text:
    John B. Fiquet, Jr. and another v. James Allison.
    Tenancy in common of crops put in on shares— One J.' put in wheat on shares on defendant’s lands, and was to have possession of the land, and do other farm duties upon shares of other produce. As there was no proof that it was agreed that J’s rights in the crops should be forfeited by non-fulfillment of any other conditions, and no evidence of damages from any such non-fulfillment, it was held, |in a controversy between defendant and plaintiffs, to whom J had mortgaged the c2*ops while growing, that J was clearly tenant in common of the crop.

      'What amounts to a conversion: assumpsit in case of. — When the orops were ripened, plaintiffs harvested them, but defendant drew them off, threshed them, placed them in his granary, and refused to recognize any rights of plaintiffs therein, or to deliver their share. Held,

      j? irsi: — That this exclusive possession of the crops, and denial of all right of plaintiffs therein, amounted to a conversion.

      Second: — That the tort might be waived and assumpsit brought for such a conversion, although no sale of the grain was pro yen except of a trifling portion not equal to defendant’s own separate interest.
    The grain being in marketable condition, the defendant in possession was bound, on reasonable request, to have the share of his co-tenants measured out to them; and for a breach of this duty, which the law implied from his express contract, assumpsit is as appropriate a remedy as any other, if plaintiffs see fit to resort to it.

      Heard April 7th

      Decided May 3d.

    Case made after judgment, from Livingston Circuit. The facts, so far as necessary to an understanding of the legal questions, are stated in the opinion.

      G. V. iy JOothrop, for plaintiffs:
    We claim the plaintiffs entitled to recover.
    1. They prove by Jarvis the agreement to take defendant’s farm on shares, for one year, and his entry on it and the putting in the crops.

      2. This contract gives him a title as tenant in common to his share of the crops put in by him: — 8 Johns. 151; 8 Cow. 220; 15 Wend. 379; 21 Vt. 172; 15 Barb. 333; 17 Ala. 162; 17 Ala. 172.
    This contract is not a lease, but a contract to work on shares.
    Whether Jarvis performed his whole agreement or not; whether he was justified in leaving the farm or not in November, is a matter of no consequenpe. It does not affect his title to his share of the growing crops. And this action is based on that title.
    The defendant refused to deliver the plaintiffs their share of the wheat; denied their right to any of it, and actually sold part of it.
    This was, in effect, a conversion of the wheat to his own use, and trover would lie: — 31 Barb. 569; Webb v. Mann, 3 Mich. 139.
    And the plaintiffs can waive the tort and maintain assumpsit: — 3 N. H. 384; 3 Eng. 202; 4 Penn. 295 ; 15 Ohio, 9; 1 Hill, 240; 5 Hill, 583.

      M. B. Wilcox for defendant :
    Jarvis had no interest in the grain that he could mortgage. His contract with defendant was not severable, and to entitle him to any portion of the crops, there should have been, at least, a substantial .performance on his part. Whereas, he utterly failed in every essential particular of his agreement: — 5 Mich. 449; 1 Chit. Pl. 303 ; 10 Mass. 287; 10 Pick. 205.
    If Jarvis had any interest in the grain mortgaged, the plaintiffs, by virtue of the mortgages, became tenants in common of the same with defendant.
    And to enable them to maintain this action they must show a conversion of the whole property by defendant: — 2 Greenl. Ev. § 646, and note 8 : taking the exclusive possession of the property, and refusing to deliver it on demand not being sufficient:— Co. Litt. 200; 3 Johns. 175; 1 Taunt. 241; 13 Me. 192; 15 Johns. 179.
    For this, either may lawfully do, each being equally entitled to the ¡possession: — 7 Mass. 137; 2 Greenl. Ev. § 646.
    Trover is the action usually brought by a tenant in common against his co - tenant for conversion of' common property; andj to sustain that action, a “ loss, destruction or sale” must be shown: — 2 Hill, 47; 22 Me. 287; 9 Cow. 230; 7 Wend. 449; 3 Mich. 143; 1 Taunt. 241.
    Assumpsit can only be brought in case of a sale of the property:.— 2 Greenl. Ev. § 120. An actual sale must be shown: — 5 Pick. 285; 10 Id. 161; 12 Id. 120; 3 Watts, 277.

    In such cases it is said the tort may be waived and .assumpsit may be brought to recover the proceeds of the sale, but there must be a tort to be waived for which trespass or case would lie: — 10 Pick. 161.
    It is difficult to conceive, then, so long as there is no tortious act shown, no conversion, no sale, how this action can be maintained.
   Campbell J.:

Plaintiffs sued defendant for the value of certain grain in which they claimed an undivided interest, and which, upon demand of their portion, he refused to surrender, denying their rights.

The grain was grown on shares upon defendant’s land, by one William Jarvis, who was to have possession from April 1858, to April 1859, and to put in crops on shares, and to do other farm duties upon shares of other produce. Some question was raised concerning his complete fulfillment of the various arrangements; but, as there is no proof that it was agreed his rights in the crops, as a tenant in common, should be forfeited by non-fulfillment of any other conditions, and as there is no proof of damages growing out of such non-fulfillment, it becomes unnecessary to consider whether the evidence will, or will not, warrant a conclusion that he failed in any duty. As the case stands, he was very clearly a tenant in common in the crops.

While they were yet growing, he mortgaged them to plaintiffs, who, at the proper season, caused them to be harvested, when they were drawn off by defendant, who threshed the grain and put it in his granary. He seems to have intimated some formal objection, in the outset, to the right of any one but himself to cut the grain; but subsequently, while it was being cut, recognized plaintiffs’ privilege to do so.

Two questions arise upon the facts:

First, whether defendant’s denial and refusal to recognize plaintiffs’ rights or deliver their share, amounted to a conversion; and secondly, whether assumpsit will lie for such a conversion; no sale being proven, except of a trifling portion of grain, not equal to the defendant’s own separate interest.

It is laid down by most of the authorities, that a refu' sal, by one tenant in common of a chattel, to relinquish possession, is no conversion, because each has as good a right to the possession as the other. But it can hardly be questioned that the refusal of any one to give up to another that to which such other has a letter right, would be a conversion. The doctrine referred to applies to things in their nature so far indivisible that the share of one can not be distinguished from that of another. But it can have no reasonable application to such commodities as are readily divisible, by tale or measure, into portions absolutely alike in quality: as grain or money. When one person is entitled to half of twenty bushels of wheat in a mass, he is entitled to have ten bushels in severalty: and it would be destructive of all his beneficial rights to hold that his co - tenant in the heap could refuse a division, when properly demanded; or that one who held one hundred dollars for himself and a co-tenant, could retain the fifty dollars of each. In the case at bar, defendant refused to give up any portion of the grain, and denied that he had any grain for the plaintiffs. Such an absolute denial of title, and refusal to recognize the rights of his co-tenants at all, would, we think, amount to a conversion, under any circumstances. It is difficult to see how a sale would work any greater prejudice to the co-tenants, who are effectually deprived of their property, so far as it is in his power to deprive them.

The question then arises, whether an action properly lies in assumpsit. It is said in several of the cases, that, where property has been tortiously taken, and converted by sale, the owner may affirm the sale, and sue for the proceeds in assumpsit; but that where there has been a conversion without sale, the tort can not be waived. It certainly is somewhat anomalous to place parties in contract relations against their will, where no privity exists: and the cases where it is pernlitted seem to be justified only on the ground that no prejudice can result to the defendant by allowing it. But where a party commits a breach of a duty, which the law implies from his express contract, assumpsit is as appropriate a remedy as any other, if a plaintiff sees fit to resort to it. The plaintiffs here derived their rights, as tenants, from the contract of defendant with their grantor, creating the tenancy. The grain being in marketable condition, the co - tenant in possession was bound, on reasonable request, to have the plaintiffs’ share measured out for them. His own contract precludes him from claiming more than his proportional amount. When he concludes to retain the remainder, he certainly is bound to pay for it: and the plaintiffs may, by their consent, convert the transaction into a sale; as it would have been a sale originally, had such consent been given at the time. We think no principle of law is violated by allowing tbe action to be maintained in its present form.

Judgment must be rendered for plaintiffs, for 1110.48, being the value of tbe grain when converted, with interest. They are also entitled to costs of both Courts.

Martin Ch. J. and Manning J. concurred.

Christiancy J. did not sit in this case.


source: Caselaw Access Project

author: Christianct J.:

license: Public Domain

text:
    City of Detroit v. Detroit and Erin Plank Road Company.

      Power of planfc road company to change location of gates.— A plartlc road com pany has general power to change the location of its gates, and to erect new. ones, 11111688 specially restricted.

      J&oclusion of gates from city limits — subsequent extension of limits. — A plank road, company occupying for their purposes a road leading from the city of Detroit, procured an amendment to their charter, by which they were “empowered to extend their road on Gratiot street to Randolph street in the city of Detroit: provided^ that no toll gate shall be erected or maintained within the limits [of said city by said company.” Subsequently the city limits were extended, "by statute so as to embrace a portion of the original road upon which a gate had before been erected. It was held, that the amendatory act did not restrict the original powers of the company to erect and maintain a gate on any portion of the road then outside the city limits, but only prohibit ted any gate upon the ‘extension of the road which was authorized by the amendatory act.

      Heard April 23d.

      Decided May 3d.

