text:
    The People ex. rel. William Colby v. The Township Board of Woodhull in the County of Shiawassee.

      Mandamus. Petition to compel Town Board to allow claim — What must set forth. The act to legalize the action of townships and cities in the counties of Shiawassee, Genesee and Tuscola (Laws of 1865, p. 371) only authorizes the refunding of money which may have been raised, advanced, contributed or loaned for the purpose of paying bounties to volunteers or procuring enlistments, and one who seeks by mandamus to compel the township board to audit and allow a claim for advances made in pursuance of said act must set forth a state of facts showing his claims to be within its terms, and imposing the duty of which he seeks to compel the performance. It will not be sufficient that the petition shows the advances may have been for some of the purposes authorized by this act.
    A petition, in such case, which merely states that the advances were made for the purpose of filling the quota of the township, without showing that they were made for the purpose of procuring enlistments, or paying bounties to volunteers, does not bring the claim within said act.
    Ballot, what it should state in the absence of a prescribed form. When a Legislative Act authorizes the question of raising a tax for a specific purpose, to be submitted to the electors, without prescribing the form of the ballot to be used, it is necessary in order to render the vote operative, that the ballot of the voter should show that the specific question contemplated by the act was passed upon.

      Heard October 11th.

      Decided November 11th.

    Motion for a mandamus. The following facts were set forth in the petition:
    That the petitioner was a tax payer owning real and personal property in the township of "Woodhull in the county of Shiawassee of the value of four thousand dollars; that in August, 1864, the quota of said township under a previous call of the President for volunteers was eleven men; that for the purpose of filling said quota the “ petitioner advanced said township the sum of one hundred and thirty-seven dollars and sixty-seven cents on his own account,” and that afterwards on the 3d day of February, 1865, “ he further advanced to said township the sum of ten dollars for the purpose of filling the quota of said township under the call of December 4th, 1864.”
    That in pursuance of Act No. 163 (Laws of 1865, p. 271,) the qualified electors of said township, at a regular meeting, determined by ballot to raise money by tax to refund advances made for bounty purposes; that the form of the ballots used at said meeting was as follows: “ For refunding by tax money paid to procure credits to apply on previous quotas, not to exceed $300 per manand that the whole number of votes cast was one hundred and sixteen, of which sixty-seven were given in the affirmative, and forty-six in the negative; that the Board of Auditors of said township after-wards, pursuant to notice previously given,' held a meeting for the purpose of auditing such claims, and upon the presentation of that of the petitioner refused to receive and allow it; and to compel the Board to do so, the petitioner prayed for a writ of mandamus.

      M. McCurdy for relator.

      A. Gould and C. I. Wallcer for respondent.
   Christiancy J.

This is an application for a mandamus to compel the township board to meet and audit and allow a claim of the petitioner for the sum of one hundred and forty-seven dollars and sixty-seven cents for moneys which he alleges he advanced to the township, “ for the purpose of filling the quota of said township,” which quota is stated to have been, in August, 1863, eleven men, apportioned under a call or proclamation of the President. The advances are all stated to have been made prior to the fourth day of February, 1865. The application is based upon an act of the Legislature of this State, approved March 14th, 1865, entitled “An Act to legalize the action of townships and cities in the counties of Shiawassee, Genesee and Tuscola in raising’ bounties for volunteers; ” and the petition alleges a vote of the inhabitants of the township “ to raise money by tax to refund advances made for bounty purposes.”

To entitle the petitioner to a mandamus in this case he must, (as in other cases,) set forth a state of facts, which, under the law, imposes upon the township board the duty of which he seeks to compel the performance.

The act provides for raising by vote of the inhabitants of the township a tax for the purposes: 1st,, of paying bounties to persons who have furnished substitutes or representative recruits; 2d, to drafted men serving in person in the military service of the United States; and 3d, for the purpose “ of refunding any siun or sums of money which may have been raised,"advanced, contributed or loaned by any individual or association of individuals for the purpose of paying bounties to volunteers, or procuring enlistments into the said military or naval service of the United States, to fill any quota assigned to such township or city, under any call for troops heretofore made.” As the petitioner’s claim is for advances made, it must come under the third head above mentioned, if it come within the act at all, as neither of the others makes any provision for refunding moneys advanced or contributions made by individuals. His petition does not show whether his advances were made for one or the other of these purposes, nor whether, in fact, for any of them. They are only alleged to have been made “ for the purpose of filling the quota of .the township.” Now a drafted man counts towards the filling of the quota as well as a volunteer or enlisted man. And the act authorizes the inhabitants to vote a tax for paying bounties to drafted men; but it contains no provision for refunding or voting a tax to refund moneys advanced, loaned or contributed for that purpose, by any individual or association. This provision is restricted to the purpose of paying bounties to volunteers or procuring enlistments. If, therefore, the advances were made for bounties to drafted men, though such advances were made, in the language of the petition, for filling the quota, they are not advances for which the inhabitants could vote a tax. And until petitioner shows that he has made advances for which a tax is authorized to be made, he imposes no duty upon the township board to audit his claim. It is not enough, to say that the advances, as stated in the petition, may have been for some of the purposes authorized by the act; for they may with equal probability have been for purposes outside of the act. The petitioner makes no case till he affirmatively shows his claim to come within the act.

Again, Ms advances are all stated to have been made prior to the 4th day of February, 1865. Now if they were made to pay bounties for any substitute, representative recruit, or drafted man, who entered the service prior to that date, his claim is cut off by the proviso to the first section. The reason for this portion of the proviso, doubtless, was that all prior advances had been sufficiently provided for, by prior acts. See act of March 7th, 1863 (Session Laws,p. 92,) and act of February 4th, 1865, (Session Laws, p. 29, &c.) The last named act provides for raising bounties (of a less amount than the present act) for future and past enlistments, and the twelfth section prohibits any township or city thereafter to raise or pay or pledge their credit for the purpose of raising-bounties, except as in that act provided. Hence the proviso in section one of the act under consideration against bounties to substitutes, representative recruits, and drafted men, entering the service prior to the 4th of February, 1865. And hence the provision against raising the bounties of three hundred dollars for enlistments after the 4th of February, unless such bounties had been “ authorized” previous to that date; because, in the face of the prohibition of the act of February 4th, no pledges could properly have been made for any such bounty as provided for by tMs act of March 17th, though such pledges might have been made prior to the act of February 4th. By the previous authorization here referred to, we understand some kind of quasi corporate action by which the public faith of the township had been virtually pledged, such for example, as provided for in section six of the act of March 7, 1863. (Session Laws p. 94 and 95.)

Now it is quite evident that from the description of the advances stated in this petition, they may have been advances which under the proviso to section oue, were prohibited to be raised in the mode pointed out by the act. Hence no neglect of duty is shown in the board by a refusal to audit the claim.

The petition should have stated the specific purpose for which the advances were made, to enable us to judge whether they come within the provisions of the act. This might dispose of the case. But if the petition had been sufficient as to the description of the advances, there is still a fatal objection upon the merits, to the relief asked. The act makes no provision for the form of ballot by which the question of raising the tax is to be submitted to the electors. All that was necessary, however, was that the vote should be upon the question or questions authorized to be decided by the vote. The legislature may, and generally do, in such cases, provide the form of ballot, and when they do so the law in effect defines the meaning' of the ballot, though that meaning is not fully expressed upon its face. But when no form has been given, there is no such legislative definition given to its words, and it becomes necessary to express the meaning of the voter upon the ballots in some way.

In the present case the form'of ballots seems to have been in the affirmative — “For refunding by tax moneys paid to procure credits on previous quotas, not to exceed $300 per man, yes;” and, in the negative the same form of words, striking out “yes,” and inserting “no.” This is the question which was voted upon. No other was decided by the vote. It needs but a slight examination to discover that it is not the question authorized by the act to be submitted. It is quite as objectionable for its generality as the statement of the advances in the petition. It does not even refer to the act in question, and there is nothing to show that it was intended to have reference to it. It might, doubtless, have been rendered definite by such reference.

The question voted upon goes back over the whole time from the beginning of the war, without any of the restrictions or limitations provided in the act, and would apply as. well to moneys advanced for bounties to drafted men, and to the cases prohibited by the proviso, as to any others. It would cover any incidental expenses in going to the Provost Marshal’s office and returning, and the time spent there in getting the rolls corrected, or any other incidental expenses as to bounties or advances for bounties. This vote affords, therefore, no evidence what the vote of the electors would have been upon the question really authorized to be submitted.

The application for a mandamus must be denied, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The People ex. rel. Marinus Amperse v. The Circuit Judge for the County of Wayne.

      Mandamus. This court mil not issue a writ of mandamus to direct the Circuit Judge to make an order, when that order is not necessary to perfect the right of the party applying for it.

      Double Costs under'Comp. L., §3736, are vested in the plaintiff by the judgment, and no special order or finding of the court is necessary to entitle him to have them taxed.

      Practice. Where the practice in relation to the subject of the petition had been unsettled, it will be denied without costs.

      Heard November 11th.

      Decided November 11th.

    Petition for mandamus.
    The relator presented his petition, setting forth that he had brought an action of trespass on the case before a Justice of the Peace against Augustus D. Burdeno and Louis Burdeno; that, notice under the statute being given to the Justice, that the title to land would come in question on the trial of said cause, the Justice duly certified the case to the Circuit Court. On the trial in the latter Court the plaintiff, the said relator, recovered a judgment against the defendants in the usual form, no entry or minute being made by the Circuit Judge that the plaintiff was entitled to double costs.

