author: Christiancy, J.

text:
    William N. Delashman v. Ezra Berry, Administrator of George A. Kellogg.

      Record : Mnding by the. Circuit Judge. When a special finding by the Circuit Judge appears in the record, it will be presumed, in the absence of any showing to the contrary, that it was made upon request; but the finding, it seems, would be good if made without any special request, and will have the same effect as if requested.

      Lease at lessee's option: Election. A party in possession of premises under a lease granted “for the term of one year, with the privilege of having the same three years at the same rate” at his option, — the lease containing a covenant that he would “ at the end of said term deliver up quiet possession of the premises,” and who continues in possession after the end of the first year, elects, by such continuance, to hold the premises for the full term of three years.

      Heard April 23.

      Decided April 26.

    Error to Branch Circuit.
    On the 29th day of May 1866, George A. Kellogg, the intestate of the defendant in error, commenced proceedings before the Circuit Court Commissioner of the county of Branch to obtain possession of premises, which on the 24th day of May, 1865, he had leased to William N. Delashman “ for the term of one year-, with the privilege of having the same three years at the same rent, and at the option of the lessee, for the annual rent of four hundred dollars; payable quarter-yearly.” The lease contained the further provisions that: “The said lessee hereby agrees to pay the said rent as above specified; that he will not underlet the same without the consent of the lessor, and at the end of said term to deliver up quiet and peaceable possession of said premises with the appurtenances in as good order and condition as when received, natural wear, tear, damage by the elements excepted.”
    The Commissioner rendered a judgment in favor of the complainant and ordered the restitution of the premises. The defendant appealed to the Circuit Court.
    The record shows a special finding of facts by the Circuit Judge, setting forth the lease, and stating also: “That the said lease and the possession of the premises therein described were delivered to the defendant, the lessee, on said 24th day of May, 1865, and he continued to use and occupy them until the 29th day of May, 1866, when this suit was commenced before a Circuit Court Commissioner for the purpose of recovering the said leased premises: That previous to the commencement of this suit the lessee, Delashman, had not notified the lessor of his intention or election to continue the said lease or occupation of the premises for any period of time beyond the one year mentioned in the lease.”
    On these facts the Circuit Judge found “as a conclusion of law that the defendant was not and is not entitled to hold the premises under said lease for only one year. And that at the time of the commencement of this suit, the defendant was guilty of unlawfully holding over the said premises, after the time for which they were let to him, and that the complainant was and is entitled to the possession thereof.”
    The judgment entered on the finding, the defendant below brings into this Court by writ of error.

      Shipman & Loveridge, for plaintiff in error.
    The lease fixes the terms for the three years as well as the one; nothing more was left to be done by the lessor. It was left to the lessee to terminate the lease at the end of the year or not, as he saw fit. Continuing in possession after the one year, was an election by Delashman to hold for the long term. After entering upon the new term it became a lease for the time so entered upon.

      Kelso v. Kelly, 1 Daly 419 ; Chretion v. Doney, 1 Comstk. 419 ; House v. Burr, 24 Barb., 526 ; Goodright v. Richardson, 3 T. R. 462 ; Ferguson v. Cornish, 3 T. R. 463 (ra); Dann v. Spurrier, 3 Bos. & Pul., 399 and 442 ; Webb v. Dixon, 9 East, 15 ; Taylor’s Landlord and Tenant, 819 ; Brewer v. Thorp, 35 Ala., 9 ; Kramer v. Cook, 7 Gray, 550.

    We have been unable to find a case requiring the lessee to give any notice of his intention to continue such a lease, other than his occupancy under it, although questions have arisen as to his right to terminate the lease without such notice. (See JBac. Air. Leases ‘rL” 3, 625-6 and n). But however this may be, no case holds that such a lease can be terminated by the lessor, as was attempted in this case. In Goodrich v. Richardson the lease was for “3, 6 or 9 years” without locating the option. The Court held that both parties had it, and the lessor might end the lease — on reasonable notice, however. But this construction was denied in Dann v. Spurrier and Webb v. Dixon, the Court here holding that the lessee only had the option, under the rule that deeds are to be construed in favor of grantees. But in the case at bar the option is expressly reserved to the lessee; the lessor had nothing to do with it. And when he found the lessee in possession after the expiration of the year, he knew by that fact that he had chosen between going and staying.

      Newberry, Pond & Brown, for defendant in error.
    I. The finding of facts in this case is no part of the record. § 3436 of the Compiled Laws requiring a decision in writing of all questions of fact tried by the Court is limited by the act of 1863, p. 183, to decisions given in vacation. § 3437, requiring a specification of facts found by the Court, upon the request of either party, is limited by Circuit Court Rule 87, to cases in which a request in writing is made before judgment. Neither the record in this case, nor the finding itself, shows that any request at all was made for a finding of the facts. As no bill of exceptions was settled under Sec. 3438, and no written request filed, the finding is purely voluntary, and forms no part of the record in this case.
    II. Delashman having given no notice of his election to renew the lease, defendant was entitled to commence proceedings against him under § 4985.

      The power to claim a renewal was expressly conditioned upon his giving notice of his election to do so. Holding over for five days was certainly no evidence of an election to remain for three years. As to the necessity of notice, see Taylor’s Land, and Ten., § 382, 839 ; Walker v. Engler, 30 Mo., 130 ; Besse v. Gallegger, 7 Wis. 442 ; Hall v. Delaplaine, 5 Wis., 206 ; Wall v. Hinds, 4 Gray, 256 ; Tracy v. Albany Exchange Co., 3 Selden, 472 ; Eaton v. Lyon, 3 Ves. 690. 1 Ball & B. 285.1 Ves. Jr. 475 ; Rawstorm v. Bentley, 4 Bro. C. C. 415 ; Maxwell v. Ward, 11 Price, 16 ; Hyde v. Skinner, 2 P. Wms., 196. 40 Barb. 94.

    III. The unexplained holding over for five days, is no evidence either of an election by the lessee to continue for three years, or of assent by the lessor to his doing so. If it be so, their rights are mutual. But will it be claimed that if the lessee had quit the premises at the expiration of the five days the lessor could recover the rent for the three years? As to the effect of holding over, see opinions in Allen v. Carpenter, 15 Mich., 25.

   Christiancy, J.

A preliminary objection was made by the counsel for defendant in error, that the special finding of facts by the Circuit Judge constitutes no part of the record; and in support of this objection we are referred to sections 3436 and 3437 Comp. Laws, and the act of 1863. Session laws, p. 188.

It is true, by ’these statutes the Circuit Judge is not compelled to specify the facts found and his conclusions of law thereon, unless requested by one of the parties.

But in all cases where the cause is tried before the Court without a jury, the decision of the Court is required to be in writing, and filed with the clerk. If he makes this decision without specifying the facts found, his decision upon such facts involves a general finding in the nature of a general verdict. A special finding of facts under this statute comes in the place of a special verdict and serves all its purposes. And we are inclined to think it not only competent but highly proper and much fairer to the parties, for the Court in any case, when time and opportunity will permit, in making the written decision required by section 3436 to specify the facts found and his conclusions of law thereon ; and that when he does so, it will have the same effect as if he had been specially requested so to do under section 3437.

The only reason lor not peremptorily requiring the special finding in all cases, would seem to have been to save the judge the labor of making it special, unless requested by one of the parties.

But if this were not so and the request was necessary to authorize the special finding, his decision made and filed in the cause and containing this special finding, must, we think, in the absence of any showing to the contrary, require us to presume the request. See Sallee v. Ireland, 9 Mich. 154.

The finding of facts must therefore be taken as a part of the record.

Was the lessee, then, in order to avail himself of the privilege of a longer term than one year under this lease, bound to notify the lessor of such intention, at the expiration of the first year, or before suit brought by the lessor to oust him, for continuing contrary to the conditions or covenants of his lease ?

This is the only question raised by the plaintiff in error.

The lease was “for the term of one year, with the privilege of having the same three years at the same rent, at the option of the lessee.” And the lessee, among other things, covenanted “at the end of said term, to deliver up quiet and peaceable possession of said premises.” He had, when the suit was instituted to oust him, continued in possession five days after the expiration of one year, without otherwise giving notice of his intention to avail himself of the option for the longer term provided by the lease.

The Circuit Court held in effect, that this continuance m possession, after the expiration of the first year, was not an exercise of the option thus to continue for the longer term; and that, to give him the right to continue for the optional term, he was bound to give actual notice of such intention at the end of the first year, or, at least, before the suit to eject him was commenced. Such a notice had it been given would have been a notice only of the lessee’s intention to continue the same occupation, upon the same terms as before. And upon principle it would certainly seem that the actual continuance of such occupation was the best and most conclusive evidence of Ms intention to continue. And, as it was at his option to have the term expire at one year or three years, and he had covenanted to deliver up possession at the end of the term; but one inference could legally and properly be drawn from such continuance, after the year, viz: that he intended to continue rigMfully according to the terms of his lease, rather than wrongfully in defiance of its provisions. If he elected to remain at all after the first year, he must be held to have elected under, and according to, the terms of th.e lease which gave him no right to elect a term of five days, a month or any other period, except the optional term provided by the lease, which in this case could not have been less than one year, if in fact, less than two years, after the expiration of the first.

