text:
    James W. Clark v. Edmund Hall.

      Evidence: Assignment of a Land Office certificate: Proved by an exemplified copy. The assignment of a Land Office certificate for the purchase of lands, when filed in the office of the Commissioner of the General Land Office in order to procure the issuing of a patent to the assignee, becomes a part of the records of the office, and may be proved by an exemplified copy, authenticated by the Commissioner. — Lacyv. Davis, U Mich., IkO ; Gilman v. Piopelle, 18 Mich,. Ih5.

    It is not necessary that the execution of such an assignment should be acknowledged to convey to the assignee the title of the assignor.

      Patents: Presumed to be issued on valid grounds: To purchaser of lands: To his assignee: Not to be questioned by a party not in privity with the title. A sovereignty making title to its own lands has a right to determine for itself upon the sufficiency of whatever goes to entitle the claimant to a conveyance.
    The principle that when a patent is issued by the government all necessary prerequisites are presumed to exist, is applicable to an assignment when the patent issues to an assignee.
    The principle that a patent issued by the government upon a Land Office certificate for the purchase of lands will relate back to the original entry, applies with equal force, and for the same reasons, to a case where the patentee is the assignee of the original purchaser.
    When a patent has been issued, a third person, not in privity with the title, will not be heard to allege that it issued improvidently.

      Tax titles: Evidence of regularity. The tax law of 1869 was passed to regulate the assessment, collection and return of taxes for the future; and there is nothing in § 164 of that act which relates back to, or makes good illegal sales previously made.

      Ejectment: Possession 'of the premises: Charge of the Court. Where in ejectment it was claimed that a small part of the premises had been enclosed and cultivated by a third person, not a party to the suit, there being no proof of actual occupation except as to the lands alleged to be enclosed; it is not error for the Court to charge the jury that the question for them is whether the person was in actual possession, and not whether he claimed to be.

      Heard October 20 and 28.

      Decided October 28.

    Error to Wayne Circuit.
    Ejectment: brought in tbe Circuit Court for tbe County of Wayne, by Edmund Hall, now defendant in error, against James W. Clark, now plaintiff in error.
    On the trial tbe plaintiff proved that on tbe 5th day of May, A. D. 1835, Erastus H. Spaulding entered tbe premises in question, at tbe land office in Detroit, and that tbe certificate of such entry was numbered 12,714, and also, that a patent from tbe United States was issued to Shubael Conant, as assignee of Spaulding, of said premises, dated April first, A. D. 1837.
    Tbe plaintiff also offered in evidence an exemplified copy of tbe assignment by said Spaulding to Shubael Oonant duly authenticated by the Commissioner of tbe United States Land Office at Washington.
    The introduction of tbe assignment was objected to as irrelevant, and that it conveyed no title to the lands therein described. Tbe Judge overruled tbe objection and admitted the evidence, to which decision the defendant excepted.
    The plaintiff further offered in evidence the record of a quit claim deed of said premises from Shubael Conant to Sylvanus Bussell, dated September 3rd, A. D., 1835; to the introduction of which evidence the defendant objected, upon the ground that at the date of said deed said Conant had no title to said premises. The Judge overruled the objection and admitted the evidence; to which decision the defendant excepted.
    And the plaintiff further gave in evidence the record of several deeds, and also the depositions of witnesses showing a conveyance of said premises from Sylvanus Bussell to the plaintiff.
    The defendant claimed title under a tax deed from the State of Michigan to Alpheus S. Williams, of the premises, under a sale thereof by the Auditor General on the second day of June, 1858, for the taxes of the year 1857, and deeds proving the conveyance thereof from said Williams •to the defendant; and offered testimony to prove that one George V. Clark was in the actual occupation of a small part of said premises, enclosed by a brush fence, and cultivated the same as a garden at the time of the commencement of this suit, and that he claimed to be in possession of the whole thereof, under a permission of the defendant that he might go on to said premises and work the same, and that he occasionally cut trees and wood upon other portions of said premises, he at that time residing upon a farm of his own adjoining these premises, and not on the premises in dispute.
    The plaintiff offered rebutting evidence to prove that the said deed from the- State of Michigan to Alpheus S. Williams, was invalid and conveyed no title to said premises, for the reason that the tax 'for which the. same was sold was excessive to a large amount, and beyond the amount authorized by law, and that it included a tax for rebuilding a bridge near tbe town of Ecorse, that was not only without authority of law, but contrary to law.
    The defendant objected to the introduction of such evidence as incompetent, and also upon the ground that, under the provisions of the statutes, such evidence was not admissible and would not tend to invalidate the said tax deed, or defeat the title conveyed by such deed.
    The Judge admitted the testimony; to which the defendant excepted.
    At the request of the plaintiff the Court charged the jury:
    “ If the jury find that Spaulding made an entry of the land in dispute in the Land Office of the United States, in due form of law, and subsequently assigned or conveyed his interest under the entry to Conant, who conveyed the land to Russell, and afterwards received the patent from the United States, offered in evidence by the plaintiff, then the patent relates back to the original entry, and enures to the benefit of Russell and his subsequent grantees.
    “ That the records from the United States Land Office, and the exemplified copy of assignment offered in evidence by the plaintiff is evidence of the regularity of the entry by Spaulding, aud of the assignment of his rights thereunder to Conant.
    “ That the conveyances and depositions offered in evidence in this suit show the plaintiff to hold the land as subsequent grantee of Russell.
    “That as such subsequent grantee of Russell, the plaintiff is entitled to recover in this action, unless the jury find some person other than defendant to have been in the actual possession of the land at the time the suit was commenced.”
    To each of which the defendant excepted.
    The plaintiff requested the Court further to charge the jury:

      “ That if the jury find that any portion of the premises, ■which may be distinctly defined, were in actual possession of any person other than the defendant at the time this suit was commenced, yet the plaintiff may recover all the premises except such portion as was so actually occupied.”
    The Judge charged as requested by the counsel for the plaintiff, with the following addition: “I do charge you, gentlemen, that is, if you find in this case that some other party than the one made defendant here, was in possession of the garden spot, and that garden spot can be described and defined, as it has been described by witnesses in this case, and he was not in Mice possession of the other part, then you can find for the other part, and for the defendant as far as the garden spot is concerned; but if you shall find that he was in possession of the whole, then of course they cannot recover in this suit, if you shall find that he actually occupied the whole;” to which the defendant excepted.
    The Court further charged the jury that the question of possession is a question of fact for the jury to decide.
    The defendant requested the Court to charge the jury as follows:
    “ That the deed from Spaulding to Conant conveyed to the latter no legal title, as at the date thereof the title was still in the Government;
    “That the deed from Conant to Russell conveyed on title for the same reason:
    “That the deed from Conant to Russell being a mere quit claim deed, the legal title subsequently acquired by Conant did not enure to the benefit of Russell;” but the Judge refused so to charge said jury; to which refusal defendant excepted.
    The defendant further requested the Court to charge the jury:
    “ That if the jury find that the premises in question were actually occupied by George Y, Clark at the time this suit was brought, in July, 1865, then the plaintiff cannot recover in this suit.” “The Judge charged as follows:
    “ I have already charged you that, gentlemen, if you find that at the time this suit was commenced, the witness, Clark actually occupied these premises, all of them, the plaintiff cannot recover;” to which opiniop of the said Circuit Judge the counsel for the said defendant did then and there, on behalf of the said defendant, except.
    The defendant further requested the court to charge the jury.
    “That if George V. Clark was actually cultivating a portion of these premises in 1865, as a garden, and claimed to be in the occupation of the whole eighty, there being no adverse or other possession, and was occasionally cutting-wood and timber thereon during the summer of 1S65, that was an occupation within the provision of our Statute;” but the Judge refused so to charge and said to the jury: “ That I cannot charge you, gentlemen, as it is stated there. The question for you is, whether he was in actual possession, not whether he claimed to be;” to which refusals and charges the defendant in each case excepted.
    The jury found a verdict for the plaintiff; and the judgnient entered thereon is brought into this Court by writ of error.

