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think it was clearly the intention of the ties in the bond given by the replevying party. Legislature to give to all the original owners Section 29 provides that when either party to of land the right conferred by the act of that fact may be proved on the trial, or on the

an action of replevin shall have only a lien 1897, viz., to obtain a reconveyance of their assessment of value or damages. Comp. Laws, land thereafter purchased, whether from the 8.10,681 (section 35 of the same chapter), prostate directly or at tax sales, by paying the vides that whenever any damages shall be as

sessed the same notice shall be given the adtax title purchasers the amounts provided verse party as is required by law in similar by law. Such, we think, has been the un- personal actions; and section 10,673 provides derstanding of the profession. Many cases that after issue joined in replevin either party have been before the courts where the title may give notice of trial, and if neither shail

have noticed the cause for trial the defendant has been acquired from the state in the may move for judgment of nonsuit. Held that, same manner as that acquired by the defend- where plaintiff in replevin made default after ant Alston, and no question has before been the case had been duly noticed for trial, the raised as to the right to the benefit of the plaintiff nonsuited, but might at that time take

defendant was not only entitled to have the act." The original record and briefs in that judgment for damages arising from the replevin. case show that the attention of this court [Ed. Note.--For other cases, see Replevin, was called to the case of Briggs v. Gulich, Cent. Dig. $$ 398-411; Dec. Dig. & 103.*] supra.

3. APPEAL AND ERROR ($ 761*)—BRIEFS-FAIL[2] The trial court was in error in holding


Where an appealing party assigns as error that a notice by the tax title purchaser, as the unconstitutionality of a statute, and by required by the present tax law, was not suggestion, rather than discussion, urges in his necessary to be given in the instant case, i brief that such statute works a deprivation of and in directing a verdict for defendant. | late court will not seek for the infirmity in

property without due process of law, the appelAs the court cannot finally dispose of the the statute. case, for the reason that the record is not [Ed. Note. For other cases, see Appeal and sufficiently clear to inform the court of all Error, Cent. Dig. $ 3096; Dec, Dig. $ 761.*] the necessary facts, other questions present

Error to Circuit Court, Lapeer County; ed will not be considered, except to say that George W. Smith, Judge. the notices required by the tax law, which

Replevin by Charles H. Anderson against were claimed to have been served upon some David Henderson. There was judgment for of the plaintiffs, did not conform with the plaintiff in the Justice's Court, and defendstatutory requirements, in that they did not ant appealed to the Circuit Court, where give the state, county, or township in which judgment was for defendant against plainthe lands were situated. Tucker v. Van tiff and his surety, Orin Travis, and the latWinkle, 142 Mich. 210, 105 N. W. 607; San

ter brings error. Affirmed. born v. Alston, supra. Nor did they give to

Argued before OSTRANDER, C. J., and each parcel of land described and assessed BIRD, MOORE, BLAIR, and STONE, JJ. separately the amount paid for each description. Jackson v. Mason, 143 Mich. 355, 106

William E. Brown, for appellant. H. W. N. W. 1112. It was error for the court to Smith, for appellee. admit these notices in evidence over the objections of plaintiff.

OSTRANDER, C. J. In an action of reFor the errors pointed out, the judgment plevin, in justice's court, a judgment was is reversed, and a new trial ordered.

rendered in favor of the plaintiff. The defendant appealed to the circuit court, in which court, the cause being regularly upon

the calendar for trial, and the plaintiff not ANDERSON et al. V. HENDERSON. appearing, he was called in open court, and (Supreme Court of Michigan. Nov. 3, 1911.) still not appearing was nonsuited, and, 1. APPEAL AND ERROR (8 1024*)—REVIEW– the defendant claiming a lien on the propFINDINGS OF Fact -- MOTION TO VACATE | erty described in the writ of replevin taken JUDGMENT.

The finding of the trial court upon motion on the writ and delivered to the plaintiff, to set aside a judgment that the defendant was a jury was then and there impaneled, a estopped to deny his liability upon a surety verdict was returned in favor of the debond, being supported by affidavits, is not sub- fendant for his special lien and interest in ject to review upon error.

