author: Graves, J.

text:
    John Minock and Robert Hadden v. George E. Shortridge et al.

      Liability of minors on mercantile contracts: Ratification; Conditional confirmation: Liability for goods purchased before and sold after majority. The mercantile paper of a minor is voidable at his election; not absolutely void.
    The ratification of a minor’s contract after the disability ceases relates back and renders the original contract binding from the time it was made.
    An express or implied agreement of a party to terms which may create a conditional or restricted liability for or on account of a contract made during the minority of such party, is not a ratification of such contract. It may, if the-condition be performed, become a new contract and as such become binding from its date.
    Where a promissory note was given by a firm, one of the members of which was at the time a minor, a ratification of the liability of the firm after the majority of the minor will not be inferred from incidental and collateral circumstances in the face of the explicit declaration of the party that he did not intend to become bound.
    A mercantile firm of which one of the members was a minor, having purchased goods during such minority, will be liable for the value, not exceeding the contract price, of the goods on hand at the time the minor becomes of age and afterwards sold by the firm.

      Heard July 7, 8.

      Decided October 5.

    Error to Oakland Circuit.
    This was an action of assumpsit, brought by George E. Shortridge, Thomas Rutherford, and Charles W. Short-ridge in the Circuit Court for the County of Oakland, against John Minock and Robert Hadden. The plaintiffs declared upon the common counts and appended to their declaration copies of three promissory notes, all hearing date on the same day; and gave notice that they would give the notes in evidence under their declaration. The defendants pleaded the general issue. The cause was tried without a jury, before ^the Circuit Judge, whose written finding of facts and his conclusions of law thereon are set forth in the record:
    Finding. — From the proofs in the case the Court finds as matters of fact that at the time and before giving the notes mentioned in the declaration in this cause, the plaintiffs were co-partners and doing business in the city of New York, in the wholesale trade. That the defendants were co-partners and doing a retail trade as merchants in the village of Holly, and that just prior to the 2d day of January, 1866, when the notes in controversy were given, the defendants purchased of the plaintiffs a bill of goods, for which the defendants gave their three several promissory notes, mentioned in plaintiffs’ declaration, all dated the 2d •day of January, 1866. The first for one hundred eighty-two and 6-100 dollars, due thirty days after date; the second for the sum of one hundred and eighty-three and 12-100 dollars, due sixty days after date, and the third for one hundred eighty-four and 18-100 dollars, due ninety Jays after date. I further find that at the time said notes were so given, the said defendant, John Minock, lacked four days of being twenty-one years of age; that they continued to do business for several weeks after such notes were so given, retailing the goods for which these notes were given, together with other goods in their store, doing the business m the usual style and way as co-partners; when they sold out their whole stock in hand, including whatever of the goods in question which had not as before .stated been sold at retail.
    I further find that subsequently and after all the said notes had become due, B. L. Bansford, the agent and ■attorney of the plaintiffs, called on defendant Minock in reference to the payment of these notes, and Minock told said Bansford that his partner Hadden ought to pay more than half the amount of the notes, and if he would do so he wou-ld pay his share. I further find that after said Minock became of full age, he recognized the firm of Minock & Hadden, and paid other co-partnership obligations, which had accrued during the infancy of the co-partner Minock, and that they proceeded with the co-partnership business, the defendant Minock receiving his share of the profits and benefits accruing from the sale in the regular course of business, and participated in the final selling out of the whole stock in trade. I find mo express promise to pay by defendant Minock after he became of age. That the final selling out of the whole stock in trade, and the dissolution of the co-partnership, occurred about the 1st of February, 1866.
    Conclusions or Law. — From the above facts, I considered that the 'contract entered into by the infant Minock was not void but voidable only, and capable of being ratified after he should come of age. That by continuing in and proceeding with the business of the co-partnership, and participating in its benefits and profits, after he became of full age, and selling and converting the goods for which these notes were given to his and their own use after becoming of age, he' ratified not only the contract of co-partnership with Hadden, but also ratified his contract to pay the notes in controversy, and is therefore liable in this action. The Court was requested to pass upon the following propositions of law presented by counsel for defendant Minock, as follows, to-wit:
    I. That the defendant John Minock having been an infant at the time the promissory notes sued upon were given, and they having been given for goods purchased for trade, they are absolutely void as against the defendant John Minock, and incapable of ratification by him, and the plaintiffs cannot recover in this action against said defendant John Minock.

      II. That promissory notes made by infants may be divided into three classes. First Notes given for necessaries, which are valid without ratification. Second. Notes not given for necessaries nor for a purpose that cannot be a benefit to the infant, and these may become valid and binding by a ratification of the infant after he becomes of age. Third. Notes given for goods purchased by the infant for the purposes of trade, or given for any purpose that cannot be of any benefit to the infant; and this last class are absolutely void and incapable of ratification.
    III. That in any event the plaintiff cannot recover against John Minock if he was under age when the notes were given, unless they show a ratification by him after he became of age, and that the burden of proof is upon the plaintiff to show such ratification.
    IY. That the payment by John Minock and his co-partner Hadden, after Minock became of age, of certain other claims against the firm, does not amount to a ratification of the notes held by the plaintiffs, and upon which they seek to recover.
    The Court negatives the first proposition, affirms the first and second subdivisions of the second proposition, and negatives the third subdivision of the same, affirms the third proposition, and the fourth proposition is covered by the conclusions of law, as before set forth by the Court.
    A judgment having been entered. on the finding, the cause now comes into this Court by writ of error.

      Fred. A. Baker, for plaintiffs in error.
    I. Promissory notes given by infants for goods purchased for the purposes of trade are absolutely void and incapable of ratification.—Thornton v. Illingworth, 2 B and C., 826; Chandler v. McKinney, 6 Mich., 217.

      The plaintiffs therefore in the case at bar were not ■entitled to recover on the notes, even if the infant either expressly or impliedly agreed to pay them, after he became of age; and as the plaintiffs did not declare upon any mere contract of affirmance, the defendants were entitled to a judgment.
    II. If this Court should now be of the opinion that promissory notes given by infants for goods purchased for the purposes of trade, are not absolutely void, but merely voidable, then we submit that the facts found by the Court below do not show a ratification of the notes in controversy by the infant after he became of age. The conditional promise made to the attorney for the plaintiffs was not a ratification sufficient to make him liable on the notes, because it does not appear that the condition was complied with.—Everson v. Carpenter, 17 Wend., 419; Proctor v. Sears, 4 Allen, 95; Dunlap v. Hales, 2 Jones Law, 381.

    That a confirmation of the partnership does not render an infant partner liable for debts of the firm unknown to him at the time of the confirmation, is expressly ruled in Crabtree v. May, 1 B. Mon., 289, and whether he could even be held to pay such debts of the firm as were known to him at the time of the confirmation is doubted very much by the court per Metcalf J, in Dana v. Stearns, 3 Cush., 372, where it was observed that the decision in Miller v. Sims goes beyond Good v. Harrison, 5 B. and Aid., 147, and beyond any other decision that had come to the knowledge of the Court—Collyer on Partnership, §§ 528 and 529.

    Now it is abundantly settled in this country and in England, that a mere acknowledgment or part payment is riot a sufficient ratification, but that an express promise voluntarily and deliberately made by the infant upon his arriving at the age of maturity, is necessary.—Thrupp v.
      Fielder, 2 Esp., 628; Smith v. Mayo, 9 Mass., 62 and 64; Ford & Phillips, 1 Pick., 202; Tyler on Infancy and Coverture, 87, and cases cited; 1 Parsons on Notes and Bills, 74 n. (d.)

    The next question to be considered is whether the defendant Minock ratified the notes by participating in the sale of such portion of the goods as remained undisposed of at the time he became of full age.
    If an adult, after sufficient notice and a reasonable delay and opportunity, continues to retain property which he might restore, and for which he gave, when an infant, his promissory note, this, both on prevailing though not uniform authority, and on good reason, we should consider to be conclusive evidence of ratification.—Aldrich v. Grimes, 10 N. H., 194; Lawson v. Lovejoy, 8 Greenl., 405; Cheshire v. Barrett, 4 McCord, 241. But it would be otherwise if the property for which the note was given was disposed of, by the infant before he was of age.—Thing v. Libbey, 16 Maine, 55; Robbins v. Eaton, 10 N. H., 561.

    The Circuit Judge in his finding of facts states matter from which it is clear that a portion of the goods for which these notes were given^ were sold and disposed of before Minock became of age, and we therefore insist that the defendant Minock did not ratify the entire notes, and that the plaintiffs were not entitled to recover the full amount of the same, but were only entitled to have a judgment rendered, pro tanto for that part of the notes for which the defendant Minock was legally liable.—Earle v. Reed, 10 Met., 387.

