text:
    Levi Munsell v. Joseph Loree, Jr., and David Green.

      Specific performance of land contract: Certainty of description. A decree for a specific performance of a parol contract for the conveyance of land, will not be made when the proofs do not support the case made by the bill, as to the description of the parcel; and the evidence of possession is, for the same reason, uncertain as to the location to which it applies, and is equivocal and unsatisfactory in quality.

      Heard October 6.

      Decided October 11.

    Appeal in Chancery from Livingston Circuit.
    The complainant filed his bill in the Circuit Court for the County'of Livingston in Chancery to compel the performance by the defendant, Loree, of a parol contract to sell to the complainant a parcel of land, which, subsequently to the alleged contract, Loree had conveyed to the defendant Green. The cause was heard upon pleadings and proofs; the Circuit Judge decreed a specific performance; and the defendants appeal to this Court.

      Alfred Russell, for complainant.
    The three parties are near neighbors. Munsell owned and lived on the north seventeen acres of an “eighty.” Loree owned a strip next south, running east and west across the eighty, containing thirteen acres. The south fifty acres of the eighty were owned by one Taylor. Complainant’s bargain, in 1852, was for the whole thirteen acres, at 85.00. He paid for eight and one-fifth acres, and then Loree desired to take back the south portion of the strip, remaining unpaid for, and it was so agreed. From 1852, forward, complainant paid taxes on the north portion of the strip, and it was assessed to him; he has also cut rails, fence-stakes and timber on it constantly since, and fenced the north and east sides, of all which facts defendant, Loree, liad knowledge. Full knowledge on the part of Green is shown.
    I. Equity will enforce performance of a verbal contract to convey lands, where payment of the price and possession under contract appear.—Burtch v. Hogge, Har. Ch., 31; Bomier v. Caldwell, Har. Ch., 65; Bomier v. Caldwell, 8 Mich., 463; Norris v. Showerman, 2 Doug., 19; McMurtrie v. Bennett, Har. Ch., 124; Millard v. Ramsdell, Har. Ch., 378; Weed v. Terry, Walk. Ch., 501; Weed v. Terry, 2 Doug., 344; Wilson v. Wilson, 6 Mich., 9; Hawley v. Sheldon, Har. Ch., 420; Ingersoll v. Horton, 7 Mich., 405. Here the acts done are definite, and referable solely to the contract. The possession was notorious, and under the agreement and with the knowledge and consent of the vendor.—2 Story Eq. Jur., 19, 759; 7 Barr, 157; 4 Blackf., 94; 6 Watts, 464; 18 Vesey, 328; 3 S. & R., 543; 1 Bro. C. C., 409. Nearly all Munselhs testimony is corroborated, while Loree’s stands by itself.
    IT. The contract as to the amount of land is not absolutely definite, but is sufficiently clear for the purposes of equity. The bill alleges seven acres. A'lai’ger amount was paid for and agreed to be deeded — 8 1-5 acres; but surely the defendant cannot object that we ask for less than we paid for. The amount is as olearias in Burtch v. Hogge, and many other reported cases, and the allegation and proof are substantially the same.
    III. Upon questions of fact and weight of testimony, the appellate courts are slow to disturb the finding of the local courts, personally familiar with parties and witnesses, and often with localities, and possessing peculiar facilities for arriving at the truth. The U. S. courts declare, in maritime cases, that where the testimony is conflicting, the appellant must show a plain, clear, and determined case of mistake of facts, and demonstrate it beyond a reasonable doubt, oi’ the decree will -not be x-evex'sed.—(Damage.) Cushman v. Ryan, 1 Story, 96-7; (Salvage.) Bearse v. 340 Pigs of Copper, do., 332-3; (Affreightment.) The Grafton, 1 Blatchf, 173; (Collision.) The Narragansett, do., 217. So the S. C. U. S.—(Salvage.) The Sybil, 4 Weat., 99; (Salvage.) Spear v. Place, 11 How., 528; (Collision.) Walsh v. Rogers, 18 do., 284.

      H. H. Harmon and L. D. Norris, for defendants.
    -Krsi.-^That there is no contract, dear, definite and unequivocal in all its terms, shown by the proof in relation to any land in the case, but that the one attempted to be shown is “uncertain, ambiguous, and not clearly proven,” and upon that gx’ound the complainant is not entitled to the relief sought.—See Story Eq., Vol. 1, Secs. 764, 767, and 769; McMurtrie v. Bennette, Harr. Ch. Reports, 124; Millard v. Ramsdell, do., 373; Wilson v. Wilson, 6 Mich., 16.

      Second. — That the contract attempted to be shown in the case is variant from that set forth in the bill, in substance, in this, that the one attempted to be proven (if anything at all) is a contract for “thirteen acres,” or “what he had paid for,” or for some indefinite and uncertain quantity, instead of for “seven acres at the price of thirty-five dollars,” as alleged in the bill; and upoxx this ground the complaixxant is not entitled to the relief sought.—Wilson v. Wilson, 6 Mich., page 16. Quantity and price are matters of substance.—See Bomier v. Caldwell, 8 Mich., 468.

      Third. — The contract and case made by the complainant is denied by the defendant, and there is no preponderance of evidence. The case, therefore, staxxds without proof and “there is nothing upon which the Court can act,” to grant the relief sought.—Roberts v. Miles, 12 Mich., 306;

      2d Daniels’ Ch. Pr., Perkins’ Ed. of 1865, page 839 to 845, and notes.

      Fourth. — The acts attempted to be shown as evidence of part performance to take the case out of the statute, are not referable to any contract. The possession of the complainant, to suffice, must have been a possession and holding under the contract, a possession delivered by the defendant, otherwise it forms no ground for relief. It is not the taking, but the delivery of possession and holding under the contract, that is required.—Weed v. Terry, 2 Douglass, Mich. Reports, 351 and 352; Story Eq., Secs. 762, 763, and 764; McMurtrie v. Bennette, and Millard v. Ramsdell, before cited.
   Graves, J.