    Certiorari to tbe Recorder’s Court of Detroit.
    ■ Defendants were prosecuted in the Recorder’s Court under a city ordinance, for obstructing tbe Port Gratiot Road by a toll bouse and toll gate. Tbe case was tried in tbe Court below upon tbe following stipulation, signed by tbe attorneys for tbe parties, as tbe sole evidence.
    “Tbe defendant was incorporated by a statute entitled ‘An act to incorporate tbe Detroit and Erin Plank Road Company,’ April 3d, 1848, and published on page 382 of the Session Laws of that year.
    “This act, and the other acts referred to hereafter, may be read in evidence, and is made a part of this stipulation as much as though copied entire herein.
    “When the above charter was granted the eastern line of the city was along Dequindre street.
    “In 1849 the company built their road, and erected a toll gate and house in the street within what is now the tenth ward of the city of Detroit. Said gate and house were removed from their first ¡position to their present position as hereafter stated, in the year 1862.
    “In 1851 the Legislature authorized the company to extend their road into the city along Gratiot street to Randolph street, with a proviso that, no toll gate should be erected or maintained within the limits of said city. Laws of 1851, p. 35.
    “The company extended their road accordingly.
    “In 1857 the corporate limits of the city were;extended on the east so as to embrace what is now the tenth ward. Laws of 1857, p. 209.
    “The company now maintain a gate and house in the street on the Fort Gratiot Road, near the corner of Elm-wood Avenue, within the tenth ward.
    “Fort Gratiot Road was built by the United States while Michigan was a Territory.
    “It is hereby agreed that this case shall be submitted to the Court on the above stated facts, without other evidence.’’
    The Recorder’s Court', on this stipulation, found the defendants not guilty.

      T. H. Hartwell, City Attorney, and D. (7, Holbrooh for the prosecution:
    The plaintiff in error contends, that the act of 1851 cannot, by any fair construction, give the company a right to maintain a gate within the city limits, as thereafter at any time established; the then present intention of the act was to prevent it; and why should it give a right by mere implication to do afterwards what the act then prohibited?
    . The inconvenience of a gate was intended to be prevented by the act; and can it be supposed that while the road could not maintain a gate within the then limits, that this prohibition should not operate on a future extension of city limits? as though one part of -the city should be, and another part not, subject to the inconvenience of a gate, ignoring the probability of a necessary extension of the city limits.
    It will be said that because the company was allowed to extend its road into the city, if the prohibition was not annexed, a gate might be maintained under the original act any where within the city. In reply to this we say, it was a part of the contract prospectively that no gate should be erected on the extension of the city limits : — Regina v. Cottle, 3 E. L. & Eq. 474.

      Walker <& Rent, for defendants :
    The power of the Legislature to grant to the company the use of the Fort Gratiot road is settled in McKay v. D. & E. P. R. Co., 2 Mich. 138, Under their right to erect toll gates, they may change their gates, or erect new ones, when necessary: — Cheshire Turnpike v. Stevens, 10 N. H. 133. They can erect toll gates and toll houses in the street: — 2 W. & S. 548; 6 W. & S. 378.
    The right of the company under the original charter, to maintain the toll gate complained of, will not be questioned. The place was then without the city. The mere extension of the city limits could not take away this right. The act amendatory of defendant’s charter clearly referred to the city as then limited, and discloses no intention to restrain the powers given by the original charter. .There is no substantive enacting clause which intimates such a purpose; and to say that it was sought to be obtained by a proviso only, is a novel legal proposition. A proviso is a limitation of a previous declaration, deed or grant: —10 Pet. 449 ; 10 Wheat. 30. The purpose of the act was clear. The company desired to extend their road into the city. The Legislature was willing to grant that right. But an unqualified grant might seem to carry over the extension the existing incidental franchises of the company. Hence the claim to erect gates on the extension might be set up. This the Legislature did not intend to permit. It was therefore said; “you may extend your road within the city limits, provided, you shah not erect and maintain gates within those limits.”
   Christianct J.:

The only question in this case, is, whether the plank road company had the right to erect and maintain a toll gate on the Fort Gratiot road, or Gratiot street, in the tenth ward of the city of Detroit.

By the charter of the company — Laws of 1848, p. 382 — they were authorized to establish and construct their road '■'•from the city of Detroit in the county of Wayne, on the Gratiot road, so called,” to, &c. Their right to the use of the Gratiot, road for this purpose was affirmed in the case of McKay v. The Detroit & Erin Plank Road Co., 2 Mich. 138.

Under the General Plank Road Law of 1848 — Laws of 1848, p. 65, § 17 — which was made a part of their act of incorporation, the company had power to erect and maintain toll gates; and it is provided that “ such toll gates so to be erected by such company may be as many in number, and located at such points, as such company may deem necessary.” The general power to change the location of a gate once erected, or to erect new ones, unless specially restricted, can not be doubted. See Cheshire Turnpike v. Stevens, 10 N. H. 133.

The road was constructed in 1849, and a toll gate •erected within what is now. the tenth ward of the city; and, it would seem, near the place of the present gate; how near does not appear. This ward was not then, nór •until 1857, within the city limits; but the corporate limits were then extended by the Legislature, and this ward •added to the city. The location of the gate seems to-have been changed in 1862, but which way or how far 'does not appear; nor is it material, as the places of both the former and present gates were outside of the city limits until 1857.

There can be no doubt that, under their original charter, the company had the right to erect and maintain their gate in the place where it was first located, and which was then without the corporate limits of the city. Nor do we- see any more reason to doubt that, under that act, unless altered in this respect by the amendatory act of 1851, they would still have the right to continue the gate, or erect and maintain a new one, at any point on their road, not within the city limits as established at the date of the charter and when the road was constructed, notwithstanding the subsequent extension of the city limits so as' to include the place in question. But their rights terminated at the city line, as then established. They could neither extend their road, nor construct a gate within the city. But in 1851 the company, it would seem, Were desirous of obtaining the right to extend their road into the city; and, by an act amendatory of their charter— Laws of 1851, p. 36, § 2 — the Legislature granted them this power in the following words: “ Said Detroit and Erin Plank Road Company may, and they are hereby empowered to extend their road on Gratiot street to Randolph street in the city of Detroit; Provided, that no toll gate shall be erected or maintained within the limits of said city by said company.”

We have not been able to discover in this amendatory act any indication of an intent to restrict or impair any of the powers granted to the company by their original act of incorporation. Its object clearly was to grant to the company powers additional to those it already possessed; and the purpose of 'the proviso was to restrict of qualify that additional grant of power, and that only. The proviso is no more extensive in its operation^ than the power which it qualifies; and both are confined in their operation to that part of the road authorized to be constructed between the city limits, as then established, and Randolph street. The Legislature have merely said to the company, “ you may extend your road into the city as far as Randolph street; but, in doing so, you shall not erect or maintain a toll gate upon the portion thus extended.” To extend this proviso to the original act, would be to disregard the plain purpose for which the amendatory act was passed, and to change the proviso into a positive and independent enactment.

Had this proviso been inserted in the original charter of the company, as a limitation of their powers, the case might have fallen within one of the principles recognized in Regina v. Cottle, 3 Eng. L. & Eq. 474. But even then, to bring this within the controlling principle of that case, it should further have been made to appear, not merely that the gate was within the territorial limits of the city corporation, but that the town had been actually built up along that portion of the road; in other words, that the gate was upon the street of a town or city de facto, where the public inconvenience would be very great, rather than upon a road in the country, where it would be very little. Here it does not appear that there was a house or other building within a mile of the gate.

The judgment of the Recorder’s Court must be affirmed, with costs.

The other Justices concurred.


author: Cheistiancy J:

text:
    John C. Blanchard v. Timothy M. Tyler and another.

      Bona fide purchaser, who is. — To constitute a bona fide purchaser there must he want of notice both at the time of the purchase, and at the time of payment. Warner v. Whittaker, 6 Mich. 133.
    Where, therefore, the defendant gave his note, not negotiable, for land of which complainant held a prior unrecorded deed, but was fully informed of complainant’s equities before making payment of the note, it was held that he could not claim the protection of a bona fide purchaser.

      Bona fide purchaser: who may claim rights of. — The defense .of a bona üdo purchase can only he made by the purchaser himself, or by some one claiming through his purchase.

      Deed of lands: presumption as to time of delivery. — Where a doed is acknowledged on a day subsequent to its date, and there is no proof of delivery prior to the acknowledgment, it must he presumed to have been delivered after-wards'; such being the usual course and practice in reference to the delivery of deeds and other instruments intended for record.

      Landlord and tenant: attornment to third person. — It is entirely incompetent for a tenant, without the consent of his landlord, to change the nature of his tenancy, by attornment to a third person: — Byrne v. Beeson, 1 Doug. Mich. 179.

      Bill to quiet \ title: complainant's possession. — Bill to quiet title to land. It appeared in evidence that a person who was in possession- as tenant of a third party, had, with his landlord’s assent, attorned to two persons who were not shown to have any interest in the land, and one of whom afterwards, as agent for the complainant, executed a lease of the whole land to the tenant. It was held that this lease would estop the person signing it as complainant’s agent from setting up any claim as against complainant, and that the possession of complainant by his tenant under it, ostensibly of the whole, and rightful at least for one half, was sufficient to enablo complainant to maintain a bill, under the statute, to quiet his title to the land as against a third person claiming it.

      Heard April 21st.

      Decided May 3d.

    Appeal in chancery from Shiawassee Circuit. The facts, are stated in the opinion.

      A. Gould and A. Pond for the complainant,
    argued that, independent of the question of possession by complainant, tbe bill might be maintained. The claim of complainant is to be relieved against the deeds of Tyler & Hearse obtained to commit a fraud, and the Court has jurisdiction, independent of the statute, to cancel a deed obtained by fraud, and which is a cloud upon title: — 5 Paige, 501; 2 Paige, 482; 14 N. Y. 6; Story Eq. Juris. 699, 700; 9 Paige, 388; 6 Pet. 5.

      McGurdy & Paynale, for defendants,
    insisted, among other things, that complainant was not only not in possession of the land, but that he had no title to it; as by his own evidence it appeared that Lewis conveyed the land to Simonson one day before the execution was issued under which complainant claimed.
   Cheistiancy J:

The bill was filed against Timothy M. Tyler and James Hearse, to remove a cloud upon complainant’s title to an eighty acre lot of land in the county of Shiawassee.