    In conclusion on this subject we insist that the defendant Minock is not liable qn the notes, even if it does appear from the facts found by the Court below, that he ratified his contract after he became of age, because it is not shown that he knew at the time of the confirmation

      that- he was not liable. .This has been frequently decided, and the doctrine seems to be recognized by all the elementary writers on the subject. — Tucker v. Moreland, 10 Pet., 76; Reed v. Boshears, 1¡. Sneed, 118; Dunlap v. Piales-, 2 Jones . 'Lato, 881; Hineley v. Margaritz, 8 Barr., 1¡28; Norris v. Vance, 8 Bich. B., 161¡.; 1 Parsons on Contracts, 328, n. (p.)-j Story on Contracts, § 69 j Tyler on Infancy and Coverture, 96 j Chitty on Contracts, 169, n. (X).

    III. The facts found do not support the judgment, because damages were not assessed, or the amount for which judgment should be entered otherwise determined.
    We have already seen that one of the defendants was not liable for the full amount of the notes, and it was therefore absolutely necessary, in order to render judgment, to ascertain the extent of his liability. And the ambiguity df the finding of facts in this respect is clearly objectionable, to correct which error would lie, even if the Circuit Judge had stated the amount of the judgment in his conclusions of law.
    A written finding of facts must be treated in all respects as a special verdict, apd error may be alleged that it does not support the judgment. And the Court can add nothing to a special verdict, or infer any facts which the jury have not inferred and set forth. The Court can only draw the legal conclusions from the fact found. — People v. Wells, 8 Mich., 10I

    And where, as a conclusion of law, from a finding of facts, a Circuit Judge holds the plaintiif entitled to recover, the finding must contain all the facts and circumstances necessary to make out a cause of action.— Wood v. la Rue 9 Mich., 158.

    If a special verdict is imperfect by reason of some uncertainty or ambiguity, or by finding less than the whole matter put in issue, or by not assessing damages, the Court will award a venire de novo.—10 Bac. Abr. (Bouvier’s Ed.), 314, and cases cited.

      Byron L. Ransford, for defendants in error.
    I. The question of whether the Court below erred in allowing the plaintiffs to introduce evidence to show a ratification hy the defendant Minock, of the notes in question, after he became of age, depends entirely upon the fact whether the notes in controversy were void, or voidable only and subject to ratification.
    It is insisted by counsel that because the notes in question were given for goods purchased for the purpose of trade, during the infancy of the defendant Minock, that they were absolutely void, as to him. I submit that I can See no good reason or justice for making a rule that goods purchased by an infant for the purposes of trade shall be governed by any different principle than goods purchased by an infant for any other purpose. Barroios, J. in the case of Robinson v. Weeks, 56 Maine (September No., 1869, American Law Reg., p. 554), lays down the rule of the division of infants’ contracts under these general heads: 1. Binding — when for necessaries at fair rates. 2. Void— when manifestly and necessarily prejudicial, as of surety-ship, gift, naked release, and the like. 3. Voidable — at the infant’s election, either during minority or within a reasonable time after attaining majority, including all executory agreements, not for necessaries, and all executed contracts of this sort, when the other party can be placed substantially in statu quo. The better • opinion, however, as extracted from later authorities, is that these contracts of infants are not absolutely void, but may be ratified after the infant attains to the age of majority.—1 Par. on Contracts, 244, Note E. The more recent authorities incline to hold all (or all with a single exception) contracts of infants to be voidable merely, not void, and that it is the privilege and right of the infant only (not that of the Court) to avoid or ratify his contracts. To the same point we cite.—Fonda v. Van Horn, 15 Wend., 631, 635; Cole v. Pennoyer, 14 Ill., 158; Cummings v. Powell, 8 Tex., 80; State v. Richmond, 6 Foster (N. H.), 232; 1 Par. on Con., 244; Miller v. Sims, 2d Hill (S. C.), 479; Tyler on Infancy, Chap. 2.

    II. We insist that Minock’s continuing in trade after becoming of age, and paying other indebtedness of the firm, he thereby ratified the co-partnership contract with his partner Hadden.—Miller v. Sims, 2 Hill (S. C.) 479. The fact ¡that Minock continued in trade with his co-partner, from the time he became of age, retailing the goods in question, with other goods, in the usual way, and then selling out the balance of the goods in question, not already sold at retail, about the first of February, 1866, some thirty days after becoming of age, is a sufficient ratification of the notes in question, and he is jointly liable with his co-partner Hadden.—Henry v. Root, 33 N. Y. R., 526, 554; Kline v. Beebe, 6 Conn., 494, 505; Boody v. McKenny et al., 23 Maine, 517; Miller v. Sims, 2 Hill’s (S. C.), 479; Wilcox v. Roath, 12 Conn., 550; Martin v. Mayo, 10 Mass., 137, 140; Heath v. West, 8 Foster (N. H.), 191; Bartholomew v. Finnemore, 17 Barb.; 428; Boody v. McKinney, 10 Shep., 517; Tyler on Infancy, Chap. 6.

    III. It is insisted by the plaintiff in error that the finding of the Court below does not support the judgment, because it does not assess damages, or otherwise determine the amount due upon the notes in question. On the written finding of the Court a judgment entered for the plaintiffs below, for the sum of six hundred and ninety-nine dollars and eighty-one cents damages over and above his costs, this being a part of the record in the case, I can see no reason for á repetition of the amount due on the notes, the judgment being a sufficient assessment. The notes were introduced in evidence, and being proof of themselves, the Court had a right, and undoubtedly did compute the amount due on the notes himself.
    IY. It is immaterial how many of the goods for which the notes were given were sold before, and how many after said defendant Minock became of age. If the Court found that any portion of the said goods remained in his hands, or were by him sold after he became of age, we may legally infer a ratification of the contracts, in the absence of any offer or expression, of willingness to return the unsold goods at date of majority.—Lawson v. Lovejoy, 8 Greenl., 405; Delano v. Blake, 11 Wend., 85.

      We think a disposition and practical effort of Courts has been to harmonize and improve the law of infancy; and I believe all agree that when the infant attempts to avoid an executed contract, or one executed on the part of the adult, he must replace the property received, and if he have any part of the property Avhen he becomes of age, he must return it or he will be adjudged to have affirmed the contract.—Boody v. McKenney, 23 Maine, 517; Deason v. Boyd, 1 Dana, 45; Kline v. Beebe, 6 Conn., 494, 505; Boyden v. Boyden, 9 Met., 519; Cheshire v. Barrett, 4 McCord (S. C.), 241; Robbins v. Eaton, 10 N. Hamp., 561; Richardson v. Boright, 9 Verm,., 368; Henry v. Root, 33 N. Y. R., 526, 551.

   Graves, J.

On the 2d day of January, 1866, and for some time theretofore, the plaintiffs in error Avere doing business as partners in the sale of merchandize at Holly, in this state, and gave their notes in question to the defendants in error for goods purchased of the latter shortly'before the date of the notes. When these notes were given Minock lacked four days of his majority. The firm continued in business as usual, retailing among others some portion of the goods for which the notes were given, until about the 1st of February, 1866, when they sold out the whole stock, including what remained of the bill purchased of defendants in error, and then dissolved. The Circuit Judge found that after Minock attained his majority he recognized the firm, paid some other co-partnership obligations, received his share of the profits and benefits which accrued from the sales in the regular course of business, and participated in the closing sale of the residue of the stock. He also found that Minock, after the notes became due, and which must have been after the dissolution, declared to the attorney for defendants in error, that Hadden ought to pay more than half of the notes, and that if he would do so he, Minock, would pay his share; but the Judge likewise found that Minock after coming of age made no express promise to pay. Upon these facts the Judge determined as matter of law that the notes were not void, but voidable only at the election of Minock, and were ratified by him.

It is objected by plaintiffs in error that the notes were void as against Minock, but if not, that the facts found did not amount to a ratification.

If the contracts of Minock were nullities, there was of course nothing to be validated by any subsequent act or declaration of his, however formal and explicit, and evidence admitted to show a mere ratification was unauthorized, and the ruling that a ratification had been shown was erroneous. It is impossible to reconcile the cases on this subject. All or nearly all of the early authorities, as well as some of the modern ones, support the position taken by counsel for the plaintiffs in error, that executory undertakings like the notes in-question are void, but the tendency of judicial opinion has long been otherwise, and the clear weight of authority in this country is now in favor of holding the mercantile paper of minors voidable at their election, and not absolutely void. The authorities bearing upon the question are mostly collected in the text-books, and are too numerous to justify an attempt at citation.

Much confusion has undoubtedly arisen in respect to the engagements of minors, as well as in many other cases, either from an incautious use of the word “void” and “voidable,” or their reception or application in a loose or inappropriate sense.

