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    William P. Campbell v. Agnes Campbell, James Campbell, Jennette Kimball, and Elizabeth Hubbard.

      Implied Trusts. A widow in possession of premises of which her husband died seized procured, without the payment of any new consideration, to be executed to herself a deed of the premises, in order to cure defects in the title under which her husband went into possession. The title thus acquired she will hold in trust for the heirs of her husband, subject to her dower right.

      Declaration in articulo mortis. A declaration by a husband on his deathbed to his wife that, if she pays off the mortgage on his farm and supports the family, the land would be hers, — cannot, even after full performance by her, be supported as a valid nuncupative will, nor as a valid contract.

      Husband and wife: Gifts. A wife, who contributes of her own means to the purchase of land by her husband, who takes the title in his own name, — she not insisting upon any agreement for repayment, or the conveyance of any interest in the land to her, — will, after her husband’s death, be conclusively presumed to have intended the amount of her contribution as a gift to her husband.

      Lessee: Estoppel. A son, being one of a family in tbe occupancy of a farm, to the fee of an undivided part of which he is equitably entitled by inheritance, who takes a lease of the farm from his mother, who had acquired the legal title, — the family still living together on it, — will not after the expiration of the time and the surrender of the possession, be estopped by such lease, to set up his claim to his part of the farm.

      Paying off mortgage: Men fm' advances: Equitable adjustment: Interest as between tenants for life and in fee. Whether a widow who for many years has carried on the farm which belonged to her deceased husband, and had brought up a family of children, during which time she had paid off a mortgage on the farm and had canceled the notes, but afterwards had taken an assignment of it to herself, is strictly entitled to hold a lien on the land for the amount paid by her; Quaere ? But when one of the children, after having arrived at maturity, files a bill for a partition of the premises, equity requires that, as between the widow and the complainant in partition, she should be compensated for her advances to pay off the mortgage; and that she should be allowed interest on the sums she has paid, except as to the proportion which her dower right should bear, upon the principle that while the estate in fee is chargeable with the principal, the life estate should keep down the interest. Interest due at the death of the ancestor, as between the tenants for life and in fee, will be treated as principal.

      Partition: Impi-ovements. When in a partition case between parties who have occupied the premises for a series of years, during which various improvements have been made by some of the parties in interest, the cost and relative value of which, by reason of the voluntary commingling of their accounts for advances and services, it has become impossible to ascertain; the whole subject of improvements will be dismissed from consideration in making the partition.

      Partition: Bights of parties as affected by disclaimer. Where all of the defendants to a partition suit but one object to any partition during the life of the other,— their mother, — and insist upon her right to enjoy the possession of the premises entire during her life, and the right of the complainant to a partition is found by the Court, there can be no partition among the defendants who disclaim the right to it, and the decree must set off the complainant’s interest only, and this subject to the widow’s dower.

      Heard July 13.

      Decided October 11.

    Appeal in Oban eery from Lenawee Circuit.
    Tbe complainant filed bis bill in tbe Circuit Court for tbe county of Lenawee in Chancery, for a partition of a farm of which bis father died seized, having tbe equitable but not tbe legal title, leaving a widow and eight children. By tbe subsequent death of one of tbe heirs — John—-the complainant claims one-eigbtb of John’s interest — one sixty-fourth of tbe whole; and. by purchase of an undivided half of three of his sisters, — the other undivided half having been sold to James, one of the defendants, he claims thirteen and a half sixty-fourths, making in all twenty-two and a half sixty-fourths of the whole, •which he asks may be set off to him. The Court below-made a decree for a partition as prayed for in the .bill; and the defendants appeal to this Court.

      Geddes & Miller and A. Howell, for camplainant.

      A. S. Millard, for defendants.
   Christiancy, J.

This was a bill praying (among other things) for the partition of a certain farm in the township of Franklin, in the County of Lenawee, described as being eighty acres off the north side of the southwest quarter of section seven, in township five south, of range three east; complainant claiming to be equitably entitled to twenty-two and a half sixty-fourths in fee, subject however to the dower of his mother, Agnes Campbell, in the farm, which had not yet been assigned.

The derivation and state of the title was this: John Brears, then the owner of the land, sold, and undertook to convey it to one Benjamin Ayers, in November, 1831. But, by mistake, no sufficient description of any land was inserted in the deed. Ayres, however, seems to have occupied it for years without suspicion of the defect, and without any claim from Brears, who seems to have died in ignorance of the mistake; and in January, 1845, Ayers, in good faith, conveyed the land to Andrew Campbell, the father of complainant, for the price of seven hundred and forty dollars, of which three hundred and eighty-one dollars was paid down, Campbell executing back to Ayers, a mortgage for three hundred and fifty-nine dollars purchase money, upon interest.

Andrew Campbell, ignorant of the defect or want of ■jtitle, went at once into possession, improving the same and residing upon it with, his family until the last of August, 1846, when he died intestate, leaving Agnes, his widow, and eight children, including the complainant, all minors,, John died intestate between 1845 and 1856, without issue, having never been married, and consequently his mother, Agnes, and each of his surviving brothers and sisters became his heirs in equal shares of one-eighth each.

The widow, who still continued to live upon and manage the farm, and brought up her family there (as will be more fully noticed hereafter) having fully paid off the mortgage given by her husband and taken an assignment of it to herself in 1853, afterwards, in 1859, having become aware of the defect in the deed from John Brears to-Ayers, applied to Thomas Brears, the son and sole heir of John Brears, and for a nominal consideration (but without any payment in fact) obtained from him a quit-claim deed of the land to herself, by a proper description. In 1864 the complainant and his brother James, one of the defendants, purchased the right and interest of three of the sisters, Marion, Nancy and Hannah, and took from them a quit-claim deed, paying each of them one hundred dollars therefor.

Complainant claims, 1st. That the equitable title having belonged to his father, and the deed of Thomas Brears to his mother, intended by the grantor only to correct the error in the deed to Ayers, and having been given without any new consideration, ought, in equity, to inure to the benefit of the mother, and all her children then living, according to the respective interests that each of the children would have held if a good title had vested in their father; and that such was the intent of both parties at the time she took the deed. 2d. That the mortgage was paid off and the notes destroyed before it was assigned to her, and that it was paid from the income and avails of the use of the farm produced mainly by the labor of the complainant and his brothers, John and James, and that she was not therefore equitably entitled as against the heirs, to a lien upon, or compensation from, the land for the amount of the mortgage; and 3d, While he does not deny that the farm has been greatly increased in value •since his father’s death, by improvements made and buildings erected, he denies that his mother is entitled to any greater share, or that his share is to be in any respect diminished in consequence; because, as he insists, the improvements were made by him and his brothers, John and James, and claims by his bill, that he himself built the house on the farm at the request of his mother and the other heirs, at a cost of $750, for which he never received any pay (though in his testimony he admits that he had the farm four years by agreement for building a house of specified dimension, but built it larger and put in a cistern); and claims that he and his brother James built a barn, for which he never received any pay.

The defendants, Agnes, James, and the two sisters, who have not sold out, insist in their joint and several answer and in their testimony, that of the amount paid down by Andrew Campbell upon the land, over two hundred dollars was paid by notes which belonged to said Agnes; that her husband on his deathbed gave her the farm, on condition that she should pay off the mortgage and support the family; that she did support and bring up the family at a cost exceeding all the. help rendered by them to her; that she paid the mortgage and had it assigned to her for her own benefit; that the deed was obtained by her from said Thomas Brears, with the intent, and with consent of complainant and the other heirs,' that she should hold the title and have the use of the farm during her own life, they to have their respective shares after her death; that she was equitably entitled so to hold it; that complainant has recognized her title by hiring the farm from her as owner, and occupying it under such hiring at two different times; that complainant during his minority neglected his duty to his mother, being unsteady and disobedient, doing comparatively little for her or the support of the family; that he was fully paid for building the house by the use of the farm for four years under an agreement to that effect made with his mother, and by personal property received of her for the extra expense of building larger than agreed.

And finally, if the Court should find that complainant is entitled to any present remedy, he having no legal title, and being compelled to seek the aid of a court of equity to procure it, he is bound to do equity. And they insist that the mother is equitably entitled to an additional share in the land corresponding to the proportion of the original purchase paid by the notes which belonged to her, the mortgage and interest paid by her, and the increased value of the farm by reason of the buildings and other improvements 'she had put on it, and they aver that complainant was fully paid for the house he erected by four years’ use of the farm under his own agreement with the mother, and for any extras, by personal property, which he received of her for that purpose.

As to the part-payment for the farm made by the notes, which had belonged to the mother, we think the fact that she consented to the transfer of the notes by her husband in payment for the land, and to his taking the title in his own name without insisting upon any agreement for repayment or conveyance of any interest to her, must be considered as conclusive evidence of the gift of the notes to her husband, and without any intention or right on her part, to reclaim on that account, any interest in the land as against him or his heirs. As to the verbal gift of the land by the husband during his last sickness — which appears by the evidence to have been merely a conversation, when the making of a will was suggested to him, he, declining to make one, and saying that if she paid the mortgage and brought up the family, it would be hers,— it is not claimed that it constituted a valid, nuncupative will, nor a valid contract; and we think it was no more than the expression of an erroneous opinion. It can therefore add nothing even to the equitable rights of the widow, which must be determined by the other facts and circumstances of the case.

