text:
    The President and Trustees of the Village of Romeo vs. Chapman.
    ^Section 31, Chapter 41, R. S., p. 188, provides that all penalties and forfeitures imposed by that Chapter, “ when incurred fór any acts done in any incorporated city or Tillage, may be recovered by suit brought in the corporate name -of the city or village,” &c. And Sec. 1 of the act incorporating the village of Romeo, (Sess. L. 1837 & ’8, p. 87,) after describing the territorial limits of the village, provides that the same shall thereafter be known by the name or title of The Village of Romeo; and the fifth section provides that “the president, recorder, and trustees of said village shall be a body corporate and politic, with perpetual succession, to be known and distinguished by the name of The President and Trustees of the Village of Romeo, and that they might sue and be sued, defend and be defended,” &e. Held, that an action brought by the Village, to recover a penalty under said Chapter 41, should be in the name of the Village of Romeo, and not of the President and Trustees of the Village.
    Error to Macomb Circuit Court.
    This was an action brought by the plaintiffs in error, to recover of the defendant in error a penalty, under Chapter 41, R. S., for selling spirituous liquor contrary to law. The only question in the cause was, whether the action was properly brought in the name of the plaintiffs in error.

      Terry & Fraser, for plaintiffs in error.

      B. P. Fldredge, for defendant in error.
   By the Court, Green, J.

The only question involved in this case is whether the action was properly brought in the name of the plaintiffs in the Court below, or whether it should have been brought in the name of “ The Village of Romeoor in other words, what is the corporate name of said village within the meaning and intent of section 81, chapter 41 of the Revised Statutes. That section provides that “ all penalties and forfeitures imposed or prescribed in or by this chapter, may be recovered m an action of debt, and when prosecuted for by a supervisor, shall be so prosecuted in the name of such supervisor, for tho use of the township where said act or acts shall have been violated; and such penalties and forfeitures, when incurred for any acts done in any incorporated city or village, may he recovered by suit brought in the corporate name of the pity or village in which the act was done whereby such penalty or forfeiture was incurred.”

The preceding section is as follows: ■ “ It shall be the duty of the supervisor of each township, and the corporate authorities of each city and village,' to prosecute for all violations of the provisions of this chapter coming to his or their knowledge, or when complaint of any such violation shall be made by any legally qualified voter; and for every refusal or neglect of any such supervisor or corporate authorities-so to prosecute he or they shall forfeit and pay the sum of twenty-five dollars.”

There can be no question under these provisions of the statute, but that the corporate authorities of the village of Romeo are the proper persons to bring suit, and it is not denied that the plaintiffs in this suit are such corporate authorities. But it is contended that their corporate name is not the corporate name of the village. This must be determined by the act of incorporation, (Laws of 1837-8, page 87.) Section 1 of that act provides “that all that part or tract of land embraced within the following limits, to wit: (describing it) be and the same is hereby constituted a town corporate, and shall hereafter be known by the name and title of ‘The Village of Romeo.’” The act then provides for the election of a president, recorder, and six trustees of the village. The 5th section enacts that “the president, recorder, and trustees of said village shall be a body corporate and politic, with perpetual succession, to be known and distinguished by the name of “The President and Trustees of the Village of Romeo,” and may have a common seal, which they may alter at pleasure, may sue and be sued, defend and be defended, in any Court of competent jurisdiction.” The name by which the president, recorder, and trustees are incorporated by the 5th section, does not import that it is the name of a village; but that it is a name by which the village may be represented, and through which certain powers may be exercised in behalf of the village. They are not invested with all the powers of the town corporate, which is created by the first section. By section 9, the electors of said village, in legal meeting assembled, are empowered to lay taxes on all real and personal estate within the limits of said corporation, not exceeding one-half of one per centum upon said real estate in any one year; and to regulate and improve the lanes and alleys, and to determine the width of the side walks; none of which powers are conferred upon the president and trustees.

It is not questioned but what it was competent for the Legislature to authorize suits to be brought for any violation of the license laws in such name as they thought proper. But it is said that the tract of land described in the 1st section of the act to incorporate the village of Romeo, and which is therein declared to be a town corporate by the name of “The Village of Romeo,” cannot sue; that it embraces only the territory within the prescribed limits, with the houses, brick, mortar, &c., of which the buildings thereon are composed. Admitting this to be so, does it advance the argument, while the power of the Legislature is conceded? I apprehend not. It appears to me, however, that while the náme of the town corporate is descriptive of a certain territory, it also embraces the persons who constitute its inhabitants. By the 3 Hen., V, Chap. 1, it was enacted that when a murderer should escape ,untaken in a town, in the day time, the town should be amerced; and by 1 Rich. 2, Chapter 3, towns were made amenable to the King for felon’s goods, which might be seized by them. Neither the houses, nor the brick and mortar of which they were composed, could arrest a murderer, or seize the goods of a felon, yet by these statutes, the towns were made responsible.

Again: it is said that a corporation cannot have two names. That is a sound general proposition, but does not affect the question presented by this case. Townships, which are bodies corporate, may sue in the names of such townships, (JR. S., ch. 16, § 7; cA 119 § 2,) and for the recovery of penalties for violation of the license laws, supervisors may prosecute in their own names, for the use of their townships, (eh. 41, § 31.)

There is but little uniformity in the acts incorporating towns and villages in this State, and it was said upon the argument that several villages vrere incorporated without any other name than that by which the principal officers were incorporated, and the act to incorporate the village of St. Mary was referred to as oae of that character. (Laws of 1849, p. 336.) By the first section of that act, all the citizens of this State, inhabitants of and included within certain limits therein prescribed, are constituted a body corporate, by the name of “The President, Trustees and Citizens of the village of St. Mary.” Biit by the 5th section of the act to incorporate the village of Borneo, only the president, recorder and trustees are incorporated, and the citizens are not included, so that, if the citizens are corporators under the last mentioned act, they are so by virtue of the first section. It would seem most consistent then, that "when a suit is prosecuted for the benefit of the citizens of a town, it should be prosecuted by the name by which such citizens are known in their corporate capacity, rather than in the name of a corporate body which as such, has no interest in the matter.

In the case of Smith, plaintiff in error, vs. The Village of Adrian, defendant in error, decided at the last October term of this Court, it was held that the suit was properly brought in the name of the village, instead of being brought in the name of “ The Common Council of the village of Adrian.” The act under which the question arose in that case, is similar in its provisions, so far as this question is concerned, to the one under consideration, (Laws of 1841, p. 66,) and though it was not much discussed in that case, I s.ee no reason to depart from the decision then made. • The act expressly prescribes what shall be .the name of the village, and by that name alone can the corporate author-ties sue under the provisions of chapter 41, section 31 of the Bevised Statutes.

The judgment of the Circuit Court must be affirmed, with costs to the defendant in error.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court, Pratt, J.

license: Public Domain

text:
    Sacket et al. vs. Hill et al.

    An injunction •will not be dissolved on affidavits, except in cases of waste and of partnership.
    Case reserved from Washtenaw Circuit Court in Equity. A motion was made to dissolve an injunction on affidavits, instead of on answer. The motion was opposed on the ground that the injunction could not be dissolved on affidavits; and by request of counsel, the question raised by the objection was reserved for the opinion of this Court.

      O. Hawkins, for complainant.

      Bamsdell & Moore, for defendants.
   By the Court, Pratt, J.

It is a well settled general rule, in equity practice, that a motion for a dissolution of an injunction, must he founded on an answer to the bill; and that affidavits cannot be substituted for an answer. (1 Hoff. Ch. Pr., 360-'1, and the cases there noted; 3 Bland., 442; 2 Haywood R., 151; 4 Bridgman's Digest, 11; Eden on Injunctions, 116; and also Mr. Daniell’s Eng. Ch. Practice.)

