Ready v. Kearsley

• Decision Date: 24 April 1866
• Citation: Ready v. Kearsley, 14 Mich. 215 (Mich. 1866)
• Court: Michigan Supreme Court
• Parties: Jeremiah Ready v. Edmund R. Kearsley and others

14 Mich. 215

Jeremiah Ready v. Edmund R. Kearsley and others

Supreme Court of Michigan

April 24, 1866

Heard October 5, 1865; October 6, 1865; October 7, 1865[Syllabus Material][Syllabus Material][Syllabus Material][Syllabus Material][Syllabus Material]

Error to Wayne circuit.

This was an action of ejectment brought by the original plaintiff, Jonathan Kearsley, now deceased, against Jeremiah Ready.The names of the defendants in error were substituted as plaintiffs below, under the statute.

On the 16th day of June, 1856, one James A. Girardin, who claimed an interest in the lot as one of the heirs of James Girardin, deceased, under a deed of the mayor, recorder, and aldermen, of May 27th, 1856, to said heirs, purchased of Daly the buildings on the lot, and received possession thereof from him; and the several subtenants in occupation of the buildings and lot, thereupon attorned to Girardin and took leases from him.Having in this manner obtained possession of the lot and buildings thereon, Girardin thenceforward claimed to hold the same for himself and the other heirs of James Girardin, deceased, and adversely to Kearsley, and subsequently, and before the commencement of this suit, leased the premises to the defendant, who was in possession, claiming to be Girardin's tenant, at the commencement of this suit.

Judgment was rendered for plaintiffs.All other facts necessary to a full understanding of the rulings of the circuit judge, and the points decided, are fully stated in the opinion.

Judgment of the court affirmed, with costs.

C. Tryon, and Knight & Jennison, for plaintiff in error:

The legal title to the land in question was in the government of the United States, acquired by conquest and treaty.

The defendants in error claim that the deed of trust from the mayor, recorder, and aldermen of Detroit, to Charles Stewart conveyed said title out of the government.The plaintiff in error contends that that deed is void, and does not convey any title whatever; and that the legal title to said land remained in the government up to the time when the said mayor, recorder, and aldermen executed the deed to the heirs of James Girardin, deceased, and that the latter deed conveyed to said heirs the full legal title to and possession of said land.

The mayor, recorder, and aldermen of Detroit had no power to execute such a deed as the one to Stewart.The act of congress, approved April 21, 1806, conferred upon the governor and judges of the territory of Michigan power and authority to lay out a town, including the whole of the old town of Detroit, and to hear, examine, and finally adjust all claims to lots therein, and give deeds for the same: 6 U.S. Stat. at Large, 62.

By the act of congress, approved August 29, 1842(5 U.S. Stat. at Large, 541), all the powers and obligations conferred upon said governor and judges were transferred to and vested in said mayor, recorder and aldermen.No other or new powers relative to disposing of lands and executing deeds for the same were given them.

The powers so conferred upon the governor and judges were specific and designated; and the same powers and obligations were so transferred to, and vested in said mayor, recorder and aldermen.Neither said governor and judges, nor said mayor, recorder and aldermen had the right to delegate those powers to any other person or persons, nor to confer any authority upon any one to act for them in executing said trusts, which were reposed in them and them only.They, as the attorneys and commissioners of the government, were required to hear, examine, and finally adjust all claims to lots, and give a deed to each and every person entitled thereto, by the terms of said act: 6 Mich. 189.

The law that an attorney is bound strictly by the authority and power given him by his principal, is too well settled to need the citation of numerous authorities.On that point there is no conflict.It is fully considered in Sugden on Powers, vol. 1, ch. 5, sec. 1, p. 222, of the transfer of powers.Where a power which cannot be transferred is delegated, the delegation is simply void: Sugd., 225;2 Atk. 88; 15 Law L., 120.

No trust of any description can be created for any purpose whatever, except such as is expressly authorized and defined: 14 Wend. 376.

The plaintiff in error further contends, that said deed is uncertain as to the grantee, and is therefore void, in that it purports to convey to "Charles Stewart, or his legal heirs or representatives."If a grant be made to J. S. or W. S., in the disjunctive, and in such like cases, it is utterly void for uncertainty: Shep.Touch.Title, Grant, 237;Co. Litt., 3, a;8 Johns. 385.