      . The plaintiff, through his attorneys, applied to the clerk, as taxing officer, for the allowance of double costs, according to the provisions of § 3736 of the Compiled Laws, which he refused. Application was thereupon made to the Circuit Judge to cause an entry to be made in the minutes of the Court, specifying that the facts appeared in said case entitling the plaintiff to double costs, as provided in § 5636 of the Compiled Laws. This application was denied. And the plaintiff, therefore, filed this petition for a mandamus directing the Circuit Judge to cause such entry to be made in the minutes of the Circuit Court.

      Ward & Palmer for relator.

      Gray & Larned for respondent.
   By the Court.

By virtue of § 3736 of the ComjD. Laws, the plaintiff was entitled to double costs. No fact was required to appear on the trial, to be certified on the minutes of the Court, in order to perfect his right. The correct practice would have been to appeal from the decision of the taxing officer, and then bring the decision of the Circuit Court, if adverse, into this Court by writ of error.

The mandamus, being asked for, to direct the Circuit Judge to do an act not necessary to be done, must be denied; but, as the practice in this matter has been unsettled, the denial of the writ is without costs.


author: Cooley J. Martin Ch. J.

text:
    Harvey D. Burrell v. New York and Saginaw Solar Salt Co.

      Pule of damages. Pleading. Under a general allegation of damage, a party is entitled to recover those damages only which the law presumes to have accrued from the wrong complained of. And when labor is to be performed, from which a profit is to spring as tlie direct result of work done, at a contract price, and one party is prevented from earning such profit by the wrongful act of the other, the law will presume that such loss is the direct and natural result of the breach of the contract. Allison v. Chandler, 11 Mich. 542. The declaration need not contain a special allegation of such loss to enable a party to recover, if.it sets up the substantial nature of the grievance.

      Heard October 26th and 27th.

      Decided November 11th.

    This is a ease made, after judgment, in the Saginaw Circuit for review by the Supreme Court.
    The action was assumpsit brought to recover damages under a contract, by reason of the defendants preventing its fulfillment.
    The declaration contained a special count, setting out the written contract and averring in general terms that plaintiff agreed to construct for defendants 2,600 salt vats and covers for the sum of $13 each; that defendants agreed to furnish certain materials, &c.; that the parties entered upon the performance of their contract; that defendants failed to furnish and deliver materials as agreed upon, and finally requested plaintiff to abandon said contract.
    The declaration also contained the common counts. Defendants plead the general issue, with notice of set-off. The cause was tried by the court and judgment rendered in favor of plaintiff for $4,516, to which judgment defendants excepted.
    The case was settled on motion of defendants, for review by the Supreme Court on the evidence and the law. The facts sufficiently appear in the opinion of the Court.

      H. Joslin and Gage & Glover for plaintiff.
    1. The declaration is sufficiently certain to entitle the plaintiff to prove a breach of the contract, and recover damages therefor ; special damages are also sufficiently alleged to entitle the plaintiff to recover such as are proved. The common counts, when sufficient, without special counts. 1 Ch. Pl. 9 Amer. Ed. 399; 2 T. R. 105, 604; 3 East, 80, 85. Plaintiff may recover on common counts when there has been an agreement, if it has been executed or put an end to. Parkins v. Hart, 11 Wheat. 237; Jewell v. Schroeppel, 4 Cowen, 564; Cochrane v. Totum, 3 Monroe, 405; Keyes v. Stone, 5 Mass 391.
    So -that only a duty to pay the money remains. May v. Wakefield, 7 Vt. 228. It is not necessary in such case to declare specially. Such damages as may be presumed necessarily to result from the breach of contract need not be stated with any great degree of particularity in the declaration.
    The damages sustained are matters of evidence, and need not be alleged, nor are they scarcely ever stated but in a general manner. 1 Ch. Pl. 9th Amer. Ed. 235.
    The defendants’ “ objection to the uncertainty of the declaration, and all evidence to show special damages, because no special damage was sufficiently alleged” is without force, and lacks point, because not sufficiently specific. The defendants were bound to lay their fingers on those points, which arise in admitting or denying evidence, or matter of law, without which the general objection has no force. Zabriskie v. Smith, 11 N. Y. 480; Dunckle v. Wiles, Ib. 420.
    2. The contract is admitted, and in evidence. It was performed by plaintiff so far as not prevented by defendants. Plaintiff had the means and ability to complete it.
    Defendants failed to perform, and ordered plaintiff to quit the work.
    The contract itself furnishes the measure of damages. Sedgwick on the Measure of Damages, 3rd Ed. 209.
    Under this rule the plaintiff claims to recover the contract price, less the cost of performing it, at the time defendants failed to perform and notified plaintiff to quit. Masterton v. Mayor of Brooklyn, 7 Hill, 61; Cook v. the Commissioners of Hamilton Co., 6 McLean C. C. R. 112; Griffin v. Colvin, 16 N. Y. 489; Thomson v. Jackson, 14 Monroe, 114; Town of Royalton v. R. and W. Turnpike Co., 14 Vt. 311; 13 How. 307.
    The damages are to be fixed by this contract at the time defendants failed to perform, and notified plaintiff to quit, in the season of 1864.

      Wn. L. Webber for defendants.
    1. The declaration is not drawn so as to entitle the plaintiff to give any evidence of a breach of the contract, nor of special damages. The objection Avas taken when such evidence Avas first offered, and all testimony on those subjects taken subject to the objection. We insist that the declaration is defective in substance, and such defects áre not ■ aided by pleading. 1 Ch. Pl. 672.
    There is no allegation of special damages. Profits are not a necessary and natural result of a contract, nor is damage a necessary result of a breach on the part of the other party,for contractors as often perh'aps lose, as make money by their contracts. Even loss of profits, therefore, should have been specially alleged as damages. 1 Ch. Pl. 338.
    2. The Judge beloAv adopted as a rule of damages the following : “ The plaintiff, therefore, can recover-, the difference between $33,800.00, Avhich was promised for the completed job, and the sum Avhich in 1864 such completed Avork would have cost the plaintiff, after deducting from such difference what has been paid.”
    We submit that this rule is erroneous. If 1864 proved to be a very dry season, and therefore a much better one for making solar covers than a wet season would have been, that fact alone should not influence the amount of damages to which the plaintiff is entitled. It cannot be supposed that the parties contracted with reference to any other than an ordinary season. Only such damages can be alloAved as can “ fairly be considered as having been within the contemplation of the respective parties at the time of entering into the contract.” Allison v. Chandler, 11 Mich. 553; Griffin v. Colvin, 16 N. Y. 495.
    The true rule Avould be, as we conceive, that plaintiff should recover the difference, if any, between the contract price and what he could have sub-let the contract for.
   Cooley J.

The plaintiff seeks to recover in this suit the damages which he has sustained by not being allowed to fulfill a contract made with the defendants, under which he was to construct for them twenty-six hundred salt vats and covers on their premises upon Saginaw river. The case comes before us for a review upon the facts, and the only question of law involved in the case is, whether the evidence given by the plaintiff to show damage was properly admitted.

By the contract the defendants were to furnish and deliver on their dock the materials for said vats and covers, as fast as the same should be required by Said Burrell, who was to construct at least four hundred vats and covers each month, from the time of commencing the work. The lumber was to be delivered in assorted piles; and the complaint made by the plaintiff is, that in consequence of the lumber not being assorted as it should have been, the labor of loading the same for cartage from the dock to the place were it would be used was greatly increased, and that delays occurred in the delivery of the lumber which essentially hindered performance by the plaintiff, until he finally, at the request of defendants, abandoned the contract altogether. The declaration contains but one special count, which sets out the contract, and avers in general terms that the parties entered upon performance; that the plaintiff was always ready and willing to complete and fulfill it on his part, but that the defendants hindered, delayed and prevented his so doing, by neglecting to furnish materials, so that he only partly executed the same, whereby he is greatly injured and damnified, &c. On the trial the defendants objected to all evidence tending to show special damage, because no special damage was sufficiently alleged; and all the evidence was taken subject to the objection.

Under this general allegation of damage, the plaintiff would be entitled to recover those damages only which the law presumes to have accrued from the wrong complained of. 1 Chit. Pl. 895; Deforest v. Leete, 16 Johns. 122. The wrong, complained of is the failure by the defendants to deliver material, by reason of which the plaintiff was hindered and delayed in the performance, and finally compelled to abandon the contract. The Circuit Judge allowed the plaintiff to recover the profits he would have made, had he been suffered to complete the work; and the witnesses, in making their estimates, were permitted to take into the account the peculiarly favorable season for work of the description to be done. The plaintiff was thus allowed to recover the difference between the contract price and the sum which it would have cost him to complete the contract at the time agreed, after deducting the payments received.

The damages which the law seeks to award to the party wronged, are such as will compensate him for the injury sustained. Allison v. Chandler, 11 Mich. 542. Where the party is to perform labor, from which a profit is to spring, as the direct result of work done at a contract price, and he is prevented from earning this profit by the wrongful act of the other party, the loss of this profit is a direct and natural result which the law will presume to follow the breach of the contract; and he is entitled to recover it without special allegations in his declaration. The consideration of profits cannot be separated from the circumstances under which the work was to be done; and the plaintiff was entitled to show whatever was peculiarly favorable, and which tended to diminish the cost of completing the contract. Every party in entering into a contract, the profits of which depend upon contingencies, takes upon himself the risk of their proving favorable ; and it could not be permitted that one party, after the other had assumed the risk and found the contingencies to result in his favor, should have the option to terminate the contract, and procure the work to be completed at less fates, without fully compensating the other for the profits which he is wrongfully prevented from earning-. The rule of damages adopted was substantially correct, and it only remains to be seen whether the computation made by the Circuit Judge is satisfactory to us, on a review of all the facts.