[Ed. Note.-For other cases, see Appeal and said property, and a judgment was entered Drror, Dec. Dig. $ 1024.* ]

on the verdict for said defendant against 2. REPLEVIN (8 103*)—LIABILITY OF PLAIN- the plaintiff and the surety who signed the TIFF-ENFORCEMENT IN REPLEVIN PROCEED- replevin bond in justice's court. Afterwards

the surety moved to set aside the judgment, Pub. Acts 1899, No. 246, amending section assigning as reasons that (1) no notice was 34 of Rev. St. 1846, c. 124 (Comp. Laws, $ 10,680), provides that whenever the defendant served upon him that the cause was pendshall be entitled to a return of property re-ing, or that a judgment would be taken plevied he may take judgment for the value of against him upon default of the plaintiff; the property, subject to the provisions of section 29 (section 10,675), and in such case he (2) the surety did not execute the bond, and shall be entitled to a judgment against the sure

not liable thereon; (3) the act au



thorizing the taking of the judgment against upon the execution of a bond running to said surety without notice to him was un- the officer. constitutional and void. In support of the Before the amendment of 1899. section 34 motion, various affidavits were presented. of the act (Rev. St. 1846, c. 124; 3 Comp. Counter affidavits were filed. The motion Laws, $ 10,680) read as follows: "Whenever was denied. The said surety reviews the the defendant shall be entitled to a return action of the trial court upon writ of error. of the property replevied, instead of taking Farious errors are assigned, questioning the judgment for such return as above providconclusion of the court upon the facts; ed, he may take judgment for the value of one upon the refusal to hold that the act the property replevied, in which case such authorizing the taking of judgment against value shall be assessed on the trial, or upon the surety without notice to him was un- the assessment of damages, as the case constitutional, and one upon the refusal of may be, subject to the provisions of section the court to set aside the judgment and twenty-nine of this chapter." The Legisgrant the surety a new trial to determine lature added the following: “And in such his liability upon the bond.

case he shall be entitled to a judgment [1] It is the claim of the appellant that against the sureties in the bond given by after signing the bond in the replevin suit the opposite party, on the delivery of the a writ of replevin was issued and returned property to him by the officer, as well as without service; that thereafter a new affi- against the principal. When judgment shall davit was made and a new writ issued, the be rendered against a party and his sureties, old bond being amended by inserting new pursuant to the provisions of this section, dates therein; and that he was not con- any execution issued thereon shall direct the sulted and did not consent to such use of the officer to whom it is directed to make the bond signed by him, nor to become surety in amount thereof out of the goods, chattels, the suit last begun. It is his further claim lands and tenements of the principal, namthat if proper practice had been pursued ing hiin, and for want thereof, out of the in the circuit court—that is to say, if he goods, chattels, lands and tenements of the had been notified that a judgment was to be sureties." taken against him-he could in that court and This section was and is relied upon to susproceeding have made the defense asserted. tain the judgment. The section 29 referred The court below was unable to find, and so to in said section 34, is the section (Comp. stated, whether appellant did or did not Laws, $ 10,675) which provides that: "When consent to the use of the old bond in the either of the parties to an action of replevin, new suit, and did find that appellant knew, at the time of the commencement of the before the cause was determined in justice's suit, shall have only a lien upon court, and after judgment was rendered the goods and chattels described in the writ, therein, that the cause was proceeding in and is not the general owner thereof, that reliance upon the bond thus filed; that he fact may be proved on the trial, or on the was estopped to now assert nonliability assessment of value, or on the assessment upon the bond. The conclusion was sup

of damages, in all cases arising under tuis ported by the affidavits, and we find nothing chapter; and the finding of the jury, or in it subject to review on error.

court, as the case may be, shall be accord[2] Is the judgment liable to be set aside ing to such fact, and the court shall therebecause irregularly entered, or because of upon render such judgment as shall be just want of jurisdiction to render it? Previ

between the parties."

