author: Cooley Oh. J.

text:
    Ira McKinney, Administrator v. Albert Miller et al.

      Assignment of Mortgage: Whether absolute or conditional. Where a party claims to have purchased a mortgage at much less than its real value; and the evidence is not clear whether the transaction were a sale of the security, or only a mortgage of it, slight circumstances will be sufficient to determine the transaction to be a mortgage and not a sale.

      Mortgage not Sealed. The statute which provides that no bond, etc., shall be declared invalid for want of a seal (Comp. L. § 4,550) was intended to give the unsealed instrument all the force and effect that a sealed one of the same tenor would have.

      Satute of limitations in equity. The bar to a remedy in equity has reference rather to the nature of the property to be affected, than to the character of the instrument which may affect it.

      Bill to foreclose a Mortgage : Allegata et probata. Where an assignee of a mortgage filed a bill to foreclose it, and the Court find that the assignment was taken as a security only, such limitation of the complainant’s interest, will not affect his right to maintain his bill on the case he has stated, but goes only to the amount of the decree.

      Mortgagees holding separate securities fen' the same debt. One who holds several mortgages to secure a single debt may foreclose either of them at his option separately until his debt is satisfied.

      Foreclosure sale in parcels : Inversely to the order of alienation. The rule that — where the mortgaged premises have been sold in parcels at different times, that which was first sold shall be last resorted to for the satisfaction of the mortgage — is well founded in equity; and if there be no intervening equities to disturb its application, ought to be maintained.

      Heard July 10.

      Decided October 5.

    Appeal in Chancery from Genesee Circuit.
    Bill to foreclose a mortgage executed by Albert Miller to Cornelius L. Bussell, to secure the payment of three promissory notes amounting to $3,000, upon blocks 19, 20, 22, 24, 25, 34 to 39 inclusive, 41, 57 to 60 inclusive, 65 to 68 inclusive, and parts of 26 and 27 in the village of Portsmouth in Bay County. The bill avers that the mortgagee sold the notes and mortgage to David Bussell for $2,000; — that David Bussell had since died, and that the complainant was his administrator. The mortgagor Albert Miller) the mortgagee Cornelius L. Bussell, Mary Ann Miller and Albert Miller (second), are made parties defendant.

      Defense : — By Albert Miller — That he and the mortgagee, 0. L. Bussell and one Growl, were partners, that the notes and mortgage were made to he negotiated to raise money for the partnership, but that they were not so negotiated : — That on the dissolution of the partnership, the notes and mortgage still being in the possession of C. L. Bussell, he (Miller) agreed to convey blocks 19 and 20 to Bussell and to relinquish all his interest in the personal property of the partnership, and Bussell agreed to pay all its debts :• — That he did convey blocks 19 and 20 according to his agreement: — That if 'Cornelius L. Russell ever assigned the notes and mortgage to David Russell, it was in fraud of his rights : — That Cornelius L., not surrendering the notes and mortgage, he (Miller) filed a bill against him in the Saginaw Chancery Circuit and obtained a decree against him that the notes and mortgage should be delivery up to be cancelled. He alleges that the facts were known to David Russell in his lifetime: — That the notes are barred by the statute of limitations : —That the complainant had sold and conveyed blocks 19 and 20 to “the other Albert Miller” for $11,500:— That Cornelius L. Russell is the son and sole heir at law of David Russell and that the suit is prosecuted in his interest.
    By Mary Ann Miller — denying the existence of the mortgage — insisting upon the decree that the mortgage be delivered up to be cancelled as stated in the answer of Albert Miller; denying the good faith of the transfer of the mortgage to David Russell and claiming to be a purchaser in good faith for a valuable consideration of the mortgaged premises.
    By Albert Miller (second) — denying that the complainant was legally the administrator of David Russell, and the good faith of the transaction between Cornelius L. and David Russell: — insisting upon the decree of the Saginaw Chancery Circuit that the mortgage should be cancelled; and that he had purchased of the complainant Blocks 19 and 20 in good faith for a valuable consideration, the purchase being intended to include the title which the complainant had acquired through sundry mesne conveyances from Albert Miller the mortgagor, as well as the interest he held, if any, as the administrator of David Russell:— That the Blocks so purchased were the first sold by Albert Miller after the execution of the mortgage. And lje claimed that in case the Court shall find that the lien of the mortgage remains, that they should be last resorted to for the payment of the mortgage indebtedness.
    The cause was transferred under the statute to the Gene-see Chancery Circuit and upon the hearing a decree was entered dismissing the bill; from which the complainant appeals to this Court.

      Isaac Marston, and John Moore for Complainant.

      W L. Webber, for defendants (Judge) Albert Miller and Mary Ann Miller.
   Cooley Oh. J.

The bill in this cause was filed in 1866, to foreclose a mortgage, given April 23, 1851, by Judge Albert Miller to Cornelius L. Russell, to secure the payment of three promissory notes of one thousand dollars each, falling due respectively in one, two and three years from the first day of May, 1851. The mortgage covers blocks nineteen and twenty, and also a number of other blocks, and parts of blocks, in the village of Portsmouth, according to the recorded plat thereof, and was duly acknowledged and recorded, but appears not to have been under seal. The complainant alleges that the notes and mortgage were sold by Cornelius L. Russell to David Russell, on or about the first day of December, 1851, and that a written assignment thereof was executed April 24, 1852, which, however, was not acknowledged or recorded until April 26, 1862. David Russell appears to have deceased soon after the last mentioned date, and McKinney, was appointed administrator of his estate in Bay County, Michigan, March 28, 1863, and he claims the whole amount of the notes and mortgage to be now unpaid and owing to him as such administrator.

At the time this mortgage was given, it is agreed on all sides that Judge Albert Miller, Cornelius L. Russell, and one Lyman Orowl were in partnership in the business of manufacturing and selling lumber; the manufacture being carried on, at Portsmouth, under the supervision of Miller and Crowl, and the sale at Cleveland, Ohio, where Russell resided and took charge. It is also agreed that the partnership was then greatly in need of money; and at Russell’s request this mortgage was made by Miller, covering land to which he had, or claimed to have, the legal title, but in which his partners had, — as we think the evidence shows, — an equitable interest, and, at the same time, another mortgage was made by Miller and Growl for fifteen hundred dollars, and the two were sent to Russell, to be negotiated to raise money for the partnership. The parties are not agreed whether they actually were negotiated or not. Russell testifies that after keeping them in his hands for some time, and making ineffectual attempts to dispose of them, he, finally, in December, 1851, sold the two mortgages with the accompanying notes to David Russell, his father, who resided in the State of New York, for the sum of two thousand five hundred dollars, and that he informed Miller and Crowl of the sale, and that they expressed satisfaction with it. All this is denied by Miller, who says he never heard of any such sale, and that on the contrary C. L. Russell, in May, 1852, informed him the mortgages had not been sold, and were then at Cleveland, and agreed to surrender them up to be cancelled. At the time last mentioned the parties agree that the partnership was dissolved by consent; O. L. Russell taking the bulk of partnership property, and agreeing to pay the partnership debts. At the same time, and as a part of the arrangement of dissolution, Judge Miller deeded to C. L. Russell blocks nineteen and twenty, covenanting in the deed that the title was clear, free and unincumbered by any act of the grantor, except as known by the parties” thereto. Complainant produces some evidence to establish the fact that at this time it was understood between Judge Miller and C. L. Russell, that the former was to pay off one-half of this mortgage, but Miller denies this, and gives us to understand that he expected the surrender of the mortgage, and that failing to obtain it according to agreement, he, finally, in March, 1854, filed his bill in Chancery against C. L. Russell, and obtained decree by default, declaring the mortgage and notes null and void. He also claims that it was some years after this decree before he heard of any claim on behalf of David Russell.

This case does not require us to determine the matters in controversy between Judge Miller and O. L. Russell, or to decide whether the latter has at all times dealt honorably and fairly by the former. We are only required to find upon the evidence whether David Russell had become the owner of an interest in this mortgage prior to the dissolution of the partnership of Miller, Crowl and Russell, and if so, what the extent of that interest was, and whether it was in any way affected by the agreement at the time of the dissolution. It is not claimed that any distinct act was ever done by David Russell himself, that would have affected his interest, if he had any; but the defendants insist that the assignment to him was only, colorable, and that even if it was in good faith, the mortgage was discharged by the arrangement which Judge Miller claims to have made with C. L. Russell in ignorance of any such assignment.

