author: Campbell J.: Martin Ch. J.

text:
    William E. Groesbeck and Another v. Henry E. Seeley.

      Tax deeds as evidence — statute concerning. — That portion of Section 124 of Laws of 1858 • which makes a tax deed prima facie evidence of the legality of the proceedings to the date of the deed, does not conflict with the constitution, and is valid.

      Gounty Treasurer's book of tax sales is evidence. — A book kept by a couiity treasurer, containing statements of tho various tax 6ales, tho names of tho purchasers, and other items connected therewith, though not distinctly required by any statute to be kept, yet being necessary to tbo adequate discharge of his duties, is an official book, and admissible as evidence to prove tho facts therein staled.

      Limitation of actions — power of the Legislature. — The statute, (Sec. 135, Laws of 1858, p. 192,) so far as it declares that lands bid off to the State, and not disposed of ffor. five years, shall vest in the State an absolute' title in feo simple, is not a statute of limitations, and is void, as taking private property without due process of law.
    Ono who is in the actual or constructive possession ,of property is under no obligation, nor can he be compelled to take measures against an opposing claimant; and a law depriving him of the right of property in such a case is in no sense a limitation law, *but ap unlawful confiscation.

      Acknowledgment of deed before party in interest. — A grantee in a deed, or one for whose immediate use it is made, cannot take an acknowledgment thereof.
    But under the statute, (2 Comp. A, §6237,) no trust results in favor of him who furnishes the consideration, and procures the deed to be made, unless it appear on the face of the deed, and such a trust cannot be raised by parol.

      Consideration in a deed —stamp. — Evidence is admissible to .show that no consideration passed between the parties to a deed, as, in such caso, the stamp required by the act of Congress must be regulated by the value of tho interest sold. y

      Heard May 4 and 5.

      Decided May 13.
    Error to Wayne Circuit.
    The plaintiff (defendant in error,) brought ejectment to recover certain property, and introduced in evidence, a deed from the Auditor General to Collins Bradley, duly executed and acknowledged, which, omitting the formal parts, was as follows:
    “Witnessetii, That, whereas, in pursuance of the provisions of law, the said party of the second part, on tho seventh day of January, A. D. 1864, became the purchaser' of the rights of the State, in and to the following described land, situate in the County of Wayne in said State, which were bid off to the, State for the taxes assessed thereon, in the years 1857, 1858, and 1860, and which has remained undisposed of for five years, from the date when it was so bid off, for the taxes of 1857, to wit: out lot one hundred and eighty-eight (188), of Rivard Farm, City of Detroit, according to the plat thereof, containing eight acres, more or less;
    “ And whereas, The said party of the second part obtained a certificate from the Auditor General for the purchase of the above described lands, according to law, and paid to the State Treasurer upon such certificate the sum of ninety-two dollars and eighty-nine cents, being-the amount of purchase money thereof, as provided- by law, which certificate has been presented, and surrendered to the said Auditor General.
    “ JSTow, therefore, this Indenture witnesseth, That the said Emil Annekc, Auditor General of the said State of Michigan, in the name of the People of said State, and by virtue of the authority vested in him by the laws thereof, in consideration of the premises, and the payment of the purchase money • above mentioned, the receipt whereof is hereby confessed and acknowledged does, by these presents, remise, release, and quit-claim unto the-said Collins Bradley, party of the second part, and to his heirs and- assigns, forever, all the rights acquired by ■the State in virtue of the original sale or sales to the State in the premises above described, subject to all taxes duly assessed thereon.”
    The defendants objected to the introduction of said deed in evidence on the ground, that preliminary proofs of sales to the State for taxes should first be introduced; that there was no authority of law to assess, levy and oollect State and County taxes in the city of Detroit for the years lSSl, 1858, and 1860; that there was no authority of law to make, grant or issue said deed; 'that the said deed, and especially the recitals therein, were not competent; that the legal effect of the deed was not such as to sustain, or tend to sustain, title in the plaintiff, and that said deed was for other reasons inadmissible. The Court overruled the objection and admitted the deed in evidence.

      The plaintiff then introduced in evidence a quit-claim deed of the same property, from Collins Bradley and. wife, to him, acknowledged before E.- II. Rogers, Notary Public.
    The defendants made the like objection to this deed as to the first above named, and the Court overruled the objection.
    The plaintiff then,- further to sustain the issue on his part, offered in evidence a book kept by the County Treasurer of Wayne County, containing statements of the-lands sold by him on the sixth day of October, 1858, at a continuation of the annual sales commenced on the first Monday of said October, for taxes of 1851, and by whom the same were purchased, and showing that the land in question was struck off to the State at that time, for the-taxes of 1851. The defendants objected to this book and the entries therein, as not competent evidence; but the Court overruled the objection and admitted the evidence.
    The plaintiff, having then proved possession by the defendant Allshodt, and a claim of title by the defendant Groesbeck, rested his case.
    The defendants then offered evidence to show that in the proceedings' for the assessment and collection of taxes on the land in question, foi; each of the years mentioned in the first deed above named, that is to say, for the years, 1851, 1858, and 1860, and each of them, there was in several particulars such a non - compliance with the law regulating the assessment and collection of taxes, that such proceedings were, in law, void and of no effect, and that the deeds introduced in evidence by the plaintiff were, consequently, absolutely null and void, and conveyed no title to the plaintiff. The plaintiff objected to such testimony, and the Court sustained the objection and refused to allow any such evidence to be introduced.
    The defendants then called E. H. Rogers, one of the subscribing witnesses, and the acknowledging officer to. 'the second deed above , named, and offered to show by said witness ‘that he, said Rogers, was the real purchaser of the land in question; that the deed from the - State to Bradley, and the one from Bradley to the plaintiff, were procured by said Rogers for his own use and benefit; that the right to the ’ possession and the profits of the land in question were intended by said conveyances to be vested in said Rogers; that the plaintiff’s name was used as a mere nominal party by said Rogers, for that purpose, and that the plaintiff had no real interest in the property. The plaintiff objected to such testimony, and the Court sustained the objection.
    The defendant excepted to these several rulings of the Court, and the jury having rendered a verdict for the plaintiff, -defendant brought error.

      L. JBishop, for plaintiff in error:
    1. The deed from the Auditor General to Bradley was not competent evidence, without preliminary proof of a - sale of -land to the State. Such a deed is claimed to have the same effect as a deed upon a certificate of sale of State tax lands given by the County Treasurer. — Laws of 1858, p. 191, §130, and p. 190, §124.
    What, then, is the effect of a deed in the case last •named? It will be noticed that the statute has not.prescribed what shall bo the form, contents, words or recitals •of a deed to be given in either case.
    It is to be simply a deed of the land conveying all the right and interest of the State. — Laws of 1858, p. 190, §124. This is all. No recitals of facts in the deed are authorized by the statute.
    If the Auditor can, by a simple recital in a deed, manufacture evidence on one point, for one purpose, he -can on any point, for any purpose, as may suit the convenience of dealers in tax titles.
    But he has no such power. His recitals are in no respect whatever, made evidence, or even required or authorized by -statute. — Laws of 1858, p. 190, §124, and p. 191, §130; 1 C. L., §911.
    They are in no respect evidence at common law. — 1 Greenleaf's Ev., §34, 211.
    In Sibley v. Smith the Auditor’s deed was objected to, because it did not, as claimed, contain recitals enough; but it was held that enough was recited, and the Court declare upon authority that “recitals are not evidence in any case, unless made so by express provision of statute.”— Sibley v. Smith, 2 Mich., 496; Varick v. Tallman, 2 Barb., 113.
    The familiar rule will be remembered, that the authority to assess and sell lands for taxes is a simple naked power given by the statute, and no authority, which is not expressly given, can be exercised. — 1 Phil. Ev., 472; Blackwell, 45-58; 2 Barb., 113; Harrington's Ch., 3.
    “Such statutes,” say the Court, “must be construed strictly, and their provisions can be enforced no further than they are clearly expressed.” — 2 Mich., 486, 490.
    The fact, therefore, that the County Treasurer gives a certificate of - sale in the one case, or that the land is bid off to the State in the other, is not proved by any recital in the deed. Such fact must, in either case, Toe first established by competent evidence aliunde, and when so established, then the deed is admissible in evidence, and it then becomes prima facie evidence of the legality of all prior proceedings and of title in the grantee. — 2 Mich., 497; 1 Phil. Ev., 472.
    2. The Auditor’s deed should not have been admitted in evidence, because there was no presumption of law created by statute in favor of the regularity of the proceedings anterior thereto, or that there were any such proceedings.
    The general law as to deeds given on sales made to private persons by the County Treasurer does not apply to this class of deeds for State tax lands. — 1 C. L., §871, amended 1858, p. 185.

      Any such presumption must therefore arise on the forepart of section 124, of the act of 1858. — See §910, §911, Laws of 1858, p. 910, §124, and p. 191, §180.
    Tn the first place I argue, Avith counsel in Quinlon v. Rogers, that this section is xmconstitutional, as depriving people of their property -without due process of law.— Quinlon v. Rogers, 12 Mich., 169, and cases cited.

    Also, because it is an assumption of judicial power by the Legislature. — Same, and cases cited.

