ment of that other person, he at the time believing and relying upon that other person as to the existence of the facts communicated to him, as to the honesty of the subject-matter of the contract entered into,-of its being lawful,-he would not in such case be a knowing and guilty participant in the violation of law, or in contravention of public policy. If the plaintiff in this case had no knowledge of the scheme of the Bohemian oat business, had no knowledge or information of the corporate existence of the pretended company, or the want of integrity of its purpose, and the honesty of its business, and relied entirely upon the defendant's statement, from his long acquaintance with him, and believed that the corporation was organized as stated, and believed that its business was an honest one, and his own judgment was subordinated to that of the defendant and the man Davison, or either of them, he could not be as equally to blame as those from whom he got his information, and on whose judgment he relied." This part of the general charge was certainly good law, well and clearly expressed.

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But following this the court referred to the legislative act of 1887 as being aimed, not at the man who made the note, but at the one who procured it and put it in circulation. He said the act did not apply to or govern the case in hand, as the notes were made long before it passed, but that he referred to it as illustrating the views of the prominent men who composed the legislature. "It makes a man a criminal who procures a note by falsehood, and puts it in circulation, but does not say anything about the man who gives the note." He then closed his directions as follows: "I therefore charge you that if you find that Linzey, in the presence of Davison, made the representations stated in the declaration, whether he knew them to be false or not would make no difference,-and the plaintiff was influenced thereby, and relied upon them, and believed them to be true, and acted upon them, then he would not be equally at fault; and, if the plaintiff has been injured thereby, he will be entitled to recover the amount he actually paid, with interest at six per cent. from the time of payment to date. But if he had knowledge, and he acted upon his own knowledge and judgment, knew that the scheme was fraudulent, and made a contract for gain, and was equally guilty of contravening public policy, then your verdict should be for the defendant. The action is brought for the fraud which he alleges was practiced upon him, and not upon the contract that was made, and the contract is referred to for the sole purpose of proving the extent of the injury sustained, in case of fraud practiced. The plaintiff must prove fraud by a preponderance of evidence that satisfies you of that fact, and you must find that the plaintiff did not knowingly participate in it. A man cannot very well be said to participate in an unlawful act when his mind is a blank so far as the facts are concerned; and where the facts are stated by another, and impressed upon his mind, his act is built upon the declarations and information conveyed by that other,

It is very plain to me that the jury must have been misled by the instructions of the circuit judge, taken as a whole. The third request of the plaintiff, as given, is not sound law. sound law. It must be conceded that Knight was not equally in fault with the defendant Linzey, as Linzey was the moving party in the fraud, and by his persuasion and representations influenced Knight more or less in the transaction. But if Knight knew it was a fraud, and went into it solely for the purpose of making money out of it, knowing that, if he made any money, some innocent third party must be defrauded thereby, and that this was the natural outcome of the scheme, the law will not permit him to recover back from Linzey what he paid to him, as it would be money knowingly paid in furtherance of fraud; and a recovery, under such circumstances, would be against public policy. "The benefits and burdens growing out of the illegal business cannot be disturbed or equalized. The law will have nothing to do with the transaction in any way, except to declare it void." Ward v. Doane, 43 N. W. Rep. 982. Under this third request the jury may well have inferred that Knight had a right to rely upon the statements of Linzey, independent of his own knowledge and belief, and, being not equally in fault, might recover back the money paid upon the notes, although he knew at the time he gave them that the whole scheme was a fraud, and that, if he won, it must be that some one else would lose by a like transaction, out of which he must obtain his profit. This is not the law. The latter part of the general charge was also misleading. When the court said: "But, if he had knowledge, and he acted: upon his own knowledge and judgment, -knew that the scheme was fraudulent,and made a contract for gain, [and was equally guilty of contravening public policy,] then your verdict should be for the defendant," the insertion of the clause which I have inclosed in brackets made that bad law which would have been goodlaw without it; for, if he knew the schemewas a fraud, and acted upon his own knowledge and judgment, he could not well have been deceived by the defendants, and whether or not he was equally guilty with them of contravening public policy became of no moment. In such a case the plaintiff would take his chances, as does one upon the throw of a dice-box.

Unless the jury was misled by the charge of the court, it would naturally seem, from the plaintiff's own testimony, that they must have found against him. He testified on cross-examination as follows: "Question. You are a school-teacher, or was? Answer. I taught school a few terms. Q. Until you found you could. make more money as a farmer than a teacher? teacher? Why did you go into the Bo

Culver, 43 N. W. Rep. 994. He knew what the fraud was, but thought he might get his money out of it, and the profit with it, before the scheme collapsed. He took the chances that the fraud might not be operated upon him, but upon some one else for his benefit.

The verdict should have been, as the record stands, for the defendants. It may be that on another trial the plaintiff may make a better showing as to his want of knowledge of the fraud, and his reasons for entering into it; but, as the case appears here, a new trial must be granted to the defendants, with costs of this court, and the judgment of the lower court reversed. The other justices concurred.

(80 Mich. 296)

HOOD V. OLIN.

