text:
    Solomon Stone v. James Welling and others.

      Evidence by Stipulation. Practice. Documentary evidence, submitted, to tbe Court, at the hearing, by stipulation, is to be considered in the same light as evidence taken by deposition. Such evidence does not require the authentication of the Judge, by the making of a case, as does that taken in a trial in open Court, but comes before this Court by a return of the evidence, as in ordinary cases.

      Waive?' by appearance of pa?'ty. Where a party appears and answers, all objections to the regularity of proceedings to bring him into court, must be considered as waived. This principle applied to the case of a non-resident defendant, proceeded against by advertisement, who was permitted to come in and defend more than three years after the date of the decree against him.

      Burden, of pi'oof, when immaterial. When the question is whether a party is a bona fide purchaser of land, and the evidence of the real consideration of the deed has been introduced, it is immaterial which party had the burden of proof, or which introduced the evidence.

      Bona fide pui'chaset'. A mo'e execuiony contract, as the consideration, not sufficient. A contract to surrender indebtedness of the grantor to the grantee and others, but which was wholly unperformed in fact, whilst it is a sufficient consideration for the deed, as between the parties thereto, is not such a valuable consideration as to make the grantee a bona fide purchaser, as against a prior mortgage, recorded subsequently to the deed.
    In order to constitute the grantee a bonajide purchaser he must have parted with something of value, and not merely given a contract, which he could avoid, if his title under the deed proved defective. — Walk. Ch. 117; 5 Mich. 404; 6 Id. 13312 Id. 339.

      Agreement to dischai'ge. An agreement by a creditor with his debtor to discharge his demand at a future day cannot be treated as an absolute discharge, as against third persons whose rights intervene, where it appears that there was such a failure in the consideration for the agreement as would have entitled the creditor to disregard it, and proceed to the collection of his demand.

      Bona fide purchaser must hare paid value before notice of the prior moi'tgage. A party, in order to claim as a bona fide purchaser against a prior unrecorded mortgage, must have paid value at the time of his deed, or before the recording of such prior mortgage. The original transaction must have been valid at the time as a bona fide purchase, or the prior record of the deed would be of no avail under the recording laws. The recording could not make the party a bona fide purchaser, when the effect of the prior recording depends upon the fact of his being such bona fide purchaser.

      One not a bona fide purchaser, when may redeem. Where a subsequent purchaser has Ms deed recorded before the prior mortgage, but has not paid valuó in such a manner as to be held to be a bona fide purchaser as against such mortgage; yet, as in a foreclosure suit on such mortgage the validity of the deed, as between the parties thereto, cannot be attacked, he is entitled to redeem.

      Defense by answer, alloiued, comers all defenses. The Court below made an order opening the decree, and permitting the defendant to answer, but providing that the sale before made under the decree should stand until the final hearing.

      Held, that the opening of the decree and allowing a defense by answer, permitted of all rights of defense which might be established by answer, including a right of redemption.

      Who bound by dece'ee. Where a decree in a foreclosure case is opened to let in a defense, on the petition of a defendant, after a sale has been made to complainant under the decree, no one will be bound by the proceedings on such petition but the parties to it, and those who have subsequently acquired interests under them. Any one who, before the decree was opened, had become purchaser under the complainant, would not be affected by such proceedings unless made a party to them, and allowed an opportunity to be heard.

      Heard October 12th and 13th.

      Decided October 23d.

    Appeal from Shiawassee Circuit, in Chancery.
    The bill was filed in 1852 for the foreclosure of a mortgage, and the defendant proceeded against by advertisement, as a non-resident. The bill was taken as confessed, decree rendered, and the land sold to complainant in 1854. In 1857, more than three years after the sale, defendant Welling apjfiied to the court to have the decree opened, that he might make defense by answer. This was done, and on hearing upon bill, answer and proofs, a decree was rendered against the defendant from which he appealed to this Court. The opinion contains all the facts necessary to a full understanding of the case.

      M Gould, for complainant.
    1. The proceedings in the case, up to and including the sale of the mortgaged premises, were regular, and vested in the purchaser the title in fge of the lan4 sold.

      The order allowing defendant to appear and defend shows, that the court did not grant the prayer of petitioner, because of irregularities in the proceeding. It expressly reserves the rights of the purchaser of the land from the effects of the order made.
    In this case, defendant, if he has any cause of complaint, must file his bill and seek his remedy through a bill filed against the complainant.' — 2 Comp. L. § 3547, 8, 9.
    The law expressly prohibits the defendant from proceeding, and declares, that he shall not proceed, except to file his bill against the complainant, and his representatives, to account for any money received by him, or them, by virtue of such decree, over and above the amount justly due on the mortgage.
    Irregularities in the sale and conveyance must be shown, to entitle defendant to be heard. The court, in making the order, evidently left the question to be determined at the hearing.
    2. The testimony, or that portion which is exhibited in the return of the register, does not, in any manner, show that it was taken in the case. The deeds were to be produced in open court, upon a notice to be served, which notice was served, and what is claimed as testimony introduced does not show that it is the minutes of the court on the trial. It does not show, in any manner, that any testimony was introduced, on either side. — 8 Mich. 74.

    The defendant brings us into this Court, claiming that, under the law and the proof offered by him, injustice has been done, and he asks a reversal of the decree made by the Circuit Judge; and it would be great injustice to complainant, if the proceedings before the judge could not be presented in their connection with the defendant’s testimony, as follows:
    Complainant claims, that the allegations in the answer were not sufficient to allow the defendant to introduce evidence of the payment of a valuable consideration, for the deed he claims to have from Hart, and wife, to himself and Root. And we had a right to, and did, object to the introduction of any evidence showing the fact.

      Again, the defendant failed to file the notice required by the stipulation, so as to entitle him to jjroduce in evidence, on the hearing, the deeds which are set out in the case; this we had a right to, and did, object to; and in other respects the rights of the complainant would be, and are, injured, if the deeds, &c.; are to be used as evidence, without the whole thereof appearing.
    3. The answer filed by the defendant does not properly allege that the defendant paid value for the deed, which he attempts to set up. The answer is, substantially, that he is a purchaser, for valuable consideration paid, without notice. It should have been stated that he actually paid for the land, in money, and how much, or how he paid for it; if by the discharge of a precedent debt, it should have been so stated; to apprise complainant as to the facts to be proved, that he might have rebutted the evidence. — Story’s Eq. Pl. 604, 605; 7 Johns. 65 ; 8 Paige, 421.
    4. The evidence on the part of defendant does not sustain his answer, as to a consideration actually paid. The whole of the evidence on that point is contained in the deposition of the witness, George W. Root, who was at one time joint grantee of the land with defendant, and his history of the transaction through which the deed was obtained is, that Hart and a woman by the name of Williams were indebted to Welling & Root, for goods previously sold them, upon which judgments had been recovered, and the only consideration for the deed under which defendant claims, was an agreement to cancel the said judgments, and other claims which they held against Hart & Williams, and to cancel and get up,a note which one Hobert had against the same parties, within twelve months from the time of giving the deed. — 10 Peters, 177; 12 Mich. 496; 13 Id. 367.
    The only consideration for the giving of this deed, then, is an executory agreement of the defendant, unperformed to this day. The deed does not constitute the defendant a bona Jide purchaser. Welling & Root did not part with anything of value; they released no debt; they did nothing but make an agreement which has never been fulfilled, so for as this ease shows; and they stand where they did Avhen this agreement was executed.
    The consideration was sufficient to support the deed, as between themselves and Hart; but as between themselves and complainant, it is of no avail. — 4 Paige, 215; Walker's Ch. Mich. 117 ; 3 Barb. Ch. 408; 3 Paige, 421.
    5. The execution of the mortgage vested in the complainant an interest in the land. The defendant’s deed is subject to complainant’s mortgage, except ?s it maybe controlled by the registry laAV But the registry laAAq whatever may be the language used, will be controlled by the rule laid down by the courts of equity; that the subsequent purchaser must be such, bona fide, without notice, and for a valuable consideration actually paid. The court will not allow the defendant to take the advantage of the registry act, Avhen he has j>aid nothing for the deed he sets up. Walker’s Ch. Mich. 117; Id. 265.
    The Statute of 1838, pages 260 and 291, §5, is substantially a copy of the English registry law, and the courts have always held that the subsequent grantee, although he is first on the record, must have the equities with him, or the first grantee would prevail. — Sug. on Vendors, 511, 498 ; Walker’s Ch. Mich. 118; Id. 265.
    The question, then, turns upon the equities between the parties. A court of law Avould be controlled by the strict letter of the statute, but it is otherwise with this court.

