author: Wnipp'LE, C.'J. Green, J.,

text:
    In the Matter of Mills, an Attorney.
    T>. g., o. 95, seo. 84, provide that any attorney, solicitor or counsellor may be re- • moved or suspended,who shall be guilty of any deceit, malpractice, crime or misdemeanor.' The oourt may remove or suspend an attorney for other causes than those mentioned in the statute, whioh'is not to be construed as restrictive of the general powers of the court over its officers.
    A charge made against an attorney for the pur-pose of removing him, that he is of notoriously bad character, not to bo believed under oath, and unworthy to practice as an attorney, is too general. Specific acts should be charged, so os to give the respondent an opportunity of answering them.

      But a charge that the reputation of an attorney for truth and veracity is so notoririously had that he is not to he believed under oath, contains good cause for removal, and is not too general.
   By the court,

Wnipp'LE, C.'J.

This ease comes before the court upon question's reserved by the circuit judge of the county of Kent.

Charges, affecting the professional and Moral character of the respondent, were filed by Charles P. Babcock against Mills, in the circuit court of the county of Kent. Among these charges were the following:

1. “ That said Mills is of notoriously had character, not to be believed tinder oath, and unworthy to practice' as an attorney.”

2. “ That the reputation of said Mills for truth and veracity is so notoriously had, that ho is not to be believed under oath.”

Testimony was taken in support of each of these charges. It being objected by the respondent, that they wore too general and indefinite in their character, and that, if true, they would not authorize the court to revoke his license, the circuit judge deemed it proper to ask our advice in respect to the objections thus raised. By the Revised Statutes, chap. 95, sec. 20, it is provided that “ No person shall practice as an attorney or counsellor at law (except in the county cou-rt), or as a solicitor or counsellor in chancery, within this state, unless ho shall be approved by the court for his good character and 'learning? The 2Yth section authorizes the supreme court to “ grant to any citizen.- of this state, of good moral character, and of the age of twenty one years, a license to practice as an attorney and counsellor at law, upon an- examination at a stated term of such court, in the |>resence of the justices thereof, when satisfied that the applicant possesses sufficient legal learning and ability to discharge the duties of such office.” The 34th section provides that “ Any. attorney, solicitor or counsellor, may be removed or suspended, who shall be guilty of any deceit, mal-practice, crime or misdemeanor.” The pre-requisites necessary to admission at the bar, are, first, that the applicant shall ho approved by the court for his good moral character; and, second, that ho possesses sufficient legal learning to discharge the duties of his office.

The authority of the court to remove or suspend an attorney when guilty of any deceit, mal-practice or crime, exists independently of the statute. Whether this authority to revoke a license granted to an attorney, extends to- causes other than those specified in the thirty-fourth section; is now, for the first time, presented for the consideration of this court.

If our courts are restricted to the causes-set forth in the st'atute^there would seem to be a lamentable defect in our laws. The words “ deceit” and mal-praclice,” in the-statute, have direct reference to the conduct of an attorney, as such attorney; and if the authority of our courts to remove or suspend, an attorney is to be- thus restricted to official delinquencies, it follows, that however degraded his moral character may be— whatever fraud or deception he may be guilty of — if such fraud or deception is unconnected with his professional acts, he is deemed worthy of a place at the bar. In- other words, an individual may be guilty of acts which involve a violation of every moral precept,-and yet retain’ our license, and practice in our courts, provided these acts were committed in his private, and not official capacity.

If it is of consequence to the community that those who are in-any way concerned in the administration of justice, should-possess a reputation unstained by those vices which in their nature tend to degrade and-corrupt, then is it important that a power should- be lodged in some-tribunal, to purge the bar of such as may Lave become the victims of such vices. That no person can faithfully and honorably discharge the delicate and responsible duties of am attorney, unless fortified by strong moral prineiplfes, is too clear for argument. The nature of those duties necessarily implies the possession of high moral charrcter, in order to their conscientious performance. This our statute contemplates, for it is only to those who are “ approved by the ’court for- their good character,” who are permitted1 to-wear the honors and bear the responsibilities of an attorney.

If. it be necessary, to gain admission at the bar, that a person .should, furnish the evidence of “ moral character,” as- required' by tlie twenty seventh section; how infinitely greater the necessity, that he should actually possess that character, when he shall have entered upon the active and exciting theatre of professional life, where he is beset' at every moment by temptations, well calculated to test the firmness of his principles.

It cannot be" contended, with reason, that while our courts are clothed with1 the-authority to revoke the license of au attorney who may be convicted of a misdemeanor, that they are powerless when that authority is invoked in respect to an attorney who may .be convicted of immoralities which utterly unfit him for the association of gentlemen, and the'faithful discharge of his duties, either to his clients, or to the court in which ho may practice.

Can it be that an attorney, convicted of a -petty offence in no wise involving moral turpitude — one who may have adorned the profession by his talents, his eloquence and his learning — may be expelled from the bar; while another, whose reputation may not have extended beyond the limits of the township in which he resides, and whose character may be stained by gross immoralities, is permitted to appear as a counsellor and advócate in courts of justice ? Such a state of things would result, if the views taken by the respondent he correct.

As it is a condition precedent to his admission at the bar, that an attorney should possess a blameless moral character, I think he forfeits his rights as such attorney, upon a breach of that condition. When a license is granted to an attorney, we certify to the world, that he has been “ approved by the court for his good character and learning-” Upon this certificate the public have*a right to rely. They may fairly presume, so long as the attorney retains his office, that his “ good character ” continues to be “ approved by the court,” -and that they may safely rely on his honor and integrity.

Should this court, after being officially advised that one of its officers has forfeited the good name he possessed when permitted to assume the duties of his office, still hold him out to the world ns worthy of confidence, they would, in my opinion, fail in the performance of a duty cast upon them by the law. It is a duty they owe to themselves, to the bar, and the public, to see that a power which may bq wielded for good or for evil, is not entrusted to incompetent or dishonest hands. The extreme judgment of expulsion is not intended as a punishment inflicted upon the individual, but as a measure necessary to the protection of the public, who have a right to demand of us, that no person shall be permitted to aid in the administration of justice, whose character is tainted with corruption.

Upon principle, therefore, I think that the authority of this court over attorneys ought not to be restricted to the cases specified in the statute. And the reasoning by which I am conducted to this result is conclusive to show, that the legislature never intended to withhold from our courts the exercise of a power so necessary to preserve the administration of justice from pollution, and the public from imposition.

Let us now examine the .question presented for our consideration, with reference to adjudged cases to be found in the English and American reports.

In ex parte Brownsall, Cowp. 829, an application was made to the King’s Bench, to strike the defendant’s name from the roll of attorneys, he having been convicted of stealing, five years before the application, and no misconduct since having been imputed to him. Lord Mansfield remarked, that as it was for the dignity of tho profession that a solemn opinion should bo given, he would take an opportunity of consulting all the judges. At a subsequent day, ho stated that he had consulted all the judges, and they were unanimonsly of opinion that the defendant, “having been burnt in the hand, is no objection to his being struck off the roll; and it is on this principle, that he is an unfit person to practice as an attorney. It is not by way of punishment, ■ hut. the court, in such cases, exercise their discretion, whether a man whom they have formerly admitted, is a proper person to he continued on the roll or not.”

In tho case of tho King v. Southerton, 6 East. 127, the defendant had been indicted and convicted for sending a letter to extort money, &c. Judgment was afterwards arrested, on the ground that the offence of which tho defendant had been convicted, was not cognizable by the laws of tho country. Lord Elienborough, Chief Justice, however, remarked, “ that enough appeared to the court to satisfy them that the defendant was a very improper person to remain as an attorney on the rolls of tho court.” Ajqn'opriate proceedings having been instituted, the defendant’s name was stricken from tho roll.

In Smith’s case, 1 Brod. & Bing., C22, tho defendant, an attorney, was stricken from the roll “ for supporting his clerk in swearing falsely (as hail) that he, the clerk, was a lace manufacturer.”

It has been held by the supremo court of Ohio, that “ official .delinquency and base immorality” will constitute a good ground for revoking the license of an attorney. 11 Ohio 400. The statute jof Ohio authorizes. tho supreme court or court of common pleas to suspend any attorney or counsellor at law from practising in their respective courts, ufor misconduct in office, or for good cause shown” It is not apprehended that this last cause .was intended to enlarge the powers which every court has over the conduct of this class of officers. The words, “ for good cause shown,” rrjust, according to every sound rule of construction, refer to such causes as would, according to law and the piractice of courts, justify the exercise of this power.

In Leigh’s case, 1 Munf. 481, Judge Roane, in speaking of attorneys, says: “ In order to secure a due degree of probity and knowledge in their profession, so indispensable to persons acting in that character, none are permitted to act as such but those who are allowed by the judges to be skilled in the law, and certified by the court of the county of their residence to be persons of honesty, probity, and good demean- or. Having obtained the sanction of these two tribunals, touching these two particulars, an attorney is licensed or allowed to practice; and the court have also a continuing control over them, with power to revoke the licenses for unworthy practice or behavior.”

