author: Christiancy J. : Campbell J.:

text:
    James M. Johnstone v. Catharine M. Scott and others.
    In ejectment for lands described as a certain lot “according to the plat of the village of Portsmouth,” the identity of the land may be proved by persons acquainted with it, without the production of the recorded plat.
    Deeds of town lots are valid notwithstanding the failure of the proprietors to acknowledge and record the town plat.
    And though the deeds refer to the plat and state it to be on record, when it is not, they are still good, and the statement that it is recorded will be rejeoted as falsa demonsWatio.

    And if the plat be actually recorded, though not legally, it may be used for the purpose of identifying the land described in the deeds referring to it.
    But if bpth parties in ejectment olaim through deeds which refer to a plat as recorded, the claim must be regarded, as an admission of the plat, and of its being recorded if a record is necessary.
    Where a copy of a map is put in evidence without objection, any right to insist upon the production of the original is thereby waived.
    The question discussed whether a tax title of a town lot is valid where the plat of the town has never been recorded.
    Where defendant in ejectment undertakes to establish title in himself derived from the same person through whom plaintiff claims, and sets up no other right in himself, it seems that he must be regarded as admitting the title of the pe2*eon through whom he thus claims.
    A foreclosure by advertisement is not void by reason of tho sheriff erroneously stating the time of redemption, in his certificate endorsed upon the deed, as one year instead of two. To avoid the foreclosure, it must bo shown that a tender of the redemption money was actually made within the two years.
    A collector’s receipt for taxes is an official paper which the law requires him to give, and is therefore evidence of the payment of the tax in suits between third persons.

      Heard January 9th.

      Decided April 28th.

    Error to Bay Circuit.
    Ejectment for certain lots and blocks in Bay City, described in the declaration as being in that part of the village of Bay City which was formeriy part of the village of Portsmouth, according to the plat of said village of Portsmouth.
    On the trial, it was admitted that Joseph E. Marsac, purchased of the United States fraction number two, and Gardner D. Williams fraction number three, of section twenty-eight, town 14 north of range 5 east. Plaintiff then offered in evidence a deed from Henry Howard and Gardner D. Williams, describing themselves as trustees of the Portsmouth Company, to Joseph F. Marsac, of certain iota and blocks corresponding in numbers with those in the declaration, and described as “situated in the village of' Portsmouth, county of Saginaw and State aforesaid, agreeable to the plat of said village 'of Portsmouth, as adopted by the Portsmouth Company, which plat and subdivision of said village is recorded in the Register’s office in said-county of Saginaw, and to which reference is hereby made-for a more accurate description of the same.” To this the defendant objected, that until there was proof of a plat of the village of Portsmouth, showing property to which the description of the property in question can apply, the deed was inadmissible in evidence: and it was received in evidence subject to this objection.
    The plaintiff then gave in evidence, deeds from Joseph F. Marsac to Benois Tromble, from Benois Tromble to Lucretia Chappel, from Lucretia Chappel to James Watson, and from James Watson to the plaintiff purporting to convey lots in Portsmouth, all - of which were described with the same reference to the plat as in the deed from Howard and Williams. Also a deed from the Auditor General to James Watson, of block 168 in Portsmouth, which was covered by the deed from Watson to plaintiff. This deed was given on a sale of the block for the taxes of 1851.
    The plaintiff then called as a witness, Benjamin F. Partridge, who was shown a map or plat which purported to be acknowledged by Gardner D. Williams, Henry Howard and Benjamin F. Towne, trustees of the Portsmouth Company, May 5, ÍSSL The witness testified that this was a lithographic copy of a plat of Portsmouth. The deed from Watson to the plaintiff was then shown him, and the following question proposed : State if you know whether the lands described in that deed are situated on fractions two and three in fractional section 28, township 14 north of range 5 east? This was objected to, on the ground that it did not appear that the proprietors of the land had acknowledged any plat of the land laid out as a villagé. The Court sustained the objection, and declared that the evidence was not competent for the purpose of identifying the land, but a plat must first be proved properly acknowledged by the proprietors. The following question was also overruled on the same ground: Do you know who is in possession of the property described in that deed?
    The defendants on their part gave in evidence a mortgage of the lauds described in the deed from. Tromble to Chappel, in which they were described in the same way; which mortgage was given by Tromble “to Charles L. Richman and Lyon,” dated June 24, 1839 (prior to 'the deed to Chappel), and an assignment to Richman of the interest of “Lyon” therein, endorsed on the back 'thereof, but not acknowledged or recorded. The defendants then introduced a deed from the sheriff of Saginaw •county to Charles L. Richman, given on a statutory foreclosure of said mortgage, dated September 2l, 1841, and with a sheriff’s certificate endorsed that the sale would become absolute in one year unless the premises were sooner. redeemed. This deed was accompanied by proof of the advertisement and sale. Defendants also proved a quit claim deed of the premises from Charles L. Richman to Henry G. Scott, the death of said Henry G. Scott, and that the defendant Catharine Scott is his widow and the other defendants his heirs at law; also a receipt from Clark Moultrop, treasurer of the township in which the premises in controversy were situated, covering the taxes of 1851, for which block 168 was sold to Watson. Plaintiff then gave evidence by Tromble, tending to show payment of the Richman and Lyon mortgage before foreclosure, by money and a horse, and the defendant produced evidence tending to show the contrary.

      The- plaintiff requested the Court to charge the jury, that if they found that both plaintiff and defendant claimed title to the property from Beqois Tromble, the defendants were estopped from denying that Tromble had title; and in that case it was not necessary to prove that Tromble had title. This the Court declined, and on the contrary charged that plaintiff must prove a legal title in himself, and the deeds put in evidence did not estop defendants.
    The plaintiff also- requested the Court to charge, that "the deeds from Williams to Marsac, and from Marsac to Tromble, being by lots and blocks according to the plat •of Portsmouth, .they and all persons claiming under them by such description are estopped from denying the existence of the plat, and that such d.eeds as between them and their grantees are conclusive evidence of its existence, and of the regularity of its acknowledgment and dedication. This the Court also refused, and charged that the plaintiff must prove that such a plat was made by the proprietors •of the' land at the date of acknowledgment thereof.
    The plaintiff further requested the Court to charge the jury, that two years redemption must be given on the foreclosure of said mortgage, and if not given, the foreclosure was void. The Court charged that the foreclosure would be regulated by the statute in existence at the time -the mortgage was executed.
    The plaintiff also requested the Court to charge, .that the quit claim deed from Richman to Scott conveyed no interest in the land which Richman held under the mortgage, unless the jury find also that the mortgage debt was assigned or transferred with it; that an assignment -of the mortgage interest without the debt is a nullity. The Court refused so to charge, and instructed the jury that the note or bond given with the mortgage passes with an -assignment of the mortgage, and that the deed from Richman to Scott conveyed .such right as the grantor had.
    The plaintiff further requested the Court to charge, that as to the tax title for 1851, the mere production of a receipt signed by the collector, without other proof of payment of the taxes, where his return is required to be under oath, was not sufficient evidence on which to declare the tax title void. This the Court refused, and charged that the receipt was prima facie evidence of payment.
    Judgment having passed for the defendants, the plaintiff brought error.

      Knight & Jenison, for plaintiff in error:
    1. Where both parties in ejectment claim through a common ancestor or grantor, both are estopped from deny-, ing the title of the person from whom they claim: — 5. Cow. 259; Meigs, 3; 4 Dana, 479; Ibid. 264; 1 B. Monr. 291; 22 Ill. 603; 2 Metc. (Ky.) 288; 5 Ohio, 124; 23 Penn. 199; 27 Ala. 582; 19 Geo. 331; 2 A. K. Marsh. 648; 28 Miss. 600; 3 Johns. 332.
    2. There is nothing in the law for the acknowledgment and recording of town plats that makes deeds void if the plat is not so acknowledged and recorded, or that affects the doctrine of admission and estoppel. There is no necessity of proving a recorded plat to show title or locality if' it can be done without. As between the parties defendants are bound by the recitals in the deeds through which they claim: —9 Wend. 209; 7 Barr, 378; 5 Cow. 216; 6 Binn. 231; 4 Pet. 82. And the identity of the land may be proved by parol: — 2 Greenl. Ev. §308; 6 Dana, 418; 2 H. & McH. 119; 6 Pet. 341; 5 S. & M. 329.
    3. The assignment from Lyon to Richman was void, because not an assignment of the debt: — 1 Hill, on Mortg. 164; 3 Johns. 42; 2 Cow. 195; 19 Conn. 218. Or, at most, it was only a transfer of a naked trust: — 2 Story Eq. Juris. § 1016; 4 Kent, (4th Ed.) 194. The debt not being assigned .there was no foreclosure. Besides, there could be no legal foreclosure by an assignee whose assignment is not acknowledged and recorded: — 2 Comp. L. §5178, ■sub. 3.
    4. The town treasurer’s receipt for taxes was not competent evidence: — 4 Pick. 283; 4 S. & R. 551; 6 Binn 1; 5 Vt. 556; 9 B. & C. 938.

