author: Cooley J. Martin Ch. J.

text:
    Volney A. Ripley v. Ira Davis and another.

      Ti'over: conversion: damages. Whore one co-tenant was "bound to the other by contract, to deliver and divide joint property at a certain place, but appropriated it to his exclusive use, and under circumstances which rendered a division and delivery in the manner agreed upon impracticable: Held, that it amounted to a conversion, and that trover would lie. Held furth&)\ that in the absence of special circumstances requiring a different measure of damages, it was proper to award to the plaintiff the value of the property at the time of conversion, with interest from that 'time. *

      Amendment of pleadings in the Circuit Court, when discretionamj. On the trial in the Circuit Court, the defendant applied for leave to interpose the defense of the Statute of Limitations, after having plead the general issue. Held, that this was a matter of discretion in the court below, and its denial could not be reviewed by this court.

      Heard October 11th and 12th.

      Decided November 10th.

    Case made after judgment from St. Clair Circuit.
    This was an action of trover brought to recover the value of two-fifths of a certain quantity of logs cut by defendants on plaintiff’s premises, and Vhich said logs were to be boomed at a certain point and divided. Defendants took the logs to a point far beyond the place agreed upon, and also set up a claim on them, under an alleged agreement.

      During the trial, the defendants’ counsel objected to a portion of plaintiff’s evidence, as it tended to show that the alleged conversion, or at least a paft of it, occurred more than six years before the commencement of the suit.
    The declaration alleged the conversion as having taken place within the six years.
    The court overruled the objection, and also refused permission to defendants to add to their plea, a notice of the statute of limitations.
    Judgment was rendered for plaintiff.

      Wm. T. Mitchell and A. JB. Maynard., for plaintiffs.
    The proof of conversion was sufficient.
    The logs were to be placed in a boom, at Port Huron, and there retained. It was their place of delivery, and where the division was to be made. Any removal from that place was a conversion by the defendants. Ripley frequently demanded his share of the logs, and could not get them, and was met with the reply that he had been credited for them in the defendants’ account. This fully implied their absolute use and sale by the defendants, and was of itself a conversion. And it is in proof, by both Leighton and Loughrey, that all the D. T. 6 logs, were taken by them, as defendants’ agents, from the boom at Port Huron, and run to defendants’ mill at Trenton.
    It was a disposition of the property, which put it out of the power of the defendants to deliver it on demand.
    This constitutes a conversion. — 3 Mich. 139; 33 Maine, 347; 20 Ala. 212; 21 Pick. 559.
    Trover lies by one tenant in common, of a personal chattel, against his co-tenant, for the appropriation of the chattel to his exclusive use, when the chattel is of such a nature as to be necessarily destroyed by the use thereof. 3 Graft. 205; 17 Penn. 373; 12 Mich. 328.

      The question as to the application to append the notice of statute of limitations was clearly within the discretion of the court below, and the refusal, if made, is not a subject of review for this court.

      JB. C. Pairand, JS. Hall and G. A. Kent, for defendants.
    1. There is no evidence of conversion.
    It will be admitted that plaintiff and defendants were tenants in common of the saw logs in question. A division was to have been made at Port Huron, but this was never done!
    There is no evidence of any sale or any destruction of the logs.
    There is some evidence tending to show a demand by plaintiff of his portion, and a refusal on the part of defendants to deliver the same. This is the only evidence of conversion.
    The law is settled that, as between tenants in common, this is not sufficient. — 2 Greenl. JSh. §646, and, notes; 2 Hilliard on Torts, 293, et seq.; 1 Ghitty on PI. 156; 1 Taunt. 241; 9 Wend. 338; 1 Id. 449; 1 H. D. Smith, 217; 27 Conn. 355; 40 AT -Si 403; 26 Ala. 686; 21 Penn. 90; 14 111. 466.
    This Court has qualified this doctrine somewhat in the case of 12 Mich. 328. It was there held that one tenant in common of wheat threshed, and in one pile, can recover in trover of his co - tenant for refusing to deliver the portion due and claiming the whole.
    This decision does not affect the doctrine we seek to maintain. Saw logs are far from being of the same size and quality. An equitable division must be a work of difficulty. No delivery could have been made by defendants to plaintiff until a division had been made. Plaintiff never asked for such division.
    We submit that, under this state of facts, plaintiff is not entitled to recover. The court below, in giving judgment in his favor, violated a principle of law settled by a concurrence of all of a great number of authorities, and founded on principles necessarily derived from the nature of tenancy in common.
    2. Some portion of the evidence tended to show that the alleged conversion, or at least part of it, took place more than six years before the commencement of suit. The declaration alleged the conversion to have taken place within the six years. When the evidence referred to was offered, defendants objected, and when the objection was overruled, asked leave to add to their plea a notice of the statute of limitations. The request was refused.
    The court below erred in this refusal, and we ask that defendants now have all the benefits to which such plea would have entitled them. — 21 Pick. 404.
    3. It is impossible to tell, from the case, by what rule of law the damages were computed; but as plaintiff may contend that he is entitled to the highest price of logs at any time since the alleged conversion, we cite the authorities sustaining the true rule, as we deem it, that the measure of damages is the value of the article at the time of the conversion, and interest. — Sedg. on Pam. 505; 13 Gray, 313; 26 Conn. 389, 483; 29 Id. 479; 18 Md. 468; 26 Bari. 648; 19 Maine, 361; 35 JST. M. 226.
   Cooley J.

We are not satisfied from the evidence in this case that there was an agreement between the parties under which the logs in controversy were to be charged to the plaintiff in account. The weight of evidence is the other way. We will, therefore, proceed to dispose of the legal questions raised.

1. The application of the defendants for leave to interpose the defense of the statute of limitations, after having pleaded the general issue, was one addressed to the discretion of the court below, and its denial can not be reviewed by this coiirt. While liberality should be exercised by the Circuit Courts in granting amendments for the furtherance of justice, yet as each application must depend upon its own circumstances, and can best be disposed of by the court which has had the case before it from the commencement, the practice has wisely vested such court with a power of final disposition with which we have no inclination to interfere.

2. The proof of conversion by the defendants was am-'’ pie, and we have no doubt of the right of the plaintiff to maintain the action on well settled principles. The logs were to be boomed at Port Huron, and divided there. Instead ),pf complying with their contract in this particular, the defendants took the logs to Trenton, from whence their return to Port Huron for the purpose of delivery -to the plaintiff was impracticable. Moreover, they set up a claim to them as their own exclusively, under a contract of purchase, and assumed to give the plaintiff credit for them on their books. The case, therefore, is not simply one where a tenant in common has excluded the co-tenant from a joint possession, but it is the case of a co-tenant, bound by contract to divide the joint property at a certain place, appropriating it altogether to his own exclusive use, under a claim of exclusive right and under circumstances which render a division and delivery in the manner agreed upon practically impossible. The case is within the principle of Fiquet v. Allison, 12 Mich. 328, and Webb v. Mann, 3 Id. 139, and we have no disposition to narrow or limit those decisions in any way. The greater difficulty, which was suggested on the argument, of dividing logs by the quantity over that of dividing wheat, is one of degree only, and can not affect the principle.