The bill in this case was filed for the specific performance of a parol contract for the conveyance of land. The bill states that on or about the 15th day of June, 1852, the complainant purchased of the defendant, Loree, for the sum of $35, a parcel of land in Iosco, Livingston county, described as follows: Commencing at a point thirty-four rods south of the northeast corner of section twenty-two, on the section line, and running south on said section line fourteen rods; thence west eighty rods; thence north fourteen rods; thence east to the place of beginning, containing seven acres. The bill further states that complainant paid Loree the consideration of $35 at the time of the purchase; that he took immediate possession of the land, and has had the exclusive possession thereof ever since, under and by virtue of said purchase, and has made some improvements thereon; that at the time of the purchase Loree agreed to convey by deed to complainant a good and unincumbered title in fee simple when he should be thereafter requested so to do; that complainant has often requested Loree to convey according to the agreement, which the latter has, from time to time, promised to do; that Loree nevertheless continued to put off the conveyance upon various pretenses until the 22d of December, 1866, when he bargained and conveyed said land to the defendant, Green; that Green, at the time of the conveyance to him, had notice of complainant’s rights, and knew that complainant was in possession.

Both the defendants answered and denied all the material facts stated in the bill, and the Court below decreed performance.

The complainant, and defendant Loree, were both exam'ined as witnesses, and the substance of complainant’s testimony is as follows: He stated that he owned a strip of land across the north end of the east half of the northeast quarter of section twenty-two, in Iosco, containing seventeen acres, and held a note against Loree, dated January 1, 1849, and payable in October of that year, for $75 and interest, on which $50 had been paid about a year and a quarter after the date of the note; that he agreed verbally with Loree, in the summer of 1852, to buy a strip of land running across the eighty-acre lot next south of the seventeen-acre parcel, and to contain thirteen acres, at. $5 per acre; that the balance of the seventy-five dollar note and six bushels of wheat delivered to Loree were to apply on the purchase, and made about .$41; that subsequently it was agreed that instead of the whole thirteen acres, a strip next to the seventeen-acre parcel, and containing so much land as, at $5 per acre, had been paid for by the balance on the note and the six bushels of wheat, should be conveyed to him. He also stated that there was no fence between the land in question, which was covered with timber, and the land of Loree, and that the only way in which lie took possession was by cutting some timber and paying some of the taxes. He further- stated that he had retained the seventy-five dollar note. The defendant, Loree, denied that he sold complainant thirteen acres or seven acres, but stated that he offered to sell him thirteen acres, and complainant refused to purchase that quantity, yet informed Loree that he would buy five acres; that he, Loree, then told him that he could have five acres, and that he thinks the price paid was six dollars per acre. The defendant farther testified that he never gave complainant possession; that the latter never paid or offered to pay anything on the land, and that he, defendant, never received any wheat on the land; that he, Loree, had a set-off against the balance of the seventy-five dollar note nearly or quite sufficient to satisfy it, and that complainant Avas to let him, Loree, have the note and pay the balance required for the land; that complainant never tendered the note or offered to pay for the land. The residue of the testimony is very indefinite and unsatisfactory on the material points, ánd adds nothing of consequence to those portions of complainant’s testimony which relate to the terms of the contract, the description of the land, performance by complainant, and matters conducing to refer acts of possession to the agreement.

It seems evident enough that the complainant and Loree talked more or le.ss about a trade for a parcel of land next south of the seventeen-acre parcel mentioned by complainant in his testimony, but Avithout reaching in express terms any settled and specific understanding on the ■subject. It is probable that complainant was led by appearances, and vague or general expressions, to suppose that some sort of an agreement subsisted betxveen himself and Loree under which he was entitled to call for a conveyance. But whatever may have been, tacitly understood, or assumed or imagined, we are satisfied on looking at the proofs that the objections to a decree for complainant are insuperable.

So far as the evidence conduces to show that the minds of the parties came together on any terms of a contract, it points to a very different contract 'from that set forth in the bill, and if We rest upon the complainant’s proofs, which alone refer to the subject, it will be seen that they not only fail to define the premises as described in the bill, but fail to define them in any manner which would enable the Court to specify them in a decree, or identify them in any way. Under the evidence given by complainant as a witness, the amount of land, called for by the agreement, he undertakes to prove, is indeterminate, since according to his version he was to.have so much as an uncertain and unascertained sum wofuld buy at five dollars per acre, and that circumstance of itself would make it impossible for the Court to ascertain the bounds. The evidence for complainant relating to his possession is extremely equivocal and unsatisfactory. The premises not being identified by the evidence, it is not quite safe to refer the acts intended to show possession to the actual parcel which the supposed agreement would cover. But if otherwise, the evidence leaves it uncertain whether the cutting of timber, etc., by complainant, was mutually known and accepted by the parties as done in virtue of a contract of sale.

We consider it unnecessary to notice the evidence at greater length or with more particularity.

. The bill is clearly unsupported by the proofs, and the decree below must be reversed, and the bill be dismissed with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy, J.

license: Public Domain

text:
    Myron Kinyon v. Clement Duchene.

      Appointment of Drain Commissioners. Boards of Supervisors have no power to select, from their own. members, Brain Commissioners, which, by Act No. 216-of the Laws of 1861 (p. 452), they are authorized to appoint; and the acts of Commissioners so appointed are void.

      Equity; Jurisdiction in tax cases. A court of equity has power, in a proper case, to enjoin the collection of an illegal tas:.

      Heard October 6, 7.

      Decided October 11.

    Appeal in Chancery from Sfc. Clair Circuit.
    The complainant filed his bill in the Circuit Court for the County of St. Clair in Chancery, against the defendant, as Treasurer of the town of China, to restrain the collection of a tax levied by the Board of Drain Commissioners for that county, upon the property of the complainant, for the construction of a ditch under proceedings alleged to be in pursuance of Act No. 216 of the Laws of 1861, and the acts amendatory thereto. The Court below dismissed the bill, and the complainant appeals to this Court.

      T. C. Owen and W. T. Mitchell, for complainant.

      R. P. Edredge, for defendant.
   Christiancy, J.

This was a bill to enjoin the collection of certain drain or ditch taxes, attempted to bo assessed upon the lands of complainant by three persons assuming to act as a Board of Drain Commissioners, which taxes the defendant, as township treasurer, was, by the warrant of the Supervisor of the township, directed to collect.

