author: Manning J.:

text:
    Eliza Chapin v. Nathaniel P. Jacobs and others.
    «X. gave a mortgage for $10,000, payable in several installments. As further security for the first four installments} he gave a second mortgage on other premises, conditioned to- pay said four installments as they respectively fell due. The second mortgage also contained a stipulation that whenever J. should build on the premises covered by the first mortgage, and cause the buildings to be insured for $2,000, and assign the policy to the mortgagee, and agree to keep the same so insured during the continuance of the first mortgage, then the mortgagee should discharge the second mortgage. J. built on the premises oovered by the first mortgage, and caused the buildings to bo insured, but did not assign the policy. The said four installments of the first mortgage having become due, and three of them remaining unpaid, a bill was filed to foreclose the two mortgages. J. (who had become insolvent) now tendered an assignment of the policy of insurance together with a written agreement to keep the buildings insured, which the bolder of the mortgage declined to receive. It was held, that under the second mortgage J. had his election, to pay the said four installments as they fell due, or to perform the stipulation therein with respect to building and insuring; that his right to> elect terminated when the moneys fell due, and he had no right thereafter to a discharge of the second mortgage on tendering the policy of insurance and-agreement to keep insured.

      Heard May 8th, 9th and 10th.

      Decided July 21st.

      Appeal from Wayne Circuit in Chancery.
    On the fourth day of August, 1854, Nathaniel P. Jacobs purchased of Charles Seymour certain premises in the city of Detroit, for the purchase price of which he gave to said Seymour his bond, in the penal sum of $20,000, conditioned for the payment of $10,000 as follows: $500 on the fourth day of August in each of the following years: 1856, 1857, 1858, 1859 and 1860; and $1,500 on the fourth day of August in each of the following years: 1861, 1862, 1863, 1864 and 1865; together with interest on the principal sum, or such portions thereof as should remain unpaid, to be paid semi-annually. To secure the payment of these moneys, Jacobs at the same time gave Seymour a mortgage on the premises purchased, collateral to the bond.
    At the same time also Jacobs, as additional security, gave to Seymour another mortgage, upon other premises in Detroit, with condition that if Jacobs should pay to Seymour the sum of $2,000, being the first four installments of $500 each to fall due on the first mortgage on the fourth day of August in each of the years 1856, 1857, 1858 and 1859, then the second mortgage should be void. The mortgage then contained this clause: “ It is understood to be a part of the condition of thjs mortgage, that whenever the said Jacobs shall build on the premises covered by the mortgage to which this mortgage is collateral and referred to therein, and shall cause the buildings thereon to be insured for at least $2,000, and assign the policy of insurance of that amount to said Seymour, in a good and responsible insurance company, with an agreement to keep the same so insured for the benefit of said Seymour during the continuance of said mortgage to which this is collateral, that then the said Seymour shall release and discharge this mortgage.’’
    This bond and the two mortgages were assigned by Seymour to one Hubbell, and by him to complainant. The first installment of $500 was paid, but the others remaining unpaid, complainant, on the 2101 of April, 1861, filed her bill in chancery to foreclose the two mortgages, for the installments then past due.
    At the time of filing the bill Jacobs was insolvent. He had previous to that time erected a building on the premises bought of Seymour, and caused the same to be insured, but had not assigned the policy of insurance. On August 26th, 1859, he wrote to Hubbell, who then owned the mortgage, a letter in which he says: “I have the store insured, but do not wish to transfer the policy to you, the security Avithout being sufficient; it being my intention, at the earliest possible moment, to raise money upon it to build up the block. Ten thousand dollars would be sufficient, in cash, to do it; and as that would be laid out jon the' property, the security would be ample, the stores costing me $'7,500. I am in hopes an opportunity will occur this fall to carry out this plan.”
    After the bill was filed a policy of insurance and assignment, together with a Avritten agreement signed by Jacobs, that he would keep the building insured in at least $2,000 in a good responsible insurance company, for the benefit of complainant, during the continuance of the first mortgage, Avere tendered to complainant, who refused to receive the same. A similar tender was also made to Seymoiu1, and refused.
    Upon these facts the Circuit Court in Chancery decreed the second mortgage to have been discharged by the said tender of the policies of insurance and agreement, and made the usual decree of foreclosure and sale upon the first mortgage. And the value of the premises covered by that mortgage being found not to exceed $8,000, a receiver of the rents and profits was appointed.
    Complainant appealed from this decree. The only question in controversy in the Court below or in this Court was Avhether, upon the facts stated, the second mortgage was satisfied and discharged.

      H. K. • Clarice for .complainant:
    The first question is, whether the mortgagor still has the right, after the breach of the principal condition of the mortgage, by tendering a performance of the subordinate condition, to claim that his contract is fully performed, and that he is entitled to a discharge of the mortgage? The defendants affirm this. We deny it.
    A mortgage is an estate created by a conveyance, intended to secure the performance of some act, such as the payment of money and the like, and to become void if the act is performed agreeably to the terms prescribed at the time of of making such conveyance: — 1 Washb. Real Pr. 475.
    The act was not “performed agreeably to the terms prescribed” — the estate of the mortgagee' did not become void — it became “ effectually an estate in the mortgagee.”— 1 Washb. 475 ; 21 Pick. 355 ; Mundy v. Monroe, 1 Mich. 68.
    It is not important for the purposes of this case to define this estate. It is enough to say that, in equity, it is regarded with such favor that it will be construed, if possible, to secure the payment of the mortgage debt: — 2 Cruise Dig. p. 127, § 35; Coote on Mortg. pp. 391, 535 ; Washb. 516 ; Baker v. Pierson, 6 Mich. 544; 2 Eden, 78; 2 Ves. 377; 2 Spence, 669.
    It may be regarded as an established principle, that he who redeems must pay the whole debt: — 1 Washb. 555 ; 4 Kent, 162; 1 Mich. 72; 2 Atk. 267; 2 Ves. 372; 12 Ves. 48; 23 Law. Rep. 26; 2 Cox, 86.
    The debt may be barred by the statute of limitations, yet the rights of the mortgagee to his security will be protected: — 29 Barb. 277 ; 4 Cush. 559.
    These cases show the uniform practice and purpose of courts of equity, and to which there seems to be no exception, to protect the equitable rights of mortgagees. It is his right to have his debt,. and when he demands no more than this, he is a favored party in a court of equity. — 1 Pow. on Mort. 330; Coote on Mort. 393.

      The depriving of a mortgagee of any portion of his security, or weakening it as a security in his hands, when willing to accept what is due and discharge the mortgage, is as repugnant to a court of equity - as it is to enforce a forfeiture against a mortgagor who desires to pay his debt.
    If it be said that the mortgagee in this case consented to accept one security for another, we insist that this consent cannot be supposed to contemplate any such substitution after the debt had become due. Security contemplates payment in the future, and aims to render it certain against the contingencies of changing circumstances, pending the period between the day of the promise and the day of performance. But why provide for or permit a change of security after the day of payment? Did the parties expect that the payment would not be made at the day, and deliberately provide for a new and less valuable secmity after the default ? Unquestionably not. If the contract was not performed at maturity, both parties are presumed to contemplate an immediate enforcement of it. Why else did they not only provide for insurance, but for an annual renewal of it ? If the substitution were to be made before the forfeiture, this would have been an appropriate provision, because the contingencies of lapse of time were to be provided for; but it would be appropriate only before maturity. It seems in the highest degree improbable that the parties contemplated any such substitution, unless it should be made before the debt became due or the right to commence proceedings to foreclose had accrued.
    There is, however, another fact which has occurred since the mortgage was executed, which affects very materially the rights of the parties in equity; and that is the insolvency of Jacobs.

    The form of the subordinate condition requires the mortgagee “to release and discharge the mortgage” on the performance of the condition. The' position of the mortgagor here is that of a party seeking a specific performance of an agreement to release and discharge the mortgage.

      The defendants claim that Jacobs has performed the condition on which he became entitled to have the mortgage discharged. An essential part of that condition was the agreement to keep the premises insured during the continuance of the mortgage. And such an agreement by Jacobs, who was the party to be bound, has by his insolvency become valueless to the mortgagee; and it is therefore inequitable to compel the complainant to accept of it: — 1 Pow. on Mort. p. 336.
    The eases which determine when a decree for a specific performance will be made, furnish the proper analogies to determine this question.
    A specific performance will not be granted where the party seeking it is not in a condition to perform it himself:-— Story Eq. Jur. §776; 14 Ves. 550.
    If the thing to be done is payment in future — as for instance rent upon a lease — the insolvency of the party will be regarded as disenabling him from the performance of the condition. See 2 Pars. on Cont. 565; 8 Ves. 92; 14 Ves. 550; 1 Keene, 474; 6 Wheat. 528.
    A party who claims a specific performance must show that he has in good faith and within the proper time performed his obligations : — 6 Pet. 393.
    But no policy of insurance, or agreement to keep insured, was tendered until after this suit was commenced, five years, nearly, after the first forfeiture occurred, and two years after the whole debt had become due.

      I). B. Buffield and B. C. Holbrook for defendants:
    The stipulation in the second mortgage with respect to building and insurance, though not in the form of a covenant, is to be regarded as such by the Court: — 2 Pars, on Cont. 20, note n, and authorities cited; p. 23 and note .e, 27 Me. 106; 15 Penn. St. 295, 307.
    This second mortgage was in fact a mere collateral mortgage to be discharged by putting improvements on the premises covered by the principal mortgage, and so enhancing that security.
    This mortgage was subject to a condition that building upon the premises described in the principal mortgage, the effecting an insurance of $2,000 thereon, and the assignment of the policy to the mortgagee with the agreement specified, should operate as a discharge of the second mortgage. Thus, the building and insurance was to become a substituted security for this second mortgage.
    And now the question arises whether such substituted security has not been furnished, and so the second mortgage discharged? In all cases the Court, in construing an instrument, aims to ascertain the substantial meaning of the parties. This is equally true whether the stipulation be a condition or a covenant.

