the law and the facts. The bill of exceptions gives all the testimony.

      a. There was no formal issue in the case; none ordered by the court and none made; no declaration filed, and consequently no plea filed. — Comp. L. §2940.

      b. There were no sufficient proofs made by the claimant below.

      c. Contribution will not lie, between partners, no settlement having been had, etc. — 1 Pars. Cont. 84; Murray v. Bogert, 14 Johns. 818.

    3. The payment was made by Leland, administrator, without authority of the Probate Court. The note was never presented or proved against the estate of C. S. Gf. Jr. (the mortgage he never made); at least there is no evidence of such proof or presentment.
    The note was not paid in the lifetime of O. S. Gf. Jr. There is no proof of the payment of the note at all. There was a mortgage given by other parties, collateral to the note, and this mortgaged land Leland “ redeemed * * from the sale ” by paying the amount due (after the statute had barred an action upon the note) to the assignee of the mortgage, to protect property that his intestate took by will, subject to the mortgage. Had the administrator authority, by virtue of his office, to so apply the funds of the estate? By this payment wherein has he paid the note or any part of it? — 8 Mich. 84-

    4. The court was asked toeharge the jury that the claim of the appellee was barred by the statute of limitations.

      a. The note was due on the lltli day of September, 1855, and the statute then began to run. No payments were endorsed or proved to have been made on the note.

      The statute will run against this note (or contract) in six years. Also, see allowances made in the matter of estates. — Sigler v. Platt, 16 Mich. 210; Comp. L. § 5370.

      b. The commissioners allowed the claim appealed from, against the estafe of Harrison W. Goodrich, on the 24th day of May, 18C5.

      c. There Avas no proof of payment on the mortgage, other than endorsements by the assignee of the mortgage.— Comp. L. § 5377.

      cl. It is not necessary to plead the statute of limitations, in the matter of claims (and in this matter, with no declaration, no plea could be made,) brought against .estates — ■ the law interposes the statute to protect estates, and throws the burden of proof upon the claimant to show that his claim is not so barred, and in this case the only evidence-offered, to show the claim within the life given it by statute, Avas the written endorsement made and signed by the assignee of the mortgage, on the mortgage, presumably made by mortgagors, who were not personally liable on the note.— Comp. L. §2921/.; Mich. Ins. Co. v. Brown, 11 Mich. 273.

    Conceding that there is proof of the payment of the note or debt, would contribution lie, upon a voluntary payment of this note, made by C. S. G. Jr’s., administrators, after the statute of limitations had barred the claim, before allowance by probate proceedings — in a word, when there was no legal obligation upon the administrator of the estate to pay, which legal obligation' (if it had existed) rested equally upon all the makers ? — --2 Pars, on Bills and Notes, p. 253; 1 Pars, on Cont. p. S3, 31¡..

      Joslin & Bloflget, for defendants in error.
    1. The statute of limitations does not apply. A payment takes the debt out of the statute, no matter Iioav proven, whether by endorsement on a note or mortgage, or receipted without endorsement, or by sworn testimony as to the fact. — 10 N. H. 189 ; 19 Vt. 59.

      2. The appellee is entitled to contribution, whether the payment was voluntary or compulsory.
    3. The payment in this case was compulsory, as the land mortgaged was willed to C. S. Goodrich, Jr. and the mortgage foreclosed, and the right of redemption nearly expired.
    4. The only questions for consideration in this court, arising from the Judge’s charge to the jury, were that the testimony of Achsah and M. H. Goodrich was immaterial, and the refusal of the judge to charge as requested.
    The maker, who paid the note, was entitled to contribution for half the principal and interest, paid with interest from date of the payment, whether the payment was compulsory or voluntary. — 7 Mass. 255; 2 Met. Jfl; 22 B. L. & Bq. 862; 19 Pide. 260; 21 Id. 195.

   Christiancy J.

Ohauncey S. Goodrich, Sr. the mortgagor, must be regarded as having executed this mortgage at the request of Harrison W. Goodrich and Ohauncey S. Goodrich, Jr. (who were the only real debtors), and for their benefit, and to secure their debt. The note or contract for the payment of the money, recognizes the fact that the mortgage was executed for this purpose. Had the mortgagor been living at the time of the redemption, and had redeemed and paid the mortgage to save his land, it would have been so much money paid to the use of Harrison W. Goodrich and Ohauncey S. Goodrich, Jr. the real debtors, for which he might have sustained his action against them had they been living.

The mortgagor’s cause of action would have arisen from the payment made on redemption, and the statute would begin to run upon it from that time, without any reference to the time when the original creditor’s right of action accrued against the debtors themselves, on their note or contract. — Hale v. Andrus, 6 Cow. 225; Lomax v. Pendleton, 3 Cal. 538, 542; Conn v. Coburn, 7 N. H. 368; Odlin v. Qreenleaf, 3 Id. 270; Butler v. Wright, 20 Johns. 367; Davies v. Humphreys, 6 Mees. & W. 153; Rodman v. Hedden, 10 Wend. 498.

If the remedy upon the mortgage, as a lien upon the land, had been barred by the statute before foreclosure, and the mortgagor had afterwards paid the mortgage or allowed it to be foreclosed and the land to be sold, without taking-advantage of the statute, there might be a question whether such voluntary payment would entitle him to an action against the parties originally liable for the debt. But the remedy on this mortgage to enforce the lien upon the land, was not barred at the time of the foreclosure and redemption — even admitting, as urged by the counsel for the plaintiff in error, that the action on the note had been barred in six years from the time the last instalment became due. —Mich. Ins. Co. v. Brown, 11 Mich. 265.

The relation of the mortgagor to the principal debtors was substantially that of a surety for their debt; with this difference from ordinary suretyship, that he had bound his land for the debt, instead of binding himself personally. And the real debtors, after having induced him to execute the mortgage for their benefit, and thus to place his land where it might be taken for their debt at any time within twenty years, cannot, after the land has been thus taken within that period, turn around upon him and refuse to repay the amount, because the personal action of the original creditor upon the paper which they gave him for the debt, has been barred by the statute of limitations.

