text:
    Hunt et al., complainants, vs. Thorn et al., defendants.

      K. and T. having mutual claims derived from distinct sources, to certain real estate the title of which depended upon a release or confirmation to be obtained from tlio General Government, entered into a mutual agreement under seal, reciting fully their respective claims to the estate and agreeing to share equally in it, if the title should be confirmed, or in the money or compensation which might be awarded by Government in lieu of it. The claim having been subsequently confirmed, and T. having obtained a patent in his own name, the heirs of K. (he having died in the meantime) filed their bill against T. for a specific performance. Held: That inasmuch as the agreement recitedfully the respective interests of the parties in the estate, T. could not excuse himself from a specific performance on the ground of K.’s • inequality of interest in the estate, at the time of making the agreement.
    A defendant cannot resist the specific performance of a contract, on the plea that his expectations of aid in money, &c., from the other party, formed the sole inducement and consideration to him of entering into the contract, where it appears that these expectations were merely the operations of the defendant's mindand not raised by any promise or suggestion of the other party.
    Matters of defonse set up in the answer which are not responsive to the bill, cannot avail as a defense unless proved.
    It is not competent to prove the admissions of a party made fifteen years previous, to vary the terms of a written contract.
    An administrator has no authority as such to waive or release a contract relating to real estate, unless the personal property of the deceased is insufficient to pay his debts, and then only by an order of the Judge of Probate duly obtained.
    A party who has enjoyed the use of estate and of moneys,arising from sales of parcels of an estate which he had covenanted to share jointly with another, cannot object the lapse of time where the complainant filed his bill for specific performance thirteen years after his rights accrued, there being no fraud or unfairness imputed to him.
    Appeal from the Circuit Court for the county of St. Clair; In Chancery. Bill for specific performance.
    On the second day of April, 1827, Thomas S. Knapp purchased of one Henry Jermain, by warranty deed,' a tract of land containing fifty-three acres at the confluence of the Black and St. Clair rivers; being the same premises that were claimed by said Jermain as husband to Mary Racine Jermain, sole heir at law of John Baptiste Racine, deceased, whose claim to the premises had been proved before the board of United States Land Commissioners, for adjusting land claims in the Territory of Michigan, and reported by them for confirmation by act of Congress. The deed was not signed by the wife of Jermain.
    On the 16th of December, 1832, John Thom purchased of said Mary Racine Jermain, wife of said Henry Jermain, her interest in all the tract pf land confirmed to her by the board of commissioners, which contained 480 acres, by dee^ of assignment. The land or claim to land deeded by her to Thom, embraced the 53 acres deeded to Knapp, by the husband of Mary.
    On the 7th of May, 1833, Knapp and Thom entered into an agreement, in the form of a bond, under their hands and seals, by which, they were respectively bound to each other in the penal sum of $4,000,, in which it is recited that “ whereas Knapp had obtained of Henry Jermain a deed of land at the confluence of the Black River with the St. Clair river, bearing date the 2d April, 1827, and which lands were claimed of the United States in the name of Mary R. Jermain, his wife, in her own right as sole heir of the estate of John Baptiste Racine,, and whereas, the said John Thom had obtained of the said Mary R.. Jermain, a transfer or assignment of the whole claim, as entered before the commissioner's, amounting to 480 acres, being six acres infront and upon the St. Clair river, and eighty in depth, which transfer bears date the 16th December, 1832;” it was then further recited “that for the better and more effectual adjusting and concluding all matters and things relative to the above mentioned claim, or to the lands therein mentioned, or intended to be conveyed by the said Henry Jermain and Mary his wife, by their several deeds, transfers or assignments, they the said Thomas S. Knapp and John Thorn, did mutually covenant and agree each with the other, that in the final result and conclusion, whatever may be the satisfaction, remuneration or compensation made by the United States in lieu of said claim or the lands thereunto belonging, or intended to be deeded, assigned or transferred by each of the several instruments hereinbefore mentioned and set forth, severally executed by the said Henry and his wife, shall be fairly and equally owned and divided between the said Thomas and the said John, whether it be in land or in money or in other valuable consideration.”
    Knapp died in August, 1834. In June, 1836, Thom obtained a patent for the land in his own name, and afterwards laid out a portion of it into village lots, several' of which he sold, and up to the time of filing the bill of complainants, in 1849, had received a large amount of' money for the lots so sold, and for rents; and he refused to deed any portion of the land to the heirs of Knapp,

      The bill was filed by the heirs of Knapp, one of whom was a minor, and sued by her next friend, her brother, and the administrator of Knapp. It prays a just division of the lands, according to the bond above recited, an account of sales of lots, and of Thom’s dealings in relation thereto, as trustee, and contains a prayer for general relief.
    The answer admits that the complainants (except Owen, who prosecutes as administrator of Knapp) are the heirs of Knapp, and admits the conveyance by Jermain to Knapp, as set forth in the bill of complaint, but denies that the conveyance is of any force or effect, as the land belonged to Mary Jermain, the pretended wife of Jermain, and he died before Mary conveyed to the defendant, and therefore no legal interest passed to Knapp. It admits the purchase by defendant, of Mary Jermain, as stated in the bill, and denies that Knapp paid any part of the purchase money, and claims that the deed to defendant from Mary, was made after the confirmation. by the commissioners, while Knapp’s purchase of Jermain was made before the confirmation. It does not admit Mary to have been the wife of Jermain. It admits the agreement with Knapp, as set out in the bill, but denies that Knapp had any interest in the land until the agreement was entered into, and claims that the only inducement to J. for entering into such agreement, was the consideration that Knapp resided in Detroit, was active in business, had capital, and it was the expectation of defendant that he was to render his personal and pecuniary aid in getting a title from government, and getting the land clear of the reservation for military purposes; but the whole object failed, as Knapp died a year after, without having done or paid anything, and defendant had to do all that was done, in getting the title to the premises ; and that, therefore, complainants are entitled to no relief, but should be left to their remedy at law. That after Knapp died, defendant received fifty dollars of his widow, to enable him to prosecute the claim to the land; but he received it under a promise from the widow that she would mahe further advances for the same purpose, which she afterwards refused to do.
    Other matters of defense are set up in the answer, all of which, together with the facts proved, sufficiently appear, in the opinion of the Court.

      Van Dyke & Emmons, for complainants.

      Backus, for defendants.
   By the Court, Wing, J.

The agreement between Thomas S. Knapp and John Thom, as set forth in the bill, is fully admitted by the defendant Thorn, in his answer. It is upon this agreement that the complainants, as heirs of Knapp, base all then equities. To meet and overthrow these equities, which spring out of the agreement as admitted, the defendant sets up various matters, which the complainants insist are not responsive to the bill, and they further insist that they have not been sustained by the proof in the case.

We will briefly recapitulate the grounds of defense, as set up by the defendant in his answer. They are,

1. That Henry Jermain had not, át.the time he deeded the lands in question, to Knapp, any interest in them, which he could convey; and if he had, he died before Mrs. Jermain deeded to Thorn, which left the whole estate in the lands, both legal and equitable, in her, and she conveyed the whole to Thorn, and therefore Knapp had no title or claim to the land at the time the bond between him and Thom was executed; the agreement or bond was voluntary, and without consideration; unequal and unjust, and such an one as this Court would not specifically enforce, though good at law.

2. Thorn was poor and without influence, at the time of entering into the agreement or bond; Knapp was a man of property; was active in business, and influential; and the sole inducement to the contract on the part of Thorn, was the consideration that he might be aided by the wealth and influence of Knapp, in procuring the title from the United States; but that by the death of Knapp, before anything was done towards obtaining the title, all the objects of defendant, and all the inducements which operated upon his mind in executing the bond, were defeated.

3. That Mrs. Knapp, the administratrix, abandoned the contract, and waived and relinquished all the rights of the heirs of her husband, to the lands therein described.

4. That complainants, by their own laches in laying by so long, have lost their rights in the land, if they ever had any.

For these reasons, and for others deduced from them as matters of law, the defendant insists the bill should be'dismissed and the complainant be remitted to his remedy at law.

We do not perceive that these several matters, so far as the supposed facts go, are responsive to the bill. There is no allusion to them in the bond or the bill. The defendant admits the execution of the bond, and that he has obtained a patent for the land. He admits the case made by the bill, and sets up other matters outside of the complainants case, by way of defense to the bill, and if they áre available to him, they must be proved.