      Now it is clear that the substantial part of the condition was the putting on a building worth $2,000 or more, thus giving that increased value to the principal mortgaged premises. The insurance would be only a contingent security, and wholly collateral to the security furnished by the building itself. As long as the building was unburned, the policy was nothing.
    Hence the erection of the building was, as long as the building stood, a substantial performance of the condition. And the holder of the mortgage cannot in a Court of Equity ignore this substantial performance, and insist, that the collateral mortgage remains in full force.
    Now suppose Jacobs had covenanted to do. all the things named in the condition. Suppose the building erected, but the insurance not effected. In an action for the breach of the covenant could the plaintiff have recovered, if more than nominal damages, anything beyond the premiums for insurance?
    It then appears, that at the time of the filing of this bill the holder of the mortgage had received and. then enjoyed a substituted security of the full value stipulated for in the condition. The only lack was, that this new security was not protected by insurance against contingent loss.
    Now if, in fact, when this bill was filed, the complainant had the present enjoyment of the substituted security, and the only defect was a contingent hazard, he cannot equitably ask the aid of this Court to enforce the collateral mortgage as if nothing had been done.
    The relief of this Court will be equitable. It would not do more than require us to remove the hazard. It would only require us to make the complainant’s rights and security perfect; _ to make him good.
    Thus equity allows mortgagors to redeem. It gives them time to pay the money, which secures them from sale or strict foreclosure.
    And in like manner, it would allow us to perfect an imperfect performance of the condition, if the conqfiainant’s rights would be thereby fully secured. This would give the complainant full equitable relief.
    But in fact we have already perfected the performance of the condition. We have done all that a court of equity would require us to do.

      We refer to the cases in which Equity grants relief under conditions both subsequent and precedent. It intervenes to prevent the defect of rights by an unconscientious advantage, where there has been a failure in strict fulfillment:
    ■ — 2 Conn. 299; 1 JEdw. Ch. 894; Walk. Ch. 405; 29 Vi. 358; 4 JR. I. 225.
    So Equity refuses to aid in enforcing any thing in the nature of a penalty: — Crane v. Dwyer, 9 Mich. 350.
    These cases are referred to, not as parallel, but because the principles on which they rest seem to have an important bearing.
   Manning J.:

On the fourth of August, 1855, Jacobs purchased of Seymour a piece of land, sixty feet square, on Jefferson avenue, in the city of Detroit, for $10,000, payable as follows : Five hundred dollars on the fourth day of August 1857, 1858, 1859 and 1860; and fifteen hundred dollars on the fourth day of August 1861, 1862, 1868, 1864 and 1865, with interest. And to secure the payment of the purchase money and interest, Jacobs executed a mortgage to Seymour on the land purchased of him; and also at the same time as collateral security a second mortgage on another piece of land, with a condition that if Jacobs should pay to Seymour the sum of $2,000, part and parcel of the sum of $10,000 secured by the first mortgage, viz: the payments of $500 each, payable on the fourth day of August 1856, 1857, 1858 and 1859, the mortgage was to be void: It being understood and made a part of the condition, that, whenever Jacobs should build on the premises covered by the first mortgage, and should cause the buildings thereon to be insured in a good and responsible insurance company, for at least $2,000, and assign the policy of insurance to Seymour, and agree to keep the same so insured for the benefit of Seymour during the continuance of the first mortgage, that then Seymour should release and discharge the second mortgage.

A bill having been filed to foreclose the two mortgages for the installments of $500, due in 1857, 1858, 1859 and 1860, Jacobs insists that, having erected a building on the premises purchased of Seymour, and caused the same to be insured, and having since the filing of the bill tendered an assignment of the policy, he is entitled to have the second mortgage discharged, and that complainant can only have the first mortgage foreclosed.

Before inquiring into the facts on which a discharge of the second mortgage is claimed, it is necessary to determine the rights of the parties ■ under it.

It is for the payment of the first four installments of $500 each, mentioned in the first mortgage. It was intended to secure their payment, and could be foreclosed for their non-payment and for nothing else. It could not be foreclosed for the omission or refusal of Jacobs to build on the premises he had purchased of Seymour; or, having erected one or more buildings thereon, for his omission or refusal to insure; or, having insured, to assign the policy. Jacobs was under no obligation to Seymour to build, insure or assign the policy. It was optional with him to do any or all of them as he saw fit. The only effect of mentioning them in the condition of the mortgage was, if they- were performed by Jacobs, to release the lien Seymour had on the premises mentioned in that mortgage for the first four payments mentioned in the first mortgage. If Jacobs performed before any of the said payments became due, to release the premises from all of them; if after a part had become due, from those only that were not due. The condition of the mortgage is in the alternative, to pay the $2,000, or to erect a building on the lot purchased of Seymour, get it insured, and assign the policy. Jacobs had a right to elect which he would do before the payments became due, but not afterwards. With the day of payment his right of election ceased; and if equity can in any case, where an election is lost by lapse of time, give relief — -for we are not prepared to say there may not be such cases— the present is not one of them. No equities are shown on which such relief can be based. Jacobs is not injured. He is asked to pay what he agreed to pay, and no more. Seymour, or rather the complainant, who is the assignee of the two mortgages and the bond accompanying the first mortgage, asks and can receive no more than what is justly her due. And as Jacobs is insolvent, and it is probable that the premises covered by the first mortgage would not sell for enough to pay her, it would be inequitable to take from her the right she has to make a part of the debt due her out of the second mortgage. ■

So much of the decree as declares the $2,000 mortgage has been discharged must be reversed, and the decree be so modified as to direct a sale of the premises mentioned in that mortgage for the $500 installments that became due ,in 185!, 1858 and 1859, with complainant’s costs in this Court, unless redeemed.

Christian cy and Campbell JJ. concurred.

Martin Ch. J. dissented.


source: Caselaw Access Project

author: Martin Ch. J.: Christiancy and Campbeel JJ. Manning J.:

license: Public Domain

text:
    Daniel B. Harrington v. Allen A. Fish, and Another.
    A deed is not; invalid because of the description of the lands being in figures and well understood abbreviations,
    A deed was executed and acknowledged in another State, conveying lands in this State. The certificate of the proper clerk was made and attached several years afterwards, certifying that the deed was executed and acknowledged according to the “ existing ” law of that State. HeLd a sufficient certificate to entitle the deed to record.
    Where a deed was acknowledged before a Commissioner of Deeds of this State appointed for another State, and the certificate oí acknowledgment has his signature and seal to it, it is sufficient, notwithstanding the certificate does not state that it was given under his' hand and seal.
    The deed of an assignee in bankruptcy, containing a copy of the decree declaring the bankruptcy, which decree recites the appointment of the assignee, is sufficient under the law of Congress which prescribes what the deed shall contain.

      Heard April 17th, 1861.

      Decided July 21st.

    Error to St. Clair Circuit, where the defendants in error recovered judgment in ejectment against plaintiff in error. The following is a copy of the hill of exceptions on which the case was argued in this Court:
    “This cause being, on the 2d day of May, 1860, brought on for trial, the plaintiff offered in evidence a deed made by Setb Spencer and his wife to David B. Day and others, in which the premises, amongst others, were described as follows: ‘All of the equal, undivided eight-ninth parts of the following pieces, parcels and sections of lands, situate lying - and being in the State of Michigan, and known and described as follows, to wit: N, W. J and E. -J- of S. W. £ and N. W. of S. W. £, section 1Y, township 2 N. range 1 E. 280 acres.
    ‘ S. E. ¿ section 26, township 3 N. range 2 E. 160 acres.
    CN. E. ¿ section 3'5, township 3 N. range 2 E. 160 acres.
    ‘ E. of N. W. ¿ and E. -J of S. W. ^ section Y, township 6 N. range 1Y E., 160 acres.’
    “Which deed was dated the 26th day of September, 1842, and appeared to have been acknowledged before Richard Gilmore, a justice of the peace in and for Onondaga county, in the State of New York, on the same day of the date of the deed. To this deed was attached a certificate duly signed and under seal, in the words and figures following, to wit:

      “‘State of New York, Onondaga county Clerk's office.— I, Victory J. Birdseye, clerk of said county, and of the County and Supreme Courts therein, which are courts of record, do hereby certify that R. Gilmore, Esq., whose name is subscribed to the certificate of the proof or acknowledgment of the annexed instrument, was, at the time of taking such proof or acknowledgment, a justice of the peace in and for said county, and duly authorized to take the same, and that I am well acquainted with his handwriting, and verily believe that the signature to said certificate is genuine.
    “And I further certify, that the said instrument, and' the acknowledgment and the certificate thereof, are executed and taken according to the existing- laws of the State of New York.
    “*[1.8.] In testimony whereof I have hereunto set my hand and affixed the seal of said county and courts at Syracuse, this 10th day of December, 1859.
    V. J. Birdseye, Cleric.’
    “To the reading of such deed and certificate the defendant objected, for the reason:

      “Mrst: That the description of said premises is not sufficiently contained in said deed, the same being by initials and marks indicating words, and not written at length.
    “ Second: That the certificate of the clerk, Birdseye, does not state that the said deed was executed and acknowledged according to the laws of the State of New York at the time said deed was executed and acknowledged, hut the same was according to the existing laws of said State.
    “These objections were overruled, and the deed and certificate were admitted in evidence, to which the defendant excepted.
    “ The plaintiff then offered in evidence another deed, purporting to be made by Charles F. Day and wife, to the plaintiffs, on which was endorsed a certificate of John Benson, a commissioner appointed by the Governor of the State of Michigan to take acknowledgment ofi deeds, &c., in the State of New Jersey, which certificate was of proper form, duly signed, and had annexed a seal with the words cJno. Benson, Commissioner, N. J.,’ impressed thereon, but there was not any statement or words in the certificate otherwise showing that the same was executed under his hand and seal.
    “To which the defendant objected, for the reason that the said certificate of said commissioner did not in anyway state that said certificate was under his hand and seal.
    “Which objection was overruled, and said deed and certificate were admitted, to which the defendant excepted.
    “The plaintiff thereupon introduced and read in evidence duly certified copies of the proceedings had in the District Court of the United States for the district of New Jersey, in Bankruptcy, containing copies of the decree declaring David B. Day a bankrupt, and also an order appointing Lorenzo Jaques his assignee, and in connection therewith the paintiffs offered to read in evidence a deed executed by said assignee to Susan R. Griggs and others, from whom the plaintiffs derive title. This deed recited and contained a copy of the decree in bankruptcy, and contained at the conclusion thereof the words following : 4 And it is furthermore ordered by this Court that the clerk certify and deliver a copy of this decree to Lorenzo Jaques, of the county of Hudson, this day appointed assignee of David B. Day, the said bankrupt:’ and said deed did not contain any other recital or copy of any order or appointment of said assignee.
    44To the reading of which deed in evidence the defendant objected, for that there was not any recital of, nor copy of any order appointing the grantor in said deed assignee of said bankrupt.
    “ Which objection was overruled, and said deed read in evidence, to which the defendant excepted.
    “Other proofs were introduced in the case, showing the right of plaintiffs to recover if the above deeds were properly admitted in evidence, and the Court rendered a judgment in favor of the plaintiffs.”

      D. G. Holbrook, for plaintiff in error.

      W. T. Mitchell, for defendant in error.
   Martin Ch. J.:

This is an action of ejectment brought by the defendants in error, upon the trial of which the deeds through which they deduce title were introduced under the statute, and without actual proof of their execution. The statute (Gomp. L. §2*750) is as follows: “All conveyances and other instruments authorized by law to be recorded, and which shall be acknowledged or proved as. provided in this chapter, * * * may be read in evidence in any court within this State without further proof thereof; but the effect of such evidence may be rebutted by other competent testimony.”

Three deeds were offered in evidence: 1st, one from Spencer and wife to Day; 2d, one from Day and wife to defendants in error; and 3d, one from Jacques, assignee of Day, to Griggs and others, from whom the defendants in error claim to derive title. The first deed is dated September 26, 1842, but the date of the second and third are not given. The questions raised by the bill of exceptions in this case relate to the competency of the deeds as evidence.

The errors assigned upon the admission of the deed from Spencer to Day, are, first, for insufficiency of the description of the land; and second, for insufficiency of the clerk’s certificate of its due execution and acknowledgment.

It is no objection to a deed that the description of lands thereby conveyed is in figures and abbreviations. This is a mode of description recognized and adopted by both the general and state governments in the sale of lands, is of common practice, and understood by every one; and there is no law requiring any more particular description than such as will 'give clear information of what premises are intended to be conveyed. We therefore think the description sufficient.

The second objection relates to the admission of the deed as evidence, without actual proof of its execution. The clerk’s certificate, without' which — as the deed was executed in another State — it would not be “authorized to be recorded,” would unquestionably be good were it not for the word “ existing ” contained in it; but from the interval of time between the execution of the deed and the date of the certificate — which is December, 1859 — it is insisted that the word limits the certificate to the time of such date. Had the certificate been made at or near the time of the deed, no question would 'arise, nor would one were the word “ existing ’’. stricken out; as in either case it would be construed as a certificate of the due and legal execution of the deed according to the laws of the State of New York as they existed at the time of such execution. In my opinion, tbe occurrence of tbe word “ existing ’’ does not invalidate tbe certificate, or qualify its construction. I cannot presume that it was inserted as a word of limitation, especially as the clerk could not legally execute any except such as would establish the lawful execution of the deed: but rather that he attempted to comply with the law, and that the word was inadvertently used, or perhaps inadvertently retained in the certificate if a blank form was used; or regarded by the clerk as referring to the time when the deed was executed.

The certificate is not an essential part of the deed, nor necessary to its validity. It is only required to authorize its being recorded; and I think it more reasonable, instead of avoiding the registry for the ignorance or inadvertence of the certifying officer, to hold the word “existing” as immaterial, or understand it as though the word “ then ” preceded it. The certificate being no part of the deed, or of its execution, and not the act of the parties to the deed, should not be construed with technical nicety unless upon imperative necessity. It is evidence of the execution of the deed; and like all other evidence, should be reasonably construed. I therefore think the deed was properly admitted.

As to the deed from Day and wife to the defendants in error, the objection is founded upon the commissioner’s certificate of acknowledgment, which the bill of exceptions says “had a seal annexed, with the words, ‘John Benson, Commissioner, N. J.’ impressed thereon, but there was not any statement or words in the certificate otherwise showing that the same was executed under Ms hand and seal.” The certificate was in proper form, and duly signed by Benson, and the record avers that he was a commissioner of deeds for this State. The fact that it was executed under his hand and seal as clearly appears from the instrument as though he had declared it by the instrument. The very signature and seal would .be necessary to attest such declaration, and their presence is such declaration. The statute under which the commissioner derived his power prescribes no form of attestation, nor of seal, and was substantially-complied with. In the case of this deed, as of the other, I think there is a substantial compliance with the statute; and I will not imperil a title by insisting upon technical nicety, or severe criticism of language. The form of an official certificate like this is immaterial in any but matters of substance. Until the Legislature prescribes a form, the rule of construction must be a liberal one, for the sake of the quiet and security of titles.

The deed from Jaques to Griggs was sufficient to convey such title as he acquired by the assignment, and is in compliance with the act of Congress respecting deeds by assignees in bankruptcy. Section 15 of that act is as follows: “A copy of any decree of bankruptcy, and the appointment of assignees as directed by the third section of this act, shall be recited in every deed of lands belonging to the bankrupt sold and conveyed by any assignees under and by virtue of this act; and that such recital, together with a certified copy -of such order, shall be full and complete evidence both of the bankruptcy and assignment therein recited, and supersede the necessity of any other proof of such bankruptcy and assignment to validate the said deed; and all deeds containing such recital, and supported by such proof, shall be as effectual to pass the title of the bankrupt, of, in and to the lands therein mentioned and described, to the purchaser, as fully, to all intents and purposes, as if made by such bankrupt himself immediately before such order.”

This section relates solely to the sufficiency of a deed containing the recitals, first, of a copy of the decree in bankruptcy; second, of the fact of the appointment of the assignee undertaking to convey; and if accompanied with a certified copy of the order making such appointment, is declared full and complete evidence of bankruptcy and assignment to validate the deed. The deed in question contained a copy of such decree, and recited tbe appointment of Jaques as assignee, and was supported by certified copies of tbe decree and order appointing tbe assignee. This was both a substantial and literal compliance with tbe act, and the deed was properly admitted.

The judgment is affirmed, with costs.

Christiancy and Campbeel JJ.

concurred in tbe reasoning and conclusion of tbe Chief Justice concerning tbe deed in bankruptcy. Upon tbe other deeds they concurred in tbe result.

Manning J.:

I see no error in tbe rulings of tbe Circuit Judge, and am therefore in favor of affirming tbe judgment.

Judgment affirmed.


text:
    Norman J. Colman v. George Post and others.
    When a bill is filed to foreclose a mortgage conditioned for the payment of a certain sum of money, it is competent for tile defense to show by parol evidence that the mortgage was given to indemnify sureties in a recognizance of bail, and that the liability of the sureties'has been discharged without their being damnified.
    Though such mortgage was conditioned for the payment of a negotiable promissory note, and both mortgage and note are assigned before due to secure the assignee for procuring bail, such assignee is a bona fide holder for the purpose only of the indemnity ; and when the sureties have been discharged without being damnified, neither he nor one who tabes an assignment of the note and mortgage from him after they oome due, is entitled to collect the amount thereof as bona fide holder*

      Heard May 30th.

      Decided July 21st.
    Appeal in Chancery from Kent Circuit.

      H. JB, Brown and James Miller for complainant.

      Withey <£• Gray for defendants.
   Manning J.:

The bill is to foreclose a mortgage executed by George Post and wife to Samuel Post, and assigned by Samuel Post, with'another mortgage executed to him by Benedict Eldred, to Charles D. Colman, as security for Colman becoming bail for one William Post, or whoever he might get to become such bail. Colman procured Thomas M. Town to become bail, and assigned the mortgage to Town to indemnify him. The recognizance of bail, which was $500, was forfeited, but the recognizance and forfeiture were afterwards discharged on the payment of $250 by the defendant Christopher Post. Both mortgages were executed to Samuel Post to enable him to procure bail for William Post. And after the recognizance of bail was discharged, the two mortgages were assigned by Town, at the request of Charles D. Colman, to Norman J. Colman the complainant, who insists he is entitled to a decree of foreclosure on two grounds: First, that the parol evidence by which the foregoing facts are made to appear must be rejected, as it goes to contradict the face of the mortgage and assignments, which are absolute in terms. Second, that Town was a bona*fide holder of the promissory note secured by the mortgage, which note is payable to bearer, and was assigned to Town before it became due, by Charles D. Colman.

