text:
    The People ex rel. Emil P. Benoit v. George Miller.

      Informations in quo warranto: Practice. An information in tlie nature of a quo warranto contained nothing to show when it was presented; and the only allegation of the usurpation was that “for the space of two days last past the defendant has usurped,” etc. Held,
    1. That the pleadings in such cases were governed by the rules in civil cases, except so far as the statutes modifying them are inapplicable; and that the information was good without being entitled of any particular day.
    2. That the words “two days last past” related to the filing of the information, and were sufficiently certain.
    3. In case of a failure to obtain service on a defendant in quo wart'anto, and resort is had to advertisement, under the statute, defendant is not entitled, on appearance, to a copy of the information.

      Heard May 8th.

      Decided May 10th.
    Information in the nature of a quo warranto.

    The defendant demurred for the reason, first: that the information did not state the time when the alleged usurpation commenced, or for what period it continued, and, second: that certain blank spaces in the information rendered it uncertain and obscure.

      Wm. Gray and T. JRomeyn, in support of the demurrer.
    1. The demurrer is well taken for the want of an averment in the information showing the space of time of the alleged usurpation, and for the reason that there was an unfilled blank in a material averment in the information, and that it is uncertain and obscure.— 3 Ghitty’s PI. p. 1248.
    2. The information is fatally defective in not stating in any part of it the time of the commencement or of the continuance of the alleged usurpation.

      a. No time whatever appears or is averred in it, in the margin, caption, introduction or body.

      b. In any point of view, treating it as a civil pleading, or as a penal proceeding (and the latter is unquestionably its true character), the want of an averment as to the time of a. material transaction is bad on special demurrer. — 15 Mich.; Stephens on FI. 292; 1 Ghitty’s FI. 257; 9 Wend. 851, 375; 23 Id. 193; 1 Ghitty’s Gf. I. 217; Archb. Gr. FI. 13; Wharton’s Gr. L. §261; 4 Hawkins’ FI. Gr. 86, book 2, ch: 26, § 4, also p. 44, § 77.

      c. This averment of time must be in the pleading itself. The date of the process or of the filing or service of the pleading does not touch the. question of the sufficiency of the pleading as such.
    In conclusion, we refer to all the precedents, clearly showing that this case is not within their range. It is, literally, without a precedent. — See information in case of St. Pauls Church.

    In every case in Michigan Reports, so far as the form of the information appears, there was an express averment of time. In 6 Went. PL, from page 28 to 234, is a series of pleadings in this class of cases. In each and every information time is averred. So in New York.— 15 Johns. 362; 4 Gowen, 106, 297; 6 Id. 196-220.
    The relator in this, case might have avoided these questions by amending the information, and so have enabled the defendant to safely plead what his counsel confidently rely on as his justification. He has preferred to join in demurrer, and submit to this court the legal sufficiency of this vague and anomalous presentment, without beginning of days or length of years.

      William, I. Stoughton, Attorney General, Maynard db Meddaugh and A. Pond, for the People.
    Two causes of demurrer are assigned.
    The gist of the first is that the information does not state the time of the commencement and duration of the alleged usurpation of the office of treasurer, etc., by the defendant.
    The second, that there are certain blank spaces in said information which render it uncertain and obscure.

      1. The date and duration of the alleged usurpation sufficiently appear by the record. The information alleges that defendant has usurped said office for the space of two days last past and upwards.
    The endorsement upon the back shows that said information was filed on the day of January, A. D., 1867, and the record properly made up reads thus:
    “And now on this — day of January, A. D., 1867, William L. Stoughton, Attorney General, etc., comes here into the Supreme Court,” etc., etc. The charge, therefore, is that the defendant has usurped said office for the two days immediately preceding the day of January, A. D., 1867, and is sufficiently certain and definite.— 4 Gray, 11.
    2. It is not true that there are any void or blank spaces in the original information on file.
    The demurrer in this respect we suppose to be based on the following state of facts, to wit:
    Some time after the information was filed, and before defendant had appeared, his attorney informally requested a copy of the information, which request was, as a matter of courtesy, and not of duty or obligation, complied with. It turns out that the copy of the information thus furnished to defendant’s attorney was an imperfect one containing certain blank spaces not appearing in the original.
    The statute does not require a copy of the information to be served on the defendant or his attorney, and hence he can have no claim upon the fact that he has been furnished with an imperfect copy. This appears too clear for argument.
    3. The information, if defective, either in substance or form may be amended on such conditions as the court may deem just.
    We submit that the demurrer must be overruled and ask that defendant may be required to show that he has a defense on the merits, and in default of such showing that the judgment may be final.
   Cooley J.

Pleadings are required for the purpose of apprising the opposite party and the court of the matters upon which ' the pleader relies, and to which evidence is to bo directed; and they are generally sufficient Avhen they fully accomplish this purpose. If there still remain technical rules which go further, without serving any useful end, their application should be confined strictly to the cases where the settled practice leaves the court no discretion.

The defendant supposes this case is to be governed by the rules Avhich apply to indictments, Avhere it is imperative that the day and year when the offense is alleged to have been committed, be stated with precision. — Chit. Cr. P. 217; 1 Archb. Cr. Pl. 13. So strict is this rule at the common law, that if an indictment fixed no day, or an impossible day, as the time when the crime was committed, judgment against defendant upon it would be arrested. Ibid. See Pennsylvania v. McKee, Addis. 36. But notwithstanding the requirement of positive allegations, it never Avas necessary to make the proof conform; and it was no variance to show the offense to have been committed either on a prior or a subsequent day, so that it Avas before the finding of the indictment, and Avithin such period that it would not be barred by the statute of limitations.— Bac. Abr. Indictment, G. 4; Archb. Cr. Pl. 14. This being so, it is wisely provided by our statute that no indictment shall be held insufficient “for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating ■ the time imperfectly, nor for stating the offense to have been committed on any day subsequent to the finding of the indictment, or on any impossible day, or a day that never happened.” — Comp. L. § 6054.

The present, hoAvever, is not an indictment; and without undertaking to say whether, if this were in the proper sense a criminal proceeding, the statute could he applied by analogy, it may be well to see whethei, tested, by the rules of criminal pleading before the statute, this information would be defective for the reason assigned.

The time when the information is presented is not stated* in the caption, nor does the pleading name a certain day as that on which the defendant was guilty of the usurpation. The allegation is that, “for the space of two days last past,” the defendant has usurped, etc. The defendant insists that this fixes no time; while the relator replies that the “two days last past” clearly refer to the two days next preceding the presenting of the information, and that therefore the period of alleged usurpation is definitely fixed. And it strikes us that this is not only the plain meaning of the information, but that this meaning is so plainly exjnessed, that no one can possibly be misled.

None of the authorities require a statement of time in an indictment, by day, month or year, if by other words the time is fixed with precision. Thus; the time of the caption of the indictment being stated, it is said to be sufficient to allege the offense as committed on the day after Pentecost. — Com. Dig. Indictment, G. 2; Hawk. b. 2, C. 25, § 78. Or on the tenth day of March last, if it can be ascertained by the style of the sessions before which the indictment is taken. — Hawk. ubi supra; 1 Chit. Cr. L. 218. This authority is directly in point in the present case, and the principle is recognized in Commonwealth v. Wood, 4 Gray, 11.

In the case of Rex v. Gill, Russ. & Ry. C. C. 431, the indictment, which was found in the first year of the reign of George IV, charged the defendant with the larceny of a horse on the 20th day of July, in the fourth year of the same reign, without otherwise fixing the year. The judges were of opinion that the words “fourth year of the” might be rejected as surplusage, and then the charge would stand, “20th of July, in the reign of King George the Fourth,” which, from the time when indictment was found, could only be the 20th of July, 1820. In other words, the allegation of an impossible time was made good by rejecting the unnecessary averment which made it impossible, and the remainder was treated as sufficient, though it named neither the year of our Lord nor the year of the King’s reign, since it was impossible that any other than the 20th of July then last past could be within the allegation.