      G. I Walicer, for plaintiff in error.
    I. It is claimed by the plaintiff in error that no legal title to the premises had vested in Conant, at the time of his conveyance to Bussell, and there being no covenants of warranty in that conveyance, the legal title subsequently acquired by the patent did not enure to the benefit of Bussell or his grantees, and, therefore, that the plaintiff below had not made out a title to the premises in question.
    The assignment of July 7, 1835, cannot be held to be a conveyance, for the reason that it is not acknowledged as required by the act of 1827, then in force. — Laws of 1833, page 279. Nor can such assignment be proved by an exemplified copy from the land office. It is not a paper required by any rule of law to be filed or recorded in such office, and, if there, its existence must be proved, and then its contents, by a sworn copy or other proper secondary evidence.—2 Comp. Laws secs. 4,308, 4,311; 2 Edward’s Phillips’ Ev. 523, 568, notes.

    But there lies back of these a still more serious objection, viz: That neither Spaulding or Conant, when they conveyed the premises, had any legal title thereto, and there being no covenants of warranty, no title passed to Bussell.
    It is well settled that the holder of a duplicate or a certificate of entry of land before the issue of the patent has only an equitable title, and he cannot recover thereon at law save by the aid of some local statute or usage.—Fenn v. Holme, 21 How., 488; Hooper v. Scheimer, 23 How., 236; Carman v. Johnson, 20 Mo., 110. In some States without statute and in others by statute, the holder of the certificate of entry is held to have such an inchoate legal title that he may recover thereon in ejectment.—McConnell v. Wilcox, 1 Scam. 366; Waller v. Vanpuhl, 14 Mo. 87; 2 Comp. Laws, sec. 4,332.

    But this cannot be where the patent has issued, which is the highest and best evidence of title, or in the language of our statute, is “a better title.” But it is claimed that where one who purchases land and receives a certificate therefor, conveys the land and subsequently receives a patent therefor, that by virtue of the artificial doctrine of relation, the patent relates back to the time of the entry, and passes a good legal title to the grantee. There is unquestionably quite an array of authority sustaining this position.—2 Washb. on Real Prop. 226 and 229; Jackson v. McCall, 3 Cow. 75; Richardson v. Cleveland, 5 Porter, 251; Jones v. Sage, 5 Porter, 327; Hayward v. Ormsby, 11 Wis.

      3; Cavender v. Smith, 3 Greene, 348; Cavender v. Smith, 5 Iowa, 188; Ostrom v. Hammond, 8 McLean, 109; Landed v. Brant, 10 How. 371. Contra:—Masters v. Eastes, 3 Porter, 373.

    Yet it would seem that if a patent relates to the time of entry, that if one make an entry and dies, and the patent be issued in his name after death, that it should be held a good conveyance, and yet the law is clearly otherwise.—Wood v. Ferguson, 7 Ohio St. 288; Phillips v. Sherman, 86 Ala. 189; Schedda v. Sawyer, 4 McLean, 182; Gadoway v. Finlay, 12 Pet. 297.

    But lyhatever may be the general doctrine upon the subject, in this case no patent was ever issued to and in the name of the original purchaser, and we submit that this doctrine of relation whatever may be its merits, should not be applied to this ease.
    II. We claim upon the part of the plaintiff in error that the charge of the Court and the refusal to charge upon the subject of the occupation of Geo. Y. Clark were calculated to mislead the jury and were erroneous.
    The testimony, on the part of the plaintiff tended to show that the actual occupation by cultivation of Geo. V. Clark was only about one-tenth of an acre.
    The effect of these rulings and refusals must have been to have led the jury to the conviction that to make the actual occupation required by our statute, there must be an actual enclosure of the whole premises or the cultivation thereof.
    The evidence of the defendant tended to show that Geo. Y. Clark’s possession, whatever it was, was under the title of the defendant, who had a deed of the whole eighty. He was in the actual occupation of a portion, and claimed to be in possession of the whole, and was exercising acts of control over the whole. We submit that in such a case that he is deemed to be in the actual occupation of the whole, (there being no adverse possession), that it is such an occupation as would be an adverse possession of tbe whole.—Jackson v. Vermillion, 6 Cow. 677; Ellicott v. Pearl, 1 McLean, 214; Ellicott v. Pearl, 10 Peters, 413, 442; Hale v. Ritterhouse, 25 Penn. 496; Jackson v. Elston, 12 Johns. 452, 454.

    III. The third question is as to the construction and validity of sec. 164 of the tax law of 1869.
    That section provides that “in all suits and controversies involving the title to land claimed and held by virtue of a deed executed by the Auditor General of this State for non-payment of taxes thereon, the person claiming adverse title to such deed shall bé required to,prove, in order to defeat the title conveyed by such deed, either—
    1st. That the land taxed was not subject to taxation; or,
    2d. That the taxes were paid; or,
    3d. That they were not assessed; or,
    4th. That the land had been redeemed; or,
    5th. That a certificate had been given by the proper officer stating that no taxes were due, or the lands were not subject to redemption.—Session Laws of 1869, p. 878.

    The counsel for the defendant put in evidence a deed from the Auditor General, showing a sale of the lands in question for the taxes of 1857, and a conveyance thereof from the grantee to the defendant, in 1859.
    But the question raised is simply this: Whether any —even the smallest amount — of an illegal, excessive tax, can, under the law of 1869, be shown, in order to defeat the title conveyed by the Auditor General.
    It may be admitted, under our tax system, as settled by this Court, that any excess of tax, however trifling, and whether resulting from mere mistake, miscalculation or otherwise, makes the tax of which it forms a part void and a tax title thereunder invalid, unless such effect is avoided by the force of the statute in question.—Lacy v. Davis, 4 Mich. 157; Case v. Dean, 16 Mich. 32 and 33.

    In examining the question whether this statute has such effect, involves the examination of several distinct points, viz:

      First. Is this statute applicable to the case now before the court — a case not only where the defendant’s title originated before the act, but a case actually pending in court at the time of its passage. It determines what. evidence is required to defeat a title claimed and held under the deed of the Auditor General in all suits and controversies involving the title to land so claimed. This is a suit involving the title to land so claimed and is brought within the clear and'express provisions of the act. It is not even retrospective in its character, but establishes a rule for future trials.— Cooley on Const. Lim. 367 and 368.

    Thus, the famous act of Lord Tenterden, providing that a parol promise should not be sufficient evidence to take a case out of the operation of the statute of limitations was held applicable to suits pending at the time of its passage. Ansell v. Ansell, 3 C. and P., 563; Hamner v. Cattell, 5 Bing., 208; Fowler v. Chatterton, 6 Bing. 258; So a law similar to the present was held applicable to deeds previously obtained.—Freeman v. Thayer, 33 Maine, 82; See Satterly v. Matthewson, 2 Peters, 281; See also cases cited in Cooley’s Const. Law, 367, 369, 376, 379, 381; Bacon v. Calendar, 6 Mass. 309; Blenbury v. T. & M. Co., 17 S. & R. 64; Hepburn v. Coats, 7 Watts, 300.

    We submit, therefore, that the law in question is applicable to cases like the present, viz: cases pending when the law was enacted.

      F. H. Canfield, for defendant in error.
    I. The exemplified copy of assignment from Spaulding to Conant, of July 7, 1835, was properly admitted in evidence, and the charge of the Court below in relation to the effect of the same was properly given.
    The entry of the land by Spaulding was clearly proved by evidence which was not objected to. . The instrument offered to show his transfer to Oonant was objected to upon the ground “that it was irrelevant, and conveyed no title to the lands therein described.” The form of the evidence was unobjectionable.—Brightly's Digest, 267, 462, 463, 465; Lacy v. Davis, 4 Mich. 140; 2 Phillip's Ev. 301. a.— By virtue of his entry, Spaulding acquired a legal title to the land, which he could assign, or convey, to the same extent, and in the same manner as any other land which he then owned. We concede that until the patent is issued, the fee of the public lands is in the Government, and that a patent is necessary to vest a complete title in the purchaser. But his entry gives him a legal title, and not a mere equity within the true meaning of these terms. Thus lands held by entry, descend to the heirs, or may be devised, and do not go to the administrator.—2 Washburne on Real Prop., 527, 528; Adams v. Logan, 6 Monr., 175; Ostrom v, Hammond, 3 McLean, 106. b.—They are subject to sale on execution: Goodlet v. Smitherson, 5 Porter, 243; Wright v. Swan, 6 Porter, 86; Landes v. Brant, 10 How., 348. c.—Such lands are subject to taxation under State laws, and may be sold for delinquent taxes in the same manner as other lands.—21 Arle. 246; 3 McLean, 106; 4 Wallace, 212. d.—The issuing of the patent is held to be a mere ministerial act on the part of the officer. —Stoddard v. Chambers, 2 How., 284-It does not pass the title, but is evidence that the title has before passed. —5 Porter, 243; 1 Scam., 367. If issued against law, or obtained by fraud, it does not pass the legal title. —2 Washburne, 528; Wright v. Rutgus, 14 Mo., 585. e.—The assignability of the interest in the land has not only been always recognized by the Government in its dealings with purchasers, but is expressly provided for by the laws of Congress.—Brightly's Digest 496, § 222; p. 503, § 257; p. 499, § 228.