    Jh the next place this Avhole section is so connected' with section 101 of the same act that it must fall wholly Avith that section under the decisions of this Court.— Laws of 1858, page 186, §101; Waldby v. Callendar, 8. Mich., 430.
    The clause in section 124 declaring the conclusive effect, of these deeds, has been pronounced unconstitutional, and. in the decision, the Court say of this act of 1858, that “the Avhole statute Avas designed to go together.”— Quinlon, v. Rogers, 12 Mich., 168, 170.
    If, then, the whole statute must go together, certainly, this whole section must go together, and must fall Avith any part of it. If, again, the whole of section 124 does not fall with a part of it, yet the conclusive effect of the deed is destroyed by Quinlon v. Rogers, and nothing but its prima facie effect remains. We were most clearly entitled to rebut that effect, and any presumptions of the legality of proceedings anterior to the deed, by the testimony Ave offered on the trial.
    3. The County Treasurer’s book Avas not competent evidence. It was nof; such an official register of the acts of a public officer, as rendered it admissible in evidence.— 1 Greenleaf's Ev., §483, §484.
    4. It was a mere private book, containing' private memoranda, for the convenience of the treasurer in collecting money of purchasers and making out certificates of sales.
    We should have been allowed to prove what we offered to by the witness Rogers.

      Deeds and conveyances in this State cannot be recorded, and they in no way prove themselves as evidence, unless witnessed by two subscribing witnesses, and duly acknowledged before a competent officer, as specified by the statute. —2 C. L., §2737, §2750; S. L. 1861, p. 16.
    When so witnessed and acknowledged, they are evidence and prove themselves, but the effect of such evidence may be rebutted by other competent testimony.— §2750.
    It appears to us as a self-evident proposition which needs the support of no authorities, and no extended argument, that a subscribing witness to a deed, and the officer before whom the acknowledgment is taken, should not be himself the real purchaser, the real grantee and the real beneficiary under the deed. The very idea of ■such a thing outrages the sense of propriety, and wo submit, that this formal species- of evidence which is of ■itself to have much efficacy under the statute, was never designed to be thus concocted.

      Newberry & Pond and G. I. Walker, for defendant in error:
    1. The County Treasurer’s book, introduced in evidence, and the entries therein were competent evidence.
    The statute does not in term» require the County Treasurcr to keep such a book. But the very nature and necessities of the duties imposed upon him by statute require it. — See §867 and §870 Compiled Laws, p. 310. No provision is made for giving a certificate to the State of the lands bid off for it, and hence did not the County Treasurer keep written statements, like the one given in evidence, there .would be no evidence of the State’s purchase, except the memory of the person who made the sale.
    The book, therefore, was an official one, properly and regularly kept, and was competent evidence. — 1 Greenleaf’s Ev., 483.

      2. There was no error in the Court’s refusal to permit the defendants to show that there was such a non-compliance with law in the proceedings for the assessment •and collection of taxes on the land in question for the years 1857, 1858 and 1860, and each of them, that such proceedings were void and of no effect, and that, as á consequence, the deeds introduced by the plaintiff, were •null. and void, and conveyed no title to the plaintiff.
    Said ruling was based upon Sec. 917 Compiled Laws, p. 321, as amended by Session Laws of 1858, p. 192.
    If this provision is held to be valid, an absolute and incontrovertible title in fee simple to the land in question, had vested in the State, prior to its conveyance thereof to' plaintiff’s grantor, and the evidence to invalidate such •title, was, of course, properly excluded.
    The position taken is, -that this section sustains a similar relation to Sec. 101 of the same act declared .unconstitutional in Waldby v. Callendar 8 Mich., 430, as does See. 89, which was by the decision in said case held to be so intimately connected with said See. 101, as to fall with it.
    We .insist that no such connection exists, and an analysis of the .statute will, we think, fully demonstrate that in this we are correct.
    The statute makes, recognizes and legislates in regard .to three distinct classes of titles arising from sales for taxes, to wit:

      First class: Where lands offered for sale at the annual sale for taxes of the preceding year are purchased by individuals.

      Second class: Where lands offered at the annual sale for taxes of preceding year, find no purchaser, and are bid off for the State, and the right of the State, subsequently, within five years .from the time when first so bid off for the State, is purchased by individuals.

      Third class: Where lands bid off for the State remain undisposed of by the State for five years from the time when so first bid off.
    Sec. 124 relates exclusively to the titles designated as the “Second Glass,” and See. 135 to the “Third Glass.”'

    Sec. 101 and the remedy therein provided, relate solely to the titles designated as the “First Glass.”

    And hence the invalidity of that section as declared in 8 Mich., 430, neither can or does in any degree affect the validity of Secs. 124 and 135.
    Our title belongs to the “Third Glass.”

    Now, if it is possible (which we think it is not) to construe Sec. 101 as applying to said “Second Class" of' titles, it cannot jmssibly be construed to apply to the “ Third. Glass.”

    Said Sec. 101 does not provide for making the State or the Auditor General a party to proceedings under it. Yet so long as the State retains its interest in the lands, bid off for it, the sale cannot be annulled except as in proceedings to which it is directly, or by representation, a party.
    Again, the remedy provided by said Sec. 101 cannot be resorted to until after a deed has been executed by the Auditor General for the land. This is evident from the language of said Sec. 101.
    It is also apparent from Sees. 102 and 103.
    By Sec. 103, provision is made for refunding the purchase money “in all cases where lands sold for' taxes have been conveyed by ■ deed, and the title has been annulled.”
    No provision is anywhere made for refunding the purchase money in any other case; and hence it is evident it was supposed no other case could occur.
    But said section 135 applies solely to lands bid off to-the State which have remained undisposed of for five years, and hence the title under it becomes conclusive,v before any deed is made by the. Auditor General.

      ' If it should be held that proceedings under Sec. 101 may be commenced before the execution of a deed by the Auditor General, still, the limitation of the remedy is to “two years from the date of the deed.” But as. we have seen under Sec. 135, the title in the State becomes conclusive before any such deed is executed. In fact, it becomes conclusive because for five years no occasion for the execution of such a deed has been found.
    It does not follow that there is no remedy provided for one whose land has been bid off' for the State, to. test the validity of the sale before the title of the State becomes conclusive under said Sec. 135.
    Sec. 133 authorizes the Auditor General to be made a defendant in actions of ejectment by any person holding an adverse claim to any land bid off for the State.
    If such adverse claimant were himself in the actual possession of the premises, so that ejectment would not lie, he could sustain a bill to quiet title and make the-Auditor General a party to restrain him from giving a deed.
    We submit that said Sec. 135 must be held valid,, and that the ruling of the Court in excluding the evidence offered, was correct.
    3. The Court was correct in refusing to allow the de-. fendants to show the facts which they offered to show by the witness Rogers.
    If Rogers paid the purchase money, and the conveyances were taken to another by his consent, no trust resulted by implication of law in , his favor. — Compiled Laws, p. 825, §2631.
    No agreement to hold in trust could be thus proved by paroL — Compiled Laws, p. 942, §3111.
   Campbell J.:

Seeley brought ejectment against the plaintiffs in error, claiming under an Auditor’s deed of State tax lands puiv .porting to .have been bid off to the State for the taxes of 185'/', 1858, and 1880, reciting- these facts, and the further fact, that for the former year it had been hold more than five years.

The defendants below objected to the admissibility of this deed: First, Because no proof had been offered of any sale to the State. Second, Because the taxes for those years in Detroit were not authorized by any existing law, and if any were levied they were void. And, ■third, That the recitals were not competent evidence, and there was no evidence of title in plaintiff below.

If there was no law in existence whereby the taxes for State and County purposes, for those years, could be assessed in Detroit, where the land in question lies, then we are bound to know, judicially, that no authority existed to make such a deed. The question is one of ■much importance, and, inasmuch as the case will be decided on other grounds, we prefer not to consider this ■subject until it comes before us with more light upon the actual state of affairs.

Assuming, however, that those sales may have been authorized by law, we think the deed would in such case be prima facie evidence that the taxes were regular, and that the land was bid off to. the State for the years mentioned. These lands wore purchased directly from the Auditor General at his office. By section 130 of the tax law, as amended, (L. 1858, p. 191,) it is declared that the provisions applicable to deeds executed by the Auditor General on the surrender of certificates of sale of State tax lands, issued by County Treasurers, shall apply to deeds for such lands purchased at his office. By Section 124, (L. 1858, p. 190) such deeds were made prima facie evidence of the legality of the proceedings, to the date of the deed, and conclusive evidence after being recorded two years. We held, in Quinlon v. Rogers, 12 Mich. R., 168, that this latter clause was unconstitutional,. as depriving a party * of his rights without a legal hearing. But the former clause being' merely, a rule of evidence, and not preventing the owner in a' legal controversy from setting up the facts which might destroy the tax deed, is not open to the same objection. The effect of this statute .is not to make the deed evidence of extrinsic facts, should those facts become material; but to make it prima facie, evidence that the lands were taxable and regularly assessed, and bid off under such laws as were in force; and the interest or title intended to be conveyed must appear. We think this entirely competent and that this is what was designed by Section 180, in reference to State tax lands sold by the Auditor General himself Assuming,, therefore, for the present, that .the statutes provided for assessments and taxation in Detroit, the deed was not on any other account inadmissible, and would have been prima facie evidence of regularity.

The deed from Collins Bradley, the Auditor’s grantee, to Seeley, was objected to on the ground that the Audit- or’s deed had made no foundation of title. It is therefore unnecessary to remark further upon it.

In order to prove the deeds of the several State sales a book was introduced, kept by the County Treasurer of Wayne County, containing statements of the various tax sales, and the names of purchasers, and other items con-, nected therewith. It is claimed that this book was improperly admitted. Before such a book is received, it must appear to have been kept in the office' as one of the regular office books for making such entries. But the fact that ’ no statute distinctly requires such a book to be kept does not exclude it. The duties of the County Treasurer could not be adequately performed without his keeping a permanent record of these transactions, and such record, therefore, if kept, must be considered as an official book, and must be receivable in evidence on that basis. From the form of the objection wo do not perceive that any question arose upon the genuineness of the record as belonging to the proper ■custody, or upon the fact of its being- kept as an office book, and we perceive therefore no reason why it should have been excluded.

