text:
    J. Mortimer Smith v. Sidney Lawrence.

      Evidence of Hile to land. — A deed of lands is no evidence of title in tlie grantor, where he is not otherwise connected with the title, or shown to have ever had possession.

      Evidence: plat book. — A book of township plats, found in the office of the register of deeds, is not admissible in evidence, where there is no law requiring it to be kept, or] declaring it to be evidence.

      Heard July 6th.

      Decided July 15th.

    Error to Ottawa Circuit.
    The action was upon a ' promissory note given for standing timber bought by defendant of plaintiff. In defense it was claimed that plaintiff was not the owner of the land on which the timber stood; and to establish this, defendant offered in evidence a deed from Morris Ketcham to Horatio J. Lawrence, of the same lands. This was objected to by the plaintiff, but the Circuit Judge overruled the objection, upon the ground, that, at that stage of the. trial and evidence, the Court would not direct the order of the evidence introduced by the defendant; and the deed might be a link in a chain of evidence to be introduced by defendant, controverting the plaintiff’s right to the land, or title to convey the timber thereon; and, further, that, standing alone, it might tend to prove to the jury such a cloud upon the plaintiff’s title as to call upon him to remove the same by rebutting testimony; that it was not for the Court to decide upon the weight of such evidence in either case.
    The defendant then called the register of deeds, who produced a book of plats, purporting to be plats of the various townships of Ottawa county originally, upon which the subdivisions of sections and parts of sections are marked, and the name of the purchaser of each description is written thereon; and said witness testified that he found said book of plats in the office of the register of deeds of said’ county, when he came into said office, and that the name of Morris Ketchum was written upon the descriptions of land contained in the deed, as the original purchaser of said descriptions. To the receiving and reading of said plat book the counsel for the plaintiff objected, for the reason that it was incompetent and did not tend to prove that said Morris Ketchum had any right or title to said land. But the Circuit Judge overruled said objection, and allowed said evidence to go to the jury, remarking, that it was their province to determine whether it should have any weight with them; it might tend, with other evidence, to shift the burden of proof to the plaintiff, to show an affirmative title by rebutting evidence.
    The defendant then called one Fletcher, who testified, that in the year 1861 he saw Horatio J. Lawrence while here in Ottawa county, and said Lawrence requested witness to see if any person was cutting timber on the lands described in the deed, and, if so, to forbid them in his name, as his agent; and he also authorized witness to employ counsel, if necessary, and bring.suits against persons cutting on said lands; and that he, witness, went to the defendant in this suit, and forbade him, in the name of said Horatio J. Lawrence, to cut any more timber upon said lands, and told him' that if he did cut any more on it he should prosecute him in trespass for the same.
    The Circuit Judge charged the jury, that “ the evidence must be such as to raise a fair presumption against the validity of plaintiff’s title, before the plaintiff can be compelled to show his title by rebutting proof. In order to raise such presumption, it is not absolutely necessary to give in evidence a connected chain of title from the Government to a third party, or, in this instance, to H. J. Lawrence, down to the date of the sale, but the evidence must be such as to raise such presumption fairly in the minds of all the jurors before they can require the plaintiff to rebut the same. The deed, the record of which has’ been, read to the Court and jury, may be the subject of deliberation by the jury; whether it shall have any weight as evidence, is for them to determine. The Court, in the-same connection, has admitted in evidence, and now permits the jury to use the book of plats of original entries in the several townships of this county, and containing, amongst other names of original purchasers, that of Morris Ketchum upon each of the legal subdivisions of land described in said deed to II. J. Lawrence, and said bill of sale by plaintiff. It may tend to prove or disprove the presumption we are now considering. The jury are at liberty to use it for what they shall find it intrinsically worth.”
    The jury returned a verdict for the defendant.

      G. J. Walker, for plaintiff in error.

      M. B. Hopkins and T. M. Gooley, for defendant in error.
   Campbell J.:

Plaintiff sued defendant upon a note, the consideration for which arose out of a sale of standing timber. Defendant endeavored to show that the consideration had failed because plaintiff had no title to the land upon which it grew. He introduced for this purpose a deed from Morris Ketchum to one Horatio J. Lawrence, but there - was no other evidence of title in either of them, except a volume found in the county register’s office purporting to contain township plats, with names written upon the various government subdivisions. The name of Ketchum was upon the plat on the tract in question. The Court allowed this to go to the jury, and allowed them to infer title in Ketcham from it. This was erroneous. There is no law requiring such a book in the county registry, or declaring it to be evidence. ■ Title can only be deduced from the United States by the methods pointed out by act of Congress; and in the absence of evidence of a regular documentary title, there .should have been introduced at least presumptive evidence, by showing some possession, or other fact such as is allowed by the common law to make out a prima facie case of ownership. The giving of a deed is no evidence of title in the grantor.

The judgment below must be reversed, with costs, and a new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Manning J.:

license: Public Domain

text:
    The People, on the relation of George H. and Caroline French v. The Township Board of Springwells.

      Laying out highway: whole road applied foi\ or none of it, should be laid out. — Where application is made to the highway commissioners to lay out a highway, under the statute of 3861, the commissioners must lay out the whole road applied for, or no part of it.

      Laying out high/wa/y: who may complain of erroneous action. — Where a road is regularly applied for, and the commissioners decide to lay out a part of it only, any person through whose lands the road runs as laid, is entitled to> take proceedings to test the validity of their action.