But the remedy of the creditor against the real debtors upon their note or contract was not barred, as is claimed, in six years from the maturity of that paper. That note — or rather special contract — was under seal; and an action of debt might have been brought within ten years (which had not expired when the redemption took place, or when this claim was allowed by the commissioners). An action of assumpsit only was barred in six years. See § 1 Ch., 165 Comp. L., and compare § 7 of the same chapter with the subdivisions 1 and J of § 1.

Sec. 4550 Compiled Laws, does not compel a party to resort tc an action of assumpsit upon a sealed instrument.

Such would have been the rights and duties of the respective parties, had all of them been still living. Their deaths have not changed these rights and duties, except that they are now vested in or devolved upon their respective executors or administrators.

But the mortgagor dying, devised the mortgaged premises still subject to the mortgage, to Ohauncey S. Goodrich, Jr. And had the latter not been one of the original debtors, bound (with Harrison W. Goodrich) to relieve the land from payment of the mortgage, and had he been still living, and redeemed the land from the mortgage sale, there can be no doubt that he would have stood in all the rights of the mortgagor to enforce payment of the whole amount thus paid against the real debtors. In other words, he would have been subrogated to all the rights of the mortgagor. But, being himself one of the original debtors, jointly liable with Harrison W. Goodrich to relieve the land from this charge; he, in paying the whole redemption money, pays- one half, and only one half, in discharge, of his own personal obligation ; the other half he pays in discharge of the like obligation of Harrison W. Goodrich; and must therefore be entitled to recover of the latter this one-half by way of contribution, as- so much money paid to his use.

' Now it does not alter the case in principle, that his administrator has redeemed after his death; and the redemption gives him the same right to prove the amount against the estate of Harrison W. Goodrich. The mortgaged premises were, by the statute, assets in the hands of the administrator of Ohauncey S. Goodrich, Jr. The condition of the estate is not shown; but in the absence of any showing, that the condition of the estate did not warrant him in redeeming, or that his action was not approved or directed by the Probate Court, we must presume that he acted in the proper discharge of his duty as administrator.

These considerations settle the case in favor of the claimant, unless his right was cut off or affected by the fact (which for the purposes of this case, under the offer to prove, may be taken for granted^) that Harrison W. and Chauncey S. Goodrich, Jr. who signed the note or contract for the payment of the money, were, at the date of the papers co-partners in trade with'one Cornelius D. Goodrich; that the money obtained by the note and mortgage was borrowed with the knowledge and consent of the partnership, and used in the business of the firm, which was still unsettled, and the partnership debts not all paid.

This offer was not to show that the money was borrowed on account of the firm; and such was not the legal effect of the state of facts offered to be shown, in connection with the contracts in writing, executed by the two partners who borrowed the money. The loan was made by the two only, and they alone became personally responsible to the creditor.

Their paper, and not that of the firm, was given for it; and the creditor could not have sustained an action against the firm, nor have rendered them responsible for it, though it actually went into the firm and was used by them. The mode in which it was used or the hands into which it subsequently passed, did not alter the legal effect of the written contract by which it was obtained. — Emly v. Lye, 15 East. 7; Exparte Hunter, 1 Atk. 225; Bevan v. Lewis, 1 Sim. 376; Graeff v. Hitchman, 5 Watts, 454; and see Loyd v. Freshfield, 2 Carr. & P. 325; Smith v. Craven, 1 Cromp. & Jer. 500.

The legal effect of the transaction shown by the papers executed, when taken in connection with the facts proposed to be shown, was to make Harrison W. and Chauncey S. Goodrich, Jr. the borrowers, and only debtors, and the money obtained, their money. If they saw fit to let the .firm have the money, whether in pursuance of a prior or subsequent understanding that it should be so used; this created, when the money was received by the firm, a new and independent contract, between the two original borrowers on the one side, and the firm on the other, by which the two became the creditors of the firm, and the firm became debtors to them for the amount. — ,3 Kent’s Com. (5th ed.) 41 and 42; Story on Part. 134, 140; Green v. Tanner, 8 Metc. 411; LeRoy v. Johnson, 2 Pet. 198; Sylvester v. Smith, 9 Mass. 119, 121; Ketchum v. Durkee, Hoff. Ch. 528; Foster v. Hall, 4 Humph. 346; Ripley v. Kingsbury, 1 Day, 150, note; Jacques v. Marquand, 6 Cow. 497; Foley v. Robards, 3 Iredell, Law, 179, 180; Willis v. Hill, 2 Dev. & Bat. 231; Bond v. Aitkin, 6 Watts & S. 165.

This separate and independent contract, by which the money was loaned to the firm, can have no bearing upon the rights or duties, growing out of the original contract and mortgage by which the money was obtained, nor could it alter their duty to protect the -land from the collateral mortgage given at their request.

The result is that the commissioner and the Circuit Court were right in allowing the claim; and the judgment of the Circuit Court must be affirmed, with costs to the appellee.

The other Justices concurred.


source: Caselaw Access Project

author: Graves J. Campbell J.

license: Public Domain

text:
    Henry J. Buckley et al. v. Great Western Railway Co.

      Common Carriers: "Warehousemen. In the absence of any usage, special circumstances, or agreement, the liability of Railway Companies for goods in warehouse awaiting delivery is that of common carriers.

      Heard April 8.

      Decided April 13.