Upon this portion of the case the evidence is exceedingly unsatisfactory, and we cannot feel, in any conclusion we may adopt, that entire assurance of correctness that a Court will always desire to make the foundation of its judgments. The evidence of Judge Miller, it is agreed, derives strong confirmation from the fact that David Russell, though shown to have been in embarrassed circumstances, took no steps towards enforcing payment of the mortgage, as he would have been likely to do had he been the actual owner; and this argument is certainly not without considerable force. When we consider, however, that one of the parties against whose property the mortgage would be enforced was his son, who was also in embarrassed circumstances, there is nothing in the delay of legal proceedings so strange or so out of the ordinary course as to cast suspicion upon the evidence that tends to establish the ownership in David Russell. We think there is a preponderance of evidence that this mortgage, with the accompanying notes, was transferred to David Russell at about the time stated in the bill: that he paid to C. L. Russell on such transfer, the sum of twenty-five hundred dollars, and that C. L. Russell informed his partners thereof previous to the dissolution of the copartnership. And we are inclined to think that Judge Miller’s proceedings in chancery against O. L. Russell to have the mortgage declared null, must have been based upon the assumption that he had a right to treat the mortgagee as the owner until the assignment was recorded. There is some evidence in the case from which we may infer that such was his view of the law.

But whether David Russell bought the two mortgages, or only took an assignment thereof to secure the repayment of an advance of two thousand five hundred dollars to the partnership, is another question which is left in doubt by the evidence. C. L. Russell states the transaction as a sale, but there are some circumstances which incline us to think that David Russell stood in position of mortgagee of the mortgages, rather than of owner. C. L. Russell, himself, testifies to having expressed to Miller his father’s willingness to receive the two thousand five hundred dollars and interest in satisfaction of the two mortgages, and Ave think, in view of the doubt which surrounds this part of the case, and the great difference between the amount of the mortgages, and the amount David Russell paid on the transfer, that it is our duty to hold the assignment to have been by way of security only. We think in any case where a party claims to have purchased securities at very much less than their real value, if the evidence is not clear whether the transaction was a sale of the securities or only a mortgage of them, very slight circumstances showing that the transfer was not understood at the time to be absolute, but was made to secure the repayment of the sum advanced, may be sufficient to turn the scale.

The defendants also claim that the mortgage has become satisfied by a transaction to which McKinney was a party after he became administrator of David Bussell. Blocks nineteen and twenty, it seems, were sold on two different executions against C. L. Bussell; John Moore becoming purchaser on one sale, and 'William H. Craig on the other. McKinney bought up Moore’s claim and contested with Craig the possession and title to these two blocks. While litigation was in progress between them, McKinney entered into an arrangement with Albert Miller (the second) and one Abram Smith, by which in consideration of six thousand five hundred dollars, McKinney agreed to convey to them all his interest in blocks nineteen and twenty, and to cause the two mortgages hereinbefore mentioned to be released. There is a dispute between the parties as to how far this arrangement was carried into effect. It was embodied in a written contract, which was signed by McKinney and Miller, but not by Smith. McKinney also acknowledged the payment of seven hundred and fifty dollars on the contract. On November 5, 1864, McKinney and Albert Miller (the second) entered into a new contract, by which the former was to convey to the latter by quit claim deed all his interest in blocks nineteen and twenty in consideration of five thousand three hundred and seventy five dollars. The parties are not agreed as to how this new contract came to be ‘made; McKinney, claiming that the old contract was abandoned, while Miller insists that the new contract was only a modification of the old, as to the sum to be paid and the times of payment, which modification was made for certain reasons which he gives, but which need not be here stated. He claims that the agreement on the part of McKinney to relieve the blocks to be conveyed from the lien of the two mortgages was never abandoned or rescinded, and that he expected it to be done when the land was conveyed. McKinney gave a quit claim deed of blocks nineteen and twenty to Albert Miller (the second) December 5, 1864, covenanting therein that he had “ not done or suffered any act to be done or made any previous conveyances to weaken or impair his title to the property.” Miller says he was told by the conveyancer that this covenant was effectual to relieve the land from the mortgages, and there is confirmatory testimony to the same effect. McKinney, on the other hand, denies that there was any such understanding, or that the deed was given in pursuance of any further or other agreement than that embodied in the contract of November 5, 1864, which required from McKinney only a quit claim deed of “all the interest held by” him “of every name and kind whatever.” In our opinion it is not in any way legally made to appear that the contract of June 7, 1864, if it ever had any vitality, remained in force for any purpose after that of November 5, 1864, was made, and* consequently the latter, and the deed given in pursuance of it, are the instruments upon which the rights of the parties, upon this branch of the case, must depend.

What, then, are the rights of the parties upon the state of facts above set forth?

I. The bill in this case was filed twelve years after the last note fell due, and not until all action of law to recover the amount from the mortgagor had become barred. The mortgage not being under seal derives its force as a conveyance from section 4,550 of the Compiled Laws, which provides that “no bond, deed of conveyance or other con-

tract in writing, signed by any party, his agent or attorney shall be deemed invalid for want, of a seal or scroll affixed thereto -by such party.” The doubt is suggested by the defense whether the provision that the instrument shall not be “deemed invalid” can have any further effect than to make it good as between the parties thereto; leaving it still necessary for the purposes of record and of constructive notice, that the instrument should have all the requisites specified in the recording laws, among which is mentioned the seal. And the query is also raised, whether the remedy in equity upon the mortgage should not be barred in ten years, in analogy to the statute of limitations which bars all remedy upon contracts and presumes a judgment paid at the expiration of that period. Comp. L. §§5,367, 5,384.

We have no doubt, however, that the statute quoted was intended to give the unsealed instrument all the force and effect that a sealed one of the same tenor would have had, and that when the Legislature said it should not be deemed invalid for want of a seal, they meant to declare, and did declare in substance, that as a legal instrument it should not be affected by the want of that formality. The formality itself had ceased to be one of impressiveness or solemnity, and the statute meant to allow parties, at their option, to dispense with it without depriving the instrument of any of its legal incidents as a deed. And, as the bar to a remedy in equity has reference rather to the nature of the property affected, than to the character of the instrument' which may affect it, we have no doubt the bill was brought in due season. The bearing of the delay in commencing foreclosure upon some of the questions of fact involved in the case we have -already considered; but we are satisfied the delay cannot constitute an absolute bar to the suit.

II. The defendants insist that if, as we have found, David Bussell received a transfer of the mortgages by way of security instead of a purchase, the present bill should be dismissed upon the ground that the complainant has failed to establish the case made by it. The principle is familiar, and we have frequently had occasion to declare it; but we do not perceive that there is any such failure on the part of complainant to establish the material allegations of his bill as to bring the present case within this principle. The bill is to foreclose a mortgage given by Judge Miller to Cornelius L. Russell, and by the latter assigned to David Russel]; and the allegation which is not supported by the evidence, is one which effects not the right to foreclose, but the amount which the complainant will be entitled to receive on the foreclosure. One who holds several mortgages as mortgagee, to secure a single debt, may foreclose either of them at his option separately until his debt is satisfied. The question here is, to what extent and for what amount the mortgage became a valid security in the hands of David Russell; and it is not different so far as the question now discussed is concerned, from what it would have been had the mortgage been given for advances, and the complainant had failed to establish advances to the full amount claimed by him. See Robinson v. Cromelein, 15 Mich., 316. We think therefore, that no formal defect appears' in the case.

III. The defendants also insist that a mortgagor is justified and protected'in making payment of his debt to the mortgagee until he has notice that the latter has parted with his interest; and that what took place between Judge Miller and O. L. Russell in respect to this mortgage, at the time of the dissolution of the partnership of Miller, Crowl and Russel], was without any knowledge of the transfer to David Russell, and constituted, in legal effect a payment and satisfaction of this mortgage. The view we have taken of the evidence relieves us from the necessity of examining-further this position. We do not find the fact established, that Judge Miller was without knowledge of the assignment to David Russell at that time, and, therefore, the rule of law referred to cannot be applied in the present case.

IV. The defendants also claim that the sale of blocks nineteen and twenty by McKinney to Albert Miller (the second) while the former held the present mortgage as administrator, and with an understanding that the lien of the mortgage upon those blocks should be discharged, and the receipt by McKinney on such sale of a sum larger than was owing the estate of his intestate, was in legal contemplation a satisfaction of the mortgage, and of the notes it secured. And this argument is thought to be strengthened by certain testimony from which the inference is drawn that McKinney, in buying and selling blocks nineteen and twenty, and in whatever he has had to do respecting the present demand, and even in his capacity as administrator, has in fact been acting in place of and as agent for C. L. Russell, who, by the agreement on the dissolution of the partnership became primarily liable to pay this debt; and that therefore the acts of McKinney should be regarded and have the same legal effect and be followed by the same consequences as if done by O. L. Russell himself.