It will be perceived that Thorn does not insist, in his answer, that the bond does not embrace the whole of.the actual agreements between Knapp and himself, as they both intended it should he stated in the bond. There is no assertion that Thorn was deceived or misled by Knapp, or that he was ignorant of any fact having a bearing upon their negotiations or agreement, of which Knapp had knowledge or which then existed. It is difficult to understand what is the precise scope of the defendant’s claim upon this point. It is not asserted in the answer, that at the time the bond was executed, there was any conversation between the parties to it in relation to its provisions, or their previous verbal understandings or agreements, or their future operations, or their intentions, or as to what should be stated in the bond as their agreement. It is not stated that the parties or either of them were present when it was written, nor who wrote it, nor who gave the instructions to the attorney as to what he should insert in it; nor whether anything was said by any one at the time it was executed as to any of its provisions. What the defendant insists upon is, that “ the sole inducement to' him for executing the bond and thereby giving to Knapp an interest in the land was the consideration that Knapp, at the date of -the bond, resided in Detroit, and was an active business man and had considerable capital at his control, and was to render his personal and pecuniary aid in getting said claim allowed, and the premises separated ■and disencumbered from the reservation for military purposes, attached to Fort Gratiot, of which the said, premises formed a part; that Knapp was to apply his personal efforts and pecuniary means; that the whole object of the agreement failed, as also the entire consideration thereof; that Knapp died about a year after the bond was executed, and up to the time of his death had never done anything either by personal efforts or by supplying any means to defray expenses in perfecting the title to said claim; that the object and sole consideration of this defendant in associating the said Knapp with him in said claim by the execution of the bond, was to secure his aid and means, and especially his personal exertions in perfecting the same, as aforesaid, at Detroit and in Washington, the defendant residing in St. Clair county, at Black River, a remote place; but the whole consideration failed by the decease of Knapp, who had donenothing and expended nothing in the consummation of the title to said claim, but the whole remained to be done and was done by the defendant as to the fifty-acres or more embraced in the patent, at great trouble and expense, and by reason thereof, neither the said Knapp nor complainants were or are in equity and justice entitled to any portion of said premises so acquired by said defendant with his own means and without the aid or assistance of said Knapp, as was intended and contemplated at the time of the execution of said instrument.”

We have given the answer of the defendant in full on this point for the sake of accuracy. In speaking of the inducement which operated upon his mind, the defendant does not say that Knapp suggested any such inducement to him or that anything was ever said to him which presented to his mind the inducement which he states. We can only understand from defendant’s statement that, being aware of the position of Knapp in respect to his wealth, residence, business habits and influence, it operated on his mind and formed, with the fact that Knapp was to render his personal and pecuniary aid in getting the claim allowed, &c., the sole consideration and inducement which operated upon defendants mind and led him to execute the bond. Defendant does not assert that Knapp agreed to continue his residence in Detroit, or that he assured defendant he had wealth or influence, or that his business habits were as stated, and thereby induced defendant to execute the bond. The operations of defendant’s own mind seem to be stated, and not the propositions and mutual understandings or the suggestions of either of the parties. But it may be assumed that the defendant intended, (judging from his entire statement as given by us,) to say that the sole consideration which moved the defendant to associate Knapp with himself in the ownership of the claim, was that Knapp should employ his personal and pecuniary aid at Detroit and in Washington, in perfecting, the title to the land, and that the whole consideration failed by the death of Knapp, before he had done anything in furtherance of the object. We do not understand the defendant to say that Knapp was to-do this without aid from Thorn. 'We think that by a fair construction of the bond each party to it was bound to contribute his time and means to perfect the title, or pay his proportion to the other, but the bond does not import that that was the consideration for the undertaking, of either party.

It may be gathered from the evidence, aside from the bond, that Knapp had purchased the interest of Henry Jermain, in the fifty-three acre tract of land at Port Huron, confirmed to Mary Jermain, his wife,, by the United States land Board, but that owing to the difficulty which existed between Knapp and the-wife, he could not negotiate with her, or get her to sign off, as it Is called, and therefore Knapp procured Thorn to go and make the purchase of her; Thorn was to get the wife to sign off, and have half. The evidence of H. Chamberlain shows that Thom did contract with Mrs. Jermain for her right in the land in, the spring of the year 1882, and in the fall of that year, she deeded, her interest to him; that he furnished the means to pay her for her, claim. But as none of the witnesses are able to prove the terms upon which Thom and Knapp had agreed the purchase should he made, we cannot say what they were — whether Knapp was to repay Thom what he might pay, and did so, or whether Thom was to obtain the deed of Mrs. Jermain at his own expense. The evidence of Burch shows that after the purchase was made, Knapp and Thorn were at his (■witness’) house, and he heard them conversing about their respective interests in the land. Knapp claimed he was entitled to two-thirds, or three fourths of the purchase, and Thom admitted he was entitled to one-half, according to the previous verbal agreement between them. The evidence, of defendant’s other witness, James McGill, shows Knapp was to have half of Thorn’s purchase.

Was the contract unequal, and was it a voluntary bond and without consideration ? Defendant in support of this defense, relies upon the supposed fact that Knapp had no title. The bond recites the fact that Henry Jermain was the husband of Mary, to whom the land was confirmed, and that Henry had deeded to Knapp; as husband of Mary, he had some interest or right in the land if she had any. If hers was a legal estate, and they had children, he had a life estate. If not, he could control the land during the life of his wife, if he lived so long. In either case, and in case her interest was a mere equity, he had an interest which he could enforce and convey. (See Clancy's Husband and Wife, 440.) But to judge of the inequality of interest, we must ascertain what interest Thorn had acquired. He purported to have purchased the interest of Mrs. Jermain in the land. He had obtained her separate deed of the Jand confirmed to her. This gave him no right; the deed was entirely void if the husband was still alive. That he was not alive does not appear from the admissions of the parties, or the ¡woofs. The only proof on this point is that of Mr. H. Chamberlain: he says when he visited the wife to obtain her deed, she said “ her husband was dead, or she supposed ho was dead.” This evidence was objected to, •and it was incompetent evidence to prove the death of the husband, and if competent, it was very inconclusive. It shows the wife was not sure ■whether or not her husband was dead. The presumption would be that ■he was still alive, in the absence of any facts from which a contrary presumption could be raised. In this view of the matter, Thorn had ■no interest at all, and cannot complain of an inequality in the contract.

But there is another view of this matter. Knapp had Jermain’s interest in the land, and by reference to the testimony of Burch, E. B. Clark, and Chamberlain, it appears that Thorn did not stand in the position of an independent purchaser in his own behalf, but that he purchased the right of the wife, at the instance of Knapp, as we have stated. Knapp was to have half, at the least, of Thorn’s purchase; so that when the parties came together to execute the bond, Knapp’s interest was not limited to the interest he had bought of Henry Jermain, but extended also to one-half of that purchased by Thorn, and his interest so far, was the same as Thorn’s. The contract was not, therefore, unequal, nor in this respect unjust, so far as Thorn was concerned; complainants might insist it was unequal.

It is quite immaterial what was the relative extent of interest of the respective parties. The bond shows by its recitals, that the parties had mutual claims, and what they were; and the bond and the proof show that the parties understood what they were; there was no surprise, unfairness, imposition, mistake, or undue influence; they imderstandingly agreed to divide the result of their future labors, in enforcing their respective rights. But putting the case upon the footing on which it is ,-presented by the bond, the parties, with a knowledge of their rights5 (which are recited,) undertake to settle them by a compromise. It is-implied by the recitals, that the interest of Knapp, acquired from Jermain, was uncertain, because of the uncertainty of Jermain’s life; and the interest of both was uncertain, because the government had not finally acted upon the claim; Jermain might live longer than Thorn. There was enough of uncertainty to make it a fair subject of compromise. It required the conveyance of both Jermain and wife, to complete the right in equity to the land, and there is no evidence that either party was actually mistaken or deceived, either as to the law or the facts of the case, or as to the full extent and value of their respective rights. In such a case as this appears tobe from the bond as well as the proof, this Court should not refuse to decree a specific performance of the agreement, for the reason that it is unequal or unjust in respect to the grounds we have been considering. (See a full discussion of this subject in 1 Story's Equity Jurisprudence, 111, 112, to 137; 3 Swanston, 400, 468, 470, ’5, ’6, ’7; Mortimer vs. Coffin, 1 Bro. Ch. Rep., 156; 4 Vesey, 840; Gibbins vs. Caunt, Neal vs. Neal, 17 Eng. Ch. Cond., R., 675; 2 Atk., 592; 1 P. W., 727; 1 Vesey Sen., 450, note 1; 1 Vernon, 48; 1 Ch’y Cases, 84; and see 11 Peters R., 70; 3 Sanfords R.. 279; 2 Ball & Beatty's R., 180; 1 Fonblanqe E., 271, Laussat's Edit., 1835.)