    Error to Wayne Circuit.
    This was an action brought to recover damages from the Great Western Railway Co., for the loss of certain flour destroyed by fire on the 26th day of April, 1866, while in their depot at Detroit.
    The following is a copy of the declaration:
    “State or Michigan, Wayne County.
    Henry J. Buckley, John Stirling and Frederick Lasier, of the City of Detroit, in said county, as late partners in trade, and doing business under the name and style of Buckley & Co., plaintiffs, by D. C. Holbrook, their attorney, filing this their declaration, as commencement of suit, complain of the Great Western Railway Company of Canada, a foreign corporation, created and existing under the laws of Canada, in an action of trespass on the case.
    For that, whereas, the defendant, before and at the time of the delivery of the goods and chattels to it, as next hereinafter mentioned, was and still is a Common Carrier of goods and chattels for hire, from London, Canada West, to Detroit, Michigan; and whereas, also, the plaintiff, whilst the defendant was such a common carrier, as aforesaid, to 'wit: on the 17th day of April, A. D. 1866, caused to be delivered to the said defendant, and the defendant then accepted and received of and from the plaintiffs three hundred barrels of flour of the plaintiffs, of great value, to wit.: of the value of six thousand dollars, to be safely carried and conveyed by the said defendant from London, aforesaid, to Detroit, aforesaid, and then and there to wit.: at Detroit, aforesaid, safely and securely to be delivered to the plaintiffs, for a certain reasonable reward to the. defendant in that behalf.
    Yet the defendant not regarding its duty as such common carrier, as aforesaid, but contriving and fraudulently intending to deceive, defraud and injure the jDlaintiffs, in this behalf did not, nor would safely or securely carry or convey the said flour, aforesaid, from London, aforesaid, to Detroit, aforesaid, nor there, to wit: at Detroit, safely or securely to deliver the same for them, the said plaintiffs, but on the contrary thereof, the said defendant, so being such common carrier, as aforesaid, so carelessly and negligently behaved and conducted itself on the premises, that by and through the carelessness, negligence and default of the defendant on the premises, the said flour being of the value aforesaid, became and was wholly lost to the plaintiffs, whereby an action hath accrued to the said plaintiffs, to their damage, six thousand dollars, and therefore they bring suit.”
    The jury found a special verdict, and which is set forth in the opinion. The court rendered a judgment for plaintiff.

      Gray é Moran, and T. Bomeyn, for plaintiff in error.
    The declaration in this action is simply for negligence, and consequent loss of goods by the defendants, as common carriers.
    There is no count for delay, and for special damages resulting from it.
    The defendants, if liable at all, are liable for the loss of the goods by their negligence; not for damages for the delay.
    Under the finding of the jury two questions arise:

      a. Are the defendants, in this form of action and under these pleadings, responsible for the loss of the goods by fire, on the ground that their liability as carriers had not terminated ? ,

      b. Are they liable for tbe delay in conveying tbe goods, in consequence of the burning of tbe goods by a fire, to wbicb they would not have been subjected but for such delay ?
    1. If the duty of tbe defendants as carriers bad terminated at tbe time of tbe destruction of tbe flour, then tbe defendants are not liable, as' warehousemen, for a loss by fire, without their negligence or fault.
    2. Tbe liability of tbe defendants as carriers bad ceased, ■and they were responsible only as warehousemen.

      a. Their liability must be determined on tbe principles of tbe common law.
    Tbe defendant below was a foreign corporation.
    No usage is shown to exist as to notice of its arrival, storage, etc. In this respect this case .differs from McMillan’s, 16 Mich. 88.

    No proof was given of the law of Canada.

      b. At common law, tbe liability of tbe defendants as carriers bad ceased.
    Tbe goods bad actually been deposited in tbe warehouse of tbe defendants. This warehouse was situated beyond' their terminus in Canada. Notice had been given to tbe plaintiffs, who commenced to remove tbe flour and took away a part of it, and who might, if they had chosen so to do, have had tbe warehouse kept open and removed the residue before tbe fire occurred, wbicb destroyed' tbe warehouse, without tbe fault of the defendants.

      c. The subjecting the carrier to liability after the transit is ended and the goods warehoused, is opposed to the general principles of law, as laid down by elementary writers, and tbe whole course of modern legislation. — Story on Bailment, § 586j See Ghitty on Gont. J/.88; % Pars, on Gont. (5 Bel.) jpp. Ufi, 188; Angelí, .on Carriers, %818. •

    ■. The statutes of this and of other states, in granting of railroad charters, provide for the substitution of liabilities as warehousemen for that of carriers under those circumstances.
    So does the legislation of Canada. And all our vast lake commerce is relieved by statute from liability from loss by fire, except in case of negligence.

      d. The rule which would hold us liable in this case is opposed to the weight of decisions in the courts of this country.
    The decisions of the state courts are referred to in the opinion delivered in the McMillan case. See argument of counsel for plaintiff, on page 82, and see pages 103, 124.
    As to the United States decisions, see “ The Eddy,” (5 Wallace, Jfi5) which construes the doctrine of Parsons as we contend should be done.) — Richardson v. Goddard, 28 Row. 89.

    We think that the true rule on this subject is that laid down by Chief Justice Shaw, in Norway Plains Go. v. Boston & Maine Railway, 1 Gray, 268.

    The doctrine for which we contend is briefly this: That where usage sanctions it, the carrier may deposit the goods at the termination of the transit in a suitable warehouse. His liability as carrier then ceases, and that of warehouseman commences; that it is his duty also to give notice of the arrival, unless universal usage excuses 'it.
    All the. liability attaching to and protecting millions of property elsewhere, under similar circumstances, remains. This was all the protection ever extended to property carried by water, after it had reached the end of the route, and now by legislation such liability is changed even to goods while on the route and in transit.

      e. In this action (conceding the doctrine of the McMillan case,) the transit had ended by the delivery off the goods. Was there a delivery?
    There was a delivery of a part, sufficient to constitute a perfect delivery on a sale, so as to pass title; sufficient to defeat the right of stoppage in transitu; sufficient to comply With the Statute of Frauds.