3. There is nothing upon this record to show precisely what rule of damages was adopted by the Circuit Judge, and while we do not feel called upon in this case to say that there is any inflexible rule applicable to all cases of wrongful conversion, we think that where there are no special circumstances which require a different measure of damages to be applied, it is proper to award to the plaintiff the value of the property at the time of conversion, with interest from that time; in other words, to award to him a sum of - money which, at the time he is wrongfully deprived of his property, would enable him to procure an equal amount of the same value.— Kennedy v. Whitwell, 4 Pick. 466; Sargent v. Franklin Insurance Co. 8 Id. 90; Pierce v. Benjamin, 14 Id. 356; Greenfield Bank v. Leavitt, 17 Id. 1; Johnson v. Sumner, 1 Metc. 172; Barry v. Bennett, 7 Id. 354; Fowler v. Gilman, 13 Id. 267; Watt v. Potter, 2 Mason, 76; Banks v. Hatton, 1 Nott and McCord, 221; Lillard v. Whittaker, 3 Bibb, 92; Sproule v. Ford, 3 Lit. 25; Outton v. Barnes, Lit. Sel. Gas. 137.

We have applied this rule to the evidence in the case, and testing by it the result arrived at by the Circuit Judge, .we are inclined to .think his conclusion as near correct as any to be deduced from this record. The defendants had credited the plaintiff with 475,054 feet of logs, got out under the contract in 1855-6. Leighton’s testimony shows 261,000 feet got out in 1857-8, of which only 26,463 were credited. While this last amount would be subject to a deduction for loss in running them down, we may fairly offset to this a probability of the evidence, all of which comes from the defendants or their witnesses, not showing the full amount. At any rate, where defendants fail to give account of 'the quantity obtained, and the plaintiff is obliged to rely upon uncertain oral evidence, it is not proper that legal intendments should be stretched to favor the party ■ in default. We assume, therefore, that the whole amount obtained from the land was 436,054 feet, which is very far below the estimates of those who judged by the standing timber or tbe stumps, but probably much nearer correct. Plaintiff would be entitled to two-fifths of this amount, or 174,422 feet. The logs should have been divided during the season of 1858, when their value was about $7.75 per thousand feet. Taking the 1st of January, 1859, as the time of conversion, and the calculation is as follows:

174,422 feet,' at $7.75,.....$1,851 77
Interest to Nov. 18, 1865, (date of judgment) 647 16
The total is......$1,998 93

Or $1.07 less than the estimate of the Circuit Judge. If we fixed upon either an earlier or a later period as the time of conversion, this sum would be slightly increased ; as, if fixed earlier, there must be a computation of interest for a longer period, and later, the price of logs advanced.

The judgment must be affirmed, with costs.

Martin Ch. J.

After a careful examination of this case, we find no error in the judgment of the Circuit Judge. If any exists, it is rather to the favor of the ' defendants than adverse. The ease is one resting almost entirely upon, facts, and a review of them would be of no value. It is sufficient to say that we are satisfied with the judgement, and not inclined to disturb it.

The evidence of conversion is ample. The fact of the logs being run by the defendants from Port Huron to Trenton for their own purposes, and without the knowledge or consent of the plaintiff, sufficiently settles this question. By so doing, the property was placed beyond the reach of the plaintiff. They had disenabled themselves to perform their contract,- and thus deprived Ripley of his proportion of the logs. The fact of removing them from the boom at Port Huron, and running them to defendants’ mill, at Trenton, is conclusive of this. There could be no other intention than of con-aversion. See Webb v. Mann, 3 Mich. 139 ; Weld v. Oliver, 21 Pick. 559; Lowe v. Miller, 3 Grattan, 205; Agnew v. Johnson, 17 Penn. 373; and Fiquet v. Allison, 12 Mich. 328.

The question as to the application to amend the notice, so as to 'substantially plead the statute of limitations, was one clearly within the discretion of the court below; and over such we have no power.

For myself, protesting, as I have often heretofore, against the jurisdiction of this court over questions of this kind, I concur with my brethren that there is no error in the judgment of the court below, and that it must be affirmed, with costs.

The other Justices concurred in the foregoing opinions.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    William Case v. Wellington R. Burt and others.

      Drawee of bill of exchange: Time allowed to examine his accounts before accepting: Protest. Where a drawee of a bill of exchange does not refuse acceptance, but desires time to examine into the state of his accounts before deciding, he is entitled to twenty-four hours for that purpose.
    Wher^ the person presenting a bill agreed to present it again, no protest can be made without a new demand.

      Heard October 25th to 31st.

      Decided November 10th.

    Case made from Saginaw Circuit.
    Plaintiff sued defendants for damages arising out of their failure to deliver lumber under a contract. The defense set up was that plaintiff made default himself, and that subsequently a new contract was entered into materially variant from tbe first, -which'had been superseded by the new arrangement. The court below adopted this view and gave judgment for the defendants. The case was brought into this court for review upon the facts and upon the law, and the court found that there had been no default on the part of the plaintiff, and that no new contract had ever been made. As the case rested mainly upon questions of fact, it has not been thought desirable to report the opinion at length. But one ground whereon defendants relied as proof of a default involved a question of law, and so much of the decision as bears upon this question is therefore appended.
    Among other things, it was provided by the contract that upon each shipment of lumber defendants were entitled to draw upon plaintiff who was to accept their paper on time not exceeding ten days’ sight. Plaintiff resided at Norwalk, Ohio, and the drafts were usually drawn and negotiated at East Saginaw (where defendants did business), to be presented and paid at Norwalk. Lumber having risen in price, and defendants being anxious (as found by the court) to get rid of the contract, determined to manage, if possible, so as to get plaintiff into a default, and procured a protest of a draft, which they thereupon set up, (among other pretexts decided by the court to have been unfounded), as an excuse for declaring the contract forfeited. The questions of law arising out of this transaction are the only ones presented in the case, and so much of the opinion as explains them is subjoined.

      G. 'V. JV. JOothrop and W. JO. Webber, for plaintiff.
    A. S. Gaylord and G. I. Walker, for defendants.
   Campbell J.

On the second of November a vessel called the Jesse took on board a cargo of lumber for" plaintiff. On the 4th Gilbert, the managing man of the defendants, presented a draft to plaintiff for this cargo, and plaintiff told him to forward it to Norwalk, as he had done the rest. Gilbert said “very well” and deposited it in bank. Herman Gelpeke, who was President of the company, and also an active manager, subsequently, on the same day, directed Gilbert to get the draft from the bank, for the purpose of getting a protest on it. Gilbert did so and procured John J. Wheeler, a notary, to present it to plaintiff that evening after business hours at his hotel. Plaintiff informed the notary that he was not certain as to the correctness of the amount of the draft, and desired to examine the shipping bills, which he could do in the morning, and would then accept the bill if correct. The notary agreed to call again in the morning for that purpose. But that evening Gilbert and Gelpeke went to him, and induced him to protest the draft for non-acceptance, and return it to them. The next day plaintiff was notified that no more lumber would be delivered to him on the contract, and although he made application, none was delivered to him until after November 16th, when defendants allege a new agreement was made, which plaintiff denies. Defendants alleged to plaintiff as a reason for refusal, the non-acceptance of this draft, and the alleged accumulation ■ of lumber on the docks previously, beyond the amount fixed by the contract.

It appears that plaintiff neither refused nor intended to refuse acceptance of the draft of November 4th. The notary left him, promising to present the paper the next morning, when plaintiff would have had an opportunity of learning .whether the amount was correct. Where a drawee does not refuse, but merely requires time to examine his accounts he is entitled to twenty-four hours. Chitty on Bills, 306, 311. And here, the consent of the notary would preclude a protest until revoked by a new demand, even were there no such rule in existence.

The defendants, therefore, in at once refusing to deliver more lumber, themselves broke their contract.

[Having examined tbe various questions of fact, and estimated tbe damages upon the evidence at $14,888.44, the opinion concludes as follows.]