      % The instrument under consideration was properly executed, and was in form sufficient to operate both as an assignment of the certificate and a conveyance of the land itself.
    3. But we insist that this question is one which cannot be properly raised, by the parties in this cause. The patent is shown to have been issued to Conant as assignee of Spaulding, and it is plenary proof, in all collateral proceedings, both of the entry of the land by Spaulding, and of his assignment and transfer to Conant.—2 Washburns on Real Fstate, 526, 530; Morgan v. Cortning, 4 McLean, 366; Barry v. Gamble, 8 Mo., 88; Stringer v. Young, 3 Pet., 320; Boardman v. Reed, 6 Pet., 328; Minter v. Crommelin, 18 How., 87; Field v. Seabury, 19 How., 332; Jackson v. Lawton, 10 Johns., 24 Even without any express statute on the subject, the courts of several of the States have •held, that the certificate of entry vests in the purchaser or his ' assignee, a sufficient’title to maintain ejectment as against any person not having a better legal title.—Bullock v. Wilson, 2 Porter, 436; 2 Washburns, 526, 529, and cases there cited.

    The federal statutes and federal Couris recognize the holder of the certificate, or his assignee, as having the immediate legal right of possession, which is all that is necessary to be proved in this form of action.—1 Chitty’s Pleadings, 187 and cases there cited; 2 Comp. L. 1,230, § 4,554; Hylton’s Lessee v. Brown, 1 Wash. 204; Laws of 1834, p. 37, 2 Comp. L., § 4,332; Burner v. Manlove, 1 Scam. 156; McConnel v. Wilcox, 1 Scam. 344, 373; Lindsay v. Henderson, 27 Miss. 502.

    The transfer of title to the defendant in error, from Bussell, being proved, he is entitled to recover as assignee of the holder of the certificate of entry within the meaning of the act of 1834.
    The Supreme Court of the United States, in 10 Howard and 4 Wallace, 27 Miss., already cited, recognize the purchaser of the land at a sheriff’s sale or tax sale, as the assignee of the holder of the certificate. If this view be correct, then for a stronger reason, should the grantee of the land under a voluntary deed, be considered as such assignee.
    II — The Court properly instructed the jury, that the issuing of the patent to Oonant, as the assignee of Spaulding, after he had conveyed to Russell, enures to the benefit of Russell and his subsequent grantees. This proposition is based upon the familiar doctrine of relation, which is, “that where there are divers acts concurrent to make a conveyance, estate or thing, the original act shall be preferred ; and to this the other acts shall have relation.”—Vin. Ab. Tit. Relation, 490; 5 Cruise on Real Estate pp. 510, 511; This principal may be illustrated by numerous cases.
    Thus a sheriff’s deed given under, but subsequent to a sale upon execution, relates back to, and in judgment of law, is executed at the time of sale.-Jackson v. Ramsay, 8 Cowen, 75;—Jackson v. Dickenson, 15 Johns. 309; Wilson v. Daval, 5 Bos. 619.

    So a master’s deed, under the foreclosure of a mortgage, although not executed until after the sale, relates back to the time of the sale.—McLaren v. Hartford Fire Ins. Co., 5 N. Y. 151, 155; Fuller v. Geesen, 4 Hill, 171; Fort v. Birch, 6 Barb. 60; Blackwell on Tax Titles, 384, 385.

    This doctrine applies to the purchase of public lands from the Government, the consummate legal title to which, can be obtained only by the performance of two concurrent acts, viz., the entry of the land and payment of the money by the purchaser, and the issuing of the patent. The former of which is th& substantial act and to it the other has relation—Landes v. Brandt, 10 How. 348; Lessee of French v. Spencer, 21 How. 228; Witherspoon v. Duncan, 4 Wallace, 210; Stark v. Starr, 6 Wallace, 40; Hayward v. Ormsbee, 11 Wis. 3; Witherspoon v. Manlove, 21 Ark. 246; 2 Washburne, 527, 531; Papin v. Massey, 27 Mo. 445; Mit

      chell v. Handfield, 88 Mo. lfil; Maguire -v. Tyler, Ifi Mo. 406.

    III. The evidence offered in the Court below to show the invalidity of defendant’s tax deed was properly admitted.
    The evidence proved an “ illegal excess of taxation,” which, ■according to the decision of this and other courts, rendered the tax deed void. The objection to its introduction, was based upon the ground that section 164 of the tax law of 1869, rendered such evidence incompetent. To this we reply:
    1. The law of 1869 was intended to act prospectively and not retrospectively; and therefore does not apply to titles acquired previous to its enactment, a. — This appears from the title of the act, itself which is “ An act to provide for a uniform assessment of property, and for the collection and return of taxes thereon.” These words preclude the idea that the law was intended to have any retroactive effect. A different construction would, as we submit, render the act void as contravening Sec. 20, Article 4, of the Constitution. The Court will not construe this law to act retrospectively, unless it appears that such was the legislative intent, either from the language used, or by necessary implication.—Dooley’s Const. Lim, 362, 370; Harrison v. Metz, 17 Mich. 877; Sedgwick on Cons. Law, 188, 408; 15 Iowa 257; 49 Barb. 176; 52 Pa. 316; 15 Wis. 548.

    2. This section of the law of lb69, if it applies to the tax deed under which plaintiff in error claims title, is so far unconstitutional and void.—Hart v. Henderson, 17 Mich. 218; Conway v. Cable, 37 Ill. 82; Marsh v. Chestnut, 14 Ill. 222; Billings v. Ditten, 15 Ill. 218.

    IY. The record does not show such an occupation on the part of Gr. Y. Clark, as renders him a necessary party to this suit; nor does it disclose any error in the rulings of the Circuit Judge upon this point.—2 Comp. L. 1,280.

    No evidence was offered to prove that Gr. Y. Clark actu

      ally occupied any part of the land except about one-tentb of an acre, termed “the garden spot.” He resided upon a farm of his own adjoining the premises. We think it may be inferred from the record, what was conceded in the Court below, that the entire tract except this “ garden spot,” was uninclosed woodland. Whether he in fact occupied this garden spot or not, was a question for the jury to decide, and such was the charge of the Court. The verdict shows that the jury did not believe the testimony offered by plaintiff in error, and that in their opinion G-. V. Clark was not in actual occupation of any part of the premises at the time suit was .commenced. As to what constitutes an actual occupation within the meaning of the statute, see Chinique v. Bishop of Chicago, 41 Ill. 151; Winkler v. Meinster, 40 Ill. 351; Jackson v. Camp. 1 Cowen, 609;Jackson v. Shoemaker, 2 Johns. 20; Bates v. Norcross, 14 Pick. 224; Lane v. Gould, 10 Barb. 254; Wend. 597; Shaver v. McGraw, 12 Wend. 558; 31 Pa., 281; 37 Mo., 310; 10 Watts, 141; 8 Allen, 141; 17 Mich. 373; 32 Maine, 521.

   Cooley Ch. J.

This suit comes before us on writ of error sued out to reverse a judgment recovered by Hall in the Circuit Court for the County of Wayne m an action of ejectment.