      H. K. Clarke, for defendant.
    1. As to the burden of proof, the court below puts it on the defendant. We think it is on the party who disputes the right which the defendant acquired, by his prior record.
    The statute, in force at the time when the deed and mortgage were executed, and the deed recorded, enacts that “No bargain and sale, or other like conveyance of any estate in fee-simple, or for life, and no lease for move than seven years from the making thereof, shall be valid and effectual against any other person than the grantor, and his heirs and devisees, and persons having actual notice thereof, unless it is made by a deed, recorded as provided in this chapter.” Rev. Stat. of 1838, _p. 260, § 25.
    This legislates directly upon the effect of an unrecorded deed, as against “ any other person than the grantor, and his heirs, and devisees, and persons having actual notice.” The defendant in this ease is such “ other person.” Against him the unrecorded mortgage of Hart to Stone is declared to be invalid and ineffectual. The law, as it stood from 1838 to 1847, protected all persons against an unrecorded deed, except the grantor, his heirs and devisees, and persons having notice. As the law stood prior to 1838, and has been since 1847, a party, to claim this protection, must also be a purchaser for a valuable consideration. — Laws of 1827, p. 280, § 2; Rev. Stat. of 1846, Comp. L. § 2748.
    Possibly a Court of Equity, upon general equity principles, might hold that only a bona fide purchaser could claim the protection of the statute of 1838, notwithstanding the fact that the statute by its silence does not limit its application, as is provided in the law prior to 1838, and subsequent to 1847. It is very clear, however, that a party claiming under a prior recorded deed, executed and recorded while the statute of 1838 was in force, will not be deprived of its priority, except upon the clearest proof, affirmatively establishing the fact that he is not a bona fide purchaser without notice.
    The language of the statutes of 1827 and 1846 might be so construed as to throw the onus of proving the consideration upon the party claiming under the subsequently executed, though first recorded deed. Yet the language has been construed by Chancellor Manning in Godfroy v. Disbrow, Walker’s Rep. p. 265-6, in which he held that the onus of establishing notice and want of consideration is upon the party claiming under the subsequently recorded deed. The question was raised in that case in the same way that it is in this; — the answer denying notice, and asserting a bona fide purchase. — 2 Lead. Cas. in Eq. p. 86.
    The complainant, offering no proof to charge the defendant, Welling, with notice, or to impeach the consideration of the deed to him, the hill ought to have been dismissed. The ease, as it stands upon the pleadings, will lead to the same result.
    The bill charges, in the form usual in foreclosure bills, that the defendant “has or claims to have rights and interests in the said mortgaged premises,” and calls for a full answer, on oath, as “to all the facts charged and stated in the bill.”
    Thus called upon, Welling answers that he never knew or heard of the mortgage, stated in the bill, until 1857. He denies that any such mortgage was legally of record. He avers that he has an absolute title to the mortgaged premises, for which he had actually paid a valuable consideration, and that “ he was, and still is, the owner of the premises, without legal or actual notice of any claim or lien of the complainant thereon.” It is not easy to conceive of anything more directly responsive than this to the case made by the bill, and the call upon the defendant to set forth his title.— Walk. Ch. Mich. 267; 12 Mich. 297.
    The complainant, having taken no proofs to contradict the answer, there is, of course, no preponderance of proof to overcome it. The defendant, therefore, on his answer fully denying the equity of the bill, was entitled to have it dismissed.
    2. The defendant does not rest upon his rights as presented by the pleadings. He proceeds to prove, and does prove, that he paid a valuable consideration for the conveyance to him. The testimony of Geo. W. Root, and the copy of the agreement entered into between Welling and Root, and Hart, show what the consideration was.
    It is understood that the objection to the validity of this consideration is, that it is not shown that the agreement was performed. To this we reply:

      a. That the agreement itself is a sufficient consideration for the deed. It was satisfactory to Hart; he could enforce it, and he has never complained of it.

      b. An agreement to discharge a judgment, due to the party who makes the agreement, is a discharge of .the obligation of that judgment, and to that extent the agreement was performed.
    The doctrine that the holder of a promissory note, or of a mortgage given for a precedent debt, is not a purchaser for value, which was relied upon below to defeat the title of the defendant, has been repeatedly denied in this Court, and it may be regarded as settled that in this State it is not law. — 1 Doug. Mich. 413; 5 Mich. 459; 13 Id. 539.
    ■ c. And if it had not been, it would be especially absurd to hold that a party could not accept the conveyance of land in payment of a debt due to him, except at the risk of having his title defeated by a deed, of which he had no notice, on showing that the only consideration for the conveyance was a precedent debt!
    If there can be any greater absurdity than this, it must be that every man holds the title to his real estate dependent upon his ability to prove, at any time when called upon, by any one who claims to have an older deed, what the actual consideration was for the conveyance under which he holds ! —which is also contended for by the complainant in this suit.
    The defendant’s .equity being thus affirmatively established, the bill ought to have been dismissed.
    3. There is another reason why the decree'in this case should be reversed. If the court below was right in giving to the complainant’s mortgage a lien prior to defendant’s deed, certainly that was no reason for denying to the defendant a right to redeem, as against the mortgage. The complainant’s right in the mortgaged premises was only á lien; the extent of his right was to secure the payment of his debt. But the decree in this case was more severe than a strict foreclosure. It was more severe than the prayer of the bill: that asked for a foreclosure and sale. The decree adjudged “that said James Welling has no right, title, or valid claim to said premises, or against the said complainant and .his grantees.” Such, an absolute denial of right is utterly without any precedent in a Courtjof Equity.
    The former decree and sale furnish no excuse for such an extraordinary proceeding. The sale was to the conrplainant. It had not been confirmed; and if all the proceedings in the suit to that sale had been perfectly regular, yet, when set aside and the defendant let in to defend, he was entitled to the rights of a defendant.
    But we claim that those proceedings were not regular. This irregularity was alleged as a ground of setting aside that decree, and this irregularity now appears upon the face of the record, in these particulars:

      a. The’ order for the appearance of the defendants, who are all non-residents, was made by a Circuit Court Commissioner. Such an order, in 1852, could only be made by the court.— Comp. L. § 3584.

      b. The affidavit on which the order was granted does not appear in the record. This precise point was adjudged fatal in 10 Mich. 264, 5.
    4. If the defendant Welling has no rights here, certainly the court will look into the record and see whether the decree ought to stand, as against the other defendants. They are all non-residents, and all infants, the children of George Hart, the complainant’s mortgagor and Welling’s grantor. George Hart is dead, and the court below granted a decree against his infant children, without any other proof of an existing indebtedness, arising on an indemnity mortgage, than the examination of his attorney; when the complainant himself was residing in the same place.—Comp. L. § 3537-3540; 13 Mich. 258.
   Cooley J.

The position of this case is as follows: Stone filed his bill to foreclose a mortgage given by George Hart, making James Welling a party defendant as subsequent purchaser. Both the defendants were non-residents, and their default was taken for want of appearance, after publication of an order for that purpose. Decree was taken in the usual form, a sale made under it, and the premises bid in by complainant.

Three years after this sale the defendant Welling presented his petition to the court for leave to defend, setting forth that he had just become aware of the proceedings. He also moved the court to set aside the proceedings, for irregularity. The court made an order based on his petition, setting aside and vacating the decree, and giving Welling leave to defend, but directing that the sale which had been made should not be affected until the final hearing and decision of the cause.

Welling then filed his answer, by which he claimed title to the mortgaged lands, by a deed from Hart, bearing date after the mortgage, but recorded first, and which he alleges was given for the consideration of five hundred dollars. Issue being taken upon this answer, evidence was put in by Welling to support it, from which it appears that the real consideration for the deed was an agreement by the firm of Welling & Root to give up to' Hart, within twelve months from its date, judgments and notes against Hart and one Williams, both, or either of them, to the amount of four hundred and fifty dollars, including in that amount their indebtedness to Welling & Root. There was also a conditional agreement to procure and give up to Hart another note, of near a hundred dollars, held by one Hobert. Welling & Root at this time held a judgment against Hart & Williams, amounting to about $336, but whether there was any further indebtedness to them was not distinctly shown. Nothing appears to have been done towards performing this agreement with Hart after it was given.

The court below held that this deed and evidence did not' entitle Welling to the rights of a bona fide purchaser, as against the prior mortgage to complainant, and thereupon, by its final order, vacated the order opening the decree, leaving the sale to stand unaffected. Welling appeals tó this court, and assigns several causes for a reversal of the proceedings.

A preliminary objection is taken by complainant, that no evidence is properly returned with the record, inasmuch as the proofs were submitted at the hearing, and no case embodying them has been made and settled. This objection is based upon the assumption that the case is to be considered as having been heard on evidence taken in open court; but this is a misapprehension of the practice. An order for taking proofs in the usual form was entered, and the evidence which was put in at the hearing was documentary in its character, and was put in at that time by stipulation.

Under such circumstances no settlement of a case is required, but the depositions or documents, which appear from the record to have been presented and filed in the court below, stand on the same footing as depositions taken before a Commissioner, and require no authentication by the Judge. We have no doubt the evidence is all properly before us, and we have only to consider the validity of the reasons assigned for a reversal.

