author: Christiancy, J.

text:
    Jacob Beeson v. John Comly and Mary Comly.

      Dstoppel of Record. A plaintiff in ejectment, to establish his title, relied upon an estoppel of record arising from a decree upon a bill in equity brought, by his grantor against the ancestor of the defendants and his son, to remove a cloud upon his title occasioned by a conveyance from the said ancestor to the son, alleged to be without consideration ; — the decree granting the prayer of the bill':

      Reld% That the decree was conclusive only as to the title of the son as derived under the deed from his father; and that no estoppel arises from the decree against the defendants in the equity cause, in favor of the title of the complainant; the decree not having adjudicated upon the ancestor’s title.

      Heard July 8 and 9.

      Decided October 5.

    Case made from Van Burén Circuit.
    This is an action of ejectment, commenced in the Circuit Court for the County of Berrien and transferred to the Circuit Court for the County of Van Burén, in which Jacob Beeson is plaintiff and John Comly and Mary Comly are defendants, to recover a parcel of land of about thirty-eight acres. The evidence introduced by the plaintiff to establish his title, -was a quit claim deed from William BBeeson to himself, and the record of a suit in chancery between William B. Beeson, complainant and Joshua Comly and Milton Comly defendants; and evidence that Milton Comly was the son of Joshua Comly, and died without issue — subsequent to which that Joshua Comly died, devising all his real estate to the defendants in this suit, aucl that they claimed the land m controversy under such devise. The Circuit Judge before whom the cause was tried found for the plaintiff and the judgment rendered thereon is brought into this Court for review on a case made.

      Olías. I. Walker, for plaintiff.
    The plaintiff’s title depended entirely upon proceedings and a decree in chancery in which Win. B. Beeson was complainant, and Joshua and Milton Comly were defendants.
    The decree declares and provides:
    1. That the deed from Joshua to Milton Comly, of November 28, 1842, is fraudulent and void as against the complainant. 2. That Milton Comly execute a deed in fee simple to complainant of the 38-J- acres. 3. That in case of neglect or refusal the decree is to stand for and in the place of such deed. 4. That defendants pay costs.
    It is upon this decree, founded upon these proceedings, that the plaintiff relies as conclusive evidence of the title to the premises in question having been in Wm. B. Beeson, from whom plaintiff derives title, and the principle question in the case is, whether it is such evidence as against the present defendants, who claim title to the same under the defendants in the chancery suit.
    It may be admitted for the purposes of this argument, that said decree is irregular and erroneous, and that it would have been reversed upon appeal, for the title of the complainants rested upon a levy, appraisal, and set off under the general appraisal law, by virtue of an execution, issuing upon a judgment founded upon a contract existing previous to the passage of that law.—Willard v. Longstreet, 2 Doug., 172. There is no question but that the Court of Equity had jurisdiction of that case, and this upon two grounds: First, Upon the ground of fraud, as the bill distinctly alleged that the defendants were guilty of fraud against the complainant in making and accepting the deed of November 28, 1812. Second, TJpon the ground of removing a cloud from the complainant’s title.
    But it is said that the Court of Chancery had no jurisdiction upon this second ground, for the reason that the defendants, and not the complainant, were in the possession of the premises. But it is not necessary for the purpose of giving jurisdiction upon this ground, that the complainant should be in possession.—Chautauqua Co. Bk. v. White, 6 Barb. 605; Apthock v. Comstock, Hopk. 38; Apthock v. Comstock, 2 Paige, 482; Petit v. Shepard, 5 Paige, 493; Craft v. Merrill, 14 N. Y. 456; Chipman v. Hartford, 21 Conn. 496.

    This question is, however, an immaterial one, as the allegation of fraud gave jurisdiction to the Court of Equity. The case, therefore, was one proper for the consideration of the Court. The defendants were before it and submitted to its jurisdiction. It is enürely clear, therefore, that the decree cannot be attacked collaterally by the parties thereto or their privies, and that as to them it is entirely conclusive. 1 Greenlf. Ev. Secs. 522 and 528; Palmer v. Oakley, 2 Doug. 433; Wales v. Lyon, 2 Mich. 281-2; Prentiss v. Holbrook, 2 Mich. 375-6.

    And for this purpose it is immaterial whether the decree was on a demurrer or was that of a simple dismissal on the merits, or on a full hearing, or by a divided court, or on pro confesso.—2 Daniels Ch. Pr. 1,209; and 210, note; 2 Story’s Eq. Pur. 1,523; Murray v. Murray, 5 John. Ch. 60 and 69; Bouchaud v. Dias, 3 Denio, 238; Coffin v. Nott, 2 Green (Iowa), 582; Hamilton v. Reynolds, 5 Duer, 671; Parrish v. Ferris, 2 Black, 606; Durant v. Essex Co., 8 Allen, 108.

    A pro confesso is an admission of the facts stated in the bill, and for that reason a decree founded thereon should be, as it is, held conclusive upon the parties, 1

      Daniels’ Ch. Pr. 577; 1 Barbour’s Ch. Pr. 372; Wooster v. Woodhull, 1 Johns. Ch. 538; Williams v. Corwin, Hopk. 371; Robinson v. Townsend, 3 Gill and Johnson, 424; Ogilvie v. Herne, 13 Vesey, 563, note; Lauder v. Ready, 1 Sim. and, Stu. 44.

    The decree being conclusive, the important question is, what does it conclude f We readily admit that points that only come collaterally or incidentally under consideration are not concluded. Hopkins v. Lee, 6 Wheat. 109; Kennedy v. Scoville, 14. Comst. 61; King & Chase, 15 N. H. 9. But on the other hand, every point which has been either expressly, or by necessary implication, in issue, and has been decided, or which must necessarily have been decided in order to support the judgment or decree, is concluded. Bank of U. S. v. Beverly, 1 How. 134, 148-9; Embury v. Conner, 3 Comst. 522; Doty v. Brown, 4 Comst. 72; Castle v. Noyes, 14 N. Y. 329; Campbell v. Heirs, 1 Clarke (Iowa), 258; Thacker v. Chambers, 5 Humph. 313; Shears v. Dusenburry, 13 Gray, 292; Parrish v. Ferris, 2 Black, 606; Town v. Lapham, 34 Vt. 3 807; Church v. Chope, 35 Vt. 323; Wright v. Butler, 6 Wend. 284; Van Pelt v. Kenbare, 18 Wis. 362; 1 Greeenleaf’s Ev. 534; 2 Smith’s L. C., 494; Murphy v. Orr 82 Ill. 491.

    And this entirely irrespective of the question whether it was properly or erroneously decided, or whether it was decided on the law or fact. McDowell v. McDowell, Baily Eq. 324; Hungerford v. Cushing, 8 Wis. 324; Falkner v. Genler, 10 Wis. 563; Tallman v. McCarty, 11 Wis. 430; Shears v. Dusenbury, 13 Gray, 292.

    In applying these well-settled principles to the case under consideration, we say :
    The sole ground upon which the complainant was entitled to any relief in the chancery case was that he had become the absolute owner of the premises in question by virtue of his levy, appraisal, and set-off. The fact that he was such absolute owner was distinctly averred in the bill. It was a material, traversable fact, upon wbicb defendants could have taken issue, and without the proof and finding of which the complainant would have been entitled to no relief whatever. By the pro confesso that fact was admitted, and upon that admission it was found by the Court to be true. Such finding was absolutely essential to the rendition of the decree, and upon it the decree entirely rests, and that creates an estoppel as much as if the finding was in express terms.—Town v. Lapham, 34 Vermont, 307; Church v. Chope, 35 Vermont, 223. And when a decree is thus necessarily based upon the finding or the assumption that the title to the property in controversy is in one of the parties, it is conclusive upon that question, and no new evidence can be introduced to affect it.
    This is not at variance with Mason’s Executors v. Alston, 5 Seld. 28. There it was not necessary to find the due execution of the title to sustain the decree.
    Here there was no other possible ground for the decree, and the Court must have found the title to the premises in the complainant, and upon that point the estoppel is complete.