We think such should be the result upon principle; and, though we are aw7are of no case precisely in point in all its circumstances, we think the same principle is involved, or taken for granted, in several of the cases cited by the counsel for the plaintiff in error. See especially Ferguson v. Cornish, 3 T. R. 463, (n); Dann v. Spurrier, 3 Bos. & Pul. 399, 442; Webb v. Dixon 9 East, 15 ; Brewer v. Thorp, 35 Ala. 9 ; Kelso v. Kelly, 1 Daly, 419 ; Kramer v. Cook, 7 Gray, 550.

This is not like the case of taking the advantage of a forfeiture of a lease or other contract. In such cases a change of the existing state of things, or of the relations of the parties is contemplated by the exercise of the option, and not a mere continuance of the same state of things or the same relations; and to effect this change a notice is very properly held to be necessary.

Nor is the option for a longer term under this lease, like a covenant for the renewal of a lease at the option of the lessee. Such renewal contemplates the execution of some further instrument by the lessor, and generally by both lessor and lessee, instead of a mere continuance of the one already in existence (as in the present case); and for this purpose a notice by the lessee might be required.

■ Whether such continuance in possession after the expiration of the year would, in all cases, be conclusive upon the lessee of his election for the full optional term, or whether it might be excused or explained by circumstances, or by notice from him to the lessor at, or prior to the expiration of the year, of his intention to remove soon after that time, and not to claim the optional term, are questions not involved in the present case and upon which we express no opinion.

The judgment of the Circuit Court must be reversed, and a judgment must be rendered in this Court for the defendant below, with costs of both Courts.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    Seth Case v. Samuel E. Peters.

      Ref owning deeds in equity; Farol evidence to establish trusts. Deeds of conveyance, leases or other written evidences of title, will not be changed by proof of a verbal agreement, except in very clear cases, and where the contract is proved to the entire satisfaction of the Court.

      Heard April 25.

      Decided April 26.

      Appeal in Chancery from Wayne Circuit.
    The bill in this cause was filed in the Circuit Court for the County of Wayne, in Chancery, by Seth Case, against Samuel E. Peters. It states that about the year 1844, the complainant leased of Bishop Lefevre, certain premises in the city of Detroit, situated on the corner of Bates street and Michigan avenue, for a period of ten years: That he had erected upon said premises four buildings, for the purpose of renting the same, and did rent them during said term: That he sold to the defendant, one of said buildings for the sum of three hundred dollars: That he did not sell him any share or interest in the lease or the ground covered thereby, but made a parol agreement with Peters that he would permit his building to remain where it was, as long as he paid one-quarter of the rent and one-quarter of the taxes upon said lease-hold premises: That, accordingly, said building of Peters, remained on the land, and he paid to complainant one-quarter part of the rent and taxes of the whole lease-hold premises: That at the expiration of said ten years’ lease, he obtained from said lessor a new lease of said premises, dated March 18, 1854, for thirty years which lease was duly executed and recorded : That he rented his dwellings, as heretofore, paying the ground-rent to the lessor, and that Peters continued to pay him one-quarter of the ground rent and taxes.
    The complainant further states that in the spring of the year 1857, he removed to the country and left his business in charge of the defendant, instructing him to collect the rents of the three buildings and pay the ground rent and taxes: That Peters so negligently managed his trust that a few months thereafter, at the close of the year 1857, he ascertained to his surprise, that the lessor had entered upon the premises for non-payment of rent, and was in possession of the whole premises and the four buildings thereon,— three of which belonged to complainant and one to Peters: That he came to town and set to work to regain possession of his property: That the lessor consented to give him a new lease if he would only pay up the rent in arrears and some repairs he had expended on the buildings, amounting in all to the sum of three hundred and eighty-eight dollars.
    The bill further states, that at the time the lessor entered upon said premises, for non-payment of rent, there was, upon said three buildings owned by complainant, a chattel mortgage, made by him to David Cooper, on which was due and unpaid about six hundred and sixty-five dollars, which he had no means of paying; but he ascertained that he could borrow of said Cooper, the additional sum due to the lessor, if he could secure to said Cooper both the new sum and the old debt due on the chattel mortgage. Accordingly, he proposed to the defendant, that he should aid him in securing to said Cooper the above mentioned two sums, amounting to about ten hundred and fifty dollars, to which proposition Peters assented; and an arrangement was made by which the lessor should make the new lease, he was ready to make, to Peters instead of to complainant, and that thereupon Peters should mortgage the lease-hold interest to Cooper, and should also assign to Cooper, as collateral to said mortgage debt, a certain contract of sale of a lot of land, made to said Peters by John ’Winder, Esq., on which was still due to said Winder several hundred dollars, on which lot said Peters had erected a valuable brick house. Peters was to hold said lease-hold property in his own name, and collect all rents and profits, and apply the surplus, over and above ground rents, taxes and repairs, to the payment of said chattel mortgage to said Cooper, and after the same was paid in full, should assign said lease to complainant.
    The bill further charges that this arrangement was carried out; that he put JPeters in possession of the premises, and gave him authority in writing to collect the rents. And that in accordance with such arrangement Peters has collected all the rents of said three buildings from said May, 1858, to the present time, more than enough as complainant was informed to pay said ground rent, taxes and repairs, and the said chattel mortgage and the interest thereon, leaving due to complainant a large amount of money.
    The bill prays for an account of the rents and profits collected; that the defendant shall be decreed to assign the lease to complainant, subject only to the defendant’s right to retain his house on the premises, or if it shall appear that he has not yet secured rents enough to pay him said mortgage and interest; that, then, he be decreed to assign said lease upon the payment to him of the balance due to him; and for a receiver, &c.
    Defense : The answer admits the execution of the lease to complainant, as stated: Also the erection of the buildings and the sale of one of them to the defendant; that the parties made the parol agreement mentioned in the said bill, and, that defendant complied during the lease with the terms of said agreement: That complainant obtained the new lease, dated March 18, 1854, stated in the bill; that in the spring of 1857, complainant removed to the country, and that in the latter part of said year the lessor resumed possession of the premises because of the non-payment of rent; but denies that during the period, from the spring to the close of 1857, the defendant was in charge of said premises, or was charged with the collection of the rents as stated.
    The defendant admits that the lessor agreed if all back rents and other claims were paid np he would give a new lease for the unexpired term of the said last forfeited term: That, at this time there was, as stated, a mortgage on the premises, given by said Case to David Cooper, upon which was due $665; and that the claims of the lessor amounted to $388. He admits that the new lease was executed to him; but he denies that it was upon any such agreement or understanding as is set np in the bill, or that the complainant was to have any interest therein, in reversion or otherwise. But, on the contrary says, that the true facts are: said complainant was at this time owing the defendant about $1,500 for money loaned, paid for him, and supplies furnished him. That he was utterly unable to pay any part thereof, or any part of the sums due to Cooper and the lessor: That as he could, not comply with the terms upon which alone a new lease could be procured, it was agreed between complainant and defendant that defendant might take the new lease in cancelment of his claim, and make such arrangements as he could with Cooper and the lessor: That this defendant then executed an assignment of his contract for his said property on High street, to said Cooper, and also upon the lease-hold premises, to secure the payment with interest, of the amount due upon the old mortgage, and sum of $388 then advanced by Cooper: That defendant then paid the lessor, and the complainant having previously assented, the new lease was executed to defendant. But defendant denies that complainant had anything to do with or any interest in these transactions. He denies that upon or after the execution of said last lease, the complainant pirt him in possession of the premises, or gave him any authority either in writing or otherwise, to collect the rents; or that it was ever agreed or understood complainant should have any interest whatever in the premises.
    A replication was filed, testimony taken, and the cause was brought to hearing on pleadings and proofs. The Court decreed that the complainant have leave to redeem; and it was referred to a Commissioner to state an account. On the coming on of the Commissioner’s report, the Court made a final decree that, on the payment of the sum stated by the Commissioner, — $1,083,— the defendant convey to the complainant his interest in the premises, as prayed for in the bill. From this decree the defendant appeals to this Court.

      Walker & Kent, for complainant.

      Ward & Palmer, for defendant.
   Christiancy, J.

Admitting that the yerbal agreement set up in the bill, under the circumstances alleged, would make Peters a mortgagee of Case, and convert the lease into a mortgage to secure Peters for the sums paid and the security given by the latter, in the arrangement by which the lease was obtained, rather than a trust in favor of complainant, and that the bill is rather in the nature of a bill to redeem, than for the specific performance of an agreement, — both of which admit of doubt, and upon which we express no opinion, — the complicated verbal arrangement set up is so entirely different from, and inconsistent with, the legal effect of the written lease, and the other written evidence of the transaction, as to have made it a very unfit subject to be trusted for years entirely to the mere memory of the parties.

