author: Manning J.:

text:
    Richard P. Fitzhugh v. John L. Barnard and others.

      Bona fide purchaser of lands : notice of want of title. — A person who, at the time of receiving a deed from another, knows him to have no title, or has notice of his want of title, cannot be a bona fide purchaser under the recording laws, whether the real owner of the title is known to him or not.

      Notice of what appears in chain of title. — A grantee is chargeable with notice of whatever appears in the chain of title through which he claims.

      A mortgage was given ini 1832, and was foreclosed in 1835, and the premises conveyed to the mortgagees; but tbe deed was not recorded in the proper county. They soon after transferred the land by deed which was duly recorded. In 1856 the mortgagor made a deed of the same premises, subject to tbe mortgage, ' describing it as given “ in 1830 or 1831.” Held that this was sufficient notice to the grantee, not only of the mortgage, but that it was still unpaid; and after the lapse of twenty-four years, he had every reason to believe it had been foreclosed. The grantee, therefore, could not, in good faith, claim anything in opposition to the mortgage and the rights which had accrued under it.

      Bill to quiet title: Complainant not in possession qf part of the premises. — A bill was filed to quiet complainant’s title to land bounded on a river, of the whole of which he was in possession except a small portion — being a boom, embracing the bed of the stream and a foot path on the bank. His title to the whole was the same, and was undoubted. Held, that a decree quieting his title to the whole of the land was properly granted.
    But held, also, that the Court could not go further, and take an account of the renta and profits of the boom while occupied by the defendants as wrong doers. Their possession was that of trespassers, for which complainant had adequate remedy at law; and not the possession of trustees, for which they might be called to account in equity.

      Heard October 22d.

      Decided December 5th.

    Appeal' by defendants from Saginaw Circuit in Chancery. The facts necessary to an understanding of the legal questions are sufficiently stated in the opinion.

      W. L. Webber and G. V. N. Lotlvrop, for complainant:
    Newell Barnard bad notice of complainant’s title when he received the deed from Riggs. The legal title appeared in Fitzgbugh by tbe Saginaw records, through the mortgage deed of Riggs to Howard and Wadhams, and the conveyance by them to Fitzbugh in 1856. Though this was a mortgage title, still it was a legal title, and gave the right to the possession. Schwarz v. Sears, Wal. Ch. 170; Stevens v. Brown, Wal. Ch. 41; Mundy v. Monroe, 1 Mich. 68. Complainant’s possession was notice: 2 Lead. Cas. in Eq. 165. N. Barnard himself occupied as subtenant of complainant; and no tenant will be allowed to ignore bis landlord’s claim of title: 1 Greenl. Ev. § 24. The sub-lease to Barnard expressly refers to complainant’s lease to Partridge, and this is notice: 2 Lead. Cas. in Eq. 168-9. And there is other evidence of actual knowledge. J. L. Barnard is bound by tbe notice to N. Barnard, who acted for him. But J. L. Barnard is clearly a man of straw: it is Newell Barnard who is the real party. .
    Nnder the evidence it is claimed that complainant was in possession of all the premises, including the boom. On the case as it stands, an account of the rents and profits of the boom' should be decreed. It is possible that the bill was originally open to the objection of multifariousness ; but that objection was not taken either by answer or demurrer, and should not be heard now: Story Eq. Pl. § 284, 284 a; 3 How. 333; 4 Blackf. 249; .9 G. & J. 281; 10 G. & J. 480; 10 Ohio, 456.

      Moore & Gaylord and1 C. I. Walker, for defendants :
    The bill should have been dismissed as to Newell Bar•nard. It is not alleged or pretended that he sets up any ■claim in himself in the premises. The bill cannot be sustained for the purpose of an accounting. There seems to (be but one class of cases where rents and profits can be recovered by bill in equity, for a tortious occupation of lands; and that is, where the lands belong to an infant. The wrong doer is then considered as guardian or trustee for the infant, who is greatly favored. 1 Story Eq. § 511; 3 Vern. 723; 2 Vern. 342; 1 Vern. 295; 3 Atk. 262; 1 Ves. sr. 232; 6 Ves. 73. Though the objection of multifariousness is not taken at all by demurrer or answer, the Court may, sua sponte,' dismiss the bill for this cause. But that is not the only ground of objection. The claim for the rents and profits is not one of equitable jurisdiction. It can only be prosecuted at law. The bill should also be dismissed as to Avery, Eddy and Murphy! who are only made parties for the purposes of an accounting.
    Complainant has not established his title as against John L. Barnard. The simple quit claim of the land by the mortgagees, after decree of foreclosure, making no reference, either to the mortgage, the debt secured thereby or the decree, could not operate as an assignment of the mortgage, or of the decree into which it was merged. It was a mere nullity: 1 Wash. on Real Prop. 521,
      note; 5 Fost. 425; 2 Cow. 195; 1 Ala. 728; 1 Ohio, 157; Dougherty v Randall, 3 Mich. 587.
    Two questions, therefore, arise: 1. Is any one of the •grantees in the chain of Newell Barnard’s title a purchaser for a valuable consideration? 2. If so, did he purchase without notice of complainant’s title by the unrecorded deed, or of the existence of a title or lien under the mortgage?
    As to the first: the evidence shows Sutherland and both the Barnards to have purchased for a valuable (Consideration.
    As to the second: it will be claimed that the exception in the covenant against incumbrances, in the deed from Lauren P. Riggs to Jeremiah Riggs, of a mortgage given in 1830 or 1831, for $1,000, to Howard & Wadhams, is a constructive notice of the present existence of that mortgage or a title under it. But from the time of the record of that mortgage to the execution of the deed of Lauren P. Riggs, more than 22 years had elapsed, and the presumption of payment had become conclusive. 5 Johns. Ch. 552; 12 Johns. 242; Cook v. Finkler, 9 Mich. 131.
    The quit-claim deed on record, from the mortgagees to the complainant, was on the records of deeds, not of mortgages, and could give no notice to an investigator of title tracing the mortgage interest. It is, too, a mere naked quit-claim, making no reference to the mortgage, and was, so far as a conveyance of the mortgage title is concerned, ■a mere nullity. Indeed, a title by quit-claim is of itself said to be suspicious. 33 Miss. 291.
    The exception in the deed of Lauren P. Riggs does not recite or state the fact that there is any such existing incumbrance; it simply warrants the grantee against any other claim than this, leaving the title as to this without a warranty.
    It certainly does not give any notice that this mortgage had ripened into a title absolute more than twenty years before. The implication is directly otherwise — that the fee was still in Lauren P. Riggs, subject to no incumbrance, unless it was to a certain mortgage, and as to that, it asserted nothing.
    But if complainant claims the benefit of this notice, he must limit his claim to the mortgage. Of this only did it give any notice, and no record authorized any inference that it had ripened into a title. Now the record in relation to that mortgage raised the clear presumption of payment.
    We insist, therefore, that there was no constructive notice of complainant’s title, or of any title under that mortgage.
    Actual notice of complainant’s title is not established by the evidence.
    To give the master’s deed any force against defendants, they should have had notice of the existence of that deed.- — -2 Lead. Cas. in Eq. 184; 6 Barb. 373; 16 Miss. 418; 2 Md. 672; 1 S. & M. 78; 17 Wend. 24.
    Of this there is no evidence.
    The quasi possession under complainant, was evidence merely of the claim of complainant; a claim which investigation showed to be without foundation. — 1 Hill. on Vendors, 405; 2 Sug. on Vendors, 1052, n.; 2 Lead. Cas. in Eq. 168.
    The next issue is as to the possession of the complainant. This is admitted and proved as to a portion of the lands, and denied as to the boom, which constituted the most important part of the premises described in the bill.
    To maintain the suit, actual possession is necessary, both under and without the statute. — 2 Comp. L. § 3490; 8 Ohio, 384; 13 Ill. 205 ; 17 Ill. 139; 3 Halst. Ch. 341; 4 Cal. 43.
    The ground of the jurisdiction of the court of equity, is, that in no other way can a person in possession quiet Ms title. And the fact of jurisdiction is confined to cases where there is no other redress. — Stockton v. Williams, Wal. Ch. 120, & 1 Doug. Mich. 546.
    For this reason the bill should be dismissed.
   Manning J.:

This is a bill to remove a cloud from complainant’s title. It prays a release from John L. Barnard, one of the defendants, of an alleged pretended title set up by Mm to the premises mentioned in the bill, and an accounting by him and the • other defendants, for the rents, •profits and use of a boom, situated upon and occupying •a part of the premises, for the years 1860 and 1861.

We entertain no doubt as to complainant’s title, and Ms right to a release from the defendant John L. Barnard.

The land in controversy was taken up by -Henry Howard, in 1829. In July, 1831, it was conveyed by Mm to Lauren P. Riggs, from whom both parties claim title. On the 3d October, 1832, Riggs mortgaged the land to Henry Howard and Ralph Wadhams, for one thousand -dollars. This mortgage was afterwards foreclosed by How•ard and Wadhams, in the Supreme Court of the Territory of Michigan, and the mortgaged premises were sold and deed given under the decree to Howard & Wad-hams, by William Draper, master in chancery, on the 18th April, 1835. The master’s deed was recorded iu Oakland county, instead of Saginaw county where it should have been recorded. On the Ad May, 1836, Howard & Wadhams conveyed to Fitzhugh, the complainant, •Such is complainant’s title from Riggs.

Now for Barnard’s title. On the 9th September, 1856, twenty yeárs after Fitzhugh had acquired his title, Lauren P. Riggs conveyed the premises to Jeremiah Riggs, with a covenant of seizin, and against incumbrances, “except a mortgage given in 1830, or 1831, for one thousand dollars, to Howard & Wadhams.” Jeremiah Riggs, on the 5th March, lSSI, quit-claimed one undivided half of the premises to J. G. Sutherland, who, on the 10th April, 1860, quit-claimed to J. White, who, on the same day, quit-claimed to Barnard. On the 6th February,, Í858, Jeremiah Riggs quit-claimed the other undivided half to defendant Newell Barnard,' who, on the 19th March, 1858, quit-claimed to J. Ij, Barnard.

Had the deed from Draper;'-" the master in chancery,, to Howard <fc Wadhams, been recorded in Saginaw county* there could have been no question in regard to complainant’s title. Has J. L. Barnard, by reason of' its not, having been recorded in that county, acquired' a title under the registry laws superior to the title of complainant ? That is the question to be answered: and ' the answer to it depends on the answer that may be given to another question, viz.: is he a bona fide purchaser-without notice of complainant’s title? If he and those through whom he claims had notice that L. P. Riggs had no title when he conveyed to Jeremiah Riggs, it is immaterial whether he or they knew the title to be in complainant or not, or whether he or they did or did not know of the existence of the master’s deed to Howard & Wadhams. No one taking a deed from another knowing him to have no title, or having notice of his want of title, can be a bona fide purchaser. To take a conveyance under such circumstances, to be used against the true title, is a fraud, whether the holder of that title be known or not. If known, it is to defraud a particular individual; if unknown, whoever may hold the title.

It is a well settled principle of law, that a grantee is chargeable with notice of whatever appears- in the chain of title through which he claims: —Mason v. Payne, Walk. Ch. 459. J. L. Barnard and his grantors are therefore chargeable with notice of the exception in the deed from L. P. Riggs to Jeremiah Riggs, as well as with notice of the mortgage' from L. P. Riggs to Howard & Wadhams, which wasfr’ecorded and the reeord uncancelled. The deed excepts this mortgage from the covenant against incumbrances. The language of the exception is, “except ing a mortgage given in 1830 or 1831, for one thousand dollars, to Howard & Wadhams.” The mortgage was given in 1832, instead of 1830 or 1831 — twenty-four years before the deed. Here was sufficient notice to have put J. L. Barnard and his grantors on inquiry. With such notice before them, they cannot, in good faith, claim anything in opposition to the mortgage and rights that have accrued under it. Had they gone to Howard & Wad-hams for information, as they should have done, they would have been informed of the foreclosure, and of the purchase by them at the master’s sale. The exception was not only notice of the mortgage, but that it had not been paid by the mortgagor, and, after the expiration of twenty-four years, there was every reason to believe it had been foreclosed. At the same time, the registry of deeds showed that the mortgaged premises, had been conveyed by Howard & Wadhams *to complainant. Nor is this all as to notice to N. Barnard, who was instrumental in getting the pretended title into the hands of his brother. On the 29th November, 1856, he took a lease for three years of the boom, which is on a part of the premises, from one Partridge, who claimed under a lease from complainant — the lease to Barnard in express terms referring to and mentioning the lease from complainant to Partridge.

Aside from notice, the evidence in the case, we think, shows that there was nothing bona fi.de in any of the conveyances in the chain of title from L. P. Riggs to J. L. Barnard. We can not think any one connected with the title was deceived by it, or supposed he was acquiring any thing more than the pretext of a title, which he might sell for a greater or less price, to the real owner of the land, or to some dealer in doubtful titles.

Complainant was in actual possession of the premises at the time of filing the bill except the part used for the boom. The evidence does not, we think, show him to have been in actual possession of the boom, and it is for that reason insisted by defendants that the bill should be dismissed, not only as to that part of the premises, but also for the part of which complainant was in possession. There was no occasion, it is said, for complainant coming into a court of equity, as the question of title might have been settled in an action of ejectment for the land occupied by the boom. There is some force in the objection. But the part used for the boom is a very small part of the premises in controversy. It is the part covered by the waters of the Tittabawasse River, with a foot path on the bank — the premises in controversy being- bounded by and lying on the south side of that river. Complainant was in possession of all except the bed of the stream and footpath on the bank of the river; .and the title being one and the same, there would seem to be no good reason for dismissing the bjll, or excepting the bed of the stream from the decree. What good would come of an action of ejectment for this part of the premises ? There is no question as to complainant’s title. We have already deci: ded that point. It is no longer open to controversy; and to send the parties to law would only be attended with a bill of expense, an evil in itself. In such circumstances we think the Court was warranted in extending the relief to the premises occupied by the boom. If the position of the parties as to possession was reversed, the case might be different. The bill might be dismissed generally, or as to part only, or it might be retained with instructions to complainant, to bring ejectment for the part in possession of defendant.