      D. D. Hitghes, for defendants.
    1. The bill in chancery did not make a case to quiet title. It was framed to set aside the deed from Joshua to Milton for fraud, and nothing else. The complainant makes no claim to the land except under his set-off on execution. He makes no allegation of title except that “his title has become absolute, the time of redemption having expired.” The defendants were apprised of no other claim and had notice of no other. The only relief which could be given under this bill was to set aside the deed to Milton, leaving the execution title to stand on its own merits, and the decree could not estop the defendants, except in denying that the deed was fraudulent.—King v. Harrington, 14 Mich. 540.

      2. The decree is only a decree setting aside the alleged fraudulent deed, aud does not assume to quiet the title of complainant. It nowhere declares the complainant to be the owner of the land, but declares the deed to Milton void as against complainant and his judgment, and decrees a quit claim deed which has not been made from Milton, and that the decree stand in place of such deed.
    But suppose the decree had been executed by the making of the deed by Milton to complainant. Then the legal title would remain in Joshua; for the bill alleges that Milton had reconveyed to Joshua, and a deed from Milton to complainant could carry no title. The bill sIioavs the legal title in Joshua, and there is no decree that Joshua shall convey.
    .And again, the decree that the decree shall stand in place of the deed does not vest the legal title, but only an equitable one, which Avould not maintain ejectment, even if it was for a conAreyance from Joshua.—Hickey’s Lessee v. Stewart, 3 How. 759; Mummy v. Johnston, 3 Marshall, 1,089.

    3. The Court of Chancery had no jurisdiction to quiet the complainant’s title, and if the decree did so in terms it would bo so far void, and would not estop the parties or privies.
    It appears from the bill that the complainant was not in possession and that the defendants were, and it has been uniformly held in this State that in such a case at least the Court of Chancery was not the proper tribunal for the trial of titles.—Devaux v. Detroit, Harr. 101; Abbott v. Allen 2 Johns. Ch. 521; Blackwood v. Van Vleet, 11 Mich. 256; Gaqe v. Hill, 43 Barb. 47; Hickey’s Lessee, 3 How. 756; 2 Ohio 393.

    4. But suppose the Court of Chancery had jurisdiction to quiet complainant’s title, it has not done so in a manner to make it res adjudicata on the question of the validity of plaintiff’s title, because—

      It came incidentally and collaterally in question only. It does not appear that it was passed upon, except argumentatively, from the decree. The, passing upon that title was not the proper purpose and object of the chancery suit. Title in plaintiff was never found or determined by the Court of Chancery, but assumed. No issue was joined upon it. The bill set forth the facts constituting complainant’s title. The order pro. con. and the decree could do no more than find those facts; whether they constitute title or not is a conclusion of law which cannot work an estoppel. The facts pleaded in the bill make no title, and if the defendants had admitted by answer that they did, they would not be estopped by this erroneous conclusion of law.— Duchess of Kingston, 20 Howells St. T. 355; Outram v. Morewood, 3 East, 357; Blackman’s case, 1 Salk. 291; Barrs v. Jackson, 20 Eng. Ch. 585; Story’s .Eq. Pl. 791 n. 2; King v. Chase, 15 N. H. 9; 1 Gr. Ev. 528.

    In Crandall v. Gallop, 12 Conn., 372, the plaintiff in ejectment claimed under an administration deed. Defendant pleaded a deed from the intestate and a decree in chancery declaring that intestate was of sound mind when he made it, and that he entered under the decree. It was held (872) that the plea was bad, because in the chancery suit the existence of the deed was not in issue, but only the facts tending to invalidate it. And it could not be known, except argumentatively, that the existence of the deed was in question. See also Standish v. Parker, 2 Pick., 20. The Supreme Court of Iowa has recognized and approved these cases and this doctrine. Haight v. Keokuk, 4 Iowa, 207. In New York the same doctrine is held. Brewster v. Striker, 2 Comst. 40; Mason’s Ex. v. Alston, 5 Seld. 33.

    5. In this case the plaintiff has made no case which the defendants are called upon to deny, and there is nothing to feed the estoppel. He should have given in evidence the judgment and proceedings under it and then the question of estoppel might arise. Estoppel is not a distinct mode of acquiring title, it is not a transfer or assurance, but depends as a secondary incident upon other direct alienations.—2 Hill Real Prop. 419.

   Christiancy, J.

This case comes before us upon a case made, after judgment against the defendant in an action of ejectment commenced in Berrien, but tried in the Circuit Court for Van Burén County.

Plaintiff claimed to derive title through an execution upon a judgment of the Circuit Court for Van Burén County, rendered October 18, 1843, in an action where William B. Beeson was plaintiff, and Joshua Oomly was defendant, upon a promissory note made by said Comly March 2, 1836.

No sale was made by virtue of the execution, but the land (thirty-eight acres, part of a larger tract), was appraised by three appraisers and set off to William B. Bee-son, plaintiff in the execution, February 25, 1845, and accepted by him in satisfaction of the execution.

William B. Beeson conveyed to the present plaintiff by quit claim, February 5, 1849, during the pendency of the chancery suit,' presently to be mentioned, but more than two years prior to the decree. Joshua Comly continued in possession until his death in 1862, and devised the farm, of which these premises are a part, to the present defendants, who have since remained in possession claiming under his will.

Neither the judgment nor the execution, nor the proceedings under it, were introduced in evidence on the trial of the ejectment. The question therefore does not arise, whether the appraisal and set off would be valid as against Joshua Oomly, the cause of the action having arisen upon a contract made prior to the appraisal and set off laws, under the principle settled in Bronson v. Kinzie, 1 How. 311 and McCracken v. Hayward, 2 How. 608.

But to preclude any such question, and to estop the defendants from disputing the title of 'William B. Bee-son, (through whom the plaintiff claimed), the plaintiff was allowed to introduce upon the trial, against the objection of the defendants, the record of a cause in chancery wherein said William B. Beeson was complainant and said Joshua Comly and his son, Milton Comfy, were defendants.

As appears by the record thus introduced, the bill in that cause, after stating the judgment and execution, the appraisal and setting off of the land and its acceptance, alleges that Joshua Comfy had no other property liable to execution ; that he was, and for more than ten years had been, in the occupation of the land, that complainant had offered to take part of said land in payment and satisfaction, which said Comfy refused; that, on the 28th day of November, 1842, said Joshua Comfy and his wife conveyed the quarter section, (of which the premises in question are a part) except about ten acres thereof to their son, Milton Comly, who then, and (the bill alleges) still resides with his father, and is less than twenty-two years of age. That the land so conveyed to said Milton was worth two hundred dollars and more; that said Milton paid nothing for the land and had no means of paying for it; that the description of the land conveyed in said deed was as follows: “a part of the north east quarter of Section twenty-six in township seven south, of range seventeen west, containing one hundred and fifty acres;” charges that said deed is void for uncertainty in the description of the land intended to be conveyed;, alleges that said Joshua yet resides, and for years past has resided, on the land, improving and cultivating it as if it were his own, and has not parted with the possession; charges that said deed to Milton was intended and made to hinder, delay and defraud complainant, and was fraudulent and void; alleges that the title of complainant to the thirty-eight acres of land, so set off to complainant, had become absolute, the time of redemption having expired; that said fraudulent conveyance to said Milton, is a cloud upon complainant’s title. The bill further shows, upon information and belief, and charges the truth to be that, about the month of January, 1846, said Milton did, without consideration, reconvey by deed, to said Joshua, the land so previously conveyed by said Joshua to him, though said deed from said Milton has not been put on record, as complainant is informed and believes.