First. It is claimed that the order for the appearance of the defendants as non-residents was not in compliance with the statute, and consequently all the subsequent proceedings were void. This objection, if otherwise valid, was obviated by the appearance and answer of Welling in the case, and does not, therefore, require examination. An objection that the complainant should have been personally examined as to the payments due upon his mortgage, before the first decree was rendered, stands upon the same footing, as it cannot be claimed to be essential, when the defendant is personally served or appears in the case.

Second. It is insisted that Welling, having placed his deed first upon the record, had a right to rely upon it as establishing a prima facie right in himself as against the mortgage, and that complainant, if he claimed the better right, would take upon himself the burden of showing that Welling was not a iona fide purchaser. "We do not perceive that the question of the order of proof is of any importance in the case, as it now stands. The evidence showing the real consideration for Welling’s deed is in the case, and is not disputed. It is, therefore, quite immaterial which party introduced it. It must be considered and weighed on the final hearing, and the question arising upon it is, not who .was bound to put it in, or who did so, but whether when in it supports the deed as against complainant.

Third. Welling claims that the agreement which was given for the deed was amply sufficient to support it, and to entitle him to the rights of a ionafide purchaser under the recording laws. It was satisfactory, it is said, to Hart; and as to the indebtedness held by Welling and Root against him, it would have the effect of a present discharge. That it was satisfactory to Hart can be of no consequence on this question, since, to constitute Welling a' iona fide purchaser, he must have parted with something of value, and not merely given a contract which he could avoid, if his title under the deed proved defective.— Thomas v. Stone, Walker’s Ch. 117; Dixonv. Hill, 5 Mich. 404; Warner v. Whittaker, 6 Id. 133 ; Blanchard v. Tyler, 12 Id. 339. Nor do we think the agreement had the effect to discharge any indebtedness. It was executory in its character, covering not only the claims of Welling & Root, but also other claims to be procured by them, and upon which it cannot be claimed that the agreement itself would have any effect whatever.

An agreement by a creditor with his debtor to discharge his demand may doubtless be treated as an absolute discharge, on the principle of equitable estoppel, when the consideration is sufficient, and the rights of third persons do not intervene. — Robinson v. Godfrey, 2 Mich. 408; Morgan v. Butterfield, 3 Id. 615.

But the question in this case is, whether there was an actual payment of value for the land by Welling before notice of complainant’s mortgage; and to make the agreement amount to such a payment it must at least have been one which Hart, at the time, could have enforced as a discharge against Welling & Root. The evidence shows that the agreement was wanting in the consideration agreed upon, since the land covered by the deed had previously been incumbered by the mortgage to complainant. There was no impediment, therefore, to Welling & Root proceeding in the collection of their demands against Hart & Williams, if the facts had all been made known to them. The circumstance that their deed was recorded before the mortgage can not relate back, so as to furnish a valuable consideration for the deed as against complainant, if one was wanting at the time. The original transaction must have been valid at the time, as a bona fide purchase, or the prior record of the deed would be of no avail under the recording laws. To say that Welling made his agreement effectual, and became a bonafide purchaser, by getting his deed on record first, when the force of the record depended on his being a bona fide purchaser, is simply reasoning in a circle.

Fourth. Rut although Welling was not entitled to priority of right as against complainant’s mortgage, we think the court erred in not giving him leave to redeem. When the court in the exercise of its discretionary power vacated the decree to let in his defense, we do not see how he was afterwards to be deprived of the benefit of such defense as he should be able to establish. The proviso in the order opening the decree, that the sale should stand until the final hearing, we can only understand as designed to leave the sale unaffected, until it should appear that some matter of defense required it to be vacated; since, otherwise, letting Welling into defend was an idle ceremony. The equity to have the sale set aside where a right of redemption is shown, is as complete as if it had appeared that Welling’s rights superseded those of complainant altogether.' An order allowing a defense by answer would certainly imply a full defense, where no restrictions are imposed by its terms, 'The suggestion made by complainant’s counsel, that the court by its order designed simply to give Weiling the same rights, and no more, which he would have obtained by filing his bill — namely, the right to an account of the proceeds of the sale, should he appear to have priority — does not seem to us consistent with the order made, which, as we have said, imposes no restrictions upon a full defense. It may be that the court ought to have declined to interfere on the petition, and left Welling to his statutory remedy; but as a defense was allowed, we have only to see how far it was made effectual. And, as we have said, it was made effectual to the extent of showing a right to redeem; since the validity of the deed from Hart to Welling, as between the parties to it, cannot be questioned in this proceeding.

All the steps taken in this case, subsequent to the sale, have proceeded on the assumption that Welling was the party in interest on one side, and the complainant on the other; but it was stated on the argument in this Court that complainant long since parted with his interest. As the record discloses nothing of this, we can not regard it in our decision; but no decree we could make either ought to effect the rights of persons not made parties, or could be made to do so. The order ■opening the decree, and all subsequent proceedings, will be .available as against any right of the complainant, or any one who has since acquired rights under him; and Welling can redeem from any such party; but if other parties are interested they are entitled to be heard, before their rights can be affected; and the order allowing redemption must be so limited as to confine it to such interest in the land as the complainant owned, at the date of the order opening the decree.

The final order of the court below must be reversed, and decree entered in this Court allowing defendant Welling to redeem on this principle, on paying to complainant, or his solicitor, in case complainant has not conveyed the land, or has conveyed since the decree was opened, the amount of the original decree, with interest thereon, and the complainant’s costs of this Court, within four months from this day, after deducting therefrom his costs of this Court to be taxed. And on failure to make such payment within the time mentioned, his right of redemption is to stand foreclosed. But in. case said complainant had conveyed said land before said decree was opened, then the said defendant to be at liberty to assert his rights against the purchaser or purchasers, as to him may seem meet, and the rights of all such persons, and of said defendant against them, shall remain unaffected by this decree.

Christiancy and Campbell J J. concurred.

Martin Ch. J. I find no reason for changing the decree of the Circuit Judge.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    The People, ex rel. George R. Goldsmith, v. The Highway Commissioners of Nankin.

      Highway Commissioners. Notices how served: Return of service. The statute, L. 1861, p. 256, requires that when application is made to the commissioners of highways for the vacation of a highway, a written notice must he given, stating the object of the application, describing the premises and designating the time and place of meeting of the Board. This notice is required to he served on the owners or occupants of lands through which the road passes, either personally, or by copy left at the residence of such owner or occupant, and by posting in three public places in the township.
    The return of service in this case recited that it was served u upon each of the persons living upon and interested in said road therein described,1 and also that the commissioners posted three notices as required by law."

      Held, that this proof was insufficient; that to comply with the statute, it should appear upon what particular persons the notice was served, and whether served personally, or by copy left at the residence.
    Held, also, that the return should show the particular places where the notices were posted, since it is the duty of the Board not to proceed without being satisfied on this point.
    Such notice being a necessary pre-requisite to the exercise of jurisdiction, the order of the commissioners was quashed.

      Heard October 18th.

      Decided October 23d.

      Certiora/ri to the Commissioners of Highways of Nankin, Wayne County.
    This was a writ of certiorari to review the proceedings of the Highway Commissioners of Nankin, in discontinuing' a portion of a road.

      H. M. Cheever, for relator.
    The proceedings of the respondents are void, for the following reasons:
    1. By the record it appears that no evidence was taken by the commissioners “ to ascertain and determine the necessity of discontinuing the highway.” They seem to have acted solely upon their own opinions. The return expressly showing that the whole evidence is “ returned,” no presumption can arise in favor of any other having been received. — 2 Doug. Mich. 98; 8 Id. 424; L. of 1861, p. 266, § 3.
    2. It does not appear that the commissioners complied with the law regulating their proceedings in any of the following particulars, upon all of which the statute is imperative:

      a. “ Viewing the premises described in the application and notice.”

      b. Passing upon the “necessity” of discontinuing the highway.

      c. Meeting at the “ time and place appointed.” They say they met “ accordingly,” i. e., to what immediately precedes this statement, “ to consider and determine upon the question of the discontinuing said road.” See Act of 1861, §§ 2, 3.
    3. The certificate of the service of notice is insufficient because

      a. It has no revenue stamp attached. — Stamp Act, p. 103.

      b. It does not show such service as is required by law. The certificate reads as served “ upon each of the persons living upon and interested in said road therein described,” i. e., described in the notice, not the petition.
    The law requires notice to be served “ on the owners or occupants of lands through which it is proposed to lay out, alter or discontinue such road, either personally or by copy left at the residence -of said owner or occupant.” — Act of 1861, § 2. It does not appear that the owners of lands had notice, nor does the manner of service appear.

      4. The “ petition” and “ notice” differ. The petition refers' to a recorded plat, and states the course through such plat to be “ southerly a few degrees west,” etc. The notice makes no reference to any “plat,” but defines the course through the village to be “ south-westerly.”
    5. The road, as described in the order of discontinuance, differs from the one described in the petition. The ¡petition is the source of jurisdiction, and must be adhered to. The “ finding” must conform to the “ petition.” This question has been so fully argued in this Court heretofore, that it is unnecessary to dwell upon it. — 30 Maine, 302 ; 3 Dutcher, 420; 4 Halsted, 21; 13 Shep. 406; 12 Mich. 434, and cases there cited.