This is not the case of a purchase made by one man of another; Knapp did not purchase of Thorn; they purchased together, as appeal's by the proof; or, according to the bond, they united their interests, and Thom by acquiring the patent became the trustee of the heirs of Knapp of one-half. It cannot therefore be said the bond is voluntary and without consideration. The rights of the respective parties, as recited in the bond, forms the consideration for the undertaking of each party, and we have seen that-they need not be equal; but if we look to the proof for the consideration, it will be seen that Thorn’s undertaking, so far from being voluntary, was entered into to consummate a previously executed verbal contract, by which the defendant was permitted to become a party in interest in the speculation of Knapp, and the value of the speculation whether present or prospective, formed a valuable and abundant legal consideration for the contract in the bond. The proof fails to establish the fact that Thom relied upon the influence or wealth of Knapp, or that these considerations induced him to execute the bond.

We will now consider the second ground of defense, embracing what defendant says was the sole inducement and consideration of this contract. It is necessary to a clear understanding of this ground of defense that we should state the proof bearing upon it. The only witness whose evidence lends any support to the answer of defendant in respect to the consideration of the contract, is James McGill. He says Knapp told him, in the winter of 1833-4, he had entered into a contract with Thom and had agreed with him, if he would get the wife of Jermain to sign off, he should have half; he offered to sell to witness his half and said he was to be at the expense of getting the patent from the Government. He said Thom’s proportion of the expense was in obtaining the title from Mrs. Jermain and nothing further, and he (Knapp) was to do all the rest.

If we understand the answer rightly, this evidence is broader than the answer. The witness does not say that Knapp admitted he was to aid by his employment of his means and personal exertions in getting the title,” but he was to be at the sole expense and trouble in accomplishing that object. But if we have misconceived the effect of the answer, and defendant intended to say as this witness has said, the statement of the witness is overthrown by the evidence of Chamberlain and the other witnesses. This is the only witness who says that Knapp ever admitted he was bound to be at the sole expense and trouble of prosecuting the claim. It is inconsistent with the repeated admissions of Thom to the witnesses, as stated by them. In all his subsequent trouble and whilst conversing with various persons, whose evidence we ■have upon this subject, he does not claim that Knapp was to be at all the expense and trouble in prosecuting the claim, and when he seems ■to have made up his mind to resist the claim of the heirs to any portion of the land, and said to E. B. Clark, “if the hen's get any portion ■of the land they must pay him well for his trouble,” he does not intimate that he could protect himself under any such defense as that stated -by the witness. We are therefore constrained to say this witness must have misapprehended the statement of Knapp, and, if it was not overbalanced by the other evidence in the case,it is too loose, without regard to its competency, to authorize our acting upon it in a case of this kind. In 2 Johns. Ch. R., 585, it was held that the confessions of a party made thirteeen years before, of a mistake made, were not sufficient. In Gordon et al. vs. Hertford et al., (2 Maddock, 405,) the Yice ‘Chancellor refused to decree upon the evidence of a single witness who ■spoke of transactions many years before in order to enforce a written contract. Here the witness testifies to what he says he heard some fifteen years before. Judge Story in 1 Eq. Juris., § 15Y, in treating of the relief which may be granted in cases of written instruments says: “ it will be granted only where there is a plain mistake made out by satisfactory proof. This quahfication forbids relief whenever the evidence is loose, equivocal or contradictory, or if in its nature it is open to doubt or to opposing presumptions.” If the proof does not support the answer, as we have considered it to be, then the defense set up must fail; but if the consideration of the contract set up by the answer is identical with that stated by the last named witness, it varies not only from the bond, but from the body of the proof in the case.

The defendant seeks not only to set up the understandings and a parol contract of the parties, not embodied in the bond, but the expectations of the parties'. Even if it were competent to introduce parol evidence for such purpose, he has failed to prove either. He does not make the offer to show fraud or surprise, but to vary the agreement actually made. We deem it unnecessary to decide whether, if the defendant had proved that the true consideration of his undertaking had been different from that stated in his bond or agreement, it could have been available to him under the rules applicable to such cases. The bond must be considered as unaffected by any supposed contemporaneous agreements, understandings or expectations.

As to the third ground of defense, we say, if it was true that the administratrix abandoned the contract, it coidd not aflect the heirs whom she does not represent; she could not waive or release the contract; she had no power to do so as administratrix; she had no authority to pay money belonging to the estate, upson a contract, without the order of some Court, and where the payment was not necessary to protect the rights of creditors, and the claim had not been passed upon; the bond concerns real estate.

The proof does not show any release or written waiver of the contract, even if she had the power to execute such an instrument. (1 Mason Exec., 453, 454.) Besides, the defendant has repeatedly admitted to various persons who have proved the fact, that the heirs of Knapp had an interest in the land, and the admission seems to be eo-extensive with the rights of the parties, as they are expressed in the bond, and they were made long after the patent was received by defendant; and since the period when defendant claims that by the death of Knapp the contract was forfeited, he received fifty dollars from the widow of Knapp, to enable him to prosecute the claim to the land. It cannot be claimed, under these circumstances, that the defendant can sustain this ground of defense.

It is objected that Owen, the administrator on the estate of Thom, is made a party, and the defendant claims the same benefit of the objection as he would have had on demurrer.

There is nothing shown in the pleadings or proof, as to the condition of the estate of Knapp. The heirs seek an account. If it shall be found on the final adjustment of this matter, that any allowance is-tobe made to Thorn, the heirs would be entitled to have the amount previously paid on the obligation of the contract discharged out of the personal assets. (See Story’s Eq. Pl. page 211, § 177.)

It is further objected that the complainants seek a conveyance of their interest in only a portion of the land embraced by the claim, and patented to Thom. . But as the complainants seem to have limited their claim to an interest in the fifty acre tract, and claim no further interest under the contract, we can see no objection to the decree of the Circuit Court in this réspect.

But it is said complainants have losttheirrights, by laying by so long. According to the terms of the bond, Knapp, had he lived, would have been entitled to a deed of one-half the land when the patent was received. Either party might prosecute the claim; but when the patent was received, they were each entitled to half, as joint owners. Up to the time of Knapp’s death, it is not pretended that there was any forfeiture or laches on his part. The proof shows that defendant has admitted Knapp did all he was able to have done, previous to his death. The complainants could not be guilty of laches while under age, at the least, in such a case as this, where it is not shown that the defendant -has been prejudiced by their delay. One of them is but recently of age, and the other is still a minor. We have already said this is not a case where a purchaser lies by, and suffers the person with whom he contracts, to rest under the impression that he has abandoned his bargain, where the purchaser has failed to pay the 'consideration. It is the case of individuals having joint interests, and where one holds the legal title for the others, find as their trustee. The defendant was under obligation to convey — the duty rested on him — there was no duty incumbent on the heirs which they had omitted, and which could affect their equitable rights. They have not misled the defendant by any act indicating an abandonment of their rights. The defendant had been in the enjoyment of the property after he had received the patent, some thirteen years previous to the exhibition of complainants’ bill; he has received the moneys derived from extensive sales of lots, (a part of the land,) and has had the entire control of all moneys arising from'saleg, rents, or otherwise, which are proven to have amounted to a very large sum of money. Instead of being prejudiced, he must have been greatly benefitted by the delay of complainants. If he was put to trouble in raising money to go to Washington, or in defending the title against McDougall and others, he also received large sums of money; and if applied to those objects would have probably been more than sufficient to pay all such expenses. He has laid off a town on the land, but not pursuant to any contract with Knapp or his heirs.

There has been a change of circumstances, but instead of injuring they have greatly benefitted defendant. Complainants owned one-half of the property before the change took place and ought to have had a title from defendant. He cannot complain that they left him in the profitable management of the property of which he might at any moment have divested himseif, as he was bound to have done, without •waiving any prior duty or condition to be performed by complainants. 'The change must have been expected by defendant. Then if the performance of defendant’s contract would be unjust or hard, it can only be on the ground that it would be unjust to compel him to do now what he ought to have done long since, and that it would be hard to part with property, the use of which is profitable. I find no cases where a valid obligation resting upon a defendant to convey, not dependent upon any act or duty to be performed by complainant, has been held to fall within any defined legal notion of hardship. In this case the contract is fair and irrevocable on its face. The circumstances or agreements out of which it sprung were fair at the least on the part of Knapp; there was no fraudulent surprise or mistake. The only thing of which defendant can complain is that he had to manage the property alone since the death of Knapp, but this can and should be compen■sated by proper allowance. Courts incline to this course rather than to ■defeat the bill, and it will be especially proper in a case where the compensation is to be retained, and not to be paid over by the complainant.

The decree of the Circuit Court for the county of St. Clair, in Chancery, must therefore be in all things affirmed, with costs to the appellees,


source: Caselaw Access Project

author: By the Court, Green, J.

license: Public Domain

text:
    Howard and wife vs. Moore and wife.
    In an action of ejectment by an heir to recover land that bad been sold by an administrator under a license of the Probate Court, it appeared the decedent was an inhabitant of Oakland county at the time of his death, that the premises were situate in that county, and that letters of administration had been granted to P. by the Probate Court of the county, and that it subsequently licensed him to sell the real estate. Held: That the above were the only facts the purchaser need establish to show the Probate Court granting the license was a Court of competent jurisdiction for that purpose, under R. S. 1838, pt. 2, title 5, chap. 1) § 36; and that the purchaser was protected, whether that jurisdiction was properly orimproperly exercised, and whether the license was granted upon a sufficient or an insufficient petition.