But, upon the hypothesis that the case sought to be established by complainant would be one rather in the nature of a mortgage than a trust, and that parol evidence therefore is admissible to establish the agreement and thereby change this lease executed by the Bishop to Peters into a mortgage from complainant to Peters; it would, we think, be exceedingly dangerous, and tend to weaken confidence in titles generally, if the effect of deeds of conveyance, leases or other written evidences of title could be thus changed by a verbal agreement, except in very clear cases, where the contract is proved to the entire satisfaction of the Court. It should never be done upon a slight preponderance of evidence. The Court should be satisfied beyond a reasonable doubt. — Hunter v. Hopkins, 12 Mich., 229 ; and see Jones v. Tyler, 6 Mich., 368.

The evidence of this alleged agreement is not of this character. The agreement itself, as stated by complainant in his evidence, is not very definite. The defendant in his testimony positively denies any agreement of the kind. These are the only witnesses who know whether there was any agreement, or what it was. The other testimony is by no means either very direct or convincing, and is susceptible of several explanations. The most we can say of the evidence-as a whole, is, that while some of us think there is a slight preponderance in favor of the agreement, some of our number think -it about equally balanced, or that there is a slight preponderance the other way; and none of us think it sufficiently clear and convincing to warrant us in disturbing the legal effect of the lease, and other papers, executed as the evidence of the transaction.

The decree of the Court below must be reversed, and the bill dismissed with costs.

The other Justices concurred.


author: Cooley, J. Campbell, Ch. J.

text:
    Dexter A. Ballou v. Michael W. O’Brien, John L. Walsh and Daniel Burns.

      United States grants of land to the State: Indian reservations. The grant of a sovereignty must have operation according to its intent; it may operate immediately, or from time to time, if such appear to be its purpose. The words employed in the proposition relating to school lands in the act of Congress for the admission of Michigan into the Union, ( Comp. Laws, p. 88 ), indicate an intent on the part of the United States that the grant should have a continuous operation; and, therefore, lands reserved for the benefit of Indian tribes by treaties with them,, prior to the admission of the State, will, on the extinguishment of the Indian title, be conclusively presumed, as against a trespasser, or one not claiming under the United States, to be embraced within the proposition granting lands to this State, contained in the act of admission.

      State lands; Reclamation of stolen timber. Whether the Commissioner of the State Land Office, or the Governor, be the proper officer to appoint an agent to reclaim timber stolen from the State lands; or whether the act of the Commissioner in appointing such an agent will not, in the absence of any showing to the contrary, be presumed to have been duly authorized by the Governor, — quaere: —but, in an action for such timber, brought by a party deriving title by purchase from an agent appointed by the Commissioner, neither the trespasser nor any party claiming under him, will be allowed to question the validity of such appointment.

      Sales of reclaimed timber. A private, rather than a public sale of timber reclaimed from trespassers on the State lands, is not of itself a ground of invalidity, where the case is free from secrecy and fraud.
      Replevin: Remand before suit. The rule of this Court in Trudo v. Anderson, 10 Mich., 357, — that where one’s property has been disposed of without authority by the person having it in charge, the owner may bring replevin therefor without previous demand, — cited and approved.

      Heard April 29.

      Decided May 3.
    Case made from Bay Circuit.
    This was an action of replevin, brought in the Circuit Court for the County of Bay, by Dexter A. Ballou, against Michael W. O’Brien,' John L. Walsh and Daniel Burns, for the recovery of the possession of a lot of pine logs, being about six hundred in number, which were then lying in Culver Creek, and in or near the Kawkawlin river, in Bay County, and were alleged to have been cut on the east half of the south-east quarter of section sixteen, township" fourteen north, of range four east.
    The defendants, O’Brien and Walsh, pleaded jointly, and the defendant Burns separately, the general issue.
    On the trial of the cause, the plaintiff offered in evidence a power of attorney executed by Benjamin D. Pritchard, Commissioner of the Land Office of the State of Michigan, authorizing and empowering Edward L. Briggs, “as the agent of the State Land Office to enter upon any lands belonging to the State of Michigan, or on any lands for which the said State is acting as trustee, and seize and report the seizure of any timber, or property unlawfully cut upon any of the said lands, and to seize and report the seizure of any timber or lumber or shingles manufactured from any timber so unlawfully cut or taken from any of said lands, where the same shall be found within the limits of this state, and can be identified; * * * * and dispose of the same at public or private sale as he shall deem best.”
    It appeared in evidence, that the defendant, Burns, entered upon the lands described in the declaration, and cut the logs in question, and caused them to be hauled to the mouth of Culver Creek, where they were afterwards seized by Briggs; and that Briggs, • acting as agent of the State Land Office, in consideration of fifteen hundred dollars to him paid for the State, sold to the plaintiff all the right; title and interest of the State of Michigan in and to the logs and timber cut by Daniel Burns and others, &o.
    It was also proved that the land upon which all of said logs were cut, and upon which they grew, was included in the forty thousand acres tract on the west side of the Saginaw river, in the County of Bay and State of Michigan, and was reserved to the Chippewa nation of Indians by the treaty made and concluded at Saginaw, in the Territory of Michigan, between the United States of America, by their Commissioner, Lewis Cass, and the Chippewa Nation of Indians, on September 24th, 1819. And that the said reservation of forty thousand acres was duly located according to said treaty in the year 1820; and the lands embraced in said reservation were surveyed and sub-divided by the Government of the United States, into townships, sections and quarter sections, in the usual manner, in the year 1843; and the lands in question are located and described according to the said Government survey. At the time of the execution and delivery of said bill of sale to plaintiff, hll the logs in question were in the possession of the defendants, and plaintiff knew that fact; and said logs were not delivered to the plaintiff by said Briggs, or otherwise, and were never in the possession of the plaintiff. The plaintiff never demanded the logs of the defendants, or either of them, before the commencement of this suit, and before the seizure by said Briggs of said logs, all of said logs were sold and delivered to defendants O’Brien and Walsh by defendant Burns; and in making said purchase said O’Brien and Walsh acted in good faith.
    The cause was tried by the Circuit Judge without a jury, and he was requested, on behalf of the defendants, to adopt the following propositions as the law of the case:
    “1. That the Commissioner of lands had no power to sell the logs in controversy in this suit to the plaintiff, and that the plaintiff acquired no title to said logs by the sale, or attempted sale made by Edward L. Briggs.
    “2. That said Briggs had no legal authority to act for the State of Michigan, or for the Commissioner of lands, in selling the logs in controversy to the plaintiff, and the plaintiff by the bill of sale made by said Briggs acquired no title to said logs.
    “3. That the State of Michigan was not, at the time of the cutting of the logs on the land described in plaintiff’s declaration, the owner of said land.
    “4. That at the time of the sale made by said Briggs to the plaintiff, the State of Michigan was not the owner of the logs in question, and could pass to the plaintiff no title to said logs.
    “ 5. That, as at the time of said sale to said plaintiff, said logs were in the actual adverse possession of other parties, and not in the possession of the State, no title passed to the plaintiff.
    “ 6. That the land described in said writ, at the time of the cutting of said logs, was the land of the United States, and not the land of the State of Michigan.
    “7. That the Commissioner of the State Land Office had no lawful authority to delegate to said Briggs the power to sell the logs in question, and therefore the power of attorney executed by- said Commissioner to said Briggs gave him no power to sell said logs to the plaintiff.
    “8. That said Commissioner had no power to sell the timber of the State lands separate from the lands themselves.
    “ 9. That the defendants having been in the peaceful possession of the logs at the time of executing the bill of sale to the plaintiff, the plaintiff cannot recover in this action without proof that a demand was made in his behalf of the defendants for said logs.
    “10. That the plaintiff cannot recover in this action against said O’Brien and Walsh', without proof that a demand was made in behalf of the plaintiff for said logs after his purchase from the State.
    “11. That the logs, if they were the property of the State, had been converted by the defendants before the purchase by the plaintiff, and the plaintiff acquired no lawful right to recover the value of the logs from the defendants.

      “12. That the said power of attorney is void for the reason that it .is contrary to public policy, and the statutes and policy of this State.
    “13. That the act of 1836, granting sections sixteen to the State, is not of itself sufficient evidence that the State acquired the title to the land on which said logs were cut.”
    All of which he refused, and found the plaintiff entitled to recover the value of the logs, at the sum of $1,601.08. To each of which findings and conclusions of law the defendants excepted.
    A judgment was rendered in the usual form for the plaintiff; which is brought into this Court for review upon case made.