(Supreme Court of Michigan. April 25, 1890.) CONDITIONAL SALE-EVIDENCE-RES JUDICATA.

1. Under a lumbering contract, a firm furnished teams to a lumberman to do certain work with for them. The title was to remain in them until the price was paid. The lumberman mortgaged the teams to plaintiff, who shortly after took possession thereof under its provisions, but the property was taken from him by the firm. The work had not been finished. Plaintiff replevied the teams; and his attorney, in opening the case, stated his claim to be that the title passed to the lumberman when he had done enough work to cover their value, and that he had done such work; that defendant claimed the teams had not been paid for, and the issue would be on the question of payment. Held, that plaintiff could not shift his ground from the issue stated, and introduce testimony to show that the firm had not furnished one of the teams taken.

2. As showing that the firm had made inconsistent claims, the plaintiff could prove that they had taken a bill of sale of the teams from the lumberman; but he could not prove its contents without first showing that he had notified them to produce it, and that they had failed to do so.

3. At a former trial, on proof that a sufficient amount was due the lumberman when he quit work to pay for the teams, judgment was rendered for plaintiff; but, on error, the supreme court held that the lumberman had no right to apply the amount due him in payment for the teams until the work was finished; that, as it was not finished, the title did not pass, unless some act of the firm had prevented its completion, and given him the right to treat the contract as terminated; that if, of his own motion, he had left the work unfinished, the title did not pass, regardless of the state of the account between him and the firm. 68 Mich. 165, 36 N. W. Rep. 177. Held error to direct a verdict for the defendant on the ground that the questions presented were res judicata. The question as to whose default had caused the abandonment of the work should have been submitted to the jury.

Error to circuit court, Mecosta county; JOHN H. PALMER, Judge.

Dumon & Cogger, for appellant. M. Brown, J. Edward Earle and Wesley W. Hyde, for appellee.

CHAMPLIN, C. J. After the jury were imAfter the jury were impaneled in the court below, the plaintiff's attorney opened his case to the jury as follows: "This cause, gentlemen of the jury, is replevin, brought by Mr. Hood against the firm of Ware & Olin to recover possession of one chestnut colored mare, about ten years old; one black gelding, about ten years old,-said team known as the team bought by E. M. Nead of Seaman & Rice; also one set of double harness;

one yoke of red oxen, known as the team bought by E. M. Nead of Ware & Olin; also one ox yoke and chain. The facts and circumstances in this case we expect to show, briefly stated, are these: Mr. Nead, some time ago, and I don't remember exactly when, but I think it was on the 9th day of February, 1886,-was in possession of this property, and claimed to be the owner of it. On that day he executed a chattel mortgage to Mr. Hood covering this property. In that chattel mortgage was a clause which authorized Mr. Hood, at any time he deemed himself insecure, to take possession of the property, and keep it, and make some final disposition of it, as provided for in the mortgage. A few days after getting this mortgage, Mr. Hood deemed himself insecure, and sent Mr. Overton to Nead's camp, where the property then was,-the camp, I think, was situat-ed at or near Pickerel lake, in this county, -to take possession of this team. He did take possession of it, and delivered it to one Clifford to hold for Mr. Hood; or both teams, all of the property covered by the chattel mortgage. And they were starting north toward Evart, or some other place, Harrison, to work them in a camp, with Mr. Nead's consent. Mr. Olin claimed that he owned the team, I believe, or that Ware & Olin owned the team; and he took those teams from Clifford, and stated at the time to Mr. Clifford that he had a bill of sale of them; and we expect to show that he had a bill of sale of them from Nead. Mr. Hood brought replevin against the firm of Ware & Olin to recover possession of the property. Mr. Ware died before the pleadings in this case were perfected, and they were perfected against Mr. Olin, the surviving partner of the firm of Ware & Olin. The suit stands in that shape now. One of these teams was bought by Nead from Seaman & Rice. There was an arrangement between Mr. Ware and Mr. Olin, on one side, made by Mr. Ware and Mr. Nead, by which or through which Mr. Ware was to furnish him a team, or means to pay for a team; and it was to be applied, as we claim, on a lumber contract-a logging contractwhich Nead was putting in. After Nead bought these horses, Mr. Ware gave his note to Seaman & Rice; and I presume, in due time, paid the note, paid for the teams. Mr. Nead went on and put in logs, -shingle logs, and lumber logs, etc.,-and, we claim, paid for these teams. Inasmuch as the case has once been tried, I don't know but it will give you a better idea of it for us to state that they on the other side claim that Nead has not paid for the teams. It appears to me that the controversy in this case may be whether these teams have been paid for, because they claim, on the other side, that the title to the teams was to remain in Ware & Olin until they were paid for. If I am not mistaken in this issue, in the claims made by the other side, and knowing what we claim, the main question in this case, probably, will be whether those teams have been paid for, and, consequently, whether Mr. Nead had the right to give Mr. Hood a chattel mortgage. It seems to me that will be about the issue in this case. Το

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99

ment must be reversed, and a new trial ordered.

subject to various objections of defendants to their validity. On the hearing the court found the following irregularities in the

(80 Mich. 359)

HECOCK V. VAN DUSEN et al. (Supreme Court of Michigan. April 25, 1890.)

