author: Hhristiancy J.:

text:
    Andrew Ladue v. The Detroit and Milwaukee Railroad Company.

      Mortgage upon land, — morgagec's interest. — A mortgage- of land in this State conveys no title, either legal or equitable, to the mortgagee, but the title-remains in the mortgagor until foreclosure and sale, and the mortgage is hut a security in the nature of a specific lion ibr the debt or obligation to which it is collateral.

      Mortgagees, — how affected by a subsequent sale of the land. —A. mortgage is only a lien or incumbrance upon land to the extent of the debt or obligation that it was given to secure, and when made to secure the mortgagee for liabilities,, which it is optional with him to incur or not for the mortgagor, and the mortgagor afterwards conveys the property by deed, which is put upon records before such liabilities are incurred, such deed is entitled to precedence

      Record of mortgage, —of subsequent deed, —notice. — The record of the mortgage,, in such case, is only notice to a subsequent purchaser to the extent of lia-, bilities incurred prior to the purchase, and such as may be incurred subsequent to the record o,f the deed, will constitute no lien upon the property.

      Heard May 10 and 11.

      Decided July 8.
    Appeal in chancery from Wayne Circuit.
    The facts, so far as they are necessary to an understanding .of the legal questions involved in the case, will be found stated in the opinion.

      G. V. JV. Lothrop, for complainant.
    1. Mortgages given to secure future advances and contingent liabilities, are valid.
    This, though' often contested, seems now satisfactorily established. — United States v. Hooe, 3 Cranch, 73; Shiras v. Caig., 7 Cranch, 34; Conard v. Atlantic Ins. Co., 1 Pet., 448; Lawrence v. Tucker, 23 How. U. S., 15; Leeds v. Cameron, 3 Sumner, 492; Gardner v. Webber, 17 Pick., 414; Commercial Bank v. Cunningham, 24 Pick., 274; Holbrook v. Baker, 5 Greenl. 309; Brinkerhoff v. Marvin, 5 Johns. Ch., 327; Bank v. Finch, 3 Barb. Ch., 297; Labcock v. Bridge, 29 Barb., 427; Thomas v. Kelsey, 30 Barb., 268; Lyle v. Duncomb, 5 Birney, 585; McDaniel v. Calvin, 16 Vt., 300; Seymour v. Darrow, 31 Vt., 122; Soule v. Albee, 31 Vt., 142; Lewis v. Deforest, 20 Conn., 427; Kramer v. Bank, 15 Ohio, 253; Burdett v. Clay, 8 B. Mon., 287; Bell v. Fleming, 1 Beasley, 13 and 490.
    Some of the New York cases hold that such mortgages must, on their face, define or limit the extent of the ¡security. And this doctrine would seem to have retained ¡some hold even as late as Truscott v. King, 2 Seld., 157, But it has been finally abandoned by the Court .of Appeals. — Robinson v. Williams, 22 N. Y., 386.
    And this agrees with the doctrine of this Court. — Mich. Ins. Bank v. Brown, 11 Mich., 271.
    2. Such a mortgage is good for advances made after a subsequent mortgage 'or sale, if made in good faith, without notice. — Gordon v. Graham, 2 Eq. Cas. Ab., 598; Truscott v. King, 6 Barb., 346; S. C. 2 Seld., 157; McDaniels v. Colvin, 16, Vt., 300; Nelson’s Heirs v. Boyce, 7 J. J. Marsh, 401; Burdett v. Clay, 8 B. Mon., 287; Nelson v. Russell, 13 Md., 494, 535: Per Whittlesey V. C. Bank v. Finch, 3 Barb. Ch., 289; Craig v. Tappan, 2 Sandf. Ch., 78; King v. McVickar, 3 Ib., 208; Frye v. Bank, 11 Ill., 381.
    3. The record of a subsequent deed or mortgage, is not notice to a prior purchaser or mortgagee. — Stuyvesant v. Hone, 1 Sandf. Ch., 419; Stuyvesant v. Hall, 2 Barb. Ch., 151; Truscott v. King, 6 Barb., 346; Truscott v. King, 2 Seld., 166, per Edmunds J.; Taylor v. Maris’ Ex’rs, 5 Rawle, 51; Rowan v. Sharp’s Rifle Co., 29 Conn., 325.
    This seems to be held everywhere except in Ohio. — Spader v. Lawler, 17 Ohio, 371.
    There is one case which holds that in a mortgage for future optional advances, it is not a valid security till the advance is made; that as to each advance it is to be treated as a new mortgage, having its origin at the ttime of each advance, so far as that advance is concerned; and that, therefore, as to such advance, it is not to be-treated as made or recorded till the advance is actually made. — Terhoven v. Kems, 2 Barr, 96.
    This case, though not referred to, seems to have been, partially countenanced by Parmenties v. Gillespie, 9 Barr, 86. And the judge, who delivers the opinion, in Boswell v. Goodwin, 81 Conn., 74, suggests that such a doctrine is reasonable.
    In my judgment, the doctrine is not only novel but unsound. It imposes the burthen of notice and vigilance on the wrong party. “To make it the duty of the first mortgagee to inquire before he acts, lest he may injure-some one, would reverse this rule, and make it his duty to do for the second mortgagee what the latter should do-for himself.” — James v. Brown, 11 Mich., 30.
    It disturbs the repose which the registry law intends-to give the holder of a security, which the law declares valid, and of which, by the registry he has given open and public notice to the whole world. Every subsequent purchaser knows that he must consult this registry at his peril; and, such purchaser, if he would prevent further advances on the faith of' such securities, is, in the plainest equity, bound to give notice of his intervening-interest.

      H. PE. Emmons and A. Pond, for defendants.
    1. A mortgagee has no estate in the land. His entire interest is but a chose in action; and no mortgage can be created without a debt, or continued after the debt is discharged. The signing, sealing and recording of a. paper in the form of a mortgage cannot create the relation of mortgagor and mortgagee, until some debt exists, or liability is assumed, to give it vitality. — The King v. St. Michael’s, Douglass, 630; Carburn v. Inglis; 2 Jacobs & Walker, 194, note; Burnett v. Kenniston, 2 Vernon, 401; Richard v. Syms, Barnadiston Ch. Rep., 90. This case is cited in Edwards v. Ins. Co., 21 Wend., 485; Martin v. Mowlin; 2 Burr, 978; Flock v. Longmate, 8 Beavan, 420; The King v. The Inhabitants of Edgington, 1 East, 287; 1 Hilliard on Mortgages, 215; Jackson v. Willard et al., 4 Johns., 41; Runyan v. Merserau, 11 Johns., 534; 4 Kent, 193; Lanev v. Shears, 1 Wend., 433; Jackson v. Bronson, 19 John., 325; Gardner v. Heart, 3 Denio, 232.
    The New York cases, thus far, all arose prior to the statute, taking from the mortgagee the right of ejectment' until foreclosure.
    The following cases were subsequent. — Edwards v. Ins. Co., 21 Wend., 467; Waring v. Smyth, 2 Barb. Ch., 119; Bryan v. Butts, 27 Barb., 504; Bank v. Tallman, 31 Barb., 201; Kortright v. Cady. 21 N. Y., 343.
    It has'been held--.in New York, that the statute taking from the mortgagee the right of ejectment until after foreclosure only affects the remedy and did not “ alter * the law as.to the interest vested in the parties to the-mortgage,” and that the mortgagee, if he once obtained possession by any lawful mode, could not be put out of" possession by the mortgagor, until .payment of his mortgage. — 15 Wend., 248. But it is evident from the above-cases that it would not now be so held. And it is settled otherwise in this State. — See also, Gunn v. Scovill,, 4 Day, 234; Town of Barkhampsted v. Farmington, 2 Conn., 600; Fisk v. Fisk, 1 Conn., 559; Huntington v. Smith, 4 Conn., 235; Leonard v. Bosworth, 4 Conn., 421; Roath v. Smith, 5 Conn., 133; Clark v. Beach, 6 Conn., 164; Porter v. Seeley, 13 Conn., 564; Cooper v. Davis, 15 Conn., 556.

      City of Norwich v. Hubbard et al., 22 Conn., 587.— In this case, Church' Ch. J., p. 594, says: “Although in this' State we have held that, in a strictly legal sense, the mortgagee has a bare title, even after payment of the debt, if the law day had expired before payment, until a release deed is executed; yet this is rather a matter of policy, arising from our recording system than from any other view of it. In truth, the mortgagee has only a lien and cannot be considered or treated as a proprietor or owner of the mortgaged estate.”
    The decisions in Connecticut, then, with this explanation, go quite to the liberal limit established in this State. Bolton v. Ballard, 13 Mass., 345; Swan v. Stevens, 15 Mass., 227; Garton v. Roxborough, 6 Mass., 50; Blanchard v. Colburn, 16 Mass., 345.
    “A mortgage in South Carolina does not convey the legal title, and the fee remains in the mortgagor even.' .after condition broken.” • — Thayer v. Cramer, 1 McC. Ch., 395; 2 Eq. Dig. 294, §22. And see 2 Geo. Dis. 76, Seals v. Corbine; 2 Eq. Dig. 292, §24; and 10 Geo. 6, Renynolds v. The Justices, etc. This, we believe, is the well settled law of Georgia. — Wecks v. Eaton, 15 N. H., 145; Bell v. Morse, 6 N. H., 205; Hobson v. Rolle, 20 N. H, 41; Fenbish v. Goodwin, 25 N. H, 428.