It appears from the record that Erastus H. Spaulding purchased the lands in controversy of the Hnited States, on the fifth day of May, 1835, and received the usual certificate of entry therefor. On the seventh day of the following July, Spaulding, it is claimed, made a formal assignment of this certificate to Shubael Conant, and the Hnited States, on April 1, 1837, issued to Conant, as assignee of Spaulding, the usual patent for the lands. The patent was put in evidence, and no formal objection arises upon it; but the assignment by Spaulding to Conant is only proved by an exemplified copy from the office of the Commissioner of the General Land Office at Washington, and this is objected to as insufficient.

The particular objections to this evidence are two :

1. That the assignment was not acknowleged, and therefore was not sufficient to constitute a conveyance of an interest in lands under the statute in force when it was made.

2. That it is not a paper required by any rule of law to be filed in the office of the Commissioner of the General Land Office, and consequently is not a paper which can be proved by his certificate.

The second objection we do not regard as tenable, whether there is or is not a statute of the United States which would require the filing. The propriety of the assignment remaining of record in the office of the Commissioner after the patent has been issued to the assignee is very obvious, and there can be no question, we should suppose, that his practice to retain and file a paper of this importance, which is to evidence the authority of the government to make a particular grant, constitutes it a part of the records of the office as much as if he were expressly required by law to make of it this disposition, and if it constitutes a part of the public records of the office, the Commissioner’s certificate was sufficient to make it evidence.—Lacy v. Davis, 4 Mich. 140; Gilman v. Riopelle, 18 Mich. 145.

The first objection appears to us equally untenable. Spaulding, by virtue of his entry, acquired an equitable right to the land, which he might assign ; but the legal title still remained in the Government. He has made such an assignment as the Government has recognized by making a conveyance to his assignee, and we doubt the right of any person not claiming through or under Spaulding, to attack collaterally this assignment. A sovereignty, in making title to its own lands, has a right to determine for itself upon the sufficiency of whatever goes to entitle the claimant to a conveyance; and when the conveyance has been issued, a third person, not in privity with the title, is not to be heard to allege that the conveyance has issued improvidently. The cases of Stringer v. Young, 3 Pet., 320; Boardman v. Reed, 6 Pet., 328; Bagnell v. Broderick, 13 Pet., 436, and Minter v. Crommelin, 18 How., 87, are all authorities to the point that when a patent has been issued by the Government, all the necessary prerequisites are presumed to exist. This presumption, we think, is as applicable to an assignment, where the patent issues to an assignee, as to anything else which was essential to designate the person entitled to the conveyance, or the land to be conveyed.

In saying this, however, we do not mean to be understood as expressing an opinion that there was ever a time in this State, or in Michigan Territory, when the terms of the statutes were such, that a deed would not be good as between the parties, because, though it had all other proper formalities, it was lacking in an acknowledgment. It does not become necessary to pass upon that question in this case, and we have not, therefore, given it special attention.

A further objection arises upon the conveyance made of the land by Conant. It appears that he conveyed to one Russell before he received a patent. The conveyance was by quit claim, and defendant claims that as Conant had no legal title at the time, his deed conveyed none, and the title he subsequently acquired by the patent, did not enure to the benefit of Russell, inasmuch as there were no covenants in his deed to transfer the title by way of estoppel.

The general principle unquestionably is, that a Government patent, when issued, relates back to the original entry, and perfects and makes valid any attempted transfer by the patentee intermediate the entry and the patent. This principle is not disputed, but it is denied that it can apply to a case where the patent issues not to the original purchaser, but to his assignee. The reasons which should preclude the application of the doctrine of relation to the case did not strike us with force on the argument, nor have we been able on reflection to satisfy ourselves that they rest on any substantial basis. We have never heard it suggested before that a sheriff’s deed, or any other conveyance made to complete a judicial sale, would not if made to an assignee, relate back to the time of the sale, so far as necessary to protect intervening rights and equities. The same reasons, for the applicability of the doctrine, exist in this case as in any other, and no reason, either substantial or technical, appears to us to preclude it.

Assuming that we are*correct in this, we understand by the record that Hall showed a complete chain of title from the Government to himself, and was prima facie entitled to recover unless the defendant established some affirmative defense. A tax deed was put in evidence in the case, but we have not been required to examine it, since it was conceeded not to be supportable, unless under section 164 of the tax law of 1869. The tax sale was made in 1859. The question was presented on the argument whether the section in question related back to, and made good, illegal sales previously made. It is sufficient for us to say on that point, that we do not discover in that section the least evidence that such was the intention of the Legislature. The tax law of 1869 was passed to regulate the assessment, collection and return of taxes for the future, and the title as well as the body of the act aptly indicates that purpose. The further questions presented in this connection on the argument will not, therefore, require attention in this case.

The only other question which the record presents, regards an alleged possession of the premises by one George Y. Clark who was not made a party defendant. The premises do not appear to have been occupied, unless by this George V. Clark, and James W. Clark was sued under the statute as claiming title only. The Statute provides, Comp. Laws § 4,557:

Sec. 4. If the premises for which the action is brought, are actually occupied by any person, such actual occupant shall be named a defendant in the declaration; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein at the commencement of the suit; and all persons claiming any title to the premises adverse to that claimed by the plaintiff, may in all cases be made defendants in such action.”

The defendant on the trial gave evidence tending to prove that George Y. Clark was in the actual occupation of a small part of the premises, enclosed by a brush fence, and cultivated the same as a garden at the time of the commencement of the suit, and that he claimed to be in possession of the whole thereof under a permission of the defendant that he might go on and work the same, and that he occasionally cut wood and trees on other portions of the premises, he at the same time residing on a farm adjoining.

Upon this evidence the Circuit Judge instructed the jury that if -they should find that any portion of the premises, which might be distinctly defined, was in the actual possession of any other person than the defendant at the time the suit was commenced, the plaintiff might neverthelessj recover all the premises except such portion. He further charged in the following language : “ I do charge you, gentlemen, that if you find in this case that some other party than the one made defendant was in possession of the garden spot, and that garden spot can be defined and described, as it has been described by witnesses in this case, and he was not in like possession of the other part, then you can find for the other part, and for the defendant as far as the garden spot is concerned; but if you shall find he was in possession of the whole, then of course they cannot recover in this suit, if you shall find that he actually occupied the whole.” This charge was objected to by defendant.

The defendant requested the Court to charge the jury that if the premises in question were actually occupied by George Y. Clark at the time the suit was brought, the plaintiff could not recover. This charge was given, with such modification only as the addition of the word “all” before “the premises” would make; and a further request to charge that if George Y. Clark was actually cultivating a portion of the premises, and claimed to be in possession of the whole, then there being no adverse or other possession, and he occasionally cutting wood thereon, that that was an occupation within the provisions of the statute— was refused; the Court telling the jury that the question was whether he was in actual possession and not whether he claimed to be.

The jury appear to have found that George Y. Clark was not, in fact,- in the actual possession of any portion of the premises.

The defendant (below) finds fault with the charge respecting possession, that it was calculated to mislead the jury, and to bring them to the conviction that to make the actual occupation required by our statute there must be an actual enclosure of the whole premises, or the cultivation thereof — -in other words, the like occupation which Clark claimed to have of the garden spot. We do not discover this tendency in the charge, and we think to draw any such inference from it requires a more narrow and critical construction than any jury were likely to give it.

Besides, there was no evidence in the case which, independent of the small spot said to be cultivated as a garden, and which was only a very small fraction of the whole, tended in the least to show an actual occupation of the premises by George Y. Clark. That person might perhaps have been made a party defendant under the liberal provisions of our statute; but the mere fact that he claimed to be in possession of the whole, and occasionally cut trees and wood thereon, while living upon other lands— which, except as to the garden spot was the whole extent of what he claimed, his evidence tended to show, — did not establish actual occupancy, or authorize the jury to find it. However significant those facts might have been in connection with an actual possession of a part of the land under a claim of title to the whole, if the jury had found such actual possession' to exist, they are, when standing alone, mere isolated acts of trespass, and nothing more. As the case is presented by this record, the charge of the Circuit Judge, even if not strictly accurate, could not possibly have prejudiced the defendant. But we are not by any means certain that he gave the jury a rule regarding actual occupancy which was any different from that which the statute warrants.