      The consignee might have removed them, if he had requested the defendants to keep open after the usual hours.' He elected not to remove a part of them, but actually took away a part, and voluntarily left a part safe housed in a warehouse. Knowing all about the situation of the goods and their arrival in good order and their deposit, he might have insured against the loss of them.
    3. The defendants are not liable on the ground of delay. a. If the goods had been in fact delivered to and accepted by the plaintiff, then no adjudged case or elementary textbook holds the carrier liable.

      b. He is not liable for the remote damages in this case.— Morrison, v. Davis, 20 “Penn. 171; Denny v. N: Y. Dent. R. R. Go. IS Gray, 481; 7 Gray, 86; 2 Greenl. Bv. 250; Angelí on Garr. 201; 2 Red. on Railway,' 6 and 7; Contra, Read v. Spaulding, 5 Bosw. 395; Davis v. Garrett, 6 Bing. 716; Williams v. Grant, 1 Conn. 492; 12 Conn. 410; 4 Whart. 204 ; 8 Saund. 610; SO N. Y. 564, 680 ; 29 Id. 115.

      D. C. Holbrook, for defendants in error.
    The special verdict in this case shows the facts.
    The defendants in error contend, in addition to the ordinary liability of a common carrier, to keep goods safely a reasonable time after their receipt, that the delay in carrying should also make the plaintiff in error liable in this case. — Reed v. Spalding, 30 H. Y. 680; Michael v. N. Y C. R. R. Id. 564; Wood v. Crocker, 18 Wis. 895 ; 5 Bosw. 895 ; 88 Vermont, 402; Contra, 18 Gray, 481; 20 Penn. St. 171.

    The law of carriers, as to their liability, either as such or as warehousemen, was so fully discussed in the cases of McMillan and others, reported 16 Mich, that a review of all the cases here would be useless.
    The fact that a part of the Sour was delivered, does not alter the case; the same fact was involved in the case of King'v. The M. 8. & N. I. R. R. 16 Mich. Rep. 182.

      The defendants in this case were notified of the receipt, of the flour, at 5-J- o’clock in the afternoon of the 26th April. The business of the day closed at 6 o’clock' p. m., and had the defendants in error not taken any flour away, the court would have held the plaintiff in error liable.
    It would seem strange that, because the defendants in error succeeded after business hours in getting part only, they lose the balance. 300 barrels of flour cannot be moved in the night very well, and there was no expectation that a single barrel would have been touched.
   Graves J.

The plaintiffs by their declaration allege that at the time therein mentioned, the company were- common carriers between London, in Canada, and Detroit in Michigan, arid that being such common carriers, the plaintiffs delivered to them three hundred barrels of flour belonging to the plaintiffs of the value of $6,000 to be .safely carried and conveyed by the company from London to Detroit, and then and there by the company to be safely and securely delivered to the plaintiffs, and that the company did not nor would safely or securely carry the flour to Detroit, nor at the latter place safely or securely deliver the same, whereby it was lost to the plaintiffs.

The company having pleaded the general issue, the jury upon the trial returned a special verdict by which they found that on the 17th of April, 1866, the plaintiffs delivered of their own property to the company at London, three hundred barrels of flour to be transported by the company to Detroit, and then by the latter to be delivered to the plaintiffs, as common carriers; that on the 24th of April the plaintiffs complained that the flour was unnecesarily delayed; that on the 26th of April, in the afternoon, it arrived in Detroit, and was deposited in the warehouse of the company, of which the plaintiffs were notified at half past five in. the same afternoon, and that the plaintiffs then commenced receiving the flour and took away ten barrels a little after six of the same evening, which was the usual hour of closing business for the day at the depot; that it was the custom of the company to keep open after business hours to deliver goods if requested, but such request was not made in this case; that on the night of that day the balance of the flour was destroyed by fire without negligence or fault of the company; that in the ordinary course of business, the company should have delivered the flour in three days after its receipt, and was therefore guilty of negligence in not carrying it from London to Detroit with diligence.

The damages were fixed by the jury at $3,459 44, to be recovered by the plaintiffs, if the court should think them entitled to -judgment upon the facts.

Upon this verdict the court below awarded judgment in favor of the plaintiffs, and we are required to determine whether in this there was error.

The company object to a recovery against them upon two grounds. Firát, that their duty as carriers had ceased at the time of the fire; and second, that the delay in conveying the flour to Detroit, as found by the jury, will not support the judgment.

It is proper to observe that this is a special verdict, formally sufficient, and which we are required to examine according to the settled rules applicable to such proceedings. We are not permitted to assume any facts not therein stated, or to infer any from those found, but must take the finding as the jury have made it, subject however to the allegations in the pleadings. — Street v. Roberts, 2 Sid. 86; Tancred v. Christy, 12 Mees, and Wels. 316; Jenks v. Hallet and Bowne, 1 Caines R. 60; Seward v. Jackson, 8 Cow. 406; McCarty v. Hudsons, 24 Wend. 291; Birckhead v. Brown, 5 Hill, 634-646; Hill v. Covell, 1 Comstock 522; Eisemann v. Swan, 6 Bosworth, 668; People v. Wells, 8 Mich. 104.

A strict observance of the law on this subject was required of the court below, in order to preserve the relative powers of the court and jury; and this court, having in the premises neither original jurisdiction nor authority to ascertain facts by inference, or to presume any not actually found, should sedulously endeavor to avoid any infraction of these rules.

An opposite course would favor confusion of the sepaarate functions of court and jury; would tend to subvert a vital distinction between original and appellate jurisdiction, and would imply an assumption of right in this court to go behind the record to which the law has carefully confined us.

On recurring to the declaration, it is very obvious that the plaintiffs have not counted on delay in the carriage of the flour, while the verdict, when coupled with the pleadings, and .restricted by them, as it must be, denotes very clearly that the real ground of complaint against the company was the non-delivery.

It is alleged in the declaration that the company assumed to carry and convey safely, and, thereupon, safely and securely to deliver; and, if this were taken in the broadest sense, instead of most strictly against the pleader it could not be considered as averring a duty or undertaking to carry within any particular time.

Admitting it to be one of the duties- of the carrier to transport without unreasonable delay, the neglect of that duty could not be a ground of recovery against him, without an averment to express and charge the duty, and the assignment of a breach of it.