The pleadings in these cases, however, are governed by the rules in civil cases, except so far as the statutes modifying these rules are, from their terms, inapplicable. The chapter respecting amendments is expressly made to apply, Comp. L. § 4422: and the provision that it shall be unnecessary to entitle any declaration or other pleading of any term of the court, or of any day in term or vacation — Comp. L. § 4549 — is also applicable. As this information, if thus entitled, would unquestionably be good at the common law, this statute is sufficient to dispose of the case.

There is nothing- in defendant’s suggestion that, if judgment passes against him, the time of the usurpation is not sufficiently indicated for the purposes of an inquiry into damages. The time is fixed as definitely as if the declaration had been entitled of a certain day. The rrecord, when made up in form, will show its presentation on that day. But the formal record is only a recital of the facts which are supposed to be constantly before .the court, and the “ two days last past ” will relate to the time of filing the information just as much before the record is made •up, as afterwards when the formal caption is added. No more particular statement — if one were possible • — ■ could be of the least service to defendant. The filing of an indictment is the only record which the court has of the time when it was presented, and the formal record is made up from that indorsement.

The only question which remains is, whether the demurrer is sustainable on the ground of the unfilled blanks in the copy of the information. We are referred to the case of Arden v. Walden, I Edw. 631, where it was held that one who had been served with a copy of a subpoena in chancery which contained no return day, had a right to suppose it corresponded with the original, and to disregard it. The case differs essentially from this. The subpoena was process by which the party was to be brought into court; and if it did not apprise him when to appear, he might be justified in considering it void. In the present case, the party was in court by publication. His counsel called upon a clerk in the office of counsel for relator, and asked for a copy of the information, which he could not demand as a right, but which, nevertheless, was given him. Discovering an error in the copy, the counsel for defendant called upon the opposite counsel to ask him if the copy served by the clerk should be regarded as “duly and properly served, and to be so treated,” and received an affirmative reply. The question would appear to have been asked to enable the inquirer to take advantage of the error, and to elicit a response without any knowledge on the part of the relator’s counsel that an error existed. The desired response was obtained, and the demurrer filed; but we do not think it can avail. The only party who appears to have been misled by the clerical error in the present case was the counsel who, in ignorance of the error, adopted the copy served. The information to which a demurrer is interposed is good in form, and there is nothing in the affidavit presented which shows that the defendant has placed reliance upon the defective copy, and been thereby misled.

The demurrer must be overruled.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    George W. Underwood v. David McDuffee.

      Befene^ oath of: Judicial power: Sfápu¿atíoiu A referee is not such art officer ” within the meaning of the constitution as requires him to be sworn before assuming his duties. Const Art 18, § 1. And, when testimony in a cause is submitted to such referee by stipulation, his action thereon is not in any sense judicial. — Const Art 6, § 1.

      Held further, that the judicial power in the constitutional sense is not exercised by a referee in determining facts in a cause submitted to him, but by the court in giving judgment.

      Amendment of statute: when valid. Where in a revision of the same subject matter the legislature substitutes one section for another, if the new section be not foreign to the subject matter indicated by the title of the law in which it is inserted, it is not invalid because it substitutes entirely new provisions, inconsistent with the old.
    The constitution requires all statutory provisions to conform to the title of the act; but, while it requires all ^amended sections to be published at length, it imposes no other limitations upon the nature of amendments.

      Heard May 3d.

      Decided May 14th.
    Error to Hillsdale Circuit.
    This was an action of assumpsit. After issue joined, the cause was referred by stipulation to a referee; and who found for the plaintiff.
    A bill of exceptions was signed, and exceptions were taken to the referee’s report. Both were overruled by the Circuit Court and the report was confirmed. The cause was removed to this court by writ of error.

      Newberry and Pond, for plaintiff in error.
    1. The person appointed referee had no authority to act as such until sworn, and not having been sworn, the proceedings before him were without jurisdiction, and hence, the judgment based upon his report is erroneous.

      a. By the common law all officers of justice are required to be sworn.— 34 Yt. 517, 524.

      b. The constitution of this state expressly provides that all officers, executive and judicial, shall, before they enter upon the duties of their respective offices, take and subscribe an oath provided.— Const. Art. 18, §1; 1 Comp. L. 73.'
    A referee we submit is an officer within the meaning of this provision, and he is not exempted by any law from taking the oath. When the l#w requires a person appointed to office to be sworn before entering upon the duties of the office he does not become an officer until sworn. 34 Vt. 517. The proceedings before the referee and his report were, therefore, a nullity, and no judgment should have been entered upon such report.— 8 Vt. 396.
    2. The act under which the case was referred is unconstitutional, and hence all proceedings under said reference are void.
    It is unconstitutional in that it undertakes to create a judicial officer unknown tó and unauthorized hy the constitution.

      a. The constitution vests the entire judicial power in certain courts named, in justices of the peace, and in certain specified officers.— Const. Art. 3, §1; Id. Art. 6, §§ 1, 2, 16 and 23.
    It also designates the judicial officers who shall constitute the courts named; that is, by whom the judicial power vested in the several courts shall be exercised. Const. Art. 6, §§ 1, 2, 6, 7. 13, 17, 23 and 27. It limits the number of justices of the peace to four for each township. Art. 6, § 17. It provides for a limited number of officers of a judicial character, not strictly officers of either of the courts, upon whom judicial power may be conferred, and prescribes the nature of such powers. — Art. 6, § 16.
    It is evident from these provisions, that it was the intention of the framers of the constitution not merely to invest the entire judicial power in certain officers and courts named, and leave the legislature to provide for the exercise of the judicial powers vested in the courts through or by such judicial officers as it might from time to time prescribe, but to designate the officers through or by whom such powers should be exercised.— 5 Mich. 409; 14 III. 419; 34 Id. 358.
    The legislature can not provide that any Circuit Court may have more than one judge, or for the election or appointment of any person either as an officer or attacJú of a court existing under the constitution, or otherwise, in addition to those named in the constitution, to exercisé any of the judicial powers vested by the constitution in the courts and officers therein named.— 5 Mich. 409; 4 Green, Iowa, 104.
    The act in question does this; a referee appointed under it, exercises, in relation to the case in which he is appointed, a portion of the' judicial power vested in the court.
    It provides for a trial of the cause before a referee, to be conducted in the same manner as a trial by the court. His report may be filed in vacation or in term, and judgment may be entered thereon as if the case had been tried by the court. — Laws, 1861, p. 158, §§ 5, 6, 8, 10.
    The only answer that will or can be suggested to this position, is that the judicial acts thus performed by the referee have no effect until adopted by, and made the acts of, the court. 5 Minn. 78; 32 Mass. 148. This is not true. Many of the judicial acts the referee performs in the trial of the cause never do or can come before the court for review. The finding of the facts is a judicial act, and such finding is as conclusive as, if not more conclusive than, the verdict of a jury. — 14 Mich. 152.
    That the reference was by stipulation of the parties does not render the proceedings valid. The parties can not by consent create a court or a judicial officer whose proceedings can be recognized as valid.— 3 Green (Iowa) 458; 4 Id. 120.
    It is also unconstitutional because the new sections purporting to amend the old are not really amendments, but substitute provisions in no way resembling tbe former ones. — Const. Art. 4, §§20, 26.
    We submit that the judgment should be reversed.

      D. L. Pratt, for defendant in error.
    1. After stipulating to try the cause before a referee, and after proceeding to the trial of the cause, and after the evidence was all put in on both sides, it was too late for defendant to object to the jurisdiction of the referee.
    2. No oath is now required of the referee.
    Section 4192 of the Compiled Laws required referees to be sworn. That section was repealed. — Laws of 1861, p. 158.
    Referees are not judicial officers, and are not required to take the official oath. — 1 BurrilVs Prac. 435; 1 Johns. 314; 12 Id. 129, 218.
    Judicial officers have power to hear, try and determine questions submitted to them. — 2 Burr. Law Bio. 108, M edition.

    Referees have only power to hear, try and report to the court the facts found and the conclusions of law, and if the report is confirmed by the court, it stands as the finding of the court, and judgment is rendered thereon in the same manner as if the action had been tried by the court. — Laws of 1861, pp. 159, 160.
    If referees are required to take the official oath, why are not arbitrators, auditors, commissioners of estates, and other persons appointed for a temporary purpose?
    If those officers are required to take the official oath, then the law requiring them to take any other oath is unconstitutional.
    Section one, of article eighteen, of the constitution, says: “And no other oath, declaration or test, shall be required as a qualification for any office or public trust.” — See §§4192, 4198, 5158, 2925, of the Compiled Laws, for the

      oaths required of referees, auditors, arbitrators and commissioners of estates.