The executory contract of an infant, such as a promissory note, is not void in the sense of being a nullity, because it may be confirmed, but it has no binding force until it is confirmed. Being executory, and not binding until confirmed, it is said to be voidable, but as thus applied this word is to be, understood in a sense quite different from that which belongs to it when applied to the executed contract of an infant.

The general rule is that an executed contract is binding until avoided by words or conduct which show that the party refuses longer to be bound by it. But when it is said that the executory contract of an infant is voidable, the idea represented is that the contract is susceptible of confirmation or avoidance by the promisor, though it is not binding until it is ratified.

There can be no ratification without the assent of the person to be charged. And where the liability of the party depends upon his acts done after becoming competent to give a binding assent, the nature and extent of the liability will depend upon what he assents to, as ascertained from his words or relevant circumstances, and he can be held to no other or different engagement than such as he is found to have assented to. The case may show a ratification, or, failing to show that, it may disclose a different and distinct agreement, involving a liability indeed, but a liability quite unlike and remote from that produced by a ratification. When a ratification occurs it excludes all right to disavow the original undertaking, and makes it obligatory as against the defense of infancy. The new matter reaches back and renders the original contract binding from the time it was made, and the first agreement having in its entirety received the assent of the promisor after the ceasing of his disability, is made in all its parts the binding contract of the parties. The minor on coming of age, may, however, fail or decline to assent to a confirmation of the first agreement, but may be willing to make himself liable upon a new express or implied undertaking, based on the original consideration. He may, expressly or by implication, agree to terms which necessarily create a conditional, qualified, or restricted liability, and, in such case,7 the first agreement is not ratified by the second. A new agreement is constituted which is operative only from the time of its creation, and effective according to its nature. If the promise or act of the party after majority amounts to a conditional ratification, instead of a new substantive engagement, the contract made during minority may then be enforced, but not until the condition is fulfilled.

In the case before us the Court found that Minock made no express promise on coming of age, but when called on for payment by the attorney for defendants in error, which must have been subsequent to the conversion of the goods, and also to the dissolution, he took the position that Hadden ought to pay more than half of the amount called for by the notes, and stated that, if he would do so, he, Minock, would pay his share. When it is considered that Minock expressly took this ground when called on for payment after his majority, and after the goods had been disposed of and the co-partnership closed, and that a ratification of the notes would hare involved a liability on his part to pay the whole sum promised by the notes, it is very evident that he did not intend to bind himself to the undertaking evidenced by the notes. Indeed, these facts import in substance a refusal to be bound by the original agreement, and exclude any implication that he designed to invest it with any obligatory force. The transaction signified that he would not be liable for the whole sum as he would have been on ratification, but would only be liable for something less than half. The other circumstances relied on to raise an inference of ratification, should be considered in connection with the facts last mentioned. These circumstances preceded the express declaration oí Minock, and do not appear to have been countenanced by him with any view to the subject of ratification. Whatever may be their effect as to his purpose to affirm his voidable agreement, they cannot outweigh the evidence of his dissent furnished by his express refusal. To hold otherwise ayouM be to infer his assent from incidental and collateral circumstances, against his own declaration, directly called out by the plaintiffs below in an endeavor to obtain from him a confirmation. Neither can we infer from the recognition of the partnership, the continuance in business and the like, an intent to ratify the notes. These incidents, at the most, could only imply a subsequent assent to the former voidable undertaking in the absence of facts repugnant to such an implication. But in this case, when the attention of the party was directly and clearly called to the matter by defendants in error, as already stated, and he was applied to by their agent for payment, he in substance refused to be bound by the notes.

I am therefore of opinion that the facts found do not establish a ratification of the notes. It would seem from the finding that a portion of the goods for which the notes were given was sold by plaintiffs in error before Minock became of age and the remainder after that time. No ground is discovered upon which a recovery could be claimed for the goods sold during Minock’s minority. The acts of sale during that time would not imply a promise by him to pay the value of the goods, when his express promise, if made at the same time, would not be binding upon him, and there is no claim that after coming of age he made any express promise to pay for the goods. The disposition of what remained after Minock became of age could not have the effect to raise a promise by implication, to pay for the property sold before that time.

When a liability to pay for goods purchased for mercantile purposes during minority is implied from retention or sale after majority, it is confined to the goods which are -retained or sold after that time. The principle appears to bo that the party arriving at an age which makes him competent to bind himself, and being in a situation to exercise an option to return the goods and so disavow the purchase, or to keep or sell them, and so evince a design to stand as purchaser, his choosing to keep or sell is to be considered as implying a purpose to hold the position of purchaser and an election to be liable in that character. If the option does not exist, if the particular goods cannot be restored in consequence of their disposition during the minority of the party, the ground for implying a liability for such goods is wanting.

I think, however, that the facts found would, upon well settled principles, bind both Minoek and Hadden, to pay the value, not exceeding the contract price, of so much of tbe goods, forming the consideration of the notes, as were disposed of after Minoek became of age, and tbat a recovery therefor could be supported under tbe count in tbe declaration for goods sold and delivered.

The plaintiffs in error obtained them without payment, and, after Minoclc’s majority, retained and sold them and pocketed the proceeds; and the circumstances imposed upon defendants in error a duty to pay for them. In such a-case the law allows a recovery upon the theory that the parties undertook to do what it was their duty to do.

The defendants in error having elected to proceed against Minoek and Hadden jointly, the amount recoverable could not go beyond the sum chargeable against Minoek, nor beyond the contract price of the goods; hut a recovery according to the value of the goods, not exceeding the agreed price, would be legally unobjectionable.

The finding furnishes no data for ascertaining the amount for which judgment should he rendered upon the principle stated, and therefore it will be necessary to order a new trial.

The other questions presented become immaterial.

Tbe judgment must be reversed with costs, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell, Ch. J.

license: Public Domain

text:
    John R. Baker v. James B. Johnston.

      dedication of public squares: Acceptance: Revocation: Act No. 86 of 1850. At common law there could be no setting apart of lands, by dedication, for any other public uses than for highways. Commons, pleasure grounds and other analogous rights are always assumed to rest in grant. Butin the United States-the general doctrine is, that where the purpose is clear and well defined, the courts will protect lands which have been dedicated to public uses.

      Under the statutes in force regulating the laying out of plats prior to the law of 1850, the plat, executed and acknowledged in accordance with the law, operated as a conveyance in trust to the county for the purposes designated on it. But, as a designation as a “public square” would not necessarily mean anything more than that it was designed for a public use, without specifying the use; the plat alone would not define the trust purpose. The statute of 1850 legalized such dedications as were defective only in not fully defining the purpose for which the square was intended, but it only applied to such plats as had beefi duly executed and acknowledged. Public squares on plats not thus executed and acknowledged were not affected by the act of 1850.
    While it may be assumed as the law at this day that there may be a dedication against the land-owner, without a statutory and formal conveyance to the county; yet, where a land-owner sets apart a portion of his plat for public uses, he has a right to expect that within a reasonable time it will be put in condition to subserve those uses. And the public can bind the land-owner only by acting on his dedication, before he has an equitable, right to withdraw it.
    What acts of acceptance, on the part of the public, arc necessary to make the dedication irrevocable, can only be determined by considering the elements which must be taken into account; and these are so various that lands intended for different public purposes cannot all be treated alike.
    Dedications to public uses on plats within cities and incorporated villages can be accepted only by the municipal authorities. A dedication for a highway —but for no other public purpose — may, by statute, become irrevocable, by user only.
    The designation of the particular use to which land shall be devoted, which has been dedicated as a public square, in the manner prescribed by the statute, rests with the public authorities. And where there are no such authorities, and the designation is not statutory, the land-owner may determine its purposes, until, by some action estopping him from further interference, he has bound himself to acquiesce. But to constitute such an estoppel there must be distinct and encouraged action, in reliance upon the promise of the landowner by the public authorities, if there be such, or by those whom he recognizes as acting for the general interest, if there be not.
    If the owner covenant with others, who assume to act for the general interest, that upon conditions performed the land shall be irrevocably devoted to any public use, — unless the conditions require some permanent organization to perform them, — and if the covenantees have any individual interest to connect them with the locality, an equity would arise to enforce the obligation. If, in an unincorporated village, there be concerted action by those interested in the subject, in which the land-owner participates, to prepare the ground for a public square or park, by voluntary contributions of money or labor actually employed for the purpose, and with the design of carrying out the purpose of the dedication, such action would constitute an acceptance of the dedication, which the land-owner would not be permitted to revoke.
    Sales of lots, bounded upon streets surrounding a space marked on the plat as a public square, have no tendency to prove an acceptance by the public of the square as devoted to public uses, or an estoppel in favor of the public. Purchasers of such lots must be presumed to understand the conditions upon which such spaces are dedicated to the public. Uor would such purchasers have any individual right of entry upon, or occupancy of such spaces.
    The employment of such spaces for purposes of amusement, — such as circus performances and ball playing, — or for political meetings, or agricultural fairs, has no tendency to prove an acceptance by the public.
    Officers for assessing taxes do not represent the public for the acceptance of dedications.