The land was patented by the United States to Ira Merrill in 1837.

Merrill (aud wife) conveyed to Augustus Grosvenor, July 4, 1838.

Grosvenor conveyed to George Dahash, August 2, 1853.

Dahash (and wife) conveyed to Abram Lewis, July 13, 1855.

All the above deeds were recorded soon after their date, except the one from Grosvenor to Dahash, which was not recorded till the 24-th day of May, 1859; and this delay gave occasion to the transactions which led to the present suit.

Complainant derives his title through an execution sale to him upon a judgment against said Abram Lewis. The levy was made December 30th, 1856; the sale, February 28th, 1857: the sheriff’s certificate of sale was filed with the register of deeds March 3d, 1857, and his deed was executed to the complainant June 9th, 1860, after the time of redemption had expired, and was recorded the same day. Such is the title shown by complainant.

The defense rests mainly upon a deed from Grosvenorto Tyler, which will be presently noticed. On the lYth day of May, 1858, a few days before the time of redemption expired, Lewis, the defendant in the execution, execu-, ted a deed of the same lands to defendant Tyler; but this deed being executed long after the certificate of sale to complainant was filed, was void as against complainant; Tyler being chargeable with notice of the execution sale.. But on the 21st day of May, 1858, Tyler obtained a quit claim deed for the same land from Augustus Grosvenor, whose deed to Dahash had not yet been recorded. The bill alleges that Tyler at the time he obtained this deed had knowledge of the previous deed to Dahash, and of complainant’s rights, that the deed was without consideration, and that Tyler fraudulently procured it for the purpose of cheating and defrauding the complainant. From a careful examination of the testimony — which we do not deem it necessary here to review — including that of' Tyler himself — which charity to him would hardly permit us to review — we are entirely satisfied that these allegations of the bill are well sustained by the proof. As, against complainant, therefore, Tyler acquired no title either-by the deed from Lewis or by that from Grosvenor.

But on the third day of August, 1858, Tyler (with his, wife) executed a deed of the land to defendant Hearse, and has put in a disclaimer of all interest in the land. The bill charges that Hearse took this deed with full notice of complainant’s rights, and of Tyler’s want of title ; alleges that he paid nothing for the conveyance, and that he received the deed for the purpose of defrauding complainant. Hearse denies this, and sets up the defense of a, bona fide purchase for a valuable consideration without notice. We are strongly inclined to think from the testL mony of Hearse himself, who was sworn in his own behalf, that he was well aware of the nature of the title, and of the attempted fraud of Tyler, and that he took the conveyance for the very purpose of aiding Tyler in the perpetration of the fraud upon complainant. But whether he did so or not, or whether he had full notice at the time, is immaterial. He paid nothing to Tyler at the time. Tyler was owing him, he says, about seven dollars and fifty cents, which was to apply on the purchase, and he gave him a note, not negotiable, for six hundred dollars less the last mentioned sum. This note it was understood should be paid by turning out other notes. This it is claimed was done, but not till some considerable time afterwards. Yet he admits that immediately after the sale to him he was fully informed of the nature of the title. Whatever he paid, therefore, was after such notice; and such payment, if in fact any notes of value were turned out, was made in his own wrong, and he must bear the loss: — Warner v. Whittaker, 6 Mich. 133.

But it is objected, that complainant was not in possession at the time of filing the bill, and that, in the attempt to prove such possession, he has proved the title out of himself, and in one John L. Simonson.

Whether this bill could be sustained independent of the statute — Comp. L. § 3490 — we do not think it necessary to decide; as we think complainant has shown a sufficient possession to bring himself within the statute, if that be necessary.

Complainant introduced a deed executed by Lewis to John L. Simonson, bearing date the twenty-ninth day of December, 1856, one day before the levy of complainant’s execution, but not acknowledged till the second day of January, 1857, the third day after the levy. In the absence of any proof of delivery prior to the acknowledgment, we must presume that it was not delivered till after the acknowledgment, such being the usual course and practice in reference to the delivery of deeds and other instruments intended, for record as this was, and the deed being incomplete for this purpose till acknowledged. The deed, therefore, being subsequent to the levy, the only ground, if any, upon which Simonson could claim title as against the sale to complainant, would be that of a bona fide purchase for a valuable consideration without notice. But this ground could only be made available by Simonson himself, and those claiming through or under him. Hearse does not claim through the deed in any way, but in opposition to it. Simonson may have had full notice, he may have known that all he was getting by his deed was the right of Lewis in the land subject to the execution, or he may have paid no consideration, and may not choose to set up any claim on the ground of a bona fide purchase; and his subsequent conduct in reference to the attornment of Fuller, his tenant, would indicate that he did not intend to insist upon such claim. So far as defendant Hearse is concerned, the levy must be treated as binding the land from its date. He can not invoke the aid of the registry law in favor of a deed under which he does not claim, and if he could, that law would cut off all claim he might have under the deed from Lewis to Tyler, as the deed from Lewis to Simonson was prior to that, and on record long before it.

Simonson put Fuller in possession in the spring of 1857, under an agreement that the latter should work the land, pay taxes, keep up the fences, &g. Fuller testifies that he continued to occupy under Simonson until the execution of the lease made to him by complainant, through the agency of E. Gould, May 1st, 1860. By this the land was leased to Fuller “for the term of one year from the first day of August [then] next,” which (Fuller being then in possession, and Simonson having agreed to his holding under the Goulds, as will presently appear) we think must be understood as creating a tenancy from the-date of the lease, and to expiire a year from the first, day of August then next.

Simonson’s testimony was taken in February, 1862, and. he testifies that more than a year before that time the. Messrs. Gould — both Amos and Ebenezer Gould — had asked, him if he was willing to let Mr. Fuller hold possession under them, and that he assented to his doing so. It was. doubtless soon after, and probably in consequence of this, assent, that the lease to Fuller was executed by E. Gould,, as the attorney and in the name of Blanchard. And as. it does not appear that either of the Goulds ever had or-pretended to have any claim to the land] in their own right, we think it is fair to infer from the circumstances, of the case, that the assent of Simon son to Fuller’s attornment was obtained for the benefit of comjplainant, and that, both the Goulds were acting in his behalf, though there-is no direct evidence of this. Fuller testifies that uj> to the time of this lease he was in possession under Simon-son; that he never occupied by arrangement with Hearse, nor under Tyler.

But if the attornment had been actually made to theGoulds in their own right, the execution of the lease by E. Gould as agent of the complainant, would estop) him, at, least, from claiming against complainant, and have the-effect to p)ut complainant into possession of the undivided half as tenant in common with A. Gould, if nothing more,, to say nothing of the imp>robability of E. Gould consenting to act as the agent of complainant, and as such leasing-the whole property to Fuller, if either he or Amos Gould claimed any right in the property. The ■ lease purported to be for the whole property, and the tenancy was ostensibly of the whole; but if it was rightful only for one half as a tenancy in common, still we are iuclined to-think such possession was sufficient to enable complainant to sustain his bill under the statute.

But it is insisted by defendant Hearse, that immediately after tbe thirtieth day of August, 1858, when Tyler’s deed to him was executed, he, Hearse, let the land to Fuller, and that Fuller was in possession under him as tenant at the time the bill was filed. But it is clear from the testimony of Hearse himself, that when he called upon Fuller, and when this pretended letting took place, Fuller was already in possession; and from the testimony of Fuller and Simonson, it is also clear that he had been in possession over a year, and then was in possession, under Simonson. It is therefore wholly unnecessary to determine what kind of arrangement was actually made on that occasion between Hearse and Fuller ás to the latter becoming the tenant of the former; since it was entirely incompetent for Fuller, without the consent of Simonson, to change the nature of his tenancy by acknowledging Hearse as his landlord. See Byrne v. Beeson, 1 Doug. Mich. 179.

Hearse says he went to the land with Lewis and Tyler to take possession; that Fuller informed him of his holding under Simonson; that Lewis told Fuller he, Lewis,, had sold to Tyler, and Tyler to Hearse, and they had come to take possession, &c. Such was the ground upon which Hearse’s claim of possession was based; and the attempt to change the tenancy of Fuller by the pretended arrangement claimed to have been made there, was not only clearly fraudulent, but it shows that Hearse claimed title through Lewis, the defendant in the execution; and that his claim was therefore thus far invalid as against the levy and sale to complainant.

We think the decree of the Court below was clearly right in declaring the deed from Abram Lewis and wife to Tyler, that from Grosvenor to Tyler, and that from Tyler and wife to defendant Hearse, plainant, and in decreeing a release that decree must be affirmed, with void as against com-from defendants; and costs.

The other Justices concurred.

       See also Thomas v. Stone, Wal. Ch. 117 ; Dixon v. Hill, 5 Mich. 404.

       See also Falkner v. Beers, 2 Doug. Mich. 117; Lee v. Payne, 4 Mich. 106.


author: Campbell J.:

text:
    Thomas K. Adams v. Henry M. Bradley and others.

      Fraudulent grantee to hold in trust for person [cgwilcibly entitled, — Two tenants in. common agreed to hold separate parcels of their land in severalty, hut no releases were executed. Each afterwards sold his parcel, giving a deed of the whole interest as if ho had thad a release from his co-tenant, A grantee of •one of them sold, .taking back a mortgage for the purchase price, and the other, ¡.byi-an understanding with the mortgagor, gave a deed to the mort■gagor’s brother, with the ineention thereby to perfect the title conveyed by his co-tenant. A small consideration was paid for this deed, which, however, -the grantor did not demand. Proceedings being taken to foreclose the mort•gage, this deed was set up as a defense to one half its amount, on the ground •of failure of consideration. It was held, that the grantee in the deed, under the circumstances, took it as a trustee, and the deed must be regarded as a 'mere release of the grantor’s interest, in pursuance of the original understanding between the co-tenants.

