recover possession of a parcel of land in the city of Marshall. The circuit judge directed a verdict for complainant, and defendant brings error.

The property in question is a portion of what complainant claims as its right of way or depot grounds. The complainant introduced a lease of the premises to defendant, and showed that he had failed to surrender the premises according to its terms of rental. The defendant then sought to show that he was himself the owner of the premises, and had been for many years before the lease was executed, and was in possession when he received the lease from complainant. It appeared that in 1891 defendant conveyed the land adjoining (and, it is claimed by defendant, the land in question) to the National City Bank of Marshall, and that a similar lease to that made by the defendant was executed by the receiver of the bank; that, before executing the lease, the receiver advised with defendant, who stated his understanding that the building of defendant extended over the line, and that a corner of the building was on railroad ground, and advised the receiver to sign the lease. This lease was not under seal. The land was turned back to defendant, with the lease outstanding, and the lease was turned over to defendant. The record does not show very clearly what the nature of the holding of the receiver of the bank was, as against the defendant, although it is inferable that the defendant still retained an interest in the land, and that reliance was placed on him by the receiver in determining whether to accept the first lease, and that, if he was mistaken as to the line between his property and that of the company, the receiver was likewise mistaken. The defendant offered to show that he owned, and had for 15 years owned and occupied, the land in question, and that the lease was made under a mistake of fact as to his ownership. This testimony was excluded.

A number of questions are raised,-among others, the right of the company to lease any portion of its right of

120 MICH.-27.

way. The lease in question was made subject to termination on 60 days' notice, and was made to a manufacturing company with a view to affording facilities for furnishing freight to the company. Such a lease is not invalid. Grand Trunk R. Co. v. Richardson, 91 U. S. 454; Illinois Central R. Co. v. Wathen, 17 Ill. App. 582; Gurney v. Elevator Co., 63 Minn. 70; Roby v. Railroad Co., 142 N. Y. 176.

The important question is whether the defendant was in position to raise the question of title; for, if he was, the circuit judge was in error in his ruling, and the remedy is in ejectment. If the possession of the defendant had been uninterrupted, his offer of proof would have indicated that he was prepared to show-First, that he had title to the premises in question; second, that he took the lease in question under a mistake of fact; third, that he did not derive possession from the complainant. An estoppel of the tenant arises out of indentures under seal, or from possession given, whereby an advantage is derived by the tenant from the act of the landlord. But where one in possession agrees by parol, or by an instrument not under seal, to rent, there is no just ground for denying the right of such tenant to show that the agreement was made under a mistake of fact, that the title to the property was in himself, and the lease therefore without consideration. Fuller v. Sweet, 30 Mich. 237 (18 Am. Rep. 122); 2 Tayl. Landl. & Ten. § 707, and cases cited in note.

It is claimed by complainant that defendant derived his possession from the receiver of the bank, who held under a lease from complainant, and that it was in fact deriving possession from complainant. If the absolute title passed to the bank from defendant, this position of complainant would be unassailable, unless a like mistake was shown by the receiver to relieve him from the apparent estoppel. We cannot determine on this record that the full title passed to the bank; nor are we, in view of the broad offer of the defendant, able to say that he was not prepared to show the same reason for a failure of estoppel by the receiver as applied to himself.

We think the judgment should be reversed, and a new trial ordered.

The other Justices concurred.

THORKILDSEN v. CARPENTER.

TAX DEEDS--QUITCLAIM-FAILURE OF TITLE-RECOVERY OF CON

SIDERATION.

Where the holder of a tax title conveys by quitclaim deed, both parties acting in good faith, believing that the deed conveyed a valid title, the grantee is not entitled to recover back the consideration on a failure of the title.

Appeal from Muskegon; Russell, J. Submitted April 19, 1899. Decided June 19, 1899.

Bill by Thomas Thorkildsen against George W. Carpenter and Stephen H. Clink for a refunding of moneys. paid in part consideration for a deed, and for the cancellation of a note and mortgage given for the balance. From a decree dismissing the bill on demurrer, complainant appeals. Affirmed.

Defendant Carpenter was the owner of a tax title upon certain lands, the original title to which was in a corporation known as the Lake Harbor Company of Muskegon. On August 7, 1897, he sold these lands to the complainant, and executed to him a quitclaim deed. The consideration was $525,-$275 in cash, and note and mortgage given back upon the same land for $250. The deed and mortgage were duly recorded. The contract was made through defendant Clink, an attorney, who stated to complainant, as alleged in the bill, that

"Said tax deed conveyed an absolute and paramount title; that the Supreme Court had been holding tax deeds for that year valid, and enforcing them; that, in the opinion of said Clink, there could be no successful defense to said tax deed or title, and that, if your orator would purchase said above-described premises from said Carpenter, he would receive a good and indefeasible title."

In January following, the auditor general canceled this sale and deed to Carpenter, and issued a certificate of error, which was duly recorded in the office of the register of deeds. On being informed by his solicitor of this fact, complainant tendered to defendant Carpenter a dulyexecuted deed of said premises, and demanded a return of his money and the surrender and discharge of the note and mortgage. This was refused, and thereupon complainant filed this bill for the cancellation of the note and mortgage and the recovery of that portion of the purchase price paid in cash. To this bill the defendants demurred. The demurrer was sustained, and the bill dismissed. bill also states that complainant had been informed by his solicitor that the cancellation by the auditor general was invalid.

Alex. Sutherland, for complainant.

H. B. Fallass, for defendant Carpenter.

Stephen H. Clink, in pro. per.

The

GRANT, C. J. (after stating the facts). Complainant insists that he is entitled to relief upon any one of four grounds: (1) Want of consideration; (2) false representations; (3) mutual mistake; (4) nonexistence of the subject-matter.

Good faith on the part of the defendants is conceded. It is also conceded that all parties acted in good faith, and believed the tax title was good. This is evidently a case of speculation. There was no fraud. Complainant chose to rely upon a quitclaim deed, by which he took only the title which defendant Carpenter had. Peters v. Cartier,

80 Mich. 124 (20 Am. St. Rep. 508); Beakley v. Robert, ante, 209. Complainant purchased at his own risk. Courts cannot read covenants into deeds. This would be in direct contravention of the statute. 2 How. Stat. § 5655. Complainant chose to buy upon the faith of the validity of the tax title without any examination. It was a voluntary payment, not induced by any fraud. Under his own allegation, Mr. Clink gave him only an opinion as to the soundness of the title. Where one took a quitclaim deed, and was evicted by an older and better title, held, that he could not recover the price paid. Soper v. Stevens, 14 Me. 133. Where both parties acted under the belief that the quitclaim deed conveyed a valid title, and the title wholly failed, held, that the grantee could not recover back, "for the parties to deeds know that a warranty is required to hold the seller to warrant the title, and they regulate their contracts accordingly." Earle v. De Witt, 6 Allen, 520, cited and approved in Tucker v. White, 125 Mass. 346. Chancellor Kent held: "The vendor [of land] selling in good faith is not responsible for the goodness of his title beyond the extent of his covenants." Gouverneur v. Elmendorf, 5 Johns. Ch. 79. See, also, Stoddard v. Prescott, 58 Mich. 542; Inhabitants of Barkhamsted v. Case, 5 Conn. 528 (13 Am. Dec. 92); Clark v. Sigourney, 17 Conn. 511.

Decree affirmed, with costs.

The other Justices concurred.