text:
    Wilson for the use of Farrand v. Davis.
    Under the act, Sess. L, 1845, p. 98, a plaintiff against whom a judgment is rendered in a justice’s court for costs only, amounting to less than $4, may appeal, and no affidavit under sec. 2 of the act is necessary to perfect the appeal in such ease.
    Where a statute provides that11 if any party shall appeal ” &c. from a judgment rendered by a justice, “such party, his agent or attorney,” shall enter into a recognizance: Held, the appeal might he taken and the recogizance entered info by the person for whose use the sjiit was brought.

      By tlie justices’ act, Laws of 1833, p. 193, seo. 1, “judgment by confession may be entered by any justice of the peace for any suip not exceeding one hundred and fifty dollars, provided such confession be in writing, signed by the person making the same, in presence of the justice, or one or moro competent witnesses.” Held, a judgment on a confession not in wilting, was void; andthat where such judgment had been stayed, an action could not be sustained on the undertaking of the stay for the want of a consideration to support it.
    Case reserved from Wayne Circuit Court. This was an action of asssumpsit, brought by Rufus W'ilson for the use of Jacob S. Farrand against Solomon Davis, upon the following instrument:
    “ Rufus Wilson v. Charles Davis.
    State of Michigan, County of Wayne, ss.

    “ Whereas, judgment hath this day been rendered by John W. Strong, one of the justices of the peace in and for the county aforesaid, in favor of the plaintiff, against the defendant, for the sum of §50 damages, and 69 cents costs of suit, I do hereby acknowledge myself security for the stay of execution on said judgment, and agree to pay damages and costs, with interest on the same, in six months from this date.
    “Dated Detroit, May 21st, 1838. (Signed) Solomon Davis.”
    The declaration contained the necessary allegation of the recovery by said Wilson of the judgment against Charles Daws, and the execution of the above stay of execution thereon by the defendant in this suit.. The defendant plead the general issue- and other special pleas.
    The cause was originally tried before a justice of the peace, who rendered a judgment against the plaintiff for the costs of suit, which were a sum less than §4.
    From this judgment the plaintiff appealed to the circuit court. Tb.e statute under which the appeal was taken allows any party to a judgment to appeal, among other cases, “where final judgment was rendered upon an issue of fact joined between the parties.” Sess. L. 1845, p, 98, sec. 1. And the second section of the same statute provides, that “ no party against whom a judgment has been rendered by a justice of the peace upon any claim arising from contract, shall appeal therefrom to the circuit court, unless such party, his agent or attorney, shall, within five days after the rendition of such judgment, make and present to such justice an affidavit, alleging that the party recovering such judgment had recovered therein at least five dollars more than was justly and honestly due such party.” The fourth section of the same act further provides, that “ if any party shall appeal from a judgment rendered by a justice of the peace,” &c., “such party, Ms agent or attorney, shall, within five days after the rendition of such judgment, enter into a recognizance, with at least one responsible surety, in a sum not less than double the amount of the judgment and costs, conditioned to prosecute such appeal with due diligence to judgment,” &c. The appeal is this case was taken by Earrand, for whose' use the action was brought, and the recognizance required by section four of the statute .above quoted was entered into by him-*-'Wilson, the nominal plaintiff, not joining- therein; and no such affidavit as is required by section two of the same statute, was filed.
    On the first day of the term of the circuit court, the defendant moved to dismiss the appeal, because: 1. It was not taken, nor was the recognizance entered into by a party to the judgment 2. The affidavit required by section two of the statute above quoted, had not been filed. 8. Appeal did not lie in such a case, under the statute,, which motion was .overruled by the court.
    The cause subsequently proceeded to trial before a jury. On the trial the plaintiff read in evidence, to prove the judgment referred to in the instrument on which his action was founded, the following entry, under date of May 21,1838, from fhe docket .of Justice Strong:
    “ Rufus Wilson v. Charles Davis.

      Amicable suit. Assumpsit, $50,
    •“ Defendant in court and confesses judgment in favor of the plaintiff in the sum of $50 damages, and 56 cents costs of suit, for which several sums judgment is hereby rendered. Stay entered by Solomon Davis.
    Damages----*---$50 00
    Costs.......... 56
    $50 56 ”
    No written confession signed by Charles Davis was proved by the plaintiff; and it appeared in evidence on the defence, that none was executed.
    The first section of the justices’ act of 1833, from which the jurisdiction of the justice was derived, provides, that “ all actions of assumpsit, <&c., where the balance due, or the damages or thing demanded shall not exceed $100, &c., shall be cognizable before any justice of the peace; and judgment by confession may be entered by any justice of the peace for any sum not exceeding $150, provided that such confession shall be in writing,' signed by the person making the same, in the presence of the justice, or one or more competent witnesses.”
    It was insisted on the part of the defendant, that under this statute, the judgment was void for want of jurisdiction.
    After the evidence was closed the cause was, with the consent of the court, withdrawn from the jury, and a case was- agreed upon between the parties, which was reserved by the presiding judge for the opinion of this court upon the questions arising thereon, and among which were:
    1. Whether the motion to dismisss the ajipeal was properly denied.
    2. Whether the justice of the peace had jurisdiction to render the judgment in favor of Wilson against Challes Davis, and the same was valid and would support the defendant’s undertaking.

      E. 0. Walker, for plaintiff.

      Van Dyke and Emmons, for defendant
   By the court,

Wing, J.

It is objected that the statute did not authorize an appeal in this case, because an affidavit was not made. It has been repeatedly decided in this court that an appeal did lie in a case like this, without an affidavit by the party appealing, as the case is embraced by the first section of the justices’ act of 1845 (Sess. L. 1845, p. 98); and the cases in which affidavits are required are specially specified, and this is not one of them. As this question has been put at rest by the amendatory act of 1846 (Sess. L. 1846, p. 285), it cannot now be a matter of any particular importance that the reasons which have influenced the court in adopting this construction of the statute, should be published.

It is further objected that Farrand, the assignee of the original judgment, claimed the appeal from the decision of the justice and entered into a recognizance, instead of Wilson, the plaintiff in the suit. The fourth section of the act provides, that “ if any party shall ajipeal from a judgment rendered by a justice of the peace, as herein before provided, such party, his agent or attorney, shall, within five days, enter into a recognizance,” &c. We think that Farrand must be considered to be the agent and attorney for tlie nominal plaintiff. He is the assignee of the judgment; the plaintiff has authorized him, by the sale to him, to prosecute the suit, and to do all matters necessary to make it available to him, at the least, if the plaintiff does not interfere. The assignment of the judgment operates as a power of attorney, irrevocable to the assignee, to prosecute and collect the judgment in the name of the assignor, the plaintiff in the judgment.

The only other point made in the case which we deem it necessary to notice, is, that the original judgment was void, and did not, and could not form a sufficient consideration for the alleged assumption of the defendant.

The questions raised by this objection upon the first section of the justices’ act of 1833, have been repeatedly considered and decided by this court. The reasons urged in support of this objection are, that the statute required, that to give jurisdiction to the justice, the confession should have been made •“ in writing, signed by the person making the same, in the presence of the justice, or one or more competent witnesses;” and the judgment was rendered by the justice without his having any written confession of judgment.

It is urged by plaintiff’s counsel, that certain authorities-cited by him, having a strong hearing upon, this question, have not hitherto been considered by the court in making up their decisions upon this question.