This is the only general rule on the subject, that can be safely adopted in practice. “ If affidavits,” says Mr. Hoffman, “ were allowed to be substituted for an answer, the complainant would be deprived of all benefit of exceptions.” The reason as well as the utility of allowing exceptions to be taken to matters set up in defense, to the case made by the bill, and upon which motions for dissolutions of injunctions are ordinarily predicated, must be obvious to eveiy practitioner in equity. From this general rule, two classes of eases are excepted; cases of waste or irreparable mischief, and cases of partnership; this case not falling within either of these, two excepted classes, it is the opinion of this Court that the objection was well taken, and that the motion should be denied.

Case to be certified accordingly. •


author: By the Court, Green J.

text:
    Daniels vs. Mosher.
    A witness cannot be allowed to testify as to his opinion, based upon the testimony he may have heard given in a cause, unless it be in a matter of skill, and the witness be an expert.
    In a contract between D. and M. to clear land, M. was to chop all the timber suitable for rail cuts into rails, and all the other timber and brush, except some trees to be left for shade, he was to cut and burn. A portion of this last timber was cut into fire-wood and sold by M. — no objection thereto appearing to have been made by D. Held, That under the circumstances, the law did not imply a promise by M. to' pay D. for the timber so cut into ' firewood and sold by M., and that a claim therefor could not be set off by D. in an action brought against him by M. on the contract, to recover the price agreed on for clearing the

      Error to Jackson Circuit Court.
    Mosher, the defendant in error, sued Daniels, the plaintiff in error, in . 1845, before a justice of the peace in the county of Jackson. The declaration was in assumpsit, and the first count was upon a contract entered into between the parties in 1843, by which Mosher agreed to clear twenty acres of land for Daniels, in a particular manner, and with-' in a certain time; in consideration of which, Daniels was to pay Mosher one hundred dollars. Mosher was to chop all the timber suitable for rails, into rail-cuts, and draw them upon the south ¡side of the lot; and all the other timber and brush, except some small trees to be left for shade, he was to cut-and burn clean, fit for plowing. It was stipulated in the contract, that if Mosher should not ciit the small timber and bushes as low as Daniels should direct in presence of a witness, then Mosher should leave the job immediately after Daniels should give him written notice so to do; and that if Mosher should leave the job after receiving such notice, ho was not to receive any pay for what he should then have done on the job. It was further stipulated, that if Mosher should not pile and burn the logs and brush by the 20th day of May, 1844, then, and in that case, Daniels should get three disinterested men, at Mosher’s expense, to go on to the land and say what the work done by Mosher was worth, and that Mosher should receive but two-thirds as much as such men should say it was worth.
    The plaintiff averred performance of the contract on his part, and refusal by Daniels to pay, &c. Daniels plead the general issue, and claimed by way of set off, amongst other things, the value of the wood and timber upon the land embraced in the contract, which had been used or disposed of by Mosher. :
    On tire ' trial before the justice, the plaintiff proved by several witnesses who had examined the premises, that the job was completed 'on the 20th day of May, 1844, in aj good and workmanlike manner, and some of them testified that the work was done better than any job they had ever seon done; and all the witnesses sworn on either side, agreed that the land was cleared so as to be in good condition for plowing. Ho attempt was made to show that Mosher had over been notified to leave the job. Daniels proved on the trial, that on the 29th of Maj-, 1844, he had procured three men to go upon the land and appraise the value of the work done by Mosber, and that they appraised it at ninety-seven dolíais; but it was not shown that Mosher had any notice of this proceeding. It also appeared from, the testimony that Mosher had cut a large quantity of fire wood on the land, which he had sold, and that it was worth about 6c per cord in the tree; but this testsmony was taken, subject to an objection, and nothing appears to have been allowed by the justice, on account of the wood.
    The plaintiff below, after the other testimony in the case had been given, called throe witnesses, whom he severally asked if they had heard the testimony in the cause; and upon their answering in the affirmative, they were severally asked whether, from the testimony given, they should think the job was done in a good and workmanlike manner. This question was objected to, on the ground that it was the province of the Court and not of the witnesses, to judge of the power and effect of the testimony. The Court overruled the objection, and the witnesses severally answered that they should say the job was done in a good and workmanlike manner.
    There was an indorsement of sixty-five dollars paid on the contract, and there were several small items of account between the parties proven upon the trial.
    The justice Tendered judgment in favor of the plaintiff below for $30, 84 damages and $5 costs of suit, which judgment was removed by the plaintiff in error by writ of certiorari to the Circuit Court for the county of Jackson, where the judgment of the justice was affirmed.

      P. Farrand, for plaintiff in error.

      D. Johnson, for defendant in error.
   By the Court, Green J.

It is insisted that the judgment of the Circuit Court ought to be reversed because the, justice erred,

1. In overruling the objection to the question put to the witnesses by the plaintiff below, whether, from the testimony, they should think the job was done in a good and workmanlike manner; and .

2. In disallowing the value of the wood and timber sold by Mosher from the job, as a set off in favor of the defendant below.

Another error is insisted upon, relative to the admission of jrarol testimony as to the understanding of the parties concerning the wood and timber on the land to bo cleared, which, according to the view I have taken of the question, is immaterial and does not require to be noticed.

The first objection is well taken. The justice erred in receiving the testimony. The rule is too clear and well understood to require a reference to authorities, that a witness cannot be allowed to testify as to his opinion based upon the testimony he may have heard given in a cause, unless it be in a matter of skill, and the witness be an expert. But was this an error affecting the merits of the controversy. I think not. The justice certifies that he has returned all the evidence in the case. Several witnesses had testified that the job was well done, and there does not appear to me to have been any conflicting testimony upon that point.

Some of the witnesses speak of seeing brands left on the land the size of a man’s foot, and of some heaps of brush burned out in the middle with short brands around the edges, and of a stick eight feet long and as large round as the crown of a hat; and one witness says that some of the brush might have been cut lower. If Daniels had been dissatisfied with the manner of the work, he had a most ample remedy under the contract, by giving Mosher notice to leave the job. This he did not do, nor is there any evidence that he expressed the least dissatisfaction while the work was progressing. It must therefore be regarded as having been done according to the contract and to his satisfaction. Besides, the deficiency if any, on the part of Mosher, was of too trifling a character to bring him within the hard provisions of the contract which would subject him to a forfeiture of one-third of the actual value of his labor. To suppose that Daniels intended by that provision of the contract to subject Mosher to such a forfeiture, in case of a failure in the minutest particular, would be to impute to him an intention to do the most flagrant and reprehensible injustice. Setting aside the testimony so erroneously admitted, the result must have been the same. This cannot therefore be regarded as an error affecting the merits of the ease.

By the contract, Mosher was to cut and. bum. all the timber and brush, except such as was suitable for rails, and such as was to he left for shade. Instead of burning it all on the ground, he cut a portion of it into fire-wood, and sold it. There is no evidence that Daniels made any objection to his doing so. Do these circumstances establish an im- • plied promise to pay the value of the timber ? I think not. The same result was effected by the disposition which was made of the timber,, as if it had been burned on the land; that is to say, the land was prepared for cultivation. There is no pretense that Daniels was injured by this departure from the letter of the contract; and if Mosher deri- • ved a benefit from it, that does not constitute any ground of claim by Daniels. Both the letter and spirit of the agreement preclude all idea of a claim by Daniels on account of the timber. The justice, therefore, did not err in disallowing this claim, as a set off, without reference to the parol evidence of an understanding between the parties that Mosher was to have the benefit of it, which was entirely immaterial.

The judgment of the Circuit Court, affirming the judgment rendered by the justice, must he affirmed, with costs to the defendant in error.-

Judgment affirmed.


author: By the Court. Green, J.

text:
    The People ex rel. Anderson vs. Township Board of Le Grange.
    A township board has no power to review the proceedings of the commissioners of highways, in laying out and establishing a road, except on an appeal to them under the statute; nor to review the proceedings of the appraisers, except so far as to see that they are not void for want of jurisdiction. Mere irregularities which would not render the proceedings abse* lutely void, questions involving the merits of the controversy before the commissioners or appraisers, and fraud or misconduct in the parties or officers, cannot be inquired iuto by the township board upon an application for an order on the treasurer for the amount of damages assessed.
    Section % chapter 25, R. S., 133, makes it the duty of the township clerk, on receiving an order from the commissioners of highways laying out a road, forthwith to post a copy of such order on the outer door of the house or building where the township meeting it? usually held, or if there be no such house or building, then in one of the most public places in the township. "Where it appeared a copy of the order was posted up on an inside door of a tavern, which was one of the two places in the township at which the township* meetingwas held alternately, it was held,.