      Sutherland & Miller, for defendants in error:
    1. The property claimed is described only by numbers of lots and blocks on a village plat; therefore no property other than that bearing such a description could be recovered. The burden of proof was on the plaintiff to show that there was property bearing the description. The Court could not take judicial notice that there was such a plat, and the plaintiff must prove it. The allegation in the declaration is descriptive, requiring strict proof: — 1 Greenl. Ev. §§56, 63, 62; 1 Smith Lead. Cas. Ed. of 1855, 738, 740, 755. When a plat is alleged, a legal plat is intended, and must be proved by the best evidence — the record or a certified copy. And though the evidence of Partridge might have been proper either before or after the proof of the plat, the Court had a discretion to require the plat to be first ■produced.
    2. Defendants were not estopped from denying the title of Tromble. There was no evidence of their being in possession under any of the deeds proved by them, or that they had possession or claimed title at or before the commencement of the suit. None of the intermediate conveyances from Tromble contained covenants. Upon these facts there can be no estoppel: —2 Smith Lead. Cas. 625, 626; Sparrow v. Kingman, 1 Comst. 242; Averill v. Wilson., 4 Barb. 180.
    3. If defendants had accepted deeds describing the property as in the deeds proved by them, they would not be estopped from denying a legal plat, “and the regularity of its acknowledgment and dedication,” for no such fact is asserted in the mortgage and deeds. Proof that a plat was adopted by the Portsmouth Company, falls short of establishing this fact; for it does not show that the persons composing that company were . proprietors of the land. Unless the plat covered fractions two and three, none of the persons from whom plaintiff’s title was derived were shown to have any title to the lands they undertook to convey.
    4. The charge of the Court in reference to the assignment of the mortgage was correct. It does not appear that any note or bond accompanied the mortgage. If any was given, remedy upon it was barred by lapse of time-in 1850, when Richman conveyed to Scott. The Court will not presume the existence of a fact not stated for-the purpose of overturning the judgment, but every reasonable intendment will be made in its favor. The charge-was correct under Niles v. Ransford, 1 Mich. 338 (343).
    5. The tax collector’s receipt was evidence. The statute-authorizes it to be given, obviously to afford the tax payer-evidence of payment.
   Christiancy J. :

The questions put to the witness, Partridge, for the-purpose of identifying the lands described in the deeds introduced by the plaintiff, and to show who was in possession, were, we think, clearly competent, and the Court erred in overruling them and excluding the evidence.

The ground upon which these questions were objected to and. excluded by the Court, was that a plat must first be proved, properly acknowledged by the proprietors to-entitle it to be recorded. A similar objection had previously been made by the defendants to the introduction of the deed from Howard and Williams to Marsac (the first deed of the series through which the plaintiff claimed) that “ until there is proof of a plat of the village to which the description of the property in question in -the plaintiff’s declaration can apply, the deeds are inadmissible;” and this objection was not overruled, but the deeds were received subject to the objection. Both objections seem to have been based upon the idea, that every town, or village, plat not properly recorded by the proprietors according- to the statute in reference to town plats (or at least not so executed and acknowledged as to entitle it to record), is so entirely void and illegal that no conveyance describing the lands by reference to such plat only, can be valid — that the description in the declaration which, after designating the lots and blocks by number “according to the plat of said village of Portsmouth,” must be understood as referring to a plat legally acknowledged and recorded, or so acknowledged as to be entitled to record, though the declaration does not, in terms, describe it as acknowledged or recorded. Such only seems to be the ground upon which these objections are sought to be maintained by the counsel for the defendants.

We think these grounds wholly untenable. None of our statutes in reference to town plats go so far as to render deeds of conveyance between individuals void, because made by reference to an unacknowledged or unrecorded plat. But any such plat, or any other map or plat, whether to be found in a public office or in the possession of any person, may still be used for the purpose of identifying the land intended to be conveyed, though no description be given except by reference to such plat by which the property conveyed could be ascertained. The proprietors would incur the penalty fixed by the statute for laying out such plat and conveying lands by. reference to it, unless executed, acknowledged and recorded according to the requirements of the statute; but the conveyance would still be good between the parties by any description by which the premises could be identified.

The deeds, it is true, refer to- a plat adopted by the Portsmouth- Company, and state it to have been recorded; but these deeds would, I think, still be good, though the plat should not in fact have been recorded: the declaration that it was recorded would be rejected as falsa demonstratio: as an incidental circumstance of much less importance than the fact of the existence of the plat itself, and therefore a fact about which the parties drawing the deed would be likely to be less careful and precise. See cases cited in Cow. & Hill's Notes to Phil. Ev. (ed.. of 1839), Note 942. So if recorded in fact, though not according to law, this record might probably be used as evidence under certain circumstances, and might satisfy the reference in the deed, to the recorded plat.

All that' was necessary in the present case was ,to identify the land intended to be conveyed; and for this purpose, as there was no intelligible description except by reference to the plat, it became necessary to prove a plat adopted by the Portsmouth Company; and, if not waived, the best evidence attainable would have been required; either the original, or the record, or if neither could be found, then the next best evidence attainable. But in this case the strict rule requiring the best evidence was, I think, waived by the defendants. The bill of exceptions states that a map or plat was shown to the witness (Partridge, the surveyor), which purported to be acknowledged by Gardner D. Williams, Henry Howard and Benjamin F. Towne, trustees of the Portsmouth Company, on the 5th of May, 1837. The witness testified that this was a lithographic copy of a plat of Portsmouth. No objection was taken to this testimony. This must be treated as a waiver of the objection which might have been made to the proof by copy in lieu of the original.

But so far as the plaintiff’s title might depend upon the deed from the Auditor General for delinquent taxes, a different rule would, I think apply; since the lands could not have been assessed as village lots, with no other description than by reference to such plat, unless the plat had been recorded in fact: — Rev. Stat. of 1846, p. 105; Comp. L. § 1140. And I am strongly inclined to the opinion that the presumption of regularity of proceedings raised by the statute then in force, in favor of a deed for taxes, would not dispense with the proof of such recorded plat. But it is not necessary to decide the point here, as the deed for taxes only covered one of the several blocks claimed in the declaration and mentioned in the deeds under which the plaintiff claimed; and the evidence rejected was clearly admissible as to all the other lots and blocks, and as to this block also, so far as the plaintiff made a title independent of the tax deed.

The defendants introduced a mortgage on the lands in question executed by Tromble (through whom plaintiff claimed by several mesne conveyances) “to Charles L. Rich-man and Lyon,” dated June 24th, 1839, for $136 21, with an assignment of the interest of Lyon to Ri'chman, endorsed on the back; but the assignment was neither acknowledged or recorded. In this mortgage, the premises were described in the same way as in the deeds through which the plaintiff claimed, viz: designating the number of the lots and blocks “agreeable to a plat of said village as adopted by the Portsmouth Company, and recorded in the Register’s office for the county of Saginaw,” and by no other description. This mortgage was prior to the deed from Tromble, through which the plaintiff claimed (the latter being dated October 3d, 1846).

The defendants proved the foreclosure of this mortgage by advertisement under the statute, and a deed of the sheriff to Charles L. Richman, dated September 28th, 1841, which was the day of sale. The bill of exceptions does not state what this deed purported to convey, whether the ' whole or any part of the mortgaged premises; but, as no point is made upon this, we will consider it, as the counsel seem to have treated it, as a deed purporting to convey the whole mortgaged premises. On this deed was endorsed the certificate of the sheriff, that the sale would become absolute in one year, unless the same Avas redeemed according to law. There was evidence tending to shoAV a j)ayment of most of this mortgage, and an offer to pay the- balance; and also testimony tending to controvert the evidence of payment, from which it may be inferred that the sum claimed to have been paid was included in the sum for which' the mortgage was foreclosed, though it does not appear for what sum the foreclosure was had.

The defendants also introduced, among other deeds, a quit claim, dated July 27th, 1850, executed by said Rich-man to Henry C. Scott, purporting to convey all the lots and blocks claimed by the plaintiff in his declaration, and further proved that said Henry C. Scott died in the year 1851, and that the defendant Catherine Scott, Avas his Avidow, and the other defendants his heirs at law. The defendants also proved a receipt from the proper township treasurer for the taxes of the year 1851 on the block sold for the tax of that year as shown by the Auditor General’s deed, which had been introduced by the plaintiff. The plaintiff’s counsel requested the Court to charge, that if the jury find that the plaintiff and defendants both claim title to the property from Tromble, the defendants are estopped from denying that Tromble had title. This the Court refused, and instructed the jury that the plaintiff must prove in himself a legal title, and that the deeds put in evidence by the defendants did not estop them.

