text:
    Augustus Tregent and another v. Abraham Whiting.

      Deed by Land-Board. Constmctzon. — la a conveyance by the Land-Boarcl, granting certain land in fee, in trust to one Hall, for the rightful owners, “who may claim the same by mesne conveyances from the original grantee or otherwise.” Held¡ that the construction was the same as though it had been to himself and his heirs, habendum to the use of himself, and those who should claim under him, by conveyance or otherwise.

      Heard October 25th, 1865.

      Decided January 5th.

    Case made from Wayne Circuit.
    This was an action of ejectment brought by Tregent & Stockwell against A. Whiting for certain premises in Detroit.

      To maintain the issue on their part, the plaintiffs offered in evidence a deed, executed by the Mayor, Recorder and Aldermen of the City of Detroit, to Richard H. Hall, and covering the property in question, which deed is in the words following, to wit:
    “ The Mayor, Recorder and Aldermen of the city of Detroit, to all to whom these presents shall come. "Whereas, by act of Congress of the United States, approved April twenty-one, a. d. eighteen hundred and six, entitled “An Act to provide for the adjustment of titles to land in the town of Detroit and territory of Michigan, and for other purposes,” the Governor and Judges of the territory of Michigan were constituted a land-board with power to lay out the town of Detroit, to finally adjust all claims to lots therein, to grant donation lots to all persons entitled, and to sell the residue of the land for certain purposes therein mentioned. And whereas, by the act of Congress supplementary to the said Act, approved August twenty-ninth, a. d. eighteen hundred and forty-two, the powers as above vested in said Governor and Judges^ were transferred to the Mayor, Recorder and Aldermen of the city of Detroit. And whereas, the execution of said trust by said Governor and Judges has not been fully perfected, nor the lands transferred to them, as aforesaid, entirely dispjosed of. And whereas, the Mayor, Recorder and Aldermen of the city of Detroit, sitting as a land-board, as aforesaid, did by resolution, passed and adopted on the fourth day of March, a. d. eighteen hundred and forty-six, order the premises hereinafter described to be sold to Richard IT. Hall, of Detroit, Michigan, upon certain conditions and terms therein mentioned and set forth, which conditions and terms on the part of said Richard H. Hall have been fully complied with. Therefore, know ye, that we, the said Mayor, Recorder and Aldermen, acting under and in "pursuance of the act of Congress, aforesaid, of August twenty-ninth, eighteen hundred and forty-two, in consideration of the premises and of the sum of six hundred dollars to us in hand paid, the receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold, remised, released and quit - claimed, and by these presents do grant, bargain, sell, remise, release, and forever quit-claim to the said Richard H. Hall, his heirs, executors, administrators and assigns (but always in trust and for the use and benefit of the rightful owners of the same, who may claim the same by virtue of mesne conveyances from the original grantee or otherwise), all the estate, right, title and interest, use, trust, property, claim and demand whatsoever, both in law and equity of us, the said Mayor, Recorder and Aldermen of the city of Detroit, in and to the following described premises, lying and being in the city of Detroit, and State of Michigan, that is to say: lot thirty-one (31) in section seven (J) of said city of Detroit, according to the Governor and Judges’ plan thereof, to have and to hold the said released premises, as aforesaid, to him, the said Richard H. Hall, his heirs, executors, administrators and assignees, forever. But always in trust for, and for the use and benefit of the rightful owners of the same, as aforesaid, to their own proper use and behoof.

      In witness whereof, the said Mayor, Recorder and Aldermen of the city of Detroit, have hereto set their hands and affixed their, seals this twenty-fourth day of October, a. d. eighteen hundred and forty-eight.”
    To the introduction of which said deed, as evidence, the defendant, by his said attorney, objected, on the ground that said evidence was irrelevant and incompetent for the following reasons, to wit:
    1st. Because the Mayor, Recorder and Aldermen, under the acts of Congress referred to in said deed, could not delegate their power, nor make a trust deed.
    2d. Because said deed is absolutely void under the Michigan statutes abolishing uses and trusts, the same not coming within any of the express trusts authorized by the same.
    3d. Because if not absolutely void under the statutes, it vested no title in Hall, the grantee.

      4th. Because if valid under said statutes, any deed from Hall, except to a cestui que trust, would be void.
    The objections were overruled and the deed admitted. Other conveyances were introduced, showing title in plaintiffs.
    r For the defendant it was admitted by the plaintiffs that they, and those through whom they claim, claim title from Richard H. Hall, as purchasers, and not as cestui que trust under said deed. Defendant then rested.
    The Court below gave judgment in favor of plaintiffs.

      J. M. Bigelow for plaintiff in error.
    In ejectment the plaintiff must recover, if at all, on the strength of his own title, and he must show a good legal title in himself, and a jnesent right of possession, or the judgment must be for the defendant. 2 Greenl. Ev. §§ 303, 304, and cases cited; 1 Chitty's Pleadings, 189, and cases cited.

    In this case the plaintiffs have undertaken to deduce title from the government, and have given no evidence tending to establish either title or right of possession in themselves on any other basis. The only question, therefore, to be considered here is: Have they succeeded in establishing such a title?
    We insist that they have not. The deed was incompetent evidence and should have been excluded by the Court, on the objection of the defendant.
    The grantors in that deed were mere attorneys of the United States in respect to the property in question under and by virtue of the two acts of Congress referred to therein, and their powers were limited and expressly defined thereby, and were as follows: 1st, to layout a town; 2d, to hear, examine, and finally adjust all claims to lots therein and give deeds for the same; 3d, to determine who were entitled to donations, and to grant to each a lot; and, 4th, to sell the remainder, if any, and appropriate the proceeds as directed. 2 U. S. Stat. at large, 398; 5 Id. 541. Their acts, therefore, to be valid, must come within some one of the powers thereby conferred. Said deed does not come within any one of those powers.

      Win. Gray for defendants in- error.
    The land-board had larger powers than the governor and judges; the former could only donate lots to claimants, the latter could sell the residue after all just claimants were satisfied. Acts of Congress, April 1806, and August 1842.
    The deed to Hall recites that the trust was not fully performed, lots being undisposed of; (clearly referring to surplus lots); that the board did, by resolution, order the premises in question to be sold, (not donated,) to Hall; that he complied with the terms of the sale, and that he paid, for his purchase $600, therefore they deed to him, &c.
    The intent Avas clearly to vest in him the entire title of the board, and the clause was inserted, (in old forms used prior to the statute,) as an extra precaution to protect the grantors from possible claims, and the old forms being on hand continued to be used. Why should there be a trust for the owner, when, if there Avas one, he needed no trust to give rights already existing ? The statute evidently intends that the fee shall go to the person intended to be the beneficiary. See § 1 of the same act.

    As appears by the record, Hall was the rightful owner. Although he had no deed other than this, he Avas the purchaser, and prior to this deed, could enforce a proper conveyance. The trust, if any, is not to the “ legal owner,” nor to persons holding title by deed, but to the rightful owner. .A person may be the rightful owner although he has but a defective deed, or has no deed.
   Cooley J.

Several questions under the’ statutes relating to uses and trusts were discussed on the argument of this cause, but in the view Ave have taken, they become entirely immaterial. The case turns upon the construction of the deed from the Mayor, Recorder and Aldermen of the city of Detroit, acting as a Land-Board, under the acts of Congress of April 1806, (2 Stat. at large, 898,) and August 1842, (5 Id. 541,) to Richard II. Hall. This deed recites a sale of the lot in conrtoversy by the Land-Board to Hall, “ upon certain terms and conditions,” “which have been fully complied with,” and thereupon, in consideration of the sum of six hundred dollars, the receipt of which is acknowledged, it grants, bargains, sells, remises, releases and quit-claims the premises to said Hall, his heirs, executors, administrators and assigns, “but always in trust and for the use and benefit of the rightful owners of the same, who may claim the same by virtue of mesne conveyances from the original grantee or otherwise.”

We .have no proof of the circumstances which surrounded the giving of this deed, and we have consequently nothing to aid us in giving it the proper construction. The language is peculiar, but unless it is ambiguous, or the apparent intent an illegal one, we have only to gather the intent of the grantors from the language employed, and give the deed effect accordingly.

The grant is of lands belonging to the United States, and which the Land-Board convey as donees of a power. It was suggested on the argument that the Land-Board by this conveyance “ determined that somebody was entitled to the lot in question, and they deeded it to Hall to hold for that somebody, and sought thereby to confer on him the power to determine who that somebody was.” We do not discover in the deed any intention to confer discretionary power upon Hall. The grant is to him, to hold for the rightful owner claiming under the original grantee. If any other person than Hall answers the description of the cestui que trust as here designated, it was evidently designed that he should receive the benefit of the grant, and not that Hall should himself select the beneficiary.

But as there is no showing in the case that any person other than Hall had any right to this lot, legal or equitable, at the time this grant was made, we need not speculate upon the effect or validity of the deed had such a showing been made. The grant being by the United States, we must presume that the title had not been previously conveyed. The deed recites a sale to Hall; the payment by him of the consideration; and it then grants the land to him in fee, in trust for the rightful owners, “who may claim the same by mesne conveyances from the original grantee or otherwise.” Now Hall is himself the original grantee; and as he bought and paid for the land, he is also the rightful owner. This is the case as exhibited to us upon this record. The construction of the deed is therefore the same as if it had been to himself and his heirs, habendum to the use of himself and those who should claim under him by conveyance or otherwise. The deed is one of bargain and sale, though the phraseology is somewhat peculiar, and under the case as it stands, it can have no different construction than if it had followed the usual form.

The ruling of the Court below upon this deed was correct, and the judgment must be affirmed.