The defendants below offered to show that the taxes for which the lands were sold were illegal for non-compliance with the statutes. The 'Court refused to permit this, on the ground that by Section 135 of the tax law, (L. 1858 p. 192.) the title to land bid off by the State is made absolute and indefeasible after five years, and no adverse title can be allowed to be set up against it, either by a plaintiff or by a defendant. Such is plainly the.provision of the statute, and the only question, therefore, is, whether such a law can be maintained.

This point is substantially like that which arose in Quinlon v. Rogers. In that case a statute cutting off all adverse rights two years after a deed had been recorded, was held invalid, on the ground that it was depriving a party of his rights without due process of law. The Legislature had indeed undertaken to provide a sort of remedy, which was not perhaps, in its terms, strictly applicable to such titles as that involved in that case, but which was the only one devised at all. In Waldby v. Callendar, 8 Mich. R., 430, this remedy was declared nugatory. Whether, if lawful, it would have been valid to cut off rights in possession, it was not necessary to decide. The law as it stood took away titles, without allowing parties holding the actual dominion under them any opportunity to defend their rights. There is no principle on which such legislation can be maintained. The only manner in which a party holding a lawful and vested right in property can be prevented from asserting it against one which was not lawful in its inception, is by the operation of limitation laws. These laws do not purport to take away existing rights, although their operation may often liave substantially that result. But they are designed to compel parties whose rights are unjustly withheld from them to vindicate their claims within some reasonable time. If a person who has been ousted of his possession or dominion desires to regain it, he knows that he must resort to those means which are furnished by the law, either by the peaceable act of a party himself, or by legal prosecution. A limitation law simply requires him to proceed and enforce those rights within some reasonable time, on pain of being deemed to have abandoned them. Such laAvs can only operate on those who are not already in the enjoyment and dominion of then-rights. A person who has a lawful right, and is actually or constructively in possession, can never be required to, take active steps against opposing claims. The law does not compel any man who is unassailed to pay any attention to unlawful pretences which are not asserted by possession or suit. When such a title is set up, he has a right to defend himself, by jury, if the claim is one of common law .cognizance, or otherwise, if of a different nature. But to hold that, under any circumstances, a man can be deprived of a legal title without a hearing, is impossible, without destroying the entire foundations of constitutional protection to property. No one can be cut off by .limitation until he has failed to prosecute the remedy limited; and no one can be compelled to prosecute, when he is already in possession of all that- he demands.

This statute does not purport to be a limitation law. It is designed by its express terms to deprive persons of their titles whether in possession or not, by mere lapse of time. If the proceedings to sell for taxes were illegal, no lapse of time can change their character, and they can never therefore become legal. If the tax purchaser obtains possession, and holds it until protected by a limitation law, 'he then becomes safe, not because his tax title is any more regular, but because the holder of the better title has become incapable of asserting it. As an illegal tax title is a nullity, it cannot of itself divest or affect the true title in any way, and the true owner cannot be lawfully compelled to incur expense or take active measures to get rid of it, unless lie sees fit. But if he becomes-ousted, whether by a pretended tax title holder • or by any adverse claimant, he can only secure the enjoyment of his rights by active measures, and the party in possession may then rely on such possession until it is lawfully assailed, by suit, or otherwise, within the period of limitation. In the present case, the party asserting a legal claim, against one which he claims to have been illegal, is in possession as a defendant. The other claimant is the actor, and insists that, whether his tax title was legal or worthless originally, it lias become good, although the defendant has not been -previously ousted and guilty of delay in enforcing this title. If this tax .title can be thus made indefeasible against a title in possession, by mere lapse of time, it might as well have been declared ■ so originally. It would in either case bo nothing more nor less than depriving one of his property without any legal process, and is simply confiscation by ministerial and not judicial action.

It is insisted, however, that by section 133, the Auditor General may be made a defendant in an . action of ejectment, and that a remedy is thus provided which a party aggrieved should resort to. This statute, however, does not introduce the absurdity of requiring a party who has not been dispossessed to commence an action. It simply provides who ihay be sued as representing the State, when an action has been commenced, rendering it “necessary” to reach the State title. It does not profess, nor does it operate, to introduce any new features into the action of ejectment, or to change its essential features as an action to obtain the possession and enjoyment of land under adverse dominion.

Tbe defendants below should have been permitted to attack the legality of the tax titles. We consider section. 135 as invalid, so far as it divests titles.

It is also alleged, as error, that Ebenezer II. Rogers was not allowed to be asked whether he was not the real purchaser of tbe tax title, and whether the deeds tp Bradley and Seeley were not made for his use. The acknowledgment of the deed to Seeley was taken by Rogers; and there was no proof of the deed except by means of the certificate of acknowledgment; and it is claimed that a person cannot be an acknowledging officer on his own behalf.

We should have no hesitation in holding that a person could not take the acknowledgment of a deed made to himself. Such a point is too plain for doubt. But under our statutes ’ such a deed as is here set out, creates no resulting trust in favor of Rogers, even if he furnished the consideration; (2 C. L., §2637); nor could such a trust be raised by parole. But if, at the time the deed was made, any valid agreement in writing existed, that the title so conveyed should be held for the benefit of Rogers, then such an acknowledgment would be a fraud, and the deed could not be pawed by it unless in favor of persons not cognizant of the facts. As the offer was to prove an interest, it must be assumed to have been a valid one. The testimony was admissible also upon another ground. By showing that there was no consideration for the deed to Seeley, it would open the question of value under the stamp act, and enable the sufficiency of the stamp to be investigated on that basis: as, where there is no actual consideration, the stamp must be regulated by the value of the interest sold. We give no opinion as to where the burden of proof lies after such a showing.

For these several reasons we think the judgment should be reversed with costs, and tbe cause should be remanded for . a new trial.

Cooley and Chbistiancy JJ. concurred.

Martin Ch. J.

dissenting.

I do not concur. I think. the Legislature had ample power to pass the law in question, and that its judgment of what is reasonable binds us.


source: Caselaw Access Project

author: Cooley J. Martin Ch. J.

license: Public Domain

text:
    John B. Stadler v. The City of Detroit.

      Detroit City Marshal — His term of office. — The term of the office of Marshal for tho City of Detroit as fixed by Sec. 13, ch. 2, of tho Amended Charter, (.Laws of 1861, p. 181-2) is two years, and this term is not abridged or affected by the provision of Sec. 2 of the same chapter.

      Appointment to office —when removal of incumbent. — Under said Amended Charter, S, was appointed by the Common Council of the City to the office of Marshal for one year, and gave a bond in which bis appointment for that time ‘was recited. At the expiration of the year, the Council, without his consent, or in terms, removing him, appointed another to tho office, who entered upon and performed its duties. In an action brought by S. to recover his salary as Marshal for the second year: Held, That by virtue of his appointment, S. was entitled to hold the office for two years, and to receive the salary for the full term; that tho recital in said bond of an appointment for one year was surplusage, and the bond was valid for the full term; and that the appointment of another to the office was not equivalent to a removal of S. and did not divest him of the office.

      Heard April 8.

      Decided May 13.
    Error to Wayne Circuit.
    The facts appear in tbc opinion.

      Jj, BisJiop, for plaintiff in error.

      William Gray, for defendant in error.
   Cooley J.

This action is brought to recover the salary of the 'plaintiff as City Marshal of. the City of Detroit, for the ■year 1863. It appears he was appointed to that office by a - resolution of the Common Council, passed January 14, 1862, and which, by its terms, purported to confer the appointment for one year. He gave bonds for the performance of his official duties, reciting therein the appointment according to its terms, and thenceforward acted as Marshal until January 13th, 1863, when the Common Council, by a vote of 16 to 4, appointed Daniel Mahaney to that office, but without removing the plaintiff, unless such appointment of Mahaney had the effect of a removal-The plaintiff, at the expiration of the second year, pre' sentod to the Council his claim for the year’s salary, which was refused allowance.

It is suggested, on behalf of the City, that, under the amended charter, it is questionable whether the appointment of the Marshal is not for one year instead of two. We are unable to discover any room for doubt on this question. Section 13 of chapter 2, as amended, (Laws of 1861, p. 181-2) expressly provides that the Marshal shall hold his office for the term of two years; and section 2-of the same chapter, which is supposed to create the doubt by providing that certain city officers, named, including the • Marshal, “ shall be appointed by the Common Council, at a meeting to be held on the second Tuesday of January, in each year,” {Latos of 1861, p. 181,) is a general provision for the election of various, officers, whose terms of office are not of uniform duration, and it can only mean that appointments shall be made at each annual meeting to fill such of the several offices as are then to become vacant.'

The term of the office being for two years, the Council had no power to limit it to one, by their resolution of appointment; and we have no doubt the appointment of the plaintiff was a valid one for the full statutory-period. The fact that the term was stated in his official ■bond at one-year, can make no difference; such a recita! was surplusage, and the bond, so far as appears from the record, was valid for the whole time.

It is urged, however, by counsel for the city, that the Common Council has the authority, under the charter, to. remove the Marshal at will, and without charges; and that, the appointment of Mahaney to the office operated as such removal. The construction which the city authorities place upon the provisions of the charter as to the-power of removal, we regard as the correct one. Section 20 of chapter 2, as amended, (Laws of 1861, p. 182,) provided that:

“Any officer holding office by appointment, unless otherwise provided by law or ordinance, may be removed at any time by the Common .Council without charges and a trial thereof, by a vote of a majority of the Aldermen elect, except the Controller, Receiver of Taxes and Superintendent of the House of Correction, who may be removed for the same causes and on the same proceedings as a member of the Common Council.”