      Forties to foreclosure suit. — The grantee in this deed was held to bo a proper party to a suit to foreclose the mortgage, in order that he {might be deoreed to make his deed properly operative as a release.

      Title to land: the deeds presumed to show its actual state. — A partnership of three persons owned lands, which, however, had been conveyed to the throe without any reference in the deed to the partnership. It .was held that a mortgage given by one of the three on an undivided one - third of the land, to one who had no notice that it was partnership property, was not affected by the partnership equities. Such mortgagee had a right to assume that the common possession of the three was under and in accordance with the record title, and not under some other and parol arrangement,

      Foreclosure suit: multiplicity of issues. — Three persons who had held land in partnership sold it, and gave separate conveyances to the purchaser, who, in pursuance of an arrangement to that effect, gave back a mortgage for the purchase price to one of them. The purchaser afterwards bought up a mortgage given by one, on an undivided one{-third of the land, and sought to make a set off of this in a suit to foreclose his own mortgage. But the set off was refused, the Court holding that claims under this mortgage could bo better litigated in a separate suit; and the foreclosure ‘decree was so framed as to leave this prior mortgage untouched.

      Forties to suit in equity: cestui que trust. — In a suit by a trustee to reduce the trust fund into his possession, the cestui que trust need not be made a party. Sill v. Ketcham, Har. Ch, 423; Morey v. Forsyth, "Wal. Ch. 465; Martin v, McKeynolds, 6 Mich. 70.

      Heard April 26th, 27th and 28th.

      Decided May 10th.

      Appeal in chancery from Bay circuit. The facts appear by the opinion.

      W. L. Webber and G. V. JST. hothrop for complainant.

      J. G. Sutherland for defendant.
   Campbell J.:

This bill is filed to foreclose a mortgage, made by Lot Frost and Charles Bradley to complainant, in pursuance of a contract of purchase made with complainant, and George S. Lester and Mark Carrington, who shortly previous to the date of the contract had dissolved partnership.

The property mortgaged had been used by the partnership firm, under the name of Lester, Carrington & Co., and consisted of the mill property, which had been used for lumbering purposes, and of several other parcels of less value.

The mortgage was dated May 1st, 1855, and was made to Adams individually, as he was authorized to settle up the partnership concerns.

The three Bradleys answer separately. Several defenses are set up, and it will be necessary to refer f to them singly, in order to make the case intelligible.

At the time when the transactions took place with Frost and Bradley, the title to one undivided half of the mill lot was defective. It had originally been owned by John P. C. Riggs and Henry Riggs, for whom their father purchased two lots, intending one for each, but having them conveyed in common. This mill lot was conveyed by John P. C. Riggs, as his own, in 1842, by title to which George S. Lester succeeded by purchase in the spring of 1854, when the lot was vacant and unimproved, and worth about one hundred dollars. This purchase was made with a view of erecting a saw mill, which was done at the expense of Lester, .Carrington & Co., during the same year. Lester, in 1854, conveyed to Carrington and Adams each one undivided third part of the lot, and they all subsequently conveyed to Frost and Bradley by separate deeds, the mortgage now in controversy -being given for purchase money. Frost conveyed his interest to Charles Bradley, who conveyed the entire interest to Henry M. Bradley, December 81, 1851. In April, 1859, Henry Riggs and wife conveyed an undivided half of the mill lot to Nathan B. Bradley, who now claims to own it, and the other defendants insist that, as an outstanding and valid title to one half of the mill lot, it should procure an abatement of one half of the mortgage, on the ground of failure of consideration to that extent.

It appears clearly in the case that, in 1859, prior to the conveyance to Nathan Bradley, Henry Riggs and John P. C. Riggs came to an understanding, whereby each was to convey to the grantees of the other his Undivided interest in the lots which had been theretofore conveyed, whereby Henry was to release his interest in this mill lot, and John was to release his interest in the other lot which Henry had sold. It appears that the lots purchased for John and Henry Riggs, by their father, although never actually partitioned, had been conveyed in severalty, as if they had been. In pursuance of this understanding Henry Riggs conveyed his half of the mill lot to Nathan Bradley, who represented that he wanted it to complete • the title derived from John P. C. Riggs. The consideration paid was fifty dollars; which, however, was volunteered by Nathan, — Henry Riggs not requiring it — and which was really paid by Charles or Henry M. Bradley, it is not very clear which. Charles Bradley had consulted counsel about buying it, and we are satisfied it was obtained by an understanding among the defendants. As against com. plainant or the -firm of Lester, Carrington & Co., we are satisfied this conveyance to Nathan Bradley must be held to enure to the benefit of the mortgage title. It was so designed by Riggs, and he would not have conveyed it •otherwise. Nathan Bradley took it as a mere trustee, and it must be regarded as a mere release, which he will be decreed to make operative. Any other construction would give effect to a gross fraud. He is properly made a party, for the purpose of compelling this redress.

A second] defense relied upon by Henry M. Bradley, to reduce the mortgage, is a prior mortgage now owned by him, given by George S. Lester to Thomas J. Stead, of Providence, Rhode Island, December 1, 1854, upon an undivided third part of the mill - premises. Complainant also seeks in his bill to have this Stead mortgage postponed to his, on the ground that the property was partnership property, and was therefore subject to all the partnership equities. The mortgage to Stead was made for a valuable consideration, and in good faith so far as actual notice is concerned. The title had, by the act of the partners, been kept separate. The original title was purchased in Lester’s name, and not in that of the firm, and he subsequently deeded to Adams and Carrington separately, each an undivided third, making no reference in the deeds to any partnership arrangement.

Without undertaking to determine whether, under such •circumstances, actual notice of the partnership would have affected the incumbrancer, we are satisfied that where the record shows a right to a possession as tenants in common, a purchaser or incumbrancer is authorized, without actual notice, to assume that the common possession is under and in accordance with the record title, and not under some other parol arrangement. We think this mortgage cannot therefore be postponed to that of complainant. But we are also of opinion that it can not be set off against complainant’s mortgage.

The Stead mortgage is a private claim against Lester, and is a lien on nothing but the undivided third part of ■the property. The conveyances to Frost and Bradley were made by each tenant in common separately, and neither Adams nor Carrington covenanted, except as to their own shares, which were unincumbered. And if any liability remains under the original contract of sale, Adams has been expressly released from it.

Henry M. Bradley must be left, therefore, to his remedy on the mortgage itself, and, as it is a prior mortgage, and the equities can not be cut off by this proceeding, the decree will, as to one undivided third part of the title, be made so as to leave this mortgage untouched. It can not be litigated in the present suit, without introducing collateral issues, which can be better disposed of separately.

The only remaining questions relate to the mortgage sought to be foreclosed in this suit.

The bill was dismissed below, because Lester and Carrington were not made parties. This bill is filed to collect a debt, and not to settle the rights of cestui que trusts in its proceeds. No controversy can arise here between Adams and his late partners. It has always been settled as the rule in this State, that, in a suit by a trustee to reduce the trust fund into his possession, the beneficiaries need not be brought in: — Sill v. Ketchum, Har. Ch. 423; Morey v. Forsyth, Wal. Ch. 465 ; Martin v. McReynolds, 6 Mich. 70.

The only remaining inquiry is concerning the amount due. Three notes were given of $2,440 14 each. The third note remains entirely unpaid. Upon the first note payments were made, which reduced the principal to $'704 11. For this amount, Frost and Bradley executéd, as collateral, a new note, which when paid was to apply in satisfaction. This new note was indorsed by Adams, and held by Simeon Folsom when this suit was commenced, but has since been taken up by Adams as indorser. It was objected that Folsom should have been made a party. But as Adams held the securities in his own name, the rule above referred to rendered it unnecessary. And as at the time when this fact came out it also appeared that Adams had become reinstated as owner, it may be doubted whether, under any circumstances, an amendment would have been ordered, which had become immaterial.

The principal sum of $104 11, with interest from May 15th, 1851, remains due on the first note, making, May 1st, 1864, $1,041 11.

On June 29, 1851, the second note had been reduced down to $625 11, and was then held by the Bank of Macomb county, with Adams’s indorsement. A draft was given by Bradley for $1000 which, if paid, was to cancel this balance. It was not paid, and Adams was obliged to take it up. Upon the second note thei’e is due, therefore, $625 11, with interest from June 29th, 1851, making, May 1st, 1864, $924 45.

Upon the third note, there is due $2,440 14 with interest from May 1st, 1855, making May 1st, 1864, $4,001 42.

A decree must be entered reversing the decree below, and declaring that the title of Nathan B. Bradley is subject to this mortgage, and requiring him to release to the purchaser at the foreclosure if the property is sold under this decree. Defendants are to pay $5,9l9 04, with interest from May 1st, 1864, and costs of both courts, in three months, and in default thereof the property is to be sold in the usual way.

The undivided one - third of so much of the property as is covered by the Stead mortgage is to be sold subject to the lien of that mortgage. The bill to stand dismissed without costs as to Thomas J. Stead, who has no further interest, and who has not appeared. Nathan, Charles and Henry Bradley to be personally liable for costs if there is any deficiency. The decree to be transmitted to the Court below for execution.

The other Justices concurred.


author: Christiancy J.:

text:
    Calvin Goodspeed v. Joseph Dean.

      Zand contract: effect of vendor terminating it. — A vendor, having, on default by the vendee, elected to treat as void a contract which he had given for the sale of lands, and having given the vendee notice to quit, must be regarded as having relinquished his right to the amount then due on the contract. He can not treat the contract as void in respect to the rights which it secured to the vendee, and valid in respect to those which it secured to himself.

      Heard May 3d.

      Decided May 10th.