      A license to an administrator to sell real estate was granted on the 4th Fobruary, 1839, and the sale took place on the 3d February, 1840, but the deed to the purchaser was not executed until the 19th day of that month — eighteen days after the license to sell ceased to be of ' force. Held: 1st. That under chapter 1, title 5, pt. 2, R. S. 1838, the deed was well executed.
    2d. That if the administrator had not power to execute the deed after the expiration of the year, it was a proper case for relief on the ground of a defective execution of the power.
    Case reserved from Oakland Circuit Court.
    Tbe ease was made by tbe parties with a view of settling their legal and equitable rights to the premises in dispute, and at their request reserved by the Circuit Court. Howard, and his wife, who was the only child and heir at law of John Hobdey, deceased, brought an action of ejectment against the defendants, Moore and wife, to recover the land in controversy, which was in Oakland county and belonged to Hobdey at the time of his death. Hobdey was a resident of the county, and died in March, 1838; and in May following, the Probate Court of the county appointed Lemuel M. Patridge, administrator on the estate, and on the 4th February, 1839, licensed him to sell the real estate of the deceased for the payment of debts against the estate, and the land in question was sold by the administrator to Thom Deuel, at public auction, on the 3d February, 1840, but the deed was not executed until the nineteenth day of that month. Deuel subsequently conveyed the premises to one Heath, who conveyed them to Mrs. Moore. It is'unnecessary to make a more full statement of the facts in the case, as they appear in the opinion of the Court.
    The plaintiffs insisted the administrator’s sale was void: 1st, For want of jurisdiction in the Probate Court to grant the license; and 2d, Because the administrator’s deed to Deuel was not executed within the year — the statute declaring no license should be in force more than one year from the granting thereof.
    The defendants’ answers to these objections were: To the first objection, That the Probate Court had jurisdiction; and to the second objection,' 1st, That the sale took place within the year (although the deed was executed afterwards,) which .was all the statute required; and 2d, That if the statute required the deed to be executed within the year, the execution of it afterwards was but a defective execution of the «power of sale,- which a Court of Equity would relieve against.

      J. M. Howard, for plaintiffs.

      B. Manning, for defendants.
   By the Court, Green, J.

The first question which is presented hy the case agreed upon by the parties is, whether the Probate Court of the county of Oakland had jurisdiction to grant the license to the administrator, to sell the land in controversy. On or about the 15th of March, 1838, Hobdey, the intestate, died seized of the premises. On the 3d of May, 1838, Pat-ridge was appointed administrator upon the estate; The personal property was appraised at $676.16, and the real estate, consisting of the land in question, at $1000; and a return of the appraisement was made to the Probate Court on the 7th day of July, 1838. Out of the personal estate so appraised, property amounting to $96.50, was set off to the widow. On the 7th of January, 1839, the estate was represented insolvent, and commissioners were appointed to receive and examine claims; and on the same day, the following petition was presented to the Probate Court, by the administrator:

“Hon. Stephen Reeves, Judge of Probate for Oakland County:
Sir — Having ascertained that the personal estate of the late John Hobdey, deceased, is insufficient for the payment of the debts due from said estate, and charges of administration, your Honor is requested 'to order that his real estate, or so much thereof as may be necessary, shall be sold for that purpose by me, and that license be granted accordingly.
J. P.. Richardson,
Att’y for Administrator upon said estate.”
This application was continued by the Probate .Court, for hearing; until the first Monday in February thereafter; and notice was ordered to be given by publication in a newspaper printed in Pontiac, at least three weeks in succession, to the end that all persons interested might be heard. Such notice was duly published, and proof thereof filed in> the Probate Court, on the 4th day of February, 1839, when, “It having been made to appear to the Court, upon the examination of the said administrator upon oath, that the facts set forth in the above petition were-true, and no one appearing to oppose the granting of said license,, thereupon it was ordered by the Court, that a license issue to the said administrator, and that he give bonds and take the oath by law prescribed.”

On the same day the administrator filed the requisite bond, duly approved by the Judge of Probate, and took and subscribed the oath required by the statute; and thereupon a. license was issued, under the seal of the Court, authorizing the administrator to sell so much-of the real estate of the deceased, as should be necessary for the payment of the just debts said deceased owed.

Upon this statement of facts, it 'is insisted by the counsel for the plaintiffs, that the Probate Court never acquired jurisdiction of the subject matter, and that all the proceedings in that Court relative to the sale of the land, are therefore a nullity.

These proceedings were had under the R. S. of 1838, part. 2, title 5, Ch. 1. Section 3 of'that chapter puovidesthat, “In order to obtain such license, the executor or administrator shall present to the Court a petition, setting forth the amount of debts due from the deceased, as nearly as they can be ascertained, and the amount of the charges of administration, and the value of the personal estate.” When such petition was made to the Supreme, Court, or to the Circuit Court, it was required to be accompanied by a certificate from the Judge of Probate of the county where the executor or administrator was appointed, setting forth the amount of the debts due from the deceased, as far as they were ascertained, and the value of his real and personal estate.

This chapter corresponds in all its essential provisions, with chapter' Yl of the revised statutes of Massachusetts of 1836, which apipears to have been a consolidation of the previous statutes of that State on the' same subject, with some modifications, with the exception of sections 38, 39, and 40, the provisions of which do not appear to have been incorporated into any previous law of that State. These sections correspond with sections 36, 31, and 38, of the chapter of the R. S. of 1838, before referred to, and seem to have been intended for the better protection of the equitable rights of bona fide purchasers from executors,

administrators, and guardians. It was formerly holden in Massachusetts, New York, and other States, that all the prerequisites required by the statute, must be conformed to in every essential particular; and in case of a failure to do so, that the Court did not acquire jurisdiction, and consequently a purchaser acquired no title. In Heath vs. Wells, (5 Pick., 140,) and in Wellman vs. Lawrence, (15 Mass., 326,) it appeared that the debts, for the payment of which the lands were sold, had been barred by the statute of limitations, and the Supreme Court held that the sales were therefore void.

Marcy, Justice, in Jackson vs. Robinson, (4 Wend., 441,) says the Surrogate “ is required to act on ike suggestion of the executor or administrator of a deficiency of assets, and on receiving an account of the personal estate and debts of the deceased. He thus acquires jurisdiction of the subject matter.” In Jackson vs. Irwin, (10 Wend., 441,) and Jackson vs. Crawford, (12 Wend., 553,) the same doctrine is recognized and applied; and it was held, that unless such account accompanied the petition, the Surrogate acquired no jurisdiction to grant a license to sell.

The petition of the administrator for license to sell the real estate in controversy in this case, did not specify either the amount of debts due from the deceased, or the amount of the charges of administration, or the value of the personal estate. It was not, therefore, in strict conformity to the statute. Was it so far a substantial compliance with its provisions, as to bring into action the jurisdiction of the Probate Court for any purpose ? In considering this question, it must be kept in view that before any determinate action could be had upon the merits of the petition, notice was required to be given to all persons interested, of the time and place of hearing the same, and the facts set forth in the petition must have been proved to the satisfaction of the Court; upon which hearing, all persons interested might appear, and show cause, if any existed, why the petition should not be granted. Upon the presentation of the petition, the only question for the Judge of Probate to consider was, whether he should entertain it, and direct the proper notice to be given.

An inventory and appraisal of the personal estate, had been returned into the Probate Court by the appraisers appointed for that purpose, and was then before him. It amounted, after deducting what had been set off to the widow, to the sum of $579,66. The inventory also embraced the real estate in question, which was appraised at $1000. On the same day that the petition for license was presented, and before the presentation thereof, the estate had been represented insolvent, and commissioners appointed to receive and examine the claims of creditors - of the estate, and a warrant had been issued for that purpose by the Probate Court. The administrator was required to set forth the amount of the debts due from the deceased, as nearly as they could be ascertained. But the proceedings show that no particular amount of debts due had then been ascertained, yet the fact was represented that the amount, together with the charges of administration, was more than the personal property in the hands of the administrator was sufficient to pay. This was the material fact to be set forth and to be established before a license should be granted, and this might have been controverted at the hearing. But suppose some specific amount of indebtedness had been set forth in the petition, larger than the amount of the personal assets, would it have been material at the hearing, whether that sum, or a greater or a less amount was satisfactorily shown to be due, provided it appeared that the personal estate was insufficient for its payment ? I apprehend not. No issue could be taken upon the particular amount, the question being whether the goods and chattels of the deceased in the hands of the administrator, were 'sufficient to pay all his debts, with the charges of administering his estate. The amount of the charges of administering could not at that time be definitely ascertained. Some had accrued, and other charges were to accrue in the progress of the settlement.

