Johnstone v. Scott

• Decision Date: 28 April 1863
• Citation: 11 Mich. 232
• Court: Michigan Supreme Court
• Parties: James M. Johnstone v. Catharine M. Scott and others

11 Mich. 232

James M. Johnstone v. Catharine M. Scott and others

Supreme Court of Michigan

April 28, 1863

Heard January 9, 1863 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Bay Circuit.

Ejectment for certain lots and blocks in Bay City, described in the declaration as being in that part of the village of Bay City which was formerly part of the village of Portsmouth, according to the plat of said village of Portsmouth.

On the trial, it was admitted that Joseph F. Marsac, purchased of the United States fraction number two, and Gardner D. Williams fraction number three, of section twenty-eight, town 14 north of range 5 east. Plaintiff then offered in evidence a deed from Henry Howard and Gardner D. Williams, describing themselves as trustees of the Portsmouth Company, to Joseph F. Marsac, of certain lots and blocks corresponding in numbers with those in the declaration, and described as "situated in the village of Portsmouth, county of Saginaw and State aforesaid, agreeably to the plat of said village of Portsmouth, as adopted by the Portsmouth Company, which plat and subdivision of said village is recorded in the register's office in said county of Saginaw, and to which reference is hereby made for a more accurate description of the same." To this the defendant objected, that until there was proof of a plat of the village of Portsmouth, showing property to which the description of the property in question can apply, the deed was inadmissible in evidence; and it was received in evidence subject to this objection.

The plaintiff then gave in evidence, deeds from Joseph F. Marsac to Benois Tromble, from Benois Tromble to Lucretia Chappel, from Lucretia Chappel to James Watson, and from James Watson to the plaintiff, purporting to convey lots in Portsmouth, all of which were described with the same reference to the plat as in the deed from Howard and Williams. Also a deed from the Auditor-General to James Watson, of block 168 in Portsmouth, which was covered by the deed from Watson to plaintiff. This deed was given on a sale of the block for the taxes of 1851.

The plaintiff then called as a witness, Benjamin F. Partridge, who was shown a map or plat which purported to be acknowledged by Gardner D. Williams, Henry Howard and Benjamin F. Towne, trustees of the Portsmouth Company, May 5, 1837. The witness testified that this was a lithographic copy of a plat of Portsmouth. The deed from Watson to the plaintiff was then shown him, and the following question proposed: State if you know whether the lands described in that deed are situated on fractions two and three in fractional section 28, township 14 north of range 5 east? This was objected to, on the ground that it did not appear that the proprietors of the land had acknowledged any plat of the land laid out as a village. The court sustained the objection, and declared that the evidence was not competent for the purpose of identifying the land, but a plat must first be proved properly acknowledged by the proprietors. The following question was also overruled on the same ground: Do you know who is in possession of the property described in that deed?

The defendants on their part gave in evidence a mortgage of the lands described in the deed from Tromble to Chappel, in which they were described in the same way; which mortgage was given by Tromble "to Charles L. Richman and Lyon," dated June 24, 1839 (prior to the deed to Chappel), and an assignment to Richman of the interest of "Lyon" therein, indorsed on the back thereof, but not acknowledged or recorded. The defendants then introduced a deed from the sheriff of Saginaw county to Charles L. Richman, given on a statutory foreclosure of said mortgage, dated September 27, 1847, and with a sheriff's certificate indorsed that the sale would become absolute in one year unless the premises were sooner redeemed. This deed was accompanied by proof of the advertisement and sale. Defendants also proved a quitclaim deed of the premises from Charles L. Richman to Henry G. Scott, the death of said Henry G. Scott, and that the defendant Catharine Scott is his widow and the other defendants his heirs at law; also a receipt from Clark Moultrop, treasurer of the township in which the premises in controversy were situated, covering the taxes of 1851, for which block 168 was sold to Watson. Plaintiff then gave evidence by Tromble, tending to show payment of the Richman and Lyon mortgage before foreclosure, by money and a horse, and the defendant produced evidence tending to show the contrary.

The plaintiff requested the court to charge the jury, that if they found that both plaintiff and defendant claimed title to the property from Benois Tromble, the defendants were estopped from denying that Tromble had title; and in that case it was not necessary to prove that Tromble had title. This the court declined, and on the contrary charged that plaintiff must prove a legal title in himself, and the deeds put in evidence did not estop defendants.