    Case made after judgment from Livingston Circuit.
    On April 10th, 1860, plaintiff entered into a contract with defendant to sell him a certain parcel of land for the sum of $2,100, $100 of which was to be paid down, $100 with interest on the whole February 10, 1861, and the balance in five equal annual payments, with annual interest. The contract contained the following clauses:
    “In case default shall be made by the party of the second part, Ms heirs, executors, administrators or assigns, in any of the conditions above stipulated, to be performed by him, it shall and may be lawful for the party of the first part, if he sees fit, to declare this contract void, and to re - enter upon the said premises at any time after such default without serving on the party of the second part, or other person holding under him, a notice to quit said land.
    “And in case said contract shall be so declared void the party of the second part shall henceforth be deemed a mere tenant at will under the said party of the first part, and be liable to be proceeded against in the same manner, without notice to quit, under the provisions of an act regulating proceedings in case of forcible entry and detainer and the acts amending the same; and the said party of the first part in such case shall be at liberty to sell the land to any person or persons whomsoever, without being liable in law or equity to the party of the second part, or any persons claiming under him, for any damage in consequence of such sale, or to return any payment made on account of this contract, and payments that shall have been made may be held by the party of the first part as stipulated damages for the non-performance of this contract.’’
    The first $100 was paid at the date of this contract. The payment due February 1, 1861,. was not paid, and on the fifth of March following, plaintiff served upon defendant a notice to quit the premises. April 1, 1861, the parties entered into a new contract for the purchase by defendant of the same land, for the sum of $2,000, $400 of which was to be paid April 1, 1864, and the remainder in four equal annual payments thereafter, with interes. This contract made no allusion to the former one.
    The present action was brought to recover one year’s interest on the first contract. The plaintiff claimed that it was orally agreed, between himself and the defendant, that the latter would pay him the interest due on the first contract, if he could have a new contract postponing the payment of the principal. In respect to this oral contract, the evidence was conflicting.

      O. Hawkins and T. M. Cooley for plaintiff.

      G. V. N~. Lothrop for defendant.
   Christiancy J.:

By the first written contract the plaintiff had the option, on any default in payment, to treat the contract as void, and the defendant was thenceforth to be deemed a tenant at will; plaintiff having a right to re - sell the land without being liable to any damage in consequence of such sale, or to return any payment which had been made on the contract. Defendant having failed to pay the installment of one hundred dollars due February 10, 1861, and the interest on the two thousand dollars then due, the plaintiff elected to treat the contract as void, and gave defendant a notice to quit. By this election we think he must be understood as having also relinquished his right to the amount then due upon the con. tract. He could not treat it as void in respect to the rights which it secured to the defendant, and valid in respect to those which it secured to himself. Having declared it void as to the land, it was void also as to the payments which it had bound the defendant to make for the land. There was nothing therefore upon which plaintiff, could base a right of action for either the principal or the interest which had become due upon it.

He was at liberty to re-sell the land on such terms and for such price as he should be able to obtain, whether it were the same amount or more or less than the old contract had provided for.

He chose to sell the land again to the defendant, and entered into a new written contract with him to sell it for the price of two thousand dollars, which happens to be the same amount of principal which remained unpaid upon the old contract, including the one hundred dollars which had become due upon it. If by the new arrangement for a re-sale, it had been intended that the defendant should pay a sum equal not only to the principal unpaid but also the interest accrued upon the old contract, this would in effect have constituted a part of the price, and would therefore naturally have been included in the new written contract, which covered the whole subject matter of the land, the price and mode of payment.

It is true it would have been competent for the parties to have provided for so much of the price as was equal to this back interest by a separate and independent contract. But being in effect a part of the price, and therefore a part of the same subject matter as the new written contract, any verbal conversation or agreement which might have been had or made prior to or at the same time of the new written contract, I am inclined to think must be looked upon as merged in the latter, which purports to fix the whole price to be paid. There was no written contract for the payment of this interest either before or after the new contract, and none is claimed. If a verbal contract for its payment was made after the new written contract, it might be very questionable whether it would rest upon a sufficient consideration. But it is unnecessary to discuss the effect of such oral contract, whether prior or subsequent to the new written contract, as from a careful review of the evidence we are by no means satisfied that any such verbal contract was made either before, at the time, or after the new written contract. Independent of the inferences to be drawn from the two written contracts, we think there is a strong preponderance of evidence that no such contract was made. The plaintiff’s own testimony, we think, shows nothing more than a proposition on the subject which does not seem to have been at any time fully agreed upon by both parties. . He says they entered into no positive bargain until they entered into the new contract,meaning the written contract. After this new contract he says the defendant offered to pay sixty dollars of this interest, and secure the balance by chattel mortgage, but this he then declined, till he should take counsel, and here the matter seems to have ended.

The judgment of the Court below must be affirmed, with costs.

The other Justices concurred.


author: Manning J.:

text:
    Daniel Marvin v. Frederick Schilling and another.

      ¿Sale of lands by' a guardian: defective petition: fraud. — License was granted by tbe Probate Court which appointed a guardian, for the sale of lands by him. The sale was made, and a deed given in pursuance thereof. It was held that, under Compiled Laws §3092, a person claiming adversely to the title of the ward, could not contest the validity of the sale on the ground that the petition for license to sell was defective.
    IsTor can he contest it on the ground that the sale was] a fraud upon tlio ward. If there is anything wrong in the proceedings, it may at the proper time be inquired into by the .ward, or any ono claiming under him; hut a third person can not drag the ward’s rights into Court in a litigation between himself and the purchaser.

      ■Redemption by guardian. — A guardian has a olear right to redeem his ward’s lands from a mortgage sale.

      Administrator's right to possession of lands: ejectment by heir. — The statute — Comp. L. §2904 — authorizing executors and administrators to take possession of the lands of the deceased, does not exclude the possessory rights of the heir, hut merely permits the personal representatives to claim and have possession, until a sale by them under the order of the Probate Court, or until the final settlement of the estate, if they see fit to demand it, unless ordered to deliver it over to the heir by the Probate Court. Streeter v. Patón, T Mioh. 341.
    The heir, therefore, when possession has not been demanded by the personal representatives, may maintain ejectment against third persons.

      Heard April 26th.

      Decided May 10th.

    Case made after judgment, from Tuscola Circuit. The facts are stated in the opinion.

      ■J. (?. Sutherland for plaintiff.

      W. L. Webber and G. V. JV. Lothrop for defendants:
    1. The Probate Court of Tuscola county had no jurisdiction over the property. "

    The minor, Elizabeth, is represented as being tbe heir of Timothy L. Howe. She was not such directly, but only through her mother, and Thaddeus B. Howe, the son of Timothy. The interest that descended from Thaddeus to his mother was subject to his debts, and his estate was being administered in Macomb county. It does not appear that the mother died intestate. This land was the estate of Thaddeus, and the jurisdiction of all other courts than the one first acquiring it, is expressly excluded by § 2878 of Comp. Laws.
    The petition to the Probate Court for the appointment of guardian in the first instance is that he may sell the interest of Elizabeth in the land, hut does not disclose any state of facts to authorize the Court to make a sale. There was no debt against the minor when the guardian was appointed, and the statute does not authorize the guardian to create one for no other reason than to enable a sale to be made. The power to license to sell a minor’s estate for debts is only, found in § 3076 of C. L., but we insist that statute affords no jurisdiction -to order a. sale on the facts set out in the petitions and proceedings in this case. There were no “just debts of the ward.” No person by a voluntary payment can make himself a creditor of the minor.
    All guardian sales are governed by same rules as those for executors, &c.; § 3076; and the statute, § 3070, expressly requires all such sales to be made subject to all charges on the land by mortgage, or otherwise at the time of the intestate’s death. Marvin therefore could not redeem. He could only sell the equity of redemption. The order assuming to give him authority to sell the land to pay a debt thus created., is void.
    2. Elizabeth Tong had no title subject to sale. The most she had was a contingent equity of redemption, subject to the disposition to be made of the same by the Probate Court of Macomb county; ,until such proceedings were finished, her rights were in abeyance.
    3. The object of the whole proceeding was obviously to transfer the title to Marvin, the plaintiff, by the forms of law, without reference to the interests of the minor.
    In effect, Daniel Marvin was the guardian and the purchaser ; and the sale is void by the provisions of § 3056, If the Court finds that Daniel Marvin was the party who, through his sou, called the powers of the Probate Court into exercise, and superintended and controlled them, then the sale is void, not only by the statute last cited, but by the well settled doctrine of the common law: — Ingerson v. Starkweather, Walk. Ch. 350 ; Dwight v. Blackmar, 2 Mich. 333.
    4. The title of the defendant, Schilling, through the mortgage was and is perfect. The legal title was vested in the mortgagee. It could only be divested by redemption.
    If the guardian had no right to redeem, the payment of the money by him to the register was not a redemption; and if the money was taken by Schilling, it was as though taken from any other person with whom money might have been deposited subject to his order.
    But whatever effect the paying of the money may have had, the plaintiff in this action must recover on the strength of his own title. He can not gain a title by showing that the defendant has none.
   Manning J.:

This is an action of ejectment for the N. 1-2 of S. W. 1-4 of Sec. 8, township 15 N. of R. 9 E.

The land was patented by the United States to Timothy L. Howe. Howe died between 1845 and 1848, leaving a widow, Olive B. Howe, and an only son and child named Thaddeus B. Howe. Thaddeus was never married, and died in 1855. Olive B. Howe, the widow, married Procter Tong, by whom ' she had one child called Eliza, beth. She died in 1851. In May, 1858, Lucius S. Marvin was appointed guardian of Elizabeth Tong, by the Probate Court of Tuscola county, in which the land is situated, she at that time being about eight years of age, and residing with her father, in the state of New York, who applied to the Probate Court for Marvin’s appointment as guardian.