Campbell and Christiancy JJ. concurred.'


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Nelson H. Wing v. Margaret Railey and others.

      Mortgage; agreement to re-assign. Consideration. — .A. assigned to B. a mortgage for $150 on lands of which A. owned the title, and guaranteed the payment thereof. Subsequently B. agreed for the sum of $250, payable in instalments, to re-assign the mortgage, and to convey another parcel of land. A. paid $200 on the contract, and the last mentioned parcel of land was, by his consent, sold by B. for $500. Held, that on receiving this sum, B. was bound to re-assign the mortgage, and account for the balance not necessary to pay up the contract.
    A subsequent agreement, obtained from A. without consideration, to relinquish these rights, and to pay the mortgage, was held inequitable, and the Court refused to enforce it, or to allow B. to foreclose the mortgage, and dismissed his bill.

      Heard October 31st, 1865.

      Decided January 5th.

    Appeal in Chancery from Livingston Circuit.
    This was a bill of foreclosure, founded on a mortgage, made by Consider Crapo to Hugh Railey, dated February 28th, 1838, and assigned by Railey to Wing, the complainant, May 27th, 1840.
    The origin of the mortgage seems to have been in an exchange of farms between Crapo and Railey, by which Crapo was to secure to Railey about §200 as boot money; that Crapo gave to Railey notes and a mortgage to secure that sum, and that by mistake Crapo mortgaged to Railey the land which he transferred to him, instead of that which he received from Railey in the exchange.
    The defenses set up were 1st, that the mortgage never had any validity, because before its execution, Crapo had conveyed all his title to the mortgaged premises, and that the same were inserted by mistake in the mortgage; 2d, that nothing remained due.
    The bill was dismissed by the Court below.

      Geo. V. N. Lothrop, for complainant:
    1. Neither Railey nor his heirs can deny the validity of this mortgage. Though the fee of all the land afterwards came to Railey, yet it does not necessarily follow that the mortgage would thereby be extinguished. Equity will, in many cases, enable the owner of the fee to keep a mortgage outstanding. —1 Washb. R. Prop. 564.
    This mortgage is, as against Railey and his heirs, as valid as if made by Railey himself. He and they are estopped to deny its validity. By his assignment, Railey expressly held the mortgage out as a valid security for the sum of one hundred and fifty dollars as principal and interest thereon, and guaranteed the payment thereof This makes this mortgage, under the circumstances, in effect, as if made by Railey himself, for it is clear, that if the owner of the fee sells a mortgage on his own property as a valid security, equity will give it the same effect as if made by him. His assignment declared that the mortgage was a valid security on the land to a certain extent. This Court holds a mortgage to be only a lien, and not a grant of the title. — 12 Mich. 270.

      Railey could not deny the validity of the mortgage, after holding it out as such and selling it as such. To allow him to do so, would be to allow him to take advantage of his own wrong. —10 Paige, 326, 490; 6 Hill, 492; 29 Barb. 569 ; 15 N. Y. 575; 4 B. & Ald. 212; 2 T. R. 171; 5 Ohio, 194; 7 Conn. 214; 13 Vt. 158; 12 Johns. 201; 2 Serg. & R. 507.
    2. The notes and mortgage are produced. There is no proof tending to show payment, and Railey admitted in 1853 that the debt was not paid.
    The particular mode by which this mortgage was to be discharged had failed, and therefore it was left in full force.

      H H. Harmon and C. I. Walker, for defendants:
    The evidence introduced shows that the complainant has received the full amount of the mortgage from Hugh Railey, and that the representatives of the latter are equitably entitled to an assignment of the same. May 20th, 1844, Wing gave his bond to Hugh Railey, agreeing for $300, to be paid in four equal instalments, to sell to the latter certain land in Washtenaw county, and also to assign to Railey the very mortgage in question. By a clause in this agreement Railey, in case of failure to perform to the uttermost, is to forfeit all he has paid for the land and mortgage. This forfeiture is in the nature of a penalty, which no court of equity would ever enforce. ,,
    Under this agreement the deceased, Hugh Railey, paid the full amount of three of said notes, in accordance with the literal terms of the contract.
    On the 8th of April, 1844, Railey had paid on his contract more than was then due on this mortgage. Uj>on the payment of $75, and interest from that date on or after the 20th day of May, 1848, (the time when the note of $75 became due,) a court of equity would, as between the -complainant and said Railey, have enforced the specific performance; that is, would have compelled the complainant to deed the land described in the contract and to assign this mortgage.
    The equitable right of Railey to this deed and assignment, upon the payment of said seventy-five dollars and interest, continued after the last note became due, and could be barred only by a bill in equity brought for that purpose, or by the lapse of time.
    While such were the equitable rights existing as between the said parties, complainant sold the said land, in the town of Webster, subject to the equitable rights of Railey therein, and the purchase price thereof belonged to the latter, subject only to a deduction for the exjDenses of sale. The amount received was far more than.the sum due on said bond, so that, instead of any sum being due the complainant at the time of filing his bill, an accounting would show him in debt to the representatives of Railey.
   Campbell J.

In February, 1838, one Consider Crapo bought certain lands of Hugh Railey, and to pay for them was to convey two parcels of land, and to give a mortgage on other lands for $200. By mistake he gave a mortgage covering three parcels, two of which were the same he had already bargained to convey to Railey. One of the parcels was deeded the same day, and the other subsequently. Railey assigned $150, then remaining due on this mortgage to Wing, in May 1839, the mistake not having then been discovered, and the deeds to Railey not having been recorded. Railey also guaranteed the payment of the notes and mortgage. Wing now seeks to foreclose it against Railey’s heirs, Railey and Crapo being both dead.

In May, 1844, Wing gave his bond to Railey agreeing for the sum of $250, payable in four annual payments, to re-assign the Crapo mortgage, and to convey to Railey a lot of land in Washtenaw county. Three of these payments were made upon maturity. Whether the fourth payment was made does not appear. The note for it is not produced. June 4th, 1858, Wing sold the Washtenaw lot, Railey joining in the deed, and received $500 for it. He then tried to get Railey to sign an instrument giving Wing a right to apply this money as he pleased, c®> any debts of Railey alone, or with others, and on the' Crapo mortgage as an indebtedness to Wing. The bond from Wing, provided that on failure to pay any part of the $250, Railey should still be liable to pay that deficiency, lose the land, and pay the whole Crapo mortgage; and this attempt lias the appearance of trying to enforce that forfeiture. Railey, however, would not sign the document. On the 6th of June a document is produced, claimed and perhaps proved to have been signed by Railey, whereby in consideration of fifty dollars he agrees to give up all his rights under Wing’s bond, and also agrees to pay Wing the Crapo mortgage. It appears that instead of receiving anything from Wing on that day, he paid Wing twenty-five dollars.

By the sale of the Washtenaw lands, the balance due from Railey on this bond was paid, and he was entitled to demand from Wing his mortgage, and a balance in cash of about four hundred dollars. There is no evidence showing by what process Wing managed to get back from him this peculiar document. It appears affirmatively that there was no new consideration.

In the absence of clear proof wo shall not characterize this performance .as a fraud, but we think a party who seeks to rely upon it must seek some other forum than a Court of Equity.

The bill was properly dismissed. The decree must be affirmed, with costs.

Cooley and Christiancy JJ. concurred.


author: Ci-iristiawcy J.

text:
    Samuel W. Jackson v. John Hosmer and another.

      Writ of Phr or. Probate of Will. Party. — re one interested in the advance of a will, admitted to Probate, did not take, or join in, an appeal froniTbe Probate Court: — Held, That he had no right to contest the will on the trial of the appeal in the Circuit; his true position being that of an appellee. In such a case it was further held, that he had no right to a writ of error to reverse the action of the Circuit Court, affirming the decree of the Probate Court’

      Heard January 4th.

      Decided January 5th.

    Error to Wayne Circuit.
    This was a motion to set aside a writ of error, on the ground that plaintiff in said writ was not such a party to the cause as entitled him to sue out such writ.
    The facts are fully stated in the opinion.

      G. V. N. Lothrop, C. I. Walker and D. B. Duffield for the motion.

      A. Russell and L. Bishop contra.
   Ci-iristiawcy J.

This is a motion to set aside a writ of error.

The case is briefly this. Cyrus W. Jackson made a will which, after his death, was admitted to pirobate, and. allowed by the Probate Court for the county of Wayne. The defendants in error were by the will, and the decree of the Probate Court appointed his executors. The plaintiff in error, at the time of these proceedings, was an infant about three years old, who was the only heir at law of the deceased, and to whom the great bulk of the testator’s property was devised by the will; there being some small legacies to other persons.

The only person who appeared and contested the proof of will in the Probate Court, was Samuel S. Taff, the father in law of the testator, and grandfather of the plaintiff in error, who, it is claimed, .would in case of his surviving the plaintiff in error, have been his sole heir, should the latter die without issue.

The will having been proved and allowed in the Probate Court, Taff took an appeal to the Circuit, setting forth, that he was aggrieved by the order and decree of the Probate Court, and that he took the appeal for the benefit and protection of the estate, and to protect the rights and interests of his grand child. But neither he, nor any other person, seems to have been appointed guardian cicl litem in the Probate Court, nor next friend or guardian ad litem in the Circuit Court; nor was there any appeal by the plaintiff in error. Taff was sole appellant.

An issue was made up in the Circuit Court upon the validity of the will, and upon the fitness and competency of the executors named.