. Upon a hearing upon pleadings and proofs, the Court below dismissed the bill; and complainant has appealed to this Court.

Several questions were raised and discussed on the argument. One point, however, is, we think, decisive of the cause.

The several persons assuming to act as a Board of Drain Commissioners, were appointed by the Board of Supervisors in 1864, under the act of 1861 then in force (Laws of 1861, p. 452, § 1). They did not, however, organize as a board until the summer of 1867, soon after which their proceedings were commenced for laying out and constructing the ditch and raising the tax in question.

At the time of their appointment as such Commissioners, they were all of them members of the Board of Supervisors which made the appointment. Whether they voted for their own appointment does not affirmatively appear, but they had as much right to do so as the others had to vote for them.

The eighteenth and nineteenth sections of the act provide that, “ For the information of all persons concerned, the said Commissioners shall make a full report in writing to the Board of Supervisors of the proper county, at the next and each annual session thereafter, setting forth as near as practicable:

First. What proportion of the ditches or drains, for the construction of which a tax has been levied, are completed, and the amount paid therefor;
Second. What proportion is under contract and not completed, and the amount to be paid therefor, and whether such contract or contracts are likely to be performed; also the proportion not yet under contract, and the estimated cost of their construction, and whether there is a sufficient amount of unexpended funds, created by such tax, to complete the work;
Third. What amount of such funds had been expended and for what purpose, exhibiting the items of such expenditure as fully as may be practicable; and also, what amount of warrants has been drawn by them against such fund, and shall also report all such other matters in relation to the subject as they may deem necessary, or said Board of Supervisors may require.
“Sec. 19. The Board of Supervisors of the several counties in which Commissioners shall be appointed, shall have full power and authority-to control the action of such Commissioners (and may make any order in relation to such ditches or drains or other matter relating thereto), not inconsistent with the public interests or the rights of individuals (which order shall be binding on such Commissioners); they shall also have power to remove any or all such Commissioners for cause deemed by them sufficient, and to appoint others in their stead with like powers and liabilities.”

It is evident from these sections that the statute intended to give the Board of Supervisors the power, and to impose upon them the duty, as a wholly separate and independent board, to supervise the action of the Drain Commissioners, and to check or restrain any of their action which they should deem extravagant or injudicious. It contemplated the unprejudiced separate action of two separate boards upon all matters on which the Drain Commissioners were authorized to act. This object would be defeated if the Board of. Supervisors could appoint their own members as members of the other board. If these Commissioners could sit in the Board of Supervisors, they might vote upon • the .approval of their own acts. The duties of the two offices were incompatible; and it was no more competent for the same persons to hold both at the same time, than for the same man to hold at the same time the office of Senator and that of a Member of the House in the State Legislature.

Doubtless if a man were elected to both the latter offices at the same' time, be might elect -which he would accept. And it may be urged that the members appointed as Commissioners might elect which office they would hold; might resign the office of Supervisor and act in that of Commissioner. I doubt this, when they are members of the board making the appointment, and the appointment is made before the resignation. But, granting that this might have been done, there is not only nothing to show that it was done,‘but on the contrary, being shown to .have been Supervisors at the time of the appointment, they must, till the contrary be* shown, be presumed to continue such till the expiration of the term for which they were elected.

If, therefore, they could elect, they made their election at the time (by continuing in that office) to hold the office of supervisor; and, having elected once, they cannot elect again.

We think their appointment as Drain Commissioners, and all their action upon which the taxes in question depended, were void.

But it is urged by defendant’s counsel that a court of equity has no jurisdiction to try the validity of these taxes, or to enjoin their collection. In reply to this it is sufficient to refer to the case of Palmer v. Rich, 12 Mich., 414; see also Miller v. Grandy, 13 Mich., 540; Woodbridge v. City of Detroit, 8 Mich., 274; Scofield v. City of Lansing, 17 Mich., 437; and Motz et al. v. City of Detroit, 18 Mich., 495.

The decree of the Court below dismissing the bill must be reversed with costs, and a-decree entered in this Court granting the relief prayed by the bill.

The other Justices concurred.


author: Campbell, Ch. J.

text:
    John Kilgore v. Herman E. Hascall, Administrator of Caroline A. Hascall.

      Deed: Construction of covenants: License: Mowage rights. The plaintiff-grantor of a mill site — covenanted in the same deed, that the grantee might build a dam and mill-race upon plaintiff’s land, and enter for repairs, subject to the proviso that the grantee should not flow back beyond a specified point. The grantee built the dam further down tlie stream, and not on his grantor’s land; and for fiowage thus' caused, which was not beyond the point specified in the deed, the plaintiff brought his actionHeld, that the right to flow was not inseparable from the right to build the dam; and that the grantor bad no just cause of complaint, because the grantee h¿id availed himself of a part only of the rights granted by the deed.

      Heard October 7.

      Decided October 11,

    Error to Kalamazoo Circuit.
    This was an action on the case brought by John Kilgore in the Circuit Court for the County of Kalamazoo, against Caroline A. Hascall, for damages resulting from the erection by defendant of a dam across the stream called “ Big Portage,” below and down the said stream or water course, and below the premises of said plaintiff, and thereby obstructing the natural flow of said stream of water, and preventing the said stream from running through the said premises of the plaintiff as it before that time was accustomed to do, and would have done, had it not been obstructed and hindered by the dam aforesaid, but on account of and by reason of said dam, said stream flowed over its banks and upon the lands and premises above described of said plaintiff, and thereby the said defendants wholly deprived said plaintiff of the use of a large portion, to wit: fifteen acres of his said land, etc.
    The defendant pleaded the general issue. The death of defendant and the appointment of Herman E. Hascall as her administrator, are suggested on the record.
    On the trial, the defendant showed a conveyance by the plaintiff to one Deborah B. Allcott, under whom defendant claims, of a mill site, with certain ffowage rights, which, with the charge of the Court below thereon, are set forth in the opinion of the Court. Under the charge of the Circuit Judge, the jury found a verdict for the defendant; and the judgment entered thereon the plaintiff brings into this Court by writ of error.