    The constitutional power of the commissioners to lay out a highway was also discussed, but as the court did not pass upon that question, the argument is omitted.

      G. V. N. Lothrop, for respondents.
    1. The commissioners acted under Act No. 163, Sess. L. 1863, p. 256.
    The record discloses that they obtained jurisdiction of the subject matter by a petition signed by the requisite number of freeholders. — Laws 1861, p. 356, § 1; 6 Barb. 610. The record also discloses a notice to the persons interested of a meeting of the commissioners, and due service and posting of the notices. It also shows a meeting of the commissioners; their order of discontinuance, and the amount of damages.
    "When it appears that in such case the officers obtained jurisdiction in the case, the proceedings will not be reversed or set aside, unless manifest and clear error is disclosed in the subsequent proceedings. Every intendment in favor of regularity will be allowed. — 2 Doug. Mich. 98; 4 Cow. 194; 3 Hill, 458.

    2. The highway commissioners were constitutionally and legally clothed with power to act in the premises.
    The amendment of See. 2, Art. 18, of the constitution, adopted in 1860, removed all constitutional difficulty. — Laws 1859, p. 1102.

      And Act 163, Laws 1861, p. 256, gave them full statutory-power.
    3. The writ of c&rUora/ri is a writ, not of right, but depending on the discretion of this Court. Where the party has a full remedy otherwise, the Court does not favor resort to this writ; and on this ground may quash this writ at the hearing. —9 Mich. 324; 12 Id. 114; 1 Hill, 195, 674.
    Now, in this case, all parties had a full, plain, easy and prompt remedy, by appeal to the town board. — Laws 1861, p. 259, §§ 11, 12. This remedy is one specially appropriate to the nature of the proceeding complained of. And in ordinary cases there is no reason why parties should not be required to resort to it for redress.
    We insist, therefore, that this Court should quash or set aside the certiorari in this case.
   Campbell J.

The relator complains of the action of a board of highway commissioners in discontinuing a highway. Among other objections it is urged that no legal notice appears to have been given. The statute requires that when application is made to the commissioners, a Avritten notice must be given stating the object of the application, describing the premises, and designating the time and place of meeting of the board. This notice is required to be served by the commissioners, or one of them, on the owners or occupants of lands through which the road passes, either personally, or by copy left at the residence of such owner or occupant, and by posting up such notices in three public places in the township. A copy of the notice is to be appended to the return of the commissioners. — L. 1861, p. 256, 257. The return of sendee on the notice in this case, recites that it Avas served “ upon each of the persons living upon, and interested in said road therein described,” and, also, that the commissioner “posted three notices, as required by law.”

We think this proof insufficient. In order to comply with the statute we think it should appear upon what particular persons the notice was served, and whether served by copy left at the residence, or personally, in order that there may be distinct proof of the parties bound by such notice. Such a return as is here given is altogether uncertain. Had names been given, it might have enabled the commissioners and the parties interested to ascertain with certainty whether any owner or occupant entitled to be heard had been loft out, and whether, therefore, the proceedings could or could not be maintained. The same remark will apply to the designation of the ptiblic places where the notices were posted. The return should show where those places were; for it is the duty of the board not to proceed without being satisfied upon this point. The practice has always required such returns to state specific facts, from which the sufficiency of the service may be determined by the tribunal which is to act, instead of by the officer who serves,process.

The notice, being a necessary prerequisite to the exercise of jurisdiction, the proceedings are irregular for want of record proof of it, and' the order of the commissioners must, therefore, be quashed.

The other Justices concurred.


text:
    John King, Jr. v. Daniel B. Harrington.

      Dewee against absent defendants, when valid. Order to confirm, immaterial after seven years. Mititling affidavit. Bill to quiet title, what is not. Plaintiff brought ejectment for certain lands, to which defendant set up title under attachment proceedings against plaintiff. It appeared that defendant had filed his bill against plaintiff (defendant in the attachment suit), and a redeeming creditor; alleging fraud, and praying to have the proceedings set aside, and releases executed. The defendants were published as absentees, but the affidavit of publication of the order to appear was not entitled in the suit, though the order itself was. A decree was granted according to the prayer, declaring that plaintiff (defendant in the attachment suit) hadno title. More than seven years had elapsed since said decree, and before the present suit. No order of confirmation was ever made. Held,

    I. That the decree, having been taken by default against absent defendants, cannot be sustained unless the proceedings to give the court jurisdiction were regular. — 10 Mich. 260.

      2. That as such order is a matter of right and not of discretion, and as the statute is positive that a defendant must appear within seven years, the omission of the order to confirm was immaterial. — 2 Comp. Z. §§ 3545, 6.
    3. That the object of entitling affidavits being to connect them with a suit, so that perjury will lie upon them, an affidavit referring to a paper properly entitled, to which it is appended, must be assumed to have adopted the title by the reference.
    4. That the bill, being framed for the express and only purpose of avoiding an alleged fraud in attempting to establish an unauthorized redemption of the attachment title, it could not be considered as one to quiet title.

      Attachment: when notice necessamj to jurisdiction: when judgment void. The writ of attachment in this case was issued July 31st, 1840, and returnable, August 7th. On the day after its date it was returned served on the land, and not found as to the debtor. At the third term of court after said return, a declaration was filed, and judgment entered thereon, without proof of publication. Subsequently an affidavit of publication was filed, declaring that the notice annexed had been published for six successive weeks “preceding the said 23d day of September,” but without fixing any particular September.
    Held, that where there is no personal service, the publication of notice is necessary to enable the court to obtain jurisdiction, and no judgment is valid without it.
    In special proceedings against parties not served or appearing, the substituted service must be strictly regular under the statute. — 11 Mich. 274; 2 Comp. L. §4761. The declaration having been filed and judgment entered when there was no proof that defendant in attachment had been notified, and the affidavit being insufficient, the judgment in attachment was a nullity, andno title passed under it.

      Heard October 20th.

      Decided October 31st.

    Case made for review from St. Clair Circuit.
    Ejectment.
    Tbe facts are stated in the opinion.

      Mitchell & Farrand, and A. B. Maynard, for plaintiff.
    1. The proceedings in the attachment suit were irregular, and void, and gave the court no jurisdiction to render judgment in the case.

      a. There was no personal service of' the attachment, and no appearance of defendant in the suit in which the judgment was rendered, and on which the sale was founded. — 2 Comp. L. §§ 4759, 4761.

      b. The declaration was filed, and judgment rendered in this case, on the 8th day of November, 1849.
    Before that time, no proof whatever had been made or filed of the publication of any notice. But on the 20th of December following, a notice and defective affidavit were filed in that court.

      We insist that proof of the ..proper publication of a proper notice, as required by the statute, was prerequisite, and absolutely necessary, before the County Court had jurisdiction, either to receive and place on file the declaration, or to proceed to judgment in the case, and that everything done without the required notice and proof of publication was coram nonjudice, and rendered the whole proceedings void, ab initio.

      c. There is no date nor entitling to the notice. The fact of adjournment to the November term is not required by the statute, and has no relation to the requisitions of a proper notice.
    The affidavit is made over a month after the judgment, is not entitled in any cause, and only shows that the require, ments of the statue were not complied with.
    As to the necessity of properly- entitling affidavits, see 2 Cow. 609 ; Burr. Prac. 342; 7 T. R. 661; 2 Dowl. P. C. 731; 3 Id. 107; 8 Taunt. 647; 2 Moore, 722; 1 Mich. 115; 11 Id. 456 ; 8 Paige, 415.
    The notice cannot be said to be any part of the affidavit. It only refers to' an annexed notice, and not to a notice to which the affidavit was an addition, or of which it in any manner formed a part.
    The publication of notice, and proof of publication before judgment, was absolutely essential to the jurisdiction of the court. Without them, the court had no more power to act than it would have in the absence of proof of service of process. Publication was essential, and in the place of process.— 2 Doug. Mich. 498, 93; 5 Mich. 98; 6 Id. 242; 1 Blackf. 215.
    2. The proceeding is a special one, in which the court exercises an extraordinary jurisdiction, under a special statute, prescribing its course, and not under general powers. It can, therefore, act only according to the powers of procedure which the statute prescribes. — 2 Mich. 418; 3 Id. 277; 2 Doug. Mich. 498.
    The notice is equivalent to, and takes the place of, process. —11 Mich. 274.

