HINCHMAN t. BARNES.

Held, That the ruling of the Court below that the deed authorized the flowing,if necessary,was correct. The conveyance was intended to grant a water power to which the race and dam were mere incidents, and the grantee was not compelled to use all the privilege granted unless she chose, but might erect the dam on her own premises. In effect the plaintiff makes complaint that he has not been damaged as much as he might have been by the flowing, which he had authorized by deed.

Judgment of the Court below affirmed with costs.

HINCHMAN vs. BARNES.

Newspaper-where published.

Error to Wayne Circuit.

Opinion by COOLEY, J.-The principal question concerns the meaning of the statute which requires "notices of special partnerships to be published in two newspapers in the Senatorial District within which the business is to be carried on" and makes the special partner liable as a general partner if there shall be any failure to make the requisite publication. The business in this case was to be carried on in the First Ward of the City of Detroit, and the notice was published in two newspapers, the offices of which were in the Second Ward of the city, and in a different Senatorial District from that embracing the First Ward.

Within the meaning of the statute the city, village or township where a paper is issued is the place of publication, one part of it just as much as another, and the statute does not design to take notice of inferior sub-divisions, or to inquire at all into the question whether the proprietors printed their own paper or hired another person to do it, or how the papers were distributed. In this case therefore the notice as published was sufficient.

CLES V. SEAMAN.

1

CLEE US. SEAMAN.

As a rule, defendant in ejectment is at liberty to controvert plaintiff's title.

2. Where a party went into possession of land under a contract of sale to him to convey "the right title and interest then held by him” (veuder) "of in and to said land," not stating what such interest was or was claimed to be, and also a clause allowing vendee to go into possession: Held, that the last provision was a mere quit claim of any possessory right plaintiff might have, and on condition that he should turn out to have such possession or right. Held further, that defendant was not estopped from denying plaintiff's title, having, obtained possession of the land on the faith of the contract: and continuing in possession, is not estopped from denying any right or title of plaintiff, expressly or by fair implication, asserted or claimed by him in the contract.

3. If the vendor had no possession, actual or constructive, there can be no estoppel.

Error to Wayne Circuit.

Opinion by CHRISTIANCY, J.-As a rule the defendant in ejectment is at liberty to controvert the plaintiff's title. If plaintiff claims that defendant is estopped to deny his title, he must show the facts constituting the estoppel. This, plaintiff undertook to do, by the introduction of the contract with Guilfoil, with certain evidence tending, as he claims, to show that Guilfoil went into possession under it, and that defendant claimed the premises through Guilfoil by a deed from his widow and heirs. It is not claimed that Guilfoil would be estopped by the plaintiff alone from denying plaintiff's title. If estopped at all, it is by having obtained from the plaintiff the possession of the land by means cr on the faith of the contract, or by having placed himself in a position which estops him from denying that he thus obtained the possession. If he did thus obtain it, he would never have been estopped while he continued in possession from denying any right or title of the plaintiff, expressly or by fair implication asserted, or perhaps claimed by him in the contract. The ground of the estoppel is that the vendor gives up the possession to the vendee, and the latter obtains it on the faith of the contract, and it would be a violation of good faith, and a fraud on the vendor to allow the vendee, while he remains in possession, to deny such right or title of the vendor. If he proposes so to do, he must first restore possession to the vendor, and place him in statu quo,

It is the possession from the vendor upon the faith of the cou

CLEE . SEAMAN,

tract that creates the estoppel, if it exists; and if the vendor have no possession actual or constructive, it would seem to follow that he could not transfer it, and that, this fact appearing, there would be no estoppel. As the vendee, however, may estop himself from denying the title, so he may doubtless under some circumstances, estop himself from denying the possession or right of possession of the vendor, and the fact of having obtained it from him.