      Thos. C. Gutter, for plaintiff in error.

      May & Buck, for defendant in error.
   Campbell, Ch. J.

Plaintiff, Kilgore, brought suit against defendant’s intestate, Caroline A. Hascall, for flowing certain of his lands by means of a dam on a parcel of land further down the stream. The defence justified under a deed from Kilgore which was claimed to authorize the flowage.

Kilgore owned so much of the southeast quarter of section thirty-four, town two south, of range eleven west as lay west of the Kalamazoo and Three Bivers plank road. A stream called Portage Creek ran northerly through these lands, and a branch called the Little Portage flowed easterly through the same tract from near the southwesterly corner, and joined Portage Creek on the premises and near the plank road. One Johnson owned land north of Kilgore and east of the creek. In March, 1864, Kilgore conveyed to Deborah B. Allcott a mill site and water privilege on the Little Portage, which does not come in controversy here, and also certain other rights which were granted in the following language: "Also the same right and privilege to erect a dam at or below the entrance of the Small Portage into the Big Portage aforesaid, and carry the water by a race to where the Portage leaves the land of the grantor, or take the same to the line of land owned by Johnson, and across the said Johnson’s land, if she can obtain the right to do so; also, hereby conveying the right and privilege to make said races, dams, gates, and necessary appurtenances thereto, on, across, and through the land of the grantors, of such width and depth as she, said Alcott, shall deem best, with the like right and privilege now and at all times hereafter to enter upon said southeast quarter when said dams and races are to be or may be built, for the purpose of keeping the same in repair and free from obstructions; and the same right and privilege is hereby given and granted to take earth from the bank of said above described land (southeast quarter), adjacent or near as practicable, when necessary for the purpose of making and keeping said dams' and races in repair by herself or others, but no right is hereby given or granted to flow back the water on the Little Portage further than the north bank of the same, — such dam or dams, races and conducts of water to be made and used for the purpose of waterpower.” The previous description had mentioned dams, gates, and head and tail races, in connection with the other water-power supplied from the Little Portage to the mill on the site granted in that description.

The dam which caused the flowage complained of was built on the Big Portage, considerably further down stream than Kilgore’s north line, and set the water back, but not beyond or up to the north bank of the Little Portage, and there was no race or other work connected with it built on Kilgore’s latid. Plaintiff claimed that there was no right to flow his land unless the dam and races were also built upon it. But the Court held that if the flowing was not unnecessary, and was no greater than would have been caused by building the dam and race on plaintiff’s land, the deed authorized it; that the conveyance was intended to grant a water-power to which the dam and race were mere incidents, and she was not compelled to use all of the privileges granted in connection with the power unless she chose, but might erect the dam on her own premise® instead of plaintiff’s if she saw fit.

The rulings were correct. The dam and race, if built upon plaintiff’s land, would have been of no service to him,, but were only designed to make the water-power available-If the power could be used without imposing this burden on his lands, and without causing any greater overflow, it is manifest that he would, to that extent, be the gainer, and the defendant would only be using a part instead of the whole of the privileges granted. Undoubtedly if the privileges had been granted upon condition that all or none should be used, it would have been competent to make such a stipulation. But such a design cannot be inferred unless the deed requires such an inference. And no such design can be detected in this conveyance. It is very manifest that Mrs. Allcott was only securing the right to use the power which would be furnished by raising the water to the north bank of the Little Portage. It is also manifest that the mill was not to be built on Kilgore’s land, and that if a race was built it might become desirable to cross Johnson’s land with it, so as to reach a point quite a distance down the stream; or in other words it was not supposed or contemplated that the fall on plaintiff’s land alone was enough to furnish the power needed. The dam, under the deed, could be built anywhere on Kilgore’s land between the Little Portage and his north line, and if built at the latter point, of course the race, if any, would be further down on the land lying north. By building the dam further down she did not cause the water to flow back as far as she was entitled to under the grant; and under the charge given, the jury found that the land overflowed was no more than she would have overflowed under any circumstances. The effect of the plaintiff’s complaint is to claim damages because his land has not been injured as much as his grantee had a right to injure it, and because she had not availed herself of all the rights which he had given her. As we find nothing in the deed requiring her to do all of those things which she had a right to do, we are compelled to concur with the Court below, in holding that he has been no more damaged in law than in fact.

The judgment below must be affirmed with costs.

The other Justices concurred.


text:
    Elizabeth L. Chesebro v. David W. Chesebro.

      Practice in the Supreme Court: Service of copies. Copies of affidavits served with notice of motion must be true and complete.

      Heard and decided October 11.

      G. A. Armstrong moves to dismiss the appeal in this case for want of prosecution, — and proceeding to read affidavits in support of his motion:—

      H. A. Shaw objects, — that there was no jurat to the affidavits, copies of which had been served with the notice of the motion.

      Armstrong, in reply: The omission of the jurat was an error in copying; the affidavits were in fact sworn to.
   The Court held that a party opposing a motion had a right to rely on the copies served as true copies; and the copies served in this case being essentially defective, the motion could not be heard.


text:
    Marshall F. Foster v. Milton Alden and William Dean.

      Justices' Courts: Amendments. A Justice of the Peace has no power to amend his record of a judgment, after the day of its rendition, by a change in the name of one of the parties; nor will the presence and consent of the plaintiff, and of the person whose name was substituted for that upon the docket, confer jurisdiction to make such amendment.

      Heard October 4.

      Decided October 18.

    Error to Calhoun Circuit.
    . This case comes into this Court to review the decision of the Circuit Court in rejecting evidence offered to prove that the record of a judgment entered upon the docket of a Justice of the Peace had been amended after judgment, and execution issued upon it, by altering the name of William T. Johnson to Warren T. Johnson; which last was the true name of the party, and the amendment was made by his consent; he and the plaintiff being present when the amendment was made.

      John C. Patterson, for plaintiff in error.

      Thos. G. Pray, for defendant in error.
   Christiancy, J.

This was an action of replevin in the Circuit Court for the County of Calhoun.