The consideration of a contract, as a general rule to which there are some exceptions on grounds of public policy, may always be inquired into. Neither law or equity, except in the cases just mentioned, will enforce a promise made without consideration, or where the consideration has wholly failed. There can be no doubt, if the present bill was filed by Samuel Post, that it would be competent for George Post to show by parol evidence that the mortgage was given to Samuel Post to indemnify him for becoming bail for William Post, and that he had not become such bail, or having become bail that he had been discharged of his liability without being damnified. And if this would be the case as to him, it is so as to his assignee, or the assignee of such assignee, who takes the mortgage subject to all equities existing between the mortgagor and mortgagee.

But it is said the mortgage is for the payment of a promissory negotiable note, instead of a bond, and that the note and mortgage were assigned to Town before the note was due, who thereby became a bona fide holder of the note, and that complainant as Town’s assignee is entitled to t all of his rights. This is true. But for what purpose was Town a bona fide holder of the note? As indemnity for haying become bail for William Post. The note and mortgage were assigned to him for that purpose, and for no other. Until Town became bail there was no consideration for the note, which, up to that time, was wholly inoperative as a promise that the law would enforce. And as Town was discharged of all liability as bail, he could not sustain an action on the note against George Post the maker, neither can complainant, his assignee, to whom the note and mortgage were assigned after the note had become due.

There is one other matter to be noticed before disposing of the case. Bail was required in the sum of $500. The Post mortgage, which the bill is filed to foreclose, is for $500, and the Eldred mortgage for $200. Charles D. Colman, who is a witness in the case for complainant, states that the two mortgages were assigned to him to secure him $200 for his services, as well as to indemnify bail. The evidence is conflicting on this point. But conceding all that is claimed for it, we are still of opinion that the $500 mortgage was intended to indemnify the bail, while the other might have been given for the services mentioned. Both mortgages were assigned to Town, and by Town to complainant, who, we are to suppose, still holds the $200 mortgage; and as the amount of that mortgage is all complainant would be entitled to in any circumstances, we think the decree dismissing the bill should be affirmed with costs.

Martin Ch. J. and Campbell J. concurred.

-Christianct J. did not sit in this case.


author: Martin Ch. J.:

text:
    Eliza A. Perkins v. Sebra Perkins.
    'The order of the Circuit Court in Chancery opening for review a decree for permanent alimony in a divorce case, and ordering a reference to a Circuit Court Commissioner •to take proofs, &c., and to report thereon, is not a final order from which an appeal can he taken to this Court.

      Heard May 6th,

      Decided July 21st.

    Appeal from Washtenaw Circuit in Chancery.
    On December 2d, 1859, a decree of divorce was made by said Circuit Court in Chancery, in favor of said Eliza A. Perkins, and the • sum of $1,000 ordered to be paid to her by said Sebra Perkins as alimony. The decree for alimony was soon afterwards sold by her to one Renwick. On January 21th, 1862, on the petition of said Sebra Perkins, and after hearing counsel for said Eliza and for Renwick, an order was made by said Circuit Court in Chancery, as follows:
    “In this cause, on hearing Joslin & Blodget, for defendant, and O. Hawkins, for complainant, on the petition of defendant that the Court review the decree for alimony, it is hereby ordered, that the decree for alimony heretofore entered in this cause be opened for review, and that it be referred to D. S. Twitchell, Circuit Court Commissioner, to take testimony and report to this Court at or before the next term of this Court, the present circumstances and condition of the parties, and the amount and value of the real estate of said defendant, in which the complainant claims dower, and that all proceedings on the said decree be stayed until the further order of this Court.”
    An appeal was taken from this order.

      O. HawJcins for appellant.

      Joslin & Blodgett for appellee.
   Martin Ch. J.:

The order in this case is interlocutory, and from it no appeal lies. See Enos v. Sutherland, 9 Mich. 148; Ballard v. Green, Ibid. 222. The decree of alimony vests in the wife no absolute right to the allowance, as it may be changed from time to time, and reduced or enlarged in the discretion of the Court:— Comp. L. § 3249; Rogers v. Vines, 6 Ired. 293; Wheeler v. Wheeler, 18 Ill. 39; Sheafe v. Laighton, 36 N. H. 240; Miller v. Miller, 6 Johns. Ch. 91. Whether the decree would be changed or modified depends upon the action of-the Court upon the coming in of the Commissioner’s report; and until some final action upon the report, no appeal lies.

The appeal must be dismissed, with costs.

The other Justices concurred.


author: Campbell J.:

text:
    Elisha C. Litchfield v. Coe Garratt and another.
    To warrant any recovery in an action upon contraot, a right of action must arise upon a contract made by a party to the record.
    Suit was brought‘in the name of parties to a written contract, for the benefit of assignees of such contraot, and was sought to be supported by proof of labor done by the assignees in pursuance of an arrangement between them and the contracting party, modifying the terms of the contract, which arrangement was not shown to have been authorized or assented to by the assignor. Held, that the action could not be maintained, as the modified contract was not a contract between the parties to the record. ‘ ^
    Where a contraot is assigned for the sole purposb of enabling the assignees to oolleot and apply certain moneys coming due to the assignors thereon, and then to be re-aBSigneá, the assignees are not authorized without the consent of the assignors to assume the performance of the contract, or to change its terms by agreement with the contracting party.
    Whether a contracting party has, by agreement with an assignee of a contract, estopped himself from making any claim to damages for the non-fulfillment of the contract by the assignor, is a question of fact for the jury; and in an action on the contract the Court has no right, after evidenoo has been given of such an agreement, to assume it to be established, and exclude all evidence of damages.

      Heard July 61th, 1861.

      Decided July 21st.

    Error to Wayne Circuit, where Coe Garratt and William H. Nelson, suing for the use and benefit of Thomas D. Dewey and John Stewart, recovered judgment against the plaintiff in error, in an action of assumpsit. The case is sufficiently stated in the opinion.

      Walker & Russell for plaintiff in error.

      Goulds & Hanchett, and G. V. N. Lothrop, for defendants in error,
    argued that Litchfield, by the agreement made with Dewey & Stewart, on the faith of which they had acted, was estopped from claiming damages as against the claim in this suit: — 21 Wend. 94; 3 Hill, 221: 14 S. & R. 304; 17 Conn. 355; 1 Greenl. Ev. §207; 21 Wend. 172; 4 Barb. 498; 8 Wend. 483.
    The objection that, the suit being brought upon the written contract, for the benefit of the assignees, no proof of a parol agreement with, or a declaration to them as such assignees, in reference to the contract, could be given in evidence to affect the rights of the parties under it, is not well tafeen. The case all shows that the claim to recover was upon the contract, and no other claim was made. The effect of the parol agreement proved was, that if the assignees would go on, advance money and run the logs, the price of cutting and running the logs would be paid, according to the contract, for so much as was cut and run, and no claim for damage made. This was at most only a parol agreement to vary the written contract so far as it required the plaintiffs below to get out four million feet in the year 1859. The proof was given to prevent a recoupment of damages by Litchfield. The recovery was upon the written contract alone.
   Campbell J.:

Suit was brought in the Court below upon a written contract, whereby Garratt and Nelson agreed to cut, haul, mark and deliver in Flint River all the pine timber upon certain lands described therein. The provisions important to be considered were as follows: Not less than two millions

feet were to be delivered in 1858, and not less than four millions in each of the ensuing three years, and all was to be cut from the several lots of land in a specified order, one lot to be stripped before the next was touched. The price was to be two dollars per thousand feet, one dollar per thousand being payable on each two hundred thousand feet when hauled to the water and marked, fifty cents per thousand when run down and scaled for delivery in Flint River, and the remaining fifty cents within sixty days after delivery in Flint River. It was also provided that should Garratt and Nelson fail to perform their work in as diligent and thorough a manner as should be satisfactory to Litchfield, the latter might complete the contract and hold them responsible for any excess in cost above the contract price.

The declaration was filed containing, besides the common counts, special counts avering performance by -the delivery of the four millions required by the contract for the year 1859.

Defendants gave notice of several defenses under their plea, and reference will be had hereafter to such as are material. On the ninth day of December, 1858, Garratt and Nelson executed to Dewey and Stewart an assignment of the contract of the following tenor:

“Whereas the undersigned, William H. Nelson and Coe Garratt, have a contract with Elisha C. Litchfield for cutting and putting into Flint river a certain quantity of pine logs, in the manner and for the consideration expressed In said contract, which bears date on the 28th* day of December, 1857, and is now, with this assignment, placed in the hands of Dewey & Stewart, of Owosso. And whereas, we have sub-let to Hosea Fletcher the job of cutting and drawing a certain portion of the logs referred to in said contract, for which we agree to pay him eleven shillings and six pence per thousand, as specified in the contract last mentioned.
“And whereas the said Hosea Fletcher has become indebted to said Dewey & Stewart for means to carry on said work, and for other purposes, and is to be indebted for advances hereafter to be made to carry on said job. Now, therefore, in order to secure said Dewey & Stewart for advances so made and to be made as aforesaid, we hereby sell, assign, transfer and set over to said Dewey & Stewart, their executors, administrators, heirs and assigns, the said contract first above mentioned; to have, hold and collect the same for their own use and benefit, and with full power, in our name or otherwise, to collect the money due and to become due on said contract.
“The money received on said contract is to be disposed of and appropriated as follows, viz: out of the first money so received they are to return whatever may be due to said Fletcher under his contract with us above referred to, to be applied in payment of whatever may be due them from the said Fletcher, for said advances and expenses connected therewith, and with this assignment; and such portions thereof as shall be due us under both of said contracts is to be paid to us.
“ It is understood and agreed that said Dewey & Stewart may retain, to apply on the said demand against said Fletcher, the one dollar per thousand due from said Litchfield when said logs are hauled to the said bayou on Pine river, as expressed in said first mentioned contra'ct, provided the said one dollar per thousand shall be required to pay advances for the current expenses of carrying on said work.
“Wh6n the contract with said Fletcher shall be fulfilled, and the money due him shall be collected of said Litchfield, the said contract is to be re-assigned and delivered to us.
“The said Dewey & Stewart, after paying themselves the amount which may be due them from said Litchfield, are to hold the balance, to be applied to pay what said Fletcher may owe us.”