I am therefore of opinion that for this reason, without suggesting others, the plaintiffs could claim no right to recover for the negligent delay in.carriage which seems to have occurred-

It remains to inquire, whether a recovery upon this record was authorized on the ground of non-delivery.

The undertaking of the company, as common carriers, to transport the plaintiffs’ flour from London to Detroit, an d to deliver it safely' and securely at the latter place, to the plaintiffs, was distinctly alleged; and the jury as distinctly found this allegation to be true. It was likewise alleged that, by the negligence and default of the company in the premises, the flour was lost to the plaintiffs; and the jury found that the carriage to Detroit took place, but that the flour, after reaching the warehouse of the company at the latter place, was, with the exception of ten barrels, removed by the plaintiffs, destroyed by fire in the warehouse in the following night. These findings, taken by themselves» supported that part of the plaintiffs’ case based on nondelivery, and established a prima facie right in the plaintiffs to recover for the property destroyed.

The flour, according to the record before us, having been received by the company, and apparently in their character of ' carriers, simply for transportation to Detroit, and delivery to the plaintiffs at that place, it was for the company to show that the non-delivery, or the loss at their warehouse, which made delivery impossible, proceeded from causes, or was marked by circumstances, which relieved them from the liability imputed by the plaintiffs.

Having come under the responsibilities of carriers by receiving in that character, and ostensibly in that character only, the property for transportation and delivery, these responsibilities must have necessarily continued until delivery, or the occurrence of some event which the law would consider as sufficient to excuse it.

Recognizing the necessity of meeting the case thus made against them, the company take the position that a circumstance did occur, that an event did take place which relieved them from liability for the loss of the property.

They claim that, inasmuch as the flour had reached their warehouse or depot in Detroit, and had been by them deposited therein, -their responsibility as carriers was by such act exchanged for their responsibility as warehousemen, and in which character of course they would not be liable.

No question arises in the case as to the necessity of notice, as that was, in fact, given, and the verdict contained no facts which will enable us to judge of the effect of the notice, in respect to the right of the company to shift the character of the bailment. It must be assumed that no such facts existed.

That the same party may be both carrier and warehouseman at the same time, cannot be disputed; but the two employments, if carried on by one party, must after all be as separate and distinct in quality as though they were pursued by different parties, and their functions cannot be so commingled as to attach to the same property at the same time.

This is made evident by the diversity of duties and responsibilities of the two employments, and the nature and incidents of the business; and the ground taken by the company that the custody was passed from and by them in the character of carriers to themselves in their character of warehousemen, and that this saved them from liability, is an admission of the ample nature of the distinction.

Indeed, the difference is quite as striking between the' quality of carrier and that of warehouseman, as between a party in his personal capacity, and in that of administrator.

As, therefore, the two characters are completely distinguishable, though belonging to the same party, it seems a necessary result that an engagement or agreement, ostensibly in the one only, does not by necessity imply any engagement or employment in the other also.

The circumstance that a party acts generally as a carrier or being such, assumes in a given case, to handle property apparently in that character only, can no more imply that an agreement has been made with him to deal with the property as a warehouseman, than will an engagement with a warehouseman to store goods imply a contract with the latter to act as carrier. And the agreement by the carrier to transport goods can never by itself involve an agreement with him that he may reduce his responsibility as carrier to that of warehouseman, at the end of his route by deposit in his depot.

Without presuming to question the necessity of applying established principles to those cases to which they are suited, it appears to me that some of the courts in their desire to lay down general rules, have not attended sufficiently to the circumstance that carriers and their customers are still at liberty to regulate by contract, express, or implied, much of the business to be done between them; and that the propriety of the application of this or that legal rule must often depend upon such regulations.

The course to be pursued by the carrier, to shield himself from further responsibility in his quality of earner when the transportation is accomplished, is not the subject of abstract law disconnected from the surrounding circumstances, but is a matter depending upon contract, and to be determined by reference to the express stipulations of the parties, or the varying facts from which, when presented, the law will infer the rights, duties and obligations of the parties.

When the party has taken it upon himself to act in his character of carrier in a given case, it becomes a question for the jury, upon the evidence, or for the court upon the facts when specially found, whether he also obtained the right or became obliged to act as warehouseman also in any stage of the business; and the mere fact that the carrier though a railroad company, possessed a warehousing depot at the end of tlie route, would not suffice to raise the legal inference of a right to shift the characters by immediate deposit in the warehouse, especially if it appear that the carrier was ostensibly employed as carrier only.

'If, when prosecuted for non-delivery to the consignee, the carrier would excuse himself by showing that the property was destroyed by fire, and that the destruction occurred shortly after he had changed the nature of the bailment, and exchanged his character of carrier. for that of warehouseman touching the goods in question, he would have to satisfy the jury that the passage from himself as carrier to himself as warehouseman, was not simply his mere voluntary act, but one either warranted by an express contract, or a contract fairly inferrible from the nature of the business, the known necessities under which it was carried on, the established usage on the subject and the like; and in case of a special verdict it would be necessary that the express contract, if any, should be found, or, if not, that the particular facts should be stated from which the law would infer the right asserted by the carrier.

We have seen that the verdict in this case finds in terms that the company in the particular character of carriers undertook to transport the flour and deliver it to the plaintiffs at Detroit, while no undertaking by them as warehousemen, or any agreement by them in or for that character is found by the jury.

It appears that the company were carriers by rail, and it is shown by the verdict that they had a warehousing depot at Detroit, in which they in fact deposited the flour a few hours before the fire, and that they had a custom to keep open after business hours when requested, for the purpose of making delivery, and these are the only facts in the verdict which can be claimed to warrant the legal inference of any right of the company to cast off their responsibility as carriers by deposit in their warehouse.