In the case of Grignon’s Lessee vs. Astor et al., (2 Howard's Rep., 319,) the Supreme Court of the United Stales regarded the whole merits -of the controversy as depending upon the. single question: Had the County Court of Brownvcounty, jurisdiction of the subject on which they acted?” The proceeding in the County Court was under the act of Michigan, of July 27, 1818, by the first section of which, the County Court was authorised to license the executor or administrator to sell, upon representation, &c. The third section of that act was as follows: That every representation to be made as aforesaid, shall be accompanied with a certificate from the Judge of Probate of the county -where the deceased person’s estate was inventoried, certifying the value of the real estate and of the personal estate of such deceased person, and the amount of his or her just debts; and also his opinion whether it be necessary that the whole or a part of the estate should be sold; and if part only, what part.” Neither the minutes of the Comt, nor -its files, nor any recital in the license, showed that any such certificate was presented with the petition, nor was there any joarol or other evidence that such a certificate ever existed. No notice was given of the pendency of the application, and the order for empowering the administrator to sell was made on the same day that the petition was filed.

Judge Baldwin says, (p. 339,) “no other requisites to the jurisdiction of the County Court are prescribed than the death of Grignon, the insufficiency of his personal estate to pay his debts, and a representation thereof to the County Court where he dwelt or his real estate was situate, making these facts appear to the Court. Their decision was the exercise of jurisdiction, which was conferred by the representation, for whenever that was before the Court, they must hear and determine whether that was true or not; it was a subject on which there might be judicial action.” The Judge further remarks: “ The subsequent provisions of the act of Michigan relate exclusively to acts and proceedings in the execution of the order of sale, or are directory to the administrator to accompany the representation with a certificate of the Judge of Probate, and to the Court, before passing on such representation, to order notice to be given to the parties concerned, to show cause why the license should not be granted; but these provisions do not affect the jurisdiction of the Court, they apply only to its exercise.” After citing several cases in the Courts of the United States, in which the validity of judgments and decrees depending upon similar principles have come in question, he very justly remarks that “ titles acquired under the proceedings of Courts of competent jurisdiction must be deemed inviolable in collateral actions, or none can know what is his own; and there are no judicial sales around which greater sanctity ought to be placed, than those made of the estates of decedents, by order of those Courts to whom the laws of the States confide full jurisdiction over the subject.”

In, the case of Thompson vs. Tolmie, (2 Peters, 157,) the property in question had been sold by commissioners pursuant to an order of Court, under an act of Assembly of the State of Maryland expressly prohibiting a sale until the eldest of the heirs had arrived at full age. The action was ejectment by the heirs, against the purchaser at the commissioners’ sale, and it appeared in evidence on the trial, that at the time of the sale, none of the heirs had arrived at full age; and the case was brought into the Supreme Court of the United States by appeal. Mr. Justice Thompson, after examining the proceedings under which the sale was made, and deducing the conclusion that the Court in .which they were had must be presumed to have had satisfactory evidence that one of the heirs was of age, says: “ But, independent of these considerations, the jurisdiction of the Court over the subject matter of the proceedings sufficiently appears. It did not depend on the fact that one of the heirs was of age. But according to the express terms of the act, it attaches where the ancestor dies intestate, and any of the persons entitled to his estate is a minor.” Without further citation of authorities upon this point, or entering more fully into an examination of the grounds of the decisions, it seems to me that the question is settled by the 36 th section of the chapter under which the sale of the premises in controversy was had. It provides as follows: In case of any action relating to any estate sold by an executor, administrator or guardian, iu which an heir or other person claiming under the deceased, or in which the ward or any person claiming under him, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear:

“ 1st. That the executor, administrator or guardian, was licensed to make the sale by a Court of competent jurisdiction;
“ 2d. That he gave a bond, which was approved by the Judge of Probate, in case any bond were required by the Court upon granting the license;
3d. That he took the oath prescribed in this chapter;
4th. That he gave notice of the time and place of sale; and,
“ 5'th. That the premises were sold accordingly by public auction, and are held by one who purchased them iu good faith.”

The 27th section makes the executor, administrator or guardian liable for any misconduct or neglect by which any person interested in the estate shall sutler damage.

Hobdey was an inhabitant of Oakland county, at the time of his decease. The premises are situate in that county, and the Probate Court of the same county granted the letters of administration upon the estate, to Patridge, who received the license and made the sale. These are all the facts which the purchaser is obliged to establish, in order to show that the Probate Court of the county of Oakland, was a Court of competent jurisdiction. These facts existing, the statute vests in that Court full jmisdiction. The administrator was licensed to make the sale, by a Court of competent jurisdiction; and the purchaser is protected, whether that jurisdiction was properly or improperly exercised, or whether the license was granted upon a sufficient or insufficient petition. The purchaser is not bound to look behind the license, for any other purpose than to see that it was granted by the Probate Court of the proper county, and that the* person to whom it was'granted was the administrator. It was a proceeding in rem, and not in personam. The administrator represents the land. The action of the Court operates on the estate, not on the heirs of the intestate; a purchaser claims not their title, but one paramount. (2 Howard, 338.) The land descended to. the heir subject to the debts of the intestate. (R. S., 1838, p. 267.) Those debts were expressly made a charge upon the land, by the statute which gave it to the heir.

’ Another question of considerable importance is presented in this case. The license was issued on the 4th day of February, 1839, and the sale took place on the 3d day of February, 1840. The deed to the purchaser was not executed until the 19 th day of the same month, eighteen days after the license to sell ceased to be of force. The case sets forth that Deuel purchased the premises at the sale, in good faith, and paid the purchase money over to the administrator. The question is, whether the administrator had any power to execute a deed, after the expiration of one year from the granting of the license, when the sale was made and the purchase money paid over within the year. Were there-no authority to the contrary, I confess I should have little difficulty im arriving at the conclusion that the administrator had the power.

The petition of the administrator is for va license to sellj the license; empowers him to sell; and section 15 provides that every such sale shall be made by public auction. Neither the order for granting the license, nor,the license itself, purports to confer any power to execute a conveyance. When the sale is made, the power conferred by it is executed. But the statute itself confers the power to execute the conveyance. Section 10 provides, that “If the facts set forth in the petition shall be proved to the satisfaction of the- Court, and if no sufficient cause be shown to the contrary, the Court shall grant the license; and the executor or administrator shall be thereupon authorized to execute in due form of law, conveyances of such real estate as he shall sell; which conveyances shall be effectual to pass to the purchaser all the estate, right, title and interest in the granted premises, which the testator or intestate had therein at the time of his decease, or which was then, in any way chargeable with the payment of his debts.” It was by virtue of this section that the administrator had power to execute the conveyance, and this power was conferred upon him upon the license being-granted. The sale must be by 'public auction, but the conveyance must be by deed. The mere-recital of these provisions would seem to determine that the word sale, as used'in this statute, was not intended to include the conveyance. But this question arose in the case of Macy vs. Raymond, (9 Pickering, 285,) under the Massachusetts statute of 1811, Ch. 190, § 12; and the Supreme Court of that State held that the deed must be executed and delivered within the year; otherwise it would not pass the land — that the word sale, was to be construed in its strict technical sense, and embracd the execution and delivery of the deed. The question does not appear to have been much argued by-counsel, and no authorities are cited, either by the counsel or the Court.

This case was decided in 1880. Iam not aware that the same question has ever been adjudicated under the revised statutes of that State; but I am inclined to the opinion that if the question had arisen under that code, the decision would have been otherwise. I am the more strongly of that opinion, from the fact that in 1840, the Legislature passed an act in the following words:

“ Whenever the validity of any sale of real estate which has been or may be hereafter made by any guardian, executor, or administrator, is drawn in question by any person claiming under tbe ward or deceased, if tbe license, bond, oatb and notice, have been according to law, and tbe price forwhich the land shall have been bid off at auction has been paid by a bona fide purchaser and duly accounted for, such sale shall be deemed valid, although tbe deed may not have been executed and delivered within the year from the granting of tbe license.” (Supplement to R. S., p. 178.)

It must be observed that this act is retrospective, and was clearly intended as a legislative construction of that provision of the former statutes, which provided that the license should not be in force for more than one year from the granting thereof. It does not appear from the report of the case of Macy vs. Raymond, that the money was paid until tbe deed was executed, which was about two years and a half after tbe sale.™ Had the money been paid at the time the land was bid ofij the sale would hav$ been perfect, and the equitable title would have passed to the purchaser.