      The judgment of the County Court, in the attachment suit, was void, and the rights of the parties are dependent upon the subsequent chancery proceedings and the decree. Whatever title was procured by Ashley & Minne, under the execution sale, and subsequently transferred to the defendant, was redeemed by John S. King, on the 19th May, 1851, he being a judgment creditor of John King, jr. John King, by his agents, on that day, and within the time limited for redemption, went to the register and offered him the money to redeem with, but he, after receipting it as paid, not being satisfied to take a check for part of the amount, went with the agent to Detroit, where the full amount was paid to him, and before going, he endorsed on the certificate of sale a receipt in full. This was a full redemption, and so afterwards held by the Supreme Court, as appears by the judgment of that court.
    The fact that the money was in St. Clair the next day, and that the purchasers, insisting on technical time, had procured a deed from the sheriff before the return of the register, can make no difference with the fact of the redemption, nor in any way affect or do away with the decision of the Supreme Court upon the mandamus, of which all parties in interest must be presumed to have had notice.
    The deed then, from Whitman, the sheriff, to John S. King, under the order of the Supreme Court, and from him subsequently to the plaintiff, reinvests him with all the title undertaken to be conveyed in the sheriff’s sale. The purchase money was deposited, and has ever been in the register’s hands, ready to repay the price they bid for the land.
    3. But it is insisted by the defense that this redemption was set aside,- and the title confirmed in the defendant, in the chancery proceedings of Harrington v. John S. and John King, jr.

    We insist, on the contrary, that those proceedings were entirely ex parte, and were a fraud upon the court.

      a. The bill did not advise the court of the facts as they existed. This was a fraud upon that court, and no claim, procured by deception or suppression of facts, ought to be considered as binding or conclusive. The decree is, therefore) open to objection, as well as to review.

      b. The bill only sought to set aside the redemption, and in no way raised the question of the validity of the judgment, or of the attachment proceedings.
    The intent and scope of the bill was simply to set aside and do away with the attempted redemption and the subsequent deed. It did not attempt to reach the title of John King, jr., except as affected by that redemption, and the Court of Chancery was not called upon to pass upon the validity or invalidity of the judgment upon which the complainant’s title rested. Any decree founded upon that bill must be within the direct scope of the bill, and if it w^nt further, or adjudged upon matters not brought or offered in issue by the bill, it was void, pro tanto.

    The decree undertakes to declare that the defendants had no title to the lands, a fact not put in issue by the bill, and upon which, had an answer been interposed, no issue could have been made or tendered.
    A decree must be founded on, and in conformity with, the allegations and proofs; and cannot be based upon a fact not put in issue by the pleadings. — 1 Barb. Ch. Prac. 339; 10 Wheat. 181; 3 Litt. 339.
    But the decree does not undertake to defeat the defendant’s title; it only declares “ that the said John King, jr., had not at the time of filing said bill of complaint had no interest in said lands,” — a double negative, afiiiming his title.
    But even if it did undertake-to defeat the plaintiffs’ (defendants in that suit) title, or to correct the judgment, it could not properly so do ; and a decree of the Court of Chancery, in that regard, was not only irregular, but of no effect, and void.
    A decree in equity cannot divest a legal title; it can only direct a party to convey. — 1 Ind. Ch. 143. A bill calling upon a court to decide a question of title, which is neither a bill of peace, a bill quia timet, nor a bill to perpetuate evidenee, cannot be sustained. — 2 Leigh, 540. A court of equity has no power to perfect judgment at law. — 24 Me. 42.
    Equity cannot correct irregularities in a court of law. — 1 Freeman's Ch'y, 472; 8 Paige, 373; 9 Id. 386. If a court of chancery has no jurisdiction of the subject matter, its decree is invalid. — 4 Black, 249.
    The decree referred to in this case finds no facts. The decree must find facts upon which it is founded. When a decree declared a note to be void, without finding the facts to warrant decree, it is erroneous. — 1 Root, 207; 10 Yerg. 41; 1 Vern. Ch'y, 213; Id. 215.
    4. But we insist that this decree, so far as it affects the title to these lands, and the rights of the defendants, is void. The defendants were non-residents, had no notice, and never appeared in the case, and the decree has never been confirmed. To make a valid and binding decree, all the proceedings should have been regular, and the court had no power to grant a decree without full proof of regularity. We, therefore, insist that plaintiff’s title is absolute, and that he is entitled to judgment.

      D. C. Holbrook, for defendant.
    1. The plaintiff himself shows title through the redemption by John S. King of the Atwater attachment proceedings. If he claims through the sale on attachment, then he is compelled to admit that those proceedings were regular, and he then has to prove that John S. King adopted the necessary steps to enable him to redeem.
    The defendant in error of course is not bound, nor was his title defeated, by the mandamus proceédings against the plaintiff in the Supreme Court. That was an exparte proceeding as against every one except the plaintiff, and it was merely to make him give a deed.
    If the plaintiff claims that the attachment proceedings were void, and John S. King having redeemed, not purchased on a sale, his title also failed, and he may fall back on his original title. In this view he will have to show the attachment proceedings are void.
    In either case, the defendant claims title by virtue of the attachment proceedings, and claims that they cannot be attacked collaterally, as they must be in this suit.
    In this case the affidavit was filed and the writ was issued and served and notice given, but the affidavit oY the printer was not entitled, and it is very questionable that it was necessary to entitle it. — 1 Burr. Pr. 341.
    The defendant in error insists (even if there was no notice, as the proceedings were not sought to be reversed by writ of error) they cannot now be attacked collaterally.- — Drake on Attachment, “Notice” ; 10 Peters, 200; 15 Ohio, 435.
    What other defect in the proceedings of attachment there may be the defendant insists the statute of amendment will cover.
    2. If the attachment proceedings were void, the defendant has his decree duly granted, after due process of law had for that purpose, declaring the defendant had no title.
    The bill in the case alleged that the plaintiff “ sued and prosecuted out of the late C.ounty Court for the County of St. Clair, in said State, a certain writ of attachment pursuant to the statute.”
    It is, therefore, immaterial whether the attachment proceedings were valid, or not; the title passed to the defendant by the decree. — 13 Ohio, 505.
    3. If the attachment is sustained, the plaintiff cannot recover through the redemption, as there Avas no proof of a judgment or affidavit, as required by the statute. The payment of the money, alone, did not authorize the redemption.
    If the attachment was void, then the decree gave the title to the defendant, as the statements in the bill were taken as confessed, and a decree entered accordingly.
   Campbell J.

.Plaintiff brought ejectment for certain lands, to which defendant set up title under attachment proceedings against plaintiff, which proceeded to judgment and sale. On the last day allowed for redemption, a judgment creditor applied to the Register of St. Clair county to redeem under the statute, but, as that officer would not receive drafts, or anything but lawful money, he accompanied the creditor to Detroit, where he received the amount due the same day, and returned home the day after. Meantime the purchaser at the attachment sale, as soon as the redemption ran out, applied at the Register’s office to the deputy in charge, and, learning there was no money there, at once obtained the sheriff’s deed. The redeeming creditor then applied to the Supreme Court, and obtained a mandamus on the sheriff, to deed to him under the redemption. Subsequently, after the expiration of about four years, defendant Harrington, who had purchased the attachment title, filed a bill in chancery against plaintiff, and the redeeming creditor, setting up his attachment title, and alleging fraud in the redemption proceedings, and praying to have them set aside# and releases executed. The parties were published as absentees, under the statute, and a decree was obtained decreeing a release from the j udgment creditor, and declaring that plaintiff had no title. More than seven years elapsed after this decree, before this suit was brought.

The decree, having been taken by default against absent defendants, cannot be sustained unless the proceedings to give the court jurisdiction were regular. — Platt v. Stewart, 10 Mich. 260. It is claimed by plaintiff that the decree, although seven years old, is not final, without an order of confirmation. As that order is a matter of right and not of discretion (2 Comp. L. § 3546), and as the statute is positive that a defendant must appear within that period (§3545), we do not think the omission of the order material. If the decree was otherwise regular, it must stand as a settlement of such claims to relief concerning the land as came within the scope of the bill. The only irregularity alleged is, that the affidavit of publication of the order to appear was not entitled in the suit. The order itself was duly entitled; and the settled practice in this State has never, so far as we are aware, required proof of service endorsed upon such a document, and referring to it, to have a separate entitling. The object of entitling affidavits is to connect them with a suit, so that perjury will lie upon them. We think an affidavit referring to a paper properly entitled, to which it is appended, must be assumed to have adopted the title by the reference.

We, therefore, think the decree valid. And it becomes necessary to consider its extent. Upon a careful examination of the bill, we think it cannot be considered as making a case to quiet title. It is framed to avoid an alleged fraud, in attempting to establish an unauthorized redemption of the attachment title. Complainant sets up no other interest in the land, and makes out no case for establishing any other. The defendants in that cause, therefore, were apprized of no other claim, and had constructive notice of no other. The decree precludes them from relying further on the redemption proceedings, but it does not vest in the complainant any title which he did not claim by his bill. The attachment title, therefore, must stand upon its own merits.

The attachment proceedings are assailed, on the ground that the steps necessary to give the court jurisdiction were not complied with.

The writ issued July 31st, 1849, and was, bylaw, and in fact, made returnable August 'Zth. On the day after its date it was returned served on the land in question, and, without waiting for the return day, it was also at once returned not found as to the attachment debtor. At the third term after the return, a declaration was filed, and judgment entered upon it the same day, without any proof of publication. Some time after the judgment an affidavit of publication was made and filed, which declared that a notice annexed had been published for six successive weeks “preceding the said 23d day of September.” There was nothing in the affidavit or papers referring to, or identifying any month of September, and the notice itself was not dated.

