author: Christianct J.

text:
    Tunis Ryerson and Another v. Samuel D. Eldred and Others.

      Assignment of pi'operty by refet'ence to schedule. Where debtors make an assignment to a trustee for their creditors, of their property as described in a schedule attached, only such property passes as is there described.

      Assignment treated as void by the parties; Bights of a purchaser from the assignee. Where an assignment, ostensibly for the benefit of creditors, was treated as void by all the parties thereto, and A., one of the assignors, entered into a contract with the others, with the knowledge of the assignee, that they should convey a certain piece of the joint property to him, and that in consideration thereof, A. should pay the joint debts, and also make certain payments to the other assignors, and under that contract he went on and made large payments to creditors, and improved the property: Held, that B. and C., who were not creditors, and who, with knowledge of this contract, bought the property described therein from the assignee and from such other assignors, were bound by the contract, and might be compelled to carry it into effect by deeding over to A. the rights acquired by their purchase.

      Accounting in such case. A. in such case should account to B. and C. for such v moneys paid by them on their purchase as had been actually applied on the joint debts which A. by his contract was to pay, and B. and C. should account to A. for the rents and profits of the land for the time they had occupied it under their purchase.

      Landlord and tena/nt; Bw'chase by tenant of adverse claim. One who is in possession of land as tenant of another, cannot buy in an adverse title which existed at the time he received his lease, and make such purchase the basis of a suit in equity to quiet his title as agajnst his landlord. The possession acquired by means of the lease must be surrendered before the tenant is in position to dispute the title under which he entered.

      Persons not parties to suit, not concluded by an accounting. When an accounting is had in a suit in equity, persons incidentally interested therein, but who are not parties to the suit, are not concluded thereby.

      Heard October 20th and 21st, 1868.

      Decided January 11th.

    Appeal in Chancery from Muskegon Circuit.
    The bill in this cause was filed by complainants to restrain Samuel D. Eldred, one of the defendants, from proceeding under the Forcible Entry and Detainer act to remove them from certain premises, and to compel him to release his claim of title to the same.
    Eldred filed his cross-bill, setting up his title to the same. Proofs were taken in both cases, and the cases were heard together. The Court made a decree granting the relief prayed by the bill, and dismissed the cross-bill.

      L. Patterson, and Moore é Griffin, for complainants in original bill.

      Hdioin Potter, John T. Holmes, and G. V. N. Loffirop, for complainants in cross bill.
   Christianct J.

Samuel D. Eldred, of Muskegon, Michigan (one of the defendants in the original, and complainant. in the cross bill), together with Orson P. Eldred, Nelson Eldred,' and Joseph H. Way, of Illinois, having been engaged in the business of selling lumber at Chebanse and Prospect City, Illinois, under the style of J. H. Way & Co., and at Kan-kakee, Illinois, under the style of N. Eldred & Co., were also engaged, from 1856 to 1859, at Muskegon Lake, in Michigan, in the manufacture of lumber, under the style of Eldred, Way & Co., and being somewhat embarrassed with debts, on the 15th of. July, 1859, seem to have undertaken to make a real or pretended' assignment to Frederick S. Eldred, of Janesville, Wisconsin; and on that day executed to him an instrument purporting to assign and transfer to him (not all their property generally, hut) all their property mentioned in the schedule of property attached, for the benefit (not of all their creditors generally, but) of all their creditors mentioned in the schedule of debts attached, which included debts to the amount of about $9,000. Whether the property described or attempted to be described in. the schedule included all their partnership property; does not distinctly appear by the evidence, though it does appear that it did not include all the individual property of the several assignors, nor does it appear • that the debts men - tioned in the schedule were all the debts owed by the said firms, though the evidence authorizes an inference that the whole amount of debts was not included in the schedule.

The property assigned consisted of lumber and other personal property, notes, accounts, &c., of real estate, situate in Iowa, Illinois, and Michigan, and possibly intended to include, among others in the latter State, some five acres at Muskegon Lake, with a steam saw mill and other build - ings thereon, known as the mill property, and which is the subject of controversy in these cases. The only description in the schedule which could possibly apply to this was “five acres of land in Muskegon County, State of Michigan, more particularly described in deed of Eben Smith, Jr., to Nelson Eldred and others, and recorded in Liber M. of Deeds, on page 455, in Ottawa County, valued at $15,000.” The original bill alleges that this mill property was conveyed by Samuel Wood and wife to Samuel D. Eldred, and a mortgage given back for the purchase money, and this is admitted by the answer of S. D. Eldred; and there is nothing in the pleadings or proofs to show that it was ever owned or conveyed by Smith; and, so far as appears, Samuel D. Eldred never conveyed it, unless the assignment operated as a conveyance. The least, therefore, that can be said, is that the correctness of the description of this mill property does not appear; and there is at least an inference that the description, by reference to the Smith deed, is incorrect, or that the deed conveyed some other property. It does not, therefore, appear (admitting the assignment to be in all other respects valid) that this property was conveyed to the assignee.

The description of the lands in Illinois is simply “ Fourteen and a half lots, of land in Kankakee City, Kankakee County, Illinois, valued at $5,400,” and “Two-sevenths of 1,600 acres of land in Green County, Illinois, at $2,500.” That in Iowa is described merely as “ One hundred and twenty acres of land in Chickasaw County, Iowa, valued at $600.”

These descriptions of land, in Illinois and Iowa, are too uncertain and vague to make the assignment operate as a transfer of title (had it been in all other respects well executed), at least, without clear evidence that the assignors owned certain lands in the city, or counties named, which might fall within the description used, and that these were the only lands owned by them in such city or county.

There are other defects in the assignment. In form it is drawn in tripartite, as if to be executed by the assignors, of the first part, the assignee, of the second part, and the creditors, of the third part. The instrument itself is signed only by the assignors. No creditor signs it, nor does it appear that it was ever known to the creditors. It contains an express covenant on the part of the assignee to perform the trust. He does not, however, execute the instrument, but signs an instrument purporting to accept the trust, and appointing Nelson Eldred, of Kankakee, Illinois, and Samuel D. Eldred, of Muskegon, his agents, with full power to perform all acts in relation to the trusts which he might perform if present. The only acknowledgment of the instrument, is in the following words: “Acknowledged by Samuel D. Eldred, this 5th day of December, A. D. 1859, before me, Theodore Davis, Justice of the Peace.”

This was not a sufficient acknowledgment, even as to Samuel D. Eldred, to authorize the instrument to be' recorded. It seems however to have been put upon record by Samuel D. Eldred. The assignment expressly authorized the assignee to sell on credit, and was therefore fraudulent and void as against creditors, at their option, — (Sutton v. Sanford, 11 Mich. 513) — though they might doubtless have waived this by claiming under the assignment, which it does not appear they ever did.

The assignee does not appear to have taken any charge or control, in fact, of any of the assigned property. He resided at Janesville, Wisconsin; and it does not appear he ever saw any of the assigned property or gave any instructions in reference to its sale or management. No change whatever in relation to the actual control and management of ,the property seems to have taken place in consequence of the assignment, except in such matters of mere form as will presently be noticed. It is hardly probable from the assignment itself, and the evidence in reference to it, that the assignment was at the time of its execution considered of any actual validity by any of the parties. If so, they seem very soon after to have treated and considered it of no validity, and continued so to treat it, until the attempted sale to Kyerson and Johnson hereafter to be noticed; It would seem to have been executed only as a kind of blind to ward oif creditors, in case they (the firm) could not otherwise avoid- a sacrifice of their property, for there appears to have been at all times an honest intention and a real anxiety on the part of all the assignors to pay the creditors as fast as practicable, from the proceeds and the use of the property.

Samuel D., who resided at Muskegon, appears to have had entire control of the mill property; and immediately after the assignment, for the purpose already indicated, and to preserve an appearance of consistency, he seems to have commenced keeping his accounts, and doing other business, and executing papers in the name of Frederick S. Eldred, by himself as Agent; and this course seems to have been continued as to much, if not most, of the business, after his contract of purchase presently to be noticed, and until August, 1862, when he went into the army.

But on April 1, 1860, the assignors all appearing to regard the assignment as invalid, entered into a contract under seal, by which all the other assignors agree to sell to Samuel D. Eldred, all the property and assets of the several firms (including of course the mill property), in consideration of which said Samuel D. by the same contract agreed, among other things, to pay all the debts of the said several firms; and when his contract should be complied with, the other parties were to convey to him all the real estate by good warranty deed. The assignee, Frederick S. Eldred, was informed of'this contract and made no objection whatever, but silently acquiesced.

Under this agreement, Samuel D. Eldred proceeded to dispose of portions of the property and to pay debts; and in making the sale of some 500 acres of pine land (which seems to have stood in the name of all the partners), all the assignors joined in a warranty deed to the purchaser, who, however, for greater security, required that a quit claim deed should be obtained from Frederick S. Eldred, the assignee. This was prepared by Samuel D., and forwarded to the assignee, who at once executed and returned it to him in a letter in which he says “yours with deed is at hand. I have executed the same and ret. The expense is. one dollar. Rufus has given me a note against your Company for $380, which he wants the money on very much, as he is about buying a farm in Iowa. Please let me know what you can do about it.” It is thus quite clear that the assignee did not look upon thjs sale in any respect as his, and expected to have Samuel D. refund the expense. He says nothing, and claims nothing of the proceeds of the sale.

Samuel D. continued to dispose of property and to pay debts; and from the use of the mill, the sale of property and otherwise, had, prior to his leaving in August,'paid a large amount of the debts, between $5,000 and $6,000 at least, — (the whole amount for which the Assignment had been made appeared to have been but about $9,000 ) — and in addition to this amount of -debts paid, had also, up to the time last mentioned, expended in improvements upon the, mill and mill property and taxes, over two thousand dollars; the precise sum we do not here attempt to fix.