The finding that the company undertook as carriers to' transport and deliver, could not imply as matter of law the right claimed by them to change the form of the bailment by their own act of deposit in the warehouse; but in the state of this record such finding would tend rather to exclude tbe idea of an agreement that the company should possess the right to deal with the property as warehousemen or in any character than that of carriers; and it seems to me that the other facts taken by themselves or with those just mentioned, can afford no ground whatever, to infer as matter of law the right claimed by the company. The existence of those facts appears to be quite as consistent with the absence as with the presence of the right asserted, since, for aught that is stated, a delivery at the warehousing depot without the intervention of the character of warehousemen or depository was altogether practicable, easy, and usual, and was alone within the contemplation of the parties. The verdict discloses no usage or other circumstance to justify us in saying that the bailment for carriage included one for storage also, or which, in my judgment, would warrant the inference that the company were entitled to'^relieve themselves as carriers by the act of passing the flour from the cars to the warehousing depot. I think, therefore, that the judgment of the court below should be affirmed, with costs.

Cooley Oh. J. and Christiancy J. concurred.

Campbell J.

I adhere to the opinion which I expressed in the case of McMillan v. Michigan Southern and Northern Indiana Railroad Company, 16 Mich. 79, that the liability of railway companies for goods in warehouse awaiting delivery is that of warehousemen, and not common carriers. As I gave my reasons for this conclusion in that case, and as nothing has been suggested which has in any way modified them, I do not deem it necessary to repeat them. I think the plaintiffs in error are entitled to judgment of reversal.


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    John King Jr. v. Geo. H. Potter.

      Ejectment: Tax Title: Improvements: Description. Under the statute — & Comp. L. f. U60S — permitting the defendant in ejectment, or others through whom he claims, claiming title to lands by a deed of the Auditor General, &c. to recover compensation for improvements made therein, &c.

      Held, That this statute applies only to the lands described in the plaintiffs declaration, and, in the deeds, or other instruments through which defendant claims.
    The identity of the lands claimed by the defendant, with those claimed by the plaintiff in his declaration, must be established by the rules of law and evidence applicable to the instruments under which plaintiff and defendant respectively claim, and which they produce in support of their respective titles.

      Held further, That the plaintiff in this case, having no privity or connection with the defendant or those through whom he claims, and being in no way responsible, either for the description in these tax deeds or the attempt to take possession under them, there is no just principle upon which he can be made to suffer for the mistakes of others through such deeds.
    A party purchasing at a tax sale, as between himself and the owner of other lands, is bound at his peril, to take notice of the description in his own deed: and if he or his grantees make a mistake and go on the lands of others, they must bear the consequences.

      Heard April 9th.

      Decided April 13th.

    Error to St. Clair Circuit.
    This was an action to recover possession of certain lands in St. Clair County.
    The defendant below claimed title to the land described in the plaintiff’s declaration, by virtue of several tax deeds and a sheriff’s deed. He also claimed compensation for buildings and improvements made by him, having been in possession of the premises for six years and more, prior to the commencement of this suit.
    The plaintiff proved his title to the premises by a patent from the United States to himself.
    The tax deeds and the sheriff’s deed contained descriptions different from those in the declaration, and not in accordance with those of the United States surveys, or by metes and bounds.
    The defendant, nevertheless, claimed that if he' went into possession under the tax deeds in good faith, and remained there six years and made improvements he was entitled to compensation under the statute. — 2 Comp. L. § 4,608.

    The jury found that the plaintiff was the owner of the land described in the declaration; that the defendant unlawfully held them — estimated the increased value of the premises by reason of the improvements, at several hundred dollars, and assessed plaintiff’s damages at six cents.

      Mitchell & Farrcmd, for plaintiff in error.
    1. The Circuit Court erred in allowing any questions to be asked or testimony given tending to show that the land could be found in any other than a government description.
    The object of this testimony was to show that the land might have been somewhere else than in “ lot one,” had the government made such other description'.
    The north-west quarter of section nine had never been surveyed or'laid out, and any testimony tending to show that the lot could be found in such a quarter, if surveyed, was improper, and irrelevant to the issue. The government survey and division was the only matter that should govern.
    “If the tract be a subdivision of a section authorized by the United States for the sale of the public lands, it shall be described by a designation of such subdivision, with the number of the section, township and range.” — Comp. Laws, %804, Sub. 2.

    We submit that parol proof cannot be admitted to change or vary the location, or to fix assessed land in any place other than the legal subdivision designated.

      2. The deed from the state- to Davenport, and subsequent deeds transferring that title, were clearly inadmissible.
    There was no such legal subdivision of the section.
    The plaintiff bought lot one. The sale of N. E. £ of N- W. i could not affect his title, as he was not bound to look for such a description. The owner had no reason, and was not bound to look for such a description, in the payment of Ms taxes; and title under a different description must be yoid for all purposes. If the true description is not necessary, the result would be to deprive a man of his property, -without any knowledge by him of any proceeding against it. — Thames Manufacturing Go. v. Lother, 7 Conn. 550; Hubbell v. Weldon, Hill & Denio, 189.

    This kind of description defeats the owner from an opportunity of paying taxes, and the deed is void. — Tollman v. White, 2 Gomst. 67; Blaclcwell on Tax-titles, 128.

    3. All the other tax deeds were irrelevant on the same ground.
    4. The question whether the coiirt erred in admitting proofs of increased value, by reason of improvements, is determined by the decision of the preceding and following propositions.
    5. By the proofs it is clear that the northeast quarter of the northwest quarter was not a proper government description, The plaintiff paid all the taxes he could find assessed or returned against his lands. No taxes were assessed against this or any other land in 1843, on which the taxes were not paid. The northeast quarter of the northwest quarter was not assessed at all, and even if it could be said to cover the land in controversy, the Auditor General’s deed was not founded upon any tax. The re-assessment in 1843, for taxes in 1841, will not sustain the deed,'especially where it appears that there was no tax for the year 1841. There was no delinquent tax as the foundation of a deed. The defendant cannot claim under Section 4,603, of Compiled Laws, that he, or those under whom he holds, entered into and was in actual possession, claiming title by virtue of a sale made by the Auditor General, for non-payment of taxes. To make such a claim valid there must have been some tax, regular or irregular, as a basis of the deed. There was none here. A contrary doctrine would lead to gross injustice.