Where there is no personal service, the publication of notice is necessary to enable the court to obtain jurisdiction; and no judgment is valid without it. It has always been required in special proceedings against parties not served or appearing, that the substituted service shall be strictly regular under the statutes. The publication stands in lieu of personal summons. —Thompson v. Thomas, 11 Mich. 274. And the statute makes proof of publication a prerequisite to the plaintiff’s declaring and proceeding to judgment. — 2 C. L. § 4761.

In this case the return was premature, as the sheriff could not know that the defendant in attachment might not be found by the return day.

The declaration and judgment were both made when there was no proof that he had been legally notified. And, even if the subsequent filing of proof could have cured the defect, no such proof was furnished of any notice or publication conforming to the statute, as there were, no dates showing when the notice was given.

The judgment in attachment was, therefore, a nullity, and no title passed under it. The plaintiff is, therefore, entitled to a reversal of the judgment below, and to the entry of judgment in his favor, with costs of both courts.

The other Justices concurred.


author: Christiancy J. Martin Ch. J.

text:
    Sarah J. Seeley v. James Price.

      Mental weaJcness> &c., when general allegations sufficient. General allegations of weakness of intellect in the grantor of a deed, sought to be set aside as obtained by fraud and undue influence, and also of his having indulged in the use of intoxicating liquors, to the extent of producing mental incapacity, and of the undue influence charged to have been employed, are sufficient, especially when the defendant has taken issue on the facts and gone to a hearing upon the evidence.
    In cases of this kind it is very difficult to set forth specially, or to describe all the particular facts, and the various means used for obtaining the deed, even when all the facts and means are known.
    A person whose senses are blunted, who is absent-minded, inattentive, and in general “childish,” and also under the influence of liquor; but whom the court could not pronounce incapable of doing an act, as to the effect of which he was fully and fairly informed, was held to have been the subject of fraud and undue' influence in the execution of a deed, prepared by and executed to his son, in whom he implicitly confided; the contents and effect of such deed not having been fully and fairly explained to him.

      Duty of persons in confidential relations. Those standing in a confidential relation to a person of feeble intellect are under a clear legal and moral duty, if not to call to his attention all the considerations and details which bear upon the propriety of the transaction, at least to avoid any effort to prevent such considerations from occurring to, or having their due weight upon his mind.

      Deed to person in confidential relation: Court must be satisfied of its fairness. Where one occupying a confidential relation to a person of weak intellect, and in whom he places confidence, takes a benefit under a deed prepared by himself, it is the duty of courts to refuse judicial sanction to such an instrument, until fully satisfied of the fairness of the transaction, and that the instrument is the intelligent act of the person executing it.

      Heard October 10th and 11th.

      Decided October 31st.
    Appeal from Cass Circuit, in Chancery.
    The facts are stated in the opinion.

      Muzzy & Knox, for complainant.
    1. Under the circumstances disclosed hy the evidence in this case, the rule of law is plain. The defendant takes the deed clouded with suspicion. He was managing the old man in his own behalf. — Redfield on Wills, 131, 132, 158, 159; 25 N. Y. 9, 92, 95; 14 Vesey, 273; 4 Barb. 398.
    2. There was a confidential relation between the parties, and a confidence actually reposed which throws the burden of proof on the defendant, and requires him to show the whole transaction. — 3 Cow. 537; 5 Barb. 533; 13 Ill. 242; 6 Vesey, 287; 3 Lead. Cas. in Eq. 143-5.
    3. It is said to require less mind to make a will than to make a contract, yet we hold, that had this been a will, we have shown a lack of testamentary capacity. — Redfield on Wills, 128, 130; 25 N. Y. 9 ; 12 Mich. 459, 490.
    The law scrutinizes contracts more closely than wills.—3 Lead. Cas. in Eq. 145.
    D. Blackman, for defendant.
    1. The first allegation is that John Price was unfit to do business, and almost imbecile. It is enough to say that courts .do not measure the capacity of parties. They are either compos or non compos mentis. — 4 Cow. 207; 24 Barb. 386.
    2. The allegation does not amount in law to a charge that John Price was non compos. — 12 Mich. 459. And of the Same opinion is the solicitor for the complainant, for he charges that the deed was obtained by acting' upon the weakness and imbecility of John Price, who was subject to be controlled and influenced.
    3. With respect to the last allegation, that defendant staid with John Price, furnished liquor and drank with him, &e. This charge is entirely disproved by the proofs. There are some two or three witnesses who say he was drunk when he signed. The following cases have a bearing on this point.— 3 Black, 51; 7 Dana, 452; 10 Yerg. 121; 24 Texas, 426 ; 7 Clark, Ia. 60; Redfield on Wills, 94, 126; 22 Wend. 526; 24 Barb. 584; 9 Conn. 102.
   Christiancy J.

Complainant and defendant were the only children and heirs of John Price, and both resided in the State of Iowa. The defendant was a man of considerable property, and the husband of complainant a farmer in comfortable circumstances. John Price, the father, resided in Penn Township, Cass County, Michigan, where ho owned a farm worth about six thousand dollars, which constituted substantially all his property. His first wife having been dead for some years, he married a second wife in April, 1860; he being then about seventy-four years old, and his wife some ten or twelve years younger. Both complainant and defendant seem to have been opposed to the marriage.

The old gentleman lived in a poor, not very comfortable house, and in the most economical manner, dressing very poorly, depending mainly upon renting his farm or letting it on shares, keeping little, if any stock. His wife seems to have had more regard for comfort and for dressing and appearing respectably, but, though intrusted by him to make most of the purchases, and to do the trading, which was confined to household necessaries, she does not appear' from the evidence to have been by any means extravagant.

He had sometimes found a little fault with the amount of her purchases, but this seems rather to have sprung from a nervous apprehension of coming to want, than to any real cause, and no serious difficulty seems to have arisen between them, on this or any other account; and they appear to have lived as peaceably and to have been as much attached to each other as is usual with people of their age thus connected. He had been out to Iowa soon after the death of his first wife, and remained a year and a half, staying part of the time with his son, and part of the time with complainant and her husband, and had made them two or three visits after that time.

In December, 1862, the defendant, having been written to by his friend, George Townsend, to come and see his father and assist in arranging his business, came accordingly; and on the 30th day of December a deed was executed by the father to the defendant, conveying to him the farm. This deed purports to have been made for the consideration of one thousand dollars, but it is not pretended that any such pecuniary consideration was actually paid. The bill is filed to set aside this deed, on the ground of the incapacity of the grantor, and fraud and undue influence of the grantee, in obtaining it.

The bill alleges that the grantor had been for some time in the habit of drinking spirituous liquors to an injurious extent; that he was for several months, prior to the execution of the deed, afflicted with dropsy, “nearly imbecile,” subject to be controlled and influenced by any person who could obtain his confidence, and incapable of doing business; that defendant furnished him with spirituous liquors, drank with him, and prevailed on him to deed and convey the land; that he paid nothing for it, and procured the deed by fraud, and prays that it may be set aside.

An objection is made, that the bill does not state a suffiqient ground for the relief asked. The defendant having taken issue on the facts and gone to a hearing upon the evidence, we are not disposed to look upon this objection with the same critical nicety, as if taken by demurrer. In cases of this kind, where the validity of a deed is brought in question, on the ground of mental weakness, combined with fraud and undue influence, it is very difficult to set forth specially, or to describe all the particular facts, and the various means used for obtaining the deed, even when all the facts and means are known. A somewhat general form of pleading must be allowed; and the objection being made in this stage of the case, we-are disposed to look upon the general allegations of the bill as sufficient to admit any evidence tending to shoAv any degree of mental weakness or incapacity, and that the deed was procured by means of undue influence and fraud.

Upon the question of capacity there is, as usual in such cases, much conflict in the testimony, and considerable discrepancy as to the circumstances which led to and accompanied the execution of the deed. And without attempting here to set forth a full revioAV of the evidence, we shall, as a general rule, state only the facts Avhich Ave think fairly established by the evidence, so far as essential to the decision of the cause.

The evidence fails to establish insanity, idiocy, or that degree of mental imbecility Avhich Avould, of itself, render the grantor entirely incapable at the time of executing a valid deed. He had been, till a feAv years before, a man of strong-mind ; but he had been failing for a feAv years, and for some months had failed rapidly both in body and mind. He Avas afflicted Avith dropsy and a disease of the lungs (of AAchich he died a few Aveeks after). His feet Avere sometimes much SAVollen; he was subject to spells of violent coughing and choking; barely able at the time of this transaction, a part of the time, to Avalk or totter about; not confined to his bed, but compelled most of the time, and especially on the day of the execution of the deed, to recline upon a lounge.