      Sutherin v. Mandurn, 5 N. H, 420. — The opinion in this case is among the ablest in this country at that day. It shows at length nearly all the incidents which have been decided to belong . to the mortgagee’s estate which attach to personalty, and which do not belong to realty. Authorities are cited under each head to verify the argument. It is said it cannot bo sold on execution; .that it will not pass by deed of the realty alone, or without assignment of the debt; that the wife is not dowable-of estate; that it will not pass by a will of real estate; that after assignment of the debt no estate is left in the mortgagee; that it goes to the administrator and not to the heir, and is discharged by payment 'or tender; that the heir must redeem from it; that a settlement is gained by the mortgagor; .and that his interest cannot pass by parol.
    To this list we will here add, that the husband may ■dispose of it as among the wife’s choses in action; that it passes, by assignment not sale; that mortgagor may vote when legal title is necessary for such purpose; may .at Common Law convey a title so that his grantee may receive a release, and that the mortgagee cannot do so. .It passes by a will of personalty. Its transfer is not within the recording acts in reference to real estate; and -to create which does not violate the statute in relation ■to selling pretended titles to realty. It gives no vote when title to real estate is necessary. It passes in all ..cases subject to equities which real estate does not. An alien here and in England may hold it when he cannot .a title to realty.
    This list of incidents belonging to personalty, and which do not appertain to the real estate, might be in- definitely protracted, by simply pursuing the decisions. But enough appears to show that the interest of a mortgagee, his whole interest, is not in any sense real estate. It is but a chose in action, a chattel interest. — Wilson v. Kimball, 27 N. H., 300; 24 N. H., 485, Whittemore v. Gibbs. The same decision was repeated in 36 N. H., 39, Blake et al., v. Williams; Rickett v. Maderia, 1 Rawle, 325; Vansant v. Allmon, 23 Ills., 33; Wood, et al., v. Trash et al., 7 Wis., 566; Webb v. Flanders, 32 Maine, 175; Peters v. Jamestown Bridge Co., 5 Cal., 334; Ord v. McKee, 5 Cal, 615; Crow, et al., v. Vance, 4 Iowa, 434; Sherman v. Sherman. 3 Ind., 337; Cameron v. Irwin, 5 Hill, 272; Ryan v. Dunlap, 17 Ill., 40;. Lucas et al., v. Harris, 20 Ill., 169; Wilson v. Troup, 2 Cow., 230; Armitage v. Wickliffe, 12 B. Monroe, 496; Ellison v. Daniels, 11 N. H, 274; U. S. v. Sturges, 1 Paine, 534; Hughes v. Edwards, 9 Wheaton, 489; Peirz v. Clark, 5 Pet., 483; Paxon v. Paine, 3 Harris & McHenry, 399; Perkins v. Dibble, 10 Ohio, 433.
    The following cases show that the mortgage, the entire -.interest, will pass by parol or delivery of the evidence of indebtedness. — 1 Blackford, 137; 5 Cowen 202; 9 Wend., 410; 1 John., 580.
    That an outstanding satisfied mortgage cannot be setup to -defeat an ejectment. — See 5 Pet., 483; 6 John., 290, Hitchcock v. Harrington; 7 John., 278, Collins v. Forrey; 10 John., 381. That an outstanding mortgage is. not a breach of the covenant of seizin. — 7 John., 476; 2 Cowen, 196. That payment of the debt discharges the mortgage, and that no release is necessary even after the law day has passed. — See 8 Greenl., 278; 5 N. Y., 252;, 1 Cow., 122; 18 John., 110; 14 Mass., 101; 7 Mass., 355; 1 Halstead, 472; 6 N. H., 156; 26 Wend., 541 — where a great number of the English and American cases, are reviewed, and their distinctions ably traced; also, 5 Mass., 237, 233; 12 Wend., 61; 1 Carnes Cases in Error, 69; 5 Johns. Ch. Rep., 452; 18 John., 7; 8 Pick., 522; 16 Pick., 23; 21 Pick., 230; 5 Metcalf, 310; 7 Vermont, 501; 11 Mass., 125, 9 do., 34, 242; 17 Mass., 419; 2, Greenl., 322; 3 Harris & McHenry, 400; 5 Pick., 243; 2 Harris & McHenry, 7; 21 Wend., 483 — where the distinctions taken in Massachusetts between the effect of a tender and a payment are considered.
    The cases in Michigan „are equally full. — Dougherty v. Randall, 3 Mich., (Gibbs,) 585; Carruthers v. Humphrey, 12 Mich., 270; Crippen v. Morrison, et al., 13 Mich.

    Several other decisions, at law and in equity, in this State, apply these principles to other circumstances. No-other tribunal in this country has gone further than this to divest mortgages of the old technicalities, and place them upon a basis where the real intentions of the parties, and the circumstances of modern business, demand.
    There is not one of the eastern, northern or western-States which has not made similar decisions.
    Various questions concerning the original execution, the registry, the assignment, the payment, the enforcement, the discharge, the priority, the equities between assignee and mortgagor, the parties to bills, the effect of foreclosure,, and the multitude of other questions which have presented themselves to the Courts, have uniformly been disposed of in conformity with these doctrines. The history of' their application shows they are not nominal and technical, sustained only in peculiar circumstances; "but that the very essence of a mortgage -distinguishes it in essential, principle from a title, and demonstrates, it seems to us that a mere form or paper writing, recorded to await, the future action of parties in the creation of a debt, which can alone give it vitality, is, not technically only,, but necessarily and substantially, what these numerous cases call it — a simple nullity, a “ shadow.”
    2. One who advances money or assumes a liability under a mortgage, previously made to secure the same, is' deemed in the law to be an incumbrancer only as of" the date when such liability is assumed or advance made. The public registry is notice to -him with the same force and effect as if he had taken a new mortgage security*
    The cases which we think establish this proposition either by express decision or well-reasoned dicta, will be noticed first, and then those, so far. as we can anticipate them, which will be relied upon against us.
    The following carefully reasoned and' well considered judgments we submit as ample to sustain our theory.— Brinkerhoff v. Marvin, 5 John. Ch., 326; 6 John. Ch., 429; Craig v. Tappin, 2 Sanf. Chy., 78; Collins v. Carlisle, 13 Ill., 254; Kramer v. Farmers’ & Mechanics’ Bank, 15 Ohio, 253; Spader v. Lawler, 17 Ohio, 371; Bell v. Fleming’s Executor, 1 Beasley Chy., 13; Shepard v. Shepard, 6 Conn., 37; Crane v. Deming, 7 Conn., 387.
    In this last case a mortgage conditioned that the mortgagor should pay all sums to be advanced by the mortgagee, in- pursuance of a certain bond, is held good. even as to> advances made _ after subsequent mortgages have been executed. The decision is put expressly upon the ground that the mortgagee was bound by his agreement to make the advances, and so his liability was fixed from the date of the mortgage. The pains taken to give the reason in this case shows that, had there .been no such iobligation, the ruling would have been otherwise. See 8 Conn., 215, Hubbard v. Savage; Boswell v. Goodwin, 31. Conn., 74; American Law Register, vol. 12, p. 92.
    Ch. J. Redfield, in a note to Boswell v. Goodwin, citing a portion of the judgments on which we rely, adds his authority to the views we seek to maintain.— Parmenter v. Gillespie, 9 Barr., 86, note (a) p. 88; Ter Hoven v. Kerns, 2 Barr, 96, 1845; Bank of Montgomery's. Appeal, 36 Penn., 170.
    These cases, beyond some inconsiderable dicta, constitute What, under some disadvantages, we have been able to find directly discussing our proposition, and determining it in our favor.
    We now ask attention to the judgments the other way, and the reasons upon which they profess to rest. They will be found wholly inapplicable to our system of -laws. — Gordon v. Graham; 7 Viner's Abridgement, p. 52.
    2 Hq. Cas. Abridged, 598. — This unreported case is the earliest on. this subject. Though decided apparently without much consideration of principles, and though the •confidence of the Judge seems to have been shaken by ‘the importunity of counsel, it remained until very recently, without being overthrown.
    It is cited in the text books as law. — Greenl. Cruise, 1 p. '665; Coote on Mortgages, p. 429.
    Although overruled in England, it is the parent of the 'few erroneous decisions we have in this country in reference to this subject. — Hopkinson v. Ralt. House of Lords, 1861; 7 Jurist, N. S., 1209; 5 Law Times, N. S., 90.
    In this case a mortgage to A to secure a specific sum And future advances, was followed by a subsequent mortgage to B in a similar form -with notice of the prior- mortgage.. Held (affirming the decision of Lord Chancellor Chelms-. ford, Lord Cranworth dissenting,) “that A was not entitled to priority for further advances made by him after-notice of the mortgage to B.”
    The previous case of Gordon v. Graham is here very fully discussed. .Doubt is expressed as to whether it is accurately reported, but the doctrine of the case as re-, ported is overruled, and the law established that the-second mortgagee, on giving notice to the' first, will be-protected against advances made by the first mortgagee, after such notice.
    The case does hot contain any full discussion of the-principles applicable to the point decided.
    There is good reason for requiring a second mortgagee in England to give notice to the first, which does not exist here. In England there is no general registry, and hence • our argument as to record notice would not be applicable there.
    Tacking is founded on the doctrine that the first mortgagee has the legal estate, and that a Court of Equity will not deprive him of this until all the equities he ha¡s are satisfied. — See Goote on Mortgages, p. 410, and seq.

    This doctrine that the mortgagee has the legal estate,, and with it the practice of tacking, have been overthrown, in this country. Hence, all English cases founded on this; doctrine have ceased to be applicable here. — Kent's Com., vol. 4, 175, et seq.