It is not denied that if it had been shown that the defendants, or Henry C. Scott, under Avhom they claimed, had gone into possession under the deed from Richman, they would have been estopped to deny the title of Tromble, through whose mortgage that title was derived. But the plaintiff had been prevented from showing Avho was in possession, and there is no evidence on the subject. But it does, I think, appear clearly enough from the bill of exceptions, that the defendants claimed title through Tromble. They Avere under no necessity, it is true, o± setting up any claim of title in themselves. All they were • required to do was to defeat the title of the plaintiff". This would have been as effectually accomplished, had the defendants stopped with the proof of foreclosure and the deed to Riehman, as it could be by deriving that title to themselves; and had they stopped here, there might, have been no ground for holding that they had. admitted any title in Tromble. But they saw fit to go further, and to show a conveyance from Riehman to Scott, the death of the latter, and that one of the defendants was his widow and the others his heirs at law. The object of this manifestly was to show the title in the defendants: and for this purpose the testimony might perhaps have been objected to by the plaintiff as entirely irrelevant, not tending in any way to sustain the defense or to weaken the plaintiff’s case. But if the defendants saw fit to strengthen the plaintiff’s case, by setting up a claim of title in themselves derived through the .Tromble mortgage, the plaintiff was not bound to object; and the title thus set up was, I think, equal to an admission in open court, that the defendants claimed title through Tromble, and should therefore have been treated, for the purposes of the trial, as an admission of Tromble’s title, dispensing with proof of that title on the part of the plaintiff. - Had they also shown another title in themselves not derived from Tromble, the effect might have been different; but as they made no claim of title except through this, the only inference would seem to be that they claimed under this. See Jackson v. Tuttle, 9 Cow. 233; Jackson v. Cole, 4 Cow. 587; 1 Phil. Ev. (by Cowen, Hill & Edwards), p. 440. The case of Jackson v. Tuttle was reversed by the Court of Errors, 6 Wend. 213, but upon another point in no way affecting the question of such admission.

For the like reason, also, I think this claim of title-under the Tromble mortgage — which describes the property, with reference to the plat substantially in the same way ■as in the plaintiff’s deeds, and states the plat to be recorded — was, as between these parties, an admission of the plat referred to, and of its being recorded, if a record were necessary.

Whether the j>eriod of redemption should have been ■one year or two years, is a question which does not properly arise in the case. To have raised this point, the plaintiff ■should have shown a tender, or an attempt to redeem within the two years. The foreclosure would not, we think, be void because the sheriff erroneously certified on the back of the deed that it would become absolute in ■one year, instead of two years. The statute, so far as it imposes the duty of endorsing this certificate, must be •looked upon as directory, and his certificate could not alter the legal period of redemption.

The point taken by the plaintiff, that the assignment -of Lyon’s interest in the mortgage conveyed no interest without showing that his interest in the mortgage debt was also assigned, is equally aside from the case in its present form. It does not appear (although it must have appeared on the trial), whether the foreclosure was in the ■name of Richman alone, or in the names of Richman and Lyon. Richman was the purchaser on the foreclosure sale; but non constat that the foreclosure was not in the names ■of both mortgagees. Every presumption must be made in favor of the proceedings and judgment of the Court below •till the error be made affirmatively to appear.

There was no error in refusing to charge, as requested •by the plaintiff, that the receipt for the taxes, signed by the collector, without proof of payment of the taxes, was ■not sufficient to invalidate the tax deed. The Court was correct in holding the receipt prima facie evidence of payment. It does not fall within the rule which excludes ■hearsay evidence, nor does it rest upon the principle which admits entries made by third persons against their interest, ■or in the ordinary course of business. The giving a receipt for taxes by the township treasurer is an official act, which the statute requires him to perform. The manifest purpose of the statute we think was to furnish the tax payer with written evidence of payment. The action of the treasurer in reference to the payment, receipts and returns for the taxes, are a part of the res gestae or “proceedings” upon which the validity of the deed depends. The receipt is therefore* original evidence; not, it is true, conclusive, but sufficient till invalidated by proof.

The judgment must be reversed, with costs, and a new trial granted.

Manning J. concurred. Martin Ch. J. concurred in the result.

Campbell J.:

The objection to Partridge’s testimony was not upon the ground that the 'plat produced was not genuine, nor on the ground that it was not entered on the records of the county. The copy had already been received without objection, and the objection which, if existing, might have been raised, that it had not been recorded in fact, was waived. This left but a single further objection to be taken, which was that the plan was not acknowledged. This might have been well taken, had a question arisen concerning the validity of the record for the purposes contemplated by the statute relative to town plats. But a reference may be had for purposes of identity to any map, public or private, and whether legally made or not. The deed in this case referred to a plat adopted and recorded in the registry of the county. As the case stands, it is to be assumed, in the absence of any specific objection, that the plan produced is the one adopted and recorded in fact. Being used for purposes of identification merely, it makes no difference that ii is not a legal record. The witness therefore should have been allowed to answer the question: — People v. Beaubien, 2 Doug. Mich. 256. The. want of a legal record could only affect the tax title.

The defendants introduced a mortgage prior to the deed under which plaintiff claims, made by Tromble (the original source of plaintiff’s title) to Richman and Lyon, with an assignment from Lyon to Richman, not acknowledged or recordéd; and a subsequent foreclosure of this mortgage, and a deed made under it to RiehSaan, the defendant’s grantor, which is alleged to be defective because not endorsed with the proper period of redemption. I agree with my brother Christiancy, that such a mistake, if existing, can not destroy the title if otherwise regular. But, in the case before us, the mortgage being made prior to 1843, gave the mortgagee a possessory right to the land: — Mundy v. Monroe, 1 Mich. 68. The foreclosure, whether regular or not, passed to the purchaser the rights of the original mortgagee: — Gilbert v. Cooley, Walk. Ch. 494. In such a mortgage (whether it be so with others or not) a deed of the land, or an assignment of the mortgage, entirely silent as to the debt, conveys the mortgage interest: — Niles v. Ransford, 1 Mich. 338. In whatever way it is viewed, therefore, the title under the mortgage must be regarded as a good possessory title until redeemed.

I agree also that the receipt for taxes, for the reasons given by my brother Christiancy, was properly received in evidence.

I am of opinion that the Circuit Judge was right in refusing to charge that defendants were estopped by their title introduced from disputing the original title of Benois Tromble. There was no evidence to show that defendants went into possession under that title. The deed from Richman to Henry Scott was a quit-claim. It is very well settled that a party may fortify his title by buying in outstanding titles or pretended titles, and that such pur^ chase, unless it is the means of obtaining possession, can not operate by way of estoppel against him. To hold that merely introducing evidence of such a quit-claim estops the party is equivalent to denying the right altogether; for the right is nugatory if it can not be used. The whole doctrine of estoppel rests in mutuality; and is simply a rule that one who has been enabled, by means of a conveyance or lease, to obtain possession or some other advantage, can not avoid restoring possession to any other person who, by the effect of the same conveyance or act, has become entitled to it. Thus, a landlord who puts a tenant in possession is bound by the lease which binds his tenant, and can not disturb him during the term. The tenant, having enjoyed the term by means of the lease, must restore possession when the lease terminates. So as between mortgagor and mortgagee, the former is bound to permit the latter to retain possession until redemption, and the latter is bound, when thus put in possession, to restore it on redemption. But if a person already in possession should purchase a mortgage, and, upon redemption, be compelled to give up possession, he would be thus forced to restore more than he received, and to lose independent rights. This is not just or reasonable. Reference. has been made by Mr. Cowen to Jackson v. Cole, 4 Cow. 587, and Jackson v. Tuttle, 9 Cow. 233, as establishing a rule that whenever a defendant introduces evidence which would show or tend to show a divestiture of the title, whatever it may be, Avhich plaintiff relies on in himself or some former source of title, such evidence amounts to an admission that the person thus divested had a good and legal title. No reason or authority was found for such a view by Court or counsel, and I think none satisfactory can be found. The whole doctrine was repudiated in Tuttle v. Jackson, 6 Wend. 213, reversing the latter case, and holding that a defendant is not ordinarily precluded from showing any number of titles, and that his possession will be presumed to be under the valid one, if not shown to have been otherwise taken. .This is in accordance with the general doctrines. See Den v. Sharp, 4 Wash. C. C. 609, where the case presented was very nearly identical with the case at bar; and the decision in which was approved by the Court of Errors in 6 Wend. 213.

I think the Court below erred in excluding the evidence offered to identify the lands, and that the judgment should be reversed and a new trial granted for this reason; but that there were no other errors made out.


source: Caselaw Access Project

author: Martin Ch. J.:

license: Public Domain

text:
    Jacob F. Keller v. Jacob Holderman.
    Where defendant gave plaintiff his cheek for three hundred dollars for a silver-watch, worth fifteen, but the whole transaction was in mere frolic and banter, the one paTfcy not expecting to buy the watch nor the other to sell it, it was held that no recovery could be bad upon the check, notwithstanding-defendant had retained wthe watch, and did not offer to return it until the r trial.

      Submitted on briefs April 17th.

      Decided May 12th.

    Error to Berrien Circuit.
    Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day' of trial, when he offered to return it 'to the plaintiff, who refused to receive it. The whole transaction was a frolic and banter — the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn. The defendant when he drew the check had no money in the banker’s hands, and had intended to insert a' condition in the check that would prevent Ms being liable upon it; but as he had failed to do so, and had retained the watch, the Judge held him liable, and judgment was rendered against him for the amount of the check.