His senses Avere blunted ; he Ayas hard of hearing; his mind enfeebled by age and disease to an extent proportioned at least to his physical decay. He was absent-minded, somewhat listless and inattentive; his memory uncertain, fitful and capricious — in one word (to use the language of most of the witnesses) he had become “ childish.” He had not generally been an intemperate man in the use of intoxicating liquor, but for a little time previous to this had resorted somewhat to its use, probably to relieve his sufferings and to keep up his failing strength; and on some recent occasions had taken too much. On the day when the deed was executed there is very strong reason for believing he was under its influence, to an extent which rendered his mind somewhat less clear, and his judgment less reliable than it otherwise would have been. But we are not satisfied that he had been furnished Avith the liquor or induced to drink by the defendant, or through his procurement.

Though we think he Avas capable at the time of understanding the nature of a business transaction, like that in question here, when properly explained to him, and the necessary effort made to impress it upon his mind, yet he Avas liable to fail in a fair appreciation of all its bearings, and to overlook many considerations which would properly influence men of a sounder judgment. He Avas, therefore, in our opinion, peculiarly liable to be imposed upon by those in whom he confided. This condition imposed upon all those Avho should deal with him the clear moral duty — if not to call to his attention all the considerations and details Avhich Avould naturally operate upon the mind of a prudent man in deciding upon the piopriety of the transaction — at least of avoiding any effort to prevent such considerations from occurring to, or having their due weight upon Ms mind.

But, Avhatever may be the nature or extent of this duty on the part of others, we think it a clear legal duty resting upon one standing in a confidential relation to a person in this condition, and taking a benefit under a deed prepared by himself, and executed in reliance upon liis fidelity. And the duty of courts is equally clear to refuse judicial sanction to such an instrument, until fully satisfied of the fairness of the transaction, and that the instrument is the intelligent act of the person executing- it.—Delafield v. Parish, 25 N. Y. 9-35 ; Breed v. Pratt, 18 Pick. 115 ; Barry v. Butlin, 1 Curteis Eccl. P. 417; Crispell v. Dubois, 4 Barb. 398; Newhouse v. Godwin, 17 Id. 236; Hughes v. Meredith, 24 Ga. 325.

The defendant stood in this confidential relation to his father. He had, as he claims, been sent for by the father to come and assist in arranging his affairs. He went with one George Townsend, his confidential friend, who seems to have acted to some extent as an agent both of the father and son. Taking their own version of the affair, they called upon the old gentleman at his house, and Townsend told him that James (the defendant) had come to fix up the business; he replied he was glad of it, and said he wanted to deed James the place; wanted him to pay the debts and take care of him and the old lady. In what manner this was to be done, whether the deed was to be conditioned for ihe support of the old gentleman and lady, or whether he was to give back a contract or security for this purpose, neither of them gives any satisfactory explanation, nor have they undertaken to show how the old gentleman understood the proposed arrangement in this respect.

This conversation took place, they say, out of doors, and they then went into the house and stated to the old lady what they had talked of, and defendant says he told her they (the old gentleman and herself) were to go and live with him; she said she was willing and wanted some money to go and visit her daughter or sister before she should go away, and he told her she should have it. The old lady says, as to this interview (and in this she is not contradicted), that defendant and Townsend said, they (meaning herself and husband) had had a hard time, and they had come to put them in easier circumstances; that James (the defendant) proposed . to take them (the . old people) home with him, and build a house for them, if they did not wish to live with him; and that she told them, if he would pay the debts and furnish her one hundred dollars to go and visit her children, and give her some corn then on the place, which the old man had given her, she would go; that defendant said he would do so, and the papers should be drawn stating what he agreed to do. This statement that the papers were to contain the’agreement is in some measure corroborated by the notary who was called upon to take the acknowledgment of the deed. It is also in proof, and not contradicted, that on the day of this interview Townsend and the defendant were in the stable, and defendant there said to Townsend, “ now is the time to get the farm before it has to be sold for the payment of debts;” said he wanted to get his father away from his wife; that while they were talking in the house about making the deed, some one asked James if his father was not going to let Seeley (complainant’s husband) have any thing, and defendant said not to mention it to his father, for his father did not think Seeley was capable of taking care of it. •

The defendant Avent home Avith Townsend that day and staid Avith him OA’er night. The next morning both came over again Avith Alexander, a notary.

The old gentleman, as all the Avitnesses agree, Avas at this time weaker and more umvell than usual; lying upon a lounge most of the time, having, as ToAvnsend and the defendant say, a bad spell, a choking spell, and, as some of the Avitnesses say, under the influence of liquor. Still he Avas able to get up, and did, it seems, Avalk out of doors that day for a little while, but came back exhausted and laid doAvn again upon the lounge.

When Alexander (who is admitted on all hands to be an honest and intelligent witness) came to the house he found that the deed had not been Avritten. Some question (he says) arose whether the deed Avith a condition in it would be legal. This talk Avas betAveen George ToAvnsend and the defendant, and I think the old lady participated. I do not recollect what the condition was as to the maintenance. The conclusion was they would not make the deed then, hut would go to Cass (meaning Cassopolis) and get a deed made.” He also says the question was about her maintenance and how it should be written in the deed.

The defendant and Townsend went to Cassopolis and returned at evening with a deed ready drawn, and the notary, who in the mean time had gone home, returns again to take the acknowledgment. John Price is still on the lounge: very little conversation is had. Nothing is said now in reference to the form of the deed they had brought for execution, nor whether it contained any provisions for maintenance.

The deed is not read, either to or by the old gentleman, or the old lady. Being requested to sign the deed, he gets up, or is helped up from the lounge (it is not certain which). He and the old lady execute and acknowledge the deed, and immediately after they are invited into another room, by defendant and Townsend, and treated with whiskey.

Some four or five days after he is taken over to George Townsend’s, away from his wife, where he remains a few days, and is then taken by defendant to Iowa, where he soon dies.

This deed turns out to be a simple ordinary warranty deed, without any condition whatever, and without a word on the subject of maintenance. No paper is executed by the defendant, either to the old gentleman or his wife, providing for the support or maintenance of either, or for the payment by him of anything whatever (except two notes presently to be mentioned). And though the old gentleman may have been willing to trust himself entirely in the hands of his son, and though an attempt is made by the defendant to show by his own testimony, and that of Townsend, that the reason for going to Cassopolis to get the deed made was, because Alexander did not know how to make the deed without a condition, though he could have made it with a condition for maintenance; we are entirely satisfied that the reason why Alexander did not draw the deed at the first interview was, ’because it was then understood that it was to be drawn with such condition, for which he felt himself incompetent. It is apparent, from the testimony, that the old gentleman was actuated by proper and kind feelings towards his wife; that though apparently indifferent as to himself, he was solicitous that her maintenance should be provided for in the arrangement ; and, from the evidence and the whole transaction, we think the fair inference is, that he supposed her maintenance was to be, and was provided for in the deed he executed, or if not in the deed, at least in some other way, as a part of the arrangement.

But the only provision made for the old lady was one hundred dollars, in two notes of the defendant, of fifty dollars each, payable, the one in one year, and the other in two years, without interest; a sum wholly inadequate for her support, 'and in no reasonable proportion to the old gentleman’s 'property; and if, as asserted by the defendant and Townsend, she had, after first assenting to go with her husband to live with defendant; afterwards concluded not to go, but to remain and live with her relations, this sum becomes still more grossly inadequate for her maintenance. But we are by no means satisfied that there was any such change from the first understanding, or that she ever assented to leave her husband and live separate from him. When she consented to go with her husband and live with defendant, she wanted, and defendant had agreed to furnish her, one hundred dollars to go and visit her relatives before she should leave; and we are satisfied that the one hundred dollars mentioned in defendant’s notes was understood by her, and probably by the husband (if he knew any thing of it), as given for this purpose. At the time of this transaction she was suffering with a broken shoulder, and compelled to take opium to relieve her pain; and we are disposed to believe her when she says, she “took the notes because all she wanted was rest,” and we think she, as well as her husband, supposed her maintenance was provided for in the deed.

It is evident, from all the testimony, that the old gentleman placed the most implicit confidence in the good faith of his son; in fact, he seems to have resigned himself passively into his hands. When called upon to execute the deed, he did not read it nor inquire into its contents. The defendant, so far from making any effort to explain the terms, or to call to his mind the various considerations which ought to influence him, when parting with all his property by a deed, which was but a substitute for a testamentary disposition, actually takes pains to prevent others from calling his attention to the fact that he had a daughter then absent, who, for aught that appears, had equally valid claims upon his bounty; he forbids her name to be mentioned in the hearing of the old man, and gives a most absurd reason for it; instead of endeavoring to make him understand the terms of the deed, which conveys to him all the father’s property, he resorts to a course which, to say the least, was calculated to mislead him into the belief, that it contained essential provisions which had purposely been left out.

We think the deed was obtained by undue influence and fraud, and should be set aside as void. The decree of the court below to this effect must be confirmed, with costs.

There is evidence that defendant paid some of the debts of his father. This will be a proper matter for settlement, in the Probate Court, in settling the estate.

Campbell and Cooley JJ. concurred.

Martin Ch. J.