Marvin afterwards applied to the Probate Court for a license to sell the land, which was granted, and it was in pursuance of such license afterwards sold and deeded by him to his father, Daniel Marvin, the plaintiff. And in June, 1857, Procter Tong released all his interest in the land to plaintiff. On the death of Timothy L. Howe the land descended to his son Thaddeus __ Howe, and, on his death, to his mother, Olive B. Tong, and on her death to her daughter, Elizabeth Tong, subject to her father’s life estate as tenant by the curtesy (Comp. L. § 2803), if a husband can have such an estate in land acquired by his wife subsequent to the 13th February, 1855 : Comp. L. § 3292.

Schilling (the defendant Beck being in possession under him) claimed the premises under a mortgage given by Timothy L, Howe to Philander Howe, on the 11th Aprils 1839, and assigned by the mortgagee to one Shetterley, and by Shetterley to Schilling, by whom it had been foreclosed at law, and the mortgaged premises bid in at the sale. But before the time of redemption expired the mortgaged premises were redeemed by Marvin, the guardian.

Two principal, objections are made to plaintiff’s recovery:

1st. Want of jurisdiction in the Probate Court granting the license to sell, for an alleged defect in the petition of the guardian for the license. The license must be granted by the Probate Court of the county in which the guardian is appointed. Comp. L. § 3076. The statute also provides that if the validity of a sale made by a guardian shall be drawn in question, by any person' claiming adversely to the title of the ward, or claiming under any title that is not derived from or through the ward, the sale shall not be held void on account of any irregularity in the proceedings. Provided, it shall appear that the guardian was licensed to make the sale by a Probate Court having jurisdiction, and that he did accordingly execute and acknowledge, in legal form, a deed for the-conveyance of the premises. Comp. L. § 3092.

These were proved on the trial, viz: a license from the Probate Court of Tuscola to the guardian to sell the-land, and a deed duly executed and acknowledged by him, conveying the premises to plaintiff. The Probate-Court having jurisdiction was the Probate Court of Tuscola county that appointed the guardian: — Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Mich. 506. It is. immaterial, therefore, whether the petition of the guardian was one that the court should have granted the license upon or not. If it was wholly defective the irregularity is one that does not affect the title under the statute. The transactions so much dwelled upon on the argument, that the money with which the guardian redeemed the premises was loaned by him; that the license to sell was to repay the money so loaned; that the premises were purchased by and deeded to the father of the guardian, the person of whom the loan had been made, and that they did not sell for enough to repay him and cover all: the expense the estate of the ward was put to, are matters that no way concern the defendants.

If there was any thing wrong in them it may at the-proper time be inquired into by the ward, or any one claiming under her.

It is not for defendants to drag her rights into this. Court in a litigation between them and plaintiff. The guardian had a clear right to redeem, the mortgaged premises, and whether he used the money of his ward or his. own, or loaned it of a third person for that purpose, is immaterial in the present suit.

2. Another objection made with a view to show title in a third person, is, that letters of administration were taken out by one Gardner Scott on the estate of Thaddeus B. Howe, and that the estate had not been settled..

The statute provides that administrators shall have a. right to tbe possession of all the real estate, as well as personal estate, of the deceased, and may receive the rents, issues and profits of the real estate, until the estate shall have been settled, or until delivered over by order of the Probate Court: — Comp. L. § 2904. In Streeter v. Paton we had occasion to consider the effect of this statute on the rights of the heir, and came to the conclusion that the statute did not interfere with the descent of the real estate to the heir, and his right to take possession, or bring ejectment therefor against any one except the administrator, or some one in possession under him. And that the object of the statute was to permit the personal representative of the deceased to take possession of the real estate, and hold it until it should be sold by him under a license of the Probate Court, or the final settlement of tbe estate, if he thought proper to do so, unless ordered to deliver it over to the heir by the Probate Court.

The judgment below must be affirmed, with costs.

Martin Ch. J. and Campbell J. concurred.

Christiancy J. did not sit in this case.


text:
    Chauncey P. Ives v. The Bank of Lansingburgh.

      Zand contract: effect of release by vendee. — Where the vendor in an executory contract for the purchase of lands receives from the vendee a quit claim deed of the lands, this is a rescission of the oontracfc; and he can not afterwards maintain an action on notes which were given for the purchase price.

      Principal and surety: release of surety by discharging securities. — Where ,,the vendor in a land contract had taken notes payable to his own order for the purchase price, which notes he indorsed to a bank, and. at the same time gave the bank a deed of the lands as security for the payment of the notes, and the bank afterwards took from the vendee a quit claim deed of the lands, without the vendor’s knowledge, it was held that such deed was a rescission of the contract, and that the vendor was thereby discharged from his liability as indorser of the notes, at least to the extent of the value of the land.

      An agreement "between the vendee and the bank, at the time of the delivery of the quit claim deed, made without the knowledge of the vendor, that such deed should not affect the liability of the vendee on his notes, would not prevent its having this effect upon the rights of the vendor as indorser. To make suoh an agreement binding upon him, he should have been made a party to it.

      Heard April 29th.

      Decided May 17th.

    Error to St. Joseph Circuit.
    The Bank of Lansingburgh sued Ives on three ¡promissory notes, dated August 12, 1857, for' $1,066.66 each, payable respectively in three, four and five years from date, with ten per cent annual interest, all given by A. F. Bell, payable to the order of Ives, and by him indorsed. Two of these notes were past due, and four years interest on the other, when suit was brought.
    Upon the trial, the defendant (below) gave evidence tending to show that said notes were given to him by A. F. Bed, in purchase by contract of certain lands which the defendant owned in Clinton county, Michigan; and that, by the terms of said contract, he was to convey said lands to said Bell, upon the payment by him of said notes; that at the time he, said defendant, had indorsed •said notes over to said bank, he gave said bank a warranty deed of said land, subject to the rights of said Bell, under his said contract, and at the same time he transferred to said bank land certificates for fifteen hundred acres of land, and took from said bank an agreement to re-convey said lands, and re-assign said certificates, on the payment of said notes. The defendant introduced further evidence, tending to show that the said bank, without the knowledge or consent of the defendant, on the eighth day of February, 1862, procured from Bell and his wife a quit claim deed of all their right and interest in the lands for which said notes were given; and he also introduced the depositions of said Bell, and of one Jacob Baker, tending to show that the bank had obtained a judgment against said Bell on two of said notes, and tending to show the value of said lands to be equal to the amount of said notes.
    The plaintiff put in evidence the depositions of the president and cashier of said bank, tending to show that they purchased said notes from defendant; that a payment of one year’s interest on each of said notes had been made by said Bell to said bank, since their indorsement over to said bank; and also that the judgment so recovered by said bank against said Bell for a portion of said notes, had not been satisfied or discharged, in wliole or in part, and that the deed from Bell to the bank was procured for the purpose of obtaining a release of all Bell’s rights in the said lands under said contract. The plaintiff also gave in evidence the testimony of said president and cashier of said bank, tending to show that the original deed of said Ives to said bank was taken by way of security for Ives’s indorsement of said notes, and not as an absolute purchase of said lands; and that the release of said Bell’s interest in said lands was not to affect his liability on said notes or the judgment recovered thereon.
    ■ The defendant’s counsel then requested the Court to charge the jury, that the conveyance from Bell and wife to the bank, of February 11th, 1862, of the lands therein described, operated in law as a payment of the judgment and notes against Bell, and as a discharge of his contract for the purchase of said lands, and that the defendant was thereby discharged on his liability as an indorser upon said notes, at least to the extent of the value of said lands. The Court declined so to charge, and defendant excepted.
    The counsel for the defendant further requested the Court to charge the jury, that the bank, by taking a deed from Bell of the lands for which said notes were given, without the knowledge or consent of the defendant, thereby discharged the defendant from his liability as indorser on said notes, at least to the extent of the value of said lands. The Court refused so to charge, but did charge that the taking of the deed of the lands by the bank, from Bell, in the manner and under the circumstances stated, did not affect or destroy their claim against the defendant as indorser of said notes; to which refusal to charge and to the charge so given, the defendant excepted.
    The jury, under the charge, returned a verdict for the plaintiff.

      Maynard <& Meddaugh, for plaintiff in error:
    The facts show clearly:
    1st. That the conveyance by Bell to the bank was not paid for by the bank, and that its object and purpose was simply to obtain from Bell a release of all his rights in the land under the contract.
    2d. That the bank stood in place of Ives as to the contract in all respects.
    We say therefore that the legal effect of the deed was to release Bell.
    That the vendor of property by taking it back from the vendee thereby rescinds the contract of sale, and discharges the vendee from liability under it, is a proposition that will scarcely be denied: — 1 Hill, 511; 35 Miss. 559; 5 Seld. 536; 26 Vt. 624; 20 Vt. 538.
    3d. By the release of Bell, the maker of the notes, Ives, who was liable only as indorser, was also discharged: —Edw. on Bills, 291-5. An indorser is treated as surety to the maker so far as this question is concerned: — 3 Barb. Ch. 41.
    4th. The bank, by procuring the deed from Bell, and thereby releasing him, cancelled the contract between him and Ives, and deprived Ives of its advantages. The bank held this contract as one of the securities placed in their possession by Ives, and they were bound to return it to him upon his paying the debt.
    It is well settled that if a creditor surrenders up or releases any securities of the principal, he thereby discharges the principal to the value of such securities: — 8 Pick. 121; 2 Am. Lead. Cas. 343.
    It can make no difference that the securities are placed in the hands of the creditor by the surety. The principle upon which the rule is based is the same, and the rule must remain the same.
    In this case, by the act of the bank, the notes were discharged, and their value to Ives thereby lost.
    It is no answer to say that, by paying his indebtedness to the bank, Ives was entitled to the land.