As to the legal title which she obtained by the deed from Thomas Brears, the evidence shows that the main object in obtaining the deed, and the only object of the grantor in making it, was to correct the error in the deed made by his father to Ayers; that until after the deed was applied for and he had assented to give it, it had not occurred to either of them to whom the deed was to be made for this purpose, and that the Notary who was called on to draw it, first suggested that a deed to a dead man would not be good, and that it could not therefore be made to Andrew Campbell, whereupon the widow suggested that it should be made to her, as she had paid for it; and it was so executed, without any new consideration. And we infer from all the circiimstances, that the widow, though taking the deed in her own name, did so with the idea of securing the rights of the children as well as her own,, without any intention of ultimately claiming the title in fee as against any of them, though, as we think probable, with the intention of holding the land for her own life, and managing the same as she all along had done, and upon her death that her children would be entitled to it; though we think she based this intention and this opinion of her rights, not more upon this deed than upon the idea that she and most of the family seem to have entertained, that the supposed verbal gift of the husband gave her a life estate in the land; and the opinion and wish of all the heirs except, perhaps, the complainant, seem to have been that such were her rights under the deed; and all of them except complainant assented, or, at least, did not object to her holding the title in this way for her life. None of them, however, seem to have formed any very definite idea of what their legal rights were, all being willing that she should continue in the possession and use of the farm, and that all should continue to live together as one family, of which she was the head, as long as they chose to remain with her; a wish in which the complainant also seems to have participated, until he got into a quarrel with his mother just before the institution of this suit.

It is quite clear that at the time complainant and James purchased the shares of their three sisters, those sisters understood they had no right in the land during the life of their mother, and that complainant so represented to them; and the price given to the sisters, which was not to exceed one-third of the value of their interests, if they held in fee, confirms this idea. And James, who was a co-purchaser with complainant, testifies that such was his view of his mother’s rights and those of the heirs; and he and his two sisters, who had not sold out, insist in their answer upon the right of their mother to hold the farm for her life under the Brears deed.

But whether they are or are not now estopped to claim in this suit as against her any interest in the land, except the reversion subject to the life estate, I can discover no satisfactory evidence of the complainant’s assent to his mother’s taking the deed in her own name, and for her own exclusive benefit, nor that he has given any irrevocable assent since the ■ deed, that she should, as against him, hold the whole estate for her life. And I do not think his having hired the farm of his mother and occupied it under her (which will be more fully noticed hereafter), can be allowed to estop him from claiming his right to the land. This was not an ordinary letting, as between lessor and lessee as mere strangers, but an amicable family arrangement, by which the family continued to reside and have their support on the farm, both and all parties living and working together as one family, an object, we may well suppose, which operated with complainant as part of the inducement to enter into the arrangement. He would not, therefore, under such circumstances, be so likely to insist upon his interest in the farm, and might well choose to forego, for the time being, any assertion of his individual rights, and be willing to make the agreed compensation for the use of so much of the farm as did not belong to himself without saying anything of his own title. Under such circumstances, therefore, and especially after the arrangement has been executed and fulfilled, and he has restored the possession to her, we cannot consider him as estopped from setting up his claim to a share in the farm. And, subject to such equities as his mother and the other heirs shall be found entitled to, we think his equitable rights are the same as if his father had died seized of the fee subject to the mortgage.

But as the legal title is vested in the mother, and he is obliged to call for the aid of a court of equity to obtain the legal title to his share, he must submit to do equity, and can only have relief upon the terms of allowing to the mother and the other heirs all the equities in their favor growing out of all the circumstances of the case. We must therefore consider what these circumstances are, as disclosed by the evidence.

At the death of the husband, the widow was left with a family of eight children upon her hands, the eldest, John, being between seventeen and eighteen years old, Marion about fifteen, complainant twelve, Nancy ten, Hannah eight, James six, Jennette three, and Elizabeth less than one year. Her husband had left some debts unpaid. He had also left personal property, consisting of farming implements, horses, cattle, sheep, hogs, hay, and grain (mostly growing), to the value, altogether, of little over three hundred dollars, all of which, if administration had been had, would, after payment of the debts, have been exempt to the widow. He left also the farm, a small part only of which was improved, and subject to the mortgage of $359 with the interest, with a poor log house or hut, and no barn upon it. There, was nothing deserving the name of furniture; and the family were in want of clothing and bedding,, and the ordinary comforts of life.

Such were the slender means with which the debts' and the mortgage on the farm were to be paid, 'and the family to be brought up and supported by the widow. The task was one from which an able-bodied man, though stimulated by the strong motives of parental attachment, might well have shrunk. But with a self-sacrificing devotion which no mere pecuniary compensation could ever stimulate or reward, and of which a mother alone is capable, she nerved herself to the task, and after years of unceasing effort accomplished it.

Wisely, as the result has shown, she determined to avoid the expense of administration. She paid the debts,, paid and took up the mortgage, and with such aid as the older children, and the others in course of time could give her, she raised and supported the family, till the ¡daughters were married and the sons arrived at maturity,, and were able to make their way in the world. To accomplish the result, she worked incessantly, in doors and out, taking in sewing, making straw hats, and turning her hands and those of her children to any work which offered, living as cheaply as possible, economizing in every way, and managing most judiciously to turn everything to account. All the children, except the complainant, seem to have been dutiful and industrious. He, to say the least, was less so, often disobedient to his mother, irritable and sometimes querulous, leaving home when his services were needed there, and working at other places, yet contributing from his earnings something to the common support. John, the older son, was the main assistance to his mother, until she had succeeded in paying the debts and the mortgage; the complainant, from the death of his father until the death of John, not having, as we judge from the evidence, contributed as much to the aid of his mother as she had expended for him.

Shortly after the death of John, complainant, about the time he became of age, made a contract with his mother for the use of the farm for four years, he to have as his own, all the horses and live stock on the farm, with certain specified exceptions, the use of all farming implements, etc., and the labor of his younger brother, James, and the family to have their living from the farm, all living together, as one family; and, in consideration of what he could make beyond the support of the family in this way, he was to buid a new farm dwelling-house of specified dimensions. This agreement was performed. He built the house considerably larger than agreed, painted it and put in a cistern. But, on the other hand he was paid by his mother, in stock and otherwise, more than originally agreed, and, as she claims, all the excess of cost. He, however, denies that the whole was paid, though he admits the agreement and the four years’ use of the farm.

After the expiration of this four years, the farm was rented by the widow to her son-in-law, Ostrander, for one year; and soon after the expiration of the latter time, she again let it to complainant and his brother James, for no definite period, they also to have the use of the stock and personal property; and to support the widow and the two younger girls, who were to keep house and assist them in carrying on the place.

Under this arrangement they kept the farm near seven years, and seem to have given it up in the fall of 1866 or the spring of 1867, dividing with the widow the crops then growing on the ground, or attempting to do so. But in the spring of 18fi7, ivhen complainant seems to have left the house, he got into a quarrel with his mother about certain property in the cellar and crops on the ground, and then, for the first time, set up a claim of right in the faina as against his mother, and threatened to bring suit against her.

While he and James had the farm under their arrangement, they had built a barn upon it, which by the arrangement they were not bound to do, and for which it is not claimed they received any compensation, except the use of it while they had the farm.

These improvements are still upon the land and give it an increased value, but whether to the full extent of their cost, we are not informed by the evidence. But if either party (the widow and .the other heirs who are defendants, on the one side, or the complainant on the other) has contributed more to the improvements than the other, in proportion to their respective interests, then, upon equitable principles, the inequality should be adjusted in the partition, if any certain and intelligible basis can be discovered by which this can be done.

By their answer, the defendants, James, Jennette and Elizabeth have, we think, estopped themselves from claiming in this suit as against their mother, any income from, or control over this property during her life, and have consented and insisted that she should have the benefit of all the proportion they might have had in the use of the farm for the four years when complainant had it for building the house, and any share they might have had in any part of the consideration given to complainant.

The result, I think, is the same, as if at the time he built this house, he had already become the owner of the interests, since obtained from the three sisters. And, as the house was made larger, and the cistern constructed with the approval of the mother, this may be taken as a part of the agreement, except that he was to be compensated for any excess in the improvements made beyond the cost of such house, as was specified in the agreement, in addition to the compensation there provided.

But these improvements were to be made on the farm, of which he then owned one-eighth and one sixty-fourth, and has since obtained thirteen and a half sixty-fourths, with the same rights, as if he had owned the latter when the improvements were made. These improvements, therefore, must be held to have been made for the common benefit of the property, of which he owns twenty-two and one-half sixty-fourths, and bis mother (as above explained for the purposes of this suit) forty-one and a half sixty-fourths; and each should equitably contribute to them in this proportion.