The case of Edwards vs. The Farmers’ Fire Insurance and Loan Company, (21 Wend., 481,) has been referred to by the counsel for the plaintiffs, as an authority for a strict technical construction of the word sale. The charter of the company provided that “ in all cases where the said corporation have become the purchasers of any real estate on which they have made loans, the mortgagors shall have the right of redemption of any such property on payment of the principal, interest and costs, so long as it remains in the hands of said corporation unsold.” The lands in controversy had been purchased at a mortgage sale in the name of an agent of the corporation. The company had entered into a contract to sell and convey the premises, on condition that they could obtain the title, the agent having died. This was held to be an executory contract, and not a sale of the premises, and the morgagor was allowed to redeem notwithstanding a part of the purchase money had been paid. It was a contract for a sale to he made. There was no strict sale within either the legal or common definition -of the term. Judge Cowen, in delivering the ojiinion of the Court in that case, adverted to a distinction between public sales at auction and private transactions. He says it is sometimes used to denote the striking down of land.at auction, though the time for executing a deed may be suspended, as in case of sheriff’s sales of land subject to redemption, a sale of land under a power contained in a mortgage, or by the comptroller for taxes. I see nothing in that case which goes against the construction of the statute of 1838, before indicated.

But if I am wrong in that construction, I have no doubt that this case is a proper one for equitable relief. Some of the considerations which conduce to this opinion, have already been alluded to. The land descended to the heir on the death of the intestate, charged with the payment of the debts. The return of the commissioners appointed for that purpose, made in August, 1839, shows that .they allowed claims against the estate to the amount of upwards of $1,500, which was considerable more than the real and personal estate was sufficient to pay, not including the charges of administration. The proceeds of the land, it is not denied, have been appropriated to the payment of the debts. Is not the conscience of the heir bound by the sale ? It is admitted that the purchaser paid the fair value of the land, at the time of the sale, and it may be presumed that valuable improvements .have since been made upon it. The present defendants purchased in good faith, and for a full consideration. The heir has not been injured by any defect in the execution of the power by the administrator, and in conscience, is not entitled to anything from the land. But if she can recover, a heavy loss must fall upon innocent persons. The administrator died in 1845, and it maybe presumed that his estate, if he left any, has been settled.

The policy of the statute was to compel the settlement of estates, by executors and administrators, without unnecessary delay. The sale in this case was made, and the money paid over within the year. The delay in executing the deed could not, therefore, interfere with the speedy settlement of .the estate.

The case of the heirs of Piatt and others vs. the heirs of. McCullough, (1 McLearts Rep., 69,) is in point. The land was sold by the executor by public auction, under a license for that purpose. The purchase money was paid, and a deed was subsequently executed by an attorney, without having a power, under seal. That deed was void. The executor died, without ever executing a deed. It was held that this was a proper case for relief, on the ground that it was a defective execution of a power, and the Court accordingly decreed a release to be executed by the heirs of the testator.

I have examined the doctrines involved in this question with much care, and no inconsiderable labor, and the result has been, to leave no doubt upon my mind, of the power and duty of a Court of Equity to grant relief in cases of this kind, when necessary. But inasmuch as I regard the power conferred upon the administrator, as having been well executed, it is unnecessary for me to go more fully into a discussion of the grounds upon which the jurisdiction of Courts of Equity in such cases rests.

It must be certified to the Circuit Court for the county of Oakland, as the opinion of this Court, that the defendants are entitled to judgment.

Certified accordingly.


text:
    Snow vs. Perkins.
    ■When the return to a certiorari does not show that the whole of tho testimony has been, returned, it will be presumed thero was evidence in the Court below to sustain the finding of the jury, or of the Court, as tho case may be.
    The law of the place where a promissory note is made payable determines the time and mode of presentment, and of proceedings upon non-payment; but the notice to the indorser must bo according to tho.law of the place where the indorsement was made.
    "When the law of a State in which a promissory note is made payable, authorizes its protest for non-payment, notice to the indorser residing in another State in which the indorsement was made, that it has been, protested for non-payment and that the holder looks to him for payment, is a sufficient notice of presentment and non-payment to cliargo him as indorser.
    The case of Platt vs. Drake, (1 Doug. Mich. Rep., 296,) noticed and commented upon.
    A mistake in describing a promissory note in a notice of protest — as where tho note was for $200, but it was described in the notice as a note for $175 and interest — does not necessarily vitiate the notice, the question in such cases being, whether or no the indorser was misled by the mistake.
    The object of a notice of protest of a promissory note is to inform the indorser of the nonpayment of it by the maker, and that the indorsor is liable for the payment of it; and if tho notice accomplishes this object it is sufficient, although it misdescribe the note in some particulars.

      Error to Lenawee Circuit Court, into which Court the cause had been brought by certiorari from the County Court. The facts are fully stated in the opinion.

      Beaman <& Cooley, for plaintiff in error.

      Norman Ceddes, for defendant in error.
   By the Court, Green, J.

This was an action of assumpsit brought by the defendant in error against the plaintiff in error in the Lenawee County Court, upon a promissory note made by the defendant below. It appears from the stipulation of the attorneys, which was read in evidence on the trial, that on the 5th day of August, 1844, while the note declared on was held by one Peck, and after it' became due, Snow indorsed and delivered to Peek as a collateral security, a note made by George B. Green, dated Detroit, April 18, 1844, payable in twelve months from its date to the order of Snow, at Oliver Lee’s Bank, in Buffalo, New York, for the sum of two hundred dollars, for which Pec^: gave his receipt, agreeing to surrender the same to Snow upon payment of the balance due on Snow’s note, or account for the same. It further appears from the stipulation that Green’s note remained in the hands of the holder of Snow’s note to the time of the trial; and that on the 22d day of April, 1845, a notice was mailed at Buffalo in the State of New York, directed to F. 8. Snow, Esq., Clinton, Michigan, of which the following is a copy:

“Buréalo, N. Y., April 21, 1845.
“$175 and interest.
“Please to take notice that a note, dated April 18, 1844, for one hundred and seventy-five dollars and interest, drawn by George B. Green and endorsed by you, was this evening protested for non-payment. The holders thereof look to you for payment.
Your obed’t serPt,
Charles M. Hopkins.
Notary Public.’-’
F. S. Snow, Esq.

And that no other notice of protest or non-payment of said note was given within three montlis after it became due.

Upon this state of facts it seems to have been assumed by the counsel on both sides that no sufficient notice of the presentation and nonpayment of the note was given. It is therefore insisted on the part of the plaintiff in error, that he, being discharged from his obligation as indorser of Green’s note by reason of the omission of the holder to give him notice of its dishonor, was thereby discharged, pro tanto, from his obligation as maker of the note declared upon, which was the consideration for his indorsement. It must have been assumed by counsel that the insufficiency of the notice of dishonor was settled in this Court in the case of Platt vs. Drake, (1 Doug. Mich. R., 296,) or that the mistake in the notice given, in specifying the amount of the note, rendered such notice nugatory.

Mr. Chitty, in his treatise on bills, p. 433, says: “The general rule is, that in case a bill, cheek, or note, be not paid on the day it has been duly presented for payment, notice must be given in the manner, and within the time presently stated, to the drawer and indorsers of the bill or check, and to the indorsers of the promissory note, or the parties to whom notice has not been so given, will be discharged from liability, not only to pay the instrument itself, but also the debt or transaction, in respect of which he became a party to it.”

One of the reasons assigned for this rule requiring notice, is that the indorsers may be enabled to take the necessary prompt measures against all persons liable to them, to obtain and enforce payment; and if such prompt notice be delayed, it is a presumption of law that the indorsers have been prejudiced. (Chitty on Bills, p. 435, 10th Am. Ed,)

Mr Story recognizes the same doctrine, and cites Chitty on Bills, Bayley on Bills, and Bridges vs. Berry; (Story on Promissory Notes, § 203; Story on Bills, §§ 281, 372, 305, and note.)

But it will not be necessary to decide this question, unless the holder of Green’s note failed to have it duly presented for -payment, and due notice to be given to the indorser. It was the duty of the Circuit Court to look into the return of the County Judge to the writ of certiorari, and to give judgment in the cause as the right of the matter might appear. (R. S., Ch. 92, § 54.) When the return does not show that the whole of the testimony in the cause has been returned, it will be presumed that there was evidence to sustain the finding of the jury, or of the Court, though none appears. ( Gaines vs. Betts, 2 Doug. Mich. R., 98.)