[The Court then proceeded to an examination of the testimony as to the amount of the damages, and fixed the sum at $2,6 Í 8 41.J

For this sum, together with costs of the court below, the plaintiff' will have judgment. As this sum is a considerable reduction from the amount of the judgment of the court below, the defendants will recover costs of this court.

Christiancy and Campbell JJ. concurred.

Martin Ch. J.

dissenting:

I concur with my brethren that the Circuit Judge was correct in the rule of damages he adopted and applied in this case. Beyond this I cannot go. As I read the statute, (and such has always been my opinion,) we can only review the judgment of the Circuit Judge upon a special finding of the law and facts, and not upon a general verdict. It is to my mind an absurdity, and inconsistent with the proper duties of this bench, to hold that a party in the court below may waive a jury, and by a case made after judgment, make the members of this court a struck jury (as it were) to try a question of fact. I do not think such to be the office of this court. The evident intent of the Legislature, as it appears to me, was that upon a case made after judgment, we should review special findings, not general verdicts*


author: Campbell J.

text:
    William Wreford v. The People.

      Slaughter houses. Nuisance. Where the Common Council was authorized to compel the owners and occupants of slaughter houses, &c., to cleanse and abate whenever necessary for the health, &c., of the inhabitants of the city 5 held, that such power could only be exercised in abating legal nuisances. It could not, and does not empower the Council to interfere with that which is not a nuisance in fact.
    The Council have no power to prohibit slaughtering animals upon one’s premises, unless the building is devoted to that business.

      Retrospective law. Regulations. When it appeared that the building for a slaughter house was used, and fitted up before the ordinance was adopted; held, that as the charter only authorized the Council to prohibit the “ location or construction ” of buildings for slaughter houses, &c., it had no right to put an end to any existing business - of the kind so long as it was not a nuisance in fact, hut it was further held that reasonable regulations might be made concerning them.

      Heard July 10th.

      Decided November 13th.

    Error to Recorder’s Court.
    Wreford was convicted in the Recorder’s Court in and for the City of Detroit, under a complaint for violating an ordinance of said city, prohibiting the slaughtering of “ any cattle, sheep, swine or calves in any building or enclosure on either side of Jefferson avenue, Woodward avenue and Fort street west, or within one block of each' of said avenues or streets.”
    The conviction, as appears by the record, was had upon a stipulation of facts, as follows, to wit:
    “recorder’s COURT OR THE CITY OR DETROIT.
    “ The People v. William Wreforcl.

    “ For the purpose of the trial of this case, the facts are admitted and stipulated to be as follows:
    “ 1. The ordinance upon which the complaint was based was adopted December 27th, 1864, and is in words and figures, as follows, to wit:
    “ aS ordinance relative to slaughter houses.
    “ It is hereby ordained by the Common Council of the City of Detroit: ' .,
    “SeC. 1. No person shall slaughter or cause tobe slaughtered, in any building or enclosure on either side of Jefferson avenue, Woodward avenue and Fort street west, or within one block of each of said avenues or said street, any cattle, sheep, swine or calves.
    “ Seo. 2. Any violation of the provisions of this ordinance shall be punished by a fine not to exceed three hundred dollars, and costs, and in the imposition of any fine and costs, the Court may make a farther sentence that the offender may be committed to the Detroit House of Correction or County Jail until such fine and costs be paid: Provided, however, That the term of such imprisonment shall not exceed the' period of six months.
    “ Sec. 3. This ordinance shall take immediate effect.
    “ Aj>proved December 27th, 1864.
    “ 2. That the streets therein named, to wit: Jefferson avenue, Woodward avenue and Fort street west, are not and were not, at the time of the adoption of said ordinance, except certain portions of Jefferson avenue and Woodward avenue occupied for business purposes, more closely built up or densely populated than many other streets in said city.
    “ 3. Defendant did, at the time and place alleged in said complaint, slaughter certain calves.
    “ 4. That said calves were so slaughtered upon premises and in a building- fitted up by said defendant for a slaughterhouse, and occupied and used by him as a place for slaughtering calves and other animals, for a long time prior to and at the time of the adoption of said ordinance.
    “ 5. That the portion of Jefferson avenue, in the vicinity of which said slaughter house is located, is not as densely populated as many other streets in said city not mentioned in said ordinance.
    “ William Gray, City Counselor.

    “ Newberry & Pond, Attorneys for Deft.”

      Newberry & Pond for plaintiff in error.
    1. To be valid, an ordinance or by-law must be,

      a. Strictly within the authority conferred on the corporation by its charter. Mayor of Rochester v. Rood, Hill and Denio, 146.

      b. Must be a reasonable exercise of such authority. Angell and Ames on Corp., 334 ; Kennebec and R. R. Co., v. Kendal, 31 Me. 470 ; Dunham v. Trustees, 5 Cow. 462 ; Austin v. Murray, 16 Pick. 121.

      c. And whether so.reasonable or not, is a matter of law for the Court. Angell and Ames on Corp. § 357 ; Commonwealth v. Worcester, 3 Pick. 462 ; Austin v. Murray, 16 Pick. 121 ; Commomoealth v. Insurance Co. 12 Penn. St. 318 ; Kep v. City of Paterson, 26 N. J. 298.
    2. The ordinance in question is not authorized by any provision in. the charter of said city.
    It would seem to be intended to be based upon subdivision 33 of section 21, Chapter V of said Charter, Laws of 1857, p. 101.
    This section authorizes the Common Council “ to prohibit and prevent within certain limits in said city to be determined by the Common Council the location or construction of * * slaughter houses and yards, butcher shops,” &c., &e.

      a. It is clear, we think, that this provision is aimed solely at prohibiting slaughtering or butchering as a business within limits to be fixed, &o. Whilst the ordinance in question seeks to prohibit under any and all circumstances the slaughtering of any animals within the limits fixed.
    Under this subdivision 33, we submit that it is not competent for the Common Council to prohibit, by an ordinance, arbitrarily and without regard to whether or not the samé is a nuisance, the further continuance of a slaughter house or butcher shop existing prior to and at the time of the passage of the ordinance.
    The language is the same as used in subdivision 35, same section, which authorizes the establishment of fire limits in said city. And it will not, we think, be contended that under the latter section the Common Council could, by an ordinance, prohibit the further continuance of a wooden building existing prior to the ordinance.
    But the ordinance in question indirectly does this very thing.
    It does not, it is true, in terms prohibit the further continuance of slaughter houses and butcher shops existing within the limits prescribed at the time of its passage, but indirectly it does so by prohibiting the slaughtering of any animal within such houses or shops.
    3. The ordinance is an unreasonable exercise of the authority supposed to be conferred by the charter in this,' to wit:
    That it fixes the limit of the prohibition arbitrarily, and with an evident intent to favor certain localities or streets at the expense of others equally entitled to protection from the supposed annoyances of the business prohibited.
    Evidently it was not adopted in good faith to protect the welfare or comfort of the inhabitants of the city generally.

      Wm. Gray and Levi Bishop for People.
    The Common Council of Detroit had power under the city charter to pass the ordinance in question.
    They had power to prohibit and prevent, within certain limits of the city, to be determined by the Common Council, slaughter houses and yards, butchering shops, &c., and all establishments where nauseous, offensive or unwholesome business might be carried on, with a view to the health and safety of the inhabitants of said city, and to prevent such establishments becoming nuisances. Charter; S. L., 1857, p. 101 § 33d.

    The authority here conferred is not confined to “ the location and construction of buildings to be used ” as slaughter houses, butchering shops, and the like. The language is, “ buildings for storing,” &c., but we should, hardly think of storing powder factories, tanneries, distilleries, &c. The language is, further, “ buildings for the manufacture of turpentine,” &c., but we should not think of manufacturing slaughter houses, yards, butchering shops, and the like. Again, the statute speaks of- “ establishments for straining or rendering lard,” &e., and “ all other establishments,” &c. And the words, “ all such buildings, factories, shops, and establishments, now and hereafter to be constructed,” clearly indicate that power was given to prohibit the offensive thing, and not the building where it might exist.
    It makes no difference how closely or otherwise the parts of streets named in the ordinance may be occupied as residences or for business, for the charter is clear that the limits in which the prohibition is to operate are to be determined by the Common Council. This power and discretion of the Council will not be controlled. S. L. 1857, p. 101.
    The Legislature had authority to confer upon the Common Council the power which was exercised in passsing the ordinance in question. Welch v. Stowell, 2 Doug. Mich. 332, 340.
    The ordinance on which the prosecution is based, is in no sense ex post facto. It is not the building which is forbidden and complained of, but the' slaughtering of calves in a forbidden place. The building is not the nuisance, but it is the unlawful use of the building which constitutes the violation of law.
    It is believed to be a doctrine wholly inadmissible, that because a building has been of long standing and use in a certain way, that therefore it is beyond the control of law, and may be used as a nuisance so long as shall suit the pleasure or convenience of the proprietor.
    The law is otherwise; for to continue a nuisance after it is prohibited by law, is an offense, though it was not a nuisance when first committed. Penoyer v. Saginaw, 8 Mich. 534.
    In People v. Jackson, the defendant remained passive and did nothing, after the obstruction which he had created originally had been prohibited by a city ordinance. The court does not decide the point whether the ordinance was ex post facto, but Manning, J., declares unequivocally that to continue such an obstruction, even by leaving it alone, was illegal, and that the ordinance was not ex post facto. 9 Mich. 111, 122, 131; Vedder v. Vedder, 1 Denio, 259 ; Brown v. R. R. Co. 2 Kernan, 492 ; State v. Wilkinson, 16 Pick. 175.