      The designation of a block by a number upon a village plat, laid out under the statute which requires persons making the plat to describe all lots intended for sale by progressive numbers, is not incompatible with a purpose on the part of the owner to dedicate the block to public uses.

      Heard July 8, 9.

      Decided October 5.

    Error to Van Burén Circuit.
    This was an action of trespass quare clausum, brought by John R. Baker before a Justice of the Peace for Van Burén County, against James B. Johnston, the locus in quo being described as block number six, in the village of Lawrence, in Van Burén County.
    The defendant pleaded the general issue, and gave notice that the land upon which the said alleged trespass was committed was not, at the time of the alleged trespass, the land and close of the said plaintiff, but was and is the land and close of the County of Van Burén, held in trust by said county for the use and purpose of a “ public square; ” and further, that on or about the 11th day of September, A. D. 1846, the said Baker, being the proprietor of said land, made and caused to be recorded in the Register’s office of Van Burén County, a plat of the village of Lawrence, wherein and whereby the said Baker designated, set forth and described the parcel of land upon which said alleged trespass as alleged in said plaintiff’s declaration to have been committed, as a public square, and therein and thereby gave and dedicated said parcel of land for public uses and for the purpose of a public square, whereby the fee of said land became vested in said County of Van Burén, to be held in trust by said- county for the use and purpose of a public square and for no other use and purpose; that the said defendant is a citizen of said county and an acting officer of the village of Lawrence, to wit: one of the Trustees of said village of Lawrence; that the corporate limits of said village extend over and beyond, and include said parcel of land, and that if the said defendant ever entered upon said land as described in said plaintiff’s declaration lie liad a right so to do by virtue of his citizenship and as trustee of said village acting in pursuance of the orders and instructions of the President and Trustees of the village of Lawrence, improving and beautifying said grounds as a public square; and further, that the said land and close was not at the time therein stated, and is not tho land and close of said plaintiff, but is the land and close of the public, to wit: the people of said'village, and county and State, and was given and dedicated to the public by the said plaintiff on or about the 11th day of September, A. D. 1846, for the use and purpose of a public square, and that the same was accepted and appropriated by the publio for said purpose at divers times and in divers manners, and that the said land is now, and for a long space of time has been, a public square, common and open to citizens and tho public generally; and further, that-the land had previously been dedicated and given to the public as a public square and common, and accepted and used by them for that purpose, and that it belonged to the public, and that the right to use the same as a public square had beeri recognized by said Baker, by a deed under and through which the defendant held land fronting on said square, to wit his residence and dwelling-house on the south side of said square, whereby said plaintiff is estopped from denying the defendant the right to use the same as a public square, and the said square is recognized by said plaintiff in sundry deeds and conveyances to divers citizens, of land adjoining said square, whereby he is estopped from denying the same.
    The notice appended to the plea showing that the title to the land described in the declaration would come in question, and the bond required by the statute having been given, the cause was certified into the Circuit Court for the County of Van Burén.

      On the trial, the prima facie title of the plaintiff having been admitted, the defendant offered in evidence a record of the recorded plat of the village of Lawrence, described in the margin of it as “A plan of the village of Lawrence, as laid out and platted by John R. Baker, 1846.” The description of the plat, and the certificates of acknowledgment and recording, are as follows:
    Received for record, September 11, A. D. 1846, at 11 o’clock A. M.
    E. O. BRIGGS, Register.

    A plan of the village of Lawrence, as laid . out and platted by John R. Baker, proprietor. This village is situated on the west half of section ten, in township No. 3 south, of range fifteen west, and surveyed by S. H. Blackman, County Surveyor. St. Joseph street and Main street are each six rods wide. Front street is four rods wide. All the other streets are each five rods wide. The lots are each five rods wide by ten rods long, except in those blocks where there are alleys. The alleys, being twenty feet wide, take off ten feet from the length of said lots.
    All said streets and alleys, as laid out on the annexed plat, are hereby given for public uses, and the square marked “Public Square,” is hereby given for said purpose of a public. square.
    Witness my hand and seal this 9 th day of Septembei, A. D. 1846.
    JOHN R. BAKER, [seal.]
    Executed in presence of
    S; H. Blackman.
    E. H. Keeler.
    State or Michigan, County or Yan Burén, — ss.
    I hereby certify that on this 11th day of September, A. D. 1846, the above named J. R. Baker, to ino well known, personally acknowledged before me that be executed the above instrument freely, for the uses and purposes therein expressed. Given under my hand,
    S. H. BLACKMAN, Justice of the Peace.

    To the admission of which in evidence the plaintiff objected. 1. That the certificate of acknowledgment was not under seal, and does not state that he acknowledged it to be his free act and deed. 2. That the public square is numbered 6, in progressive numbers, showing that it was intended for sale, and not as a public ground. 3. That the public square was not described on the plat by its boundaries, courses and extent. The defendant’s counsel then stated that he expected to show by other evidence that the plaintiff, subsequent to that time, had sold lots in said-village, and conveyed them by deed duly acknowledged, referring to such recorded plat.
    The Circuit Judge overruled the objections, and allowed the record of said plat to bo read in evidence, to which the plaintiff excepted.
    The character of the evidence offered by the defendant to sustain the defense, sufficiently appears from the charge of the Circuit Judge, on which the questions presented to this Court for review mainly arise.
    The plaintiff requested the Court to charge the jury:
    1. To establish a dedication of the land in question to the public as a public square, under the statute in force at the time of making the plat in question, so as to make it a defense in this case, it was necessary that the certificate of acknowledgment thereof should be under the seal of the Justice who signs the certificate of acknowledgment.

      2. The act of 1850 does not, nor is there any statute which does, change this provision, and it is now necessary for the purpose of making the recorded plat evidence in this case, that it, the certificate of acknowledgment, should be under the seal of the Justice.
    3. The plat given in evidence in this case cannot be considered by the jury as tending to prove a statutory dedication.
    4. To constitute a dedication, under the statute, so as to make it a defense in this case, th? jury must find from the evidence that the dedication of the premises in question as a public square, was accepted by the public.
    5. To find this acceptance to have been made the jury must find from the evidence that there was a-formal acceptance on the part of the public authorities or some organized body authorized to represent the public, or that the public, through, by or under such organized body, did acts according with such acceptance and inconsistent with a non-acceptance of it,
    6. The acts of individuals in their individual capacity, acting in concert or otherwise, but not under any organiization known to the laws, could not constitute an acceptance.
    7. The making and recording the plat, under the statute, is but an offer to dedicate the public square to the public, and may be revoked by the dedicator at any time before it is accepted by the public.
    8. If the jury find from the evidence that the plaintifij before an acceptance by any organized body authorized to speak for the public, or by the public authorities, entered upon the premises and cultivated the same or leased them to others for the purpose of cultivation, or let them to be cultivated on shares to crops, this is evidence from which the jury may find a revocation of the offer to dedicate.
    &£. If the jury find the act named in the last request done with the intent to revoke the dedication, then it is conclusive evidence of revocation.

      9. If tbe jury find from the evidence, that the premises were fenced by a subscription made by the citizens acting in their individual capacity and without the direction, authority or consent of any organized body authorized to speak for the public, or by the public authorities, this is not evidence of an acceptance of the dedication.

      10. If the jury find that political meetings were held upon said premises, or agricultural fairs, or Fourth-of-July celebrations, or other celebrations, or that the citizens planted shade trees upon it or plowed and leveled it, but without the authority, direction or consent of the public authorities, or of some organized body authorized to speak for the public, such acts are not evidence of acceptance, and cannot bo considered by the jury.
    13. If the jury' find that the premises have never been assessed or taxed since the making of the plat, this is not evidence of an acceptance.
    14. An acceptance by the public cannot be found by proving the declarations of citizens or inhabitants, that they considered and understood it to be a public square, and all such proof must be disregarded by the jury.
    16. To constitute a dedication at common law, there must be an acceptance by the public authorities, or a user by and with the consent and sanction of the public authority.
    17. If the jury find an intent and offer to dedicate, and that there Avas no acceptance by the public, and that the plaintiff entered before any such acceptance, and cultivated the land Avith intent to revoke the dedication, this Avould constitute a revocation of the offer to dedicate, and the public have lost their right by non-user.
    Each of Avhich, except the first, the Court declined to give.
    The defendant requested the Court to charge the jury:

      1. That if the jury find that the plaintiff, prior to March 20, 1850, being the proprietor of the land in question, caused it to be laid out and platted as a village, and caused such plat to be recorded in the office of the Register of Deeds of Yan Burén County, without having acknowH edged the same according to the statute, arid that he conveyed lots in said village by deeds duly acknowledged, referring to such recorded plat between the time of platting and said 20th of March, 1850, then the fee of said land in question vested in this county for the uses and purposes therein expressed, to wit: a public square.
    2. That if the jury find that the plaintiff,' being the proprietor of the land in question, at any time intended, or, by his sayings or acts, held out to the public that he intended to give said land to the public for the purpose of a public square, and that the public, by any act or acts of theirs, accepted said gift by taking possession thereof and using the same as such public square, or by expending money upon it for improving, fencing, or other purposes, that it would constitute a dedication at common law, independent of the statute, of the land in question as a public square, and that the plaintiff would thereafter be estopped from denying the public the right to use it and treat it as such.