An administrator, however, cannot in law be regarded as the agent of any single person interested in the estate, notwithstanding the evidence may be strong that he favors that person’s interest. He is legally the trustee of all persons who have or may have an interest in the fund; and if he foils faithfully to represent and protect the rights of all, the proper remedy may be sought by the parties concerned in the Court which appointed him and controls his actions. In a suit between him and a third party, his intention faithfully to discharge his trust is to be assumed; even though an heir at law against whom such third party has equities, was active in securing his appointment and in advising the suit. The case of Morton v. Preston, 18 Mich, p. 60, is an authority to the point that equities against an heir cannot prejudice the suit of the administrator. And without considering wliat would have been the result in the present case had McKinney agreed to release blocks nineteen and twenty from a mortgage which he only held as administrator, we may content ourselves with saying that we do not find he has so agreed. There is nothing to that effect in the agreement of November 5, 1864, which we must regard as embodying the final contract between the parties, nor can the quit claim deed given by McKinney be referred to anything beyond his individual interest in the land conveyed. He does not in terms assume to convey anything more than that interest, and it is a reasonable presumption that one whose deed can be satisfied by applying it exclusively to an interest which he held in his own right, has not intended to convey that which he held only in the fiduciary capacity of administrator. And it will hardly be claimed that the conversation which took place at the time the deed was given can be considered for the purpose of enlarging the operation of the words. We must take the deed as we find it and give a reasonable construction to the words employed. And we find nothing in the deed which leads us to infer McKinney supposed that by it he was releasing any rights held by him as administrator.

V. The defendant, Mary Ann Miller, who now claims title to all the mortgaged property except blocks nineteen and twenty, insists that her property is, in equity, discharged from this mortgage by the course which David Russell has taken in respect to it. It is argued on her behalf that it cannot be doubted that, very soon after the dissolution of the partnership in 1852, David Russell knew of the equities existing between Judge Miller and C. L. Russell, and that the latter had agreed to pay this debt, if any really existed, and was in equity the real debtor. Yet there is evidence that, at O. L. Russell’s suggestion, and for his benefit, and without any consent on the part of Judge Miller, David Russell omitted any attempt to enforce the lien of the mortgage, or to collect the debt, until the demand, as a personal claim against Cornelius L. Russell, had become barred by the statute of limitations. It would therefore be greatly inequitable now to enforce this claim against Judge Miller or his assignees, when they can have no remedy over, or if any, a very uncertain one.

It should be a sufficient answer to this argument that it is not shown by evidence that David Russell knew of Judge Miller’s equities as respects this demand. "We may suppose from the relationship existing between C. L. Russell and himself, that probably that was the case, but it is by no means certain that a son, somewhat embarrassed in his circumstances, will lay open to his father the entire facts concerning his business transactions, and explain them all in their worst aspects. We suppose it must very often happen that the son, under such circumstances, will put a better face upon his affairs than the exact truth will warrant, or at least fail to mention matters which would show his embarrassments to be greater than he is willing the father should believe. The father is not necessarily to be the sufferer in his own interests by reason of such concealment, especially, when he has done nothing himself which has worked wrong to another and has only rested upon his supposed legal rights. It is not claimed that David Russell was ever requested by any one to take legal proceedings to enforce the mortgage against the property of O. L. Russell, and it does not appear that he knew or had reason to suppose there was anything inequitable in the delay to foreclose. We cannot therefore hold that he or his estate has lost anything by such delay.

YI. The only other matter we have occasion to notice relates to the conflicting claims of Mary Ann Miller and Albert Miller (the second) as to the order in which the mortgaged premises shall be sold to satisfy any amount that may be found due on the mortgage. Mary Ann Miller claims that as C. L. Russell was equitably bound to pay off this mortgage, that portion of the mortgaged property which was conveyed to him by Judge Miller became charged in equity with its payment, and that blocks nineteen and twenty should therefore be first sold, and resort be had to her property only in case of a deficiency after such sale. There might be force in this argument if O. L. Russell were still the owner of blocks nineteen and twenty; but there can be none when those blocks have passed into the hands of a purchaser who is not shown to have had any knowledge of the equities between Judge Miller and C. L. Russell. Albert Miller (the second) who has become vested with the rights acquired by both Moore and Oraig on the execution sales against 0. L. Russell, is such a purchaser. He claims, on the other hand, that on the familiar principle, that where the mortgagor conveys the mortgaged land in parcels, that which is first sold should be the last resorted to for the satisfaction of the mortgage, blocks nineteen and twenty should not be sold upon the present mortgage, except to satisfy any deficiency after a sale of the rest. This claim appears to us to be well founded in equity. Albert Miller (the second) in acquiring the title to blocks nineteen and twenty which Judge Miller had conveyed to C. L. Russell, had a right to suppose the ordinary rule was to be applied to the case and that Judge Miller expected to satisfy his mortgage from that portion of the mortgaged property not conveyed to Russell. There was nothing in the deed to Russell to apprise a purchaser from him of anything to affect this equitable rule, and such a purchaser would, therefore, have a right to rely upon it. He would not be bound by any oral understanding between Judge Miller and C. L. Russell, not embodied m the'deed.

The decree of the Court below must be reversed, and a decree entered in this Court for a sale of the property mortgaged, to satisfy the sum of two thousand five hundred dollars of principal, and interest thereon. As the payments, made by David Bussell, were in instalments between the first of December, 1851, and the beginning of the following May, but the precise times cannot now. be fixed, it is perhaps equitable to compute interest on the whole sum from February 1, 1852, and we direct that it be done accordingly. The decree will direct blocks nineteen and twenty to be sold only to satisfy any deficiency after a sale of the other parcels. The complainant will recover costs of both Courts, and the cause will be remanded to the Court below for the execution of this decree.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Samuel H. Abbott v. Henry Alsdorf et al.

      Deed delivered in escrow: Violation of condition. A deed deposited in escrow, but delivered without authority by the Depositary to the grantee, who inequitably refuses to perform the condition, will be declared void.

      Appeal in Ghanceny: Hearing. An appellant in Chancery will not be heard to urge as a ground of reversing the decree, the equities of his co-defendants who have not joined in the appeal, especially when such equities rest upon their alleged ignorance of the fraud of the party who appeals.

      Practice in Ghancenj: Closing proofs : Necessity of a motion to suppress depositions. No motion is necessary to suppress depositions taken after the closing of proofs, to exclude them from consideration on the hearing.

      Heard July 12.

      Decided October 5.

    Appeal in Chancery from Branch Circuit.

      Newberry, Poncl <& Broton, for complainant and appellee.
    I. Upon affidavits the Commissioner made an order, (Nov. 24, 1865) vacating the order closing proofs, and allowing thirty days to take further testimony. Complainant appealed from this order to the Circuit Court, and the court annulled it May 5, 1866.

      This reversal of the Commissioner’s order is' the first grievance of which appellant complains. There is certainly no error here from which an appeal can be taken.
    I. An order closing proofs is no less an order of the Court because it is a common order. Rule 24, 1 Barb. Ch’y Prac. 581.
    By Rule 112, the Commissioner had no power to vacate such order. As well might he attempt to vacate an order pro confesso, or of reference to himself. It is possible, if the application to extend the time had been made before the order was entered, the Commissioner might, under Rule 86, have extended the time, but no such authority is given afterwards. 2. There was no sufficient reason given for such order. 3. If defendants desired to have the order closing proofs set aside, they should have applied to the Gourt for an extension of time, or made a new motion to the Court upon the same, or new affidavits, at the time the order of the Commissioner was annulled.
    II. If our position with regard to the first point be correct, it virtually disposes of the case. Defendants’ depositions were not taken until December — two months after the proofs were closed. They were suppressed by the Circuit Court and properly form no part of the record.
    III. But even if defendants’ depositions are admitted as evidence, they make no defense to complainant’s case.
    The deed was never delivered by complainant with the intention of vesting the title in the grantee. It ivas handed to Parsons as an escrow to be delivered by him upon a certain contingency. An escrow takes effect only from its second delivery, and the performance of the conditions, (Wheelwright v. Wheelwright, 2 Mass. 447), and if that delivery be made by mistake, or the deed be surreptitiously taken, it is void.—2 Washburn, Real Prop. 585. The performance of the condition is absolutely necessary to give effect to the delivery, however the grantee may get possession of it. This position is amply supported by the following authorities : State Bank v. Evans, 3 Green 155; Stiles v. Brown, 16 Vt. 563; Jackson v. Catlin, 2 Johns. 248; Jackson v. Sheldon, 22 Me. 569; Johnson v. Baker, 4 Barn, & Ald. 440; Rhodes v. Gardner, 30 Me. 110.