    In the case of Jackson, the obstruction, which was that of an alleged alley, was simply allowed to remain, without any new act on the part of the defendant.
    The case at bar is much stronger against the defendant. The thing complained of here is slaughtering calves, where the defendant is an actor in each act of slaughtering, and where each act is a distinct and substantive offense.
   Campbell J.

Wreford was complained of and convicted in the Recorder’s Court for violating an ordinance of the City of Detroit, which declares that no person shall slaughter or cause to be slaughtered in any building or enclosure, on or within one block of Jefferson or Woodward avenues, or Fort street, any cattle, sheep, swine or calves. He was charged with slaughtering calves, in a building on Jefferson avenue. He claims the ordinance to be invalid.

The only provisions of the charter which confer power over this subject are subdivisions 29 and 33, of section 22, chapter 5. Subdivision 29 authorises the Common Council to compel the owners and occupants of slaughter houses, and other designated establishments, to cleanse or abate them, whenever necessary for the health, comfort or convenience of the inhabitants of the city. This power can only be exercised to do away with what are legally nuisances, and does not authorize the Council, as it could not, to interfere with what is not a nuisance in fact. Subdivision 33 gives power to the Council to “ prohibit and prevent', within certain limits in said city, to be determined by the Common Council, the location or construction of buildings for * * * slaughter houses,' and yards, butcher’s shops, &e.” ; “ and such buildings, &c., now or hereafter to be constructed in said city, whether within or without the limits, to be determined as aforesaid., Sc., shall be subject to such regulations in relation to their construction and management, as the Common Council may make, with a view to the protection of any property from injury by fire, or to the health and safety of the inhabitants of said city, and to prevent them from becoming in any way nuisances.”

It will be seen that the Council have no power to prohibit slaughtering animals any where upon their owner’s premises, unless the building is devoted to that business. The ordinance in question makes no reference to the use of the building for any particular business, but punishes any act of slaughtering. This is clearly unauthorized.

It also appears that this building was used and fitted up for a slaughter house, before the ordinance was adopted. The charter only allows the Council to prevent future erections and locations of such establishments, and they have no right to put an end to any existing business of the kind, so long as it is not a nuisance'in fact. They may under this authority regulate the future location of such establishments, if their ordinances are reasonable and not oppressive. The power given to them by the latter clauses of subdivision 33, to make reasonable regulations to prevent the creation of nuisances from the exercise of such business, is ample enough for the public protection; and is all that they can exercise against any business already established. They cannot declare that to be a nuisance Avhich is not a nuisance, and they must confine their prohibitory action, aimed at fixing the locality of any business, to future erections or establishments. When any thing creates an actual nuisdnce it may b# reached and punished, without reference to its duration, and its continuance as a nuisance can be adequately prevented.

We think the by-law in question is void, and the conviction should be quashed.

The other Justices concurred.


author: Campbell J. Martin Ch. J.

text:
    The People ex. rel. William A. Moore v. Benjamin F. H. Witherell.

      Election. Recorder of Detroit'. Construction of the Charier. It is expressly provided in Sec. 26, Chapter 6, of the Charter of the City of Detroit, that vacancies in any elective office, except that of Mayw\ Recorder or Alderman, are to be filled at the next annual election. And in such a case, no notice or appointment of an election is required to fill the vacancy. People ex. rel. Speed v. Hartwell, 12 Mich. 508.
    The Common Council may designate a Circuit Judge to bold the Recorder’s Court until the vacancy shall be filled ; but there is no law providing for filling such vacancy without a special election. Whether the charter or laws provide for such special election need not now be decided; the relator’s election being a nullity, and the respondent having been designated by the Common Council, judgment was entered for the respondent.

      Submitted November 11th.

      Decided November 13th.

    Information in the nature of a quo warranto.
    At the general election held in the fall of 1864, Hon. B. F. Hyde was elected Recorder for the full term of six years, from and after January next ensuing. In the month of July, 1865, the Common Council by a unanimous vote designated Hon. B. F. H. Witherell, Wayne Circuit Judge, to exercise all the powers and duties of said Recorder until said vacancy be filled.
    No further action was taken by the Council in reference to the vacancy in said office. Since the passage of said resolm tion, Judge Witherell has held the Recorder’s Court and discharged all the duties of the office.
    At the general election, held in November, 1865, William A. Moore and William Pi Yerkes were candidates, and the only ones, for the Mice of Recorder, to fill vacancy. Each received a large number of votes, but William A. Moore received a majority of all the votes east;

      REFERENCES TO THE CHARTER OF THE CITY OF DETROIT.
    Sec. 1, Chap. 6, Page 57 — “There shall be a Municipal Court, in and for the city of Detroit, to be called the Recorder’s Court, which shall be a Court of Record.”
    Sec. 2 — “ The Recorder of said city shall be the Judge of said Court, but in case of his absence from the city, inability to attend, or vacancy in his office, one of the Judges of the Circuit Court, to be previously designated by the Recorder or the Common Council, shall be the Judge of said Court, and as such Judge, have and exercise all the powers and duties of said Recorder, until he shall resume his office, or such vacancy be filled.”
    Sec. 1, Chap. 2, Page 7 — “ The following officers of the corporation shall be elected at the annual city election, on a general ticket, by the qualified electors of the whole city, viz: mayor, recorder, city clerk, attorney,” &c.
    Sec. 18, Chap. 2, Page 12 — “The recorder (shall hold his office) for the term of six years.” The same section also contains the following proviso ; “ That all officers, whether elected or appointed, shall hold their offices respectively, until their successors shall be duly elected or appointed and qualified, and shall enter upon the discharge of their duties.”
    Sec. 26, Chap. 2, Page 16 — “If a vacancy occurs in any elective office, other than mayor, recorder or alderman, the common council shall appoint some person eligible under this act, to serve in such office until ihe next annual election, when the vacancy shall be filled for the residue of the official term.”
    Sec. 1, Chap. 8, Page 18 — “The annual city election shall be held on the first Tuesday, after the first Monday of November in each year, at such places in the several wards, as shall be designated by an order of the common council, at least twenty days previous thereto, notice of which, specifying also the officers-to be elected and the time for opening and closing the polls, shall immediately, or within three days after the date of such order, be given by the city clerk, by publication in two or more daily newspapers, published in said city. The time and place for holding a special election shall be designated, and the notice thereof given in the same manner, and to the same effect.”
    Sec. 14, Ci-iap. 3, Page 22 — “If any person be voted for at any election 'to fill a vacancy or residue of a term, the ballots of the electors shall designate such vacancy or residue.”
    Sec. 21, (Paragraph 2,) Chap. 5, Page 29' — Chapter 5 prescribed powers and duties of the Common Council. “ To provide for and regulate the election and appointment of all officers, and for their removal from office,'and for the filling of vacancies, subject to this act.”
    The above facts and references were admitted by stipulation to be correct.

      G. V. N. Lothrop for relator.

      Wm. Gray for respondent.
   Campbell J.

This is a proceeding on an information in the nature of a Quo Warranto. The relator was, at the recent election held under the charter of the city of Detroit, voted for to fill the vacancy in the office of Recorder of that city, caused by the death of the incumbent, Benjamin F. Hyde. No election was ordered for that purpose by any one. Judge Witherell is acting as Judge of the Recorder’s Court, under section 2, chapter 6 of the charter, which in case of absence, sickness, or vacancy in the office of Recorder, authorizes the Common Council to designate a Circuit Judge to act until the vacancy is filled, or the office resumed by the Recorder temporarily absent. The first section of chapter 2 provides for the several officers to be elected at annual elections, and the 13th section provides that the Recorder shall hold office for six years. We held in Stadler v. the City of Detroit, 13. Mich. 346, that section 1 only applied to the time when the election was to be held, when offices were to be filled for full terms, and did not authorize an election oftener than when one term of office was about to expire and aifother to begin. In other words, it would in case of the Recorder refer to the annual election held every sixth year, as in that case it referred to a biennial election for Marshal. I.t refers to original elections, and not those held to fill vacancies.

By section 26 of the same chapter, vacancies in any elective office, except that of Mayor, Recorder or Alderman, are to be filled at the next annual election. In such case no notice or appointment of an election is required to fill the vacancy, but the statute is imperative.—People ex rel. Speed v. Hartwell, 12 Mich. 508.

The charter contains no other provision bearing on the subject, and there is no general law of the State providing that a vacancy can be filled without a special election or notice. We are not called Upon to determine whether any statute has provided for filling vacancies in this particular office, otherwise than by the process resorted to by the Common Council, which designates an existing judicial officer of the State to perform the duties during the vacancy. The relator’s election is a nullity, and the incumbent is entitled to exercise the functions of the office.

Judgment should be for the respondent.

Cooley and Christiancy JJ. concurred.

Martin Ch. J.

dissenting.

I do not concur with my brethren. I think the present incumbent of the office of .Recorder was, and could only be, appointed 'for the temporary period which would intervene between the occurrence of the vacancy and the next general election. This is in accordance with the whole theory of popular elections, and I do not think the legislature intended to make an exception in this office, and confer upon the common council of Detroit a power which the constitution has with- . held from the Governor in parallel cases.


text:
    Dennis J. Campau and others v. George W. Lewis.

      Heard October 14th, 17th, 18th and 19th.

      Decided November 13th.