The plaintiff also requested the court to charge, that the deeds from Williams to Marsac, and from Marsac to Tromble, being by lots and blocks according to the plat of Portsmouth, they and all persons claiming under them by such description are estopped from denying the existence of the plat, and that such deeds as between them and their grantees are conclusive evidence of its existence, and of the regularity of its acknowledgment and dedication. This the court also refused, and charged that the plaintiff must prove that such a plat was made by the proprietors of the land at the date of acknowledgment thereof.

The plaintiff further requested the court to charge the jury, that two years' redemption must be given on the foreclosure of said mortgage, and if not given, the foreclosure was void. The court charged that the foreclosure would be regulated by the statute in existence at the time the mortgage was executed.

The plaintiff also requested the court to charge, that the quitclaim deed from Richman to Scott conveyed no interest in the land which Richman held under the mortgage, unless the jury find also that the mortgage debt was assigned or transferred with it; that an assignment of the mortgage interest without the debt is a nullity. The court refused to so charge, and instructed the jury that the note or bond given with the mortgage passes with an assignment of the mortgage, and that the deed from Richman to Scott conveyed such right as the grantor had.

The plaintiff further requested the court to charge, that as to the tax title for 1851, the mere production of a receipt signed by the collector, without other proof of payment of the taxes, where his return is required to be under oath, was not sufficient evidence on which to declare the tax title void. This the court refused, and charged that the receipt was prima facie evidence of payment.

Judgment having passed for the defendants, the plaintiff brought error.

Judgment reversed, with costs, and a new trial granted.

Knight & Jenison, for plaintiff in error:

1. Where both parties in ejectment claim through a common ancestor or grantor, both are estopped from denying the title of the person from whom they claim: 5 Cow. 259; Meigs, 3; 4 Dana 479; I bid., 264; 1 B. Monr., 291;22 Ill. 603; 2 Metc. (Ky.), 288; 5 Ohio 124; 23 Penn. 199; 27 Ala. 582; 19 Geo. 331;2 A. K. Marsh., 648; 28 Miss. 600; 3 Johns. 332.

2. There is nothing in the law for the acknowledgment and recording of town plats that makes deeds void if the plat is not so acknowledged and recorded, or that affects the doctrine of admission and estoppel. There is no necessity of proving a recorded plat to show title or locality if it can be done without. As between the parties defendants are bound by the recitals in the deeds through which they claim: 9 Wend. 209; 7 Barr 378; 5 Cow. 216; 6 Binn. 231;4 Pet. 82. And the identity of the land may be proved by parol: 2 Greenl. Ev., § 308; 6 Dana 418; 2 H. & McH., 119; 6 Pet. 341; 5 S. & M., 329.

3. The assignment from Lyon to Richman was void, because not an assignment of the debt: 1 Hill on Mortg., 164; 3 Johns. 42; 2 Cow. 195; 19 Conn. 218. Or, at most, it was only a transfer of a naked trust: 2 Story Eq. Juris., § 1016; 4 Kent, (4th Ed.), 194. The debt not being assigned there was no foreclosure. Besides, there could be no legal foreclosure by an assignee whose assignment is not acknowledged and recorded: 2 Comp. L., § 5178, sub. 3

4. The town treasurer's receipt for taxes was not competent evidence: 4 Pick. 283; 4 S. & R., 551; 6 Binn. 1; 5 Vt. 556; 9 B. & C., 938.

Sutherland & Miller, for defendants in error:

1. The property claimed is described only by numbers of lots and blocks on a village plat: therefore no property other than that bearing such a description could be recovered. The burden of proof was on the plaintiff to show that there was property bearing the description. The court could not take judicial notice that there was such a plat, and the plaintiff must prove it. The allegation in the declaration is descriptive, requiring strict proof: 1 Greenl. Ev., §§ 56, 63, 62; 1 Smith Lead. Cas., Ed. of 1855, 738, 740, 755. When a plat is alleged, a legal plat is intended, and must be proved by the best evidence--the record or a certified copy. And though the evidence of Partridge might have been proper either before or after the proof of the plat, the court had a discretion to require the plat to be first produced.

2. Defendants were not estopped from denying the title of Tromble. There was no evidence of their being in possession under any of the deeds proved by them, or that they had possession or claimed title at or before the commencement of the suit. None of the intermediate...