      W. A. Moore for plaintiff in error.

      James Brown for defendant in error.
   Martin Ch. J.:

When the Court below found as a fact that “the whole transaction between the ■ parties was a frolic and a banter, the plaintiff not expecting to sell, nor the defendant intending to buy the watch at' the sum for which the check was drawn,” the conclusion should have been that no contract was ever made by the parties, and the finding should have been that no cause of action existed upon the-check to the plaintiff'.

The judgment is reversed, with costs of this .Court and of the Court below.

The other Justices concurred.


author: Campbell J.:

text:
    Christian H. Buhl and another v. John H. Kenyon.
    Chattel interests in lands are to he sold on execution as personal estate.
    A sale on execution of an estate for years in lands, made in accordance with the statutory provisions for the sale of real estate, is void.

      Heard May 1st and 2d.

      Decided May 12th.

    Error to Wayne Circuit. The facts appear by the opinion.

      Walker & Kent for plaintiff in error:
    At common law a term for years, though called a chattel real, was not sold on execution in the same way as personal property: — 2 Shower, 85; 3 T. R. 292; 14 Penn. 99. Our statutes include terms for years under the words real estate. Comp. L. §§2, 2585, 3119. The words personal property and personal estate, as used in the Compiled Laws, do not include terms for years : — §§ 784; 5956; 2925 ; 2828.

      Wells & Hunt, and E. Hall, for defendant in error:
    A leasehold interest should he sold on execution as a chattel. The term real estate does not include chattels real: 17 Wend. 674; 5 Mass. 419; 15 Mass. 445; 1 Md. Ch. 36; 1 N. H. 350; 3 Ohio, 447, 460; 7 S. & M 479. In the statute as to sales on execution the term real estate is used in distinction from personal property — chattels real and personal being ranked with the latter. See §§ 4462, 4463, 4471. The defining clause, § 2, is merely thrown in to aid interpretation when other means fail, and not to change the meaning of established terms, or to reverse the rules of procedure in the sale of real or personal property. Any other construction would reverse the whole law of property as between heirs and executors, the fund ■from which to pay the debts of an estate, sales by executors, <fec., the distribution of estates, and the rights of children and widows. See §§ 2902, 3039, 3047, 3048, 3053, 3085, 3076, 3098, 2812, 2877. To sell a term as real estate is in many cases entirely impracticable.
   Campbell J.:

The plaintiffs in error brought ejectment in the Court below as execution purchasers of the interest of one of two tenants for years of certain premises in Detroit, which were sold as real estate.

The first question presented is whether such an interest is real estate within the meaning of the statutes relating to the levy and sale of lands on execution. The statute provides that, where not inconsistent with the manifest intent of the Legislature, the word “land” or “lands,” and the words “real estate shall be construed to include lands, tenements and real estate, and all rights thereto, and interests therein.” 1 Comp, L, §2.

By section 3119 of the Compiled Laws provision is made for selling “all the real estate of a debtor, whether in possession, reversion, or remainder, including lands fraudulently conveyed with intent to defeat, delay or defraud his creditors, and the equities and rights of redemption hereinafter mentioned.” By section 4463, in the general chapter on judgments and executions, it is declared that “ All chattels, real or personal, and all other goods liable to execution by the common law, may be taken and sold thereon,” except as is otherwise provided by law.

As a leasehold interest of this kind is a chattel interest, and as it is in this last section classed among personal property, if it should be held included in the class of real estate also, some confusion must necessarily arise. But as we have heretofore held in Trask v. Green, 9 Mich. 358, and Maynard v. Hoskins, 9 Mich. 485, the statute definition of real estate does not apply in its full breadth to execution sales, because incompatible, when thus applied, with the general intent’ as well as the special clauses of the statutes governing these. We think the case of a chattel interest is not within the law applicable to the sale of lands on execution. Such interests have always been sold as personalty on common law executions, and it would require plain language to deduce an intent to make them' disposable otherwise. But apart from the fact that they were so liable when lands were, not, the statutory provisions governing real estate sales are not compatible with the idea that these can be included within them. There are multitudes of leases for short periods where a sale would be entirely nullified by a fifteen months period for redemption. The whole machinery for land sales is devised with a view to reach freehold estates. The lands are sold in parcels, the papers are filed in the office of the Register of Deeds, successive sales may be had of the rights to redeem, and various other incidents — all inconsistent with •any such interest as is here in question — show that the property sold as real estate is an estate of a more permanent character, and involving a different kind of ownership.

It is claimed, however, that a sale which will pass realty must be good to pass personalty. So far as the documentary evidences of sale are concerned, this is true. But a sale on execution is designed to produce the best price Which can be obtained; and a sale on condition that no title shall vest for fifteen months would, under ordinary circumstances, render a lease nearly valueless, besides involving-the danger of forfeiture. No bidder would give for the shortened term the value of the full term.

We therefore are of opinion that no title passed to the plaintiffs by their execution sale. As this disposes of the-whole controversy we make no reference to the other points involved.

The judgment below is affirmed, with costs.

The other Justices concurred.


author: Manning J.:

text:
    Robert Blackwood v. Peter P. Van Vleet.
    The act of 1843 taking from mortgagees the riglit. to bring ejectment before foreclosure, is inoperative as to mortgages made prior to its passage. Mundy v. Monroe, 1 Mich. 68; Stevens v. Brown, Wal. Ch. 41.
    The fact that there may be two new trials in an action of ejectment, is no reason for the interposition of equity to try titles to land.
    An injunction bill, strictly speaking, is one asking no other relief. "When the bill prays other relief, the injunction is regarded as ancillary to such relief,, and falls with it.
    A bill was filed in equity against one in possession of lands claiming them under-tax titles, to have these titles declared void, and complainant’s right to the lands quieted, and for an injunction to restrain the commission of waste by t defendant. Complainant had not established his right at law, and had brought no suit for that purpose. It was held that the bill could not be sustained.

      Heard April 29th.

      Decided May 12th.

    Appeal in Chancery from Lenawee Circuit.
    Blackwood, who was assignee of a mortgage given in 1837 by one Miller, and to foreclose which he had brought suit in equity, filed his bill in this cause, setting forth that defendant was in possession of the lands mortgaged, claiming title thereto under deeds from the Auditor General given on sales for delinquent taxes of 1849 and 1854, and that he threatened to commit waste thereon by cutting off the timber. The bill allege^ the invalidity of the tax titles, prayed for an injunction to restrain waste, and that ■the deeds from the Auditor General be set aside, and decreed void and of none effect.
    Defendant demurred to the bill; the Court below ■sustained the demurrer and dismissed the bill, and complainant appealed.

      A. L. Millerd for complainant:
    The relief sought by the bill is two-fold:
    1. To have the tax deeds set aside and cancelled; and,
    2. To restrain the defendant, by injunction, from cutting timber on the mortgaged premises.
    It is insisted that .complainant has a remedy at law: 1. By action of ejectment; and, 2. By prohibition of waste under the statute. 2 Comp. L. p. 1259. We reply: The ■action of ejectment is not an adequate remedy. The complainant is not the owner of the land. Though the legal title has become vested in him by the mortgage, yet he is in equity only an incumbrancer, and has no .interest in the land except to make the money that is due him out of it, by process of foreclosure, in the shortest and easiest way that the law will admit. A mere recovery of the possession, by ejectment, would not accomplish this.
    1. He wants the tax deeds cancelled, as forming a ■cloud on his title which is likely now to constitute an -obstacle to his making the money by a foreclosure, and is liable to make him trouble hereafter, when the evidence •of the illegality of the tax proceedings is lost. This he •could not get by ejectment.
    2. A recovery in ejectment would not be conclusive. It would not become so until after two or three trials,, and the lapse of three or five years. Comp. L. § 4590.
    Thus the time required to obtain possession by ejectment, and especially to settle the title, would be far too. long to be of any avail in the foreclosure. It would not remove the obstacle in time for that, and the complainant would either be obliged to delay the sale under the foreclosure, for all that time, or to sell under the disadvantage-of the cloud upon the title.
    3. Ho wants an injunction to restrain the defendant from impairing the value of his security by cutting timber. Ejectment would give him no remedy against the commission of waste in the meantime. That would require a separate proceeding under the statute.
    It is easy to see, therefore, that, practically, the remedy at law would be far from being full and perfect.
    It is not necessary that a party should be in possession of the land, to entitle him to file such a bill: — Yancy v. Hopkins, 1 Munf. 419; Shell v. Martin, 19 Ark. 139; Gillett v. Webster, 15 Ohio, 623; Chautauque Co. Bank v. White, 6 Barb. 589.
    Though there may be a remedy at law, yet if that remedy be doubtful or difficult, equity will hold jurisdiction. 1 Paige, 90.
    The danger of waste, charged in the bill, entitles the-complainant to the interposition of a court of equity. An injunction is the appropriate remedy, not only between mortgagee and mortgagor, or those having privity of estate,, but as to those holding adverse claims, and even against trespassers, in cases of irreparable mischief: — Brady v. Waldron, 2 Johns. Ch. 148; 2 Story Eq. Juris. 918; 2 Wat. Eden on Injune., 3d ed. 200 (note), 229-235 and notes.