The intention of this section was to vest in the Com-mon Council an uncontrolled power to remove its appointees— except those specified — unless statute or ordinance provision should be made restricting their power in specified cases. Section 19 of chapter 2, which authorizes the Mayor to suspend or remove the Marshal for reasons, to be reported to the Council, does not undertake to-restrict the power' of removal vested in the Council by section 20 as amended, and is not inconsistent with it. It cannot, therefore, have the effect to exempt the-Marshal from the operation of said section 20.

The only remaining question is, whether the Common Council -have exercised the power of removal with which they áre vested.

It has been held that •yyherc an officer is appointed •during the pleasure of the appointing power, an appointment of another person is a removal of the incumbent. Whether this result could follow where the term of office is fixed by law and is to continue for a definite' period unless’ an actual removal takes place, would seem to have been doubted by the Supreme Court of New York, (2 JUll, 204) but we do not feel called upon to decide the point in this case. A removal cannot be made ■without an intent to remove; and here it is clear that the Council did not suppose they were exercising their power to remove, and they cannot, therefore, be held to have intended it.

The facts disclosed by the record show that the Council undertook to restrict the term of office of the City Marshal to one year, when the statute prescribes a term of two years. At the expiration of the restricted period, they assumed the force of their appointment to be spent, and proceeded to make a new one. . They assumed, as the basis of the second appointment, that the first had come to an end by force of the original limitation; and we are not warranted by the record in inferring that Mahancy would have been appointed had the Council supposed the plaintiff must be first removed. 'The removal of an officer usually is supposed to imply -censuTe of his conduct; and the appointing body might hesitate to remove, when, if the office were vacant, they might prefer some other person to fill it.

The case upon which the Common Council acted was ■a supposed vacancy, which they proceeded to fill. 'As no «uch vacancy existed, the appointment was unwarranted, and the plaintiff, so far as appears by this record, con'finued the lawful incumbent for the full term.

We have not overlooked the point made by the Counsel for the city that the question of intent to remove is not open upon the record, inasmuch as it does not appear that the Court below passed upon it. The record '■states that there was no evidence of any removal off .plaintiff, unless the appointment of Mahaney had that ■•effect; and the Court below charged that it did. We think the appointment alone could not have that effect,, -and that the charge was erroneous.

The' judgment must be reversed, and a new trial ordered.

CiiRiSTiANcr and Campbell JJ. concurred.

Martin Ch. J.

dissenting.

The City Charter of Detroit requires that the Common 'Council should appoint a Marshal in each year. It also provides that the City Marshal shall hold -his office for two years. Here is an evident discrepancy in the law. Which provision shall prevail? Clearly to my mind that imposing a duty. A person who takes office under a fixed salary does not take it under contract, but by appointment. The salary may be increased or diminished during his term of office, and he, in the latter case, can have no action upon contract for such a diminution.

In the present case the appointment was for one year. The understanding then, of both the Common Council and’ Stadler was, that he should hold but one year. Let then each abide by such understanding.

Again, ' at the expiration of the year a successor toStadler was appointed. This was a removal without previous action by the Common Council. — (See 22 Illinois, 554, and 2 Hill, 93.) The very inequity of this demand, and the mischievous results whiph would follow' a contrary decision, are considerations which impel me to hold that the provision imposing a duty upon the Common Council has superior force to that fixing the tenure» of an office — which is, after all, within the power of such Council, and which the Council have undertaken, and I 'think successfully, to conclude by the appointment of a-successor.

I think the judgment should be affirmed.


author: Christiancy J.:

text:
    Anne Durant v. The People.

      jReceiving stolen goods — Evidence.—Where one was charged with receiving stolen goods, knowing them to have been stolen, and a witness testified that ho was present at an interview between the prisoner and her brother a few days prior to her arrest: Held, that what was said by the brother at that interview about sending the goods in question to the house of defendant, was proper , evidence as tending to show the circumstances under which she received, them.

      Offence of receiving stolen goods — possession of the goods, no evidence of guilt— Possession of stolen goods is no evidence of the guilt of the person charged with receiving them, knowing them..to have been stolen, and the circumstances, arrangement or understanding, under which the goods were received, may he shown as affecting the question of guilty knowledge.

      Statement of Prisoner. — ‘Where a defendant made a statement under the Act of 1803, and the Judge charged the jury that “he did not think such statement would warrant them in setting aside unimpeached sworn evidence.” Heldy. that such charge was erroneous, and that if the jury believed such statement to be true against sworn evidenoe to the contrary, there is no arbitrary rule of law to prevent them from acting upon such belief.

      Heard May 9.

      Decided July 8.
    Error to the Recorder’s Court of Detroit.
    The facts are sufficiently stated in the opinion.

      J. Logan Chipman for plaintiff in error.

      Albert Williams, Attorney General, and G. V. W. Lothrop, for the People.
   Christiancy J.:

Plaintiff in error was tried in the Recorder’s Conrt of the City of Detroit upon a charge of receiving certain stolen goods, the property of one Blodgett, knowing the same to have been feloniously stolen, &e.

The prosecution introduced evidence tending to show that the goods had been stolen by her brother,' James Durant, who had been arrested a few days before the arrest of defendant, and imprisoned in the Wayne County jail; that these goods, with a considerable amount of other stolen property, were' found in certain trunks in defendant’s house, no person being at the time in the house but the defendant and one Thomas Kearney; that there were five of the trunks, four of which, at the time of the search and her arrest, she said belonged to her brother, and one she did not know who owned; thall she stated the trunks wore brought to her house the night before, and that she did not know who brought them;' that she claimed to know nothing of the stolen property, stating that James Durant did not live with her, (and it does not appear that he did,) and that she had not seen him for a long time before her arrest. i

The defendant introduced Thomas Kearney as a witness, who stated that he was at the house of the defendant when she was arrested and the trunks searched; that ho had been a frequent visitor at her house for several years; that he never saw the .trunks there till the evening before she was arrested; that he did not know how they came there, but that ho knew her brother James Durant, and, after his imprisonment in Wayne County jail, and a few days before her arrest, he was present at an interview ' at the jail between the defendant and her brother, and heard a conversation between them. The witness was then asked by defendant’s counsel what was said by said James Durant to the defendant at the jail in regard to sending his trunks to her house. This was objected to by the prosecution as incompetent.- The counsel for the defendant stated his object was to show that, in said conversation, James Durant asked defendant to permit liim to send his trunks to her house for safe keeping, representing them to contain his personal baggage. The Court held the question incompetent, and excluded the evidence. ...

We think this ruling was erroneous. The defendant was not charged with larceny of the goods, and her possession could not be used as evidence tending to show that she had stolen them. Her possession must be regarded as innocent, unless shown to have been received with knowledge that they were stolen, or under circumstances Avhich Avould satisfy the jury that she believed them to be stolen. Possession itself, Avithout evidence tending to sIioav such guilty knoAvlcdge, could have no tendency to establish her guilt. She did not, in fact, undertake to deny the possession, but admitting it, claimed she had come to the possession innocently, Avithout notice that the goods Avere stolen. In the aspect the case had assumed Avlien this question Avas proposed to the witness, guilty knoAvledge Avas practically the only question in dispute. But independent of the particular aspect the case had assumed upon the evidence, we think, in all prosecutions for this offence, it must, upon principle, be competent alike both for the prosecution and the defence to show dvhat were the actual circumstances, the .arrangement or understanding under which the goods were received by the defendant, whether the effect shall be to establish guilt or innocence. This is the res gestee, the very essence of the enquiry. The counsel for the prosecution admit that she would have had the • right to show that the trunks wore in fact sent to her house, that they were her brother’s, &c.; but without proof of other facts, he insists, the arrangement or conversation between her and her brother, in pursuance of Avhich the brother was to send them, and she had consented to receive them, was inadmissible. But if the real circumstances, understanding and arrangement constituted the res gestee, or the very substance of the enquiry, then it necessarily follows that any facts may be shown which have any tendency to-prove such circumstances, arrangement or understanding,, though they may fall far short of direct proof, which is not always in the power of parties. • The trunks might have been taken, to her house, as she says they were in her absence, without her knowing by whom. And the hardships and injustice of refusing her the right of showing the facts proposed, because she could not establish-certain, other facts by direct proof, which would have tendered the evidence more satisfactory, is, wo think,, manifest.

The evidence given by the prosecution tended to show that her brother was the thief, and the information admitted that she was not. The prosecutor’s evidence had at least as much tendency to show that the trunks were her brother’s as that they were hers. Kearney’stestimony tended to show they were not hers, and that they had not been at her house till the night before her arrest; and the proof of the conversation at the jail, in reference to' the sending of the trunks, and what they contained, which was rejected, would, in connection with the other testimony, have tended to show that the trunks were sent to the house by the brother, in pursuance of' the understanding. It would have had a tendency to establish the res gestee, because if the conversation proposed to be shown was in good faith, so far as she Avasconcerned, and the trunks were sent in pursuance of it, then that conversation was the res gestee. Whether the conversation was in good faith on her part, or only an attempt to make evidence favorable to her, was a question for the jury to determine in vieAV of all the circumstances and all the evidence in the cause. The only other question in the case arises upon the refusal to charge as requested, and the charge as given.

The defendant having, as permitted by the Act of 1863, made a statement on the trial tending to show that she was ignorant of what was in the trunks, and giving the particulars of the conversation at the jail in relation to them, and the reason why she supposed they were sent by her brother, tending to show that he informed her there was nothing in the trunks except what belonged to him, and that she was innocent of -any criminal knowledge or intent, her' counsel requested the Court to charge the jury “that the statement of the prisoner is entitled to such weight as the jury think it is worthy of, and that it is competent for the jury to believe it in preference to sworn testimony, if they think it entitled to such weight.” The Court did charge “ that the statement of the prisoner was entitled to such weight as the jury should think it was worthy of; ” and' if the Court had stopped here the charge would have been perfectly correct, and there would have been no error in refusing the balance of the charge requested. But the Court, after refusing to give the balance of the charge requested, went further, and told the jury that “he did not think such statement would warrant them in setting aside unimpeached sworn evidence.”

