1850, and by Fleetwood to Charles Butler, May 1, 1852, by Butler to Clinton B. Fiske, July 6, 1853, and by Fiske to James B. Crippen, May 16, 1855. These deeds were all recorded on and before May 18, 1855. It was also shown that February 9, 1866, Crippen sold this land to Greenleaf Glidden upon a land contract. This contract was recorded, but was not acknowledged, and was shown by the record. Crippen died in 1869, and left a will, in which he directed his executors to sell all his lands. His wife was appointed executrix in his will, in company with Clinton B. Fiske and David B. Dennis. Mrs. Crippen alone qualified, for what reason the probate records fail to show. Glidden assigned his contract to the defendant, and Mrs. Crippen ratified it, and, as executrix, deeded the land to Mrs. Hill, January 18, 1872.

The deed from Lanman to Fleetwood was executed in Connecticut before one John T. Waite, purporting to be a commissioner of deeds within that state for the state of Michigan. It was objected to because it did not purport to be executed and acknowledged according to the laws of the state of Michigan, because the record did not show that the acknowledgment bore the official seal of the commissioner. The record of the deed from Fleetwood to Butler was also objected to, because the acknowledgment did not recite "that it was executed according to the laws of the state of Michigan, or that the execution of the same was the free act and deed of the grantor." It was acknowledged before a commissioner of deeds in the state of New York. The deed from Mrs. Crippen, as executrix, was objected to for the reason that it was executed and acknowledged by her alone, and was never signed or acknowledged by Clinton B. Fiske or David B. Dennis, executors named in her husband's will. The record of the contract to Glidden was objected to because there was no law authorizing its record, it not being witnessed or acknowledged. These evidences of title in Mrs. Hill were all received by the court, in the first place, when offered in evidence, under the objections above noted. By his ruling afterwards, he evidently held the chain of title not complete, but in what respect is not shown by the record.

Conceding that the chain of title from the United States to Mrs. Hill was not established, was there enough shown to permit her to contest the title of the plaintiff, or his prima facie title arising out of his prior possession? There was certainly enough to show that she was more than a mere intruder with

out any claim of title whatever. She has certainly shown an attempt to convey the title from Lanman through mesne conveyances, and the equity of none of them is controverted. There is nothing tending to show a want of good faith in any one of the conveyances. She has not the legal title, simply because of defects in the acknowledgments of some of the deeds.

But it is said that her title or interest being merely an equitable one, it cannot be shown as a matter of defense in an action of ejectment. It has been held by this court many times that an equitable title cannot be set up against the legal title: Ryder v. Flanders, 30 Mich. 336; Whiting v. Butler, 29 Mich. 122; Conrad v. Long, 33 Mich. 78; Harrett v. Kinney, 44 Mich. 457; Yale v. Stevenson, 58 Mich. 537; Geiges v. Greiner, 68 Mich. 153. But this is not setting up an equitable title against a legal title. The cases above cited are those where the legal title was fully established, and the evidence of the equitable title was sought to be introduced to overthrow the legal title, which, without such evidence, was admitted. But here the plaintiff is shown to have no title. The title or interest of the defendant is independent of the title claimed by plaintiff, and has no connection with it. If plaintiff's tax titles are void, as they seem to be conceded to be, his only right to the premises is the right of possession under color of title as against a mere intruder without any title, which in law, as against such intruder, will be deemed a prima facie title in fee. But with the defendant in possession when plaintiff commenced his action of ejectment, with an equitable title or interest in the land, and the plaintiff without title, although defendant might be estopped by her agreement with Streeter from disputing plaintiff's right to the possession, can he recover against her the title in fee to the premises? We think

He would thereby gain an advantage over the defendant that he was not entitled to: Jochen v. Tibbells, 50 Mich. 36. Plaintiff's action for his possession, if he was entitled to it, should have been by summary proceedings under the statute. If he chooses to bring ejectment, he must be prepared to show some interest in the land other than a naked right to the possession. He must have "a valid, subsisting interest" in the premises as well as the right to possession: Howell's Statutes, sec. 7790. The right of possession under color or claim of title may be prima facie title as against a mere intruder, but when an equitable interest is shown by the defendant in the

land, an equity unconnected with and independent of plaintiff's claim of title, such defendant may show, in defense to the action of ejectment which has been planted against him, that plaintiff has no title at all to the premises.

The judgment must be reversed, and a new trial granted, with costs of this court to defendant.

EJECTMENT PARTIES TO THE ACTION. As to who may be joined as par ties defendant in an action of ejectment, see Allen v. Ranson, 44 Mo. 263; 100 Am. Dec. 282; Den ex dem. v. Branson, 5 Ired. 426; 44 Am. Rep. 45, and note.

EJECTMENT PLAINTIFF'S TITLE. As to the title in the plaintiff necessary to maintain an action of ejectment, see Hobby v. Bunch, 83 Ga. 1; 20 Am. St. Rep. 301, and note 306, 307.

EJECTMENT-DEFENSE TO THE ACTION. In an action of ejectment, the general rule seems to be that all defenses not legal in their nature are ex cluded; neither equitable title nor equitable defenses are available to the defendant: McKay v. Williams, 67 Mich. 547; 11 Am. St. Rep. 597, and note. But in California, New York, and Texas, equitable defenses and equitable titles may be relied upon by the defendant: Morrison v. Wilson, 13 Cal. 494; 73 Am. Dec. 593; Crary v. Goodman, 12 N. Y. 266; 64 Am. Dec. 506; Neill v. Keese, 5 Tex. 23; 51 Am. Dec. 746.