      1st. That there was no house or building within the contemplation of the statute, where the township meeting was usually held.
    2d. That the Court would'presumo, in the absence of any showing to the contrary, that the tavern whero the notice was posted, was one of the most public places in the township.
    A township is not liable for interest on damages appraised for laying out a highway.
    ■On a motion for a peremptory mandamus, the Court will not allow the relator to amend his order on the respondent to show cause, where it is too broad and asks more than he is entitled to, so as to include that only to which he is entitled.
    An order to show causo why a peremptory mandamus should not issue, has in this Court been uniformly substituted for an alternative mandamus.
    An alternative mandamus is answered by a return, which is in the nature, and perforins tho duty of a plea; whilo the ordor to show cause, like all other orders of a similar character, is answered by affidavits.
    Motion for a peremptory mandamus.
    N Bacon, for relator.

      Smith & S'teioart, for respondent.
   By the Court. Green, J.

This is an application for a peremptory mandamus to compel the township hoard of La Grange, to draw their order in favor of the relator, upon the township treasurer, for the sum of $350, damages apjnaised to him upon the laying out and establishing a highway upon his lands, with the interest thereon.

Upon filing the affidavit of the relator, a rule was made at a previous term of this Court, that the respondents show causo; and the respondents, pursuant to such order, have filed a statement of their objections to the issuing of the writ, supported by affidavits.

The facts, so far as it is necessary to advert to thorn for the purpose of deciding this application, are in substance as follows :

On the 17 th day of August, 1847,-the commissioners of highways of La Grange, upon application duly made . to them, and due notice' given, laid out a highway upon and across the lands of the relator. On tho 23d of August, 1847, an order of the commissioners establishing the highway and embracing' a particular survey and description of it, was filed with the township clerk and by him recorded, and immediately or soon thereafter, the township clerk posted up a copy of the order on an inside door of the tavern of Mr. -Bamum, whore the township meetings were held one-half the time, or every alternate year. No ap.peal was taken front the determination of the commissioners within the time limited by the statute for that purpose, after the order was so posted up. Oñ the 16th of February, 1848, the commissioners gave notice in writing to the relator, to remove any of his fences which obstructed or encroached upon said road, in seventy days from the date of the notice; and on the 12th of March, 1849, the road was opened to be worked. On the 22d of March, 1849, the relator applied to a justice of the -peace for the appointment of appraisers, and on the 14th of April thereafter, the appraisers appointed fijr that purp"ose, appraised the damages sustained by the relator by reason of the laying out of said highway, at the sum of $850, and made return thereof to the justice as directed in the warrant, which was certified by the justice and filed with the township clerk. At the annual meeting of the township board of La Grange, held in March, 1850, the relator caused the return of the appraisers, certified and filed as before stated, to he presented to said hoard, and requested them to make and deliver to him an order upon the township treasurer for the amount of his damages so appraised and interest, which they refused to do.

Numerous objections’are urged by the defendants, why they should not he compelled to make such order, nearly all of which may he answered by the remark that they have no power to review the action of the commissioners of highways in laying out and establishing highway's, except upon an appeal to them in the mode appointed by the statute; -nor to review, the action of the appraisers, except so far as to see that their proceedings are not merely void for want of jurisdiction. Mere irregularities which would not render the proceedings absolutely void, questions involved in the merits of the controversy before the commissioners or the appraisers, the fraud or misconduct of the parties or officers, cannot be inquired into by the township board upon the application for an order upon the treasurer for the amount of damages assessed. Where a road has been formally established, and the damages appraised, and return made and certified, according to the statute, such damages are made a township charge. The .amount is settled by tho appraisal, and it then becomes the duty of the'township hoard to draw their order in favor of the person entitled, upon the township treasurer, for the amount of tlie appraisal. If any person conceives himself aggrieved by the determination of the commissioners, his remedy is by appeal to the township hoard. If the justice or appraisers act without jurisdiction, or exceed their jurisdiction, their proceedings would he set aside on certiorari.

But it is claimed by the respondents, that the highway had not been established, and that the ajrpraisal of damages was therefore a nullity, Tbecause the order of the commissioners for establishing it had not been posted up as required by the statute. Chapter 25, § 2, R. S., provides as follows:

“ It shall be the duty of the township clerk, whenever any order of the commissioners for laying out, altering or discontinuing any road, shall he received by him, forthwith to post a copy of such order on the outer door of the house or building where the township meeting is usually held, or if there he no such house or building, then in one of the most public places in the township.” It appears from the affidavit of the township clerk, that the township meeting was held in every alternate year at the tavern of Mr. Barnum, and in every other alternate year at another place in the township. How ,then can it l e said that there was any house or building where the township meeting was usually held ? Neither of the places mentioned can he regarded as the house or building contemplated by the statute. It became the duty of the clerk, in that case, to post a copy of the order in one of the most public places in the township. He posted it on an inner door of the tavern in which the township meeting was held every alternate year. It is not claimed nor attempted to be shown by the respondents, that it was not posted in one of the most public places in the township; and in the absence of any showing to the contrary, it must be presumed that the clerk did his duty. The common, or bar-room of a tavern, is certainly a public place; and the inference is, that it was posted in that room. Notice of sheriffs’ and constables’ sales, and other like notices required by law to he posted in public places, are very generally put up in such rooms, and often posted upon an inner door of the house. I see no reason, therefore, why the order of the commissioners was not posted in the manner required by the statute. What would have been the effect of an appeal regularly taken, and remaining undetermined, upon the appraisal of damages, is not a question involved in this case, 'nor is it necessary to decide what persons have the right of appeal under the statute. The nature of the right acquired by a person over whose lands a highway is laid out, to damages, upon the appropriation of his property to the public use, is ably discussed in the case of Harrington vs. the Coimty Commissioners of Berkshire, (22 Pick., 263,) and also in the ease of the People vs. the Supervisors of Westchester, (4 Barbour's Sup. Court Rep., 64.) But from the view I have taken of the objection under consideration, the principal questions decided in those cases, do not arise in this.

It is further objected by the respondents, that the relator is not entitled to his writ of mandamus, because he claimed an order for Ms damages as appraised, with interest, and not for his damages, only. This objection is fatal. No interest can be legally claimed, but by virtue of a statute or custom, and this is not embraced in the provisions of chapter 34 of the Revised Statutes.- Section seven applies only to amounts liquidated or ascertained in the course of judicial proceedings, and it is not pretended that the relator is entitled to interest by virtue of any custom. The board was right therefore, in refusing the order asked for, though not for the reasons assigned by them. The relator should have applied for such order as he was entitled to, and if that had been refused, he might have successfully invoked the compulsory power of this this Court.

Upon the argument, the counsel for the relator asked leave to amend the order to show cause, in case' the Court should be of opinion that he was not entitled to interest. It should be remarked, that wMle an order to show cause why a peremptory mandamus should not issue, has iu this Court been uniformly substituted for an alternative mandamus, yet the practice in one case is very different from that in the other.

The alternative mandamus is answered by a return, which is in the nature and performs the office of a plea; while the order to show cause, like all other orders of a similar character, is answered by affidavits. (See 10 Wend., 26; 12 Ib., 183; 19 Ib., 56; R. S., ch. 137.) Had an alternative mandamus issued in the first instance, it might have been in the power of the Court to amend it so as to conform to the information, under the provisions of chapter 104 of the Revised Statutes; but in this case the relator’s affidavit upon -which, the order to show-cause was based, shows that he asked for a different order from the one he is entitled to. This affidavit we cannot amend.