      3. That if the plaintiff held it out to the public as a gift for a public square, and they, intending to accept it as such, and supposing it to be such, expended money upon it for its improvement, that they acquired rights in reference thereto which the plaintiff is estopped from denying. That it would be a breach of good faith in him, and the law will not permit him, to assert rights inconsistent with the rights thus acquired by the public.
    4 That to constitute a dedication at common law it is not necessary that the legal title pass from the owner; nor is it necessary that any grantee of the use should be in existence. All that is required is the assent of the owner of the land to the use, acceptance by the public, and the actual enjoyment of the use for such a length of time that J;he public accommodation and private rights might be materially affected by an interruption of the use.
    5. That by the public is meant not any particular corporation, or village, but any considerable number of the people of the village in common with the people of the vicinity.
    6. That it is not necessary that there should be any formal act of acceptance by the “public authorities” as such; that it is sufficient if a considerable number of the people of the village, or vicinity, accept the same by acts, such as taking possession and using it for the purpose intended for any considerable length of time, and spending and laying out money upon it for that purpose.

      7. That it is not necessary that it should be used by the public for any particular length of time, but a dedication may be established by acts on the part of the owner and the public, if unequivocal in their character, though occurring in a single day.
    8. That when once the public have acquired a right to a public square, by dedication and acceptance, they cannot be divested of that right by long continued encroachments by any one, nor could any length of occupation destroy the right of the public short of a strict prescription, an exclusive possession thereof, for fifteen years.
    9. That when the proprietor of a village has dedicated a piece of ground therein for a public square, and caused a plan of the village to be recorded, and has sold lots according to such plan, he cannot resume and exercise acts of ownership over the land thus dedicated which will deprive their grantees of any privilege which they might’ derive from having such square left open. That in such case the proprietor is estopped from denying his grantees that privilege who have bought with reference to said plan.
    And the Court so charged as requested by the defendant. The Circuit Judge further charged the jury:
    “You will perceive that the plaintiff claims the exclusive right to the possession of block six (6), in the village of Lawrence, in this county. The defendant admits that the plaintiff once had that right; but claims that he has, by his own act, parted with it, and that he has not regained such right.
    “The defendant claims that the plaintiff has dedicated the premises to the public, as a public square, and that in contemplation of law, it still remains a public square. A dedication of land to the public, means a solemn appropriation, or a setting of it apart to the use of the public. Dedications are of two kinds: 1st. Statutory. 2d. By the rules of common law. .The first is where the person, desirous of making the dedication, performs certain acts required by the statute, which have already been read in your hearing. The second where the person, by 'his own acts, gives it to be understood, unqualifiedly, that he intends to set it apart to the public and to relinquish his own right to, or control over the same — except such right as in common with the public. But to constitute a complete dedication at common law, the public — and by this I do not mean, necessarily, all the people of the immediate vicinity, or even a majority of them — must by their acts accept the offer to dedicate, and the Court charges you that, at any time before such acceptance, the person making the offer may revoke it, but not afterwards.
    “As to what acts are necessary to constitute an acceptance, the Court charges you that no particular and exclusive act or acts are necessary. The use of the property for the purpose for which it was offered, by any considerable number of the people; a formal vote of the people of the township, at a town meeting; or perhaps by the Board of Supervisors, would be acts tending to show an acceptance; but no particular one of those acts is absolutely essential to constitute a common-law dedication.
    “If you find from the evidence that there has been a statutory dedication, the Court charges you that the person so dedicating cannot by re-entry upon the same revoke it.”
    To the refusal to charge as requested, and to the charge as given, the plaintiff excepted. Verdict and judgment having been entered for the defendant, the plaintiff brings the cause into this Court by writ of error.

      Thos. H. Stephenson and D. Darwin Hughes, for plaintiff in error.
    I. The Court erred in refusing the 5th, 6th, and 16th requests of the plaintiff to charge, and in giving the 5th and 6th requests of the defendant. The acceptance by the public, which is necessary to a complete dedication, must be a formal act of some organized public, or by user, under the sanction of such organization, and' no act of mere individuals can amount to an acceptance of the dedication.
    The cases upon this subject are quite decisive and based upon some principle. When the dedication of a highway or public square is accepted by the public, certain liabilities result and are incurred by the corporate authorities, and it is entirely inconsistent that these should be thrust upon them against their consent and contrary to their judgment. People v. Jones, 6 Mich., 184.; Fonda v. Borst, 2 Keyes N. Y., 48; Pope v. Town of Union, 3 C. E. Green, 282. The acceptance must be “by some express, corporate, or official act, or by user, distinct and unequivocal.”—Bissell v. N. Y. C. R. R. Co., 26 Barb., 634.

      Streets and roads dedicated by individuals to public use, but not adopted by the local public authorities, or declared highways by statute, are not highways within the meaning of the highway acts, and there is no law by which any one can be compelled to keep them in repair.—Oswego v. Oswego Canal Co., 2 Seld., 264; Holdane v. Cold Spring, 23 Barb., 123; Hobbs v. Lowell, 19 Pick., 405; Bowers v. S. M. Company, 4 Cush., 340; Page v. Weathersfield, 13 Vt., 429; Blodgett v. Royalton, 14 Vt., 288; Wright v. Tukey, 3 Cush., 290; Clements v. Troy, 16 Barb., 251; Indianapolis v. McClure, 2 Ind., 147; Underwood v. Stuyvesant, 19 Johns., 181.

    II. The Court below erred in his rulings and instructions in reference to a statutory dedication in the follow'ing particulars: a. The record of the plat was not entitled to be read in evidence, for the reason that the acknowledgment was not under seal, and the instrument otherwise defective.—Comp. Laws § 1133; Lee v. Lake, 14 Mich., 16; People v. Beaubien, 2 Doug., 271. The lot in question, or “ public square,” was numbered 6, in a regular series of numbers, as if for sale, and was not described by boundaries, courses and extent.—Comp. Laws, § 1133. b. The act of 1850 Comp. Laws, §§ 114-6-1147 does not in terms cure this defect. The two sections, when construed together so as to give effect to all the language used, clearly shows this. This first section applies only to conveyances and contract relations, and has no application to public grounds. To give it any other effect would render the second section useless. But the second section applies only to public grounds, and to cases where the plat has been “duly acknowledged.” c. Any other construction would make the law unconstitutional, and void in its application to this case.
    It is not denied that the Legislature may, by retrospective act, cure a mere technical defect which it might originally have dispensed with; but this rule is based upon an equity, and goes upon the principle that where there is a right, the Legislature may provide a remedy. It is therefore based upon and has its application to contract relations only. d. A statutory dedication requires the same acceptance by the public as a dedication at common law. All principle, and all argument and reason which applies to one, applies also to the other.
    If no acceptance is necessary, then obligations and duties may be thrust upon the public contrary to their judgment and against their consent, and if they should refuse to accept, then the title would be out of the grantor, and it is difficult to see what would become of the land. It must remain unused and unimproved to all time, or be subject to caption by any individual or revert to the government.—Lee v. Lake, 14 Mich., 12.

    It results, that before acceptance by the public, the dedicator may revoke a statutory dedication. That he may do this at common law is not disputed, and he may do it under the statute. By force of the statute, the fee is vested in the county for the uses and purposes expressed by the plat, and if the use and purpose are refused, or not accepted by those for whose benefit it is offered, no right attaches; no equity is created, and the act being voluntary and without consideration, may be revoked.