After the agreement óf sale to Samuel D., of April 1, 1860, Nelson Eldred became his agent for the management and disposition of the property in Illinois, fully recognizing him as the owner, and neither of the other assignors disputing his rights.

But in August, 1862, Samuel D. Eldred enlisted in the Union army for three years, and was much of the time stationed in Arkansas. Some time prior to this the mill had been, let to, and was then being run by one Steeley, for the season: the letting being probably in form, in the name of Frederick S. Eldred, by Samuel D. Eldred. When he went into the army he left his wife in the house on the mill property and in charge of it, and left Ryerson (one of complainants in original bill) as his agent to take charge of the business connected with the mill for that sawing season.

On March 11, 1863, Ryerson and Johnson (complainants in original bill) took a written lease of the entire mill property from Samuel D. Eldred for one year from January 1, 3863, the lease being dated back to that day. This is a full and formal lease by indenture under seal in the name of Samuel D. Eldred as lessor of the first part, and the lessees of the. second part, executed on the part of the lessor by his wife, as his agent, who was duly authorized for that purpose. The rent to be paid was seven hundred dollars, a part of which was to be paid directly in satisfaction of a decree of foreclosure for one of the debts which Samuel D. Eldred, by his contract of purchase, was to pay. The lease contains a covenant on the part of the lessees against assigning or underletting without the written assent of the lessor, and a covenant to surrender and yield up to the lessor, the premises in good repair at the end of the term.

There is no evidence tending to show that there was any mistake on the part of the lessees in taking this lease from Samuel D. Eldred in his own.name, or that they supposed or believed it to be in the name of the assignee, by Samuel D. Eldred as agent; but it appears to have been knowingly and deliberately taken as a lease from Samuel D. Eldred, as lessor. Under this lease they went into possession. But during the term created by it, and while in possession under it, in the summer and fall of 1863, Ryerson & Johnson, the tenants, entered into negotiations with the other assignors (Nelson and O. P. Eldred and Way) for the purchase of the mill property¿ at first, with the expectation on all hands that the deeds were to be executed by all the assignors, including Samuel D. Eldred. The other assignors had been urging Samuel D. to sell, in order to pay up the debts, while he, on the other hand, appears to have been unwilling to sell the whole of the mill property, at least upon the terms they proposed. And, though an attempt was made to show, by Nelson Eldred, that Samuel D. had consented he should sell as he deemed best, this entirely failed; as it was an attempt to show the contents of letters, not shown to have been lost or searched for. We, however, think it entirely clear that the other assignors, as well as Eyerson and Johnson, up to the time when Samuel D. refused to execute the deed which had been prepared and forwarded by Nelson Eldred to him for that purpose, all expected Samuel D. to join in the sale, "and that it was not till they found he refused to do this, that any of them had thought of ignoring his rights in the property, or of treating tlie purchase of Eyerson and Johnson as a purchase, from the assignee, which should cut off all the rights of Samuel D. We are also satisfied that before the purchase was completed (and we are inclined to think even before Samuel D. Eldred went into the army) Eyerson had notice of and understood the contract of purchase made by Samuel D. of April 1, 1860, and that he had been making payment in pursuance of that agreement.

But, finding that Samuel D. would not consent to the sale, the other assignors informed Eyerson that they could convey their shares, though they could not convey that of Samuel D., to which Eyerson replied he “ would fight Samuel D. Eldred’s share;” whereupon, on the 29th October, 1863, O. P. Eldred, Nelson Eldred, and Joseph H. Way, with their wives, executed to Eyerson and Johnson a warranty deed, purporting, for the consideration of $5,625, to convey the undivided three - fourths of said mill property and five acres, which deed appears to have been acknowledged on the 7th November, 1863, and on the 20th of the same month a quit-claim was obtained from the assignee. Four thousand dollars of the purchase money was paid down, fifty of which was retained by Nelson Eldred, as he says, for his services in the matter, and the balance sent to the assignee, some part of which he subsequently used in paying a foreclosure decree, on which the mill property would otherwise have been sold. '

The original bill states the whole purchase price to be paid by Ryerson and Johnson at eight thousand dollars, one-half of which is alleged to have been paid down, and the balance ($4,000) secured by a mortgage upon the property, payable in one year. But there is no evidence what the whole purchase price was to be, nor of any mortgage for any part of it. The $4,000 is all that is proved by the evidence, and there is no admission touching this matter in S. D. Eldred’s answer or cross-bill.

The lease to Ryerson and Johnson having expired on the first day of January, 1864, and they refusing to give up the possession, Samuel D. Eldred, the lessor, through' his agent, Ruddiman, commenced proceedings under chapter 150 Compiled Laws, for the recovery of the possession; whereupon Ryerson and Johnson filed the original bill to restrain these proceedings, and to compel a release from Samuel D. Eldred of all claim to the premises; to which he put in an answer, denying the validity of the assignment, or that it was ever understood or intended to be valid, setting up his contract of purchase and the lease, charging complainants with notice, &c., and filed his cross bill, asking that Ryerson and Johnson be decreed to release and convey to him; he declaring his readiness to pay the balance of the debts, as required by his contract.

There are many other matters appearing on the record; but the above are all we deem material to the rights of the parties, and which are at the same time satisfactorily proved.

From this statement we think it results: First, that even admitting the validity of the assignment in all other respects, as between the parties to it, the complainants in the original bill have failed to show that they acquired any title by the assignee’s deed, or that the mill property passed by the assignment to the assignee, for the reasons already stated, that it does not appear that the mill property was described in the schedule; and this could only be' made to appear by showing that there was such a deed as the Smith deed referred to by the schedule, and that it contained a description of the mill property. The burden of proving this rested upon the complainants, claiming title through the assignee. And though this point is not expressly raised by the answer of S. D. Eldred, we can find nothing in his answer, when fairly construed, which can properly be taken as an admission of the correctness of this description; especially when it is construed with reference to the original bill itself, which would seem to give a different derivation of title from that indicated by the reference in the schedule.

Second. That, as to the deed from the other assignors, of the three - fourths of the mill property, the complainants have also failed to sustain their bill, for the reason (among others) that, even supposing the legal title to have been vested in the firm, (composed of all the assignors) — which does not appear — the complainants purchased with notice of the contract of April 1, 1860, by which the other assignors agreed to sell the property to Samuel D. Eldred, and with notice that he had been making payments in pursuance of that agreement.

This agreement was clear from all taint of fraud, and appears to have been made in entire good faith, and for the purpose of paying off all the debts of the several firms of which the parties were members — a purpose wliich Samuel D. Eldred appears to have pursued with fidelity, and considerable success. And we are inclined to think, though we do not here decide — that even if the assignment had been valid as between the parties, and, (as between them) conveyed this property to the assignee, yet being fraudulent as against creditors, and the creditors never having claimed under the assignment, this agreement of April 1, 1860, known to, and acquiesced in, by the assignee, must, at least after the large payments made under it, as to all the parties to these suits, be treated as entirely valid; and that its validity could be disputed, if at all, only by creditors actually claiming under the assignment.

But third; there is another insuperable objection to sustaining the original bill of the complainants, whatever view may be taken of the assignment or the agreement of April 1, 1860. The title which they undertake to set up against Samuel D. Eldred under the assignment, if it amounts to any thing, was in its nature adverse to his, and must have existed, if at all, prior to, and at the time of the lease from Samuel D. Eldred to them. To set up this title against him is to deny his title as landlord at the time they took the lease. This lease was by indenture, under seal, and by means of this they obtained and enjoyed the possession undisturbed for the term, and by it they covenanted to restore to him the possession at the expiration of the term. They cannot, therefore, at least until they have restored the possession, be allowed to dispute his title as landlord at the time they took the lease, and to set up against him such adverse title — never asserted or claimed against them, but hunted up and acquired by them during the term, while in peaceable possession and enjoyment of the property under the lease. To permit this would be to open a wide door to frauds by tenants upon their landlords. If they could have set up at all against their lessor such a title thus obtained, they must first have restored the possession to him, so as to place him in statu quo, with all the advantages he would have possessed for contesting such-adverse title, if the lease had never been" made and he had never parted with the possession. — Falkner v. Beers, 2 Doug. (Mich.) 117; Hodges v. Shields, 18 B. Mon. 828, 832; Williams v. Garrison, 29 Geo. 503; Porter v. Mayfield, 21 Penn. St. 264; Thompson v. Clark, 7 Id. 62; Brown v. Keller, 32 Ill. 151-155; and see Miller v. Shackleford, 4 Dana, 286; 4 Bac. Abr. Lease, O., 189-197; Great Falls Co. v. Worster, 15 N. H. 412, 450.

It remains only to consider what, if any relief, Samuel D. Eldred is entitled to, under his cross-bill.

We think, upon the case made by the pleadings and proofs, he is entitled to a decree declaring the deed of the other assignors and of the assignee to Eyerson and Johnson utterly void and of no effect as against him; and that he is entitled to be placed in the same position, as nearly as practicable, that he would have occupied had no such deeds been executed, and the premises been surrendered to him at the expiration of the lease.

That he is entitled to a fair compensation for the use of the mill property — that is to say, what the use of the property would have been worth to a prudent man with proper use after keeping it in reasonable repair, and paying such taxes as may have been paid by them —from the expiration of the lease up to the time possession shall be delivered or tendered to him, and that' Eyerson and Johnson should be decreed to deliver the possession to him within thirty days after service upon them of a certified copy of this order.

And on the other hand Eyerson and Johnson must be allowed or repaid so much of the amount paid by them as purchase money to the other assignors and the assignee, as they (Eyerson .and Johnson) shall be able to show has been actually applied and paid upon the indebtedness of the said several firms which Samuel D. Eldred, by his contract of purchase was to pay.