      Costs against body acting judicially, — Application in due form having "been made to highway commissioners for laying out a road, and they having made an order laying out a part of it only, and the township hoard on appeal having confirmed their action, the Supreme Court, on quashing these orders on certiorari, refused to award costs, as the township hoard was acting judicially on an application giving the commissioners jurisdiction.

      Heard May 12th.

      Decided July 15th.

    Certiorari to the township board of Springwells.
    Certain freeholders of Springwells made an application in due form of law for the laying out of a highway in said township, extending from a certain point north of the Detroit & Toledo Railroad southerly across said road and Fort street to the River Rouge. The commissioners of highways, after due notice, met to consider the application, and decided that the road as applied for was1 only necessary as far as Fort street; and ordered it laid out and established to that street and no further. The relators,, who were owners of a lot north of Fort street which would be crossed by the contemplated road, appealed from this order to the township board, by whom the action of the commissioners was confirmed. The relators then sued out a certiorari to remove the proceedings to this Court.

      H. M. Gheever and L. Bishop, for plaintiffs in error,
    to show that the order of the commissioners laying out a part only of the road petitioned for was void, cited, 2 Green, 385 ; 1 Zab. 86; 4 Zab. 736; 1 South. 31; 3 Dutch. 423; 18 Vt. 493; 5 R. I. 325; 8 Pick. 347; 41 N. H. 228; 42 N. H. 348; 12 Cush. 351; 30 Me. 302; 3 Green, 91; 13 Shep. 406; 23 Me. 9; 37 Me. 558; 9 Fost. 88; 11 Ired. 9.

      P. P. Swift and G. S. Swift, contra,
    objected that the relators were not so interested as to be entitled to raise the question; as the road, whether laid as applied for, or-only to Fort street, would still cross their land. To the main point they cited, 13 Pick. 195; 19 Me. 338 ; 17 Pick. 154; 7 Gray, 57; 10 Pick. 270; 31 Me. 444; 22 Conn. 226 ; 24 Conn. 199.
   Manning J.:

The complaint against the action of the highway commissioners is, that they laid out a part only of the highway asked for. They should have laid out the whole of the road asked for or no part of it. We think the statute is clear on this point. It provides that, when any seven or m»re freeholders of a township shall wish to have a highway in any township, not included within the corporate limits of a city or village, laid out, altered or discontinued, they may, by writing under their hands, make application to the commissioners of highways of the township for that purpose, who shall proceed to lay out, alter or discontinue -such highway, &c. Laws 1861, p. 256, § 1. They are to view the premises described in said application, and ascertain and determine the necessity of laying out, altering or -discontinuing such highway. Ibid. § 3. Not such highway— the one described in the application — or any part thereof; or such highway as the commissioners may deem ■expedient, unless it be the one asked for in the application. It does not follow that the freeholders would have united in an application for the part laid out because they had asked for that and something more. However *that may be, the commissioners had no application before them to do what they did.

The road laid out crosses the relators’ land, and if they are not interested in what the commissioners did, it would be hard to say who are. .

The commissioners erred in laying out a part only of the road applied for, and the township board erred in affirming their action. The proceedings of both are quashed, but without costs, as the. board acted judicially on an •application giving jurisdiction to the commissioners.

Martin Ch. J. and Campbell J. concurred.]

Christianct J. did not sit in this case.


author: Martin Ch. J.: Campbell J.:

text:
    Samuel Farwell and others v. Charles E. Dewey and another.

      -iAction on'assigned contract: not "necessary \to prove assignments — Where suit is brought on a contract in tho name of the promisee for the use and benefit of another person named, the promisee is the legal plaintiff, and it is not necessary to show on the trial that the contract has been assigned to the person for whose use the suit is brought,

      iStatute of frauds: promise to answer for. debt of another. — Contractors for th.©construction of a railroad gave their workmen certificates of the amount due them, which were presented to and accepted by the railroad company. Upon, these certificates the plaintiffs furnished goods, which they charged to the contractors. In a suit brought against the contractors to recover the price, it was made [a question before the jury whether the goods were furnished on the , credit of the contractors, or of third persons who, according to some of the evidence, were to make advances. The Judge charged the jury that if the goods were furnished under an arrangement with the contractors, or if they subsequently {assented to the goods being charged to them — in either case í they would be liable. Whether the latter branch of this charge was correct, quere; the Court being equally divided on the question.

      Heard October 17th, 1863.

      Decided July 15th.

    Error to Genesee Circuit.
    Charles E. Dewey and Alvin Crossman, suing for the nse and benefit of Terbell, Jennings and Millspaugb, brought suit against the plaintiffs in error in assumpsit. On the trial before a jury it appeared that, in 1859, said Dewey and Crossman. were merchants at; Flint that the defendants iwere at that time a firm under the name of' Paul, Farwell & Co., and were engaged in constructing the Flint & Pere Marquette Railway Company’s road, between East Saginaw and Flint, and that in the summer- and fall of the year 1859, the defendants had several gangs of men at work, clearing and grading for their road, on the thirteen miles thereof next to the city of Flint, some of whom worked by the job, and some by the day. It appeared that goods to the amount of $1743., 70 were delivered at sundry ‘times in the fall of 1859, from September 2d to December, to the men so in the employ of the defendants. Of this amount, $235.49 were furnished and at first charged to one Hughes, a sub - contractor under defendants; but afterwards charged over to defendants, $48.04 were delivered on the written order of' Paul, Farwell & Co.; $27, on the written order of one of the members of said firm, and $1140.69 on orders, written or oral, by the foremen of the several gangs of men in defendants’ employ, or by a sub - contractor. On the. 21st of November, 1859, the defendants gave to sundry men certificates in the following form:

      “Flint & Pere .Marquette Railway Co. — There is due Michael Ryan forty-six and 77-100th dollars, for labor performed on the first thirteen miles of your road, next to Flint.