It. has been uniformly held by this court, that to give validity to a judgment hy confession, the justice, in rendering the same, must strictly pursue the authority given to him by the statute; and that the facts necessary to give him jurisdiction must affirmatively appear in his proceedings, and cannot be presumed. Wright v. Warner, 1 Doug. Mich. R. 384; Clark v. Holmes, id. 390. In the case of Beach v. Botsford, id. 199, the confession was written and signed by the defendant, but it was not witnessed: and it was decided that the confession was not made in conformity to the requirements of the statutes, and, therefore, did not give the justice jurisdiction of the defendant. In the case of Spears v. Carter, ante 19, the record of the justice stated, that the “judgment was rendered upon the written confession of defendant, in favor of the plaintiff;” but no such written confesssion was shown to have been made. The judgment was held to be void, for two reasons: 1. That it did not appear that the justice acquired jurisdiction of the defendant, or of the subject matter of the suit. 2. The cause of action! was not stated in the judgment. In this cause, it does not appear from the record or the files of the justice, whether it was for damages for slander, false imprisonment, or any other cause of action of which the' justice had not jurisdiction; there is no reference to any note or contract in the judgment. There is no pretence that a written confession was ever made. In the cases cited it was decided there must be a written confession, in the presence of the justice, or one or more competent witnesses, and that such confession must be presented to the justice before he could acquire jurisdiction of the party.

Plaintiff’s counsel insists that Justice Strong had jurisdiction of the' amount, of the jrersons and the place — that when the parties appeared before him, and had stated their case,-and he put pen to his docket, at that moment he was in possession of the case, with full power to carry it on to a close; and if the justice erred in any of the subsequent steps in taking the confession, it did not oust Mm of his jurisdiction — that the proviso only regulates the mode of exercising- jurisdiction-.

The same section of the act specifies the actions and amounts of which justices shall have jurisdiction. The mode in which this jurisdiction is to be exercised in cases of confession, is prescribed in this section; the other sections of the act prescribe the mode of its exercise-in other cases. The appearance of a defendant may be enforced by process, or he may voluntarily appeal, and in the latter case an amicable suit may be entered; but this supposes a denial by the defendant of the cause of action — otherwise there is notMng to try. In the caption of the judgment the justice has written “• Amicable suitj” but it was not such a suit: it puiported to-be,, as appeared from the recital in the judgment, a confession of judgment. That part of the section which: authorizes the justice to enter judgment upon confession, provides, that “ judgments by confession may be entered by any justice of the peace for any sum not exceding $150,.provided such confession be in writing, signed by the person- making the- same, in-the presence- of the justice, or one or more competent witnesses.” Until there has been a literal compliance with this provision of law, the justice cannot have jurisdiction of a defendant. The cases cited by the plaintiff in support of his position, are, 2 Salkeld 674; 17 John. R. 145; 2 Cowen 548; and 4 John. C. R. 91. In these cases the jurisdiction of the court or officers to render j eklgmeiit or-make orders, was denied. It was urged that because their proceedings were defective in some respects, they were void; but the court held, that because the tribunals in the exercise of conceded powers had erred, their acts were voidable, only — not absolutely void. In the last case cited, the chancellor, whilst he does not admit that the proceedings which were objected to as void, were shown to be so, saysf that the complainant is estopped from questioning them, as he, by Ms acts and acquiescence, has led the defendant to expend large sums of money upon the lands purchased by virtue of those proceedings.

We cannot pierceive any good reason for overruling the decisions .heretofore made by this court upon this point, and we think the judgment read in evidence in this case was void, and, therefore-, cannot furnish a valid consideration for the promise of the defendant set forth in plaintiff’s declaration;

Certified accordingly.


source: Caselaw Access Project

author: Whipple, C. J.

license: Public Domain

text:
    Hiney v. Cade.
    A writ of error does not lie irons this court to ¿county court in civil cases.
    Error to St. Joseph County Court.

      Hammond, for plaintiff in error.

      Pease, for defendant in error.
   By the court,

Whipple, C. J.

This cause originated before a justice of the peace, and after judgment was appealed to the county court of the county of St. Joseph. Judgment having been rendered in the county court against the plaintiff in error, he sued out a writ of error, to remove the record and proceedings from the county court, to this court for review.

The errors assigned upon the record are of such a character as to warrant the reversal of the judgment below if we have jurisdiction of the cause.

The preliminary question will be first examined. The general jurisdiction and powers of this court are defined by the second and third .sections of .chapter 88 of the revision of 1846. The second section provides, that the supreme court shall have original and appellate jurisdiction of all such matters and suits at law and in equity, as may be lawfully brought before it; and shall also have jurisdiction of suits, .actions and matters brought before it by writ of certiorari or writ of .error, when the same shall be allowed by law, to any inferior court, to magistrates or other officers, as well in cases of prosecution for any .offence, misdemeanor or penalty, in the name of the people of this state, .as in other-cases; and shall have authority to issue writs of error, prohibition, certiorari, mandamus, quo ®rarranto, habeas corpus, procedendo, supersedeas, and all other process that may be necessary for the due execution of the law, and the administration of justice, and the full and perfect exercise of its jurisdiction, and to hear and determine them, according to the principles and usages of law and equity. The third section ■provides, that “ The supreme court shall have the general supervision ■of all courts of law of inferior jurisdiction, to prevent and correct errors and abuses therein when no other remedy is expressly provided bylaw.” These sections confer upon the supreme court the most ample powers to issue the great remedial writs therein specified, and to review the proceedings in, and control the actions of all inferior jurisdictions. They will justify the issuing of the writ of error in this case, unless subsequent legislation has provided another tribunal, where judgments in the county courts are to be reviewed before they can properly come under the cognizance of this court.

'The forty-fifth section of chapter 92 of the new revision, provides as follows: “ Ho appeal shall be made or allowed of any case tried or determined by a county court; but in all cases of judgments rendered in such courts, either party thinking himself .aggrieved or injured by such judgment, may remove the same by certiorari into the circuit court for the same county in which such judgment was rendered.”

This section, it is true, does not in terms conflict with the provisions authorizing this court to issue writs of error to review the judgment of ■inferior courts; but still it makes a specific provision as to how judgments jn the county courts are to be reviewed. It makes the circuit court the ¿tribunal by which errors in the county courts are to be corrected, From a judgment of the circuit court the appellate jurisdiction of this court may be successfully invoked. The apparent .conflict in the provisions of our statute establishing our courts .and defining their jurisdiction. and powers, has resulted from the circumstance that a part of these provisions was the work of the revisor, and the remaining portion that of the legislature; the consequence has b,e.en that our whole judicial system has become so .complex, and the Jaws establishing the system are so inartiflcially drawn, as to produce almost inextricable confusion, Om leading idea, howeyer, pervaded the minds of those who erected the system; that idea was, that, as far as practicable, tribunals of original and appellate jurisdiction in matters of law, and of original jurisdiction in equity, should be established in each county. Keeping this in mind, and surveying our whole judicial establishment, as it lies scattered through the revision, and the legislation of the last two winters, and I tfnnk it manifest that all judgments rendered in the county courts in civil causes must first pass the ordeal of the circuit, before they can be reviewed by this court,

The writ of error having issued impipvidently, we have no jurisdiction of fhe ease, and cannot, therefore, apply .a corrective to the errors which pervade the record below,

ílause dismissed.


author: Wing, J.

text:
    Loomis v. Foster.
    The general issue, not guilty, in replevin under E. S. 1838, p. 523, as amended by Sess. L. 1839, p. 230, see. Ü, puts in issue every fact stated in the declaration neoessary to sustain plaintiff’s action, and not the detention of the property only.
    Error to Allegan Circuit Court. Replevin under R. S. 1838. The declaration averred a wrongful and unlawful detention by Loomis of a grey horse belonging to Foster. Plea, not guilty. On the trial, Foster proved that on 30th April, 1844, before suit was brought, he demanded the horse of Loomis, who refused to give him up, stating he owned .the horse himsel£ Foster then proved his damages by reason of the detention, and rested. Thereupon Loomis offered to prove the horse belonged to him; but the court rejected the evidence, on the ground that by his plea of not guilty he admitted the property and the right of possession to be in Foster, and that the detention only was put in issue. Loomis excepted to the opinion of the court. He then requested the court to charge the jury that Foster, to recover, must proye property in the horse, in addition to the detention of the horse by defendant. This the court refused, and, in charging the jury, stated it was not necessary Foster should show either a right of property in the horse, or a right to the possession.
    Moore, for plaintiff in error.

      id Id Ciarle, for defendant in error.
   By the court,

Wing, J.