In the case of Levi S. Burr, an attorney, reported in 1 Wheeler’s Crim. Cases, 503, Judge Crauch has examined, with great learning and , ability, the whole ground upon which the authority of courts to strike attorneys from the roll, rests, and the'nature and extent of that authority. The question was distinctly presented, and argued by able counsel, whether the court was limited to the investigation of such charges as related to the defendant’s conduct as an attorney. In discussing this question, Judge Cranch puts the following inquiries: “Can it be said that if an attorney should be convicted of highway robbery, or larceny, or forging, or any other Jnfamous crime, or grossly dishonest conduct, the court must close its eyes — must refrain from inquiry ? Is not the respectability of the court, in some measure, connected with that of the bar? A regard to the purity of the administration of justice demands that the bar should be pure and honest, and, if possible, highly honorable.” Having found the defendant guilty of several charges, relating as well to his private as professional conduct, Burr was suspended.

I have been referrecl_to the case of James Stryker, (1 Wheeler’s Criminal Cases, p. 330), as containing doctrines adverse to the views I have expressed in this opinion. It is certainly true, if the conclusions of the recorder in that case be correct, that the authority of courts over ■attorneys, can only be exercised when the acts complained of relate to bis conduct as attorney, or where he has been guilty of a crime “ which would disqualify him from being a witness, upon oath.” The weight .to be given to this authority, must depend upon the strength of the ■reasoning by which it is supported. That reasoning I shall have occasion to examine in the progress of this opinion.

In the case of Smith v. The State of Tennessee, it was held to be good .cause for striking the name of an .attorney from the roll, that he had killed another person in a duel. 1 Yerger 228.

Without multiplying authorities in illustration of the principle I am seeking to establish, I propose now to apply those already cited to the question immediately before us. The allegation, rthat the defendant “is of notoriously bad character,” is, I think, too general. Specific acts should be charged, so as to give the respondent an opportunity of answering them. It would be unsafe to sustain a charge iu this general form, as a wide difference of opinion exists as to what constitutes a good or bad character. What one person may regard as virtuous, another may consider vicious.

The other charge, I do not "think Is obnoxious to this objection. It is certain and specific, and alleges, that the reputation of Mills for truth and veracity is so notoriously bad, that he is not to be believed under oath. If this charge be sustained, will it authorize the circuit court to suspend or revoke the license heretofore granted to the respondent ? It is not questioned, that if evidence to support such a charge had been adduced to the court when Mills presented his application for a license, that it would have been denied him. He would have been told, that a person whose reputation for truth and veracity was so bad, as that he would not be believed under oath,, was an unsafe depository of a power to act as a public attorney: that such a ¡rower could only be entrusted by courts to those who sustained “ a good moral character.” If this be so, is it consistent with reason or policy, to allow a person to retain & license-.who may have become infamous after it is granted ? The oath which he has taken, binding him to a faithful discharge of his duties, is no longer obligatory on his conscience: for a person, whose reputation is thus condemned, will not hesitate, when prompted either by his interests or his passions, to violate that oath.

If an attorney be guilty of the crime of perjury, courts do not hesifate to declare liis office forfeited: and this for the'reason, that no confidence is to be placed in his veracity. The fact being established by the verdict of a jury, that he has once committed perjury, he is no longer permitted to give evidence’in a court of justice — -all confidence in Ilfs’veracity is destroyed- — -the legal inference is, that having in a single instance stated an untruth while under the sanctions of an oath, he would, without any compunctions of conscience, repeat the offence.

Is an individual, whose conduct in life is such as to Warrant the general belief that he would commit the crime of perjury, entitled to any more confidence than the person who may have been legally convicted of that crime? The distinction between the supposed cases consists in this, that the unworthiness of one has been pronounced by the verdict of a jury, and that of the other by the concurrent testimony of those • who have been tbe daily witnesses of bis conduct: the infamy of one may have been established by false witnesses — the witnesses by which the infamy of the other is established are his acts, which cannot lie.

Again: Let me suppose the defendant put upon the1 stand as a witness. After rendering his testimony, a cloud of witnesses, composed of Ills immediate' neighbors, are next called to the stand, and all agree that his reputation for truth is so bad that they would not believe him under oath. Now, upon such testimony, a verdict that he is guilty of perjury cannot be pronounced against him, and yet the court would instruct tfre’juvy that bis testimony is unworthy of belief, unless corroborated by that of other witnesses whose characters are unimpeached." And, unless thus corroborated, be stands upon- no better moral footing than the con-victed felon.

If these views be just, the inference seems irresistible, that if tbe respondent is such as is described in the last charge, a, power resides in the court of withdrawing the license or permission heretofore granted to him. I perceive no hardship in subjecting the defendant to a trial on this charge. It calls upon him to defend his reputation against a charge which, may be easily repelled, if that reputation stands fiiir in the’ community in which he dwells. It is often more difficult to defend one’s self against particular charges of falsehood or of perjury, than against a general charge- like that preferred against the respondent. *

A man who hears an honest name is always ready to repel an assault upon his general character. ‘ No argument in favor of the respondent can be deduced from the fact that other public officers are not subjected to removal,, except for official misconduct. In their cases a remedy is provided: their appointments are for limited periods, when their conduct is subjected to the scrutiny of the appointing power. But in the case of attorneys, their right to exercise the functions of their office continues during good behaviour.

I do not wish to he understood as affirming, that for every moral delinquency, the court would be authorized to revoke the license of an attorney. In the exercise of a sound discretion, the court should only entertain such as are in their nature gross, and unfit a person for an honest discharge of the trust reposed in him.

In the case before- us, I am of the opinion that,, if the charge I have been considering is made out by proof, that the respondent has forfeited, his office; that if fully established, it necessarily implies a baseness of character which disqualifies him for discharging the duties of his office with that faithfulness and integrity so necessary to preserve the honor of the profession from reproach, the public from imposition, and the administration of justice from impurity.

Green, J.,

dissented, as to the sufficiency of’ the second charge, deeming it too general; but in all' other respects' concurred in the opin-. ion of the court.


source: Caselaw Access Project

author: Wing, J.

license: Public Domain

text:
    Campau et al v. Chene et al.
    In equity, the statute of limitations, or objections in analogy to it upon the ground of. laches, may be taken advantage of by demurrer; ancl if there bo any ground of exception within the statute to prevent the bar, or ground to rebut the presumption arising from length of time, it should he stated in the bill.
    The rule extends to a bare equity against an equity, and is not limited to the on- . forcement of an equity against the legal estate.

      A conveyed a farm to B. his son-in-law, in consideration of $2,500. By the sam instrument, B boúnd himself to pay the debts of A, especially a- mortgage on the farm, and to account to A for the balance of the $2,500, after paying the debts; and B promised and obligated himself, bésides the payment of the $2,500, to board, lodge and clothe A, in health and in sickness, during his natural life, <fcc/, and A reserved to himself the right to live with B, and for the security of the payment of $2,500, and the fulfilling of the “clauses and conditions” abovo stated, B was not to give, alien, exchange or sell the farm without the permission of A, and the farm, was to stand hypothecated till the payment in full of the $2,500, when A was “ to release the’ present mortgage in a legal manner.-” Held,

    1. That the deed was neither a deed of trust, nor upon condition; but that it was an absolute deed, incorporating within it a lien, in the nature of a mortgage, to the grantor for the $2,500 consideration money.
    2. That the undertakings on the part of the vendee were personal covenants, and not conditions of the grant.
    8. That if the covenant against alienation could be considered «a condition, it was void/
    Case iri chancery,- reserved, from Wayne Circuit Couirt. A bill was filed in that court on 22d November, 1847, by a part of the heirs at law of John Baptiste Campau, deceased, against other heirs of said Campau, and the' devisee of Gabriel Chene, deceased, to set aside the following deed from Canqpau to Chene, dated 27th of May, A. D. 1800:
    “ Before the undersigned witnesses, was present Jean Baptiste Campau, of the township of Ilamtramck, county of Wayne, in the territory of Michigan, who acknowledges to have' sold, conveyed and made over, and by these presents do sell, convey and make over, from this day and for ever, to Gabriel Chene alias Cahousa, his' son-in-law, the present accepting purchaser, for himself, his heirs and assigns, the farm or land on which the said Jean Baptiste Campau now lives, together with all the moveables, consisting in the articles mentioned and specified in the annexed inventory to these presents; also all the buildings thereon erected, seeds in the earth, &c. In a word, all that is now to be found on said farm, without excepting nor reserving any thing whatsoever, for and in consideration of the sum of one thousand pounds, New York currency, equal in value to two thousand five hundred dollars, legal currency of the United States: that the said Gabriel Chene alias Cahousa, promises and obligates himself to pay in the manner following, viz :■ The said Gabriel binds himself to pay the debts of the said Jean Bte. Campau, especially a mortgage that the Baby family holds against said farm; and when the debts are paid, if any balance remain, the same shall be paid to said Jean Bte. Campau, or to his heirs, by giving to said Gabriel a good and lawful discharge therefor; it being well understood that said Gabriel is from this time answerable for these debts; and that, should he neglect to discharge them immediately, he will be bound to pay all damages and interest accruing therefrom. The said Gabriel promises and obligates himself, besides the payment of the said one thousand pounds, to board, lodge and clothe the said Jean Baptiste Campau, in health and in sickness, in a reasonable and decent manner during his natural life, and after his decease to cause him to be buried decently, and have the usual prayers of the church said.
    “ The said Jean Bte. Campau reserves to himself the right to live with the said Gabriel Chene, his son-in-law, or with any other person he may please; and, in the latter case, the said Gabriel shall be bound to pay him a reasonable board, and continue to furnish him the necessary and proper clothing, as well as to have him attended to in case of sickness; as long as the said Jean Ble. Campau shall live with the said Gabriel, his son-in-law, he will, in no wise, be obliged to work, and if he does it, it will be of his own will and accord.
    “ The said Gabriel further promises and obligates himself to keep, at his house, Arehange Campau, to board and clothe her decently, until she has reached her majórity — that is, eighteen years complete.
    “ And for the security of the said payment of one thousand pounds, in the manner above mentioned, and for the fulfilling of the clauses and conditions here above expressed, the said Gabriel connot give, alienate, exchange or sell the said farm or land, nor all the moveable articles mentioned and specified in the said inventory, without the permission or assent of the said Jean Bte. Campau, aud the whole shall remain and stand hypothecated till the payment in full of said one thousand pounds.
    “ The said, farm or land is the same that said Jean Bte. Campau had from his father and mother, and forms a portion of the nine árpente of the first concession of the governor and intendant of New France and of Louisiana. It consists in three árpente in front by eighty in depth, bounded on the west south-west by the farm of Jacque Campau, and on the east north-east by the farm of Simon Campau.
    “It is well understood, stipulated and agreed between the parties, that the said Gabriel Chene assumes only to pay the debts contracted to this day by the said Jean Bte. Campau, not exceeding the said sum of one thousand pounds, New York currency, and that he will not he bound to pay any debts that the said Jean Bte. Campan may contract after the date of these presents. That the said Gabriel Chene, in paying the above debts, shall take receipts from the different creditors, and that said Jean Bte. Campau will receive the said acquittances in payment of the above sum of one thousand pounds; and that when the said payment is made,, in full, the said Jean Bte. Campau, his heirs or assigns, shall be bound to appear at the office of the register of the county, to release the present, mortgage in a legal manner.