    8. The referee did not exercise judicial powers contrary to the constitution. He was not a judicial officer. He had no power “to hear and determine” any question of law or fact. — 5 Mich. 417a 419.
    Circuit courts had power to refer cases to referees before the present constitution was adopted. By section one, article six, of the constitution, the same judicial powers; were vested in circuit courts that they then exercised.— 7 Mich. 841.
    4. The referee is not required to report the evidence; only the facts found. — laws 1861, p. 159.

      C. Kent, on same side.
    1. The referee need not be sworn, because not an officer within the meaning of the constitutional provision requiring all officers to take a certain oath. He is a temporary officer of the court for certain purposes, but has no office. There is less reason why he should take the oath than there is that a juryman should do so.
    If he be an officer, then his acts are valid as to third parties without the oath. ,
    2. If the referee exercise judicial power at all, the power exercised is no more judicial than that of a jury, a clerk of court in taxing costs, or commissioners on 'estates.
    The referee is part of the circuit court. The judicial power is conferred on the circuit court, including therein the judge and all the usual instruments of the court,, including clerk, jury and referees] A referee law confining judicial power, if the present one does, was in existence-when our constitution was formed. No fault had been found with it, and it is not supposable that the constitutional convention intended to make such a law unconstitutional by mere implication.

      Only one ease directly in point is to be found, and that arose in Minnesota, whose constitution is like ours so far as the subject is concerned. That decision is directly in favor of the views I maintain. — 6 Minn. *13.

    2. Our constitution does not differ, so far as this question is concerned, from those of two-thirds of the states, and in nearly all of them either referee or arbitration laws, as objectionable as ours, have long existed. The court will not hold this law unconstitutional on any doubtful grounds.
    3. If the referee law be unconstitutional, still the parties in this case are bound by their stipulation. The acts of the referee are good by virtue of the stipulation, if not under the law. The law under which the referee acted became, in substance, a part of the stipulation.
   Campbell J.

In this case, the parties in the court below consented to a reference of the matters put in issue by the pleadings to a referee of their own nomination, who heard the case and made his report. Exceptions were taken to it, which were overruled, and judgment was entered on the finding. The cause is now brought before this court on questions chiefly relating to the validity of the reference, and the authority of the referee.

It is first objected that the referee was not sworn. The statute does not require this, but it is claimed that the constitution of this state requires all executive and judicial officers to be sworn, before they assume their duties.— Const. Art. 18, §1. The oath required is the oath of allegiance to the United States and to the state, and an oath to perform faithfully the duties of the office. The term “officer,” as there used, can only be taken to refer to such offices as have some degree of permanence, and are not created by a temporary nomination for a single and transient purpose. A' designation of a person to do some one act of duty, with no official tenure except as incident to that transitory function, can not make him a public officer, without involving a great absurdity. Every public office includes duties which are to be performed constantly, or as occasion arises, during some continuous tenure. And no public office can depend upon the will of private persons, who may call it into existence for their own purposes, and at their own pleasure. In the proceedings under consideration, a referee is appointed only when parties consent, or waive their right to a jury, and the designation may be made by their private stipulation, and is confined to the particular suit. We have no difficulty in holding that such a referee can not be within the operation of the constitution as an officer of any kind.

It is also urged that the statute creating the existing system of references is invalid as not in any proper sense an amendment of the prior statutes, although purporting to be such. The constitution declares that no law shall be amended or altered by reference to its title only, but that the sections altered or amended “shall be re-enacted and published at length.” The law in question was designed to remodel the entire system of references, and in lieu of several sections of the former statutes, a series of new sections was adopted, each in the room of an old one. The objection pointed out is, that some of the new sections bear no resemblance to those superseded, but relate to a different class of details. We can see no illegality in this. There is no principle which can prevent the legislature from substituting any provision they please for any other provision, whether cognate or not, if the new section is not foreign to the subject indicated by the title of the law in which it is inserted, There is no other constitutional check that we have been able to discover, and in the absence of any, it certainly belongs to the legislative power to exercise its discretion in the matter.

The principal objection to these proceedings is claimed to be found in the clauses of the constitution which vest all the judicial power of the state in courts, and which provide how those courts shall be constituted, and, as is argued, leave no room for judicial action elsewhere. The judicial power, even when used in its widest and least accurate sense, involves the power to “hear and determine” the matters to be disposed of; and this can only be done by some order or judgment which needs no additional sanction to entitle it to be enforced. No action which is merely preparatory to an order or judgment to be rendered by some different body, can be properly termed judicial. A master in chancery often has occasion to consider questions of law and of fact, but no one ever supposed him to possess judicial power. A jury in a court of record determines all the facts in the case, but the judicial power is in the court which enforces the verdict by judgment. This view is very clearly explained by Kent C. J. in Tillotson v. Cheetham, 2 Johns. 63, where it was held that the sheriff himself, when presiding over a jury of inquest, acted ministerially, because he had no power to give judgment. See, also, Story on Const. § 1640 and seq.; Daniels v. People, 6 Mich. 381; Chandler v. Nash, 5 Mich. 409. It is the inherent authority not only to decide, but to make binding orders or judgments, which constitutes judicial power; and the instrumentalities used to inform the tribunal, whether left to its own choice or fixed by law, are merely auxiliary to that power, and operate on persons or things only through its action, and by virtue of it.

Our constitution, in ordinary civil cases, dispenses with a jury unless demanded. The facts, therefore, must usually be settled by other than common -law means. The cause may be, and in most cases will be, heard by the court itself upon facts and law, and we are not now required to consider how far this right may be restricted. But it is unquestionably within the power of the parties to stipulate upon the facts, or for the amount of judgment, and thus save the court the labor of determining anything but the law, or even of doing anything beyond entering the judgment. This substitution of the private agreement for the verdict can not be seriously claimed to be an invasion or usurpation of judicial functions. Should the parties even agree that certain facts would appear if certain testimony were admissible, and by their stipulation submit the cause upon more than one hypothesis, according as certain proofs should be received or rejected, there would certainly be no such usurpation. This statute does nothing-more, in reference to preparing facts for submission to the judgment of the court, than if the parties themselves determined them by stipulation. Instead of doing- this, they agree that they will allow a common agent or arbiter to examine into the facts, and present his various conclusions, and, if required, the means and principles whereby he was enabled to arrive at them. They accept the machinery provided by the statute, in lieu of imposing any conditions of their own devising. The court receives the conclusions of this arbiter of the parties, gives each of them an opportunity of showing whether he has kept within the rules of the authority conferred upon him, in receiving or rejecting evidence, or in any other action, and, if satisfied he has complied with his duty, gives judgment accordingly. "We can perceive no difference in law between an agreement that a fact exists and an agreement that the determination of a chosen umpire shall decide upon its existence. The conclusion in either case is the result of a stipulation, in one instance acting directly, and in the other by an intermediate agency.

When this common agent has performed his duty, and submitted his conclusions to the court, then the judicial power is exercised upon all that the parties have seen fit to leave to its action, by giving a binding judgment such as in law is warranted by this finding. But, until this judgment is given, it has precisely the same force as if the parties had joined in a written stipulation, embracing the findings of the referee and the statutory provisions determining what effect should be given them. No one has ever questioned the power of the legislature to allow judgments by confession; and if such judgments, where the parties settle their own conclusions, do not infringe the judicial power, we can see no more reason for objection to references, where the consent of the parties is a condition precedent to the proceedings.

We are not required in this case to consider whether any, and if so, what, compulsory authority might be granted to referees in invitum. No party who has consented to their appointment can object to their conclusions except where they violate the rules of law; and then he must follow the statute which he has by his own consent made the rule of proceeding.

We do not think the constitution prevents such references by consent. And we think there is no error in the proceedings. The judgment must be affirmed, with costs.