It is urged in support of the decision of the circuit judge, that there were two material allegations in the declaration, one or both of which defendant might have traversed, as the nature of his .defence required, viz:

1. The right of possession of the plaintiff.

2. The detention of the property.

It is urged that the session law of 1839, p, 230, see. 44, which prescribes the form of the general iss&e in replevin, has -jn no respect changed the nature or effect of the general issue in this action at common law, which was non cepit, and which only denied the taking, but admitted the right of property to be in the plaintiff; and, if this is not correct by analogy in an action of replevin under the statute for a detention, not guilty only denied the detention, and admitted the jiroperty to be in the piaintiff, as alleged.

In this case the only cause of action stated, is, the wilful and unlawful detention of the horse. If it is true that the plea of not guilty only denied the taking, it would have no relation to the subject matter .of complaint alleged in the declaration: for it would only deny what is not asserted. It is manifest, then, that as this plea is given by the statute as an appropriate plea in an action of replevin, whether the action be for a wrongful fairing or detention, and in eases where both are combined in the same action, some meaning and effect must be given to the plea in an action for a detention only. If it means anything by way of defence to the averments in the declaration, how can we restrict it to some one averment, and hold it to be an admission of the others ? If it can be maintained that in an action for taking, and detaining,, this plea amounts to the common law plea of non cepit, and admits the property to be in the plaintiff, it must also admit the wrongful detention: for' it does not reach the charge- of detention.

The question, then, is, what effect shall be given to the plea of not guilty in an action of replevin for an unlawful and wrongful detention ? The statute of 183-9 provides, that “the general issue shall be joined on the plea of not guilty.”

In the largest class of actions, where there is strictly and technically a general issue, a plea of .the general issue traverses, thwarts and denies at once the whole declaration, without offering any special matter to evade it. 3 Black. Com. 305. In some actions, some pleas are called the general issue which, strictly speaking, are not so, as mil tiel record in debt, and non est factum in covenant. But the books treat these pleas as being something short of the general issue in its broadest sense. So in replevin at common law it is said non cepit is called the general issue; but it is so in a restricted sense ©My, since it does not embrace and deny all the allegations in the declaration, but takes issue upon a single point, and, like special pleas, admits what it does not deny. It is more like a special plea than the general issue. At common law an action of replevin would only lie in cases- of a wrongful taking, and where trespass would lie. A denial of the taking was the most common defence, and if proved it disposed of the action; the gist of the action was the wrongful taking. In bringing replevin, the plaintiff narrowed his grounds of complaint to the loss resulting from the taking; he did not embrace in his action, as he would in- an action of trespass, the injury accompanying the taking; and the defendant, by the plea of non cepit, still further narrowed the issue to the simple act of taking. The plea of non cepit did not embrace all that was embraced in an- action of trespass by the plea of not guilty. In the one case, the plea denied a specific single fact charged; in the other, every allegation in the declaration was put in issue.

At common law, if a plaintiff sought to recover the specific property detained, he was obliged to bring detinue. If he only sought damages for the detention, he brought an action of trover. Our revised statutes have, in some measure, incorporated both these remedies in the action of replevin f and, if we are to be governed by the analogies óf the common law, we inay say that the general issue joined by the plea of not guilty is the same as in the actions of detinue or trover; in the first of which the plea of non detinet, and in the latter the plea of not guilty, puts the plaintiff to the proof of all the substantial allegations in his declaration. The statute treats the act of unlawful and wilful detention as a tortious act, a Wrong and injury j and replevin for a wrongful detention appears to have' been considered as analogous to an action of trover, since the plea applicable to such an action is given.

If it was the object of the legislature to give a new and arbitrary name to the plea of non cepit without changing its nature, why did they not adopt the' plain English of the general issue, and say a denial of the taking should be the general issue ? As they have given in an action for a detention a plea which is the general issue in trover, why should we not give to the plea its- appropriate scope and effect — the same meaning that is given to it in actions where the plea is allowed ?

It is urged’ that as non cepit is called the general issue in replevin at common law for a Wrongful taking, non detinet should be the general issue in an action of replevin for a wronful detention only. But as there was- no such aetion at common law, no1 such plea could be pleaded to it: and, consequently,, it cannot be supposed to have been intended by the legislature; Justice Nelson, in 12 Wendell 33, says, that the distinction made between the effect and operation of the general issue in the cases of non cepit and non detinet is in analogy to that existing in the action cf tn sjiáss and trover* In the first the defendant cannot, under tbe plea of not guilty, show property out of - the plaintiff; but he may in the latter. The action of trespass is founded on the right of the plaintiff to the possession trover is founded on the right of property, and this is the reason of the' distinction.

We have, as we think,- already shown that the plea of the general issue in this case could not mean the general issue of non cepit; no special or definite plea was pointed toas the general issue-by saying the general issue should be joined by the plea of not guilty* We think the intention of the legislature was, that the plea of not guilty in this action should have the force and effect given to the general issue in its broadest sense, as stated by blaclistone; and not that the plea of not guilty should have only the effect of a denial that the defendant detains the property — admitting the property and right of possession of plaintiff. If this is not so, the statute would be calculated to mystify and entangle litigants, and could subserve no beneficial purpose.

Judgment reversed,


text:
    Robinson v. Steam Boat Red Jacket.
    The act to provide fox the collection of demands against boats and vessels, Ses. L. 1839, p. 70, gave a new and cumulative remedy, but did not give a lien on the vessel itself until taken on the attachment; and the remedy given by that act was not reserved by sec. 2, ch. 173, R. S., (which chapter repealed the act,) to a party whose proceedings were not instituted under the act before its repeal— such remedy not being a right accrued within the meaning of these -words as used in that section.
    Case reserved from Wayne Circuit Comí. Proceedings by attachment, under the act to provide for the collection of demands against boats and vessels, approved April 10th, 1839, Ses. L. 1839, p. 70. The complaint was filed on 26th October, 1847, and charged the injury to have been .committed on the 13th November, 1846. The act under which the proceedings were instituted, was repealed by ch. 173, R. S., which took effect 1st March, 1847. The defendant demurred, and the questions raised by the pleadings were reserved by the circuit court for the opinion of this court.

      Fraser and Bomeyn, for plaintiff.
    Vm Dylce and Emmons, for defendant.
   By the court,

Whipple, C. J.

On. the 26th October, 1847, the complainant filed his complaint under the fourth subdivision of section 1 of the act entitled An act to provide for the collection of demands against boats and vessels,” Ses. L. 1839, p. 70.

That section, among other things, provides, “ that every boat or vessel used in navigating the waters of this state, shall be liable for all injuries done to persons or property by such boat or vessel, in all instances where the same is shown to have occurred through the negligence or misconduct of the master or hands thereon employed.” The second section provides, that any person having a demand arising under the provisions of the first section, instead of pwseeeding for the reeoveij thereof against the master, owner or consignee of a boat or vessel, may, at his option, institute suit against such boat or vessel by name. The third section provides, that the complaint shall be filed with the clerk of the circuit court of the county in which such boat or vessel may be found. The fourth section requires, that the complaint should state the particulars of the plaintiff’s demand, and that it should be verified by affidavit. The 5th section provides, that upon filing the complaint, the clerk shall issue a writ of attachment directing the sheriff to seize the boat or vest sel, and detain the same in his custody until discharged by due course of law. The sixth section directs, that subsequent proceedings shall be had in the manner, as near as may be, as if suit had been instituted by summons against the person, <fce.