The defendant below (plaintiff in error) undertook, in pursuance of a notice filed with his plea, to justify the taking and detention of the property, under an execution issued by a Justice of the Peace on a judgment in an attachment suit, wherein one Parker was plaintiff and Warren T. Johnson was defendant.

The docket, containing a judgment purporting to be rendered in such suit against Warren T. Johnson, the defendant therein, was offered in evidence, but it showed upon its face that the name of the defendant had originally been written “William T.” instead of Warren T. Johnson, and that William had been canceled by drawing a pen through it, and “ Warren” written over it. The record of the cause showed that the defendant did not appear in the case. Proof was offered in reference to this alteration, the Justice stating that the process was issued against William T. Johnson, and ifc clearly appeared from the evidence that all the proceedings and the entry of the judgment was by that name; that the alteration was made by the Justice some two or three weeks, at least, after the entry of the judgment and after one execution had been issued; but that it was made by the Justice. with the consent of Johnson, who suggested the alteration, stating that his name was “Warren” and not William, the plaintiff being present v'hen it was done.

The reading of the docket in evidence was objected to, and it was excluded by the Court. This is assigned for error.

We think this ruling was not erroneous, and that the docket was properly excluded. After the rendering and recording of the judgment, the jurisdiction of the justice to make such an amendment had ceased. A Justice’s Court is not like a court of record, having stated terms. The amendment was made out of Court, and the consent of Johnson could give no jurisdiction to make the alteration. Iiis consent could at most have only the effect of an agreement or contract, not that of a judgment.

The judgment of the Circuit Court must be affirmed with costs.

Campbell, Oh. J. and Ooolev, J. concurred.

Graves, J. did not sit, having tried the case at the Circuit.


text:
    Elon G. Parsons v. The People.

      Evidence; Competency of husband or wife as witnesses in criminal proceedings for adultery. The fact that a criminal proceeding for adultery must be commenced by the husband or wife of one of the guilty parties, does not make the complainant a party to the case; the People and the defendant are the only-parties. Section k8l$ Comp. Lawss (as amended Laws' of 1861, p. 169) which declares that the husband and wife shall not be competent to testify in a proceeding instituted by the husband or wife in consequence of adultery, does not apply to criminal proceedings.

      Heard October 5.

      Decided October 18.

    Error to Branch. Circuit.
    Parsons was charged on the complaint of 'William E. O’Rourke, before a Justice of the Peace, with haying committed the crime of adultery with one Sarah M. O’Rourke, she then being the lawful wife of the complainant. Subsequently the Prosecuting Attorney for Branch County filed an information against Parsons for tbe same offense, on which he was arraigned and pleaded not guilty.
    On the trial the prosecution produced as a witness Sarah M. O’Rourke, the wife of the complainant, William F. O’Rourke. The defendant objected to her being sworn and examined as a witness against him, because she was the wife of the said complainant, and that the laws of the State of Michigan prohibit a wife from being a witness in any action or proceeding instituted by the husband in consequence of adultery. The Circuit Judge oyerruled the objection and allowed the witness to be sworn, to which the counsel for the defendant excepted.
    The defendant was eonyicted, and after sentence he brings the record into this Court by writ of error; the assignment of error being that the Court below permitted the witness, Sarah M. O’Rourke, wife of the complainant, William E. O’Rourke, to be examined as a general witness against the respondent upon said trial, without -his consent and against his objection.

      C. B. Pratt and C. A. Stacy, for plaintiff in error.
    1. At common law neither husband nor wife was admissible as a witness in a cause civil or criminal, in which the other was a party.—1 Greenl. Ev., § 334; Stein v. Bowman, 13 Peters, 223; Davis v. Dinwoody, 4 Durnford & East, 678.

    2. Even in a civil case, brought by the husband, for criminal conversation with wife, she could not be a witness for the husband, though it has been held in some of the states, she might be a witness for him in such a case after a divorce from the bonds of matrimony.—Dickerman v. Graves, 6 Cush., 308; Ratcliff v. Wales, 1 Hill, 63.

    3. But the question here is, What is the rule adopted by our statute? A statute is the declared will of the legislative power. If its language is plain and unambiguous, there is no room for construction, and when an act is conceived in- clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents.—Jackson v. Lewis, 17 Johns., 477; Newell v. The People, 7 N. Y., 97; The People v. N. Y. C. R. R. Co., 13 N. Y., 78; Purdy v. The People, 4 Hill, 384; 25 Maine, 493.

    Apply these principles to our statute. — 2 O. L., § 5858; § 4389, as amended in 1861; Laws 1861, p. 168, § 1; § 48J&; Laws 1861, p. 169, § 4• The law of 1869, page 150, amends this section but does not change it in this regard, but leaves it as by the law of 1861.
    There may be three different actions or^ proceedings instituted by the husband or wife in consequence of adultery: 1. A bill for divorce. 2. A civil action on the case for damages. 3. A criminal prosecution for adultery, under § 5858, Q. L., above cited.
    The word institute, in the law of 1861, means the same thing as the word commence, in G. L., § 5858.—1 Bouvier Law Dictionary, 643.

      Dwight May, Attorney General, for defendant in error.
    I. The wife in this case was clearly a competent witness, (a) The statute refers to a civil action or proceeding where the husband and wife are parties against each other. The wife is in no legal sense a party — she is simply a witness called by the pieople to proye a fact. (5.) Nor is the suit, in any legal sense, instituted by the husband against Parsons. While it is true that the complaint in this class of cases must be made by either the husband or wife (§ 5858, Oomp. Laxos), it does not follow that either institute the suit or haye any control oyer it. The People prosecute; they institute the suit in this class of cases the same as in every other class. There must be a complaint made by some person in every case before a warrant for arrest issues. The only difference in this class of cases is, that the statute names the person who must make the complaint, (e) Nor would the policy of the law exclude her from testifying in the case. All her disclosures are outside the marital relation. The only cases in our reports haying any bearing upon this question are: People v. Thomas, 9 Mich., 814; Grimm, v. The People, 14 Mich., 800.