      Paul, Farwell <& Go.

    Nov. 21st, 1859.”
    And these certificates (which were alike except as to name and amount,) were presented at the office of the said railway company, and were accepted by the company in writing (George M. Dewey then being the president, and E. H. Hazelton the treasurer of said railway company, and said Crossman one of the directors and a stockholder.) After the giving of such certificates and their acceptance as above, they were presented by the holders at the store of Dewey & Crossman, and goods delivered thereon to sundry men, and in sundry items, at different times, to the amount of $292.48, which amounts were severally indorsed on said accepted certificates by Dewey & Crossman, as payment to the extent of the goods so delivered, and all the goods so paid on such certificates were charged in the account by said Dewey & Crossman against the defendants, and made up a part of the amount of $1743.70, above spoken of.
    There was no evidence in the cause of any transfer of the claim of said Dewey & Crossman to said Terbell, Jennings and Millspaugh, nor that said three last named parties had any interest in the suit, nor in the said cause of action.
    Evidence was given on the part of the defendants to show that the goods so furnished were advancements to them by Dewey & Hazelton, under an arrangement with them to that effect; and that statements of account furnished to them from time to time by the plaintiffs, were so furnished in order that they might credit the same to said ¡ Dewey & Hazelton, which was done accordingly.
    And thereupon the counsel for defendant requested the Court to charge the jury, that Terbell, Jennings and Millspaugh are in this case the real plaintiffs in interest, and Dewey and Crossman are only nominal plaintiffs, and that without proof of a legal transfer of the cause of action to the real plaintiffs in interest, from Dewey <fc Crossman, the plaintiffs are not entitled to recover. This request the Court refused.
    The counsel for the defendants further requested the Court to charge the jury, that the trading done on the certificates of Paul, Farwell & Co., addressed to and accepted by the Flint & Pere Marquette Railway Company, can not be charged to defendants, without proof of a request by defendants that Dewey & Crossman should pay these certificates, or a part of them; and without such proofs the plaintiffs can not recover for those items; which charge the Court refused to give; but on this point the Court charged the jury, that the plaintiffs could not recover unless the jury should find that the trading done on the certificates came within the original arrangement between the parties, or unless the defendants subsequently assented to the goods being charged to them; and in case the charging to defendants was within the original arrangement, or was subsequently assented to by them, that would make defendants liable.
    The counsel for the defendants also requested the Court to charge the jury, that the amount of the account charged against Hughes, and afterwards transferred to the account of the defendants, is not a legal charge against the defendants, without proof of a promise in writing by defendants to pay the same. But the Court refused so to charge, but did charge that unless the jury find that the goods were delivered according to arrangement, or subsequently assented to by defendants, the defendants would not be bound by such transfer of accounts; but if there was such an arrangement on which the goods were delivered, and such subsequent assent, then defendants were liable.
    The counsel for defendants further requested the Court to charge the jury, that if the jury shall find from the testimony that the arrangement with plaintiffs, proposed or assented to by defendants, and pursuant to which the goods in question were paid out by plaintiffs, was understood by defendants, when made and while being carried out, to be an arrangement by which these goods were to be so supplied as payment in lieu of money for which Dewey & Hazelton had become responsible, and the minds of the parties did not meet and concur on any other arrangement, then defendants are not liable in this action, though plaintiffs may have understood the arrangement differently. But the Court refused so to charge, and charged the jury that defendants are not liable, although the plaintiffs may have supposed them to be, if the jury find that there was no express or implied agreement that they should become so, for the reason that the goods were not delivered to them.
    The jury returned a verdict for the plaintiffs for the amount claimed by them.

      tT. G. Sutherland and W. L. Webber, for plaintiffs in error.

      W Newton and G. Y. N lothrop, for defendants in error.
   Martin Ch. J.:

As the action purports to have been brought by Dewey & Crossman for the use of Terbell and others, the plaintiffs in error insist that proof should have been made of the assignment before judgment could be rendered against them; as they claim ■ that the assignees are the real plaintiffs. And they assign error on the refusal of the Court below to instruct the jury in accordance with this view.

This refusal of the Court was clearly correct. The declaration contains no allegation of an assignment by Dewey & Crossman to any one; nor is such an allegation usual in these cases. The words '•'•for the use of ’’ Terbell, &c., were designed to show that Terbell &o., had a right to receive the moneys when collected. It is commonly a matter of no interest to defendants to whom the money belongs. See 1 Ohio, 242. Where the interests of the defendant may be affected by the ownership — as, for example, where he claims payments or a set off— proof of the transfer of the cause of^action may become necessary, as the validity of the defense may depend upon the time when it was made, and when the knowledge of it came to the defendant. It is the nature of the defense which makes proof of the assignment necessary; and then it is necessary not for the benefit of defendant, but that the rights of the assignee may be protected by1 the Court.