Proofs and an account must be taken in the court below (or by reference from that court) of the amount on the one side to be allowed to Samuel D. Eldred for such use of said property, and on the other of the amount of debts of the said- several firms paid from the purchase money as aforesaid. And this latter amount, when ascertained, or so much of it as may be required, must be applied in offset or liquidation of the amount found due to Samuel D. Eldred for such use of the premises. And if there should be any balance still due said Samuel D. for such use of the premises, then such balance must be paid to him by said Ryerson and Johnson. But if a balance shall be found due to the latter, it shall constitute a lien upon the interest which said Samuel D. acquired in this land by said contract, till paid; and said Samuel D. must be decreed to pay the same to said Ryerson and Johnson rvithin three months after the date of the final decree therefor; and in default of such payment they to be at liberty to enforce such lien.

The other members of the firm, Nelson Eldred, Orson P. Eldred, and Joseph' H. Way, being interested in the payment of the partnership debts,- and in the full performance by Samuel D. Eldred of his part of the contract of purchase of April, 1, 1860, and they not being parties in either of these causes, no account can properly be taken of the payments made upon such partnership debts by Samuel D. nor can the question of full performance by him of his contract be determined, so as to bind them. But these are questions in which Ryerson and Johnson are not interested.

The decree of the Circuit Court must be reversed with costs, the original bill dismissed, and a decree of this court must be entered in accordance with the opinion above expressed. And the record must be remitted to the court below for such further proceedings as may be necessary to carry such decree into effect.

The other Justices concurred.


source: Caselaw Access Project

author: Cooley C. J.:

license: Public Domain

text:
    William Davis v. William J. Walker.

      Interest upon unsettled demands. Where parties account together concerning their mutual demands, and find that one owes the other a certain sum, but it appears that considerable items which are counter claims are not brought into the account, such accounting is not such a final accounting as will authorize interest to be charged on the sum so found to be owing.

      Heard January 8th.

      Decided January 11th.

    Error to Clinton. Circuit.
    This was an action of assumpsit brought on book account in a Justice’s Court.
    The case was appealed to the Circuit Court, where the matter in issue was referred to a referee, who found for the plaintiff below; allowing him interest on certain items of account.
    The report was excepted to by defendant. Some of the exceptions were sustained, and judgment was rendered in favor of plaintiff for a reduced amount.
    The only question involved is as to the allowance of interest.

      Spaulding é Granson, for plaintiff in error.
    The plaintiff’s account having been rendered and assented to by the defendant, a time was fixed from which he admitted that he was indebted and ought to pay. Having neglected payment, the plaintiff is entitled to interest as a penalty or damages for non-payment. — 7 Wend. 113, 446; 2 N. Y. 135; 11 N. Y. 102; 3 Caines 234; 12 Johns. 156; 15 Id. 424 ; 3 Cow. 400 ; 4 Id. 496.

    If the defendant has a counter claim, he may tender it in payment and stop interest to that extent; in other words, he may use it as so much money in payment of his indebt - ■ edness.
    But if wrong in this position, plaintiff is certainly entitled to interest on $¶9.45, (the judgment rendered by the court), from commencement of suit, which, is a legal demand. — 3 Cow. 434; 11 Wend. 486; 11 N. Y. 102; 12 N. E. 474 ; 4 E. D. Smith, 18.

      WaTbridge & Selden, for defendant in error.
    Interest may be allowed upon a demand in favor of A. against B. when the amount can be computed or ascertained by reference to well known market values; and very properly. Such a rule is clearly based upon the principle that B. is presumed to know the amount of his indebtedness, and, therefore, has no legal excuse for witholding payment. 20 N. Y. 468.

    The accounts of the parties were never liquidated. A balance in favor of either party was never determined, until the referee determined the same upon the legal proof.
    Their said partial accounting was no liquidation of their accounts. It failed to determine the balance between them. 3 Cow. 393.

    When parties have mutual dealings, as in this case, and when a balance may be shifting in favor of one party to the other, and varying in amount from day to day, the Courts have never allowed interest, unless upon an express contract to that effect, and until their demands have been liquidated and a balance determined, or unless for cash advances. 24 Ill. 133; 3 Cow. 393; 2 Wend. 501; 17 Barb. 456; 4 Id. 36; 20 N. Y. 463; 8 Vt. 258; 1 Johns. 315; 6 Id. 45; 15 Id. 425; 8 Vt. 258 ; 3 Mich 560.

   Cooley C. J.:

The only question in this case relates to a small item of interest claimed to be due the plaintiff from the defendant, and which the Circuit Judge disallowed.

It appears that prior to November, 1865, there had been a running account between the parties, and that on the 21th or 25th of that month they accounted together as to most of the items thereof, and found due to the plaintiff $216.50. But items due defendant, amounting to $83.05, were not considered at that time, and further accounts accrued in favor of both parties up to September, 1866. The interest is claimed on the amount due plaintiff at the time of the accounting in September, 1865.

It is clear, we think, that this accounting was in no sense a final one, and that therefore no balance can be considered as struck upon which interest would run in the absence of any special agreement to that effect. The account was still an open and mutual account, notwithstanding the major part of the items were agreed upon; and the Gircuit Judge was therefore correct in denying interest.

The judgment must be affirmed with costs.

The other Justices concurred.


author: Christiancy J. Graves, J. Campbell J.

text:
    Daniel J. Campau v. Joseph Godfrey et al.

      Execution-sale of interest of one tenant in common of lands. Whether, where the interest of one tenant in common in a part only of the lands held in common is sold on execution, the sale can be declared void, except on behalf of his co-tenants, and on its being made to appear that it would injuriously aifect their interests, quaere.

    One who should subsequently receive from such tenant in common a deed of the lands so sold on execution, could not maintain a bill to have the execution sale set aside, on the ground of such an interest in a part of the lands not being salable; because, First, if the execution sale was good, it must stand; and, Second, if it was bad, so upon the same grounds would the grant to himself be; and therefore in either contingency he must fail.

      Excessive levy upon lands, remedy for. One who complains of an excessive levy upon his lands, should move for relief in the court which issued the execution, instead of proceeding by bill in equity.
    Where the statute gives the execution debtor a year in which to redeem, after a sale of lands has been made on execution, and he neglects to exercise the right, the sale will not afterwards be set aside on his application, on the ground that the levy was excessive.

      Redemption in equity after statutory time has elapsed; Negligence. A party who, through gross negligence or ignorance of the law, fails to redeem lands sold on execution within the time limited by statute, has no claim to relief in equity.

      Heard October 15th and 16th.

      Decided January 11th.

      Appeal in Chancery, from Wayne Circuit.
    The bill in this case was filed to set aside a sheriff’s deed of certain real estate executed to two of defendants as void, and as constituting a cloud upon complainants title.
    Godfrey, Dean & Brow having a small demand against Theodore J. Campau, put it in judgment and caused execution to be levied on his undivided one-ninth interest in certain lots in Detroit, which constituted a part of the lands belonging to the heirs of Joseph Campau, of whom he was one. This interest was sold to the plaintiffs in execution, who afterwards assigned their certificate of purchase; and their title under it was acquired by Frederick E. Driggs and Milton H. Butler. T. J. Campau suffered the time for redemption to expire without redeeming. Meanwhile the heirs of Joseph Campau, excepting the children of James J. Campau who owned an undivided one-ninth, went on and made voluntary partition among themselves of all the lands belonging to the estate, and set off to Daniel J. Campau the lots in which Theodore’s interest had thus been sold on execution. Daniel J. Campau then filed his bill in equity to have the execution-sale declared void on the grounds:
    1. That one tenant in common can not sell his interest in the part of the property owned in common, because of the injurious effect it might have upon the interests of his co - tenants in preventing such a partition as they might otherwise have obtained. And this being so, the same reasons would preclude an execution-sale of the interest of one in a part of the lands.
    2. That the levy and sale in this ease were excessive.
    3. That T. J. Campau was induced not to redeem from the execution-sale by negotiations which were taking place between him and the plaintiff’s attorney concerning it.
    The case was heard on pleadings and proofs, and the prayer of the bill was granted.

      Walker & Kent, and T. Romeyn, for complainants.

      1. The sale under said execution was void as against complainant and the other heirs of said Joseph Campau, deceased, because it was an attempt to sell the interest of Theodore, who was one of several tenants in common in a specific and undivided portion of the estate owned in common.
    One tenant in common can not convey his interest in a specific parcel of the land held in common; and such conveyance is void, or at least voidable by the co-tenants, though some of the cases hold that it is good against the party conveying. — 4 Conn. 395; 5 Id. 363 ; 3 Ga. 492; 24 Me. 482; 12 Id. 198; 14 Grab. 82; 11 Grab. 340; 2 Robinson, 273; 3 Stockton, N. J. 548; 10 N. H. 246; 15 Id. 449; 37 Id. 134; 44 Id. 413; 38 Id. 127; 12 Id. 563; 9 Mass. 34; 12 Id. 348; 12 Id. 474; 13 Id. 56; 24 Pick. 329; 22 Id. 316; 1 Washb. Real Estate, 417 and nobe; 2 Kent’s Com. 368; 2 Greenlf. Cruise, 410 and nobe.

    The only authorities to the contrary that we have been able to find are. — 2 Ohio, 110; 6 Ohio Cond. p. 468, 161; 2 Harris and Johnson, 421.

    In the following cases it is held that the principle above stated in regard to a sale by one tenant in common applies with the same force to a levy upon the interest of one tenant in common in a specified portion of the estate. Indeed none of the authorities make any distinction between the case of a levy and a voluntary conveyance. — 3 Vt. 399; 9 Id. 138; 2 Id. 244; 2 Id. 243; 28 Id. 183; 18 Me. 229; 21 Pick. 283.