The other Justices concurred.


text:
    Amos H. Bartholomew and another v. Washington J. Bartholomew.
    Error to Hillsdale Circuit.
   Campbell J.

The questions presented in this case are the same as those discussed in Underwood v. McDuffee, and the decision of that cause disposes of this.

There was no error in the judgment, and it must be affirmed, with costs.

The other Justices concurred.


author: Christiancy J.

text:
    John J. Campau v. Elizabeth Van Dyke, executrix, et al.

      Decree, when may he impeached for fraud: Ladies. Where a decree establishing title to real estate is sought to be impeached by bill in chancery, as having been obtained by fraud and collusion, the bill must be brought within a reasonable time, having reference to the nature and all the circumstances of the particular case.
    The decree sought to he set aside, was obtained some seven months before complainant arrived at the age of majority. He was aware of the decree and its effect, and all the material facts of the case, when he attained his majority. He delayed sis years and a half after that period before bringing his bill. In the meantime, the principal party charged with the‘fraud, and the guardian charged with collusion, as well as the principal witnesses, who, from the nature of the case, must have been best acquainted with the facts, had all died. Bdd, that he had not brought his bill within a reasonable time, and it was dismissed on this ground.

      Heard April 25th, 26th and 30th.

      Decided May 14th.

    Appeal in Chancery from Wayne Circuit.
    The bill in this cause was filed to impeach and set aside a decree rendered by the Circuit Court for the county of Wayne, April 24th, 1854, in a cause wherein James A. Van Dyke — since deceased, and whose representatives are the principal defendants in this cause — was complainant, and the complainants in this cause were defendants.
    The grounds upon which said decree was sought to be impeached are, that at the time it was rendered, complainant was an infant, and that no day in court, after he should become of age, was given him by said decree to show cause against it; and also' that said decree was obtained by fraud and collusion.
    The bill was dismissed in the court below, with costs.
    The facts are stated in the opinion.

      G. I. WalJeer and A. Bussell, for complainant.
    The lapse of time furnishes no bar to this bill.
    No lapse of time short of twenty years would do so, even if there was no fraud or trust.
    The object of the bill is to vindicate the complainant’s title to real property; and in analogy to the statute of limitations, this can be done any time within twenty years. 2 Comp. L. §5350; 2 Story’s Eq. Jar. §1520-1 ; 2 Curtis Gh. 205; 6 T. B. Mon. 609; 7 How. 258; Id. 829; 1 Bana, 378, 297.
    But the analogy will not apply in case of trusts, for no length of time runs in favor of a trustee as against a cestui que trust. — 2 Baniells, Gh. Pr. 735, H. 1; 5 Ohio, St. 122; 2 Jones Eq. 430; 24 Penn. St. 482.
    And one dealing with the trustee, with full notice of the trust, occupies the same position. —10 Bich. Eq. 221; 23 Geo! 76.

      Newberry & Pond, for defendants.
    If the complainant could have ever questioned said decree on the ground of fraud and collusion, he has lost the right.
    1. By his laches.
    Admitting that the decree was obtained by fraud and collusion, it was not void, but only voidable. And nothing is better settled than that a party who has a right to avoid a transaction for fraud, must make his election to do so, and act promptly. If he sleeps upon his right,' the law construes it an election not to avail himself of the right. This decree was rendered October 20, 1854. Defendant became of age December,- 1854. He filed this bill August 5, 1861, almost seven years after he became of age. He knew, if his own statement is to be believed, of the alleged corrupt bargain between Van Dyke and Mel drum very soon after the decree was rendered. We submit that he delayed too long.

      2. By electing to take under the will mentioned in the stipulation.
    It is clear that complainants claim to have the trust deed reinstated, and his claim as legatee, under said will, are wholly inconsistent.
    The will was evidently made upon the basis that the testator had regained the control of his property by the decree, setting aside the trust deed; with that deed in existence, he had no property to dispose of by will.
   Christiancy J.

On the 7th day of July, 1853, Antoine Beaubien, an old, uneducated and weak minded Frenchman without children, being the owner of a large landed estate in and near Detroit, the management of which he was compelled to entrust to an agent, executed a deed of trust, convejdng the property to John T. Meldrum, then his confidential agent and manager of the property. This deed reserved to the grantor the possession of a small part of the property, and the income of most of it, during his life; but made full provision for the distribution of the property and its proceeds among several different persons, mostly his relatives, including his second wife, then living, and several of her children. The complainant who had been brought up in his family, and his sister, the wife of Meldrum, were second cousins of the grantor, and they were the principal beneficiaries under the deed. John T. Meldrum, however, was made a joint beneficiary with his wife.

On the 29th day of October, 1853, Beaubien, the grantor, having, for some reason, become dissatisfied with this arrangement of his property, filed his bill in chancery against Meldrum and the counsel who had drawn up and superintended the execution of the trust deed, alleging that he had been imposed upon, and fraudulently induced by them to execute the deed, under the belief, on his part, that the same was a last will and testament, and praying that it might be set aside.

While this bill was pending, and after the answer of the defendants therein had been filed, on the 4th day of February, 1854, Beaubien sold and conveyed to James A. Van Dyke, by warranty deed, the lands previously conveyed by the trust deed to Meldrum. And on the 7th day of March, 1854, Beaubien’s bill was discontinued and the files withdrawn; and on the same day Van Dyke filed his bill in the Circuit Court for the county of Wayne in chancery against Meldrum, the trustee, and all the beneficiaries mentioned in the deed; setting forth his purchase of the property, alleging that said Beaubien had, notwithstanding the trust deed, remained in possession— that the trust deed was executed by Beaubien under the misapprehension that it was a will, he being unable to speak the English language and understanding it very imperfectly, uneducated, of weak mind and incapable of comprehending the legal effect of such an instrument; but making no charge of fraud against any one in the procurement of its execution — praying that the trust deed may be set aside and cancelled, and the trustee decreed to release and convey to complainant Van Dyke.

Several of the defendants in Van Dyke’s suit were minors, and, among others, the present complainant; and Jeremiah Yan Rensselaer, a solicitor of the court, was, on motion of Van Dyke, on the 21st day of March appointed guardian ad litem to the present complainant and the other infant defendants; the petition for that purpose being in the hand-writing of the present complainant. On the 23d day of March Yan Rensselaer filed an answer for all the infant defendants in the usual form, submitting their rights to the protection of the court. He also, on the same day, filed the answer for Meldrum and wife as their solicitor, admitting most of the allegations of the bill, neither admitting nor denying the allegation that the trust deed was executed by Beaubien under the belief that it was a will, but declaring his belief that Beaubien had executed it with the full understanding that it was a deed of trust. Both Meldrum and his wife, however, declaring that they have no desire or wish to hold said property or the benefits conferred by said deed in opposition to the wishes of Beaubien; and declaring that they offer no resistance to the prayer of Van Dyke’s bill, aside from a simple narration of the facts set forth in the answer, and submit to such decree or order in the premises as the court may deem just and proper.

On the 18th day of April testimony on the part of Van Dyke purports to have been taken, Van Rensselaer, as solicitor and guardian, assenting: no replication having been then or afterwards filed. The witnesses were not cross-examined, and no testimony was taken on the part of the defendants. On the 20th of April, 1854, a decree was taken granting the relief prayed for, setting aside the deed of trust, and directing Meldrum to release and convey to Van Dyke. This decree was approved by the judge on the 24th of April, and directed to be entered.

Van Dyke, having previously taken possession under his deed from Beaubien, continued in possession, and proceeded to make sales of a considerable portion of the property, until his death, which happened on the 7th of May, 1855; having made a will, his executors and devisees have since continued in the possession and control of the property.