These issues were formed by the allegations of the propounders of the will, (defendants in error) on one side, and the pleas and notice of Taff upon the other. Taff is the only party named as contestant. It appears, however,. that the counsel of Taff also filed in the Circuit Court a separate plea and notice, (similar in all respects to that of Taff). This plea purports to be signed by the counsel as attorneys for Jackson, (the plaintiff in error). It does not, however, appear, that this plea was ever brought to the attention of the Court, or that any of the proceedings in the case were in any respect different from what they would have been, had no such plea been filed.

The issues framed in the Circuit Court, on the allegations of the propounders of the will, and the plea and notice of Taff, were tried before a jury, and found in favor of the will, and of the executors; and thereupon, the order or decree of the Probate Court, allowing and establishing the will, appointing executors, &c., was in all things affirmed.

Exceptions were taken on the trial, by Taff, and a bill of exceptions afterwards settled in due form.

A writ of error was then issued from this Court to the Circuit, in behalf of both, Taff and the infant, (present plaintiff in error), the latter stated as a minor, appearing and prosecuting the writ, by Joseph Aspinall, his next friend.

The usual proceedings were then taken for a severance between the plaintiffs in error. The errors were assigned by Samuel W. Jackson, (the infant,) alone, and Taff does not appear in this Court.

The result is, that the sole contestant in the Probate Court, who was also sole appellant in the Circuit, has disappeared fi-om the cause, and the infant, Jackson, who neither appeared to contest the will in the Probate Court, nor appealed from its decree, now appears as the sole plaintiff in error.

Without expressing any opinion upon the competency of Taff to take the appeal to the Circuit, which we do not think entirely beyond doubt, we are all of opinion, that Jackson, the present plaintiff in error, has suffered no grievance whatever from the action of the Circuit Court. If he has been aggrieved at all, it was in every proper sense, by the order or decree of the Probate Court, which was merely affirmed by the Circuit, without any new judgment, order, or decree whatever.

The present plaintiff in error is in no worse position in consequence of the adverse decision of the Circuit on Taff’s appeal, than if Taff had never appealed; and we can see no good reason wdiy his position should be improved by it. To have placed himself in a position to remove the cause from the Circuit to this Court by writ of error, he should have appealed, or been made an appellant, from the decree of the Probate Court to the Circuit Court.

No party without having taken or joined in the appeal, according to the statute, could, we think, have any right to contest the will on the trial of the appeal in the Circuit. And the plea put in by the attorney, in his name, (to say nothing of an infant’s appearing in this way,) would be a mere nullity. Though in one sense a party — as he might like every other person interested in the estate be bound by the decree — yet, he was not a competent party to prosecute the appeal. His true position was that of an appellee, and he has no right to a writ of error to reverse the action of the appellate court.

The motion to dismiss must therefore be granted, with costs of this motion.

Cooley and Campbell JJ. concurred.


text:
    Augustus D. Burdeno v. Marinus Amperse.

      Common Law disability of married women. — The basis of the Common Law disability of jnarried women rested on the peculiar disqualifications and burdens of the wife, oncPnot upon anything growing out of the marital relation.
    The removal of those disqualifications removes all the reasons which ever required the intervention of equitable trusts. Under statutes giving power to a married woman to enjoy, contract, sell, transfer, convey, devise, or bequeath her property in the same manner and with like effect, as if she were unmarried, it was held> that a husband can convey real estate to his wife by deed, directly, without the intervention of a trustee.

      Heard October 13th, 1865.

      Decided January 6th.

    Error to Wayne Circuit.
    This was an action of trespass quare elausum fregit, commenced before a Justice of the Peace. The defendant g'ave notice under the statute of title to real estate, and the cause was certified to the Circuit Court. On the trial, the defendants offered in evidence a deed of the premises from the plaintiff to Victoria Burdeno, his wife, to the admission of which the plaintiff objected on account of the relation between the parties. The court sustained the objection, and the defendant excepted.

      Ward & Palmer for plaintiff in error.

      Larned & Hebden, and Wm. Gray for defendant in error.
   Campbell J.

Burdeno sued plaintiffs in error in tresspass for alleged wrongful acts upon his freehold, being land covered by water. The suit was for treble damages to Burdeno, as proprietor of the land, the statutory action not lying for mere possession.—Achey v. Hull, 7 Mich. 423. Defendants offered to show that Burdeno had, in September 1861, conveyed the property by • deed to his wife, Victoria Burdeno. This deed was objected to as invalid, because of the relation of the parties ; and the Court below sustained the objection, and rejected the evidence.

The question is presented, therefore, whether, as our laws now stand, a deed can be made by a husband to his wife. To determine this question, we must see how their relations were governed, in this respect, before our present system .was introduced. ^

The effect of marriage was to produce what is called in the law-books unity of person; the husband and wife being but one person in the law: — Co. Litt. 112 a; 1 Bl. Com. 442. The wife, by her coverture, ceased to have control of her actions or her property, which became subject to the control of her husband, who alone was entitled, during- the marriage, to enjoy the possession of her lands, and who became owner of her goods and might sue for her demands. The wife could neither possess nor manage property in her own right, could make no contract of a personal nature which would bind her, and could bring no suit in her own name. In short, she lost entirely all the legal incidents attaching to a person acting in her own right. The husband alone remained sui juris, as fully as before marriage.

It followed from this legal merger by coverture into a single personality, that the husband could make no grant to the wife, and the wife could make none to the husband. And furthermore, a grant to her by her husband, of a freehold, would be, in effect, a grant to take effect in futuro (the husband retaining possession for life), and such a grant was unlawful because a freehold could only pass by “ livery of seisin, which must operate either immediately or not at all. It would, therefore,” continues Blackstone, “be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession.” — 2 Bl. Com. 165. But a husband might make a devise to his wife, “ for that such devise taketh no effect but after the death of the devisor:”- — Littleton, § 168; Co. Litt. 112 a, b. The same incidents of coverture which made the husband sole possessor of his wife’s lands, led to the rule which made estates in their joint names differ from joint tenancies proper, and regarded the title, not as held by moieties, but as an entirety:—2 Bl. Com. 182; Co. Litt. 187 a.

Whether the common law rule preventing husband and wife from making grants to each other is a rule springing from, and inseparably attached to, the relation of marriage, or whether it is an incident to the wife’s disability to control property in her own right, must guide us somewhat in determining the effect of our enabling statutes. There can be no doubt that there are incidents of marriage independent of all considerations of property. The common law writers never attempted to classify them, and we must get such light as we can from examples and analogies. It is safe, however, to assume that no act can be absolutely inconsistent with the marriage relation, if it has received the sanction of either law or equity. We must, therefore, see whether the disabilities which applied at common law, in cases like the one before us, have been regarded as universal and personal disqualifications. Upon this we have an abundance of authority.

There were local customs whereby a wife might take by immediate conveyance from her husband; as, for example, at York:—Fitzh. Ab. Prescription 61; Brown's Ab. Custom, 56 (cited Tomlyn Law Dic. Baron and Feme). The Queen Consort may sue and be sued, alone, may take grants from her husband, as well as from strangers, may take as well as receive grants, and may covenant:—Com. Dig. Roy, F. 1. A husband could convey to the use of his wife under the Statute of Uses, whereby the use vested in her directly as a legal estate, without the action of the feoffee: — Com. Dig. Baron and Feme, D. 1, citing Co. Litt. 112 a. And he might under the same statute covenant with a third person to stand seised to the use of his wife:—Id.

It appears, therefore, that the law did not prohibit a husband from accomplishing for his wife the precise thing which he would have accomplished by a direct conveyance; and it would seem from this that the rule was one of technicality, and not of substance. But there are further illustrations which will throw light upon the subject. When husband and wife were dealing, not in their own right but in a representa.tive character, or what is termed technically, in auter d/roit, either might sell and convey to the other, as to a stranger:— Co. Litt. 112 a, 187 b; Com. Dig. Baron and Feme, D. 1. It needs no remark to suggest that if the common law was designed to produce unity of will, and to prevent action except by one not under influence or compulsion, no such practice as this could be permitted; for a husband’s influence over Ms wife is personal, and will operate just as strongly, in fact, in one class of dealings as in another. The rule can only be made sensible by holding that, as to matters which a wife could be allowed to hold and manage separately from any interest of her husband, these disabilities of coverture did not exist, or, in other words, that they were not regarded as personal only, but as relative to property. Thus far we have considered only such rights as are legal, as distinguished from equitable, and are enforced in all courts alike. But there has grown up by the side of the common law, a system of .equitable rights and powers, which places married women, in regard to property, on the same footing in most respects with single women. When property is set apart for the separate use of a married woman, she is, in regard to it, emancipated from the disabilities of coverture, so far as the terms of the trust warrant. This emancipation from her legal disabilities does not depend upon the husband’s consent, nor upon any antenuptial agreement. It can be accomplished by any one, relative or stranger, who sees fit to provide a fund for her benefit.

She may sue and be sued concerning it; she may contract concerning it, and her contracts will bind it and be enforced; she may give it, or sell it. Her title is technically an equitable one, and not a legal one; but the trustees are bound to follow her directions', and the distinction is purely formal. The income and proceeds are under her separate control and enjoyment, and her husband has nothing to do with them. Her doings, though not under the dominion or enforcement of courts of law, are recognized by such courts as valid, just as they are recognized and enforced in equity. If the legal disabilities were essential elements of coverture, then equity, which recognizes and follows all the substantial principles of law, could not dispense with them. It would be a gross absurdity for any court to destroy the substantial rights of the husband, or remove his lawful control. And it would be still more absurd to permit this interference at the hands of any meddling stranger at his option. But the doctrine has been long settled that as to her separate estate a wife is on substantially the same footing with a feme sole. — See Pybus v. Smith, I Ves. Jr. 189; Sturgis v. Corp, 13 Ves. 190; Essex v. Atkins, 14 Id. 542; Wagstaff v. Smith, 9 Id. 520; Grigby v. Cox, 1 Ves. Sen. 518; Freeman v. Moore, 1 Bro. P. C. 237; 1 Hov. Sup. 49-50; 2 Spence's Eq. Jur. 513; Jacques v. Methodist Episcopal Church, 17 Johns. 548; 2 Story Eq. Jur. § 1395-6.