We think there is no error in the record, and the judgment should be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    The City of Detroit v. Alexander H. Redfield.

      Controlled' of the Citdj of Detd'oit: Official duties: How pd'escd'ibed : Compensation for services not included within his official duties. The duties of the Controller of the City of Detroit are prescribed by the charter. In addition to those particularly specified, the Common Council may require him to perform others subject to the provisions of the charter. But this will not authorize the Council to prescribe duties whieh do not come within the scope, or are in no way subject to the provisions of the charter, —such as are of an entirely different nature from those required by the charter.
    The Controller having been appointed the agent of the City to receive certain bounty bonds, and apply them in the manner prescribed by the special act authorizing their issue, is entitled to the same compensation as any other man designated by the Council would have. The services being performed at the request of the City, the law implies a promise to pay what they are reasonably worth.

      Heard October 23.

      Decided October 28.

      Error to "Wayne Circuit.
    Redfield, the plaintiff below, brought an action of assumpsit against the City of Detroit, for services rendered as the agent of the City, in receiving certain bounty bonds from the Treasurer of Wayne County, issued under the act of February 4, 1865, entitled “An act to provide for the payment of bounties to volunteers in the military and naval service of the United States, ” {Laws of 1865 p. 29.) and for performing the duties required by the act. The defense was, — that being Controller of the City, he was entitled to no further compensation than his salary as such officer. From the bill of exceptions settled on the trial it appears that:
    It was admitted that the plaintiff was Controller of- the city of Detroit, from March 30th, 1864, to January 1st, 1868.
    The plaintiff introduced evidence, showing that the plaintiff, in pursuance of resolutions of the Common Council of the city of Detroit, directing and authorizing the Controller, as agent of the city of Detroit, so to do, had prepared, signed, safely kept and accounted for the bonds of the county of Wayne, delivered to the defendant, called soldiers bounty bonds, issued under act 27 of the session laws of the State of Michigan of 1865, to the amount of one hundred and fifty-nine thousand dollars.
    Also, that in pursuance of like resolutions of the Common Council, plaintiff had negotiated $70,000 of such bonds for cash, and accounted for the proceeds/
    Also, that in pursuance .of like resolutions of said Common Council, plaintiff had received, safely kept, and paid out for the defendant in bounties, to volunteers in the military and naval service of the United States $59,260 of the money so received for such bonds, and accounted for the same.
    Also, that the plaintiff in pursuance of like resolutions of tbe Common Council, had safely kept and paid out as bounties to volunteers in said service, $89,000 of said county bonds, issued as above.
    Also, that the plaintiff in pursuance of resolutions of said Common Council, directing and requiring the Controller as agent of the city of Detroit, so to do, and under the provisions and requirements of said act 27 of the Legislature of 1865, gave bonds in the sum of $40,000 as such agent, and independent of his bond as Controller, with good security, as required by said act, and received from the Treasurer of Wayne county the sum of $20,000 in bonds of said county, and safely kept and paid out the same to volunteers as aforesaid, and accounted for the same.
    The plaintiff also showed that the services in relation to these bounties were not merely of a ministerial character, but that the plaintiff was required to determine upon proper papers, who were entitled to bounties, and to exercise his judgment and discretion in the matter in hundreds of cases, thus assuming and exercising extraordinary responsibilities for himself and his sureties.
    The plaintiff also proved that the regular office hours of the Controller, as fixed by the Common Council of Detroit, were from 9 A. h. to 12 m., and from 2 to 4 p. h., and that to perform the extra services imposed by said act of the Legislature and resolutions of the Common Council aforesaid, a large amount of extra labor, and at least from four, to seven hours a day, was imposed, which could not be performed in office hours as above prescribed, in the performance of which labor the health of the plaintiff was broken down and ruined.
    Thereupon the counsel for the defendant requested the Court to charge the jury, “That the Controller being an officer, paid an annual salary, he cannot receive extra pay for any services performed by him as Controller, prescribed by the Common Council, relating to the debts and finances of the city.”

      In reference to which, request, the Court charged the jury as follows: “That is true, gentlemen, that he cannot receive compensation for duties performed as Controller, but the question in this case is, whether these duties were outside of that. Whether these duties performed by the plaintiff in selling these bonds, receiving the money and paying it out, and receiving the bonds from the county, whether that is outside of the official duties required or that can be required by the Common Council of the Controller, and for the purposes of this suit, I charge you that they are outside of those duties.”
    To which charge the defendant by its counsel excepted, and after the charge aforesaid, the jury returned a verdict in favor of the plaintiff for $800 damages.”

      J. P. Whittemore, for plaintiff in error.
    I. There are only two modes known to the charter, by or through which the city can become liable to pay for work or services in excess of the sum of $200 ; one is to pay the salaries of city officers ; the other, by advertising and letting to the lowest bidder.—City Charter of 1857, Chap. 8, §§ 12, 17, 18, 19; Chap. 5, § 108. Sub. 1.

    II. No assumpsit can be implied to pay an officer of the city any sum beyond his salary, for any service imposed upon such officer.—See Charter, Chap. 4, § 8-20; Chap. 5 § 22 sub. 1; Baker v. City of Utica, 19 N. Y. 326; 49 Penn. State, 118; Wendell v. City of Brooklyn, 29 Barb. 204; Charter, Sec. 103. Sub. 1.

    III. No service was imposed upon Redfield, the individual. The service and duty was imposed upon the Controller, the officer of the city, to act as agent of the city under the law. The charge of the Circuit Judge was that Redfield, the individual, was entitled to recover for this service, beyond his salary as an officer of the city; and that the Council could not impose this duty upon him as Controller. Hence, that the law implied an assumpsit to pay beyond the salary. This is clearly erroneous as before shown.

      L. Bishop, for defendant in error'cites :

      Smith Com., 491—93; Atty. Gen. v. State Bank, Harr. Ch. 315; Sibley v. Smith, 2 Mich. 486; Mather v. Tichnor, 13 Mich., 44.

   Christiancy J.

The facts of this case sufficiently appear in the bill of exceptions. And the first question for our determination is, whether the services performed by the plaintiff came within his official duties as Controller of the city, or were performed by him in that capacity. If properly a part of his official duties as Controller, either when he took the office or afterward imposed, his salary was the only compensation to which he can look, however inadequate.—People v. Supervisors, 1 Hill, 362; Andrews v. United States, 2 Story’s C. C. R. 202; Bussier v. Pray, 7 S. & R., 447; Evans v. City of Trenton, 4 Zab. (H. J.), 764.

It is admitted these services did not come within the duties of his office as prescribed by the charter, or by any ordinance or resolution of the Council in force prior to the resolution authorizing him as agent of the city to perform these services. If therefore, when performed, they came within Ms official duties as Controller, they must have been imposed as such either by the act of February 4, 1865, under which the bonds in question were issued, or by the resolution referred to, or by the combined effect of the two.

It is very clear the act of the Legislature had no such effect, and that it imposed no duty upon the Controller, as such. Had the City Treasurer received these bonds and performed the services there would have been more plausible ground for holding him bound to perform the services as a part of Ms official duties. The Controller is not mentioned in the act. But section seven (Laws of 1865, p. 82) provides that when these county bonds were required by the city, they should be “ delivered upon the order of the Recorder or City Clerk, to the City Treasurer or to such other person or persons as the Common Council shall designate.” “And such treasurer or other designated person, receiving said bonds shall use and apply the same under the direction of the Common Council to the payment of such local bounties provided for by this act as said Common Council shall direct.”

By section eight “such treasurer or other designated person,” is required to enter into a bond to the county, to be filed with the County Treasurer in the penalty of double the amount of the bonds delivered, conditioned that he will apply them as above required, and that he will faithfully discharge all the duties imposed upon him by this act.

By the ninth section “ such City Treasurer or other person receiving such bonds, is required on the first Monday of October in each year, and at such other times as the County Treasurer shall direct, to make and file with the ■County Treasurer a report in writing and on oath, showing the name, residence and place of enrollment, (if enrolled ), and time and place of enlistment of each volunteer to whom shall be paid a local bounty and the amount of bounties paid to such volunteer, and the ward for whose benefit such bounty was paid, and the amount of surplus if any, of the bonds, or proceeds thereof, remaining in his hands undisposed of, which surplus shall be delivered to said'' County Treasurer on demand.