      L). B. Buffiéld and G. V. JV. Lothrop for defendant in error:
    1st. The release by Bell to the bank could not operate, in law, as a payment of Bell’s notes, or of the judgment recovered on them. The notes were negotiable; the bank bought them absolutely before they became due, and took security.
    Their claim against Bell was perfect. It did not depend on any collateral contract or equities between Bell and the •defendant. As long as the acts of the bank only tended to make their security more simple and perfect, and not to change its character as secui-ity, it is difficult to see what color there is to claim that such acts operate as payment.
    The Court was asked to declare that these acts operated as a payment. Strict payment can only be made by money, or something which commercially represents it; as bank bills, checks, etc., of which there was nothing here shown. But there is no payment between the parties without an agreement express, or such acts as would imply an agreement to that effect: — 2 Greenl. Ev. §§ 516, 526.
    So there can be no accord and satisfaction without an agreement to ' that effect, express or implied: — 2 Pars Cont. 193, 197; 2 Greenl. Ev. § 516.
    Now, this bill of exceptions not only does not disclose any evidence tending to show any such agreement for satisfaction, but discloses evidence directly to the contrary.
    It then stands thus: Bell releases to the bank, in tho manner expressed in his deed, both understanding and intending that it should not discharge his personal liability.
    Yet the Court is asked to declare, as a matter of law,. 'that between themselves such discharge took effect in spite-. of their agreement and intention!
    2d. In the next place, the Court was asked to declare that, as a matter of law, this release, being without the-knowledge and consent of defendant Ives, discharged him as indorser, in whole or in part.
    This request would be bad as assuming a fact which would have to be left to the jury.
    But supposing there was no controversy about that fact, then we ask on what ground this discharge is claimed ? It can not be because the debt of Bell is paid or satisfied, for that we have seen is not so. The debt is yet in full force against Bell.
    Has any change been made in the condition of the parties or securities which does or can, operate to the detirment of the indorser ? Let him show how; no time has. been given; no portion of the security released; nothing done except that which may make the security more valuable.
    , Would Ives have been prejudiced by taking further security from Bell ?
    If so, then he may claim to be prejudiced here; for if this release operated at all, it was to give new value to-the security.
   Manning J.:

We think the Court should have charged as requested, that the taking of the quit claim deed from Bell was a. rescission of the contract by which he had purchased the land of Ives.

Bell had purchased the land of Ives, and given the notes in question in payment, and was to receive a deed on paying the notes. Ives indorsed the notes to' the bank, at the same time giving the bank a warranty deed of the land subject to Bell’s interest therein under the contract.

The bank afterwards took a release from Bell of his interest in the land under the contract. Had Ives before he parted with the notes and land taken such a release from Bell, I think, from the authorities and on principle, that it would have been a rescission of the contract, and that Ives could not afterwards have sustained an action against Bell on the notes that were the consideration of the contract. See Coon v. Reed, 1 Hilton, 511; Porter v. Vaughn, 26 Vt. 624; Arbuckle v. Hawks, 20 Vt. 538.

The bank having succeeded to all the rights of Ives, stood in his place, and what would have been a rescission of the contract between Bell and Ives before the latter transferred his interest in the contract and land to the bank, would be a rescission of it between Bell and the bank after the bank became the owner of the notes and land. It is said, howrever, and the bill of exceptions states there was evidence tending to prove it, that there was an agreement between Bell and the bank, at the time the release was given, that Bell’s liability on the notes should continue. But Ives was not a party to the agreement, and therefore can not be affected by it. His only liability on the notes was that of an indorser, and to make the agreement binding on him, he should have been a party to it.

The agreement was evidently made to parry if possible the legal effect of the release to annul the contract.

If Bell and the bank did not understand the release would or might discharge Bell’s liability on the notes, why was the agreement entered into ?

If Bell had gone to the bank with the money to pay the notes, and, after handing it over and before the notes were delivered to him, had turned around and said to the bank, .“let me have the money sixty or ninety days longer, and you may retain the notes, and I will agree my liability on them shall continue,’’ — would Ives, the indorser, have been bound by such agreement?

Could the bank thereafter have sustained an action against him as indorser? I think not. The legal effect of such a transaction would have been a payment of the notes as to Ives. He could not have been bound by the agreement between Bell and the bank; neither is he by their agreement in the case before us. The judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.


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    Thomas Cuddy and another v. John S. Major and others.

      Damages against vendor for refusal to complete sale. — Plaintiffs bought hogs of defendants, paying ten dollars down, and were to pay the balance on delivery. Defendants refused to deliver, and plaintiffs sued. ¿The market value of the hogs, at the time of the refusal, was no more than plaintiffs were, to pay. Plaintiffs on the trial claimed to recover a loss which they had sustained by reason of not having the hogs to ship with others then on hand, upon cars hired by them for the purpose after the purchase was made; but it was held that, as the contract of sale was not made with reference to any such extraordinary liability, the plaintiffs could, only recover the ten dollars paid and interest thereon.
    To create such extraordinary liability, there must, in ..every case, be something in the terms of the contract, read in the light of surrounding circumstances, which shows an intention on the part of the vendor to assume an enlarged engagement, a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of merchandise. Clark v. Moore, 3 Mich. 55.

      Beto trial refused: error com not be assigned —Error can Dot fao assigned on the refusal of the Circuit Court to grant a motion for^a new trial. Bourke v. James, 4 Mich. 336.

      Heard May 3d.

      Decided May 17th.

    Error to St. Joseph Circuit.
    The action was brought for a refusal to deliver thirty-three hogs, bought by defendants in error of plaintiffs in error, and to be delivered at Three Rivers. Ten dollars of the price was paid down, and the balance was' to be paid on delivery. The evidence showed that the price that was to be paid for the hogs was $8 per hundred, live weight, and that this was the market value at the time of the refusal to deliver. The plaintiffs below were then allowed, notwithstanding the objection of defendants, to give evidence tending to show that after the purchase and before the time for delivery, they- had contracted for three cars to take hogs to New York; that they had an insufficient number to fill them, and that by reason of the failure of defendants (below) to deliver, they were obliged to send the cars on without being filled, paying therefor the same freight as if they had been full.
    The Circuit Judge chai-ged the jury, among other things, that in the absence of evidence, the jury can not presume that the defendants contemplated a wider responsibility than is assumed by vendors in ordinary contracts for the sale of property; namely, the difference between the contract price and the market value of the hogs on the day of delivery, at Three Rivers. Also that the plaintiffs could not recover for the use of the cai’S, unless the defendants, at the time they made the contract, had notice that the plaintiffs bought them to ship to New York, and for the purpose of filling their cars.
    The jury rendered a verdict for plaintiffs of $89.

      P. Patón, Riley & Shipman,'and G. V. N~. Lothrop, for plaintiffs in error,
    referred to 1 Denio, 602; Ibid, 317 and 606; Clark v. Moore, 3 Mich. 55.

      W. Allison, G. H. Mason, and IS. Y. Swift for defendants in error,
    cited 5 Wend. 535; 4 Barb. 261; 6 Barb. 423; 11 East, 232; 12 East, 494; 8 Barb. 424; 3 Mich. 55; Sedg. on Dams. 59, 273.
   Manning J.:

This case comes within the decision of this Court in Clark v. Moore, 3 Mich. 55, where the Court say, in regard to the recovery of special damages for the breach of a contract of sale for the delivery of goods, that “to create such extraordinary liability, there must, in every case, be something in the terms of the contract, read in the light of surrounding circumstances, which shows an intention on the part of the vendor to assume an enlarged engagement, a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of merchandise.’’ The evidence shows that the cars by which the vendees intended to send the hogs to New York, had not been hired of the railroad company when the contract was made for the hogs, so that there is not the shadow of a pretext for saying the parties could have had in contemplation damages the vendees might sustain by reason of not having the hogs agreed to be sold to complete the loading of such cars. We see nothing objectionable in the charge of the Court. The charge was well enough. The error on the part of the Court consisted in admitting the evidence on which the jury acted in assessing damages, after it had been objected to by defendants. On this ground the judgment must be reversed. The verdict is so clearly contrary to both the charge and the evidence, that the Court should have set it aside and granted a new trial. But we have nothing to do with that. The motion for a new trial forms no part of the bill of exceptions, strictly speaking, and error can not therefore be assigned upon it. The jury assessed the damages at $89. All they should have assessed them at was the $10 paid on the making- of the contract, with interest, as hogs were worth no more in the market on the day they were to he delivered than the price agreed to he. paid by the contract.

Judgment reversed, with costs, and new trial ordered.

The other Justices concurred.


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    Henry G. Sleight and another v. David Henning and others.

      Evidence: admissibility of declarations. — Replevin for certain barrels of apples. Defendant claimed a part of them. It became a question whether these could be distinguished from the rest; and the question of title was also material. On the trial, the defendant, being a witness, was asked whether, at the time the writ was served, his agent pointed out to the officer tho apples he claimed to have bought for defendant; [to which question he replied; “He did: he pointed out two rows, and said, ‘these are the apples which [defendant] purchased yesterday.’” Held, that both question and answer were competent, nob to establish defendant’s title, hut as tending to show whether there was such a confusion of goods that the officer was justifiable in taking possession of more apples than belonged to the plaintiffs.

      Juror disqualified: objection made too late. — "Where a party is informed during the progress of the trial that a juror is disqualified, but he omits to object until after, verdict, on tho ground that evidence of the disqualification is, not sooner accessible, he will be beld bound by the verdict. Bourke v. James, 4 Mich. 886.

      Verdict: putting informal finding into sJiape. — Juries rarely give very formal verdicts; and inquiries of tho jurors in Court, and amendments for the purpose of putting in due form what tho jury mean by their finding, are unobjectionable.

      Party not injured can not complain of error. — A plaintiff in replevin can not complain that the Court awarded nominal damages to him when the jury gave none *, the error, if any, being in Ms favor.

      Heard May 3d and 4th.

      Decided May 17th.