On the 11th day of December, 1854, about seven months and a half after the entry of the decree, the present complainant attained the age of majority. Complainant’s bill in the present case was filed on the 5th day of August, 1861, against Meldrum and the executors, devisees and heirs of Van Dyke. This bill sets up and insists upon the validity of the trust deed from Beaubien to Meldrum, and complainant’s rights under it, as one of the cestuis que trust — • alleges that the decree in the Van Dyke suit was obtained by a corrupt and fraudulent agreement between Van Dyke, and Meldrum, the trustee, by which the latter received some twenty thousand dollars in property and otherwise, on the understanding and agreement that no real or effectual defense should be made by him, and that no real defense was made — that Yan Dyke controlled all the proceedings in the cause, as well on the part of defendants as his own — that Yan Rensselaer, who appeared as solicitor for Meldrum and wife and as guardian for the present complainant and other infant defendants, was employed and paid by Yan Dyke, to put in sham answers and defenses which were prepared by Yan Dyke himself' or under Ms direction; and that all the acts of Van Rensselaer, as such solicitor and guardian, were in the interest of Yan Dyke, collusive and fraudulent — that no real defense was made or intended to be made — that Van Dyke, for the purpose of securing an influence over complainant, about the same day that he procured Ms deed from Beaubien, employed complainant to come into his law office as a clerk — that complainant was ignorant of the nature of the trust deed and the benefits thereby provided for himself, and was by Yan Dyke induced to believe that he, Yan Dyke, was acting as a friend both to complainant and Beaubien, and to get the latter out of Ms trouble — that by these and like plausible statements Van Dyke induced complainant to sign a paper which he did not then know, but has since learned, was a petition on the part of complainant for the appointment of a guardian ad litem, that complainant, upon enquiries instituted at the time of Yan Dyke’s death, ascertained for the first time the existence of the decree and its effect, that, till then, he had no actual notice or knowledge of said decree or of the provision made for himself in the trust deed.

The bill prays that the decree may be set aside, as obtained by fraud and collusion, and declared void; that said trust deed may be established, the trusts revested, and Meldrum decreed to execute and carry them into effect, that complainant be let into possession, and that an account may be taken of the sales, receipts, rents and profits, etc.

The answer of Yan Dyke’s executors and the only one of his children then of age, denies all the material allegations of the bill, as to the validity of the trust deed, or any fraud or collusion in obtaining the decree, and insists that, if the complainant ever had any right to impeach said proceedings, he has lost the same by his laches; and they claim the same benefit of this objection as if they had demurred to the bill. Meldrum also denies all fraud or collusion on his part in that suit.

Evidence was taken only on the part of the complainant. The case was heard in the court below upon pleadings and proofs, and the bill dismissed. The evidence taken is directed mainly to sustain the validity of the trust deed, and to prove the charge of fraud and collusion in the conduct of the suit in which it was set aside.

But the first question which the statement of thé casé naturally presents to the judicial mind, is that of the laches of the complainant. Why — if the decree affecting his rights was obtained by the gross fraud and collusion alleged — has he'delayed so long in seeking redress?

We do not mean to say that there is any fixed period, short of twenty years (or such other period as may have been adopted by courts of equity in analogy to the appropriate statute of limitation which may be in force), which would of itself operate as a peremptory legal bar to such a bill, if the facts and circumstances sufficiently account for and excuse the delay, and render it probable that the parties claiming the benefit of the decree could have lost nothing in consequence of the delay, and will not be deprived of any of the means for sustaining it, which they would have possessed had it been attacked at an earlier period.

But sound public policy and a just regard for the stability of private rights, require that the solemn judgments and decrees of courts affecting the rights of property shall not be lightly disturbed, nor, without the strongest reason, allowed to be impeached after any considerable period of time, during which the parties have been allowed to rely upon them, and others may have obtained interests on the faith of them, or the evidence by which they might have been sustained has been lost. And if a party to such judgment or decree might, after any considerable period, impeach its validity without showing a proper excuse or reasonable justification for the delay; and especially when it appears probable that material evidence to sustain it may, in the meantime, have been lost, a general feeling of insecurity and distrust, very injurious to property and business, must naturally result.

For these reasons, we think, in a case like the present, a party seeking to set aside the decree must satisfy the court that he has not slept upon his rights, and that his delay for any period after he was aware of his rights, and competent to prosecute them, has not operated to the prejudice of the other parties, nor deprived them of any of the evidence or other means for sustaining the decree, which they might have possessed had he brought his bill at as early a period as he might. In other words, we think the only just rule which can be laid down upon this point is, that such a bill must be brought within a reasonable time; having reference to the nature and all the circumstances of the particular case.

Such is the rule where a party seeks to repudiate or set aside a contract obtained by the fraud of the opposite party. — Disbrow v. Jones et al., Harrington's Ch. R. 102 (where a few month’s delay was held unreasonable); Carroll v. Rice, Walker's Ch. R. 373, 379, 380 (where two years was held unreasonable). He must show himself prompt and eager for redress, and any delay must be accounted for and excused.

We think the reasons for requiring promptness are equally as strong where a party seeks to impeach a judgment or decree. There is a strong analogy between the two classes of cases. If this decree was obtained by fraud, as alleged, it was not for that reason necessarily or absolutely void, as to complainant, any more than a contract into which he might have been induced to enter by the fraud of the other party. The contract is only void at his option. If he acquiesces for an unreasonable time, he will be bound. If he seeks to repudiate it, he must do so at the first opportunity, or account for and excuse the delay; in other words, he must seek his remedy in a reasonable time. — See 2 Parsons on Cont. 278, 279, and cases cited, and we see no sound reason why the same rule should not apply where he -seeks to set aside a decree, which he had the option to affirm by his acquiescence, or to repudiate and impeach by the institution of a suit.

The same rule of diligence and reasonable time applies when property is sold by a trustee, and purchased by or for him on his private account; the purchase is void at the option of the cestui que trust, but he will be held to affirm it by acquiescence for an unreasonable length of time; and three years has been held unreasonable. — Jennison v. Hapgood, 7 Pick. 1. See, also, Davis v. Cotten, 2 Jones Eq. R. 430; Monroe v. Delavan, 26 Barb. 16.

Has the complainant used due diligence, and sought his redress within a reasonable time? We are satisfied, from the evidence, that prior to the institution of the Yan Dyke suit, complainant was fully aware of the provision made for his benefit by the deed of trust; that during the pendency of that suit, he was aware at least of its general nature and object; that he knew of and assented to the appointment of Yan Rensselaer as his guardian. The proceedings in that suit were had in March and April, 1854, and the complainant attained his majority on the 11th of December, in the same year. No laches can be imputed to him during his minority. But on attaining his majority, it can not be supposed that the notice or knowledge he had immediately preceding that event, was at once forgotten. He admits in his bill that at the time of Van Dyke’s death, he became aware of the provisions made for him in the trust deed, and obtained actual notice and knowledge of the decree and its effect. It is also evident from his own testimony, and that of Meldrum, that he rvas then aware of all the material circumstances upon which he now relies to establish fraud and collusion.

By his own testimony, he undertakes to excuse his delay during Van Dyke’s lifetime by some vague verbal assurances of Van Dyke, to do right by him; but as this, if true, must have been equally within the knowledge of Van Dyke, this testimony is wholly inadmissible under the statute of 1861. — Sess. Laws, p. 169, Comp. L. §4341. Van Dyke died May 7th, 1855, six years and nearly three months before this bill is filed, and there is nothing to show that he received any encouragement or recognition of his claims from the executors or devisees. During the whole of this period, there is no pretense that he was not as well aware of all the facts and circumstances of the case as he has been at any time since, or as he is to-day, and we think, from the weight of the evidence, he was aware of all the material facts from the time he attained his majority; yet, he not only keeps silent until the death of Van Dyke, but delays to bring his bill until Beaubien and Van Rensselaer are both in their graves.

Van Dyke, Beaubien and Van Rensselaer, from the very nature of the case, must have been more intimately acquainted with all the material facts than any witnesses who can now be produced, and might have satisfactorily explained many facts and circumstances which can not now be explained by others, and which are relied upon as furnishing an inference of fraud.

So far, therefore, from satisfactorily excusing the delay, that delay, under the circumstances, naturally tends ,to cast suspicion upon the complainant’s case. And whatever tendency any of the testimony now in the cause might have to establish the fraud and collusion charged, we can feel no satisfactory assurance that a very different state of facts might not have appeared, fully establishing the validity and good faith of the proceedings, had this suit been brought, and the testimony taken, while those who best knew the facts were able to speak. Nor can we grant the relief asked without just apprehension of doing injury alike to the rights of the living and the memory of the dead.