Not only may she make disposition of it to others, but she may do so also in favor of her husband. The disability of the common law which arose from the very fact that she was sub potestate viri (and which undoubtedly is usually the case as a matter of fact to a great degree), was not considered as existing in equity, which sustained such dealings if fair and not unduly biased:—2 Story Eq. Jur. § 1395 ; Essex v. Atkins, 14 Ves. 542; Jaques v. Methodist Episcopal Church, 17 Johns. 548; 1 Hov. Sup. 49, and cases above. She can even bargain with her husband concerning her separate estate, and the agreement will be enforced:—Lady Arundel v. Phipps, 10 Ves. 140; Livingston v. Livingston, 2 Johns. Ch. 537; Wallingford v. Allen, 10 Pet. 583; Bullard v. Briggs, 7 Pick. 533.

Instead of looking with disfavor upon the settlement of separate property, equity has favored it. A separate estate will not fail for the lack of trustees, and if the legal title comes into the husband’s hands, he himself will be held to be a trustee to his wife’s separate use, and therefore subject to her orders; and he may be made a trustee expressly: — 2 Kent’s Com. 162; 2 Spence's Eq. Jur. 507; Wallingford v. Allen, 10 Pet. 583. Not only may a husband settle property to his wife’s use through .trustees, but he may make himself á trustee by agreement, or even by gift, where he has by some distinct act set apart the property. In Lucas v. Lucas, 1 Atk. 270, where a husband caused stock, to be transferred to the name of his wife, although at law it' would of course continue to be his own property, it was held to have been made his wife’s separate fund. So in Shepard v. Shepard, 7 Johns. Ch. 57, and in Wallingford v. Allen, above cited, it was held that a conveyance directly from husband to wife should under the circumstances be enforced as valid in equity.

When equity recognizes a power in the wife, who is the disabled party, not only to deal with others, but even to contract with and make provision for her husband out of her separate funds, it can hardly be claimed that the husband, who was always sui juris, is restrained by any but technical rules from transferring to her directly. We have seen that equity will enforce even such conveyances. But there never was a time when he could not by his deed put property where she could control it. If it were not that by standing in her name he became legally the owner of the usufruct, there could be no valid reason why any indirection ever need be resorted to. It is not against the policy of the law that the wife should have the real benefit of his gift; and equity, looking through the form at the substance, calls it, as it is in fact, a gift from husband to wife. The doctrine laid down by Coke, in connection with the Statute of .Uses, is of itself snfficient to show that the disability as to conveyances springs entirely from the wife’s incapacity to act for herself; and it is stated in 2 Kent's Com. 163, n. b, that by the present English statutes a husband is now authorized to make a direct con veyance to his wife.

IJfOur statutes have given power to a married woman to enjoy, contract, sell, transfer, mortgage, convey, devise, or bequeath her property in the same manner, and with the like effect, as if she were unmarried: — 2 C. L. § 3292. Where it stands in trust for her,, the trustees are authorized to transfer it to her: — 2 C. L. § 3293. The statute evidently designs to do away with indirect dealings, and make her rights legal instead of equitable. Passive trusts have been entirely abolished, and where a deed creates them the title passes at once to the beneficiary: — 2 C. L. § 2633-4-5. To require a husband (who is not supposed to be under her control or fear) to go through the farce of conveying to some one else, who is at once to pass the proj>erty over to his wife, is to keep up a fiction which has not even a legal basis to support it, since the husband has ceased to have possessory claims over her property. He is now in law a stranger to her estate during coverture, instead of its possessor and manager; and his consent is not necessary to her disposal of it: — Farr v. Sherman, 11 Mich. 33; Watson v. Thurber, 11 Id. 457. Whatever protection she may require when dealing with him, he certainly never was supposed to need any against her.

Believing, as we do, that the basis of the common law disability was in the peculiar disqualifications and burdens of the wife, and that the removal of these removes all the reasons which ever required the intervention of equitable trusts, we think there is now no objection to a deed from husband to wife, which should render it invalid.

The Court erred in excluding the deed. The oilier points become immaterial.

Judgment must be reversed, with costs, and a new trial granted.

Christiancy and Cooley JJ. concurred.


author: Christian cy J.

text:
    Andrew H. Hunter and another v. The New York and Saginaw Solar Salt Company.

      Contract. Construction. — The defendant had contracted with certain mill men for the sawing and delivery, by a specified time, of a quantity of lumber, said lumber to be delivered on board of scows, to be furnished by defendant. He thereupon entered into a written contract with plaintiffs for the removal of said lumber — -the substance of said two contracts being recited therein. Plaintiffs were to furnish men, lighters, and everything necessary for the work, at a. specified price, to be paid by defendant, for every one thousand feet so removed, and to convey said lumber upon their scows from the point of delivery to defendant’s docks, as fast as it should be ^received, “ provided it should be sawed so fast, by said mill owners.”
    In an action by plaintiff to recover damages of defendant, for failing to supply the amount of lumber agreed upon: Held, that plaintiffs must be presumed to have taken into consideration the nature and extent of the risk in fixing the price they were to receive for the transportation.

      Held, further, that taking the whole contract together, it was clearly implied, that the said stipulations were subject to the implied condition that said mill owners should first saw and deliver the lumber under their contracts.

      Heard November 8th and 9th, 1865.

      Decided January 6th.

    Case made for review upon the law and the facts from Saginaw Circuit.
    This was an action of assumpsit brought to recover damages for the failure, by the defendant, to furnish certain lumber for shipment, as fast as the plaintiffs could remove it.
    The declaration contained a special count, setting forth, that by the default of the defendant in not furnishing lumber for shipment, according to the terms of the contract, the plaintiffs suffered damage by reason of tlieir scows remaining unemployed, and in the loss of time of the men engaged for that purpose. It was admitted by tlie plaintiffs that full payment liad been received for all work actually done, and that they made no claim except on said special count.
    The cause was tried without a jury, and judgment rendered in favor of plaintiffs for $1 SOL 5 8 damages, and costs to be taxed; to which judgment defendant excepted.
    The facts are fully stated in the opinion.

      John J. Wheeler, for plaintiffs:
    1. The plaintiffs claim, that the contract between the parties, reasonably construed, contains a promise by the defendant that the lumber which the plaintiffs undertook to carry should be ready for them, when and where they were bound to receive it for transportation.
    Whatever may be implied from the terms or language of an instrument, is in judgment of law contained in it: — 10 Wend. 219, 252; same case, 13 Id. 114; 5 M. & G. 316; 5 A. & E. N. S. 671.

    Where the agreement is mutual, by being expressed in the words of both parties, as is imported by the words “it is agreed,” it is implied, if not so expressed in terms, that the promise of one party is the exact counterpart of that of the other, and eo - extensive, unless this implication is controlled or restrained by something in the instrument: — 1 Saund. 319; 6 Com. Bench, 160; 4 Com. Bench, 479; 17 Barb. 260; 5 Hill, 256. We must construe all the contracts together, in order to arrive at the obligations of the parties to the contract sued on.- — 2 Pars. on Con. 15 n. u.

    The absolute agreement to carry the whole quantity imports a corresponding agreement by the defendant not to pay for the carriage only, but to furnish it; in other words, the agreement to furnish it is a counterpart to that to carry it.
    The reference to the contracts for the lumber was obviously to bind the plaintiffs with notice of the place where, by whom, and to whom the lumber was to be delivered for transportation. The recitals are silent as to any uncertainty whether all the lumber would be delivered, and are not inconsistent with either an absolute or contingent obligation by either party to this suit. The form and the substance, the words used, and the spirit of the transaction, concur to fix on the defendant the duty, and in legal effect the promise, to furnish the lumber for transportation.
    The plaintiffs were ready and willing- to perform.
    The defendant having failed,
    2. What is the measure of damages ?
    The rule of damages is one dollar per thousand feet, for the difference between the 4,000,000 agreed to be carried and the amount furnished them for carriage. — 15 Johns. 327.
    3. If plaintiffs had been dismissed before they had incurred any expense, the rule would have been the difference between the contract price and the cost of doing it; if dismissed after some expense and some progress in the work, there would require to be added to such difference last spoken of compensation for the outlay.
    In this case, the cost of completing the entire work as agreed to was incurred, and thereby, by doing as they had agreed to, the plaintiffs were prevented from carrying other freight, and by defendants fault, the freight stipulated..
    The contract is one in effect to furnish as freight 4,000,000 feet of lumber for a boat or boats, adequate to carry it, and so the carrier is entitled not only to the stipulated freight for the amount carried, but dead freight for the deficiency, .$1070.05. — Abbott on Ship. 249, 264, 411; Sedgw. on Dam. 377; 2 Greenl. Ev. § 261 u. and note; 2 Starkie, 450; 15 Johns. 327; 11 East, 232; 12 Id. 494; 24 Wend. 304.