    The complainant, never having had possession of the land, could not maintain trespass for cutting timber; and if he could maintain that or any other form of action, it. would make' another suit, and perhaps a multiplicity of others, necessary. This necessity for several suits at law would itself constitute a ground for the exercise of jurisdiction by a court of equity: — Jesus College v. Bloom, 3 Atk. 262; Watson v. Hunter, 5 Johns. Ch. 169.

      C. A. Stacy, and T. M. Cooley, for defendant.
   Manning J.:

The bill is filed by the assignee of a mortgagee. Defendant is in possession of the mortgaged premises, claiming them by tax titles. The bill is to enjoin him against the commission of waste, and to have the tax titles set aside and declared void and of none effect, for certain alleged defects in levying the tax. It is also stated that complainant has filed a bill against the mortgagor to foreclose .the mortgage. And a demurrer having- been interposed for want of equity, complainant seeks to sustain his bill on two grounds: 1st, As an injunction bill to stay waste; 2d, On the ground that the tax titles are clouds on his interest in the land, which he is entitled to have removed to quiet his mortgage interest, and also to enable him to foreclose the mortgage and make the money out of the land, which can not be sold to advantage with the tax titles resting upon it.

The mortgage was given in May, 1837, before the statute of 1843 taking away the right of the mortgagee and his assigns to bring ejectment before foreclosure of the mortgage. As this statute is inoperative as to prior mortgages, there is nothing in the way 'of complainant bringing an action of ejectment against defendant to try the validity of the tax titles. — Mundy v. Monroe, 1 Mich. 68; Stevens v. Brown, Wal. Ch. 41. This is not denied. It is said, however, by complainant, that the remedy at law is not so complete and expeditious as in equity, as the statute regulating actions of ejectment gives two new trials, &c. Comp. L. § 4589. This is no reason for the interposition of a court of equity. It exists in every actiou of ejectment; and if admitted as a ground of equity jurisdiction, would change the trial of titles to real estate from law, and by a jury, to a court of equity. Defendant claims by an adverse title, -and there is no allegation of fraud in the acquisition of the tax title.

By an injunction bill, strictly speaking, we understand a bill asking, no other relief. When the bill prays other relief the injunction is regarded as ancillary to such relief, and falls to the ground with it. In no view that can be taken of the hill does it show sufficient cause for an injunction. Complainant is not in possession, has not established his title to the premises against defendant at law, and shows no privity of estate, or action of ejectment pending to try the tax title.

The decree dismissing the hill for want of equity must be affirmed, with costs.

The other Justices concurred.


author: Christiancy J.:

text:
    Eben N. Willcox v. Leander L. Hill and others.
    In a contest between two mortgagees as to the priority of their respective liens, the mortgagor being personally liable for both the mortgage debts, is disinterested, and might be a witness under Chancery Rule 55 prior to the act of 1861, making parties to suits competent witnesses generally.
    Notice of a prior incumbrance to charge a subsequent incumbrancer or purchaser need not come from a party in interest.
    Suoh notice of prior, rights or equities as men usually act upon in the ordinary affairs of Ufe, is all that can be .required to charge a purchaser. If it is sufficient to direct the attention of the purchaser to such prior rights or equities, and to enable him to ascertain their nature by inquiry, he should bo held bound by it.
    Appeal in chancery from Genesee Circuit. The facts appear by the opinion.

      D. B. Duffield, for complainant.

      L. Walker, and Newberry & Pond, for defendants.
   Christiancy J.:

The hill in this case was filed September 24th, 1859, to foreclose a mortgage executed by defendants, Hill and wife and Blackmar and wife, to Enos Goodrich and Reuben Goodrich, on the undivided half of a steam saw mill and lot, dated April 1st, 1S5Í, for fifteen hundred dollars, payable in three equal annual instalments, with interest annually. The mortgaged premises were conveyed to the mortgagors by the mortgagees for the price of three thousand dollars, of which fifteen hundred dollars were paid down and the mortgage given for the balance. The mortgage was not acknowledged by all the mortgagors till the 25th September, 185'!, and was not recorded till the 20th day of January, 1858. On the 22d day of October, lSS^, the mortgage, with the bond accompanying the same, was assigned, by the Goodriches to the complainant as trustee for their creditors, and in payment of their debts to the full amount of the face of the mortgage; they guaranteeing its payment.

On the sixteenth day of November, 185'T — ■ after this assignment, but before this or the mortgage had been recorded — Hill and Blackmar executed a second mortgage on the .same premises to the defendants, Widdifield & Cohu, merchants in the city of New York, to secure the payment of six hundred and fifty-two dollars (for which Hill & Blackmar, as partners, were indebted to them for goods), payable one-half in six, and the other half in nine months from the date of the mortgage. This mortgage contains a covenant against incumbrances, and of warranty, and was duly recorded on the day of its date.

The bill makes Widdifield & Cohu defendants as subsequent incumbrancers, and charges them with full notice of complainant’s prior mortgage at the time their mortgage was taken. Widdifield & Cohu, by their answer, Avhich is without oath (the oath being Avaived), set up their mortgage, rely upon its prior registry, and deny that they had any notice of complainant’s mortgage before or at the time their mortgage Avas taken, but aver that it was taken in good faith, and for valuable consideration, &c. They also allege a foreclosure of their mortgage in chancery, by bill filed July, 1858, to which Hill & Blackmar and the two Goodriches were made parties defendants, and against Avhom the bill was taken as confessed; that a decree of foreclosure and sale Avas obtained, and that the mortgaged premises Avere sold on this decree September 24, 1859 (which Avas the same day the bill in this cause was filed), and bid in by Widdifield & Cohu, for seven hundred and ninety-eight 31-100 dollars, the amount of the mortgage debt and costs, and that the sale had 'been duly confirmed, and the commissioner’s deed executed and delivered to them. The complainant Avas not made a party to this foreclosure, though the assignment to him was duly recorded. The facts of the foreclosure and sale as above set forth are admitted by stipulation.

The defendants Hill & Blackmar, make no defense to the present bill, Avhich, as to them, is taken as confessed.

From this statement of the case, it is clear that the main question is, whether the defendants, Widdifield & Cohu, had, prior to, or at the time of taking their mortgage, actual notice of the prior mortgage to Enos and Reuben Goodrich: since, if they had such notice, it Avould be a fraud on their part to endeavor to obtain a preference over the Goodrich mortgage by getting their own first upon the record.

The mortgage of Widdifield & Cohu was obtained through the agency of one Harvey Strong, a resident of Lima, Indiana, a collector for New York merchants, who Avas employed by Widdifield & Cohu, to collect or secure the debt, and who for that purpose called upon the defendants Hill & Blackmar, at their place of business in Richfield, Genesee county, Michigan.

Strong was sworn as a witness for Widdifield & Cohu, and positively denies having received any notice whatever of the Goodrich mortgage, or any other mortgage on the premises; states that the day before his second visit to Richfield on this business (for he made two visits for the purpose at an interval of some ten days), and only two days before the mortgage was executed, he examined the records of deeds at the Register’s oflice in Flint, with the assistance of the Register, and found no deed to Hill & Blackmar of the mill property, and was informed by the Register that there was no mortgage from them on the records; states that when he called on Hill & Blackmar two days after, and they proposed to give him a mortgage on the property, he told them of his examination and the result, and they then showed him the deed of the undivided half of the mill property from Enos & Reuben Goodrich, which had not been recorded, and which he told them ought to be recorded, to which they replied he could take it then and have it recorded; that he said to them he presumed they had not incumbered the property, ^nd they assured him they had not.

On the part of complainant, we have the testimony of three witnesses, Hill & Blackmar, two of the defendants, and that of Jacob King, the justice before whom the mortgage to Widdifield & Cohu was acknowledged, all of whom testify directly and positively that they severally notified Strong of the mortgage to the Goodriches before that to Widdifield & Cohu was drawn.

Blackmar testifies that before the mortgage was exe cuted, or agreed upon, he fully explained to Strong that they had' purchased the property of the Goodriches for three thousand dollars, of which they had paid down fifteen hundred dollars, and given a mortgage for the same amount, to which the property was still subject; says he gave him this information three or four days before the mortgage was executed, and that Strong then said the property was good for nothing as security.

Hill says that at the first visit of Strong, some two weeks before the mortgage was given, he told Strong they had given the Goodriches a mortgage on this property for one-half" the purchase money; that Strong then refused to take the second mortgage, and went away without it; that after he came back he concluded, after a long time, to take it.

King, the Justice who took the acknowledgment, testifies, that on the same day the mortgage was executed, and about an hour before, Strong came to his house and said he wanted a blank mortgage; that Hill & Blackmar were to give him a mortgage on a steam saw mill they pretended to own, at the same time asking the witness ■what he considered it worth; that witness, having the blank mortgage in his hand, replied that he would not give the blank for the mortgage after it was executed. Strong asked why? And witness told him the Goodriches held a mortgage on the same property for purchase money, which was more than he considered the property worth; and he thinks told him the amount was two thousand dollars; to which Strong replied, “Well, it is the best I can do.”