Nor do I discover any error in the refusal of the Court to charge as requested by the defendants respecting the trading done on their certificates; or in the charge as given. As this is the only question upon which a difference of opinion exists in the Court, it may be well to look into the bill of exceptions to ascertain how the question arose. It will be seen that the request is confined to a particular subject, viz: the payment upon the certificates accepted by the Flint & Pere Marquette Railway Company. It is not a general request, covering the whole case; and the Court must be presumed to have confined his attention to the subject matter of the request, instead of extending it further. It is our duty to examine the errors assigned as assigned; and to go no further. Where a charge of the Court has been given upon a special request, we can not apply it to a part of the case not embraced, and to which the attention of the Court was not called. To do so would be unjust to the Judge who tried the cause, and to the parties, who only expect to meet and try questions distinctly z-aised.

The facts shown by the bill — and they are not disputed — are these:

November 21, 1859, the defendants gave to sundry men certificates in the following form:

“Flint & Pere Marquette Railway Co. — There is due to Michael Ryan forty-six and 71-100 dollars, for labor performed on the first thirteen miles of your road, next to Flint.

Paul, Phrwell <& Go.

Nov. 21st, 1859. $46.77.”

These certificates, which were alike except as to date and amount, were presented at the office of the railway company, and were accepted by the company in writing, after which they were presented by the holders at the store of Dewey & Crossman, and goods delivered thereon at different times to the amount of $292.48, the purchases being indorsed by Dewey & Crossman on the. certificates, as payment to the extent of the goods so delivered; and all the goods so paid on the certificates were charged by Dewey & Grossman in account against the defendants, and made up a part of the amount of $1743.70.

The request of the defendants was, that the Court should charge the juz-y that the trading done on the certificates of the defendants, addressed to and accepted by the Flint & Pere Marquette Railway Co., could not be charged to defendants without proof of a request by defendants that plaintiff should pay those certificates, or a part of them; and without such proof the plaintiffs can not recover for those items. This the Court very pz-operly refused; but did instruct the juz-y — and correctly— that they must find that the trading came within the original arrangement of the parties before they could find a verdict for the plaintiffs upon this item: and he fuz-ther charged, “ or unless the defendants subsequently assented to the goods being charged to them; and in case the charging to the defendants was within the original \arrangement, or was subsequently assented to by them, that would malee defendants liable.h

It is contended that this latter portion of the charge is erroneous, as it instructed the jury that, by subsequent parol assent, the defendants might be made liable for the debt of another -without a promise in writing. I do not view the charge, nor its effect, in this light. The transaction was simply this: The goods had been charged to the defendants. They could either recognise the account or repudiate it at their option: if the first, the question of their liability would be settled; if the latter, it would be left to be judicially determined. But so long as the charge stood upon the plaintiffs’ books against them, the defendants had a perfect right to admit or assent to it. As the case would stand, no one else would be the debtor. This was clearly the idea of the Circuit Judge in the charge, as is seen by the concluding paragraph. How such a transaction can possibly be construed as an undertaking to answer for.the debt of another, I am unable to perceive.

Nor do I think the Court erred in the refusal to charge as requested in relation to the account' charged to Hughes, or in the charge actually given. Evidence had been given on both sides as to whom the credit was given, and the reason of the account being kept in the name of Hughes: and the Court left the whole question, very fairly to the jury.

Error is assigned upon the refusal of another request^ which amounted substantially to this: That the ex parte understanding of the vendee, of which the vendor had no knowledge, respecting the contract for the delivery of the goods to defendants’ employees, should prevail against that of the vendor, although goods to a large amount had been received by the vendees under such contract This can hardly be held to be good law or sound morals,, so long as the vendee neglects or refuses to restore the vendor to his original position by restoring the property received, or by paying for it. An agreement in law would most clearly exist in such a case, arising from the duty to make good the party deprived of his property;, and the Court therefore rightly refused the request, and correctly charged in response to the request, that “the-defendants are not liable, although the plaintiffs may have-supposed them to be so, if the jury find that there was no express or implied agreement that they should become so, for the reason that the goods were not delivered to-them.’’

I see no error in the charges and refusals of the-Court, and think the judgment should be affirmed.

■Manning J. concurred.

Campbell J.:

Plaintiffs in error were sued for the price of goods furnished by defendants in error to different persons in pursuance of an alleged arrangement. Paul, Farwell & Co. were contractors upon the Flint & Pere Marquette Railway, and the goods were furnished to laborers and workmen in their employ. It was a question before the jury whether these goods were furnished upon the credit of Paul, Farwell & Co., or upon the credit of other parties who, according to some of the evidence in the case, were bound to make advances. There was no evidence of any written promise to pay the debt, but there was some evidence tending to prove a recognition of it, and also* contradictory evidence on this point. The Court charged that, if the goods were furnished under the original arrangement, or if Paul, Farwell &> Co. subsequently assented to the goods being charged to them, in either case they would be liable.

I think the first branch of this charge was correct, but the latter clause was erroneous. If the debt was originally the debt of another, the promise to pay it is required by the statute of Frauds to be in writing. Iji the absence of a written undertaking, I do not'' see how there could he any canse of action upon any such subsequent assent. Upon the other points presented I think there was no error. But for this charge I think judgment should be reversed, and a new trial granted.

Cheistiancy J. concurred in this opinion.

The Court being thus equally divided, the judgment was affirmed.


text:
    Farmers and Mechanics’ Bank of Michigan v. City of Detroit and others.

      Ratification by United States of deed by Governor and Judges. — Where the Gov- ■ ernor and Judges of the territory of Michigan deeded a lot in Detroit, in 1816, in exchange for a conveyance by the grantee of another lot to the United States, and the United States took ^possession of the last mentioned lot, and occupied Lit for fourteen years and more, it was heM that this ratified and made valid the deed by the Governor and Judges even if originally invalid.