But a court of equity cannot go further, and inquire into the rents and profits of the boom. This would involve a new inquiry. The question would no longer be one of title — almost the sole inquiry in bills of this description — but one of damages for a wrongful possession. It would be substituting a bill in equity to remove a cloud on one’s title, for an ejectment and action, at law for mesne profits. The wrongful possession of the boom by defendants was the possession of trespassers, for which complainant has a remedy at law, and not the possession of trustees for which they may be called to account in equity.

Newell Barnard is a brother of J. L. Barnard, and is charged in the bill with combining and confederating with others to defraud complainant; and the evidence shows him deeply implicated in the fraud attempted to be practiced on complainant.

The decree of the Circuit Court as to John L. Barnard and Newell Barnard , is affirmed, so far as it relates to the release from John L. Barnard, the injunction, and costs in the Court below, and reversed as to the rents and profits of the boom. Neither party to recover costs in this Court against the other. And so much of the decree as affects the defendants Avery, Eddy and Murphy, of either of them, is reversed, and the bill as to them is dismissed, with the costs of both Courts.

Christiancy and Campbell JJ. [concurred.

Martin Ch. J, was absent.


source: Caselaw Access Project

author: Campbell J.:

license: Public Domain

text:
    Philip Farrell v. Elisha Taylor.

      Common law eertioraH where there is a statutory remedy. — The allowanoe of a writ of certiorari by a proper officer, to remove proceedings into the Supreme Oourfc, is not conclusive upon that Court, and the writ may be dismissed if impro’vidently issued.
    The power of the Supreme Court to review the decisions of inferior tribunals on certiorari, is one to be sparingly [exercised in cases where ¡other adequate remedies can be bad; and where a decision can bo taken up by appeal, and on that appeal the jurisdictional questions, as well as those arising on the merits, can be fully disposed of, a certiorari should not be allowed, unless circumstances exist which show that a failure of justice will result from denying it.
    "Where, therefore, 'summary proceedings were had under the statute to recover possession of lands, and judgment rendered for the complainant; and the defendant, instead of appealing to the Circuit Court, procured the allowance of a common law certiorari removing the proceedings to the Supreme Court; and it appeared that the defendant had no claim to any equitable consideration from the Court, it was held that, although the Court had power to review the proceedings in this mode, yet, under these circumstances, the writ should be dismissed, with costs, as improvidently issued.

      Heard October 28th.

      Decided December 5th.

    Certiorari to a circuit court commissioner for tbe county of Wayne.

      J. ¡E. ¡Bigelow, for plaintiff in error.

      ¡D. O. ¡Holbrook, for defendant in error.
   Campbell J.:

Taylor having recovered a judgment of restitution against Farrell, as holding over after a mortgage foreclosure (the .proceeding having been had under the statute giving a, summary’ remedy in such cases), a certiorari was issued to the circuit court commissioner, to review his action.

We intimated upon the argument a doubt whether the writ ought to be retained for such a purpose, and, upon further consideration, are satisfied that it should be quashed, as improvidently issued.

It was claimed on. the argument, that the allowance of the writ by a proper officer is conclusive up on. this Court. Such is not the practice. In the case of Lantis and others, 9 Mich. 324, it was held that the propriety of the allowance is always open to esamination by the Court itself. The writ is not of right, but is granted under discretion; and to allow a single judge, or a person not a member of the Court, to bind it in advance, would be to take away the authority of the Court itself. Unless the writ is granted by the Court in the first instance, the propriety of its allowance will be considered on motion to dismiss, or on the' hearing.

That the Court has jurisdiction to issue this writ, as a matter of judicial power, we think is established by the weight of authority. The case of The People v. Farwell, 4 Mich. 556, denied such a power to the Circuit Courts, when an appeal lay to those courts from the same judgment which had been taken up by certiorari. Without inquiring into the grounds of that decision, we think the appellate jurisdiction of this Court over inferior tribunals not proceeding according to the course of the' common law, is granted by the Constitution in terms broad enough to reach the case. But, while the power exists, it has been considered as one which should be exercised sparingly, in cases where other adequate remedies can be had; and, where a decision can be taken up by appeal, and on that appeal the jurisdictional questions, as well as those arising on the merits, can be fully disposed of, a certiorari should not be allowed, unless circumstances exist which show that a failure of justice will result from denying it: — Savage v. Gulliver, 4 Mass. 178; Storm v. Odell, 2 Wend. 287; Comstock v. Porter, 5 Wend. 98; People v. Supervisors of Queens County, 1 Hill, 195; People v. Covert, 1 Hill, 674; Matter of Mount Morris Square, 2 Hill, 14. The appeal in these cases covers the jurisdiction as well aS allowing a rehearing on facts: — Sallee v. Ireland, 9 Mich. 154. The object-of allowing the -summary jurisdiction, against tenants and others holding over after their rights have been determined, was to prevent the injustice which would arise, were persons who have entered into land, under circumstances binding them to restore it promptly, to be allowed to retain possession, without color of title, from those owning the title by means of whioh they got that possession. There are many cases where delay is. ruinous; and it would usually be unjust, where there is no security of payment for the use of the premises by the tenant holding over. The statute has made it a condition of an appeal that security be given for rent as well as costs: — Comp. L. § 4998. If a certiorari is to be allowed, instead of an appeal, the tenant, if irresponsible, may con, tinue his occupancy at the landlord’s expense, until the case is determined in this Court. Such injustice should not be' countenanced by any Court; and to permit such proceedings to be resorted to, without strong circumstances showing the danger of losing a meritorious case unless such permission is granted, would encourage, instead of preventing injustice.

We have looked into the facts of this case, for the purpose of discovering whether any reason exists for relaxing the rule in the present instance. We find that the commissioner had evidence before him justifying his conclusion that Farrell went into possession under Neveux, who had previously given the mortgage which Taylor has foreclosed. Neither Neveux nor Farrell had acquired, any other title or pretense of title. Taylor has acquired the only other title which is shown to exist; but is not debarred thereby from relying on this mortgage title, which has been accompanied by the mortgagor’s possession, in person, and by Farrell his tenant. Upon the mortgage foreclosure the statute gave Taylor a right to this summary remedy against any person in possession, where such possession has been only under the equity of redemption.

Farrell has no claim to any equitable consideration from the Court; and, if he has lost his appeal, no injustice has been done, whether the complaint was or was not regular; a question we do not propose to consider upon this hearing.

The writ must be‘ quashed, with costs, as improvidently issued.

Manning and Christiancy J.J. concurred.

