ings, building bridges, and completing and repairing roads, as provided by law; and may make all necessary contracts, and do all other necessary acts in relation to the property and concerns of the county. R. S. 33, § 3. The commissioners of each county, by the law creating the office, which law is now repealed, were constituted a board for the transaction of county business. R. S. 39. All official business done by them should have been done in the name of the county, and not in their individual names. They were the servants or agents of the body politic, and their acts were its acts. The mortgage, therefore, should have been taken in the name of the county; but it is not void for the reason it was not so taken. In Jackson v. Carey, 8 J. R. 385, the deed was void for the want of a grantee capable of taking under the grant. The deed was made to "the people of the county of Otsego," who were not a corporation, and the Court in the case, say: "A grant, to be valid, must be to a corporation, or some person certain must be named, who can take by force of the grant, and who can hold, either in his own right or as a trustee." This was also the case in Hornbeck v. Westbrook, 9 J. R. 73. In the present case, there are no less than three grantees named in the mortgage, each of whom is capable of taking under the grant. It is not necessary to decide what effect, (if any) the words, "and their successors in office, commissioners of the county of Berrien," have

upon the grant; whether they are to be regarded as de[*343] scriptive of the persons of the grantees only, or as

indicative of the interest they were to take, and creating them trustees for the county. That they are such trustees, there is no doubt. They admit it in their answer; and, without such admission, the law would imply a trust from the facts in the case, they having, as agents of the county, taken a security in their own names, which they should have taken in the name of the county.

The mortgage should have been for the $1,000 only. The pardon did not require the costs to be paid by Shurte. Defendants were therefore wrong in requiring him to give security for them; and to that extent, the mortgage is void. They were

not intended as a gratuity to the county, but exacted as a right, under the pardon, and consented to by Shurte to obtain his liberty; and complainant, having succeeded to the rights of Shurte in the mortgaged premises, is entitled to have them deducted from the mortgage.

The mortgage must be declared good for the $1,000, and void for all over that amount; and complainant must pay the $1,000 with interest, from the date of the mortgage, and defendants' costs, in six months. In default thereof, the bill must be dismissed with costs.

*LAWRENCE CAVENAUGH v. ELMORE JAKEWAY [*344] AND EBENEZER JAKEWAY.

Irregularities in a sale, under an execution, must be corrected by applying to the Court out of which the writ issued, to set the sale aside. There must be fraud to give this Court jurisdiction; irregularity is not sufficient.'

DEMURRER to a bill to set aside a sale on execution.

A judgment was recovered in the Circuit Court for the county of Berrien, in April, 1840, by Jehiel Enos, against complainant, as principal, and one Johnson as surety, for $58.91 and costs of suit, and execution issued upon it to the sheriff, for $117.82, and levied upon the west half of the northwest quarter of section thirteen, town four south, of range eighteen west, and the north half of the northwest quarter of section twentyfour, of the same town and range, belonging to complainant. On the 20th day of July, 1840, the sheriff sold the two lots together, instead of separately as the statute requires, R. S.

1See Blair v. Compton, 33 Mich., 422; Campau v. Godfrey, 18 id., 44; Ross v. Mead, 5 Gilm., 171; Prather v. Hill, 36 Ill., 402; Gillespie v. Smith, 29 id., 481; Fergus v. Woodworth, 44 id., 374; McMullen v. Goble, 47 id., 67; Hay v. Baugh, 77 id., 500; Roberts v. Fleming, 53 id., 196; Winchell v. Edwards, 57 id., 41; Osgood v. Blackmore, 59 id., 261; Rigney v. Small, 60 id., 416.

1w344 18 44 33 422

1w344 113 57

1w3 117 31 1w 95

gave

Cavenaugh v. Jakeway.

324, 9, to the defendant, Elmore Jakeway, for $131.40, and him a certificate for a deed in two years, unless the lots were redeemed within that time. Elmore Jakeway assigned the certificate to Ebenezer Jakeway, to whom the sheriff deeded the lots, after the expiration of the two years. The bill stated that the two lots were worth $1,500 when they were sold; that either one of them was at that time worth $300; and that complainant had been prevented from redeeming either one of them, by reason of their having been sold together.

Miller, in support of the demurrer.

Bacon, contra.