      “ Done and passed at Detroit, &c..”
    The bill stated the farm in question descended to John Bte. Campan from his ancestors, and was by his ancestors rightfully obtained by grant from the constituted authorities of La Nouvelle France and Louisiana (so called), in times of great antiquity, and when this country appertained to and formed a part of said government: that being old and infirm, he resolved to sell and transfer the farm and his personal property to some member of his family who would, in consideration thereof, jsay the debts he was owing, not exceeding one thousand pounds, New York currency (equal to §2,500), and maintain and support him during life: that on 27th May, 1800, the aforesaid deed was made and entered into between him and Gabriel Chene, his son-in-law, who took possession of the property, and who continued to occupy the farm until his death, when 1ns son Gabriel Chene, one of the defendants, took possession of it as devisee under h.'s father’s will, and still continued to occupy it: that John Bte. Campau died on 18th April, A. D. 1819, and Gabriel Chene, senior, on the 1st February, 1831; and that the latter did not pay the debts of the former, or furnish him in his life-time suitable clothing, lodging and board, but wholly failed to comply with the terms and provisions of said deed of conveyance: that in 1821, after the death of John. Bte. Campau, Chene, senior, proceeded to prosecute his claim to the farm before the commissioners of the United States, acting under and by virtue of an act of Congress, entitled “ An act to revive the powers of the commissioners for ascertaining and deciding on claims to land in the district of Detroit, and for settling the claims to lands at Green Bay and Prairie du Cliien, in the territory of Michigan,” approved May 11, A D. 1820, and that the same was confirmed to the heirs of said John Bte. Campau, to be held by them in fee, subject to all legal and equitable claims thereto of the said Gabriel Chene, senior: that the proceedings of the commissioners were afterwards confirmed by Congress, and that the commissioner of the General Land Office had decided not to issue a patent until the rights and equities of the complainants and defendants should be judicially settled. The bill prayed the deed to Chene, senior, might be canceled, the rights of the complainants be declared and defined, and for an account of rents and profits.
    The defendants demurred for want of equity; and also because it appeared by the bill that Chene, senior, and those claiming title under him, had been in the exclusive and uninterrupted possession of the farm from the year 1800 down to the time of filing the bill,
    Fraser, for the demurrer.
    Backus, contra.
   By the court,

Wing, J.

The case made by the bill is based upon the supposition that the deed from Campau to Chene is a deed of trust, or a deed upon conditions, and in consequence of the failure of Chene to perform the conditions, it ceased to be operative and binding upon Campau. It is alleged, in the bill, that immediately after the execution of the deed, Chene entered into the possession of the farm, and he and his descendants have continued in possession ever since. It is not alleged, nor does it appear, that Campau or his heirs ever commenced any legal or equitable proceedings to take advantage of the alleged forfeiture, or that they have attempted to enter for conditions broken.

Campau died in 1819, and Chene died in 1831. It is, however, alleged that there was almost an entire failure on the part of Chene to comply with what are called conditions in the deed; and this is referred to a period immediately after its execution. And now, after the lapse of forty seven years, this bill is filed for the purpose of having the deed set aside, and to have the equities of the heirs of Campau and Chene settled.

The demurrer to the bill,- as is claimed by complainant’s counsel, admits all the facts well stated in the record. Lube’s Equity, 286; Har. Ch. R. 8; but the conclusions of law are not admitted. 1 Ves. Jur. 78.

One of the 'objections urged by defendants under the demurrer is, lapse of time.

It will be found, upon examination of the authorities, that the principles by which courts of equity have been governed in cases where lapse of time has been urged as a defence -to a bill, were settled and clearly defined at an early period in the history of equity jn-oceedings. Lord Camden, in declaring his judgment in the case of Smith v. Clay, 3 Brown’s Ch. R. 699, in note, lays down the doctrine thus: “ A court of equity, which is ever active in relief against conseieace or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, and acquiesced a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the court is passive, and does nothing.” He further remarks, that “ laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court. But as the .court has no legislative authority, it could not properly define the time of bar by a positive rule, to an hour, a minute or a year: it was governed by circumstances. But, as often as parliament had limited the time of actions and remedies to a certain period, in legal proceedings, the court of chancery adopted that rule and applied it to similar cases in equity. For where the legislature had fixed the time at law, it would have been preposterous for equity (which by its own proper authority always maintained a limitation,) to countenance laches beyond tbe/period that law had been confined to by parliament; and therefore, in all cases where the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar.”

la the case of Bond v. Hopkins, 1 Sch. and Lef. 429, Lord Redesdale maintains the same doctrine, and held, that if the equitable title be not sued upon within the time within which a legal title of the same nature ought to be sued upon, to prevent the bar created by the statute, the court, acting by analogy to the statute, will not relieve. The same judge, in Hovenden v. Lord Annesley, 2 Sch. and Lef. 632, again sustains the same doctrine in all its length and breadth.

In the case of Miller v. Mitchell, 1 Bailey’s Ch. R. 437, which was a suit by a creditor against the pecuniary legatees of his debtor, to refund their legacies for payment of his demand, on the ground of the insolvency of the executor, it was held, the suit was barred by lapse of time, in'analogy to the statute of limitations; and the court say, they will not only apply the statute of limitations in cases of mere equitable titles’and demands, but in -cases of purely equitable cognizance would also give effect to lapse of time as a bar in analogy to the statute.”

In 1 Hill Ch. R. 213, Prescott v. Hubbell et al., the court say, lapse of time in equity, in analogy to the statute, is a bar to relief for fraud. 3 P. Will. 143.

In Beckford v. Wade, 17 Ves. 86, the court admit of no exceptions to do away with the operation of lapse of time, but such as are mentioned in the statute of limitations; and this is accomplished by their own rules, independent of the statute, which only furnishes a convenient measure for the length of time that ought to operate as a bar in equity of any demand.

This doctrine was again fully considered and maintained in the case of Cholmondeley v. Lord Clinton, 2 Jac. and Walker, 137, 150, on appeal to the House of Lords. All the cases were reviewed, and Lords Redesdale and Eldon affirmed this doctrine.

In the case of Winchcomb v. Hall, 1 Ch. Ca. 39, 40, the court refused, after twenty years, to relieve against a deed fraudulently obtained of the father of plaintiff.

In the case of Chalmers v. Bradley, 1 Jac. & Walker, 63, the Master of the Rolls says, calling- for accounts is always much discouraged after the death of the accounting party, if he lived long enough to have accounted in his life-time. In that case, the person seeking an account had laid by nineteen years after she came of age, and prayed for accounts against representatives in the third degree. In this last case the doctrine of presumptions in courts of chancery is fully considered. In the present case, -.Campan lived nineteen years after the alleged breach of condition, and the litigation is now between heirs in the second degree.

But courts of equity will refuse relief, where no statute bar exists, on general principles, where a party has slept on his rights, and they have so held where the statute would not constitute a bar. 2 Jac. & Walker 138, 150; 1 McLean 164, 103; 2 id. 396; 10 Ohio R. 25, 26; 3 McLean 82; 2 Am. Ch. Dig. 108: 2 Story’s Eq. 735-6-7; 2 Sch. & Lef. 637-8; 9 Peters 416; 4 Dessaus. 91; 2 Ves. Jur. 11; 8 Ohio R. 40, 159; 1 Howard 193, 161; 1 Story’s R. 204; 2 Barbour’s R. 595; 17 Wendell 405; 20 id. 443: Har. Ch. R. 285; Story’s Eq. Pl. 389; 2 Sumner 212; 10 Wheaton 152.