Notice of this Was given to Mr. Allison, the agent of Litchfield, on or about the 27th of December.

The plaintiffs proved this assignment and notice, and gave evidence tending to show that David Gould, as agent for Dewey & Stewart, got out and delivered something over three million feet. That before getting' this out he saw Allison, who informed him there were four million feet to be cut and ran down in the spring of 1859. Gould said he thought there were not so many banked, and asked if Dewey & Stewart got out the logs whether Litchfield would pay for them; and said if the work would not be paid for at the contract price, Dewey & Stewart had better not invest any more money. Allison said if Dewey & Stewart would go on and get out the logs themselves, Litchfield would pay them the balance according to the contract price, which would have become due to Garratt & Nelson if they had continued with the contract, without any claim for damage. Allison ° talked of having had trouble with Nelson & Garratt, and said they had thrown up the contract. One Fletcher run the logs, or a portion of them, and was employed for that purpose by Gould for Dewey & Stewart.

Evidence was introduced by defendant tending to show that before Gould’s application to Allison, Garratt & Nelson were in the woods, and that Garratt was afterwards. That they both claimed the job, and forbade Gould’s going on. The defendant offered to prove that his mills had been kept idle a month in consequence of not having the whole four million feet. Also' that the timber had not been cut from the. lands in the order required by the contract, and that damage had accrued by reason of his having been obliged to enter upon the completion of the contract at an expense of more than, two dollars per thousand. The Court ruled out all of these matters, on the ground that Litchfield was estopped from setting them up against Dewey & Stewart.

The defendant requested the Court to charge the jury, that no recovery could be had under the declaration except for work and labor done under the contract by Nelson & Garratt, or their agent or sub-contractors. That if Dewey & Stewart made a parol contract with Litchfield to get down the logs from the bayou on receiving the balance of the money whieh would become due to Garratt & Nelson if they had completed the work, the suit should have been on the parol contract, in the name of Dewey & Steyart. That if the jury find such parol agreement to have been made, their verdict should be without reference to any evidence under it, and' that if Garratt & Nelson had been fully paid, their verdict should be for the defendant. •>"

The most important question in the case arises upon these requests to charge, all of which were refused by the Court.

It is an inflexible rule of the common law that a right of action on contract, to warrant any recovery, must arise upon a contract made by the party to the record. Dewey <& Stewart are not such parties. Garratt Ss Nelson are the plaintiffs in this cause, and, whatever may be the rights of their assignees to protection against any portion of their liabilities, no recovery can be had in their behalf on any contract to which the nominal plaintiffs were not parties. The inquiry then arises whether the arrangement made with Allison was made as the contract of Garratt & Nelson. When a contract has been absolutely assigned, and a subsequent variation is made with the assignee alone, it cannot be held to be the assignor’s contract, because he neither reaps its benefits nor shares its responsibilities.. He cannot be sued upon it, and there is no better authority for his suing upon it. In the case before us, the assignment was not designed to substitute Dewey & Stewart for Garratt & Nelson. Dewey & Stewart were to hold it for no other beneficial purpose than to repay to themselves such advances as they had made, or should make, to a sub - contractor named Fletcher. To repay these they were at liberty to retain only so much money as should become due to Fletcher on his sub - contract. The remaining’ interest was to belong to Garratt & Nelson, who were to receive their own share of the money, and to remain the real owners of the contract, which was to be re-assigned when the others were paid. In other words, the assignment was Only designed to authorize Dewey & Stewart to collect the moneys coming due from Litchfield, and apply them as provided for.

It is very plain that this gave Dewey & Stewart no right whatever to change the terms of-the contract, or to assume its performance.,, Garratt & Nelson did not contemplate any change in their own relations to it. And it becomes immaterial, therefore, in this view, whether Garratt & Nelson could be regarded^as having thrown up the contract or not at the time Gould made the arrangement with Allison, It was not made in their name or behalfj and had it been, they never authorized or ratified it. The only evidence bearing upon their treatment .of it shows that they repudiated any right in Dewey & Stewart to assume the work.

There was error, therefore, in refusing to give the instructions prayed. No recovery should be permitted for any work done under the parol arrangement.

There was also error in refusing to allow evidence of damages arising by reason of not cutting timber on the proper lands, and by reason of the defendant being compelled to complete a portion of the contract himself. The Court excluded this on the ground that the agreement with Dewey & Stewart created an estoppel. So far as the evidence goes, there is no proof that any damage was waived arising out of either of these causes, as against Garratt & Nelson. If such proof existed in; the case, it was still a question of fact for the jury; and the Court could not exclude evidence by assuming a fact to exist which had not been found by them. The evidence should have been received, and the jury instructed upon the effect of such facts as they might find established.

These are the only points which we deem it necessary to consider.

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

Manning and Christianct JJ. concurred.

Marten Ch. J. concurred in the result.


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

text:
    Thomas Stephenson v. William L. P. Little and others.
    In trove? the tight of property is in issue; and to sustain the aotion plaintiff must prove property in himself, either general or special.
    Possession is evidence of property, but it does not, in an aotion of trover, preclude defendant from showing property in a third person.
    In trover property in a third person may he proved under the general issue.
    The General Government has all the common law rights of an individual in respeot to depredations committed upon the public lands. And the Commissioner of the General Land Office — being the proper executive department to enforce those rights — in the absence of legislation by Congress on the subject — may lawfully direct the seizure and sale by the local land officers, on behalf of the Government, of timber cut by trespassers on the public lands.
    The party guilty of a fraudulent admixture of saw logs owned) by himself with those owned by another, so that it is impossible any longer to identify his own, loses all interest in them, and is remediless if such other person appropriate the whole mass

      ¡2T to his own use. Per Manning J., Christianoy J. concurring. Campbell ¿T. dissented, holding that, where the evidenoe showed the logs tobe of a uniform value per thousand feet, the person who had intermingled them was entitled to reclaim from the common mass an equivalent to his own logs, Martin Oh. <T. gave no ' opinion on this question.
    Per Martin Oh, J., the person whose property another has fraudulently admixed with his own, has the right to take possession of the whole mass for the purpose of separating and securing, or of disposing of, the portion belonging to himself; and if it cannot be separated, and he advertise and sell his interest in the whole, he does not thereby render himself liable to the other for the conversion of his property. He has, at the very least, as respects the property so commingled, the rights'of a tenant in common.

      Heard January 17th, 1861.

      Decided July 21st.
    Case made after judgment from Saginaw Circuit.
    The action was trover, brought by Stephenson against William L. P. Little, M'oses B. Hess and Daniel Boutell, for a quantity of saw logs. Plea, the general issue.
    It appeared in evidence that in the winter of 1856-7 plaintiff got out and-'haulea upon Potobaco lake and its outlet some 2,600 pine saw logs. A portion of these was cut on and owned by the plaintiff, and others upon land belonging to the Government. Still another portion was out upon lot three of section thirty in township fifteen north of range five east, on which plaintiff seems to have commenced cutting as early as November, 1856, and got the logs all off by the 20th of January, 185.7. The facts in relation to this lot three were as follows: June 2d, 1856, plaintiff had entered at the (then) Genesee land office the south half of the north west quarter of said section thirty. On the thirtieth of August following he applied to the Register and Receiver to change this location for said lot three, alleging a mistake in the original entry, The officers forwarded to Washington the necessary papers to obtain consent to this change, and the Acting Commissioner of the General Land Office, under date of September 15th, 1856, wrote them as follows — after stating that he was satisfied the first entry was made through mistake — “I have therefore to request that you will permit Mr. Stephenson to withdraw the said entry, and to apply the amount paid thereon to the lot number three of section thirty, township fifteen north of range five east, if vacant, it being the tract for which he wished to change it.” Notice of this authority was sent by the Register to Stephenson in February 1857 The difference in the price of the two lots was only one dollar, which was paid by Stephenson, but before any duplicate was issued for lot number three, the Register and Receiver ascertained that Stephenson had taken the timber from the lot first entered, and they then refused to take further steps in reference to the change of location.
    On the 12th of May, 1857, defendant Boutell spoke to Bird, the person in charge of the logs for Stephenson, and forbade his having any thing more to do with them; saying that he, Boutell, was put in charge of them. At the same time the following notice was posted in public places by the Register and Receiver.'

      “ /Sale of Logs and Lumber.

    Notice is hereby given 'that we, the subscribers, the Register and Receiver of the Saginaw Land Office, have seized about 2,500 logs, and a quantity of square 'and flatted timber, cut by trespassers from government land, which we shall expose for sale at auction 'to the highest bidder, on the 25th of May instant, at two o’clock P. M., - at the mouth of Potobaco lake, ih town 15 N. R. 5 E., where said logs and timber now are.
    May 12th, 1857. M. B. Hess, Register.