Martin Ch. J. was absent.


text:
    Orrin P. Ramsdell v. Alexander Eaton & others.

      Parties to foreclosure suit. The description of premises in a mortgage was erroneous in one particular, and a person was made defendant in a suit to foreclose it as a subsequent purchaser or incumbrancer, who owned land which might he interfered with by the erroneous description, but who had never been incumbrancer or owner of the mortgaged premises as identified by the proofs. It was held that he was improperly made a party, and the bill as to him was dismissed.

      Abbreviated names: allegation of identity. A mortgage was given by “Alexander Eaton, Junior” to “O. P. Ramsdell.” A bill was filed to foreclose it, by Orrin P. Ramsdell against Alexander Eaton. The bill was in the usual form, but contained no allegation that the parties to the suit wore identical with the parties to the mortgage. Eaton suffered the bill to be taken as confessed; hut a successful defense being interposed by another defendant who was improperly made a party, the Court dismissed the bill as to all, for want of suoh allegation of identity. Held that this was erroneous. The question of identity was open to proof, if disputed, and the pro confesso admitted it as against the mortgagor.

      Heard October 16th.

      Decided December 5th.

    Appeal from Saginaw Circuit in Chancery.
    The bill was filed by Orrin P. Ramsdell against Alexander Eaton, Louisa P. Eaton and Moses B. Hess, to foreclose a mortgage signed by “Alexander Eaton, Juniorf and Louisa P. Eaton, his wife, and given to “ O. P. Rams-dell,” upon premises described as “The east twenty feet of the west half of lot twelve in block eighteen; that is to say, commencing sixty feet from the north-east corner of lot twelve on Plank Road street, thence northerly sixty feet to the line between lots eleven and twelve, thence westerly on said line twenty feet, thence southerly sixty feet to the Plank Road street, thence easterly on the line of Plank Road street twenty feet to the place of beginning. In the village of East Saginaw.” Hess was made defendant by the general allegation, as a subsequent incumbrancer or purchaser. There was no direct averment in the bill that Orrin P. Ramsdell, the complainant, was identical with 0. P. Ramsdell, the mortgagee, or that Alexander • Eaton, Junior, was identical with Alexander Eaton. Eaton and his wife suffered the bill to be taken as confessed, hut Hess defended;

      It appeared from the evidence that “The east twenty-feet of the west half of lot twelve in block eighteen ’’ was the land intended to be mortgaged, but that the lines given by the remainder of the description in the mortgage would not embrace this, and would include lands owned by Hess. Hess had never had any interest in the first mentioned description, and his defense was, that he did not claim his own land through the mortgagors or either of them, and that neither of them had ever had any interest in it.
    The Court below dismissed the bill, not only as to Hess, but also as to the Eatons.

      Walker db Kent for complainant.

      W L. Webber, for defendant Hess,
    argued that there was a variance between the mortgage described in the bill and the one offered in evidence. The names being different, the Court could not presume the parties to be identical: — 11 Wend. 522; 10 Paige, 170; 4 Pick. 497 ; 14 Pick. 212; 18 Pick. 455; 17 Pick. 200; 3 Met. 330 ; 10 Mass. 203 ; 2 Cai. 165. Also, that on a simple foreclosure bill, containing no allegation of error or mistake, the Court could not correct the mistake in the description of land: 17 Johns. 146; 8 Wend. 183; 5 Wend. 142; 7 Ohio, N. S. 99; 1 Greenl. Ev. § 301 ; 3 Mich. 172; 4 McLean, 481; 10 Ohio, 433; 11 Barb. 173; 4 B. & Ad. 787; 5 B. & Ad. 43; Wal. Ch. 172.
   Campbell J.:

The bill in this cause was filed to foreclose a mortgage given upon a parcel of land, the description rof which, when applied-by testimony to the land, was found to contain one erroneous point of departure. It was given to “ O. P. Ramsdell ” and signed Alexander Eaton, Jr.,” Defendant Hess was made a party as claiming as a subsequent incumbrancer or purchaser. He answered, and upon testimony taken it appeared that he was the owner of the east half of lot twelve in block eighteen, and that Alexander Eaton never owned or claimed that portion of the lot. The evidence showed that Eaton owned the easterly twenty feet of the west half, and the only ambiguity which rendered this inquiry material, was in making a starting point of a point sixty feet from the northeast, instead of the southeast corner, which would, if followed, have interfered with Hess’s right, but which the case shows clearly to have been a clerical error. The Court below dismissed the bill without prejudice, as against all of the defendants, although it had been taken as confessed against all but Hess. This dismissal as to the others was based on a supposed "variance between the names of the parties to the bill and the parties to the mortgage, .there being no allegation of identity. Complainant appeals.

So far as Hess is concerned the bill was properly dismissed. There is no evidence tending to show that he was properly brought in as an incumbrancer or owner of the mortgaged premises, as identified by the proof. He is entitled, therefore, to an affirmance of the decree, with costs.

The bill having been taken as confessed as against the other defendants, and the identity of the parties being open to proof if questioned, it must be assumed that it is admitted by the pro-confesso that defendants executed to complainant the mortgage set forth in the bill. As between the parties this is sufficient, and it does not concern Hess if he is not retained as a defendant.

The decree must be affirmed with costs as to Hess, and reversed as to the other defendants. A decree niust be entered in the usual form for a [foreclosure and sale, to satisfy the sum of $641.85, with interest at 10 per cent. from April 26th, 1862, unless paid within ninety days, together with costs of the Circuit Court. As Eaton and wife have not defended in either Court, complainants are not entitled to costs on appeal against them.

Manning and Christiancy JJ. concurred.

Martin Ch. J. was absent.


author: 'Campbell J.:

text:
    Esther F. Thomas v. Richard D. Sprague.

      Recovery against garnishee on evidence contradicting his. — A recovery can not be had against a garnishee on evidence contradicting his own statement that nothing is due from him to the principal debtor. Newell v. Blair, 7 Mich. 103.

      Finding of facts must state conclusions. — A finding of facts by a Circuit Judge must state the conclusions of fact. If it set forth only vthe evidence, it is insufficient. Trudo v. Anderson, 10 Mich. 357.

      Heard November 5th.

      Decided December 5th.