      Truscott v. King, 2 Selden, 147, S. C. Barb., 346. — This case cites the overruled one of Gordon v. Gra-. ham, and the elementary books approving it; and, without one word on the real and only question at issue,, whether the party advancing was a prior or subsequent incumbrancer, goes solely upon the general ground that a record is notice only to subsequent incumbi’ancers. This-, cannot be a precedexxt hex-e, uxxless we return to the. exploded English doctrine xipon which taching depends.

      Robinson v. Williams, 22 N. Y., 180. — This is the last New York case we have been able to find. We have now examined every case in that State which seems to us to bear upon the point under discussion, and we come to the conclusion that the question has never been carefully examined, and that there is no case which, even ‘there,, could be considered as. of much weight against our views.

      Griffin v. Burtnett, et al., 4 Edwards' Chancery, 673.— This case, relied upon to sustain the doctrine of the •complainants, has no such tendency. The party was bound to make the advances. The obligation was absolute. We concede fully that to secure an existing obligation, a mortgage is good, its record notice, and its lien as perfect as though it were to secure a specific sum already advanced.

      McDaniels v. Colvin, 16 Vt., 300. — This decision was made upon the authority of English cases, one of which — Gordon v. Graham, ante — has been expressly overruled in England, and none of which will be claimed to be law here now. It does not profess to ujshold the rule 'irrespective of the cases, but expressly cites and adopts them. The authority of the case is also weakened by the opinion of Judge Itedfield, one of the Judges rendering the decision, and’ afterwards Chief Justice of the Court. He says (Am.- Law Register, vol. 12, p. 91), speaking of the rule laid down in this case: “ that is a rule which exists- nowhere except in Vermont, and will doubtless be overruled there when the Court find a 'convenient case in which to change the rule.”

      Shirras v. Caig, 7 Cranch, 34. — The case is not one •against our position. Indeed, although all we urge be ‘fully granted, the decree in Shirras v. Caig might stand. It is sometimes loosely cited as deciding the general principle that a subsequent grantee must give actual notice. The answer is, there was no record notice in the case, and- therefore the question' of whether, when the advance was made, the record should not be examined, could not arise. Certainly it. was,, not discussed or decided.

      Boioan v. Sharp’s Bifle Company, 29 Conn., 282.— This case does not involve the question we raise. It was not decided that a subsequent grantee must give actual notice, but so wholly inapplicable were the doctrines, this case is cited to sustain, that. it gave the defendant full priority for all his claim, although he had actual notice. Had the instruments been treated as successive mortgages, of course an advance after actual notice of a subsequent incumbrance would not have been allowed.

      Wilson et al. v. Russell et al., 13 Md., 495. — Nothing is said as to whether or not the mortgagees had actual notice of the second mortgage; and no distinction is intimated between the effect,, of such notice and of the record of said second mortgage. The case, therefore, is of no weight.
    We submit that both principle and weight of authority are with us.
   Hhristiancy J.:

The mortgage which the' bill in this case seeks to foreclose, was executed by John Ladue to the complainant and Francis E. Eldred, composing the firm of Ladue & Eldred, on the fourth day of August, 1852, to secure and indemnify the firm against any endorsements which might be made, or liabilities to be incurred by. them as sureties for John Ladue, as well as- for any moneys they might advance for him, according to the condition of a bond to which the mortgage was collateral, and which was of like effect. . There was nothing in the papers or in the arrangement between the parties which bound Ladue & Eldred to make any advances, or to endorse any paper for John Ladue, or to incur any liability for him, nor was tho latter bound to accept any such accommodation. The effect of the arrangement was that such advances and liabilities, if made or incurred, would be purely optional on the part of the mortgagees. This, mortgage was duly recorded on the day of its date. On the ninth day of May, 1853, John Ladue, the mortgagor, sold aud conveyed the mortgaged premises- to* Charles Howard, (through whom the Rail Road Company derive their title,) by warranty deed, which was duly recorded on the ninth day of July, 1853. John Ladue, however, remained in possession, using the premises as before, until his death, December 4th, 1854.

No claim is made for any advances made by Ladue & Eldred to John Ladue, but the whole claim under the mortgage is based upon endorsements made for him by the mortgagees, which have been paid by Andrew Ladue, one- of the complainants, and all these endorsements,, as shown by the proofs, were made some time after the sale to Howard and the recording of his deed. Whatever endorsements were made prior to that time, seem to have been taken up by John Ladue; and it does not satisfactorily appear by the evidence that any of these endorsements, made since the recording of Howard’s deed, were made in renewal of paper endorsed by them previous to that time. No endorsements made prior to the recording of Howard’s deed are in any way involved, and the case may therefore be considered in all respects in the same light as if no such preAnous endorsements had ever been made, especially as it does not appear that at the time of the sale to Howard, or the recording of his deed, there was any existing unsatisfied endorsement, or any subsisting liability, inchoate or otherwise, incurred by the mortgagees for the mortgagor.

The mortgagees, at the time of the endorsements in question, had no notice of' the deed to Howard, unless the record of that deed is to be considered such notice. the deed having been some months previously recorded. The validity of the mortgage, as between the parties, for any amount of advances which might be made, or liabilities incurred under it, after they should have been thus; made or incurred, is not questioned by the defendants; nor is it denied that the record of it would be sufficient notice to subsequent purchasers and encumbrancers, of the amount which the mortgagees might actually have advanced or endorsed for the mortgagor; or, in other words, the amount for which it had become an actual and subsisting security, at the time when the question of notice of the mortgage became material — which, for the purposes of this case, is admitted to cover the period -from the purchase by Howard down to the time of the recording of his deed, the record of which is claimed to be notice to the mortgagees as regards any advances made to, or liabilities incurred by them for the- mortgagor after the recording of the deed. Nor is it denied, that if the mortgagees, by the contracts or arrangements between them and the mortgagor (to secure which, on the part of the latter, was the object of the mortgage,) had been bound to make advances or to endorse for the mortgagor, the record of the mortgage would' have been full notice to Howard, and the mortgage would have been good against him, though the advances were not in fact made or the paper endorsed until after the deed to him and actual notice of that deed to the mortgagees. The defendants also admit that the result would be the same under this mortgage, as to any advances made or paper endorsed by the mortgagees for the mortgagor, before they' had .actual or constructive notice of the sale and deed to Howard; but they insist that, as there was not at the > time of Howard’s purchase or the recording of his deed any debt of the mortgagor, or any liability incurred for him by the mortgagees, absolute or inchoate, nor any obligation on their part to incur such liability, the mortgage was not then an incumbrance in fact or in legal effect: that it could only become such from the time when the advances or endorsements wore actually made; and it being optional with the mortgagees whether they would make any such advances or endorsements; and the endorsements, being made subsequent to the recording of Howard’s deed, the mortgage is, in legal effect, subsequent to the deed, and the record of the deed was notice to the mortgagees of Howard’s rights.

The first question, therefore, for our determination is, what was the legal effect of the mortgage (if any) upon the land, at the time of the recording of the mortgagor’s deed to Howard?

That a mortgage in this State, both at law and in equity, even when given to secure a debt actually subsisting at its date, conveys no title of the land to the mortgagee (especially since the statute of 1843, taking away ejectment by the mortgagee); that the title remains in the mortgagor until foreclosure and sale, and that the mortgage is but a security, in the nature of a specific lien, for the debt, has been already settled by the decisions of this Court. — Dougherty v. Randall, 3 Mich., 581; Caruthers v. Humphrey, 12 Mich., 270; and Crippen v. Morrison, to be reported in 13 Mich. This is in accordance with the well settled law of the State of New York, from which our system of law in regard to mortgages has been, in a great measure, derived. — Jackson v. Willard et al., 4 Johns., 41; Collins v. Torrey, 7 Johns., 277; Runyan v. Messerean, 11 Johns., 534; Gardner v. Heartt, 3 Denio, 232; Edwards v. Ins. Co., 21 Wend., 467; Waring v. Smyth, 2 Barb. Ch., 119; Bryan v. Butts, 27 Barb., 504; The Syracuse City Bank v. Tallman, 31 Barb., 201; Cortright v. Cady, 21 N. Y., 342.

This view of a mortgage is also sustained by several of the English decisions, and substantially this is the more generally received American doctrine, as. will sufficiently appear "by reference to the decisions, most of which have been carefully collected in the _ elaborate brief of the defendant’s counsel, but which are too numerous to be cited here. There are exceptions and peculiarities in particular States, in some of which, as in some of the New England States and Kentucky, the old idea of an estate upon a condition continues to rankle in the law of mortgages, like a foreign substance in the living organism, but is rapidly being eliminated and thrown off by the healthy action of the Courts under a more vigorous application ■of plain common sense. But few of the incidents of this antiquated doctrine are now recognized in most of the States of this TJnion. The title, for nearly all practical purposes, being now recognized, both at law and in equity, as continuing in the mortgagor, and the mortgage .as a mere lien for the security of. the debt. ■ But wherever any vestige of this now nearly exploded idea continues to prevail, in connection with the more liberal doctrines of modern times which the Courts have been compelled, from time to time, to adopt, it seems only to confuse and deform the law of mortgages by various .anomalies and inconsistencies, making it a chaos of arbitrary and discordant rules resting upon no broad or just principle; while,, by recognizing the mortgage as a mere lien for the security of the debt, at law as well as in equity, and thus giving it effect according to the real understanding and intention of the parties, the law of mortgages becomes at once a system of homogeneous principles, easily understood and applied, and just in their •operation.