Tbe judgment below must be reversed, and a new judgment entered in tbis court in favor of plaintiff against defendants for tbis amount of damages, with costs of both courts.

Tbe other Justices concurred.


author: Christiancy J.

text:
    The People ex rel. Anson E. Chadwick v. County Officers of St. Clair.

      Board of ¡¡hypervisors: Bemoval of County Seat: Delegation of authcnity: Where the Board of Supervisors, by a vote of two-thirds, resolved tha¿ the county seat of St. Clair should be removed to Port Huron, provided “ suitable guarantees ” should be given within ninety days for the erection of county buildings free of cost to the county, but submitted to the popular vote the simple resolution of removal, without including the proviso, that subrinssion was held void, as the statute contemplates that the people and .the Supervisors shall vote on precisely the same questions. — L. 1803, p. 30. No subsequent action by less than a two-thirds vote could lawfully modify the first resolution, and accordingly a majority vote referring it to a committee to examine and approve the proposed security, and an approval by such committee before election, could not make the original resolution cease to be conditional. The Board of Supervisors cannot delegate such powers as the law requires to be submitted to their corporate discretion and judgment.

      Heard November 9th.

      Decided November 10th.

    Appeal in Chancery, from St. Clair Circuit.
    Tbe bill in tbis cause was filed to test the legality of certain proceedings for tbe removal of tbe county seat from St. Clair to Port Huron, and praying for an injunction.
    Tbe Board of Supervisors of St. Clair County, on tbe 13th day of October, 1865, passed a resolution providing for the removal of tbe county seat from St. Clair to Port Huron, subject to tbe following proviso, to wit: that “ suitable guai-antees should be given for the erection of the necessaiy buildings for county purposes, free of cost to the county, and that said guarantees should be given within ninety days from the date of this resolution.”
    That on the following day, said board by resolution directed that the question of said removal be submitted to the qualified' electors of said county, in the manner provided by law, and which was done.
    That said board then appointed five of their number as a committee to examine, and, if found satisfactory, to approve the bond required to be given on account of the removal of said county seat.
    That no further or other action was had or taken by said Board of Supervisors on the subject of said removal, and no provision was made with respect to the guarantees required by the powers of the first nained resolution, relative to the nature or sufficiency of such guarantee, or the receipt or approval of the same, if any should be offered, except the resolution last above set forth; but that subsequently a bond was deposited in the clerk’s office of said county, with an endorsement of approval by said persons named in said committee.
    That the question of said removal, but not the proviso, having been voted upon by the electors of said county, the board met, and ' by resolution declared that the county seat be removed from St. Clair to Port Huron, with the records, property, etc.
    The bill was demurred to, the demurrer sustained, and the bill dismissed.

      A. 2£. GhadwicJc for complainant.
    (No brief was furnished the reporter.)

      Mitchell <& JFarrand for- defendants.
    1. The Board of Supervisors have power to designate a place to which a county seat shall be removed, whenever such removal is proposed by a two-thirds vote of all the members elect, and after a majority of the electors of such county shall have voted in favor of the proposed location, they also have the power to make and establish such county seat at such place. — Comp. L. § 352; Bess. Laws of 1863, p. 30.
    In this case a removal was proposed, and a two-thirds majority of the members elect designated Port Huron as the place, but with a proviso that suitable guarantees should be given for the erection of the necessary buildings free oí cost to the county, and that such guarantees should be given within ninety days.
    The only question raised by the bill of any importance or seriousness, is, whether the Board of Supervisors had the authority to pass such a resolution; whether the proviso makes it something that they were not authorized to pass.
    The board had expended all their authority when they by resolution designated the place. The next thing to be done is to obtain a vote by the electors, and the resolution of designation is necessarily a conditional one, that needs confirmation by a vote of the people.
    The proviso must be regarded as applicable to the removal, or designed so to be after the submission to the electors; and there is no way in which it could become operative until that time, and whether they could make a proviso that would hinder its being removed after such designation and vote, is an objection that can scarcely be made, especially as the proviso has been complied with. To remove the county seat needs a proposal, a resolution of removal passed by two-thirds, and a vote of a majority of the electors, and then the removal.
    These things have taken place in the only order they could, and all is accomplished except the removal; a large majority having voted for the removal.
    If the proviso would render nugatory the resolution, then the proviso should be disregarded. The legislature gave the Board of Supervisors power to designate the place to which the removal shall be made. They do that. They designate, but by their provisos provide for the expenses of constructing. They have power over the whole matter. Do they exceed their authority? If it is thought that such a proviso ought not to be attached to a designation, is there a necessity for regarding it as attached or intended to be, to the designation. Why not consider it as intended to be a condition of removal.
    But an unlawful proviso does not necessarily imply an unlawful resolution, any more than an unlawful proviso in an act of the legislature renders the act void. Such provisos do not render acts void. Laws may be unconstitutional in some of their provisions and valid as to the remainder. — See 1 Mich. 485; 6 Id. 266 ; 11 Id. 139; 13 Id. 481.
    2. The only other objection of the least importance is that the resolution of designation was not passed by a two-thirds majority of the members of the board elect.
    The meaning of this must be two-thirds of the members then constituting the board. If otherwise, one section of a county (being more than one-third) could by resignation before any meeting of the board prevent a vote being taken upon the question of removal.
    The resolution was actually passed by a two-thirds vote of all the members elected originally by the change of vote of Julius Granger from no to aye.
    The resolution had been declared as passed by a two-thirds vote the previous day, and on the second day, at the opening of the session, Julius Granger asks and obtains leave to change his vote from no to aye, which is granted, and this makes up, with the nineteen votes that had before been given, twenty out of twenty-nine members. There was no need of reconsideration of the previous vote passing the resolution; it is enough that a body having power over the matter allow a change of vote, so that the record shall stand twenty instead of nineteen in favor of the passage of the resolution. A board of supervisors is not a body bound by any particular formula or set rules by which they were bound to reconsider their vote of the previous day and vote on it again — nineteen had voted for it, and on the second day, before any further action was^had upon the matter, one more votes for it, making twenty that voted for it. It is enough that the record of the vote expresses the voice of twenty ayes out of twenty-eight or twenty-nine, as the case may be, in favor of the designation and removal.
    The direction of the proposition to be submitted to a vote of the people, did not require a two-thirds vote — only the designation required that vote.
    S. The approval of the bond was made by three out of five of the committee.
    The guarantee required by the resolution was that it should be suitable; not that it should be approved at all by any body. If it had been “suitable,” though all the committee had rejected it, it would be all that was required. Suppose the chairman had been a man in interest with the south end of the county. The committee would not have approved of the bond if John Jacob Astor had signed it. Therefore, it was only necessary that suitable guarantee should be given. Who would say that the guarantee was not suitable? There is no allegation in the bill that the bond or guaranty was not “suitable.”
    4. The Board of Supervisors did subsequently recognize the bond as suitable, by making provisions for and ordering the removal. The whole question then reverts, had the board power to pass the resolution of designation, as it was passed, and did the condition of suitable guarantees render inoperative the vote, by a two - thirds majority, designating the place to which the removal should be made.
    We submit that the whole action of the Board of Supervisors has been in strict compliance with the requirements of the Constitution and of the statutes enacted to carry out those requirements, and that in view of public policy, and the declared will of the electors of St. Clair county, the injunction should not be granted, but that the removal of the county seat should be perfected, and the will of the people, as declared by their vote, accomplished.
   Christiancy J.

This bill is filed by the prosecuting attorney of St. Clair county, upon the relation of two citizens of that county, for the purpose of• testing the legality of the pr-oceedings for the removal of the county seat from St. Clair to Port Huron, and asks an injunction to prevent the several defendants from removing their offices to Port Huron.