The testimony was taken prior to the act of March 11th, 1861, (Session Laws of 1861, p. 168), allowing parties to be witnesses generally, and Hill & Blackmar were examined under an order of the Court, made in pursuance of Rule Fifty-five of the Circuit Courts in Chancery, upon affidavit stating that they were not interested in the matters to which their testimony was sought; and the order only authorized their examination upon matters in which they were not interested. After the order, but prior to their examination, a release was executed to them by the com' plainant. But it was objected by tbe counsel for Widdifield & Cohu — and the same objection is urged here — that ■¡hey were interested at the time of the order for their examination, and when the affidavit was made upon which the order was obtained, and that their examination was therefore not authorized by the fifty-fifth rule. Whether this be the fair construction of the rule (which was merely declaratory of the practice previously existing) we are not called upon to decide; as we are entirely satisfied that, at the time the order was made, they were not interested— within the meaning of the rule — in the matters to which their examination was subsequently had — the fact of notice— which could only affect the question of pi'efbrence between the two mortgages. Hill & Blaekmar admitted the validity of both, made no defense, and allowed the bill to be taken as confessed, as they had done with respect to that of Widdifield & Cohu.

If the complainant should succeed in the present case, they would be liable over to Widdifield & Cohu, on their covenants, in the amount of their debt, and the Court might, in their discretion, give the complainants costs against them, and they might also in a suit upon their covenants be liable to the costs of this suit. Should Widdifield & Cohu succeed, they would remain liable to complainant for the amount of his mortgage debt,, but could not well be held to pay costs of complainant in this cause, as it was no fault of theirs that the mortgage was not recorded in time.

In the absence of all testimony as to any change in the value of the property, the Court can not presume that the property, if again offered on complainant’s mortgage would sell for more or less than when sold at public auction on that of Widdifield &• Cohu. If interested at all, therefore, it was only in the question of costs; and so far as this interest went, it would be against the complainant in whose behalf they swore. But the costs do not follow as matter of course in a suit in equity, as in a case at law, but are entirely in the discretion of the Court: — Comp. L. § 5596 ; and we do not think this contingent liability to costs can be recognized as an interest which would disqualify them under this rule.

The credit to which the respective witnesses should be entitled is another question. Strong, who positively denies all notice, purports to state all the accompanying circumstances with more detail and much greater particularity than the other witnesses, who do not profess to remember these collateral matters with the same precision. He is evidently a man of more general intelligence, and more thoroughly acquainted with business. He was a collecting agent for New York merchants, and would appear to be a competent and shrewd business man. But the desire such an agent would naturally feel, not only to promote the interest of his employers, but to give them a favorable impression of the value of his services, and to keep up the reputation of a shrewd and efficient collecting agent, is a consideration not to be overlooked in weighing conflicting testimony. It often has quite as much influence as a direct pecuniary interest.

On the other hand, we can not place implicit reliance upon the testimony of Blackmar, who, though very positive as to the fact of notice, seems to have a very imperfect recollection of the circumstances of the transaction, as to many of which we are satisfied he is mistaken. His testimony bears evident marks of a heedless mind, not habitually accurate either in observing or relating events. But with the exception of the fact of notice there is a general and substantial agreement between Hill and King, on the one side, and Strong on the other, in their statement of the main features of the transaction, and most of the circumstances : and we are at a loss to discover from the evidence any motive on the part of Hill & King — or even of Blackmar —for the fabrication of so important a fact as that of the notice to which they testify; and there certainly is no ground for suspecting concert between them, as each testifies to a separate and distinct notice, not given in the presence of the other. It would lead us into too great prolixity to discuss all the various considerations bearing upon the question of the credibility of the several witnesses. But after a careful examination, we are all satisfied that Widdifield & Cohu, through Strong, their agent, had actual notice of the prior mortgage at the time their mortgage was taken. But it is objected that the notice testified to by King, if true, was not sufficient to avoid the effect of the prior registry — that to have this effect the notice should come from a party in interest. There are some cases which sustain this view, and it is said to be well settled in England. See Barnhart v. Greenshields, 28 Eng. L. & Eq. 77. But we do not think this rule can be sustained upon any sound principle as one of universal application. Loose neighborhood reports, it is true, should be entirely disregarded: and when the notice comes from a person not a party in interest, it should doubtless be required to be more positive and specific. See Leading Cas. in Eq. vol 2 pt. 1 (note of Hare & Wallace), 111 to 117. The circumstances under which it is given, and the previou knowledge of the person receiving it of certain facts in the title, may also have more or less bearing. Strong knew before the conversation with King, that Hill & Blackmar derived their title from Goodrich, by an unrecorded deed-We think the notice he received from King, if it stood alone, was sufficient to put an honest and prudent man upon inquiry. It is notice, not Jmoioledge, which is required; and it can only be required to be such as men usually act upon in the ordinary affairs of life: — Curtis v. Mundy, 3 Mete. 405: and whatever is sufficient to direct the attention of a purchaser to the prior rights or equities of third persons, and to enable him to ascertain their nature by inquiry, should be held sufficient. Lead. Cas. in Eq. ub. sup. p. 116.

The decree of the Court below must be affirmed, with costs to the complainant, and the cause must be remanded to the Court below for further proceedings.

The other Justices concurred.


text:
    Wellington Hunton and another v. Henry P. Platt and another.
    A bill filed to quiet complainant’s title to lands, which makes persons defendants-whose claims to the laud are in no way connected, is multifarious.

      Heard January 9th.

      Decided May 12th.

    Appeal in Chancery from Shiawassee Circuit.

      McCurdy & Rayndle, for defendant Platt.

      Gould & Hanchett, for complainants.
   Martin Ch. J.:

The bill is filed by the complainants to quiet their title to the premises described therein. It charges that the defendant Platt claims the premises by virtue of a deed from the Auditor General upon a sale of the premises for unpaid taxes, and that he sets up other claims thereto, of the precise nature of which the complainants are ignorant. The bill also charges, that the defendant Ingersoll sets up a claim to said premises in opposition to the title of the orators; but denies that he has any, &c. The bill was taken as confessed against Ingersoll, but the defendant Platt demurred to it for multifariousness. This demurrer was overruled. The subsequent steps it is unnecessary to refer to, as the only question presented to us. is upon the demurrer.

The subject of multifariousness was so fully considered by this Court in Wales v. Newbould, 9 Mich. 58, that it is unnecessary to enter upon its discussion again in this -case. In no respect can this bill be so viewed as to free it from this vice.

It is contended that the bill is not multifarious because its purpose is to establish and quiet the title of the complainants to a single parcel of land, and that the defendants -are connected in interest against this title to defeat it. This is not the fact. There is no connection in interest whatever between the defendants to defeat the complainants’ ■title. Their claims are entirely distinct, and indeed adverse.

They have.no common interest as against the complainants, and the success of the one will in no way benefit •or otherwise effect the claim or title of the other. There -is therefore no analogy between this case and that of the Mayor of York v. Pilkinton, 2, Atk. 302, and the other cases •cited by the complainants’ counsel to sustain his bill. We think that the bill joins distinct and independent matters Involving no question of general right, or in which the defendants have a common interest.

The decree is reversed, and the bill dismissed, with •costs to the appellant.

The other Justices concurred.


text:
    The Michigan Insurance Company of Detroit v. Henry H. Brown and Others.
    On the hearing of an appeal in Chancery, it was claimed that certain evidence returned as a part of the record should be excluded, on the allegation that it was not actually filed in the Court below, and was not considered by that Court on the hearing. The evidence consisted of tho proof of documents set out in the hill, and appeared to have been regularly taken on proper notice. There being no ground for supposing that the party objecting had been taken by surprise, and the transcript of appeal having been on file in this Court for two years, without motion being made to correct it, it was held that the evidence should not he disregarded.

      A mortgage given to secure all existing debts of the mortgagor to the mortgagee-is valid without specifying the debts or their amounts. And a subsequent purchaser of the land, with actual or constructive notice of the mortgage-takes subject to it.
    Tho remedy by foreclosure of a mortgage in equity is not lost by an action at law upon the debt becoming barred by the statute of limitations.
    Such equitable remedy may be pursued at any time before a presumption of payment arises by the lapse of twenty years time. And this presumption differs from a limitation of action at law, in that it is not an absolute bar‘ to the remedy.
    "Where an action at law upon the debt is barred, a court of equity will not in a foreclosure suit make a personal decree against the mortgagor.
    But the mortgagor is a necessary party to tho foreclosure, notwithstanding the personal remedy against him is barred.
    Indorsements upon a demand are not of themselves evidence of payment to take the case out of the operation of the Statute of Limitations. Comp. L. § 5377.

      Heard April 18th and 21st.

      Decided May 12th.