The remedy provided by the act is merely cumulative; that furnished by the common law proved ineffectual in many instances, from the difficulty of discovering or reaching those upon whom the law imposes a liability for the causes specified in the act. This, with other reasons, suggested a new and more efficient remedy by which rights could be successfully enforced. No specific lien is created by the statute until the attachment is actually served. The first section, it is true, declares the boat or vessel liable in certain cases; but this section, when construed with reference to other sections of the same law, shows how this liability is to be enforced. The remedy which the statute provides would have been .quite as effectual if the words which declare boats and vessels liable had been omitted. It it said, in the case of the Steam Boat Monarch v. Finley, 10 Ohio 884, that “ this law gives a lien upon such crafts for certain claims against them.” • As this question did not necessarily arise in. that case, thé decision of the supreme court of Ohio is not entitled to that respect which we should have felt bound to give.to it had the question been directly presented for its determination. Assuming, however, that the decision was deliberately made, it detracts much from its weight that the same court should have subsequently declared that the liability of- the boat or vessel “ is not in the nature of a lien.” The Huron v. Simmons, 11 Ohio 458. And in% case in 14 Ohio 72, the court affirm that a lien, in a technical sense, is not created, but that “ it is something which appropriates the property as effectually, if not more so, than ordinary liens.” The adjudications in Ohio do not appear to be consistent on the question as to whether, upon the accruing of a cause of action contemplated by the first section of our act, a lien at once attaches, These cases do not profess to discuss the question; and no decision which can be regarded as authoritative and binding upon the courts of that state, is to be found until the judgment of the supreme court was pronounced in the case of Jones & Watkins v. The Steam Boat Commerce, 14 Ohio 408, This case determines, “that the first section of the aet does not create a lien. It merely declares a liability, leaving the mode of enforcing it to the provisions made in the four next succeeding sections.” These views are in precise accordance with those expressed by this court at the January term, 1842, in the case of Moses v. The Steam Boat Missouri. We have examined the opinion in that case, and see no reason why it should not be deemed a sound and correct exposition of the statute. We, .therefore, take occasion now to re-affirm the doctrines of that case.

The learned counsel for the plaintiff was not advised, until the argument of the case, that a construction had been given to the statute in question by this court — the opinion never having been published. Had the fact of its promulgation been known, it must have narrowed a, discussion which assumed a wider range in consequence of the prominence given to a question which it was supposed had not been judicially determined. If a lien was, in point of law, created at .the time the cause of action is alleged to have accrued, the argument of counsel, and the authorities cited in their support, would have demanded the greatest attention, and would, perhaps, have authorized us to sustain the complaint on the ground that a right had accrued within the meaning of the saving clause of the general repealing -statute of 1846. As a lien did not attach, we are now to consider whether the complaint can he sustained upon other grounds.

The act of 1889 is repealed by chapter 173 of the revision of 1846; but it is declared that such repeal “ shall not affect any|aet done, or right accrued or established, or any proceeding, suit or prosecution had or commenced in any civil case previous to the time when such repeal shall take effect; but every such act-, right and proceeding shall remain as valid and effectual as if the provision so repealed had remained in force.”

It is contended that a right having accrued to the plaintiff, the proceedings were properly instituted under the act of 1839. The complaint was filed on the 26th October, 1847; the injury complained of, and which constitutes the cause of action, is alleged to have occurred on the 13th November, 1846. The repealing statute was approved May 18, 1846, and took effect March 1, 1847. The cause of action, •then accrued while the act of 1839 was in force; the complaint, however, was not filed until after that act was repealed, although more than three months intervened between the time when the cause of action accrued and the repeal of the act of 1839.

I hayo said, that the act of 1839 gave a new and cumulative remedy in certain cases therein specified. Instead of confining the party injured by the collision complained of, to the common law remedy by action on the case, it authorized a proceeding, differing in point of form, -though intended to accomplish the same object — -redress the injury. The essential difference between the two modes of proceeding consists in this, that after service of the attachment a specific lien is acquired, and the boat is liable to be sold to satisfy any judgment that may be rendered in favor of the plaintiff; while by the old remedy, no such lien could be acquired until after judgment and levy of execution. The practical questions, then, to be determined, arewhether the light to institute proceedings under the act of 1839, notwithstanding its repeal, is saved by the second section of chapter 173 of the revision of 1846; and if not thus saved, whether the repeal of the act is not inoperative -and void, so far as it purports to deprive the plaintiff of the remedy the act of 1839 provides for enforcing claims arising under it.

The consideration of these questions involves the distinction so often referred to in adjudged cases, between the right and the remedy. So close is the connection between what is denominated the right and what the remedy, that it is- often difficult to draw the line which divides the one from the other. No- right can; in legal contemplation, be said to exist, unless there be a’ remedy by which it may be enforced. Do the words “right accrued” secure to the plaintiff the right to proceed under the act of 1839, to enforce a cause of action accruing while that act was in force ? That the legislature did not so intend, is, I think, very clear, whether we consider the import of those words in connection with, or disconnected from other words in the same section.

We have said that the act of 1839 gave a new remedy for the wrong of which the plaintiff complains; he might, however, waive his light to proceed under that act, and avail himself of the old remedy. But it has been determined that under the act of 1839, no lien was created until the actual service of the attachment; how, then, can it be said that a “ right accrued,” when the plaintiff did not institute proceedings until the act was repealed. Had -the complaint been- filed and the attachment served before the repeal, the specific lien which would have been thus acquired- would, perhaps, have been such a right as the statute intended to preserve. It will not and cannot be contended that those words are so comprehensive as to embrace the right to sue in a particular form. If the mode of proceeding given by the act of 1839, excluded every other remedy for a- redress of the injury, and that act had been repealed without securing to the plaintiff a reasonable- remedy for a pre-existing right of action, then, perhaps, the arguments of counsel might hold good: for the right of action which had accrued being saved, would, by fair implication, include the remedy, without which the right saved could not be saved. In other words,- we would not attribute to the legislature the folly of saving a right, and at the same instant of extinguishing the only remedy by which it could be enforced. But the.legislature allowed the plaintiff more than three months after the act passed and before it took effect, to avail himself of the- particular remedy which that act gave — after which he was remitted to the remedy secured to him by the common law. But the construction for which I contend is supported by the context. It is declared by the second section, that the repeal should not affect any proceeding, suit, or prosecution had or commenced in any civil case, previous to the time when sucli repeal shall take effect;” and the fourth section saves all prosecutions for offences committed, and for the recovery of forfeitures and penalties. Why should these provisions have been deemed necessary, if the same object had been attained by the general saving clause so strongly, relied on by the counsel for the plaintiff? If it did not embrace the class of cases specially enumerated, how can it be argued that it embraces suits not pending at the date of the repeal ? The saving clauses contained in our general repealing- statute were borrowed from Few York, -and the words “ right accrued or established,” have received a judicial construction in the courts of that state. In the case of The People v. Livingston, 6 Wendell 526, Mr. Justice Savage, in commenting upon the saving clause of the second section of our general repealing act, uses this language : “ It cannot be denied that the legislature possesses the power to take away by statute what was given by statute, except vested rights^ As it is undoubtedly competent for the legislature to repeal absolutely, so it is competent, notwithstanding the repeal, to continue the old law in force as to- the proceedings commenced under it, to substitute another law in place of the old one, and to direct that all future proceedings in the progress of a cause or the prosecution of a right, shall be governed by such new law.” And again: “ It seems to me to have been the intention of the legislature to confirm all rights which had accrued — to be enforced, however, according to the new remedy.” These views were recognized and adopted in subsequent adjudications in that state. In the case of Bickford v. Boston and Lowell R. R. Co., 21 Pick. 109, the construction of the saving clauses in the Massachusetts Revised Statutes was called in question. In delivering the opinion of the court, Ch. J. Shaw declared, that “the purpose of the statute was to confirm existing rights.” These cases I will not analyze: but they all show very conclusively that the rights contemplated by the statute were such as were fixed and established, and not merely incohate and contingent. It is admitted that the grant or confirmation of a right will unquestionably carry with it, as an incident, the means necessary to its enjoyment. If, then, the object and intent of the provision which continues in force rights accrued or established, could not be carried into effect without preserving- the old remedy, we would so construe the provision as to preserve that remedy.