    Error to Ionia Circuit. The only error assigned was, that the finding of facts by the Circuit Judge did not sustain the judgment. The following was the finding:
    “ Case ■ under Chapter 141 of Compiled Laws, entitled ‘ Of proceedings against Garnishees.’
    “ On the 4th day of September, 1862, the said Richard D. Sprague commenced suit by summons, against one Parker A. Sprague, before ffm. W. Mitch el, Esq., a justice of the peace of said county, and on the 18th of same month obtained judgment in the sum of ninety-nine dollars damages and one and 2'MOO dollars costs 'of suit.
    “ On the said 4th day of September, this suit was commenced before the same magistrate — the said plaintiff alleging that the said defendant was indebted to the said Parker A. Sprague, &c. Issue was joined, and such proceedings were had thereon that judgment was rendered in favor of this plaintiff and against this defendant, for fifty dollars damages and five dollars costs. From which judgment the said defendant took an appeal.
    “ On the trial in this Court the above facts were-admitted, and the docket of the magistrate, of the two above cited cases, was received and read in evidence: the minutes of the examination of the defendant herein, the garnishee, as sworn to, and reduced to writing by the magistrate on the trial below, were also received and read in evidence. Said minutes read as follows, to-wit: ‘Esther F. Thomas being duly sworn, says she is acquainted with Parker A. Sprague, and that she made a contract with the said Parker A. Sprague for building a house the fore part of June last, and was to pay him $1,250. I recollect when the garnishee summons was served on me. When I went east there was $250 due on the contract, which was on the 20th of August; I returned on the 4th of September, and the garnishee summons was served on me that day. I had not paid any portion of the $250 due' on the contract, prior to the service of the garnishee summons. Sprague told me the 4th of September, 1862, a short time after the summons, that Newland and he had completed that matter, and he had sold out to Newland his interest in that contract: the first knowledge I had of the sale from Sprague to Newland was after garnishee summons.’
    “On the trial in this Court, Mrs. Thomas was called as a witness; was sworn, and testified, among other things, as follows: ‘I contracted with Parker A. Sprague to build me a house, for $1,250, payable as the work progressed; and as he required money to lay out for materials, I was to advance it. He commenced and went on with the building; I made payments as materials were wanted and the work progressed; did so till I went east, August 20th, and at that time I had paid him $1,000. It was conceded that the $1,000 paid up for materials and work to that date. I left home August 20th; returned September 4th. How much work had been done, and what value in materials furnished, between August 20th and September 4th, I don’t know. The job was not done. When I said in my statement before the magistrate, that when I went •east there was $250 due on the contract, I meant this : that I was liable to pay $250 more when contract was fulfilled:’
    “There was testimony in the case from other witnesses, showing that the said Parker A. Sprague had furnished materials, and done work under the contract, between August 20th and September 4th, date of service of garnishee summons, to the amount of $50, and that this amount was due and payable to him at date of said .service, by the terms and conditions of said contract. There was some testimony introduced for the purpose of showing that the said Parker A. had a partner in this job, to-wit: one Newland, and that he had sold out and assigned to said Newland all his interest in said job prior to service of garnishee summons. But the testimony did not establish any such copartnership, or sale and assignment.
    “The defendant herein is entitled to her costs, and the plaintiff to a judgment for the balance of the fifty dollars. And the costs having been stipulated at the sum of .$29 43, this amount is to be deducted from the fifty ■dollars, and judgment to be rendered for the balance, to-wit: the sum of $20 57.”

      D. W. Jachson and A. Williams, for the plaintiff in error,
    cited to the point that the finding was insufficient, because only giving the evidence, and not drawing conclusions of fact: — Trudo v. Anderson, 10 Mich. 357. That judgment was erroneously rendered against the garnishee after she had sworn that nothing was then due from her: — Newell v. Blair, 7 Mich. 103.

      A. W. Dodge and C. I. "Walker, for defendant in error:
    The plaintiff in error admits her liability, but not knowing the extent of it, further inquiry of other witnesses might be had to show to what extent she was liable: —■ Maynards v. Cornwell, 3 Mich. 313; Newell v. Blair, 7 Mich. 103.
   'Campbell J.:

Sprague, the defendant in error, having garnisheed Mrs. Thomas, the plaintiff in error, as a debtor of one Parker A. Sprague, and she having answered, a judgment was finally rendered against her, from which she appealed to the Circuit Court for the county of Ionia. The appeal was heard in that Court, in February, 1863, and decided in April. Proceedings were stayed until thirty days after a, written finding should be filed.

A written finding was filed July 7, and a new judgment was entered thereon, the first judgment having been informal. Error is now brought, and the ground of error ■assigned ■ is, that the finding does not support the judgment.

So far as any facts can be regarded as set forth in this -finding, it appears that the garnishee denied in the Circuit 'Court that any thing was then due from her, and that the -only foundation for a recovery was derived from the evidence of other witnesses, who testified that money was due from her under a contract which she testified had not matured. We held in Newell v. Blair, 7 Mich. 103, in «conformity with previous rulings, that the garnishee could ■not be held on testimony contradicting her statement.

We do not think, however, that the finding is sufficient in itself upon any grounds. When a finding of facts is -required, it should state something more than evidence; it should state conclusions of fact: — Trudo v. Anderson, 10 Mich. 357.

The Court did not find what contract was made between, Mrs. Thomas and Parker A. Sprague, nor what moneys were due on it, nor whether it had been in whole, or how far performed according to its terms. There is nothing to show a foundation for any legal conclusion. The finding not setting forth facts which would sustain a judgment for plaintiff below, the defendant was entitled to judgment for costs.

Judgment must be reversed, and judgment entered for plaintiff in error for costs of both Courts.

Manning and Giiristiancy JJ, concurred.

Martin Ch. J. was absent.


text:
    The Niagara Fire Insurance Company v. Henry DeGraff.

      Inswance of liquors. — Spirituous liquors illegally kept for sale may, notwithstanding, be lawfully insured against destruction by fire. The risks insured against are nob the consequences of illegal acts, but of accidents.

      Description of insured property. Where an insurance was effected on “ groceries,’t and there was evidence that the insurer was informed that alcohol and spirit-^ nous liquors constituted a part of the stock, it was held that whether they were included in the term “groceries” in the policy was a question of faot for the jury.

      Conditions in policy. A policy of insurance against fire provided that the policy should be void if the premises were used for storing or keeping therein any articles included in certain classes of hazards annexed to the pol' icy, “except as herein specially provided, or hereafter agreed to by [the insurers] in writing upon this policy,” It was held that where a stock was insured under the general designation of “groceries,” which included some of those hazardous articles, the insurance by this designation did specially provide for them “in writing upon the policy.”
    A clause in a fire polioy which provided that, if gunpowder or other articles subject to legal restriction should be kept in greater quantities or in a different manner than was provided by law, the poliey should be void, was held to have reference only to articles of an intrinsically dangerous nature as liable to cause injury accidentally or by carelessness, and not to prefer to liquors, the traffic in which was made illegal by statute.

      Inconsistent instructions to ike jury. A judgment will not be reversed because inconsistent instructions were given to the jury, if those adverse to the plaintiff in error wore all correct.

      Verdict against evidence. The question whether the jury did not find against evidence or perversely, cannot be considered on writ of error.

      Heard November 3rd.

      Decided December 5th.