    Appeal from the Oakland Circuit in Chancery.
    The bill was filed against Henry H. Brown as mortgagor, and Kirkland' C. Barker and John Windiate as subsequent purchasers or incumbrancers, to foreclose a mortgage given November 29th, 184V, by Brown to complainants, and conditioned for the payment by him of “all-sums now due or hereafter to become due,” but without specifying any amount. The indebtedness alleged was a bond, dated November 15th, 184V, conditioned for the
    payment of $11,200 on the first day of December following. Windiate did not defend, and Barker having been once defaulted, was afterwards allowed to file an answer; and his proofs, to show the facts attending his purchase, were taken under a stipulation extending the time for the purpose of allowing him to make proof of-those facts. The other facts are sufficiently stated in the opinion. The Court below dismissed the bill, with costs, and complainants appealed.

      S. D. Miller, for complainants:
    The bill should not have been dismissed as to Brown. The Statute of Limitations does not effect the right of' complainants so far as the mortgage security is concerned. 25 Vt. 324; 19 Pick. 525; 8 Met. 19; 4 Cush. 559; 2 Conn. 161; 6 Conn. 246; 18 Conn. 257; 2 B. & Ald. 413; 8 Geo. 325; 1 Bland Ch. 281; 1 Ala. 744; 2. S. & M. 696; 11 Conn. 160.
    The hill should not have been dismissed as to Barker. The proof does not show him to be a bona fide purchaser, and, if it did, the mortgage is still a valid lien upon his title. Such an instrument is not void so long as its terms are sufficiently explicit to admit of application by evidence aliunde. 11 Ohio St. 232; Ibid. 240; 12 Ohio St. 38; 3 Grat. 148.
    Whether a court will enforce the lien as against subsequent purchasers or incumbrancers depends upon the question of notice to them of the existance of the lien. .
    For the purposes of this case the general rule laid down by Chancellor Kent may be adopted as correct; the record is sufficient if it “ give all requisite information as to the extent and certainty of the contract, so that the junior incumbrancer might, by inspection of the record,, and by common prudence and ordinary diligence, have ascertained the extent of the incumbrance.”
    Can the defendant be permitted to protect himself by a narrow application of the registry laws? The parties were accessible; the facts were of such a character as to depend on no contingency; they only required a single inquiry; the evidence was simple — its effect readily comprehended. 31 Vt. 131; 9 Conn. 286; 5 Conn. 442; 3 Conn. 150; 7 Conn. 387; 6 Watts, 57; 2 Sand. Ch. 78,
    The policy of the registry laws is, so far to divest titles of secrecy that a party may readily ascertain the general facts surrounding and affecting the ownership of lands. It is not their purpose to require that every instrument relating to such titles shall fully set forth to the world the entire transactions of which they are evidence.
    Although in some of the earlier Connecticut and New York cases there may be found some reason for the objection raised to the present mortgage, no principle can be deduced from them which will invalidate the security. And the later authorities fully sustain us. 3 Cranch, 73; 7 Cranch, 34; 1 Pet. 386; 23 How. 14; 16 Vt. 300; 31 Vt. 112; 31 Vt. 142; 13 Ill. 254; 17 Ohio, 382; 15 Ohio, 253; 20 Conn. 427; 17 Pick. 407; 24 Pick. 270; 7 J. J. Marsh. 401; 3 Sumn. 488; 29 Mo. 301; 10 B. Monr. 98; 11 N. H 251; 2 Seld. 147; 15 N. Y. 354; 22 N. Y. 380; 15 Ala. 472.

      D. B. Duffield, for defendants :
    There is no proof in the case of any indebtedness by Brown. The only evidence offered is the bond, which ceased to be of any legal effect two years before the filing of the bill. Whenever a bar has been fixed to the legal remedy, a remedy in a court of equity has in analogous cases been confined to the like period. 2 Story Eq. Juris. § 1520 und notes. But even this evidence is not in the case, it not having been filed in or considered by the Court below.
    The mortgage is invalid as to Barker,
    I admit that mortgages may be made to secure future advances or liabilities, where no intervening equities exist; but it will, I think, be seen from a review of all the cases sustaining this class of mortgages, either
    1st. That they secure some actual debt, specified and stated in the instrument itself, and then provide for future advances in addition; or
    2d. That all such future advances are, by the terms of the mortgage, specified at or restricted to a certain sum; or
    3d. That their limitation and extent can be readily ascertained, as in the case of liabilities on official bonds, where the penal sum is always given.
    It will also be seen from several of the cases, that where mortgages of this sort are given, and a subsisting debt exists in the hands of the mortgagee against the mortgagor, this should always be described in the mortgage, and that mortgage which refers to no subject matter and are limited to no amount, and to no time of payment, are, as against creditors and bona fide purchasers, unsustaiued by the courts.
    Uncertainty in the condition of a mortgage throws the creditor on the statement of his debtor, who may barricade himself behind any amount of fictitious demand, acting collusively with his mortgagee.
    The early cases, especially in Connecticut and New York, will be found very rigid in the construction of instruments of this character. 4 Conn. 158; 5 Ibid. 448, 449; 6 Ibid. 37; 8 Ibid. 215; 9 Ibid. 288; 10 Ibid. 50; 13 Ibid. 380; 14 Ibid. 77.
    The later 'cases in this State settles this question so far, that future liability mortgages, wherein a specific sum is given as a limitation, are held good. 18 Conn. 217; 20 Ibid. 427; 28 Ibid. 123; 24 Ibid. 1. See also the following N. Y. Cases: 18 Johns. 544; 1 Johns. Ch. 288; 2 Ibid. 182; 6 Ibid. 417; 7 Ibid. 14.
    In Young v. Wilson, 24 Barb. 510 it was held that “ a subsequent incumbrancer, is entitled, from the record, to all the information which the parties to the mortgage can reasonably impart.”
    In Bank of Utica v. Finch, 3 Barb. 293, the necessity is aflirmed of a specified sum when future advances are sought to be secured.
    In Trascott v. King, 2 Seld. 160, pertinent comments on this subject are made by Jewett, J., 161. and Edmonds, J., 166. Vide also, 6 Barb. 346; also, 14 Barb. 242.
    • Later New York cases have relaxed somewhat the original rule of severe construction, but I think none of them will be found justifying or upholding mortgages such as the one under consideration.
    In Massachusetts, mortgages containing a clause securing future advances, which is additional to one securing an existing specific demand, have been sustained. 1 Pich. 398.
    Also a mortgage of this character was sustained where a note was given as collateral. 24 Pich. 274.
    Other cases where mortgages of this sort have been upheld, might be cited from different States, but all of them seem to have secured a specific debt also, or to have been in some manner limited in amount, or time of payment, or period within which the security should operate. 1 Pet. 448; 7 Rich. Eq. 283; 10 B. Monr. 98; 13 Ill 254; 36 Me. 477; 24 Barb. 510.
   Campbell J.:

The bill in this cause was filed to foreclose a mortgage made by Henry II. Brown and wife to complainants, in November, 1847, conditioned for the payment of “all sums of money now due or hereafter to become due." The bill averred a bond of previous date, conditioned for the payment of $11,200 and interest. The bill was filed July 20th, 1859. To this bill Brown interposed the Statute of Limitations as a defense, and Barker averred in his answer that, on the 21st day of July, 1859, the day after the bill was filed, he purchased the premises from Brown for a valuable consideration (the amount of which was not set forth) without notice of the mortgage, which was, however, on record. He claimed that the mortgage was invalid because not for a sum certain set forth on its face.

The mortgage and bond set forth in the bill were proved as exhibits before the’ commissioner, and are returned as a part of the record. But defendants claim they should be excluded, on the allegation that they were excluded in the Court below, as not filed in season. Affidavits are filed on both sides.

We have no doubt the proofs are properly in the case. They appear distinctly to have been regularly taken on proper notice, and if they were not filed earlier than is •alleged, \the court could not on that account regard them as nullities. Had the case presented any grounds for supposing surprise, that would have afforded some reason below for allowing the cause to stand open for further proofs. But the party is bound to know what proof his adversary takes at the time and place appointed, and, if 'not seeing fit to attend, he may still ascertain it at any ■time from the commissioner; and the court will always be liberal in relieving against accident or surprise. In the case before us there is no reason to believe any surprise possible. The testimony consists entirely of documents set •out in the bill verbatim, and the proof of their execution. Under rule 56 the mortgage, not being denied by the -answers, might have been read without .being made an exhibit. Although the bond does not prove itself, yet, on being proved, any defense to it must be affirmatively made, out. No defense, except the Statute of Limitations, is attempted to be made out by proof; and the stipulation extending time covers only the facts attending Barker’s purchase. There is no reason, therefore, why this evidence ■should be disregarded. And, inasmuch, as the case has been in this Court two years without any motion to strike it out, or to have a new transcript, we should not be disposed in a more doubtful case to permit such laches• But the facts of record show that no injustice can be ■done by retaining this proof.