When the vendor, as in this case, does not by his own contract set forth, allude to, or undertake to convey any particular estate.but merely agrees to quit claim such right as he may at the date of the contract have in the premises, the most that he can be said to assert is that he claims to have some right, which, if he has it, is susceptible of being transferred or conveyed by such quit claim.

held conclusively to admit any than by h's contract he appears

And, as the vendee cannot be other or greater title in the vendor to have claimed, it is difficult to see any ground upon which the vendee, though going into possession, can be estopped from denying any particular title or interest which the vendor may set up on the trial, since no claim to any one of these was asserted or therefore admitted by the contract. And though each should be disproved, or the vendee should prove any title in himself, less than a full and perfect title to the whole, this does not show that the vendor did not have some other interest or right, or all that by the contract he claimed to have and the vendee is at most only estopped from denying that he had none at all. Besides the want of mutuality, there is no such certainty as is required to sustain an estoppel.

But to estop the defendant from damaging the title of the plaintiff in any form or to any extent in the present case, it was incumbent on the plaintiff to show that Guilfoil obtained the possession from the plaintiff under the contract. To do this he must show that he had the possession or the right of possession before the contract and that he transfered it the defendant and give him the possession; or that the defendant, under the circumstances, is cstopped to deny his possessory right.

It was held that the testimony did not tend to show this. The plaintiff gave evidence, however, tending to show that Guilfoil, after the date of the contract, went into the possession, claiming under it. And to determine whether the possession thus taken estopped him

CLEE T. SEAMAN.

from denying the plaintiff's possession or right of possession, the Court had to consider the possession with reference to the provisions of the contract. The substance of the contract was that, upon the payment of $60 and interest by Guilfoil at certain times, plaintiff agreed to sell and convey to Guilfoil-not the land mentioned in the contract--but only "the right, title and interest then held by him of. in and to the said land, not stating what such interest was or was claimed to be." Plaintiff further agreed that Guilfoil might imme diately enter on the land and remain thereon and cultivate the same as long as he should perform the agreement on his part and no longer.

to

Held, That it was quite clear that the provision allowing Guilfoil 20 into possession was intended to be co-extensive only with that in respect to the consequence of the title, a mere quit claim of the title, a mere quit claim of any right of possession the plaintiff might have, and on condition that he should turn out to have such possession or right.

There is therefore nothing in the provisions of the plaintiff's agreement amounting to an assertion of possession or right of possession on the transfer of either to Guilfoil without some evidence that he had such right to transfer, and nothing therefore to estop him from denying the right of possession to the plaintiff.

Held, further, that no stipulation on the part of Guilfoil amounted to an estoppel on the question of possession. It is clear from the language of Guilfoil's covenant, that it refers to and was intouled to provide only for the statute remedy for summary proceedings, by which landlords are authorized to receive possession of lands held over by tenants. The covenant relates to an action of that nature, and does not apply to an action of ejectment.

The charge of the Court below was erroneous; the judgment

must be reversed with costs and a new trial ordered.

SUPPLEMENT.

Abstracts of Decisions of the Supreme Court, rendered at the October Term, 1870.

HENRY HAMMOND 28. CATHARINE HARRISON.

Error to Van Buren Circuit.

Opinion by COOLEY, J.-September 10,1864, Hammond contracted to sell to Harrison an 80 acre lot in Van Buren Co., for $500-viz: $120 down, and balance in subsequent instalments. The contract was in writing and was signed and sealed on behalf of Mrs. Harrison by her husband, who had oral authority for the purpose. Harrison took possession, and cut and sold considerable timber, paid taxes for two years and gave contracts to two persons for the sale of parcels of the premises.— The legal title at the time the contract was entered into was in one Gordon, an insane person, of whom one Mickle was committee. T. W. Mizner acting as agent of Mickle, sold the lands to Hammond who purchased in good faith and in the belief that he was to obtain a good title. The conveyance however was not yet made. Harrison paid Hammond the whole purchase price except $103, and on September 14, 1866, tendered payment of this sum and demanded title, but Hammond having then discovered that Mickle had no authority as committee to make sale of lands in Michigan, declined on this ground to exe cute a deed, and Harrison then brought action for damages for breach of his contract to convey.

The defendant objected to oral proofs of the authority to plaintiff's husband to sign the contract, and the objection was overruled.

Held, that it was not essential that the contract should be