By section ten such bonds are not to be disposed of “by the City Treasurer or other person designated to receive them as aforesaid for less than their par value.”

These are- all the provisions of the act bearing upon the case, and it is evident: 1st — that under its provisions, without a special designation by the Council, the bonds could not have been delivered to, or the duties in respect to them imposed upon any officer of the city except the Treasurer.

2d. That the appointment of the plaintiff was made by virtue of the clause in section seven, which allows the Council to “designate some other person or persons” for that purpose.

And, 3d — that any other person or persons who might have been designated by the Council would have possessed all the same powers and required to perform all the same duties as the plaintiff was from the like designation.

Nothing therefore could be further from the intention of the act, than to impose the performance of these services upon the Controller, as a part of his official duties.

Did the resolution of the Council “ directing and authorizing the Controller as agent of the city of Detroit,” to perform these services, impose them upon the Controller as a part of the duties of his office? We think not, for several reasons.

1st. The only authority to appoint him for this purpose, was derived from the act, which did not impose, nor authorize the Council to impose them upon the Controller as part of the duties of that office.

2d. The resolution appointing him expressly designated him as “the agent of the city” for this purpose, and the use of the word “Controller” in such a connection, would naturally be taken as a mere designation of the person intended — a mere substitute for the name of the individual. But 3d. The duties required by the act to be performed by this “agent of the city” were wholly foreign to his duties as Controller, as defined by the charter.

Sections seven and eight of chapter four of the charter enumerate and define with great particularity, what shall be the official duties of the Controller, none of which are of the kind or approximate to the nature of the duties to be performed by this agent under the act of 1865. Section eight of chapter four of the charter, it is true, after enumerating these duties at length has this general provision — “the Controller shall also perform such other duties as are prescribed by this act, or may be prescribed by the Common Council, subject to the provision, of this act.”

Under this power the Council could not prescribe any duties to the Controller which do not come within the scope, and are in no way subject to the provisions, of the charter, and which are of an entirely different nature from those required by the charter, such as the giving of the bond required and the making of the report here. But the truth is that the Council imposed no duties upon any one by this resolution. The act of the Legislature imposed the duties and left to the Council the power only to designate the person to whom those duties should attach.

But whether the Council had or had not the power to impose any such duties we need not inquire, since they do not appear to have attempted to impose any duties of any kind, either personal or official; but have only, by the special power given them by the act, appointed the man upon whom the act itself imposes the duties, without any reference to his duties as Controller.

The plaintiff therefore is entitled to the same compensation as any other man designated by the Council would have been, and the same as if he never held the office of Controller. The services were performed for the city at the request of the Council, and the law implies a promise to pay what they were reasonably worth.—Evans v. City of Trenton 4 Zab. 764; Converse v. United States, 21 Row. 463.

The position to which the plaintiff was appointed was one of great responsibility, requiring much skill and labor, and, so far as the record shows, he appears to have performed his duties with fidelity.

It is unreasonable to suppose the Legislature intended that such services and to such an amount should be performed without compensation; and the act of the Legislature requiring them, being passed long after the charter and upon a subject not within the contemplation of any of its provisions, must be considered as taking this claim out of any provisions of the charter, which might deprive the Council of the power to pay for services performed under, or provided for, by the provisions of the charter, if any exist, which might have such effect.

¥e are therefore of opinion the charge of the Circuit Judge was correct; and the judgment must be affirmed with costs.

The other Justices concurred.


author: Cooley Oh. J. Campbell J.

text:
    The People ex rel. John S. Nichols v. Friend Palmer, Quarter Master General.

      War "bounties to volunteers : Construction of act No. 28 of 186k. J. S. N. enlisted into the military service of tlie United States on the 9bh of February, 1864, and was credited to the town of Algansee. At the time of his enlistment it was not known to the military authorities that the quota of Algansee of previous calls had been filled, and they refused to allow the State bounty authorized by the act of February 5, 1864; (Laws of 186k, §3, p. 58) to which, only those who enlisted under the call of February 1st, and were reckoned as included in the additional 200,000 men, were entitled. (People y. Hammond, 13 Mich. 2k7). It now appears that the quota of Algansee of previous calls had been filled prior to the 5th day of February: Held, That he was entitled to the State bounty of $100 authorized by the act (No. 23) of February 5, 1864.

      Heard October 8 and 27.

      Decided October 28.

    Mandamus.
    On the 27th day of April, 1869, the relator moved in this Court that the respondent be ordered to show cause why a peremptory mandamus should not issue to compel him to pay a State bounty of $100 to the relator, and offered the following affidavit:
    “State of Michigan, County of "Wayne. On this twenty-third day of April, A. D. 1869, before me, a Notary Public, in and for the said County and State, personally came John S. Nichols, who being by me duly sworn, deposes and says : That he is twenty one years of age, and a resident of the city of Detroit in said county and state. That during the month of February, 1864, and previous thereto, he was an actual resident of the township of Algansee, County of Branch, in the said State of Michigan.
    “That on the 9th day of February, 1864, in consideration of a promise of a state bounty of one hundred dollars, he the said John S. Nichols, enlisted, and was regularly mustered into the military service of the United States, in Battery C., 1st Michigan Light Artillery, and was credited as appears by the records of the military authorities, on the quota of the State of Michigan on the last 200,000 of 500.000 call of February 1st., 1864, and was applied to the sub-district of Algansee, the township in which he actually resided at the time of his enlistment, on the quota of said township for the number of men required under said call, and that he was not at the time enrolled in any other township or ward in this State.
    “ That said promise of one hundred dollars, State bounty was a part of the contract and consideration of his enlistment, and was made by the recruiting officers of the'State, in pursuance and by virtue of Sections 8 and 9 of the state bounty law of February 5, 1864.
    “ That upon application to the Quartermaster-General of the State he was refused this bounty, for the reason that the Quartermaster-General believed, from the incomplete returns which he had at the time, that deponent was applied on the first 300,000 of said 500,000 call of February 1st, 1864, and that the quota of the State under the old 300.000 call of October 17th, 1863, was not full.
    “ And deponent further says, that he is informed and verily believes, that the said Quartermaster-General greatly erred in his calculation of the credits of the State; that at the time he had not complete returns of the enlistments and credits of the State prior to the 5th day of February, 1864; that the credits at large due the the State on the call of February 1st, 1864, appear from official documents to be 6,991; that the local or township enlistments previous to the 1st day of February, 1864 were 6,689, as officially published by Colonel Hill, the Assistant Provost Marshal General of Michigan; and the number of township enlistments from the 1st to the 4th of February, 1864, inclusive, is 334, as appears by the record of the Adjutant-General of Michigan ; and that the credits of veterans reenlisting in the field from this State, and applicable to that quota, previous to the 5th day of February, 18C4, as appears by the published reports of the Adjutant-General of Michigan, for 1864, are upward of 4,473; that the Quartermaster-General based his calculations upon the local or township enlistments alone, not having at that time any official information of the number or extent of the credits at large, or of the credits of veterans re-enlisting in the field; that the quota of the State under the old call of 300,000 was 11,298, and that on the 5th day of February, 1864, the enlistments and credits due this State on that call as consolidated with the call of February 1st, 1864, was far more than 11,298, as appears from the full and complete official returns of enlistments previous to that date, which were in fact credited to that call; and that this deponent was actually credited on the last 200,000 of the 500,000 call of February 1st, 1864, and is therefore entitled to the state bounty of one hundred dollars, under said state bounty law of February 5th, 1864; that the present Quartermaster-General of the State admits the foregoing facts, and the justice of the claim of deponent to said state bounty, but declines the responsibility of interfering with the ruling of his predecessor on this subject, although the said ruling is admitted to have been made on the partial and incomplete returns as aforesaid.”