    Appeal in Chancery from the Wayne Circuit.
    The complainants filed their bill, February 15th, 1864, to set aside a certain deed, made by the wife of the defendant, George W. Lewis, of her interest in the estate of her father, the late Joseph Campau, claiming that she was not competent to execute said deed, and that the same was procured by improper influences.
    The defendant Lewis put in an answer to the merits of the bill. One of the defendants, who was a minor, put in a general answer by her guardian ad litem, and the other defendants suffered the bill to be taken as confessed.
    The Circuit Court dismissed the bill, and orf the hearing of the appeal this court affirmed the decree of the court below, with costs.
    No important legal points were required to be decided by this court; and as the opinion involves only a review of the evidence, which relates wholly to private individuals, it is not deemed important that it should be published.

      Levi Bishop, S. T. Douglass and G. V. N. Lothrop for complainants.

      Maynard & Meddaugh and C. I. Walker for defendant.


author: Cooley J. Campbell J.

text:
    Patrick Britton v. William M. Ferry and Eliza Stuart.

      United States Survey. Quarter Posts, effect of as monuments. Construction. — When the actual location of the quarter post, in a United States survey, is capable of being ascertained with certainty, and it appears that the actual distance from one point to another, on a section line, is greater than is indicated by the original survey; it was held, that the quarter posts were authorized to be set and established by virtue of the land laws, and survey statutes, taken in connection with the instructions of the department at Washington to the surveyors; and that when so set, they constitute established monuments, of boundary; and as such, will govern in preference to the boundaries by courses and distances; and that this was the construction which had always been given to the laws, by the department at Washington, and by the Supreme Court.

      Heard November 7th, 8th and 9th, 1865.

      Decided January 5th.

    Error to Kent Circuit.
    This was an action of ej ectment brought by William M. Ferry and Eliza Stuart, defendants in error, for the recovery of certain premises, in section thirty-six, in township seven north, of range twelve west.
    With the plea of the general issue the defendant below filed the following notice r

      “To plaintiff's attorneys:

      “ Take notice, that on the trial of this cause, the defendant will give in evidence, and insist, under the above plea of the general issue:
    “ That the United States of America originally caused to be made a survey of a certain tract of land in the county of Kent and State of Michigan, now known and designated by refer■ence to such survey, as section thirty-six, in town seven north, of range twelve west, and that in surveying out and establishing the north line of so much of said section as lies south of Grand River, it established the quarter stake on said north line at a point which is forty-five chains west of the north-east corner of said section;
    “ That one Elijah Grant, (now deceased,) late of the county of Washtenaw, in said State of Michigan, became the purchaser of said United States of the north-east quarter of said section thirty-six;
    “ That the north boundary line of the same commences at the north-east corner of said section thirty-six, and extends by the original survey aforesaid westerly on the north line of said section to the quarter stake, a distance of forty-five chains, or thereabouts;
    “ That the west boundary line of said north-east quarter commences at the quarter stake last named, and runs southerly in the direct line of the quarter stake on the south line of said section forty chains, or thereabouts;
    “That the only occupation by said defendant of any land upon said section thirty-six is within the boundaries above named, and that his right to occupy he derives from one Raymond O’Hara, who is his landlord, and that the ownership of the premises so occupied by him is in the said O’Hara, by a title originally derived through said Elijah Grant, deceased.
    “ Yours, &c.,
    “ Miller & Rogers, defendant’s attorneys.” ■
    The cause was submitted to the jury under the charge of the court.
    The defendant requested the Circuit Judge to charge the jury as follows:
    That the stakes and points designated and made in the government survey as boundaries of divisions and sub-divisions of sections, when ascertained and proved, control courses and distances, and must prevail; which charge was refused and excepted to.

      The Circuit Judge then charged the jury as follows:
    1st. “That the law of Congress does not require the setting of quarter posts, so called, in section lines on the ground.” 2nd. “ That in case of regular sections, they are sub-divided according to laAv, by lines protracted on the plat from points in the section lines, equi-distant from those two corners which stand on the same line.”
    3rd. “ That in case of fractional sections, the sub-divisions are to be made by law by lines protracted on the plat from north to south, or east to west, so as to make as many one-half quarter sections as practicable.”
    4th. “ That quarter posts, so called, placed on section lines by surveyors, are not such fixed, definite and established points as to conclude parties, or determine boundaries.”
    5th. “ That in case of fractional sections which must be subdivided according to law as above stated, an act of a surveyor fixing or settling a quarter post at any other point than that where a due north and south line, (as in this ease,) drawn from the jxrojDer 2>oint on the opjtosite line would strike this line is void, and such act of the surveyor cannot be paramount to, or override the law.”
    6th. “ That the settled policy of Congress has been to divide the public lands in square or right angled figures, and not by lines forming oblique or acute angles.”
    To Avhich said instructions and charges the counsel for the said defendant did then and there except.
    Judgment having been rendered for the plaintiffs, defendant brought error.

      Miller & Rogers and Joslin & Blodget for plaintiff in error.
    The only questions for the consideration of this court are the correctness of the decisions of the Circuit Judge in his charge to the jury.
    1st. We insist that by the law a quarter post, once placed and witnessed by the United States surveyor, can only be changed by the government, and that before the land is sold.

      2nd. That any monument overrides courses and distances. 5 Mass. 355; 6 Id. 131; 19 Pick. 445; 2 N. H. 197 and 287; 6 Wheaton, 580; 7 Id. 7; 6 Peters, 328.
    3rd. Lines must be held as they were run, not as they ought to have been run. Wright, Ohio, 171, 576, 599; 1 Doug. Mich. 19, 29; 4 McLane, 268; Acts of Congress, 1805, 1820; Opinions of Com. of Land Office; 24 Ala. 391; 2 Porter, Ala. 38; 24 Ala. 521; 7 Porter, Ala. 428; 5 Dana, Ky. 543; 1 Shepley, Me. 329; 2 Shepley, Me. 66; 10 Ohio, 163; 2 App. Me. 205; Wright, 634; 3 Harr. Del. 88; 1 Gratt. Vir. 211; 1 Richardson, S. C. 491; 16 Ga. 141; Addison, Penn. 359.
    4th. Quarter section lines are not run, but quarter section comers are found and marked by the surveyor, and when marked, are not to be moved after the sale, without the consent of the owners.
    5th. A line, corner or post, made for the inspection of buyers, or shown them by the grantor, is binding upon the parties. 2 N. H. 303.

      George Gray for defendants in error.
    The principal question in this case is: — If a deputy surveyor, in sub-dividing a fractional township of the public lands of the United States, in the year 1831, set a quarter stake, so called, in a fractional section line of that township, does that act of the surveyor fix and determine absolutely and conclusively, as between the owners of the contiguous subdivisions of the section, the corners and boundaries of such subdivisions, however erroneous that act of the surveyor may be ?
    The defendants in error hold the negative of this question.
    The certified copy of the plat, which is part of the record, shows that the east and south lines of section thirty-six are regular; that the west and north lines are fractional; and that the entire of the fractional section contains three full quarter sections of 160 acres each, and a fractional quarter section of 120 V2-100 acres. The east and south lines are also township lines.

      The plaintiff in error claims that the deputy surveyor, in running the north line of the township, set in said line a “ quarter stake,” so called, at a point which is about forty-five (45) chains west of the north-east corner of said section 36, being about twenty (20) rods west of the point where the north-west corner of the north-east quarter of said section is shown to be by the plat. The land lying south of, and adjoining to, these twenty rods is that in controversy.
    The defendants in error claim that even if the deputy surveyor set a stake, as and for a “ quarter stake,” so called, forty-five chains west of the north-east comer of said section, (as to which there was contradictory testimony,) such act of the surveyor did not, and does not, establish the corner, or determine the boundary between the north-east and north-west quarters of the section; that such act was, and is wholly unauthorized by law, and of no force or effect; and that the boundary line between said quarter sections is, and should be, a line drawn from the center of the south line of the section due north, as shown on the plat.
    1. The acts of Congress do not authorize, or require, the setting of “ quarter stakes,” so called, or the designation, in any manner, on the ground, of thé comers or boundaries of subdivisions of a section, other than section corners and section lines.
    (The various acts of Congress were cited and commented upon by counsel.)
    Up to 1805, no law of Congress had ever been passed, and no provision adopted, for running or marking any line or corner of a tract or parcel of the public lands less than a section, (except in the case of certain half sections,) and that section lines and section corners were also lines and corners of the respective subdivisions of the sections.
    In the case of sections the Government has arranged their boundaries, and marked their lines and corners; but in the ' case of subdivisions of sections, their lines and corners are to be ascertained and determined by lines protracted and drawn on the plat according to the principles and in the manner specified.—3 How, U. S. Sup. Court, 650; See dissenting opinion of Judge Catron; 2 Porter, 38.
    So far as township and section lines and corners are concerned, where they are actually run and marked, so are they established and held to be; because 1st, the act of so running and marking such lines and corners was by authority of law; and 2d, on each section line and comer, and on each township line and corner, depend all the remaining sections in the township and all the remaining townships in the district. Such is not the case in respect to subdivisions of sections; — -their corners or lines are not required by law to be marked on the ground, and an error of any kind therein carl only affect the contiguous subdivisions of the same section.
    2. Fractional sections containing over 160 acres are subdivided, according to law, by lines running due north and south or east and west; and any other subdivision is contrary to law and void.
    As before stated, previous to the act of 1820 fractional sections could only be sold entire and were never subdivided. See act 1796, see. 2, act of 1804, see. 9, and opinion of Judge Catron, before cited. So the act of 1805 had no reference to a subdivision of a fractional section. There was then no such thing in existence or in contemplation of law.
    The lines, then, must be due north and south, or east and west. Such is the requirement of the act of Congress. Even the word “ northerly,” or “ northward,” in a patent means a line due north.—3 Caines, 293 ; 1 Johns. 156.
    The act of the surveyor was not only unauthorized by law, but was in violation of law.
    3. A stake is too frail a witness to be called a monument, or to control the construction of a deed. — 33 Penn. St. R. 124.
    The monuments which control course and distance must not only be called for in the deed, but must be therein referred to as indicating and identifying the land. The monuments called for in a deed, that control course and distance, are those which, are fixed on, and understood by^ the parties, as indicating and identifying the premises. Such are not the facts in the case before the court; the only indications or identifications of the land in controversy are the section lines and corners, the Government plat, and the rules and principles of law; nor are any others fixed on and understood by the parties. Purchasers of subdivisions of the public lands buy from, and according to, the plat; and it is only by the plat and subdivision lines marked thereon that the government sells. (See Judge Catron’s opinion before mentioned.) The government recognizes no indications or identification of the corners, boundaries, or contents of the subdivision of sections, other than the plain rules of law.
    4th. The rule that monuments control is general and not universal. Cases are found where the calls for monuments are disregarded, and the course and distance govern, and this is entirely consistent with the reason of the rule and with the rule itself.—17 Mass. 207; 16 N. Y. 359.
    The principle and. the law is this — “ That which is most material and most certain shall control that which is les^ material and less certain.” — 1 Cow. 612; 5 Id. 371; 18 Johns. 81.
    Applying this principle to the present case it must be held that the Government plat and the acts of Congress will control.
   Cooley J.