    Wk. L. P. Little, Receiver.”
    At the date of this notice a part of the logs were boomed. A storm subsequently scattered them, and a portion were driven out into Saginaw Bay and lost. Tbis occurred before the time fixed for the sale.
    On May ' 25th, the defendant Little attended at the outlet of Potobaco Lake, in sight of the logs, and made the sale. An agent of Stephenson’s was present and forbade it. Little, in making the sale, said the logs had been cut on government land, and he sold the right, title and interest of the Government in and to them. They were purchased by one Hart, who acted in so doing as agent for Stephenson; but it was testified by Hart that Stephenson failed to pay the amount of the bid, and one Frazer paid 'it, and took a bill of sale of the logs.
    To show the authority of the officers to make the seizure, defendants gave in evidence a circular from the Commissioner of the General Land Office, dated December 24th, 1855, addressed to the several Registers and Receivers, giving them full directions to take charge of the public lands and prevent trespasses, and when timber should be cut or removed by unknown trespassers, to cause it to be seized and sold at auction, under such regulations as their discretion might suggest. This evidence was admitted under objection.
    On some points in the case the evidence was somewhat obscure, and different views were taken of it by the Judges; but the foregoing is all that it is deemed important to give in this place in order to an understanding of the legal questions. The Circuit Court rendered judgment for defendants.

      Sutherland S Miller, for plaintiff:
    The possession of the logs by plaintiff was prima facie evidence of property in the plaintiff, and conclusive against all persons disturbing that possession officiously, without having or acting under and in privity with a better title:— 11 Wend. 54, 58; 13 Wend. 63; 2 Taunt. 309; 1 Strange, 504; 2 Bing. 173; 2 Bing. N. C. 98; 8 A. & E. 878; 9 Bing. 279; 10 C. B. 713; 12 Wend. 30; 13 Johns. 276 ; 11 Johns. 132; 9 M. & W. 460; 9 Gill, 7; 19 Ala. 130; 4 Flor. 283; 3 Jones (N. C.) 306; 33 Me. 132; 7 Wheat. 27; 8 Cranch, 229; 1 E. D. Smith, 393; 11 East, 65; 25 Me. 411. Nor does plaintiff by bringing trover acknowledge that defendants obtained possession of the property lawfully. The manner of getting possession is material, and the taking itself, if tortious, is a conversion; while if not tortious, a conversion must be shown by proof of subsequent facts:— 8 Pick. 545; 19 Conn. 319; 1 McCord, 213, 428; 15 Johns. 431; 17 Vt. 176 ; 23 Wend. 462.
    Defendants had no right, on behalf of the Government, to make the seizure. It devolves upon Congress to make all needful rules and regulations respecting the public domain: — Const. Art. 4 §3, clause 2. An act of Congress must therefore be the basis of defendants’ authority to seize.
    Even the Commissioner’s instructions do not authorize the seizure where the trespasser is known, as was the case here if any trespass had been committed.
    The plaintiff showed title to lot three. The entry of the S. % of N. W. fr. ¿ of sec. 30 was claimed to have been made through mistake for this, and the claim was allowed by the Land Department, and the entry ordered to be changed. This order has never been vacated, and is a judicial determination which the local land officers had no power to reverse or control. The plaintiff paid in full for lot three, and did every thing which was required to be done on his part. The omission of the land officers to make the proper entries, or to issue the proper papers, cannot affect his rights. As purchaser he was entitled to take possession, and was liable for taxes. He was owner from the date of the original or erroneous entry:— 3 Mow. 459. But fraud is alleged, because it is said plaintiff trespassed upon the lot on sec. 30 in the winter of 1855-6. We deny the trespass, but insist that the Court erred in admitting evidence to prove it, as well as in finding fraud from that evidence. If the trespass were proved, it could not take away plaintiff’s right to have the mistake corrected, and Government could not compel him directly to buy the land trespassed upon, nor indirectly by denying him the right to have the mistake corrected. The plaintiff is not outlawed or disfranchised by the trespass, but is to be punished for it as the law has provided. The contract of purchase is not avoided by actual fraud, except at the option of the defrauded party, and on refunding what has been received: — 14 Barb. 594; 1 Denio, 69, 302; 2 Bill, 288 ; 5 Hill, 390; 2 Denio, 136 ; 5 Barb. 322; 4 Mass. 502; 15 Mass. 319; 1 Metc. 547; 4 Mich. 508.
    Plaintiff did not lose his rights by confusion of goods. The cases of confusion of goods are divided into three classes: 1. Those showing intermixture by consent, and therefore tenancy in common: 2. Those showing intermixture of articles of uncertain quantities or dissimilar qualities or value, by act of one party, by mistake, negligence or design, where the party causing the intermixture must bear all the consequences, even to the loss of his property, if necessary to save the rights of the other party: — 2 Johns. Ch. 62; 1 Hill, on Torts, 526; Story on Bailm. § 40. 3. Those in which occurs an intermixture of articles or effects of like kinds and value, the quantity whereof may be ascertained. Here the motive of the intermixture is immaterial. Each party is entitled to take from the mass such proportion as his oidginal quantity bears to the aggregate: — 30 Me. 237; 20 Me. 287; 21 Pick. 298 ; 15 Ves. 442; 5 Pick. 7; 2 Pick. 86; 6 Gray, 134; 18 Ill. 287.
    In this case there was no proof of such an intermixture as prevented defendants from separating the logs belonging to plaintiff. And if there were, the plaintiff was still entitled to his proportion of the commingled mass.

      Webber & Wheeler, for defendants:
    The consent for a change of entry, given by the Commissioner of the Land Office, did not give plaintiff any title to lot three, because given under a mistake of facts, brought about by the fraudulent conduct and concealment of plaintiff. Even if the change had been perfected, Government would have been remitted to its original rights, on account of the fraud.
    The greater portion of the logs being cut from Government lands, and they being unmarked, and so mixed that their identity was destroyed, the doctrine of confusion of goods applies, and Government had the right to take the whole. The facts clearly show that the mixture was both negligent and fraudulent on the part of plaintiff: —11 Metc. 495 ; 2 Bl. Com. 405; 21 Pick. 305 ; 3 Comst. 379 and note ; 30 Me. 237, 295 ; 20 Wend. 275 ; 7 Cow. 95.
    If the admixture was not willful or negligent, the Government would then have been tenant in common wit plaintiff, and as such had a right to sell its interest, which was all the officers assumed to sell.
    The Commissioner of the Land Office had the right to direct defendants to make the seizure on behalf of the Government: — 5 U. S. Stat. at Large, 107. But the question of authority does not arise in this case. Defendants may defeat the recovery by showing title in a third party without connecting themselves with it: — 1 Burr. 31, 8 T. R. 336; 11 Johns. 529; 14 Johns. 128; 15 Johns. 207; 2 Greenl. on Ev. § 648. Even if plaintiff were entitled to recover, it would only be the amount bid by him through his agent Hart: —17 Pick. 3; 10. Metc. 317; 35 N. H. 226; 24 Me. 339; 14 Pick. 356 ; 2 Greenl. Ev. §§ 276, 649.
    Defendants are not liable for the loss by the storm. There is no evidence of any interference by them with the care and custody of the logs. It does not appear that plaintiff was prevented from a joint occupancy. No want of ordinary care is shown, and the joint owner of a chattel is only bound to bestow upon its preservation the care, which a prudent man ordinarily bestows upon his Own property: — Guillett v. Dossat, 4 Martin La. Rep.

   Manning J.:

The judgment I think should be affirmed. In trover the right of property is in issue, and to sustain the action plaintiff must prove property in himself, either general or special. Possession is not sufficient for that purpose, as in trespass. It is evidence of property, but.it does not, as in trespass, preelude defendant from showing property in a third person." The theory of the action is that the goods belong to the plaintiff, that he lost them, that they came to defendant^ possession by finding, and that he afterwards wrongfully converted them to his own use. As plaintiff never had any property in the logs cut by him on Government lands, it follows that the action can not be sustained as to them, whether defendants were authorized or not to take possession of them by Government. As to the logs cut on plaintiff’s ' own land, the case is different. They belong to the plaintiff unless he has lost his property in them by what the law terms a confusion of goods. It is for the Government to avail itself of this right, and not the defendants, unless they acted by authority of the Government, or the Government afterwards ratified their acts.

It is said there is no act of Congress authorizing defendants, or making it their duty, as Register and Receiver of the Land Office, to seize logs wrongfully cut on Government lands. This is the broad objection taken to the instructions from the General Land Office under which the defendants acted. It seems to me there can be no doubt that government has all the common law rights of an individual in respect to depredations committed on its property, and that where there is no statute making it the- duty of any particular officer to enforce those rights, it is ex necessitate rei made the duty of the executive department of the Government to enforce them. This being the case — and it seems to me too clear to admit of a doubt — the question is not whether the Register and Receiver of the Land Office were officially bound to do what they did, so long as they acted under instructions from the Commissioner of the ^General Land Office, the executive department of the Government having charge of the public domain. Nor was it necessary, to enable them to show they so acted, that they should have given notice thereof with their plea of the general issue. For the object of the evidence was not so much to show their authority for taking all of the logs, as the act of the Government claiming and insisting on its right to all, by reason of the confusion. In trespass the object of such evidence is not to prove property in a third person, but to show authority from the owner of the property for taking it; while here the sole object was to show property in the Government to that part of the logs which, before the confusion occasioned by the intermixture, belonged to plaintiff.