      An alternative mandamus issued; and tbe respondent showed cause.
    The counsel for the relator and the respondent agreed upon the following facts :
    1. The call of February 1st, 1864, for 500,000 men was a call of 200,000 additional men, and a re-call of the previous call of October 17th, 1863, for 300,000 men.
    2. That tbe law of February 5th, 1864, as construed by the -Supreme Court, gave bounty to the 200,000 additional men only. 18 Mich.,

    3. That the priority of the date of enlistment governed the priority of credit, and the muster-in of the recruit only confirmed his enlistment and credit.
    4. That the quota of the State for the first 300,000 was 11,298.
    5. That if this quota for the State was full prior to the 5th day of February, 1864, all who enlisted subsequently and were applicable to said 500,000 call, were oredited to the last 200,000 of said call, and were entitled to said state bounty.
    6. That the credits applicable were, first, credits at large; second, local or township credits; third, credits of veterans re-enlisting in the field.
    7. That the official statement of the War Department of the credits at large applied to that call is 6,991.
    8. That Col. Hill’s published official report shows the township or local credits prior to Feburary 1st, 1864, applicable to that call to be 6,689; and that the number of township - enlistments from the 1st to the 4th day of February, 1864, inclusive, as appears from the records of the office of the Adjutant-General of Michigan, 334, making a total of township or local credits for this State on said call, prior to the 5th day of February, 1864, of 7,023.
    9. That the number of veteran credits re-enlisting prior to February 5th, 1864, and applicable to that call is 4,370, and upwards.

      10. That the whole quota of the State of Michigan under the above named call for 500,000, (as officially stated ) is 19,553.
    11. That the number of men required of the State after credits at large were deducted, or the quota of the State actually distributed to sub-districts, under said call (as officially stated), was 12,562.
    12. That the late Quartermaster-General Hammond, in refusing the state bounty to the relator, based his calculations upon the local or township enlistments alone, not having at the time official information of the number or extent of the credits at large or of the credits of veterans re-enlisting in the field.

      Robinson & Broohs, for relator.

      DwigM May, Attorney General for respondent.
   Cooley Oh. J.

In order to determine whether the township of Algansee had filled its quota under the call of October 17, 1863, at the time the relator enlisted and was credited to that township, we think' the authorities should have taken into account, and allowed the township its proportion, of the general credits which the State had already received upon that call at the hands of the general government, the benefits of which, as they could not be specifically applied to any localities, all localities were proportionally entitled to. And we think it was unimportant whether these credits had actually been reported to the state officers at that time or not. If they existed in fact, they reduced the quotas of the State and proportionally its several sub-districts to that extent.

Applying these credits as above indicated, ana applying the credits actually given to Algansee before the relator enlisted, it is made to appear in this case that its quota under the 300,000 call was then full, and he, consequently, must be regarded as credited under the 200,000 call, and is therefore entitled to the bounty claimed.

The writ will therefore issue as prayed.

Christiancy and Grates JJ. concurred.

Campbell J.

If there were any room under the statute to consider the relative equities of volunteers, there is more reason to lean in favor* of those who enlisted early, than of those who came later and upon larger inducements. But this law was construed in People v. Hammond, 13 Mich., 247, as applicable only to those enlisting and enrolled under the last calls for 200,000 men, in February 1864. In that case, I reserved my opinion upon the right of a Court to look into the findings and acts of the military authorities, because in any view of facts as then presented, the result of the case would not have been changed.

But I cannot think the Courts can in any manner consider whether a party enlisting has been rightly or wrongly credited. And the law never contemplated any delay in the settlement of these bounty questions.

The Quarter-Master General was required to pay the bounty to residents upon the certificate of the Provost Marshal on the affidavit of the party that the applicant was credited to the township or ward where he resided. It was necessarily implied that the credit must be on the call referred to. He was made a judge of the fact, and his payment would have been final.

By the quotas, as then made up, the township of Algansee, where relator lived, was in arrears at the date of his enlistment. If there was anything in existence which ought to have changed the quota of the State, it had not yet been definitely ascertained and allowed in reduction, and there was no certainty when it would be. Both the Governor’s proclamation and the orders issued by the military authorities declared the quotas to stand as previously published, adding two-thirds to each of allotments under the call for 300,000. And when relator was credited he belonged by the records on the first and not on the second call. I do not see how subsequent credits could change the position which he occupied when he became, if at all, entitled to demand a bounty. His place was fixed when he actually enlisted. The subsequent arrangements were all problematical, and until actually fixed, no one could tell with accuracy, how even the undisputed credits would be locally distributed. The law could not have contemplated that the rights of any one should be dependent on the result of these complicated calculations, some of which, at least, could not have been possibly guessed at then, if any of them could. And the review of the transactions of the executive department, relating to matters especially belonging to its control, is not only difficult to be conducted intelligently, but in my view, foreign to the functions of a court of law. I do not think we can review in this way the action of officers whose discretion should be respected. It does not appear that any reduction was actually made of these quotas, or distributed in fact, and without this being done so as to affect the enlistment, the ex post facto discoveries cannot change relators position. I do not differ with the computations of my brethren; but I do not recognise our right to act on them.


author: Cooley Ch. J.

text:
    Henry Stendell et al. v. William Noak.

      Practice in the Supreme Court. If no error appears in the record of a case brought into this Court by writ of error, the judgment of the Court below will be affirmed.

      Heard October 27.

      Decided October 28.

    Error to Wayne Circuit.
    William Noak brought his action before a Justice of the Peace for Wayne County against Henry Stendell, Louis Stendell and Mrs. Anna Stendell, and declared in an action of trespass on the case:
    “ For that whereas, heretofore, to wit; at the city of Detroit, on or about the 6th day of December, 1867, the said plaintiff was, before and at the time of committing the grievance, and still is, the owner of a certain dwelling house on a lot situated in said city of Detroit, on Lafayette street, in said city. Nevertheless the said defendants, intending wrongfully and unjustly to injure and aggrieve the plaintiff, willfully and with force and arms entered upon said premises and tore and sawed down a fence twenty feet in height and a portion of the kitchen belonging to the plaintiff, and utterly destroyed the same, and by reason thereof, and iu consequence of said injury so committed, the plaintiff has been deprived of the use of his said kitchen and the benefit of his said fence for a long space of time, to wit, two months; and therefore he files this declaration and claims damages one hundred dollars.”
    The defendants pleaded the general issue, and gave notice that said fence was built upon defendants premises and became a public and common nuisance.
    The plaintiff recovered a judgment of five dollars; which was carried by appeal to the Circuit Court for the County of Wayne where he recovered a judgment of thirty-five dollars. The defendants below now bring the case into this Court; and assign for error :

      “1. That said declaration is uncertain and insufficient, for the reason that it does not properly describe by metes and bounds, or otherwise, the lot or premises upon which the said supposed grievance was alleged to have been committed.

      “ 2. That the said deólaration is uncertain and insufficient, for the reason that it does not state the time when the said grievance was supposed to have been committed.
    “ 3. That said judgment was rendered as in an action of trespass, and therefore erroneous, for the reason that the said declaration only claims damages for being deprived of the use and benefit for the space of two months of the premises and appurtenances alleged to have been destroyed.”

      S. Lamed and F. A. Baker, for plaintiffs in error.

      B. T. Prentis, for defendant in error.
   Cooley Ch. J.

All the questions argued in this case are questions which could only be raised by bill of exceptions. As no such exceptions appear, the judgment is affirmed with costs.

The other Justices concurred.


text:
    The People ex rel. the Secretary of State v. the State Insurance Company.

      Mandamus: When awarded. When a statute imposes a specific duty, either in express terms or by a fair and reasonable implication ; and there is no other specific and adequate remedy, the writ of mandamus may be awarded to compel the performance of the duty.

      Corporations: Examination of Insurance Companies ; Legislative pow&)\ It is within the power of the Legislature to provide for an examination into the affairs of insurance companies, doing business in this State ; and this examination may be enforced by mandamus.
    An Insurance Company incorporated under the laws of this State, and allowed by act Ho. 136, of the laws of 1869, until the 31st day of January, 1870, to conform to the provisions of that act, may be required to submit to-tne examination authorized by that act, before that time.

      Constitutional law : Title of legislative acts. Provisions for the examination by proper State officers into the affairs of insurance companies, and prescribing penalties for false representations on such examination, even if made applicable to existing companies, are properly comprehended within the title of an act entitled “an act relative to the organization and powers of lire and marine insurance companies transacting business within this State'1 — within the meaning of § 20 of article TV of the Constitution. People v. Mahaney, 18 Mich.) IS5.