      6. The court erred in charging the jury that the defendant, and those under whom he claims, having been in possession more than six years, claiming title under a tax deed, when there was in fact a sale made and deed given, he was entitled to compensation; and in refusing to charge the jury, that no taxes having been assessed on the land, and the land not returned as delinquent, &c., the subsequent sale and deed did not make such a title as would entitle the claimant to compensation, &c.
    The question of possession, under a tax title, should have been left to the jury. We reiterate our previous claim, that there must have been some sort of tax assessed and levied.
    “The right to sell is founded upon the fact of nonpayment.”
    Where there 'is no tax due, the deed is void, and confers no title. — Jackson v. Clark, 18 Johns. 441; Jackson v. Hsty,' 7 Wend. 148; 4 Wheat. 79.

      Conger é Harris, and C. I. Walker, for defendants in error.
    1. If one goes into possession of real estate under a claim of title from two sources, viz., one a title from the Auditor General, and the other from, another source, and continues in possession thereof six successive years, and makes improvements, if both of the titles fail, is he entitled to compensation for his improvements under 2 Comp. L. § 4608 ?
    The statute under consideration is founded in the, strongest equity and the clearest justice, and should be most liberally construed to carry out its equitable purpose. —Longworth v. Wolfinger, 8 Ohio, 1; Davis v; Powell, 81 Id. 820; Whitney v. Richardson, 81 Vermont, 805.

    It in substance provides that if one shall be in the actual possession of land for six successive years, claiming title thereto under a deed from the Auditor General, or certain other officers, he shall be entitled to compensation for the improvements made thereon. — 2 Comp. L. § 4608.

    This does but justice to the claimant in good faith, while it does no injustice to the owner of the legal title; for he only pays the actual value of the improvements made.
    If one is in the possession of land, claiming title thereto by virtue of several deeds from different sources, he claims under each of those deeds.

      2. If one goes into possession of lands under an Auditor General’s deed, in good faith claiming title thereto, but the description in said deed is so imperfect or uncertain that no title can pass thereby, and he continue in possession thereof making improvements, can he recover for the value of such improvements under said section 4603 ?
    The descriptions in the deeds from the Auditor General were not in accordance with those of the United States survey, or by metes and bounds, and, for the purpose of this argument, it may be admitted that the land could not be' precisely located thereunder. — Arnberg v. Rogers,' 9 Mich. 882.

    But we insist that if defendant in good faith claimed title by virtue of the deeds, it is sufficient, whether the deeds described the land he occupied, or other land, or, with certainty, no land at all. — Wendell v. Moulton, 6 Most. 41• 4&, 68; Waldron v. Woodcock, 15 Ohio, 18; Bhrol v. Blinker, Id. 152; Beardsley v. Chapman, 1 Id. 118.

    3. If land be sold for taxes, and an Auditor General’s deed be given, is the purchaser, under such sale and deed, entitled to the benefits of section 4603, where the land thus sold and deeded was assessed and returned by a very different description from that by which it purports to have been sold as delinquent for the non-payment thereof?
    There can be no doubt but that one who is in possession of land by virtue of a deed from, the Auditor General, is within the very letter as well as the spirit of the statute, and it is immaterial whether the tax for which it was sold was merely invalid, or whether it was sold by mistake .without any tax whatever, or whether it was sold by a different description from that by which it was assessed.
    The statute was intended to meet every case where possession is held by virtue of an Auditor General’s deed.
   Christiancy J.

By section 4603 Compiled Laws, (being sec. 50 of Ch. 134) it is provided that "when the defendant in ejectment, or any person through whom he claims title, shall have been in actual possession of the premises for six successive years, or more, after this chapter shall take effect as a law, and before the commencement of the action and claiming title either by virtue of, or in opposition to a sale made by any executor, administrator or guardian, or the Auditor General, or any county treasurer, or other person or body corporate authorized by any statute to make sale of land for non-payment of taxes, such defendant shall be allowed a compensation for the value of any buildings and improve-' ments on the premises made by him; or any person through whom he claims title.”

The first question presented by this case is, whether this statute extends to any other lands than those described in the plaintiff’s declaration and in the deeds or other instruments through which the defendant claims title.

It is too obvious to require or admit of argument that the lands " claimed ” by the defendant and of which he has been " in possession,” must be the same or some of the same described in and claimed by the declaration. The statute clearly contemplates their identity, and it cannot possibly be made to apply to any other.

The defendant here undertakes to “ claim title.” under a tax "sale” and deed by the Auditor General. And whenever the defendant “claims title” “by virtue of a sale made by any executor, administrator, guardian, Auditor General,” &c., as such title can only be by deed, we think it clear that, in order to bring a defendant within the fair intent of this statute, the premises to which he thus claims title must be such only as are described in the deed or deeds through which he “claims title,” and that this description must be such as, under the rule of law applicable to the deed under which he claims, are sufficient for the purpose of identifying the land. In other words, this question being one of identity of the premises claimed by the defendant with those claimed in the plaintiff’s declaration, must be decided by the rules of law and evidence applicable to the instruments under which the plaintiff and the defendant respectively claim, and which each produces in support of his respective title or claim. The statute, we think, was never intended to apply to a case where the identity was not thus established.

By reference to the plat, showing the government subdivisions of this fractional section, the correctness of which is not disputed, it will be seen that the section was rendered fractional by the line of the Chippeway Reservation (of which this fractional section is a part) cutting off nearly all of what, had the section been entire, would have constituted the southwest quarter, and a large portion of what would have been the southeast quarter and the northwest quarter, but leaving the northeast quarter untouched.