      Balch, Smiley & Balch, for defendant in error.
    The defendant pleaded, and at the trial proceeded upon, three distinct grounds, as a defense to the action, viz:
    1st. That there had been a statutory dedication by the plaintiff of the close in question to the public, in pursuance of the statute of this State (§§ 1188, 1133, and 1147, Comp. Laws) whereby the fee of said land was vested in the County of Van Burén for tbe uses and purposes of a public square.
    2d. That there bad been a common-law dedication by tbe plaintiff of tbe land in question to tbe public, and an acceptance thereof by tbe public, whereby tbe public bad acquired an easement in said land, or a right to use it for tbe purpose of a public square.
    3d. That tbe plaintiff had platted tbe village of Lawrence, describing said close as a public square, and sold other lots in said village, describing them by reference to said plat and according to said plat; that tbe defendant was bis grantee of some of those lots by ■ and through mesne conveyances, and bad, by means thereof, acquired tbe right to have said square remain and be used for tbe purposes of a public square, and that tbe plaintiff was estopped from according to him that privilege.
    Tbe first error assigned is that tbe Court erred in admitting in evidence the recorded plat of the village of Lawrence, and tbe first reason urged is that tbe certificate of acknowledgment was not under tbe seal of tbe magistrate. Tbe law of 1850 (Comp. Laws, § 1146) was made for tbe purpose of curing defective acknowledgments, and made the plat as valid when these facts were shown as though tbe certificate of acknowledgment bad been in proper form.—Lee v. Lake, 14 Mich., 12.

    This act was constitutional and valid. It does not impair tbe obligation of any contract, it does not disturb or interfere with any vested right; it was merely binding a party to a contract which be bad attempted to enter into, but which was invalid or voidable by reason of a neglect of a merely legal formality.—Cooley on Con. Lim., pp. 374, 378; Thompson v. Lee County, 3 Wallace, 327; Gibson v. Hibbard, 13 Mich., 215.

    This statutory mode of dedication is not a mere offer to the public; it is a conveyance to the county in trust for the public, provided by the Legislature, and vests the fee in the county.
    The second objection to the plat was not well taken. The square is described on the plat by its boundaries, courses and extent. It is bounded by streets named upon the plat, its courses are indicated and described upon the plat, and its extent, also, is shown and may be ascertained from the plat itself.
    The third was also groundless. The statute require»? the lots intended for sale to be described by progressive numbers. This was not a lot but a UocJc. The lots were numbered by progressive numbers, but no lots were marked out or numbered upon this block at all, clearly showing that it was not for sale, but for a public square. It was marked “public square,” and the deed or conveyance expressly states that it (block six) was given for a public square.
    It was competent to give in evidence his acts and declarations, for the purpose of showing that he offered to dedicate the premises to the public, and it was proper to give in evidence the acts and declarations of the public to show an acceptance by them.—2 Greenl. Ev., § 662; People v. Beaubien, 2 Doug., M., 256; People v. Jones, 6 Mich., 176; Lee v. Lake, 14 Mich., 12.

    The plaintiff contends that these several acts were not the acts of the public, but of the people in the vicinity, and that they could not accept the same. But it is well settled that in the case of dedications, the law does not require any specific grantee in esse at the time to whom the fee_ could be granted, or in whom the title could vest. In this respect it forms an exception to the general rule in transferring or creating an interest in lands. It may be done without any deed and without any person competent to accept the grant as grantee.—Wash. Eas., §§ 174, 175 (Old ed., 128); Cincinnati v. White’s Lessees, 6 Pet., 435; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; People v. Beaubien, 2 Doug. (Mich.), 256; Rees v. Chicago, 38 Ills., 336; Morey v. Taylor, 19 Ills., 637; Warren v. Jacksonville, 15 Ills., 236; Alvord v. Ashley, 17 Ills., 369.

    The foregoing carries with it the further proposition that it is not necessary that there should be any corporation to whom the dedication is made. The village, of Lawrence was not incorporated until the spring of 1869. (See Laws of 1869, Vol. 2, p. 640). The public remains the same since as before said incorporation, and consists of numbers outside as well as within the limits of the village and township. The public is an ever-existing grantee, capable of taking dedications for public uses.—City of Cincinnati v. White’s Lessees, 6 Pet., 435; Warren v. Jacksonville, 15 Ills., 240; Rees v. City of Chicago, 38 Ills., 336; New Orleans v. United States, 10 Pet., 713.

    The authorities all agree that the pziblic may accept the dedication. What is meant by the public is not any corporation like a city, town or county, but the body of the people at large.—Webster’s Dic., Title: “ Public ”; Bouv. Law Dic., Title: “Public”; 1 Creenl. Ev., § 128.

    The people of the neighborhood, — the community at large,— without reference to the geographical limits of any corporation, constitute the public, and they, when acting in concert, may accept property .offered to them as a dedication for public purposes.—People v. Jones, 6 Mich., 184; Holdane v. Trustees of Cold Spring, 21 N. Y., 478; Green v. Town of Canaan, 29 Conn., 164; Guthrie v. New Haven, 31 Conn., 321; Waugh v. Leach, 28 Ills., 492; Ward v. Davis, 3 Sandf, 519-520; Wash. Eas. and Serv., 188 (Old ed., 139).

    The people are the pziblic, and they may act in either wav: 1st. Directly, where they themselves assemble in considerable numbers, or in any manner acting in concert, they express their approbation and acceptance of a gift or offer of dedication, as by the open and public use of property which is useful and beneficial to them. 2d. Indirectly, through corporate bodies who, acting as their agents or representatives, accept by vote or resolution, according to the form of law, or by acts of user, such as repairing and working roads and ways, and improving public grounds. User by the public, by the people themselves, or by their representatives, is all that is required.—Trustees of British Museum v. Mason, 5 Car. and P., 460; Jarvis v. Dean, 3 Bing., 447; Grand Surrey Canal Co. v. Hall, 1 M. and G., 392; Regina v. East Mark, 11 Q. B., 877; 15 Q. B., 17; Rex v. Petrie, 4 Ellis and B., 737; Cincinnati v. White, 6 Pet., 435; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Pearsall v. Post, 20 Wend., 111; 22 Wend., 425; Trustees of Watertown v. Cowen, 4 Paige, 510; Rung v. Shoenberger, 2 Watts, 23; State v. Wilkinson, 2 Verm., 48; Abbott v. Mills, 3 Verm., 521; State v. Catlin, 3 Verm., 530; State v. Trask, 6 Verm., 355; State v. The Mayor, 5 Port. (Ala.), 279; Spring Garden v. Northern Liberties, 1 Whart., 25; 2 Smith’s Lead. CGases, note to Dovaston v. Payne; Morey v. Taylor, 19 Ills., 637; Warren v. Jacksonville, 15 Ills., 236; Alvord v. Ashley, 17 Ills., 369; Rees v. City of Chicago, 38 Ills., 336; Wash. Eas. and Serv., pp. 197, 200; 2 Greenl. Ev., § 662. The public may acquire land by dedication from an incorporated town in whom the fee had been previously vested.—State v. Woodward, 23 Verm., 92, 99.

    It was proper to show that the property had not been assessed for taxes for a period of twenty years and more, and to show that it was omitted by the assessing officer by reason of its being public property. 'This tended to show an act of acceptance by the public through one of its representatives.
    That which has been dedicated is properly in charge of the corporate body within whose limits the property lies. Not because that corporate body owns it in fee, for it does not; neither does it own the exclusive use of it; but merely as the agent of the public it exercises the right to regulate the proper use of it by the public. Wash. Eas. and Serv., 210, 201; 2 Smith’s Lead. Cases, 5 Amer. Ed., 222; Com. v. Alburger, 1 Whart., 469, 485; Com. v. Rush, 14 Penn. St., 186; Watertown v. Cowen, 4 Paige, 510; Dubuque v. Maloney, 9 Iowa, 460; Lefler v. City of Burlington, 18 Iowa, 361; Comp. Laws, §§ 1140, 1146.

    The charge that there must be an offer to dedicate by the owner, and an acceptance by the public, is the law as recognized in this Court in several cases. Lee v. Lake, 14 Mich. 12; People v. Beaubien, 2 Doug., M., 256; People v. Jones, 6 Mich., 184.

    The seventh request of the defendant was properly ¿ranted. No particular length of time is required as in the case of prescription to establish a dedication. Prescription goes upon the ground of a deed, and presumes one from long adverse possession, but in the case of a dedication no deed is required and none is presumed. A dedication may be found by the jury from acts of the ■owner and the public, if unequivocal in their character, though occurring in a single day. 2 Washburn on Real Prop., 456 (old ed., 459); Washburn Eas. and Serv., 187-190; Hunter v. Trustees, &c., 6 Hill, 407; Rees v. City of Chicago, 38 Ills., 336; 2 Smith’s L. C., 5 Amer. Ed., 222.

    A dedication is, in its nature, irrevocable when it has once taken effect. At any time, in the case of common-law dedications, before acceptance by the public, the owner may revoke the offer to dedicate. But when once, the public have accepted the offer, the right-, is vested, they have-secured the easement, and the owner cannot reclaim it by' any encroachment thereon short of a prescription. Wash. Eas. and Serv., 210, 211, 188; Com. v. Alburger, 1 Whart., 469, 485; 2 Greenl. Ev., Sec. 665.