A mortgage, then, being a mere security for the debt -or liability secured by it, it necessarily results, 1st, That the- debt or liability secured is the principal, and the mortgage but an incident or accessory. — See cases above cited; also, Richards v. Synes, Barnadiston’s, Ch. R., 90; Roath v. Smith, 5 Conn., 133; Lucas v. Harris, 20 Ill., 165; Vansant v. Allman, 23 Ill., 31; Ord v. McKee, 5 Cal., 615; Ellison v. Daniels, 11 N. H., 274; Hughes v. Edwards, 9 Wheat., 489; Green v. Hart, 1 Johns., 580; McGan v. Marshall, 7 Humph., 121; 4 Kents Com., 193; McMillan v. Richards, 9 Cal., 365.

2d. That anything which transfers the debt (though by parol or mere delivery), transfers the mortgage with, it. — See cases above cited, especially Vansant v. Allman,. 23 Ill., 31; Ord v. McKee, 5 Cal., 615; Ellison v. Daniels, 11 N. H, 274. See also Martin v. Mowlin, 2; Burr, 978; Clark v. Beach, 6 Conn., 164; Southern v. Mendane, 5 N. H., 420; Wilson v. Kimball, 27 Id., 300;, 36 N. H., 39; Crowl v. Vance, 4 Iowa, 434; 1 Blackf., 137; 5 Cow., 202; 9 Wend., 410; 1 Johns., 580.

3d. That an assignment of the mortgage without the debt is a mere nullity. — Ellison v. Daniels, 11 N. H., 274; Jackson v. Bronson, 19 Johns., 325; Wilson v. Throop, 2 Cow., 195; Weeks v. Eaton, 15 N. H., 145; Peters v. Jamestown Bridge Co., 5 Cal., 324; Webb v. Flanders, 32 Me., 175; 4 Kents Com., ubi supra; Thayer, et al., v. Campbell, et al., 9 Missouri, 277.

4th. That payment, release, or anything which extinguishes the debt, ipso facto extinguishes the mortgage.— Lane v. Shears, 1 Wend., 433; Sherman v. Sherman, 3 Ind., 337; Ryan v. Dunlap, 17 Ill., 40; Armitage v. Wickliffe, 12 B. Monroe, 496; Paxon v. Paul, 3 Harris & McH., 399; Perkins v. Dibble, 10 Ohio, 433; Buckenridge v. Ormsby, 1 Marsh., 257; Cameron v. Irwin, 5 Hill, 272. (It will be seen from these authorities that, some, if not all, of these incidents or characteristics of a mortgage are recognized by some of the Courts which still hold the mortgáge to be a conveyance of the estate —an idea, however, with which they are utterly inconsistent, as such incidents can only logically flow from the doctrine' that the estate still remains in the mortgagor,, and that the mortgage is but a lien for security of a debt.)

These propositions, being established, the necessary result is, that the mortgage instrument, without any debt, liability or obligation secured by it, can have no present legal effect as a mortgage or an incumbrance upon the land. It is but a shadow without a substance, an incident without a principal; and it can make no difference in the result whether there has once been a debt or liability which has been .satisfied, or whether the debt or liability to be secured has not yet been created, and it requires, as in this case, some future agreement of the parties to give it existence. At most, the difference is only between the nonentity which follows annihilation, and that which precedes existence.

The instrument can only take effect as a mortgage or incumbrance from the time when some debt or liability shall be created, or some binding contract is made, which is to be secured by it. Until this takes place, neither the land nor the parties, nor third persons, are bound by it. It constitutes, of itself, no binding contract. Either party may disregard or repudiate it at his pleasure. It is but a part of an arrangement, merely contemplated as probable, and which can only be rendered effectual by the future consent and further acts of the parties. It is but a kind of conditional proposition, neither binding, nor intended to bind, either of the parties, till subsequently assented to or adopted by both.

Though the question does not properly arise here, we take it for granted, for the purposes of this case, that the mortgage instrument may, if properly executed, go upofi the record, and become effectual between the parties when the debt or liability contemplated shall have been created, unless the mortgagor has, in the meantime, — as he had a clear right to do — parted with the title and deprived himself of the power of creating an incutubrance upon it. But the mere recording of the instrument would not make it a mortgage or incumbrance in legal effect, if it were not so before, nor give it a greater effect as to third persons than it had between the parties. The record of such an instrument might be an intimation that advances and endorsements were contemplated as probable, and that they might, therefore, have been already made: and for this reason might, to this . extent, properly put a purchaser or incumbrancer upon inquiry. But, unless it is to have a greater effect than the record of other mortgages,, it could be notice only of such facts “ as might have been ascertained by inspection of the instrument and papers referred to, and by inquiry; in other words, by a knowledge of the rights of the parties in respect to the land at the time notice became material, which, for the purposes of this case, as already explained, we shall assume to be from the time of Howard’s purchase down to the time when he recorded his deed. The result must, therefore, be the same here as if there ’had been no record. Had Howard made the most diligent inquiry in connection with the inspection of the papers, what facts could he have ascertained? Nothing material to the rights of the parties or to his own rights beyond the facts already stated — nothing which, in any manner, interfered with the mortgagor’s absolute right of sale. He would have learned, in fact, that the ■ instrument recorded as a mortgage was notj in legal effect, a mortgage, nor upon any principle of justice or equity an incumbrance upon - the land; that either party had a perfect right to refuse to give that future assent, or to enter into that future contract or arrangement, by which alone it could acquire vitality or force. He had, therefore, a just right to conclude that the record of his deed would be fair notice to the persons mentioned as mortgagees, as the instrument could only become a mortgage subsequent to that time, and then only by reason of some future debt or liability which It required the further assent and agreement of the parties! to create. He had a right to conclude that, upon every •sound principle, Ladue & Eldred would, as prudent men, be as likely, and ought to b.e as much bound, to look to the record before making any such advances, or endorsing paper for the moi'tgagor, as if a new mortgage for the purpose were to be taken at the time, since they had the same option to make the advances or not, as any new mortgagee would have had, and ought, therefore, to be governed by the same prudential considerations.. And they must be presumed to have known that John Ladue, • until such advances or endorsements were made-by them, had full power to sell the land free from any incumbrance of the mortgage instrument, which had npt. as yet become a ■ mortgage.

But it is urged, on the part of the complainant, that, it was the duty of Howard, on making the purchase, to-give actual notice of the fact to the mortgagees, so that, they might not afterwards be led to incur further liabilities; on the faith of the mortgage. In England, where there: is no general registry laAv by which the record of deeds: and mortgages is made notice to all the world, and the: state of the title cannot therefore be always ascertained! in this way as with us, and where parties, therefore, can only rely upon actual notice, there may be good reason for requiring actual notice in such a case. But upon no principle which I have been able to comprehend, do I think such actual notice should be required in a' case like the present. Nor have I been able to see any just or substantial reason Avhy the record' of Howard’s deed (which Avas long before this mortgage instrument took effect as an incumbrance, and therefore prior in fact and law,) should not be deemed notice to the mortgagees in the same manner, and to the same .extent, as if their mortgage had not been executed or recorded until the time when it became effectual as a mortgage by their endorsements. Within the very spirit and purpose of the registry law, it seems to me, the record of the deed must be held notice in the one case as well as in the ether. The opposite view, it seems to me, rests upon the erroneous idea that the recording of a mortgage adds .something to its validity as between the parties, and that, even as between them, an instrument may be made a mortgage by recording it, which would not have that operation without the record. This, certainly, is not the effect of our registry laws. If Howard could not rely upon the record of his deed for giving notice to these mortgagees, as to future advances or endorsements, without which their mortgage instrument could never become effectual, even as between the parties, then it is difficult to see why he should be allowed to rely upon it as against any person who he might know had contemplated purchasing or taking a mortgage upon the property, and whose efforts or conversations had gone so far as to render it probable to the mind of such person that his preliminary negotiations or conversations might, at some future period, have resulted in a purchase or a mortgage; though at the time of the record of Howard’s deed they had not resulted in any binding contract whatever, and both parties were at liberty to disregard them, without any breach of faith. As to all such persons, it has, I think, been generally conceded that the record of a -deed is sufficient notice. In Craig v. Tappin, (1 Sandf. Ch., 78,) a case cited by complainant’s counsel, it was held that notice that a mortgage was about to be made, is not enough to bind a party with notice of the mortgage. And see Cushing v. Hurd, 4 Pick., 252; Warden v. Adams, 15 Mass., 282,

I have thus far endeavored to show that upon principles resulting from the nature of a mortgage, as recognized here, this mortgage should be considered, in fact and in legal effect, subsequent to the deed, and that the registry of the deed should, therefore, be considered notice to the mortgagees. The authorities upon this question are not so numerous as one would be led to expect; but the few which are to be found are conflicting. I shall first notice those which are claimed to be opposed to the conclusion at which I have arrived. The English authorities upon this question I consider of very little, if any, weight, for the reason already stated, and for the further reason that, for several purposes, a mortgage is there still held to be a conveyance of the estate upon condition, and the mortgagee as having the legal title — a doctrine upon which the right of tacking (never recognized in this State) to some extent depends: tfie legal title coupled with an equity being held to prevail over an equity. — 4 Kent's Com., 117; Coote on Mortg., 410, et seq.; Opinion of Lord Cranworth in Hopkinson v. Ralt, 7 Jurist, N. S., 1209. The latter remark applies also with equal force to the decisions cited from Kentucky.— Nelson's Heirs v. Boyce, 7 J. J. Marshall, 401, goes upon the express ground' that the mortgage conveys the legal title, and that the mortgagee, therefore, is not bound to notice the record of a mortgage subsequently made by the mortgagor, who has only the equity of redemption. It cites Bank, etc. v. Vance, 4 Littell, 173, as supporting the doctrine of tacking upon this ground. Nelson v. Boyce also assigns, as another reason, why the record should not be notice, a provision of their statute allowing sixty days in which to record a mortgage, and says, an examination of the record by the first mortgagee might therefore be of no use. Now it is clear that neither of these reasons for refusing to the record the effect of notice exists here. Of the case of Burdett v. Clay, 8 B. Monroe, 287, (besides the fact that the mortgagee there holds the legal estate) 'it may further be noticed that, though the previously recorded mortgage was in part to secure future liabilities, yet all the liabilities were incurred ' before the subsequent mortgage.. There are some few cases in this country, decided mainly,, if not solely, upon the authority of Gordon v. Graham, (7 Viner's Abr., p. 52, 2 Eq., Cases Abridged, 598,) which can have little influence here, not only for the reason above stated, but because the case itself is no longer law, even in England. This case decided that at mortgagee holding a mortgage to secure money lent, and future advances, (which he was not bound, to make) was entitled to preference over a subsequent mortgagee, even for advances made after notice of the second mortgage. But so far as relates to advances made after such notice, this case was expressly overruled by the House of Lords in Hopkinson v. Ralt, 7 Jurist, N. S. 1209, 5 Laws Times, N. S. 90.