      Marston <& Hatch, for plaintiff.
    The most important questions in this case are:

      First, — Was the State of Michigan “ at the time of the cutting of the logs on the land described in plaintiff’s declaration the owner of said land?” and—

      Secondly, — Did the Commissioner of the State Land Office have the authority to delegate to Edward L. Briggs the power to seize and sell the logs in question to the plaintiff?
    I. The State of Michigan was owner of the land at the time the logs were cut, by virtue of the first subdivision of section one of “An ordinance relative to certain propositions made by the Congress of the United States to the Legislature of the State of Michigan,” approved July 25th, 1836. — 1 Comp. Laws p. 37. — This grant was accepted by the State, December 15th, 1836. — Id. pp. 41-2. — This provision, when thus accepted, operated as a grant or conveyance to the State of section sixteen in every township, not sold or otherwise disposed of, and it was not necessary that a patent should be issued by the United States to the State in order to give effect to the grant. — Stockton v. Williams, 1 Doug., 547; Godfrey v. Beardsley, 2 McLean, 412 ; Gains v. Nicholson, 9 How., 361 ; Cooper v. Roberts, 18 Row., 173: Maiden v. Ingersoll, 6 Mich., 373. — The lands upon which the logs in question were cut were surveyed and sub-divided by the Government of the United States, in the usual manner in the year 1843.
    It may, however, be claimed by the defense, that the section upon which the logs in question were cut, was at the time of the grant in 1836, “disposed of” by virtue of the treaty between the United States and the Chippewa Nation of Indians, made September 24th, 1819, and therefore did not pass to the State under that grant. — 7 U. S., Stat., at large, 208. — This treaty gave the Indians no greater right to the territory thus reserved than they had before. If this reservation is in the nature of a grant then it is to receive a strict construction, and nothing would pass under it by implication. — La P. B. H. Co. v. Monroe, Walker’s Ch., 155.

    The fee of all the unsold land in the United States is either in the United States or in the States within which such lands are situated. The Indian title, or that interest which originally belonged to the native tribes, was one of use or occupation only. — 8 Washburn on R. Pr., 168 ; Doe v. Beardsley, 2 McLean, 412 ; Stockton v. Williams, 1 Doug., 546; Johnson v. McIntosh, 8 Wheat., 543; Mitchell v. United States, 9 Peters, 711. — And the United States, as owner of the fee, may grant that, subject to such occupancy, but no possession can be taken until such right of occupancy is extinguished. — 8 Wash., 168, Doe v. Beardsley; Fletcher v. Peck, 6 Cranch, 87.

      The treaty of January 14th, 1837, 7 U. S. Stat., 528, in which the Saginaw tribe of the Chippewas cede this forty thousand acre tract to the United States, cannot affect the rights, or title already acquired by, and vested in the State of Michigan, even if the general language used in the third article of that treaty should be construed as a positive agreement on the part of the United States to sell all sections numbered sixteen included therein. This treaty was not ratified until after the grant to the State. A patent for lands already granted by treaty or otherwise is void, and so of a subsequent grant of Congress, if already granted. — 8 Wash., 174, 180; Stoddard v. Chambers, 2 How, 284; Hunter v. Hemphill, 6 Mo., 106; Stockton v. Williams, 1 Doug.; Fletcher v. Peck, 6 Crunch 87 ; Mayor v. De Armas, 9 Pet., 228 ; Zerrott v. Taylor, 9 Crauch, 43- — The Government cannot resume its grant. A grant is a contract executed, and it is a principle applicable to every grant that it cannot affect pre-existing titles. — Mayor v. De Armas and Zerrott v. Taylor; Minnesota Mining Co., v. the National Mining Co., 11 Mich., 187.

    The case does not show that the United States, either sold, or in any way interfered with the rights of the State to the lands upon which the logs in question were cut; the presumption is that the United States did not. If, however, any question could arise under the 3d article of the treaty of January 14, 1837, yet, the United States not having sold the lands in question under that treaty; and the specific section upon which the logs were cut having been designated by survey in 1S43; and the Chippewas, in article three of the treaty of August %, 1855, U. 8. Stat., 84 Cong. p. 81 of Treaties, having ceded to the United States, “all the lands within the State of Michigan heretofore owned by them as reservations, and whether held for them in trust by the United States or otherwise,” all legal impediments to the operation of the act of 1836 were thereby removed. The title of the State became perfect and disencumbered, whatever might have been its pre-existing state. — Cooper v. Roberts, 18 How., 173 ; Minn. Mining Co., v. Nat. Mining Co., 11 Mich., 193.

    II. Let us now examine the second question.
    We admit the general rule, “ that one who has a bare power or authority from another to do an act, must execute it himself, and cannot delegate his authority to another.” But this rule, we insist, does not apply to cases like the present. Where a public officer, from the nature of the business entrusted to his care, must necessarily employ agents to assist him, he has an implied power to employ them. Such power is indispensable in order to accomplish the end for which the department was created, and from the very necessities of the case, the law gives him that power. — Story on Agency, § 17; U. S. v. McDaniel, 7 Pet., 1; U. S. v. Ripley. Id., 18; U. S. v. Fillebrown, Id., 28; Gratiot v. U. S., 15 Id., 336. This question we consider fully settled by the decision of this Court in the case of Stevenson v. Little, 10 Mich., 433.

    III. The right of the State to sell the logs, although in possession of defendants at the time, must be considered as settled by the decision of this Court in the case of Final v. Backus, 18 Mich., 218.

    IY. Plaintiff can maintain replevin to recover the property without a previous demand. Trudo v. Anderson, 10 Mich., 357.

      Theo. C. Grier, for defendants O’Brien and Walsh.
    1. Did the State ever acquire the title to the land in question ?
    It is claimed on the part of the defendants that the land in question did not pass to the State, for the evident reason, that by the treaty it had been “otherwise disposed of.” Its condition, application and employment were fixed. The Government exercised the power of control over it and assigned it for the use of the Chippewas.

      And the term “otherwise disposed of” in. the statute was clearly used to refer to some disposition of the lands other than an absolute sale. The language of the statute is “ and when such section has been sold or otherwise disposed of,” &c. It is evident that it was the intention of Congress to grant no lands that had been set aside or reserved for any purpose, and hence the broad term “otherwise disposed of.”
    Whenever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of the public lands, and no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it, although no reservation were made of it. —Wilcox v. Jackson, 13 Peters, 498; Spaulding v. Martin, 11 Wis., 275; Turner v. Am. Baptist Union, 5 McLean, 844.; Vincennes University v. Ind., 14 How., 268; U. S. v. Stone, 2 Wall., 525. —A stipulation in an Indian treaty that a quarter section of land shall be reserved and sold, and the proceeds of the sale paid to those entitled to them, is such a withdrawal of the land from general appropriation. — Turner v. Am. Bap. Un., 5 McLean, SR. — And a patent issued while such reservation is in force does not become valid by reason of the bar of the reservation being subsequently removed. — Easton v. Salisbury, 21 Row., JJ26. — The reservation of the land to the Indians placed it beyond the power of any officer of the United States. — Ladiga v. Roland, 2 How., 581.

    But it seems to have been regarded on the part of the plaintiff as a complete answer to this conclusion to say that the reservation to the Indians, in the treaty of 1819, gave them no greater right to the territory reserved than they had before.
    But if this were established law, how does it, in any manner, controvert or affect our position ? The reservation involved in the case of Spaulding v. Martin was a reservation to the government for military purposes, and it was held not to be included in the grant to the State.

      The object to be aimed at in construing this act of Congress, as in all others, is the intent of Congress. — Spaulding v. Martin, 11 Wis., 273. — And, as has been shown, the test that is applied in construing such general grants is this:— Can it be supposed that Congress meant to grant lands that the government had set aside for a particular purpose? And the courts have invariably answered in the negative.
    It is immaterial whether the treaty changed the title of the Indians in the land reserved or not. But the treaty at least increased the guarantees or assurances of their title to the land reserved. Whatever may have before been the actual condition of their right in the land, there was, after the treaty, no longer any doubt as to their title.
    The Indian title before the treaty was an absolute right to the possessions of the lands, and as that was a right that could not be divested, except by the consent of the Indians, it was a right that was in its nature perpetual or liable to be perpetual. It was a right that until legitimately extinguished, the courts were bound to respect. — Fletcher v. Peck, 6 Cranch, 89; 2 Wash. R. P., 521; Gillespie v. Cunningham, 2 Humph. 19. The right of the Government in Indian lands “amounts only to the exclusive right of purchasing such lands as the natives are willing to sell.”— Cherokee Nation v. Georgia, 5 Pet., 1; Worcester v. Georgia 6 Pet., 515; 3 Kent's Com., 382.

    It follows, therefore, that the treaty of 1819 operated as a compact that the Chippewas should at least have and enjoy the perpetual use of the lands reserved. Whether they acquired a greater right than this is not material in this case. At least the obligation which the Government incurred by this treaty was paramount to that arising from its grant to the State.— Cooper v. Roberts, 18 How., 178.

    If the position taken by us were not entirely clear by the express terms of the treaty of 1819, and the grant of 1836 to the State, it would seem that the subsequent treaties between the Government and the Chippewas would put the question beyond all shadow of doubt.
    These treaties remained in full force and in no way modified until the treaty of August 2d, 1855. These successive treaties relate to the same object, they are to be taken in pari materia and construed together as one act, the whole forming one body of law from which the purpose of the grant is to be adduced. — State v. Springfield, 6 Ind., 83.

    The Government proceeded in every step of its dealings with the Indians in regard to these lands upon the clear presumption, that the title of the lands was vested in the Indians. The whole legislation of Congress, and the entire practice of the Government, clearly show that it was never contemplated that any lands included in these reservations were granted to the State.
    2. Has the Commissioner of the State Land Office any power or lawful authority to sell timber that has been severed from the land of the State ?
    By the Constitution, the Commissioner of the Land Office “ shall perform such duties as may be prescribed by law.” — 1 Comp. Laws, 68. By law, the Commissioner shall have the general supervision of all lands belonging to the State, and may “superintend, lease, sell and dispose of the same in such manner as shall be directed by law.”— C. L. 772.