      William I. Webber, for defendant.
    The rights of the parties must bo determined from the contract itself. It is a question of construction, and although it is true that the Court will inquire into the circumstances surrounding ■ the parties and attending the transaction, that it may with greater certainty intefpret the language used by them, yet after that is done the rights and liabilities of tlie parties must be found in the language chosen by them and used in the contract. — 5 Mich. 210; 1 Greenl. Ev. § 275.
    The plaintiffs contend, and the Court below held, that by the terms of this contract the defendant obliged itself to furnish for carriage 900,000 feet each month from the docks of the mills of Sears & Co., and of Babcock & Bliss, and this obligation is found by implication, because it nowhere appears in the contract in express terms.
    We contend that such was not the intention of the parties. There was no obligation resting on the defendant to furnish the lumber for carriage. The lumber was not made when the contract was entered into. This fact was known to both parties. It was doubtless anticipated'by all concerned that it would be made. The defendant nowhere assumes to guaranty-that Babcock & Bliss, and Sears & Go. shall perform their contracts. The plaintiffs were in the business of carrying lumber’. They knew the parties who were to make the lumber, and could as well tell the probabilities as the defendant. Why should the contracts with Sears & Co. and with Babcock & Bliss be shown to the plaintiffs before contracting, if defendant bound itself to furnish the lumber? The recital is senseless if the plaintiffs’ position be correct.
    Again, if defendant intended to be bound to furnish the lumber, the contract would naturally have been to carry such lumber from the docks as defendant should direct, with the privilege of sending them to other docks by paying for extra labor or expense, if any. In this way the defendant would reserve the power to perform.
    Should it be held that the defendant did contract to furnish the lumber for the plaintiffs to carry, the possibility of the defendant’s performance depended on facts as well known to plaintiffs as to defendant, and the parties having equal knowledge, doubtless contracted with reference to the lumber being sawed; and as the defendant was prevented from furnishing the lumber by the default of the mill owners, who did not saw it, it became impossible for the defendant to perform, and this impossibility is a good defense, especially as the parties having equal means of judging of probabilities must have contracted with reference to this particular subject.—2 Pars. on Con. (5th ed.) 672; 20 Me. 453; 22 Id. 531; 1 Gray, 282.
    The judgment below is greater than the special damages claimed by plaintiffs for loss of freight.
   Christian cy J.

This is a case made after judgment in the Circuit Court for the county of Saginaw, for review upon the law and the facts.

The defendant had, on the fourth day of January, 18G4, entered into two separate contracts, one with Babcock and Bliss for the sawing and delivery to the defendant of two million feet of pine lumber, the contractors (B. & B.) to commence the delivery of the lumber at the starting of their saw mill in the spring of 1864, and to have all said lumber sawed and delivered on or before the first of October, 1864; the lumber to be delivered on the scows of the defendant on the dock of said Babcock and Bliss’ mill, provided defendant should furnish scows at such dock to receive it; and if said scows were not furnished, then to deliver and pile said lumber at the dock of the Chicago mill, so called, opposite, and across the river from East Saginaw, in as convenient a manner as possible for loading upon scows. The other contract of the same date was with F. P. Sears & Co., for a like quantity of lumber to be sawed by the latter, and to be delivered to the defendant at the rate of five hundred thousand feet per month, from the time of starting their mill in the spring of 1864, until the entire amount should be delivered; the delivery" to be upon scows of the defendant, and if these were not furnished, then to be delivered and piled upon the dock of their mill, in East Saginaw, in as convenient a manner as possible for loading upon scows.

The defendant having entered into these contracts, after-wards, on the llth day of March, 1SC4, and before, by these contracts, the sawing was to be commenced, entered into a written contract with the plaintiffs, in the following words:

Whereas, said second party has a contract with Messrs. Babcock and Bliss for the purchase of two million feet of lumber, to be delivered at their mill, in Saginaw, in the early part of the present season, and have also a contract with Messrs. F. P. Sears & Co., by the terms of which said F. P. Sears & Co. have agreed to sell and deliver to said second party a like quantity of lumber, to be delivered at their mill in the early part of the present season; and,

Whereas, said second party is bound by the terms of said agreements, (which agreements said first parties have examined and know the contents thereof,) to receive said lumber at the docks of said Babcock and Bliss, and F. P. Sears & Co., when sawed, and to remove the same; and,

Whereas, said first parties are desirous of contracting to remove said lumber from the mills of said Babcock and Bliss, and F. P. Sears & Co., and to deliver the same to said second party at its docks and works on the west bank of Saginaw river, just below Zilwaukie, in Saginaw county, and at the docks of the Michigan Salt Company;

Now, therefore, It is agreed by and between said parties, as follows: Said first parties, in consideration of the agreements hereinafter contained, to be kept and performed by said second party, agree to take all the lumber 'so to be delivered to said second party, by Babcock and Bliss, and by F. P. Sears & Co., under the contracts above referred to, and to receive the same in assorted pules irpon the docks of the mills where sawed, and convey upon boats or scows, and deliver three million five hundred thousand feet of said lumber to said second party upon its docks at its works below Zilwaukee, in Saginaw county, and five hundred thousand feet of said lumber upon the docks of the Michigan Salt Company; all to be delivered for the price of one dollar per thousand feet, to be paid as hereinafter stated.

Said first ¡parties further agree that they will furnish all the men and lighters, and everything else needful for the prosecution and completion of said work, according to the terms of this agreement, and will receive and remove said lumber from the docks of the mills where manufactured, as fast as the same shall be sawed, and will not at any time allow said lumber to accumulate at the docks of either mill where sawed, to an amount exceeding one scow load at each mill.

Said first parties further agree, that in receiving, conveying and delivering said lumber to said second party at its docks, and at the docks of the Michigan Salt Company, as above specified, they will handle said lumber in a careful and proper manner, so as not to injure the same, and will snugly pile all said lumber upon the docks of said second party and said Michigan Salt Company in assorted piles, placing each length, kind, and quality of lumber in a pile by itself, and will pile said lumber at such places and upon such portions of said docks as said second party, by its superintendent, may from time to time direct.

Said first parties further agree that they will commence the delivering of said lumber upon the docks of said second party within fifteen days from the time that either Babcock & Bliss or F. P. Sears & Go. shall commence to saw and deliver lumber to said second party under the contracts above mentioned, and as much sooner as possible, and will deliver said lumber as fast as it shall be required by Harvey D. Burrell, who has the contract for constructing and erecting the Solar Salt Worles for said second party, provided it shall be sawed so fast by Babcock & Bliss and F. P. Sears & Co., or either of them.

Said second party agrees to pay said first parties for conveying, delivering, assorting and piling said lumber as above specified, the sum of one dollar for each thousand feet of lumber so conveyed, delivered, assorted and piled, payable semi-monthly at the middle and close of each month, according to the inspector’s certificate of quantity, as the work progresses, in drafts of the superintendent of said company at one day’s sight, on the company in New York.”

The plaintiffs entered upon the performance of this contract, and transported, delivered and piled a large portion of the lumber. But Babcock and Bliss, and F. P. Sears & Co^, failed to furnish the whole amount of the lumber, according to their respective contracts; and as to the portion which they did saw and deliver, they failed to do so in due time, or in the manner provided by their contracts; and though the plaintiffs did transport and deliver the portion so furnished, yet by such default of these contractors, the plaintiffs’ scows and lighters were kept a considerable portion of the time on demurrage, not being able to obtain full loads; and were also put to considerable expense in the loss of time of the men in their employ, &c., besides being prevented from earning the contract price of one dollar per thousand for that portion of the lumber not furnished at all.

This suit is brought to recover the damages thus sustained. The plaintiffs’ declaration is framed upon the theory that the defendant, by its contract with the plaintiffs, bound itself to furnish all the lumber for carriage which Babcock & Bliss and F. P. Sears & Co., by their contracts were bound to furnish, and within the same time and in the same manner; or, in other words, that defendant guaranteed to the plaintiffs the performance of those contracts.

There is certainly no express provision of this kind in the contract between the plaintiffs and the defendant; but it is claimed that by fair construction such is its legal effect. We have carefully examined this contract in connection with those referred to, but have been unable to draw such a conclusion from them.

It is true there was no privity of contract between the plaintiffs and Babcock & Bliss, or F. P. Sears & Co.; and the plaintiffs could therefore have no remedy against them for the breach of their contracts with the defendant, while the defendant might enforce their liability for such breach; it would therefore have been very reasonable, had the parties so agreed, that the defendant should have guaranteed to the plaintiffs the performance of those contracts. But it was equally competent — and if so understood by the parties, for aught we can see equally reasonable — for the plaintiffs to take upon themselves the risk of performance by those parties so long as their obligations to carry were limited to the amount of lumber which those parties should actually furnish under their contracts. The plaintiffs, in such case, would be presumed to have taken into consideration the nature and extent of the risk in fixing the price they were to receive for the transportation.

Upon a fair construction of the contract, this, we think, is what the plaintiffs must be understood to have done by then-contract with the defendant. If such were not the intention, we see no satisfactory reason for the peculiar manner in which the contracts of defendant with Babcock & Bliss, and Sears & Co., are referred to in the contract, nor any very good reason why those contracts should have been referred to at all. The language of the reference is, “which agreements said' first parties have examined and know the contents thereof.”

How was it important that plaintiffs should have seen these contracts, and known their contents,' if, as they insist, the defendant was understood to be bound that all the lumber should be absolutely furnished at the times, and in the manner claimed? Had such been the intention, would it not have been much more natural to have bound the defendant in direct terms thus to furnish it ?

The other stipulations of the contract, [to say nothing of its entire silence on the subject of any guaranty,] are in accordance with the views we have taken. Thus, the plaintiffs are to deliver the lumber as fast as it shall be required by Harvey D. Burrell, “provided it shall he satoed so fast, by Babcock & Bliss, and F. P. Sears & Co., or either of them.” The defendant agrees to pay “ one dollar for each thousand feet of lumber, so conveyed, assorted and piled.”