This was in some measure contradictory of the former portion of the charge which we have already said was correct; for if the jury may give the statement such weight as they think it entitled to, it follows that they may believe it in preference to unimpeached sworn testimony, if, under all the circumstances and in view of all the evidence i¿ the case, they believe it entitled to greater weight. It is not to be supposed that a jury would give it such greater weight unless they believed it most. likely to be true; but if satisfied of this, there is not, and cannot be, any arbitrary rule, which is to prevent them from acting upon that belief, or which can require them to give greater credit to sworn testimony, though nnimpeaehed, when they conscientiously believe it less likely to be true. Juries are not bound to give credit to sworn testimony, though unimpeached, if they do not, in. fact, believe it to he true. - There may he something in the demeanor of the witness — his apparent intelligence, powers of observation or memory, or the inherent improbability of the state of facts to which he testifies, or the peculiar circumstances of the case, or the witness’s relation to it, and many other considerations which' need not he here enumerated, which may render his evidence, in the opinion of the jury, more or less improbable and unreliable; while the statement of the defendant may he so consistent with itself and with the circumstances of the case, and so natural and probable as to produce a conviction of its truth. There can he no tost for the comparative weight which the statement or the sworn evidence shall have with the jury, hut the greater or less conviction of its truth, which either may, in fact, produce upon their minds, after taking into consideration the temptation under which the defendant is placed in making the statement and all the evidence and circumstances of the case. The latter portion of the charge was therefore erroneous,' and a new trial must he granted.

The other Justices concurred.


author: ■Campbell J.: Martin Cli. J.

text:
    Fortune C. White v. The Port Huron and Milwaukee Railway Company.

      Reforming contracts. —A Court of Equity will not reform a contract by the addi* tion of new provisions, which, it is claimed, were embraced in the understanding between the parties when such contract was made, whore thore is no allegation of fraud or mistake in drafting it.

      Enforcing forfeiture. — Equity will not interfere to enforce a forfeiture, but, whore such relief is sought, will leave the party complaining to his remedy elsewhere. Crane v. Bayer, 9 Mich., 350.

      Heard April 18.

      Decided July 8.

      Appeal in Chancery from St. Clair Circuit:
    The bill was brought to enforce an alleged forfeiture under a contract, and to cancel a deed claimed to have been improperly obtained. By the decree of the Court below, the deed was declared to be wholly inoperative and void. The defendant appealed.
    The facts are sufficiently stated in the opinion.

      Conger, Harris & Farrand, and A. B. Maynard, for complainant.
    The evidence clearly shows that by accident or mistake, the agreement between the parties for a forfeiture was- omitted from the original, agreement, and it is within the power of equity to reform the original agreement in this respect.— Gillespie v. Moon, 2 Johns. Ch. R. 599: Kesselbrack v. Livingston, 4 Id. 144-5; Willard’s Eq. Ju., p. 288-9; Coles v. Bowne, 10 Paige, 527; Tilton v. Tilton, 7 N. H., 386; Phyfe v. Wardell, 2 Ed. Ch. R., 47.

    The objection that the bill does not directly allege the omission in the agreement of the forfeiture provision, to ha.ve happened through accident or mistake, cannot avail the defendants on final hearing, especially when the answer expressly denies that there ivas any agreement for a forfeiture. — Sargent v. Byers, 1 Hemp., 114; Bull v Bell, 4 Wis., 54; Webber v. Gage, 39 N. H, 182.

      Theodore Bomeyn, for defendants.
    1. The bill does not prevent the case of a mutual mistake of the parties in omitting from their agreement one of the provisions intended to' bo inserted; .nor does it allege that there’ was such omission by mistalce or-fraud.

    The general statement of the design of the parties to add the condition mentioned, without further specification^ is not .sufficient. — 1 Story’s Eq., §152 to §161; Story’s

      Eq. Pl., §257; Gresley's Eq. Ev., 158; 2 Daniels Ch. Pr., 992; Hall's Case, 6 Price's Eq., 240; Underhill’s Case, 2 Johns. Ch., 339; 2 Story's Rep., 267 and 456.
    2. It is inadmissible to defeat a specific sealed agreement for the sale of land, by parol testimony of a subsequent simple executory contract. — Chitty on Con., p. 113; 2 Cow. and H's Notes, 987; 2 Abbott's Dig., 99.
    3. Equity will not enforce a forfeiture. — Titus v. Minnesota Co., 8 Mich., 257; 2 Story's Eq., §1319-4; 4 Johns. Ch. 415; 11 Paige, 414.
   ■Campbell J.:

This was a suit in chancery, upon a bill filed by Fortune C. White, to obtain a decree to enforce- an alleged forfeiture under a contract, and to restrain proceedings at law or in equity upon the agreement, and to cancel a deed claimed to have been improperly obtained.

The bill avers that on the 7th day of January, 1856, complainant, who owned certain lands in Port Huron, entered into a sealed agreement with defendants by their agent, E. II. Thompson, whereby he agreed to sell said land and convey it at any time by warranty deed, upon payment or tender of $25,000, of which $6,250 was payable in cash, in two semi-annual payments, at six and twelve months, and the remaining $18,750 was payable in full paid stock of the Company. There was a further covenant to convey, on payment or tender, and that the Company might enter at any time and hold until forfeiture. There was at the close of the contract a clause in these words: “ This contract not to be binding on said White unless the building of said road shall so progress as to insure .its completion as far as Lapeer within three years from this date.” The contract contained no covenants except from complainant.

The bill further avers that at the time of making the contract it was further agreed and understood that, if the railroad should not be finished at the time and in the manner set forth in the contract, the contract “should not only not be binding upon your orator, but the said Railway Company 'should forfeit all claims upon your orator for monies received from it under said contract, as well as all other claims whatsoever, which further agreement your orator alleges it was then and there the design of the parties thereto to maJce orie of the conditions and a part . of said contract.” It further alleges that the payments of money and stock were made promptly at the time required — the last payment of 'money and the transfer of stock being upon the 2d day of January, 1857. That on that day a further agreement was made, that complainant should execute a deed according to ,the written contract, and that it should be deposited in escrow with William T. Mitchell until the Company should, “in pursuance of the further agreement not mentioned in said contract, but above set forth,” execute and deliver to complainant a bond, conditioned that the said Company should complete such road to Lapeer on or before January 7th, 1859, and in default, the lands and the money payment should be forfeited to complainant. It then sots forth the deposit of the deed in escrow, the failure to give bond, the non - completion of the road, and also, that on or before the 80th day of July, 1857, the Company got possession of the deed, and recorded it without complainant’s knowledge, and contrary to the agreement. The prayer was for a decree forfeiting all claim to the moneys paid, cancelling the deed, and enjoining all proceedings at law or in equity on the contracts, for the land or the money.

The bill does not aver that the ¶ written contract set out in it was in any way imperfect, or 'variant from what was agreed upon as to its terms. It does not aver that there was any mistake, nor does it ask that any mistake should be corrected. The testimony of James H. White is that the agreement for forfeiture was directed to be-inserted in the contract. The testimony of Edgar White is less positive, but has some tendency that way. Mr. Mitchell’s testimony, which, on a point of this kind, is worthy of more reliance, shows that he knew of such an understanding, and does not speak of it as one which was to be embodied in the articles, but rather speaks of it as an after thought. From the whole tenor of his and Edgar White’s testimony, it seems altogether more probable that it was a general conversation in which the expectations of the various parties as to the future were-talked over, and not a solemn agreement supposed to be binding on the parties. This view is strengthened by the further consideration that express reference is made-in the written contract to the contingency of failure to build the ' roacl; and the agreement on that point is-directly in conflict with the one afterwards set up. The written contract left it at complainant’s option to withdraw and cancel the agreement. The alleged verbal one allowed liim to retain land and money both.

By the terms of the written contract, (which, in this respect, was inconsistent with the alleged verbal agreement,) the Company was entitled to demand a' conveyance by warranty deed immediately on payment or tender of the consideration money. The forfeiture, if provided for at all, was to take place after three .years should actually have expired, leaving- the road unfinished to Lapeer. But White could withdraw from the contract before that time, if the road was not likely to be completed in reasonable probability. He had not, under either contract, as averred or proved, any right to refuse a conveyance when demanded, on full payment or tender of the purchase money and stock. He was clearly in default for not delivering a deed in January, 1851, unless the transactions then occurring varied the rights of the respective-parties.

The verbal agreement or understanding, if actually existing-, as liad at the time when 'the first written contract was made, could be of no validity under the Statute of Frauds. It could only have -been made material by showing a mistake and asking for its correction. Neither the bill nor the proof sustain this position, and that-understanding cannot therefore be regarded as of any binding force, whatever may have been its terms.

It is averred and proved that when the payment was made and the deed demanded, the agent of complainant r-efused to execute it, except as an escrow, to be delivered when the Company should execute a bond providing for a -complete forfeiture of land and money, in case the road should not be completed by January t, 1859, to Lapeer. It is to enforce this forfeiture that the bill Is filed. Assuming this agreement to have been made, and valid, equity will not interfere to enforce a forfeiture, but where such relief is sought, will leave the party complaining to such relief as he can obtain elsewhere. — Crane v. Dwyer, 9 Mich. R., 350. But this agreement is not one -which could bo enforced if equity exercised such jurisdiction. It was wholly without any new consideration, and was also void under the Statute of Frauds. As a condition upon the deposit of a deed in escrow, it may have had a legal effect upon the delivery of the deed, and the moral character of the transaction by which the deed appears to have been surreptitiously obtained, must be' regarded in that view. But as a foundation for any right to demand any forfeiture of money and land, it is of no validity whatever, and the rights of the parties must be governed by the only agreement in the case which complied with the statute.