    And the statute gives no authority to him to sell timber, and no such authority is “ directed by law.” But the Statute does enumerate the duties of his office. Expressio unius est exclusio alterius: and this maxim is peculiarly applicable to statutes. — Broom's Legal Maxims, 421; State v. Hastings, 10 Wis., 53.

    The statute, by enumerating the powers of the Commissioner, impliedly limits his authority to such cases, and he possesses no power not expressly conferred on him. — Holt v. Bacon, 30 Conn., 21; Van Dyke v. State, 24 Ala., 81; U. S.

      v. Hudson, 3 McLean, 156; State v. Hastings, 10 Wis., 518 ; Hopple v. Brown, 13 Ohio, 311.

    And we insist that if there was any power to sell timber separate from the land, it is a power reposed only in the Governor. The executive power of the State is reposed in him. And he is the only officer thar can pass the title to these school lands. By law, he is to issue the patents, and the fee remains in the State until such patents shall issue.— O. L. 780 ; It. 56.

    3. Can the Commissioner of lands delegate any such authority F
    It is a general principle of law, and one strictly adhered to in the ease of public officers, that a person authorized to do that which requires the exercise of discretion, or which involves the elements of personal trust and responsibility, cannot delegate such powers to another. Delegatus non potest delegare. — Broom’s Legal Maxims, 666; Lynn v. Burgoyn, 13 B. Monroe, 400 ; State v. Hastings, 10 Wis., 518; State v. Smith, 1 Oregon, 250; Greene et al., v. The State, 8 Ham. (Ohio) 310; Butterfield v. Inhabitants of Melrose, 6 Allen 187.

    And the authority to sell at private sale would be a dangerous one to repose in the Commissioner himself. All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public. And a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them. — People v. Town Board, 11 Mich., 222.

    Delegated powers must be strictly pursued, and the execution of a power to sell or dispose of lands by public officers must be in strict pursuance of law, or no title is conveyed. — Osborne v. Tunis., 1 Dutch. {N. J.) 633.

    In New York it was held that the Commissary General could not delegate any discretionary power to the keeper of the Arsenal, and the same doctrine has been held in numerous cases. — State v. Buffalo, 2 Hill, 438; 1 Pars, on Cont., 83; Trustees v. Otis, 37 Barb., 50 ; Zottman v. San Francisco, 20 Cal., 96; Bocock v. Pavery, 8 Ohio, (N. S.,) 270; Butler v. Charlestown, 7 Gray, 12; People v. Talmadge, 6 Cal., 256; White v. Davidson, 8 Md., 169; Stoughton v. Baker, 4 Mass., 522; Tippetts v. Walker, 4 Mass., 595; Brewster v. Hobart, 15 Pick., 307; Welsh v. Parish, 1 Hill, (S. C.,) 155; Com. Bank v. Norton, 1 Hill, 501; Mason v. Joseph, 1 Smith, (Eng.,) 406.

    4. We contend that from the fact that the property was in the adverse possession of the defendants at the time of the sale to the plaintiff, and from the additional fact that he never made a demand for the property before bringing this action, it cannot be maintained. Replevin will not lie for property held adversely to the plaintiff at the time of the sale. — O’Keefe v. Kellogg, 15 Ill., 347 ; McCandish v. Newman, 22 Penn., 460; Dillon v. Wright, 7 J. J. Marsh, 10; Stedman v. Reddick, 9 Hawks, 29; Stogdell v. Fugate, 2 Marsh. 136; Oliver v. Walsh, 6 Cal., 456; Gardner v. Adams, 12 Wend., 297; Com. v. Fugua, 3 Litt., 41. The purchaser of property tortiously in the hands of a third person at the time of the purchase, must first demand the property before he can reclaim it or maintain an action for it. — Gardner v. Adams, 12 Wend., 298 ; 2 Comstock, 293; Cortland v. Morrison, 32 Maine, 190; Hicks v. Cleveland, 39 Barb., 573. The owner of land cannot bring replevin for chattels severed from the land in the adverse possession of another. — Anderson v. Hopler, 34 Ill, 436; Rogers v. Fowler, 28 Cal., 605. The owner of chattels cannot maintain his suit in replevin to recover them from a purchaser in good faith from a wrongful taker, until after a demand.— Connor v. Comstock, 17 Ind., 90; Millspaugh v. Mitchell, 8 Barb., 333.

   Cooley, J.

The principal question involved in this case concerns the right of the State to the sixteenth section of land in the several townships embraced within the reservation of forty thousand acres, made to the Chippewa Indians, by the Treaty of Saginaw of 1819.

By the treaty in question the Chippewa nation ceded to the United States a very large extent of territory, but reserving, nevertheless, therefrom, fifteen different tracts of land which were specified, and also one tract of forty thousand acres on the west side of the Saginaw river, to be thereafter located. — 7 Stat., at large, 208. — This tract was actually located in the year 1820.

By the treaty of Detroit of 1837, these several reservations, (excepting one small one), containing in all one hundred and two thousand four hundred acres, more or less, were ceded by the Chippewa nation to the United States; the United States at the same time agreeing “ to pay to the said Indians in consideration of the lands above ceded, the net proceeds of the sales thereof, after deducting the expense of survey and sale,” together with the incidental expenses of the treaty. The lands were to be surveyed in the usual way, and offered for sale in the same manner as other public lands. — 7 Stat., at large, 528. — They were actually surveyed in the year 1843, and put upon the market.

This treaty remained in force until the treaty of August 2, 1855, by which the Chippewas ceded to the United States “all the lands within the State of Michigan,' heretofore owned by them, as reservations, and whether held in trust for them by the United States or otherwise,” and agreed to accept in satisfaction of all claims, legal and equitable, on the part of said Indians against the United States, for lands, money or other thing guaranteed to them, certain grants and payments which the treaty last mentioned provided for.

The State of Michigan was admitted to the Union on the acceptance of certain propositions made by the act of Congress of June 23, 1836, under one of which, the proper State officers have assumed that the land in question became the property of the State. The act of Congress and the acceptance thereof are published with the Compiled Laws p. 37.

In the winter of 1866-7 it appears that one Daniel Burns went upon section sixteen, in township fourteen north, of range four east, which was within the limits of the forty thousand acre reservation, and cut a quantity of pine logs. It does not appear that the land upon which the logs were cut had ever been patented or sold by the United States to an individual purchaser, or pre-empted, or allowed to be taken as a homestead. In February, 1867, the Commissioner of the State Land Office appointed one Edward L. Briggs “as agent of the State Land Office, to enter upon any lands belonging to the State of Michigan, or on any lands for which the State is acting as trustee, and seize and report the seizure of any timber or property unlawfully cut upon any of said lands, and to seize and report the seizure of any timber or lumber or shingles manufactured from any timber so unlawfully cut or taken from any of said lands, where the same shall be found within the limits of this State, and can be identified;” and, by the power of attorney given him by the Commissioner, it was made his duty immediately to report the land upon which a trespass had been committed, the quantity of timber cut upon the same, and its probable value, and to dispose of the same at public or private sale, as he should deem best, and also to settle and adjust all trespasses, reporting in each case the amount secured by the settlement. Acting under this power of attorney, the agent seized upon the logs so cut by Burns, and sold them, at private sale, to the plaintiff for the sum of fifteen hundred dollars, which was paid to him by the plaintiff, and was nearly or quite the full cash value of the logs. Burns, however, had previously sold the logs to the defendants, O’Brien and Walsh, who bought in good faith, and this suit was an action of replevin therefor, and was brought without any previous demand.

The defendants insist:

1st. That the land upon which ¡the trespass was committed was not the property of the State of Michigan as primary school lands, hut was the property of the United States.

2d. That, conceding the lands to belong to the State, the Commissioner of the State Land Office had no authority to appoint an agent with the powers he attempted to confer upon Briggs, and consequently the seizure and sale of the logs were void, and the plaintiff acquired no title thereto.

3d. That, even if the sale of the logs to the plaintiff was valid, he could not lawfully replevy the same without first making demand therefor.

The first proposition is a somewhat startling one, inasmuch as it applies to all the supposed primary school lands lying within such Indian reservations as have been lifted since the admission of the State to the Union, all of which, it is now claimed, have never become the property of the State, but are subject to entry and sale at the public land offices of the United States, and to pre-emption claims, like other public lands.

Had this question been made by the Commissioner of the General Land Office, or by the law officers of the United States, we should regard it as requiring at our hands a more serious and extended discussion than now appears essential; but it is not suggested, nor have we even heard that the claim which three private citizens, in a controversy exclusively their own, now make on behalf of the Government, as a means of self protection from the consequences of a criminal trespass, has ever been advanced by any person acting with authority, or that the Federal Government has the slightest disposition to contest or question the title which the State has assumed to possess.