The application for a peremptory mandamus must be denied, but without coste, inasmuch as the order was not refused by the township board on the ground that interest was claimed, but on the ground that that the relator was not entitled to his damages.

Motion denied.


author: Whipple, C. J.

text:
    Clute et. al., complainants and appellees, vs. Barron, defendant and appellant.

      A public officer charged with the duty of sellingproperty for the beet price, cannot himself become the purchaser.
    A sale made by a trustee or agent to himself, is void in law.
    A county treasurer having charge of the sales of lands for delinquent taxes, became the purchaser of certain premises at said sale; the purchase by him was declared void. It was held also that his purchase being a nullity, he could not be allowed for improvements made by him on the property.
    Appeal from the Circuit Court for the county of St. Clair; In Chancery.
    The bill in this case was filed to set aside a conveyance of premises bought by the appellant at tax sales, and to compel the conveyance thereof to the complainants. The material averments of the hill, and which were considered hy the Court in the final determination of the cause, were as follows: That in the year 1835, Frederick J. Clute entered and became the purchaser of the east half of the southwest quarter of section twenty-one, in township five north, of range sixteen west, in the county of St. Clair, the.premises in controversy; that said Clute died in the summer of 1842, leaving him surviving, the complainants, the widow and heirs at law of said Clute; that the defendant was the county treasurer of St. Clair county from the first Monday in January* 1843, to the first Monday in January, 1845, and as such county treasurer, sold the premises in question in October, 1848, for the non-payment of taxes of the years 1836, 183'?', 1839 and Í840, and in the month of of October, 1844, again sold said premises for the non-payment of the taxes for the years 1841 and 1842, under the provisions of the act of the Legislature, approved March 6th, 1843, entitled “ an act to regulate tax sales for the year 1843, and for other purposesthat the defendant while acting as county, treasurer in the sale of said premises for taxes at the tax sales of the years 1843 and 1844 under said act, bought in said premises himself upon such sales for the sum of $25,09 for the sale of the year 1843, and for the sum of $14,56 for the sale of the year 1844; that at the timo of such sale the premises over and above improvements, were and still are worth at least $500; that under said sale and the deeds from the Auditor General founded thereon, the defendant claims said premises; has taken possession thereof and refuses to deed the same to complainants; that since said sales defendant has made improvements on said lands to a considerable amount and continues to improve them, but has not made said improvements in good faith, but with the purpose that if said sale should be set aside he would get compensation for said improvements, and the complainants lose their lands from their inability to pay for such improvements.
    The answer, denying several allegations of the bill not above mentioned and not material to be stated, admits that the defendant was the -treasurer of St. Clair county in which^said premises are situated at the time alleged in the bill, and that at the time stated in the bill he purchased at the tax sales for the respective years and for the several sums mentioned in the bill, the premises in question, he being at the time of the said sales and purchases by him, the county treasurer by whom the sales were conducted, under the direction of the Auditor General; that he claims title to and holds possession of said premises by virtue of said tax sales, and the deeds from the Auditor General, founded thereon.
    The defendant’s answer further denies all fraud in the conduct of the " sales, or fraudulent intention on his part, and claims that if the sale be set aside, he be allowed compensation for taxes paid and improvements made by him on the premises.

      Van DyTce & Emmons, for appellees.

      Baclcus, for appellant
   Whipple, C. J.

I shall proceed to consider the first point made in the brief furnished us by the counsel for the complainants. Had the defendant a legal right to become the purchaser of the lands in controversy, it being admitted that they were sold by him asbounty treasurer, under the provisions of the law of 1843, for the assessment and collection of taxes? Regarding the principle involved in the discussion of this point, as one of great importance, I have given to it a very careful and extended examination; the result of that examination will now be stated, with as much brevity as is consistent with a full understanding of the reasoning upon which my judgment is founded.

The subject of constructive frauds, which arise from some confidential or fiduciary relation between parties, is discussed with much learning and ability by Mr. Justice Story, in his commentaries on equity. After considering the relation of parent and child, attorney and client, trustee •and cestui que trust, he deduces the following doctrine: “ That whenever confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which he is bound to protect, he will not be permitted to hold any such advantage.” The doctrine thus broadly stated, will necessarily include, not only trustees, but all others occupying a like relation. Its extent and scope, however, will be better understood, by considering a few of the many reported cases, English and American, in which the doctrine has been considered and applied.

In the case of Walton and others vs. Torrey and others, (1 Harrington, 259,) it appeared that the defendant, Torrey, acting as judge of probate, having previously acquired certain portions of the property in controversy, made an order for the sale of the shares of the complainants, who were minors, and at such sale became a purchaser. Chancellor Farnsworth, upon the authority of Davoue vs. Fanning, (2 Johns. C. R., 251,) declared the sale void. The disability to purchase is said by the Chancellor, to arise from the public office which the defendant held, and the temptation to prostitute the powers of that office, if the estate of minors could be directed to be sold and purchased by the same individual. In the ease of Ingerson vs. Starkweather, ( Walkers Ch. Rep., 346,) the facts were, that the defendant, as clerk of the Superintendent of Public Instruction, sold certain school lands at public auction, and bid them off in the name of one Norton, with whom he was to have an interest in the lands so purchased. Chancellor Manning in delivering his opinion, says:

“ It is contrary to every sound principle of equity to allow an agent who is authorized to soli property, for the best price that can be obtained for it, to become the purchaser himself. It is immaterial whether the sale be public or private; whether the agent purchase in his own name or that of another. The object is, to secure fidelity on the part of the agent to his principal; and it is as applicable to public agents as others, and should, if any thing, be enforced more rigidly against them, as they have greater oijportunities of abusing- their trust.” In the case of Church vs. Marine Insurance Company, (1 Mason, 341,) Mr. Justice Story uses this comprehensive language: “The law will not suffer any man to earn a profit, or expose him to the temptations of a dereliction of his duly, by allowing him to act at the same time in the double capacity of agent and purchaser, either at a public or private sale. This case then stands before the Court as if there was no sale; the ownership has never been legally divested,” &c. Pierce vs. Baughman, (14 Pick., 356,) was the case of a sale and purchase of goods by a collector of taxes. In delivering the opinion of the Court, Mr. Justice Morton remarked that “ the conduct of the defendant was clearly a violation of his official duty. Such a practice must, if it did not in the present instance, lead to fraud in the publication of notices, and the selection of places of sale. The respective duties of buyer and seller are incompatible with each other, and no^person in whatever capacity he may undertake to act, can rightfully sustain both characters.” In Davoue vs. Panning, before referred to, Mr. Chancellor Kent held, that if a trustee, or person acting for others, sells a trust estate, and becomes himself interested in the purchase, the cestui que trusts are entitled, of course, to have the purchase sot aside; and it makes no difference in the application of the rule, that a sale was at public auction, bona fide, and for a fair price, and that the executor did not purchase for himself but a third person became the purchaser, to hold in trust for the separate use of the wife of the executor, who .was one of the cestui que trusts, and had an interest in the land under the will of the testator. I know of no case, within the whole range of authorities, in which the doctrine of the text, to he found in Mr. Justice Story’s commentaries, has been more learnedly discussed and ably vindicated. In his very elaborate opinion, Chancellor Kent says, that “if, in selling a part of the estate, in the moantime, for a legacy to his wife, he could become the purchaser on her account, or constitute an agent for that purpose, the temptation to abuse of that trust would be great and dangerous.” A relaxation of the doctrine contained in this case, was imputed to Lord Hardwicke, in Davison vs. Gardner, decided in 1143. He is reported to have held, that he could not permit any purchase by a trustee, during ■the minority of the cestui que trusts; but that where there was a decree for the sale of the trust estate, and an open auction by the master, or a public sale by proclamation, in the county, then the Court had permitted a trustee to purchase, by refusing to set aside the sale, where all other circumstances were fair.