    Error to Washtenaw Circuit, where plaintiffs in error-brought replevin against Henning, Wancllass and Hoops, ^or a quantity of apples. The case is stated in tbe opinion.

      ■Norris c5 Ninde, for plaintiffs in error:
    It was error to allow the question put to Orange Webster, and his answer thereto.
    1. It was hearsay: — 15 Johns. 239; 17 N. Y. 131; 4 Yerg. 210; 14 N. H. 113, 114. And it was not the best evidence;
    2. The plaintiffs in error did not waive their right to ■object to the juror Saxton, because the affinity was not known at the time the jury was impanneled, nor until the ■evidence was all in; and was not established until the motion for a new trial.
    3. The jury’ on the trial below did not pass upon ■all the issues contained in the pleadings; nor find all the facts required by the statute and practice.
    They did not dispose of 738 barrels of apples replevied. They did not assess the value, nor pass upon their detention, nor determine the right of property therein, nor the right of possession thereto.

      Nor did they assess the damages of the plaintiffs. Comp. L. §§ 5030, 5032.
    The issues made by Hoops and Wandlass were not legally disposed of: — 4 Johns. 213; 4 Humph. 492; 2 Wheat. 221; 6 Humph. 45.
    4. There was error in receiving, altering, recording and -amending the verdict given in, in writing, by the jury:— 7 Halst. 352; 1 Gilm. 333 ; 11 Pick. 501; 8 Geo. 201; 24 Geo. 454; 10 Ired. 153.
    After the verdict has been recorded and the jury dismissed, it can not be altered: — 2 Me. 37; 2 Nott & McC. 441.
    As to the power of the Court to “work the verdict into form,’’ see 7 Halst. 352; 2 McLean, 612; 8 Pick. 415.

      G. V. N~. lothrop, for defendants in error:
    1. The objection to the question put to Henning, and to his answer, is untenable.
    The objection was to proof of the fact by Henning, instead of by Webster, who pointed out the apples. But the fact to be proven and actually proved, was the fact of notice to the officer. This could be shown by any one who knew the fact: — 1 Greenl. Ev. §§ 100, 101.
    2. The second error, founded on the affinity of one of the jurors to Henning, is equally untenable. The fact of affinity is not properly any part of the record. Nothing on the point appeared at the trial. The question came before the Court only on the motion for a new trial; and I do not understand that such matters can be excepted to, put in a bill of exceptions and revised in error.
    It is really an attempt to bring error on the determination of a motion for new trial: — Dibble v. Rogers, 2 Mich. 406; Chaffee v. Soldan, 5 Mich. 242; 20 How. 29; 20 How. 448.
    This objection of affinity, if anything, was a cause of principal challenge. And this must be made by a party before the jury is sworn in chief, or the right of challenge is gone: — 1 Chit. Cr. L. 545; 3 Jones (Law,) 443; 18 Geo. 194; 10 Pick. 480. And this challenge, when made, becomes a part of the record, and may be reviewed on error: — 7 Cow. 121. And when the party omits to make his challenge, or to inquire, before the jury is sworn, whether cause for challenge exists, the Court will not. arrest judgment: — 20 Conn. 87.
    Though the right of the parly to challenge is gone, yet, if he discovers before verdict a cause of challenge, he may apply to the Court to inquire into the facts, and, m their discretion, stop the trial and discharge the jury: —> 1 Curtis, C. C. 23.
    And when the party has failed to inquire whether a cause of challenge existed, or has omitted to take the objection till after verdict, he will not ordinarily be heard on a motion for new trial even: — 8 B. & C. 417; 14 Mass. 205; 1 Pick. 43; 11 Pick. 269; 11 Pick. 467 ; 2 Met. 560; 39 N. H. 406; 3 How. (Miss.) 27; 1 Scam. 128; 15 Penn. 236.
    This Court has applied the doctrine 'of waiver to challenges; as, where the challenging party refused to demand triers, the Court said he had waived his right: — People v. Doe, 1 Mich. 455.
    3. The third assignment of error is not that the verdict does not support the judgment. It is that the jury did not pass on all the issues, or find all the requisite facts.
    This assignment of error is not according to the fact of the record. The verdict itself must be looked at, and is conclusive on this point. “The finding of the jury is not properly a part of the bill of exceptions, and the record cannot be helped by it”: — 13 Wend. 432; 21 Wend. 19.
    All the issues requisite under our system of pleading and practice are passed on. The statutory declaration is simply that defendants “ unlawfully detained,” etc. The plea in the case is simply the general issue.
    It is true that this puts in issue not only the detention, but plaintiff’s property and right of possession. And I suppose, the objection here is that the title of plaintiffs is not found.
    But under the above pleading, a finding by the jury that the defendant “ did unlawfully detain,’’ is sufficient to entitle the plaintiffs to recover. Whether the property was in the plaintiffs need not be piassed on.
    It is like a general verdict in assumpsit, that the defendant “did promise and undertake,’’ etc., although there are many issues ¿involved under the general plea, beside the original promise: — 9 Mass. 316 ; 14 Johns. 86.

      This form of verdict is sanctioned, I think, by uniform practice with us. Vide forms, Green's Pr. 151-2.
    But the defect in the finding, if one existed, is not one of which the plaintiff can complain. The judgment which would be authorized by a perfect finding has been entered in his favor. If the defendant does not complain, no one else can: —16 Conn. 436 ; 17 Wend. 434; 8 Watts & Serg. 391; 5 Blackf. 267; 13 Ohio, 131; Minnesota Co. v. National Co. 11 Mich. 187; Brigham v. Gurney, 1 Mich. 349; Berry v. Lowe, 10 Mich. 11.
    4. The Court below may record verdicts in such form as will effect the meaning of the jury; if erroneously recorded, the Court may amend it; and a judgment will not be arrested or reversed for any irregularity in this regard.
    The remedy is by motion to set aside the verdict; and if right is not obtained on such motion, to correct the wrong by mandamus: — 1 Cl. & F. 224; 21 Wend. 40; 6 Hill, 289; 11 Met. 504; 6 Wend. 278.
   Campbell J.:

Plaintiff brought replevin for a quantity of apples, and 894 barrels were seized upon the writ. It became a question whether certain apples included in this amount, and which were bought on one day, could be identified and distinguished from the rest; and the question of title also became material. ' The defendant Henning was a witness, and claimed title to a portion of the apples replevied. Having testified that he was ¡resent when the apples were replevied, he was asked whether one George Webster at that time pointed out to the sheriff the apples which said Webster claimed he had bought for witness; to which question he replied, “He did, he pointed out two rows, and said, these are Henning’s apples which he purchased yesterday.” The question and answer were both objected to as hearsay and incompetent.

We think it was entirely competent to show what took place during the levy, tending to show whether the sheriff was justified in taking possession of more apples than were owned by the plaintiffs. In case of a confusion of goods the right of possession is somewhat different from that existing in other cases, and if defendant or his agents took steps to enable the sheriff to distinguish the property, the fact was important. It is difficult to see how the question could be improper. It was not put to show title,, but simply to show that a claim of title was made for the purposes of identification upon the levy; and for that reason was unobjectionable. Nor do we see how it could be answei-ed without showing what was said on that occasion.’ We can not imagine that any jury would be led to finding title, in favor of any one, upon a mere assertion. Nor is there the remotest probability that a court would submit a case to them in such a way as to allow any such misapprehension. ' Cases very often arise where evidence is admissible of the claims and assertions of parties concerning the title of things in controversy, where the jury may .know the parties, and believe in their veracity,, but it would lead to no good result to hold any such proper testimony inadmissible, from a fear that the jury can not distinguish between the various issues, and are subject to a possible risk of mistaking its bearing.

It appears by the bill of exceptions, that after the case was all put in, plaintiffs’ counsel were informed by some bystander, that one of the jurors was incompetent, by reason of affinity to Henning. No step was taken to ascertain the fact, and it wa3 not brought to the notice of the Court. A motion for a new trial was afterwards made upon this ground upon affidavits showing that proof of the fact had not been before accessible. The Court overruled the motion. The case is within the principle of Bourke v. James, 4 Mich. 336, where it was held that a refusal of a new trial was no ground of exception, and that it was the duty of a party to make his objection as soon as informed of the juror’s disqualification.

It is also assigned, for error, that the verdict was improperly received and entered. When the jury came in they found as follows: “We find that Henning is the only defendant. We find for the defendant 156 barrels at two dollars — three hundred and twelve dollars,” The evidence showed the replevin of 894 barrels by the plaintiff. It being suggested that the verdict did not dispose of the balance, the foreman said they found that the remainder belonged to the plaintiffs. One of the jury thereupon intimated that he did not so understand it. Some conversation then occurred between Court, counsel and jury, when he nodded his assent, and the verdict was entered accordingly, in favor of Henning for his portion, and against him for the rest. An amended verdict was afterwards entered in form, finding Wandlass and Hoops not guilty, and in other respects corresponding with the first verdict. Neither of them assessed any damages against Henning. Judgment was entered upon the verdict, giving the plaintiffs six cents damages, and costs of suit to be taxed.

Without now inquiring whether we have any authority, as the case stands, to inquire into the propriety of the amended verdict, we think it expresses what it is evident the jury meant by their finding. Although not technical, it was entirely intelligible. Neither do we perceive any impropriety in the inquiry made of the jury as to what they found concerning the apples not belonging to Henning, nor in the method by which the assent of the juror was given, who at first was confused about the question. Jurors rarely give very formal verdicts, and such inquiries in open court are often necessary to obtain express explanations of what may generally be implied. Nor do we deem it necessary to consider whether a jury must give nominal damages to a plaintiff, against whom substantial damages are. recovered by defendant. The judgment has given them, and if erroneous, because not sustained by the verdict, it is not an error which can do plaintiffs any harm, but, on the contrary, it is in their favor.

There are no errors in the record. Judgment must be affirmed, with costs.

The other Justices concurred.