But it is insisted, that stale demands not recognized in a court of chancery are where the complainant seeks to enforce an equity against the legal estate of a defendant, not where the complainant, having the basis of a legal title, seeks to-have the equity of the defendant declared: that the rule is not applicable in the case of a bare equity against an equity. But no eases are cited which show that the rule has such limitation.

The claimants assume that they have the basis of a legal title in the confirmation of the board of commissioners of private land claims. On the face of their bill they assert that Campau the elder had a legal title, derived from the French- government, which he "Conveyed to Chene. True, they say it was a deed of trust, or a deed upon condition. Still, the legal title would pass to Chene, if this was true, and thus have invested him with not only the basis of title, but the actual legal title. The act of congress which conferred upon the commissioners their powers, would not authorize them to divest this title and give it to another, but only to recognize and confirm it. Under the law and the treaty, they could not do otherwise, if claim was made and the title produced before them. But complainants’ counsel assumed, in the argument of this cause, that Campau never had such legal title, and that all the right either party-could have, was the right to claim under'the act of congress a donation from the government, and that this right was a bare equity.

It may not be necessary in this place to discuss the nature of the titles by which the French settlers in this country held their lands. The several acts of congress certainly recognized a title to something connected with the land, as passing by deed, previous to a patent from the United States, in cases where no grant was shown from any government: for confirmations were made to individuals upon proof of cultivation and possession of others, the right to which passed by deed to claimant, and was perpetuated by him; and whoever derived that kind of title by deed from others which the government recognized as forming tke basis; or kr part tlie basis of their grant, would have the basis of a legal title.

In this case, whether Chene traced his title from the French government through Campan, or had a valid claim to title under the law, founded upon the occupation of Campau and himself, he had the basis of title. The question, then, was, whether the deed from Campau was an absolute deed. The proceedings of the commissioners were referred to in the course of the argument, and upon examination of the decision of the- majority of the hoard, it appears they felt doubts as to their au-' thority to confirm the farm to Chene, because the claim was made by Chene in the name of Campau, though to his own use. They appear also to have doubted (at the least one of them did) what was the precise character of the deed from Campau to Chene, and they’express their conviction that their hoard was not organized with a view to the determination of questions of the character presented: they therefore' confirm the claim to “ the heirs of Campau, subject to the just, legal and equitable claims of Chene.”

It is true, the only claim ever made was- made in the name of Campau, but by Chene, and so far as the ferm Was concerned, it was so* claimed to Chene’s use, and this probably arose from considerations not now known, for the claim embraced lands to which Chene never pretended to have a title. Had the commissioners understood the deed to be an unconditional deed, it is highly probable there would have been no difficulty in confirming the farm to Chene. Therefore, under the confirmation, the person having by it the basis of legal title is dependent upon the construction which may he put upon the deed.

But assuming that this is a ease of a hare equity against an equity, when did the equities of the parties arise and acquire a definite character, if ever ? If we assume whatjs substantially asserted in the hill, we say it arose immediately after the execution of the deed. But if we assume that it could not arise until there was a legal right upon which it was founded, then these equities arose so soon as the first act of congress was passed authorizing a confirmation of title to those who themselves, or by those through whom they claimed title, had continued to occupy and cultivate lands from 1796 to 1807: for upon proof of continued oconpation and cultivation according to the statute, the legal right to a confirmation was perfect under the law — the commissioners could not choose but confirm such claim. It was as perfect as it is now, and as it has been since the confirmation: for the legal title', strictly speaking, is still in the government. The confirmation is an advance in the stage towards a title, but it is still one step short of a. title.

Then counting from 1809, thirty-eight.years elapsed prior to the commencement of this suit,'and from the confirmation in 1828, upwards of twenty-five years had elapsed. If there is any limitation in analogy to the statute of limitations of this state, this suit is barred, and the same result would follow upon the principles of a court of equity applicable to this case, independent of the statute. It is a stale claim: the grantor in the deed lived nineteen years after a breach in the supposed conditions of the deed is alleged to have occurred: and for aught that appears in the hill, there was not during that period any obstruction to the enforcement of his rights or equities as against Chene. In the mean time, and from 1800, Chene and his descendants have1 been in the quiet possession of the farm, and claimed and held it as their property in fee and have in no wise recognized any right of Campau or his heirs in the same-=-on the contrary, the elder Chene devised it in fee' to his: son.

All the reasons which could operate in any case to prevent a court entertaining a bill to recover a stale demand,- exist in full force in this case. The testimony taken by the land commissioners, shows that the matters to be proved occurred upwards of forty-five years ago. And Very many of the witnesses are dead, as well as the parties who could properly superintend the' investigation of the truth of the matters alleged.- The complainants and their ancestor have slept on their rights, whatever they may have beenhave acquiesced a great length of time, and have shown no diligence.

We now turn to an examination of the statutes of limitations of this state, so far as they have a hearing upon this question.

By the statute of 1820 (which was the first), Laws of 1820, p. 245, sec. 6, all real and possessory actions are limited to twenty years. It is declared, that “ no persons having right or title of entry into houses, lands, tenements, or hereditaments, shall hereafter thereinto enter, but within twenty years next after such right of entry shall accrue, or have accrued.” The statute of the 5th of November, 1829, provides, that “no writ of right or other real action, no action of ejectment, or other possessory action of whatsoever name or nature, shall hereafter be sued, prosecuted or maintained for the recovery of any lands, tenements or hereditaments, if the cause of action has now accrued, unless the samo be brought within ten years after the passing of this act, any law, usage or custom to the contrary notwithstanding.” Laws of 1833, p>. 40S, see. 1. The laws of 1838 on this subject, are prospective, except so far as the former statutes are declared to bo the governing rule as to past cases. The statutes of 1820 and 1829 furnish the rule governing all cases accruing under them. This is the construction which has been put upon the act of 1838, in the case of Lastley v. Cramer, 2 Doug. Mich. R. 307; and see the case of Joy v. Thompson, 1 Doug. Mich. R. 373.

The defendants have sought to take advantage of lapse of time by demurrer: and it seems now to be conceded as quite dear, that the statute of limitations or objections in analogy to it, upon the ground of laches, may he taken advantage of by way of demurrer. If the complainant has any ground of exception within the statute to prevent the bar, or ground to rebut the presumption arising from length of time, then the bill should state it, and it would not bo demurrable. Hovenden v. Ld. Annesley, 2 Sch. & Lef. 637-8; Foster v. Hodgson, 19 Ves. 180; 12 Peters 686; Hoar v. Peck, 6 Simmons 51; 7 Paige 195; Story’s Eq. Pl., secs. 503, n. 4, 484, 571; Har. Oh. R. 279.

If a complainant merely states a claim founded on such a distance of time as that the court upon the analogy it has adopted with respect to the statute of limitations will refuse to assist, he may then he considered as having stated himself out of court, and he may be told that if any peculiar circumstances existed in his case, which would have entitled him to relief, he ought to have brought them forward uj>on the record. See note to Bro. Ch. R. 529. In this case, no facts are stated which account for the delay, or which bring the case within any of the exceptions of the statute, or which rehut the presumption arising from length of time.

With a view to settle all the points fully presented by this case, we will now proceed to an examination of the deed, to ascertain, if possible, its true character. Is it a deed of trust, or a deed upon condition ? No question is made as to the instrument being a deed. It has every requisite as to parties, consideration, voids of grant, &c., and it is executed -with all the solemnities requisite to make it a good and valid deed. After stating the names of the grantor and grantee, we have the granting clause; then the description of the land and personal property granted; and next the consideration, which is stated to he “ one thousand pounds New York currency,” equal in value to two thousand five hundred dolíais, legal currency of the United States; and the deed provides:

1. That the said Gabriel Chene, alias Cahousa, promises and obliges himself to pay in manner following, viz: Chene binds himself to pay the debts of Campau, and especially Baby’s mortgage on said farm; and if there is any balance, it is to be paid to Campan, he giving a good and lawful discharge therefor.

2. It is then stated: it being well understood that said Gabriel is from this time answerable for these debts; and that, should he neglect to discharge them immediately, he ’will be bound to pay all damages and interest accruing therefrom.

3. The next provision is, that said Gabriel promises and obligates himself, besides the payment of the said one thousand pounds, to board, lodge and clothe the said Jean Bte. Campau during his life.

4. Then Campau reserves to himself the right to live with Chene or any other person he may please; in the latter case, Chene shall bo bound to pay his board, clothe him, and have him attended when sick; and as long as Campau lives with Chene, he is not to he obliged to work, and if he works, it will he of his own will and accord.

5. Chene next promises and obligates himself to keep at his house Archange Campau, to board aud clothe her decently, until she has reached her majority; that is, eighteen years complete.

6. “ And for the security of the payment of the said one thousand pounds, in the manner above mentioned, and for the fulfilling of the clauses and conditions hero above expressed,” Chene is prohibited from alienating, exchanging, or selling the farm or personal property without Campau’s consent, and the whole is to remain and stand hypothecated till the payment in full of said one thousand pounds.

A There is a further statement of their understanding that Chene is only to pay the debts of Campau then due, not exceeding the said sum of one thousand pounds: in paying debts he is to take receipts, which are to be received in payment of tlie one thousand pounds, and when all is paid, Campau or his heirs are bound to appear at the office of the register of the county, and release the present mortgage in a legal manner.”