Most of the cases cited by complainant’s counsel against the proposition I have endeavored to establish,, have no bearing upon the particular question we are now discussing. Bank v. Finch, 3 Barb. Ch., 293, only decides that when a mortgage is given to secure an existing debt, the mortgagee does not lose his security by extending the time and taking a renewal note for the same debt. In Craig v. Tappin, 2 Sandf. Ch., 78, the question of notice did not arise, and so far as the reasoning of the Court has any bearing upon the present question, it is in favor of the position I have endeavored to establish. In King v. McVickar, 3 Sandf. Ch., 208, Stuyvesant v. Hone, 1 id., 419, and Stuyvesant v. Hall, 2 Barb. Ch., 151, no question of future advances or liabilities was involved; but the question relating to tb& effect of the record was similar to that decided in this-. Court in James v. Brown, 11 Mich., 25, and decided the same way- — a question so entirely foreign to that we are now discussing as to require no comment.

Eyer v. Bank, 11 Ill., 381, only decides that a. mortgage subsequently executed is entitled to preference over one previously executed for future advances, after notice of tbe second mortgage to tbe first mortgagee. The notice in this case happened to be an actual notice, but the question of the effect of the record, as notice, was not involved nor decided. Rowan v. Sharp’s Rifle Co., 29 Conn., 282, has no bearing upon this question. The title had never been in the debtor, but was conveyed by a third person to, and held by, the creditors, in security for future advances for the debtor, which the creditors had agreed to malee. The decision stands well upon two grounds: 1st. The title being in the creditors and not in the debtor, the creditors were not bound to notice the record of a mortgage made by the debtor, who had no title. 2d. That the advances were not voluntary, the creditors being bound to advance $40,000,. and the balance being advanced to save their interest and to carry the contract into effect. Hence the creditors were allowed priority for all their advances,. though part were made after notice of the mortgage.

In Wilson et al v. Russell 13 Md., 495, the deed of trust, which was in the nature of a mortgage, recited that' the mortgagees had agreed to loan the mortgagors their notes, from time to time, as might be desired, etc. The case seems to . have been decided mainly on the. authority of Gordon v. Graham — the authority of which is recognized, though it was not needed in that case. It does not appear whether there was actual notice of the. second mortgage, and no difference is intimated between actual notice and the record. In Taylor v. Man's Executors, 5 Rawle, 51, the question, so far as regarded the effect of the record, was similar to that in James v. Brown. The judgment was, in legal effect as well as in date, a prior incumbrance, and the mortgage, in legal effect as well as in date, subsequent to it. There were, no future advances in question.

There are, however, two cases (and they are the only ones cited, or which I have met with,) which are directly opposed to the conclusion at which I have arrived, and which go to the point that the record of Howard’s deed would not be notice to Ladue & Eldred. McDaniels v. Colvin, 16 Vt., 300, and Truscott v. King, 6 Barb., 346. (S. C. on Appeal, 2 Seld. 166.) McDaniels v. Colvin rests upon the authority of English cases, among which is that of Gordon v. Graham, which are adopted by the Court as authority. The case expressly holds that the record of the second mortgage could not be held notice, evep as to subsequent advances, under the first mortgage. Judge Redfield’ (afterwards Chief Justice) dissented. See his remarks upon this question (sustaining the views I have adopted) American Law Reg., vol. 12 p. 191. And in the extent and character of the actual notice to be given by the subsequent to the prior mortgagee, this case would not probably now be recognized as law in any Court in this country. Truscott v. King was the case of a judgment to secure a sum due, as well as future advances which might be made, and a mortgage was subsequently made by. the debtor. Advances were made by the judgment debtor after the mortgage was recorded. As decided in 6 Barb., it was held that the judgment took precedence for all advances until actual notice of the mortgage, on the ground that the record is only notice to subsequent and not to prior incumbrancers. In the Court of Appeals, (2 Seld.,) where the .judgment was reversed on other grounds, Judge Jewett, who gives the leading opinion of the Court, does not allude to this point. It is only alluded to by Edmonds J., who says: “It is well settled that a judgment for future advances is good, not only against the debtor, but also against subsequent incumbrancers, at least up to the time When a subsequent judgment or mortgage should intervene. But when such subsequent incumbrance may be said to intervene is not so well settled — whether at the-time it is put upon the record, or at the time the prior incumbrancer has actual notice of it. The Supreme Court, in deciding the case, held that it ought to be only from the time of actual notice, because the docketing of a jiidgment or recording of - a mortgage, was, under the-statute, notice only to subsequent and not to prior incumbrancers. In this, I am inclined to think, the Court was. right.”

Now, it seems to me, the real question which lay at the basis of the enquiry in the above case, and to which that decided by the Court was only incidental and secondary, was, which in legal effect was the prior, and which the subsequent incumbrance, and this depended solely upon the fact when, as regarded the advances in, question, they respectively took effect. Did the judgment, in legal effect, become an incumbrance for such advances before they were made and before there was any agree-ment that they should be made? What were the rela-. tive rights of the parties to the judgment at the time the mortgage was recorded? Could the judgment be enforced as an incumbrance for these advances, by reason of' any rights or obligations existing between the parties at that time ? If not, then, as to these advances, there was no incumbrance at the time the mortgage was recorded, and the incumbrance of the judgment was, in legal effect, subsequent to the mortgage. This, which seems to me to be the main question, is neither discussed nor alluded to either by the Supreme Court or the Court of Appeals. The Court, therefore, in simply saying that the record of the mortgage is notice only to subsequent incumbrancers, assume, as it seems to me, without an attempt to establish, the main point in controversy. There may, perhaps, be some difference, in principle, between a judgment given as security for future advances, and a mortgage given for a like purpose. But if there is not, and if the decision in Truscott v. King is to be considered as equally applicable to a mortgage, then I cannot resist the conviction that it is in direct conflict with the principles which, necessarily result from the uniform course of decision in that State — holding a mortgage to be a mere security for, and incident of, the debt, incapable of a separate and independent existence.

Having examined the cases relied upon by the complainant’s counsel, as tending to controvert the conclusions at which I have arrived, I will now refer to those of an opposite tendency, some of which expressly hold the record to be notice' of the intervening conveyance or incumbrance.

In Collins v. Carlisle, 13 Ill., 254, there was a mortgage, to secure future advances, and a contract subsequent in date and time of record for the sale of the land by the mortgagor, both recorded. It was held, the mortgage was valid for those advances only which were made prior to the recording of the contract. The principle is not discussed, but it seems to be taken tor, granted that the record of the contract was notice as to advances afterwards made.

In Kramer v. Farmers’ and Mechanics' Bank, 15 Ohio, 253, it was held, that a mortgage to indemnify against endorsements to be made for the mortgagor is valid and constitutes a lien, which takes precedence of the lien of a judgment rendered after such endorsements have been made. But, it is said, the lien of a judgment would probably be preferred to the lien of the mortgage for advances made subsequent to the recovery of the .judgment. The liability of the mortgagee had attached before the subsequent judgment, and, therefore, the point was not involved. But in the subsequent case of Spader v. Lawler, 17 Ohio, 371, which was also the case of a mortgage to secure future advances, it was held, that the mortgage -must be postjroned to a mortgage subsequently recorded, but before the future' advances were made, thus directly holding the record notice as to advances thereafter made under the first recorded mortgage; in. other words, treating the first as a subsequent mortgage in reference to advances, made after the record of the second. It is true that one of the grounds upon which the decision seems to be placed, is that the record of the mortgage (for the advances,) ought to give notice of the amount' of the incumbrance.

The first case, so far as I have been able to discover, which fully meets and discusses the question upon principle, is that of Terhoven v. Kerns, 2 Barb., 96. It was the case of a judgment to secure future advances, which were optional; and it was held, 'that such judgment, as to advances made after the rendition of a subsequent judgment, was not a lien as against the latter. The judgments are treated by the Court as standing upon the same grounds as mortgages, and the question is discussed generally. It is held, that a mortgage to secure future advances, which are optional, does not take effect between the parties as a mortgage or incumbrance until some advance has been made- — -that, if not made until after another mortgage or incumbrance has been recorded, it is, in fact, as to such after advances, a subsequent and not a prior incumbrance; and that the record of the subsequently recorded mortgage is notice, as to such after advances, as much as if the mortgage first recorded- had not been executed until- after such advances were made. The doctrines of this case were fully as strongly re-af firmed in Bank of Montgomery's Appeal, 36 Penn., 170. (See also, Parmenter v. Gillespie, 9 Barr, 86, and Note, “a," as to distinction between cases when the mortgagee is bound to make the advances, and when they are optional.) The doctrine of these cases is pronounced reasonable by Sanford, Judge, delivering the opinion of the Court in Boswell v. Goodwin, 31 Conn., 74, and he pointedly asks why such mortgage should not be treated “in all respects as if executed at the time when the advances are made.” But one of the Judges dissented as to this point, and the case was decided upon other grounds.