The defendants in error brought ejectment to recover lands which they claimed constitute a part of the east half of the north-west quarter of section thirty-six, in township seven, north of range twelve west. The only question involved in the case is, whether this claim is valid, or whether, on the other hand, the lands in dispute are a part of the north-east quarter of the same section, as claimed by Britton.

The section in question was made fractional by the Grand River crossing the north-west quarter, leaving the other three quarters regular. The survey was made by the United States district surveyor in 1831. The field notes show the survey of the east and south boundaries of the section, and the setting of half mile and mile posts at forty and eighty chains, respectively, from the south-east corner of the section; they also show the setting of a half mile post on the north line of the section, forty chains from the north-east corner, and a continuation of that line to the river four chains and fifty-nine links from the half mile post; and also the setting of a half mile post on the west line of the section, forty chains from the south-west corner, and a continuation of that line eighteen chains and eighty-five links to the river. At the time this survey was made, the opposite bank of Grand River was Indian territory, and it was not surveyed until 1837, when the section was completed by surveying out the fraction on the opposite side of the river, and fixing the north-west corner post.

The controversy in this case springs from the fact that the actual distance from the north-east corner of the section to the river, on the north line of the section, is some five chains more than is indicated by the original survey; and the half mile post, instead of being forty chains from that corner, is stated on the argument to be about forty-five chains. Assuming that the actual location of that post is capable of being ascertained with certainty, the question presented for decision is, whether the post is to govern in fixing the line between the north-east and north-west quarters of the section, or whether the north-east quarter is at all events to be made a half mile square, without regard to the actual location of the half mile post, leaving any surplus that may exist to fall within the lines of the north-west fractional quarter. The Circuit Judge held that the half mile post, or as it is more commonly called, the quarter post, was not such a fixed and established boundary as could conclude the parties; that there was no law, when the survey was made, requiring the surveyor to set it, and that a proper construction of the land laws would give the purchasers of the north-east quarter a half mile square only, without regard to any post thus fixed without authority to indicate a division line between the two north quarters of the section.

It would be difficult to overrate the importance of this ruling if it should be sustained by the court. It is conceded by the defendants in error that the general impression of the law is adverse to it; and it cannot be denied that boundary lines, in this State at least, have generally been established by accepting the quarter posts as fixed and established monuments, not liable to be changed for errors in the original surveys. A decision which should unsettle this general belief Avould lead to endless difficulty, discussion and litigation, and should not be made, unless a careful examination of the law irresistibly forces us to the conclusion that it is correct.

The statutes for the survey of the public lands begin with the act of 1196, (1 Stat. at large, 464; 1 Land Laws, 50,) which required that they should be divided by north and south lines, run according to the true meridian, and by others, crossing them at right angles, so as to form toAvnships of six miles square, unless where the line of the then recent Indian purchase, or of tracts of land theretofore surveyed and patented, or the course of navigable rivers, might render it impracticable ; and then the rule was to be departed from no further than the peculiar circumstances should require. The corners of townships were to be marked, with progressive numbers .from the beginning, and each distance of a mile betAveen the corners was also to be distinctly marked. Each alternate township was then to be sub-divided into sections of six hundred and forty acres each, by running through it, 'each way, parallel lines at the end of every two miles, and by marking a corner on each of the said lines at the end of every mile. Fractional parts of townships were to be divided into sections in the same manner, and fractions of sections were to be annexed to and sold with adjacent entire sections. This act made no provision for the sub-division of sections, or for any posts, except at section corners; and the townships not subdivided were only authorized to be sold in quarter townships.

The amendatory act of 1800 (2 Stat. at large, 73 ; 1 Land Laws, 73,) provided for the sub-division of the alternate townships west of the Muskingum, not sub-divided under the original act, into half sections of three hundred and twenty acres each, by running parallel lines through the same from east to west, and from south to north, at the distance of one mile from each other; and marking corners at the distance of each half mile, on the lines running from east to west, and at the distance of each mile on those running from south to north. The townships lying east of the Muskingum, not before subdivided, were all to be sub-divided under this act into sections. All excesses and deficiencies in townships were to be added to, or deducted from, the western or northern ranges of sections or half sections, which were to be sold as containing only the quantity expressed in the returns and plats, while all others were to be sold as containing the complete legal quantity. Thus it appears that under this law half mile posts were to be established on the east and west lines of a portion of the public surveys, and the act evidently contemplated that these posts were to govern purchasers, and the amount of land within the boundaries they indicated was to be taken as the real amount, whether in point of fact it was so- or not.

The act of 1804 (2 Stat. at large, 281; 1 Land Laws, 104,) authorized sales in quarter sections, not only of the whole, but of the fractional sections (§ 12); and the half and quarter sections sold were to be surveyed out by deputy surveyors, at the expense of the purchasers, whenever necessary to ascertain the boundaries or true contents. It can hardly be doubted that half mile posts, set under the two acts last mentioned, would be lawfully established monuments of boundary.

We now come to the act of 1805, (2 Stat. at large, 313; 1 Land Laws, 119,) “concerning the mode of surveying the public lands of the United States,” which is the parent of our present general system. The first section provides, that the Surveyor General shall cause all those lands north of the river Ohio, which by virtue of the act of 1196 were subdivided by running through the townships parallel lines, each way at the end of every two miles, and by marking a corner on each of the said lines at the end of every mile, to be subdivided into sections, by running straight lines from the mile comers thus marked, to the opposite corresponding corners, and by marking on each of the said lines intermediate corners, as nearly as possible, equi-distant from the corners of the sections on the same. He was also to cause the boundaries of all the half sections which had been purchased previous to July 1, 1804, and on which the surveying fees had been paid, to be surveyed and marked, by running straight lines from the half mile corners before marked, to the opposite corresponding corners; and intermediate corners were at the same time, to be marked on each of the dividing lines as nearly as possible, equi-distant from the corners of the half section on the same line. Under this section, quarter posts would be established in each alternate township surveyed under the act of 1796, and also in each other township, where sales had been made, and surveys paid for.

Section two of the act of 1805 proceeded to lay down general rules for ascertaining the boundaries and contents of the several sections, half sections, and quarter sections, of the public lands of the United States, as follows:

1st. “All the corners marked in the surveys, shall be established as the proper corners of sections, or subdivisions of sections, which they were intended to designate; and the corners of half and quarter sections, not marked on the said surveys, shall be placed as nearly as possible, equi-distant from those two corners which stand on the same line.”

2d. “ The boundary lines actually run, and marked in the surveys,” “ shall be established as the proper boundary lines of the sections or subdivisions for which they were intended;” “ and the length of such lines shall be held and considered as the true length thereof And the boundary lines which shall not have been actually run and marked as aforesaid, shall be ascertained by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships, when no such corresponding corners have been or can be fixed, the said boundary lines shall be ascertained by running from the established corners, due north and south, or east and west lines, as the case may be, to the water course, Indian boundary line, or other external boundary of such fractional township.”

3d. “Each section or subdivision of a section, the contents whereof shall have been, or by virtue of the first section of this act, shall bo returned,” “ shall be held and considered as containing the exact quantity expressed in such return or returns; and the half sections, and quarter sections, the contents whereof shall not have been thus returned, shall be held, and considered, as containing the one half or the one fourth part, respectively, of the returned contents of the section of which they make part.” *

It is contended by the defendants in error, that up to this time there was no provision of law for setting quarter posts, except in the special cases provided for by section one of this act; while under the general system which the act establishes, monuments were to be fixed only at the section corners, and the corners of half sections and quarter sections were only to be placed and marked on the plat in the office, after the surveys were returned. The placing of a quarter post in the field, it is argued, was therefore an unauthorized act of the surveyor, which could bind neither the government, nor the patentees.

When this position was assumed on the argument, difficulties suggested themselves to our minds, which at the time appeared insuperable, and which have not been removed by the argument.

First. It was conceded that section corner posts were, under this act, to be set and established in the field, and that when set, they were conclusive upon purchasers, and not liable to be removed on discovery of errors after sales. But this act no more provides for section corner posts, than it does for quarter posts; and the same construction which would make the latter unauthorized, would render the other so likewise.