The case comes before us upon appeal, the bill having been demurred to, and certain facts agreed upon by stipulation, which we shall consider as if stated in the bill.

The propriety of bringing a bill in this form by the prosecuting attorney, in the name of the people, and upon the relation of individuals, has not been questioned in this case; both parties being desirous of obtaining a decision of the case upon the merits. Assuming, therefore, the right' to bring the bill in this shape, but without intending to preclude the question in other cases, or to have this assumption drawn into precedent, we shall proceed to consider the merits of the case.

Waiving the question whether the resolution of the board in reference to the removal of the county seat was passed by the requisite majority of the Board of Supervisors, or whether the statute requires a majority of two-thirds of all the members elected — a point we deem it unnecessary to decide — we are to inquire what was the nature and effect of the resolution, and whether it has been properly-carried into effect.

The resolution is not a direct and- absolute determination to remove the county seat, or an absolute designation of the place to which it should be removed. It is expressly made subject to the proviso that “ suitable guarantees” should be given for the erection of the necessary buildings for county purposes, free of cost to the county, and that said guarantees should be given within ninety days from that date. Being thus conditional, it could not operate as an absolute resolution for removal or for the designation of the place, until the condition specified in the proviso should be fulfilled. This proviso was an essential part of the resolution, and can no more be rejected than any other portion of the resolution. For though the board had power to adopt a resolution for such removal and designation, they had also the power to refuse it absolutely, or until the circumstances, and the inducements offered, should, in their opinion, render it expedient. And a guarantee for the erection of the necessary buildings, without cost to the county, was a very proper subject of consideration, in determining upon the expediency or propriety of the removal — a consideration which in its nature, was calculated to influence the minds of the members in voting for or against the resolution. No one can be authorized to say that it did not have that effect, or that the resolution could have passed by the requisite majority, without the proviso.

The ^authority to submit the question to the electors rested upon this resolution. Whether it would have been competent to have submitted the question to the vote of the electors in this conditional form, we are not called upon to decide, as there is no pretence that it was thus submitted. So far as appears from tbe record, as well as from tbe statements of the counsel upon the argument, the question of removal actually submitted to the vote of the electors was without any condition whatever. We think it entirely clear that the question submitted to the electors should have been the same as that voted upon by the board. Here the resolution of the board was conditional; the vote of the electors absolute.

But it is urged that this resolution had in the meantime become absolute by the adoption of the resolution of the next day, and the action of the committee under it, which, it is claimed, operated as a performance of the condition prior to the vote by the electors. Whether, if it had thus become absolute in the meantime, this would have cured the defect, we express no opinion, because, in our view, the record does not show that the resolution had' become absolute by the performance of the condition. The condition or proviso was somewhat vague and indefinite. It was that “ suitable guarantees ” should be given. Who was to judge whether any guarantees were suitable. This was clearly a question which this resolution left for tbe future decision of the board, unless, perhaps, by a subsequent resolution, passed by a two-thirds majority, they had determined to leave its decision to some other person or persons, which possibly might have been competent. For having the power to pass the resolution for a removal, etc., without any condition, they might, perhaps, have passed it subject to the condition that a guarantee should be given, which should be satisfactory to any person they might choose to name. But in such a case, the second resolution would operate thus far to modify the original resolution. But the resolution adopted by the board on the next day, for the purpose of carrying the proviso of the original resolution into effect, appointed the chairman and four other members a committee “ to examine and, if found satisfactory, to approve the bond required to be given on account of the removal of the county seat” — in other words, to determine whether the guarantees that should be offered were “suitable.” This resolution does not appear to have been passed by a two-thirds majority of the board, and consequently can not have the effect to modify the effect of the original resolution passed, and required to be passed by such two-thirds majority. Hence, this second resolution referring the matter to a committee, must stand, if it can stand at all, as a mere naked delegation of the authority of the board, given by a simple majority. This was' not a committee appointed for the mere purpose of inquiring and reporting to the board for its future action, but for the purpose of definitely and finally exercising upon this question the whole power possessed by the board itself. We think it clear that it was incompetent for the board thus to delegate this power; (Hascall et al. v. Madison University, 8 Barb. 174 Thompson v. Schermerhorn, 2 N. Y. 92), and that no action which the committee could take under the resolution could determine the’ question of the sufficiency of the guarantees under the original resolution. Hence, notwithstanding the approval and acceptance of the bond by them, the original resolution remained still conditional as when it was first passed, and that nothing short of a resolution, passed by a two-thirds majority of the board, coxdd decide the question, or dispense with the condition. There was no subsequent action of the board upon the question.

Hence, the resolution for removing the county seat, or designating the place to which it was to be removed, remained conditional at the time the question was submitted to the vote of the electors without any condition. The vote of the electors was, therefore, unauthorized, and of no validity.'

The decree of the court below, sustaining the demurrer and dismissing the bill, must be reversed, and the defendants have leave to answer.

The record must be remitted to the court below for further proceedings. <

The other Justices concurred.


text:
    Jabez H. Jackson and others v. Joseph H. Cleveland and others.

      Voluntai'y deed: Resulting tmst,, when not created. A husband and wife being about to separate, certain property was, at the husband’s instance, (in order to avoid questions of dower,) conveyed to a third person by a deed in fee simple, absolute in form, and purporting to be upon a valuable consideration. Held, that the absence of consideration in fact was not sufficient without fraud, mistake or contrivance, to raise any resulting trust in favor of the grantor. A voluntary deed, intentionally and deliberately made, is good against the grantor and his heirs, and can only be avoided by creditors or others having superior equities to the grantee. The rule which has been sometimes applied, raising trusts in favor of the grantor in a voluntary deed, was technical, and could not apply when a valuable consideration was recited, or beneficial uses in favor of the grantee were expressed in the deed. Where a deed has been recorded, and acted upon by the mutual concurrence of grantor and grantee, that amounts to a delivery, and the fact that it was originally made without the knowledge of the latter, and not manually delivered to him, is of no importance.

      Heard April 21st and 24th.

      Decided November 10th.

    Appeal in Chancery from Lenawee Circuit.
    This was a bill filed by complainants as heirs at law of Jacob Jackson, deceased, to obtain a re - conveyance of certain premises conveyed by said Jackson, in his life time, to Joseph H. Cleveland, and by him conveyed to other defendants.
    The bill was dismissed, on the hearing.
    The facts are stated in the opinion.

      G. V. H. JOothrop, for complainants.
    1. The evidence shows, beyond any fair controversy, that Jackson, for his own convenience, use and benefit, made the deed to Cleveland, and that no gift or benefit to Cleveland was intended. And if oral declarations are admissible, it is clear that it was only long after Jackson’s death that Cleveland formed the knavish plan of claiming the land for his own use.
    The heirs of Jackson claim that this is a constructive trust, or one by operation of law. It is certainly such, morally. What is there to prevent it from being so regarded and enforced in a court of equity?
    By our statute of uses and trusts, “trusts arising or resulting by implication of law,” are left as they stood before the statute, except, that in the' case of a deed on a consideration paid by a person other than the grantee, no trust arises in favor of the person paying the consideration.— Comp. B. § 2636.
    So our statute of frauds, requiring interests in land to be created by writing, expressly excepts trusts arising “by implication or operation of law.”- — Comp. B. §3178.
    There is, then, nothing in these statutes which affect this case.
    2. From the text books, I think no one would suspect that there was any doubt on this question. They state it as a settled proposition that where a conveyance is wholly voluntary, and the cotemporaneóus facts clearly show that no gift or other benefit to the grantee was intended, but only a benefit. to the grantor, then a trust to the grantee would be implied.
    Some of the writers state the law in stronger terms; but they, are all authority for the position as above stated. 1 Cruise, Big. 468, 2 Am. JEcl.