But the plaintiffs insist that the provision binding them to carry, assort and pile this lumber, shows a contrary intent. The plaintiffs “ agree to take all the lumber so to be delivered to said second party, by Babcock & Bliss, and F. P. Sears & Co., under the contracts above referred to.” This certainly cannot be intended to bind the plaintiffs to carry it, if it be not sawed and furnished by the contractors. And the same may be said of plaintiffs’ undertaking, to “deliver three million five hundred thousand feet of said lumber to said second party, upon its docks at Zilwaukie, and five hundred thousand feet at the dock of the Michigan Salt Company.” Taking the whole contract together, it is clearly implied that these stipulations are subject to the implied condition, that Babcock & Bliss, and Sears & Co., should first saw and deliver the lumber under their contracts. Any other construction would make the plaintiffs ' guaranty to the defendant the performance of these contracts, a most unreasonable construction, and yet one which would do quite as little, and even less violence to the words of the contract, than that which should make the defendant guaranty to the plaintiffs the performance of the same contracts.

It is unnecessary to consider the evidence in reference to a subsequent verbal contract, or promise of Sewell, the agent of the defendant, to pay for demurrage, &c., as there is no count in the declaration upon such a contract; and the plaintiffs on the opening of their case expressly abandoned all claim to recover anything, except the damages for the violation, on the part of the defendant of the contract set out in the special counts of their declaration, and admitted they had no claim, except on such special counts.

The judgment for the plaintiffs in the court below must be reversed, and a judgment entered for the defendant in this Court, with his costs in both courts.

Cooley and Campbell JJ. concurred.


author: Cooley J.

text:
    James W. Converse v. Laura Blumrich and others.

      Contract foi' sale of land. Forfeiture. The vendor in a contract for a sale of land, by which he is to make conveyance at a future time, on payment of the purchase money, cannot forfeit such contract as against the vendee, when such vendor has no title and is not in a condition to fulfill his part of the contract.

      Estoppel, — Consideration. The complainant, having received an assignment of the vendor’s rights in a contract of sale, and recognized the vendee’s rights, afterwards and without any new consideration, made a re-sale of the same property to the same vendee for a higher price, and took a mortgage for the balance of the purchase money. Held, that the complainant, by his acts, had recognized the original contracts, and that no benefit passed to the vendee by the new agreerrymt beyond what he was already entitled to; and, therefore, complainant cannot recover on the mortgage.

      How such contracts may be forfeited. The lapse of time alone could not put an end to these contracts; for time is not of the essence of the undertaking to pay money by such a contract; and default in payment must be followed by some act of the vendor indicating his election to consider the contract ac an end, before it would be terminated.

      Notice to purchasers of the rights of third parties. Buying the title or rights of the vendors in such contract, with knowledge of equities in their vendees, the purchaser becomes liable to the same extent, and in the same manner, as the persons from whom he bought.

      Compromise of conflicting claims. Where a fair settlement of conflicting claims is made between parties, it is binding upon them, even though they may have yielded legal lights; and the law should favor and encourage such settlements. But the mortgage in this case, being given in the full belief, induced by the acts and statements of the mortgagee, that the rights of the latter were paramount to any which could be claimed under the original contract, and that he had done nothing to recognize or make himself responsible for the sales by the vendors of the mortgagor, which statements were not true, this cannot be considered a compromise of conflicting claims. And the mortgagor is entitled to have the mortgage procured by them set aside, as obtained by fraud, unless he was, at the time, chargeable with such notice of the facts as should preclude him from complaining.

      Constructive notice. A person is chargeable with constructive notice when, having the means of knowledge, he does not use them. If he has knowledge of such facts as ■would lead any honest man, using ordinary caution, to make further inquiries, and does not make, but studiously avoids making such obvious inquiries, he must be taken to have notice of those facts which, had he used such ordinary diligence, would have been readily ascertained.

      Party in interest bound by infoi'ination given. The person so put upon inquiry can not be bound to do more than apply to the party in interest for information, and will not be responsible for not pushing his inquiries further, unless the answer which he receives corroborates the prior statements, or reveals the existence of other sources of information.

      Constructive notice does not relieve from fraud. The law of constructive notice can never be so applied as to relieve a party from responsibility for actual misstatements and frauds.

      Admissions of agent. The admissions of an agent are evidence against the principal, only when they constitute a part of the res gestea. They must accompany the transaction in which the agent acted; what he states at a subsequent time is inadmissible.

      False statements ignorantly made. If one obtains the property of another by means of untrue statements, though in ignorance of their falsity, he must be held responsible as for a legal fraud.

      Person misleading another bov/nd by his statement, Bequired only to seek the best authority. When one seeks the best authority to’ ascertain the truth of rumors, and is then misled, the person so misleading cannot be permitted to profit thereby.

      Belief must be founded upon the bill, Sc. The bill in this case having been filed for the sole purpose of foreclosing the mortgage, whatever other rights complainant may have, they cannot be enforced in this suit, if the mortgage fails. (Beckham v. Buffam, 11 Mich. 529; Perkins v. Perkins, 12 Id. 456; Moran v. Palmer, 13 Id. 367.) f

      Vendor's' Lien. The complainant retains a vendor’s lien upon the land, which he may enforce in equity, if defendants refuse to pay; but it must be in a .suit brought for that purpose.

      Heard January 5th.

      Decided April 4th.

    Appeal in Chancery from Kent Circuit.
    The bill was filed by the complainant in this cause, to foreclose a mortgage executed by one Wenzel Blumrich, (the husband of said Laura Blumrich, and the father of said infant defendant,) in his life-time, to said complainant, and said defendants resist such foreclosure upon the ground that said mortgage was fraudulently obtained and without consideration.
    The facts sufficiently appear in the opinion.

      Miller & Wilson, for complainant.
    1. Misrepresentation, to constitute fraud, must be in regard to a matter of fact and not merely of opinion j and something which- a party must have a right to rely on. 1 Story Eq. Jur. sec. 197; 2 Pars. Con. 270, 275; 1 Hill. Vend. 344, n.; 1 Story Eq. Jur. § 199 ; 2 Kent's Com. 484.
    A party must use means of knowledge in his reach. 1 Story Eq. Jur. § 200, a.; 3 Story's R. 659.
    2. That notice is sufficient which should put a party upon inquiry. 1 Hill. Vend. 401.
    3. Notice to attorney or agent is notice to principal. 1 Hill. Vend. 406-7.
    4. The testimony of complainant concerning transactions with Blumrich is competent under the statute. (Sess. laws 1861, 168.)
    “Representatives of deceased person ” means only executors and administrators. Bouvier's Law Dic. Title Representatives, (3); 12 Abbott's Pr. (N. Y.) 1; Cited in 6 Abbott's N. Y. Dig. 597, (35, 36).

      Miller & Rogers and George Gray, for defendants.
    1. The contract could not be forfeited or rescinded by the Union. 2 Parsons on Con. 191-2-3.
    2. No steps had been taken by the Union to recover the possession of the premises. The contract remained in force until complainant procured his deed. 11 Mich. 9.
    3. Complainant cannot deny the legal effect of the assignments, to himself, of Johnson and Coggeshall, but takes their equitable title and the legal title of the-Union, subject to the Blumrich contracts. — 1 Blackf. 91; 1 Johns. Ch. 288; 7 Id. 65; 6 Id. 398; White & Tudor's Eq. Cases, Vol. 9, pt. 1st, 37-90, and cases there cited.

    4. A party will be precluded from denying his own acts or admissions, which were designed to, and did influence another, when such denial will operate to the injury of such other, or those claiming under him.—8 Wend. 480; 3 Kill, 215, and cases there cited.

    5. At the date of the new arrangement, — June 1st, 1857,— Blumrich was entitled to receive his deeds, the original contracts being in full force and virtue. — 11 Mich. 9.

      6. Neither equity nor law will enforce a contract which is without consideration. — 12 Barb. S. C. 685; 7 Mass. 449; 1 Parsons on Con. 350, 363 ; Chitty on Con. 25, and notes.

    Complainant’s bill should have been dismissed. If the case made by his bill is not sustained, he cannot have any relief on other grounds. — 6 Selden, 363; A: Barb. S. C. 265 ; 1 Barb. Ch. Prac. 339.
   Cooley J.

The bill in this case was filed against the widow and heirs at law of Wenzel Blumrich, deceased, to foreclose a mortgage given by him to» the complainant. The defense is, that the mortgage was procured by fraud, and is without consideration.

It appears that on October 25, 1847, the American Baptist Missionary Union, a corporation existing under the laws of Massachusetts, and which then claim’ed a right to certain premises in Grand Rapids, entered into a contract for the sale of the same to Simeon M. Johnson and Thomas J. Coggeshall, for the sum of $13,500, payable as follows: $3,000 May 1, 1848, and $10,500 at the option of said Johnson and Coggeshall, either on said first day of May, 1848, or in six annual payments of $1,750 each, commencing on the first day of May, 1849, with annual interest. The legal title to the land was then in the United States; and Johnson and Coggeshall were authorized by the contract, at their owfi expense, to procure a patent in the name of said corporation, and to compromise, adjust, and settle any claim it might have against the United States in respect thereto, and “all claims to said lands and improvements ;” and they were to receive a quit-claim deed of the lands when the payments were fully made. The contract also contained a provision entitling the purchasers to a deed whenever the corporation obtained its title, on their giving-back a mortgage to secure the unpaid instalments, and in that case the corporation agreed to release from the mortgage, from time to time, any parcels sold by the purchasers, on receiving, to be applied on the mortgage, tbe amount for wbicb such parcels were sold. The contract contained no clause of forfeiture.