Second. The argument makes the words “ subdivisions of sections,” as used in the first subdivision of section two, meaningless; since if only the corner posts of sections were to be established, those corner posts must necessarily be the corner posts also of the subdivisions of sections, cornering at them, and a declaration to that effect would be worse than idle, because being useless for that purpose, its tendency would be to mislead by enticing into inquiries after some sufficient reason for the words being employed. And, independent of this consideration, it seems evident to us, that corners of sections and of subdivisions of sections are here spoken of, in contradistinction to each other, and not as indicating the same points.

Third. It was the evident purpose of this act, as we think, to adopt and make conclusive the general system of surveying which should be established under it; and to fix the corners established in the field, as well of the subdivisions of sections, as of the sections themselves, and make them permanent boundary monuments, not subject to change on discovery of errors, after private rights had intervened. The act proceeds upon the well understood fact, that however carefully a law may give directions, and the department seek to carry them out, absolute correctness in the surveys will not, and cannot be attained, and that it is better for both the government and the purchaser to assume this fact at the outset, and be governed by fixed monuments, instead of leaving everything open to change in the future, when new and more careful surveys might be practicable. The act therefore declared that the corners of sections and subdivisions of sections established in the field, should be “ established ” as the proper corners of the sections and subdivisions of sections they were intended to designate; and to make clear, beyond doubt, the intention that they should not he subject to removal, it also provided, that the contents of each section, and subdivision of a section, as returned, should be held and considered as the true contents, or in other words, should not be open to inquiry between the government and purchasers, or between the purchasers themselves. Mr. Gallatin, Secretary of the Treasury, in speaking of this act in an official communication to the surveyor at Washington, Mississippi Territory, immediately after its passage, says: “ The principal object that Congress have in view is, that the corners and boundaries of the sections and subdivisions of sections, should be definitely fixed; and the ascertainment of the precise contents of each is not considered as equally important. Indeed it is not so material, either for the United States, or for the individuals, that purchasers should actually hold a few acres, more or less than their surveys may call for, as it is that they should know with precision, so as to avoid any litigation, what are the certain boundaries of their tract? — 2 Land Laws, '¡81.

Fourth. The argument assumes that Congress, for no visible reason, established a system which included quarter posts for the townships partially surveyed before, and a different system, which omitted those posts, for the public lands generally.

Fifth. But it is a consideration which at this period of time cannot be overlooked, that the proper department has put a construction upon this statute which will forbid adopting the argument, unless we are prepared to disregard a settled practice of sixty years, and accept a rule which, by taking from quarter posts their authority, opens the floodgates to the very evil which Mr. Gallatin supposed the act of 1805 had provided against. This construction of the department is best expressed in a letter from the Commissioner to the Surveyor General of Mississippi, July 20, 1831, (2 Land Laws, 915,) in which he says: “The following is a summary of [its] regulations. The lands are to-be laid off in townships of precisely six miles square, by lines running due north and south, and east and west. On each of those lines, precisely at the distance of one mile apart, corners are to be established for sectional lines. Parallel lines are to be run through the tpwnship each way, from each sectional corner to the corresponding sectional corner on the opposite side of the township; on each of which lines sectional corners are to be established at the distance of one mile apart; which process will divide the township into thirty-six sections. In running the exterior township lines, and also the interior sectional lines, intermediate half mile posts, or corners, [precisely equi-distant between the corners of the sections,] are to be established as the boundaries of quarter sections.'1'’ It is true that this construction has not the force of law; but as it was adopted immediately after the passage of the act, and has been adhered to ever since, the reasons for now repudiating it should be most cogent and conclusive, before we are warranted in accepting them.—Surgett v. Lapice et al., 8 How. 68; Bissell v. Penrose, 8 Id. 336.

The various statutes up to and including that of 1805, are not specific in regard to fractional sections; and it is claimed by defendants in error, that no authority existed for their sale in subdivisions, until the passage of the act of 1820: — [3 Stat. at large, 566; 1 Land Laws, 323]. That act provided that all the public lands of the United States, the sale of which is or may be authorized by law, shall, when offered at public sale to the highest bidder, be offered in half quarter sections; and when offered at private sale, may be purchased, at the option of the purchaser, either in entire sections, half sections, quarter sections, or half quarter sections; and in every case of the division of a quarter section, the line for the division thereof, shall run north and south, and the corners and contents of half quarter sections, which may thereafter be sold, shall be ascertained in the manner and on the principles directed and prescribed by the second section of the act [of 1805]; and fractional sections, containing one hundred and sixty acres or upwards, shall in like manner, as near as practicable, be subdivided into half quarter sections, under such rules and regulations as may be prescribed by the Secretary of the Treasury,” etc.

Under this act the Secretary of the Treasury issued instructions to Surveyors General, that they should divide the fractional sections, containing more than one hundred and sixty acres, into half quarter sections, by north and south, or east and west linos, so as to preserve the most compact and convenient forms. They were not required, however, to run the subdivisional lines and mark them, but merely to mark them upon their surveys, and calculate the quantity of land in each subdivision.

Starting with the position that the fractional sections were not to be subdivided for sale under the act of 1805, or quarter posts established, the defendants in error insist, that the only mode in which subdivisions could be made under the act of 1820 was, “bylines protracted on the plat, running to the cardinal points.” Taking the fractional section now in controversy as an illustration, the division line between the two north quarters could not be ascertained, it is said, by the principles of the act of 1805, because the section had no north west corner, and it would consequently be impossible to find a point equi-distant between the north east and north west corners, from which to draw a line to another point equi-distant, between the south east and south west corners. Precisely the same difficulty would occur in dividing the section north and south:

If in fact quarter posts were established in the case of fractional, as well as regular sections, and their establishment was not absolutely without authority, this argument can have no force. That they were actually set by the surveyors is conceded; that they bind the purchasers from government is denied; and we are referred to cases which are supposed to hold, that the surveyors had no aiithority for setting them. Indeed it is suggested that, even if authorized, such a post is not a monument of such fixed and definite character, as can be allowed to control course, distance, or quantity in a grant; but this point was not seriously pressed, and is clearly opposed to the adjudged cases. See McCoy's Lessee v. Galloway, 3 Ohio, 282; Alshire's Lessee v. Hulse, 5 Ohio, 536 ; Hall v. Davis, 36 N. H. 569; Richardson v. Pickering, 41 Id. 380; Younkin v. Cowan, 34 Penn. St. 198; Wharton v. Garvin, Id. 340; Billingsley v. Bates, 30 Ala. 376; Climer v. Wallace, 28 Mo. 556; Moreland v. Page, 2 Clarke, [Iowa] 139; Sargent v. Herod et al., 3 Id. 145; Stewart v. Boyd, 15 La. An. 171. We must therefore see whether the authorities justify us in holding that the setting of quarter posts by the United States Surveyors was unauthorized, and consequently without legal force.

The case mainly relied Upon, on this point, is Brown's Lessees v. Clements, 3 How. 650. We have carefully examined that case without being able to find in it any support for the position taken; and we think the opposite doctrine is very clearly to be deduced. It there appeared, that in a case where a fractional section, containing over one hundred and sixty acres, was capable of being subdivided, so that the south west quarter would have been full and of regular form, the surveyor disregarded entirely the law and instructions which required that he should subdivide into regular half ■quarter sections, and made an arbitrary division of the whole section into two lots, in a manner entirely unauthorized. The regular half mile posts were, however, set on the south and west sides of the section; and a patent was issued to one claimant, designed, perhaps, to convey the west lot as surveyed, but describing it as the south west quarter of the section. The Court held the division by the surveyor to be illegal, and that the patent conveyed the complete quarter section of one hundred and sixty acres. The precise question now before us was not presented by that case, but in discussing it, remarks were made incidentally, which are sujjposed to show that the Court accepted the view now pressed upon us. The remarks lead us to a different conclusion. Justice McKinley in delivering the opinion of the majority of the Court, speaking of the general system of surveys, said: “None of the lines, subdividing sections, are required to be made by actual survey and marked on the land,” which is strictly correct; and it is also true that they are not run in fact. He further says: “ When the township and section lines are run, and the corners marhed according to law, the quarter section lines are ascertained on the plat, by protracting lines across the sections, north and south, and east and west, equidistant from the section lines,” &c. If the learned Justice in speaking of “ corners marked according to law,” referred to no other corners than those made by the intersection of township and section lines, the mention was entirely unnecessary, as his meaning was fully expressed without it.

But any argument based upon such a mere incidental remark must necessarily be exceedingly uncertain and dangerous. ’ And by a reference to the argument of counsel in that case (p. 659), it will be seen that it rests to a considerable extent upon the fact that quarter posts were actually set and established. The argument was: The south west corner and the half mile posts were all marked. “ There were three corners established then, and any one could run the fourth line; and the fact of the case is that these section lines are the only ones which are ever run. • The system was adopted in 1805. Hnder it quarter sections could be found without being run out, because half mile posts were put down. The law, then, creates this quarter section, which was established as soon as the posts were planted.” It appears to us that this argument was substantially accepted by the court as a correct exposition of the statutes providing for surveys; and it is a full recognition of the correctness of the construction put by the department upon the act of 1805.

In the more recent case of Lindsey et al. v. Hawes, 2 Black, 554, the Supreme Court of the United States still more distinctly recognize and sustain the same construction as aj>plied to fractional sections. In that case, a preemption right was claimed in the fractional south west ¡Dart of a section, and the question was, whether, after a survey had been once made, and the quarter posts set, and such a possession had been taken of a subdivision as would entitle the possessor to preemption rights, the surveyor might lawfully correct the survey and so move the line as to leave the occupant off the fraction. The Court held that he could not; and in the decision they fully recognize the practice of setting the quarter section- posts, and hold that when once set, and individuals have acquired rights by reference to them, they are not subject to change.