The decree of the court below dismissing the hill must he affirmed, with costs.

Martin Ch. J. and Cooley J. concurred.

Campbell J. did not sit in this case.


author: Cooley J.

text:
    Wm. C. Chambers v. Samuel Livermore and another.
    Chambers made a contract with defendants (who were old people) to buy their farm for $11,000, paying $1,000 down and the balance at the end of ten years. By the contract a deed of the premises was to be executed on payment of the $1,000 and a mortgage given for the remainder, with a clause inserted that if he sold off any portion of the land the defendants should release that part from the effect of the mortgage, on receiving a sum proportionate'to the quantity so sold.
    A hill was filed for the specific performance of this contract. Defendants in their answer claimed that an acre of the said farm, (including certain buildings,) of much greater relative value than the rest, was to be excepted from the contract. Chambers denied this, and the contract contained no such exception. It did not bind Chambers personally, or compel him to purchase the land or pay the purchase money. Chambers paid the $1,0Q0, but defendants refused to give a deed, unless with the reservation of the one aore.
    Evidence was introduced before the commissioner tending to show the real understanding respecting said reservation.

      Held, that whether the one acre was to "be reserved or not, the contract was too unconscionable to be specifically enforced: That specific performance even of a binding contract was not a matter of right; and a court of equity will refuse it, and leave a party to his remedy at law, if not clearly satisfied that it embodies the real understanding of the parties.

      Held further, that it was competent by way of defense to a bill for specific per- ' formance to show by parol evidence that either by fraud or mistake the contract did not express the real agreement of the parties or the understanding of the defendant.

      Heard May 2d, 3d and 4th.

      Decided May 14th.
    Appeal in Chancery from Saginaw Circuit.
    This was a bill for specific performance. The case was heard in the court below on original and cross bill, answer and proofs.
    A decree was rendered for complainant in accordance with the prayer of the bill.
    The facts are stated in the opinion.

      Brown and James, for complainant.
    1. The Circuit Court properly dismissed the cross bill.

      a. It does not allege an agreement to reserve an acre of land described with the requisite certainty, and the defect is not cured by the evidence taken in the case.

      b. Parol evidence of fraud or mistake can not be received to vary a written contract for the purpose of carrying it into effect as varied.— 2 Lead. Cases in Eq. 684; 1 Id. 741; 1 Johns. Ch. 273, 425; 10 Me. 80; 19 Conn. 63; 14 Ves. 519; 17 Mass. 303.
    2. Courts of equity will decree a specific performance where the contract is in writing, and is certain, arid is fair in all its parts, and is for an adequate consideration, and is capable of being performed. — 1 Story’s Eq. Jur. §751.
    The contract stated in the bill is in writing, is certain, is fair in all its parts, and is capable of being performed. It alleges an agreement to pay $11,000 for the entire farm, which contains by actual survey 28^1-5- acres or $392.43 an acre. The evidence shows the value of the farm to have been $300 per acre or $8,409. It thus appears that the complainant not only agreed to pay an adequate price, but $2,591 more.
    3. The specific performance of the contract is resisted on the alleged ground of a contemporaneous parol agreement, whereby one acre of land, with the buildings thereon, was reserved from the sale; not embodied therein by reason of fraud upon the part of the complainant.
    4. Whether such parol agreement between the parties existed or not, there is nothing in the testimony to warrant the conclusion that it was fraudulently excluded from the written agreement.
    Where fraud or mistake is set up as a defense to a written contract, clear and unequivocal proof is required to authorize the interference of the court.— 5 Mich. 209.
    Even if fraud can render a parol agreement admissible in evidence to control a deed, still the fraud should be proved before the agreement is admitted. To prove the fraud by the agreement, and then give effect to the agreement on the ground of the fraud, is obviously reasoning in a vicious circle.— 2 Lead. Gas, in JGq. 706, and cases there cited.

    Upon any possible construction of the testimony of the defendants, as to what transpired when the final contract of the 12th of August was signed — assuming it to be true —it can only show a parol agreement not embodied in the writing, on the faith of a promise by the complainant to perform it.
    In the absence off fraud or mistake, parol evidence is inadmissible to vary a written contract, and the weight of authority is in favor of the position, that both at law and in equity the evidence must be such as to show that the contract as executed differs from that, which one or both of the parties intended to execute, and not merely that there were terms or provisions not embodied in the writing, even where they were omitted on the faith of an understanding that it should take effect in the same manner as if they had actually been inserted.
    2, Lead. Cas. in Fq. 673 and 74, 708 and cases there cited. — 5 Vesey, 722; 1 Barb. 42; 1 Bro. Ch. 92; 2 Id. 219; 2 Johns. Ch. 74; 11 Paige, 650; 9 Dana, 108; 5 Mich. 218, 210; 8 Id. 66.

      B. W. PerTcins, for defendants.
    1. The court will not grant a specific performance if complainant has been guilty of fraud in obtaining the contract by misrepresentation or by undue influence. — 17 Conn. 1.

      a. Misrepresentation will form a bar to specific performance, though the party representing did not know that it was false. — Frey on Specific Performance, §§ 430, 433, 475, and note; 1 Story Fq. Juris. § 193; 36 Barb. 377.

      b. If there was a misunderstanding between the parties as to the terms of the agreement, courts of equity will not grant specific performance, but in such cases it will decree a performance, as parties have agreed. — Frey on Sp>ecific Perform. §§474 to 479 and note, also, §§484 to 495, § 500 and note 191, §501; 21 F. Y. 238; 40 Barb. 238; 13 Howard, 57; 10 Paige, 526.

      c. Courts of equity will protect old and infirm persons from the effect of bargains obtained by undue influence.— 1 Story Fq. Jur. §§ 234, 235, 336, 221 to 242; 3 Lead. Cas. in Fq. 127, 128 and 129.
    The law defines what constitutes fraud. That by the term fraud, the legal intent and effect of the acts complained of is meant. The‘law has a standard for measuring the intent of parties; and declares an illegal act prejudicial to the rights of others, a fraud upon such rights, although the parties deny all intention of committing a fraud. — liar. Ch. 19.

      d. Where one makes false statements by means of which another is induced to enter into a contract, the right of the latter to have the contract rescinded does not depend upon whether the person knew the statements to be false when he made them or not. The law has regard rather to the effect of the false statements upon the party to whom they are made, than to the actual intent to deceive by the other. — 14 Mich. 109.
    If one person makes a false statement to another who is about dealing with him upon the faith thereof, he shall make it good; or if he makes any representation which has induced the other to act upon it. — Frey on Specific Performance, 269 and note, 365 and 366; 7 Johns. Gh. 194.

      e. The adequacy or inadequacy of price will not be inquired into where the transaction is unaccompanied with fraud. In this case there is no fraud in the sale by defendants. Chambers is informed that the other party “ had backed out and would not take the farm.” — 1 Story Mq. Jur. § 345.
   Cooley J.

Complainant filed his bill to compel the specific performance of a contract, bearing date August 12, 1865, by which the defendants agreed to sell to him a small farm of twenty-seven acres and a quarter, more ^ or less, in the city of East Saginaw, for the sum of eleven thousand dollars; one thousand dollars of which was to be paid on or before the first day of November then next, on the payment of which they were to convey the land to him, upon his giving back a mortgage conditioned for the payment of the remaining ten thousand dollars in ten years after date, with interest, with the agreement, however, that if Chambers at any time should wish to convey any part or portion of the premises, the Livermores should cancel the mortgage on such part or portion, on Chambers paying to them such portion of the mortgage as the portion of the land so to be conveyed would bear to the whole premises; and that Chambers might make as many conveyances of parcels as he chose on these terms. The contract was signed by Chambers, but did not contain any agreement on his part to buy the land, or pay the purchase price, or give any personal obligation with the mortgage for the ten thousand dollars. Chambers averred in the bill that he had made the payment of one thousand dollars, and demanded a deed, which the defendants refused to give.