The party guilty of a fraudulent confusion of goods loses all interest therein, on the principle, I take it, that by the admixture he is unable any longer to identify his own, and is therefore remediless, unless on the equitable principle of giving him a part of the -common mass equal to what he originally possessed, where the goods are of equal value, and it can be done without injury to the other party, and fraud does not intervene to prevent its application. . Whether correct or not in what I suppose to be the reason of the rule, the rule itself is too clearly established to be called in question: — Ryder v. Hathaway, 21 Pick. 298; Willard v. Rice, 11 Metcc. 493; Hesseltine v. Stockwell, 30 Me. 237; Bryant v. Ware, 30 Me. 295.

The logs taken from the government land were so mixed with those taken from the plaintiff’s own land, that one could not be distinguished from the other; and from the evidence in the case, I think this was done designedly, and with a view of defrauding the Government.

The application to exchange the south fractional half of the north-west quarter of section thirty, for lot three of the same section, after the plaintiff had stripped it of the timber, without disclosing that fact in his petition, and the taking of the timber from lot three before he was notified that the Commissioner of the General Land Office had given his consent to the change, was an attempt to defraud the Government, which it was the duty of the Receiver of the Land Ofiice, on discovering the facts, to prevent, as he did. To my mind, the evidence shows a clear case of fraudulent intermixture, by which the plaintiff has lost all right to the logs taken from his own land and intermixed by him with the far greater number of logs taken from lot three, and other lands belonging to the Government.

I think the judgment should be affirmed,, with costs.

Christiancy J. concurred in this opinion.

Campbell J.:

It appears from the evidence in this case, that Stephenson was the owner of the north-east quarter of the northeast quarter of’ section twenty-five, in town fifteen north of range four east, and of the north half of the north-west quarter of section thirty, in town fifteen north of range-five east: that he had previously entered the south half of the north-west quarter of section thirty, and had obtained the authority of the department to change the entry for lot three, in section thirty, and had paid for the latter lot, of which the duplicate was withheld by one of the local land officers of his own motion, on an allegation of fraud.

The logs in controversy were cut in the winter of 1856-7; 211 trees on the land patented to plaintiff, 327 trees on lot three, and the balance on government lands,; 194 on the south half of the south-east quarter of section thirty, 9 on the south half of the south-west quarter, 132 on the north half of the south-west quarter of the same section, and 17 on the south-east quarter of section twenty-four in town fifteen north of range four east; making in all 352 trees cut on government lands, exclusive of lot three. The logs and timber from these trees were banked, a part on Potobaco lake, a part on a creek through which it empties into' Saginaw Bay, and a part on Saginaw Bay. The locality of these places becomes important in- the view I have taken of the facts, and I therefore proceed to describe it. Potobaco lake forms the easterly boundary of the lands' patented to plaintiff, and thence extends southeasterly, not touching any of the other lands on which trees were cut that winter, and its mouth and the creek are both entirely within lot two, and just north of lot three which lies upon the bay. Lot three is the north part of the south-east quarter of section thirty.

It appears that all of the logs from plaintiff’s patented lands were banked on the lake, amounting by the testimony of the witnesses on both sides to about 1000 logs. The remaining amount of nearly 1600 logs, cut from the various lots on the south half of section thirty, were banked on the creek, and scuth of it along Saginaw Bay. .The plaintiff’s witnesses show that the logs from lot three (which is the northerly part of the south-east quarter) were drawn first and taken to the creek, and banked along it near its mouth behind a small island, and on Saginaw Bay at the mouth. The defendants’ witnesses also show that the logs cut from the south half of the south-east quarter were banked on Saginaw Bay, and the same testimony shows" that there were several different roads to the water along which the logs were hauled out from the various localities. The logs cut from the south half of the section were, as before mentioned, all banked near the mouth of the creek and along the bay. The logs at and near the mouth of the creek when placed in it in the spring filled up all the space in it. At the time of the seizure the logs in the lake were near its fnouth, and some had been rafted into the creek. After the seizure and before the sale, a storm arose which scattered the logs at the entrance of the bay, leaving about half of the entire amount undispersed, and scattering the rest along the shore of the bay for some distance.

The logs were all seized by defendants, claiming them as cut from Government lands, and they were at once advertised for sale, and sold in about a fortnight.

Inasmuch as the plaintiff was the undisputed owner of all logs cut on his own land, and could not forfeit them by any fraud or misconduct in depredating elsewhere, he is certainly entitled to recover for the conversion of those, unless precluded by some other rule. No man, however criminal, can be' deprived of his property by the acts of others whom he may have defrauded. The remedies for such misconduct are to be sought otherwise; and, in case of trespasses on government lands, they are laid down by acts of Congress. I. make no inquiry into the authority of defendants to act for the Government, but assume that they were fully authorized as government agents. In an action like this, I think the plaintiff should only recover his own" damages, and therefore their authority is not important.

It is claimed that plaintiff forfeited his logs by so intermingling them with the logs of the Government that there became, a confusion of property so as to defeat its identification; and that the whole property thus became divested. Upon a careful consideration I have been unable to discover anything in the case justifying any such consequences. Before any one can forfeit his own property there must, be clear proof that by the fault of the party the px-operty of another with which it is blended can no longer be identified, even with the utmost care; and that the latter can not be made whole by taking his proportion out of the entire mass so as to obtain a share of the same kind and equal value.

In the firstj place I have searched vainly for any evidence which shows such a total confusion as is necessary under any rule of law to create an entire forfeiture of plaintiff’s logs. If property be in several parcels, and the property of another person is confused with one of these parcels, it can have no effect upon those kept distinct. This can not be pretended on any reasonable theory whatever. In the case before us the evidence is entirely clear that no portion of the logs in Potobaco Lake came from government lands. And it is equally clear that they were not before the seizure mixed with the logs below. Concerning- these, I see no shadow of a claim against the plaintiff.

It also appears that the logs from lot three were the first which were drawn to the creek behind the island near its mouth, and banked there. The defendants’ witness, Mr. Pettibone, upon whose examination the information for the seizure was obtained, ascertained and testified that the logs from the government lands south of lot three were banked not on the creek, but on the bay. Having, as he swears he did, ascertained the amount cut there, there could have been no serious difficulty in selecting those logs. He seems to have had no such difficulty. As the evidence is not clear upon the locality of the rest,-it may perhaps be assumed that the remaining logs from 141 trees from government lands were intermingled with those from the 827 trees from lot three. If lot three was government pi-operty, then no difficulty could arise, and Government would own all from the south half of the section. Being of opinion that the plaintiff’s title had become established in that fraction, and could not be divested except by legal proceedings in behalf of the Government, I think that as to those two lots of logs there was- an intermixture which would have rendered it impossible to identify one parcel from another. And, under all the circumstances, I think the plaintiff responsible for making it — so far as any responsibility or loss arises under such circumstances.

The question then arises, how far such liability goes. Where two kinds of articles are so mixed that they form a mass not like either, but differing in value or kind, the party not in fault, because he can not get back either his own property or that which will to all intents and purposes replace it, may, as has been held, retain the whole — although by the civil law there may be some doubt whether he was not obliged to account for the surplus value. But where a mass of articles of a certain kind and value, as grain or the like, is mixed with another mass of the same kind and value, there is neither reason nor justice in holding that any such forfeiture arises. A person is not damnified by mixing his property in a mass from which he can withdraw what will be substantially and to all intents and purposes identical with it, I do not think the decisions, when carefully weighed, maintain any such doctrine as would create a forfeiture in such a case. Where a man can obtain all that he is entitled to in order to put him in full enjoyment of his own, the law will not bestow on him the property of another.

That logs are to be governed by similar rules there can be no reason to doubt. We not only know as a matter of common information, but the evidence before us shows that logs situated as these were had a uniform value per thousand feet, taking them as they ran, and that one parcel was as good as another parcel. There may be differences between select and poor logs, but where it exists there is no great danger of such an intermixture as will prevent a party from reclaiming his own or its equivalent. In the case before us the testimony of value shows that no differ ence existed.

There was no reason therefore why the defendants should have seized more than what belonged to Government, the amount of which they had ascertained. They did not seize the logs for the purpose of selecting that amount. They seized the whole, claiming them as public property, and at once advertised them for sale, thus negativing any idea of holding them for the other purpose. Such a seizure amounts to a conversion, and I think they should have been held liable accordingly. I think judgment should go in favor of the plaintiff for the value of 538 trees at four dollars a thousand (each tree averaging by the testimony at least a thousand feet), which would make the amount of his damages $2,152, to which interest should be added from May 12, 1857.

Martin Ch. J.:

The fact that Stephenson cut a large portion' of the logs seized from lands belonging to the United States is not denied; and the right of the Government to reclaim such logs by seizure or by action is unquestionable. The defendants Little and Hess, as officers of Government, and acting under authority conferred by the proper department, made the seizure, and in so doing took logs cut from the plaintiff’s own land, with which he had admixed them. That there was an actual and intended admixture I can not doubt. After the seizure and before sale, and while the logs lay as they were when seized, a storm scattered a portion of them so that they were lost, and the interest of the Government in only 1273 logs was consequently sold. The number of trees cut and removed from Government lands was about 678, which, according to the estimate of witnesses furnished about 1860 logs. Here then was a loss to the Government of some 600 logs, ándito the plaintiff of all his thus intermixed and scattered.