      •Correction of deed: failure'of consideration. — A mistake in description occurred in a deed given on behalf of the United States, in the city of Detroit, in oxchange for other lands. The city was afterwards,' by act of Congress, mado the donee of the undisposed of lands on the city plan. To a bill filed against the oity to correct the mistake, it is not a valid defense that the title to the land conveyed to the United States in exchatige subsequently failed.

      Bona fide purchaser. — Nor can the city, as donee of the United States, nor persons who took a conveyance from the city with notice, claim the protection of a bona fide purchaser against such correction.

      ¿Laches in applying for correction of mistake. —A mistake occurred in the descript tion of lands in a deed given in 1816. The grantee took possession of the land intended to be conveyed, and he and his grantees retained it until 1848, when one who had sujoeeded to the rights of the grantor went into possession. Bill was filed in 1851 to correct the mistake. Held, that the remedy was not lost by laches.

      jBUI to correct mistake: parties. — Where the title of the grantee in such deed has been acquired by complainant without warranty, such grantee is not & necessary party to a bill to correct the místate.

      Heard May 5th.

      Decided July 15th.

    Appeal in chancery from Wayne Circuit.
    The bill was filed in 1851, to correct a mistake alleged to have occurred in a deed bearing date December 31, 1816, given .by the Governor and Judges of the territory of Michigan to Benjamin Woodworth. The mistake consisted in describing therein, as the premises granted, a lot which had before been conveyed by the Governor and' Judges, instead of adjoining premises, which it was understood and agreed should be granted by it.
    This deed was given to Woodworth in exchange for a conveyance by him of lot 49 on - the old plan of Detroit-The TJnited States went into possession of lot 49, and Woodworth also took possession of the lot in controversy. Complainants’ title to this lot was acquired through the foreclosure of a mortgage given by Woodworth in 1838. John Long and Seneca McGregory were made defendants to the bill, and it was alleged that, in 1851, the Mayor, Recorder and Aldermen of the city of Detroit, claiming to act under the authority of an act of Congress entitled “An act supplementary to an act to provide for the-adjustment of title to land in the town'of Detroit and territory of Michigan, and for other purposes,’’ approved August 29, 1842, executed a deed of said premises to the Mayor, Recorder, Aldermen and Freemen of the city of Detroit, who soon after conveyed to Long & McGregory, all parties being fully informed of complainants’ rights.
    The Court below made decree _ for complainants as. prayed.

      W. Gray, for complainants.

      EP. JET. Hartwell, City Attorney and JO. JSishop, for defend, ants, made the following points:
    That Woodworth was the proper person to contest, the questions involved in this suit, and should have been made a party. Story Eq. Pl. §§ 72 — 78; Daily v. Litchfield, 10 Mich. 29.
    That to maintain the bill complainants mu¡3t show that Woodworth performed the contract for exchange on his part. This suit is really a suit for specific performance. There is no sufficient evidence he ever gave a deed; and it is proved that an adverse claimant recovered the lot in 1842.
    The Governor and Judges had no power to convey to Woodworth. He was not a sufferer by the fire of 1805. The act of April 21, 1806 — 2 Stat. at Large, 398 — conferred no power to make such exchange, and no other act is referred to giving it.
    Defendants are bona fide purchasers without notice. There was no title of record adverse to that of the government when the land was conveyed to the corporate authorities of Detroit, and by them to Long & McGregory.
    The parties alleging the mistake have been guilty of such laches as should preclude the relief sought: — Story Eq. Juris. § 1521 a; 1 Paige, 100; 8 Pet. 420 ; 3 G. & J. 491; 1 Edw. Ch. 343 ; 3 Edw. Ch. 304; 1 Bail. Ch. 458; 4 J. J. Marsh. 610; 5 Ala. 90; 8 Port. 211. They were also guilty of inexcusable negligence and carelessness in taking this alleged title, and delaying to assert their rights; and in such cases equity will grant no relief: Story Eq. Juris. §§ 105, 146, 150, 151; 5 Humph. 529; 3 Ala. 352 ; 1 B. Monr. 177.

   Manning J.:

The mistake in the deed from the Governor and Judges of the territory of Michigan to Benjamin Woodworth, of the 31st of December, 1816, is clearly established by the evidence ; and the decree of the Circuit Court must be affirmed, unless some one of the objections insisted on by defendants stands in the way, and is an insurmountable obstacle to giving the relief asked by the bill. These objections may be stated as follows: 1st. Want of power in the Governor and Judges to convey the premises in dispute: 2d. That Woodworth never deeded to the United States lot 49, which he was to convey to the government in exchange for the premises in dispute: 3d. If there was such a deed, that Woodworth’s title to lot 49 afterwards failed, and the premises were recovered in an action of ejectment on a prior title: 4th. That defendants are bona fide purchasers: 5th. Laches on the part of complainants in not filing their bill at an earlier day: 6th. That Woodworth should have been made a party.

If we should concede the first objection — which we do not — that the Governor and Judges had no power, under the act of 21st of April, 1806, to sell or exchange the premises in dispute, the government ratified the act of the Governor and Judges by taking possession of lot 49 and the buildings erected thereon by Woodworth, and continuing to occupy the same for fourteen years and more — how much longer does not appear.

The evidence proves a conveyance of lot 49 by Wood-worth to the government.