[*345] *THE CHANCELLOR. It was clearly the duty of the officer to have sold the lots separately; and by selling them together, he has probably incurred the penalty given by the fifth section of the act. When several known lots, tracts, or parcels, are levied on, the ninth section requires them to be separately exposed for sale. This, however, is directory to the officer merely, and a non-compliance on his part will not make the sale void. The irregularity must be corrected by applying to the court out of which the execution issued, to set the sale aside. Whether the irregularity would affect a purchaser, not a party to the suit, as in the present case; or whether, he being a a party, the Court would set aside the sale after the two years' redemption had expired, it is not necessary for this Court to decide; nor can any such consideration give it jurisdiction, where it has none in the first instance.

There must be fraud to give this Court jurisdiction; irregularity is not sufficient. Chancellor Kent said in Shottenkirk v. Wheeler, 3 J. C. R. 280, that there was no case in which equity had undertaken to question a judgment for irregularity. Every court has power to control its own process in such a way as to prevent the abuse of it. It has as much power over its process, as any other proceeding before it. Stratford v. Twynam, 1 Jac. R. 418.

Ingerson v. Starkweather.

The bill does not make out a case of fraud. It alleges the lots were worth $1,500, when they were sold, and that they sold for $131.40 only. If the sale had been absolute, the great inadequacy of price would be a strong badge of fraud; but it cannot be so considered, when it is recollected complainant had two years to redeem in, by paying the 131.40, with ten per cent. interest.

Demurrer allowed, and bill dismissed with costs.

[*346] *CYRUS INGERSON v. JOHN STARKWEATHER AND

OTHERS.

An agent, whether of the public or of individuals, who is authorized to sell property for the best price that can be obtained for it, cannot become the purchaser, either in his own name or that of another, whether the sale be public or private.1

To cut off the equities of the original parties to a promissory note, in the hands of a third person, the holder must not have received it in payment of an antecedent debt, but he must have parted with something for it at the time, or incurred responsibilities to a third person on the credit of it." BILL to have certain promissory notes delivered up and canceled.

April 8th, 1839, complainant purchased of defendant Starkweather, who was then clerk to the Superintendent of Public Instruction, the west half of the northwest quarter of section sixteen, town.six south, of range ten west, and executed to him the notes in question, payable to him or order, in part payment. The lot purchased was a part of the school lands belonging to

'See Walton v. Torrey, Harr. Ch., 259; Beaubien v. Poupard, id., 206; Clute r. Barron, 2 Mich., 192; People r. Township Board of Overyssel, 11 id., 222; Dwight r. Blackmar, 2 id., 330; Ames v. Port Huron Log Driving & Booming Co., 11 id., 139; F. & P. N. R. R. Co. r. Dewey, 14 id., 477.

2

* Overruled on this point. See Bostwick v. Dodge, 1 Doug., 413; Outwite r. Porter, 13 Mich., 533; Baker v. Pierson, 5 id., 459.

1w 346 2 195

2 333 5 459

11 226

Ingerson v. Starkweather.

the State. By law, the Superintendent of Public Instruction was required to sell all school lands at public auction, at not less than eight dollars per acre; and, after having offered them twice in that way, in different years, without finding a purchaser, he was to sell them at that price, at private sale. The bill charged that Starkweather called on complainant, and offered to sell him the lot, stating that he had purchased it, at one of the public sales, at eight dollars per acre; that no certificate had been given him for it, but that he had blank certificates by him, signed by the Superintendent, and, if they could make a bargain, he would fill up one to the complainant. That complainant, confiding in these representations, purchased the

lot, and agreed to pay the eight dollars per acre to the [*347] school fund, and three *hundred and twenty dollars to Starkweather, for which last sum he executed to him his three promissory notes; and Starkweather filled up and delivered to him the following certificate:

"In the name of the people of the State of Michigan, I, John D. Pierce, Superintendent of Public Instruction, agreeable to the provisions of chapter one, title twelve, of the revised statutes, hereby certify, that at a private sale held pursuant to the statute aforesaid, on the eighth day of April, A. D. 1839, Cyrus Ingerson, of St. Joseph County, Michigan, for the sum of $640, has purchased the following described land, to wit: West half of the northwest quarter of section number sixteen, in township number six south, range ten west, containing eighty acres, according to the returns of the Surveyor General, at eight dollars per acre. And I do further certify that the consideration received therefor from the said purchaser, is the sum of sixty-four dollars, and that the consideration to be paid by the said purchaser is the sum of five hundred and seventysix dollars, in nine equal annual payments, at an interest of seven per centum, to be paid annually at the office of said Superintendent of Public Instruction; and said installments may be paid before the same shall become due, by giving three months' previous notice to the said Superintendent. And in case of the non-payment of the said interest annually, and in