We do not understand that it is claimed ous to 1899, the statute did not provide for entering a judgment in replevin against any ing judgment for a lien or special interest

that this provision for determining and givone, except the plaintiff or the defendant. There was

in the goods seized is not applicable to jusno provision for rendering a

tices' courts, or to the determination of causjudgment against the surety in the replev

es heard on appeal from justices' courts. It in bond in any case. In 1899 (Act 246,

is not claimed, either, that section 34 of the Public Acts of 1899) considerable amend

act (section 10,680) does not in terms permit ments were made to the statute, relating a judgment for the amount of the special to 'replevin proceedings in circuit courts. lien to be entered against the surety in the Among others is a provision for returning replevin bond. We therefore «give no attenproperty taken on the writ to the custody tion to either of these propositions. It is of the defendant, and one permitting either claimed that because plaintiff became non. party, before the delivery of the property suit no determination of the amount of the by the officer to the opposite party, to claim lien could be made without some further and to secure a determination of his claim, notice; that only a judgment of nonsuit could that the property replevined had a special be entered, and thereafter a 14-day notice to value to him which could not be satisfied in plaintiff of assessment of damages was remoney, for which reason he ought not to quired. This claim is predicated of the probe deprived of its custody. The sheriff, hav- visions of 3 Comp. Laws, $ 10,681, which ing seized the property, could surrender its reads: “Whenever any damages shall be as

in this chapter, the same notice thereof shall be given to the adverse party, as is required by law, and the practice of the court in the like cases in personal actions.” In Wheeler v. Wilkins, 19 Mich. 78, relied upon by appellant, the proceedings in replevin were quashed on motion of defendant. In the order which was made was the provision that the cause “stand for assessment of damages.” No notice of assessment was given, and no judgment of waiver of return of the goods was entered, but at a subsequent term the court heard testimony and assessed damages for detention. In Hill v. Webber, 50 Mich. 142, 15 N. W. 52, also relied upon by appellant, it appeared that neither party had noticed the cause for trial, although notices for two terms of court might have been given. Three days in advance of the opening of the second term defendants moved specially for nonsuit, filing and serving copy of affidavit and entering the motion in the special motion book. Later, in the absence of attorneys for plaintiff, the motion was granted, defendants filed a waiver of return of the property and submitted proofs of its value, for the amount of which the court at once entered judgment. These cases are not controlling of the present Case. In this case, the cause was noticed for trial at two terms of court, and we assume at the third term. The record is not very complete upon the subject, but we assume from what appears and from the arguments which are made that at the third term the cause was regularly on the calendar and reached for trial. A jury was selected; the plaintiff was called and did not appear. It is provided in 3 Comp. Laws, $ 10,673, that: “After issue joined in any action of replevin either party may give notice of trial and if neither party shall have noticed the cause for trial, the defendant may move for judgment as in the case of non-suit, in the same manner as in personal actions.” We have no such case. We do not understand that defendant was required to accept merely a judgment of nonsuit with such interlocutory order as would continue the cause to some subsequent date; but that, being in court ready for trial, he had the right to then proceed as he might be advised to have his rights determined. [3] The point that the law violates the Constitution is not much discussed in the brief for appellant. It is suggested, rather than urged, that the appellant will be deprived of his property without due process of law, and, further, that the surety in a replevin bond in justice's court cannot he presumed to have contemplated that in the circuit court, on an appeal, judgment might be rendered against him without a hearing. We shall not seek for infirmity in the statute, and, as it appears to be admitted that

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5. VENDOR AND PURCHASER o 341*)—RECOWERY of PURCHASE MONEY—PLEADING. In an action on the common counts to recover an advance payment made on an executory contract for the purchase of land, the plaintiff filed a bill of particulars, stating that his action was brought for money paid on the price of certain lands under an executory contract, which contract was thereafter rescinded by the plaintiff, “for the reason that the defendant did not have, and could not furnish, a good marketable title thereto, and could not perform said contract in accordance with its terms.” Held that, though the declaration contained no special count on the contract, evidence as to the contract was admissible under the declaration and the bill of particulars.

[Ed. Note.—For other cases, see Vendor and Purchaser, Dec. Dig. § 341.*]


It is not necessary that the vendor have a perfect title at the time of the execution of the contract, but it is sufficient if his title, though defective, may be perfected, and that the contract is made by the vendor in good faith, and that he has such an interest in the subjectmatter of the contract, or is so situated with reference thereto, that he can convey a good title at the proper time; and hence the vendor is not in default before the time when the con

tract requires him to convey. [Ed. Note.—For other cases, see Vendor and

floor. Cent. Dig. §§ 271-275; Dec. Dig.

Error to Circuit Court, Newaygo County; Clarence W. Sessions, Judge.

Action by Oscar Silfver against George F. Daenzer. Judgment for plaintiff, and defendant brings error. Reversed, and new trial ordered.