It is claimed by defendant Barker that this mortgage is invalid for want of certainty in the amount secured. As the complainants do not seek to recover any advances made after Barker’s purchase (nor, indeed, any debts accruing after the date of the mortgage), none of the questions in regard to intervening equities arise. The only question presented is whether a mortgage to secure all debts existing, is good without specifying them. Upon a review of the cases which were cited on the argument we are satisfied that there is no legal objection to such a mortgage. It affords the means of ascertaining by inquiry the amount claimed to be due at any time. The objection that a limit of liability should appear is more specious-than sound. Such a limitation will always be made large-enough to cover all contingencies, and leaves it still necessary to make inquiry to learn the real amount secured.. And, so far as opportunities for fraud are concerned, such a maximum limit would be quite as convenient a medium of deceit as an open mortgage. As a matter of fact, even when- mortgages have been given for specific debts, inquiry is usually necessary to learn the balance unpaid; while mortgages of indemnity introduce not only uncertainty in amount but contingency of liability. And yet there is no-respectable authority which vitiates these. Although upon the question raised in this case there are some authorities sustaining the defense, the general course of decision is so clearly the other way that we are satisfied the mortgage must be held valid. We are of opinion the law has been settled correctly, and that the supposed evils of permitting such transactions are no greater than those which attend very many other dealings of undoubted legality. We do not, therefore, deem it necessary to inquire into the good faith or valuable consideration of" defendant Barker’s alleged purchase.

The defendants claim, however, that the mortgage is ban’ed by the Statute of Limitations. We do not think this ground is tenable. The Statute of Limitations is confined to actions or suits to enforce payment of the contract as a personal demand. Equity follows the analogies of' the law in all cases where an analogous relief is sought upon a similar claim. But where the relief sought is in its- nature one of equitable and not of legal cognizance, and the remedy is of a purely equitable nature, equity follows its own rules. The foreclosure of mortgages is one of the ancient equitable remedies. Its object is simply to enforce a lien upon lands by making it absolute unless redeemed. If there were any analogy between this and any legal actions, it would apply to real, not personal actions. But, in regard to mortgages, equity, although raising presumptions from the lapse of time, has not made-these presumptions conclusive. And, in the present case, the time has not run long enough to raise the presumption of payment, which in such cases requires a lapse of twenty years. 1 Story's Eq. Juris. §64 a, 529; 2 Story's Eq. Juris. §1028 a, 1028 b, 1519; 2 Pars. on Cont. 379. The rule fixing such presumptions at twenty years was adopted undoubtedly in accordance with the limitation of real actions in the common law courts, but it differs- from that in not being an absolute bar to the remedy. We think the complainants are entitled to foreclose their mortgage.

The bill under the statute seeks a personal decree against Brown. The power to grant such a decree is not one originally possessed by courts of equity, but is purely statutory, and is given in order to avoid circuity of action-by a resort to a suit at law on the debt in addition to-a suit in equity to foreclose. It is therefore a mere substitute for a legal action; and must -be governed by the rules which would apply at law* The statute allows a personal decree for the balance remaining unsatisfied after sale, “in the cases in which such balance is recoverable at law." If barred at law, it is barred in equity.

The bond in the present suit was due more than ten years before suit was brought. Although payments are-indorsed as made within ten years, the statute expressly denies to such indorsements unexplained any weight as evidence of payment, for the purpose of charging the debtor by treating them as an acknowledgment, so as. to take the case out of the operation of the law. Comp. L. § 5377. In the absence of other testimony, therefore, the statutory bar is complete, and no decree can be made against Brown for the balance which may remain unpaid.

The bill, however, should not have been dismissed against him, as he was a necessary party. He was not only mortgagor but actual owner of the equity of redemption when the bill was filed.

The decree below dismissing the bill must be reversed. A decree must be entered in the usual form, requiring defendants within sixty days to pay ^he sum of $3,050, with interest from October 1st, 1849, at seven per cent, per annum, and with costs of both courts, and in default of such payment directing a sale in the usual manner, and ordering that such decree be transmitted to the Court below for execution. No personal liability clause for the debt itself will be inserted, as there can be no claim unless the mortgaged premises are inadequate to pay the costs, and then it must be confined to those.

Martin Ch. J. and Christiancy J. concurred.

Manning J. did not sit in this case.


text:
    William Thompson v. Charles R. Thomas.
    'Where property is seized on attachment and the writ is returned not personally served, the publication of notice as provided by the attachment law is intended, as a substitute for personal service. The defendant has the same time in which to servo notice of retainer and to plead, after the filing of affidavit of publication, as ho would have had after a return of the writ personally served.
    átn such a case the defendant may appear and plead as matter of _right, and the Court can not impose terms on his doing so, in cases where terms could not havo been imposed if the writ had been personally served.

      Heard May 5th.

      Decided May 13th.

    Certiorari to Wayne Circuit.
    Thompson sued out au attachment against the property ■of Thomas, returnable September 2d, 1862, upon which land was attached. Personal service not being obtained, a notice to the defendant was published, and affidavit of publication filed November 6th, 1862. On the same day the appearance of the defendant was entered by the plaintiff in the common rule book, and declaration filed. November 28th defendant’s default for want of a plea was entered, which was made .absolute December 4th, and judgment entered for $5,208 50.
    December 5th, C. A. Kent filed an affidavit, stating the •service of notice of the entry of defendant’s appearance upon plaintiff’s attorney, November 26th; and also stating that he had been informed and believed that defendant had :a valid defense on the merits. On this afiidavit motion was made to set aside the judgment as irregular because a copy ■of the declaration was not served. The Court granted the motion, and ordered plaintiff to serve a copy of Ms declaration in ten days, and defendant to plead within twenty days 'thereafter. Plaintiff sued out a writ of certiorari to reverse this order.

      A. Russell, for plaintiff in error.

      Walker & Kent, for defendant in error.
   Christiancy J.:

Whether certiorari is the proper remedy to correct an ■error of the Circuit Court such as is claimed to have been .committed in this case, is a question we shall not here discuss, as we are all of opinion there was no error in the action of that Court in setting aside the judgment for irregularity in the proceedings.

The publication of notice required by section 18 chapter 140 Compiled Laws (with proof of' such publication) was, we think, intended as a substitute for personal service of the writ. Section 20 of the same chapter provides that, upon filing an afiidavit of such publication, the plaintiff “may file his declaration in the suit, and proceed therein as if a copy of such- attachment had been personally .served upon the defendant.” Section 29 of the same ■chapter provides that, the practice in actions commenced by attachment shall be the same in all respects as in personal actions commenced by summons, as near as may be, except. as ‘ otherwise provided by law. By section 11 Chapter 122 of Compiled-Laws, it is provided that, on the return of a summons personally served, “the defendant shall be considered in court, and may be proceeded against accordingly.” When the plaintiff, therefore, had filed his proof of publication, both parties (so far as relates to the question of appearance and pleading) stood in the same position as they would have occupied on the return of a summons personally served; since it has not been “otherwise provided by law”: §29 chap. 140 above cited. In fact, the writ of attachment is a summons with a clause authorizing a seizure of property: — § 5 Chap. 140 Comp. I.

The order entering an appearance of the defendant, though correct enough in theory, is no more necessary in such a case than upon the retui-n of a summons personally served, nor could it have any greater effect. The time for filing pleadings, the service of notice of retainer, copies of pleadings, &c., in cases commenced by summons, is not fixed by the statute, but is left to be provided for by rules of court. By rule 16 regulating the practice of the Circuit Courts, the plaintiff is required to file his declaration within twenty days after the return day of the writ; and within ten days after the time limited for filing the declaration, the defendant may cause notice of retainer to be served on the plaintiff. The plaintiff shall, within ten days after the time limited for the service of such notice, serve upon the party giving such notice a copy of the declaration, &c.

Under this rule, had the action been commenced by ordinary summons, the defendant had till the sixth day of December to serve the notice of retainer to entitle him to a copy of the declaration, and we think he had the same time here. This notice was served on the 26th of November..

The language of the rule might perhaps be improved, as it applies in terms to all original writs, and fixes the return day as the period from which the time is to be-computed. But treating the affidavit of publication of notice, as equivalent to personal service, the case falls clearly within the spirit of the rule.

But it is objected by the plaintiff that the defendant, after the filing of the declaration, had no right to appear and defend without leave of the Court, upon cause shown; and for this he relies upon § 21 Ch. 140 of Compiled Laws, which is in these words: “ If any defendant, not served with a copy of the, attachment, shall appear at any time before judgment, he may be admitted by the Court to defend the suit upon such terms as the Court may deem reasonable.” We think it very clear that this section doos not make it necessary to apply to the Court for leave to defend, nor authorize the Court to impose terms, in any stage of the case when such leave would not have been required and terms imposed had the suit been commenced by ordinary summons personally served. To hold ■otherwise would be to give a greater effect to the publication of notice than to the personal service of the process, and to take from the defendant, by a mere constructive notice of the suit, rights which he would have upon actual notice. Such an intention cannot be imputed to the Legislature unless the language will admit of no other construction. The purposes of justice require that Courts should be more liberal in allowing a defendant after publication to come in and defend than where personal service has been had.

The other Justices concurred.