The return of the County Judge in this case sets forth, that upon the trial of the cause in the County Court, the-plaintiff below introduced a stipulation, which is set forth; but it does not show whether any, or i what other testimony was introduced. We must presume, therefore, that there was sufficient evidence of a due presentment of the note -for payment, and of a protest, and of every other fact which, in connection with the evidence returned, was necessary to sustain the judgment of the County Court. Was the notice'of the dishonor of Green’s note, by the maker, as set forth in the stipulation, such as could be supported by the proof of collateral circumstances which were clearly admissible, and must be presumed to have been proved ? One fact which clearly distinguishes this case- from that of Platt vs. Brahe, seems to have entirely escaped the attention of counsel. In that case, the note was payable at a Bank in this State, while in thp case under consideration, the note was payable at a Bank in the State of New Yorle. Prior to 1847, we had no statute authorizing the protest of a promissory note for non-payment, and hence it was held that the protest was a nullity, and that notice thereof was not equivalent to notice of presentment and nonpayment. But by the laws, of New York, (R. S., Vol. 2, p. 288, § 45,) Notaries Public were authorized to demand payment of promissory notes, and to protest the same for non-payment. The law of the place where a note is made payable, determines the'mode and time of presentment, and of the proceedings upon non-payment, but the notice must be according to the law of the place where the indorsement was made. (Story on Bills, §§ 188, 276, 285; Story on Promissory Notes, § 172.) The maker and indorsers of a promissory note payable in another State, are presumed to know the laws and customs of such State applicable thereto, by which they are bound. Due notice of the protest of a note payable in New York, and that the holder looks to the indorser for payment, is therefore sufficient notice to him of the presentment and non-payment of the note, to render him liable. The case of Platt vs. Drake, seems to have been decided upon a rather nice ■technical distinction between the formal instrument drawn up and signed by the Notary, and the facts which are set forth in such an instrument. It seems to have been conceded by the Court, however, that if the laws then in force had authorized a protest of the .note, then the notice would have been sufficient. It is unnecessary, therefore, for us in deciding this case, either to affirm or overrule that decision. If the notice in this case sufficiently described the note, there can be no doubt that it sufficiently apprised the indorser of the presentment and nonpayment, by informing him of the protest.

But the amount for which the note was given, was $200, and the notice describes a note for $17 5 and interest, only. In every other respect the note is accurately described in the notice. This mistake does not necessarily vitiate the notice. The question in cases of this kind is, whether the indorser has been misled by the mistake; and this is a question of fact for the jury or Court, in all cases where extrinsic facts are proven, going to show that the indorser was, or was not misled by the variance, or that he was or was not indorser of other notes, between the same parties, payable at the same place. (1 American Leading Cases, 235, and cases there cited.)

In the case of the Bank of Rochester vs. Gould, (9 Wend. R., 279,) the note indorsed by the defendant was for $375, dated Juno 1, 1828, payable, with interest, in two years. On the 4th of June, 1830, payment was demanded, the note protested and notice given to the defendant in these words: “ Take notice that George Fisher’s note for four hundred and fifty-seven 50-100 dolíais and indorsed by you, was this evening protested for non-payment, and the holders look to you for the payment thereof.” On the trial the notary who had protested the note was called and testified that the sum mentioned in the notice embraced the principal and interest due on the note, at the time of its presentment. The cashier of the bank testified that the bank held no other note made by Fisher and indorsed by the defendant. The Court charged the jury that if they believed that the defendant knew what note it was that had been protested, or had not been misled by the notice, they ought to find a verdict for the plaintiff, which they accordingly did. On a motion for new trial in the Supreme Court, that Court held the notice sufficient to put the indorser upon inquiry and that tbe testimony well warranted the jury in coming to tbe conclusion that lie was not misled by tbe misdescription of tbo note.

In tbe Bank of Alexandria vs. Swann, (9 Peters, 33,) tbe notice of protest described tbe note as having been made for $1475, and tbe note offered in evidence was for $1400 -only. Extrinsic facts were fbund by tbe special verdict tending to show that tbe indorser was not misled, and tbe Supreme Court beld tbe notice sufficient. (See also 2 John. Cases, 337; 3 Wend., 456.)

Tbe object of tbe notice is merely to inform tbe indorser of tbe nonpayment by tbe maker, and that be is beld liable for tbe payment of tbe note, and if the notice accomplishes this object it is sufficient, though it misdescribe the note in some particulars. This is the doctrine of the American authorities, and of the more recent English decisions. (Story on Prom. Notes, § 349.)

Presuming then, as we must do, that there was sufficient proof of extrinsic circumstances to satisfy tbe County Court that tbe notice of ■ protest given to tbe defendant below, did not fail to accomplish its object, it must be regarded by this Court as sufficient, and the judgment of tbe Circuit Court for the county of Lenawee, affirming the judgment of the County Court, must be affirmed, with costs to the defendant in error.

Judgment affirmed.


author: By the Court, Whipple, C. J.

text:
    Sears Administrator, complainant and appellant, vs. Smith et al., defendants and appellees.
    The grantor of lands has a lien upon the estate sold, for the purchase money; hut this lien is waived where the note or obligation of a third person is taken of the vendee for the purchase money.
    The presumption in such case is that the note or obligation was taken in payment of the consideration money, and ¿ot as security for it, and the grantor’s lien is consequently discharged.
    This lien of the grantor exists, generally speaking, and the burthen of proof is on the purchaser to establish that in the particular case it has been intentionally displaced by consent of parties.
    A grantor who has received the note of a third person upon the representations of the purchaser that the note is good, which turn out afterwards to bo false, and who retains the note until it is outlawed without offering to restore it to the purchaser, cannot ask the aid of a Court of Equity to cancel the sale.
    It is incumbent upon the party alleging fraudin such a case, to institute proceedings to cancel the sale on discovering the fraud, and not to wait until the purchaser has made large outlays in improvements on the lands so purchased.
    Appeal from the Court of Chancery. The facts are sufficiently detailed in the opinion of the Court.
    -, for complainant.
    -, for defendant.
   By the Court, Whipple, C. J.

The hill, in substance, alleges that Abraham C. Sears, in the month of December, 1840, sold to the defendant a tract of land located in Cass County, “for the price and sum of two hundred and sixty dollars, the amount of a certain note or obligation, (under seal,) of principal and interest due thereon at the time, given by one Oi'lin Fitzgerald and John Fitzgerald, to Thomas Fitzgerald, his heirs and assigns, for the sum of $212, with seven per cent interest thereon, until paid, and dated Jackson County, Sept. 1st, 1837; that the note was assigned by Thomas Fitzgerald, to the defendant Smith, with a guaranty written thereon, that he would pay the same, if it could not he collected or secured of the makers.” The bill then avers, that this note dr obligation was received of said Smith, and taken in payment for the said amount of purchase money for said land, upon and in consideration of the representations of said Smith, made at the time, that the said obligation was good; that the guaranty of said Thomas Fitzgerald was good, and that John Fitzgerald, one of the makers, was very rich, that he had a large farm and a large quantity of property, both personal and real; that they were abundantly able to pay, and would pay the obligation; that Thomas Fitzgerald was liable, and would pay the same, although it would not he necessary to resort to him, as the makers were good; that if the said obligation was not good or collectible from the makers, he, said Smith, would pay the amount to grantor himself, or would stand good for it himself, or words to that import. It is further alleged that Smith assigned the instrument to Sears, “ to enable him to control and prosecute the claim; and he did so assign it, but stated in said assignment that it was without recourse to him.” The bill then states that suit was brought against John Fitzgerald alone, on the note, and judgment recovered, and that the other maker had deceased; that execution issued on this judgment, and as nothing could be collected, it was returned unsatisfied. The bill charges that Orlin Fitzgerald died, without leaving any property, and that John Fitzgerald was insolvent at the time of the assignment of the note, which fact was well known to Smith, whose representations touching the pecuniary responsibility of the makers, were false. That being unable to collect the money due on the note from the makers, he called upon Smith, and requested him to pay the amount of the purchase money, which Smith refused to do, pretending that Sears was bound to prosecute the note, before he could be held responsible. The complainant gives as a reason for not offering to return the note to Smith, that he did not wish to part with the security the obligation afforded for realizing the amount due him. • The answer of Smith denies that the consideration agreed to be paid for the land was $260, but asserts that the consideration consisted in the transfer by him to Sears, of the note, or obigation set out in the bill, and that such transfer was “in full satisfaction .and payment of, and for the purchase money of said premises, to be taken and held by the complainant, at his own risk, without recourse to the defendant.” The answer denies, in express terms, the fraud alleged in the bill; on the contrary alleges that it was at one time agreed upon between the parties, that the defendant should have the land at $8 per acre, to be made out of the note or obligation which was to be assigned to complainant for that purpose, with Smith’s indorsement or guaranty thereon, but that subsequently this agreement was abandoned, and a new one made, by which the note was to be assigned absolutely by Smith to complainant, without recourse, in consequence of the increased amount given for the land.

The cause wa3 brought on to be heard upon the bill, answer and proofs, and a decree dismissing the bill having been made by the Court of Chancery, this appeal is taken to reverse that decree.