    . The defendant was the plaintiff's grantee of lots in said village of Lawrence, described in the deeds “ according to the recorded plat thereof.” The recorded plat described this block (six) as a public square, and donated it as a public square in the conveyance accompanying it under the hand and seal of said grantor. The right of the public, and especially that portion or those members of the public who stood in that relation to the plaintiff, could not be denied by him. He is estopped from disputing their right to have said square left open and used for the purposes indicated upon the recorded plat. Sinclair v. Comstock, Harr. Ch., 404 and 412; People v. Jones, 6 Mich., 176; People v. Beaubien, 2 Doug., M., 256; Lee v. Lake, 14 Mich., 12; 2 Greenl. Ev., Sec. 662.

   Campbell, Ch. J.

The action below ivas an .action of trespass for breaking the close of Baker, and defendant justified on the ground that he was acting' on behalf of the village authorities of Lawrence, Van Burén County, in entering upon the premises as a public square lawfully dedicated by Baker, and accepted on behalf of the public so as to preclude him from withdrawing the dedication. Most of the questions presented by the assignment of errors relate to the acceptance and sufficiency of the dedication.

In September, 1846, Baker made and caused to be recorded a plat of certain lands, including the village of Lawrence as then projected by him. On this plat, which was not so certified as to become a valid recorded plat under the statutes, the streets were laid out and sufficiently-defined, and the sizes of the lots and blocks were all given. The objection that the square in question was not described by its boundaries, courses, and extent, is not well taken, because the owner’s certificate, appended to the plat, was designed to explain all the dimensions, courses, and distances not otherwise made plain, and is a very proper part of the plan, and should be read with it. Combining the plan and the certificate signed by Baker, there is no uncertainty of the kind mentioned. The square is suffi.ciently identified, and the only contention is concerning .the public rights in it.

It is claimed, however, that, as this square, although marked “ Public Square,” is also marked as “ Bloch No. 6,” the latter designation is inconsistent with any public destination, becaiise the statute requires the person making the plat to describe “all the lots intended for sale by progressive numbers.” We do not think that this provision would invalidate the designation of a block by its number for any lawful public purpose. It was merely, designed to produce some degree of harmony -in the numbering, and to facilitate the location and description of lots. And in case a block offered to the public should be refused, it is evident that its being numbered with the rest in regular course would then tend to prevent any break in the continuity of the numbering, and lead to harmony instead of confusion. We think there is no. force- in this objection. It might also be suggested that as .the plat was not completed so as to make it a statutory dedication. when executed, it might not be proper to test it by the statute.

The plat was made and deposited for registry by the owner of the land, and he Subsequently sold lots which were described by ■ reference to it. A ■ question now arises whether this has, under the law of 1850, operated to make the plat effectual as if it had been legally complete in the first place.

The statute of 1850 consists of two sections, both of which profess to be retrospective. The first section in terms provides that where proprietors have platted lands and caused the plat to be recorded, without the proper acknowledgment, and have sold and conveyed lands by reference to the recorded plat, it shall have the same effect as if legally acknowledged and recorded. The second section provides that where a plat has been duly acknowledged, the record theretofore made shall be evidence as against the makers of the sufficient dedication, gift, and grant to the public of any portion thereof represented in such plat as a public square. Both sections save rights in present litigation.

• If the first section is broad enough to cover public squares, then .there was no occasion at all for the second. And we think it clear that it was not designed by either of these sections to create a dedication of a public square by any thing which did not operate when made as a complete conveyance in fee to the county of lands properly defined as -intended for public purposes. It was evidently considered that a difference might exist in the legal condition of lands destined for common highways and for other purposes, and that a dedication for one might not suffice for another.

From time immemorial it has been recognized common-law doctrine that land might be dedicated for use as a common highway without grant or covenant. An intention to dedicate, and a sufficient public acceptance by user or otherwise, made out a complete piiblic easement. And where an open square was designed 'merely for the enlargement -of a highway, and intended to be used as such, it would fall. within the same category. But there seems to be no reliable foundation for the idea that there could, at common law, be any setting apart of lands for any other uses • by dedication. Commons and analogous rights are always assumed to rest in grant; and all of those pleasure grounds and ornamental grounds which naturally concern the dwellers in the vicinage more than travelers, owe their existence in all probability to special grants and agreements. No other origin is anywhere suggested, and the common law furnishes no precedents for any other. There are many royal parks and liberties regulated by law, but we find no trace of private dedications for such purposes, analogous to highway dedications. .Am act has been passed during the present reign in Great Britain providing for the care of such grounds in certain cases, but it recognizes none except where a grant has been made to commissioners* trustees or some other body, and only interferes where such grantees neglect to keep up the grounds as they should be. The law is set out in full in Tulk v. The Metropolitan Board of Works, L. R., 3 Q. B., 93. No such thing as a right by mere dedication appears to be recognized anywhere. In Pearsall v. Post, 20 Wend., 111., affirmed 22 Wend., 425, it was held there could be no such dedication for a public landing, and the Supreme Court intimated very plainly that there could be no legitimate dedication except for highways, and it is somewhat difficult to determine how far the Court of Errors would have gone beyond them, if the case had called for a decision upon public squares.

But the decisions which have predominated, in this country, have undoubtedly assumed that the mere want of a grantee would not defeat a dedication of lands for well-defined public purposes. They have likened them to charitable trusts, which will not always fail for lack of a trustee. But as the general doctrine in the United States has not gone far enough to sustain vague charities (unless :in a few states where the English doctrine is more or less favored), the utmost that can be said is that where the purpose is clegr and well-defined, the courts will protect lands which have been dedicated to public uses, and which are so situated that the public purpose can be legitimately carried out. And as in the case of charities, the trust can never become operative until some authorized body exists to assume its management, so in the case of these public grounds, there is some difficulty in maintaining the public interest, unless it has some legitimate guardian. And there is no such settled law as would fix any such interest as binding against the land owner in all cases without some such guardianship. And there is no settled line of decisions which binds any one by a dedication to purposes which are not defined. An offer for public uses amounts to nothing until it is agreed what those uses shall be. And this seems to have been the difficulty which was sought to be remedied by section 2 of the statute of 1850.

There was no statute in force providing for the care of any public grounds not used as highways, except where they come under the control of incorporated cities and villages. The law regulating the laying out of plats required that it should appear not only what the public grounds were, but also whether they were “intended for streets, alleys, commons or other public uses,” and the plat thus designating these grounds, and properly acknowledged and recorded, operated as a conveyance to the county in trust for the purposes designated. The original statute contemplated such trusts as could be deduced from the plat itself, without resort to parol evidence. And where land had simply been designated as a public square, it did' not necessarily mean more than that it w.as for public uses, without showing what uses were intended. A dedication could be made .out by showing a parol agreement applying this general designation to specific uses. But the plat alone would be wanting in precision, and would not accurately define the trust purposes. The space may have. been destined for commons, or ■ schools, or county buildings, or burial purposes, or any other use which could be legitimately regarded as public; and nothing but extrinsic evidence or subsequent agreement could remove the ambiguity. And it is well known this objection had been suggested in reference to plats then existing. It certainly had always been our policy to discountenance the introduction of parol evidence to establish or define trusts. Our statute of frauds then in force explicitly required them to be in writing, and there is no reason to suppose that the statutory conveyance in the form of an acknowledged plat was expected to be any less certain than if it had been a deed for the same purposes.

When the curative act of 1850 was passed, probably most public squares which had not been resumed by the proprietors had become set apart, by their concurrence, to specified and legal purposes; and it was intended by the second section of that act to legalize the uncertain description which had generally been made certain by the parties, where the public right was not in controversy, and to prevent the vagueness of the original dedicatory act from defeating it, but it was not intended to affect any trust for public squares, unless the form of the statute had been complied with by such an acknowledgment and record as would operate originally as a conveyance to the county, of all grounds whose purpose had been sufficiently designated. It legalized such dedications as had assumed the form of complete statutory conveyances, and were only defective in not fully defining the purposes for which public squares were intended.

The present case must be determined by such principles as would govern it independently of the statute. There is no difficulty in ascertaining an original intent to have this land set apart for some public purpose. And the difficulty suggested by the record lies in ascertaining whether enough has been done to apply that intent and to make it irrevocable.

We think it must be assumed as the generally understood law at this day, and as law here, that there may be a dedication effectual against the land owner, without a statutory and formal conveyance to the county. It would conflict with recognized usage to hold otherwise. But it is not to be denied that the introduction of this anomaly brings with it many difficulties, and has had no tendency to simplify these rights, or to diminish litigation upon them. And the authorities furnish no adequate light upon the subject. There are many cases showing that such dedications may be made. But there are few, if any, which give much aid in determining how and when such dedication is made irrevocable by the acceptance of the representatives- of the public. And we can only reach a conclusion on this subject by considering the various elements which must be taken into the account.