In the case before us the right of action was preserved, notwithstanding the repeal of the act of 1839. The remedy by attachment, however, was repealed, and the plaintiff was necessarily remitted to that provided by the common law. T-he question as to whether it would prove as efficient or convenient, it is not necessary to consider:

If, then, the remedy provided by the act of 1889 for redressing the wrong of which the plaintiff complains, was not preserved by the saving clause of the general repealing statute, I am at a loss to determine how the plaintiff can avail himself of the remedy, upon any reasoning to be deduced from the constitution, or from any principle of general jurisprudence with which I am familiar. The arguments of counsel, and the array of authorities by which those arguments were fortified, were and must have been founded-on the idea that the act of 1839 created a lien. But I have endeavored to show that no lien attached until a complaint was filed and an attachment actually levied. If so, those arguments, forcible as they might have been when applied to a state of facts like those assumed by counsel, can have no force, and the authorities cited no pertinency, when applied to a state of facts so essentially different from those assumed. The repeal of the act of 1839 violated no vested right, unless it can bo maintained that the plaintiff had a right to the particular remedy which that act provided for the several causes of action specified in the first section. To maintain such a proposition, would be pushing the doctrine of vested rights further than it has been-carried by any adjudication which has been or can be cited.

The power of the legislature to repeal existing remedies is unquestioned, unless such repeal violate rights protected by the constitution. If the effect of a repeal or modification of an existing remedy be to impair the obligation of a contract, it would be declared void, although it did not profess to act directly upon the contract. There are cases which would seem to imply that the federal and state constitutions do not contain the only limitations upon legislative power, and that acts which do not violate either may, nevertheless, be declared inoperative. I will not stop to discuss such a proposition, because it does not arise in the case before us. It may, however, he asserted that courts would find some difficulty in declaring any act of the legislature void, upon any general notion that it violated a great principle of right or of general jurisprudence. Courts have said and might again say, that they will not so construe an act of the legislature as that it shall work injustice, or impair vested rights; they will not intend that the legislature meant, under the forms of law, to do that which is repugnant to reason or justice. But I know of no limitations upon the legislative authority but such as are prescribed by .the constitution. The judiciary are armed with ail the power necessary to protect the citizen in his rights, without resorting to any$f the doubtful powers which have existed in the imaginations of judges, hut which have no real foundation in fact.

In the case before us, the plaintiff brings an action for a tort; the form of remedy he has adopted would have been justified had the act of 1839 not been repealed by the revised statutes of 1846; as it was repealed, and there is no provision in the repealing clause saving to the plaintiff the particular form of remedy prescribed by the act of 1839, although the cause of action accrued while that act was in force, it follows that the demurrer must be sustained.

Certified accordingly.

      For tliis case see Appendix.


author: Miles, J.

text:
    Abbott et al. v. Godfroy’s Heirs.
    Iii foreclosing a mortgage against the heirs of a deceased mortgagor, tlie personal representative of the deceased is not a necessary party, unless the personal estate is sought to he charged with a deficiency in the mortgaged premises to pay the debt.
    An agreement in writing, intended by the parties to give a lien on real estate for f the payment of a debt, though not witnessed as required by statute, to convey real estate, is good as ail equitable mortgage..
    The territory comprising the present state of Michigan remained under the control and jurisdiction of tlio British government until the year 1796; and the Ordinance of 1787, though made before that year, was not in force while the territory was under such jurisdiction.
    Where the hill charges an instrument to he a mortgage, ashs to have it foreclosed as such, and contains a prayer for other or further relief, the court may declare it to be amortgage, although there be no special prayer for that purpose in the bill.
    Lapse of time, in connection with non payment of interest and continued possessiorx of the mortgagor, unaccompanied by any effort on tbe part of tbe mortgagee to enforce payment, is not a legal but au equitable or presumptive bar, and tbe presumption may be rebutted by circumstances. “What circumstances will rebut tbe presumption, must depend upon tbe facts in each particular case.
    In cases of presumptive bar from lapse of time, tbe rule as to subsequent disabilities is different from that of tbe statute of limitations. Under tbe statute, the party must bring himself within tbe exceptions of tbe statute; whereas, in cases of presumptive bar, be may sliow any circumstance that outweighs tbe presumption.
    On June 18,1789, tbe ancestor of the defendants gave a mortgage, payable on 28th August, 1790. The mortgagee diedinl790, but administration on bis estate was not granted until 1835, and tbe year following abillwas filed to foreclose tbe mortgage. Held; tbe presumption of payment arising from lapse of time was overthrown by tbe fact that there was no one, from tbe death of tbe mortgagee, in 1790, until administration was granted in 1835, who could receive payment of tbe money and discharge tbe mortgage.
    Appeal from the Court of Chancery. A bill was filed in that court by complainants in January, 1836, to foreclose an alleged hypotheque or French mortgage given by G. Godfroy, the defendants’ ancestor, on the 18th June, 1789, to one Duperon Baby, to secure .the payment of £396 Os. 3d., New York currency, on the 28th Augne', 1790. The bill stated the making of the instrument before a notary public, and -that without any acknowledgment it was recorded in the county of Wayne in the year 1798; the- death of Duperon Baby in the year 1790, and that no proceedings to take out administration on his estate were had until 1835, when administration, on the 12th September of that year was granted to Jean B. Baby, who on the 30th of the same month assigned the instrument to complainants. It further stated that the mop.ey mentioned in the instrument was unpaid, principal and interest; that G. Godfroy died in the year 1833, and that he frequently recognized the existence and legal validity of the Instr\iipent.
    The court below dismissed the hill on the ground of the staleness of ihe demand, and that complainants had failed to establish and prove any facts or circumstances to take the ease out qf the opeartion of the generad rale of presumption of payment from lapse of time. From this decree the complainants appealed to this court. The case made by the pleadings and evidence is fully stated in the opinion of the court.

      Fraser <& Davidson, for appellants.

      Backus' <£• Sibley, for appellees.
   By the Court,

Miles, J.

On the 18th day of June, 1789, Gabriel Godfroy executed an instrument in writing’, before a notaiy public and in the presence of a subscribing’ witness, by which he acknowledged himself to be justly indebted to one JDuperon Baby in the sum of £396 Os. 3d., for value received from him, and jvhich. he promised to pay to him on the 28th day of. August, 1790, with interest at six per cent. And in order to secure the payment of this sum, Godfroy by the same instrument assigned and mortgaged a farm in the township of Springwells, on which he then resided, and declared that the same should remain mortgaged to Babjr, his heirs and assigns, as a security for that sum and interest until payment in full should be effected.

Duperon Baby died in 1790; and in 1835, in virtue of a special act of the legislature of this state, administration of his estate was granted to Jean Baptiste Baby his son, who on the 13th day of September of that year assigned this instrument to the complainants, and on the 27th day of January, 1836, they filed a bill hi chancery to foreclose it as a mortgage.

Gabriel Godfroy died in 1833, and his administrators were, with his heirs, made parties, defendants to the bill; but after answer put in by one of the administrators, the bill was voluntarily dismissed as to them.

The remaining defendants now insist that the administrators are necessary parties; and the conrplainajits having dismissed their bill as to them, cannot have a decree.

In England, excepit in cases where, on account of the insufficiency of the security in the mortgage, the bill prays an account of personal property as well as a sale of the land, the personal representative is held not to be a necessary party; and in such case, not on account of a prayer for a sale of the land, but because the party, in addition to the land, seeks to appropriate the personal assets to the payment of the debt.