I discover no fraud or undue influence, employed by Price to procure the deed from his father. I cannot, therefore, agree with my brethren in affirming the decree of the Circuit Court.


author: Moore, C. J.

text:
    BLOUNT v. MASON.
    Libel and Slander — Declaration—Colloquium—Inducement —Demurrer.
    A declaration for slander in alleging that plaintiff was a thief, and had stolen certain wood, examined, and held, sufficient against a demurrer on the ground that there was no colloquium or inducement showing that the words used were intended or understood to apply to plaintiff.
    Error to Hillsdale; Chester J.
    Submitted January 11, 1905.
    (Docket No. 68.)
    Decided May 12, 1905.
    Case by Ered Blount against Melvin Mason for slander. There was judgment for defendant on demurrer to the declaration, and plaintiff brings error.
    Reversed.

      B. F. Sheldon and C. A. Shepard, for appellant.

      F. A. Lyon, for appellee.
   Moore, C. J.

This is an action brought for slander. The declaration contains five counts. The first one, after the usual statement that plaintiff was a person of good name, etc., avers:

“Yet the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff, and to bring him into public scandal and disgrace, heretofore, to wit, on the 19th day of June, A. D. 1903, at the county aforesaid, in a certain discourse which he then and there had of and concerning the plaintiff in the presence and hearing of and to one William Salmon, a reputable and influential citizen of Frontier, in said county, falsely and maliciously said to the said William Salmon as follows, to wit, ‘ Uncle Billy, don’t you want to go and help catch a thief ?’ (meaning thereby that the plaintiff was a thief, and had stolen wood from the defendant, and still had it in possession, capable of detection and exposure, and that said Salmon was desired to go with defendant and help catch the plaintiff in possession of the wood which he had stolen from the defendant).”

The third count reads:

“And-afterwards, to wit, on the 19th day of June, A. D. 1903, at the said county of Hillsdale, in a certain discourse which the defendant then had of and concerning the plaintiff, and further contriving and intending to injure the plaintiff as aforesaid, the defendant then and there, in the presence and hearing and to one Jonathan Sherman, a reputable and influential citizen of Frontier, aforesaid, falsely and maliciously spoke and published of and concerning the plaintiff other false, scandalous, malicious, and defamatory words following; that is to say, ‘I (meaning defendant) saw Fred Blount (meaning plaintiff) take wood off from my pile, and he has it now on his wagon, and I (defendant) want you (Sherman) to go with me to the mill, and see it unloaded; ’ defendant meaning thereby to impress said Sherman that plaintiff had stolen defendant’s wood, and then had it on his wagon, and that defendant desired said Sherman to go with him to the mill and witness the exposure of the crime.”

The defendant demurred to each count in this declaration, and the demurrer was sustained. The demurrer as to these counts is as follows:

‘ ‘ In the first count of said declaration there is no colloquium, inducement, or statement of facts that in any wise show that the alleged slanderous words were meant to apply to the plaintiff, nor that they did apply to the plaintiff, nor that they were understood to apply to the pi aintiff. And there is no statement of facts showing that said words were spoken of concerning said plaintiff. * * *
: “ In the third count of the plaintiff’s declaration there is no colloquium, inducement, nor statement of facts showing that the words alleged to have been spoken were spoken of and concerning the plaintiff, nor that they imputed a crime to the plaintiff, nor in any way connecting said words nor the speaking thereof with the plaintiff.”

We think these counts stated causes of action under the following authorities: Vickers v. Stoneman, 73 Mich. 419; Ayres v. Toulmin, 74 Mich. 44; Hewitt v. Morley, 111 Mich. 187; Loranger v. Loranger, 115 Mich. 681; Derham v. Derham, 123 Mich. 451.

The demurrer is overruled, and the case is remanded, with the usual time given to defendant to plead.

Carpenter, McAlvay, Grant, and Blair, JJ., concurred.


author: Montgomery, J.

text:
    MINNIE v. MUELLER.
    Master and Servant — Injuries to Servant — Machinery—Defective Appliances — Assumption of Risk.
    After a fire, which had somewhat disarranged the machinery in defendant’s factory, a block was substituted for a box previously used as a step for the operator of a chicory grinder to reach the feed attachment above the rolls and belt attached to the machine, and plaintiff, with knowledge of such substitution, and of the dangerous character of the machine, was injured by the tipping of the block while he was standing on it to attach the connection to the feed, his arm being thrown onto the running belt, which forced it into the revolving gearing. Held, that, the danger being open and apparent, plaintiff assumed the risk.
    Error to St. Clair; Tappan, J.
    Submitted January 13, 1905.
    (Docket No. 54.)
    Decided May 12, 1905.
    Case by Graham E. Minnie, by his next friend, against Ernest B. Mueller for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Stevens, Graham & Stevens (William T.~ Mitchell, of counsel), for appellant.

      Moore & Brown (Phillips & Jenks, of counsel), for appellee.
   Montgomery, J.

The facts, as established by the evidence most favorable to the plaintiff, are stated with substantial accuracy in the charge of the court, a portion of which we employ, and add such further statements as are deemed essential:

Graham E. Minnie, the plaintiff in this case, brings this action to recover damages for personal injuries he received through the loss of an arm while engaged in the operation of a chicory grinder of the defendant, in the city of Port Huron, on the 5th day of November, 1901. Plaintiff alleges that it was the duty of the defendant to furnish him reasonably safe machinery and a reasonably safe place to operate it in; that the defendant committed a breach of these duties by setting him at work at operating a dangerous machine, and in failing to provide him with reasonably safe steps to reach up to the place where he was compelled to connect the feed, in close proximity to dangerous belting and gearing. It is shown that this machine or gearing is dangerous in its operation. It is also shown that plaintiff was just past 19 years of age, a boy of considerable intelligence and of apparent ability, who had worked in this factory nearly 2 years prior to the accident, about 1£ years in the packing department, coming in contact with this grinder from time to time, and theretofore for about 3 months he had charge of the operation of this machine that caused his injuries, commencing in May and ending in August prior to the accident. It is shown that he quit the management of this grinder in August because he and his father considered it dangerous to continue the work.

The proofs show that a fire had stopped the work at the factory on the Friday before the accident, which occurred on Tuesday morning following; that Mr. Van Slambrock had promised to give plaintiff employment in the packing department as soon as work was resumed, and that he requested him to take charge of the grinder for a.few days, in order to give Mr. Cadotte instructions as to its operation, and this accident occurred while he was so engaged. It is also shown that the fire had disarranged the work and apparatus more or less; that when plaintiff began work Monday morning he found that the elevator, which it is claimed afforded some protection from one side of the gearings, had been destroyed by the fire; and also it appears that the box that he had formerly used as a step to reach the feed attachment above the rolls and belt, which was a means of causing the accident, had been removed and in its place was an iron pulley about 15 inches in diameter, about 6 inches thick, across the upper flat side of which had been placed a 6x6 block about 24 inches long, to be used as a step in place of the box. The immediate cause of the accident was the tipping of this apparently loose block while plaintiff was standing on it to attach the connection to the feed above this, throwing his arm onto the running belt, which forced it into the rapidly revolving gearing.

Plaintiff testified that he had not, during the day Monday and the forenoon of Tuesday, observed that the box upon which he had formerly stood had been replaced by the pulley and block upon which he stood when the accident occurred. It was in evidence, and not disputed, that he had had frequent occasion on Monday to step upon this block. It is clear that the exposed gearing was open to view, and could not and did not escape the observation of plaintiff.

The only question which can be said to be doubtful is whether the circuit judge erred in holding that the plaintiff should be held to have assumed the risk incident to the tipping or sliding of the loose timber placed across this pulley. We are all agreed that the conclusion of the circuit judge was right. The rule of law is that an employé assumes the risk of such obvious defects in machinery or premises as are known to him, or as would have been discoverable by the exercise of the most ordinary care. Plaintiff knew that before the fire there was no permanent step at this place; that the box which had been in use was a makeshift. He also knew that the interior of the building had been disarranged by the fire which had occurred. A glance in the direction of where he was stepping would have shown the exact condition. There was nothing concealed, and nothing in previous conditions which gave an assurance of safety, which excused plaintiff from exercising ordinary care.

Plaintiff’s counsel cite the case of Sipes v. Michigan Starch Co., 131 Mich. 258, in support of the contention that the plaintiff had a right to assume that this step was safe. The point decided in that case was that, as the assumption of risk is the result of the contract of employment, and as it would not have been competent for the defendant to contract for the privilege of neglecting a statutory duty, the risk of injury arising from a defect which arose from such neglect of statutory duty was not assumed by the employé. No such question is in this, case. On the contrary, this is a case where the plaintiff, in the exercise of the most ordinary care, must have discovered the conditions. He must therefore be held to have assumed the risk. Batterson v. Railway Co., 53 Mich. 125; Soderstrom v. Lumber Co., 114 Mich. 83; Ragon v. Railway Co., 97 Mich. 265.

The judgment is affirmed.

Moore, O. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.