The prayer for relief is only “ that said deed of conveyance from said Joshua Comly to said Milton Comly may be decreed and declared null and void, and of no force or effect whatever, and may be decreed to be delivered up and cancelled, and for such other relief or such further relief as shall be agreeable to equity and good conscience, etc.

The defendants, Milton and Joshua Comly, appeared and put in a demurrer to the whole of the bill except that portion which alleges that Joshua, at the time of the levy, bad no other property liable, etc., and, for cause of demurrer, insist that it appears by the bill that defendant Milton has no interest i,n the land, and that complainant has not stated such a case as entitles him to the discovery or relief sought.

The defendants answer and take issue upon, so much of the bill as charges that Joshua, at the time of the levy, had no other property.

The demurrer was overruled and the defendants ordered to answer in twenty days after notice of the order; upon failure to do which, the bill was afterward duly taken as confessed; and thereupon, on the 4th day of August, 1851, a decree was entered, which, after the usual caption and recitals in such cases, is in these words:

“On motion of N. Bacon, solicitor for complainant, it is ordered, adjudged and decreed, that the deed, mentioned and set forth in said bill, made by Joshua Comly and Elizabeth, his wife, on the twenty-eighth day of Novembe,r one thousand eight hundred and forty-two, to the said Milton Comly, is fraudulent and void, as against the judgment and execution in favor of the complainant against said Joshua Comly, mentioned and set forth in said bill of complaint ; and the said deed is hereby ordered, adjudged and decreed to be fraudulent and void; and it is further ordered, adjudged and decreed that the said Milton Comly execute and deliver to the complainant a quit claim deed in fee simple of the following described premises, which were appraised and set off to the complainant on said execution and described in said bill of complaint;” [here follows the description], the deed to be prepared by the solicitor of the complainant; and in case of his neglect to execute said deed, then and in such case, it is further ordered, adjudged and decreed that this decree stand for and in the place of such deed: and it is farther ordered, adjudged and decreed that the complainant recover against the said defendants his costs in this behalf to be taxed and that he have execution therefor.”

It is manifest from this statement of the case:

1. That the bill alleges no other title in the complainant, William B. Beeson, than that derived from the proceedings under the execution, and no title arising in any other way could have been found by the court under the pleadings and the order taking the bill as confessed:

2. That the Court did not by its decree find or adjudicate upon this title except inferentially, and this only as against Milton Comly.

3. To say nothing of the charge in the bill that the deed from Joshua to Milton Comly was void for uncertainty, the bill shows upon its face, upon the information and belief of complainant that whatever title might have been conveyed to Milton by the alleged fraudulent deed, had been reconveyed by Milton to Joshua prior to the filing of the bill.

Now the fact, that the reconveyance had not been recorded, might have rendered it proper, if complainant was entitled to any relief under his bill, to take a decree against Milton for a release; but to quiet the title as against Joshua Oomly, upon the case made upon the bill and to estop him by the decree, either his title must have been declared or decreed to be void as against complainant, or he should have been decreed to execute a release, or, at least, the decree should show some adjudication against him on the subject of his claim or title; otherwise, though Milton should perform the decree against him, and execute a conveyance to complainant, this would not affect the title or claim of Joshua to whom Milton had already reconveyed ; and the title of Joshua would remain the same in all respects, as if the bill had never been brought.

Now the decree, except merely as to costs, is a decree against Milton and his rights alone. Neither Joshua Oomly nor any right or claim of his is so much as mentioned or alluded to in it; nor is there anything in the decree showing any final disposition of the bill, as to him. No relief is granted against him, nor is the bill as to him dismissed. With the exception of the very dubious inference to be drawn from the granting of costs against both defendants, there is nothing in the decree to show that the bill was not intended to be left pending as against him for future action.

Whether this omission to take a decree against Joshua Oomly or in any manner to adjudicate upon his rights, was a mere oversight in drawing up the decree, or intentional and upon some particular theory entertained by the complainant’s solicitor or the Court, the result upon the question of estoppel by the record of that decree must he the same. But upon a careful examination, tbe bill itself will be found to furnish strong ground for believing that the pleader who drew the bill did not contemplate any decree or adjudication against Joshua Comly or his rights or claims, as at all necessary. No such decree or adjucation is prayed for by the bill. The only specific relief prayed for, is that the deed from Joshua to Milton Comly may be declared and decreed null and void, and may be decreed to be delivered up and cancelled.

The bill seems to go upon the theory that by getting rid of the cloud created by this deed, the title would then sufficiently appear to have been in Joshua Comly at the time of the levy under the execution, and that a good title at law would thus be made by the proceedings under the execution without any aid of a Court of Equity as against Josbua Comly or his title or claims. Both the prayer of the bill and the decree are exactly in accordance with this theory. Upon this theory it is obvious that the title, as between complainant and Joshua Comly, would be left for decision at law upon the validity of the proceedings under the execution. Such at all events we think must be the result under this record upon whatever theory the case proceeded.

Admitting therefore that the Court had jurisdiction of the case made by the bill, that it was competent for the Court to have rendered a decree which would have estopped Joshua Comly and those claiming under him, and that the plaintiff Jacob Beeson, who acquired his interest in the premises by quit claim long prior to the decree would be entitled to the same benefit of the estoppel as if the deed had been made subsequent to the decree, questions upon which there is room for some doubt, and upon which we express no opinion; still, the present decree, in connection with the record, does not in our opinion create any estoppel as against the rights or claims of Joshua Comly, or of these defendants claiming under him.

And the plaintiff having rested his case wholly upon the supposed estoppel created by this record, and neither shown nor attempted to show any other title, was not entitled to a judgment.

The judgment must therefore be reversed with costs and a new trial awarded. This being a case made not upon an agreed state of facts, but upon questions of law merely arising upon exceptions, is to be considered as a substitute for a bill of exceptions and writ of error. It is not therefore a proper case upon which to render in this Court, such judgment as' ought, in our opinion, to have been entered in the Court below.

The other Justices concurred.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    James J. Campau, et al. v. Daniel J. Campau et al.

      Partition between heirs: Possession: Powei'S of the Court in decreeing equity of partition. In a partition in equity between heirs, it is not necessary that it should appear that the estate had been settled, or delivered over by the Court of Probate.
    It was not the intention of the statute, in conferring upon administrators the right to take possession of the estate of the deceased for the purpose of collecting rents, etc., to create an intervening estate between that of the ancestor and that of the heir, converting the latter into an estate in expectancy.
    Heirs have such an estate in possession of the inheritance as will enable them to maintain a bill in equity for a partition, notwithstanding the existence of the power of the administrator to take possessiefe under the statute. — Street&i' v. Patón, 7 Mich., Shi and Marvin v. Schilling, 12 Mich., 812 recognized and approved.
    When one of several heirs files a bill for a partition against the others, who had attempted a voluntary partition of the whole estate among themselves, excluding complainant, the Court may respect the voluntary partition, so far as it does not prejudice the rights of the complainant.

      Parties. An objection at the hearing for want of parties will not be allowed, unless the facts which show the objection to be well taken, appear on the record; and an allegation that a sheriff executed a deed purporting to convey certain lands to certain persons, without showing by what authority, shows no interest in the grantees, nor any necessity for making them parties:
    Nor will an objection that a party was irregularly added in the court below, it appearing that the person so added was a proper party and would be bound by the proceedings.