In remarking upon the qualification of the general rule, Chancellor Kent says: “ I apprehend these latter dicta are clearly overruled, and that whether the cestui que trust be an infant or an adult, the trustee is equally disabled from becoming a purchaser of the trust estate.” Lord Hardwicke himself, it would seem, corrected the error in which he had fallen, by declaring in Whelpdale vs. Cockson, (1 Vesey, 9; 5 Vesey, 682, S. C.,) where a trustee became purchaser of part of the estate, “ that it was not enough for the trastee to say you cannot prove any fraud, for it is in his power to conceal it.” In the case of Torrey vs. Bank of Orleans, 9 Page, 649,) the general doctrine is laid down by Chancellor Walworth in these words: “It is a settled principle of equity that no person placed in a situation of trust or confidence, in reference to the subject of the sale, can be a purchaser of the property on his own account.” And in the recent case of Greenlaw vs. King, cited by Chancellor Walworth, Lord Cottenham held, “that the principle was not confined to a particular class of persons, such as guardians, trustees or solicitors; hut was a rale of universal application to all persons coming within its principle, which is that no party can be permitted to' purchase an interest where he has a duty to perform inconsistent with the character of a purchaser.” In ex parte Bennett, (10 Vesey, 384,) Lord Eldon, in an opinion characterized by unusual clearness and vigor, held that neither the solicitor to a coinmission of bankruptcy, nor a commissioner of bankruptcy, can purchase either for themselves or another. The principle of the rule is thus stated: “ The ground is, that though in the particular ease there -may be the most satisfactory evidence that the transaction amounts to no. more than that the general interest of parties requires, that the solicitor is not to be permitted to purchase for himself or for another; as in several cases the powers of the Court would not be equal to protect it against deception, from the impossibility of knowing the truth in every case. That, in truth, is the principle on which Courts of Equity have held that trustees shall not buy.” Lord Eldon took occasion in delivering his judgment in this case, to repel the doctrine laid down by Lord Rosslyn, “ that to affect the sale, the trustees must make an advantage,” and remarked that “ the principle is deeper, viz: that if a trustee can buy in an honest case, he may in a case having that appearance, but which from the infirmity of human testimony may be grossly otherwise.” And in discussing the capacity of a commissioner to become a purchaser, his Lordship considered “ what he is; what are his duties, his obligations, as they respect the bankrupt, the assignees, the creditors and considerations of public duty,” and deduced the conclusion that “ it was impossible to permit a commissioner to purchase.” Sir Edward Sugden, in treating of purchases by trustees, agents, &c., lays down the rule thus: .“ It may be laid down as a general proposition that trustees, unless they are nominally such to preserve contingent remainders, agents, commissioners of bankrupts, assignees of bankrupts, solicitors to the commission, auctioneers, creditors who hare been consulted as to the mode of sale, or any persons, who, by their connection with any other person, or by being employed or concerned in his affairs, have acquired a knowledge of his property, are incapable of purchasing such property themselves, except under the restraints which will shortly be noticed. For if persons having a confidential character, were permitted to avail themselves of any knowledge acquired in that capacity, they might be induced to conceal their information and not to exercise it for the benefit of the persons relying upon their integrity. The characters are inconsistent.”

The rule thus comprehensively stated, was very ably vindicated, and approved by the Supreme Court of the United States, in the case of Michard et al. vs. Girard et al., (4 Howard, 503.) Mr. Justice Wayne, who delivered the opinion of the Court in that case, after a thorough and searching examination of the leading cases on the subject, maintained the integrity of the rule laid down by Sugden; holding, that a person cannot legally purchase on his own account, that which his duty or trust requires him to sell on account of another; and that a purchase, per interpositam personam, by a trustee or agent, of the particular property of which he has the sale, carnes hand on the face of it. And in respect of a purchase of property, made through the intervention of a person who was a nominal buyer for the purpose of conveying it to executors, he remarked: “But the morality and policy of the law, as it is administered in Courts of Equity, induce us to add, that those purchases were fraudulent and void.” In treating upon the true foundation of the rule, he says: “ The general ride stands upon the groat moral obligation to refrain from placing ourselves in relations which ordinarily excjte a conflict between self-interest and integrity.” And the learned Judge further adds,-that “the inquiry in such a caso, is not whether there was or was not fraud in fact. The pwchase is void; void by the rule in equity in the Courts of England, and as it prevails in the Courts of Equity in the United States,” The great principle illustrated and enforced in the cases cited, is not reserved in its application to trustees in a mere technical sense, but embraces in its ample sweep,, all agents empowered to sell, though they have only a ministerial power; all who act representatively; it is applied with great freedom, to all “whose office is to advise or operate, not for himself, but for others,” The rule extends to all cases in which confidence has been reposed, and is enforced with as much sternness in respect to those who have gratuitously or officiously undertaken the management of another’s property, as to those who are engaged for that purpose, and are paid for it. Rankin vs. Porter, (7 Watts, 387, 390.) It is equally well settled that a sale made by a trustee or agent to himself, is void in law, and if the transaction.assumes such a form as to be valid in law, equity will make him a trustee for his principal. (Teakle vs. Bailey, 2 Brock., 44, 51; Banks vs. Judah, 8 Conn., 146, 157; Church vs. Marine Ins. Co., 1 Mason, 341, 344; Barker vs. Marine Ins. Co., 2 Mason, 369; Copeland vs. Mercantile Ins. Co., 6 Pick., 198, 204; 4 Howard, 503.)

’ The principles that pervade the cases referred to, and which seem now too firmly established to be shaken, are recommended for adoption by considerations of policy so overwhelming, and reasoning so conclusive, as not to he resisted. It only remains to apply them to the facts of this case. To do this, will necessarily involve an -examination, to some extent, of the . statute, which prescribes the duties, and defines the powers of county treasurers. By section 47, he is directed to enter the statement of unpaid taxes, ’ as received from the township treasurers, in a book to be kept for that purpose. A certified transcript of this statement is by him forwai-ded to the Auditor General. By the 50th section, taxes on lands returned to the office of the county treasurer, may be paid within a specified time, with five per cent to go into the county treasury, and fifteen per cent interest. Section 52 directs the county treasurers to issue duplicate receipts for all taxes received by them, one of which is left with the county clerk, to be filed in his office. Section 54 requires the county treasurers who may have collected taxes from residents or non-residents, to make returns once in three months, to the State Treasurer, of the amounts so received by. them respectively, for delinquent taxes. Section 57 makes it the ■ duty of the Auditor General, after an examination of all the taxes returned to his office, to make out a statement of the lands upon which taxes are due, adding thereto the interest, expenses and charges authorized by law, and furuish the county treasurer with three copies of the same by the first day of July, in each year. By section 58, the Auditor General is directed to publish by the first of June, in each year, that these statements will be deposited with the county treasurers by the first day of July, and that all the lands therein described, upon which taxes are not paid by the first Monday of October thereafter, will be sold for the payment of taxes, interest and charges. Section 60 provides, that as soon after the first Monday of September as practicable, the Auditor General shall prepare and transmit to the county treasurers, a list of all lands on which taxes have been paid, which lands shall be struck from the list in the offices of the county treasurers,'and by them withheld from sale; and tbe county treasurers are also required to strike from the list, all lands upon which taxes may have been paid lo them, at any time before tbe sale, and not stricken out by order of the Auditor General. Section 61 directs, that on the day designated in the notice of sale, tbe county treasurers, under tbe dbection of tbe Auditor General, shall commence the sale of lands upon which taxes remain unpaid, and continue the same from day to day, until so much of each parcel, charged with taxes, shall be sold, as may be sufficient to pay tbe taxes, interest and charges. The land to be sold to be taken in a square form as near as may be, from, or as near as practicable to, tbe north-east corner of the parcel taxed, unless such parcel be a fraction; on which, the lands sold may be taken from any corner of the same, if there be one, and if not, from such portion of the same as the treasurer shall deem proper. Section 62 invests the county treasurers with a discretion, to require immediate payment of any person to whom any parcel of land is struck off; and in all cases where payment is not made in twenty-four hours, he may declare the hid can-celled, and" at his discretion, sell the lands again. Section 64 directs the county treasurers to give the purchasers a certificate, on the payment of their bids, describing the lands pmchasod, and the amount paid therefor ; and to endorse thereon the kind of funds received, a copy whereof is to be forwarded to the Auditor General. Section 66 provides that lands sold for taxes, may be redeemed in two years; and that any • person claiming any lands, or interest therein, which may have been sold, upon proving title thereto, shall, within two years, be entitled to receive from the State Treasurer, upon the warrant of the Auditor General, the surplus, if any, over the amount of tax, interest and charges, for which any pieco of land may have been sold. Section 67 provides that if any parcel of land cannot be sold to any person for the taxes, interest and charges thereon, such parcel shall, for the time being, be passed over, and shall on the succeeding day, or before the close of the sale, be re-offered for sale; and if on such second offer, or during such sale, the parcel cannot be sold for tbe taxes, interest and charges, tbe eoimty treasurers are required to bid the same off for tbe State.