TRESPASS-COLOR OF TITLE-TAX-TITLE.

1. In an action for trespass on vacant lands, where the trial court has found that there was no possession on the part of the plaintiff, whose only acts in relation thereto were to look over them occasionally, and request neighboring residents to look after trespassers, the reviewing court cannot say there was no evidence to support the finding, and it must stand.

2. In a suit for trespass upon vacant lands, defendants averred title, but at the trial admitted that the deed by which they claimed was void. Under it, however, they had cleared, fenced, and sowed a small part of the lands. Held, this act of possession under their deed gave color of title to the whole tract, so as to enable them to contest plaintiff's title.

**

*

3. Comp. Laws Mich. 1867, § 11, subd. 15, empowers the board of supervisors "to authorize any township, * by a vote of the electors," to borrow or raise, by a tax, a sum not to exceed $1,000 in one year, for road and bridge purposes. Held that, where a larger sum than that authorized by vote of the electors was collected, the excess was illegal; and a tax-deed of lands sold for non-payment of the assessment of which it formed a part is void.

4. The certificate of a township supervisor as to the valuation of property by him for taxation, when copied into the tax-rolls in the county treasurer's office, forms no part thereof; and, on a question as to the validity of a tax-deed, the taxrolls cannot be introduced to prove the defective character of a supervisor's certificate.

Error to circuit court, Monroe county; EDWARD D. KINNE, Judge.

Cramer & Corbin, for appellant. John O. Zabel and G. Morris, for appellees.

LONG, J. This suit was commenced in justice court. Plaintiff declared against defendants in trespass for cutting timber upon the land, claimed to be owned by plaintiff in fee-simple, situate in the township of Summerfield, in Monroe county, and described as the "west half of the north-east quarter of section one. The defendants jointly pleaded the general issue, and gave notice, under the statute, that the title to land would come in question, also that the premises described in said declaration were not in the close of the said plaintiff, but were the close and premises of Lauroyn E. De Wolf and Charles H. De Wolf, under whose authority the said defendants entered and did the acts complained of. Defendants thereupon filed a bond as required by the statute, and the justice certified the cause to the circuit court of Monroe county. The cause was brought to trial before the court without a jury, and the plaintiff, to maintain and prove the issue on his part, offered in evidence nine several deeds from the auditor general of the state, purporting to convey the above-described premises to the plaintiff on account of taxes delinquent thereon for the years 1871, 1873, 1874, 1875, 1875, 1877, 1878, 1879, and 1880, for which taxes the lands were sold to the plaintiff; which deeds were admitted in evidence,

the taxes upon the land in controversy for the several years for which the deeds were given: "(1) That the certificates of the supervisor attached to the assessment rolls for said years do not comply with the requirements of the statute. (2) That for said years a larger amount of tax was assessed for township purposes than was authorized to be assessed, as follows: For the year 1871 the said certificate, both as to the real and personal estate, was 'that I have estimated the same at what I believe to be the true taxable cash value thereof,' instead of the true cash value thereof; also, excess of taxes assessed for highway purposes and bridges for that year of $400, which was unauthorized. For 1873 the form of the certificate was the same as the year 1871, and there was also an unauthorized assessment for highways und bridges of $300. For 1874 the certificate was in the same form as the former years noted, with the additional statement that the real estate is not assessed for what it would sell for 'at private or auction sale,' instead of 'forced or auction sale,' and that there was also an unauthorized excess of assessment for highways and bridges of $300. For 1875, no certificate of the supervisor is attached to the assessment roll; and also unauthorized assessment for township contingent expenses of $100, and for highways and bridges of $33. For the years 1876 and 1877 the supervisor's certificate attached to each assessment roll certifies as to the real estate that 'I estimated the same at what I believe to be the value thereof,' instead of the true cash value thereof. The words 'and not at the price it would sell for at forced or auction sale' are entirely omitted. As to the personal property the same certificate states that 'I have estimated the same at its true value, in accordance with the usual way of assessing property in this county.' For the year 1878 the certificate states, as to the realty, 'at what I believe to be the true cash value thereof as usually assessed.' As to the personal, he certifies, 'I have estimated the same at the true cash value, as aforesaid, according to my best information;' the words 'and belief' being omitted after 'information,' leaving 'as aforesaid' to refer to ‘as usually assessed.' Also, that there was an unauthorized assessment for highways of $446.75. For the year 1879 there is no certificate of the supervisor attached to the assessment roll; also, there is an unauthorized assessment for highways and bridges of $757.50. For the year 1880 the supervisor's certificate attached to the assessment roll does not contain the words 'and not at the price it would sell for at forced or auction sale,' nor does it contain the words and belief' after 'information,' at the end of the certificate; also an excess of assessment, unauthorized, for highways and bridges, of $550. The court further found that plaintiff had paid the taxes assessed upon the land in controversy for the years 1881, 1882, 1883, 1884, and 1886; that the plaintiff had occasionally looked