    Judge Story declares it “firmly established.” — 2 Story JEq. Bur. §§ 1198, 1190, 1197, 1200, 1201 ; 2 JBl. Com. 330; Hill on Trustees, 163, 3d Am. JEü.¡ 2 Spences JEq. Bur. 449.

      The current of English cases is the same way.— JBirch v. JBlagrave, Amb. 265, 3 Swanst. 585; Oases cited, Sill on Trustees. 164 et. seq.

    And the following cases in this country recognize that such constructive trusts may arise under voluntary conveyances— 12 Set. 241; 2 W. & M. 168.
    In England there are but two cases that can be cited against this doctrine.
    The first is not a decision on the point, but a remark of Lord Hardwick, in .which, mentioning two cases of resulting trust, he is reported to have said that he knew of no other.— 2 AtJe. 150.
    Now, this is, probably, an error of the reporter, for it is incontrovertible that a trust did result on a feoffment without consideration.— 2 Ath. 256; 2 AtJc.q 4 Muss. 422.
    This latter was a case where a son, wishing to raise money on mortgage of property, under advice that his father’s better credit would facilitate this, conveyed without consideration to his father. The latter died, leaving á general devise of all his property, and it was held that parol evidence could not be received under the statute of frauds to show a resulting trust.
    As to American authorities, see 6 Paige, 358; 20 S. Y. 39; 29 AT Samp. 129; 36 Id. 86; 38 Id. 382; 2 Grant's cases, 450; 29 Me. 410; 2 Glarh (la.) 60; 9 Wis. 379; 5 Ohio, St. 196.
    Some of these cases, it will be seen, do not sustain the defendants; others, it is conceded, do. But the latter rest chiefly on the ground, that parol evidence can not be admitted in a court of equity to show that a deed does not express the true and the whole intention of parties. But this is certainly not the general rule, and not the rule in this state.
    The references already made show that there is no difficulty in our statutes in establishing constructive or resulting trusts by parol.

      Now it is certainly the rule in this state, and generally in a court of equity, that a deed absolute on its face may be shown to have been intended as a mortgage, though this contradicts the very terms of the deed. — 12 Mich. 314; 1 John's Gh. 582; 4 Seld. 419; 2 IF airf. 9; 4 San. & I. 555; 7 Leigh, 566.
    These and a multitude of other cases, show that there is no difficulty in a court of equity in showing, by parol, such facts as will raise an implied or constructive trust, even against the express terms of a deed.
    If the facts offered in evidence tend to show such a trust as equity will recognize and enforce, then they are admissible, though offered by parol. They can only be excluded by taking the broad ground, that if proven they would not make a case of trust by operation of law.
    What we insist upon, is that parol evidence of facts, which will show a trust or confidence in the transactions, may, in cases like the one before the court, be given in evidence. These stand on an entirely different ground from subsequent admissions or declarations. — Sill on Trustees, 165, and cases cited, 3d Am. Sd.

    3. The defendant Williamson claims that he was a bona fide purchaser without notice. But the complainants held actual possession through Nichols, claiming their equities. Williamson purchased subject to the equities of complainants.- — ■’Walk. Gh. 79, 260.
    And mere notice before actual payment is enough.— Walk. Gh. 117; 5 Mich. 408; 6 Id. 134; 12 Barb. 605; 29 Id. 505; 2 Sumn. 486.
    I am aware that this court has held this rule not to apply where the grantor himself remained in possession. 8 Mich. 405. But I submit that this limitation is personal to the grantor himself. And it does not apply to those in possession claiming by subsequent grant or by descent.
    The following authorities, though not directly in point, have a bearing-. — 4 Barr. 173; 6 Maine, 256; 7 Id. 464.

      Drown <& Geddes and O. I. Walker, for defendants.
    1. The recording of a deed raises the presumption of delivery, and the evidence that it was recorded, by the direction of the grantee, is sufficient proof of delivery. — Greenlf. Or. 4, b. Title 32, Ohap. 2, §64, note; 2 Wash. Teal. Prop. 580, 582.
    2. But the main question in the case is, whether Cleveland holds the property in trust for the heirs of Jacob Jackson; that is, any such trust as can be enforced under our statute of uses and trusts. — 2 G. L. §2631. It is not a trust in favor of creditors, for there was no fraud, nor are complainants creditors. — 2 G. L. § 2638. Nor is it an express trust under the statute. — 2 O. L. § 2641. It is not a trust arising or resulting from implication of law, under section 2636. Some of the books assume, in a very general way, that in a case of conveyance without consideration to one not related to the grantor, an implied trust for the benefit of the grantor arises, subject to be rebutted by parol. — Shep. Touch. 501; 4 Kent, 306, note; Cruise’s Digest, b. 1, Title 12, Chap. 1, § 52; Story’s Eq. Jur. § 1197; 2 D.ouv. Inst. 327.
    This may be true where, upon the face of the deed., it is a voluntary one, and there is no use expressed to the grantee, but the rule laid down is criticised in Kill on Trustees, ( 106 ) 147; 2 Spence’s Eq. 198.
    But whatever may be the rule where the deed purports to be a voluntary one, where the deed is expressed to be for a pecuniary consideration and for the use of the grantee, parol evidence is not admissible to j>rove the want of consideration, or that it was intended to be in trust for the grantor; in other words, there is no implied trust in. such cases saved by our statute, and no express one can be raised by parol. — Greenlf. Cruise, b. 4, Title 32, Chap. 20, §52, note; 4 Kent’s Com. 306; Shep. Touch. 222-3; 2 Story’s Eq. Jur. §1199; 2 Atlc. 150; 6 Paige,
      535; 20 JT. T. 39; 29 M. 410; 29 JVT H. 129; 36 Id. 86; 38 Id. 382; 2 Grants Cases, 460; 2 Ciarle, 59; 9 Wis. 319; 5 Ohio St. 194; 4 Russ. 422; 6 Conn. 284; 14 Gray, 218.
    Many of these cases are closely analogous to the present in their facts, and identical' in the principles involved.
    We think the question too well settled to admit of a single <Joubt.
    3. But in this case' the title is held by Williamson, who is a bona fide purchaser without notice. The occupation of the premises by the hems of the grantor, at the time of his purchase, was not constructive notice of an adverse claim. — 8 Mich. 405.

      A. L. Millerd, on the same side.
    1. The facts, even taking them as set out in the bill, do not create a trust. In other words, the trust cannot be made out by parol. By the statute of frauds,"no trust in lands can be created or declared, unless by act or operation of law, or by a deed in writing. — 2 Comp. I. § 3111. And by chapter 63 of the Revised Statutes of 1864, uses and trusts are abolished, with the exception of such trusts as arise or result by implication of law. — Id. §§2631, 2636.
    As there is no express trust in this case, and no writing, creating or evidencing a trust, is there a trust arising or resulting by implication of law?
    See the enumeration of the classes of eases in which the law raises or implies a trust, by Judge Lomax, — Tiffany & Bullard’s' Trusts and Trustees, 22.
    If the case at bar comes under either of these classes, it is the third — i. e., “ where a conveyance of land is made without any consideration or declaration of the. use.” See, also, the enumeration of cases of implied trusts, by Judge Story. — 2 Story’s JSq. Jur. §§ 1195, 1191, 1199.
    But here there is a valuable consideration expressed in the deed, and the habendum is to the use of the grantee,

      his heirs and assigns. Parol proof cannot be admitted in such a case to establish a trust in opposition to the express terms of the deed. — Tiffany <& Surd’s Trusts, 41, 42; 6 Barb. B. G. 99; 1 Paige, 494; 2 Story’s Sq. Jur. §1199.
    But the complainants cannot have a decree declaring a trust in this case, for another reason. It would be entirely inconsistent with the case made by their bill. It charges that there was no delivery of the deed, and consequently no title passed to Cleveland, but that the claim made by him is a cloud on the title of the complainants, which they ask to have removed. It is a bill to quiet the title.
    On such a bill they can not have an entirely different relief, based on a different state of facts. They can not now abandon the case made by the bill, and claim that the deed was delivered and the title did pass. — 6 Barb. S. G. 99.
   Campbell J.