      Heard July 9.

      Decided October 5.

      Appeal in Chancery from Wayne Circuit.
    This was an appeal by Daniel J. Campau, one of the heirs of Joseph Campau late of Detroit deceased, from a decree of partition rendered in the Circuit Court for the County of Wayne, in a cause wherein the children, heirs of James J. Campau, (who was a son of said Joseph deceased), were complainants, and all the other heirs of said Joseph, including the appellant, were defendants.
    Omitting all unnecessary details and collateral matters which do not affect the principles involved, it is sufficient to say that the bill, (which was filed July 186?), alleges that complainants are the children and heirs of James J. Campau deceased, (who was one of the heirs of said Joseph deceased), and, as such, seized of one undivided ninth interest in the real estate of said Joseph deceased, subject to the dower of their mother, Alice M.; sets forth the respective interests of all the defendants; states that the larger portion of said real estate is situated in tbe County of Wayne, but considerable amounts thereof in other counties; and was altogether appraised, by appraisers duly appointed, at over one million of dollars; alleges that two of the defendants, '(being heirs of said Joseph), Theodore J. and Dennis J. Campau, were, with one Francis Palms, the administrators of the estate of said Joseph deceásed ;■ — that commissioners had been duly appointed to receive, examine and adjust claims against said estate; that the time for creditors to present their claims has long since expired; — that the amount of claims allowed by the commissioners was $6,?21,67 as per their report made February 11, 1865, and avers upon information and belief, that there are no further debts against the estate.
    The bill does not state, nor is it shown whether there were or were not other assets beside the real estate sufficient for the payment of the debts, nor whether the debts proved have been paid. It alleges, upon information and belief that, on the 27th of June, 1867, the Sheriff of the County of Wayne made and executed a deed as such Sheriff, purporting to convey the interests which Theodore, (one of the heirs of Joseph and a defendant in this bill), had in five several lots in the city of Detroit, describing them, (being but a very small portion of the real estate of the deceased), to Frederick E. Driggs and Milton H. Butler, who claim to have acquired by said deed an equal undivided ninth of said lots;- — that prior to the 9th day of January, 1867, the defendants Daniel J., Theodore J., Dennis J., and Alexander T. Campan, Catharine D. Palms, Matilda Chapoton, Elizabeth Brown and Louisa V. Hane, (constituting all the heirs of said Joseph deceased, except the complainants), contriving to confuse and complicate the title to said real estate, caused to be made plats of the parcels thereof, subdividing the same into blocks, lots, streets and alleys, and pretended to dedicate such streets to the public use; — that they acknowledged said plats and caused them to be delivered to the Registers of Deeds of the respective counties for record; and caused to be executed, acknowledged and delivered to each other their several deeds purporting to convey in fee to each other, entire parcels of said estate and specific blocks and lots by number and description as contained in said plats,. so that each of them might own in severalty, whole specific portions; — that they thus undertook to convey and partition among themselves, the entire real estate of said deceased, not sold by the administrators, paying no attention to and wholly repudiating any interest or rights of the complainants therein and of their mother, the widow of said James J. deceased, and making no provision for their interests ;• — describes the portion so conveyed to each defendant, (by which it appears that three of the lots, Theodore’s interest in which, is previously said to have been deeded by the Sheriff to Driggs and Butler, were conveyed and released by all the other parties executing the deed to said Daniel J.); — states that said pretended partition deeds were recorded, that each of the defendants to whom such deeds were so made, claims the right to collect all the rents unpaid, and to accrue on the premises conveyed to them respectively, and that said Theodore J. and Dennis J. as administrators, authorize and consent thereto, and set up and give out, that they, as administrators, ' have no further duties to perform ; — prays that partition may be made according to the rights of the parties as far as practicable, or for sale of such portions as may be found not susceptible of partition; — that a receiver may be appointed to receive rents and profits, pay taxes, etc., until final decree.
    The appellant as one of the defendants demurs to the bill, on the ground that it did not thereby appear that the estate of Joseph Oampau, deceased, had been settled or delivered over by order of the Probate Court to the heirs, or that the complainants had any present right to the possession thereof, or to the relief prayed for by their bill.
    This demurrer was overruled, with liberty to answer in five days; but appellant never answered.
    The cause was afterward brought to a hearing upon bill and answer, (of the other defendants), and on report of a Circuit Court Commissioner which was duly confirmed, a preliminary decree was rendered, which, after ascertaining and establishing the rights of the complainants and the respective defendants, recites, among other things, the facts of the attempted partition by deed among the defendants, and then proceeds to decree that partition be made of the real estate in the bill set forth, among the several parties, complainants and defendants, according to their respective rights and interests, as therein above set forth “ and subject to the direction herein contained; that is to say, that out of and from said premises, there -be partitioned and set off to complainants such part and portion thereof as shall be equal in value to one ninth of the whole of said premises. And on motion of Mr. Lotkrop it is ordered that, in making said partition respect shall be had to the voluntary partition, and division of said premises, so far as the same can be done without prejudice to the just rights and interests of the complainants, in order that, so far as practicable, each of said shares and parts made by said voluntary partition, may be made to contribute like and equal proportions toward the one-ninth to be set off to the complainants. ” It then, in substance, orders a similar rule to be observed in making partition between the defendants of the one-ninth interest derived from Emily Lewis, (one of the original heirs of Joseph), which had been purchased in by the defendants after said amicable partition, “ said voluntary partition to be altered or disturbed only as far as shall be neccesary in adjusting and 'altering the same according to the respective rights of” the said defendants, (who had purchased in said interests in an equal proportion), in the said one-ninth.
    It. then proceeds to appoint three commissioners to make the partition, (with certain special directions which need not to be noticed), and to report the same to the Court. The decree than proceeds; — “and whereas it appears thatthe said James J. Campau, (the father of complainants, through whom they derive their title), did in his life time release to the said Daniel J. Campau his interest in those lots, situated in the City of Detroit, on the G-uoin farm so called ” [describing them]: It is further ordered that in making up their valuation of said estate for the purpose of partitioning and setting off to the complainants their proper share and interest, said last named two lots be wholly excluded.
    The commissioners made and filed their report November 21, 1868, notice of which was duly served on the solicitors of all the defendants, and no exceptions were taken.
    On the 29th day of January, 1869, Alice M. Yates, (formerly Campau), mother of the complainants and widow of James J. Campau, who had not been made a party to the bill, was, upon her own petition, allowed to be made a party defendant, she consenting to all the proceedings had, and to a decree being entered confining her dower to the premises set off to complainants.
    On the 10th day of February, 1869, the final decree of partition was rendered, in accordance with the commissioners’ report. This decree without otherwise disturbing the amicable partition previously made by the defendants, assigned to the complainants, one-ninth in severalty of the lands set off and conveyed to each of the seven defendants respectively, by the amicable partition made by themselves, and divided the share derived by the defendants,through Emily Lewis, among the defendants on the principles of the special instruction in reference thereto, in the preliminary decree. The Court declared in favor of sustaining this decree, but the order was withheld to give hearing to a petition by Butler, et al.

      D. O. Holbroolc, for complainants and appellee;
    Cites Kelly v. Kelly, 41 N. H. 501; Collamer v. Hutchins, 27 Vt. 733; Cox v. Ingleston, 30 Vt. 258; Streeter v. Paton, 7 Mich. 341; Wotten v. Copeland 7 Johns. Ch. 140; 1 McCarter N. J.; Duncan v. Campau, 15 Mich. 416; McGregor v. Reynolds, 19 Iowa 228.