Such are the general powers and duties of the several county treasurers, and without going into a particular analysis of their nature or extent, it may be safely affirmed that they are of a most important and responsible character. Upon the faithful and honest discharge of their duty the rights of the State and of individuals depend. It is to be noticed that the act, while it seeks to enforce the lien of the State for taxes, is careful to guard the rights of individuals. These rights are confided to the keeping of the county treasurers. In the hands of a faithful and honest officer those rights are safe; in the hands of one who may be disposed to listen to the suggestions of self-interest they are in imminent peril. The duties of county treasurers are not merely ministerial, but call for the exercise of discretion and judgment. That discretion would be liable to abuse, and that judgment is likely to be perverted, where the path of duty is beset by temptations difficult to be resisted. The counsel for the defendant discussed this branch of the case, as though the duty of county treasurers was limited to a sale of the lands uqron which taxes remain unpaid. This, it is true, constitutes a delicate and very important part of the powers with which they are clothed; but the act contemplates the performance of other duties, before the sale, exacting the most scrupulous fidelity. I know of no officer charged with the execution of a public trust who possesses to the samo extent the power of doing wrong. The means of effecting a wrongful purpose are so simple, as to suggest themselves readily to a mind stimulated by the desire of gain. It requires no ingenuity to conceal the machinery that may be put into operation to work the most g-igántic frauds. The evidence, by which to establish the frauds which may be perpetrated by this class of officers, would elude the strictest judicial scrutiny; the power with which Courts are clothed would bo inadequate to their discovery, or in the language of Lord Eldon, “ the powers of the Court would not be equal to protect it against deception, from the impossibility of knowing the truth in every ■case.” But to he more particular: the law contemplates that the smallest subdivision of a tract of land, upon which taxes and charges remain unpaid, shall he sold for their payment; and it is the right of the owner that it shall bring the greatest price, for the reason that he is entitled to the surplus after satisfying such tax and the legal charges thereou. Now, suppose the county treasurer who officiates as auctioneer, is desirous of becoming the purchaser; it would obviously be for his interest to secure it for the least possible price. In such an event; the duty he owes to the owner, comes in direct conflict with the promptings of self-interest. Is it not to be feared that the hammer of the auctioneer would suddenly drop, when a higher bid is perhaps trembling on the lips of a hundred by-standers? Again: suppose a valuable tract of 160 acres has been returned for unpaid taxes, and that this same county treasurer is desirous of securing it. He is directed by law to offer for sale so much as may be necessary to pay the taxes and charges, taken from the north-east corner. Is it uncharitable to suppose, that when the passion for gain is awakened, another and another portion would he offered, until the' whole tract would he sacrificed for a mere trifle, by the sound of the hammer, which, under the circumstances stated, would drown a thousand voices ? But an easier mode of accomplishing the object, would be for the treasurer to indicate on his list that the tax has been actually paid, and after the sale execute to himself, or his secret agent, the necessary certificate, which entitles the holder to a deed. But it is useless to multiply the difficulties which stand in the way of a faithful administration of this law, if county treasurers are permitted, directly or indirectly, to become interested in the purchase of lands sold for taxes. It is our duty to remove, so far as we can, all temptation to abuse the important trusts committed to county treasurers. This object can he best effected by declaring their incapacity to become purchaser's at tax sales; and by treating as void any purchase made by them, or by any person for them; or, in the language of Mr. Justice Story, to treat all such sales as if there had been no sale, and the ownership of lire property as never having been legally divested. This is the only remedy for the mischief; this is striking at the root of the evil.

The evidence in this case presents in a strong light the necessity of the doctrine I have endeavored to maintain, for if the witnesses on the part of the complainants are to he believed, the defendant actually prevented competition at the sale, by representing himself as the agent of Olute, and that he intended to hid off the land for him; and at another time, that he would buy them for the purpose of securing himself for advances for taxes.

From the views expressed, on. tho points I have been considering, it is unnecessary that I should dwell on some of the extraordinary features which this ease presents. Duty does not require, nor does my inclination lead me to analyze the bill, answer and proofs, for the purpose of determining whether actual fraud was committed by the defendant; or whether he stands acquitted of any intentional wrong. . If innocent,, a comparison of the answer with the proofs, exhibits lamentable evidence of the infirmity of human memory, or of the depravity of the human heart.

It is unnecessary to say that the conclusion to which we have come, fully justifies the decree made in the Court below, and precludes the possibility of any allowance for improvements. As the sale was a mere ’nullity, the deed to him from the Auditor General conferred no title, and it would have been competent for'the complainants to have recovered in an action of ejectment.

Decree affirmed.


author: By the Court, Wing, J.

text:
    Drake vs. Andrews et al.

    By B. S., ch. 90, § 144, an appeal from a decree in chancery must be claimed and entered within forty days from tho making of such decree. Held, That where the fortieth day was Sunday, the appeal could not bo taken on the following Monday.
    A different rule prevails where by statute an act is required to be done within any number of days less than a week.
    Motion to dismiss an appeal from tho Oakland Circuit Court, in Chancery, because the same was not taken within the forty days prescribed by statute.
    Goodrich, for the motion.

      M L. Drake, in person, contra.

   By the Court, Wing, J.

The decree in the Court of Chancery, dismissing the hill in this case, was entered on the eleventh day of December, eighteen hundred and. forty-nine. The appeal was taken on the twenty-first day of January, eighteen hundred and and fifty.

The 143d section of chapter 90, page 312 of the Revised Statutes of 1846, provides, that “any complainant or defendant who may think himself aggrieved by the decree or order of a Circuit Court in Chancery, may appeal therefrom to the Supreme Court.” By section 144, it is required that “such appeal shall be claimed and entered within forty days from the time of making such decree or final order,” &c.

It is admitted, the appeal was taken on the forty-first day, and because the fortieth day was Sunday. A motion is now made to dismiss the appeal, “because not taken within the time prescribed by statute.” The appellant urges that he is entitled to forty full days within which to take and perfect his appeal; that as section first of chapter forty-three, Revised Statutes, 1846, page 191, provides that “no person shall do any manner of labor, business or work, except only work of necessity or charity, on the first day of the week,” if the last day, being Sunday, is counted as one of the forty, he does not get the number of days given by statute, because the statute last cited, in effect prohibits his doing on the first day of the week, what would have been necessary to enable him to perfect his appeal on that day; that the statute in effect actually makes Sunday as no day, and it must be regarded for the purpose of perfecting an appeal, as stricken from the calendar. Appellant endeavors to fortify these views by citing the construction put upon contracts, in cases where the day of performance falls on Sunday, in which case it is well settled that the contract is satisfied if performed on the succeeding day. The roason of which is, that Sunday, by the common sentiment of Christian people, is held as a holy day, upon which no business transactions shall be required of a person under pain of his forfeiting his contract, and though performance on the Sabbath (independent of the statute) might bo valid, yet the party may have the ensuing day within which to perform ii, that he may keep the Sabbath inviolate. (See 20 Wend., R., 205, 206, 207; 2 Cowen, 69.)