    IY. John Alsdorf being a mere tenant, cannot claim the rights of a bona fide purchaser. Boinay v. Coats, 17 Mich. 411.

      E. G. Fuller, for defendant and appellant.
    I. The time for taking testimony should have been extended.
    1. The Circuit Court Commissioner was authorized to make the order; (see rule 86 and 111,) the order closing proofs is a common order made and signed by the Register, and not within the meaning of Rule 112.
    2. There was sufficient cause shown, and if the order of the Commissioner was null, the Court, having the whole case before it, ought to have made an order extending the time on the petitions and affidavits of the defendants’ solicitor.
    II. The answer, on oath, of the defendants, John Alsdorf and Hiram Haynes, is responsive to the Bill, and is evidence as to all contained in it. All the allegations so responsive are to be taken as true unless contradicted by two witnesses, or one witness, and circumstances equal thereto.
    This rule has been too long established in practice to admit of doubt.—3 Barb, & Harr. Eq. Dig. 383; Cunningham v. Freeborn, 3 Paige R. 557; Smith v. Clark, 4 Paige R. 368; Schwarz v. Wendell, Walk. Ch. R. 294.

    III. The deed executed by Abbott to Henry Alsdorf, and left with Parsons is valid. 1. It seems to be a rule of law, that a deed so executed and delivered will bind the the grantor, if the grantee can, at any time, and in any way, get possession of it.—Doe v. Knight, 5 Barn. & Cress. 671; Fairbanks v. Metcalf, 8 Mass. 238; Wheelwright v. Wheelwright, 2 Mass. 447.

    IV. Though the deed may been voidable, before the grantee had conveyed the premises, a Court of Equity will not disturb it against the rights of a bona fide purchaser. This seems to be the English rule. Thus after a deed of bargain and sale is enrolled it cannot be averred by the parties that it was delivered at a day subsequent to the date.—Owen 168, Howard’s case Com. Dig. title Bargain and sale B. 10. The analogy between the English statute of enrollments (27 Hen. 8. C. 10.) and our statute of recording of deeds etc., is so strong that the same doctrine must prevail. Pidge vs. Tyler, 4 Mass. 541.

   Campbell J.

The bill was filed to obtain a reconveyance of property alleged to have been obtained by fraud. The bill sets up in substance that on or about December 2, 1864, complainant agreed to sell a parcel of land containing one acre to defendant Henry Alsdorf for one hundred and fifty dollars, of which fifty was to be paid on delivery of the deed and remainder to be secured by note and mortgage payable in two years with interest at ten per cent: — That thereupon on that day complainant executed a deed and left it with Elon Q-. Parsons, to be delivered when the grantee should execute the mortgage security; and that on about the 12th of December, the latter obtained the deed by fraud from Parsons, without executing the papers, and had it recorded about the loth of December, and on being applied to, refused to execute them ¡ — That in December, 1864, Henry Alsdorf moved a house upon the land and, with his father John Alsdorf, moved in and they have since occupied, wrongfully, and that by the agreement possession was not to be given until March, the premises being under lease till that time to one Seely: — That on February 19 Henry Alsdorf. conveyed the land to defendant Haynes, who is charged to have paid no consideration and to have taken his deed with full notice.

The answer, beside relying upon some legal points, represents the land sale as part of another transaction, including some horses; and avers that Parsons, as complainant’s agent, delivered the deed voluntarily and without' fraud, and that the grantee was willing, and offered to give a mortgage for seventy-five dollars, which is alleged to have been all that was due or agreed upon. It also alleges that John Alsdorf got license from Seely to move on the ground, and entered under that permission.

Complainant’s testimony being in, and defendants not yet having taken any in a regular way, and the time having expired, defendants having failed to obtain leave from complainant to use the informal depositions, noticed the cause for hearing, and complainant entered an order closing proofs. Hpon application to the Circuit Court Commissioner time was granted to defendants to take further proofs, but upon appeal from this order, and after proofs had been taken in the meantime, the order of extension was reversed and rescinded. The Court below disregarded the testimony so taken, and granted a decree for complainant, which is appealed from by Henry Alsdorf.

The complainant’s witnesses make out his case, and show that Henry Alsdorf obtained the deed from Parsons upon a written order, which Parsons read over hastily without noticing the clause requiring a mortgage, and that Alsdorf kept silence on the subject of the securities, until afterwards requested, when he declined to give the mortgage. In the absence of evidence for the defendants, the case is substantially maintained. And the only question, seems to be, whether their evidence was properly excluded.

The testimony seems to have been regularly closed. The application to extend time was addressed to the discretion of the Commissioner, and when appealed, became discretionary with the Court. When the order was reversed the proceedings to talce proofs fell with it. A stay of proceedings had been granted on the appeal before any of these proofs were taken. Under these circumstances there was no authority whatever to proceed, and it was not necessary to make a rpotion to suppress. The order of reversal was itself a suppression of all that had been done, and no further steps were needed to get rid of the evidence.

If an application had been made to the Court to open the case for further proofs, it might very possibly have been granted. But no such leave was sought, and, therefore, it was necessary to decide the cause upon the complainant’s proofs, which are more satisfactory to our minds than the answer of Henry Alsdorf. The other defendants knew nothing of the main facts. And, as neither John Alsdorf nor Haynes have appealed, no ones’ rights are now involved except those of Henry Alsdorf, and the answers are not explicit enough to overcome the plain showing against them.

As he knew he was not entitled to receive the deed, it was inequitable in him to retain it, and he was bound in fairness to restore it. Instead of oifering to do justice, and to comply with the terms of the agreement, the defendants all rely on the deed to Haynes as cutting off complainants’ rights, and so repudiate the contract. The Court below was right, therefore, in rescinding the entire claims of the defendants, and we are somewhat at a loss to know how Henry Alsdorf can justly complain. He was the party directly active in the fraud.

The decree must be affirmed with costs of this Court against the appellant.

The other Justices' concurred.


author: Christianoy J.

text:
    George E. Hollister v. Isaac A. Brown et al.

      Evidence: Objections to its admission must be stated. A judgment will not be reversed for rulings upon the admission of evidence which do not affect injuriously the plaintiff in error; nor where the objection as stated ¿s not well founded; other objections, if they exist, will be considered as waive d.

      Evidence: Whether rebutting or not. When the character of evidence, whether it be rebutting or fnot, depends upon the effect which the jury may give to evidence which it is introduced to rebut, it i*s not error to admit it, even though its tendency as rebutting evidence is doubtful.

      Tender afta' suit brought. Whether in an action for the breach of a contract, and not for a sum certain, a party may tender damages after the commencement of suit under the statute; (Comp. L. § 4,536), guere. But when the damages found by the jury, upon proper evidence, exceed the amount of the tender, the evidence is immaterial, and, therefore, it is not error to exclude it.

      Heard July 12.