      S. T. Douglass, for D. J. Campau appellant and one of the Defendants :
    Cites, Comp. D. §§ 4,616, 4,617; Hunewell v. Taylor, 6 Cush. 475; Tabler v. Wiseman, 22 Ohio, 207; Clapp v. Bromagham, 9 Cow. 550; Stevens v. Enders, 13 N. J. 274, 275; 1 Washb. on Real Pr. 428; Comp. D. § 2,904; Kline v. Moulton, 11 Mich. 370; Comp. L. §§ 2,992, 2,993, 2,9941 Comp. L. § 2,991; 1 Washb. on Real Pr. 477; 1 Jones Eq. (N. C.) 114.

   Christiancy J.

The first ground on which the appellant seelts a reversal of the decree of partition is that presented by his demurrer, that it does not appear that the estate of Joseph Campau has been settled or delivered over by the Probate Court to the heirs. And it is urged that, until this is done, the administrators having the right to the possession of the real estate by the statute, the heirs can have no right to maintain a bill for partition.

The settlement of the estate and delivery of the property to the heirs by order of the Probate Court, would undoubtedly constitute necessary prerequisites to a partition in that court, where, under the statutes, partition is to be regarded as an incident of, and part of the proceedings for, the settlement of the estate. The right to a partition is there confined to such real estate as has been assigned by that court to the heirs or devisees, after the payment of debts. Rev. Stat. of 1846, Ch. 74 Secs. 1 to 9 ( Comp. L. Secs. 2,991 to 2,999.)

But these restrictive provisions are not to be found in the statute providing for partition by bill in equity. The right to partition is there expressly given to “all persons holding lands as joint tenants or tenants in common,” subject only to this restriction, that the suit can only “be maintained by a person who has an estate in possession in the lands of which partition is sought, but not by one who has only an estate therein in remainder or reversion.” Rev. Stat. of 1846 Ch. 109 Secs. 1, 2, and 3 ( Comp. L. Secs. 416 to 418.)

The terms “estate in possession” do not require actual possession, but are doubtless used here in the same sense as defined m the same revision Ch. 62 § 8, Comp. L. §2,592. “ An estate in possession is where the owner has an immediate right to the possession of the land; an estate in expectancy is where the right to the possession is postponed to a future period.”

Now, though the owner of a merely “expectant estate,” as defined by the statute, would not be entitled to maintain a bill for partition; yet we think it clear that the “immediate right oí possession” spoken of in defining estates in possession, does not mean the absolute right of possession as against all possible rights or powers given for special purposes and which have not been, but may or may not be, exerted or required for the accomplishment of such special purposes. A careful examination of the whole chapter, (Rev. Stat. of 1846, Ch. 62, entitled “ Of the nature and qualities of estates in real property and the alienation thereof ”), would seem to lead to the conclusion, that, within the meaning of the statute, the owner may be said to have an “estate in possession” unless there be some intervening estate in the land, the owner of which has a present paramount right of possession, as against him.

The statute has not materially altered the common law as to the distinction between estates in possession and those in expectancy, or future estates, so far, at least, as relates to any question here involved. And yet it is not denied that prior to the revision of 1846, Chapter 71 Section 7, (Comp. L., §2,904), giving executors and administrators the right to the possession of real estate, the heirs of an intestate seized in fee became seized of an estate .in possession immediately -upon his death; though they took the estate subject to the debts and the rights of the administrators to sell the land for their payment. In Kelly v. Kelly 41 N. H., 501, it was in effect decided that the insolvency of the estate, which there gave the administrator the right to the rents and profits, did not change the estate of the heirs. And in Alabama, where by statute the administrator had power to rent the real estate of the deceased, and might recover rents accruing on a demise of the deceased, it was held that until he should have asserted this right by notice to the tenant, or by actual suit, the heir might sue for ahd recover the rent falling due after the death of his ancestor.—Masterson v. Girard’s heirs, 10 Ala., 60.

But the point has been twice expressly decided by this Court. In Streeter v. Paton, 7 Mich., 341, it was held that this statute authorizing executors and administrators to take possession of real estate, does not,, before it has been exercised, exclude the possessory rights of heirs or devisees, but merely permits the executors or administrators to take possession if they see fit. The object of the statute and the evils to be remedied by it are there pointed out.

The same point was again decided in Marvin v. Schilling, 12 Mich., 356, which was an action of ejectment by the heir before the estate had been settled or the property ordered to be delivered over by the Probate Court. And, as it did not appear that the possession had been demanded by the administrator, it was held the heir had a right to maintain ejectment against a third person.

This right or power of the administrator to take possession for the purpose of settling the estate, and paying debts, though paramont t.o that of the heirs, when he sees fit to exercise it, does not, at least before it is exercised,. create in the administrator an intervening estate betiveen that of the ancestor and that of the heirs, converting the latter into an estate in expectancy; nor does its constitute an interest in him which he can sell or dispose of as such, being given to him only to enable him to receive the rents and profits while the estate is in process of settlement. See Kline v. Moulton, 11 Mich., 370. It is a mere statute power given to him only for the benefit of creditors, and properly to be exercised only as he shall find the exigencies of the estate may require. Doubtless if he should refuse to exercise the powers when the condition of the estate required it, he might, at the instance of creditors, be compelled to do so, or be removed. And, by section 2,984 Compiled Laws, if he shouklneglect or unreasonably delay to apply for license to sell the real estate in a proper case, he would become personally liable for all loss, and his bond might be resorted to by the creditors.

But, on the other hand, when the personal estate is clearly and amply sufficient for the payment of the debts and expenses of administration, there can be no just reason for his talcing the possession and keeping the heirs out of the enjoyment of the property till the final settlement of the estate.

What was the condition of this estate in this respect the record does not inform us, nor is it material; as the question whether the exigencies of the estate are such as to render it the duty of the administrators to take possession, (so long as they have not done so), is one which belongs, in the first instance, at least, to the Probate Courts, and cannot be litigated in this suit.

But it is urged that if the heirs are allowed to have partition, before the estate is finally settled and the debts paid, the administrators may, without regard to the partition, still take and sell the land for the payment of debts and the expenses of administration, thereby rendering the partition nugatory, and leaving the heirs to resort to another partition or some proceeding for contribution after the estate is settled.

This is true. But it was equally true, prior to the statute giving the administrators the right to take possession. Such is the law in many, if not most, of the States; and yet it is admitted that in those States, as well as in this prior to this statute, the heirs were nevertheless entitled to partition before the settlement of the estate or the payment of debts, though the laws required them to have an estate in possession to maintain the suit.

The objection, therefore, raised by the demurrer is not well taken.

We see no ground for the objection that the partition is erroneous, in so far as it was made in pursuance of the special instructions to the commissioners, that in making the partition, respect should be had to the voluntary partition made between the defendants, so far as could be done without prejudice to the just rights and interests of the complainants, so that, as far as practicable, each of the shares, made by such voluntary partition, should be, made to contribute like and equal proportions.

The defendants had deliberately assumed to divide up and partition among themselves the entire estate in defiance of the rights of the complainants, their co-tenants, and had mutually executed deeds to each other, which they had put upon record, to carry that partition into effect. This is not simply the case of one tenant in common conveying his interest in a part only of the lands held in common; but an attempt of all the heirs except the complainants to appropriate and divide the whole estate among themselves; and the transaction is to be considered as a whole.

The transaction, as a whole, was wrongful and illegal as against the complainants, and cannot be allowed to prejudice their rights in any respect, nor can the defendants be allowed to gain any advantage by such wrongful acts.