Admitting the failure of Woodworth’s title to lot 49 ultimately, it is no defense in the present suit. The government is not a party in this litigation, and the city of Detroit is not a purchaser of the premises in dispute. In consequence of the mistake the legal title passed to the city under the supplementary act of Congress of 29th August, 1842, making the city the donee of all public lands mentioned in the original act, that had not been disposed of, except the lots on which the court house and jail had been erected, after satisfying all claims under the original act, &c.

The defense of bona fide purchaser is not set up in the answer. The city, as we have stated, is not a purchaser but a donee; and the answer admits that Long Ss McQregory knew of complainants’ claim when they purchased of the city.

There was no laches on the part of complainants. Wood-worth and those claiming under him were in possession until 1848, when the city took possession, and the bill was filed in 1851.

Woodworth is not a necessary party. Had the mortgage through which complainants claim Woodworth’s interest in [the premises contained a warranty, which it does not, the objection would probably have been a good one had it been taken in season, as such warranty would have given him an interest in the suit.

The decree of the Court below must be affirmed, with costs.

Cheistiancy and Campbell JJ. concurred.

Martin Ch. J. did not sit in this case.


author: Martin Ch. J.: Manning J.:

text:
    Alexander Van Renselaer v. John L. Whiting and another.

      Setting aside ¿judgment as to one jomt debtor.— Where tlie Circuit Court makes an order vacating a judgment as to one of two joint debtors, its effeot is to vaoate it as to both.

      JSeviezo of matters of discretion. — Where the Circuit Court has power to vacate judgments, it is a discretionary power; and its action can not be reviewed by the Supreme Court.

      Heard May 11th.

      Decided July 15th.

    Certiorari to Wayne Circuit.
    September llth, 1861, Van Renselaer recovered judgment against John L. Whiting and J. Tallman- Whiting, for $2198.83, in an action of assumpsit on the common counts. In December following J. Tallman Whiting made affidavit that he was only justly liable for $798 of the judgment, and explained his failure to make defense in due time; and upon this and others moved that the judgment as to him be vacated. The Circuit Court, after hearing the parties, on July 19th, 1862, made the following order: v
    “A motion to set aside the judgment in this cause having been argued by counsel and submitted, and the Court having duly considered the same, it is ordered that said motion be and the same is hereby granted, and that the judgment heretofore entered in this cause be and the same is hereby set aside and vacated, as to the defendant J. Tallman Whiting.’’
    Yan Renselaer sued out certiorari to remove the pro_ ceedings on this motion to this Court.

      New berry & Pond, for plaintiff in error:
    The term at which said judgment was rendered and entered having expired, said Circuit Court had no jurisdiction to vacate or to modify the same, except in correction of some clerical error or omission, and its action in the premises is therefore erroneous: — 2 Bl. Com. 314 ; 2 Bacon Abr. 484, Error, I, 6; 2 Tidd Pr. 860 ; 25 Wend. 222; 1 Wheat. 304; 6 How. 31 ; 20 Mo. 584; 1 Bibb, 346 ; 3 Scam. 170 ; 7 Ired. 346 ; 5 Jones, 415 ; 1 Smith, 287; 13 S. & M. 153 ; 26 Ala. 325 ; 5 Ark. 23, 558, 576 ; 14 Ark. 203 ; 25 Mo. 351; 25 Mo. 401; 15 Gratt. 64; 8 Cal. 521; 1 Ohio, 168; 20 Ohio, 344.
    The time within which to move for a new trial is limited by Circuit Court Rule 31, and if this time is not extended (Rule 72,) all power of the Court to vacate judgment is gone: — 3 Pick. 512; 2 Gray, 402; 12 Md. 450; 22 Ill. 173; 3 Green, 124; 2 H. & G. 79. The Court has no discretion to depart from these “laws of the Court,” unless such discretion is expressly reserved.

      S. JD. Miller, for defendants in error:
    The writ of certiorari should be dismissed, as improvidently issued: — 5 Mass. 420; 15 Wend. 198; Matter of Lantis, 9 Mich. 324.
    The Circuit Court had the power to set aside the judgment, notwithstanding the lapse of a term: — Loree v. Reeves, 2 Mich. 183; Hurlbut v. Reed. 5 Mich. 30. The theory that a judgment can not be reversed by the Court, rendering it after the term has elapsed; originated under a judicial system very different from our own. Under that system, after the postea was delivered, the roll was returned to the Court from which it was sent, and the Court trying the cause had no further control: — 2 Bac. Abr. “Error,’’ 485; 2 Chit. Bl. 298.
   Martin Ch. J.:

We do not consider it necessary to discuss the question whether certiorari will lie in cases like the present, as upon the merits we think the writ must be dismissed» The effect of vacating the judgment as J. Tallman Whiting was to vacate it as to the other defendant also; and there is now no judgment in the case. The parties have therefore now all the rights in the Circuit Court which they would have in any case of the vacation of a judgment.

Where the Circuit Courts have power to set aside verdicts, grant new trials and vacate judgments, it is a discretionary power, the exercise of which we can not review» The present case comes within this principle.

The certiorari must be dismissed, with costs.

Christiancv and Campbell JJ. concurred.

Manning J.:

The order in terms sets aside the judgment as to J'» T. Whiting only. I think it should have set it aside as to both, defendants, and granted a new trial. My brethren think that is the effect of the order, but it does not so read. The only remedy in cases of this description, where •an error has been committed that can be reached by this 'Court, it seems to me is by mandamus.