If the square in controversy was intended as an expansion of a street, and thus made for what in law would be merely a highway, there would be no practical difficulty in determining its condition. It would fall into the same category with other roads, and be governed by the rules applying to such easements. But the plat shows that it was to be kept as a block separate from the adjacent streets and bounded by their exterior lines. And all the evidence negatives the idea of any other design. It was meant for some other purpose than a passage way. As a street it could have been made public bjr the action of the highway officers, or by a sufficient and continuous user for travel. But there are no township officers who have charge of any other public lands, except school district officers, and the purposes to which a square may be devoted would not all admit of any general user for specific purposes. We are met at once by the difficulty that lands intended for different public purposes cannot all be treated alike. And we also discover that in some places and for some purposes there are public officers representing the public, and there is a representation of the public also by a certain numerous class of undefined individuals; while in other places and for other purposes, it is not so easy to find any undoubted public representatives, whose official acts or whose customary user can be regarded as binding the commonwealth or municipality. As no land can become public without an acceptance by some one of the offer made by an attempt to dedicate, the question, who can make this acceptance, and in what way can it be made, is one of much nicety and great importance. And the time during which the offer should be regarded as open, is also important to be determined.

When a land owner sets apart portions of his plat for public purposes, it is done with the expectation that the use of such portions for those purposes will be advantageous to the rest of the property, or to the original proprietor. He has a right to expect that within a reasonable time the land will be put in condition to subserve those uses. If given for public buildings; there must be some reasonable assurance that they will be built, and if for ornamental purposes, that it will be made available for those. He cannot be bound to wait and abstain indefinitely from the use of his property upon the chance that at some time or other in the remote future the public use may be secured. And his efforts to induce such acceptance and use cannot properly be regarded as anything more than repetitions and continuances of his offer, requiring some responsive action. There can be no estoppel in favor of those who are not themselves estopped. And the public can only bind the land owner by acting upon his dedication before he has an equitable right to withdraw it.

Where the land platted falls within a city or incorporated village, and there are corporate authorities having control over public lands and easements, there is no difficulty in holding that the acceptance must come from the authorized public agents, in order to give the public any rights in the dedicated premises. If those who have authority neglect or decline to act, then no force can be given to the acts of those who have no authority. The statutes have provided for certain cases of public user of highways, but for nothing further. And dedications for other than highway purposes require acceptance in a different way.

But it sometimes happens, and it was so in the case before us, that land is platted where no incorporation exists, and where there is no certainty that the locality will become an incorporated town or city within any reasonable time. The population required for an incorporated village must be at least three hundred to the square mile, and the village itself must contain that number. And while that must be a very small village which falls short of three hundred, yet there are such villages, and if persons should see fit to provide squares and other conveniences and adornments for these small settlements, there would seem to be no sound reason why their validity should not be maintained, although an intention to make a dedication for such limited purposes may not perhaps be so easily inferred as for larger settlements. In determining whether a dedication has become complete, it will become necessary in such a case, as it is in the other case, to ascertain Avhat the person dedicating must be assumed to haAe reasonably expected would be done by others to meet his offer, and to secure the application of the property to such uses and in such a manner as will carry out the design of the dedication. And it may also become a serious question hoAV far the Avant of corporate capacity may interfere AA'ith the acceptance of a dedication, that is lacking in some of the elements of certainty.

Where land is dedicated as a public square, without other qualification,' and such dedication is accepted, the particular uses to Avhich it is devoted must be within the determination of one or both of the parties. The statute of 1850 indicates an intention to make such dedication sufficient, Avhere the plan is legally executed, and if so, it would seem to follow that the designation of the particular use should rest with the public aiAthoritics. But where there are no public authorities, and where the dedication is not statutory, the land OAvner must have it in his power to determine its purposes until by some action estopping him from further interference, he has bound himself to acquiescence in some definite use. And AAe think such acquiescence is not impossible.

If the owner should covenant with others, assuming to act for the general interests, that the land, upon conditions performed, should be inviolably and irrevocably devoted to any public use, unless those conditions were such as to require some permanent organization to perform them, it would seem that if the covenantees had any individual interest to connect them Avith the locality, an equity Avould arise to enforce the obligation.' The English act of Parliament before referred to appears to rest on such an assumption, and to regard such an obligation as binding. And if any voluntary agents should, at his request, and for the public benefit, expend money and assume actual possession of the premises upon the agreement on his part that such possession should be regarded as a definite acceptance for the public, we ' see no good reason why the same principle should not apply, rendering their joint acts analogous and equivalent to a partly-performed parol agreement between individuals. But any thing less than this woxxld be too vagxxe and shadowy a title to be susceptible of enforcement. The statute of frauds will not bear any exception which canxxot rest on the substantial equities of a partly-performed contract; and the principles of equitable estoppel will not apply where there has been no distinct and encouraged action in reliance upon the promises or representations of the land owner, which he is bound to know have beexx based oxx such reliance. And where no one legally represents the public, he cannot be compelled to recognize volunteers unless he has dealt with them and consented to admit their agency.

The facts introduced in evidence in this case to show a complete and accepted dedication, are of different kinds and significance. The sales, by reference to the plat, were admissible to bear upon the original intent to dedicate. But upon this intent the plat is too explicit to require further aid, and the intent is not disputed. Such sales have no tendency to prove an acceptance by the public, or an estoppel in favor of the public. It is not material to consider how extensive the private rights would be in lands intended for pxxblic enjoyment, and not essential to any right of passage or individual profit. Purchasers by a plat must understand upon what conditioxxs pxxblic spaces are promised by it, and if the public do not accept the grant, there has been no violation of the grantor’s implied covenant. • Streets, affording easements directly profitable and necessary to the use of lots, may stand on a different footing. But the fact that the defendant in this case was a lot owner, could give him no right to enter upon these premises, and could not qualify an entry made in a public capacity and not for private purposes. If the land is not a public square, there is nothing tending to justify the entry. If it is such a square, the ownership of lots became immaterial. No individual could have a private right of occupancy in any such premises.

Neither could a public acceptance be made out by the testimony showing that the premises had been used by the inhabitants or by traveling showmen for purposes of amusement, like ball playing and circus performances. Any vacant private property may be and is usually resorted to for such purposes, and they are in no sense public purposes. It is at least questionable whether an express dedication could be maintained for any such objects. Pearsall v. Post is decidedly adverse to such an idea, and in the case of Lee v. Lalce, 14 Mich. R., 12, such acts were not regarded as very material. The use for agricultural fairs is repugnant rather than favorable to the idea of a public acceptance. Such a use is no way conducive to public ornament and to the embellishment of a village. The fairs occur at distant periods, and the close fences and unsightly buildings, necessary for the purposes of stock exhibition, must be during the remainder of the year eyesores rather than attractions. Such uses have never been recognized as calculated to show the acceptance of a dedication of public grounds in a village, and we think, as intimated in Lee v. Lake, that they have no such tendency. So far as any of the proof offered in the case has any significance, it tends to show the purpose of dedication to have been to create an ornamental park, which is now perhaps the commonest purpose for which dedications of public spaces are devoted. And the only evidence of any joint action bearing upon the question of the acceptance of the dedication .by -any persons having a right as against Baker to claim as representing.the public, is to the same effect. That evidence requires some notice.

It appears by the testimony of Baker that he had no idea of revoking his offer to dedicate until the year 1865, when he resumed- possession. It also appears that some two or three years previous to this (the witnesses not all identifying the time precisely), there' was some concerted action in which the- plaintiff is claimed to have taken part, for the purpose of leveling and fencing the square, and planting it with shade trees. A subscription in writing was made by the plaintiff and others, and a general meeting or “bee” was had to do the work expressly for the public, and the enclosure was made in this way.

It is not within our province to decide how far this proof went, but we regard it as material and very significant. Under repeated decisions of this Court such a subscription could have been enforced as a valid contra.ct. Underwood v. Waldron, 12 Mich. R., 73; Comstock v. Howd, 15 Mich. R., 237. If it was the understanding between plaintiff and these parties who joined in the enterprise, that this was to carry out the design of preparing the ground lor the purpose of its dedication as a square or park, we think that in the case of an unincorporated village no better mode of acceptance and agreement could be devised, and that there is no reason why the contract and arrangement, so completed, should not be held binding. lYe think there is nothing else in the case which would justify a conclusion that the dedication had become irrevocable, but we think these transactions, if proven to the satisfaction of the jury, would be sufficient. And if so established, the subsequent acts of Baker in resuming ¡possession gave him no rights, and were unlawful. The assessment or non-assessment of tlie premises ive do not regard' as material, as tbe assessing officers do not represent the public for the acceptance of dedications.

The views we liave expressed render it unnecessary to refer more particularly to tbe several assignments of error. Tbe instructions and rulings in' conflict with tbeso views were erroneous. Tbe judgment must be reversed, and a new trial ordered, with costs to plaintiff in error.

Tbe other Justices concurred.