      Error to Lenawee Circuit.
    The plaintiffs in error insured DeGraff “ against loss or damage by fire to the amount of $1,500, as follows: $500 on dry goods contained in the wood building occupied by assured; $200 on groceries; $100 on hardware; •$100 on boots and shoes; $50 [on crockery; $50 on hats and caps; all contained in the wood store on south side of Main street, village of Palmyra; $500'on dwelling house.” The policy provided that if the premises “shall be used for the purpose of carrying on therein any trade or occupation, or for storing or keeping therein any articles, goods or merchandise, denominated hazardous or extra hazardous, or specially hazardous, in the second class of the classes of hazards attached to this policy, except as herein specially provided for, or hereafter agreed to by this corporation, in writing upon this policy, from thenceforth, so long as the same shall be so used, this policy shall be of no force or effect.’’ “ Whenever gunpowder, or other article subject to legal restriction, shall be kept in said premises, in quantities greater than the law allows, or in a manner different from that prescribed by law, unless said use or keeping is specially provided for herein, this policy •shall be null and void.”
    Attached to the policy was an enumeration of “ classes •of hazards.” In the second class were enumerated as follows:

      Hazardous No. 2. China or earthenware, grocers’ stocks, gum shellac, oil, provisions, spirituous liquors, sugars, sulphur, tallow, &c.

      JEhtra hazardous No. 2. Alcohol, apothecaries stocks, &c.
    There was no indorsement upon the policy, and no special provision in it, assenting in terms to the keeping by DeGraff of gunpowder, drugs and medicines, spirituous liquors or alcohol.
    The action was brought to recover the insurance upon the goods, which had been destroyed by fire. By the bill of exceptions settled in the case,. it appears that on the trial it was proved on the part of the plaintiff, that at the time of the issuing of the policy, and from that time to the' time of the fire, he was engaged in the business of a retail' country store at Palmyra; that his stock consisted of dry goods, groceries, crockery, and hardware, boots and shoes,, hats and caps, together with a small amount of drugs and medicines, consisting chiefly of pills, plasters, patent medicines, roots and barks. He also kept alcohol for sale to-the amount of not exceeding a barrel, and also a few bottles of spirituous liquors sealed up in bottles, for sale-at retail by the bottle.
    The plaintiff also gave evidence tending to show, and' which he claimed did show, that at the time he made application for the insurance he told the agent of the-defendant who issued the policy, that he wanted an insurance on his stock of goods which he described; that he informed the agent, among other things, in answer to a. question by him, that he kept alcohol and spirituous, liquors as aforesaid; that said agent then drew up the-application and that the plaintiff signed it; which, statement was denied by the testimony of the agent, R,. B. Robbins, who testified that he was not informed by the plaintiff that alcohol or spirituous liquors were kept for retail in said store.
    For the defense the Judge was asked to charge the jury: That the articles of alcohol and spirituous liquors (since the Prohibitory Liquor Law, forbidding all persons, from selling or keeping for sale spirituous or intoxicating-liquors,) are not included in the term “groceries” as used in referring to goods kept for sale. The Judge refused so to charge, but charged the jury that that question was a question of fact for the jury. He also, at the request of' the plaintiff, further charged, that by- the conditions attached to the policy, the keeping of alcohol is no more prohibited than sugars, provisions or tallow, if it constitute a part of' an ordinary grocer’s stock; that the enumeration of oils, gum shellac, provisions, sulphur, tallow, alcohol, &c., in the conditions attached to the policy, together with grocers’ stocks, does not make it necessary to£ specify such things when an insurance is being taken on the stock itself, when they constitute a part thereof. In other words, the insurance of a stock of groceries is an insurance of everything commonly kept and sold under that head, and the insurer is apprised, by an application for insurance on groceries, that the insured keeps or may keep any and all of the articles commonly kept and sold under the denomination of groceries ; otherwise an insurance on a stock of groceries would be an insurance conditioned to be void if certain prominent articles of groceries were kept: that if the articles above enumerated, or any others denominated hazardous or extra hazardous in the conditions, are commonly kept and sold as a part of a grocer’s stock, then in insuring a stock of groceries, the hazard from keeping those articles is charged and paid for, and the risk thereon assumed by the insurer, whether the insurer was specially informed of those articles constituting a part of the stock or not, unless there was a concealment on the part of the insured.
    The counsel for the plaintiff further requested the Judge to charge the jury, that the keeping of a small quantity of gunpowder for retail, as part of plaintiff’s stock, would not render the policy void; which request was refused. The counsel for the plaintiff also further . requested the Judge to charge' the jury each of the following several propositions :
    1. That the keeping of a small quantity of alcohol or alcoholic liquors for retail as a part of his stock would not render the insurance void.
    2. That if the jury find that alcohol and alcoholic liquors, gunpowder, andi drugs and medicines, in moderate quantities, for retail, usually constitute part of a stock of groceries in such a store as plaintiff’s, the fact that plaintiff ■so kept them, as part of his stock -would not render his policy void.
    S. That if the jury find that the plaintiff, at the time of applying for his insurance, omitted to disclose the fact that he kept in his stock any of the articles above mentioned, that would not render his -policy void unless he knew that the fact of keeping them would have a tendency either to prevent his getting the insurance or to make the rate of premium higher, and concealed the fact with fraudulent intent.
    4. (If the Court should hold that the keeping of alcohol or alcoholic liquors for sale by plaintiff was illegal, and that the insurance thereof was on that account void — then) That the illegality of keeping such liquors would not affect the insurance upon the remaining portion of the stock.
    5. That the provision in the policy against storing or keeping in the premises mentioned therein, certain hazardous articles therein referred to, is not to be construed as prohibiting the keeping of a small quantity of any of the articles which usually constitute a stock of g-roeeries in a country store, where the storing or keeping of such articles is not the principal business to which the premises are devoted, but the same are only kept for retail as part of a general stock.
    All of which requests were refused. But the Judge did charge, at the request of the counsel for plaintiff, that whether the agent was actually informed by DeGraff that ■he kept a small quantity of alcohol and liquors sealed up in bottles as a part of his stock, as testified to by DeGraff, was a question of fact for the jury.
    The Judge further, at the request of the counsel for the defendants, instructed the jury as follows:
    1. That the keeping alcohol for sale in the store where the goods were kept was in violation of the conditions of the policy; and if the jury believe that alcohol was so kept before and at the time of the fire, the plaintiff cannot recover.
    2. That the keeping of drugs and medicines in the store where the goods were kept was in violation of the conditions of the policy; and if the jury believe that drugs and medicines were so kept before and at the time of the fire, the plaintiff cannot recover.
    S. That the policy insuring specific articles under the different heads of ‘dry goods, groceries, hardware, crockery, boots and shoes, hats and caps, authorizes the keeping of those prohibited articles only which come under these specific classes.

      4. That the term ‘groceries’ applied to property • insured as in this case, is not to be presumed to apply to any articles kept for an illegal purpose, or to operate as an express assent to a waiver of the conditions annexed to the policy.

      5. That the conditions of the policy, as well as the conditions annexed to the policy, are by operation of law made express warranties, and any violation of them or any part of them, whether accompanied by fraud or noU renders the policy void, and the plaintiff cannot recover.
    6. That this policy, insuring specific classes of articles, and not by its terms including the stock of a country store, does not authorize the keeping of any articles prohibited by the policy not included in any of those specific classes, because of their being usually kept in a country store.