    It will be attempted to distinguish the.case at bar from the most of those cited, because in them the attempt was to convey a specific portion of an entire tract held in common, and in this case the levy was upon several of a large number of parcels. No such distinction is found in the books, and there is no foundation in principle for it.
    But three of the cases cited were cases of conveyance by one tenant in common of his interest in one or more of several parcels held in common, and in this respect correspond with the case at bar. —12 N. H. 563; 24 Piclc. 329; 2 Harris and Johns. 421.

    2. The levy in question was void because excessive/ Property worth, estimating only a one-ninth interest, from $8,000 to 10.000 was sold for less than $200. If any case can justify the setting aside of a levy on. account of its excessive character, this is one.
    3. If said execution-sale and the deed thereunder, conveyed any interest to defendants, Driggs and Butler, we ask the aid of this court to enable us to redeem on such terms as shall be equitable.
    Theodore Oampau, whose duty it was, intended to redeem, and was kept therefrom by mistake and a natural reliance on the honest assurances of the attorney who recovered the judgment, and who was supposed by both to control the redemption. Complainant was guilty of no negligence in relying upon Theodore’s promise, and it would be very hard if he must suffer so largely from the negligence of another. There is no doubt of the power of a court of equity to allow the redemption we ask; and certainly such a redemption would be but equitable..— 1 Johns. Ch. 502; 6 B. Mon. 384; 4 N. Y. 554; 33 Ala. 494.

      John J. Speed, and D. O. Holbroole, for defendants.
    1. Where one complains of an excessive levy on his lands, his duty is to apply for relief to the court from whence the execution issued.— Walk. Ch. 344; 23 Ill. 503; 2 Ind. 99.

    The complainant claims that the estate of Joseph Oampau was inherited by his heirs as an entirety, and subject to a partition; that the interest of Theodore J. Campan in separate parcels of the property could not be levied upon, sold and conveyed, prior to such partition; that the sheriff’s deed to these appellants may be avoided by complainant, to whom Theodore released his interest subsequent to the sale under the execution; and that these appellants may be required to convey to him any interest that they may have acquired under the sheriff’s deed.
    Had the estate consisted of a single parcel, the conveyance by the sheriff of any specific portion thereof, or of Theodore’s interest in any specific portion described by metes and bounds, might have been avoided by the other heirs. — 1 Hill Real Prop. 593, 596; 9 Mass. 34; 12 Id. 349. But the present case is a different one.
    Our statute recognizes no distinction as to the number and connection of their owners between estates inherited and those acquired by purchase. — 2 Comp. L. 2627.

    All real property of the debtor, except expressly exempted, is subject to sale on execution. — 2 Comp. L. § 3119; 17 Mass. 81; 2 Conn. 244; 2 Har. & Johns. 42; 1 Id. 100.

    Separate parcels shall be exposed for sale, and the debtor may redeem such parcel, or his undivided interest -therein. 2 Comp. L. §§ 3121, 3127, 3137; See also L. 1867, 97, 133.

    It does not follow necessarily that a fair division of the estate can not now be made in consequence of the sale, even if it be held that the heirs took the property subject to a division. The lots are as valuable as ever for the purpose of occupancy or sale. In partitioning the estate, these lots might be set off to Theodore Campau and an equal amount in value allotted to the other heirs. If partition can not otherwise be made, these lots may be sold and the proceeds divided. The other heirs must receive their fair share, but no more; but if they receive it in value they can not complain. Any division made must be based upon the value of each parcel.
    We thus see that a levy upon, and sale of specific portions of a tract might operate so as to prejudice the co-tenants by lessening the value of the entire tract; but a levy upon the entire parcel does not affect its value nor prevent the other heirs from receiving the same in value that they otherwise would have received. The most that can be said is that this levy introduces another interest to be protected.
   Christiancy J.

The bill in this case was filed to remove a cloud from the complainant’s title to an undivided ninth of lots 93 and 94 in section one, and lot 67 in section two, of Governor and Judges’ plat of the city of Detroit. Complainant claims title to this one - ninth as the grantee of his brother, Theodore J. Campau, one of the heirs of Joseph Campau, deceased: complainant owning another ninth as such heir.

Joseph Campau, the ancestor, died intestate July 23, 1863, seized of this and a large amount of other real estate, situate mostly in Wayne county, but a large amount of it in many other counties in this State — the whole amounting in value to some two millions of dollars.

After the levy and sale presently to be noticed, but before the time of redemption had expired, all the heirs of Joseph Campau, except the children of James J. Campau, deceased (one of the heirs of Joseph), owning the one-ninth, joined in the attempt to make an amicable partition among themselves of all the real estate of their ancestor, Joseph Campau; wholly ignoring'the children of said James J. and their interest; and for the purpose of effecting this partition, mutually executed and delivered deeds purporting to release and convey to each other in fee and in severalty, entire parcels of said estate and specific blocks and lots by number and description; thus purporting to divide up the whole estate in the same manner as if they had owned the whole, instead of the eight-ninths only.

The lots here in question were thus released and purported to be conveyed in fee and in severalty to the complainant, by the other heirs (including said Theodore), who owned the seven-ninths: the heirs of James J. owning the one-ninth, not joining or being recognized in any way.

Under this conveyance complainant claims to have acquired from said Theodore the one undivided ninth of these lots, which is all that is in controversy in this case.

Such is the title' of complainant.

Defendants Driggs and Butler, claim title under levy and. sale upon an execution against said Theodore, made to Godfrey, Dean and Brow, sometime prior to the partition deeds already mentioned, but the time of redemption upon which had not expired when such partition deeds were executed, though the sheriff’s certificate of sale was on file in the office of the Register of Deeds. The sale on the execution was of the interest of said Theodore in the lots here in questior and in two other lots subsequently conveyed by the partition deeds to other heirs. The interest of Theodore in each of these lots was sold separately for thirty-seven dollars and fifty cents, making in all one hundred and eighty-seven dollars and fifty cents.

After the expiration of the year allowed to the defendant in execution to redeem, Godfrey, Dean and Brow sold their interest in the purchase, and assigned the certificate of sale to John J. Speed, who ' subsequently sold and assigned the certificate to defendants, Driggs and Butler, to whom the sheriff (after the fifteen months allowed to creditors to redeem) executed a sheriff’s deed in due form.

Complainant claims that this sale on the execution constitutes a cloud upon his title, and that it is void upon two grounds.. But the main ground upon which he relies is that the execution sale was of the interest of Theodore in only a part of the real estate owned at the time in common by him and the other heirs; there being a large amount of other real estate thus held in common by the same parties, Theodore’s interest in which, was not levied upon or sold; and that the only way in which any interest of Theodore’s could be sold on execution, or in which Theodore himself could have sold, was to sell an undivided interest in all the ' real estate thus held by the same tenancy; or at least, in all lying in the same county.

In support of this proposition complainant relies upon a considerable number of American authorities; no English decisions furnishing any direct support for the rule upon which the objection's'based, and the little which is found in the English books tending, in some degree, to an opposite result; though the rule is supposed to result from common law reasons springing from the ownership of joint estates.

So far as the rule relied upon has been recognized, it is purely American, having originated in Massachusetts, in Barlet v. Harlow, 12 Mass. 348, and Varnum v. Abbot, Id. 474, which have been followed, to a greater or less extent, in several of the states; some having extended, and others narrowed its application, and there being little uniformity in this respect.

In the great majority of the estates the question does not seem to have been decided; the cases being silent on the point. While Ohio seems to have expressly repudiated the whole doctrine in all its forms. See White v. Sayre, 2 Hammond, 110; Prentis’ case, Ohio Cond. R. (6 and 7 Hammond) 468; Treon’s Lessee v. Emerick, 6 Ohio, 391.

The question sought to be raised by this objection ’ has never been decided in this court. And, as it is one of the first importance, the decision of which may seriously affect many titles, we propose to consider the general nature of the objection, with the reasons upon which it is based, as recognized by the authorities, without, in the first instance, expressing any decided opinion of our own until we see whether the question is properly involved in the case.

■ When the question arises with reference only to a single tract or parcel owned jointly or in common, the authorities are numerous and uniform that one tenant cannot, without the assent of his co - tenants, select a part of the tract by metes and bounds, and hold or sell it as his share in the tract; thus making a partition by his own act which shall bind his co - tenants — ( see for examples, Porter v. Hill, 9 Mass. 34; Holcomb v. Coryell, 11 N. J. 548; Staniford v. Fullerton, 18 Me. 229).

The reasons for this are so obvious that they -would probably be universally admitted. And for a similar reason, it seems to have been held by the courts of most of the states in which the question has arisen, that it is equally incompetent for such tenant, as against his co-tenants, to convey an undivided interest in a specific portion only, by metes and bounds, of a tract so held jointly or in common; and that, so far as the rights of the other co-tenants would, upon partition, be injured by giving effect to such deed, and compelling them to take their shares in several small portions, such deed would be treated as voidable at the option of such co-tenants.