It does not occur to us, however, when we regard the legislation of Congress bearing on the subject, and the uniform policy of the United States in the endowment of the public schools, that there would be much plausibility in any adverse claim that could now be set up against the State. The objection is based upon the first proposition made to Michigan by the United States, by the act of June 23, 1836, and which proposed “that section numbered sixteen in every township of the public lands, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the State, for the use of schools.” The argument is, that all the lands, which by the treaty of Saginaw were reserved to the Indians, were thereby “disposed of,” so that the grant made to the State in 1836 could not possibly convey them; and it is further argued that the subsequent treaties, which being in pari materia, must be considered with the act of 1836, in order to arrive at its true interpretation, all tend to show that the United States have not regarded any portion of the lands, lying within those reservations, as falling within the proposition of the act of 1836 above quoted.

It is quite clear that the lands in question did not pass from the United States by the mere act of the State in accepting the propositions made to it by the act of Congress referred to. The lands at that time were reserved to the Indians, and it was not certain that the Indian title thereto would ever be extinguished. The Federal Government was under no obligation to the State to extinguish it, and although, looking at the general policy of the Government, it was highly probable that this would be done, yet the period of any attempt in that direction was wholly uncertain ; and when it came to be made it was quite possible that such conditions might be insisted npon by the Indians as would preclude the State acquiring any claim.

The case actually shows that such conditions were insisted upon, and also that they were submitted to by the Government. The treaty of 1837 transferred the Indian title to the United States, but in trust only; and the Government undertook to sell the lands and account to the Indians for the proceeds. This treaty appears to have applied to the sixteenth section as much as to any others. It is very clear, we think, that while this treaty remained in force, the State acquired no right to the several sections sixteen which were surveyed under it. But. this treaty was superseded by that of 1855, by which the trust interest of the Indians was forever extinguished, and the lands embraced by the reservations became a part of the general public domain.

Now there has been a uniform policy on the part of the general government, that every sixteenth section of the whole public domain should pass to the State, in which it was situated, for the use of schools. Wherever, by reason of previous grant or other disposition this has become impracticable, other lands contiguous thereto are substituted. Those lands, however, in which the Indians have a possessory title, do not fall within the influence of this policy until that title is extinguished; but, as soon as the extinguishment takes place, the policy attaches. Until 1855, therefore, the State neither acquired a right to the lands in question, nor did the proposition of 1836 we have cited oblige the general government to convey other lands in lieu thereof. But there can be no serious question, we think, that the right passed to the State in 1855, unless there is something in the terms of the proposition of 1836, which would confine its operation to lands which were in such condition, in regard to title, that they might pass immediately wlien the proposition was accepted.

The grant by an individual must generally operate at once, if it ever does; but the grant of a sovereignty is governed by different principles, and must have operation according to its intent, whatever that may be. It may have a continuous operation, so as to transfer different parcels of land, from time to time, as the sovereignty may become vested with title thereto, if such appear to be its purpose. And such we think was clearly the purpose of the proposition of 1836. Its design was that every section numbered sixteen of the public domain, whether then constituting a part thereof, or becoming such afterwards by extinguishment of the Indian title, should be granted to the State as an educational fund. The words employed in the proposition aptly indicate an intent that it should have continuous operation, and we have seen already that the general policy of the government was in accord with this apparent purpose. We have therefore no difficulty with the first question.

The second is perhaps more doubtful. By'the Constitution there is to be a Commissioner of the Land Office, who is to perform such duties as may be prescribed by law.— Art. 8 § 1. — The title of the office would indicate a general purpose that he should have charge of the State lands, and .the legislation of the State carries out this general purpose. Nevertheless there is no statute which empowers him to seize and sell timber cut by trespassers, of to appoint agents for that purpose. And if it is proper and legal to appoint agents at all for such a purpose, there may be room for doubt, whether the appointment should not come from the Governor, rather than the Commissioner.

That the proper officer to look after the public lands and protect them against trespassers may exercise his authority through subordinate agents, we do not doubt. To render' his authority effectual, it is or may be absolutely essential that he should be at liberty to delegate it. Neither the Governor, nor the Commissioner, can be expected to visit in person every scene of depredations, and decide upon his own judgment what disposition should be made of such stolen timber as can be reclaimed. The power to appoint agents for the purpose, and which the defense insists is a dangerous one, appears to us more dangerous to the trespassers than to the State; for without it, they might calculate upon escape with reasonable certainty in the majority of cases. We say nothing of the very broad powers which the Commissioner attempted to confer upon his agent in the present case, but looking only at what was done here — the seizure and sale, — and we are of opinion that if the Commissioner was the proper officer to make an appointment, the power in this instance was lawfully conferred, and the record indicates that it was very properly exercised.

And, whether the appointment should emanate from the Governor or the Commissioner we do not feel called upon, in the case before us, to decide. We do not understand that the Governor, or any proper State authority questions the validity of the agent’s acts. The State has been paid for the timber, and does not repudiate the transaction. If the Commissioner were a mere executive agent of the Governor, — as the proper land officers of the United States are of the President, — we should have no doubt that his act should be regarded as the act of his executive superior. See Stephenson v. Little, 10 Mich., —And although he is an independent constitutional officer, acting in a sphere of his own, we think we may well infer, in a matter pertaining to the public lands, where, if the Governor has authority, it would be very proper to exercise it through or by the assistance of this officer, that he has done so here, and given his assent to what has taken place. We think this a very proper inference to make on behalf of correctness of action, in a co-ordinate department of the Government. But this opinion is not to be understood as intimating that the Commissioner in this case was guilty of usurpation of authority.

It was suggested that it was an abuse of authority to authorize the agent to sell at private sale. We have already said that a fair price appears to have been obtained for the property in the present case, and we cannot say, as matter of law, that a public, would always be better for the State than a private sale. As property seized by trespassers must frequently be sold in unsettled regions, where a concourse of bidders would be impossible, it might often be found that a sale at auction would sacrifice the property, while a private sale might easily be effected at fair prices. But we content ourselves here with saying that the fact of private sale is not of itself a ground of invalidity, where the case is free from secrecy and fraud.

The third objection made by the defense, — that the property could not be replevied without previous demand, — we consider settled against the defense by Trudo v. Anderson, 10 Mich., 357.

The judgment for the plaintiff is affirmed with costs.

Christiancy and Grates, JJ. concurred.

Campbell, Ch. J.

I think that under the decision in Cooper v. Roberts, the title of the State would have vested in section sixteen if the Indian title had been extinguished in the ordinary way, and a survey had been completed so as to designate the location. The grant, which until then was ambulatory, would have attached and made the transfer complete.

But if the grant did not attach when the land was designated, then there is no principle which can make it attach afterwards, except by way of estoppel. It could not mark any subsequent purchase by the grantor in any other way, and nothing but a plain and absolute warranty could make a later title enure to satisfy it. No such warranty was ever given. The act admitting Michigan into the Union did not declare that the State should have section sixteen at all events, but only in case it was not otherwise disposed of, — which disposition, if existing before the grant could take effect on any particular section, would defeat the State title, and leave the deficiency to be made up by equivalent lands, as provided for by the statute.

In this case the treaty which extinguished the Indian title in the reserve, expressly appropriated these lands to a use inconsistent with any interest in the State. It cannot be questioned that a treaty is the supreme law, and superseded any conflicting claims. The land was put into the hands of the Government upon a definite trust, by the treaty of 1837, and when the survey was made, it was required to carry out that trust. The Government, as a trustee, could not lawfully have conveyed this section to the State, if it had been demanded; and the title was as distinct from a proprietary interest, as if the trustee had been a citizen instead of a nation. The trust was hostile and paramount to any State claim, and the land was effectually “disposed of,” within the meaning of the act of admission. Had the government performed its pledged promise, the land would have been sold many years ago.

In a subsequent settlement with the Indians in 1855, the United States Government, for a new consideration, purchased whatever interest they had left under the trust, and thus acquired title in its own right. This is not the title to which the original reservation was to attach, and I think it would require a new arrangement to give the State any interest in these lands. If lands which have been once disposed of, vest in the State whenever the United States happen to repurchase them, the result will be very different from anything contemplated, when the enabling act containing the appropriation was passed. It never was supposed that section sixteen was likely to be better than any other, and the State being entitled to the same quantity, there is no reason why the grant should be extended beyond its plain terms.

I think the judgment erroneous on this ground. I express no opinion on the other questions.


author: The Court

text:
    The Portage Lake and Lake Superior Ship Canal Co. v. Adam Haas.

      Statutory appeals': Costs. 'Wiien an appeal is not taken within, the time fixed hy the statute, and there is no provision for enlarging the time, the Court has no jurisdiction to hear it, But costs will not he given to the appellee on the motion to dismiss, when he notices the cause for hearing, and the appellant had in good faith prepared for it, hy printing the record.