The defendants, by their answer, admit the making of a verbal contract for the sale of the farm to Livermore, at the price mentioned, but allege that there was to be reserved therefrom one acre, including their dwelling house and other buildings; that the contract was drawn by Chambers himself; that the defendants are aged people, and ignorant of legal business; that said Ermina Livermore, in whom the title to the farm was vested, inquired of Chambers if the reservation of the acre should not be mentioned in the written contract, who replied that it was of no use to do that, as it would be mentioned in the deed, and that would be sufficient; that he had got the contract drawn, and that it was all right; that defendants, relying on this statement, and confiding in Chambers, who claimed to be something of a lawyer, signed the contract; that when the one thousand dollars wore paid, they had a deed prepared for Chambers, containing the reservation, which, to their surprise, he refused to accept, because the reservation was inserted; and they set up his fraud in this particular as a defense to specific performance. Many other matters are set out in the pleadings Avhich have no bearing upon the case as it now stands before us, and a recital of them is therefore omitted.

.Considerable evidence was taken in the case as bearing on the question of the alleged fraud; and the court below, not,finding 'the' fraud established, made a decree in accordance with the prayer of the bill. Among other things, it appeared from the evidence that the value of the acre which defendants claim was to he reserved was two thousand five hundred dollars, and that if the premises should he divided into city lots for sale, the Amine of some lots would he two or three times as great as that of others of the same size.

On the argument, we intimated to counsel that, independent of any question of actual fraud or mistake, this contract was so one-sided and unconscionable in its provisions, that a court of equity could not enforce it. As the complainant had not in any Avay made himself personally liable for the purchase money, and did not undertake to do so in giving a mortgage, he was, in fact, securing by the contract the option to buy the property at any time Avithin ten years, but Avith the privilege of selling oflT the most valuable portions in the meantime, securing their release from the mortgage by paying a proportion of the mortgage equal to the proportion which the area of the lot sold bore to the Avhole purchase, and then abandoning the purchase altogether by the forfeiture of the one thousand dollars paid on receiving a deed. Thus, if he went no further in his sales than to dispose of the acre where the buildings stand, and which was worth tAVO thousand five hundred dollars, he would be entitled to have it released from the mortgage on payment of four hundred dollars or thereabouts, Avhich Avas the average price of the Avhole by the acre, and if he abandoned the contract then, he Avould have sold nearly one - fourth in value of the land, Avithout being compellable to pay therefor any more than the fourteen hundred dollars, or considerably less than one - seventh of the purchase price. It seemed to us that if a party had been able to secure such a contract, Neven without fraud, he could not properly,ask, (its. >enfqrcei&pnt in equity. ", -' 1/

To this, tAVO answers were made on, !thd' part of coin- '- J C'l'' plainant: First, admitting that this consequence might follow, there was in that fact no sufficient objection to the relief prayed, as inadequacy of consideration was no defense to specific performance. This is true within limited bounds; but the case suggested would not be one of inadequacy of consideration. The consideration for this land, according' to the theory of the bill, has been agreed upon between the parties; but in doing so, the relative value of the several parts has, of course, been taken into account; and the difficulty is that the purchaser, under this contract, may acquire the benefit of the purchase as to those valuable portions on accounting for a portion only of what was the real purchase price of such portions.

Second, the complainant says he is willing, and offers in court to waive the unjust provisions made for his benefit, and to bind himself personally for the payment of the purchase price. But he is willing to do this only on condition that the court finds the actual contract between the parties to be as set forth in the bill, and to embrace the acre where the buildings stand.

We are relieved in this case from a consideration of the general question, whether the vendee, in an unconscionable contract, is entitled to have it enforced in equity on waiving the unjust provisions, since the evidence does not satisfy us that the contract agreed upon between the parties is that set forth in the bill. The evidence tends very strongly, if not conclusively, to show that the defendants never understood their contract of sale to embrace the acre on Avhich the buildings are situated; and whether the omission to reserve it arose from fraud in the complainant, or mistake on their part, is immaterial on the question of the specific relief here prayed.

Specific performance, even of a binding contract, is not a matter of right; and a court of eqAÚty Avill refuse it, and turn the complainant over to his remedy at laAV, if not clearly satisfied that it embodies the real understanding of the parties. The evidence of the defendants is full, positive and circumstantial, that the.reservation alleged in their answer was agreed to be made. The evidence of other persons who were at the same time negotiating with defendants, and bidding, as it were, against complainant for the land, tends strongly to support that of the defendants as to their understanding, inasmuch as it shows clearly that in their negotiations with the witnesses, it was expressly understood the acre with the buildings on, was to be reserved. The evidence of Chambers is distinctly opposed to that of the defendants, but the other evidence in the case tends to support the defense. And the clause respecting releases, which is inserted in the contract, is an important circumstance in the same direction, since it is incredible that persons competent to enter into a contract would have executed one containing that clause, if it covered the part where the buildings are situated.

Complainant, however, insists that all the parol proof introduced to show that the reservation was agreed upon as alleged in the answer, was incompetent. This objection is untenable. Without now approaching the mooted question, whether a complainant can be allowed to show by parol a mistake in a contract, with a view to having it reformed and then enforced, it is sufficient for us to say there is no dispute in the authorities that the mistake may be shown by parol, as a defense to the specific performance of the written instrument. — See 1 Lead. Cas. in Eq. 519, (marg.) note, and cases cited.

Complainant also insists that defendants are not defrauded, even if the reservation was agreed to be inserted, inasmuch as the evidence shows that the value of the whole land, at the date of the contract, was less than eleven thousand dollars. We think this position must have been taken without much consideration. It cannot, surely, be seriously urged that if a contract by fraud or mistake is made to include more than the vendor agreed to sell, it may be enforced against Mm in equity, if the average estimate of witnesses makes the value of the property no more than was to be paid. The vendor has a right to put his own price upon his property, instead of having it fixed for him by witnesses. An inquiry into the value may be important in determining whether fraud or mistake has actually intervened; but the legal character of the transaction does not depend upon the question of its sufficiency. We are not satisfied, however, that the market value of the land was not more than complainant claims. Assuming the reserved acre to be worth two thousand five hundred dollars, defendants had a bona fide offer for the remainder, of a sum which would have made the whole more than complainant was to pay; and this offer, so far as the evidence discloses, was on the basis of a cash payment, and therefore more advantageous than that of complainant, if his theory of his bargain is correct.

Not being satisfied that any such contract was ever agreed upon between the parties as is set up in the bill, and without passing upon the question of actual fraud, we can not decree specific performance of the contract, notwithstanding the proposed concessions* of the complainant.

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

Christianct and Campbell JJ. concurred.

Martin Ch. J. I concur in the result.


text:
    Melville Newton v. Charlotte Sly.

      Conveyance: Demiting ti'ust: Dower: Purchase - money mortgage: Possessory right of mortgagee. The defendant’s husband conveyed certain real estate to his sons by deed, in which she did not join. At the time of the sale the land was covered by a partly paid purchase - money mortgage, the remainder of which was afterwards paid by the said sons. It appeared that the sons were the real purchasers of the land originally, and had the land conveyed to their father, intending it to be for their own benefit, and upon the verbal understanding that he would deed to such of them as they might require; and that said conveyance finally made was in pursuance of said arrangement, and all payments on the mortgage had been made by them and not by him. Held, that the statute (2 Comp. L. §2637) having abolished the resulting trusts formerly arising in favor of the persons paying purchase money, the legal title vested absolutely in the father, and that said verbal agreement being void {Comp. L. §3177-8) the conveyance by him to the sons must be regarded as the ^origin of their title, and payments made by them on the mortgage prior to that conveyance must be considered as in aid of his title, and not of theirs.

      Held further, that in estimating the widow’s right of dower in the land so conveyed, it must be taken subject only to so much of the purchase-money mortgage as remained unpaid at the time of the conveyance by the husband, and that the sons or their grantees could not claim any deduction on account of previous payments, made before they acquired title.
    Under our statutes a mortgagee obtains no possessory rights before foreclosure; and the widow’s right of dower being a part of the equity of re-‘ demption, her possessory claims can not be barred or prejudiced by proceedings or agreements to which she is not a party.

      Heard May 9th.

      Decided May 14th.

    Error to Wayne Circuit.
    This was an action of ejectment brought by defendant in error to recover dower in lands conveyed by her husband during their marriage.
    Judgment was rendered for plaintiff below.
    The facts and rulings of the Circuit Judge are stated in the opinion.