Argued before OSTRANDER, C. J., and BIRD, BROOKE, BLAIR, and STONE, JJ.

Everett & Riblet, for appellant. William Carpenter, for appellee.

BLAIR, J. This is an action on the common counts to recover the down payment on a land contract because of the vendor's defective title. The following bill of particulars was filed: Take notice that the following is a bill of particulars of the plaintiff's demand in this cause, and for the recovery of which this action is brought, to wit: 1907. Sept. 27. Money paid to the defendant by the plaintiff as a part of the purchase price of the following described lands situated in the township of Sherman, county of Newaygo and state of Michigan, viz: The east half (E. 14) of the N. E. "4 of section 3 ; the north half of the S. W. 4 and the S. W. 4 of the S. W. 14 of section 11, all in town 13 N., range 13 W., under an executory contract for the sale thereof made between the defendant and the plaintiff on that date, which contract was thereafter rescinded by the plaintiff for the reason that the defendant did not have, and could not furnish, a good marketable title thereto, and could not perform said contract in accordance with its terms......... 1908. Jan. 25. Paid to Wm. Carpenter for examination of title to said lands and opinion thereon at the request of the defendant . . . . . . . . . . . . . . . . . . . . . . . . * - - - - - - - - - - - - - To interest on the above items.

By the contract executed September 27, 1907, the defendant agreed to sell to plaintiff, for a consideration of $1,500, 200 acres of land in Sherman township, Newaygo county. The terms of the contract, in part, are as follows: “First party reserves all saw timber, and cedar, with privilege to remove for a period of three years from the first day of April, 1908, for the said sum of fifteen hundred dollars, which said party of the second part hereby agrees to pay to the said party of the first part, as follows: Four hundred dollars on delivery of this contract, receipt being hereby confessed and acknowledged, and three hundred dollars each and every six months until the full amount of the said fifteen hundred dollars is paid. Second party reserves the right to pay on or before the dates above mentioned, with Interest on all sums at any time unpaid thereon at the rate of six per cent. per annum, payable with each payment. Said party of the second part also agrees to pay in

due season all taxes and assessments, extraordinary as well as ordinary, that shall be taxed or assessed on said land, including the taxes thereon for the year 1907. It is agreed by the parties hereto, that the said party of the first part, on receiving payment in full of the said principal and interest at the times and in the manner above mentioned, and of all other sums chargeable in his favor hereon, shall and will, at his own proper cost and expense, execute and deliver to the said party of the second part, a good and sufficient warranty deed of said above described land, free and clear of and from all liens' and incumbrances, except such as may have accrued on said land subsequent to the date hereof, by or through the acts of negligence of said party of the second part. It is also agreed by the parties hereto, that said party of the second part shall have possession of said land under this contract, on the 27th day of September, 1907.” When the contract was offered in evidence, defendant made the following objections: “We desire to at this time object to any evidence being received under the declaration, for the reason that its being based upon this contract must necessarily have a special count declaring especially upon the contract. We have here a simple declaration on the common counts, and not a special count upon the declaration which is required under the rule of law, as we look at it, and for that reason we object to it as being incompetent. * * * And the further objection that they must aver in their declaration a tender of the purchase money in full and set forth a reason for the nonpayment before he can recover back such of the purchase money as he may have paid on it.” The objections were overruled and exceptions taken. At the time of executing the contract, defendant told plaintiff that the title was good, and that he would send him the abstracts. Early in October, 1907, defendant mailed the abstracts to plaintiff at Peoria, Ill., where he resided. Plaintiff submitted them to his attorney at Peoria, who advised him that the title was defective, and defendant was notified to that effect. November 4, 1907, defendant wrote to plaintiff, in part, as follows: “I received your letter a few days ago. I am also in receipt of a letter from T. A. Cameron with abstract for the land enclosed. I note also the objections he makes to title and I now suggest that you place the abstracts with a Michigan attorney for examination, the same to be at my expense if not found good.” In accordance with this letter, the plaintiff caused the abstracts to be submitted to Mr. Wm. Carpenter, of Muskegon, for his opinion, which coincided with that of the Peoria lawyer. Prior to April 3, 1908, the abstracts and the opinions thereon were forwarded to defendant with a letter addressed to Mr. Daenzer, of White Cloud, Mich., stating that Mr. Silfver desired to call off the deal or rescind the contract which he had made for the purchase of these lands mentioned in this contract in evidence, and that he demanded the return of the money paid by him and of the payment of $15 which he had paid under an agreement with Mr. Daenzer to Mr. Carpenter; that he would not wait longer; that nothing had been done towards perfecting the title thus far, so far as they knew; and that he would wait no longer, and wanted his money and interest upon his money. On April 3, 1908, defendant wrote to the Peoria lawyer in part as follows: “In reply to your last letter regarding Mr. Silfver money, I will not send it back to him, but I am going to carry out my part of the contract and straighten up the title. I have the abstracts, but my attorney has been out of town. He will return home tomorrow. * * * Please tell Mr. Silfver that I have not received the $300.00, with interest, which was due the 22nd of last month. Tell Mr. Silfver to carry out his part of the contract as it calls for. L will have the title straightened up as soon as possible.” On April 16, 1908, defendant's attorney wrote the following letter: “Mr. Fred Daenzer has handed me several abstracts of some land in Sherman township, this county, together with a letter addressed to you by Mr. Carpenter of Muskegon, this state. I am this day writing Mr. Daenzer with a view of getting this matter in hand and I believe that if you will have just a little patience with us that there will be no difficulty in convincing you that Mr. Daenzer has a marketable title and is in a position to convey it to your client.” On March 6, 1909, plaintiff served formal notice of rescission of the contract, and demanded repayment of his money. This was refused, and in July, 1909, this suit was commenced. Upon the trial, defendant's counsel made the following statement: “We might state that we do not claim that the whole of these titles have been perfected up to this time, but I may state that our claim in that connection is that we are not obliged to perfect it; under our claim we have until the fulfillment of the contract on the part of Mr. Silfver in which to complete the perfecting of title, if there are any defects in it.” Defendant testified: “I don't now claim that I have the title all cleared, but pretty nearly all cleared up. I have proceedings pending in court to perfect a portion of the title. There was considerable done towards perfecting the title prior to March 6, 1909. I turned it over to Mr. Riblet two years ago this last March, and he went to work to clear up the title.” The lands in question were wild lands, and