The said deed is void for uncertainty as to the person or persons of the cestuis que trust.It is contended that the person for whose use a trust is created, must be as certainly described in the deed as the grantee; the same as if the deed conveyed the land directly to the cestui que trust: 9 Johns. 74.

In speaking of a case decided in England, Willis, in his treatise on trust, says: "So that by the great authority of this determination, on clear law and reason, the cestui que trust is actually and absolutely seized of the freehold:" Willis on Trustees, 108; 10 Law L., 51.

He that accepts a trust, by becoming an acting trustee, takes it for the benefit of the person for whom he is trusted, and not for any advantage to himself.So entirely does this maxim prevail, that if a trust be imposed, the trustee can not take beneficially, although the trust be too indefinite for execution: 10 Law L., 57;2 Br. C. C., 270;1 Eden 226;Cruise'sDig., 484, and cases referred to; 2 Vesey & Beam., 297.

In this case, who is to decide who the rightful owners are?

The plaintiff in error further contends, that even if the said deed to Stewart, in trust, etc., is not void, it conveys no title whatever to Kearsley, or said defendants.The deed of said Stewart to Wyeth is for lot 47, by the old plan, and the land claimed to be conveyed to said Stewart, by said deed of trust, is for lot 47 by the new plan, and is a different piece of land.Besides, said deed from Stewart to Wyeth is a quit-claim, and therefore does not, by operation of law, convey any right to his grantee, of a subsequently acquired title, even if it had been the same land: 9 Cow. 13;4 Wend. 300;14 Johns. 193;11 Id. 91.

Douglass & Andrews, for defendants in error:

The error into which all parties had doubtless been led by the action of the governor and judges in respect to the plan of the city was discovered in 1846, after the powers and duties of the governor and judges, as a land board, were transferred to the common council of Detroit.And in that year the common council executed the instrument known as the "trust-deed."

What is the proper construction and effect of that "trust-deed?"

The recitals purport to explain its consideration, purpose and object.These recitals state the purpose and object to be, in general terms, to correct errors in the execution of their trusts as a land board by the governor and judges, and to do substantial justice.

They then go on to state the facts, which show what particular error the conveyance was designed to correct, and what just claim it was intended to satisfy.The grant is to Stewart or his heirs, which must be construed to mean to Stewart, if living; if deceased, to his heirs.If the land board had known or could safely have assumed to decide that Stewart was living, and had never conveyed the title derived under the governor and judges' deed of 1807, the grant would have been to him and his heirs simply.

The inaccurate and inartificial language of this declaration of trust creates the whole difficulty in the construction of the instrument.The conveyance is declared to be in trust for the use and benefit of the rightful owners of the premises hereinafter mentioned (to wit, lot 47, new plan), "claiming the same by virtue of mesne conveyance from the original grantee, or otherwise howsoever."

If this trust clause stood alone it might require correction by a bill in equity, but if, taking the whole instrument together, the intent clearly appears, that intent can be carried into effect by construction: 7 Mich. 69.

It is claimed that the deed is void, because in the alternative as to the grantee, "to Charles Stewart or to his legal heirs or representatives."Rightly construed it is to Charles Stewart, if living; if deceased, to his heirs, for he could have no heirs if living."Representatives," in this connection, is but a synonym for heirs.There is no uncertainty as to the grantee.Whether the grant is to Stewart or his heirs depends upon a fact which is certain and capable of ascertainment.

It is claimed that the deed is void on account of uncertainty as to the cestui que trust.But, if Stewart or his heirs had conveyed lot 47, old plan, who were the legal owners of the title was certain and capable of ascertainment, though unknown to the land board: 1 Barb. Ch., 1;19 Vt. 613.

Through the operation of the covenant of warranty in the deed from Wyeth to Kearsley, the subsequent deed of Stewart to Wyeth inured to Kearsley's benefit, and so would give him a perfect title, even if the first informal deed of Stewart to Wyeth were void: Rawle on Cov., 413; 2 Washb. on RealPr., 473, 474.

Objection was made to the admissibility of each of the deeds above mentioned, under which the plaintiffs below sought to derive title from Stewart, on the ground that their execution was not proved.But they were all over thirty years old and produced from the proper custody, and admissible in evidence as ancient deeds, without proof of their execution: 1 Greenl.Ev., § 144.

Objection was also made that these deeds...