The bill being only to foreclose the equity of redemption, the heir having the equity is the only necessary party. Edw. on Parties, p. 91, sec. 41, and the cases there referred to. 1 Smith’s Ch. Pr. 541.

Though the result of a proceeding in chancery in England to enforce the lien is generally a strict foreclosure, and although we in practico substitutes sale, yet the difference in the result does not change the character of the proceeding, which in both cases has in view the satisfaction of the debt.

If this bill sought to appropriate the personal assets of the estate to that object, the administrators, as representing- those assets, would be a necessary party,having an interest. 4 Blackf.R.381. This case having been decided under a statute similar to our own, is in point. It was held, the administrator was an improper party to a bill of foreclosure.

The provision of our statute,” making real estate assets for the payment of debts, gives no preference over specific liens before created on the land.

Mr. Edwards, in his treatise on Parties in Chancery, before referred to, says, “ in New York some practitioners make the executors parties, and join the heir with them, but this is incorrect; the heir is the only necessary partyp. 91, sec. 41.

It is next objected, that this instrument is not a mortgage at common law, and that it was made after the Ordinance of 1787 was in force in this territory; and that, since that time, lands in Michigan could only be sold or eneumbered by a deed, signed, sealed and attested by two witnesses. Ordinance of 1787, see. 2. If this is a good equitable mortgage, that is an answer to at least the first of these objections; and as to the latter, it may be replied, as a matter of history, that the territory comprising- this state remained under the control and jurisdiction of the British government until the year 1796, and that the Ordinance, though made before, was not in force until after that time.

The agreement in writing in this case is .express in its terms; .the intention of the parties is most manifest. The contract is not to be performed, but is executed. The meaning and intention was to create a lien on the land, to secure the payment of a pre-existing- debt. The transaction is not obnoxious to the objection that parol evidence is necessary to establish the claim, for the instrument itself states its object; and however much the policy of enforcing, as an equitable mortgage, the deposit of title deeds with a parol agreement to rerfect a legal security, may have been questioned, here no objection of that character exists: the intention is evident, and all the court have to do is to supply the legal deficiencies. See 3d Powel on Mortgages, 1049, and the cases there cited, in which express written agreements have been declared equitable mortgages.

But it is also insisted, that we canuot declare this instrument to be a mortgage because the complainants have not so prayed. The bill expressly charges that this instrument was intended as a mortgage, and asks to have it foreclosed as such, and contains the usual prayer for other or further relief. In a case where the defendant has submitted to answer, and where the case made by the bill warrants this decree, we see no objection to it for the reason assigned.

The next ground of defence is a presunqstion of payment arising from lapse of time. The defendants claim that this is a stale demand and that for this reason a court of equity wall not enforce it, but will presume it has been satisfied. One of the heirs sets up this defence in his answer: the other defendants, some of whom are minors, have put in only a general answer, denying all knowledge of the matters stated in the bill.

Lapse of time, in connection with non payment of interest and a continued possession of the mortgagor, unaccompanied by any effort on the part of the mortgagee to enforce payment, would warrant a presumption of payment of the debt-. This would operate as a satisfaction of the mortgage, and thus give repose to the title. This, however, js not a legal bar, but an equitable, a presumptive one, depending upon a principle co-existent with the earliest jurisdiction of a court of equity, without aid from any act of parliament; and courts of equity, by their own rules, give great effect to the length of time. Smith v. Clay, 3d Bro. Ch. R. 640, in note.

All the authorities agree that this presumption may be rebutted by circumstances. 4 Munf. 532; 4 Har. & McHen. 328; 16 John. Ch. R. 214, and the cases there referred to. And although there is some conflict as io the point whether the defendant must insist upon the bar, or whether the plaintiff, in a case bringing him within the rule, shall be required to state the circumstances which repel the presumption, the better opinion seems to be, that such circumstances as entitle the party to relief, notwithstanding- the lapse of time, should be stated in the bill. Foster v. Hodgson, 19 Ves. 180; 9 Peters 415.

Here the lapse of time appears upon the fece of the bill, which admits that no part of ¡the money has been paid; an<|. ¡as if -recognizing he rule which we have just mentioned, it goes on to state such circumstances as are claimed to be sufficient to outweigh the presumption, and still entitle the party to relief. The defendants deny all knowledge of these circumstances, and we think properly, and put the complainants upon the proof of them.

A question is also made as to the character of the evidence by which .this presumption is to be met and overthrown, the complainants insisting that slight circumstances are sufficient for this; the defendants, on the other hand, contending, upon the authority of several cases referred to, upon a bill to redeem, that the evidence should be clear, unequivocal, proceeding from witnesses rinimpeachable, and upon the whole of the most satisfactory character.

I can see no propriety in making the distinction insisted upon by the complainants, between the evidence necessary to rebut presumption of a grant, from lapse of time, and that required to outweigh a presumption of payment, from the same cause. In case of a mortgage the presumption is adopted as a rule of evidence for the same purpose in both instances, to wit: the repose of the title.

It may be safely remarked, however, that the earliest cases in which parol evidence of facts and circumstances to meet such presumption, was offered, were upon bills to redeem; and it was for some time doubted whether such evidence should be received, and it was not finally determined that it was competent until the case of Reeks v. Postlethwaite, Cooper’s Ca. in Ch. 164. That was a bill filed to redeem a mortgage, forty-nine years after the date of the mortgage, forty-three years from the time possession was taken by the mortgagee, and thirty-nine years from the time of the plaintiff coming of age.

In determining whether parol evidence is competent for this jrurpose, the vice chancellor has occasion to consider the rule as to twenty years barring the redemption, and declares it to be not an absolute rule, but a qualified rule, depending altogether upon circumstances'. After referring to several' cases in which the rule is departed from, as where there have been disabilities of the party, as infancy, coverture, beyond sea, and not only in cases of disabilities, but in receiving interest, keeping accounts, treating it in any wise as a deed or mortgage, he says; that “ such acts, and others of the sort, are sufficient to take the case out of the rule, and which may be solemn and deliberate acts or not, according as the party is attending or not attending to what is doing.” “There must he evidence that it is a subsisting mortgage.”

What precise act, then, will be sufficient ? The answer must he, any precise act. The acts need not be done with the other party; the mere ex parte acts of the mortgagee will be sufficient. Whether the presumption is rebutted, may depend upon a variety of circumstances, and must depend upon the facts in each particular case, as tending to justify or excuse the delay. 16 John. R. 214.

Anything is sufficient which repels the presumption that a man is always ready to enjoy his own, as that the party is a near relative. 12 Ves. 266.

The circumstances to induce a belief that this was a subsisting debt, are, that the mortgage was recorded in 1798, about eight years after Baby’s death, and two years after Iris family left this territory and removed across the Detroit river into the province of Upper Canada; and that as late as 1819, Godfrey sent a message to the heir, which is insisted to be clearly referable to the mortgage. Peter Godfrey, the witness, then lived at home with his father Gabriel Godfrey on this farm, and the message sent by him to Baby was, to come over the river, as they were about to levy on the farm.

There is no evidence to show that Baby had any other interest in this farm than byway of this mortgage; and holding that, and of so ancient a date, it was but natural Godfrey should wish to have him present to assert his claim when the levy was made. These things are strong to show an intention on the part, both of the heirs and of Godfrey, to keep the mortgage on foot for some purpose — for what purpose is now immaterial, if they treated it as a subsisting mortgage, which we think the evidence shows they did. The bill was filed within twenty years after this. But if we are mistaken in the inference drawn fr.om these facts, there is still another view of the case not inconsistent with the one we have been considering, which will bring us to the same conclusion.