      Heard and decided May 3.
    Motion to dismiss an appeal
    The Portage Lake and Lake Superior Ship Canal Co., filed their petition in the Probate Court of Houghton County, under the provisions of § 10, act No. 187 of the Laws of 1861, p. 207, and chap. 67 Oomp. Laws, §§ 1962-1967, for the condemnation to the use of their canal, of lands belonging to Adam Haas. A jury was demanded by the respondent, and on the 20th day of August, 1869, damages were awarded to him of $6000. Their verdict was on the same day confirmed by the Probate Court. On the 7th day of October, following, the attorney of the petitioners gave notice of an appeal to this Court.

      O. L Wallcer

    now moves to dismiss the appeal on the ground, that it was not taken within twenty days, — the time limited therefor by the statute. — Oomp. L. § 1967.

      8. F. Seager, for the appellants,
    concedes the right to the dismissal on the ground stated; but insists that as the appeal was noticed for hearing at this term, by the appellee, and that in consequence thereof the appellant had, in good faith, prepared for the hearing by printing the record, no costs should be allowed.
   The Court

dismissed the appeal for want of jurisdiction, but without costs.


author: Per Curiam.

text:
    Edward Chope et al. v. Charles A. Lorman.

      Estoppel. A lease, with a reservation, which afterwards becomes the subject of an agreement between the lessor and a third party, in which the lessee has no interest, may be admissible in evidence to show the character of that agreement ; but it will not operate to bind the lessor by way of estoppel in favor of the third party.

      Heard and decided May 3.
    Error to Wayne Circuit.
    This was an action of trespass brought by Chas. A. Lorman against Edward Chope, Frederick L. Seitz, Henry Seitz and Michael Staueh, for entering upon the premises of the plaintiff and cutting and carrying away a thousand tons of ice.
    On the trial the plaintiff having introduced evidence of the ownership and possession of the locus in quo, and that the ice was cut under the direction of the defendants; the defendants offered in evidence an agreement, of which the following is a copy:
    “Memorandum of agreement made this fourth day of June, A. D. 1866, between the Detroit Ice Company, by C. A. Lorman, superintendent, and Henry E. Benson, of Detroit, as follows: The said Detroit Ice Company agrees to lease and does hereby rent and lease to the said H. E. Benson, for the purpose of booming and storing saw logs and poles, all the Detroit river ffont in the township of Hamtramck, described as follows: commencing at the Peninsular Brewery, or at the east line of J. L. King’s lot, and extending three hundred feet below the ice houses belonging to the said Ice Company, to the east line of the Howard and Doughty land, being in all about eight hundred feet in length, for the term of five years from October last. Also part of what is called the Burt front, extending one hundred feet below the east line of the Howard and Doughty land. This last one hundred feet is for the same length of time (5 years), provided the property is not sold or leased to some other party than the Messrs. Burt, but if sold, to be given up, on due notice, if no arrangements can be made with the purchaser.

      Tbe upper part of said boom, extending from tbe Peninsular Brewery to the lower end of the ice houses above mentioned, is to be vacated by said H. E. Benson during the winter season, but he is to have possession of the remainder of the boom described, the whole year round for his own benefit and use, and should the length of the cribs of logs he may leave in the lower part extend twenty or even fifty feet above the lower end of the ice houses, they may be allowed to remain during the winter unmolested. And the said Ice Company agree to take care of the poles and chains left on the boom during the winter and leave them in the spring of each year in as good order as received. H. E. Benson to have the benefit of the use of the spiles driven by the said Lorman.
    In consideration of the covenants and agreements made above by the said Ice Company, the said H. E. Benson hereby agrees to vacate during the winter of each year the boom leased by him from Fred. Mack, and give the said Ice Company the privilege of cutting ice in said boom for their own use and benefit each winter during the continuance of the lease now held by the said Benson. He also agrees to leave the boom poles hung on each of the booms during the winter for the benefit of said Ice Company.”
    There was also evidence to show that Benson went into possession of the premises described in the agreement, and that he and his assigns continued to use and were using the same up to the commencement of this suit, in accordance with the terms of said agreement; that they constructed booms, etc.; also that the Detroit Ice Company combined with the Lake St. Clair Ice Company, in January, 1868, and dissolved January 4, 1869; that at the time of the said combination, the said Detroit Ice Company sold, assigned and transferred all their rights in all their leases and water fronts on the Detroit River in Hamtramck, Wayne County, to said combination, that upon the dissolution the Detroit Ice Company leased all, the premises it owned, and assigned all its leases and rights to water fronts on the Detroit Biver in Hamtramek to Fred. L. Seitz, for the term of five years, from December 21st, 1868, and that the Lake St. Clair Ice Company made a like assignment and transfer to Fred. L. Seitz; and that the reason of the term commencing December 21, 1868, was, that it might expire at a convenient period of the year; and that from January, 1868, until Ihe said dissolution, the said F. L. Seitz was manager and treasurer of said combined company, and plaintiff and Henry Seitz were superintendents.
    Defendants also introduced evidence to show that they did not cut the ice in question, but that if it was cut, it was done by the combination; also that the said combination had possession of said premises at the time of the alleged trespass, by virtue of said Benson agreement.
    The plaintiff, in rebutting, introduced evidence to show that the Detroit lee Company and the Lake St. Clair Ice Company consolidated in January, 1868, and dissolved December 21, 1868, and that the plaintiff never acted as superintendent of the consolidated company after December 21, 1868.
    The counsel for defendants requested the Court to charge the jury as follows, viz:

      “Mrst — To sustain an action of trespass plaintiff must either have the actual possession, or be entitled to the immediate possession of the premises at the time of the trespass; which was so charged.

      “Second — It must appear that the act was done without the permission or consent of the plaintiff; and which was so charged.

      “ Third — If the plaintiff as superintendent executed a lease on behalf of the Detroit Ice Company to Benson, by which lease the right to cut ice was reserved to the Detroit Ice Company for five years from 1865, then Lorman was estopped from denying that the said Ice Company had the right to such right, and therefore Lorman had not the right to the possession of the premises described in the declaration, when the said ice was cut, and cannot recover.
    “To which the Court replied: ‘I cannot charge that, gentlemen, there is no question but if Lorman executed this lease in the name of the Detroit Ice Company for the Ice Company, he executed it himself for property, and including in that property of his own even, over which the Ice Company had no control, and for which they had no lease, he is estopped, as against Mr. Benson, to say that is not the Company’s property; and I don’t think it would be an estoppel as between the Ice Company and himself; that therefore is refused;’ and to which refusal to charge, the defendants, by his counsel, excepted.
    “ Fourth — If the Detroit Ice Company had the right to cut ice in front of the Lorman lot, and transferred that right, prior to the alleged cutting, to the Lake St. Clair and Detroit Ice Company, and that right existed at the time of cutting, and the ice was cut by the said Lake St. Clair and Detroit Ice Company, then plaintiff cannot recover.
    “ To which the Court replied: ‘ That is true, gentlemen of the jury, if the Detroit Ice Company had the right to cut the ice; if Mr. Lorman owning the property had given them the right to cut the ice; had given them a lease, so that they had a right to cut the ice at this time, and they had transferred the right to the Lake St. Clair Company, and the Lake St. Clair Ice Company cut the ice, of course, they would then have the same right the Detroit Ice Company would have; there would be no trespass, and the plaintiff cannot recover. The plaintiff claims they did not have the right. Now, if you shall find they did have the right, and they transferred that right to the Lake St. Clair Company, and the Lake St. Clair Company did the cutting, then, of course, the Lake St. Clair Company would be justified in doing the cutting, for they had the right to do it. If the Detroit Company had the right and transferred it, that would give the other party the right; but if the Detroit Company had not the right, they had nothing to transfer. If the Detroit Company had the right and they transferred it to the combined company, and the combined company did not do the cutting, but the defendants in this case did the cutting, that would give the defendants no right. In other words, the party that 'did the cutting must have the right from somewhere, or else it is a trespass.’ To which charge, as given, the defendants by their counsel excepted.
    “ Fifth — The defendants by their counsel then requested the Court to instruct the jury as to the legal effect of the agreement executed by the Detroit Ice Company to H. E. Benson, offered in evidence by defendants.
    Whereupon the Court instructed the jury as follows: “ This paper (the Benson lease) of itself does not give the Detroit Ice Company any right to cut the ice on the seventy-five feet. The jury may take this into consideration with the other evidence to show that the lease was taken. It is only evidence tending to show.” To which instruction the defendants by their counsel excepted.
    The jury found a verdict for the plaintiff and the judgment entered thereon comes into this Court by writ of error.

      Wm. Jennison. for plaintiffs in error.
    I. The plaintiffs.in error claim:
    1st. That the Detroit Ice Company having executed the lease of the premises in question to Benson through Dorman, their superintendent, and having reserved the use of the front in the winter seasons up to the time of the assignment, he, Dorman, is estopped from denying that they had the right to the control of the premises. This Court will therefore presume that said company had the lawful possession thereof.

      2d. That having assigned all their rights to their leases and other water fronts to the new combination (of which plaintiff was also one of the superintendents); and said combination having leased all said rights in the said leases and river fronts to Frederick L. Seitz, the said Lorman is equally estopped from claiming any right to the premises as against defendants. — 30 New York, 519, 541; 7 Barb. 407; 38 Penn., St. 307; 3 Hill, 215; 18 N. Y, 892. — The estoppel is annexed to the estate and runs with the land, and is binding on all claiming under it. — laylor’s L. & T. §§ 91, 92.