      Heard October 21.

      Decided October 28.

    Mandamus:
    Oliver L. Spaulding, Secretary of .State, makes application for a writ of mandamus, to compel the State Insurance Company to submit their affairs to an examination, as provided by §26 of the act relative to the organization and powers of-fire and marine insurance companies transacting business within the State, approved April 3, 1869. Laws of 1869 p. 280.

      Dwight May, Attorney General, for the relator.

      A. Pond, for defendants.
   Cooley Ch. J.

The present is an application on behalf of the Secretary of State to compel the defendants to submit to such an examination of their books and affairs as is contemplated by Section twenty-six of an act relative to the organization and powers of fires and marine insurance Companies transacting business within this State.” Laws of 1869 Vol. 1 p. 230. The defendants resist the application on the grounds:

1. That mandamus is not a proper remedy for such a case, but that the State, if they refuse to comply with any provision of their charter or with any statutory regulation, must proceed by quo warranto or by indictment.

2. That the application is premature, inasmuch as the defendants were in existence as a corporation under a prior law when the act above mentioned was passed, and by the thirty-fifth Section of that act were allowed until the first day of January, 1870, to conform to its provisions. They cannot therefore, it is argued, be compelled to do or submit to any thing under that act until the time thus allowed them has fully elapsed.

3. That although the Legislature, under its complete power to amend laws of incorporation, may legislate such corporations out of existence, unless they will comply with new provisions, yet it has no power to compel the defendants against their will to continue in existence under, or to accept the provisions of a new law, and if it had, the title of the act in question does not indicate that such was the intention.

To determine upon the validity of these objections, it is important to examine a little the purpose of the act of 1869, that we may be enabled to discover what it was precisely which the Legislature undertook to accomplish by it. The general purpose of the act may be stated to be, to regulate the business of fire and marine insurance within the. State, whether carried on by corporations existing in virtue of organizations under its laws, or by foreign corporations, associations or partnerships. To accomplish this general purpose it provides for the organization of corporations within the State, points out their powers and duties, and the powers and duties of their officers, and makes a great many regulations designed for the protection of policy holders, against the imprudent or dishonest action of officers or agents. While it leaves unimpaired the corporate entities previously created in the State for the transaction of this business, it limits a time within which they shall make their organization conform, to the new act; the design being that at the end of that time all corporations existing under the laws of the State for the purpose specified, shall possess uniformity m their leading features, and stand upon the same footing as regards powers, capacities, duties, obligations and liabilities, except so far as the act itself creates differences, dependent upon the differences in the kinds of business to be transacted by them; whether' fire, or marine, mutual or otherwise. It also, for the like purpose of protection to policy holders, establishes various regulations in regard to foreign insurance companies, associations or partnerships, a compliance with which is the condition upon which they are to be suffered to transact business within the State.

Among the most important provisions which the act makes towards the accomplishment of its general purpose, is that for the inspection of the books and affairs of any company doing business within the State, and incorporated under its laws. For this purpose Section twenty-six provides that the Secretary of State may appoint one or more persons not officers of any fire insurance company, doing business within this State to make the necessary examination; and the statute makes it the duty of the officers or agents of any such company to cause their books to be opened for the inspection of the person or persons so appointed, and otherwise to facilitate such examination so far as it may be in their power to do. Further provisions are then made for winding up the affairs of the company by legal proceedings if it shall prove of doubtful solvency; and for its entire dissolution.

Now, it is obvious, that to make the protection to the policy holders which was contemplated by the section here referred to efficacious, the Secretary of State must have some expeditious mode of enforcing compliance against unwilling officers, and that if be is left to the slow process of quo warranto or criminal prosecution, the whole purpose of this Section may be defeated. Insurance Companies and other financial institutions differ from most other corporations in the general interest the public have in knowing precisely what their pecuniary condition and responsibility is from day to day; and while the law has made’ ample provision for periodical reports, it has also wisely empowered the proper public officer to demand an examination at any time, without previous notice, and without affording the officers of the corporation an opportunity to prepare deceptive appearances. Such opportunity will be afforded in every case if the examination can be resisted, and the security which this section of the statute was designed to give, will be of little avail except so far as a refusal to submit to examination may subject a corporation to suspicion an'd thus put the public upon its guard.

We understand the general rule to be, that where a statute imposes a specific duty,' either in express terms or by fair and reasonable implication, and there is no other specific and adequate remedy, the writ of mandamus may be awarded to compel performance of the duty. And in such a case it is no sufficient objection that the corporation upon which the duty is imposed, is liable to indictment for neglect to perform it.—People v. Mayor etc. of New York, 10 Wend., 395; The King v. The Severn and Wye Railway, 2 B. and Ald,. 646. This must be so on general principles, unless, as is said by Abbott Oh. J. in the case last cited, the remedy by indictment is “equally convenient, beneficial and effectual.”

In the present case no' prosecutions, either of the Company or of officers can speedily and beneficially afford to the policy holders the desired protection, and there can be no sufficient reason, therefore, why this remedy should not be resorted to, in order to compel a compliance with the law. This being our view, we think the first objection not well taken.

The second objection we think equally untenable. We do not understand the act of 1869 to be inapplicable to the previously existing companies, before the thirty-first day of January next, or that it allows them until that time to accept its provisions. The act, on the contrary, applies to them immediately; and the time allowed by Section thirty-five is only given for the purpose of enabling them to make such changes in their own organization, or in their rules, regulations, modes of business &c. as would be needful to put themselves into entire conformity with the new law. For that purpose it might be found necessary to change their articles of association; but in the mean time they are not exempt from any proper inspection or examination, or from other provisions of the act which are equally applicable and equally important whatever the law under which the company was formed, and whatever their pre-existing regulations.

Nor do we think the third objection a valid one. It was entirely competent, we apprehend, for the Legislature to establish this regulation for the examination of existing companies by a separate act if they had seen fit to do so. It was equally competent to do it by the general act under which the old companies were required to re-organize. Indeed there was a manifest propriety in having the regulations concerning this business all embodied in a single statute; and we can conceive of no legal obstacle if the regulations are in themselves unobjectionable, and there is no difficulty in matter of form with the enactment.

Section twenty-six above referred to establishes a new but very reasonable regulation of the business of insurance; and upon what grounds the existing companies can legally or reasonably claim exemption from it, we do not perceive. We do not think the power of the Legislature is limited to taking away the corporate powers of defendants, if they refuse to submit to the inspection;'that would be an extreme remedy, while the one resorted to, takes away no vested right, detracts in no degree from corporations’ powers, capacities or privileges, but is a measure of proper precaution to prevent the corporation inflicting injury upon others. It appears to us that a railroad company, owning buildings within an incorporated city, might asi: reasonably claim exemption from the visits of the fire wardens, because the law providing for their inspection was passed after the company had perfected its organization.

It is suggested, however, that the title of the act in question will not include section thirty-six if made applicable to pre-existing corporations. The title is — “an act relative to the organization and powers of fire and marine insurance companies transacting business within this State.” This title is quite comprehensive, and was intended, as we have already said, to extend to all insurers of property against fire and marine risks, whose business was protected by our laws, whether existing in this State-or abroad. The title aptly indicates that intent. Is a provision for inspection by a proper state officer, foreign to the object expressed in the title? We think not. We must give the constitutional provision a reasonable construction and effect. The constitution requires no law to embrace more than one object, which shall be expressed in its title. Now the object may be very comprehensive and still be without objection, and the one before us is of that character. But it is by no means essential that every end and means necessary or convenient for the accomplishment of the general object, should be either referred to or necessarily indicated by the title. All that can reasonably be required is, that the title shall not be made to cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.—Indiana Central R. R. Co., v. Potts, 7 Ind., 681; People v. Mahaney 13 Mich., 495. Now a proper examination by tbe State authorities was evidently regarded by the Legislature as a very suitable means to render the organization of insurance companies useful to the public, and to prevent their powers being perverted to wrongful purposes; and therefore, we think, is not foreign to the title of this act. The writ must issue as prayed.

The other Justices concurred.