Writ dismissed.


author: Martin Ch. J. : Campbell J.: Christiancy J. :

text:
    Thomas J. Olcott v. Albert S. Hanson.

      'Payment: proof of erroneously excluded : J curing the error. — Action on a promissory note. Defense, set off and payment. The defendant offered evidence of a payment of five dollars, which was excluded by the Court, on the ground that the itom was not mentioned in the bill of particulars of sot off. Plaintiff having recovered judgment, was allowed by the Court to remit five dollars of the amount, with a view to curing the error. It was held that the error was not cured. By rejecting this evidence, the Court in effect denied the defendant the right to prove any item of payment without notice; and the Court, therefore, can not say what other payments muy have been exoluded by this ruling.

      -Amending verdict. — A jury brought in a sealed verdict, “We find for the plaintiff the full amount claimed by him on the note.” Under objection by defendant’s oounsel, the plaintiff’s counsel was allowed to state to the jury what the amount was, and they then returned a verdict for that amount, in due form. Held, per' Martin Ch. J., that it was unobjectionable.

      Heard May 13th.

      Decided July 15th.

    Error to Washtenaw Circuit, to which the cause had been appealed from a justice of the peace.
    Hanson brought suit against Oleott, on a promissory note of $85, dated March 28th, 1859, on which several indorsements had been made. Oleott pleaded the general issue, with notice of various items of set off.
    On the trial in the Circuit Court, June 17, 1863, the •defendant offered evidence of a payment of five dollars, made on the note in November, 1860. The plaintiff objected, for the reason that the .bill of particulars of set off contained no item of five dollars, for money paid in November, 1860. The Court sustained the objection, and ruled that it was not competent for defendant to prove any payments not mentioned and set forth in said bill ofi particulars.
    After the cause was submitted to the jury, they returned a sealed verdict as follows: “We find for the plaintiff the full amount claimed by him on the note.’5-The Circuit Judge ashed the foreman what amount off damages they assessed; the foreman replied that the jury did not have the note, and did not remember the amount, but that it was the amount claimed by the plaintiff. The Court then instructed the jury that it was necessary that they should find some specified sum, and inquired of the counsel of the respective parties if they objected to a, retirement of said jury to fix upon the amount; but the counsel for the defendant objected to any addition to or amendment of the sealed verdict in matter of substance.. The counsel for the plaintiff then stated that the amount claimed was $32.90, and thereupon the foreman stated that was the amount the jury found. The Court then, directed the jury to render their verdict, stating the amount at which they assessed the plaintiff’s damages; to which, direction the counsel for the defendant excepted. The jury then rendered a verdict in favor of said plaintiff against, the defendant for the sum of thirty-two dollars and ninety cents.
    An order was afterwards entered, giving defendant until the first day of August, 1863, to prepare and serve a bill of exceptions; and a bill was settled and signed prior to. that day. August 4, 1863, all proceedings on the judgment were stayed, on defendant’s motion, for twenty days,, and on August 24th, the following order was entered: “ In this cause, on motion of Norris & Ninde, attorneys for the plaintiff, after hearing Messrs. Bealces & Abel, attorneys in opposition thereto for the defendant, it is. ordered that the plaintiff have leave to remit five dollars (proof of which item of five dollars was ruled out on the trial,) from the verdict and judgment heretofore taken and recorded in this case, so that execution will issue in this case, if at all, for the sum of twenty-seven dollars and ninety cents, with costs of suit.”
    Writ of error, to remove the cause to this Court, was sued out August 13th, served August 14th, and return thereto made August 17 th.

      S. eT. Beahes, for plaintiff in error,
    to the point that remitting the five dollars did not cure the error of rejecting proof of the payment, cited: — 2 Str. 1110; 2 Wm. Bl. 1300; 1 Bulst. 49; 4 Conn. 309; 1 Marsh. 475; 17 Johns. 111; 3 Wend. 356 ; 4 Denio, 311; Sedg. on Dams. 578; 1 Chit. Pl. 338-9. In this case the Court can not know that the ruling did not prevent defendant from proving other payments.

      Morris Ss Ninde, contra,
    cited: — 5 Met. 205, 212; 6 S. & M. 507; 7 How. (Miss.) 675; 4 Yerg. 565. Even in a court of error the plaintiff should have been allowed to remit: — 1 Cush. 141; 5 Halst. 222.

         See the case of Sleight v. Wandlass, supra.

   Martin Ch. J. :

That the Court erred in refusing to allow the defendant to prove the payment of five dollars upon the note in suit, because it was not included in his bill of particulars, is unquestionable. Payment can always be proved as a matter of direct defense. Except in this particular, the jury were in no way misled on the trial. But while the case was still within the control of the Circuit Court — for it had suspended all further proceedings therein until the 24th of August — and evidently during the same term, leave was granted, on the 24th of August, to the plaintiff to remit the amount of five dollars from the judgment. This cured the error, unless the indecent haste of suing out the writ of error before the party was entitled to it, as I think — unless two courts can have jurisdiction of the judgment at the same time — and procuring a return to the writ within three days after its service, and while the cause was suspended in the Circuit Court, secured to the plaintiff in error some undue advantage. I think it did not.