At this time the premises were claimed adversely to the corporation by one Turner, and a suit was brought in its name in the United States Circuit Court against him. But Johnson and Cog-geshall proceeded to lay off village lots, and to make sales thereof, for which they gave executory contracts. Among these were three to Blumrich; one dated November 8, 1849, agreeing to convey to him lot two' in block two, on the payment of §200, as follows: $50 down, and the balance in three annual payments, with interest; the second, dated April 1, 1850, and agreeing to convey to him lot one in the same block, on payment of §200 in similar payments; and the third, dated October 1, 1850, agreeing to convey lot six in the same block, on the payment of §200, in four annual payments. The first two of these were given in the name of Thomas J. Coggeshall, by George Coggeshall, as his attorney, and the third in the name of Nathaniel Coggeshall, by the same attorney. In each it was agreed that a deed should be given, conveying the lot when payment was made, and that in case of failure on the part of Blumrich “ to fulfill the covenants, conditions and agreements therein expressed, then such contract to be . void at the election of the party of the first part.” Blumrich went into possession of these lots, and made valuable improvements upon them.

Johnson and Coggeshall seem to have done very little towards performance of their contract with the corporation, and on May 12, 1858, its treasurer addressed them a letter, stating that Converse was- about to visit Grand Rapids, and that he was fully authorized to make any arrangement with them in regard to the lands; expressing the. hope that they would arrange for the speedy payment of the notes which they had given for the instalments payable by their contract; and requesting them to deliver to him the patent which had been issued to the corporation therefor. Converse called upon them accordingly, and as the result of some negotiation, obtained from Johnson an assignment of all rights which he had under the contract to himself. At this time four hundred dollars remained unpaid on the three Bluinrieh contracts.

It will be observed that the Blumrich contracts were not all given by Thomas J. Coggeshall, and that they take no notice of Johnson’s interest, though there is some evidence that George Coggeshall acted as agent for him also in maldng them. There is also some evidence that both the original purchasers had assigned to Nathaniel Coggeshall before this transfer to Converse, but the assignments are not in evidence, and as there is no showing that any of the Coggeshalls disputed Johnson’s right, we are probably warranted in assuming that an undivided one-half of all rights at that date existing in the original purchasers under their contract with the corporation, was transferred to Converse by Johnson’s assignment. It becomes important, therefore, to determine what those rights were, and also to ascertain what rights, if any, Blumrich possessed under his contracts at the date of the assignment.

Converse in his testimony assumes that he got nothing by the Johnson assignment, because the contract of purchase had become a nullity. This assumption has no better basis than the fact that the purchasers were in default in their payments. It will be seen that the letter from the treasurer of the corporation to Johnson and Coggeshall recognized their contract as still possessing validity. Some question is made of the right of the treasurer to give such a letter, but it is of little importance in this suit, as there is no evidence that any act whatever was done by the' corporation to terminate the contract prior to May I, 1855 ; and up to that time, Johnson and Coggeshall and their assigns were entitled to compel specific performance of the contract, on making payment. The corporation not only had a right up to that time to demand payment of the purchase money, but was actually seeking to obtain it; and it was not authorized to treat the contract as void, so far as it imposed obligations upon the vendor, and still enforce it against the vendees. All the acts of the corporation show that a forfeiture of the contract was neither attempted nor desired; but that the intention was to deal with the vendees with indulgence and liberality. It seems like supererogation to say that the vendees and their privies were not entitled to insist that the contract should be forfeited, for their own default, against the wish of the corporation; but the position of Converse in this case seems to require the statement..

The contracts of Blumrich were also in full force when the assignment was made by Johnson; for though Blumrich was then in default in his payments, the Coggeshalls had never seen fit to exercise the option, reserved to them by the contracts, to forfeit them. The lapse of time alone could not put an end to them; for time is not of the essence of the undertaking to pay money by such a contract — (Wallace v. Pidge, 4 Mich. 570; Bomier v. Caldwell, 8 Id. 463 ; Morris v. Hoyt, 11 Id. 9; D'Arras v. Keyser, 26 Penn. 249; Young v. Daniels, 2 Clarke, Iowa, 126; Jones v. Loggins, 37 Miss. 546;) and default in payment required to be followed by some act of the vendor indicating his election to consider the contract at an end, before it would be terminated. (Chrisman v. Miller, 21 Ill. 227; Moore v. Smith, 24 Id. 512; Brink v. Morton, 2 Clarke, Iowa, 411; Young v. Daniels, Id. 126.)

Whether Blumrich was in position at this date to enforce his contracts against any one but the holder of the Coggeshall interest, might depend upon facts not sufficiently explained by this record. The question was made immaterial by subsequent transactions. It seems, however, that Converse recognized the Coggeshall contracts, for he made the following indorsement upon a list of them, which he gave to George Coggeshall : “ I hereby covenant and agree to convey, by quit claim deed, to George Coggeshall, Esq., for all the within described lots of land, when the balance due on said lots is paid to me, with the interest at seven per cent, per annum, from the dates as specified above. Grand Rapids, June 3 1853. J. W. Converse.” The Blumrich contracts are specified in this list. There is again at this point a want of full explanation, and the consideration for this instrument does not perhaps sufficiently appear, though it was in some way connected with the purchase from Johnson, and would seem to have been required as a condition of the assignment. Converse testifies that it was given only to protect George Coggeshall against the claims of those who had taken contracts from him as agent, and fulfilled them; and he assumes that the understanding expressed by this paper is confined to such contracts; but his mistake on this point is apparent on inspection of the jtajDer, whióh by its terms authorizes payment to be made by the purchasers on all the contracts mentioned in the list.

June 23, 1854, an agreement was entered into between Converse of the one part, and Turner and Patterson, his attorney, of the other, purporting to settle the suit in the United States Circuit Court. This agreement recited that Converse had purchased the lands of the Missionary Union, and was the real party in interest in the suit; and it provided that the lands should be divided between the parties in the proportions of one-half to Converse and one-fourth each to Turner and Patterson. The only purchase which Converse had really made up to this time was the one from Johnson; but he swears that he was expecting to make a purchase of the corporation, “independent of the contract” He testifies that he was not acting for the corporation in this settlement, and had no authority so to do; and whatever he may have expected to do in the future, it is quite apparent that he was then acting under the contract, and in pursuance of the authority acquired by Johnson’s assignment.

Converse testifies to subsequent negotiations with the corporation, and to an unwillingness on the part of its officers to convey to him until the old contract was out of the way. He therefore made an arrangement, by which, on the first day of May, 1855, he obtained an assignment from Thomas J. and Nathaniel Coggeshall of all their claims under the original contract. This assignment contained the following clause: “And I do hereby constitute the said James W. Converse my attorney, in my name, but to his own use and behoof, and at his own cost, risk and expense, to take all necessary and lawful steps for the complete recovery, enjoyment, use, benefit and control, of the rights and privileges guaranteed by said contract to me, for Ms own use and disposition, with full powers of substitution.”

On the same day Converse obtained a deed from the corporation. The original contract between the corporation and Johnson and Coggeshall, was put in evidence in the case, with the word “ cancelled” upon it; but when, or by whom this was written does not distinctly appear, though the fair inference from all the circumstances is, that it was done at the time of the giving of the deed to Converse.

Blumrich was still in default $400 on Ms contracts, and there is evidence that at one time he was advised by Patterson not to pay, because of the Turner claim to the land; and that he had said he should not do so. But not only had his vendors never elected to terminate his contracts, but no person had up to this time been in a position to do so. Equity could not allow the rights of a purchaser under such a contract to be forfeited by the vendor, when the latter had no title to convey, and was not in position to perform his own undertaking.

The testimony of Converse was taken at great length in the case, and he gives Ms version of the understanding between the parties as to the effect which the various instruments should have. A large portion of this testimony was intended to vary or explain the legal effect of the writings, and was therefore inadmissible; and when he testifies that Ms purchase from the corporation “ was entirely independent of, and separate from the Johnson and Coggeshall contract,” he is distinctly at variance with the facts. If he so understood the transaction, it is remarkable that everything actually done by himself assumed that contract to be in force, and that he was acquiring rights under it. He paid a considerable sum for the assignments — $1,500 to Johnson and $500 to Coggeshall— and as by means of them he entitled himself to the benefits of the original contract, so also must he be held to have assumed their burdens. By receiving the assignments and the deed, he became .assignee of both the corporation and its vendees; so that while he had a right to claim the title under the former, he became bound to perform the contracts of the latter with their vendees. Buying with knowledge of equities in these vendees, hé became liable to the same extent, and in the same manner, as the persons from whom he bought. (Le Neve v. Le Neve, 3 Atk. 646, and notes thereto in 2 Lead. Gas. in Eq.; Taylor v. Stibbert, 2 Ves. 438; Daniels v. Davison, 16 Ves. 249.) Unless a deed from the corporation to Johnson and Coggeshall would have deprived Blumrich of his right to perform, a deed to Converse, after he had taken their assignments, could not have that effect.

But while Converse succeeded to the obligations of Johnson and Coggeshall, and of each of them, in respect to the Blumrich contracts, he also became vested with their rights; among which was the right to terminate the contracts at Ms election, for default in payment. He saw fit, however, not to assert this right; but instead thereof to give out and claim that he knew nothing of the contracts, azzd was izi no manner bound to recognize or respect them, because his purchase was an original one from the Missionary Union, and wholly independent of the previous purchase. The Blumrich contracts are therefore still in force, uzzless put an ezid to by Blumrich himself in the transaction which resulted in giving the mortgage now in controversy. It is claimed by complainant that they were, inasmuch as Blumrich entered into the arrangement, if not with full knowledge of all the facts, at least with such information respecting them as should operate as constructive notice.