RICHARDS V. CONTINENTAL INSURANCE COMPANY.

[83 MICHIGAN, 508.]

INSURANCE-OCCUPANCY OF DWELLING. An insured dwelling which has been abandoned as a dwelling two days before its loss by fire, and with no intention to return, is, in law, vacant, within the meaning of an insurance policy providing that it shall be void if at any time the house shall become vacant or unoccupied. INSURANCE-OFFER OF COMPROMISE-WAIVER.- An offer to compromise a loss for half the amount due on a policy of insurance, made by a general adjuster without authority to waive or alter any of the terms of policies, and without any admission of liability on the part of the company, does not constitute a waiver of the right to forfeit the policy under a clause providing for forfeiture in case the premises shall become vacant and unoccupied.

Thomas A. Wilson and Daniel A. Ferguson, for the appellant. Barkworth and Cobb, for the respondent.

GRANT, J. This is a suit upon a policy of insurance to recover for a loss by fire of a dwelling-house covered by the policy.

The principal question in the case is, whether the building "vacant or unoccupied " so as to avoid the policy. The

was

house had been occupied by a tenant of the plaintiff. The plaintiff had notified his tenant to vacate the house, which the tenant agreed to do, and did. The tenant rented another house, and moved into it with his family two days before the fire occurred. Plaintiff lived about a mile from the house, and was informed that his tenant had left. The tenant left some goods in the house, but they were not such as he needed at the time for the purpose of housekeeping. He spoke to the plaintiff about leaving them there temporarily. The policy provided that it should be null and void if at any time the house should be or become vacant or unoccupied.

I think the house was "vacant" within the rule of Bonenfant v. American Fire Ins. Co., 76 Mich. 653. It was there said: "Occupancy implies an actual use of the house as a dwelling-place." This dwelling-house had been abandoned so far as any occupancy was concerned. The tenant had left, with no intention to return, and no other person was moving in to take his place. The contract of insurance was violated, and thereby rendered null and void. The occupancy provided for in the contract of insurance had ceased. This was not a question of fact for the jury. The facts were undisputed. The question was therefore one of law for the determination of the court.

It is insisted by the plaintiff that the defendant waived its right to make this a defense. The policy provided that no other than the superintendent of the western department of the defendant at Chicago should have power or authority to waive or alter any of the terms or conditions of the policy, and that all the agreements by the superintendent must be signed by him. No waiver, written or verbal, by this superintendent is claimed. Upon being informed of the loss, the adjuster and general agent for Michigan, by appointment, met the plaintiff, who told him about the removal of the tenant from his house. Plaintiff testifies that the adjuster replied: "We consider it vacant, but we are not going to be technical about the matter. We are satisfied that you had the loss. I will pay you $450 and cancel your policy, if you will take it."

The policy was for nine hundred dollars, and the property was worth considerably more than that. Plaintiff declined to accept the proposition, when the adjuster again said: "Well, think of it two or three weeks, and any time you conclude to accept this offer write to me, and I will cancel your policy, and pay you $450."

This did not constitute a waiver. A man may, without prejudice to his rights, offer to buy his peace. This offer of compromise was inadmissible in any aspect of the case. The solemn and deliberate contracts of parties cannot be set aside by such offers. The language used by the adjuster contained no admission of liability on the part of the defendant. Plaintiff's rights under the contract were not prejudiced or injured by this conversation. He lost nothing by it, and was not thereby induced to forego any of his rights under the policy. The circuit judge therefore properly instructed the jury to render a verdict for the defendant. Judgment affirmed, with costs.

As to the significance

as used in policies of

FIRE INSURANCE-"VACANT AND UNOCCUPIED." and meaning of the words "vacant and unoccupied fire insurance, see Hotchkiss v. Phoenix Ins. Co., 76 Wis. 259; 20 Am. St. Rep. 69, and note; McQueeny v. Phœnix Ins. Co., 52 Ark. 257; 20 Am. St. Rep. 179, and note.

FIRE INSURANCE - WAIVER OF CONDITION. As to what is necessary to constitute a waiver on the part of an insurance company, such as will prevent it from relying upon the terms of the policy, see Weidert v. State Ins. Co., 19 Or. 261; 20 Am. St. Rep. 809.

WOLF v. SLOSSON.

[88 MICHIGAN, 543.]

An

ASSIGNMENT FOR BENEFIT OF CREDITORS-FRAUD-PREFERENCES. assignment for the benefit of creditors, when fully perfected, cannot be set aside at the suit of an attachment or execution creditor by proof of unlawful preferences or of any fraud in the matter of such assignment.

Charles B. Lothrop, for the appellant.

Charles H. Rose, for the respondent.

CAHILL, J. Stevens and Farrar, a firm doing a general hardware business at Evart, Michigan, made a general assignment for the benefit of their creditors on February 8, 1890, to the plaintiff, who, with his brother, were bankers at Evart, under the name of Wolf Brothers. No question is made of the regularity, and strict compliance with the provisions of the statute, of all the assignment proceedings on their face, including the filing of the bond, notice to the creditors, etc.

On February 1, 1890, Stevens and Farrar, claiming to be indebted to Wolf Brothers in the sum of five hundred dollars,