Judge Redfield, late Chief Justice of Vermont, ably discusses this question in a note to the case of Boswell v. Goodwin, Amer. Law Reg., vol. 12, p. 92, arriving substantially at the same conclusion as that at which I have arrived. And Mr. Washburn (in 1 Wash, on Real Property, p. 542,) says it seems now to be the general rule.

The counsel for the complainant have strong-ly urged the inconvenience which must result, especially to banks and bankers, (who are accustomed to take such mortgages) by requiring an examination of the record every time they are called upon to make such advances under such a mortgage. Like Judge Redfield (in the note above cited) I have not “been able to comprehend” this hardship. It is, at most, but the same inconvenience -to which all other parties are compelled to submit when they -lend money on the security of real estate — the trouble of looking to the value of the security. But, in truth, the inconvenience is very slight. Under' any rule of decision they would be, compelled to look to the record title when the mortgage is originally taken. At the next advance they have only to look back to this period, and for any future advance only back to the last: which would generally be but the work of a few minutes, and much less inconvenience than they have to submit to in their ordinary daily business in making enquiries as to the responsibility, the signatures and identity of the parties to commercial paper. But if there be any hardship, it is one which they can readily overcome, by agreeing to make the advances; in other words, by entering into some contract, for the performance of which, bjr the other party, the mortgage may operate as a security. They can hardly be heard, to complain of it as a hardship that the Courts refuse to give them the benefits of a contract which, from prudential or other considerations, they were unwilling to make, and did not make until alter the rights of other parties have intervened. Courts can give effect only to the contracts the parties have made, and from the time they took effect.

The decree must be reversed, and the bill dismissed; and the appellants must recover their costs in both Courts.

Martin Ch. J. and Cooley J. concurred.

Campbell J. did not sit in ’ this case.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    Richard Horton v. John S. Ingersoll and Edward Saunders.

      Parties to bill of foreclosure. — Although complainant, in a foreclosure suit, is not entitled to make persons defendants who claim, by title paramount to the mortgage, in order to cut off their adverse claims, yet where such adverse claimant is also owner of an interest in the equity of redemption, it is proper to make him a party for the purpose of foreclosing such interest.

      Mortgagee cannot use tax title adversely to regular title. — Taxos due upon mortgaged lands are as much a lien upon the mortgaged interest as upon the equity of redemption; and where one having a second mortgage allows the • 'land to be sold for taxes, and obtains a tax deed, he cannot use such deed , adversely to the first mortgage. It inures to the protection and not the destruction of the regular title.

      Heard July 8.

      Decided July 10.
    Appeal in Chancery from Berrien Circuit.
    The complainant filed his bill on the lVth day of August, 1868, to foreclose a mortgage bearing date September 8, 1856, made by John S. Ingersoll, one of the defendants, and Arnold P. Lane, (since deceased) to the complainant, to secure the payment of $110. The mortgage was duly recorded.

      The defendant, Saunders, was made a party to the bill under the clause which is commonly inserted in such bills, and which is in these words:
    “And your orator expressly charges the fact, that Edward Saunders has, or claims to have, rights and interests in the premises described in said indenture of mortgage, or, in some part or parts thereof, as subsequent purchaser or incumbrancer, or otherwise.”
    The bill was taken as confessed against Ingersoll. The defendant, Saunders, filed an answer setting forth that he was the owner in fee simple of the mortgaged premises, the title to which he obtained as follows, viz.: The taxes being delinquent, said land was sold by the Treasurer of Berrien county,- on or about October 1, 1860, to. Samuel Stratton. And on the ninth day of January, 1862, the Auditor General gave a deed therefor to said Stratton, which deed was duly acknowledged and recorded. That said Stratton afterwards, on or about June 11, 1862, conveyed said premises, by deed, to Kobert P. Saunders, who with his wife, afterwards and on or about the sixth day of August, 1862, conveyed the premises to the defendant, Edward Saunders. Said deeds were duly acknowledged and recorded, and Saunders claimed to be the absolute owner of the premises by virtue thereof, and made no other defense and set up no other claim than that -derived from and through the deed from the Auditor General to Stratton, as above stated. A general replication was filed.
    The complainants proved the execution of the mortgage and notes; the death of Lane, one of the mortgagors ; the amount due on' the mortgage;, a quit claim deed, of Ingersoll and wife, dated September 80, 1856, to said Lane and wife, of the mortgaged premises, duly acknowledged and recorded. A mortgage made by said Lane and wife, of the mortgaged premises, dated 21st of Frebruary, 1851, to Robert P. Saunders, to secure tbe payment of $196, duly acknowledged and recorded. A deed of said premises, made on the 21st day of Septeim ber, 1851, by James Grabam, under sheriff of said county, to James Brown. Tbe deed recited tbe making of said mortgage, by Lane and wife, to Robert P. Saunders, and tbe publication of a notice that tbe premises would be sold on tbe 21st day of September, A. D. 1851, at tbe Court house in Berrien, and that. on said day he, tbe said James Grabam, sold said premises -at public vendue' to said James Brown for $288 58. Said deed was duly acknowledged and recorded, and was, in all respects, in tbe ordinary form of deeds made -by sheriffs at tbe sale of lands, on foreclosure of mortgages by advertisement under tbe statute.
    He also proved a quit claim deed of the premises in question, made by James Brown to Robert P. Saunders, dated 8th of September, 1859, duly acknowledged and recorded; and a warranty deed of tbe same premises from Robert P. Saunders and wife to Edward Saunders, dated August 6tb, 1862,. duly acknowledged and recorded.
    Tbe defendants introduced, in evidence, a deed of said premises from tbe Auditor General of the State of Michigan to Samuel Stratton, dated 9th of January, 1862 which deed recited that a sale of tbe premises was made on tbe first day of October, 1860, by tbe Treasurer of said county, for tbe delinquent taxes of tbe year 1859, and that said Stratton became the purchaser at such sale.-
    Also a quit claim deed of tbe same premises from -said Stratton and wife to Robert P. Saunders, dated June 11th, 1862, and a deed of tbe premises made by Robert P. Saunders and wife to Edward Saunders, tbe defendant, dated August 6th, 1862. These deeds were all recorded.
    Tbe Court below granted a decree for the sale of tbe premises, to satisfy tbe amount due on tbe mortgage.
    Tbe defendant Saunders appealed.

      S. H. Taylor, for complainant.
    1. The equity of redemption of the land in question is in defendant Saunders, for he now holds the title of the mortgagors, Lane and Ingersoll, having aquired the same since the date of complainant’s mortgage. He is therefore a proper party defendant to this suit. — Lansing v. Brady & Gilson, 10 Cal. 265; Chamberlain v. Lyell, 3 Mich., 448; Eagle Fire Ins. Co. v. Lent et al., 6 Paige, 635; Story’s Eq. Pl, §177, §193; 2 Barb. Ch., pr. 174; Corning & Homer v. Smith, 2 Seld., N. Y., 82. Wanzer v. Blanchard et al., 3 Mich., 11.
    The title acquired by a sale of land for taxes has nothing to do with the previous chain of title, nor does it in any manner connect itself with it. It, is the breaking up of all titles and operates not to support but to destroy them. — Lacy v. Davis & McFarren, 4 Mich., 140.
    Whatever title Edward Saunders may have acquired by virtue of the tax title, set up in his answer, being adverse to the title and interst sought to be foreclosed, cannot be litigated in this suit. — Bank v. Walker, 3 Barb. Ch., 438.
    2. But, even if defendant’s tax title could be litigated in this suit, it would not establish a defence to this foreclosure. Robert P. Saunders owned the equity of redemption of the mortgaged premises, by virtue of a deed from James Brown as early as Sej)tember 8, 1859, some months before the taxes of 1859 became due and payable, and the land in question was not sold for the taxes of 1859 until October, 1860.
    Robert P. Saunders could not strengthen his own title, or defeat complainant’s mortgage, by allowing the land to be sold for taxes, and he becoming the purchaser either directly or through a third person. — Page v. Webster et al., 8 Mich., 263.

      JST. Bacon, for defendant.
    1. Saunders claims by no other title than that which, is derived from the deed of the Auditor General..
    The complainant, it is true, attempted to show that he derived title from the foreclosure of a mortgage, made by Lane and wife to Robert P. Saunders, in February, 1851. The only proof of which was the deed of the sheriff to James Brown. This was not enough. He should have, gone further and shown the advertisement and sale. — Barnum v. Carhart, 10 Mich. R., 338.
    2. The deed from the Auditor General cut off and extinguished all prior title and incumbrances. Among them was the mortgage of the complainant. — Sibley v. Smith, 2 Gibbs., Mich. R., 486, 1 Comp. Laws, p. 318, §124.
   By the Court:

The proceeding which was had for the foreclosure of the second mortgage, whether regular or irregular, had the effect to transfer at least the mortgage interest to the purchaser;' and when he deeded to Saunders, the latter occupied the position of subsequent mortgagee as to Horton, who, in foreclosing his mortgage, was entitled to make him a defendant. The fact that Saunders had also become the holder of a tax title can make no difference. Horton has the right in this suit to foreclose all interests derived from the mortgagor subsequent to his own mortgage; and a claim which a party makes adverse to this mortgage., cannot be used to shield and protect one which is not adverse, but subject to it. But inasmuch as the taxes for which the land was sold were burdens which had to be removed, in order to protect the mortgage interest, upon which they were as much charged as upon the equity of redemption, Saunders could not, by purchasing the tax title, obtain the right to use it adversely, and it simply inures to the protection, not to the destruction, of the regular title.