In the construction of rules of Court in relation to pleading and other mere matters of practice, it is well settled that if the last day fall on Sunday, the party has the whole of the next day, in which to perform the act required. (See the authorities cited at the end of an anonymous ease in 2 EUVs Rep., Si6,-1.) In the construction of statutes, Courts have applied the same rule where the time is two, three, or any number of days less than a week, and they have gone fut ther, and held, as in the last case cited from Hill. There, goods were taken and the summons served on Friday, and the next day the defendant interposed a claim of property. The sheriff-gavo notice to the parties that the jury to try the claim of property, would appear before him on the next Monday; the plaintiff did not appear; a motion was made that the sheriff deliver over the property to the plaintiff, without indemnity, because the cause was adjourned beyond two days. The Court held, that the statute meant two law days; that as Sunday intervened between the day on winch the claim of property was interposed and the day of trial, it was properly excluded in the computation of time, the defendant was entitled to two business days. But the rule (says the reporter in his note to this last case) does not in general govern, except in the construction of statutes, and then only, where the time limited is less than a week, though it has been applied to the four days allowed to bail on scifa to plead, and to rules for judgment.

In the case of Thayer vs. Felt, (4 Pickering, 354,) the statute authorized the adjournment of a sale by an officer, not exceeding three days, and the question arose, whether if Sunday intervened before the last day, the adjournment could be extended to three days, exclusive of Sunday. The Court held that it might; that three business days were to be allowed for these purposes. In the case of Anderson vs. Phelps, (15 Mass., 225,) it was held that where thirty days, during which property attached on mesne process, is held subject to execution, expires on Sunday, the lien created by the attachment does not continue through the next day. In this case it was agreed, that as the thirty days expired on Sunday, a day on which the officer could not execute any civil process, the lien created by the attachment, continued through Monday. The Com't say they cannot see any reason why the last Sunday should be excluded, rather than any other of the Sundays within the thirty days. This construction seems applicable to every statute, wherein the time limited for a particular purpose, is such as must necessarily include one or more Sundays; but it does notfollow that this rule applies whore the time limited is less than a week.

In the case of ex parte Dodge, (7 Cowen, 147,) it was held, that where a statute declares that an act shall be done within a certain number of dap, Sunday must be reckoned as one, though it happen to bo the last.

In 3d Pennsylvania Rep., 200, a cause was made the 12th of April, and an appeal entered the third of May following; motion to quash, because not in time. The law authorized an appeal within twenty days, «feo. The Court say, without reviewing their decisions on' the subject of computation of time, “it may be sufficient to say, that whenever by a rule'of Court or an act of the Legislature, a given number of days are allowed to do an act, or it is said an act may be done within a given number of days, the day on which the rule is taken, or the decision made, is excluded.” (1 Sergt. & Rawl., 411.) And if one or more Sundays occur within the time limited, they are counted, unless the last day falls on Sunday, in which case the act may be done on the next day. The Judge says “this construction has been so universally settled in our Courts, and in cases so similar to the one in question, that we think the rule ought to be extended to cases under this act. It is doubtful if we could substitute a better rule in its place.” This last is the only reason given for extending the rule to construction of statutes.

The Court say in Bates vs. Loomis, (5 Wend, 136): “It is the ordinary course of the Court to enlarge the time to plead or other time prescribed for any other purpose by the rules or practice of the Court, upon cause shown; but neither a commissioner in vacation nor the Court in term, can enlarge the time within which an act is to be done where such time is regulated by statute. The rules and practice .of the Court being established by the Court, may be made to yield to circumstances to promoto the ends of justice. Not so as to a statute; it is unbending, requiring implicit obedience as well from the Court as from its suitors. The Court possesses no dispensing power.”

We have not been able to find any cases in the English Reporte which touch the point we have been considering. The weight of authority is against the appellant. We admit it. is not a mere question of construction. The statute is plain. It is rather a rule.of convenience; but we think we have not the power to extend the statute. In cases ■of contract the Courts do not extend_the time provided by the contract; it is, and for ages has been, the law of contracts; but in this case there is no law establishing the right the appellant claims. We must stop where the statute stops, and therefore wé are reluctantly constrained to grant the motion of the appellee and dismiss the appeal with costs.

Motion granted.


author: By the Court, Green, J.

text:
    Hubbard vs. Smith et al.

    H,, in September, 1843, conveyed a piece of laud to S., who took possession and lived ou tho land, and made improvements thereon, but did not have his deed recorded until December, 3846- In November, 1843, H. executed a mortgage to L.,' which was recorded on the 29th day of the same month — L. at the time having no knowledge of the deed to S., nor that S. or any other person was in possession of the premises, or claimed title thereto. Held:

    1st. That the words actual notice in R. S. of 1838, p. 260, § 25, were used in contradistinction to implied or constructive notice, and that notice to L. of the prior deed could not be implied from the possession and occupancy of the land by S.
    2d. That S. was in actual possession of the premises, claiming adversely to H., at the time the mortgage was given by H. to L., and that the mortgage was therefore void, as at common law a grant of land (except a release) is inoperative and void if at the time of the grant he land is in the actual possession of another person claiming adversely to the grantor.
    Case reserved from Wayne Circuit Court in Chancery. The facte appear in the opinion of the Court.

      Backus & Harbaugh, for complainants.

      Wilcox, Gray & Van Dyke, for defendants.
   By the Court, Green, J.

Two questions are presented by the record in this case, for our consideration: 1. Whether Lanman, the assignee of the complainant, had actual notice of the prior unrecorded deed of the defendant, Smith, at the time of the execution of the mortgage from Hosmer to Lanman; and 2. If Lanman had not such notice, was the mortgage void by reason of the adverse possession of the lands in question, by Smith,

It appears from the stipulation entered into by the solicitors for the respective parties, that on the 19th day of September, 1843, Artemas Hosmor, who was the owner in fee, of the lands in controversy, executed, acknowledged and delivered to the defendant, Smith, a deed of conveyance thereof; which deed was not recorded until December, 1846; that ever since the execution of said deed, Smith has been in the constant, open, and notorious occupancy and possession of the premises, and since the 1st day of December, 1843, has resided thereon with his family, and that he has made valuable improvements thereon. On the líth day of December, 1843, Hosmor executed the mortgage now sought to be foreclosed, to Lanman, who caused thh same to be duly recorded on the 29th of the same month. Lanman, at the time of the execution of the mortgage, had no knowledge of the deed previously executed to Smith, nor that Smith, or any other person, was in possession of the premises, or claimed any title to the same, and never was, in fact, within-twenty miles of the premises. By the R. S. of 1838, p. 260, § 25, which was in force until the 1st of March, 184Í, it was provided that “ no bargain and sale, or other like conveyance of any estate in fee simple or for life, and no lease for more than seven years from the making thereof, shall be valid and effectual against any other person than the grantor, and his heirs and devisees, and persons having actual notice thereof, unless it is made by a deed, recorded as provided in this chapter.”

Did the possession of Smith constitute actual notice to Lanman, of the prior unrecorded deed? The case of Pomeroy vs. Stevens, (11 Met. JR., 244,) presented the same question, under a statute similar to ours, as above recited. That was a writ of entry. The parties both claimed title to the demanded premises, under Hiram Chapman. The demand-ant claimed under a levy upon the premises, made on the 8th of Nov., 1842, upon an execution against Chapman, in pursuance of an attachment alleged to have been made on the 6th of December, 1841. The tenant claimed under a deed made to him by Chapman, on the 4th of February, 1839, acknowledged on the same day, and recorded on the 10th of December, 1842. The defense was, that the demandant when he made his levy, and when he made his attachment, had actual notice of the tenant’s prior unrecorded deed. In support of this defense, the defendant offered evidence on the trial, to show that he was in the open occupation and possession of the demanded premises, and had made improvements of a permanent character. The Court held this evidence to be incompetent; and Wilde, Justice, in delivering the opinion of the Court, says that “since the Rev. Sts. C. 59, § 28, no implied or constructive notice of an unregistered deed can avoid a subsequent deed or attachment,^ and that “it is not sufficient to prove facts that would reasonably put the party upon inquiry. He is not bound to inquire.” He also remarks, that a tenant for years, or for will, may have possession of real estate, and may build fences, and make other improvements thereon; or a party may have possession and make improvements, without any title by deed or by lease.