There was no error in the manner of taking the verdict. The jury had agreed upon it, as the amount due on the note; but by some accident they had no data from which to compute that amount. When instructed by the Court that they must find a sum certain, and were informed in open Court of the sum, they rendered their verdict accordingly. They acted in good faith, and honestly; and there is no pretence of corruption or intermeddling. It is true that a jury who are permitted by the Court to disperse after having found and sealed a verdict, can not disperse before one is found; but no formal verdict is ever expected to be found. That is put into shape in open Court; and I see no objection to their coming into Court, as in this case, saying that they find for the plaintiff the full amount claimed upon the note, and upon receiving information from the Court, or of counsel in the presence and with the approbation of the Court, amending their verdict accordingly. The paltry amount in controversy of itself would incline me to let the verdict rest, ■unless I could see some important principle of the law had been violated.

I think the judgment should be affirmed.]

Campbell J.:

I agree with my brethren that there was error in rejecting proof of a payment of five dollars, on the note sued upon. But I cannot perceive how a defendant in error, who has taken a judgment founded on such an erroneous ruling, can [defeat the jurisdiction of this Court by indorsing down his judgment after error brought. Neither is it manifest that justice has been done by the reduction. In rejecting this item, the Court did it on the ground that no items of payment could be received without notice. A party after such a ruling is not obliged to offer proof of further items, and no presumption can be raised that he had no further, proofs to offer.

The small amount in controversy may render it improper, in a moral point of view, for parties to protract litigation; but, until our jurisdiction is limited, I think we have no right to declare any controversy allowed by law as infra dignitatem. I think the judgment should be reversed.

Christiancy J. :

By rejecting the item of payment in question, on the-ground that it was not contained in the defendant’s bill of particulars of set off, the Court in effect denied the defendant the right to prove any item of payment without notice. We can not therefore say what other payments, may have been excluded by this ruling. On this ground I concur with my brother Campbell that the judgment should be reversed.

Manning J. did not hear the argument.

Judgment reversed.


text:
    Eliza Perkins v. Sebra Perkins.

      Alimony: construction of statute authorizing decree to he changed. — The statute-—Comp. L. §3249 — which provides that, after a decree for alimony, the Court may, from time to time, on the petition of either of the parties, revise and-alter such decree, <fcc., must he construed as only authorizing- the change on new facts thereafter transpiring, which are of such a character as to make, the ohange necessary to suit such now state of facts.

      Equity: proof of case not staled in pleadings. — Petition to revise and alter a decree for alimony. Pacts proved on a reference under such a petition, which are not made a ground for relief in the petition, can not he noticed hy the Court.

      Heard December 5th, 1863.

      Decided July 15th.

    Appeal in chancery from Washtenaw Circuit.
    The complainant having obtained a divorce from the defendant, with decree for. the payment by him of $1000 alimony, the defendant afterwards filed his petition for a revision and alteration of this decree, giving as a reason why it should he changed, that he was not aware when the decree was rendered that the complainant would also he entitled to dower in his real estate, and that, in view of that right, the sum awarded was altogether too large. The Court below ordered a reference to take proofs under this petition, and proofs were taken showing the value of the dower, the amount of defendant’s property at the date of the decree, that it had since been all expended, and that he had become insane. On this testimony being filed, an order was made wholly vacating the former decree for alimony, and complainant appealed.

      O. Haiolcins and T. M. Cooley for appellant. ■

      Joslin <& JBlodget for petitioner.

       See on this point, Thayer v. Lane. Wal. Ch. 200; Cicotle v. Gagnier, 2 Mich. 381; Warner v. Whittaker, 6 Mich. 133; Bloomer v. Henderson. 8 Mich. 395 ; Barrows v. Baughman, 9 Mich. 218; Wurcherer v. Hewitt, 10 Mich. 458 ; Dunn v. Dunn, 11 Mich. 284; Peckham v. Buffam, 11 Mich. 529.

   Manning J.:

The petition is under § 8249 of the Compiled Laws, which provides that “ after a decree for alimony ’’ “ the Court may, from time to time, on the petition of either of the parties, revise and alter such decree, respecting the amount of such alimony or allowance, and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such Court might have made in the original suit.’’ The section must be coustrued to mean one of two things. It may be construed as empowering the Court to change the decree for alimony, from time to time, on facts existing when the decree is granted, or on new facts thereafter transpiring; or as only authorizing a change on the latter, when they are of such a character as to make it necessary to suit the new state of facts. The last we think is the true construction. We can not suppose the first to have been in the mind of the Legislature, as it would virtually take away the right of appeal, which the law gives to the party who may feel himself, aggrieved by the decision of an inferior tribunal, and subject the rights of the parties to the discretion of the Court making the decree, however arbitrarily or capriciously exercised. But as various circumstances might occur after alimony granted — as adultery on the part of the woman, or the loss of property by some inevitable accident on the part of the man, and the like — we are led to believe that the statute was intended to provide for such new circumstances, and that that was all the Legislature had in view in enacting it: that it was not designed to affect the right of appeal, or to give to the Court granting alimony power to review and to reverse or modify its own decree. Such a power would be unprecedented, and out of the ordinary course of judicial proceedings.

The only ground stated in the petition for changing the decree, is, that defendant did not know, at the tim'o it was made, that complainant would be entitled to dower in his real estate. If defendant was dissatisfied with the decree, he should have appealed; and not having done so, tho error, if there be one, can not be corrected, after the time for appealing has expired, by petition under the statute.

There is evidence taken under the petition of matters transpiring after the decree, but we can not notice it, as the facts proved are not made a ground for relief in the petition, which is defective in substance.

The order opening the decree for review,- and the subsequent order denying alimony, are reversed, with costs to complainant of both courts.

Cheistiancy and Campbell JJ. concurred.

Martin Ch. J. did not sit in this case.