WOODS v. MONROE ET AL.

It is proper to say in this connection that the evidence of Mills, the Judge of Probate, is assailed by the defendants as utterly unworthy of credit, and also as not properly taken in the cause. That he was dishonest in the proceedings is strongly to be inferred from this record, and we should hesitate about basing judicial action upon his uncorroborated statements. The formal objection to it is based upon its having been taken in the case before the suit was at an issue of fact as to a part of the defendants; but the defendants all appeared by solicitor without objection, when it was taken, and as, under our practice, the complainant is always put to the proof of his bill, except where its allegations are expressly admitted, there is nothing in the way of taking testimony by consent, as soon as the bill is filed. And if the evidence of Mills should be disregarded in this case, that of Bell would still stand unimpeached, and would be supported by some collateral circumstances and infer

ences.

V. It is insisted that there is no legal proof of the posting of notices of the sale by Bell, as was required by the statute. That notices were duly published in a newspaper, as the statute prescribed, was fully shown, and Bell, in his report of sale, stated under oath that he posted notices also. He subsequently, but not till ten years afterwards, made and filed in the Probate Court an affidavit of the posting in due form; but this does not appear to have been done by consent of the court, and under the decision in Mundy v. Monroe, 1 Mich. 68, can not be considered legal evidence. But the report of sale, which was made at the time, and which was duly confirmed, is evidence, and sufficient, we think, on this point.

VI. As to two of the lots, the sale is claimed to be void, on the ground that they were bid off by one John Divine for Mills, the Judge of Probate, and actually deeded over to Mills before the sale was confirmed. The proof, however, does not support this allegation. Divine testifies

WOODS v. MONROE ET AL.

that he bought the lots for himself, and that he deeded them over to Mills at the request of the latter, who claimed to want the title for one Buell. That Mills accounted to the administrator for the purchase price is conceded, but Divine says the sale was confirmed before he was spoken to on the subject by Mills. The suspicious circumstance at this point is that the deed is dated before the confirmation; but Divine swears that it was neither executed nor acknowledged until afterwards; and though no one pretends to explain this date, it does not seem sufficient to overcome the testimony of Divine, who could not well be mistaken in what he swears to, and whose candor is not impeached. Mills, it appears, afterwards conveyed to Buell, and we do not think the record gives any such notice of actual or probable fraud in the sale as should preclude the complainant becoming purchaser in good faith, and having the benefit of the statute.

VII. Some objection is taken to the sale on the ground that the estate of Samuel Monroe had only an equitable title to the lands; the legal title being then held in trust for him by his brother in Canada. If this trust was declared by writing-as to which we have no evidenceit is very likely it was one which was executed by our Statute of Uses; but whether that was so or not is immaterial on this inquiry. Samuel Monroe had the complete equitable title in fee to the lands, and the proceedings to sell them should have been the same as in other cases.

This review of the case brings us to the conclusion that all the statutory requisites to a valid sale exist in the case, and that complainant should have the relief prayed. At the same time we have no doubt the sale was unnecessary, and brought about by dishonest procurement. But the complainant was in no way connected with this dishonesty, nor was it brought home to his knowledge before his purchase, so far as the testimony shows. He and the heirs are alike innocent parties, one or the other of whom must

WOODS V. MONROE ET AL.

suffer by the fraud which has been perpetrated, and under the circumstances the statute casts the loss upon the heirs.

This disposes of the case, except as to the question of costs. These, we think, the court below ought not to have awarded against the defendants. They were asserting in good faith a title apparently valid, and the complainant was compelled to come into a court of equity to perfect his title by making proof of those proceedings which did not appear by the probate records, and thereby curing defects with notice of which he was fairly chargeable. We think the expense of correcting his record - title under such circumstances should have been borne by himself.

There was nothing unreasonable or unfair in the defense which was made, but the case on the other hand, was so doubtful as to fully justify defendants in putting complainant to his proofs.

The decree for costs in the court below will be reversed, and the defendants will recover costs. In other respects it will be affirmed. No costs will be awarded on this appeal.

CAMPBELL J. concurred.

CHRISTIANCY J.

I concur in the opinion of my brother Cooley, except upon one point, upon which, I think, the result of the case should be the reverse of that at which he has arrived.

It was incumbent upon the complainant to prove the giving of such a bond, under the license to sell, as the statute required; a bond upon which the heirs in case of a breach might have sustained an action.

I am not satisfied from the evidence that such a bond was ever given.

The evidence that any bond was given was this: Bell, the administrator, does not profess to have any recollection of the bond or of its execution. It is true he declares he

WOODS ย. MONROE ET AL.

has no doubt the bond was given; but this, as I understand his testimony, was only his inference, based upon his belief that he would not otherwise have proceeded to sell. Such testimony may be barely admissible, but to my mind is far from satisfactory. Mills, who was the Judge of Probate at the time, and the author of the whole scheme for defrauding these heirs, does, it is true, testify that a bond was given, and that Hutchins was one of the sureties. But the conduct of Mills in the whole transaction was such, and shows him to have been so utterly void of any regard to truth, or any sense of moral obligation, that I am not prepared to believe anything, because he has testified to it, which I would not equally have believed without it. Hutchins, who he says executed the bond as one of the sureties, (and he names no other), positively denies having executed the bond. We have then only the testimony of another witness who says a bond was drawn up, but whether it was executed he has no knowledge.

This is all the evidence of the giving of any bond under the license.

But we should not only be satisfied that a bond was executed, but that it was such as the statute required. This is a point for us, and not for the witnesses, to determine. We can only determine this from its contents. But where is the evidence of the contents of this bond from which we can determine this question? I have been unable to find any such evidence of the contents as would enable us to say it was a bond upon which the heirs, in case of its breach, could have maintained an action upon it. This I think is the true test of the sufficiency of the proof which it was incumbent upon the complainant to make. And it can hardly, I think, be claimed that the proof before us is such as, in an action by the heirs upon the bond, would at any time have entitled them to recover on proof of a breach. I can not, therefore, concur in affirming the decree.

GRAVES J.

HOBART v. THE CITY OF DETROIT.

I am not satisfied that the testimony is sufficient in this case to prove that Bell, on obtaining the license to sell, gave the bond required by the statute, and I am therefore in favor of reversing the decree granted by the court below. Upon the question of costs I agree with the Chief Justice and my brethren.

While I feel the force of the reasoning of my brother Christiancy upon the question discussed by him as to the necessity of proof of such a bond as would support an action by the heirs in case of breach, I prefer to withhold an opinion upon that subject until the nature of the case presented shall compel its discussion.

William Hobart v. The City of Detroit.

City Charter :

Contract: Lowest bidder : Patented article. The fact that an article is patented does not necessarily prevent any person but the patentee from contracting to supply it; others may do so, taking the risk of being able to obtain the patentee's license.

Therefore, where a city charter provides that no contracts shall be made by the city, except with the lowest bidder, after advertisement of proposals, it does not prevent the city from contracting for a patented article, such as the Nicholson Pavement, although, in point of fact, the only bidder was the patentee, who held a monopoly of the article.

Heard July 8th. Decided July 13th.

Appeal in Chancery from Wayne Circuit.

The bill in this case was filed against the City of Detroit, E. N. Lacroix, its special collector, and Smith, Cook & Co., a firm of paving contractors, to enjoin the collection of a paving tax upon the premises of complainant, situate on Woodbridge street, in the City of Detroit, assessed in 1867, to defray the cost of paving in front of said lot with the 66 Nicholson Pavement," so called.