the tax law culminated in this sale to him, established an unincumbered fee in the land, and he having taken all the statutory steps after the sale to him in time and manner as provided by law, and no repurchase having been made, the defendant was guilty of unlawfully withholding from him possession thereof; that any defense interposed in an action of ejectment to lessen the estate conveyed by such deeds by taking away the right of possession is a collateral attack upon the decree and proceedings upon which such deeds are based and is not permissible. This amounts to a request for a directed verdict for plaintiff. The court refused these requests, and granted defendant's motion. A verdict was accordingly directed, and upon this verdict judgment was entered in favor of defendant. The case is brought here upon a writ of error. Errors are assigned by appellant upon the refusal of the court to direct a verdict in his favor, and because a verdict was directed in favor of defendant.

The declaration filed in this case was the ordinary declaration in ejectment. Defendant gave notice under the plea of the general issue that it did not own or claim to own the lands in question, but, on the contrary, only claimed an easement therein for the purpose of public travel, and that both descriptions were used by the public for such purposes as parts of public highways; that the right of the public to use the lands could not be determined in ejectment.

In the brief of appellant it is claimed that defendant in the stipulation of facts admits

"That the decree of the circuit court for the county of Wayne decreeing that the taxes involved were a valid lien against the lands, and that the lands should be sold to satisfy such lien, was a valid decree."

Defendant denies that the stipulation of facts warrants such claim, and insists that it is only a deduction of the appellant from the stipulation of facts filed in the case. It is apparent that this is so from the plea and notice of defendant, above stated, and also from the statement of

facts in the record, which is a recitation of the proceedings taken under the statute providing for the sale of delinquent tax lands, and it is recited that the court decreed

"That the said tax assessments thereon * * * were a valid lien upon the said lands, and that the lands were sold to satisfy such lien."

This is not an admission as claimed, but is a statement contained in every decree made pursuant to the auditor general's petition and the statute, nor was it an admission that the said tax deeds were regularly and properly issued by the auditor general to the plaintiff.

The contention of the defendant is that in this State the public does not own the fee to the lands used by it for public highways and streets, but only an easement in such lands, which is only the right to use them for the purpose of public travel; that such an interest is not subject to ejectment, for the reason that it is intangible and incorporeal. City of Grand Rapids v. Whittlesey, 33 Mich. 109; Bay County v. Bradley, 39 Mich. 163 (33 Am. Rep. 367); Taylor v. Gladwin, 40 Mich. 232, 234; Detroit v. Railway, 172 Mich. 136 (137 N. W. 645); Lynch v. Town of Rutland, 66 Vt. 573 (29 Atl. 1015). See Harrington v. City of Port Huron, 86 Mich. 46, 51 (48 N. W. 641, 13 L. R. A. 664).

The Delray description was bid in by the State of Michigan for delinquent taxes of 1905 in May, 1908, for $2.97, and the Gladstone description was bid in by the State of Michigan for the delinquent taxes of 1904 in May, 1907, for $4.79. In September, 1909, plaintiff purchased each of the descriptions from the State at the prices above named, upon which tax deeds were issued by the auditor general under which he claims title.

The Delray description was acquired by defendant to be used exclusively for highway purposes in February, 1906, and the Gladstone description obtained by condemnation for the same purposes in July, 1904. The ease

ment in the lands in question for the purposes of public travel belonged to the State at the time it purchased such lands at the tax sales. A municipality in its control of these highways acts for the State, and has no right to the possession or use of these easements other than the public generally. It takes the burden of maintaining such easements fit for public travel. Lynch v. Town of Rutland, supra. These easements belong to the State, and were in use as public highways at the time they were bid in to the State for delinquent taxes.

The defense that plaintiff acquired no title to these lands through the State tax deed issued by the auditor general is not a collateral attack upon the decree in the tax proceedings. It challenges the power and authority of the auditor general in the name of the State to issue deeds to lands in which the State had already acquired easements for the public use as part of its public highways.

The court was therefore not in error in refusing to grant the request of plaintiff and in instructing a verdict for defendant.

The judgment of the circuit court is affirmed.

STEERE, C. J., and MOORE, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

KIMBALL v. BATLEY.

1. SPECIFIC PERFORMANCE-FRAUDS, STATUTE OF-ESTATES OF DECEDENTS EVIDENCE.

Evidence, tending to show a parol contract of decedent to convey to complainant a farm in consideration of maintaining decedent during his life, examined, and held, insufficient to prove the alleged agreement or any acceptance of its terms by complainant, or substantial performance of its conditions.1 MOORE, J., dissenting.

2. SAME-MUTUALITY.

A contract, to be specifically enforceable in equity, must be binding on both parties alike, as to obligation and as to remedy.

3. SAME.

On a bill to enforce specifically a parol contract to convey land, not only must the proof of the contract be clear, but it must establish a contract substantially as averred.

4. SAME.

Equity will not decree specific performance of a contract that is uncertain.

5. SAME EQUITY.

Even a binding contract will not be enforced specifically if it is inequitable to grant the remedy.

Appeal from Ingham; Collingwood, J. Submitted October 18, 1912. (Docket No. 161.) Decided April 8,

1913.

Bill by Homer Kimball against Estella Batley and others for specific performance of a parol contract to convey lands. From a decree for complainant, defendants appeal. Reversed.

Specific performance of oral contract to devise or convey land on consideration of performing services or furnishing support, where no possession is taken or improvements made, see note in 38 L. R. A. (N. S.) 752.

Gardner & Hood, for complainant.

McArthur & Dunnebacke (Lawton T. Hemans, of counsel), for defendants.

STONE, J. I am unable to agree with the result reached by Justice MOORE in this case. (1) It seems to me that the contract set forth in the bill of complaint has not been established by the evidence. (2) The evidence is not sufficient to show either acceptance or performance of the contract alleged by complainant. (3) Specific performance as prayed for is not equitable.

The bill of complaint, in the fourth paragraph thereof, states that in the month of February, 1908, while the decedent Stewart Scoville (the maternal grandfather of complainant) was residing with complainant's mother in Ingham county, and while complainant was residing and working at his trade in the city of Jackson, said Scoville went to the home of complainant and expressed a desire that he might live in the home of complainant, and proposed that if complainant and his family would move on the farm it question, and make the same their home, and work said farm and improve the same, and receive said Scoville into complainant's home, and care for and maintain and support him (said Scoville) during the remainder of his natural life, he (said Scoville) would give complainant, at the death of said Scoville, the farm, and that, at the death of the latter, complainant should become the owner of the premises.

In the fifth paragraph of the bill it is stated that complainant accepted the said proposal of said Scoville, and, in pursuance of the contract so made, moved, together with his wife and child, upon the farm; that decedent put complainant into possession of the same; and that complainant and his wife and child made the same their home, and worked said farm, and received decedent into their home and cared for, maintained, and supported him on said

174 MICH.-85.