    II. Perhaps it may be said that the husband could not ■ make a complaint against Parsons without including his wife in the same proceedings. § 5858, Comp. Laws, is sometimes relied upon to sustain this position. Under a similar statute in Iowa it is expressly held that the husband may make complaint against the man committing adultery with the wife of the complainant.—The State v. Wilson, 22 Iowa, 364.

   Campbell, Ch. J.

Plaintiff in error, having been convicted of adultery, ¡alleges as error that the wife of the complainant was allowed to give testimony against him.

He relies on the latter clause of § J¡SJ$ of the Compiled Laws (amended in L. 1860, p. 169, and L. 1869, p. 150) which declares' that “in any action or proceedings, instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify.” In connection with this he refers to § 5858, which provides that “No prosecution for adultery shall be commenced but on the complaint of the husband or wife.”

As the former section forms' part of a series of provisions intended to remove most of the old incapacities of witnesses, it may be best understood by considering the changes actually made, in the light of the old law.

By the common law neither husband nor wife could be examined as witnesses for or against each other when either was an actual party to the litigation, whether civil or criminal. Neither could, without the consent of the other, disclose matters learned through the confidence of the marriage relation, and there were many cases (and perhaps it was true in most) where neither could testify against the interests or reputation of the other, even when not a party.' But this last rule was by no means universal, and in most collateral inquiries, where the judgment could not bind the husband or wife of the witness in any way, the general rule was that such evidence was not to be excluded. And when excluded it was usually because it was against the. interest of the husband or wife of the witness, or calculated to create domestic discord. When' the testimony merely told against the witness, and the other did not object, there was no exclusion generally, unless at the instance of the witness declining to answer privileged questions.—1 Greenl. Ev., § 842; 1 Phil. Ev. (Edw. Ed.), 84, 85, and. notes. Without going at large into the cases concerning other facts, it is laid down 'with almost entire agreement that there is no legal impediment to the wife’s proof that she has been guilty of adultery, when the question arises in bastardy cases.' These decisions began early ;and have never been' departed from. The English and American cases are referred to in Greenl. Ev., § 844 and ■notes, and 1 Phil. Ev., 78, 87, 95, and notes. The same principle has been recognized and enforced in proceedings .against the adulterer in Com. v. Wentz, 1 Ashmead, 269; Com. v. Shepherd, 6 Binney, 283; State v. Crowley, 13 Ala., 172; and in Van Cort v. Van Cort, 4 Edw. Ch. R., 621, a husband was allowed, in a ease where the wife of another had sued her husband for adultery, to prove the act to have been done with the wife of the witness. The Court held that as neither was a party there was no consideration to prevent it, unless adultery was a criminal offense; and as there it was not punishable criminally, the proof was held competent. In Ratcliff v. Wales, 1 Hill, 63, and in Dickerman v. Graves, 6 Cush., 308, a divorced wife was allowed .as a witness in an action by her husband against her seducer for damages. The cases which, contrary to the weight of authority, hold the evidence of husband and wife inadmissible for such purposes, in suits to which they were •not parties, have usually been those, where the exclusion was put on the grounds of domestic peace, which of course oould not apply where the witness was examined by consent, and which would not properly justify such an objection from a third party.

The present case would come within .the course of 'decisions above referred to, unless the statute has created 'Some new rule of exclusion. But when we consider it carefully, we cau find no such intent. On the contrary, we find provisions which would render even the decisions-which have gone furthest in the exclusion of such testimony, inoperative. It may be remarked that none of them have any bearing on the section authorizing the injured party to make the complaint. They all rest on other' grounds.

All of the adverse decisions are rendered inapplicable by §§A?39 and which remove marital disabilities in all' cases civil and criminal, simply providing that neither husband nor wife shall be examined for or against the other' without his or her consent. This leaves the only question to be determined, whether the proceeding by criminal process against the adulterer is a proceeding instituted by the husband, within the meaning of this statute.

It is not presumable that a statute intended to remove disabilities would add new ones — still less can this be allowed, when the disabilities removed cover all the grounds which ever were supposed to justify the exclusion supposed to be retained and enlarged. And neither the language of the statute nor its history will justify this presumption.

A criminal proceeding may be commenced at the instance-of private complainants in most cases, and the fact that in prosecutions for adultery they must be so commenced, does not make the complainant a party in the one ease more than in the other. The complainant is no more than a-complaining witness, and he can neither compel the magistrate, or grand jury, or prosecuting attorney, to sustain the charge, nor assume control of the prosecution when begun-The People and the defendant are the only parties, and it is a stretch of terms to say that the action is instituted by the injured person.

It has always been an aim of the law to favor the' introduction of the most direct and satisfactory proof,, unless some ground of public policy opposed it. But to hold that a statute was designed at the same time to remove all objections of policy, and then shut out the best evidence, is not reasonable.

Moreover, we borrowed this statute to a considerable extent from 14 & 15 Vic., Chap. 99, and while we have enlarged the exemptions as to husband and wife beyond that act, yet in the excepting section under consideration we have introduced language not required in England to exclude criminal cases, but necessary here for that purpose, and not necessary at all unless that purpose was entertained. By the English law husbands and wives could not give evidence for or against each other in any criminal case. Our statute has removed this disability at the option of the parties. The English statute declared that “nothing herein contained shall apply to any action, suit or proceeding, or Mil, in any court of common law, or in any ecclesiastical court, or in either house of Parliament, instituted in consequence of adultery, or to any action for breach of promiso of marriage.”—1 Ph. Pv., JF. This was in England confined to civil proceedings for adultery instituted by husband or wife, because there no criminal liability exists. If we had adopted this section as there enacted, it might have been supposed to include criminal prosecutions also, and if this had been the object of our Legislature, no change was needed in the language. But they changed it by confining the exclusion to actions and proceedings “instituted by the husband or wife,” and the only possible object fpr such a change was to leave the clause, as in England, confined to civil proceedings.

We think the Court below * committed no error in receiving the testimony. The judgment must be affirmed.

The other Justices concurred.


text:
    William N. Delashman et al. v. Ezra Berry, Executor of George A. Kellogg.