There is no error in the decree, and it must be affirmed.


author: Cooley J.:

text:
    Reuben Wright v. Silas F. Dunham.

      Tax title — evidence to defeat. — The statute, (R. 8. of 1846, p. *118, §109,) makes a tax deed prima facie evidence of the correctness of all the proceedings, and of title in the purchaser; and this presumption of correctness must prevail in its favor until evidence is given of facts which show irregularity. It is not sufficient to prove facts from which an inference of irregularity may be drawn, if such facts are ^consistent with others -which would make the proceedings regular.
    Where, therefore, to show that a tax was erroneously assessed on a part, instead of the whole, of a parcel of laud, the collector’s return was put in evidence, which showed a tax against a part of the land only, but it was consistent with this return that the tax might have been correctly levied on the whole, and a part of tho land thus cleared by payment before the return, it was held that the Court, in support of the deed, would presume such payment.

      Held, also, that the mere allowance of illegal demands, by the board of supervisors the precoding year, was not sufficient to show that illegal taxes were levied, where there was no evidence’ to show that the amounts were included in the tax levy for the year, or that there was not money on hand to pay them at the time of their allowance.

      Heard July 8.

      Decided July 10.
    Case made after judgment from Ionia Circuit.
    Judgment of the Court below was for the defendant. The facts are sufficiently stated in the opinion.

      A. Gould, for plaintiff.

      A. F Bell, for defendant.
   Cooley J.:

This was an action of ejectment brought hy Wright to recover the south-east quarter of section thirty-five, in township seven, north of range seven west — being the Township of Berlin, Ionia County — to which he claimed title under a sale of the same as State tax lands; they having been struck off to the State for delinquent taxes of 1848, and sold to the plaintiff October 6, 1847. By the law in force at the time of this sale, the deed of the Auditor General, given to ' carry it into effect, was made “prima facie evidence of the correctneás of all the proceedings to the date of the deed, and of title in the grantee therein named.” — R. S. of 1846, p, 118, §109.

The defendant sought to rebut the prima facie case made by the déed, by showing that illegal taxes were included in the sum for which the land was sold. To establish this fact, he proved by the records of the board of supervisors that, on March 22, 1842, a contract was made by them with one Elvert to tend a ferry across the Grand River at Ionia, for one year from the 11th day of April then next, for the sum of one hundred and fifty dollars; and that his account for services as -such ferryman was afterwards, and within a year from that time, allowed by the board. He also proved that, on October 5, 1848, the board “voted to raise* fifteen hundred dollars for county purposes for the current year;”' and he showed by their records that the accounts allowed by them during the preceding year, including the allowances to Elvert, amounted to one thousand four hundred and sixty-two dollars and six cents. And it is insisted that the board had no authority to make this contract with Elvert, and that it is a reasonable presumption, from the facts shown, that the amount thus illegally allowed to him was included in the tax levy of 1848.

If, by law, the accounts allowed by boards of supervisors were to remain unpaid until -provided for by taxes raised- the succeeding year, the presumption which the "plaintiff insists upon might be a reasonable one ; but as it was both competent and proper for them to vote in each year such Sum as they should estimate to be necessary to meet the demands against the county for the fiscal year succeeding, we cannot, in the absence of any proof on the subject, conclude that they did not adopt that course. The presumption -which the deed raises in favor of the regularity of all the proceedings must prevail, until the party who assails it has overcome that presumption by evidence which is inconsistent with it. — Lacy v. Davis, 4 Mich., 540; Amberg v. Rogers, 9 Mich., 332. The facts shown in this case are not inconsistent, unless followed up by further evidence, showing that at the time of the allowance to Elvert' the county Avas without funds, and that the amount remained a debt -against the county, and Avas included in the sum Aroted to be raised the folioAving October.

At most, 'the evidence adduced only tends to establish a misappropriation of county funds by the supervisors at the time when the allowances Avere made; and this misappropriation could only affect the tax Wy of the subsequent year, by rendering it necessary to raise a larger amount for other purposes than would othenviso have been required. But if the subsequent tax levy is thereby rendered illegal, it is obvious that the county, by a single misappropriation of money, would lose all power to levy and collect taxes thereafter. "We do not think this result follows, or that the supervisors have any power to disorganize and destroy the county by a Avrongful appropriation of its funds.

The defendant also showed, by the records in the county treasurer’s office, that the whole south half of section thirty-five was returned as one parcel to the county treasurer, for the non-payment of the taxes thereon, while only the east half of it — being the south-east quarter of the section — was sold. And he claims that the sale of any less than the whole parcel returned was illegal, because there Avas at the time no authority of law for either the county treasurer or the Auditor General to receive payment on a part only of any description assessed, leaving the remainder to be sold. We do not think this position well taken. Section thirty-six of the tax law of 1843', (Laws of 1843, p. 72,) provides that the township treasurer, while the roll remains in his hands, “-shall receive the tax, or any one of the several taxes, on a part of every lot ox-parcel of land, or an undivided share or interest, which is clearly defined by the person paying the tax, or on any other interest which the taxpayer' will clearly define; and if the tax on the remainder of such lot or pax-cel shall remain unpaid, the treasurer shall enter such specication in his return to the county treasurer,” etc. Section fifty-one, (p. 77,) provides that, after the delinquent lands are returned, “ the tax shall be received on any interest in any parcel of land, the same as if paid to' the township treasurer under the' thix-ty-sixth section.” It' is appax-ent that the .word “ interest,” as here employed, was designed to cover not merely an undivided interest in the whole of the parcel taxed, but also any exclusivinterest in any portion of such parcel; and that this section conferred upon the county treasurer and Auditor General the same power to receive the tax upon any portion of the parcel assessed which was vested in the township treasurer before his return was made.

The township treasurer’s return was also put in evideiice by the defendant, and, as regards this land, it is in the following words: “ South half of section thirty-five, town seven, range seven, three hundred and twenty acres; eight hundred dollars valuation; three dollars and sixty-eight cents State, county and township tax; six dollars highway tax; two dollars and sixteen cents school tax; eleven dollars and eighty-four cents total tax. The foregoing school tax is on the south-east quarter of section thirty-five.” From this return, if is claimed by the defendant that this school tax is illegal, because it is levied xxpon the south-east quarter only, without any separate valuation of that portion. There might be force-in this objection, were it not for the provisions of section thirty-six, above quoted, by which the township treasurer was authorized not only to receive full payment of all the taxes upon any portion of a description taxed, but also “ any one of the several taxes ” which might be tendered to him. The assessment roll was not put in evidence, but we have a right to infer from this return that a school tax was assessed upon the whole south half of the section, and that some person, while the roll remained in the hands of the township treasurer, paid to him the portion thereof which was chargeable on the south-west quarter. As the return, under such circumstances, would be entirely consistent with a legal assessment, we cannot presume that the assessment actually made was illegal, until something more is shown than is now before us.

It is fhrther objected by the defendant that the de-. scription of the land, as it appears in the township treasurer’s return, is defective. The return describes it as in “town seven, range seven;” when the description should be “ town seven north, range seven west." There are several towns seven,1 range seven, in the State; and if there were nothing else apj>earing on the face of the return to identify the township intended, the objection woiild not be without force. But the return appears upon its face to be for the township of Berlin, in the county of Ionia. And - as the Court is bound to take judicial notice of the political divisions of the State, and there is only one town seven, range seven, in that township, or in that county, the land is conclusively designated, and the description is sufficient for any purpose. .

We have thus examined all the objections made by the defendant to the tax proceedings, and do not find that any irregularity is proved. Facts are shown, from which an inference of irregularity might be drawn, but none of them are inconsistent with the existence of other facts, which, if proved, would establish -¿he correctness of the proceedings; and the presumption of law which the deed carries with it must, therefore, prevail. We think the Circuit Court erred in holding the tax sale invalid on the evidence exhibited.

A further objection to the plaintiff’s recovery was suggested on the argument, namely: That there was- no evidence that defendant was in possession of the premises, when the suit was commenced. The evidence as to possession was the admission of the defendant on- the trial, which is stated in the record as follows: “ The defendant, by his counsel, admitted himself to be- in possession of the premises.” A strict construction of this admission might confine it to the time of the trial, but there can be no doubt that it was understood by the parties at the time to cover the whole ground, and that it was given and received to save the necessity for calling a witness. Such admissions must be construed by the Court as the parties understood them at the time, and not be allowed to be made a trap for him who has in good faith received and relied upon them! The possession which the defendant admitted was possession when the suit was brought, and he must be held bound by his admission, notwithstanding it was not noted down by the Judge with the same literal accuracy and certainty required in pleadings.

The judgment of the Court below is reversed, and judgment entered in this Court for the plaintiff, with costs of both Courts; and the case is remanded to the Court below for further proceedings, and to give the defendant an opportunity for a new trial under the statute.

The other Justices concurred.


author: Cooley J.

text:
    John Buchegger v. Rosa Shultz.

      Agreement to pay debt in gold, illegal. — The law of Congress making treasury notes a legal tender in payment of private debts, was not designed to confer a personal privilege upon debtors, but is based upon principles of State policy; and an agreoment between parties waiving its provisions, and requiring a debt to bo paid in gold, is illegal and cannot be sustained.
    Where, therefore, a person gave his note in 1862 for the sum of $800, providing that $500 of it should be paid in gold; and in a suit subsequently brought upon it, the plaintiff was permitted to show that gold was worth a premium of fifty per cent, in treasury notes, and judgment was rendered for an amount computed on that basis; it was held, that such judgment was erroneous, and should have been simply for $800 and interest.