If, by the understanding of the parties, the improvements originally contracted for, or those actually made were to have been, or were, actually paid by the use of the farm alone, (which must be treated as the common property of the widow and the complainant, in the proportions just stated) the case would be very clear; for then the share of each would have contributed in its due proportion. But as the use of the farm alone was only a part of the consideration, even for building the smaller house of which the specifications were stated, and he was to have and did have in addition, by agreement, certain stock and other personal property, and the use of the farming implements, and the labor of his brother James, which enured to' his mother’s benefit, and she also gave him, to apply on the extra expense, certain other personal property; it would seem equitable that she should be allowed for this, or or rather so much of it as, with her proportionate, share of the use of the farm, exceeded her due proportion of the whole expense. ■

But precisely here, in my view, arises the difficulty. There were several considerations for the single contract of complainant for making the improvement, and it is impossible to ascertain the relative value or importance of each in the minds of the contracting parties, or either of them; how much the use of the farm was estimated by complainant to be worth to him, or what his mother valued it; how much the use of the personal property, the labor of James, etc., and the relative value of each. The contract was silent upon this point. The parties had jumbled all the considerations together as one and entire; and we •cannot apportion, nor could the evidence of witnesses enable us to apportion the various considerations, assign the separate and relative value to each; and say how much was paid by the use of the farm- alone, without making, in effect, a new contract to which it is by no means certain the parties would have assented; especially, as the improvements were to be made upon the farm, of which each had a share. There is another point connected with these improvements and the consideration which complainant was to receive as the inducement, which must not be overlooked. From the nature of the case, as already noticed, we may well suppose, in this amicable family arrangement, the keeping the family together on the farm, and their common support there with the complainant, was a part of the consideration and of the inducement, as well to the complainant as to his mother. It is difficult to measure the relative force of this inducement, though we should be satisfied, that without it, neither the complainant nor his mother would have entered into the arrangement.

While, therefore, as far as I can judge from the evidence, the widow probably paid something beyond her share towards these improvements, there is no safe or intelligible legal or equitable basis, under the loose arrangement made by the parties, by which the excess can be calculated or ascertained. I think, therefore, nothing can be allowed to the widow for these improvements.

But this is the less to be regretted, because she has had the use of them, and because the complainant’s claim for half the expense of building the barn, is also subject to a like infirmity.. He and his brother built it while they had the farm for an indefinite period. They were not bound to build it, nor does there seem to have been any request of the mother to that end. From the evidence we are satisfied, that much, if not the whole of their inducement for its erection was the use and convenience they expected to derive, and did derive from it, while they held the farm on the terms of the agreement. The uncertain equity, therefore, in favor of complainant, connected with the barn, may be considered to balance a like uncertain equity in favor of the widow with respect to the house. At all events this — owing to the loose mode in which the parties dealt with each other — is the only disposition we can well make of it. As to the improvements made by clearing up the farm, the evidence shows but very little. We judge from it that they were principally made while the widow carried on the farm, before she let it to complainant, and some small portion afterwards; and they may reasonably enough be considered as having been made from the income of the farm itself, and though mostly at the expense of the widow, yet she has had the benefit of them, which we judge from the nature of the case, must by this time, have been an adequate compensation. This disposes of the question of improvements.

As to the mortgage paid by the widow, it is unnecessary to determine whether she, having paid off the mortgage and canceled the accompanying notes or evidence of the debt before the mortgage was assigned to her, could acquire or continue strictly a lien upon the land for the amount; since complainant is compelled to ask the aid of a court of equity to obtain from his mother the legal title; and the Court, according to the recognized principle in such cases, are bound to give him that relief only on the condition of his recognizing all the equities in her favor. And I think she is equitably entitled to compensation for the mortgage paid by her, except such proportion thereof as should be borne ratably by her interests inherited from her son John and her dower (so far as the latter is chargeable with the interest upon the mortgage as explained below).

The mortgage was a lien upon the whole property, and all except the portion corresponding to her own interest was so much money paid to the use of the other part owners and to remove a lien upon their interests, and complainant on partition should make good to her, his proportion, twenty-two and a half sixty-fourths (being the sum as stated below as now due) either by way of money compensation, 'to be paid before the commissioners proceed to set off his share, with interest from this date, on the sum stated below as his proportion of principal, on account of the mortgage, or by having a corresponding amount in value of the land deducted from his share on partition, at his option.

In estimating complainant’s share of the encumbrance, it is not necessary to notice particularly the other shares of the land held in fee, but as between the owners of the fee and of a life estate in the same encumbered property, it must be remembered that the life estate is to keep down the interest, as its share of the incumbrance, and the fee is to be charged with the principal.—Saville v. Saville, 2 Atk., 463; Shrewsbury v. Shrewsbury, 1 Ves. Jr., 233; Warley v. Warley, 1 Bailey Eq., 397; Mosely v. Marshall, 27 Barb., 42; 4 Kent’s Com., 74 to 76; except, perhaps, where the rents, or use of the property, is less than the interest (Kensington v. Bouvierie, 31 Eng., L. & Eq., 345), which clearly was not the ease here.

The widow had from the death of her husband a life estate in one-third of the premises as her dower, and must be charged with the interest on one-third of the encumbrance from the death of the husband. The fee must pay the whole principal and two-thirds of the interest, and must also be charged- as principal with all the interest which had accrued before the death of the husband, when the life estate commenced.

The widow having paid the whole principal and interest^ is, as between herself and the other owners of the fee, to be allowed to treat the two-thirds of the interest paid by her on account of the fee, as so much principal from the time the respective installments became due, and to charge interest on the same from such respective times.

The complainant’s twenty-two and a half sixty-fourths of the encumbrance paid by her, calculated upon these principles, amounts at this date to three hundred and twenty-five dollars and twenty-one cents, and the amount of principal (included in the above), upon which he is to be charged with interest until his election is determined, and to be added to the above, is one hundred and sixty-eight thirty-eight-one-hundredth dollars.

The decree in the court below was for a partition setting off the shares of all the heirs, as well as that owned by the widow. But I am at a loss to discover upon what principle this can be done, where all the other heirs having an interest are defendants, and have joined with the mother in asserting, by their answer, the right of their mother to the whole land for life, insisting upon her right so to hold it, and objecting to any partition of it during her life. Shall the Court force their shares upon them against their will? As between those heirs and the widow, this, it seems to me, is as complete a disclaimer of all right to the land till after her death (so far as this suit is concerned), as if they had given her a quit-claim deed of a life estate.

Complainant’s share should be so set off as to leave one-third of it to be designated by metes and bounds, subject to his mother’s life estate therein, as her dower in his share of the estate.

The decree of the Court below must be reversed with costs in this Court, and a decree entered in this Court in accordance with the principles above laid down, and the record must be remitted to that Court for such further proceedings as may be necessary to carry this decree into effect, and for a final decree in partition.

The other Justices concurred.


source: Caselaw Access Project

author: Graves, J.

license: Public Domain

text:
    Harvey B. Hall v. The People.

      Evidence: Public records. Writings are not admissible in evidence as public records, without proof of their official character. The recitals, contained in them of the character of the officers whose acts they arc offered to prove, are not evidence for such purpose.

      Variance. In proceedings under the statute to remove a public officer upon .charges, evidence of acts performed by the accused as “Moderator of School District No. One,” is not admissible to prove a charge against-him as “Moderator of School District No. Two ;” and when on the trial of an information for falsely assuming to act as Moderator of School District No. One, evidence had been produced of the proceedings before the Township Board to remove him upon charges recorded against him as Moderator of School District No. Two, it is not admissible to show that the record was a mistake, and that the charges were actually preferred against him as Moderator of No. One.

      Criminal law: Intent: Construction of Comp. X., § 5837. The Btatufce authorizing a criminal prosecution against a person taking upon himself to officiate in an office or place of authority, was not intended to apply to a case where, in good faith, and during a real controversy as to the title, the accused continues to act in an office to which he has been chosen.

      Heard October 4.

      Decided October 11.

    Error to Calhoun Circuit.
    The plaintiff in error was charged upon the information of the Prosecuting Attorney of Calhoun County that he, “on the 18th day of December, in the year one thousand eight hundred and sixty-seven, at the township of Sheridan, in the county of Calhoun aforesaid, did falsely take upon himself to act as.Moderator, and in the office of Moderator of 'School District No. One of said township of Sheridan, said office of Moderator being an office and place of authority, contrary to the form of the statute,” etc. The information contained a second count, charging the same offense, with a difference only as to the time, which was alleged to he on the second day of December, in the year one thousand eight hundred and sixty-seven, and from said day until the first day of February, in the year one thousand eight hundred and sixty-eight, and on each and every one of said days.-
    On the trial, the Prosecuting Attorney having offered evidence tending to show that defendant was Moderator and acted as such of School District No. One in Sheridan in the year 1867, and that a movement was made by the Town Board in November of that year to displace him, produced a record book, and gave evidence tending to show it to be the public record book of the township of Sheridan, and offered to read so much of the same in evidence as referred to the movement of said Board in respect to the removal of the defendant from said office of Moderator. The complaint considered by the Township Board is entered on the book as the “Complaint against Harvey B. Hall, Moderator of District No. Two, for illegal use of public money.”
    To the reading of the same in evidence, the defendant objected on the ground that the same was irrelevant to the issue, and incompetent testimony; that the proceedings did not appear to be founded on any complaint against the defendant as Moderator of School District No. One of Sheridan; that the said record did not appear to be a record of any legal proceeding against the defendant as Moderator of District No. One, nor against the Moderator of School District No. One of Sheridan.
    Thereupon, the plaintiff, for the purpose of explaining the said record, recalled David Verplank, by whom he proposed to prove that he made a complaint against defendant, on which he was brought before the Town Board of Sheridan,'and to whom he put the following question, to wit: Did you make a complaint against, the defendant, on which he was brought before the Town Board of Sheridan ?
    It being admitted that said complaint, if any, was in writing, the defendant objected to the introduction of the evidence, on the ground that the same was incompetent testimony, and not the best evidence, but the Circuit Judge overruled the objection, and allowed the evidence to be admitted as preliminary and the witness answered “ Yes ;” to which decision of the said Circuit Judge the defendant, excepted. The counsel for the plaintiff for the same purpose propounded the following question to said witness: In your complaint did you complain of defendant as Moderator of' School District No. One, or Two ? To which question, and the introduction of the evidence, the defendant objected on the same ground. The Circuit Judge overruled the objection, and admitted the evidence, aud the witness answered, “District No. One;” to which decision of the said Circuit Judge the defendant excepted.
    ' The Circuit Judge charged the jury:—
    “That it is for the jury to say, under the instruction of the CoUrt as to the law, whether defendant acted against the law in assuming to act as Moderator of District No. One. Where a man commits an unlawful act, unaccompanied by any circumstance justifying its commission, it is a presumption of law that he has acted advisedly and with intent to produce the consequences which have ensued. That the prosecution had endeavored to show that defendant once held the office of Moderator and was removed, and that to support it, various documents had been introduced. That the record stands here as conclusive evidence of all it contains. It is for you to determine whether he gave the notice; if you believe he gave the notice, it would be one act within the statute. There is proof before you going to show that on the 14th of December he appeared and presided. If you believe he presided, then you have-another act for which he would be responsible within the-statute. It is claimed that the party should be shown to act with inteut to act falsely. If he acted without authority, then the presumption of law is that he intended to act falsely.”
    To which charge of the Circuit Judge the defendant' excepted. The jury found the defendant guilty, and he brings the cause into this Court by writ of^ error.