By reference to the field notes also which were in evidence,' it will be seen that the government surveyor, in surveying and subdividing this fractional section, established a quarter post on the north line at the usual distance of forty chains west of the northeast corner, and that this was chains from the point where the section line extended westward, struck the west line of the reservation; and that this reservation line ran in nearly a southeastwardly direction striking the south line of the section only 20^35%- chains west of the southeast corner.

It will also be seen, that what lay west of the quarter section line, and north of the center line of the section (which, if not otherwise subdivided, would have constituted the northwest fractional quarter) was by the government subdivided, so as to make a lot of twenty chains in width (from north to south) and 27-3s0!V chains along the north section line, and of less length on the south. This lot was marked and numbered on the plat as lot number 1 (one). The balance of, what might have been called the northwest fractional quarter, was included in a lot containing 59^¶- acres, composed in part of forty acres, which, had it not been thus included, would have constituted, and might have been described as the southwest quarter of the northeast quarter. This lot of 59^ acres, was marked as lot number, two, of the fractional section.

Properly speaking, therefore, there was no such government subdivision as the northwest fractional quarter; and in no possible sense was there any such government subdivision as the east or west half or part, or the northeast, or southwest, or northwest half or part of the northwest fractional quarter; nor would any land with sufficient certainty be designated by such description. The premises described in the plaintiff’s declaration, it is admitted, were a part of lot number one, above described. .

By the statute (Comp. Laws, § 804, Sub. 2) — and a similar provision was contained in the previous laws — this land should have been described, in assessing it, and consequently in a deed on tax sale, by the designation of its subdivision according to the public surveys of the United States.

There is no pretence that any of these tax deeds under which the defendant undertook to claim, complied with this provision — most (if not all, but one of them) expressly described the land as situate on the Inortheast quarter or northeast fractional quarter, which, by no physical possibility, could be made to include any part of lot “one,” which was wholly west of that quarter. And no oral evidence was admissible to establish so manifest an absurdity — no evidence being offered to impeach the correctness of the plat.

One of the deeds, however, (that to Ira Davenport) described the land as the “northeast fractional quarter of the northwest quarter of section nine,” &c. Now it is not only clear that there was no such legal subdivision, but that applying this description to the land without reference to its legal subdivisions, the land intended must be wholly uncertain.

But we need not enquire whether this description would be or could be made sufficient, as between an individual grantor and grantee. The legislature have not left us at liberty to adopt any such principle. They have seen fit, in their wisdom, to fix certain rules touching the sufficiency of descriptions for purposes of taxation and deeds on tax sales. And we could not hold that sufficient which they have deemed insufficient.

We have failed to see the force of the argument so ably and earnestly pressed upon us by the counsel for defendant in error; that, though the description does not comply with the statute and is insufficient to pass the title under the tax deed, and though the tax deed described other or different land than those in suit, or, with certainty, no land at all; yet if this defendant claimed the lands in suit in good faith by virtue of the deeds, this is sufficient to give him the benefit of the statute in reference to improvements.

The case of Wendell v. Moulton, 6 Fost. (N. H.) 41, which he cites, has, we think, no bearing upon a case like the present. The plaintiff had given [to the defendant or the person under whom he claimed, a bond for a deed, and afterwards a deed of a portion of a larger tract owned by the plaintiffs. The purchaser had, -with full knowledge of the, plaintiffs, taken possession of a portion which, on survey many years after, was found not to be within the description given in the instrument. Extensive improvements had been made in good faith by the grantee. The possession was open and visible, and well known to the plaintiffs. The improvements were made with his full knowledge and without objection. He, as well as the defendant and those under whom he claimed, was either ignorant of the mistake, or he knew the mistake of his grantee and purposely -led him into the error and the making of the improvements. There was very strong evidence of this fraud. The case was such, that in a court of equity, the defendant would hardly have needed the aid of a statute to secure him the benefit of his improvements. Their statute was much more general than ours. It applied to all defendants in real ^actions, who had been in actual and peaceable possession for six years "under a supposed legal title.” If the plaintiff in that case was mistaken, he seems to have been as much responsible for the mistake as the grantee, and if he acted fraudulently, the whole responsibility was his.

But in the case before us, the plaintiff has no privity or connection with, but is an entire stranger in law to the grantor and the grantee, and in no way responsible either for the description in these tax deeds or the attempt to take possession under them; and there is no just principle upon which he can be made to suffer, or be accountable, for a mistake of the parties claiming under the deed, in taking possession of the plaintiff’s land, or for improvements made against his will, and which, by reason of the situation of other land of his, may, for aught we know be an injury to him, though, when considered only with reference to the particular land improved, the value of that particular portion might be increased.

On the other hand, as respects the question of the good faith of the defendant or those under whom he claims, we think the party purchasing under a tax salé must, as between him and the owner of other lands, be bound at his peril to take notice of the description in his own deed, and to know what land, if any, it describes, and whether it sufficiently describes any. And if the defendants or those under whom they claim by tax deeds, have made a mistake and gone on to the land of the plaintiff, instead of that described in their deeds, it is certainly more equitable that the defendant who has, or claims under, the deed, and acts under it, should bear the consequences or burden of the mistake, than the plaintiff, who is a stranger to it, who has no occasion to know of its existence, and who, if he saw it, would, at the same time, see that it did not affect his land.

As to the argument, that it is just and equitable, as a general rule, to allow the defendant in ejectment, for improvements made by him, it is sufficient to say, the legislature have thouglit otherwise.

This disposes of the present case, and renders it unnecessary to notice the point raised by the plaintiff in error, that the defendant in this case claimed title under an execution sale as well as the tax sales. The effect of such a double claim, as it may bear upon the question of improvements, will be decided in the case of King v. Harrington, argued at the present term, and not yet disposed of.

The judgment of the Circuit Court, so far as it relates to the improvements, in favor of defendants, must be reversed, with costs; and the judgment, so far as it is in favor of the' plaintiff below for the recovery of the land, must be affirmed.

The other Justices concurred.