It seems to be conceded in this case, that the general period which has been adopted for presumption of satisfaction of a mortgage is twenty years. The complainants contend that this period should commence from the time of administration granted, and not from the time the debt fell due; that until then there was no person competent to sue. Murray v. The East India Company, 5 Barn. & Ald. 204, is in point to snow that where the cause of action accrues after the death of the intestate, the period of the statute of limitations commences from the time of administration granted, and for the reason that there is no person to sue until the administrator qualifies. This reason fails where the debt falls .due before the death. In such case there is a person capable of suing, and a subsequent disability will not take the case out of the statute. 16 John. R. 214.

It does not appear, from the evidence in this case, whether Baby died before or after the day when this demand fell due. It is not affirmatively shown that he died before that time, and the evidence seems to be insufficient to bring the case within the principle of Murray v. The East India Company. But in case of a presumptive bar from lapse of time, the rule as to subsequent disabilities is different from that under a positive bar created .by the statute. 16 John. R. 214.

In a case under the statute, the party, to avoid its effect, must bring himself within some of its savings; whereas, in a case like the present, he may show any circumstances which outweigh the presumption.

It seems to be well settled, that mortgages being part of the personal estate, belong to the personal representatives of the mortgagee after his death, and not to his heirs. See 7 Bac. Ab., Tit. Mortg. E. p. 84, and the cases there referred to, which show that in this matter equity follows the law; that the money shall go into the personal estate, because it came out of it, and that the land is a mere pledge.

The executor of a mortgagee is a proper person to file a bill to foreclose. Where a reconveyance is required, the heir must also be made a party, but for that purpose only. It only remains necessary to apply this principle to the case before us.

It appears that from the time of the death of the mortgagee in 1790 until the appointment of the administrator in 1835, there was no person to whom payment could bo made, who was authorized to discharge the debt. Payment to the heir would have been no protection against an action by an administrator, subsequently appointed.

The period, then, if any existed, in which payment could have been made, before administration, was in the year 1790, between the time when the debt fell due and the death of Baby, but this not being shown affirmatively, we cannot intend it.

If that fact was necessary to meet the circumstances set up) by the complainants to overthrow the presumption or to render them insufficient for that purpose, the defendant ^should have proved it. If, then, we are correct in this view, it would seem that, although the general presumption of payment arises from lapse of time, still, if it ap>pears that payment was impossible, that must repel and overthrow such presumption.

From lapse of time during which payment ought to have been made, arises a presumption that it was made: this is met by evidence that the parties- were so situated that it could not be ma'de. This gives the defendants the full benefit of the pwesumpffion, and p)uts the complainants upon proof aliunde, to show why payment was not made. So a period during which a plaintiff is disabled to sue has been repeatedly held to be properly deducted from the time necessary to make out the presunrption. 10 John. R. 411; 16 id. 214.

But it was said, if this was a subsisting debt, administration would not have been so long delayed. To this it might be replied, and equally well, if the demand had been paid, administration would never have been taken, unless we say, what we have no right to say, that there were other demands owing to the estate,- of which we have no evidence. This delay to administer} in my judgment, proves nothing one way or the other.

Upon the argument, great stress was laid upon, the staleness of the demand, and the consequent disfavor the case would receive in a court of equity. It is true the court does not countenance or encourage negligence, and why ? because that negligence furnishes evidence upon which to build a presunrption that the right claimed has been abandoned.

It is said that lapise of time is permitted in equity to defeat an acknowledged right, on the ground only of its affording evidence of a presumption that such right has been.abandoned. It never prevails where the presumption is outweighed by opposing facts and circumstances. Nelson v. Cunningham, 4 Munf. 532; 3 Har. & McHen. 328.

Having come to the conclusion that the delay in this case is accounted for, upon legal principles, it would be equally inequitable to withhold relief upon this claim, as it would upon one of a more recent date.

It results from this, that the decree of (he chancellor dismissing the bill must be reversed.

Decree reversed.


author: Green, J.

text:
    May v. Specht et al.
    The stipulations contained in the treaty of London, known as Jay’s Treaty, for the protection of tlio rights of property, imposed no new obligation upon the government .of the United States, but were only in affirmance of the law of nations.
    On the 1st July, 1796, and prior thereto, C. was in possession of certain lands which he conveyed by warranty deed, in February, 179S, to M., who took possession of them under the deed from C., and, in October, 1800, by warranty deed, in which his wife did not join, conveyed them to P., who took possession under the deed to him. Ly an act of Congress, entitled an act regulating t-ho grant of lands in the territory of Michigan, approved March 3d, 1807, it was provided that the fee simple of any tract or parcel of land that was settled, occupied andimproved prior to the 1st day of July, 1796, should be granted to the person or persons in the actual possession, occupancy and improvement thereof, and commissioners wore appointed for the purpose of ascertaining and deciding on'the rights of persons claiming the benefit of the act-. P. claimed the premises before the commissioners under the aforesaid deeds and his possession of the land under them, which claim was allowed, and a patent was subsequently issued to him for the land by the government. In an action brought by the widow of M. for her right of dower, IMA, she was entitled to dower therein.
    Error to Wayne Circuit Court. Margaret May brought ejectment, in the circuit court against the defendants, for her right of dower in certain premises conveyed by her husband, James May, in October, 1800, in. which conveyance she did not join, to James,Peltier, under whom defendants claimed title. The parties agreed on a case or statement of facts, in the court below, which it is unnecessary to give here as the facts are fully stated in the opinion of the court. Plaintiff having failed to sustain her action in the circuit court, brought the cause to this court by writ of errror.

      Davidson, for plaintiff, in error.

      Joy, for defendants in error.
   By the court,

Green, J.

The question in this case, is, whether James May, the husband of the demandant, was so seized of the premises demanded as to entitle his widow at the common law to dower therein, which is defined to be “ the third part of all the lands whereof the husband has been seized during the coverture, of such an estate as the children by such wife might by possibility have inherited, and to which, by the death of her husband, the wife is entitled for her life.” 3 Bac. Abr. 191.

The land was conveyed by warranty deed indented, bearing' date the 1st February, 1798, from Catharine St. Aubin, widow and representative of the late Claude Campau, and Bernard Campau, her heir apparent, to the demandant’s husband, to whom, on the second day of February, in the same year, peaceable and quiet possession and seizin of the same was delivered by the grantors in the presence of witnesses, according to the form of delivery then used. Bernard Campau, one of the grantors, was in possession of the premises prior to the 1st July 1796.

On the 10th October, 1800, James May, by warranty deed indented, conveyed the premises to James Peltier, who entered into possession of them, and continued in possession imtil he received the patent therefor from the government of the United States, pursuant to the act of Congress of 3d March, 1807.

James Peltier claimed the premises before the commissioners named in said act, under and by virtue of the deeds of conveyance aforesaid, and his own possession thereunder, which claim was established, and al’ lowed by the commissioners on the 18th day of July, 1807,

The, marriage of the plaintiff with James May'in 1797, and his death in 1829, were admitted on the tidal, and it was also admitted that the defendants were in the peaceable possession of the premises, or some portion thereof, deriving title thereto through and from Peltier,

It was supposed on the argument of this cause by the counsel for the plaintiff, that by the treaty of London, known as “Jay’s Treaty," the possession of May’s grantors was assured to them as a title to the land, and vested the property in them. By reference to the facts in this case it is apparent that that treaty can have no application, having been com eluded in 1Y94, and ratified in 1Y95, and it not appearing that they were at that time in possession of the land. Moreover, the stipulations contained in the treaty for the protection of the lights of properly, imposed no new obligation upon the government of the United States, but were only an affirmance of the law of nations. 5 Wheaton 518; 4 Peters 512; 9 id. 711, 712; 7 id. 87.

It is then contended on the part of the plaintifij that the confirmation of the title in James Peltier was a confirmation of the title in every one from or through whom he claimed title, and, by relation, made such title as good and effectual for all purposes, as if the confirmation had been made to May’s grantors, who were in possession on the 1st of July, 1796; or that, if such was uot the legal effect of the patent to Peltier, yet he and those claiming under him are estopped by his deed from May from denying the title in May which his deed piuports to convey.