      Thomas G. Pray, for plaintiff in error.

      Dwight May, Attorney General, for defendant in error.
   Graves, J.

The plaintiff in error was charged with having falsely taken upon himself to act as Moderator of School District No. One of the Township of Sheridan, and, on information against him for such offense, was convicted in the Court below. On the trial, the Prosecuting Attorney having given evidence tending to show that Hall had been Moderator of the District, and that a movement was made to remove him from the office, sought to establish the charge set forth in the information by proof that the Township Board removed him and that he thereafter assumed to act as though still in office. To show the removal from office, as claimed by the People, certain writings purporting to be the record of the proceedings of the Board in the case, were offered in evidence by the Prosecuting Attorney.

This evidence was admitted against an objection by Hall that it was irrelevant and incompetent, as the Prosecuting Attorney had already submitted evidence tending to show that Hall had been made Moderator for a term covering the time when the acts of usurpation were alleged to have occurred; it was certainly pertinent and necessary for the People to show, if they could, that his official life had been legally cut off before those acts were done, and it was to meet this requirement of the case that the proceedings of the Board for his removal were offered and admitted in evidence.

But the objection that these writings were incompetent was a very different one. It is certainly incontestable that they could not be used as evidence without proof of the official character of the Board or of its members. In the absence of such proof they could possess no legal value as evidence of judicial action, and it does not appear by the bill of exceptions, nor is it pretended, that any evidence was given of such official character, unless certain recitals themselves contained in the papers, should be so considered. The difficulty here noticed being observed on the argument by the Attorney General, he suggested, but without insisting upon it very strongly, that such recitals might be treated as evidence of the official character of the persons who were said to have composed the Board. But this position is certainly untenable. These writings could not be the medium of proof of a fact upon which their own validity as evidence depended.

So long as no evidence appeared, aside from the contents of the papers, to show that the writings themselves were official memorials of the doings of the proper township officers, the papers were devoid of value as instruments of evidence and plainly incompetent to prove their own authenticity. The admission, therefore, of these papers was improper.

As this objection, however, may be avoided on another trial it is necessary to notice other questions presented by the record.

It appears from the proceedings just alluded to that the complaint for the removal of Hall was in the following terms: — “ Complaint against Harvey B. Hall, Moderator of Dis. No. Two, for illegal use of public money.” It also appears that elsewhere throughout the proceedings and in the supposed judgment for Hall’s removal, the District is described as Number “One” and Hall as Moderator of District Number “One.” The information also, as already stated, charged Hall with falsely taking upon himself to act as Moderator of District Number “ One.”

Since the proceedings for Hall’s removal indicate no other charge against him than that of falsely taking upon himself to act as Moderator of District Number Two, it must be assumed that it was upon that charge that the Board proceeded to trial and judgment. If that course was indeed pursued, I think it was a fatal error in the proceedings.

Upon a charge against him as Moderator in one District he could not be tried as a delinquent officer in another, and thereupon convicted and ousted from office in the latter. No admissible disregard of mere forms and technical methods in such cases can justify a departure from substantial requirements, and it cannot be denied, I think, that in a proceeding to remove a man from office, the trial, and judgment of removal, if one be rendered, must relate to the same office specified in the charge or complaint. The proceeding to remove a district officer for illegally using or disposing of the public money is intended to be summary, but this circumstance furnishes no reason for disregarding the ordinary safeguards for property and reputation which the law recognizes • as needful or appropriate.

While an orderly and legal inquisition and judgment against a man upon a ground like that urged against Hall, must bear hardly against his reputation and standing in society, a mere trial cannot fail to wound his sensibilities unless he is lost to all self-respect.

Every consideration re-inforces the opinion that in such a case the law should not overlook an irregularity like that in question.—Rogers v. Jones, 5 Dowl. & Ryl., 268, 272: 3 Barn. & Cres., 409 s. c.

The Prosecuting Attorney endeavored to remedy the difficulty. He was allowed, against an objection of the defendant, to show by a witness that the complaint, as made to the Township Board, described Hall as Moderator of District Number One. I think the admission of this evidence was erroneous. It was in direct contradiction of the writings which the People had already produced in evidence as a record of the proceedings of the Board, and it was an attempt to prove by parol a fact which was required, as I think, to be perpetuated and shown by writing. If a mistake existed in the record of the proceedings, it may have been open to correction. But it was not competent for the People to introduce the record as it was, and then contradict it by parol testimony.

That the imputed action of the Board was in its nature judicial and required to be in writing, will hardly be doubted. — Meeker v. Van Rensselaer, 15 Wend. R., 397, 399; Van Wormer v. Mayor of Albany, Id., 262, 265; Fisher v. Beeker, Brayt., 75; Bridgett v. Coyney, 1 Man. & Ryl., 211, 216; Rogers v. Jones, before cited. And certainly where a trial and adjudication are liable to be attended by such serious consequences, public and private, as may naturally follow a proceeding like that in question, the reasons for requiring a record are irresistible.

It was stated in argument that even if the proceedings for the removal of Hall, which were given in evidence, were incompetent to prove such removal, the plaintiff in error was nevertheless shown to have admitted his removal in a notice drawn by him in his assumed capacity of Moderator, for a special meeting. But this view cannot be maintained. If a removal by the Board, which would necessarily presuppose an adjudication, could be considered provable by an admission of the party in that way, ■ a point not now determined, still the notice itself will not bear the construction put upon it. While it implies that some action had been taken by the Board with a view to his removal, it also clearly implies that the validity of that action was earnestly questioned, and had not been accepted by Hall as depriving him of the office. Standing by itself, if adopted, to prove anything on the subject, it tended more strongly to prove that in fact he continued in office, than that he had been turned out.

It is impossible to read the evidence placed before the jury without concluding that Hall regarded the proceedings, whatever they were, for his removal, as ineffectual to impair his title to the office, or his right to continue to act as Moderator of the District. The case made by the People imported that when Hall performed the acts in character of Moderator, which are alleged to have been criminal, the right to the office was a subject of real controversy between Hall and other citizens on the one hand, and several of the local officers on the other; and that Hall continued to hold and officiate during the controversy instead of submitting to the supposed judgment of the Board.

I think the statute authorizing a criminal prosecution against a party for falsely taking upon himself to act or officiate in an office or place of authority, was not intended to apply to a case where a party, in good faith, and during a real controversy as to his title, continues to act in an office to which he has been chosen. He may intend the acts which he performs in the character of an officer, and his title may at the same time be bad. But if a real controversy exists in regard to it, and he holds on in good faith, he cannot be said “falsely ” to take upon himself to act or officiate in the office, nor under the statute in question can he be considered as a criminal for having continued to carry on the office.

The theory of the Judge’s charge to the jury was, however, that if Hall really acted as Moderator after his title to the office had been legally cnt off by the decision of the Board, whatever the circumstances tending to show a real and honest controversy as 'to the validity and binding force of that judgment, he was guilty.

This, I think, was incorrect. It is believed to be quite unnecessary to notice such of the points referred to by counsel as are not disposed of by this opinion, since they will not be likely to arise on another trial.

The judgment below must be reversed and a new trial ordered.

The other Justices concurred.


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    William A. Beers et al. v. Alice M. Beers.

      Waste: Tenant for life. Under tlie statute of this state (Comp. Laws, §§ U698, k699), an action on the case tor waste cannot he maintained against a tenant for life, for waste committed after such tenant has conveyed all liis estate and is out of possession.

      Heard October 5.

      Decided October 11.

    Error to St. Clair Circuit.
    This was an action on the case brought by William X. Beers and others in the Circuit Court for the County of St. Clair, against Alice M. Beers for waste, alleged in the plaintiffs’ declaration to have been committed in taking down and carrying away a steam flouring mill situated upon the premises, the title to which- the plaintiffs held as reversioners in fee after the termination of the life estate of the defendant; which life estate she derived from her husband, Horace Beers, who died without issue. The defendant pleaded the general issue. On the trial, it appeared that the acts complained of were committed by Michael B. Kean, to whom the defendant had conveyed all her estate, and who was in possession under such conveyance at the time of the alleged waste.
    The Circuit Judge charged the jury that the defendant, holding as widow and tenant for life of said Horace Beers, deceased, was not liable for waste committed by said Kean, after the interest of said defendant had been conveyed to him, and that therefore the plaintiffs had no cause of action against the defendant, the tenant for life, but that ■the plaintiffs must look to Michael B. Kean, the* actual trespasser; to which charge the plaintiffs excepted.
    The jury found for the defendant, and the plaintiffs bring the cause into this Court by writ of error.