It is difficult to perceive upon what clause the complainant can rely as furnishing a condition or evidence that it was intended the deed should depend upon a condition either subsequent or precedent. All and each of these different clauses can only be construed as personal covenants; there is an entire absence of any words creating a condition. By the first clause, there is an express covenant that the grantee will pay the §2,500 in a particular manner. The grantor takes this covenant or personal obligation in lieu of money in hand. Chene, by the second clause, assumes to be answerable for the debts of Campau, and if he fails to pay immediately, he assumes to be answerable for all damages and interest accruing therefrom; and this is taken in lieu of a condition, upon breach of which the grantor might re-enter. Why should Chene assume the debts from the time of receiving the deed, and agree to pay damages and interest if he did not pay ? and why are they agreed to be his debts, if his title was to depend upon his first paying the debts of Campau, in the manner and to the extent provided ? It is not provided, that in the event of his failing to pay, he shall forfeit his title, or that the grantor might re-enter.

The third provision (for the support of Campau) is not stated to be any part of the consideration of the deed. It is a simple engagement or covenant of Chene to support Campau, <fcc., besides the payment of the money. The undertaking may have grown out of the same transaction, but the 'deed does not make it a condition.

All these promises and covenants are made by Chene; they are not • imposed as the terms and as the language of the grantor. To make them operate as a condition, they must not depend upon another sentence; and the words must be those of the grantor, and compulsory to enforce the grantee to do some act. 2 Bac. Abr. 280; 15 Eng. C. L. Rep. 227; 2 Jacobs’ Law Dic. 2; 2 Coke’s Rep. 70; Sheppard’s Touchstone, 119.

In the fourth provision, Campau reserves to himself the right to live with Chene, &c. In this there is no condition. The reservation is .only of the privilege to live with Chene. It is no restriction to the estate: it is a covenant, a mere personal right. This sentence contains the nearest approach to a condition or qualification that is to be found in the deed. The manner he was to be at liberty to employ his time, shows the matter rested in covenant; and might be coerced in a court of law. The same may be said of the succeeding provision, by which Chene covenants to support Archange.

But let us apply the rules furnished by the books, and ascertain if they are such that, when applied to the construction of this deed, they will lead to a different conclusion. No precise technical words are necessary to make a condition. It is, however, necessary that it should appear from the face of the deed, to have been the intention of .the grantor to create a condition, and whether the words amount to a condition, or a limitation, or a covenant, depends upon the construction of the contract. 4 Kent’s Com. 132; 2 Caine’s R. 352; Willes’ R. 156.

The distinctions on this subject are extremely subtle and artificial, and the construction of a deed, as to its operation and effect, will after all depend less upon artificial rules than upon the application of good sense and sound equity to the object and spirit of the contract. 4 Kent’s Com. 132.

The words usually emjDloyed in creating a condition, are, “ upon condition;” and Lord Coke says this is the most appropriate expression, or the words may be “ so that,” “ provided,” “ if it shall happen.:” Apt words of limitation are “ while,” “ so long as,” “ until,” “ during,” &e. 4 Kent’s Com. 133, note a.

A condition, then, is a qualification, or restriction annexed to a conveyance of land, whereby it is provided, that in case a particular event does or does not happen, or in case the grantor or grantee does or omits to do, a particular act, an estate shall commence, be enlarged or defeated. 2 Cruise’s Digt. 2.

In case of doubt, all intendments are made against the grantor, and a condition which destroys or defeats an estate or grant, is to be construed strictly against those for whose benefit it is intended. 4 Kent’s Com. 125; 2 Bac. Abr. 286; 2 Cruise’s Digt. 27; 29 Eng. C. L. Rep. 442; 1 Sumner 440; 17 Johnson’s Rep. 66; 8 N. H. Rep. 477; 21 Eng. C. L. Rep. 398; 42 id. 693. And if it be doubtful whether a clause in a deed be a covenant or a condition, the court will incline against the latter construction. 4 Kent’s Com. 127. To create a condition in a deed, a clause of re-entry, or a provision that the estate shall cease and be void, is required. 3 Com. Digt. 87, 88. Not so as to a lease, 4 Kent’s Com. 123, if the estate is declared to be void upon non performance, or if in such case the lessor may re-enter. 8 Cowen 295; 1 Bac. Abr. 280, 281.

But words may amount to a condition when, without such construction, the party would have no remedy, but not when there are express covenants to which recourse may be had. 2 Bac. Abr. 287. Paying and yielding rent held not a condition. 2 Bac. Abr. 287, 290; 3 Com. Digt. 88; 4 Cruise’s Digt. 375; Sheppard's Touchstone, 118, 119; 9 Eng. C. L. Rep. 296; 27 id. 129.

Applying these rules to these provisions, and they seem to make it more 'certain that they do not separately or collectively create a condition, but that they are covenants.

But the sixth provision, in my opinion, goes far to settle the proper construction to be put upon this deed. The very circumstance of setting forth the lien shows it was never intended to create a conditional estate, for if it was intended to be a conditional estate, the grantor would not have made such a provision; ho would have provided a clause of re-entry; and it is to be remarked, that the lien has refer-en ce entirely to the consideration, and not to the support of Campau and his daughter. All the covenants are the language of the grantee» except one; and even if the last covenant be considered as the language of both parties, it shows that a mortgage only was intended by both parties, and in case of payment, Campau was bound to give a full receipt, and to release the lien in the register’s office. This would not have been necessary, if payment and fulfilment was only required to perfect the deed. If the covenant against alienation could be considered a condition, it would be. void. For a condition annexed to a conveyance in fee or devise, that the purchaser or devisee should not alien, is unlawful and void. 4 Kent’s Com. 126.

In the case of Lessee of Foster v. Dennison, 9 Ohio R. 121, the court was required to construe an instrument by which the parties acknowledged payment of the consideration, and obliging the grantor to forever quit claim land; sealed, acknowledged, recorded, and possession released to the grantor, and held for thirty-five years; and the court held it to be a conveyance; that this was the manifest intent of the parties, and the law would endeavour so to interpret the proceedings of the parties as to work this effect.

The views we have expressed in regard to the covenants in the deed, are illustrated and fully supported by the case of Pownal v. Taylor, decided in the Virginia court of appeals, 10 Leigh’s Rep. 179. The owner of a tract of land conveyed it to his nephew in fee, subject to the maintenance and support of the grantor and his sister. The deed contained a covenant by the grantee for such maintenance and support, and declared that the land was to he held therefor, into whose hands soever it might come. But the deed did not state that it was upon condition that such maintenance and support should be furnished, nor was there any clause providing for a re-entry by the grantor. Held, the provision for maintenance and support constituted merely a charge upon the estate, which might be enforced in equity- — not a condition for breach of which the grantor could re-enter, as of his former legal estate. In that, as well as in this case, there was a provision for a third person, and it was held, that the third person (the sister) instantly acquired a beneficial interest, which she might have enforced by bill in equity. But if the provision was a condition then for the breach, the grantor might re-enter, defeat the estate, reinvest himself with his original title, and annihilate the vested interest which he had by his own solemn act conferred upon his sister. This cannot be, unless the grantor had expressly reserved the right to re-enter upon failure of the grantee to fulfil the purposes of the grant. These last remarks apply with full force to the provision for Archange in this deed. See 18 Pick. 248.

The mutual covenants in this case go only to a part of the consideration , and a breach of that part may be paid for in damages. In such case it has been held, they are to be regarded as independent. 7 John. R. 244; 1 Ohio 154; 10 Pick. 507; 3 Peters 346; 1 H. Black. 273; 5 Wendell 496; — -particularly when they regard real estate, restrictions on which are odious in law. Sheppard’s Touchstone 133.

We are therefore of the opinion upon the question of lapse of time, that complainants’ bill cannot be sustained: and also, upon the question raised upon the deed, we are of the opinion that it is neither a deed of trust, nor a deed upon condition, but that it is an absolute deed, incorporating in it a lien, in the nature of a mortgage, to the grantor for the consideration money, &c.

Let it be so certified to the circuit court for Wayne county.

Certified accordingly.


author: Wins, J.

text:
    Campau v. Gillett.
    A license was granted to an administratrix to sell real estate for the payment of debts, under an act of the late territory of Michigan, entitled an act directing the settlement of the estates’ of persons deceased, and for the conveyance of feal estate in certain oa3es, adopted 27th July, 1818. The license was granted on the 12th January, 1827, but the sale did not take place until the 7th July, 1831. The sale was held to be void, as more than four years had elapsed between the ganting of. the license and the sale — the statute of limitations then in force, barring all claims against the estate after four years.
    "Where a license was granted by a county court to an administratrix to sell real estate, and after the granting of the license and before the sale, the law giving the court jurisdiction was repealed, the sale was held to be void — the repeal of the law being a revocation of the license.
    Case reserved from Wayne Circuit Court. Ejectment by Henry Campau, son and beir at law of Henry Campau, deceased. The defence was a deed of the premises in controversy, dated 8th August, 1831, from the administratrix on the estate of Campau, deceased, to Peter J. Desnoyer, whose title the defendant held. Campau died in 1822, and his widow took out letters of administration on his estate the same year, or the year following, and, on the 12th January, 1827, the county court of Wayne county, on her application, licensed her, as administratrix on the estate, to sell the premises in question. On the 8th July, 1831, having been regularly advertised, they were sold at public auction, and purchased by Desnoyer, to whom they were conveyed by the administratrix. The act giving the county court jurisdiction to grant licenses in such cases, entitled “ An act directing the settlement of the estates of persons deceased, and for the conveyance of real estate in certain cases,” adopted 27th July, 1818, was repealed in 1829, previous to the sale. Ses. L. 1829, p. 86.