      Pleading: Declaration in debt uxwn a bond: Insufficient assignment of breach: What cured by verdict: And what not. An averment in a declaration in an action of debt, upon a bond given on appeal from a judgment of a Circuit Court Commissioner, to the Circuit Court in a proceeding to obtain restitution of premises under § 25, Laws of 1801, p. 466-7, tliaj the defendant “ did not forthwith pay the rent due orto "become due,” is not equivalent to an averment that any rent was actually due; and for that reason the declaration would be demurrable; yet, it contains, nevertheless, such an argumentative statement that some rent was due, or was at least claimed to he due; that, after verdict, proof of this fact may be presumed, and the judgment entered thereon, sustained.
    But where, on such a declaration, the plaintiff’s right to recover depends upon the fact that he has obtained restitution of the premises, an averment that the Circuit Court “ adjudged that the said complainant in said suit have restitution of the premises,” — and the breach assigned, being that the complainant had “ obtained restitution of the same, as aforesaidwould not only be demurrable, but the defect would not he cured by a verdict; because the pleader does not base his right to recover upon the actual restitution of the premises, — which was an essential fact in the condition of the bond, — but upon his having obtained a judgment of restitution; thus claiming that the judgment itself constituted restitution. Upon such a theory there can be no inference of actual restitution; and a judgment founded upon it would he erroneous,

      Statute of amendments: § 5, Oh. 129, Comp. Laws. A fact necessary to be proved to justify a recovery not averred in the declaration, if it be plainly inferable from any fact stated in, or by the case made iy the declaration, will, after .verdict, be presumed to have been proved. Sub. 8 of % hk!9, Comp. Laws, is to be construed as intending to adopt the common-law rule. — Kean v. Mitchell, 13 Mich., 213.

      Heard October 6.

      Decided October 18.

    Error to Branch Circuit.
    This was an action of debt brought by Ezra Berry, Executor of George A. Kellogg, in the Circuit Court for the County of Branch against William K. Delashman, Franklin L. Warren, and Tbomas J. Bridge upon a bond executed by Delashman as principal and the other two defendants as sureties. The declaration recites a proceeding before a Circuit Court -Commissioner, by the plaintiff’s testator against the defendant Delashman to obtain restitution of premises under chapter 150 of the Compiled Laws, a judgment against Delashman, and an appeal to the Circuit Court, on which the bond declared on was given, the condition of which was: “That in case the said George A. Kellogg shall obtain restitution of the premises described in the said complaint, in said suit, upon the said appeal, if the said William N. Delashman shall forthwith pay all the rent due or to become due to the said George A. Kellogg, complainant, for the said premises up to the time when the said George A. Kellogg, complainant, shall obtain possession thereof, together with costs of suit, in prosecuting said complaint and obtaining restitution of the said premises, then the said obligation to be void.”
    The breach of the bond was assigned in these words: “ On the 4th day of April, 1868, such proceedings were then and there had in the said appeal of the said William N. Delashman' in the Circuit Court for the County of Branch, that by the consideration and judgment of the said Court it was amongst other things ordered and adjudged that the said complainant in said suit have restitution of the premises described in the said complaint in said cause, and that the said complainant in said cause do recover against the said William N. Delashman, his costs and charges by him about his suit in that behalf expended to be taxed, and that he have execution thereof; — of all which the said defendants afterwards, to wit: on the day and year' 'last aforesaid, had notice. And the said plaintiff further-says that the said William N. Delashman did not forthwith pay the rent due, or to become due, to the said George A. Kellogg, complainant, for the said premises up to the time-when the said complainant obtained restitution of the. same, as aforesaid, together with the costs of suit-, in, prosecuting, said complaint and obtaining restitution of the. said premises,, which were by the said Court awarded and adjudged against; the said William N. Delashman,” etc.,
    The defendants pleaded the general issue, and. on, tito trial before the Court without a jury, the Court found for the plaintiff, and'assessed his damages at the sum of three hundred and seyenty-one dollars and eighty-six cents; and the judgment entered thereon comes into this Court by writ of error.

      Shipman & Loveridge, for plaintiffs in error.
    I. The declaration shows only a judgment obtained in the Circuit Court. Is that sufficient F Suppose that judgment should be reversed in this Court F In appeals from Justices a judgment in that Court authorizes a recovery upon the appeal bond at once.—Laws of 1867, p. 86, and 2 C. L., § 3866. But this act contains no such language. — See Kershaw v. Gartwright, 5 Burr., 2819.

    II. The bond was conditioned to “ pay all the rent due and. to become dud the complainant for the premises described in the complaint up to the time said complainant should obtain possession thereof? It does not appear that he ever obtained possession of the premises, but only a judgment for their restitution.
    III. The declaration alleges for one breach of the bond' that Delashman did not “pay the rent due or to become due ” the complainant. The rent by the act is to be paid “ up to the time the complainant shall obtain possession ” of the premises.- This of course may be before or after the' trial on the appeal and rendition of judgment of restitution, but the computation of the rent ceases at the time such possession is obtained, whether this be before or after the judgment. This contemplates and renders it a necessity that the breach should show how long the appellant continued in possession, and when the complainant obtained possession, as well as the amount of rent due. Nothing of this appears in the declaration; indeed it does not appear that any rent whatever was “ due ” or had “become due ” the complainant. This is bad pleading, according to all rules. The declaration should show the extent of the breach.—Lynch v. Murray, M How. Pr., 154; Juliand v. Burgott, 11 Johns., 6; Thomas v. Van Ness, 4 Wend., 549; People v. Russell, 4 Wend., 570; Nelson v. Bostwick, 5 Hill, 37, 41; McDonald v. McArthur, 7 How., 745; Cooney v. Winants, 19 Wend., 504; 17 Johns., 439.

      Ashley Pond, for .defendants in error.
   Christiancy, J.

Plaintiff below (defendant in error) brought his action of debt in the Circuit Court for the County of Branch, against the plaintiffs in error, upon a bond given by them, June 23, 1866, in the penal sum of $800, on an appeal by Delashman from the judgment of a Circuit Court Commissioner, giving restitution of certain premises and costs in a proceeding in the nature of forcible entry and detainer, in which plaintiff’s testator was complainant.