The rule for which complainant contends seems to have originated in this class of cases, when but a single parcel was in question. And such, with two exceptions, are all the cases upon which he relies. And in some of the states (Connecticut and Maryland at least) the rule has been expressly held not to extend beyond a single parcel. Starr v. Leavitt, 2 Conn. 243; Runicker v. Smith, 2 Harand J. 421. But the reasons upon which the rule was first applied to the case of a single parcel were afterward in two cases only, so far as I have been able to discover (Peabody v. Minot, 24 Pick. 329; Thompson v. Barber, 12 N. H. 563), held to extend still further, and to apply as well to a sale of the tenant’s undivided interest in one of several entire tracts when there were other tracts held by the same tenancy in which no interest was conveyed. And it is not to be denied that there may be eases of this kind to which the reason applicable in the case of a single tract, would apply with some, though generally a less, degree of force. Thus, there may be cases in which, if effect were given to the conveyance as against the other tenants, each of the latter might be compelled, on partition, to take his Share in such mihute portions of several different parcels, as greatly to reduce the value of his share; instead of receiving, as he otherwise might, larger portions, together, or certain whole tracts or lots. On the other hand, the lands held by the same tenancy may be so situated, or the amount of them so great, that in many cases the interest of the co-tenants would not be prejudiced, on partition, by giving full effect to such conveyance. And this might sometimes happen in the case of a single tract only, especially of a large one, or so situated as to admit of a perfectly fair partition into such parts as might be required to give effect to the deed. And whenever, upon a fair partition, that part of the property in which an iuterest had been conveyed, should be set off to the party selling or to his grantee, the other co - tenants receiving their full share in as advantageous a form as if the conveyance had not been made, the whole ground of objection to the conveyance would seem to fail. See Varnum v. Abbot, 12 Mass. 474; McKee v. Barley, 11 Gratt. 340; Robinett v. Preston’s heirs, 2 Rob. ( Vig.) 273; Johnson v. Stevens, 7 Cush. 431; Holcomb v. Coryell, 11 N. J. 548.

The only ground upon which such a conveyance can be held inoperative, is the injury it might do to the co-tenants, in partition, in the manner already stated. See Varnum v. Abbot, supra.

It has been sometimes suggested, and was urged upon the argument, that beyond the difficulties to be encountered - in setting off the shares of the co-tenants so as to preserve "their rights, there was a further objection to the validity of such deed, as it would create the necessity of several suits for partition, when one suit would otherwise have answered the purpose. It is possible (though I express no opinion upon the point) that the purchaser under such deed might not be allowed to sustain a bill for partition against the co-tenant. But if any of the co-tenants bring the bill, it may at 'least be doubted whether there is any difficulty in making the purchaser a defendant, ( Whitton v. Whitton, 38 N. H. 127; Story’s Eq. Jur. § 656 a, 656 b, 656 c, and cases cited), or whether the necessity of so doing (if it be necessary) can be recognized as a sufficient ground for holding the deed void, before it is, in fact, ascertained that a fair partition could not be made, giving effect to the deed. And if the co-tenants, in bringing a bill for partition, may ignore such conveyance, and make only the original tenant who has thus sold, a party; still, if the share of the tenant selling should happen to be so set off as to include that in which an interest had been sold, such partition would, according to. most of the authorities in which the point has been discussed, enure to the benefit of his vendee by estoppel; since the deed would be good as to him and all claiming under him, if not as to all parties other than the co-tenants who might be injured by it. (And a sale on execution is held 'to stand on the same ground as a deed from the defendant in execution.) Bartlet v. Harlow, 12 Mass. 348; Varnum v. Abbot, Id. 474; Porter v. Hill, 9 Id. 34; Baldwin v. Whiting, 13 Mass. 57; Cutting v. Rockwood. 2 Pick. 443; Nichols v. Smith, 22 Pick. 316; Cogswell v. Reed, 12 Me. 198; Cox v. McMullan, 14 Grat. 82; McKee v. Barley, 11 Id. 340; Holcomb v. Coryell, 3 Stock. N. J. 548; Great Falls Co. v. Worster, 15 N. H. 449; Whitton v. Whitton, 38 Id. 127; Smith v. Benson, 9 Vt. 138; Johnson v. Stevens, 7 Cush. 431; Challefoux et al. v. Ducharme, 4 Wis. 554.

But the necessity of making the purchaser a party, or even of having two suits or two partitions in the same suit, instead of' one, if the shares can still be fairly set off to the co-tenants, might seem to be a consideration going only to the costs of the proceeding, rather than an objection upon which alone the deed could be held void. . The only ground upon which courts would seem to be justified in treating the deed as void, as against the co-tenants, is the impracticability of setting off their shares, in as advantageous a form as if the deed had not been made; and this, as already suggested, would seem to depend upon the amount and condition of the property, and the special circumstances of each particular c.ase.

In a direct proceeding for partition, the condition and amount of the property and all the circumstances bearing upon the practicability of making a fair partition, can be (and are by the usual practice) inquired into and ascertained; so that the court can, in such cases, see and determine whether effect can be given to the deed and a fair partition still be made. And though in such partition the purchaser of an interest in a part were not a party, yet by the ordinary and correct practice of the court there would be a reference to ascertain and .report the state of the title; and the interest of such purchaser ought, therefore, to appear. And whenever this does appear, unless something should appear to show that the conveyance was not fair or for a valuable consideration, it is not perhaps easy to see why the court upon principles of equity, should not seek to protect the interest of such purchaser, so far as this could be done without injury to the co-tenants; and if the share of such purchaser could not be set off to him, that it should, at least, be set off to the original co tenant who made the conveyance, as a part of his share, if found practicable without injury to the others, so as to give the purchaser an opportunity to enforce his rights, as against his vendor, by a partition of that portion of the property. See authorities above cited, especially Robinett v. Preston’s heirs, 2 Robinson, 273; McKee v. Barley, 11 Gratt. 340; Holcomb v. Coryell, 11 N. J. 548. This duty might seem to result from the doctrine of most of the eases, that the deed is only to be treated as void so far as it injuriously affects the cotenants, and that it is good against the grantor and those claiming under him. But see McKey v. Welch, 22 Texas, 390. When the question of the validity of the deed arises collaterally as it does here, cases may certainly occur in which, owing to the peculiar circumstances and the nature and number of such conveyances, enough may appear to the court to enable them to see, beyond all question, that such conveyance, if held effectual, must necessarily prove injurious to the co-tenants. And whenever this does so appear, the reason for holding the conveyance void, to this extent, as against the co-tenants, is sufficiently intelligible.

But where the question arises collaterally, as in this case, and enough does not appear to enable the court to see that giving effect to the deed must necessarily prejudice the co-tenants, in setting off their shares, the principle upon which courts can a priori and without ascertaining the condition of the whole property, and all the material circumstances, hold such conveyance' void, is certainly not very clear And, in view of the reason upon which alone the rule purports to rest — the injury which may be done to the co-tenants, which they may waive — the principle on which the conveyance can be held void, so as not to pass the title of the grantor, as to all except the co-tenant, would seem to be involved in some obscurity. In -Virginia it has been expressly held that such conveyance by one tenant in common of his interest in a part of an entire tract held in common, passes the title of the grantor in such part, not' only as against himself and those claiming under him, but as to all other persons except.the co-tenants injured by it; and, as to them also, except; so far as they would be injured. And this is said to be the fair result of the Massachusetts doctrine and that of other authorities which hold the deed voidable on account of the injury to the co-tenants, and not absolutely void. Robinett v. Preston, 2 Robinson (Virginia), 273; McKee v. Barley, 11 Grat. 340; and see Holcomb v. Coryell, 11 N. J. (3 Stockt.) 548.

No distinction seems to be made in the authorities between a sale by the tenant himself and a sale on execution against him. But where, as in some of the New England States, no sale is made upon the execution, but the land is set off and possession delivered to the creditor., it is possible that this necessity of delivering possession may furnish a better ground for holding the proceeding void, in such a case, than may be found to exist in the case of a sale. Again, the rule which is to render void the conveyance by one tenant in common of an undivided interest in the whole of one, or several parcels, where there are other parcels held by all the same tenants in common, must, in its application, be limited somewhere; since, if applied to cases where large amounts of property are held in common even in the same county, to say nothing of different counties and different States, the remedy to be secured by holding the conveyance void might sometimes be worse than the evil to be remedied ; as it might tend materially to check the power of sale, and drive the owners to the expense of a partition when, otherwise, it would be unnecessary.

It was suggested by complainant’s counsel, that the rule would be restricted to cases where all the tenants held under the same title. But the reason of this rule in the case, of a tenancy in common, has no connection with the mode in which the title was acquired. It grows simply out of the common ownership, without reference to the mode of its acquisition. And all the property thus held in the same jurisdiction might be partitioned in the same suit, however numerous or diverse the titles by which it was acquired. No unity of title was ever necessary in the case of tenancy in common, and at common law seldom existed. Any limitation of the rule upon this basis, though it might sometimes be convenient, would be merely arbitrary. Peabody v. Minot, 24 Pick. 329, limits the application of the rule to all the common property in the same county; because the jurisdiction, upon partition, was co-extensive with the county ; while in Thompson v. Barber, 12 N. H. 563, it Avas held to extend to all within the State.

In view of all the difficulties in fixing, upon principle, any just and practicable limitation in the application of the rule, it may admit of some doubt, whether the rule should be extended beyond a single parcel. Upon this point the authorities may be Regarded ' as yet equally balanced: Connecticut and Maryland being one -way, and Massachusetts, and New Hampshire the other.

But whatever may be the;, force of the rule or the extent of its application, if it applies to the execution-sale, and defeats the title of Driggs and Butler, it must apply with at least equal force, and much more clearly, to defeat the title of the complainant.

The deed from Theodore J. Campau to the complainant conveyed, not one-ninth of all the property held in common by the same tenancy, nor even of the whole so held in the county of Wayne, but one-ninth of these lots and the other lands attempted tó be conveyed to him in severalty as his share. And such' was the case of every conveyance executed by each of the heirs who executed deeds to each of the others. Complainant’s counsel insist that the objection to such conveyance by one tenant in common only applies when made to a stranger; and where, for instance, there are but two tenants in common, one of whom conveys to the other, this is doubtless true; as the other tenant, by taking the conveyance, waives the objection. But when there are several other tenants in common (of the same and other lands) besides the grantor and the grantee, the injury to them would be precisely the same as if the conveyance had been made to a stranger, and the same difficulties 'would be encountered in setting off their shares upon partition.