The complainants, to obtain their rights in the property, were compelled to treat the transaction as absolutely void so far as their one-ninth interest was involved; and they were not bound by it nor under any obligation to ratify it in any part or particular. They were entitled to treat the whole as void, and to proceed for a partition in all respects upon the same principles as if the pretended amicable partition had never been made. They were not, however, bound to insist upon all their rights to the full extent; and might assent to have their share set off in such manner as to accommodate it, as far as practicable to the partition attempted by the defendants. And if the Court, in the progress of the cause, upon inquiry into the amount and condition of tire estate to be divided, should find it practicable and fair to all parties to assign to the complainants their share of equal value, and in a shape equally advantageous to them, by setting it off ratably from the respective shares of each of tire defendants, as fixed by them on the amicable partition, we can see no just ground on which the defendants could have any right to complain. The Court saw fit to adopt this course; and nothing airpearing to the contrary, we are bound to presume that it was done either by consent of the complainants, or upon proper inquiry into the amount and condition of the property, and because it was found to be fair and just to all parties.

The record furnishes strong reason for the inference that the complainants did not oppose this mode of setting off their share. But whether this be so or not, the complainants and all the defendants, except the appellant, seem to be satisfied with the partition, and have not. appealed. And the appellant has failed to show that the decree is unfair in any respect, as to him.

The result is that the partition made by the defendants has been disturbed as little as possible consistent with the rights of the complainants. If the complainants are satisfied, it is difficult to see on what ground the defendants can complain. Their deeds, though not binding upon the complainants—their co-tenants,—were valid and binding as between themselves.—See Bartlet v. Harlow, 12 Mass. 348; Varnum v. Abbot, Id. 474; Porter v. Hill, 9 Id. 34; Baldwin v. Whiting, 13 Id. 57; Cutting v. Rockwood, 2 Pick. 443; Nichols v. Smith, 22 Pick. 316; Cogswell v. Reed, 12 Me. 198; Johnson v. Stevens, 7 Cush. 431; Smith v. Benson, 9 Vt. 138; Cox v. McMullin, 14 Grattan 82; McKee v. Barly, 11 Id. 340; Holcomb v. Coryell, 3 Stock. N. J. 548; Great Falls Co. v. Worster, 15 N. H. 449; Whitton v. Whiiton, 38 N. h. 127; Challefoux v. Ducharme, 4 Wis. 554.

The appellant and the other defendants had the benefit of a similar estoppel in this case as to the lots on the Guoin farm in which the father of the complainants had, prior to any attempted partition, conveyed his interest to the appellant, the value of which was deducted from the aggregate value of the share of the complainants.

But it is further objected that, “if the partition deeds were valid as between the seven heirs, (the defendants), who executed them, then those heirs were not tenants in common as to the seven-ninths of the estate which they had inherited, and the decree is void and without jurisdiction, so far as it assumes to partition the seven-ninths among them.”

The answer to this objection is to be found in the principles already stated. The deeds, though valid as between the parties who made them, operating between them by way of estoppel, were not binding upon the complainants — their co-tenants — who, therefore, had a right, by their bill, to treat them as co-tenants in common throughout, as if the deeds had never been made.

As between themselves, while standing upon the amicable partition alone, the defendants were not tenants in common. But as to the complainants, who were no parties to that partition, and in this suit instituted by them for partition, the whole real estate in which they were co-tenants must be treated as the subject of partition, and the Court must have the right to deal with the whole as an aggregate, and to parcel it into such shares as- the rights and interests of all the parties may require, and must therefore be at liberty to treat the defendants as co-tenants -in common as between themselves, disregarding or remodeling, as far as necessary to secure a fair partition, any partial partition made between a portion only of the co-tenants. If this were not so, the deeds would not only operate as an estoppel between the defendants themselves, but would also estop the complainants to the extent of the interest the defendants had in the property, and compel them (however injuriously it might affect their interests), to bring a separate suit for partition against each of the defendants, and to take their ninth interest ratably from the share of each, as fixed by amicable partition, the very mode now complained of by the appellant.

The considerations already stated in reference to the special instructions touching the deeds, apply equally to the plats made by the defendants upon the amicable partition which were confirmed by the decree.

Butler and Driggs were originally made parties defendants; but the suit was subsequently discontinued as to them; and it is now objected by the appellant that they were necessary parties, and the discontinuance irregular, and the suit for this reason defective.

The question sought to be raised by this objection,- — • whether a purchaser from one of several tenants in common of an undivided interest in a part only of the property held in common, acquires such a title as to make him a necessary party in a suit for partition brought by other tenants in common, does not properly arise upon this record. Since, if we admit that the question when properly presented should be decided in the affirmative, ( upon which we express no opinion), the necessary facts to put Driggs and Butler in the position of such purchasers, are not stated in the record. The record discloses only the naked fact that the Sheriff of Wayne County executed a deed to them purporting to convey the interest of Theodore in certain specified lots. No authority is shown for the Sheriff to execute such a deed, nor does it appear that he had, or purported to have, any authority whatever. And there is, therefore, nothing to show that they were ever necessary parties to the suit, upon any view of the question above stated, nor that the rights of any of the defendants could have been prejudiced by the discontinuance.

The last objection urged by the appellant is, “that the proceedings by which Alice M. Yates was made a defendant after the preliminary decree and the report of the commissioners, were irregular.”

We do not see the force of this objection. Prima facie, as the widow of James J. Campau, she would be entitled to dower in the one ninth of the estate claimed by the complainants. She was therefore a proper, and we are inclined to think, a necessary party. An objection might have been made in the earlier stages of the proceedings, that she had not been made a party; but we see none which could properly have been made to her being allowed, on her own petition, to be made a defendant even in that stage of the case, she assenting, as she did, to all the proceedings had, and to a decree confining her dower to the premises set off to complainants.

The decree of the Circuit Court in Chancery must be affirmed with costs, and the record remitted to that Court for the execution of the decree and any further proceedings for carrying it into effect.

The other Justices concurred.


author: The Court

text:
    Same v. Same.

      Parties: Laches. Where a party to a bill in equity for a partition consents that it may be dismissed as to him, it not being alleged that his consent had been obtained through fraud or mistake, or that the partition took him by surprise, and there having been ample time for him to make his application in the Court below, the appellate Court will not arrest the proceedings to afford him relief.

      Heard and decided October 5.

    The opinion having been delivered in this cause,
    Messrs. J. J. Speed and Theo. Romeyn presented a petition on behalf of Milton H. Butler praying that the cause be remitted to the Court below "with leave to the petitioner to apply to be made a party, and that a final decision and decree be deferred until such application could be heard.
    It appears from the petition and the record, that Mr. Butler claims an interest in a portion of the property partitioned, derived from one of the parties defendant; that he was originally made a party, but consented to the bill being dismissed as to him at the solicitation of the counsel for the complainants, who did not wish the partition suit complicated with any controversy as to the validity of Mr. Butler’s title; but the partition having been made in entire disregard of that title, and there being some question whether his rights were not injuriously affected, he prays leave to come in and assert them.

      D. 0. Holbrook and 6r. V. H. Lothrop, contra.

   The Court

denied the prayer of the petition. Without

stopping to consider whether the appellate Court has the power to grant the relief prayed, it is plain that petitioner has slept too long upon his rights to have any claim for the interposition of the Court. He has known of the proceedings from the beginning; he does not claim that his consent to the dismissal of the suit was obtained through fraud or mistake, and if the partition made by the commissioners was unwarranted, or took him by surprise, there was ample time for him to make the proper application for relief while the cause remained in the Court below.


author: Graves J.

text:
    Ethan H. Rice v. Spencer S. Benedict and Walter M. Rockwell.

      Pledgees of Ghoses in action: Liability for want of diligence. Where choses in action are pledged as collateral security; the pledgees, not having entered into any obligation to collect them, are not to be charged with the consequences of a want of diligence ; but they will be held accountable for all sums collected through any of the agencies employed by them for that purpose.