      Davidson, for plaintiff.

      Backus, for defendant.
   By the court,

Wins, J.

It is objected that the statute of limitations barred any claim which might have existed against the estate of the deceased, and therefore there could be no legal sale.

The order of sale bears date the 12th day of January, 1827. The day of sale was the 7th July, 1831. Four years and six months, less five days, elapsed from the date of the order to the day of sale. Only thirty days’ advertisement of sale was required, and probably a longer notice was not given; if so, more than four years had elapsed from the date of the order to the time of giving notice.

By the law in force from the time the order was granted to the time of sale, the time limited to bring an action against an executor or administrator was four years: after that period the suit was barred. Laws of 1820, p. 60, sec. 3. Our probate and limitation laws were adopted from those of Massachusetts, and with them, according to a familiar rule, we adopted the construction put upon those laws by the courts of that state.

In the case of Wellman v. Lawrence, 15 Mass. 310, an administrator presented to the court of probate a list of debts, including his own, on the 10th January, 1804, and he was duly licensed by the court of common pleas, March term, 1804, to sell so much of the real estate of his intestate as should be sufficient to pay his just debts. A sale was advertised, but on'the day of sale, the land, being offered, was not sold, and the auction was closed without adjournment. On the 16th August, 1816, the administrator sold at public auction, after due notice, &c. The administrator never paid any of the debts due from the estate, and he had never been sued, and all the debts against the estate were on simple contract.

The court held the administrator had no authority to make the sale under the license at the time he sold. At the time of his obtaining the license, there were claims against the estate, but at the time he made the sale, no such demands existed. The court say, “ As suits against them (administrators) are by statute to be commenced within four years, there can be no reason for the exercise of the authority given to the courts for licensing the sale of real estate for the payment of debts, after that term has expired.” And again: “ We should not then have licensed this administrator, at the time he made the sale, and there is no ground on which, the sale can be justified, which would not have rendered it equally fitting to have granted a license at that time.” See also 15 Mass. 58; 16 id. 172; 13 id. 164, 165; 2 Pickering, 2d ed. 509, n. 2.

In the case of Heath v. Wells, 5 Pick. 140, it was held, “ A license granted to an administrator to sell real estate of the deceased, to pay a debt barred by the statute of limitations respecting executors and administrators, is void.” In this case the court remark, upon the conclusive effect of a license — the court having jurisdiction — and say: “The court granting license to the administrator had no jurisdiction of the subject matter; for if the administrator had no right to sell, the estate not being assets in his hands, the court had no cognizance of the case, and the license was merely void. It was not a case for deliberation or decision. The license could give no authority to the administrator, who might as well have been licensed to sell lands of a stranger. To make an administrator’s sale valid, the right of the administrator to sell, and the license of the court, must coincide.”

In 8 Greenleaf, 220, the court held that “ a license to sell real estate, for the payment of debts, would not be granted where the claims appear to be barred by the statute of limitations.”

In this case, and in the cases in Massachusetts, referred to above, and the authorities therein referred to, the decisions appear to be put upion the ground that administrators have no power over the lands of the intestate, except there shall be a deficiency of personal property belonging to the deceased. At common law, the real estate descends to the heir of the deceased; and without the happening of that contingency, the right of the administrator to ask for a license, or of the court to grant it, did not exist. The statute of limitations was intended for the benefit of the heirs, that they might be quieted by a speedy settlement of estates in which they should be interested. From the authorities cited, and the reasons given, we think the sale by the administrator in the case before us was void.

It is also insisted, that the order of the county court had spent its force before the day of actual sale, for the reason that the law under which it was granted, had been repealed, and all power in such matters was vested in judges of probate.

The law of 1320, from which the county court derived their power to grant the order, was unconditionally repealed by the law of 1829, Acts of Legis. Coun. 1829, j). 86, the first section of which declares, “ That the county courts of the respective counties in this territory lying east of Lake Michigan, shall not, hereafter, have jurisdiction of any civil matter in law or equity.” Jurisdiction in probate matters, and the power to grant license to sell real estate to pay the debts of intestates were by a law of the same year, given to the judges of probate in the’ respective counties.

To this objection it is answered, that the powers of the county court were spent when they had granted the order, and it was remitted to the probate court to be acted upon; that the repealing law does not affect any act done; that the county court was not annihilated, its criminal jurisdiction remained; and that under the law of 1820, the action of the administrator upon the order was not to be reported to the county court, but to the court of probate; that the order was in effect a judgment, a final proceeding in the county court.

So far as the interests of purchasers are concerned, the courts of Ohio and this st^ite have ever considered these orders of equal validity with judgments. If the court have jurisdiction of the matter, it has been held the purchaser need not look behind the order. 3 Ohio R. 251, 561-2; 4 id. 130, 131.

The law authorizes a sale, but, on a proper application, the court is to determine whether the facts submitted will, under the law, justify their making an order of sale. Without such order, the sale would be void. The order is the foundation of the power to sell. But without a law authorizing the sale, the order itself would be void. It would lay no foundation that would justify the execution of such power. Every order of court, to some extent, may be considered as a judgment; but it must have the character of a final judgment, or the consequences contended for by the defendant would not follow. By a final judgment, conflicting rights between parties are settled, and are made certain; and a party is entitled to receive that which he has recovered by a judgment, and this right cannot bo taken away. By the order the-administrator gains no personal rights, neither does he or the creditors lose any rights they gain by the order; the administrator is at liberty to sell, but whether he sells or not, does not concern him — he is only bound to the extent of the personal estate; and as to the creditor, he may enforce his claim by the agency of the administrate, or by a suit at latv; no right is settled by the order; — then how can the order-have the effect of a judgment? Under certain circumstances, the administrator has by the law the right to sell: but the power to say when these circumstances have arisen, is vested in the court, and it is only with the approbation of the court that this power — entrusted to him, not by the order of the court, but. by the law under which he acts — can be exercised.

The order of sale, say the court in the case of Ludlow’s Heirs v. Wade. 4 and 5 Ohio R. 503, is nothing- more than record evidence of the existence of the necessary facts to justify such a proceeding, and the assent on the part of the court that the administrator should exercise a power previously vested in him. It calls that power, which was before dormant, into life and activity. It follows, then, that a repeal of the law is a revocation of the power; and, after its revocation, a-sale made would be void: although during the existence of the statute, an order for such sale had been made. In fact, the right to sell depends both upon the existence of the law and of the order, and when either ceases to be in force, the right is gone. A repeal of the law would have an effect to rescind the order, equivalent to the effect which the reversal of a judgment would have upon that judgment; and, as after such reversal a sale would convey nothing, so after the repeal of the law would a sale made be void: while the law and the order are in force, a good title can be made; but not after one is repealed or the other rescinded.

In the case of the Bank of Hamilton v. Dudley’s Lessees, 2 Peters 523, the question decided in 4 and 5 Ohio B., above cited, was considered. The court say, “ this is a point on which we cannot doubt. The power to sell is not an independent power, to be exercised at discretion, when the exigency, in the opinion of the administrator, may require it; but is conferred by the court in a state of things prescribed by the law. The order of the court is a pre-requisite, indispensible to the very existence of the power; and if the law which authorized the court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but is the exercise of a legislative power which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the legislature.”

The cases of Davis’ Lessee v. Livingston, 6 Ohio R. 225, and Paine’s Lessee v. Skinner, 8 Ohio R. 162, maintain the same views. And so in 16 Ohio R. 573, Lessee of Perry v. Clarkson and others. The court, whilst they express their regret that administrators and purchasers should have acted upon a misapprehension of the law, and that mischiefs have resulted from such mistakes, say, they conceive that the court has pwt a right construction upon the statutes, and that it was not in their judicial power to remedy the evil. See 1 Hill 332; 10 Watts’ R. 351.

It will be perceived that these decisions cover the point made in this case; and it is not perceived that it could make any difference whether the power to grant the license to sell was wholly annihilated or transferred to another court, as in either case the order could derive no force from the court that granted it; and the decisions cited do not attach any importance to the consideration that administrators were or were not required to report their procet dings to the court granting the order. We therefore think the sale was void for this reason also.