      Decided October 5.
    Error to Kalamazoo Circuit.
    Tliis is an action of assumpsit brought in the Circuit Court for tbe County of Kalamazoo, by Isaac A. Brown and William E. Browning against George E. Hollister, upon a special agreement to pay one-lialf of the expense of erecting a party wall. The defendant pleaded the general issue and gave notice of a tender.
    The plaintiffs and defendant were owners of adjoining lots; and the plaintiffs being about to erect a building on their lot, they entered into a verbal agreement by which the defendant undertook to pay to the plaintiffs, (as claimed by them), the reasonable cost of one-half of so much of the division wall as he should use, and as soon $s he should use or occupy it. The defendant contended that the first agreement was that he should pay for the cost of so much of the length and height of the wall as he should use above the ground; and that afterward, when he had taken some dirt out of the cellar of his building, he agreed to pay the plaintiffs for one-half of the wall he should' use below the first floor of his building. The plaintiffs’ building was 80 feet long and two stories high: the defendant’s 60 feet long and one story high. The wall was 25$ feet high — -1 foot of stone, 3 feet 10 inches thick — 6feet of brick 16 inches thick, and 14 feet of brick 1 foot thick.
    One of the plaintiffs was sworn as a witness and testified that the defendant did not object to the measurement of the . wall as stated by the plaintiff, but that he did object to the price charged for the work done and materials used, and that in one of their conversations it was proposed to submit to arbitrators the cost of the wall. Two persons were selected, and a paper was prepared to be submitted to them,which was in the following words:
    “ Gentlemen — You will decide upon the following specifications: First the amount of brick in a foot wall 60x14; also, brick wall 60x6-J, 16 inches thick; also a stone wall 4x60, average thickness 30 inches; also 60x1 foot, 3 feet 10 inches wide.”
    “ You will set a fair price for brick per 1,000, for stone per perch, and grout per perch, all laid in the wall, upon one undivided half. You will understand the waste, of brick, etc., so as to give me enough to make me whole, without any profit to me above full cost.”
    The paper was not signed, and it was denied by the defendant that there had been any legal submission to arbitrators of the matters in controversy. The paper was offered in evidence in connection with the testimony of the plaintiff, and he was permitted to testify that the actual measurement of the dimensions, and amount of the division wall was reduced to writing and fully agreed upon by the plaintiffs and the defendant as being correct; which testimony, in connection with the paper, was offered and submitted as an admission of a fact by the defendant. It was objected to by the defendant’s counsel on the ground that the statement or proposition was made for the purpose of a settlement of controversies then existing which had since become the subject of this suit, and was therefore inadmissible. The admission of the testimony is one of the aliegations of error, wbicb are brought into this Court for review.
    The witness was further allowed to testify, under objection, that the persons named as arbitrators proceeded to make a finding as to price without stating the amount, but the defendant expressed his dissatisfaction and did not assent to it. The admission of this testimony is alleged as error.
    The evidence on the part of the defendant showed a set off amounting to $54 50, of which one item was $3 for the use of defendants’ pump by the plaintiffs. This whole bill was allowed without objection.
    The defendant offered to prove a tender, after commencement of suit, of the sum of $185 as damages and costs of suit, which was objected to by the plaintiffs, on the ground, that the suit was brought for the recovery of damages for breach of contract, and not for the recovery of a sum certain, or which might be reduced to a certainty by calculation. The evidence was excluded, and on this, error is assigned.
    In the rebutting evidence offered by the plaintiffs they were allowed to show that at the time certain items of stone and water lime, which were included in the defend dant’s set off, were delivered, that defendant said that he would turn out the stone in payment of his half of the stone wall. The defendants objected that this was not rebutting testimony; but the objection was overruled. The plaintiffs also offered as a part of their rebutting testimony, that the pump, for the use of which the charge of $3 was made, stood on the defendant’s land, and was used by plaintiffs in building their store and the division wall. This was objected to, as not rebutting, and for the reason that having once admitted the item, the plaintiffs could not introduce testimony to dispute it. The evidence was allowed., and error is assigned upon its admission.
    The jury found a verdict for the plaintiff for $268 83.

      May & Bucle, for plaintiff in error.

      John W. Breese for defendants in error.
   Christianoy J.

Had the defendant below objected to the writing, and the evidence of BroAvn in connection therewith, — offered for the purpose of showing that the amount and dimensions of the wall used by the defendant had been agreed upon by the parties, — on the ground that the paper was not signed by the defendant, and did not purport to speak for him; that it could only be used by the witness as a memorandum, or that it showed upon its face that it was merely the claim of the plaintiff's, presented or to be presented to the contemplated arbitrators, and was therefore repugnant to the offer, which was to show the agreement as an independent fact, etc., “without reference to any adjustment or settlement offered by arbitrators or otherwise,” a very different question- would have been presented from that arising upon this record. No objection was made to the offered evidence, upon any such ground. The Objection was based expressly upon the single and specific ground “that such statement or proposition” (meaning, as we understand the objection, the agreement or admission of the defendant in reference to measurement, as testified to by plaintiff Brown), “ was, as appears by the testimony of said witness, made for the purpose of a settlement of controversies then existing between the said parties, and which had since become the subject of this suit.”

This being the sole ground of the objection, all others which might have been urged, must be considered as waived.

We do not think the objection can be sustained upon this ground. The admission of the defendant as to the measurement of the wall, as sworn to by Brown, would seem to have been made because it was true, and not with the object or hope of buying peace, or procuring an amicable settlement by admitting more than the facts would warrant. In fact there does not appear to have been any expectation of settling the differences between them by the act and agreement of the parties alone, at the time the admission was made in connection with the proposition to submit to arbitration; and the same admission, according to to the testimony of Brown, had been made before by the defendant, as an independent fact, without reference to any arbitration. There Is nothing therefore to indicate that the admission was made upon any condition, tacit or express, that it should not be proved against the defendant, if no settlement or compromise should be made.

It was not claimed that any valid agreement was made between the parties to submit their differences to arbitration. But the plaintiffs were allowed, against defendant’s objection, to show .the abstract fact that the arbitrators verbally agreed upon, did make a finding as to the price, without stating the amount found by them. This fact was wholly irrelevant and the Court ought to haye excluded it. But we are unable to discover how the proof of this isolated fact, having no connection with the controversy, nor calculated in any way to affect the minds of the jury, could possibly have operated to the prejudice of the defendant. Indeed, we think it quite evident that he could not have been injured by it, and that the judgment should not therefore be reversed on this ground.

Nor could the defendant have been prejudiced by the evidence introduced by the plaintiffs, under the claim of rebutting evidence, showing that the charge of three dollars for the use of a pump, embraced in the defendant’s claim of set off, and allowed by the plaintiffs, was for the use of a pump which stood on defendant’s land, and used by the plaintiffs and their workmen to draw water for the building of the store of the plaintiffs and the division wall. The defendant’s claim of set off for the use of his pump, and for stone and water lime furnished to the plaintiffs, amounting in all to $54 50, had already been admitted by the plaintiffs on the trial to be correct, and was allowed Jay them in the set off. Whether therefore this evidence was admissible, for the mere purpose of identifying the pump referred to, so as to prevent any future claim for the use of it, or whether it was wholly immaterial or irrelevant, it is unnecessary to decide; since, from the very nature of the case and of the evidence, the defendant could no more have been injured by its introduction, than by evidence of the color of his coat, or the state of the weather on the day of his birth.

The admission of the evidence on the part of the plaintiffs, showing that, at the time of the delivery of the stone and the water lime, by the defendant, he stated that he would turn out the stone in payment for his half of the stone wall, presents a question of less obvious solution. Plaintiff Brown in his testimony in chief, had testified that the contract was to pay for so much of the wall as the defendant should use, and also, to the admission by the defendant of the measurement claimed by the plaintiffs, of the wall as used by the defendant. The defendant had testified that by the original contract he was to pay only for half the cost of so much of the wall as he should use above the ground; but that he afterward took some dirt out of the cellar of his building, and then agreed further to pay the plaintiffs, one-half the cost of all the wall he should use below the first floor of his building. To rebut this evidence of the defendant, plaintiff Brown was recalled and testified that but one contract wras made, and that the terms were not as stated by the defendant. Plaintiffs then further to rebut the defendant’s testimony offered to prove by Brown that at the time of the delivery of the stone and the water lime, defendant stated that he would turn out the stone for his half of the stone wall. We are inclined to think this evidence might have some slight tendency to rebut that of the defendant (showing a new and different contract from that sworn to by plaintiffs), as it might tend to show recognition by the defendant of an obligation to pay the cost of half of all the wall along which his building should extend as claimed by the plaintiffs. This tendency it is true, would be slight; as he ■ might have intended by “his half of the stone wall,” only the half of that along which his cellar was dug. But it would be for the jury to judge of the extent of his meaning and the weight of the rebutting evidence. This evidence was not objectionable on the ground that it should have been introduced by the plaintiffs on their Opening; as they relied upon the contract sworn to by the plaintiff Brown, and the admission of the defendant of the measurement, and did not rely, either in their opening or at any time, upon the promise of the defendant to turn out the stone in payment, as a ground of recovery.

The defendant offered to prove that after the commencement of the suit he tendered to the plaintiffs the sum of one hundred and eighty-five dollars as damages and costs of suit then incurred by the plaintiffs.

This was objected to by the plaintiffs and excluded by the Court, on the ground that the suit was brought for the recovery of damages for a breach of contract, and not for a sum certain or which might be reduced to a certainty by calculation.