      Heard July 9.

      Decided October 5.

    Error to Jackson Circuit.
    This was an action of debt brought by the defendants in error upon a judgment in their favor against the plaintiff in error and Abram V. Berry in the sum of $483 43. Bice pleaded the general issue and gave notice that the judgment had been paid and satisfied in full. The cause was referred to referees, who reported that there was nothing due on the judgment. Upon exceptions to their report, and upon further proceedings, the Circuit Court found the sum of $737 77 to be due and rendered judgment for that sum.
    It appeared on the trial that the claim of Benedict & Bockwell against Bice & Berry had been in the hands of Chapman & Eoote for collection with sundry others against the same parties, amounting altogether (that due Benedict & Bockwell then reckoned at $440 09, included), to the sum of $1,637 64: — That Bice & Berry turned out to Chapman & Eoote as collateral security for the payment of this sum of $1,637 64, demands due to them amounting to $1,601 95, and that they subsequently paid to Chapman & Eoote in cash $180. It was conceded that all the other creditors who were interested in the fund in the hands of Chapman & Eoote had been paid; but the fund proved insufficient to pay Benedict & Bockwell because, of the demands turned out $96 81 proved uncollectable, and $91 39 through the gross negligence of Chapman & Eoote were barred by the statute of limitations. It appeared further that the sum of Ill'S 12 had been put into judgment before several Justices of the Peace and - paid to them; but through like negligence of Chapman & Foote had not been received by them in time to be applied before the commencement of the suit. And the question was, whether Rice & Berry should have credit for all of these sums, and if not for all, for which.

      Johnson & Highy, for plaintiff in error.

      Livermore & Wood, for defendants in error.
   Graves J.

The defendants in error prosecuted Rice & Berry in the Court below upon a judgment of the County Court; Berry interposing no defense, but Rice pleading the general issue, accompanied by a notice that he would give evidence of payment.

In pursuance of a stipulation, made by the attorneys for the defendants in error, and the attorneys of Rice, the case was given to referees, who reported the facts found by them and their conclusions of law; but this finding of facts was subsequently supplemented in one particular by a finding made by the Court, under a stipulation also entered into by said attorneys.

According to the finding, Rice & Berry were, on the 6th day of December, 1848, indebted to

Soutliwortii, Litchfield & Beacli, in the sum of____ $609 38

J. & J. P. Seymour & Co., in the sum of.......... 226 62

Benedict & Rockwell, defendants in error, for...... 440 09

and George ,M. Peck, in the sum of............... 351 55

Making in all.................................$1,627 64;

and all of said claims were then in the hands of Chapman & Foote, attorneys for the claimants.

The referees also found that at the same time Rice & Berry held several demands, amounting to $1,001 95, against third persons, and delivered the same to Chapman So Foote, the attorneys for Benedict & Rockwell and the other claimants, and took from such attorneys therefor an instrument in the following terms:

“ Received of Berry & Rice, the above as collateral security for the payment of their indebtedness to Geo. M. Peck, J. & J. E. Seymour & Co., Soutlrworth, Litchfield & Beach, and Benedict & Rockwell.
“ Jackson, December 6,1848. “ Chapman & Eoote.”

That, subsequently, Rice So Berry paid $180; and that as between them and the defendants in error, the account for interest was balanced.

It was likewise found that Chapman So Foote acted as the attorneys of Benedict So Rockwell, and the other creditors of Rice So Berry, in the collection of the collateral demands, and that several of said demands, amounting to $96 81, were properly accounted for as uncollectable or otherwise; but that a number of others, amounting to $178 12, were uncollected in time to be applied in payment when the suit was commenced, by reason of gross negligence on the part of said attorneys; while others still, amounting to $91 29, were, through the like negligence, suffered to be barred by the statute of limitations, or otherwise lost.

The referees were of opinion that Rice So Berry were entitled to be credited with the whole amount of the collateral securities which had been paid, and also with the amount which had been lost or uncollected through the negligence of the agents of defendants in error: and as the sum of such collateral securities exclusive of $96 81 which had been accounted for, when added to $180 paid by Rice So Berry, exceeded the sum of the claims against them specified in the receipt, that judgment ought to be rendered against defendants in error. But the latter having excepted -to this conclusion, the Court set aside this finding of law and entered judgment upon the facts in favor of defendants in error for $737 77. Rice thereupon brought error; and the only material question in the case arises upon the decision of the Circuit Court, in disallowing the application of the collateral demands upon the principal debt. The case seems to have proceeded in the Court below upon the understanding, on all sides, that the other creditors of Rice & Berry mentioned in the receipt given for the collateral securities had been fully paid, and upon the argument in this Court it was expressly admitted by counsel that the demands of those creditors had been satisfied.

The case is therefore not embarrassed by any question growing out of the relation of the other creditors to the transaction, but remains to be disposed of upon the assumption that they have no interest in the matter.

It is quite manifest that the securities covered by the receipt of Chapman & Foote, were not received as absolute payment, and that their reception raised no legal impediment to the prosecution of Rice & Berry at any time by the creditors upon the original claims. And it is equally evident, I think, that Rice & Berry were at all times at liberty to resume entire control over the securities turned out, by paying their own debts specified in the receipt.

The position of defendants in error was not that of agents of Rice & Berry for the collection of the collateral demands; but it was that of pledgees, in which character they possessed the rights and were subject to the duties springing from the actual arrangement. It does not appear that any of the demands turned out were of a nature to require any steps to be taken to fix the liability of any one upon them, or that they possessed any other character than that belonging to an absolute and unconditional debt due from one party to another. Neither does it appear that the condition of the collaterals, in respect to the parties liable upon them in fact, or by possibility, or in reference to any special recourse to property to satisfy them, has been affected by any act of defendants in error. But it is urged that the latter did not with requisite diligence take and carry on active proceedings for collection. I think, however, that defendants in error cannot on that ground be charged with such of the pledged demands as remain uncollected.

When the facts are properly considered the legal import of the transaction appears to have been, that the defendants in error were entitled to use all the ordinary and legal means to obtain enough out of the collaterals to satisfy the original claim and all necessary costs and expenses, and were subject to be charged with whatever should be collected by any of the agencies employed under the arrangement; but were not bound to prosecute and take the trouble and chance of being compelled to pay the attending costs and expense, nor subjected to any risk as to the solvency of the collateral debtors, or required to assume the validity of the pledged demands.

To visit defendants in error with any loss which may have happened under the circumstances, would be to charge them as with the consequences of a breach of duty, when they not only did not owe the duty imputed, but when the principal debtors, who would be the gainers by such a shift might have averted the loss, if not inevitable, by discharging their own obligations to defendants in error. If it were shown that the latter, by some positive act, frustrated collection, or brought any of the demands into a condition which impaired the chance of collection, a question would have arisen which this record does not present and which we do not discuss.

As already suggested, however, we think that by the arrangement found to have been made by the parties, the defendants in error were required to apply on the principal demand, whatever should be received by any of the agencies for collection contemplated by it, and hence that the sum of $178 12 so received should have been allowed.

According to the view here taken of the facts the accounts between the parties stood as follows: The amount of the four claims on which the demands were turned out was $1,627 64. The collaterals amounted to $1,601 95, while Rice & Berry paid in cash $180; thus making the whole amount received for the creditors $1,781 95. From this must be deducted $188,10 consisting of $96 81 of collaterals accounted for as uncollectable and $91 29 of other uncollected demands; which leaves $1,593 86 to be deducted from $1,627 64, the sum of the demands against Rice & Berry, and exhibits a balance in favor of defendants in error of $33 79 and that sum increased by interest from December 6 1848 appears to be the just measure of recovery by defendants in error.