Certified accordingly.


author: Miles, J.

text:
    Paddack v. Pardee.
    In giving a construction to an instrument, the whole of it must be examined, and every part of it bo taken into consideration ; and the situation of the parties and the subject matter of the transaction may also be taken into consideration.
    A deed described the premises oonveyed as a certain piece .or parcel of land situate in out lot No. 10, in the village of Pontiac, to comprise lots Nos. 1 and 9, on the west part of the subdivision of the aforesaid lot No. 10, the same being 112 feet wide on the Mt. Clemens road to the centre of the road leading to the woolen factory, and extending in length to the centre of the Clinton river, with the privilege of fifty square inches of water, to be applied five feet from the surface of the Clinton river, opposite the place of taking the water from the race — to bo subjoct at all times and forever to the woolen factory, and one run of stones for flouring, after suck mill sliall be erected — tlie dam and race to be forever put in. repair by said party of the first part — the said two lots being a strip cf land off from the south westerly side of said out lot- No. 10, and being designated on a plat of the subdivision of said out lot, this day recorded. It was held,
    1. That the plat of the subdivision of lot No. 10 might be referred to for the purpose of giving a construction to the grant.
    2. It appearing from the plat that lots 1 and 9 wore separated by a strip of land marked “race and alley,” and that lot No. 1 lay northerly of it, and between it and the Mt. Clemens road, and lot No. 9 lay southerly of it, and between it and the Clinton river, it was held that the fee in said strip of land did not pass by the deed.
    8. That the grantee could not draw the -water through an orifice of fifty square inches into a flume or reservoir upon his own premises, and then apply it by a larger discharge than fifty square inches; thereby enabling him, a portion of every twenty four hours, to drive machinery requiring more than fifty square inches of water to propel it.
    Appeal from Oakland Circuit Court in Chancery.
    Paddack filed a bill in the circuit court against Pardee, to settle a question of right in regard to a water power, and to quiet his title to certain premises connected with it. A decree having been made in his favor, Pardee appealed to this court. The case is fully stated in the opinion of the court.

      Wisner, for the appellee.

      O. Draper, for the appellant.
   By the court,

Miles, J.

The complainant being-, as he alleges, seized in fee and possessed of a valuable water power, with a dam and race, on the Clinton river, on the N. W. and S. W. quarters of section 28, in town S north of range 10 east, and upon which he now lias a woolen factory and a grist mill,'on the llth day of February, 1830, executed a conveyance by deed to the grantors of the defendant of a jiortion of the premises, under the following description: “A certain piece or parcel of land situate in out lot number ten, in the village of Pontiac, being a part of the north-west quarter of section No. 28, town 3 north of range 10 east, viz: to comprise the lots Nos. 1 and 9, on the west part of the subdivision of the aforesaid lot No. 10, the same being- one hundred and twelve feet wide on the Mt. Clemens road to the centre of the road leading to the woolen factory, and extending in length to the centre of the Clinton river; with the privilege of fifty square-inches of water, to be applied five feet from the surface of the Clinton river, opposite the place of taking the water from tint race, to be subject at all times and forever to the woolen factory and one run of stone for flouring, after such mill shall be erected; the dam and race to be forever put in repair by said party of the first part; the said two lots being a Strip of land off from the south-westerly side of said out lot No. 10, and being designated on a plat of the subdivision of said out lot this day recorded.”

It is alleged in the bill that the race is the property of the complainant, and was not conveyed by him.

• The bill states, that the defendant has made a large excavation on the side of the race and within two feet of the water: that he claims that he has a right to construct a reservoir of such dimensions as he pleases, leading out of the race, without any regard to the restrictions contained in the deed: whereas, the complainant insists that it was the intention of the parties, as plainly expressed in the deed, that the orifice at the race where the water is to be diverted is to be fifty square inches in dimensions, and no more.

The bill further states, that the present excavation is sufficiently large to pass at least twenty feet of water, and to divert the whole body of water from the race, and to render the water power entirely useless to the complainant.

The bill prays, that the defendant may be compelled to take the water from the race, if at all, in the manner prescribed by the deed, and to release all claim to the race, except the right of so taking and using the water.

The defendant, in his answer, admits making the excavation, but denies any intention to construct a reservoir, as charged in the bill. He denies that he intends to draw the water from the race through an orifice exceeding fifty square inches; but claims that he has the right of having the water which shall escape through such orifice, flow into a flume of such dimensions and form, and upon his own premises, as he shall choose; and that he has the right of applying the water which may so escape to the propelling of machinery to be erected at any distance he may choose from said orifice, or to apply the same immediate1 ly at such opening. He denies that the complainant is the owner of the race, but, on the contrary, claims to own the soil over which the water flows, and' the hanlts and bed of the same, along by and upon the premises owned by him.

A replication was filed, the cause was heard upon pleadings and proofs, and a decree made, that, by the conveyance, defendant was entitled to fifty square inches of water, and no more, by an orifice or race of such dimensions as to admit that quantity, and no more, from the race to the place where it should be applied, subject to the restrictions and limitations in the conveyance named, and that the title to the race was in the complainant.

We are asked to reverse this decree as to the water privilege, because, as is insisted, the defendant is not, by the terms of the conveyance, restricted to carrying the water from the race to the place where it is to be used, in a race of the same dimensions as the orifice at which it is taken, and that he has a right to take the body of water into a flume of larger size, and then to take it out of such flume as he shall choose.

Secondly, it is urged that the race is not shown to he the property of the complainant.

The question made by these pleadings, then, is, whether the defendant is entitled to control the use and application of the water after it leaves the race, or whether, by the terms of the grant, he is limited and restricted in such use.

In giving a construction to this instrument for the purpose of ascertaining the intention of the parties, the whole instrument must be examined, and every part taken into consideration. Howell v. Richards, 11 East. 643.

In determining the meaning of any particular sentence or provision, we may also take into consideration the situation of the parties, and the subject matter of their transactions, to which the contract relates. Wilson v. Troup, 2 Cowen 228. See also Strong v. Benedict, 5 Conn. R. 220, and the cases there referred to, to sustain the proposition of Hosmer, Ch. J., that the condition and situation of the parties, and other collateral facts known to them both, may properly be recurred to, to ascertain their mutual intention. In the case of the King v. Laindon, 8 T. R. 379, evidence was received to ascertain an independent fact, in order to aid in the construction of an agreement. Also Sumner v. Williams, 8 Mason 214.

I propose, then, to apply these principles, and such others as may be drawn from a few adjudged cases,, in attempting a construction of the deed before us.

First, it is well to notice, that the complainant reserved what is called the first right of water, for the woolen factory, and for one run of stones , when he should erect a grain mill.

The grant to the defendant is restricted to a certain quantity of water, when there shall be so much over and above what is needed by the complainant for the woolen factory, and also _for the mill after it shall have been erected. The complainant’s right, in this respect, is ever to remain superior to that of the defendant.

In Sumner et al. v. Foster, 7 Pick. 32, it was held that the owner of a mill, who is entitled to use only the surplus water not required by another mill, is bound to shut his gate when there is not a sufficiency of water for both. In that case, the grant was of water “ sufficient for any work except a grist mill or saw mill," to be taken from the flume of the grantor, to be made for the use of a cotton factory, aud when there was more water than was sufficient for the cotton factory.

We will next consider whether the complainant is shown to possess the title to the land over which the race is carried, as the result of this inquiry must necessarily influence, to some extent, the construction to' be given to the grant of the water. ■

It is insisted, that the description in the deed of the land c'onveyed,> includes that portion over which the race is carried: and that this description must be confined to- the deed, without reference to the plat in evidence.

The objection to referring to the plat was grounded mainly upon an alleged want of evidence of identity. The páptír given in evidence’ puiports to be a transcript from the records in the office of the register of deeds; and to be a subdivision Of out' lot No. 10, by a surveyor into several lots, among which are lots Nos. 1 and 9, the boundaries to which upon the. Mt. Clemens road on the north, on the road leading to the woolen factory on the west, and on the Clinton river on the south, correspond with the description in the deed.

By this plat, it appears that the race runs across a part of the width of out lot No. 10,in a north-easterly direction, and parallel, or nearly so, to the river. This piece of ground is laid down as a race and alley, being one chain in width, and bounds the south line of lot No. 1, and the north line of lot No. 9, in the subdivision. But it was insisted, on the argument, that the race, or the ground covered by it, is clearly included in the descriptive words in the deed: that lots 1 and 9 extend from the Mt. Clemens road to the centre of the Clinton river. By this, I understand that such is their extreme bounds in those directions. It will be observed, that although the width is given, the length is not: and the reference to the plat shows why this was omitted in speaking of the extreme length of both lots. As there are two lots, there must be a boundary between them somewhere, if only by a line drawn: the plat shows that boundary to be the land left for the race and alley.

There is, besides, the testimony of two witnesses, who are acquainted with the whole lot and its subdivisions, and who together establish the south line of lot No. 1 to be north of, and the north line of lot No. 9 to be south of, the place where the defendant has put in his flume to take the water from the race.

That it is competent to refer to the plat to render certain the description in the deed, is beyond question. “ Where the act of disposal relates to another thing, that thing becomes in a manner part of the disposition, and the standard referred to being certain, the grant by relation thereto becomes certain according to the common maxim, id certumest, quod cerium reddipotest” 4 Bac. Abr. 524.

The whole of this description taken together, then, shows that lots 1 and 9 consisted of two distinct parcels of land, with the strip of land one chain wide, over which the race passes, lying between them: so that the defendant has by the conveyance acquired no title to the land on which the race is.

The testimony of the witnesses before referred to shows that the excavation in the side of the race is made upon the land of the complainant: that the water must be conducted across his laud before it reaches the bounds of lot No. 9, upon which, by the terms of the grant, it must be used.

The complainant, then, granted to the defendant a subordinate right in the use of a portion of the water running in the race, on his own premises. This would necessarily include a 'right to the defendant to carry the water across that portion of the complainant’s land between the south bank of the race and the north bounds of lot No. 9.

With this preliminary examination we shall be the better enabled to understand, the meaning of the language used in the grant itself. It is of fifty square inches of water, “ to he applied five feet from the surface of Clinton river, opposite the place of taking it from the race.”