It is true, that if all the heirs or tenants in common, including the children of James J., had joined in making such partition and conveyances, as each would have received his share, there being none .of the co-tenants who could thereby be injured, the deeds must have been effectual as to all, so far as this point is concerned.

But these conveyances of all the other heirs except the children of James J. dividing up the whole estate among themselves, entirely ignoring the interest or share of these children, are far more objectionable than the conveyance by a single tenant in common of an interest in any number of parcels less than the whole, held by the same tenancy. These conveyances must, as to the heirs of James J., be held void to. the extent of one-ninth, or they could receive nothing, either in common or in severalty. And to give any effect to all these conveyances, the heirs of James J. in obtaining partition, must, even if they took their shares collectively, take a portion equal to one - ninth by metes and bounds in every separate tract, lot or parcel of the entire estate of Joseph Campau, unless, owing to the great amount of the lands of the estate, it should be found practicable to take in a satisfactory form in larger parcels an equal amount in value from each of the heirs conveying. And in that event the deeds of the heirs to each other, must be treated as void to that extent.

This result the court can not fail to see, without any inquiry into facts beyond those appearing in the records, must be much more likely to prove injurious to them, than the execution - sale to any of the parties, and more likely to diminish the value of their shares.

And, in making a partition to which the heirs of James J. are entitled, some of these deeds must be held invalid to some extent, and this would naturally lead to the necessity of treating them all as void, even as between themselves, unless the obstacle should be capable of being removed by the great extent of the estate, as above suggested.

Upon such partition there can be no certainty that the particular lots now claimed by the complainant, would fall to his share.

In fact, if a suit for partition should be had in which the purchaser under the execution - sale should be ignored, these lots, for aught we can discover, would be as likely to be set off to Theodore, as to the complainant; and he might then be estopped as to the purchasers under the execution, in a partition sought by them, according to the principle of some of the authorities above cited.

But we need not determine whether these deeds were void, nor whether Complainant claiming under Theodore is estopped to deny the validity of the execution - sale, since, if the sale on the execution was void, because confined to Theodore’s interest in separate parcels (less than'the whole number) of the property held by him and the other heirs in common, as contended by complainant’s counsel, for the same reason and under the same rule, the conveyance by Theodore to the complainant was also void'; and the complainant has failed to show title.

If the conveyance of Theodore to complainant was not void for this reason, then the sale on the execution was valid, so far as this objection is concerned; and the defendants, Driggs and Butler, have shown title; and the complainant must fail on this ground, unless the execution - sale is void on some other ground, or the complainant shows some other ground for relief.

The only other ground upon which the sale on execution is claimed to be void, is that the levy was excessive. The fair value of the interest sold in the five lots (of which complainant claims three),, had the estate of Joseph Campau been settled and the title perfect, would have been from-eight to ten thousand dollars.

But to three of the most valuable lots the deceased appeared to have no record title, having held them by possession only; and the estate was unsettled at the 'time, and involved in a great amount of litigation between the different heirs, and between them and the administrators, with no reasonable prospect of an early settlement of the estate; so that it would have been difficult to fix any definite value upon the interest so sold.

The sale being at public auction, open and fair, and no fraud being shown or pretended, we do not think it can be set aside or treated as invalid in this proceeding, on the ground of an excessive levy, or because it sold for much less than its value; especially, as the sale was subject to a year’s redemption.

As an excessive levy merely, it is clear the remedy would have been by motion to the court from which the execution issued, and before sale, to set it aside. Every court controls its own process. No such motion having been made, and the whole year’s redemption having expired and the deed been given before any relief is sought, the objection is one purely of inadequacy of price for which the sale was made. The remedy for this also, if any, was by motion (See Cavenaugh v. Jakeway Walk. Ch. 344), which should have been promptly made. See Noyes v. True, 23 Ill. 503, which was a bill to set aside a sale for inadequacy, and it was held that, having neglected for the whole year (given for redemption) to make a motion on this ground in the court issuing the execution, and no excuse being shown for the delay, there being no fraud shown, complainant was not entitled to relief in equity.

In Reed v. Brooks, 3 Littell, 127, mere inadequacy of price, however great, was held not sufficient for setting aside a judicial sale on motion. And no case has been cited, nor are we aware of any, in which an execution sale of real estate has been set aside, on motion or otherwise, for inadequacy of price alone, especially when, as in this case, it was subject to a year’s redemption. The statute giving a year’s redemption seems to rest mainly upon the idea that real estate may be sold for less than its value; and to give the time of redemption mainly on this ground. This is an adequate remedy; and if the debtor will not avail himself of it, he can not complain of it. Public policy requires that judicial sales which have been open and fair, and nothing done to prevent a sale at a higher price, should not be disturbed on the ground of inadequacy; since the effect of an opposite course would be to deter bidders, and render the prices on such sales still less. And any rule which might be laid down as to the degree of inadequacy would be wholly arbitrary. — Hammond v. Scott, 12 Mo. 11; Meirs v. Zell, 7 Id. 331.

But that such sales cannot be set aside on this ground alone, at least in a collateral proceeding, see Hart v. Bleight, 3 B. Monroe, 273 ; Bank v. Hassert, 1 Saxt. (N. J.) 1; Exrs. of Simmons v. Vandegrift, Id. 55; Roe v. Ross, 2 Ind. 99; Benton v. Shreeve, 4 Ind. 66; Newman v. Meek, 1 Freeman’s Ch. 458; Mercereau v. Prest, 2 Green’s Ch. 460; Outcalt v. Disborough, 2 Id. 218; Carson’s Sale, 6 Watts, Penn. 140; Cooper v. Galbraith, 3 Wash. C. C. Rep. 546.

But. lastly, the complainant insists that, if the execution-sale is valid, he ought still to be permitted to redeem. This claim is sought to be sustained on the ground of certain conversations or attempted negotiations between Theodore and Mr. Cheever, who had been the attorney of the execution - creditors in obtaining the judgment and making the sale. But aside from the facts that the sale was made to Godfrey, Dean & Brow, whose certificate was on file and notice to all parties, and that Cheever had no authority to make any arrangement which should affect the sale, we do not consider it as quite certain that any of the conversations in relation to the subject took place until after the year’s redemption had expired. However this may be, the subject of those conversations seems to have been confined to an attempt on the part of Theodore to get a deduction from the^ amount of the judgment, without any reference to the question of extending the time of redemption; and even upon this point no agreement was ever arrived at.

It is clear from the evidence, that all the most important of even these conversations (if any of them could be of any importance), were had after the year allowed to Theodore to redeem had expired, and just prior to the expiration of the fifteen months allowed to creditors for redemption : Theodore evidently supposing that he had fifteen months to redeem, instead of a year; and, finding he could get no deduction, then undertook to redeem.

Complainant himself was aware of this sale before the time of redemption expired, and relied upon Theodore to redeem. He stands in no better position than «Theodore himself. The claim to redeem, therefore, rests upon the culpable .negligence of Theodore and the complainant, or their ignorance of the law, neither of which will authorize the court to grant the redemption, without going far beyond the recognized grounds of equity jurisdiction.

The two points last considered present the only questions necessarily involved in this case; because, as already shown, if the sale under the execution was void, as confined to an interest in certain parcels less than the whole, then, upon the like ground, the conveyance from Theodore was invalid; and complainant has shown no title. If, on the other hand, the sale on the execution was not invalid on the ground supposed, the defendants, Driggs and Butler, have shown a good title, and in either event the complainant has equally failed to sustain his bill.

The decree of the court below must therefore be reversed, and the bill dismissed; and defendants must recover their costs in both courts.

Cooley Ch. J., concurred.

Graves, J.

I agree with my brother Ohristiancy in holding, and upon the grounds stated by him, that if the levy and sale on execution were invalid by reason of being limited to Theodore Oampau’s undivided interest in a part of the several parcels owned by him in common with the other heirs; that then, by the same principle, the conveyance by Theodore to complainant was likewise invalid, wherefore the latter acquired no title, and has consequently failed to show one. in support of his bill: and on the contrary, if such conveyance to the complainant was not rendered invalid by such circumstance, then the levy and sale on execution could not be defeated on that ground. I also agree with him in holding that the bill cannot be supported on the idea that the levy was excessive; nor upon the ground that Theodore was mistaken or misled as to the time given for redemption; nor upon the notion that an arrangement was made for a longer time than that prescribed by statute, and accordingly I concur in the result. As this view is sufficient to dispose of the case, I am not at present inclined to go beyond it.

Campbell J.

I- concur in dismissing the bill upon two grounds. I do not think, if the levy was good, that the facts set forth furnish any sufficient reason for avoiding the sale either as excessive or as left unredeemed through mistake or misrepresentation. There is no sufficient reason shown for the failure to redeem, which would create an equity against the purchasers.

I also think that Campau’s rights in the particular lots in dispute depend upon analogous principles to those which he sets up against defendants. The same reasons which he claims as invalidating their title, would prevail to disprove any such title in him as must exist in order to maintain this bill. If correct in his claims against defendants, there is no certainty that he will ever own the lots in question, which may fall to some one else on the partition; and if this be so, he cannot claim any peculiar right to have the alleged cloud removed. He and the defendants, upon his theory, occupy similar positions, and he can, upon this ground, have no superior equities.

I therefore am not disposed to enter upon any inquiry into the legal or equitable rules regulating the dealings of tenants in common. As no impressions given under such circumstances would have any force as authority, I prefer to reserve any expression upon the subject until it is required by some actual necessity, when it can be given under the light of existing facts. I now concur in the judgment for the reasons given, because the complainant has' not put himself in any position to assail the defendants, or to invoke any principle which will aid him more than it will them.


author: Graves J.

text:
    Andrew Heimbach v. Samuel Weinberg.