I am, therefore, of opinion that the judgment of the Circuit Court as against Rice, who alone has brought error, ought to be reversed with the costs of this Court, and that judgment should be here entered against him for the amount last mentioned.

The other Justices concurred.


author: Campbell J.

text:
    Michael Sage v. Joseph Laurain et al.

      Highway Commissioners: Alleged malice in laying out a highway. Ho action will lie against Highway Commissioners for' laying out a highway, while they are acting within their jurisdiction and violate no law.

      Heard July 10.

      Decided October 5.

    Error to Wayne Circuit.
    This was an action of trespass on the case brought by Michael Sage against Joseph Laurain, Michael Markey and Thomas Sullivan, who were Highway Commissioners of the township of Springwells, for an alleged malicious exercise of their power in causing a petition to be brought before them as such Commissioners for the laying out of a highway and acting upon such petition with the intention of injuring and oppressing the plaintiff. On the trial the defendants’ counsel requested the Court to charge the jury:

      First — That the declaration in this case is against the defendants in their official character as Highway Commissioners, and plaintiff cannot recover without proving that each and all of them knew and believed that there was no public necessity for opening the road m question; and that each and all of them were actuated by malice in their action. The Court charged as requested, with this modification, that at least two of them must have so believed and been actuated by malice.

      Second — That if the jury find that Mr. Sullivan, one of the Commissioners, acted without probable cause, and from actual malice, yet if the other Commissioners did not so act, the verdict must be for the defendants. The Court charged as requested.
    To each of which charges as given, plaintiff excepted.
    The jury rendered a verdict for defendants, and the cause was brought into this Court by writ of error.

      H. M. Cheever, for plaintiff in error.
    But a single question is involved in this case. The action was for damages for malicious proceedings at various times in opening a highway over land of plaintiff in error. The Court charged that plaintiff could not recover against one of the defendants, but that the jury must find that at least two of them acted “maliciously,” and without “ probable cause.” The general principle as to “ malice ”
    and a “want of a probable cause” being necessary, was conceded. The general rule governing actions of tort — that a verdict might be against one or all of the defendants, is not disputed; but it was insisted that this action was against defendants in their official character as Highway Commissioners, and as the concurrent action of two of them was necessary to perfect an official act, the jury must find that at least two of the defendants were actuated by “ malice,” and had “ no probable cause for their action.” We think this position is untenable.
    1. The action was not against defendants in error in their official character, but as individuals. The summons named them as individuals, only. The declaration uses the term “Highway Commissioners” only as descriptio personm, and designating an office, any incumbent of which, had the legal power to do an act, the doing of which was, in this instance, and under the peculiar circumstances of this case, by the defendants, alleged to be illegal.

      2. If the action was against them in their official character, the general rule in actions of tort applies to this case, and the verdict may be against one or all of defendants. In a case for malicious prosecution against the plaintiff, the Justice and the Constable; the action may be said to be against the Justice and the Constable in their official character. The Constable may justify under legal process. The Justice may show an entire absence of “ malice ” and of a knowledge of a “want of probable cause ” on his part, and judgment may be against the remaining defendant.—2 Hill, on Torts, Chap. 20; 1 Hill, on Torts, p. 464, §10 and note; Hall v. Suydam, 6 Barb. 83.

    This fact of there being no “ public necessity,” etc., was known, or was not known, to each of the defendants. Each was, or was not, actuated by “malice” in the proceedings. There was no official malice. Both the necessary elements to constitute the tort were to be found, if existing, in the individual, and the fact that the individual used his office to effect his purpose, (in connection with others), would not divest him of individual responsibility.—Blackburn v. Baker, 1 Port. 284 J Cooper v. South, 4 Taunt. 802; Wilderman v. Sandusky, 15 Ill. 59; Gottloff v. Henry, 14 Ill. 384; See also, 2 Hill, on Torts, p. 462-471.

      Chas. I. Walker, for defendant in error.
    I. The plaintiff in error, who was plaintiff below, was not entitled to recover upon the counts in his declaration, and, therefore, if there was error in the charge of the Court, the plaintiff is not entitled to any benefit therefrom, as it did him no injury.
    The declaration is against the defendants, as Commissioners of Highways for the town of Springwells, and avers, substantially, that without any reasonable cause therefor, they maliciously laid out a highway through the land of the plaintiff, which laying out was subsequently reversed or set aside. The Commissioners, in laying out a highway act judicially, and it is not averred or claimed that they acted without their jurisdiction. They are, therefore, protected by an ancient and important rule of law.—Wall v. Trumbull, 16 Mich. 235; Yates v. Lansing, 5 John.291; 2 Hilliard on Torts, 170 to 195.

    II. The action complained of, is the malicious action of the Commissioners of Highways as a Board. The plaintiff, therefore, to sustain his declaration, was bound to prove the malice of the Board as an entirety. The separate malice of each individual was not the thing complained of, and if proved did not authorize a recovery. If the charges given in this case were erroneous at all, we submit that such error is in favor of the plaintiff, and is one of which he cannot complain.
    III. The declaration charges that the act complained of was the act of the entire Board. The act would have been valid if but two of them had concurred therein.
    Under the charge the jury must have found that not more than one of the Commissioners was guilty of malice. The question therefore raised by the charge is simply this: If a Board consisting of three, all join in laying out a road without probable cause, but two of - them act without malice, can the third one who acts with malice, be charged with the consequences of the action of the whole Board ? He could not, acting alone, have laid out the road. The laying out would have been valid without his action. How then can it be said that the road was laid out because of his malice.
   Campbell J.

Defendants,' who are Highway Commissioners were sued for having “ falsely, wrongfully and maliciously, without any reasonable cause therefor and without the public necessity requiring it” caused a petition to be prepared and presented to them for a public highway over the property of plaintiff, and without reasonable cause or public necessity etc., determined that a highway should be opened and recorded; and that their proceedings were subsequently reversed.

The injury complained of is not a trespass on plaintiff’s lands under void proceedings. For such a trespass some one would be liable, but whether any but the actual trespasser, might depend upon circumstances.

The injury complained of here is althogether incorporeal, and consists in nothing but the wrong which plaintiff supposed himself to have suffered by proceedings which he alleges were carried on to vex him, but which never caused any injury to his freehold, and were reversed without being carried into effect.

The case is entirely without precedent and cannot be maintained on any theory. So long as they do not violate the law, the motives, and discretionary action of these Executive Boards cannot be reviewed collaterally. If, in due form of law, they declare a highway necessary, no Court or jury can declare it unnecessary, unless upon an appeal such revisory power is given. The public interests which they are required to administer cannot be governed by the discretion of any one else. And no one can have a cause of action, for any act that is done in pursuance of law. It is only where law is violated that an action will lie, and then it will only lie for some actual injury. And even where an actual wrong is done, it must be a legal wrong and there can usually be no remedy where it would involve the review of discretion which is lawfully vested. There must be what is generally ¡termed an excess of jurisdiction, — an act outside of the limit of the discretion vested by law. Courts have not always agreed in determining when these limits have been exceeded, but the principal is familiar and settled.

In the present case the acts charged were all within the statutory duty of the Board, and purely discretionary. The declaration 'shows, that for all that was done toward declaring and establishing a highway, the plaintiff has already found an adequate remedy by appeal. But as the land was not trespassed upon unlawfully, there has been no actual injury, and none is described or claimed, and of course there can be nothing to warrant an action. The law cannot remedy imaginary or theoretical grievances.

The declaration shows no cause of action, and the judgment was properly rendered against the plaintiff.

Judgment affirmed with costs.

The other Justices concurred.