      W. S. Edwards and C. I. Walker, for plaintiffs in error.
    I. It is entirely clear at the common law that the tenant in dower was liable to the reversioners for any waste committed upon the estate in dower, no matter by whom committed, or whether before or after assignment.—Cruise’s Digest, Title III, Chap. 11, § 31, p. 120; 2 Wms. Saunders, 251,2; Livingston v. Haywood, 11 Johns., 429; Bates v. Schraeder, 13 Johns., 263; Wood v. Griffin, 46 N. H., 230. But this stringent liability for waste only extended to those cases where the life estate was created by the act of the law. Ordinary tenants for life or years were not liable for waste until the statute of Gloucester. — 6 Edw., Chap. 5. — Nor had reversioners a right of action for waste against assignees of tenants in dower.
    II. Our statute has neither in terms or by clear implication taken away this liability.—2 Comp. Laws, Sec. 4698, 9.

    This act extended the common-law liabilities of some of the parties named therein, but it does not purport to ■exempt any from existing liabilities, and to take away such liabilities the implication must be clear. The decision under the New York statutes seems to take it for granted that the liability still exists.—Bates v. Shraeder, 13 Johns., 263.

    III. But however this may'be, the evidence in this case tended to prove that Kean committed the waste by the express authority of the defendant, given at the time of the assignment. He was her agent, and she was liable for his act. She not only suffered, but committed the waste, and would be liable under the statute. The Court, therefore,should have left it to the jury to say whether the waste was committed by her authority.
    IY. There was also evidence tending to show that she suffered waste by permitting the premises to be sold for taxes. That this is waste, see Stetson v. Day, 51 Maine, 434.

      T. C. Owen and D. C. Holbrook, for defendant in error.
    1st. It is insisted by the defendant that, as tenant for life, she -might convey her interest by deed; and that, having so conveyed, she is not liable for the acts of her grantee, he being in possession, and committing the waste complained of.—Comp. Laws, §§ 4598,9.

    By the ancient common law tenants for life were not liable to an action for waste.—8 Pick. Rep., 309. And our statute makes them liable only when in possession.—Comp. Laws, § 4598. An assignee of a lessee is liable.—Short v. Wilson, 13 Johns., 33.

    2d. The deed from the defendant to M. B. Kean was the ordinary form of a quit-claim deed, and gave to the grantee no permission to commit waste or to remove the mill, and there is no evidence in the case tending to show any such permission or authority subsequent to the date of the deed. The testimony as to the understanding between Kean and the defendant, prior to the execution of the deed, as to permission to remove the mill, was conflicting, and if admissible at all, the jury had a right to give such weight to it as in their judgment it was entitled to, and the verdict of the jury will not be disturbed.—Gaines v. Betts, 2 Doug. Rep., 99; Snow v. Perkins, 2 Mich. Rep., 238; Welch v. Bagg, 12 Mich. Rep., 41.

   Graves, J.

The plaintiff in error brought an action on the case for waste against Mrs. Beers, and the following facts appeared on the trial: One Horace Beers died in February, 1859, seized Of the premises described in the record, and on which at that time, and until after the sale made by defendant to one Kean, there was a mill. The defendant in error is the widow of Horace Beers, and at his death became tenant for life of the premises by force of the statute. In 1862, Mrs. Beers conveyed her life estate by deed to Kean, and gave him authority to remove the mill, and he removed it after such conveyance. And finally the premises were sold for'the taxes of 1863. The plaintiffs in error, who were also plaintiffs below, are the heirs-at-law. of Horace Beers. The acts of waste relied on were, that Mrs Beers caused the mill to be removed and suffered the premises to be sold for taxes. The foregoing facts having been shown, the Circuit Judge in substance charged the jury that the plaintiffs could not recover.

The question raised by this ruling is, whether the action could be maintained against the original tenant for life for matters which occurred after she had conveyed all her interest, and when she was not shown to be in possession. The circumstance that Mrs. Beers informed Kean, when he purchased, that he could take off the mill, is quite unimportant, sines her control wholly ceased when she conveyed her interest, and her deed and ■ transfer invested Kean with all the authority on that subject he could derive from her.

Being grantee of her whole interest, his right and ■ authority could neither be enlarged or diminished by her declarations.

It is argued for plaintiffs in error that by the common law, when the estate for life, as in this case, is created by act of law, the original tenant is liable for acts of waste committed by an assignee, and that our statutes in relation to waste have not changed the rule. The counsel for defendant, however, contend that this matter is regulated by Sections 4698 and 4699, Comp. Laws, and that defendant having granted her estate absolutely without retaining possession, she was not liable for the acts charged as waste and which were done and suffered by her grantee. We think the position is correct. Whatever may have been the rule at common law or under the statutes of Marlebridge and Gloucester in relation to the action of waste, we think the action on the case in the nature of waste, which is the form adopted and that authorized by our statutes, was not maintainable against defendant in error on the facts shown. The first section of the statute gives the action against the original tenant for life or the assigns of such tenant respectively, and not against either at the election of the reversioner, and lest it should be inferred from this provision that the original tenant would not be liable in any case for acts done after the transfer of his estate, the next section provides that when such tenant shall let or grant his estate and still retain possession and commit waste, the reversioner may have his action on the case against him therefor.

The second section illustrates the meaning of the first. By specifically giving the action against the original tenant for life when continuing in possession and committing waste after conveyance of his 'estate, it clearly implies that under the first section he would not even be liable for his own acts of waste after conveyance.

To support the action of case, therefore, under the statute against the' original tenant for life, it must appear that he committed or suffered the wasteland that he was in possession, if his estate was leased or had been granted.

This view of the statute harmonizes with the theory of an action on the case, which supposes an actual wrong and not one by mere intendment, and it also tallies with the settled* opinion in this country that estates in real property ought to be liberated as far as practicable from the burdensome incidents of the ancient law.

If the tenant for life could not convey his estate without being subject thereafter to prosecution for supposed acts of waste done by his grantee, it would greatly impair the value of the estate in his hands and operate as a serious restraint upon alienation. And the notion that unless the original tenant for life is held liable for the acts of his grantee, he may by alienation introduce a reckless or irresponsible assignee, has not been deemed sufficient by the Legislature to outweigh countervailing considerations.

The judgment of the court below should be affirmed with costs.

The other Justices concurred.


author: Cooley, J.

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    David Verplank v. Harvey B. Hall.

      Pi'actice in the Supreme Court: Amending records : Laches. An appeal will not be dismissed on the ground of an imperfection in the record, — a deposition taken and used in the Court below, not being found in the return. The proper remedy for such defect shouJd he sought by motion to amend the return. But such a motion, after the cause is on hearing, and six months after the defect was known to the party who claims to be prejudiced by it, is too late.

      Rearing. On the hearing of a cause in Chancery, the Court will not allow affidavits to be read to supply alleged .defects in the return, as to the merits of the controversy.

      Violation of injunction; Proceeding for contempt. A party who alleges that an injunction has been violated, and proceeds for the contempt, to punish the offender, must show with reasonable certainty the facts by which the charge may be established.

      Heard October 5, 6.

      Decided October 11.

    Appeal in Chancery from Calhoun Circuit.
    This was a proceeding in the Circuit Court for the County of Calhoun in Chancery in a cause wherein David Verplank was complainant, and Harvey B. Hall was defendant, to punish the defendant for the alleged violation of an injunction.

      Brown & Patterson, for complainant.

      Thos. G. Pray, for defendant.
   Cooley, J.

The proceeding brought before us by the appeal in this cause was one for the punishment of Hall, for an alleged violation of an injunction, which commanded him to " desist and refrain from entering upon the south part of the north half of the southeast quarter, fractional, of section number nine in town two south, of range four west, beginning at the southeast corner; thence running south, eighty-six degrees west, twelve chains and fifty links ; thence north, five degrees west, twelve chains and eighty links; thence north eighty-six degrees east, twelve chains and fifty links; thence south five degrees east, twelve chains and eighty links, being sixteen acres of land in the township of Sheridan,” in Calhoun County. The violation alleged consisted in going upon the land and cutting some poles, valued by the witnesses at three dollars. For this he was convicted in the Court below, and ordered to pay damages, costs, and expenses, amounting in all to two hundred and eighty dollars and forty cents.

An appeal having been taken to this Court, the case was brought on for hearing at the last April term, but when the record was presented to the Court, so many elements of uncertainty appeared in it, in matters in respect to which it was supposed capable of being rendered more specific, that the Court stopped the argument and directed that the case stand over for the purpose of enabling the parties to take such action in regard to the record as they should deem important. At the present term the case is found upon our docket; the record remaining substantially the same as before.

At this term a motion is made by the complainant to dismiss the cause for want of a complete record. The motion is based upon an affidavit of counsel ,and certificate of the Circuit Judge, showing that a deposition which was taken and made use of in the Court below, is not included in the record. But such an imperfection constitutes no ground for dismissing the appeal. If a paper is filed in the court, which is of a character to -give the Court no jurisdiction, it is proper to dismiss it; - but the Court has jurisdiction of an appeal notwithstanding an imperfect return, and the party interested in making the return more complete should take the proper steps in due season for that purpose.