This decision should be conclusive on the point; especially as it is not unreasonable, and sanctions the practice of the department. We all know that when purchasers take lands from the General Government, they ascertain the boundaries by going upon the land and tracing out the lines and stakes. No one supposes that if an error shall chance to have occurred in the survey, he is liable to have the corner post removed, and perhaps the portion of his purchase, Avhich he regarded as most valuable, taken from him by a re-survey. The corner he looks upon as a fixed point; and it is only where no stake has been set, or corner designated, that he resorts to measurement to ascertain where the line will come. A post set Avhich was to govern nothing, but to be itself controlled by course, distance and quantity, would not only be useless, but in the majority of cases would tend to deceive and invite litigation; and the purchaser is therefore warranted in inferring that it Avould not be set, except as a permanent monument. If every fractional section were subject to correction by subsequent surveys, the purchase of the north west fraction would commonly be a mere lottery; since in the final correction all errors must be thrown upon that, and instances Avould occur where it would be wholly swallowed up in the other subdivisions, Avhile in other cases it would be doubled in extent.

"We are of opinion that the Circuit Judge erred in his ruling, and that the judgment should be reversed.

Christiancy J. concurred.

Campbell J.

If the matter had not been settled by authority, I am not satisfied that the statute would require the construction put upon it by my brother Cooley, although I think it at least admissible, but the decisions referred to, from the Supreme Court of the United States, are conclusive, and I therefore concur in the results he has arrived at.


author: Cooley J.

text:
    Melissa Stiles v. Elizur Stiles and another.

      Husband and wife. Hules regulating transactions between. Fi'aud. When a husband obtains his wife’s property under the form of a purchase, surrounded by suspicious circumstances and strong evidence of fraud, and for a consideration merely nominal, he will be bound to make clear and satisfactory proof of good faith, or the Courts must presume that he has made improper use of his influence: Held, also, that in such a case, the ordinary presumptions in favor of the validity of a deed would be rebutted by such circumstances of suspicion and fraud. Held, further, that actual fraud was made out.

      Heard November 11th, 1865.

      Decided January 5th.

    Appeal in chancery from Eaton Circuit.
    The bill in this cause was filed by the complainant, Melissa G. Stiles, against her husband, Elizur Stiles, and Wilbert Stiles, his son by a former marriage, to set aside a certain deed of forty acres of land, executed by the complainant to the said Wilbert, on the ground that the same was obtained by fraud.
    The bill sets forth that she executed said deed, (bearing date September 27, 1858,) to said Wilbert, without consideration, and that he immediately conveyed the premises to said Elizur; that she was induced to execute the same by the representations of the said Elizur,- to the effect that the premises were different than those actually contained in said conveyances.

      The defendants deny any such fraudulent representations, and allege that the said conveyances were executed in pursuance of an express agreement previously made between complainant and said Elizur.
    The facts sufficiently appear in the opinion for a full understanding of the case.

      D. D. Hughes for complainant.
    The deeds of the 27th of September, 1858, amounting to a conveyance from the wife to her husband, are void as against public policy, or if not void, they will be jealously watched, and the husband will be held to show affirmatively that good faith w'as used, and that the deed was advantageous to the wife.
    This has long been the law of contracts between persons whose relations imply undue influence, such as guardian and ward, attorney and client, and under our law authorizing a wife to convey as femme sole, the reason of the rule applies with the strongest force to the relation of husband and wife. 2 Johns. Ch. 549; 32 Barb. 254; 7 Paige, 463; 1 Edw. 572.

      W. S. Gear, S. T. Douglass and H. A. Noyes for defendants.
    1. Fraud will not be presumed. The burden is upon the complainant to establish it by proof so clear and conclusive as to leave' no rational doubt on the mind as to its existence. 2 Doug. Mich. 176.
    2. It is improbable that the complainant could have been mistaken or deceived as to what premises were described in her deed to Wilbert. She had lived many years on the farm, and must be presumed to have known the description of the different parcels, and the testimony adduced by her shows, in opposition to her statement in the bill, that the description was read to her before she signed the deed.
    Admit that the transaction appears in the sequel to have been unwise and improvident on-her part, it was natural, and it was no more unwise or improvident than her other transactions in respect to her property, the validity of which is not questioned. .
   Cooley J.

The complainant, who is the wife of Elizur Stiles, files her bill against him and Wilbert Stiles, Ms son by a former marriage, to set aside a conveyance made by her to the latter, of lands which he has transferred to his father, on the ground that it was obtained by fraud.

From the record it appears that Timothy Hascall died in May, 1853, the owner of a farm of 240 acres, leaving the complainant, his widow, and Charles A. Hascall his son and heir at law. The latter, soon after his father’s death, gave a warranty deed of the farm, subject to his -mother’s right of dower, to his uncle Henry C. Hascall. Charles was a minor when this deed was given, but on August 6, 1853, after he had come of age, Henry C. Hascall conveyed the farm to complainant, with the knowledge and consent of Charles, and she thereby became vested with an undisputed title to the whole.

On June 9, 1855, comjfiainant conveyed the north west forty acres of the farm to George G. Hascall, an infant son of Charles, and also executed to Charles 'a mortgage on the undivided two-thirds of the remaining two hundred acres, to secure the payment of her notes for $2300. On the same day, in contemplation of marriage with the defendant Elizur Stiles — which took place the next day — she conveyed to him. the saíne undivided two - thirds ” of the farm which she had thus mortgaged.

Charles A. Hascall, by the death of his son George, became owner of the forty acres .sold to the latter, and the defendant, Elizur Stiles, by means alleged to be fraudulent, but which are immaterial in this case, obtained from him a deed thereof The Charles mortgage was assigned to one Dennis Morrissy, and on May 7, 1858, the complainant and defendant Elizur executed to him, in satisfaction of the mortgage, a warranty deed of the two hundred acres, excepting therefrom forty-acres occupied as a homestead, and which, by the payment of the mortgage, was left free from incumbrance; the complainant being owner of one undivided third part thereof, and the defendant Elizur, of the remaining two-thirds.

September 27, 1858, complainant conveyed her interest in the homestead forty to defendant Wilbert Stiles, who immediately conveyed to his father. These conveyances the bill seeks to set aside as fraudulent.

The bill alleges that complainant was induced to execute the deed to Wilbert by the false representation of the defendant Elizur, that the' land described therein was the forty acre lot conveyed to George G. Hascall, which had been, or was about to be purchased for said Wilbert, and in which it was feared complainant might have some interest.

The answer denies all deception and fraud, and insists complainant fully understood the deed she was executing. To show a consideration for it, it is alleged that when the deed was given to Morrissy in satisfaction of the Charles mortgage, Morrissy refused to receive a quit - claim on account of Charles having been a minor when he conveyed to his uncle Henry, and that complainant agreed to deed to defendant Elizur her interest in the homestead if he would unite with her in the covenants in the deed to Morrissy.

If the averments in the answer were to be taken as true, it would be difficult to condemn too strongly the conduct of a husband, who, having already had a large portion of his wife’s property bestowed upon him as a free gift, drives with her a hard bargain for the remainder, and actually obtains it for a consideration entirely nominal, and which neither incommodes him in the least, nor in the slightest degree benefits her. There is no pretense that the conveyance was a gift; the defense rests upon the basis of contract, and a husband who thus obtains his wife’s property, under the form of a purchase, and for a consideration merely nominal, would be bound to make clear and satisfactory proof of good faith, or the courts must presume that he has made improper use of his influence as husband to extort the conveyance. On his own showing, the bargain was an unconscionable one; and the ordinary presumptions in favor of the validity of a deed are rebutted by the circumstances.

But the statements of the answer on this point are scarcely plausible. They are, in substance, that the complainant, in order to satisfy the mortgage, conveyed a p^.rt of her lands to the holder, and gave all the rest to her husband for uniting with her in the conveyance. As the only inducement of a pecuniary nature she could have had for satisfying the mortgage in this way, would have been to save something for herself, and by this arrangement she saved nothing, it is difficult to believe that she made such a settlement the subject of contract. If she was to save nothing, it was a matter of indifference to her, whether the mortgage was satisfied in the mode proposed, or by foreclosure. Even if both parties were to save their interests in the homestead by the arrangement, the husband was strongly interested in making it, if it was a desirable one, and was hardly in position to demand compensation for warranting a title which nobody disputed, before he would complete a settlement for his own benefit. We can see reason why the wife should give up part of her property to save the rest, but none at all why she should surrender part to induce another party to accept the remainder.

The evidence adduced to substantiate the ease made by the answer is still more unsatisfactory than the case itself. It consists of statements and admissions alleged to have been made by complainant; the latter, under circumstances when any such admissions would have been entirely unnatural and without motive. The witnesses to prove them are the children of the husband by his former marriage, one of whom testifies to having taken down, in writing, at the time, the most important of these statements, at the request of-his father, as if in anticipation of litigation, though the parties where then living together, and no difficulties had yet sprung up between them. If the husband was dealing fairly and frankly with his wife, and anticqiated no difficulty, it is inconceivable that he should have made spies of his children, to listen to and note down her words.

But the proof of actual fraud adduced by complainant is very strong, and in connection with the suspicious circumstances surrounding the defense, is satisfactory to us that complainant was induced to execute the deed to Wilbert Stiles, under the belief that it covered the land conveyed to George G. Hasoall. The testimony of the officer who drew the deed and took the acknowledgment is positive to the fraud, and he is strongly corroborated by the other evidence. What plausible reason the husband was able to give for desiring the deed we do not know; but it is evident that complainant made it because she was requested, and because she did not suppose any 'real interests of her own were to be transferred by it.

We think the decree of the Court below was correct, and it must be affirmed.

Cheistianct and Campbell, JJ. concurred.