      D. C. Holbrook, for plaintiff in error.
    1. The plaintiff in error insists that the defendant in error is not entitled to recover at all in this case, for the reason that as to the defendant in error the mortgage is. outstanding and in the hands of the plaintiff in error; that so long as any amount remains unpaid the mortgagee or assignee, plaintiff in error, is entitled to possession and to the estate.
    The plaintiff in error claims to hold under the assignee of the mortgagee by virtue of the warranty deed of such assignee of Durfee.— Comp. L. § 2775.
    2. The plaintiff in error insists that the arrangement between Silas Sly and his sons, that he would take the conveyance for their convenience, and that he was to convey, and did convey, operated as an executed trust; but if it did not so operate, then it was a sale partially executed by delivering possession in consideration of payment of the purchase price or payment of the mortgage; and, that as the sons thereby became the owners, as of the date of the mortgage, they and their grantee, the plaintiff in error, are entitled to have deducted, as of the date of alienation, the whole amount paid by them on the mortgage, either before or after alienation.— Gomp. L. §2777; 6 Mich. 470.
    3. The plaintiff in error claims that the court below erred in charging the jury that the defendant was entitled to dower in this cause as against this plaintiff, with or without deductions, and this, for the reason that if a grantor holds a mortgage for part of the purchase money, he is compelled to give up a part of the land without knowing that the whole will ever yield sufficient to pay the balance. It seems absurd that dower shall be granted in lands against the solemn pledge, agreement and mortgage of the party claiming such dower.
    It is useless to cite any of the multitude of authorities holding that doAver can not be claimed against a mortgage to secure the. purchase money. The case of Snyder v. Snyder is the- only one to the contrary, and there, this point •was not raised.

      Ward <& Palmer, for defendant in error.
    1. The court properly excluded all testimony tending to show that the deed from Durfee to Silas Sly was taken, and the title was to he held by him, in trust, for the benefit of his sons. The bill of exceptions states that no trust was expressed or set forth in the deed or in any writing; in other words, if any trust existed, it must have been a mere resulting trust, or a trust created by implication of law or by a parol contract.
    Such estates are now abolished by statute, except such as are specifically set forth in the instrument creating them. 9 Mich. 365; 2 Comp. L. §§2630, 2632, 2637.
    Parol evidence, therefore, could not be received to establish either an express or an implied, trust. —10 Paige Ch. 562; 2 Comp. L. §3177-8.
    2. It is claimed that the court erred also in refusing to charge that the defendant below was entitled to have deducted from the value of said premises, all that his grantors had ever paid on the Durfee mortgage, as well before, as after their alienation by Silas Sly. If it be true that all the money paid by the sons of Silas Sly, on the purchase of the premises they themselves made of Durfee, inured exclusively to the benefit of the grantee, which is most plainly declared shall be the case in the statute above cited, then in effect, so many of the payments as were made while Silas Sly owned them, and before he aliened them, were made by him, and hence could not be deducted from the value of said premises before dower was assigned, and that the defendant below had no right to have any such deductions made.
    3. It is urged that the Circuit Judge erred because he would not charge that all the money the sons paid to Durfee as purchase money, on the premises they bought pf^him, and put in Silas Sly’s name, should - apply ^asNphrqliase money of the same premises from ^l'y to his son - U

      If this were so, the statute could always be evaded by the simple method of the purchaser making a contract with the grantee that the money advanced by him in payment, should be the purchase money from the grantee to him, and he could take the deed when he chose, and if the grantee refused afterwards to convey, he could compel the grantee to convey to him by a bill for specific performance.
    Again, such a construction of the statute could only be enforced on the ground that the "money was advanced for the use of the person who paid it on such a purchase, which is directly contrary to the statute. In this case it would create a use for the sons who paid the purchase price for Sly to Durfee, in that all such.money was to inure to the benefit of the sons on a purchase from Silas Sly.
    4. The court did not err in charging that the plaintiff in error had a right to have deducted only such amount of the Durfee mortgage as was paid after the alienation by said Silas Sly. The charge is in strict accordance with the provisions of the statute — Comp. L. §§2777, 2778 — and the construction put on the same, by this court, in the case of Snyder v. Snyder, 6 Mich. 470.
    The statute provides who may pay that mortgage and have a right of such deduction, viz: the heirs and other persons claiming under the husband. Of course, Silas Sly could have no heirs while living, and the payment made by the sons before he aliened the premises were not made as heirs, and until Silas Sly deeded to them, they could not claim under him, so that in either case the sons or their grantee could not claim a deduction for the payment made before alienation. The plaintiff had a right to recover such a proportion of the premises as one-third of the value at the time of alienation, after deducting the amount of incumbrance, bears to its present value.

      It was further urged, also, that defendant below being the grantee of Hial P. and Nathan T. Sly, under a. warrantee deed, and they being the assignees of the Durfee mortgage, plaintiff could not recover in ejectment of defendant under such circumstances, on the ground that the title passed to the mortgagee and to the assignee of said mortgage, and that their title by their warrantee was transferred to defendant. Although such might have been the case formerly, it is very clear that such is not the law now in force in this state.— 2 Comp. L. §4614; 6 Mich. 470; 12 Mich. 278; 18 Mich. 874.
   Campbell J.

Action was brought by Mrs. Sly to recover dower in lands conveyed ,by her husband, during the marriage, to his sons, by deed, in which she did not join. The land, at the time of the sale, was covered by a partly paid purchase money mortgage, the remainder of which was afterwards paid by the sons, who conveyed by warranty deed to Newton, and who subsequently took an assignment of the mortgage, after it had been fully paid. The chief contest arose out of a claim on the part of the defendant below to have deducted from the value of the premises at the time of Sly’s conveyance, not only so much of the mortgage as had not then been paid, but also the sums previously paid; or, in other words, the entire mortgage money and interest originally secured.

The claim to this full deduction was based on a showing that Sly’s sons were the real purchasers of the land originally, and not only paid the money which was required for the advanced instalment, but ’also agreed to pay, and did pay, the sums falling due on the mortgage, and had the land conveyed to their father in trust for their own benefit, and upon the understanding that he would deed to such of them as they might require; and that the conveyance which he finally made was in pursuance of this arrangement.

The Circuit Court withdrew this evidence from the jury, and confined the deductions, on account of the mortgage, to the sums paid after the conveyance.

We think this course was proper. The whole arrangement between Sly and his sons was verbal. Our statute has abolished the resulting trusts which formerly arose in favor of parties actually paying the consideration for lands conveyed to others. Now, if the conveyance to the grantee is made with the consent of the one who pays for the land, the latter can claim no interest in the estate. — Comp. L. § 2637. Nor can an express trust in lands be created by parol. — Comp. L. §3177-8. Inasmuch as these verbal agreements were void, the conveyance from Silas Sly was the first thing which gave his grantees any interest in the land. Of course, they can not claim that previous payments were made to protect their title. The statute secures to them the advantage of all payments made thereafter. — Snyder v. Snyder, 6 Mich. 470. But the court below allowed these, and gave them all they were entitled to demand.

It was also urged that as the purchase money mortgage was valid against the right of dower, it precludes any possessory action to recover it. We have frequently decided that a mortgagee has no possessory right until foreclosure. — Baker v. Pierson, 5 Mich. 456; Crippen v. Morrison, 13 Id. 23; Ladue v. D. & M. R. R. Co. 13 Id. 380; Caruthers v. Humphrey, 12 Id. 270. In the first case cited, a mortgagee receiving possession from the mortgagor, pending a suit for the foreclosure of a prior mortgage, to which he was not made a party defendant, was held not to be entitled to any rights as mortgagee in possession, and was treated as standing in the shoes of a mortgagor. Mrs. Sly’s right of dower is embraced in the equity of redemption of the mortgage, and no agreement, to which she is not a party, can give a right of possession under that instrument as against her possessory claims.

The charge of the court below gave, therefore, to the defendant in ejectment, the benefit of every allowance which he had any possible right to assert, and there was no error in the proceedings.

The judgment must be affirmed, with costs.

The other justices concurred.