The only relief to which complainant could be entitled in equity, must be dependent on his restoring the purchase price which he received. If he desires -his land, he. must return the price paid, which, by the contract, was regarded as an equivalent. He was at liberty to-retire from Ms agreement on those terms, and we are disposed to regard Mm as not having lost that right when the bill was filed, as no waiver was then insisted on. We are 'also of opinion that, under all the circumstances, a literal compliance would be sufficient, and that interest should not be allowed in this Court bjr way of damages on the money received by him. The contract allowing' him to rescind it does not provide for interest, and whatever may have been the result in a suit at law for the non-fulfillment of his agreement to convey, (upon which we now express no opinion,) equity does not require such a condition to be imposed on his withdrawal for non-completion of the road.

We have had some doubts whether we could properly grant him relief at all, inasmuch as he prays a forfeiture; buf as the bill sets out all the agreements, and shows his desire to withdraw from the agreement, and seeks general relief, we are disposed, instead of dismissing, to grant a decree that, upon re-payment by complainant to defendants of the purchase money and stock within a reasonable time, they be compelled to release the land and all further claims under the written agreement, and in default of such payment, that the bill be dismissed. The defendant will be entitled to the costs of this Court; but, in consideration of the fraudulent manner in which the deed was obtained from Mitchell’s office, we shall leave each party to pay his own costs in the Court below. If complainant was technically in default for not conveying on demand, the remedy should have been sought by honest means; and not by stealth and fraud.

The decree below must bo reversed with costs, and a now decree entered, directing that complainant have leave within forty days to reconvey the stock and refund the $6,250 received by him to defendants; and thereupon, that the defendants be decreed to reconvey the premises, and to release all claims of every kind under the agreement, and be perpetually enjoined from setting up any claim thereafter to said land or under said agreement; •and that, unless complainant comply with such condition, then his bill shall be dismissed. The case to be remanded for further proceedings to carry out this decree.

Cooi/ey and Ciikistiancy J.J., concurred.

Martin Cli. J.

dissenting:

So far as the bill of complaint in this case asks for a decree of forfeiture of all moneys paid by the defendant upon the contract for the purchase of the land mentioned in it, I agree with my brethren, that this Coñrt cannot grant the prayer of the complainant. Courts •of Equity never enforce forfeitures, but jurisdiction over this subject is left exclusively to the Courts of law, and is exercised by the latter, with great reluctance, and only in clear and positive cases.

I do not perceive how wo can grant any relief to the complainant under the pleadings and evidence in this case, except to order the deed which had been deposited with Mitchell in escrow to be delivered up to be can-celled, and the title re-invested in the complainant. In my view of the case, it becomes immaterial what was the written contract between the parties, or whether any subsequent verbal agreement ivas entered into respecting the subject matter of the written contract or the delivery of tlic deed, or whether such subsequent agreement ivas valid or void. It is beyond dispute that the deed ivas deposited with Mitchell by White in escrow, to be delivered to the defendant only upon the compliance by the latter with what White claims to be a valid agreement, and upon condition of its performance. This deed ivas surreptitiously obtained from Mitchell’s possession, without his knowledge and -without the authority or consent of the complainant. It matters not that the complainant had obligated himself to execute and deliver a deed upon the performance by the defendant of his agreement, nor would it matter if such agreement had been fully performed according to the understanding of both parties, so that nothing remained to be done by the defendant; for as the deed was never delivered, nor left for delivery except upon condition of certain acts to be done by the defen* dant, which were not done, no title passed by the unlawful and fraudulent acquisition of such deed, an.d upon which the rights of the parties can or should be adjusted. 'It is, to my mind, a monstrous doctrine, that any possible right can be acquired by a deed obtained as this was by the defendant, or any right exist to be-'adjusted by a Court of Equity relative to a title thus obtained. The defendant can have no rights, or ask anything from the Court, until the deed shall be surrendered, and the parties restored to the condition in which they were before its fraudulent acquisition. I cannot regard the deed as valid for any purpose, nor consent to adjust equities where a deed thus obtained shall be in any wise reeog* nized in such adjustment; and I do not think any principle can be discovered, or case found, where -su.ch a thing has been attempted before the present.

I think, therefore, that the complainant is entitled to a decree ordering the surrender of the deed to him to bo cancelled, and such necessary conveyance from the defendant as may make his title good of record, and to his. costs, and that adjustment of the rights and equities of' the parties whereby any right or equity of the defendant shall be recognized, shall depend, upon such surrender and re-conveyance, and a bill brought for such pnupose after the-defendant has restored to the complainant tire title thus, fraudulently and . unlawfully acquired.


author: 'Campbell J.:

text:
    Robert E. Elliott v. The People.

      "Detroit House of Correction — imprisonment in, — Under the act establishing the Eotroit House of Correction (Laws of 1861, p. 26S,) no Court or magistrate has any power to sentence to imprisonment therein for any offence except those punishable by imprisonment in the county jail.
    •And'one who has been convicted of an offence punishable by imprisonment in the county jail or State prison, in the discretion of the Court, cannot bo imprisoned in the House of Correction for a longer period than would have been lawful in the county jail.

      Excess of authority in sentence of prisoner — the effect. — Where the sentence imposed by the Court upon a prisoner is an excess of authority, and therefore unlawful, this Court cannot substitute for such sentence a lawful one; and if there is no error except in the judgment, there can be no new trial, nor can the Court below give a second judgment: hence, the prisoner must • be discharged.

      Heard May 12.

      Decided July 8.
    Error to the Recorder’s Court of Detroit.
    '(?. V. W. Lothrop, for .plaintiff in error.

      A. Williams, Attorney General, for the People.
   'Campbell J.:

Plaintiff in error was convicted in the Recorder’s Court of Detroit on an information for embezzlement, and was sentenced to the Detroit House of Correction for two years. He now' alleges for error that no sentence could lawfully he given requiring him to he confined in that prison more than one year, and that a longer sentence must he only to the State Prison. The statute punishing the offence provides for imprisonment in the State Prison not more than five years, or in the County Jail not more than one year, with a fine. — 2 C L., §5762, §5773.

By Section 16 of the Act establishing the Detroit House of Correction, (A. 1861, p. 268,) it is provided that after the House is completed, and its completion certified, “it shall bo the duty, of every court or magistrate in the said County of Wayne, authorized by law, to sentence or commit any person to the county jail of said county, as vagrants, common drunkards, disorderly ■persons, common prostitutes, or for assault and battery, petit larceny, or other offences punishable by imprisonment in the county jail, or by virtue of any final sentence of conviction, except for contempt, to sentence such person to be confined in the said House of Correction,” &c.

The power of commitment is by this language to be exercised only by Courts, &e., authorised to commit any person to the county jail for the specified offences, o.r by virtue of any final sentence. It would be a violation of the language to include any case not punishable by imprisonment in that jail; and it is plain, from other sections of the statute, that for State prison offences the House of Correction can only be used under some arrangement with the State prison inspectors, whereby, for the jmnishment of offences less than treason or murder, it may become a substituted prison for youug offenders, (See Section 11, p. 266.) For offences in Wayne County, it is made, by the statute first cited, a substitute for the county jail, (so far as that section extends,) and no more.

The question, then, arises, whether, in case an offence may be punished by imprisonment in the comity jail ox State prison, in the discretion of the Court, the' offender-may be imprisoned in the House .of Correction for a longer term than was allowed in the county jail, but within the term allowed in the State prison. We think that no imprisonment can be lawful under such a sentence, which would not have been lawful in the county jail. This is the view taken of a similar statute in Shepherd v. the Commonwealth, 2 Metc. 419. It was said in that case that “when the power is .conferred on the Corn-t to sentence either to the State prison or common jail, and they do not sentence to the State prison, we are to presume that in their judgment the actual offence was such as ought not to be .punished by imprisonment in the State prison, and that they intend to' adopt the-other alternative. Such' being the ease, if they think fit to substitute the House of Correction instead of the common jail as the place of punishment, the term of time cannot exceed what it would be if the commitment were to the common jail.” We think this is the correct view of the statute; and that when the House of Correction" is made the place of imprisonment for county jail offences* it must be treated as if it were itself, to that extent, the county jail. We think, therefore, that the sentence for more, than one year was unauthorized and invalid. Being-an excess of authority, and therefore an unlawful sentence, we cannot substitute for it another sentence which the Court below might have given, blit "did not give in fact. Rex v. Ellis, 5 B. & C., 395; Rex v. Bourne, 7 Ad. & El., 58; Shepherd v. Commonwealth, supra. There being -no error except in the judgment, there can be no new trial, and the Court below cannot give a second judgment. The judgment must therefore be reversed, and the prisoner discharged.

Cookey and Christiancy JJ. concurred.

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


author: Cooley J.:

text:
    Charles Moran v. Friend Palmer, Henrietta Taylor and Charles Taylor. Friend Palmer, Henrietta Taylor, and Charles Taylor, v. Charles Moran.

      Deeds of Governor and Judges —Recording laws. — Conveyances of land from the United States, whether directly through the President, or indirectly as through the Governor and JudgoB of Michigan, do not come within the purview of the recording laws, except where the terms employed specially include them; and there is nothing in the laws now or heretofore existing in this State that will render a deed from the Governor and Judges void in favor of a subsequent purchaser, from the same source, without notice whose deed was first upon record.

      Bill to quiet-title.--A. bill to quiet title will bo entertained on behalf of the legal owner when he is not in a position to force the adverse claimant into a Court of law to test, its validity; but when each party claims the legal title, and a Court of law is already possessed of thecaSe, and it is not alleged that either fraud, accident or mistake hag intervened to prevent the possessor establishing his title at law, equity will not interfere.