Had there been any error in any of the other rulings of the Court for which a new trial should be granted, it would be proper to consider this question of tender which might again arise upon such new trial. But as we have already determined that no new trial is to be granted on any of the other errors assigned; the case appearing to have been fairly tried, and the jury having found a verdict for the plaintiff for two hundred and sixty eight 83-100 dollars damages beside the costs, — a much larger sum than was tendered by the defendant; it is manifest that the rejection of this evidence of tender of a less sum, whether admissible or not when offered, could not possibly have prejudiced the defendant. The proof of such tender could have had no legitimate tendency to increase or lessen the amount of damages; which the jury have found to be much larger than the sum tendered. If, then, the tender had been proved, the defendant could have derived no benefit from it. The question of tender, therefore, does not properly arise; and we express no opinion upon it. The judgment must be affirmed with costs to the defendants in error.

The other Justices concurred.


author: Cooley Oh. J. Graves J.

text:
    Milo Clemens et al. v. Louis Conrad.

      Contract: As to equities o?' interests of third persons. Conrad had contracted with. Clemens to sell a tract of land containing a stone quarry, and to convey the same by deed to be executed by himself and other persons within ten days; and Clemens agreed that Conrad might continue to quarry and remove the stone for three months:

      Held, that in an action by Conrad against Clemens for refusing to allow him to take away the stone so quarried, it was immaterial to enquire why the co-grantors were to sign the deed; and that, as Clemens asserted no equities against any third party, there was no presumption that the co-grantors were interested as joint owners of the stone and therefore ought to have been joined as plaintiffs.

      Held further¡ That the neglect of Conrad to take away the stone according to the terms of the contract, did not operate as a forfeiture of his property.

      Evidence: Whether secondary or not. A witness may be asked whether a deed and mortgage had been given: the question not calling for their contents.

      Evidence: Admissibility of an unstamped agreement. Congress has no power to prescribe rules of evidence to the State Courts; and therefore the act of Congress which declares that certain instruments shall not be received as evidence in any Court, unless stamped as required by the act, is to be understood as applicable only to the Courts of the United States.

      Witness: Discredited by cross-examination. A witness may be asked on cross-examination whether he has ever been indicted and convicted of a criminal offense. The distinction between the questions — whether he had been indicted for a criminal offense, or whether he had been confined in the State prison, when asked of the witness himself, is unimportant. Wilbur v. Flood 16 Mich., liO cited and approved.

      Heard July 10.

      Decided October 12.

    Error to Wayne Circuit.
    This was an action of assumpsit brought upon a special contract entered into between Louis Conrad, the plaintiff below, and Milo, William A., and Phineas H. Clemens, on the 31st of August, 1866, by which Conrad agreed to sell to the Clemens Brothers a tract of land in the State of Ohio, on which was a stone quarry that Conrad was then working, for the sum of six thousand dollars; payable five hundred dollars when the said Clemens took possession, and the remainder in eight equal annual instalments with interest, and “to convey said premises to said Clemens by a good warranty deed within ten days from” the date of said contract; “said deed to be executed and signed by George Michael and wife, and Louis Conrad and wife.” By the same contract it was agreed on the part of the vendees, the Clemens Brothers, that “they are to .give to the said Conrad permission to quarry on the said premises in the quarry in which he is now quarrying until December 1st next, and to use the dock on the N. E. corner of said premises to ship his stone from until said December 1st next. Said Conrad is to commit no waste during said time upon said premises, and to so quarry as to leave upon said dock on the said 1st December next, not more than two vessel loads of stone, and the two loads of stone he is to remove as early as convenient during the next spring, after which the entire use and ownership of the dock is'to vest in the said Milo Clemens, William A. Clemens and Phineas H. Clemens.”

      The breach of this contract on which the plaintiff counted specially, was, that in pursuance of the agreement, he proceeded and quarried stone until the said first day of December, at which time he had upon, or near the dock, about 1,800 cubic feet of stone so quarried upon said premises, the same not being more than two vessel loads, as well as about 3,000 cubic feet quarried from and lying in or near the quarry, of the value of $4,000; that on the first of December the defendants entered into possession of the premises, and refused to deliver the possession of the stone so lying on the premises to the plaintiff, but sold or otherwise disposed of the same and refused to account for, or pay over to the plaintiff the value of the said stone.
    The defendants pleaded the general issue ; gave notice of set off and that they would recoup their damages occasioned by the plaintiff's breach of the contract on which he had declared.
    On the trial a verdict and judgment were rendered for the plaintiff; and the case is brought into this Court by the defendants below, to review the decisions of the Circuit Judge as to his construction of the contract; and upon the following questions as to the admissibility of evidence.
    Louis Conrad the plaintiff was examined as a witness on his own behalf and having testified to his execution of the contract of August 31st, he was asked by his counsel: — “Was a deed and mortgage afterward given between the parties to this suit, relative to this quarry ? The question was objected to, but allowed by the Circuit Judge.
    He was also asked on cross-examination “ How much stone did you ship and use from August 31st to December 1st?” and — “Why did the Clemens Brothers insist that these two vessel loads of stone which you had a right to ship, should be piled on the dock before the 1st day of of December?” Both these questions were objected to by the plaintiff’s counsel and the objections were sustained.
    The contract declared on was written on two pieces of paper pasted together, and having on it but one revenue stamp (of five cents), its introduction in evidence was objected to as insufficiently stamped. The objection was overruled and the paper admitted.
    P. H. Clemens, one of the defendants, was examined as a witness on their behalf, and was asked by defendants’ counsel: “ What did Conrad, if anything, state to you before the making of the contract, as to who owned the undivided half claimed by him?” — “In what capacity did Conrad claim to act in the transfer of this property ?” and “ State why Conrad and wife were to sign the deed?” These questions were objected to by the counsel for the plaintiff, and the objections were sustained.
    A witness, called by the defendants, was asked, on cross-examination, “ were you indicted, in I860, in Sandusky, for smuggling?” This question was objected to, but allowed by the Circuit Judge.
    The view taken by the Court of that portion of the Judge’s charge which was excepted to renders it unnecessary to state it.

      F A. Baker, for plaintiffs in error.

      H. M. & W. F. Oheever, for defendant in error.
   Cooley Oh. J.

The objection to the question put to Louis Conrad, whether a deed and mortgage were given between the parties, has no force. The question did not call for the contents of the instruments, and did not elicit secondary evidence.

The questions put to the same witness, as to the quantity of stone shipped from August 31st to December 1st, and as to the reason of the Clemens Brothers insisting that the two vessel loads of stone which Conrad had a right to ship should be piled on the dock on the first of December, were clearly irrelevant and properly overruled.

Nor do we perceive any relevancy to the questions put for the purpose of showing that another party beside Conrad was interested in the land described in the deed and contract. Conrad, it appears, contracted to convey the land to the Clemens Brothers, but was to have the right to take stone from the quarry upon it up to a certain time. He has performed his part of the contract, and this suit grows out of the conversion by the Clemens Brothers of certain stone which he claims became his by the contract.

It is immaterial from what source or from how many sources the title was derived which has been conveyed. The right to the stone does not come from any reservation in the deed, but from a contract which gives it to Conrad alone; and even if Conrad were equitably bound to account to some other person for a proportion of the stone, that fact would be immaterial to the present suit. The defendants below asserted no equities against any third party whom they claimed to have an interest, and we discover no analogy between this case and those in which the right to charge an unnamed principal on a contract made by his agent has been upheld.

The question to P. H. Clemens, — “ why Conrad and wife were to sign the deed” was entirely immaterial and objectionable on other grounds.

The right to inquire of a witness on cross-examination whether he has not been indicted and convicted of a criminal offense, we regard as settled in this State by the case of Wilbur v. Flood, 16 Mich, 40. It is true that in that case the question was, whether the witness had been confined in State prison; not whether he had been convicted ; but confinement in State prison presupposes a conviction by authority of law, and to justify the one inquiry and not the other would only be to uphold a technical rule, and at the same time point out an easy mode of evading it without in the least obviating the reasons on which it rests. We think the reasons for requiring record evidence of conviction have very little application to a case where the party convicted is himself upon the stand and is questioned concerning it, with a view to sifting his character upon cross-examination. The danger that he will falsely testify to a conviction which never took place, or that he may be mistaken about it, is so slight, that it may almost be looked upon as purely imaginary, while the danger that worthless characters will unexpectedly be placed upon the stand, with no opportunity for the opposite party to produce the record evidence of their infamy, is always palpable and imminent. We prefer the early English rule on this subject: Priddle's case, Leach C. L. 382; King v. Fdwards, 4 T. R. 440; and for the reasons which were stated in Wilbur v. Flood.