There is no pretence that Lanman the mortgagee, or the complainant Hubbard, is chargeable with any fraxxd, and the question depends entirely upon the true construction of the statute, if indeed, it can be said to admit of construction. The langxxage used by the Legislature is clear and explicit and it seems obvious that the term actual notice was employed in contradistinction to implied or constructive notice; and after a careful examination of all the authorities cited in support of a different interpretation of the law, I am xxnable to discover any conflict between the doctrine of those cases, and that laid down in Pomeroy vs. Stevens. Did Lanman have actual notice of Smith’s deed? It is conceded that he did not. Did he know that Smith was in possession of the mortgaged premises? That is not pretended. The question then, does not seem to admit of'argument, unless implied or constructive notice amoxmts to actual notice; all idea of which seems to be exclxxded by the clear and uneqxxivoeal terms employed by the Legislature. It seems to follow then, as a necessary deduction from the facts presented, that the unrecorded deed from Hosmer to Smith, was of no validity or effect as against Lanman. If then, Smith is compelled to rely xxpon his deed alone, that can afford him no protection against the mortgage. Has he established any other defense by which he can escape the consequence of his omission to record his deed. This involves a solxxtion of the second qxxestion presented by the record, viz: Was the mortgage void by reason of Smith’s adverse possession of the premises in qxxestion? It was conceded upon the argument, and seems to be unquestionable from tbe facts presented in this case, tbat at tbe •time of the execution and record of tbe mortgage, tbe defendant Smith was in possession of tbe premises, claiming under a title adverse to tbe mortgagor; but it is insisted on tbe part of tbe complainant, that tbe 'doctrine of tbe common law in regard to adverse possession, does not apply to cases of this kind, under tbe recording act before referred to. Let us look at the facts applicable to this branch of tbe case, as admitted by tbe stipulation, and then we shall be better prepared to elucidate tbe principle involved in this objection. In tbe fall of 1842, Hosmer entered into a contract with Henry B. Adams for tbe sale of the premises to him, at tbe price of $45, which was in then- then state, about tbe true value thereof. Adams immediately entered into possession of tbe lands and commenced tbe erection of a dweUing-&ouse and other buildings and improvements, which on tbe 19th September, 1843, were worth $450. His occupation of tbe premises was constant and uninterrupted until tbe last named day, previous to which time be bad fulfilled bis contract with Hosmer, by tbe payment of tbe purchase money and was entitled to a deed. On tbat day Adams sold, bargained and transferred to tbe defendant Smith, all bis right, title and demand, of in and to said premises and the improvements thereon and tbe said contract, for tbe sum of $500, which Smith then paid, and thereupon received tbe deed of conveyance from Hosmer and bis wife, and entered into and continued in tbe possessionof tbe premises as before stated.

In tbe case of Briggs vs. Prosser, (14 Wend., 227,) tbe action was, ■ejectment. Tbe plaintiff having shown the legal title in himself, tbe •defendant offered to show tbat some years previous to the trial, one Luce entered into possession of tbe premises under a contract to purchase of tbe plaintiff tbe premises claimed, for tbe sum of $100; tbat Luce paid tbe purchase money in fulfillment of bis contract, and continued in possession until about three years before tbe trial, when be sold to tbe defendant, who entered and bad since remained in possession. He also offered to prove repeated declarations of the plaintiff tbat be sold tbe premises to Luce, bad received payment for tbe same, and tbat tbe premises belonged to^Luce, all which evidence was offered for tbe purpose of establishing an adverse possession; but it being objected to by tbe plaintiff’s counsel as inadmissible, it was rejected by tbe Judge, and tbe defendant excepted.

On the motion for a new trial in the Supreme Court, Nelson, Justice, delivering the opinion of the Court, says: “There can be no doubt that a person entering upon land, under a contract of purchase, unperformed on his part, does not hold possession adversely to the vendor. After performance, and an equitable title to a deed acquired, I perceive no reason why his possession may not become adverse, or in other words, there is nothing in the character of it, inconsistent with the idea of an adverse possession; whether it were adverse or not, would depend upon the circumstances of each particular case.” It should be remarked, that tho trial was had in 1834; that the offer of the defendant was, to prove that Luce entered under his contract of pinchase in 1801, and paid the §>100 in that or the succeeding year — more than twenty years before the trial; and that nine years before the trial, Luce told a witness that the premises in question belonged to the plaintiff; that he had no deed, and that the plaintiff could turn him out when he pleased.

In this case there are no contradictory proofs. The facts are admitted, and it seems very clear 'that Adams had the equitable title to the premises, before, and at the time of his assignment to Smith — that such title was vested in Smith, by the assignment from Adams, and was acknowledged by Hosmer, by his conveyance of the legal title, in fulfillment of the contract on his part, without claiming or receiving any other consideration for the premises. If the deed to Smith was to be regarded as invalid, for the purpose of establishing an adverse title as -against the complainant, yet upon tho principle laid down in Briggs vs. Prosser, the defendant Smith, would be protected by his adverse possession. The statute only affects the unrecorded deed, and makes it invalid and. ineffectual against persons acquiring title without actual notice. It does not, in its^terms or its spirit, affect the equitable rights of ’ -persons in possession of lands; and to’Umdertake to give it that effect, would be to pervert its objects, and instead of making it a protection against fraud, would be making it the instrument of the grossest frauds. 'The person who receives a deed of conveyance of land, and without 'taking possession, or furnishing any other tangible evidence of a change of property, neglects to record his deed, puts it in the power of a grant- or to impose upon and defraud others, who might purchase without knowledge of the deed, unless the statute protects them in such purchase. In such a case, the common sense of justice of mankind, without regard to any technical rule of law or statutory provision, would unhesitatingly determine that the subsequent purchaser, who first records his deed, should hold the premises, and that the prior deed should be invalid as against him, because the first purchaser,"by his own fault or neglect, enabled the grantor to commit the fraud. This equitable and just rule was declared by the statute of 1838, and if properly administered, can never work injustice. But in order to give it effect, without working the most mischievous consequences, it must stand with the principle of the common law, which has been fully recognized by this Court in the case of Bruckner’s lessee vs. Lawrence, (1 Doug. Mich R., 19,). and in Stockton vs. Williams, (Ib., 546,) that a grant of land (except as a release) is inoperative and void, if at the [time of the grant the lands are in the actual possession of another person, claiming title adversely to the grantor. Hence, when the Legislature in 1846, changed this latter principle, they also changed the law, so as not to require actual notice of a prior unrecorded deed. (R. S., 1846, Chap. 65, § 7, 29.) It may happen that a piuchaser of land upon payment of its full value, receives his deed, and takes possession under it; but before it is possible for him to have it recorded, he may lose [it, or it may be destroyed. It is impossible that he should give actual notice to all the world, of the execution of the deed. Would the statute of 1838 cut him off from all means of protecting himself against a subsequent deed made by his grantor, and recorded ? It would be strange indeed, if such were the intention of the Legislature. The common law gives him the means of protecting his homestead in such an emergency, and declares that so long as he maintains the possession adversely to his grant- or, any subsequent conveyance by such grantor shall be inoperative and void. All persons are boumf to know this rule of law; and hence, they are bound to know at their own peril, not whether a deed has been made, but whether such adverse possession exists.

It must be certified to the Circuit Court for the County of Wayne, as-the opinion of this Court, that the mortgage which is sought by the complainant in this cause to be foreclosed, is void, so far as it embraces-the lands claimed by the defendant, Smith, and described in his deed from Hosmer and his wife, bearing date the 19 th of September,, 1843.