    II. The Court equally erred in the construction of the Benson lease to the jury.
    We submit that the execution of the lease having been shown without dispute, and that Benson had entered into possession of the premises, and upon the performance of the conditions; and also that the assignees of the Detroit Ice Company were in possession of the premises at the time of the alleged cutting by virtue of said lease, it was the duty of the Court to have instructed the jury that the lease did or did not give the Detroit Ice Company the right to the possession of the water front in the winter season, and that if it did, and the company assigned the right, plaintiff could not recover. — Wisner v. Davenport, 5 Mich., 504, 501; Curtis v. Martz, 14 Mich., 513.

    III. By the fourth, charge the Court erred in stating the law in trespass.
    It will not be denied that the plaintiff below must have had the right to the possession at the time of the alleged cutting to maintain this suit, no matter what right the defendants possessed. If it be claimed, that the charge of the first request cured this error, we say that the effect of this charge was to neutralize it, and entirely mislead and confuse the jury, as was clearly the effect in this case. It was contradictory and inconsistent. — 3 G. and W. on N Trials, 774, 792, 800; Curtis v. Martz, 14 Mich, 513; D. & M.

      R. R. Co. v. Van Steinburgh, 17 Mich., 108 ; 19 Miss. (4 Bennett) 529; 16 Alabama, 61; 1 Metc. (My.) 83.

      Geo. H. Brentis, for defendant in error.
    I. The defendant insists that the refusal to charge as requested, and the charge as given by the Court, in -reply to the third request of plaintiffs in error, was correct.
    I. Because, even although Lornaan had included some of his own property in the lease made by him, as superintendent, to Benson, as shown by the lease, he was not estopped by said lease from saying that other parties, not claiming under either Benson or himself, and not claiming in accordance with the terms of said Benson lease, had no rights there.— Graydon v. Church, 7 Mich., 36 ; Wright v. DeGroff, 14 Mich., 164. — 2. If the request to charge had been granted, and the charge given, it could have had no bearing upon the evidence submitted in the case, the only evidence being the lease itself; and if the charge was immaterial, the judgment ought not to be reversed. — Lyell v. Sanbourn, 2 Mich., 109; People v. Reynolds, 2 Mich., 422; Clark v. Moore et al., 3 Mich., 55; Cummings v. Stone, 13 Mich., 70.

    II. The fourth request of plaintiffs in error is subject to the same objection as the third: that it could have no bearing upon the evidence submitted in the case. a. It was in fact given. It can only be claimed that it was not given in substance and fact, from the Court using the following words: “'If the Detroit Company had the right, and they transfei’red it to the combined company, and the combined company did not do the cutting, but the defendants in this case did the cutting, that would give the defendants no right; in other words, the party that did the cutting must have the right from somewhere, or else it is a trespass." b. This could not have been construed by the jury to mean that the plaintiff would necessarily be entitled to recover, even although the defendants were trespassers, as the Court fully explained by the first and second requests; and if the jury were not misled, a new trial ought not to be granted. — People v. Reynolds, 2 Mich., 422 ; People v. Scott, 6 Mich., 287; Angel v. Rosenbury, 12 Mich., 241.

    III. — The fifth request, as modified, if erroneous, was an error in favor of plaintiffs; in instructing the jury that the Benson lease was evidence tending to show the right to cut the ice. — Parrott v. Shearer, 17 Mich., 48. — And if an error in favor of plaintiffs, it ought not to be reviewed.— Brigham v. Gurney, 1 Mich., 349; Lyell v. Sanbourn, 2 Mich., 109; Berry v. Lowe, 10 Mich., 9; M. M. Co. v. Nat. M. Co., 11 Mich., 186.

    In order to arrive at a conclusion in putting a construction upon this lease, it is necessary to consider two things: 1. What does the language used in the contract mean under a strict construction ? — Mallam v. May, 13 M. & W. 517; Gwillim v. Daniel, C. M. & R., 70; Robertson v. French, 4 East, 135; 2 Parsons Con. (5 ed.), p. 494. — 2. The intention or meaning of the parties executing the contract at the time of execution.— Quackenboss v. Lansing, 6 Johns., 50; Story on Con. (3 ed.), 633, 634; Karmuller v. Kratz, 18 Iowa, 352; M. R. W. Co. v. L. R. W. Co., Law Rep. 2 Eg., 524.

   Per Curiam.

The Court below allowed the jury to give to the Benson agreement such weight, by way of admission, as they thought it deserved. But it cannot operate by way of estoppel here. Estoppels must be mutual, and plaintiffs in error do not claim under the lease or agreement in question, and cannot, therefore, set up any estoppel under it against Lorman. The instrument is not necessarily inconsistent with his private rights, and while, as against Benson and his grantees, he could not impeach the privileges secured by the lease, no one else could question his title by reason of anything in that arrangement.

Judgment must be affirmed with costs.


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    Ellen Mack v. James Brown.

      Practice in the Circuit Court: Garnishee: Disclosure: Exceptions: Examinaiion. Where the answer of a garnishee is full and explicit to the allegation in the affidavit on which the writ of garnishment issues, there is no room for an exception for insufficiency: nor can a disclosure be required concerning matters not alleged in the affidavit.

      Heard and decided May 5.

      Certiorari: To Edward Minock, Esquire, Circuit Court Commissioner, for the County of Wayne, to review proceedings against Ellen Mack, as the garnishee of William B. Mack.
    James Brown commenced an action against William B. Mack in the Circuit Court for the County of Wayne, and made an affidavit that he had good reason to believe, and did “believe that the Detroit Savings Fund Institute and Ellen Mack, of Detroit, in said county, have money, property and goods in their several possession and under their several control belonging to said defendant William B. Mack.” A writ of garnishment was issued in accordance with the statute. Mrs. Mack filed a disclosure stating “ that at the time of the issuing of said writ of garnishment and the making of said affidavit thereto annexed, she did not have, neither has she now any money, property and goods belonging to the above named defendant, William B. Mack, in her possession or under her control, either individually by herself, or in conjunction with the Detroit Savings Institute.”
    The plaintiff, excepted to the disclosure: — I. To the statement by said garnishee defendant that she has no property, money or goods in her possession or under her control belonging to said defendant. 2. Said garnishee defendant does not state whether she is indebted to said defendant. Mrs. Mack was notified to appear before Edward Minock, a Circuit Court Commissioner, and submit to an examination on oath, concerning the matter excepted to. She appeared by attorney, before the Commissioner, and moved to overrule said exceptions: — Mrst, Because the said disclosure was full and sufficient as to the matters of the first exception; and Second-, Because the affidavit upon which the said writ of garnishment issued, does not allege that she, the said Ellen Mack was indebted to said defendant William B. Mack.
    The Commissioner adjudged the first exception of said plaintiff to be well taken, and overruled said second exception; and ordered that the said Ellen Mack forthwith submit to an examination under oath, concerning the matters of the said first exception.
    The order of the Commissioner comes into this Court for review upon certiorari.

      0. KircJmer, for plaintiff in error.

      Moore & Griffin, for defendant in error.
   Per Curiam.

As the affidavit in the garnishee proceedings aid not aver Mrs. Mack to have been indebted to the original defendant, but went upon the ground of her having property in her hands belonging to the defendant, it would have been erroneous to require her to answer further and make disclosures concerning any such supposed indebtedness, as no foundation was laid for any such inquiry; and, as the answer in regard to the possession of property was entirely full and explicit, there was no room for an exception, on the ground of insufficiency.


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    Joseph J. Pettinger v. The People.

      Highways: Penalty for obstructing: How enforced. The penalty for obstructing a highway cannot be enforced by indictment or information.

      Heard and decided May 7.

      Error to Oakland Circuit.
    Joseph J. Pefctinger was convicted in the Circuit Court for the County of Oakland, upon the information of the Prosecuting Attorney of that county, charging him with the obstruction of a highway.
    The record is brought into this Court by writ of error.

      W. B. Jackson, for plaintiff in error.

      Crofoot & Brewer, for defendants in error.
   Per Curiam.

The statute of 1861 provides that the penalty for obstructing a highway shall be a sum not exceeding $25, to be recovered in an action of trespass, “or the collection of such penalty may be made in accordance with any other law for that purpose,” &c. L. 1861, p. 158. The effect of such a provision must be to supersede any greater penaltj, while it would permit the collection to be made in any way consistent with law. But we think it cannot be done by indictment or information. It does not come within the general clause of the statute relating to undefined misdemeanors, for that only reaches offenses where no penalty has been fixed by statute. O. L. § 5846. The statute declaring how penalties shall be enforced, covers the entire ground, and leaves nothing to be supplied by the common law; and it is only when the penalty or forfeiture amounts to one hundred dollars or more, that an indictment lies. G. L. § 5120. There are civil remedies adequate to abate such nuisances without indictment.

In People v. Carpenter, 1 Mich. 273, no question was made upon the indictment, and the attention of the Court was not called to this point.

The judgment should be arrested and the information quashed.