Several other assignments of error depend for their force upon the proper construction of the contract under which Conrad was to have possession of the stone quarry until December 1, 1866, with certain right to remove stone after-wards. The stipulation on that subject was as follows:’ The Clemens Brothers “are to give to the said Conrad permission to quarry on the said premises in the quarry in which he is now quarrying until December 1, next, and to use the dock on the northeast corner of said premises to ship his stone from until said December 1, next. Said Conrad is to commit no waste during said time upon said premises, and to so quarry as to leave upon said dock on the said 1st December next not more than two vessel loads of stone, and the two loads of stone he is to remove as early as convenient during the next spring, after which the entire use and ownership of the dock is to vest in the said” Clemens Brothers.

As we understand this contract, whatever stone was quarried by Conrad previous to December 1, 1866, became his property. He agreed, however, that he would not leave upon the dock on that day more than two loads of stone, and those two loads the other parties agreed he might have until the next spring to remove. We do not discover in pthis contract any thing from which we can infer an understanding on the part of either party, that the penalty for a failure on the part of Conrad to remove his stone within the time agreed should be a forfeiture of his right thereto. The law certainly would not imply such an understanding where it was not plainly expressed, nor would it favor such a penalty. It is to be presumed that the damages the party injured by a breach of the contract might recover at the hand of a jury, would be adequate compensation for the injury. If Conrad in this case was guilty of any breach of his contract, the remedy of the other party is by action at law, and not by seizing and selling his stone. The charge of the Court below relating to the supposed breach and a supposed waiver thereof, was, in our opinion, entirely immaterial, and could not possibly have injured the plaintiffs in error. The stone in controversy belonged to Conrad under the contract, irrespective of the disputed facts upon which the charge was based.

The plaintiffs in error insist, however, that the contract was improperly admitted in evidence, because not sufficiently stamped under the revenue laws of the Hnited States. The contract, it appears, was written on two pieces of paper pasted together, and was stamped with a single five cent stamp. It was insisted in the court below, that two such stamps were required, and that by the express terms of the revenue law, the instrument could not be admitted or used in evidence without the additional stamp.—U. S. Stat. 1866 C. 184. §9. It was not claimed that the omission to tax the instrument sufficiently, arose from any intentioh to evade the revenue law, or defraud the Government, or that the instrument was void for the omission, or that Conrad did not acquire by it a right to the stone in controversy if his construction of the contract was the correct one. The position taken would appear to result in this: — that even though the contract be valid, so that the party acquired rights under it, he is not to be permitted to give evidence of those rights in court, if through accident, or mistake, or misconstruction of the statute, he has failed to pay to the Government the full amount of tax legally demandable upon such instruments.

The Circuit Judge held that only one five cent stamp was required upon a complete agreement, and that it was immaterial upon how many pieces of paper the agreement was written. We are not satisfied, however, that this construction of the act of Congress is the correct one, though we do not deem it important to express a definite opinion upon that point. Neither do we propose to raise or discuss the questions of the power of Congress to declare the contracts of parties void for a failure to affix the proper revenue stamps. The power to tax, to select the objects of taxation, and to make choice of the proper means to render the power fully effective, is one which in every sovereignty must be very broad and ample, inasmuch as the perpetuity of the Government depends upon the power being adequate to all possible emergencies. Of the authority in Congress to impose stamp duties, and to compel their payment by such penalties as the wisdom of that body may devise, we make not the least question. It is a well recognized and legitimate mode of taxation, and of the policy of making choice of it instead of some other, Congress is the sole judge.

To make an instrument inadmissible in evidence because not sufficiently stamped is, however, quite a different thing fronr imposing penalties for a breach of the revenue laws. The latter punishes .the guilty party or compels him to perform his duty to the Government; the former imposes what may be sometimes equivalent to a forfeiture of rights upon any party, guilty or innocent, who chances to be so circumstanced that he cannot make a showing of his rights in court without the production of the unstamped instrument. For the statute does not preclude the reception of the instrument in evidence in those cases only, in which the parties thereto may be parties in litigation, but in all cases whatsoever, in which, whether as the foundation of the suit, or for some collateral purpose it may be important to make some inquiry .concerning them. This provision of the law of Congress is therefore not only highly penal, but it visits with its consequences alike the innocent and the guilty, and is wanting in the exceptions which protect those guiltless of intentional wrong, when the revenue laws are sought to be enforced in other modes.

A law so highly penal, it is to be presumed has been so framed as clearly to point out all the cases to which it was designed to apply, so as to leave nothing to inference. In attempting properly to construe it, it is proper to bear in mind the position of the body which enacted it relatively to the different legal tribunals of the country. Congress creates the Courts which operate within the sphere of federal sovereignty, and administer the judicial power conferred by the Constitution of the United States. For them it prescribes rules of evidence, and may establish a course of practice. It has no such general power as regards the State Courts. Those Courts have another origin, and their rules of evidence, and courses of proceeding are prescribed by a different legislative body. Waiving, in the present case, any discussion of the question whether the State Courts are not agencies of State Government which are beyond the sphere of the taxing power of the nation, and fully at liberty to investigate in their own modes, under the laws of the State, the questions of fact which are put in issue before them, we think it a just and reasonable interpretation of the law of Congress, that the Courts, which are precluded from receiving unstamped instruments in evidence, are only the federal Courts, which are created under the General Government, and for which Congress has general power to prescribe rules of evidence. In other words, we think that a rule of evidence laid down in general terms, is to be understood as applicable to those Courts only for which the Legislature prescribing it has general power to make rules, and not to other Courts not expressly named, over which it has no such general power, and with whose proceedings it could interfere, if at all, only in exceptional cases.—Carpenter v. Snelling, 97 Mass. 452.

We discover no error in the record, and the judgment must be affirmed with costs.

Campbell and Ohristiancy JJ. concurred.

Graves J.

As I am unable to agree with my brethren in the. result they have reached, I purpose to state some of the grounds upon which I think the judgment below should be reversed.

It appears that on the last day of August, 1866 the parties entered into a contract in writing which was followed by a conveyance in pursuance of it, in about two weeks thereafter. The contract was in the following terms:— “ Item one, The said Conrad agrees to sell to the said Milo Clemens, William A. Clemens and Phineas H. Clemen s the undivided half of lot 25 in first section of Danbury Township, Ottawa County, Ohio, for the sum of six thous- and dollars payable, $500 when said Clemens take possession and the remainder in equal instalments, payable in 1, 2, 3, 4, 5, 6, 7 and 8 years, with interest and to convey said premises to said Clemens, by good warranty deed to be executed and signed by George Michael and wife and Louis Conrad and wife.

Item two, The said Milo Clemens, William A. Clemens and Pirineas H. Clemens agree to purchase said premises at the price named in “item one,” and to make the payments as therein specified and to secure the payment of the purchase money by mortgage on the whole of said lot 25, and they are to give to the said Conrad permission to quarry on the said premises, in the quarry in which he is now quarrying until December first next, and to use the dock on the north east corner of said premises'to ship his stone from until said December first next. Said Conrad is to commit no waste during said time upon said premises, and to so quarry as to leave upon said doclc on the said first of December next not more than two vessel loads of stone, and the two loads of stone he is to remove as early as convenient during the next spring, after which the entire use and ownership of the dock is to vest in the said Milo Clemens, William A. Clemens and Phineas H. Clemens.

The most difficult question in the case, in the view I take of it, arose upon the interpretation of this contract, it being claimed on the part of Conrad, that he was entitled to continue quarrying and carrying off stone until December first, and that after that time he was also entitled to remove two loads of quarried stone, though they should be in the quarry, and though possession should have been given to Clemens.

The plaintiffs in error maintained, however, that the agreement neither gave or secured any right to Conrad to take any quarried stone from the quarry after December first, and after they were put in possession. These different views being pressed at the trial, the plaintiffs in error asked the Court to advise the jury that Conrad could not recover for the stone which was lying in the quarry when possession was given on the. evening of the 3d of December, and that if they should find that he was permitted to take away all the stone he had on the dock at the time, they should find for the defendants.

This instruction the Court declined to give but advised the jury “that it made no difference under the contract, whether at the time possession was given the stone were on the"dock or in the quarry.”

I think the effect of this was to leave the case to the jury upon an erroneous construction of the contract.

In making the agreement the plaintiffs in error were treating for a • quarry already opened, and being worked, and supplied with a dock from which to load stone for carriage by water, and it is reasonable to suppose that they wished to acquire the quarry in order to work it.