      Proof of case not stated in the pleadings. — Where the complainant in a bill to quiet title to lands set up the legaj. title as being in himself, but the evidence taken in the cause showed it to be in the adverse claimant, and also showed :a complete equitable title to the land in the complainant, it was held, that mo relief could be gvanied, as the case shown by the evidence differed from that stated in the bill.

      Held also, that estoppels, where they form the foundation of the relief asked, and are relied upon to defoát a legal title, cannot be proved, unless alleged. Cicotte v. Gagnier, 2 Mich. 3S9.

      Partnership — lands received by, in payment of debts — Lands conveyed to the members of a partnership in satisfaction of a partnership debt, are to be regarded, for all purposes of arranging balances between the partners, paying debts, and closing the partnership business, as personal property. And where one of the partners afterwards exchanged a lot so received, for another, giving a deed in his own name alone, and the lot received in exchange was sold by him, and the proceeds received by the partnership'; — Held, That the Court would presume knowledge on the part of all the partners of such exchange, and that the receipt by the partnership of the proceeds of the lot sold, estopped the heirs of the partners not joining in such, deed from after-wards setting up a claim to the lot first named.

      Heard May 9, 10 and 11.

      Decided July 8.
    Appeal in ebanoeiy from Wayne Circuit.
    The facts are stated in the opinion.

      JBackus & Harbcmgh for appellants.

      Wm. Gray and S. D. Miller for appellee.
   Cooley J.:

The original hill was filed to quiet the title of complainant to lot (thirty-seven in section eight, according to the Governor and Judges’ plan of the City of Detroit. The bill alleges that the Governor and Judges conveyed the lot to Barnabas .Campan, December 21, 1833; that the deed thereof was duly recorded in the Register’s dffice of the City of Detroit, December 19; 1834, and again, after being duly acknowledged and proved, in the Register’s office of Wayne County, November 29, 1859 ; that by due chain of conveyances,- the title to said lot in fee simple ' became vested in Alexandrine M. Willis, who, with her husband Richard S. Willis, conveyed the same to complainant, August 1, 1862, and that complainant now has the legal title to, and is the sole owner in fee simple, and in the actual possession of the same. It then alleges a continuous possession of the premises by Campau, and those claiming under him, from the timé he received his deed; that they have claimed to be the owners, paid taxes, made improvements, and performed all acts of owners; that the defendants nowr claim to be part owners of the premises; that at times they claim and protend that they have rights under an unrecorded deed from said Governor and Judges to one of their ancestors and some other persons, prior to said deed to Campau, while, at other times, they pretend that they have such rights by reason of some legal proceedings betunen them and some parties other than the complainant, or any one, by,, through, or under whom he derives title; that all such claims and pretences are entirely unfounded, and. constitute a cloud upon complainant’s title, seriously decreasing the value of his property. Wherefore complainant prays relief, and that the Court may decree and declare that complainant has a full, clear and perfect title to said lot, and that defendants have no interest or title in or to the, same, and may-award a perpetual injunction against their setting up or asserting any such claim or interest.

The defendants filed an answ'er, claiming an undivided one-third of the lot as heirs at law of Friend Palmer, senior, by virtue of the foliov'ing conveyances: From the Governor and Judges to Michael Mayet, February 17, 1809; from Mayet to Jacob Smith, July 7, 1820, and from Jacob Smith to John, Thomas and Friend Palmer, July 16, 1820. The answer also shows that, under the said conveyances, and. as such heirs at law, they brought suit in ejectment in the Circuit Court for the County of Wayne, against one De Graff, who is tenant of complainant, to. recover the undivided, interest so claimed by them, which suit Avas vigorously defended by complainant, and has resulted in a verdict in their favor. The answer also sots up other facts not material to the decision upon this bill, and a discussion of Avhich is therefore omitted by us. Replication was filed to the answer, and proofs taken, establishing the existence of the several deeds as set forth, as Avell as the proceedings in the ejectment suit.

We have thus presented to us'the anomaly of a jjarty Avho asserts that he is possessed of a complete legal title to lands which are occupied by him, and Avho points out no difficulty in the A\ray of his exhibiting and establishing such title, appealing to a Court of equity for relief against the claims of other parties AArho are pressing their claims against him at law, 'and .have already obtained an adjudication in their faA'or. Argument to show that this bill cannot be sustained, is entirely unnecessary. If the facts, as above stated, Avere fully set forth in the bill, it Avould be demurrable, and being presented by Avay of defence, they are a complete, answer to complainant’s case. A Court of laAV is the appropriate tribunal for the trial of titles to land. — Abbott v. Allen, 2 Johns, Ch., 520; Devaux v. City of Detroit, Har. Ch., 98. The claimant of a legal title has a right to have the facts upon which his claim is based submitted to a jury, and it is only when the remedy at law is inadequate that resort can be had to equity. Nothing is better settled than that equity Avill not aid in clearing a title to land Avhen complainant’s remedy at law is complete, Alton Marine and Fire Ins. Co. v. Buckmaster, et al., 13 Ill., 201; Smith v. McConnell, 17 Ill., 135; Ritchie, v. Dorland, 6 Cal., 33; Wolcott v. Robbins, 26 Conn., 236; Munson v. Munson, 28 Conn., 582; Shotwell v. Lawson, 30 Miss., 27; Murphy v. Blair, 12 Ind., 184. And when the party comes into equity for relief, he must set forth in. his bill the circumstances which deprive him of a legal remedy.— Williams v. Ayrault, 31 Barb., 364. A bill to quiet title on behalf of the legal owner, is only entertained where the party is not in a position to force the adverse claimant into a Court of law to, test its validity. — Alton Marine and Fire Ins. Co. v. Buckmaster, 13 Ill., 201. This happens when the holder of the legal title is in possession, and an adverse claim is set up, which no steps are taken to enforce; but when each party claims the legal title, and the Court of law is already possessed of the case, and it is not alleged that either fraud, accident or mistake has intervened to prevent the possessor establishing at law all the title which he claims, the remedy at law is perfect and equity can not interfere to take from a jury the trial of the questions, which, in such a case, belong to that tribunal. The more clearly.the complainant establishes his, title under such circumstances, the more clearly does he show - that the relief he seeks is not within the province-of a Court of equity.

The facts proved in this case, however, do not, in our opinion, establish a legal title in complainant; and it remains to be seen whether he can have any relief based, upon equities which he may have shown to exist in, himself against the title asserted and proved by defendants. These equities spring from estoppels en pais, which are riot alluded to either in the bill or in the answer, though the facts from which they are supposed to spring have been fully proved. They are of a nature which, it is argued, should preclude the defendants from setting up and relying upon their legal title as against the equitable rights of complainant; but it is of little moment to complainant that they have been proved uriless the issue is so framed that, according to the rules of equity pleading, the facts established can be made a foundation for relief.

• The rule of pleading in equity is that “ every i fact essential to the plaintiff’s title to maintain the bill and obtain the relief must be stated in the bill, otherwise the defect will be fatal. For no facts are • properly in issue unless stated in the bill, and, of course, no proofs can be generally offered of facts not in the bill; nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, for the Court pronounces its decree secunchim allegata etprobata. — Story's Eq. Pl., §257. See, also, Shepard v. Shepard, 6 Conn., 37; Cowles v. Buchanan, 3 Iredell Ch., 374; Parker v. Carter, 4 Munf., 273; Ellston v. Blanchard, 2 Scam., 420; De Tastet v. Tavernier, 1 Keene, 169. The Courts of this State have frequently decided that no relief can be given on evidence establishing a case not made by the bill. — Cicotte v. Gagnier, 2 Mich., 381; Warner v. Whittaker, 6 Mich., 133; Bloomer v. Henderson, 8 Mich., 395; Boniver v. Caldwell, 8 Mich., 463; Barrows v. Baughman, 9 Mich., 213; Wurcherer v. Hewitt, 10 Mich., 453; Dunn v. Dunn, 11 Mich., 284; Peckham v. Buffam, 11 Mich., 529; Thayer v. Lane, Wal. Ch., 200. Even if the answer should disclose a clear title to relief, it cannot be resorted to as supplying allegations essential to the bill. — Gres. Eq. Ev., 23; Savage v. Lane, 6 Har., 32; Jackson v. Ashton, 11 Pet., 229; Knox v. Smith, 4 How., 298; Thomas v. Warner, 15 Vt., 110.

No relief, therefore, can be granted to complainant based upon the equitable title which he claims to have established, not only because such relief must be given upon a case radically different from that set forth, but also because the equitable circumstances relied upon would require to be specifically set forth. Estoppels, when they form the foundation of the relief asked, and are relied upon to defeat a legal title, cannot be proved unless alleged, (See Cicotte v. Gagnier, 2 Mich., 389.) so that, even if we could disregard the fact that the title of" complainant is of a different nature from that claimed by the bill, there is obviously noihihg in this bill to which we can apply the evidence which goes to establish the equities of complainant.

The defendants, however, have filed a cross-bill to have the undivided one-third interest which they claim in the premises partitioned and set off to them; and the issue taken upon this is so full and complete that we find the whole merits of the respective claims to this lot fully presented. The evidence was all taken to be used in both suits, and the bill and cross-bill were brought to a hearing together; and as the facts are for the most part undisputed, and all, which wo deem material, are either admitted or established to our satisfation, wo shall now proceed to consider them Avith reference to the relief' prayed by the cross-bill. .