It was then suggested that the case ought to stand over to give the complainant an opportunity to take such steps to perfect the record as he might be advised; and an affidavit was filed to show that the defect was discovered but recently. The difficulty here is, that if the party has but just discovered the alleged imperfection, he has been guilty of such laches that the Court cannot now relieve him. He professed to be prepared for hearing in April, and the hearing was begun; and if he could be excusable for going to a hearing without understanding the condition of the record, he qertainly could not with propriety postpone any longer the proper examination of the record, after his attention had been particularly called to defects in it by the Court. To delay six months more before making the necessary investigation, was to put an appeal to the indulgence of the Court, on the ground of surprise, entirely out of the bounds of reason.

The complainant then presents to the Court an affidavit showing that there are figures upon a plat of the premises attached to one of the depositions, which were not there when the deposition was sworn to; and he proposes that this affidavit shall be considered on the hearing. Here again the proper practice has been wholly misapprehended. If the deposition has been tampered with, it was done before the return was made to this Court; and any motion to restore it to its original condition, would have to be made in the Court below. We sit here as a Court of appeal in chancery causes, and in reviewing a decree or order of the Circuit Court, we have no right to consider any evidence not returned to us from that Court. No new case can be made by affidavit in this Court, nor is the record to be falsified in this way. The complainant’s attention was called to a difficulty in connection with this very plat at the April term; and there has been ample time since for an application to the Circuit Court for the proper correction.

The question upon the merits depends upon the correct location of the sixteen acres of land described in the injunction. The defendant does not deny the cutting of the poles, but he disputes their being within the bounds described. It appears that the southeast quarter of the section nine mentioned, was by the United States survey, fractional, there being a small meandered lake or pond, which extended into it on the eastern side. One question in the case is, where the southeast corner of the north half of this quarter section is located; whether on the meandered line of the pond, or on what would be thé east line of the section if extended through the pond; in which latter case the corner of the half quarter section would be' in the water, and the sixteen acre tract would lie a considerable distance cast of the place where the poles were cut. The complainant insists that no part of the pond is to be considered as being within this half quarter section, and that the southeast corner thereof is at the point where the line between the north and south halves of the quarter section would intersect the meandering line oh the shore of the pond.

It does not become necessary for us to consider whether this view of the complainant is' the correct one or not, because we think, • assuming it to be correct, he has still failed to show, with any degree of reasonable certainty, that the cutting of poles by defendant was upon the sixteen acres.

The complainant was examined as a witness to prove the cutting of the poles, and he testified that they were cut “ten or twelve, or may be fifteen rods” east of the quarter line running north and south through the section. He never measured the distance, but only guessed at it. David H. Miller, a surveyor, testifies to having surveyed out the sixteen acres, assuming the southeast corner to be on the meandering line, and he testifies that in doing so he did not reach the quarter line, and never measured the distance from the sixteen acres to the quarter line, but should judge it to be about two rods. As the sixteen acre lot is fifty rods in length, east and west, this would make the quarter line distant from the lake fifty-two rods. The complainant put in no more definite evidence than that of these two witnesses to determine either the precise location of the trespass, or the distance of the sixteen acre lot from the quarter line.

On the other hand, David A. Tichenor, another surveyor, testifies to having surveyed this quarter section, and that the distance from the pond to the north and south quarter line of the section was one hundred and five rods and a fraction. If this testimony is reliable, the cutting was several rods east of the sixteen acres, even assuming it to have been fifteen rods west of the quarter line, as Verplank guesses it may have been. And we do not see in this record anything which satisfies us that this testimony is mistaken. The discrepancy between Miller’s estimate of fifty-two rods, and Tichenor’s measurement of one hundred and five, is certainly very great, but if Tichenor, who assumed to make accurate measurement, was mistaken, the complainant, when it was so easy to do so, ought to have had the necessary steps taken to put the matter beyond controversy. The burden of proof was upon him to prove the contempt alleged; and we think, instead of showing it clearly, the preponderance of evidence is against him on his own theory of the legal question involved.

The order of the Circuit Court must therefore be reversed, with costs of both courts.

The other Justices concurred.


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    Bela W. Ormsby v. Watson J. Barr.

      Mortgage .* Evidence of payment: Presumption from conduct of mortgagee. A mortgagor delivers to tlie mortgagee property iu valne not far from tlie amount due upon tlie mortgage: tlie mortgagee delivers to the mortgagor tlie note and mortgage, treats the property he has received as his own, and authorizes it to be publicly asserted that he had taken it for the mortgage debt. A subsequent grantee of the mortgagor files a bill to remove the cloud of the mortgage upon the title; and the testimony being conflicting as to the intent of the parties : Held, that the conduct of the mortgagee would authorize a stranger to believe that the mortgage was paid.

      Heard October 6.

      Decided October 11.

    Appeal in Chancery from Clinton Circuit.
    Bela W. Ormsby filed his bill in the Circuit Court for the County of Clinton in Chancery, against Watson J. Barr, to restrain Barr from proceeding to foreclose a mortgage, executed by one Albright to Barr, upon premises, the title to which the complainant claims to have derived from Albright; and praying also that the mortgage may be decreed to be satisfied, and discharged of record. The controversy between the parties is mainly one of fact as to the intent of Albright and Barr in delivering and receiving a quantity of broom' corn, alleged by Albright to be in payment of the mortgage, and by Barr to have been received as collateral and to be applied on the mortgage, when the value of it should be realized, and not before.
    The Court below held that it was a payment, and decreed that the mortgage should, as against the complainant, be declared satisfied. From this decree the defendant appeals to this Court.

      Strickland & Stout, for complainant.

      Norris. & Uhl, for defendant.
   Graves, J.

In this cause the bill was filed to stay the foreclosure and procure the discharge of a mortgage, on the alleged ground that it had been paid.

It is conceded that one Marvin Albright gave his promissory note to the defendant, Barr, bearing date the 12th of December,. 1864, by which he promised to pay to Barr, or the bearer of the note, $110 in one year from the date, with interest at ten per cent., and that on the 19th of the same month, Albright, with his wife Lavina, executed to Barr their mortgage on the northwest quarter of the northwest quarter of section twenty-four, in township six north, of range two west, in the County of Clinton, to secure the payment of the note, and that the mortgage was placed upon record.

The bill states that about the month of October, I860, Albright, the mortgagor, paid the note to the defendant, Barr, and took up the note- and mortgage, and had them in his possession ready to be produced.

That on the third day of November, 1866, he, the com-' plainant, purchased the premises of Albright, and that the defendant, Barr, insisting that the mortgage debt was unpaid, commenced proceedings for the foreclosure of the mortgage in July, 1867.

The answer of Barr leaves complainant to prove his purchase, and denies that the note has been paid, and insists .that the sum secured to be paid by it according to its terms is still due and payable.

The answer, however, admits that Albright has the note and mortgage in his possession, and sets up matter in explanation of that circumstance. The explanation given is in substance that in October, 1865, Albright being the owner of about sixteen hundred pounds of broom-corn, called on defendant, Barr, and stated to him that one Dolson was about to levy on the corn, and that he wanted him, Barr, to take the corn into possession and hold it as his property, which, however, he, Barr, refused to do; that then it was agreed that Barr should take the corn and “ sell and disposeof the same when, where, and' to whom, and at such price as he,” Barr, should think best, and apply the proceeds toward the payment of the note and mortgage, leaving any balance not covered by tbe proceeds of the sale of the corn to remain secured by the mortgage.

That Albright represented that the corn would bring nearly the amount of the mortgage debt, and that he, Barr, relying upon that representation delivered the note and mortgage to Albright, but then expressly refused to discharge the mortgage until, from the sale of the corn or otherwise, the debt should be fully paid.

The answer proceeds to state the efforts made by Barr to sell the corn, the sale of it at length in May, 1867, to one Herrick upon credit, and that such sale has produced nothing as yet.

The answer also states that in 1867, Albright offered Barr a silver watch and §10 besides the Herrick note as payment in full of the mortgage.

The Court below made a decree declaring the proceedings to foreclose void, declaring the mortgage not a lien against the title of complainant, and adjudging the premises freed from the cloud of the mortgage. On looking into the depositions, it appears that Albright testified without objection to the conveyance to Ormsby, and that no attempt was made to impugn that testimony. The title of complainant was therefore sufficiently made out.

The issue made by the pleadings, and now open to contest, is whether at and before Ormsby’s purchase, which was in the fall of 1866, the mortgage and note in question were paid.

The testimony of Herrick and wife, and of Alice and Jane Barr, as to statements of Albright, made long after his conveyance, was only admissible under the objection taken, for the purpose of effecting Albright’s credibility, and it cannot be now resorted to as direct evidence to support complainant’s side of the issue.

We have seen the version which Barr has given by his answer, of the transaction out of which the question as to payment of the mortgage arose. On turning to Albright’s testimony it is seen that he swears positively that he sold the corn to Barr for the mortgage, and, that when he did so, he apprehended trouble from Dolson, and desired to pay for his place; that Barr found it inconvenient at the time to discharge the mortgage, but promised to do so the first time he should be in town.