      Case made: Repeal of Urn for review of. Where a case made for review upon the facts appears to have been settled after the law authorizing such review was repealed, the Court cannot consider it. 7

      Agency: Settlement on behalf of father for damages fot' seduction of daughter.

    A daughter who was a minor, having been seduced, the defendant >vas em- • ployed by the father to collect of the seducer damages therefor, and the daughter gave him a power of attorney on the supposition that it was important to enable him to effect the object. He settled with the seducer, on receiving from him his note on time for $125, and an equal amount in cash, and delivered the note to the father, but withheld all knowledge of the receipt of the money, and declared that the note was all he obtained. Suit being brought against him by the father to collect the balance, he defended on the ground that the daughter was the proper plaintiff. It seems that on this state of facts, the father was clearly entitled to recover.

      Submitted January 6th.

      Decided January 11th.

    Case made from St. Joseph Circuit. “
    This was an action for money had and received. The facts are stated in the opinion.
    Judgment was rendered for plaintiff below.

      ■Wm. L. Stoughton, for plaintiff. ■

      Heioitt.& Lyon, and H. F. Severens, for defendant.
   Graves J.

The plaintiff brought an action against the defendant for money had and received, and upon the trial before the court without a jury, the court found the facts to be as follows:

The plaintiff’s daughter being under age, was debauched and made pregnant by one Jeremiah Good in this State, and Good afterwards became a resident of Pennsylvania. The plaintiff applied to the defendant, who was going to Pennsylvania, to settle his claim against Good for the seduction and debauching of his daughter, and gave the defendant $25 for so doing. The daughter being still a minor, made her power of attorney to the defendant, authorizing him to make the settlement: the parties supposing this step to be necessary to effect the object. Under such arrangement, the defendant, in January, 1861, settled with Good, for $250 and received at the time $125 in money and the note of Good with security for $125 more, and which note was delivered by the defendant to the plaintiff and paid at maturity by Good to the latter. The defendant concealed from the plaintiff for a long time, his reception of the $125 in money and alleged that he had received the note only. The Court also found that the plaintiff was entitled to a judgment for $142.50 with costs; and judgment was accordingly so entered on the 6th day of February, 1863.

The foregoing presents the facts found; but we observe that all the evidence in the case is also sent up with the findings.

According to the record, by which we are necessarily governed, the case itself was not settled until March, 1868; and although it appears to have been intended that we should review upon the whole evidence, we are’ precluded from so doing by the circumstance that the record conclusively shows that the case was made after the Act of 1867, (Laws of 1867, p. 198) which took away the power to review upon the facts. As this record is constituted, we can only consider the questions of law raised by exceptions to the findings of law and to the rulings upon the points submitted under rule 87 of the rules of the Circuit Court. The only finding of law in the case is, that upon the facts found the plaintiff was entitled to recover $142.50 on the 6th of February, 1863.

There is nothing in this of which the defendant could complain, since the facts found abundantly authorized it.

It is found that the defendant was employed by the plaintiff to obtain for the latter, satisfaction from Good on the plaintiff’s claim; that the defendantassumed the agency, and received the money, but concealed from the plaintiff the receipt of it, and alleged that he had received nothing but the note. This note he delivered to the plaintiff; and so far as appears, without having discovered that his conversation with Good could have the effect of cancelling his engagement to his principal, and of relieving him from all accountability to his employer. When he withheld the money and denied its receipt, it could not have occurred to him that he could set the plaintiff at defiance by showing that in acting as his agent and in his business he had so demeaned himself as to preclude the plaintiff from insisting upon his paying the money over.

He must, at that time, have thought that his ability to keep the money depended upon concealment, and not upon the grounds that his doings in Pennsylvania extinguished the rights of his principal. We think he could not repudiate his duty to account to his employer; and that his denying the receipt of the money was tantamount to a refusal to account for and pay it, and precludes him from saying, in answer to the action, that it was not demanded before suit.

Four of the points presented under the rule referred to, related to matters of fact, and the Court responded to them by stating the facts otherwise than ■ as contained in such points; and the rulings upon the remaining points so presented were supported by the facts as the Court had found them.

We therefore discover nothing in the record which would authorize or justify us in disturbing the judgment of the Circuit Court.

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

The other Justices concurred.


author:
Campbell J.
      Christiancy J.

text:
    Eli H. Hoover et al. v. Jacob Peters.

      Sale of articles of food for domestic consumption: Implied warranty as to quality. Where articles of food are bought for domestic consumption, and the vendor sells them for that exprese purpose, the law implies a warranty that they are fit for such purpose, whether the sale be by a retail dealer or any other person.

      Heard January 6th.

      Decided January 11th.

    Error to Bay Circuit.
    This was an action to recover the balance of the purchase price of certain pork sold by plaintiff to defendant.
    The defence claimed that the pork was purchased to be used as food, and that the plaintiff so understood it, and that it proved unfit for such purpose.
    On the trial they asked the Court to charge the jury that if the facts were as claimed, that there was an implied warranty that the .pork was sound, and fit for the purpose of food; but which was refused.
    Judgment was rendered for plaintiff.

      A. G. Maxwell, for plaintiff in error.
    The record in this case presents the following:
    I. When a farmer sells provisions to a consumer directly for food, is there an implied warranty that the goods are wholesome and fit for that purpose?
    That such warranty exists has been, held by repeated adjudications in this country. — 12 Johns. 468; 2 Chandler, Wis. 37; 3 Blackf. 165; 17 Wend. 267.

    Where a vendee buys for a particular purpose, he buys with an implied warranty of the fitness of the thing, for the purpose intended, whether the article is for food or not. — 6 Taunt. 108; 4 Barn. & Cress. 108 ; 5 Bing. 533; 3 Man. & Grang. 818; 8 Blachf. 317; 2 Man. & Grang. 279; 3 Id. 858 ; 5 Q. B., 288. Similar cases: 4 Gilman, 69; 1 Sm. & M. 381; 17 Wend. 269; 18 Id. 449; 10 Exchq. 342; 1 Williams, 227; 11 Ired. L. 166.

      If thé rule is well settled, that when a person buys goods for a particular purpose, that there is an implied warranty that the goods are fit for such purpose, why should not such rule extend to provisions? The reasons that may be alleged in favor of such rule are certainly strong. The security of human life is the greatest care of the law. The necessities of life are such as to make it important that food should be wholesome and unadulterated; and the same principle that holds a physician or apothecary responsible for reasonable care, might well sustain this rule of law.
    II. What is a warranty, is purely a question of law. And the Court must decide it. It is a contract in every respect, as fully as any other contract known in the law. — 22 Pick. 48; 1 Vesey, Sr., 95; 14 Barb., 66; 1 Young, 407 ; 2 Kent’s Comm. 482 et seq.; 1 Smith’s Lead. Cas. 77, 207.

    Whether a warranty has been proved in a particular case, is a question of fact for the jury; but what facts, if proved, will make a contract of warranty, is a question of law.
    In the facts shown in this case, the agent of the plaintiff (below) did. make an express warranty of the property, as a matter of law.
    It was a representation of an important fact at the time of sale, and during the negotiation, to purchase it.
    It clearly appears that the goods were purchased for a particular purpose, of which the plaintiff was informed.

      Grier and McDonell, for defendant in error.
    With regard to the quality or goodness of articles sold, the seller is not bound to answer, unless he expressly warranted the goods to be sound and good, or made a fraudulent representation or concealment. The buyer is required to attend to those'qualities of the article he buys, which are supposed to be within the reach of his observations and judgment; and this doctrine is well established in the English and American law. — 2 Kent Com. 478 (10th Ed.); 20 Johns.

      196; 13 Ohio, 502; 39 Perm. St. 88; 42 N. H. 165; 23 Barb. (N. Y.) 521; 29 Maine, 508.

    Those cases which “ trench upon .the plain maxim of. the common law,” caveat emptor, aré unsound and not sustained by the weight of authorities. — 2 Kent Com. (10th Ed.) 480 note ; 17 Wend. 267; 1 Denio, 378 ; 11 Ired. 166 ; 9 Watts, 55; 18 Wend. 428.
    And the exception to the general rule as to provisions, is confined to cases where the .provisions are sold by common dealers for immediate consumption and domestic use.- — -1 Denio, 378 ; 16 M. & W. 644; 10 Mass. 197; 3 E. D. Smith, N. Y. 324; 18 Wend. 428.

    It is not implied in every sale of provisions, that they are wholesome, any more than it is in sales of other articles where .proof of a distinct affirmation is requisite. An artifice must be proved to entitle the .sufferer to this remedy, equivalent to a rémedy on an express warranty, as well in the case of provisions as in any other case. The difference is, that, in the case of provisions, the artifice is proved, when a victualler sells meat tp his customers at a sound price, which at the time was stale or defective, or unwholesome from the state in which the animal died. For, in the nature of the bargain, the very offer to sell is a representation or affirmation of the soundness of *the article, when nothing to the contrary is expressly stated; and his knowledge of the falsehood in this representation is also to be presumed from the nature and duties of his calling and trade. — 10 Mass. 197; 7 Hurl. & Nor. 586.

    But in this case the seller was not a victualler. He was no better qualified to judge of their wholesomeness than the buyer. There was nothing about his calling or experience upon which the public had a right to rely as a warranty of the soundness ol his commodities. Where relations of trust and confidence exist, the law applies strict rules, and will regard that as fraudulent which, in 'other relations, would not be so regarded. It is upon an analogous principle that a common dealer of provisions is held to impliedly warrant the soundness of his goods. To judge of the soundness of his goods is his business — his study. He is presumed to have superior facilities for judging of the quality of provisions, and the public places confidence in' his capacity and experience. But it would not only be unreasonable, but unjust, to apply such a rule of accountability to one who sells a load of provisions in bulk in open market. Such a sale does not, and should not, constitute an exception to the common law rule of caveat emptor.