      Heard May 9.

      Decided July 10.
    Error to Wayne Ciicuit.
    The facts are ■ stated in the opinion.

      J. Logan Chipman for. plaintiff in error.

      James D. Weir and Wm. Gray for defendant in error.
   Cooley J.

Shultz sued Buehegger upon a note given in 1862 for the sum of eight hundred dollars, of which five hundred dollars was to be paid in gold. The Circuit Judge admitted- evidence to show that the ,note was given for money loaned, five hundred dollars of which was in gold, and was agreed to ' be repaid in like money. He also allowed the plaintiff to show that at the time of the trial gold was worth a premium of fifty per cent, in treasury legal tender notes, and rendered judgment against the defendant, computed upon that basis.

The constitutionality of the Legal Tender Act (so called) is not disputed by counsel; hut it is insisted that gold coin, though money, is also an article of traffic in which parties may deal as with other merchandise. And it is also urged that, regarding it as money merely, there is nothing in the law preventing the borrower from Stipulating -for its re-payment in kind, and that when he does so he waives, by his contract, the privilege which the statute allows of payment in a depreciated currency, and becomes liable to pay such damages as the other party actually sustains.

As to the first point, it is to. be observed that the contract before us is not for the delivery of gold, in bullion or by the oirnce, or other quantity, but for’ the payment of so many dollars. It is plain, that by it the parties have not undertaken to deal with the gold as merchandise, but as money. We "recognize fully the faet that gold, as an article of traffic, has its value regulated by the supply and demand, and when dealt in as a, metal simply, the laws respecting moneys and legal tenders do not affect the contracts. But when parties undertake to provide for the payment of their debts in, money, their •, contracts are necessarily made subject to the laws of the country prescribing what is money, and also what shall be the legal equivalent for the specific payment which they may have promised. While, therefore, the considerations which have been urged can have no bearing upon this case, neither is the conclusion we have arrived at to be regarded as questioning the validity of such "contracts for gold as we have alluded to.

And it seems to 'US difficult to press the second point with any force, without at the same time, .assailing the legal Tender Act as unconstitutional. Before the passage of that act, all contracts for the payment of dollars generally were payable in gold and silver, because, by the-statutes then in force, coin from those metals could alone, be lawfully tendered in payment; and as parties, are sup posed to make their contracts in reference to the existing law, all prior contracts were to be construed precisely ag. if the words “payable in gold and silver coin” were incorporated therein. And if all such contracts may now be discharged by legal tender notes to the specified. amount, we ave unable to see why a contract which includes tins stipulation in its terms is not subject to be discharged in the same way.

The rules which govern this case seem to us few ■and simple. If legal tender laws were designed simply to confer upon debtors a privilege, there would be force in an argument that the class to be benefited might waive the privilege by stipulation in their contracts. But these laws are also based in great measure upon reasons of State policy, which sometimes, to a considerable degree, override and disregard individual interests. The act in question was based exclusively upon reasons ■of a 'public character, which, in the opinion of the lawmaking power, imperatively demanded that treasury notes should be made ■ equal in legal value to coin, and parties have no more right to stipulate that them contracts shall ‘not be governed by it, than those of a particular locality have to agree among themselves that this, or any other law passed by the competent authority, shall not be in force- in such locality.

What shall constitute a dollar in money is fixed by national law, which, as respects this subject, is supreme. The Legal Tender Act not only made treasury notes money, but it made them a lawful tender for all private as well as most public debts. In doing so, it made these notes the legal equivalent for gold and silver coin to the same nominal amount. It • is true that at the •stock boards a difference is recognized, and that the holder of the coin may command a premium for it ’in notes; but this fact lias, no bearing upon the question when presented to the Courts, who must be governed by the law, if it has been enacted by competent authority. Moreover, gold and silver coin are seldom of equal value at the stock boards; and it is impossible for any law fixing a like legal value upon several species of money, to prevent fluctuations in them relative' market values, caused by circumstances which no legislation can control. But these circumstances do not authorize the Courts to recognize a distinction between gold and silver, or gold and treasury notes, when the paramount authority has declared their legal value shall be the same.

Assuming, now, that the stipulation for the payment of five hundred of the eight hundred dollars, in gold, is legally binding on the promissor, what is the measure of damages for a failure to fulfill the piomise? The Courts have no power to render a judgment payable in' one species of money only; and, therefore, a judgment rendered upon a note payable in gold cannot be made payable in gold only, but must be for the payment of so many dollars, without specifying the kind. But if it is to be for the payment of dollars generally, then it can be rendered only for the number of dollars mentioned in the note, and interest thereon, since one dollar is legally just as valuable as any other dollar. The legal damages for- a failure to pay five hundred dollars in gold cannot possibly exceed five hundred dollars in any lawful currency ; and when a Court .renders . judgment for ¡any greater damages upon such a contract, it sets aside and disregards the Legal Tender Act altogether.

In the case before us, the Court has not only adjudged one dollar to be worth fifty per cent, more than another dollar, but it has assumed as the basis of its action that its judgment was payable in depreciated currency; whereas' it is payable only in lawful money, whatever that may be. It is no more payable in treasury notes than in gold or silver; and although it may be reasonable to expect that the judgment debtor will pay- in that which he can easiest command, there is no law which authorizes a Court to , act upon that expectation in rendering its judgments. And '.whether the debtor will pay in one or the other will depend upon the law .and the relative value, not when the judgment was rendered, but when payment is made. Congress may at any time repeal the Legal Tender Act; and if it had done so the day after the rendition of this judgment, the defendant would have been liable to pay it in coin, at the rate of one. dollar and fifty cents for each dollar of the coin borrowed, although the judgment was rendered as if there were a legal and fixed right to pay in notes. All contracts for the payment of money are subject to such change in the laws respecting the currency as may he made from time to time by the sovereign power; and the hardships which result are hardships from which Courts have no power to relieve.

The Court below erred in rendering judgment for more than the eight hundred dollars and interest. The judgment must he reversed, with costs, aud a new trial ordered.

The other Justices concurred.


author: Martin Ch. J.:

text:
    The People v. Zephaniah B. Knight.

      Pontiac city charter — Township of Pontiac —Voting.— Sec. 95 of the charter of the city of Pontiac, (Laws of 1861, p.' 365,) which, in effect, provides that the residents of the township of Pontiac may hold their annual meetings in the city of Pontiac, and that the township officers may keep their offices in said city, does not authorize the polls of said township for a general election, to he held in said city.
    Where, therefore, at the general election of 1864, the residents of said township held their polls of election in said city, it was held that the vote of said township was thereby rendered illegal and void,

      Submitted May 12.

      Decided July 10.

      Quo warranto.

    The following are the admitted facts in this case:
    At the general election held in November, 1864, the respondent and one Francis Darrow were opposing can-dictates for the office of Judge of Probate for the County of Oakland. The inhabitants of the township of Pontiac, in said county, held the township .polls at that election in the city of Pontiac, and there voted. Including the vote of said township, Darrow received a majority of the whole number of votes cast in said county for said office; but excluding the same,' the respondent had a majority of the votes, and was entitled to the ■ office.

      Albert Williams, Attorney General, for the People.

      H. C. Knight and Alfred Russell, for the respondent.
   Martin Ch. J.:

At the general election held in November, 1864, the inhabitants of the township of Pontiac, held the polls of election for such township, in the. city of Pontiac, and it is insisted that they had this right by provisions of law. The only provision of law applicable to this case which we find, or to which we have been referred, is that contained in the charter of the city of Pontiac, (Sess. Laws of 1861, p. 365, §95,) which is as follows: “Nothing in this act shall operate to prevent the holding of the annual meetings of the township of Pontiac, nor to prevent the township clerk and other officers of said township from keeping their offices in said city, as though this act had not passed.” Unskillfully as this section is drawn, the obvious intent of the Legislature in this case, unlike other and broader provisions in some other similar cases, (see Laws of 1859, pp. 191, 875,) was to retain to the inhabitants of the township the right to hold their annual township meetings, and for the township officers to keep their offices within the city, and it can be extended no further. Whether this provision conflicts with the constitution or not, we are not called upon to determine under the question now presented. Conceding that the township of Pontiac has the right to hold its annual township meetings in the city, the question still remains, and' is now • presented, whether the inhabitants had the right to hold any other meeting, or any election, within the city than such as is expressly reserved to them by the section above quoted. We think not. The general election is not a township meeting in any legal sense. The law, (1 Comp. laws, p. 88, §2, subdiv. 4,) provides, by express words, that “The words £annual meeting,’ when applied to townships, shall be construed to mean the annual meeting required by law to be held in the month of April,” and'; that, (§2, subdiv. 19,) “The words ‘general election’ shall be construed to mean the election required by law to be held in the month of November,” and provision is made by statute for holding such annual meetings and general election. 1 Comp. laws, §500, and seg.; Id., Ch. VI, p. 102. By the act to incorporate the city of Pontiac, certain territory, before that time a part of the township, was set off from said township, and declared to be a city. The effect of this act, except for the provision relative to annual meetings above quoted, would be tci exclude the township from all jurisdiction over the territory thus cut off, and from holding any meetings within the pity, limits; and it follows necessarily that the township has no rights of holding meetings or elections therein, except such as are expressly reserved to or conferred upon it by law; and whether the Legislature was competent to do this, is not a question submitted to us, and we do not propose to determine it until properly raised and presented.

We think, therefore, that the vote of the township of Pontiac was illegally cast, and that the defendant, Knight, is lawfully in possession of the office of Judge of Probate of his county.

Judgment for defendant.

The other Justices concurred.