Complainants file their bill as heirs at law of Jacob Jackson,. deceased, to obtain a reconveyance, of certain lands conveyed by Jackson and wife to Joseph H. Cleveland, and by him subsequently conveyed to defendant, James H. Williams, who gave back a purchase money mortgage which, with the negotiable promissory note accompanying the same, was assigned before maturity to the other defendants, Wheeler & Bros. The bill claims that the deed was made under a sej)aration arrangement between Jackson and his wife, and without any communication with Cleveland, upon the expectation that Cleveland would deal fairly and honorably with him, and follow Ms directions in regard to disposing of the land; and that it was,.'.never, actually delivered to Cleveland, but was, some 'time after, its execution, recorded upon the occasion of 'selling a parcel,' which was conveyed by Cleveland, at Jaohs'óMs; -request-^— the latter, as alleged, receiving the money. It is also claimed that Jackson remained in possession until his death.

Relief was based, by the argument, upon the alleged non-delivery of the deed, and upon the ground that the transaction raised a resulting trust in Jackson, which has descended to his heirs. It is not claimed that any contract was ever made between the parties, and no written declaration of trust is set up.

There is no foundation for the claim that the deed was not delivered. Whether Cleveland or Jackson left it for record is not very material, for it was recorded with their concurrence, and Cleveland assumed to convey the land which was sold at the time of the record, as owner under the deed. The only question involved, so far as he is concerned, arises upon the operation of the deed as involving or not involving a trust in favor of Jackson. The rights of the other defendants rest upon a further claim of being bona fide, purchasers.

Before considering the legal questions, it may be desirable to understand the facts. It is shown that Jackson and his wife were about separating, and that it was arranged between them, on a sufficient pecuniary consideration, that she should release her dower in her husband’s lands. It was, upon consultation, suggested by some person among the counsel, that the property might be deeded to some third person, and Cleveland was fixed upon, and the deed executed without consulting him. Two witnesses are sworn upon this transaction, and it does not appear from their testimony that there was anything said at the time, or subsequently, about what was expected to be the nature of Cleveland’s holding. There is no reason to believe that there was any agreement on the subject, and Jackson evidently relied upon Cleveland to do what was to be. done, if anything, without making specific terms with him. • ' There is ' no admission of Cleveland that any one had rights which could be enforced against him, but he lias-, oflhred to convey the property upon the terms of making provision for an illegitimate child of Jackson’s, which the heirs refused to accept.

The case stands upon the simple question whether such a deed, because made without any consideration in fact, involves a resulting trust in favor of the grantor. This deed contains a recital of consideration, and declares the uses' in the ordinary form in favor of the grantee, his heirs and assigns in fee. It is in the form which would have been used had the land been bought and paid for, and it is designed upon its face to represent the grantee as an ordinary purchaser. The object, in fact, was to vest in him an indefeasible legal estate, whatever may have been the equities. And the intention to do this was not left subject to revocation, as the recording of the deed was made with an express purpose of having Cleveland enabled to convey, as he did convey to the first person who became a purchaser of a portion of the estate. The equity, therefore, which is relied on in this cause, depends upon the establishment of a principle that a voluntary deed, where no consideration, in fact, passes to the grantor, is subject 'to a trust in his favor, and no beneficial title vests in the grantee.

This claim is not sustained by any authority. A voluntary deed, which purports to be for the beneficial use of the grantee, and which was made deliberately and without mistake or contrivance, does not differ from any other deed in binding the grantor, and can only be attacked by those having superior equities which the grantor had no right to cut off — as creditors and the like. The only case approaching it is that where an equity is raised against a grantee in favor of the person ' who paid the purchase money. This trust is now abolished by our statutes, where the person paying the money has consented to the deed being 'thus made. And it could always be rebutted by showing that the land was intended to vest beneficially. — Philips v. Crammond, 2 Wash. C. C. R. 441, 445-6 ; Benbow v. Townsend, 1 Mylne & K. 506; Maddison v. Andrew, 1 Ves. Sen. 58. And in Delane v. Delane, 4 Pro. P. G. 258, it was held that a person paying purchase money,- and allowing the deed to be made to another, precluded himself from setting up any such trust by holding such j>erson out as the real owner, and witnessing a lease made by him as such. Upon this principle the action of Jacob Jackson, in procuring Cleveland to. deed the parcel sold, would have rebutted such a trust, had this been the case of a purchase by one person in the name of another, and had the statute left such trusts to be enforced. The presumed intention to claim the title is rebutted by acquiescence in the assertion of ownership.

This doctrine of resulting trusts has never been applied to mere voluntary conveyances. Mere want of consideration has never raised resulting trusts out of these. — Young v. Peachy, 2 Atk. 256; Lloyd v. Spillet, 2 Id. 148; Leman v. Whitley, 4 Russ. 423; Sturtevant v. Sturtevant, 20 N. Y. 39.

There is a class of cases which were referred to upon the argument, which depend upon the common law rule that a feoffment without consideration, and which declared no uses, created a resulting use to the grantor — or, in other words, was practically no conveyance. But this doctrine has been held to be merely technical at law and in equity, and not at all dependent upon any question of consideration. It rests upon the jorinciples underlying the second great class of resulting trusts, where a trust results in the residue of all estates after the uses or trusts upon which they are conveyed are exhausted. And accordingly, either the mention of a consideration, although nominal, or the declaration of uses, will prevent any trust resulting, and confirm the title in the feoffee. — Lloyd v. Spillet, 2 Atk. 148; Saund on Uses and Trusts, 334-5; 2 Fonblanque's Equity, 133; 1 Spence Eq. 449, 450, 451, and oases cited. A court of chancery has never ventured against the expressed will of the donor, appearing on the face of the deed, to “take the use from the donee, and give it back to the donor. In other words, uses annexed to a perfect gift, however gratuitous, were enforced." — 1 Spence, 450.

We have found no authority which would justify us in raising a trust in the present case. Jackson saw fit to leave Cleveland untrammeled by any obligation. Whether he has abused confidence, as there is great reason to believe, or whether he was, as he claims, made a beneficiary to cut off others, is not material.

The other questions need not, therefore, be discussed. The hill ivas properly dismissed, and the decree should be affirmed, with costs.

Martin and Christiancy JJ. concurred.

Cooley J. did not sit in this case.


author: Cooley J.

text:
    John Woodward v. Stephen Clark and others.