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep"r Indexes

of. Plaintiff testified: “At the time I discovered the defects, I was willing to take the property if those defects were cured. Q. You were willing to allow Mr. Daenzer time in which to remedy these defects if it was necessary? A. Yes.” The abstracts of title were received in evidence as Exhibits C, D, E, and F, against defendant's objection that they were “immaterial and incompetent for the reason, first, that the plaintiff here cannot recover without first tendering the performance of the contract on his part, and tendering possession back to the defendant, Mr. Daenzer. There is further reason that they are incompetent under the pleadings. The Court: You mean because the declaration does not set forth the contract with the special count? Mr. Everett: That is one thing; yes.” Exception was duly taken. Defendant further excepted to the refusal of the court to strike out the testimony of Mr. Carpenter that he had never received notice of the perfection of the titles, “for the reason that it is immaterial under our view Of the case; we will claim and now claim that the plaintiff cannot recover, for the reason that he has not paid the entire purchase price stated in the contract, nor tendered it, and until that time he cannot recover, and for that reason any evidence with reference to this title is absolutely immaterial.” The case was tried by the court, and after the close of the testimony and the argument the plaintiff made and filed a request for findings of fact and law, and “the defendant presented to the court such points of law as the defendant deemed material.” The court entered judgment for plaintiff without filing findings of fact or of law. Defendant moved for an order vacating the judgment, “so that the request of findings of fact and law now on file in this court may and will have legal effect, for the following reasons: (1) Because to vacate and set aside the judgment for the purpose above mentioned will give the defendant the right to review said case in the Supreme Court of this state on all questions which would be open to him. (2) Because if said judgment was not set aside and vacated, and the defendant given the right to file the request for findings of fact and law prior to the entry of judgment, it would deprive him of right and justice. (3) Because said defendant believed that on account of the filing of request for findings of fact by the plaintiff's attorneys in this case that findings of fact and law would be filed prior to the entry of judgment.” This motion was denied and exception taken. Defendant alleged various exceptions to the rendition of judgment, and brings the record to this court for review upon writ of error. The assignments of error raise the following questions: (1) Did the court err

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