   Campbell J.

To a suit for the balance remaining unpaid on the price of the carcases of three hogs sold by Peters to defendants' below to be used as food in their lumber camp, they set up, by way of recoupment, that one of the carcases was unsound and unfit for use. The purchase was made from the son of Peters, who was informed, at the time, of the purpose for which they were bought.

The Court refused to charge that, if such facts existed, Peters could not recover for the unsound article, and was liable on an implied warranty of soundness, but on the other hand instructed the jury that where a person, as in this case, sells goods in open market, there is no such implied warranty, and no liability for faults in the absence of deceit, fraud or special warranty.

It seems to be settled by many authorities that no implied warranty of soundness arises where such articles are purchased by a dealer to sell again.

Whether this rule arises from the fact that any injury from the use of the articles is likely to be remote and not readily traced out, or because, where his purpose in buying is merely speculative, one commodity is not to be distinguished from another in its incidents as merchandize, or what special reasons have led to it, cannot easily be determined. It stands as a recognized doctrine, whatever may have been its reasons.

But where property is. bought for a particular purpose, and only because of its supposed fitness for that, there are many cases in which a warranty is implied, unless the purchaser has seen fit to act upon- his own responsibility and judgment. And where articles' of food are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life, and the failure of consideration is so complete, that we think the rule which has often been recognized, that such sales are warranted, is not only reasonable but essential to public safety. There may be sellers who are not much skilled, and there may be „ purchasers able to judge for themselves, but in sales of provisions the seller is generally so much better able than the buyer to judge of quality and condition, that if a general rule is to be adopted, it is safer to hold the vendor to a strict accountability than to throw the risk on .the purchaser. The reason given by the New York authorities,'in favor of health and personal safety, is much more satisfactory than the purely commercial considerations which take no account of these important interests. While the question has not perhaps been very often decided, the; principle has been generally accepted among the legal writers, and we feel no disposition to recede from it. We have been pointed to no distinction between sales in one market or añother, and can conceive of no special reason for regarding one sale for this purpose as differing in its incidents from any other. The doctrine seems to be that any purchase for domestic consumption is protected.

We think, therefore, that for this reason the judgment should be reversed, ’ and a new trial granted. The other points seem to have been presented properly.

Cooley Oh. J., and Graves j. concurred.

Christiancy J.

If, in addition to what appears in this case, it had further appeared that the plaintiff below, when he sold the property, lcnew it to be diseased, or had it appeared that he was the keeper of a meat market or butcher’s shop and was engaged in the business of selling meat for food, and therefore bound or presumed to know whether it was fit for that purpose, I should have concurred in the opinion my brethren have expressed. But as the case does not show that plaintiff knew any thing more of the condition of the property than the purchasers, who seem to have had the same opportunity to judge for themselves, and plaintiff is not shown to have been engaged in a business which would authorize any presumption of knowledge, I do not think that in making this casual sale he was under any obligation of ascertaining at his peril the condition of the property in this respect.

In such a case the maxim of caveat em,ptor should, I think, apply. I therefore concur in the opinion of the Circuit Judge who tried the cause, as in my view founded on the better reasoxr, and supported by the greater weight of authority.


author: Cooley Ch. J.

text:
    Gabriel Smith v. William Lock and Another.

      Sale of land hounded on a street: Eight of purchaser to a way. Where one sells to another, a village lot which is describecl in the deed as bounded on a certain street, the purchaser is entitled as against the seller, to have such street kept open for his accommodation in the enjoyment of hia purchase.
    The question in such a case is not one of dedication, but of private right, depending upon the construction of the deed of conveyance.

      Heard January 8th.

      Decided January 11th.

    Appeal in Chancery from St. Joseph Circuit.

      The bill in this cause was filed to enjoin the defendant perpetually from closing up ;a certain street fronting complainant’s premises. The facts are stated in the opinion.
    The prayer of the bill was -granted.

      Wm. L. Stoughton, for complainant.
    1. This case comes under the well recognized head of equity jurisdiction. Where ' privileges of a public nature,' and yet beneficial to private estates, are secured to proprietors contiguous to places dedicated to public uses, the due enjoyment of them will be protected against encroachments by injunction. — 2 Story’s Eg. Juris. $927; Corning v. Lowerre, 6 Johns. Ch. 439; Hills v. Miller, S Paige, 254; Trustees Sc. v. Gowen, 4 Id. 510-514; Sinclair v. Comstock, Har. Ch. Mich. 404-

    2. It clearly appears that the defendant executed and acknowledged a plat of the village of Burr Oak, according to the requirements of the statute, and caused it to be duly recorded. This is sufficient to pass the title. — 1 Comp. L. $1188; Conner v. Neto Albany, 1 Blackf. 43; Com. Council Sc. v. Croas, 7 Ind. 9; People v. Beaubien, 2 Doug. Mich. 256.

    3. An inspection of the plat shows that the land in question is a street. The location, width and course of Front street are clearly marked out. It is an inseparable part of the plat, and like every other street or alley its extent must be measured by its relation to it. The fact that an imaginary line is not drawn along a part of its south line, does not change its character as a street. It is sufficient if the nécessary data are given to determine the length and breadth. — Herrick v. Stover, 5 Wend. 581.

    It is designated on the plat as a “street.” This imports a thoroughfare, not a cul de sac — Holden v. Trustees of Cold Spring, 28 Barb. 108; People v. Jackson, 7 Mich. 432; Tillman v. People, 12 Id. 401.

      The construction claimed for the plat, is in accordance with the requirements of the statutes, and ought therefore, to be preferred. — Broom’s Legal Max. 668; 2 Pars, on Gon. BOO; Booth v. McNair, H Mich. 19.

    And it is also supported by the subsequent acts and declarations of the defendant.
    4. The defendant having executed, acknowledged and recorded the plat of the village of Burr Oak, with “ Front street” designated as an open street, and having sold complainant his lot with reference thereto, cannot resume and exercise acts of ownership over it, which would deprive his grantee of any privileges or benefits to be derived from having such street left open. — Trustees of Watertown v. Oowen, A Paige, 510; Nyman v. Mayor, &c., 11 Wend. 1¡87-501; Livingston v. Mayor, &c. 8 Id. 85; Newport v. Taylor, 16 B. Monroe, 808; Kennedy v. Shipley, 15 Miss. 681 / State v. Traslc, 6 Vt. 855; State v. Cullen, 8 Id. 580; Cincinnati v. White’s Lessees, 6 Peters, p82 ; Sinclair v. Comstoch, Har. Ch. Mich. 112; 2 Washb. on Beal Prop. J¡£9; Smiles v. Hastings, 21¡, Barb. H.

    At all events an easement or right of way passed to the complainant by the terms of his grant, and we think vested in him, in common with the public [ 11 Wend. 501 ]; but whether this be so or not he is equally entitled to protection.

      J. W. Flanders, for defendant.
    A Court of Equity will not restrain a man from making a reasonable improvement on his own premises, upon the ground that it cannot be made without depreciating the value of the adjoining premises, nor upon the ground that the edifice erected upon the adjacent premises does not possess any special privileges, protecting him from the consequences of such improvement either by prescription or grant, from the person making these improvements, or from the person under whom he claims title. — Lasala v. Holbrook, b Paige, 169.

    A man is not answerable for the consequences of enjoying his own property, in the way in which said property is usually enjoyed, unless an injury results to others from the want of proper care or skill on his part. — Badcliff’s Extfrs v. Mayor of Brooklyn, b Gomst. 196.

    The village plat, admitted in the evidence and proofs taken in this case, establishes the fact that Front street extended no further east than Second street, and of this fact the complainant had full knowledge.
    The grantee cannot take advantage of a misdescription known to him when he made the contract. — Sug. on ' Vendors, p. 887, 888.

    The village of Burr Oak was laid out and the plat thereof was executed and recorded as required by law. — 1 Comp. L. Oh. XXVIII.

    It appears from the testimony of ¥m. Betts, that Front street extended east to Second street; this fact appears also in the testimony of the defendant, who was one of the proprietors of the village, and helped to lay it out. No act of dedication or acceptance appears from the evidence of the land in question. — People v. Jones, 6 Mich. 176; Tillman v. People, 12 Id. b01 J People v. Beaubien, 2 Doug. Mich. 256; Gook v. Village of Hillsdale, 7 Mich. 115.

   Cooley Ch. J.

It appears by this record that Lock conveyed to Smith a lot in the village of Burr Oak, described as “commencing at the north east corner of the M. S. Railroad depot grounds in the village of Burr Oak, thence south one hundred feet, thence easterly along the line of the company’s ground until it intersects the creek, thence northerly along the line of said creek until it intersects the line of Front street, thence westerly along said line of said street to the place of beginning.”

Afterwards, Lock claiming tbat Front street did not extend along tbe front of this lot, sold the land on the north side of the lot up to Smith’s line to Hinkley, and Hinkley thereupon proceeded to build a house upon the land so purchased. This bill was filed to obtain a perpetual injunction. ‘It was not disputed that there was a street known as Front street, extending to complainant’s lot on the west, and which was fifty feet in width, and which, if extended in front of the lot in question would include the erection Hinkley is making.

■Defendants appear to claim that if no street has been regularly laid out or dedicated to the public, in front of complainant’s lot, this bill must be dismissed; but this is an error. The purchase of the lot described as bounded on a street,, estops the grantor from shutting it up so as to prevent his grantee making use of it for his own' accommodation in the enjoyment of his purchase. It is a matter of private right, and in no way depends upon the question whether the public have acquired a right of way or not.

The decree awarding a perpetual injunction must be affirmed, with costs.

The other Justices concurred.