It does not appear that there was any other practicable course for the removal of the stone than that over the dock, or that the quarry itself could be conveniently worked if occupied by any considerable quantity of quarried stone. In any event it was natural for the purchasers to desire that the work should not be encumbered by an indefinite possessory right in the vendor, and no such right could have been contemplated, without being expressly provided for and carefully defined.

It is claimed, nevertheless, by Conrad, that he had the right to leave two vessel loads of stone in the quarry, and to enter and remove them after the purchasers would be entitled to the general possession, and as owners authorized to work the quarry.

When he bargained away the property he must be taken, prima facie, to have intended to include every right and interest which he could part with and did not except, and unless the stipulations in his favor fairly include the right he sets up, it ought not to be sustained.

By the agreement he stipulated for the right to continue getting out stone until December first, 1866, and no longer, and for the right to use the dock until that time to ship the stone from. He also stipulated for the right to leave two loads of stone on the dock at said time and for the privilege of removing the same two loads of stone from the dock as early as convenient in the spring of 1867. These were exceptions out of the general right transferred by Conrad to plaintiffs in error, and it was expressly provided that in using the work until December first, the defendant in error should commit no waste, and that he should so quarry as to leave no more than two vessel loads on the dock at the time last named.

It will be observed that there is no stipulation giving the right to remove any stone from the quarry after December first, or the right to keej) any stone in the quarry after that time, or the right to remove any, after that period, except by the way of the dock.

It will likewise be observed that the only place of deposit'for Conrad’s stone after December first, allowed by the terms of the contract was the dock, and also that he was bound to carry on the works in such manner up to that time as to leave not more than two vessel loads even there. By these arrangements, it may be fairly urged that the parties contemplated that the stone which the defendant in error might quarry would be removed by way of the dock, and that when it was expressly agreed that but two loads should oe left there, they supposed they had certainly guarded against any claim by Conrad to occupy the quarry with them.

But, if it be conceded, that this express stipulation is not open to that construction, the effect of the transaction must, I think, necessitate the same result.

As the defendant in error disposed of all rights which ho did not except, and as any right excepted could only be asserted consistently with the nature and extent of the grant on the one hand, and without exceeding the bounds prescribed to the excepted rights by the terms used to describe it on the other, I think he could not make the two loads his property by barely separating them from the mass. It was as much a condition of his privilege that he should have the two loads out of the quarry, and as essential to the completion of his right to them as it was that they should be severed from the ledge. I think this plainly appears from the terms and legal incidents of the bargain; and that in substance the right) of Conrad to the stone, left in the quarry, was no better than if they had been but partly separated from the mass.

On the cross-examination of a witness for the plaintiffs in error, he was asked if he had not been indicted at San-dusky, in 1865, for smuggling, and if he was not convicted, and both questions were objected to by plaintiffs in error, on the ground that they supposed the existence of better evidence of the facts called for; but the objection was overruled, and the witness stated 'that he had been convicted of smuggling.

This ruling is supposed to bej supported by Wilbur v. Flood, 16 Mich., 40, but I think the cases are quite distinguishable. In the case cited, the defendent on cross-examination, was asked if he had ever been confined in the State prison, and my brethren were of opinion that the question was not objectionable as an offer -to prove by parol what rested in record evidence. It is true that the opinion of my brother Campbell may seem to have gone further than this, but the point decided did not. Whether the witness had been confined in State’s prison, was a fact of personal experience and involving a question of identity, and no higher or better evidence in. contemplation of law could be furnished than the parol evidence of the witness. If it be said that the question implied a confinement under sentence, and hence that an affirmative answer must have tended to prove a conviction; the reply is that the circumstance that a piece of evidence might tend by way of argument or inference to prove a fact not lawfully susceptible of proof by such evidence, would be no ground for excluding it, if admissible for another purpose, nor could its admission for the legitimate purpose establish its application to the. illegitimate one.

In deciding the point in Wilbur v. Flood I think the Court did not purpose to assume that the nature of the evidence requisite to show a conviction was at all involved, since the raising of the question which was there decided, did not depend on the presence or absence of record evidence of conviction, but was wholly independent of any consideration of that kind. The point was not whether the witness had been convicted, but whether the question put to him supposed any higher attainable evidence of his own confinement than his own testimony, and the case on that branch of it, is only authority in my judgment, for a negative answer to that proposition. Indeed, such seems to be the necessary deduction, since it does not appear to have been claimed by counsel, or advanced by my brethren, that the settled distinction between primary and secondary evidence was inapplicable to cross examination.

In the present case the party resorted in the first instance to verbal testimony to prove the proceedings and judgment of a court of record, and not a distinct and independent fact of personal experience like that of detention in a particular place. Whether the witness had been indicted and convicted was an inquiry which involved several considerations of legal import, the technical nature of which, he could not be supposed to know, while the proof which that inquiry called for could be legally made by exhibiting the record, or if necessary by submitting evidence of its contents. The plaintiffs in error were entitled to insist, that the credibility of their witness should not be assailed by a species of proof not authorized by the rules of evidence; and in my view it was not competent under any circumstances to require the witness to state, what at best could be nothing more than his inference in a matter of law, and, in any aspect of the case, that the contents of the record were not provable by any sort of verbal testimony so long as better evidence was not shown to be unattainable.

The general rule is undisputed, and the necessities of cross-examination have not hitherto been deemed sufficient to dispense with it.

If we now discard the principle upon an assumption in favor of the party cross-examining, that he cannot prepare before hand to meet its requirements, we can only do so by imperiling the existence of the rule, and by ignoring the reasons for its enforcement which are plainly apparent in the uncertainty and danger of personal and unprofessional testimony in such a case, and also quite probably existing in the inabilility of the party calling the witness to anticipate an attack of the mode and kind made in this action.

The King v. The Inhabitants of Castell Careinion, 8 East 77; Hall v. Brown, 30 Gonn. 551; Doe ex dem. Sutton v. Reagan, 5 Blackf. 217, 219; Newcomb v. Griswold, 24 N. Y. 298; Clement v. Brooks, 13 N. H. 92; Commonwealth v. Quin, 5 Gray 478.

I agree with the Chief Justice, and for the reason given by him, that the objection to the admission of the contract based upon the Stamp Act was untenable.


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    Thomas Ellis v. Joseph D. Maxson.

      Evidence: Presumption as to foreign laws. If any presumption exists as to the laws of another State, it is, that they conform to the general principles of the common law. None will he made concerning the statutes of another State. Kermott v. Ayer, 11 Mich., 181; People v. Lambei't, 5 Mich., $l& recognized and approved.

      Heard October 6.

      Decided October 12.

    Error to Calhoun. Circuit.
    This was an action of assumpsit brought by Thomas Ellis against Joseph D. Maxson upon a promissory note; the defense to which, was that the plaintiff had agreed among other things, to cancel and surrender- the npte, in consideration that the defendant would sell and convey to the plaintiff a parcel of land in the State of Illinois. On the trial the defendant offered parol evidence of this contract, to which the plaintiff objected, — that to be valid, it must be in writing. No proof of the laws of Illinois affecting contracts rfor the, sale of. lands was offered. The Court overruled the objection and admitted the evidence. The jury found for the defendant; and the judgment entered on the verdict is brought into this Court by writ of error.

      T. Q. Pray, for plaintiff in error.

      L. D. Billie, for defendant in error.
   Campbell J.

The only error assigned in this cause is based upon the admission of parol proof of a contract for the sale of lands in the State of Illinois, there being no evidence to show what the law of that State required to make land contracts valid.

The evidence was properly admitted. A parol contract to sell lands was good at common law. It is only' made void by statute. If we should make auy presumption, iu the absence of evidence, as to the provisions of any foreign laws, it would be that they conform in substance to the general principles of the common law. How universally we could make such a presumption it is not necessary to- consider now. We certainly cannot presume that the Legislature of another State has adopted all of our statutes, and therefore we must have proof before we can know that they have passed any statute. This question was decided in Kermott v. Ayer 11 Mich. R. 181. See also, Whitford v. The Panama R. R. Co. 23 N. Y. 465, 468.

If the contract in question was required by the statutes of Illinois to be in writing, the statutes should have been introduced.—People v. Lambert 5 Mich. R. 349. In the absence of such proof, it was properly assumed to be valid.

The judgment must be affirmed with costs.

Cooley Oh. J. and Ohristianoy J. concurred.

Graves J. did not sit in this case.