execution was issued. This was levied on the property attached, which had in the meantime been held under the attachment, and it was subsequently sold, to apply on the execution, by a deputy of the defendant, who had succeeded to the office of sheriff. The value of the property was $200. The plaintiff then brought this action of trover for a conversion through the execution sale. The only question in the case is whether the title to the property passed from the plaintiff by virtue of the judgment against Ball's estate. Counsel for the defendant claims that a recovery in trover for the full value of the property operates to transfer the title, whether the judgment is satisfied or not. Counsel for the plaintiff insists that satisfaction of the judgment is a prerequisite.

We are of the opinion that the weight of authority in this country supports the plaintiff's contention, and that this court has not gone so far as to hold that the mere rendition of a judgment for the plaintiff in trover operates to transfer the title to the defendant. See note to Brady v. Whitney, 24 Mich. 154. In that case the court said that "the general rule is that a defendant in trover, against whom damages are given for the full value of the property converted, gets title to the property, either by the judgment itself or by its payment." This is not an unambiguous statement, and, we think, cannot be said to hold that a mere judgment is sufficient. In Kenyon v. Woodruff, 33 Mich. 310, an execution had issued upon the judgment, and been levied upon property sufficient to satisfy the judgment. Under the circumstances of that case it was held that title passed, under the election of the plaintiff to look to the judgment debtor alone; citing Boardman v. Acer, 13 Mich. 77 (87 Am. Dec. 736).. This may properly be supposed to qualify the statement on page 315, viz.:

"The recovery of Schulenberg against Woodruff for the conversion of the tables put an end to Schulenberg's right to reclaim them (Brady v. Whitney, 24 Mich. 154), and left them as the property of plaintiffs in error, at

whose instance and for whose sole benefit the conversion was brought about."

Furthermore, had the court considered Brady v. Whitney, supra, to have held that the judgment was alone sufficient, it would have been unnecessary to consider the point on which the later case really turned.

In the present case no execution was issued. Counsel asserts that execution could not issue, and that certification to the probate court was equivalent thereto; but, as we do not find that the judgment was certified, there is no occasion to discuss the question.

The judgment is affirmed.

The other Justices concurred.

KREIBICH v. MARTZ.

1. VENDOR AND PURCHASER-LAND CONTRACTS-RESCISSION-CONVEYANCE TO THIRD PERSON.

The fact that the vendor of land under an executory contract conveys by warranty deed to a third person, without reserving therein the vendee's rights, does not entitle the latter to rescind, and recover back moneys paid by him, where the grantee accepts his deed with the understanding that it is subject to the contract.

2. SAME-WAIVER OF RIGHT TO RESCIND.

Any right that a vendee in a land contract might have to treat the contract as rescinded because of a conveyance to a third person, who took subject to the contract, would be waived by his requiring the grantee to furnish him an abstract, and negotiating with him respecting payments.

Error to Wayne; Carpenter, J.

24, 1899. Decided February 6, 1899.

Submitted January

Assumpsit by Kajetan Kreibich against George H.

119 343

146 191

Martz to recover moneys paid under a land contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Affirmed.

James Swan, for appellant.

John G. Hawley, for appellee.

HOOKER, J. On June 23, 1891, Martz executed and delivered to the plaintiff a written contract for the sale of some lots in the city of Detroit, receiving $100 down upon the sale. Kreibich afterwards paid some interest and taxes, as required by the terms of the contract, though upon September 29, 1897, he was more than a year in default in the payment of $1,700, principal, and the city taxes for 1896. Upon that day Martz and wife executed and delivered to William W. Hannan and his wife a warranty deed of the premises. This was done in the course of a division of a large tract of property, owned by the defendant, Hannan, and Schwartz, who platted the lots, the title being held by the defendant for a time under an arrangement between them. It was so held at the time the contract was made, and, when the deed to Hannan was made, it was the understanding that he took the same subject to the rights of the plaintiff. The plaintiff was informed that Hannan had these lots, and said he did not want to deal with Hannan, and that he thought it was a put-up job, as Martz would not want to foreclose the contract. Subsequently, in an interview with Hannan, he was asked to pay, and said he did not know as he could pay it all, and Hannan offered to take part, and let the rest stand. He then asked for an abstract, which Hannan afterwards procured and delivered to him. He took the abstract, and some time after, acting under the advice of counsel, notified Martz that he considered the contract rescinded, tendered him the contract, and demanded re-payment of the amount paid upon the contract. It was conceded by counsel that the case involved only a question of law, and the court instructed the jury to return a verdict for the defendant, which they did. The plaintiff has appealed.

The plaintiff's right to recover rests upon the proposition that, by executing and delivering a warranty deed to Hannan, the defendant gave the plaintiff a right to treat the contract as rescinded, under the decisions in the cases of Atkinson v. Scott, 36 Mich. 18, and Weaver v. Aitcheson, 65 Mich. 285. In the case before us it appears that the understanding between the defendant and Hannan was that the latter took the deed subject to the contract, and the plaintiff was informed of this. Hannan never was in a position where he could deny or deprive the plaintiff of his rights under his contract, for he had full notice of them, and accepted his deed upon the understanding that the plaintiff's rights were to be respected. Moreover, the plaintiff, being so informed, could not have understood that it was defendant's intention to rescind the contract. The case is properly distinguishable from those cited, in both of which there is reason to suppose that the premises were conveyed in disregard of the vendee's rights, if not under circumstances which put it out of the vendor's power to perform the contract.

In the case of Hoock v. Bowman, 42 Neb. 87, it was held that, where the vendor conveyed to a stranger to the contract, which was recorded, such stranger took with notice of the vendee's rights, and subject to them, and that, under such circumstances, the vendee had not the right of rescission. This is a just rule, and will apply equally well in any case where the grantee takes with notice, either actual or constructive, of the vendee's rights. Lowrie v. Gourlay, 112 Mich. 641.

Again, the negotiations with Hannan would have amounted to a waiver of the right to rescind, had there been any such right.

It is unnecessary to discuss the other questions raised, as they do not affect the question upon which the case turns.

The judgment is affirmed.

The other Justices concurred.

GRIFFIN v. WATTLES.

1. PLEADING-COURT RULES-JOINING DILATORY PLEA AND PLEA TO MERITS-APPEAL.

Circuit Court Rule No. 6, permitting the filing of a plea to the merits with a plea in abatement, and prescribing the order in which the respective issues shall be tried, does not abrogate the common-law rule that the overruling of a dilatory plea cannot be reviewed on appeal when the defendant proceeds with a trial upon the merits.

2. SAME-WAIVER.

Whether the fact that a defendant, under the rule, files a plea to the merits with his dilatory plea, should in itself be construed as a waiver of the right to a review of the court's decision upon the dilatory plea,—quære.

3. SAME-CONSTRUCTION-PRESUMPTIONS.

While it is competent for a defendant to file a dilatory plea to one count of a declaration, and plead to the merits to another count, still, where a declaration contains a special count and the common counts, and a plea in abatement to the special count is accompanied by a plea to the merits which is in terms broad enough to cover all of the counts, it will be presumed that it was intended to be so construed.

4. SAME.

But, conceding that the plea to the merits, when filed, went to the common counts merely, a motion by defendant to set aside his default entered on the special count, after the overruling of the plea in abatement, upon the ground that a plea to the merits had been filed in the case, would be equivalent to a new plea to the merits on the special count.

Error to Wayne; Donovan, J. Submitted January 24, 1899. Decided February 6, 1899.

Debt by Levi T. Griffin against Greenleaf C. Wattles upon a judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings error.

firmed.