The plain sense of these words would seem to be, that the quantity taken is that to be applied\ and that, although the defendant would have a right to apply it at a distance from or as near to the aperture as the approach of his own premises would allow, still the quantity applied must be the same.

If the grant had been of a given quantity of water, without any words of limitation as to its use or application, the defendant might have some better reason for the claim which he makes; but the quantity taken is to be applied at a particular place: and although the exact spot is not designated, yet it must necessarily be at some point on lot No., 9, between the race and the river, and opposite the place where it is taken.

If this construction is correct, it excludes the idea of drawing the water into a flume or reservoir upon the premises of the defendant, and afterwards applying it by a larger discharge than fifty square inches, .■and thus, perhaps, enabling t'ho defendant, during a portion of every ¡twenty-four hours, to propel machinery .of a larger or different character from that which he could move .by a direct application of the water.

Some consideration is also due to the fact that the complainant I ad already some machinery in operation on this race, and contemplated the erection of other mills. This would induce him, as I believe he has, to .restrict the defendant to a direct application of the water granted, and at some place upon the lands conveyed in the deed. The defendant purchased with a full knowledge of these circumstances.

On the whole, then, from the conveyance, the relation of the parties, and the nature of the transaction, I think we may safely conclude that it was well understood by the parties, and so expressed in the deed, that the defendant was to have the right to take and use fifty square inches of water, to be applied directly to his machinery by a trunk or race conducting the same from the complainant’s race to the place where the same should be so applied, and not'othenvise.

Another objection to the decree, is, that the complainant has averred in bis bill that he is seized in fee of the whole premises on which his water power is situated, and that he has not proved this fact. This was unnecessary: tlie title to any portion of the premises except the race, is not in question. The defendant makes no claim of title to any portion except that; and strangely enough, although he says in his answer that he does not know whether the complainant was or was not seized of the premises when he executed the deed, yet he claims title to tho race by virtue of the same conveyance which he disputes in his answer. The title to the land under the race, if at all conveyed to the defendant, is in the same deed, and included in the same description, with that of the two lots 1 and 9. In fact, the defendant insists that description includes the race.

It is idle, then, for the defendant to deny a title under which'he himself claims.

In this view of the whole case, the decree must he affirmed.

Decree affirmed,


author: Green, J.

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    Higgins et al v. Watson et al.
    R made his promissory note for §100, payable in six months, to 0, or bearer, on the back of which was the following endorsement: “I guaranty,” signed by W, It was held,
    1. As there was no date to the endorsement, that, ill the absence of all proof, the making of the note by R, and the endorsement by W, must be presumed to have been contemporaneous acts, and one entire transaction.
    2. That R and W were jointand sevcral promissors or makers of the note.
    What is sufficient prima facie evidence of the loss of a promissory note, under R. S. oh. 102, see. 88, p, 460, to admit parol evidence of its contents.
    The bond to be executed by plaintiff to defendant, under R. S. oh. 102, sec. 89, upon bringing an action on a lost promissory note, should run to all of the defendants, although some of them have not been served with process.
    Error to Wayne Circuit Court. The plaintiffs brought an action of assumpsit, in Wayne county court, against the defendants, on a promissory note, of which the following is a copy:

      $100, ' Üetroit, April 11, 1846.
    Six months after date, I promise'to pay Placidus Orel or bearer one hundred dollars, at James M. Lyell’s office, value received.
    Andrew T. McReynolds.
    On the hack of the note was the following endorsement: “ I guaranty, John Watson.” Process was served on Watson, but not on McReynolds. On the trial in the county court, evidence was given of the loss of the note, and of its contents, and a bond of indemnity was executed by plaintiffs to defendants, in pursuance of the statute. The county court rendered judgment for the plaintiffs, and thereupon Watson sued out a writ of certiorari to the circuit court, which reversed the judgment of the county court. To reverse this last judgment, the plaintiffs brought then writ of error.

      Wells and Goolc, for plaintiffs, in error.

      O'Flynn, for defendants, in error.
   By the court,

Green, J.

The important question in this cause, and the only one affecting the merits is, whether the defendant Watson is a joint promissor with McReynolds.

In order to determine this question, the first inquiry is, when was the endorsement made by Watson? The only testimony hearing on this point, is that of Peterson. He says that he received the note from Peterson and Humphreys, in the city of New York, on or about the eighth day of May, 1846, in behalf of the plaintiffs, and that the endorsement was then upon it. The guarantor is a third person, not named as a party on the face of the note, and he affixes no date to his guaranty.

In the case of Leonard v. Yredenburgb, 8 John. R. 29, it was hold-en that the writing imported, xqDon the face of it, one original and entire transaction; for, says Kent, Oh. J., in delivering the opinion of the court in that case, “a guaranty of a contract implies, ex vi termini, that it was a concurrent act, and part of the original agreement.” In that case, the note was made by one Johnson to the plaintiff, bearing date Nov. 9, 1808, at the bottom of which was the following, without date, viz: “I guaranty the above, J. Yredenburgh.”

If the opinion of the court in that case, upon the point under consideration, is good law, and I do not find that it has ever been questioned, then, in the absence of all proof, the making of the note by McReynolds, and the endorsement on the back of it by Watson, must be presumed to have been coteuqroraneous acts, and one original and entire transaction.

But it is argued, that in the absence of any proof on the subject, there can be no presumption that the endorsement was made at the time of making the note, because it may have passed through Watson’s hands as a subsequent holder, and been guarantied by him upon his transferring it to Peterson and Humphreys, or some one else.

To this argument, it seems to me, there are two answers. First, the endorsement having no separate date affixed to it, in the absence of any proof on the subject, its date must be referred to that appearing on the face of the note; and, second, that if Watson made the endorsements at a subsequent period, that fact is peculiarly within Iris knowledge, and cannot be supposed to be within the knowledge of the plaintiffs, and the burthen of proof, therefore, rests upon Watson.

In Hunt v. Adams, 5 Mass. 358, the guaranty was written at the bottom of the note, without a separate date, and there does not appear to have been any proof showing when it was made. Ashman, of counsel for the defendant, in his argument remarks, that “ for aught that appears, this undertaking of the defendants was made on a different dayyet Ch. J. Parsons, in delivering the opinion of the court, assumes that the signatures to the note and the guaranty were made at the same time.

Regarding the making of the note and the endorsement thereof by Watson, as one transaction, all the American authorities seem to agree, that the consideration expressed or imported on the face of the note is sufficient to support the undertaking of the guarantor, under the statute of frauds.

The rule which governs the construction of all other contracts, that the intention of the parties must control, applies with full force to contracts of this character. In most of the cases in which the endorsement of a note has been held to make the endorser a guarantor, and consequently an original promissor, the notes were not negotiable, and the party endorsing could not therefore be treated as an ordinary endorser. The only mode by which effect could be given to such an endorsement^ was to treat it as an absolute guaranty of payment. Seabury v. Hungerford, 2 Hill 84; Dean v. Hall, 17 Wendell 214.

In this case, if Watson is liable at all upon-his .endorsement, he is liable absolutely as a guarantor, either jointly with MoReynolds, as an-original promissor, or alone. He cannot be treated as an ordinary endorser, for his language is, “ I guaranty,” which imports an absolute, unconditional undertaking .that the note shall be paid at maturity; and tbis is precisely the undertaking of MoReynolds, the admitted maker, and neither more nor less. They are, in effect, perfectly identical.

The case of Hough v. Gray, 19 Wendell 202, is in effect precisely like this. Moon made his note payable to Cameron or bearer, and Hough at the same time made and" signed the following endorsement on the back'of it, viz: “This may certify that I guaranty the payment of the within note.” The court held that he was liable as maker, severally, to Gray, who had purchased the" paper'of Cameron. Cowen, Justice, in delivering the opinion of the court, says: “ The court below were clearly right, therefore, in bolding that he made himself a joint and several promissor with the admitted maker.” See Story on Promissory notes, ch. 10, title “Guaranty of Promissory Notes,” and the notes to the text, in which the leading cases on this question are collected.

Watson and MoReynolds being, "in legal effect, joint and several makers of the note, were properly joined in the action, and a judgment in form against both is therefore regular, though Watson only was served with process. R. S. ch. 107, see. I.1 For this reason the bond of indemnity was properly executed by the plaintiffs to both the defendants. Me Reynolds, though not served with process, has an interest in the indemnity, because an execution issued upon a judgment against both defendants may be collected of tbe personal property owned by him as a partner with Watson.

The only remaining question is, whether the loss of the note declared on, was sufficiently proved to authorize the introduction of secondary evidence of its contents; and I think the circumstances related by the witness Peterson sufficient prima facie evidence of the loss. Pie states positively the disappearance of the pocket ' book containing the note, and that diligent search was made for it,-without success; and that he had the entire oare of the notes belonging to.the.plaintiffs.

This being a preliminary inquiry, and the testimony being given to the court, and not to the jury, I see no objection to the statement made by the witness, of the fact that a certain individual was joroseeuted criminally for stealing the note, and that he confessed his guilt, and stated what he had done with it.

The judgment of the circuit court must be reversed, with costs to the plaintiffs in error, and the cause remanded to the circuit court for the county of Wayne, for further proceedings.

Judgment reversed, <&c.