From the view I have taken of this case, it becomes unnecessary to look very minutely into the pi oofs for the purpose of ascertaining whether they sustain the case made by the bill or answer.

The leading object of the bill is to' enforce an equitable lien which the complainant insists he has upon the land sold and conveyed by him to Smith in December, 1840.

We had occasion to hold in the case of the Michigan State Bank vs. Hastings et al., (1 Doug.,) that the vendor of lands has a lien upon the estate sold, for the purchase money; and in administering this branch of equity jurisdiction, Courts regard the vendee in the light of a trustee to the vendor. This hen exists independent of any special agreement between the parties, or of the possession by them of the thing to which it -attaches, arising as it does from an implied or constructive trust. Considerable diversity of opinion has existed in the English Courts, respecting the circumstances under which this equitable lien attaches. In the American Courts, however, the current of decisions has been more uniform and consistent. By the Roman law, from which it is probable the doctrine of the vendor’s lien was derived, the property passed absolutely to the buyer if the seller took another pledge, or other personal security; or, in other words, where anything was taken in satisfaction of the price, although payment was not positively made. According to Pothier, the question whether a personal credit was given to the vendee, or not, was to be judged of by all the circumstances of the case.

Mr. Justice Story deduces from a consideration of the text of the-civil law, that “ whenever it was doubtful whether such credit was given or not, then it was not to be presumed, unless made certain by the vendee.” This principle is recognized and enforced by many learned jurists, both in England and in this country. A critical review of the numerous cases-to be found in the equity reports, will sustain the doc-that, “ generally speaking, the lien of the vendor exists; and the burden of proof is on the purchaser to establish that in the particular case it has been intentionally displaced or waived by the consent of the parties.” ' (2 Story Com. on Eq., 472.) What circumstances will be deemed sufficient to authorize a Court in presuming a waiver, has been a very embarrassing question, in respect to which Judges have entertained very different opinions. It has been adjudged that taking a bond from the vendee for the purchase money, amounted to a waiver of the vendor’s lien; but the,weight of authority is that the taking of a bond or note from the vendee is not to be considered an act of waiver. Again: it has been held that taking a distinct security, or a note or bond with distinct security from the vendee, or taking the security of a third person, discharges the lien. Taking the deposit of stock has been held to extinguish the lien. (6 Vesey, 752.) And although the Master of the Rolls in Grant vs. Mills, (2 Ves. & Beam., 506,) held that a bill of exchange, drawn by the vendee and accepted by him and his partner, did not repel the lien, Chancellor Kent thinks' the sounder and higher authority is, that taking the responsibility of a third person for the purchase money is taking security, and extinguishes the lien. It is to be observed however, that in many cases, the taking of security has been regarded as no more than a mere presumption, from which a waiver may be implied, and by no means as conclusive evidence of a jwaiver. The painful uncertainty which hangs over the law in this respect, induces the wish that the doctrine of the civil law, that where the vendor has carved out a security for himself he waives his equitable lien, had been adopted by Courts of Equity, in the administration of this branch of their jurisdiction. The adoption of a rule so plain, and as I think, so reasonable, would have furnished a guide both to vendors and vendees, by which their rights could have been determined without an appeal to the judicial tribunals, and rescued the law from the vexatious uncertainty in which it is involved. Assuming then, that the question of lien depends upon the intention of the parties, and that each case is to be determined upon its own particular circumstances, let us for a moment, look to the facts of the case before us and. see if the proof does not show that the vendor was content to rest upon the security he took, and discharge the land.

It is to be remarked that the allegation of the bill that the price of the land was $260, is denied by the answer, which sets up that the note was given in full satisfaction and payment of the land. It is, indeed, stated in the bill that the note “ was taken in payment for the said amount of purchase money for said land, upon and in consideration of the representations of said Smith, made at the time, that the said obligation was'good.” The statement in the bill indicates that the obligation was taken conditionally, while that in the answer Shows that it was taken absolutely. The testimony of witnesses produced by the complainant, on this point, tends rather to- strengthen the narrative given by the defendant, than to support that contained in the bill. William Sears testified that “ he thinks the price of the land was three dollars per acre, and that the note about paid for the land, and that Smith was to assign the note, if Sears would give him ten dollars.” This witness certainly does not prove the agreement set out in the bill, while it clearly implies that the note was given in payment of the land. John Sears testified that “ Smith was to turn a note in towards the land. Does not know whether the note paid for the land or not, or over-paid it.” Mary Sears testified that “Smith was to give Abraham anote he had against Fitzgerald, for the land; thinks the note is what Abraham got for the • land.” Gaiter W. Baldwin testified that he was present when the parties had a conversation touching the sale of the land, and that “ Smith proposed to give a note in payment for the land; thinks the note was to be the price of the land.” ■

If these witnesses, who were present when the agreement was made respecting the sale of the land, have given a true version of what passed between the parties, it is very clear that the complainant has failed to prove the case made by the bill, and by which he is bound. FTo specified amount was to be given by Smith, but it is inferable that the consideration actually given and received, was the note. It was an agreement by which Sears was to convey to Smith a. piece of land, in consideration that Smith would assign to him a note. The note, therefore, was not assigned as a security for the payment of the consideration money agreed to be paid by Smith, but as absolute satisfaction and payment for the land. If this view of the facts bo correct, I am at a loss to determine how the doctrine contended for by the complainant can be applied. If, however, the facts would justify the conclusion to which the counsel has arrived, and 'that Smith had agreed to give a specific sum, as a consideration for the land, and assigned the note in question as an independent security, I should be inclined to adopt the views of Chancellor Walworth, in Fish vs. Howland, (1 Paige, 20.) In a learned opinion in which all the leading- cases, both English and American, are carefully considered, the Chancellor says: “A much safer rule, I apprehend, is to sustain the implied lien wherever the vendor has taken the mere personal security of the purchaser only, and to consider' any bond, note, or contract, given "by the vendee alone, as intended only to countervail the receipt of the purchase money contained in the deed, or to show the time and manner in which the payment is to he made, unless there is an express agreement between the parties to waive the equitable lien; and on the other hand to consider the lien as waived whenever'any security is taken on the land, or otherwise, for the whole or any part of the purchase money, unless there is an express agreement that the equitable lien on the land shall be retained.” “This (says the Chancellor) constitutes a safe rule, easily understood, and which, I consider, established by a weight of authority in this country which is not easily shaken.” The same doctrine has been recently maintained in a well considered opinion by the Supreme Court of Yermont, reported in a recent No. of the Law Reporter.

After a very deliberate consideration of all the cases to which I have obtained access, I think the rule deduced by Chancellor Walworth, is not only in close analogy to that to be found in the code from which we have derived the doctrine of equitable liens, but is sustained by a strong array of authorities. Expediency would seem to dictate the propriety of interposing no unnecessary obstacles in the way of a free-disposition of property, and of adopting a rule so plain, as to prevent, the constant application to our Courts, to settle rights, which cannot be determined, in consequence of the unsettled state of the law on the subject I have been discussing.

It is suggested in the elaborately written argument with which I have been favored, that the note having been taken in. payment upon the representations that it was good, and the testimony showing that these representations wero false in fact, the complainant for this reason is entitled to the relief prayed for in the bill. R is not improbable that representations were made calculated to mislead the vendor, and that it would have been competent for the complainant to rescind the agreement, if proper steps had been taken for that jjurpose. It may be also, that a Court of Equity Would have given the specific relief asked for, if the complainant by his laches had not deprived himself of now going into the question of fraud, and the other difficulties to which I have adverted could be obviated. To authorize a Court of Equity to interfere with an agreement alleged to have been fraudulently entered into by one of tbe parties, it is tbe duty of tbe aggrieved party upon the discovery of the fraud to admonish the other party of his intentions, and upon the facts disclosed in this case the complainant would have been bound to restore tbe note to tbe defendant. He should not have waited six years after the transaction, when the note is outlawed, and parties released from their obligations, and ask tbe aid of a Court of Equity on the fraud assumed. It is shown by tbe testimony that Smith wont on the land not long after he purchased, and made valuable improvements. As tbe facts stated in the bill, and upon which relief is claimed, were known to the complainant before these improvements were made, it was bis duty to have instituted proceedings upon the discovery of the alleged fraud, and not wait until the defendant had incurred large outlays in improving the property. Besides, the letter introduced in proof, from Thomas Fitzgerald, while it denies his liability upon the guaranty indorsed on the note, admits his ability and willingness to pay it in the event that his liability was established. It was therefore incumbent on tbe complainant to have restored the note to the defendant, when he demanded payment of the consideration price of the land. His failure to do so might work a serious injury to the defendant, who would, upon the ground assumed by tbe complainant, not only lose tbe land, but also bis remedy against the parties to the note.

The decree must be affirmed.