Henry Spaulding testified, that in October, 1865, the broom-corn being in his barn, Barr came to see about getting it, and said that he had made a bargain with Albright for the corn; that he had lougM it of Albright, and when it was sold again, the avails were to be applied on the mortgage, and that he considered the corn was paid for, and then wanted to get it. Mrs. Albright, on her first examination, testified that in January, 1867, she was at the house of Mr. Barr, and that Mr. Russell and Mr. Barr were there, and Mrs. Barr was going back and forth; that Russell had been anxious to buy the land the mortgage had been on, and her husband gave him encouragement, while she did not wish to part with the land; that on this occasion Mr. Barr said: “Will you have $300, provided you sell the land;”, that she replied: “It is paid for, and I would like to keep it,” when Barr answered: “Yes, it is paid for, but you have three hundred dollars;” she further testified that the price Russell was to give was three hundred and some odd dollars. On her second examination, she testified that in 186-7 Barr talked with her about the matter, and claimed that Albright ought to make up his loss on the corn; that Barr said he had his pay when he gave up the note and mortgage.

She also testified, that in a subsequent interview, when Charles Rosenburg was referred- to by Barr as one having knowledge about the contract, Barr stated to her that the corn was to be indorsed on the mortgage, and that Rosenburg would so inform her. She also stated that Albright felt that the mortgage was paid; and that she induced her husband to make the offer of a watch and ten dollars.

Martin Breining testified that he was at work for Barr, and present on an occasion when Dolson came there about the time of the broom-corn matter; that he did not hear all the conversation, but about the time Dolson was to leave, he heard Barr say he had bought the broom-corn and paid for it, and should hold it:

The defendant Barr testifies that it was expressly agreed that the broom-corn should be taken as collateral security to the mortgage, and, when sold, to be applied, and if it went beyond the debt, the balance was to be paid to Albright, and if it brought less, then Albright was to pay the deficiency, and also pay him, Barr, for his trouble and expense; that the corn was not taken as agreed to be taken in payment; and that he never agreed to discharge the mortgage. Henry Spaulding testified that some time in the fall of 1866, Albright told him that he had been pretty smart for Dolson; that he had turned out some broom-corn to Mr. Barr to apply on a mortgage, and when the corn was sold, if there was anything more than enough to pay the mortgage, he was to have the balance from Barr. Charles Rosenburg testified to the declaration hy Albright. He states that at one time, in the road, Albright said Barr was to take the corn, and when it was sold, it was to be endorsed on the mortgage, -and if it overrun the mortgage, Barr was to pay the balance to Albright, and if it fell short Albright was to make up the deficiency, and pay Barr for his trouble; and again the witness stated that Albright said that Dolson was trying to take advantage of him, and he was owing Barr, and he thought it right that he should have his pay, .and he was going to let him have the broom-corn as far as it would go on the mortgage.

Mr. Russell, on being examined, referred to the occasion when Mrs. Albright had the talk with Barr, as related by her, and testified that he did not recollect of hearing Barr say that the land was clear of the mortgage.

Three or four witnesses refer to conversations by Albright, in which, it is said, he talked about paying the balance of the mortgage.

The defendant Barr, when on the stand, explained the giving up of the note and mortgage by saying in substance, that it was to enable Albright to make use of his possession of the papers in connection with the arrangement about the corn in such manner as to keep the corn from s^lbright’s creditors. It is true that he did not use this language, but no other construction can be put upon his testimony, nor any other meaning ascribed to it.

■ We cannot survey the evidence in this case without feeling much difficulty as to how the precise point in issue should be determined.

The testimony, in its verbal aspects, is conflicting and puzzling, and we think a result based upon .criticism and comparison of the language of witnesses, would be as likely to be erroneous as right. The safest course in such a case as this is to rely mainly upon any leading circumstances hearing upon the issue, which are found to be established. By so doing, we simplify the investigation, and bring into proper relief these matters, which ought to have controlling weight.

The following circumstances are. developed by the evidence before us:

1st. The broom-corn was transferred by Albright to Barr, and it was in seme way to sink the whole or a part of the mortgage debt.

2d. The mortgage debt was the consideration for sucli transfer.

3d. Both Albright and Barr believed that the value of the corn exceeded the mortgage debt.

4th. Barr immediately took complete and exclusive possession of the corn in virtue of the arrangement, and, until it was disposed of, continued in possession.

5th. Barr sold the corn as his own, and took a note therefor running to himself.

6th. Barr surrendered to Albright the note and mortgage.

Now the possession of these papers by Albright created a very strong presumption that they were paid, and this presumption could only be displaced or repelled by very clear proof that the debt was still owing.—Garlock v. Geortner, 7 Wend. R., 198; Palmer v. Gurnsey, Id., 248; see also Novelli v. Rossi, 2 Barn. & Adolph., 757; Gibbon v. Featherstonhaugh, 1 Stark, N. P. Cas., 225. It cannot be said that the evidence much preponderates, if at all, in favor of Barr’s explanation of his reason for putting the papers in Albright’s hands.

Several of the circumstancs above stated tend to contradict that explanation, and to justify Albright’s version. In any view, the proof brought forward to repel the presumption of payment, arising from possession of the papers by showing that such possession was not on account of payment, is neither strong nor clear.

The offer of All-right to pay something besides the corn is explained by Mrs. Albright very satisfactorily when she represents it as an attempt to compromise the business with Barr, and made through her intercession. It was not, therefore, a confession by Albright that the mortgage debt was unpaid. The declarations said to have been made on two or three occasions by Albright, as to the terms and occasion of the transfer of the corn, do not agree with his sworn statements, nor harmonize with some of the established facts, which agree with those statements.

The necessity for extreme caution in receiving and weighing evidence of verbal admissions is acknowledged by writers on the law of evidence, 1 Greenleaf Ev., § 200, and is taught daily by the experience of the profession. The case must be a strong one which will justify a court in setting aside the deliberate and consistent statement of the witness on oath, because it appears to be opposed to statements in part — conversations as remembered and interpreted by witnesses called to repeat such conversations on the'stand. It may be safely affirmed that this evidence of declarations by Albright, so far as inconsistent with his testimony, should not detract from the natural force and tendency of the leading and important circumstances before mentioned.

Those circumstances, which upon the evidence are certainly made out, are very significant and must necessarily be entitled to great weight.

They all point to one conclusion and scarcely admit of any other, and that conclusion is that the corn was actually considered by Barr and Albright of more value than the mortgage debt, and was taken in lieu of it. This, I think, was the understanding of Albright, and it seems difficult to explain the conduct of Barr upon any other reasonable hypothesis, or to reconcile a portion of the facts in any other way. It certainly seems incredible that Mr. Barr, who does not appear to be wanting in sense or discretion, should have taken the corn and dealt with it as his own and declared it his property, and at the same time have given up the note and mortgage, and authorized it to be publicly asserted that he had taken the corn for the mortgage debt, if, in fact, the mortgage was not to be affected .at all. It seems more reasonable to believe what the main facts express, and to adopt the view taken by the Court below. The decree below should be affirmed with costs.

Campbell, Ch. J. concurred.

Cooley and Ohristiancy, JJ. concurred in the result.


author: Campbell, Ch. J.

text:
    The First National Bank of Sturgis v. William M. Watkins.

      Specific tax on national banks. Act No. 122 of the Laws of 1867 (p. 163) providing for the levy and collection of a specific tax upon national banks, is unconstitutional. {Smith v. First National Bank of Tecumseh, 11 Mich., U79J)

      Illegal demands by public officers. A payment to a public officer, in. compliance with a demand accompanied by a threat of immediate and effectual enforcement, is in no sense a voluntary payment; and when the claim is unlawful T and made under color of office, an action lies for its recovery.

      Public officers: Principal and agent. The relation of principal and agent does not exist between public officers in respect of acts which, although performed under color of office, are not authorized by law.

      Heard October 6.

      Decided October 11.

    Case made from St. Joseph Circuit.
    This was an action of assumpsit brought by the First National Bank of Sturgis in the Circuit Court for the County of St. Joseph, against William M. Watkins. The facts, as agreed to by the parties, are stated in the record to be these:
    “The plaintiff is a corporation, duly organized as a banking association, under the laws of the United States, and doing business in the State of Michigan.
    “On the 30th day of June, A. D. 1868, a specific tax for the sum of $460 had been assessed by the Auditor ■General against said bank, under and by virtue of act No. 122 of the Session Laws of 1867, entitled ‘An act to tax banking associations organized under the laws of the United States/ approved March 27, 1867; and the said bank had refused for more than twenty days, to pay said tax.
    “On the day last aforesaid, the said Auditor General issued a warrant, a copy of which is hereto annexed and made a part hereof, and delivered the same to the defendant, who then was Sheriff of St. Joseph County, in said state. On the 12th day of July, A. D. 1868, the said Sheriff called at the banking house of the said plaintiff, in the village of Sturgis, with said warrant, during banking hours, and notified John J. Buck, the cashier of said bank, and then and there in charge of the funds thereof, that he, the said Sheriff, had said warrant and should proceed to execute the same, unless the same was paid.
    “The said cashier thereupon delivered to said Sheriff the amount required by said warrant, in lawful money, to wit: four hundred and sixty dollars, and forty-six dollars fees, and at the same time informed said Sheriff that the same “ was done under protest,” and, that said bank reserved all their legal rights, “ claiming that the tax was illegal.” At the time the Sheriff called at said bank, as aforesaid, the vault was open, and the money of said bank, amounting to over fifty thousand dollars, was in sight of said Sheriff.
    “The Sheriff, on the 22d of July, 1868, paid over said money to the State Treasurer and took his receipt therefor, less the fees aforesaid. The payment or delivery of said four hundred and sixty dollars, and said forty-six dollars fees, was made by said John J. Buck, cashier of said bank, to prevent a seizure of the property of said bank, by said defendant.”
    The cause was tried before the Circuit Judge without a jury, and the plaintiff recovered a judgment. It now comes before this Court upon a case made under the statute.