      7. That the provision of the policy, “Whenever gun. powder or any other article subject to legal restriction shall be kept in said premises in quantities greater than the law allows, or in a manner different from that prescribed by law, unless said use or keeping is specially provided for herein, this .policy shall be null and void,’’ prohibits the keeping of spirituous liquors or alcohol for sale contrary to the provisions of the Prohibitory Liquor Law, and if the jury find they were so kept, the plaintiff cannot recover.
    The jury returned a verdict for the plaintiff.

      G. A. Stacy and G. I. Wallcer for plaintiff in error.
    1. The Court is bound to construe the contract for the parties so as to give every part full effect. Neither the Court nor jury can make a contract for the parties.
    2. The Court erred in refusing to charge that alcohol and spirituous liquors were not included in the term groceries since the Prohibitory Liquor Law.
    No policy is to be presumed to include articles that are prohibited to be sold or kept: — 1 Phil. on Ins. 81 ; 15 Gray, 492.
    Even if the policy expressly covered these articles, then insurance would be against the policy of our law, and the policy would be void.
    Though the term groceries, before' the Prohibitory Liquor Law, might be construed to include alcohol or liquors kept for sale, because the term was held by lexicographers to include it, or because customary to be kept, yet neither a definition founded on previous law, or custom arising from a knowledge of previous law, can control now. But here there was no proof of any such custom.
    3. Conditions in a fire policy, no less than in a marine policy, not complied with, defeat the policy, whether material to the risk or not, or whether the non-compliance be with or without the act or privity of the assured:—

      Phil. on Ins. 410; 6 Cow. 673; 6 Wend. 488, 494; 7 Wend. 72 ; Ibid. 270; 5 Hill, 193; 3 Hill, 501; 10 Mich. 279.

    4. But it may be said that the charge of the Court was, after all, in our favor, upon these points. To this we say, the charges made by- the Court contradicted those charges in our favor. The effect to the jury of the charge, by request of defendant in error, that the enumeration of oil, sugar, alcohol, &c., in a grocer’s stock does not make it necessary to specify those articles when insurance is being taken on a stock of groceries, but they are insured as a part thereof, was to neutralize the other charge, and destroy its effect.
    The charge must be rational and consistent. If absurd, impossible or contradictory, the party aggrieved by it will be entitled to a new trial: — 3 Graham on New Trials, 800; 6 Cow. 482.

    Such a charge would either be a nullity, or, if it. had any effect, would be calculated to mislead the jury. The jury must not be misled by the Court in any manner:— 18 Maine, 436.
    Whether, therefore, they are induced to find a wrong verdict by a positive direction, or by being left to draw an erroneous conclusion from the proof, there is the same ground for a new trial: —3 Graham New Trials, 774; 11 Wend. 83.

      A. JL. Millerd, JET. JD. Condict and T. M. Cooley for defendant in error:
    1. The Judge was correct in holding that whether alcohol and spirituous liquors were included in the term groceries as insured ’ was a question of fact.
    The common understanding of those who enter into these contracts is to govern the construction of the words, employed, and this understanding is to be submitted to the jury as a question of fact: — 4 T. R. 206; 2 Johns. 531; 7 Johns. 385; 7 Cow. 202; 2 C. & P. 525; 9 Met. 354; 3 Sandf. 26; 8 Wend. 160; 10 Exch. 323; 11 Exch. 405; 5 M. & W. 535 ; Ry. & M. 75; 7 Bing. 787; 5 B. & P. 213; 3 B. & Ad. 728; 3 M & G. 759; 1 Q. B. 424; 2 C. B. 412; 3 Camp. 16; 3 Esp. 121; 3 Johns. 88.
    The evidence adduced upon this point seems to have-been entirely satisfactory to the jury, but in fact, we apprehend, no evidence was necessary, as the ordinary meaning of the term groceries would include these articles:— See Webster and other lexicographers; 6 Wend. 623.
    But defendant’s position was, that, though the term groceries had this extent before the liquor law, it cannot be so understood since the sale of alcohol is prohibited. To this we reply,
    The question is simply as to' the meaning of a word. We see nothing in the statute which undertakes to change definitions. The statute simply prohibits the sale of an article of groceries. The word embraces what it did before.
    But the position of defendants is faulty, in that it asks the Court to determine as matter of law that the parties used the term groceries in a particular and restricted sense. Now we say this is not a question of law at all, but one of fact. To enable the jury to determine it, evidence was given. As a part of the evidence, it was shown that the insurers were informed when they made cut the policy that alcohol constituted a part of the stock. The jury have passed upon the question as one of fact, and found that the term groceries was here used by the parties in its former and general sense.
    Alcoholic liquors may still be insured notwithstanding the statute prohibits their sale. The statute does not make them any less property than they were before. They are subject to the incidents of property, protected as such: —1 Gray, 46.
    And if the law will defend the owner’s possession of the property, and compel compensation for its destruction, it certainly cannot be illegal for him to indemnify himself against accidental destruction, by insurance.
    There is no analogy between the cases of marine insurance held void because the ventures were illegal, and the case of insurance on property the sale of which is prohibited.

      A marine insurance on an unlawful voyage is void, either, first, because the purpose and object of the insurance are a violation of the law, or, second, because, the voyage being unlawful, the assured has no insurable interest.’-
    To make the case of a fire insurance on property not allowed to be sold analogous to this, the insurance must be against the consequences of a breach of the law. If the policy were conditioned for an unlawful sale, and provided an indemnity against penalties and costs that might be' imposed in consequence, it would be analogous, and clearly illegal.
    This policy does not provide for a sale of the alcohol. A man might lawfully keep the article for his own use, and, having it, might insure it. If he made an illegal sale of it afterwards, this illegality would not defeat ap insurance valid in its inception: —1 Story, 109; 3 Harr. 484.
    The offense of beeping for sale was complete before the policy attached. The insurance therefore did not induce it. The policy could have had nothing to do with that breach of the law. It related only to plaintiff’s lawful interest in the property, and could not be affected by any offense already committed. It is an established principle of marine insurance that a policy is never affected by a prior and distinct illegality: —Duer on Ins. 340, 362; 8 T. R. 562; 1 B. & P. 353; 13 Pet. 163; 11 Wheat. 258, 271, 275.
    But even if the illegality of the trafic should be held to render the insurance of the prohibited articles void, it would not affect it as to the residue of the stock: — 4 Taunt. 792; 1 Stark. 222; 6 Taunt. 498 ; 2 Marsh. 196; 4 Rob. 166.
    2. Where one applies for an insurance on a stock of groceries, he thereby sufficiently apprises the insurer that he keeps, or may keep, as a part of that stock, the articles commonly constituting a grocer’s stock : —14 Barb. 383; 1 Bosw. 522; 17 N. Y. 194; 22 N. Y. 441; 17 N. Y. 200; 10 Rich. 209 ; 2 Hall, 589, 622.
    3. It is a general principle, applicable to policies of insurance, that the stipulations inserted therein for the benefit of the insurers, shall be construed most strongly against them: — 1 Sum. 434; 5 Ind. 23; 32 Penn. 351.
    This principle will apply to all the conditions of this policy in regard to hazardous articles. Whenever there can be any doubt upon the construction of any of them, the insured should have the benefit of that doubt. It was the duty of the insurers, when fully informed of the facts, to so frame the policy that plaintiff’s stock should be effectually insured; and they cannot take advantage of defects in their own statements to defeat an insurance for which the plaintiff has in good faith paid, relying upon them to perfect the papers: — 17 N. Y. 194; 16 B. Monr. 258; 14 Barb. 383; 2 Hall, 689.
   Campbell J.:

Plaintiffs in error insured DeGraff upon his stock of goods, described in his application as a “stock of dry goods, groceries, &c.,’’- dividing the risk into specific sums on dry goods, groceries, hardware and other things specifically mentioned. There was evidence tending to show that he had in his store a few bottles of spirituous liquors, and a barrel of alcohol. Alcohol was among the articles mentioned in the second class of hazards in the second sub-division of extra hazards. Grocers’ stocks generally were in the first sub - division of the same class. Bottled spirituous liquors were not classed as extra hazardous, but were included in the first class of ordinary hazards in the second division of hazardous. There was evidence tending to show that the insurance agent who drew up the application was informed of the presence of the liquors and alcohol, which was however denied by the agent. The property being destroyed, a suit was brought on the policy, and judgment was recovered. Error is brought on the rulings upon the trial. The points taken refer mostly to a clause in the policy which .declared that if the store should, be used “for storing or keeping therein any articles, goods or merchandize, denominated hazardous, or extra hazardous, or specially hazardous, in the second class of the classes of hazards annexed to this policy, except as herein specially provided for, or hereafter agreed to by this corporation, in writing upon this policy, from thenceforth, so long as the same shall be so used, this policy shall be of no force or effect.” There was a further clause annuling the policy whenever gunpowder or any other article subject to legal restriction should be kept in greater quantities or in a different manner than prescribed by law.

The Court below refused to charge, as requested, that since the passage of the Prohibitory Liquor Law, alcohol and spirituous liquors are not included in the term “ groceries ’’ as used in referring to goods kept for sale; and charged that the question whether they were so included was one of fact for the jury. To this exception is taken.

It was claimed on behalf of the plaintiffs in error, that if these liquors can be allowed to be included in a policy, the policy will be to all intents and jrarposes insuring an illegal traffic; and several cases were cited involving marine policies on unlawful voyages, and lottery insurances, which have been held void on that ground. These cases are not at all parallel, because they rest upon the fact, that in each instance, it is made a necessary condition of the policy that the illegal act shall be done. The ship being insured for a certain voyage, that voyage is the only one upon which the insurance would apply, and the underwriter becomes thus directly a party to an illegal act. So insuring a lottery ticket requires the lottery to be drawn in order to attach the insurance to the risk. If this policy were in express terms a policy insuring the party selling liquors against loss by fine or forfeiture, it would be quite analogous. But this insurance attaches only to property, and the risks insured against are not the consequences of illegal acts, but of accident. Our statute does not in any way destroy or affect the right of property in spirituous liquors, or prevent title being transmitted, but renders sales unprofitable by preventing the vendor from availing himself of the ordinary advantages of a sale, and also affixes certain penalties: — Hibbard v. People, 4 Mich. 125; Bagg v. Jerome, 7 Mich. 145. If the owner sees fit to retain his property without selling it, or to transmit it into another State or country, he can do so. By insuring his property the insurance company have no concern with the use he may make of it, and as it is susceptible of lawful uses, no one can be held to contract concerning it in an illegal manner unless the contract itself is for a directly illegal purpose. Collateral contracts, in which no illegal design enters, are not affected by an illegal transaction with 'which they may be remotely connected. In the case of The Ocean Insurance Co. v. Polleys, 13 Pet. 157, an insurance upon a ship known by the insurance conqpany to be liable to forfeiture under the registry laws of the United States,, was held valid, and a recovery was permitted for a loss while sailing under papers known to be illegal. The case of Armstrong v. Toler, 11 Wheat. 258, is still stronger. It is difficult to preceive how public policy can be violated by an insurance of any kind of property recognized by law to exist.

The question then arises, whether the Court rightly left' it to the jury to say, as a matter of fact, whether the term “groceries” included spirituous liquors and alcohol. That it may include them in the absence of such a statute is not denied; the recognized definitions embracing them clearly,-so that it may be doubted whether it might not, in that case, require evidence of usage to exclude that meaning if such articles existed in an insured stock of groceries. See New York Equitable Insurance Co. v. Langdon, 6 Wend. 623. There was evidence before the jury in the case before ns, that these things did in fact form a part of the stock, and evidence tending to show a knowledge of that fact by the agent. The statute does not prohibit the sale of all kinds of liquors, but, as to some,, expressly recognizes the right in every one. Whatever may be the presumption, under our present statute, as to the extent of the term “ groceries ” — a question not raised in the case, and upon which, therefore, it would be improper to pass — we think the instruction asked was altogether too broad, in claiming that alcohol and other liquors could not possibly be included. The question was properly left to the jury.

If the jury found — as their verdict shows they must have done — that the term “groceries” included the liquors in question, then the other instructions complained of, which held that by insuring such a stock the liquors were embraced although extra hazardous, were clearly correct.. By the use of a term including them they are “ specially provided, for in writing on the policy.” Insuring a class of goods includes what is usually contained in it, whether extra hazardous or not. See Bryant v. Poughkeepsie Mutual Insurance Co. 17 N. Y. 200; Harper v. Albany Mutual Insurance Co. 17 N. Y. 194; Harper v. N. Y. City Insurance Co. 22 N. Y. 441; Delonguemare v. The Tradesmen's Insurance Co. 2 Hall, 589. In these instructions the jury were directed to include the articles only if satisfied that they were commonly kept and sold as part of a grocer’s stock. This qualification was sufficiently broad to prevent any improper inferences.

The clause of the policy vitiating it if gunpowder and other articles subject to legal restriction should be kept in greater quantities or in a different manner than is provided by law, was not pressed very strongly on the argument, and evidently refers only to articles of an intrinsically dangerous nature, as liable to cause injury accidentally or by carelessness. It has no reference to any risks except such as render the property more likely to be destroyed. There are no statutory provisions concerning liquors analogous to the laws restricting the use of powder.

Our attention has been called to the fact, that the other charges given on the one side and refused on the other, are inconsistent with those complained of. So far as this is the cas.e, however, they favored the plaintiffs in error, — those excepted to being the only ones which could damnify them. Had the verdict been for them, the discrepancies would have been more important in determining the rights of the other party. The question whether the jury did not find against evidence, or perversely, conld only be presented in the Circuit Court.

The judgment should be affirmed, with costs.

Manning J. concurred. Christiancy J. also concurred in the result.

Martin Ch. J. was absent.