There is zro evidence that Bluznrich was apprised of the negotiations between Converse and the original purchasers, or of the memorandum given by Converse to George Coggeshall in respect to the contracts which had been made. Converse, Turner and Patterson, immediately after entering into the agreement among themselves, gave out and claimed that they had a right to disregard entirely the contracts before made with Coggeshall, and they required of purchasers from him that they should either receive pay for their improvements, and surrender the lots, or else make a new purchase of them at such price as should be agreed upon. Blumrich, for a long time, refused to make any arrangement, though he expressed a readiness to pay the amount due on his contracts; but at length, on June 1, 1857, he entered into a new contract with Converse, by which he agreed to purchase the same lots at the price of $1800, paying $300 down, and three months láter giving the mortgage now in suit, for the remaining $1500. The arrangement was made with Converse by the aid of one Koch, who, though not then an attorney, acted as legal adviser of Blumrich in making it. The testimony of Koch was taken in the case, and though differing from that of Converse in some respects, the differences are not so material as in any way to affect the legal aspects of the case.

Koch testifies that he went several times to see Converse, and asked him if he would recognize the Blumrich contracts. Converse replied that he knew no such contracts, and if there were any, he had nothing to do with them, was under'no obligation to respect them, and would not respect them. He also said, if Blumrich did not buy the lots of him, he would dispossess him. Blumrich, after long parleying and appeals based on his poverty and large family, at last entered into the arrangement on the terms dictated by Converse, and the latter informs us, that after the papers were drawn Blumrich shook him by the hand and expressed his gratitude at the liberality with which he had been treated. No more conclusive evidence could be given, how thoroughly Blumrich was deceived, both as to his rights under the contracts, and as to the facts of the case.

Complainant now seeks to support this mortgage as given on a compromise of their respective claims. Undoubtedly where a fair settlement of conflicting claims is made between parties, it is binding upon them, even although they may have yielded legal rights; and the law should favor and encourage such settlements. But we have no doubt whatever that this mortgage was given by Biumrich in the full belief, induced by the acts and statements of Converse, that the rights of the latter were independent of' and paramount to any'which could be claimed under the original contract, and that he had done nothing to recognize or make himself responsible for the sales by Coggeshall. The statements by Converse on this point were not mere expressions of opinion by him; they were statements of facts, and, if untrue in material particulars, Biumrich is entitled to have the mortgage procured by them set aside as obtained by fraud, unless he was at the time chargeable with such notice of the facts as should preclude him from complaining.

It can hardly be necessary to consider the doctrine of constructive notice at length, in disposing of this case. A person is chargeable with constructive notice where, having the means of knowledge, he does not use them. —Mayor, &c. v. Williams, 6 Md. 235. If he has knowledge of such facts as would lead any honest man, using ordinary caution, to make further inquiries, and does not make, but on the contrary stucliously avoids making such obvious inquiries, he must be taken to have notice of those facts, which, if he had used such ordinary diligence, he would readily have ascertained.— Whitbread v. Boulnois, 1 T. & C. 303. But he cannot be bound to do more than apply to the party in interest for information, and will not be responsible fo'r not pushing his inquiries further, unless the answer which he receives corroborates the prior statements, or reveals the existence of other sources of information. —Holmes v. Stout, 2 Stock. Ch. 419; Williamson v. Brown, 15 N. Y. 354. Biumrich, receiving information which led him to infer that Converse had become chargeable with the obligations of Coggeshall’s contracts, applies to Converse to ascertain the facts, and is distinctly informed by the latter that he knows nothing of such contracts, and has never obligated himself in any way to respect them. As between himself and Converse, Blumrich had fully discharged his duty by making the inquiry; and 'the former will not be heard to claim that Blumrich should have received and acted upon the prior information, instead of the positive statements' made by himself to the contrary. When one seeks the best authority to ascertain the truth of rumors, and is there misled, the person misleading him can hardly be allowed to support rights by insisting that he should still be chargeable with the reports which he had endeavored in vain to verify. The law of constructive notice can never be so applied as to relieve a party from responsibility for actual misstatements and frauds.

But it is also said that Koch, who acted as counsel for Blumrich, was fully aware at the time, of the agreement which Converse had given to Coggeshall in reference to these contracts;- — -and on the familiar principle that notice to an agent is notice to his principal. Blumrich, it is claimed, is as fully bound by his settlement as if he had personally known of that agreement at the time. Without stopping to consider how far this may fall within the principles just staged, we may content ourselves with saying that there is no legal evidence to establish such knowledge by Koch. The fact was sought to be proved by a letter from Koch to Converse, dated June 19, 1857, written in the endeavor to make an arrangement for another party. In this letter Koch refers to the agreement from Converse to Coggeshall as follows: “ I all the while knew that there was a writing in the hands of a certain person, of Mr. Converse, in which it was promised to convey and recognize these contracts,” &c. As the date of this letter is only eighteen clays after the settlement with Blumrich, the inference is drawn that Koch must have known of the writing he refers to at that time. Koch positively denies such knowledge.

But this letter of Koch is no evidence of the fact as against Blumrich. There is no ground upon which it would be claimed to be affirmative evidence, except as an admission of Blumrich’s agent. But the admissions of an agent are only evidence against the principal when they constitute a part of the res gestae. They must accompany the transaction in which the agent acted; what he states at a subsequent time is inadmissible. — Thallhimer v. Brinckerhoff, 4 Wend. 394; Hubbard v. Elmer, 7 Id. 446; Vail v. Judson, 4 E. D. Smith, 165; Fogg v. Child, 13 Barb. 246; Budlong v. Van Nostrand, 24 Id. 25. The rule that would allow an agent, after a transaction is closed, to admit away the rights of his principal, would be too dangerous to bo tolerated for a Moment. — Benedict v. Denton, Walk. Ch. 336; Horner v. Fellows, 1 Doug. Mich. 51.

There are two very significant facts in this case to which we have not yet alluded. One of these is, that Converse while claiming not to have recognized the Blumrich contracts, actually, through George Coggeshall as his agent, received interest upon them in March and May, 1854, settling the accounts therefor in April, 1856. This not only recognized the contracts, but treated them as in force at the time these payments were made. It does not' appear, nor is it likely, that Blumrich, when making them supposed Coggeshall was acting in any different capacity than when he made the contracts ; but it now appears that he was acting as agent for, and paying over the money to Converse, notwithstanding the positive assurances of the latter that he had never recognized the contracts upon which he was thus receiving payments.

The other item of evidence referred to is an endorsement made by George Coggeshall on the list of contracts upon which Converse’s agreement to him had been written, in these words: “ It is hereby understood and agreed this day, that Mr. Converse is not held to give any deeds on any bonds that have reverted. 11 May, 1855.” The date of this is ten days after Converse acquired his deed from the Missionary Union, and it will be seen that it modifies the agreement of Converse, of June 3, 1853, by which he had promised to convey all the contracted lots. Why this endorsement was made, unless for the purpose of narrowing the obligation which Converse supposed to rest upon him, we are unable to perceive. The date is significant, as being coincident in time with the claim set up by Converse to disregard the Coggeshall contracts, and its peculiar wording shows that the real ground on which the parties then supposed they might treat them as null, was the default which had been made in payment, by means of which, to use their term, they had “ reverted.”

Objections were taken by complainant to some portion of defendants’ evidence, but we have not deemed it important to examine them, since the equitable right of defendants to relief clearly appears from the statements of Converse himself., upon the stand. We have carefully in the course of our opinion abstained from speaking of the acts of complainant as intentionally dishonest, and from characterizing them with harshness. We have been obliged to say of his statements that they were untrue, and made on his part with knowledge that they were so. But we will not undertake to say that he did not convince himself by some process of reasoning that they were correct. The legal aspect of the case would not be different if we came to that conclusion, since the courts must look at the effect of untrue statements upon the person to whom they are made, rather than to the corrupt motive of the one making them. If one obtains the property of another, by means of untrue statements, though in ignorance of their falsity, he must be held responsible as for a legal fraud.— Ainslie v. Medlycott, 9 Ves. 21; Taylor v. Ashton, 11 M. & W. 401; Smith v. Richards, 13 Pet. 26; Lockridge v. Foster, 4 Scam. 569; Smith v. Babcock, 2 Wood & M. 246; Tuthill v. Babcock, Id. 298.

As the lots purchased were deeded by Converse to Blumrich, it might be desirable to end all litigation between the parties by enforcing payment of the balance due to Converse, by decree in this suit, if we could properly do so under the pleadings. But the bill is filed for the sole purpose of foreclosing the mortgage; and whatever other rights complainant may have, they cannot be enforced in this suit if the mortgage fails. It has been' several times held by this Court, that the complainant can only recover on the case made by his bill; and he is entitled to no relief on equities only brought into the case by subsequent pleadings or by evidence.—Peckham v. Buffam, 11 Mich. 529; Perkins v. Perkins, 12 Id. 456 ; Moran v. Palmer, 13 Id. 367. Undoubtedly the complainant retains a vendor’s lien upon the land, which he may enforce in equity if defendants refuse to pay:—Carroll v. Van Rensellaer, Har. Ch. 225; Palmer et al. appellants, 1 Doug. Mich. 422; Sears v. Smith, 2 Mich. 243; Mowrey v. Vandling, 9 Id. 39, but it must be enforced in a suit brought for that purpose.

The decree of the Court below must be reversed, and the complainant’s bill dismissed, with costs of both courts.

Campbell and Christiancy JJ. concurred.

Martin Ch. J. did not sit in this case.