      CKancenj practice: Party, amendments. Swrcnder of contract, effect of. Possession, constructive 'notice. One Woodward made a contract witli Clark, in 1862, for the purchase of four tracts of land, to be paid in instalments. In 1863 be made an agreement with Fisher and Corning by wbicb said premises were to be divided: Woodward taking two lots, and Fisher and Corning each one. To effect this, Woodward assigned his contract to Fisher, with the proviso that he would not assign it without his consent, and Fisher gave him back a contract to deed the two lotB on his making the proportionate payment, and also Corning a similiar contract for his. Fisher soon after made an arrangement with Clark by which the original contract was surrendered up and cancelled, and Clark then sold Woodward’s two lots to Bradley and Sprague: Woodward being in possession at the time. Held,

    1. That as Woodward must claim liis rights through his contract with Fisher, the latter was a necessary party to the bill, but that the bill should not have been dismissed on that ground, where only a general demurrer was interposed, but that complainant should have had leave to amend.

      2. That when Clark took from Fisher a surrender of his contract, he took it subject to all the obligations which Fisher had assumed, and was consequently bound to perform Fisher’s contracts with Woodward and Corning, and Woodward was entitled to a decree declaring his rights under the Fisher contract, unaffected by the surrender, and for an injunction as prayed.
    3. That Bradley and Sprague having made their purchases while complainant was in possession, were constructively notified of his rights, and can not stand in any better position than Clark dzd.

      Heard November 8th.

      Decided November 10th.

    Appeal from Allegan Circuit in Chancery.
    This was a hill for specific performance and injunction. Defendants demurred to the bill for want of equity, and on the hearing it was dismissed. The facts are stated in the opinion.

      Theodore Momeyn, for appellant.
    It appears from the averments of the bill in this case (admitted to be true by the demurrer,) that the complainant and his assigns have complied with the agreement made with Clark, so that, as between them, if he had retained the contract, there would have been no ground for forfeiture, or for refusing relief.
    What are the complainant’s rights in equity, in view of the present facts?
    1. When the contract had been executed, the vendor became in equity a trustee of the lands for the purchaser, and the vendee became a trustee of the purchase money for the vendor.
    2. The purchaser might enter into a sub-contract for the disposition of his equitable interest therein; and, upon such an agreement to sell the same, would become a trustee thereof for the person with whom he should so contract, who would thereby acquire a right to the performance thereof, and to call on the original vendor.
    Such interest of the purchaser is devisable, and descends to his heirs if he dies intestate. — Jeremy's JEJq. 446, 44V.
    3. The assignment of this contract to Fisher, of June 1st, 1863, and tbe taking from Fisher of a contract for the sale back to Woodward of 149-j^y acres, was in 'fact and in law but the assignment to Fisher of a part interest in the original agreement, with a reservation of the residue to the complainant.
    Such was the manifest intention of the parties, and the reason for the form of the securities is disclosed by the bill.
    The contract was assigned to Fisher on his request, and for his security and accommodation. And he agreed to let Woodward have the latter’s retained share, on exactly the same terms as to price and time of payment as in the original contract.
    4. Of this state of things, Clark had legal notice. The assignment of the contract to Fisher provided that it should not be re-assigned without Woodward’s written permission; thus declaring on its- face that Woodward retained an interest.
    Clark, by taking such assignment without such assent, was put on inquiry, and chargeable with notice. Besides, the continued possession of Woodward was notice.
    Sprague and Bradley were chargeable with notice in like manner.
    5. By the assignment to Clark, Fisher divested himself of all interest in the matter; if the complainant elected-not to look to him, and Clark became subrogated to Fisher’s rights, and subject to his liabilities.
    His original position, as trustee for Woodward, remains to the extent of Woodward’s remaining interest. As to that portion of Woodward’s interest, assigned to Fisher, it may be considered extinguished. At all events, it is not involved in this suit.
    6. Fisher is not necessarily a party to this suit.' No decree is sought against him.
    It might have been well enough to make him a party; but he is not a necessary party, and the demurrer was general, and not for want of parties.
    Clark has taken his place, and, with full notice, has succeeded to Fisher’s rights and liabilities.
    We ask no relief against Fisher, but only against Clark, and the subsequent assigns of the latter. — Story's Eq. PI. § 288; 8 Paige, 466.

      G. V. JV. Lothrop, for defendant.
    1. The bill of complaint is premature. The complainant has not performed, nor offered complete píesent performance. He avows intention of future performance, and wants a decree that after performance, some years hence, defendants may be decreed to convey.
    To claim a specific performance, complainant must show a present right to it. A contingent right, depending on acts future and altogether uncertain, will not do to sustain specific performance.
    He does not show a present title. — Story's Eq. PI. § 23; 1 JDaniell Gh. Pr. 363.
    2. But it is quite clear that complainant has no color of right or interest in any of the lands except those for which he holds Fisher’s sub - contract. By his assignment he put all the legal right under the original contract into Fisher. Fisher then sold complainant a part of the lands, sold 'another parcel to Corning, and kept the residue himself.
    Now, clearly complainant has no interest in the Corning parcel, nor in that which Fisher kept. If complainant has any equities, they are limited to the lands which are described in his contract from Fisher. Hence he has no* right to call for a conveyance of the other parcels.
    A specific performance is, of course, impracticable. — 2 Story Eq. Pur. §§ 769, 771.
    Besides, there is no charge in the bill that Clark, when Fisher surrendered the contract, knew that complainant claimed any interest. His possession was no notice, for Clark knew that this possession was under the contract which complainant had sold and assigned. — 8 Mich. 403.
    3. Without going further, it is clear that Fisher had a right to release to Clark all his interest in that portion of the lands which complainant had turned over to him (Fisher) for his own.
    As to this, Clark had put it out of his own power to set up any claim or title to. After his assignment of the original contract, he had no sort of right or equity to that part of the land.
    How now can it be pretended that he can demand a decree which will vest this land in him? He shows that by his voluntary and deliberate act he had alienated it.
    By this act he gave up his right of ownership in the original contract, and all right to enforce it. He can not enforce it as a whole; and as there is no way of apportioning it without the consent of the other party, he has lost all right to a specific performance.
    There is no way by which a substantial performance can be devised. In one word, by his own acts, complainant has put himself where he cannot claim this peculiar remedy of equity.
    4. If the bill were not without equity, yet it would be fatally defective for want of parties. Corning is interested, and he is not here. And Fisher, too, by his contract relations, is entitled to be heard. He, also, is not a party.
   Cooley J.

The facts in this case, as shown by the bill, may be briefly stated as follows:

On or about the first day of July, 1862, the defendant, Clark, entered into a contract with complainant to convey to him four half-quarter sections of land in Allegan and Barry counties, for the price of $2,012.79, to be paid in four annual instalments, the first payable Nov. 1, 1864, with annual interest; the complainant paying all the taxes after 1861, and breaking up and fencing fifty acres each year. Complainant moved upon one parcel of the land, where he still remains. About the first of June, 1863, complainant assigned this contract to John L. Fisher, but with a provision in the instrument of assignment that Fisher should not sell or dispose of the contract without the consent of complainant, in writing. At the same time, Fisher gave back to complainant a contract of sale of two of the eighty acre lots, and made a similar contract with Milo N. Corning for a sale to him of another of said lots. These two contracts, together with the assignment, were intended as a division of these lands among complainant, Fisher and Corning; the title to be taken accordingly after they jointly performed the original contract by making ratable payments. The breaking up and fencing to be done under the original contract, in the season of 1863, was done on the parcel of land which, by this division, was assigned to Fisher. In the fall of that year Fisher moved off from the land, and. afterwards, by some arrangement with Clark, surrendered up to him the original contract, and Clark deeded to Bradley one of the two lots assigned to complainant in said division, and gave to Sprague a contract of sale for the other.