' February llth, 1809, the Governor and Judges of Michigan Territory executed to Michael Mayet a deed of the lot in controA’ersy, as his donation lot under the Act of Congress, “ To juovide for the adjustment of titles of land in the toAvn of Detroit. and Territory of Michigan, and for other purposes,”- approved April 21, 1806. Mayet deeded to Jacob Smith July Ith, 1820, and Smith, on the sixteenth day of the same month, conveyed the lot to John,. Thomas and Friend Palmer, then composing a mercantile firm in Detroit, in satisfaction of a debt due by him to the firm. The partnership continued to OAvn the lot until January 31, 1824, Avhen Thomas Palmer, Avho seems to have been the active member of the partnership at Detroit, made an arrangement AArith the Governor and Judges on the mistaken supposition that the lot had been conveyed by them to another person previous to the deed to Mayet, in Avhich arrangement it was. •agreed that a release should be made of this lot to them, and that Palmer should receive instead a deed o-f ■another lot upon 'the same plat. This arrangement was entered into by the Governor and Judges on the understanding that Thomas Palmer was the sole grantee of Jacob Smith; the release which Thomas Palmer executed to them stated the conveyance to have been made by Smith to' him, and the entry which the Governor and Judges caused to be made in their record clearly ’shows that they supposed all right or claim derived under the Mayet deed had now been released. Accordingly they conveyed to Thomas Palmer another lot of equal value, in pursuance of the arrangement, and for no other consideration than such release. The last mentioned lot was treated by Thomas Palmer as belonging to the partnership, and it was subsequently sold by him, and the proceeds received by the firm.

September 19, 1829, the Governor and Judges, supposing the lot now in controversy to be subject to sale by them like all the other portions of the public lands which they were authorized to dispose of, caused the same to be offered for sale at public auction, and it was struck off to Barnabas Campau, who bought in good faith for the consideration of $270, which he subsequently paid and received his deed, bearing date November 20, 1833. Campau took actual possession of the lot in 1845, and valuable improvements have since been made upon it. Complainant's title is derived through Campau, and no adverse claim seems to have been made until about the year 1853, when it was claimed, on behalf of John Palmer and the heirs of Friend, that the release of Thomas Palmer to the Governor and Judges only operated to convey to them an undivided one-third of the lot, and that, therefore, they had conveyed that interest only to Campau. John Palmer afterwards released to Campau, but the heirs of Friend Palmer declined to do ’so, and brought suit in ejectment, as before stated.

It cannot be denied that, so far as the legal title is ■concerned, the release of Thomas Palmer to the Governor ■and Judges could pass an undivided one-third only, and that consequently there is a conxplcto chain of title from the original source to the heirs of Friend Palmer, which must avail in their behalf, unless some of the conveyances in the chain are avoided, or at least affected, by the objections made to them on the argument. The nature of the defence to the cross-bill is two-fold:

First. Under the recording laws. The deed from the Governor and Judges to Mayet has never been recorded, and it is not alleged that Campau had knowledge of it at the time he purchased and paid for the lot. The deed to Campau was recorded in December, 1834, but at that time it had not been authenticated by acknowledgment or proof in the maimer required by the recording laws, and it was again recorded, in 1859, after having boon proved in duo form of law. And Moran, the defendant in the cross-bill, now claims that the deed to Mayet is void as against the subsequent ’ deed to Campau, who bought 'in good faith, and without notice, and whose conveyance is first upon the record.

It is to be borne in mind that the Governor and Judges were not owners of the soil, but that they were mere donees of a power, and that the conveyances executed by them were made on behalf of the United States. It has been repeatedly held that patents of land from the United States do not come within the purview of the recording laws, where the terms employed do not specially include them. — Lyell v. Maynard, 6 McLean, 15; Graves v. Bruen, 1 Gilm., 167. The record of a patent, therefore, under, the ordinary recording laws, is not even evidence. A statute authorizing their record was passed in this State in 1837, (Comp. Laws, §2764, §2765); but that statute only authorized the record, or a transcript thereof, to be used as evidence, and did not undertake to make the patents not recorded void, in favor of subsequent bona fide purchasers from the United States. We are of opinion that the same rule is to be applied to all conveyances by the United States, as owners of the original domain, whether they are made directly through the President, or indirectly through other agencies, and that, therefore, the words, “all deeds,” as used in the early codes, (Cass Code, p. 80; Code of 1820, p. 156; Code of 1827, p. 258; Code of 1888, p. 279,) do not embrace those given on behalf of the Government. The first statute,, which, in express terms, applies to conveyances by the Governor and Judges is, “ An' Act relative to the registry of certain deeds,” approved March 9, 1844, which authorized those conveyances to be recorded and made the record evidence; and it confirmed records before made, so far as to make them evidence also. But that Act contains no provisions which could have the effect to avoid the first in favor of a subsequent conveyance from the Governor and Judges, .and it is not likely that any such purpose was contemplated by the Legislature. We do not find, therefore, that Campan and his assigns are entitled to claim any advantage under the recording laws, over the prior deed to Mayet.

Second. Through equitable estoppel. Thomas Palmer, having represented to the Governor and Judges that he was the solo grantee of Jacob Smith, and they having, in reliance upon this representation, received the release from him, and conveyed a lot of equal value, in consideration thereof, the avails of which were subsequently received by the partnership of which the ancestor of the complainants in the cross-bill was a member, it is insisted that they are now estopped in equity from setting up any claim to the lot so released.

It is unquestionably true that the lot having been conveyed by Smith to the Palmers in' satisfaction of a debt due to the firm, it is to be regarded for all the purposes of arranging balances between the partners, of paying debts and closing the partnership business, as personal property. — Dyer v. Clark, 5 Metc., 562; Buchan v. Sumner, 2 Barb. Ch., 165. And in England it seems to be now well settled that, by becoming partnership property, it is to be regarded as converted into personalty for all purposes. — Ripley v. Waterworth 7 Ves., 425; Phillips v. Phillips, 1 M. & K., 649; Brown v. Brown, 3 M. & R., 443; Morris v. Kearsley, 2 Y. & C., 139; Houghton v. Houghton, 11 Sim., 491. It is true that one partner could not convey the legal title of all, for the rule that one has no general authority to affix a seal on behalf of his co-partners, would prevent; but it is not so clear that he might not make a valid contract to convey, or that an ineffectual deed might- not have the force of such a contract where the partnership has received the consideration money.

But without now stopping to inquire into the force and effect to be allowed the release of Thomas Palmer, as a written instrument, we are of opinion .that the position taken by Moran, in respect to this branch of the case, is correct, and that the heirs of Friend Palmer are estopped from setting up any claim to this lot adverse to that claimed under the Campan deed. It is a well settled principle of equity, that if a man, having a title to an estate which is offered for sale, knowingly allows another to sell it to a purchaser who supposes the title to be good, without, at the time, asserting his title, he shall be bound by the sale, and neither he nor his privies shall be allowed to dispute its validity. — Wendell v. Van Rensselaer, 1 Johns. Ch., 354; Storrs v. Barker, 6 Johns. Ch., 166; Tilton v. Nelson, 27 Barb., 595; Cochran v. Harrow, 22 Ill., 345; Beryan v. Ramiser, 8 Cal., 461; Cicotte v. Gagnier, 2 Mich., 386; Story's Eq. Juris., §385. Especially should this be the rule of equity when the silent party has himself received the benefit of the sale, and where, therefore, he can suffer no detriment from' its application, but is only restrained from appropriating to his own use a1 second time that for which he has once been paid.

That Friend Palmer knew of the arrangement made between Thomas Palmer and the' Governor and Judges, and of the subsequent sale of the lot received in exchange, we think, is to be presumed. Each partner is the general agent of the others in all matters within the scope of the partnership business, and what is known to one is supposed to be known to all. If the original arrangement can be regarded as exceeding the powers of Thomas Palmer as partner, and therefore not presumptively within the knowledge of his co-partners, the subsequent receipt of the consideration' money for the lot sold would stand upon a different footing, and must be held to bring home to all a knowledge of the original transaction. Had it been repudiated alj that time, an adjustment might have been made, which would have prevented a re-sale of the lot, and no one would have been put in a position to be damnified by a claim after other rights had intervened. But Friend Palmer, having neglected to repudiate the arrangement at the time a purchaser has been induced, by • his silence, to buy on the supposition that he was acquiring a good title, and the lot has been largely increased in value since by the improvements which he or those deriving title from him have made upon it. To hold the heirs of Friend Palmer estopped from asserting their legal title at this time, it does not become necessary to apply the maxim that “where one of two innocent persons must suffer, he shall suffer who, by'his own acts, occasioned the loss,” for Friend Palmer’s heirs suffer no loss, and the equitable estoppel only prevents loss to the other party.

We are, therefore, of opinion that the complainants in The cross-bill are not entitled to the relief prayed by them; and that they have no equitable rights to the lot in •controversy. Having come to that conclusion, it is a •subject of regret that the record in the original suit is not such that we can put an end tó the litigation by a decree in that suit such as we have found the complainant entitled to upon the facts. But as the whole case has been fully presented, on an issue which allowed the parties to exhibit, in proof, all their equities, and as we ’have already passed upon the questions involved in disposing of the cross suit, we shall not dismiss the original bill, but remand the case with leave to complainant to amend without prejudice to the testimony taken. The -defendant will be at liberty to- answer the amended bill, • and both parties to take .additional testimony, if an issue •of fact is formed. The decree of the Court below is reversed, and the cross-bill dismissed. Neither party will recover costs against the other on the cross-bill or on •this appeal.

In our examination we have left entirely out of view ••some questions discussed on the argument, but which, in the, view we take of it, would not affect the case between the parties; and we have not' found it necessary to consider how far the defendants in the original suit might be affected by the improvements made upon the premises had the complainant’s title to relief rested uqion those alone.

Christianov and Martin J.J. concurred.

Campbell J. did hot sit in this case, having been of counsel.