      W. L. Stoughton, for plaintiff.
    1. The Act of March 27, 1867, imposing a specific tax on national banks is in conflict with the laws of the United States, and therefore void.—Smith v. Bank of Tecumseh, 17 Mich., 479.

    2. It necessarily follows that the warrant issued by the Auditor General gave the Sheriff no authority or jurisdiction. The rule that a ministerial officer executing a warrant issued by an officer haying competent jurisdiction will be protected {4 Mich., 291) does not apply in this case. The warrant of the Auditor General was a nullity, and not available for any purpose.—Mills v. Martin, 19 J. R., 33; Nichols v. Thomas, 4 Mass., 233; Com. v. Albro, 1 Gray, 45.

    3. This illegal tax was not voluntarily paid, but collected by legal duress, and may be recovered in an action for money had and received.—2 Greenl. Ev., § 121; 1 Pars, on Con., 595, n. x.; McDougal v. Brown, 16 Ills., 32; Harmony v. Bingham, 12 N. Y., 116; N. Y. & H. R. R. v. Marsh, 12 N. Y., 309; Wisner v. Bulkey, 15 Wend., 321; Joiner v. Egremont, 3 Cush., 567; Preston v. City of Boston, 12 Peck, 7; State v. Williams, 20 Law & Eq., 319. In this case it is said, “ "Where money demanded and paid under an illegal demand, colore officii, the payment can never be voluntary.” So, also, in Faulkner v. Hunt, 16 Cal., it is said, “An illegal tax paid under protest may be received back. I do not claim that the protest gives any new right. It is only evidence that the payment was not voluntary.—Story on Agency, § 300, Note 1; Bank of U. S. v. Bank of Washington, 6 Peters, 8.

    4. The action was properly brought against the officer, who compelled the payment under color of process, which was void.—Ripley v. Gelston, 9 J. R., 201; Fry v. Lock

      wood, 4 Cow., 454; Mich. State Bank v. Hammond, 1 Doug., 530. And his liability was not changed by passing the money oyer to the State Treasury.—Story on Agency, § 301; Fry v. Lockwood, above cited; McDonald v. Brown, above cited; Townson v. Wilson, 1 Campb., 396.

      Dwight May, Attorney General, for defendant.
    I. Where a party is compelled by duress of his person or goods to pay money for which he is not liable, it is not voluntary, but compulsory.—Harmony v. Bingham, 12 N. Y., 116; Chase v. Dwinal, 7 Maine, 134; Shaw v. Woodcock, 7 B. and C., 14; Ripley v. Gelston, 9 Johns., 201; Jayner v. Inhabitants, etc., 3 Cush., 567; Preston v. Boston, 12 Pick., 14.

      a. But where the owner is in possession of his goods, the threat of a distress of rent, or of any other legal process, is not such a duress, for a party may defend himself against such suit or proceedings.

      b. Judge Shaw’s opinion (in 12 Pick.) is the key to all of the decisions in that state upon this question; and as we have no statute in this state authorizing a levy upon the person as well as the property for a tax, they can have but little weight as authority with us. To the same purport is the case in 3d of Cush. 567, relied upon by plaintiff.—Mays v. Cincinnati, Ohio St., 268.

    In Illinois the court follows Preston v. Boston. The difference between the statutes of the two states is wide, yet the court seeks to avoid the variance by asserting that because the party paying the tax cannot bring replevin, he therefore has no day in court.—Bradford v. Chicago, 25 Ill., 420. Either trespass or trover would lie against the officer, which would seem to be a sufficient answer to this proposition. Whenever the same question occurs in Massachusetts, not relating to the collection of a tax, the court holds a different doctrine. — 7 Gush., 181.

    In some decisions, it is made a rule of convenience, as when the property is in such a condition or in such kind as to be a great inconvenience and damage to the party to be without it. Such is the case of goods in bond. By long usage, the party pays the duty under protest and may sue for the money paid. This is authorized by II. S. statute.—7 Wallace, 122.

      c. A duress exists where an alternative has been forced upon a party, which by its inherent force he is driven to evade by a payment of money.
    II. Was the payment in this case voluntary ?

      a. It is well settled that an action for money had and received, does not lie to recover back money paid by mistake of law, or where the same is voluntarily paid with a full knowledge of all the facts.—Clark v. Dutcher, 9 Cowen, 674; Mowatt v. Wright, 1 Wend., 355; Waite v. Leggett, 8 Cowen., 195; Benson v. Monroe, 7 Cush., 125; Tyler v. Smith, 18 B. Monroe, 799; Woodburn v. Stout, 28 Lnd., 77; Robinson v. City of Charleston, 2 Rich., 317.

      b. The facts in this case show that there was no duress —no coercion — no levy — the mohey was paid on demand. The payment under protest does not make it involuntary, it rather indicates that plaintiff then understood his legal rights, and knew that there was no obligation to pay.
    III. Where money is paid to an agent for the purpose of being paid over to his principal, and is actually paid over, no suit will lie against the agent to recover it back. Fry v. Lockwood, 4 Cowen, 456; Swift v. Poughkeepsie, 37 N. Y., 511. The defendant paid the money over except his fees, without notice and before suit brought.
    IV. But can the plaintiff maintain this action at all, even conceding that the money was paid under protest, as claimed? 'Upon a state of facts similar to those involved in this case, and where there was a protest before payment of the tax, the Supreme Court of Illinois (46 Ill., 374), held that a State tax assessed against the shareholders of a national bank under the law of that State, cannot be recovered back merely because the mode of assessment provided by the law may have been illegal, the property upon which such tax was paid being subject in some mode to State taxation.
    To the same effect in principle, are City of Louisville v. Zanone, 1st Met. (Ky), 151; Walker v. City of St. Louis, 15 Mo., 574; Christy’s Adm’r v. City of St. Louis, 20 Mo., 145.

    It may be said that this decision in..Illinois is in conflict with the opinion of this Court in 17 Mich., 479. The main question discussed and decided in the Illinois case was not raised in the 17th Mich. ■ But conceding that there is a conflict, this case in many of its features may be relied upon in determining some of the questions presented by the record in the case at bar, — viz: the payment was held to be voluntary, although made under protest; the Court .refused to order a repayment of the money upon a similar state of facts, and held that there were no equitiés in favor of the plaintiff.
   Campbell, Ch. J.

The plaintiff in error complains of a judgment rendered against him for money illegally collected of the defendants in error under color of a warrant from the Auditor General, issued for a specific tax under the law of 1867,' charging specific taxes on national banks. The grounds of defense set up are that the payment was voluntary, and that a portion of the money was paid over into the State Treasury.

The case is freed from some of the difficulties which are occasionally met with in similar ■ controversies, inasmuch as the process was not one which related to any of the. ordinary duties of the plaintiff in error, as Sheriff of the county. It was issued under a special statute, applicable to but one subject, and showed on its face the source and extent of the authority asserted, by referring expressly to the legislative act. This was held to be unconstitutional in Smith v. First National Bank of Tecumseh, 17 Mich. R., 479. The warrant in this case was the same as in that, and the Sheriff of Lenawee County, acting under such an instrument, was held responsible in trespass for making a levy to collect it.

The writ, being bad upon its face, made any one seeking to enforce it a wrong-doer, and any money obtained under it being unlawfully obtained, he had no right to pay it into the Treasury, and such payment would not exonerate him. No relationship of principal and agent could exist under a law which was null, and the case cannot be likened to that of an innocent agent, who without personal fault receives money by mistake and transmits it to his principal. The immunity belonging to such transactions does not extend to wrong-doers.—Story on Agency, § 301, and cases cited; Steele v. Williams, 20 Fng. L. & Eq., 319; Snowden v. Davis, 1 Taunt., 359.

The payment in this case cannot be regarded as voluntary in any proper sense. It was made under the threat of the immediate and effectual enforcement of the illegal warrant. The authorities are quite uniform that where such a demand is made under color of office and the payment is made under protest, the money may be recovered back, under all circumstances, from the person extorting it. The only question that appears to have been mooted is whether' any protest is necessary, where the entire exaction is illegal on its face. The doctrine is beyond controversy that when the entire claim is unlawful, and the money is taken under color of public office, an action lies for its recovery.—Steele v. Williams, 20 Eng. L. & Eg., 319; 2 Greenl Ev., § 121 and notes; Morgan v. Palmer, 2 B. & C., 729; Story on Agency, § 307; Barnes v. Foley, 5 Burr., 2711; Frye v. Lockwood, 4 Cow., 454; Elliott v. Swartwout, 10 Pet., 137; Bend v. Hoyt, 13 Pet., 263. The principal object of the notice or protest seems to be to warn the officer not to pay over the money. As the protest was made in the present case, there •is no occasion to consider its legal necessity, in order to hold an officer who has paid over to another.

There is nothing in the authorities to warrant the argument that there must be any technical duress,'or that the party imposed upon must resort either to violent or legal remedies to prevent the execution of the'process, or to recover property he allows to be seized under it. No payment can be regarded as voluntaiy, and no one can be regarded as unduly negligent in making it, when the party sees fit to comply with the illegal demand, while protesting against its legality. He has a right to assume that the officer will do what he threatens to do, and no principle of public policy will compel him to use means of protection, when he prefers peaceful submission, and a resort to a civil action. The judgment must be affirmed with costs.

The other Justices concurred.