Complainant then filed his bill, setting forth these facts, and also that he had paid all' the taxes for the year 1862 upon the aforesaid lands, and a part of those for 1863, and intends to pay the balance thereof before the month of October, 1864, when the lands would be liable to sale for non-payment:, and averring, also, a wish and intention to fulfill the first contract with Clark. He prays that Clark may be decreed to convey to complainant “the aforesaid parcels of land,” upon and after the performance by the complainant of all the acts and conditions by him to be done and fulfilled by said first contract; that Bradley and Sprague may be decreed to release to him, and that all the defendants may be enjoined from entering into the possession of, or in any way occupying or controlling “the aforesaid parcels of land,” and from selling, mortgaging, or in any way incumbering or disposing of the same; and for other and further relief.

To this bill there was a general demurrer for want of equity, and the court below dismissed it, on the grounds, first, of defect of parties, and second, that complainant having assigned the contract to Fisher, had lost all right to enforce it against Clark, and had a remedy against Fisher only.

That Fisher was a necessary party defendant to this bill is quite manifest. The rights of complainant now depend upon his contract from Fisher, and are enforcible against Clark, if at all, on the ground that he has succeeded, by assignment, to the interest possessed by Fisher at the time the contract was given. Fisher occupies the position of assignor of both parties; and the bill being filed to enforce rights under a contract which contains personal covenants on both sides, Fisher is a necessary party, inasmuch as his rights will necessarily be affected by the decree.

But it is not usual, nor do we think it projmr, for the Court of Chancery to dismiss a bill for want of parties defendant, without allowing complainant leave to amend when the bill is not demurred to upon that ground, and the defect is only pointed out on the argument. Where amendment is not of right under the rules, the granting of leave to amend is usually a matter of discretion; but it is so much a matter of course in a case of this description, and so manifestly just and proper, that we cannot suppose it would have been denied, and the bill dismissed on this ground alone, had the court been satisfied that an amendment would have been of any avail. And if the bill makes a case warranting relief, we think the decree should be reversed, and the cause remanded, to give opportunity for the amendment.

• The Circuit Judge held that complainant was not entitled to relief, because he had assigned the original contract to Fisher. But he seems to have overlooked • the fact that Fisher had given back to complainant a contract of sale of two of the lots, and had afterwards transferred his own interest in these lots to Clark, which the latter must have received burdened with Fisher’s obligations. — Converse v. Blumrick, 14 Mich. 109. Under the arrangement made between complainant, Fisher and Corning, each of .them retained an interest in the original contract; Fisher being the medium through which the title was to be conveyed from Clark to the other two, when they had made their proportionate payments. Whoever should receive from Fisher a transfer of the contract, would .be bound to the others for the performance of his undertakings; and Clark, on obtaining a surrender of the contract from Fisher, stood in no different light from any other assignee, except as he had it in his power to perform Fisher’s agreements without first compelling another person to deed to him. When, therefore, Fisher had surrendered the contract to Clark, the position of the several parties was as follows: Clark, as assignee of Fisher’s rights in the original contract, was bound specifically to perform Fisher’s contract with complainant for the two eighties; or, what would come to the same thing, to specifically perform the original contract so far as those two lots were concerned; and he was under a like obligation to Corning as to the lot assigned to him. As to the fourth lot, the original contract must be considered as cancelled by the surrender.

The bill which has been filed in this case is somewhat ambiguous in its prayer for relief, and it is .not quite clear whether the pleader considered himself entitled to relief by a performance of the original contract, or only in respect to the two lots sub - contracted by Fisher. The first he could not claim; but there is no reason apparent in the bill why he can not have the second. There can not be specific performance at the present time, because the period for performance has not yet arrived; but complainant is entitled to have protection against such acts of the parties as might wrongfully deprive him of all remedy.

There can be no claim that if the allegations of the bill are true, all the defendants in this case are not chargeable with notice of complainant’s equities. He was in possession of the land; which, of itself, was notice. The case of Bloomer v. Henderson, 8 Mich. 403, which holds that possession of lands is not notice of a claim of right in opposition to the party’s own deed, has no application to the present case, since the assignment by complainant to Fisher of itself contained a notification to whoever should become assignee of Fisher’s rights, that complainant still retained some interest; and no one, under the circumstances, could become a purchaser from Clark without constructive notice of complainant’s equities. If the complainant should be able to substantiate at the final hearing the case made by his bill, he will be entitled to a decree that Clark received a surrender of the contract subject to the performance of Fisher’s contract with compfiainant, and for an injunction restraining the defendants from disturbing his possession so long as he is not in default, and from transferring or incumbering the title, except subject to his rights under the contract.

The decree of the court below must be reversed, and the cause remanded with leave to complainant to amend.

Neither party to recover costs against the other.

The other Justices concurred.


text:
    Uri Raymond v. Samuel Hinkson and another.

      Circuit Courts: Jurisdiction in actions ex contractu. In a suit commenced "by attachment, the declaration set forth a justice’s judgment amounting with interest to less than $100, and contained no other counts and no ad damnum clause. Held, inasmuch as the Constitution gives to Justices of the Peace exclusive jurisdiction in suits arising ex contractu, where the amount claimed is less than $100, that the Circuit Court had no jurisdiction of the cause, and the judgment was void.

      Heard November 8th.

      Decided November 10th.

    Appeal from Sanilac Circuit in Chancery.
    The bill in this cause was filed by an execution creditor, who had purchased lands at sheriff’s %ale, to avoid a deed alleged to have been executed to defraud creditors.
    A decree was rendered in favor of complainant.
    The facts are stated in the opinion.

      Mitchell db Chadwick, for complainant and appellee.
    The want of the ad damnum clause, in the declaration, did not affect the validity of the judgment, as, if it was a defect, it is cured by judgment under the statute of Jeofails. The declaration could have been amended by supplying the defect at any time before judgment, and if so, the judgment would not have been set aside, even on error, for that reason.
    But we insist that the ad damnum clause is immaterial, and may be omitted, and the declaration would not be demurrable for want of it, except as a matter of mere technical form.
    But it is insisted that the ad damnum clause was necessary to give the court jurisdiction; we say the court obtained jurisdiction by the writ and affidavit, and if they showed an amorint claimed, within the jurisdiction of the-court, then the failure to state the same in the declaration is mere irregularity, and good by intendment. — 8 Mich. 466.

      J. C. Wyllis, for defendants and appellants.
    The judgment in the attachment proceeding is void, for the reason that the plaintiffs’ declaration claims but $72.67, and of this claim Justice Courts have exclusive jurisdiction under the Constitution. Article 6, section 18. See, also, 2 Comp. Laws, §§ 8418, 3463.
   Campbell J.

The bill in this cause was filed by an execution creditor, who had purchased lands at sheriff’s sale, to avoid a deed alleged to have been executed to defraud creditors.

The suit on which execution issued was commenced by attachment. The declaration set forth no cause of action but a justice’s judgment, and did not contain any common counts nor any ad damnwm clause. The defendant, Samuel Hinkson, was personally served with the writ, but did not appear. The judgment sued on, with interest, was less than one hundred dollars, as set forth in the declaration, at the time of commencing suit.

The Constitution gives to Justices of the Peace exclusive jurisdiction in suits ex contractu up to one hundred dollars! As the cause of action, and the amount claimed must be set up in the declaration, it -follows, as a matter of course, that when that shows less than one hundred dollars to be claimed, it shows that the Circuit Court has no jurisdiction. No presumption can be raised in favor of a plaintiff against his own express allegations.

It follows that the judgment rendered upon this declaration was void, as the court had no jurisdiction over the cause. The other questions become of no importance. The decree below must be reversed, and the bill must be dismissed, with the costs of both courts.

The other Justices concurred.