Three questions are therefore raised. The first involves the right of the Government to make the seizure; the second, the consequences of such seizure, and the third the right of the defendants Little and Hess to make the same. It appears that the logs of both the plaintiff and the Government were commingled by the tortious act of the plaintiff The subject of the confusion of goods was elaborately discussed by counsel, in the presentation of this case, but it does not appear to me to be necessarily involved. Here was a clearly tortious taking, and an admixture, which, whether by accident or by design, was of such a nature that the particular logs of either party could not be distinguished and separated from the mass. Under such circumstances Government, like an individual, had a right to take all, if not as its property by reason of the confusion of goods, at least for the purpose of separating and securing, or of disposing of its aliquot proportion of the entire mass. Government had a clear and unquestionable property in at least, say 1850 or 1860 of the logs; and in taking the whole to secure that property, it committed no wrong upon the plaintiff, as it was by his own act that such taking became necessary. Such being the case, it follows that no accident to or destruction of the property while so held by the Government in the exercise of a legal right, if it occurred without its act or default, could subject the Government to liability for the loss, if the property actually sold did not exceed the amount tortiously taken.* But the evidence fails to show that any actual manual interference with Stephenson’s logs took place. Boutell’s remark to Stephenson’s agent that he was put in charge of the logs, and his forbidding him to have any thing further to do with them, proves nothing against Little and Hess, or even against himself. When and where it was made, under what circumstances, and upon what occasion or provocation, or whether he was really put in charge of the logs, is not shown by any testimony. His assertion, unless made upon the property, or so made as to Import dominion over it, and actual possession of it, or accompanied by some act showing a claim to its possession, was no conver - sion by him, and certainly can not be construed as evidence of conversion by Little and Hess. There is nothing to show but that this was mere idle talk, and it did not of itself make him a trespasser, and could not unless he was in a position to sustain his elaim, as by actual possession ; and then could not in any way affect his co-defendants, as torts are personal.

• If we take the notice of sale as evidence of conversion, we can not determine with any degree of certainty the number of logs taken, and it declares that all the logs which would be exposed for sale were cut upon government land, and were lying at the mouth of Potobaco Lake. This notice must be construed in the light of the sale made under it. Such sale was of the interest of the Government in the logs; and such interest was bid in by the plaintiff, through Hart his agent. The fact that Hart afterwards sold them to Frazer does not, in my opinion, affect the question under consideration, or the rights of the parties to this suit. The single fact of importance is that the offer was only of the interest or property of the Government in the logs, and that the purchase was made of that interest by the agent of the plaintiff. There was never any exclusion by Little and Hess of the plaintiff from the possession of his property, and by this purchase he appears to have recognized an interest in the Government in the logs.

That the owner of goods wrongfully commingled by another with his own has the right to take possession of all, if he can do so without violence, to repossess himself of his own,- as I have already said is unquestionable. It is a right founded in natural justice, and is a necessary and natural incident to property. If he has such right, it follows that he is not responsible to the party wrongfully intermingling, for any damage or loss of such property, unless wilfully done or occasioned by himself. It can scarcely be claimed that he stands in a less favorable position than that of a tenant in common towards his co-tenant, so far as this question of liability is concerned. From the very nature of things his liability should not be greater. Rather than establish a rule by which the party trespassed upon should suffer injury by peaceably reclaiming his property, because in thus reclaiming it some portion dr all of the property of the wrong doer was taken, and afterwards lost or destroyed by the act of God, I would hold to the severest rule of confusion of goods, and protect the innocent party at the expense of the wrong doer'. I can not question the right of the Government in this case to sell its interest in the mass; and as Hart for Stephenson bought such interest, Stephenson cannot insist upon a conversion of any logs held under such seizure, or the Government’s interest in which was thus exposed for sale; and as the quantity of logs sold was less than that wrongfully taken from government land, the whole loss must and should fall upon him. This is but simple justice, and would commend itself to any mind as a correct rule of property in such cases. Before a party who has thus admixed his goods with those wrongfully taken from another can maintain an action for his aliquot proportion, he must make a demand upon the party injured — and who has taken all to secure his own — for the portion belonging to himself, and he must distinguish his oavh property satisfactorily. This the plaintiff in this case did not do, but relied upon the seizure and sale as giving the right to this action.

Of the logs thus seized some 1,500 were taken from lot three; and these it is contended rightfully belonged to the plaintiff. In my view of the case this question is immaterial, as logs taken from other lands belonging to Government were admixed with them. But I am also clear that the plaintiff had no right to cut logs upon that lot; and consequently none to those cut thereon and mixed Avith others belonging to himself. The evidence shows that the title to such lot was then in the Government, and for aught that appears still is; and that no exchange of that lot for the south east quarter of the north west quarter of section thirty was ever made. The right of Stephenson to such exchange it is not necessary to discuss; but that his conduct was fraudulent, and the officers of the Government justifiable in refusing to make the exchange, I do not doubt. But he had no right to take the logs from the land before such exchange was made, whatever may have been his equitable rights to a specific performance of the contract.

The only remaining question is, whether the defendants Little and Hess had a right to seize the logs in question.

That Government, like an individual, has the right to seize and reclaim property tortiously taken, when such seizure can be peaceably made, will not be questioned. But Government can only act through its departments, and by its officers, agents and servants. The instructions to Little and Hess from the Commissioner of the General Land office were in my view instructions from the Government, and fully authorized them to act in its behalf in repossessing its property. Moreover, Stephenson, as a wrong doer— especially in this action of trover, where he must rely upon Ms own title — cannot question the right of the Government to protect itself, or that of the officers or agents of the Government peaceably to reclaim its property/

The judgment must be affirmed, with costs.

Judgment affirmed.


author: By the Court:

text:
      Coe Garratt and others v. Elisha C. Litchfield and others.
    An appeal in chancery will not he dismissed for the failure of the Register to cause a copy of the record to be transmitted to this Court within the time provided by the statute, if'such copy is aotually filed’before the motion to dismiss is made.
    IT or will it he dismissed for the failure on the part of the appellant to serve notioe thereof on oo-defendants, as required by Supreme Court Rule 14, when such failure is sufficiently excused.

      Decided July 21st.
    Appeal by two of Litchfield’s co - defendants from the Saginaw Circuit in Chancery.

      J G- Sutherland, for complainants,
    moved to dismiss the appeal, for the reason that the transcript of the record below was not made and transmitted to this Court within thirty-days after the appeal was perfected, as required by the statute. — (Comp. L. §3599. The transcript was now on file.

      Goulds & Uanchett, contra.

      T. M. Cooley, for defendant Litchfield,
    at the same time moved to dismiss for the failure of the appellants to serve notice of the appeal upon him, as required by Supreme Court Rule 14.

      Mr. Hanchett, contra,
    read an affidavit showing that the failure to give such notice was accidental — the notice having been actually prepared, and the solicitors supposing it had been served until notice of this motion was given.
   By the Court:

We have never dismissed an appeal in chancery for the failure to cause the return to be filed within the time specified, when the return was actually made and filed before the motion to dismiss was called up.

Motion denied.

The Court held, the failure to be sufficiently excused, and denied the motion.


text:
    John R. Wurcherer v. Joseph W. Hewitt and others.
    Where bill is filed to foreclose a mortgage, and one is made a party defendant who claims the mortgaged premises under a deed given subsequent to the mortgage, but recorded first, the complainant, if he claims this deed to be fraudulent, must set forth in the bill the facts and allegations which show the fraud. Chanoery Rule 91 does not apply to such a case.
    And where the only allegation was that suoh defendant claimed an interest in the premises “as subsequent purchaser, incumbrancer or otherwise,” it was held that the Court oould not consider the evidence taken to show the fraudulent character of the deed, as such allegation does not put suoh defendant’s rights in issue.

      Heard July 18th.

      Decided October 14th.

    Appeal from Clinton Circuit in Chancery.
    The bill was filed by Wureherer to foreclose a mortgage given to him by defendant, William A. Hewitt, to sfecure tbe purchase price of the mortgaged premises. The mortgage was dated June 14, 1856, but was not recorded until August 20, 1856. Joseph'W. Hewitt was made a party defendant, together with others, under the general allegation in the bill that be claimed some interest in the premises “as subsequent purchaser, incumbrancer or otherwise.” Joseph W. Hewitt filed an answer, claiming to be a bona fide purchaser of the premises, by deed dated and recorded August 18, 1856. Replication was filed to this answer, and proofs taken to show the fraudulent character of the conveyance. The Court below dismissed the bill, without prejudice, and the complainant appealed.

      O. JL. Spalding and T JMJ. Cooley, for complainant.

      JR. Strickland., for defendant,
    Joseph W. Hewitt, objected that the Court could not consider the proofs taken to show the fraudulent character of the-deed to him, because there were no allegations in the bill to base the proofs upon. Persons who claim by conveyances recorded before the mortgage which is being foreclosed, cannot be made parties by the general allegation, as provided by Chancery Rule 91. — 10 N. Y Rep. 509 ; Wal. Ch. 117; Ibid. 260.
   Martin Ch. J.:

We think the objection that Joseph W. Hewitt was not made a party to the bill in such manner as to put his rights in issue, by the general averment under rule 91 of his being a subsequent purchaser, is well taken. This averment is only to be made where the fact of being a subsequent purchaser or incumbrancer appears by the record. In this case, the record gives the title of Joseph W. Hewitt priority to the mortgage, he having recorded his deed first. In such a case, the rule is that the complainant must file his bill specially — if he seeks to avoid the title thus acquired — with distinct averments of the facts and allegations of the fraud which he claims invalidates such title.

The decree must be affirmed.

The other Justices concurred.