First, then, as to the effect of the confirmation of the title in Peltier; and this must depend upon the true construction of the act of congress before referred to.

The second section of that act provides, “That to every person or persons in the actual possession, occupancy and improvement of any tract or parcel of land, in his, her or their own right, at the time of the passing of this act, within that part of the territory of Michigan to which the Indian title has been extinguished, and which said.tract or parcel of land was settled, occupied and improved by him, her or them, prior to and on the first day of July,-one thousand seven hundred and ninety-six, or by some other person or persons under whom he, she or they hold or claim the right to the occupancy or possession thereof, and which said occupancy or possession has been continued to the time of passing this act, the said tract or parcel of land thus possessed, occupied and improved, shall be granted, and such occupant or occupants shall be confirmed in the title to the same as an estate of inheritance in fee simple,” U. S. Land Laws, 545, 546. The third section of the same act provides for the issuing of certificates to the claimants, and for the issuing of patents in like manner as for other lands of the United States,

For the defendants it is claimed that ah who occupied the lands prior to the patent to Peltier, were and are still to be treated as intruders upon the public domain, and that the title being in the government, May had no seizin upon which his widow can claim dower.

It must be conceded, from the facts appealing upon the record, that the paramount legal title was in the. government up to the time of the issuing of the patent to Peltier; and that if the act of the 3d March, 1801, had not been passed, and this parcel of land had been granted by the government to a stranger who should have purchased under the general laws for the sale of government lands, such jmrohaser, for anything that appears in this record, would have thus acquired a legal adverse, and paramount title.

In order properly to determine the'effect of this grant, it becomes necessary to inquire what would have been the rights of the plaintiff, as against the defendants, had no legislation been had by congress in reference to the land, and no act done hy the government asserting its title. In Bowne v. Potter, 17 Wendell, 167, Mr. Justice Nelson lays down the well established rule as follows: “ Under our modem deeds of conveyance, the grantee in fee, talcing- possession, may defend successfully his title and possession against all the world, except the true owner. This position he acquires by means of his conveyance and possession, and until evicted hy the paramount title, there seems to he no good reason for extending to him the favor of disputing the title under which he enters and holds. While undisturbed, he is enjoying the estate granted, and it is to be presumed that he has provided, by proper covenants, against ány future failure of title and eviction.”

The delivery of the deeds, both to and from May, as well as from Peltier, or his grantees, to the present defendants, having been accompanied hy an actual delivery of the possession, and the full and entire enjoyment of all the estate granted, there can he no doubt in the case supposed that the plaintiff would have been entitled to her dower; nor could there he any doubt, in that case, that a prior mortgage executed hy May, would have held the premises as against Peltier or his grantees, and that upon a foreclosure of the equity of redemption, the mortgagee would have a right to remove any occupant from the possession of the premises, unless such occupant he in hy title paramount.

In tire case of Bancroft v. White, 1 Caines’ R. 185, which will be noticed hereafter for another purpose, the paramount title to the land in question, when entered upon by Hawes, the husband of the demandant, and when he conveyed the same was in the state, and it was insisted that his -possession was an usurpation or intrusion upon the jrablic domain of the state, and not a seizin; while it was conceded that in any other case but that of lands so circumstanced, his possession might be a seizin. Kent, J., in delivering the opinion of the court, says: “ The court-do not regard lands in the town of Canaan as an exception to the general rules which would apply in case the suit had been for lands in another town.”

Assuming, then, that the plaintiff would be entitled to recover had no action been had by congress affecting that right, we are prepared to consider the effect of the patent to Peltier. And here it may be remarked, that if the act of congress under which the patent issued, declares, in clear and explicit terms, what its operation and effect shall be, there will be no occasion to consider the p>ower and effect of patents issued under the general laws relating to the sale and disposition of the public lands. In the section of the act before recited, we find a recognition of the several legal rights in reference to these lands, under which other lands may be possessed. The person who is to receive the patent must be in possession in his or her own right, and not in the right of another, at the time of passing the act; and the land must have been so occupied by him or her, prior to and on the 1st day of July, 1^96, or by some other person or persons, under whom he, she or they hold or claim the right to the occupancy or possession thereof. Under such circumstances the land is to be granted, and such occupant or occupants shall he confirmed in the title to the same as an estate of inheritance in fee simple. What title is the occupant confirmed in by this grant ? The title under which he held at the time of the passing of the act; and not a new title created in him by the patent. Any other construction of this language, would involve the absurdity of vesting a man with an adverse title, based upon and in affirmance of the title under which he claims and holds the lands in question. But this_is a mere voluntary release by the government — a recognition of the truth and justice of the claim of the occupant, and cannot, by any fair construction, be treated as an assertion of the paramount title of the government, in opposition to such claim.

It would seem to follow, as a necesssary result, that the confirmation of the title in Peltier, which extinguished the title of the government, must forever prevent those who derived their title through him from setting up the government title in opposition to the one under which Peltier lielcl at the time of the confirmation: in other • words, that the confirmation by the patent to Peltier must be treated as taking effect, by •relation, upon the title of May; and confirming it as an estate of inheritance in fee simple in him, entitling his widow to dower.

The case of Bancroft v. White, before referred to, was not as strong in favor of the demandant as this. Hawes, the former husband of Lois Bancroft, during the coverture, entered upon the demanded premises, and held and used the same in his own right for several years, and on the 1st of November, 1786, by deed of bargain and sale, conveyed the same to Jacob Brooker, in fee, with covenant of warranty. On the 8th of June, 1795, Brooker and wife conveyed the premises by a similar deed to Gardner, and on the 23d of September, 1799, Gardner and wife, by a similar deed,- conveyed the same promises to White, the defendant. Each of the several grantees entered by virtue of his deed, and occupied in his own right.

By an act of the legislature of the state of New York, entitled “An act for the sale and disposition of lands belonging to the people of this state, and for other purposes therein mentioned,” passed the 22d day of March, 1791, it was enacted as follows, to wit: “That all the estate, right, interest, claim and demand of the people of the state of New York of, in and to any lands, tenements or hereditaments in the town of Canaan, in the county of Columbia, now possessed by any person or persons, shall be, and hereby is, granted to the respective possessors of such lands, tenements and hereditaments, and to the heirs and assigns of such possessors, respectively, forever: provided always, that such possessors shall be construed and taken to be the person or persons holding in his or her own right, and not occupying and improving in the right of another.” Here the lands &c. were granted to the person or persons in possession,.and. to the heirs and assigns of suc7i person or persons, and no words of confirmation are used in the act, and no reference is made, unless implied from the language of the proviso, to any title or claim of title, which might have existed in any prior occupant or other person. Yet the court in that case say, “in the present case the tenant claims in fee under title derived from the husband,” and judgment was rendered in favor of the demandant.

From the view we have thus taken of the case, it becomes unnecessary to consider the severe and rigid doctrine of estoppel, as it has often been applied, to shut out facts, and override the principles of natural justice and good conscience between men.

It is said on bebalf of the defendants, that this claim of dower is against equity, conscience and justice, and ought not to be allowed but upon the ground of strict law only; and that the very claim of dower now set up was warranted against and paid for.

We are by no means disposed to strain the provisions of law, or make them expand to embrace this claim; on the contrary, we place it entirely upon strict legal ground. As to its justice, it may be remarked* that the warranty against it is the protection of the party against injustice, and shows that it was in the contemplation of the parties when the covenant was made. The covenant of warranty of quiet possession runs with the land, and must be presumed to be an ample protection against the assertion of the right of dower, being that which the purchaser has provided for himself.

The judgment of the circuit court must be reversed, with costs to the plaintiff in error, and a new trial granted.

Judgment reversed.