The bond was in the usual form, conditioned that, if •the said complainant “ shall obtain restitution .of the premises described in said complaint, upon such appeal, the said Delashman shall forthwith pay all the rent due or to become due to said complainant for said premises, up to the time said complainant shall obtain the possession, together with the costs of suit in prosecuting the said Complaint and obtaining restitution.”

The declaration set forth the bond, and, as required by the statute (Comp. L., Sec. 4509), undertook to assign a breach of the condition. The only breach alleged, however, is in these words: “Nevertheless the said plaintiff in fact says that, after the making of the said writing obligatory, to wit: on the 4th day of April, 1868, such proceedings were then and there had, in the said appeal of the said Delashman, in the Circuit -Court for the County of Branch, that by the consideration and judgment of the said Court, it was, amongst other things, ordered and adjudged that the said complainant in said suit have restitution of the premises described in the said complaint in said cause, and that the said complainant in the said cause do recover against* the said Delashman his costs and charges, by him about bis suit in that behalf expended, to be taxed, and that he have execution thereof; of all which the said defendant afterwards, to wit: on the day and year last aforesaid, had notice. And the said complainant further says that the said Delashman did not forthwith pay the rent due, or to become due, to said George A. Kellogg, complainant, for said premises, up to the time when the said complainant obtained restitution of the same, as aforesaid., together with the costs of suit in prosecuting said complaint and obtaining restitution of said premises, which were by the said Court awarded and adjudged against the said Delashman in the lifetime of the said George A. Kellogg, nor to the said plaintiff, as executor as aforesaid, since the death of the said Kellogg, by moans whereof,” etc.

By reference to the statute (Comp. L., Sec. 4998), and the bond, which is in exact compliance with it, it will be seen that the condition was to pay any rent, due or to become due, up to the time the complainant should “obtain possession of the premises,” with costs of suit in prosecuting said complaint and obtaining restitution of the premises. The declaration does not allege that any rent had become due, nor that complainant had obtained the possession.

The pleader evidently understood that the obtaining of the judgment for restitution and for costs, was the obtaining of restitution and possession referred to by the statute and the condition of the bond, and that no execution of the judgment or actual restitution of the possession was necessary to give a cause of action upon the bond. This is clear from the fact, that the delaration alleges the nonpayment of rent “up to the time when the said complainant obtained restitution of the same as aforesaid,” referring back to the judgment only, as giving a present right of action on the bond; thus, not only omitting to allege an actual restitution of possession, but leaving an implication that there had been 'none, and claiming that the cause of action accrued upon the rendition of the judgment.

It is clear, we think, from the language of the statute and of the bond, that no right of action accrues upon the bond until actual restitution and possession have been obtained. The judgment might be taken to this Court and reversed, in which case there would be no breach of the bond.

Such actual restitution or obtaining of the possession not being alleged, the declaration shows no cause of action, admitting the truth of all its allegations and of all the inferences warranted by the facts stated in it.

But, a trial having been had before the Court below, and a judgment obtained for the plaintiff, all defects are cured which would have been cured by a verdict. And it is insisted by defendant in error, that this declaration would be good after verdict, on the ground that we are to presume that all the facts were proved on the trial which were necessary to support the action. But the rule at common law certainly was not so broad as this. And we think our statute (Comp. L., § 4419, sub. 8) was intended to adopt the common-law rule. We so held in Kean v. Mitchell, 13 Mich., 207, 212, and 213.

The facts, we are to presume after verdict, to have been proved, depend upon the issue made by the pleadings. If a declaration in assumpsit does not formally or informally, or even argumentatively, allege any consideration whatever, but the issue is upon a mere nudum pactum, no consideration will be presumed, because none appears to have been claimed to exist; and the verdict will not cure this ■defect.

But if it contain any allegation from which the Court can see that the plaintiff claimed the existence of such consideration; in other words, if the consideration is informally, or only argumentatively, or inferentially alleged; then, if the defendant do not demur, but choose to go to trial upon the facts, a verdict against him properly authorizes the presumption that a consideration was proved on the trial; and so of any fact omitted to be stated in the declaration; if it be one which is fairly inferable from other facts stated in, or the case made by the declaration.

Thus Mr. Chitty lays it down (1 Chitty’s Pl., 7 Amer. ed., p. 713) that “the particular thing which is presumed to have been proved must always be such as can be implied from the allegations on the record, by fair and reasonable intendment.” The case of Kean v. Mitchell, ubi supra, explains both branches of the rule, though the case itself furnished an illustration of but one. The present case furnishes an example of both. Thus, it is clear from the allegations in the declaration, that the pleader did not intend to allege, or base his right of action upon, the actual restitution or obtaining of possession; and the declaration affirmatively shows, that he claimed that tbe judgment, of itself, constituted the restitution and obtaining of the possession required, as the basis of his action, or breach of the bond. This was the theory of the declaration, and it is quite as reasonable to infer that the Court acted upon this theory and found in favor of the plaintiff upon proof of the judgment alone, as that he required or received proof of the actual restitution or restoration of the possession, which, upon the whole theory of the declaration, was not even inferentially claimed to have occurred. To infer the fact would be to go outside of the declaration and to depart from the theory of the action presented by it. No inference, ¡therefore, can be warranted that this tact was proved. This omission is not, therefore, cured by the verdict nor by the trial before the Court and the'judgment.

■On the other hand the case furnishes an example of the proper application of the rule, in which a fact, omitted or only.argumentatively to be inferred from the declaration, is to be presumed, after verdict, to have been proved. The declaration omits to state that any rent had become due; but in alleging the breach, it asserts that the said Delashman “did not forthwith pay the rent due' or to become due/’ This may be said to be an argumentative statement that some rent was due, or at least an intimation that some rent was claimed to be due, and proof of this fact might therefore be presumed after verdict, had the declaration in other respects been sufficient.

The judgment, therefore, must be reversed with costs in both courts, but no new trial should be awarded,' as no cause of action is stated in the declaration.

But as the Circuit Court might, in its discretion, permit an amendment of the declaration, the record should be remitted to that Court to enable it to exercise that- discretion.

The other Justices concurred.