People v. Brown.

NFORMATION for bigamy. The opinion states the case.

INFOR

A. J. Smith, attorney-general, for the People.

James H. Garlock, for respondent, to the point that to sustain a conviction for bigamy the second marriage must have been such a one as would have been in all respects legal and valid except for the fact that the defendant then had a former wife living, cited: 3 Greenl. Ev., § 205; Bishop on Stat. Cr., § 592;Reg. v. Fanning, 17 Irish C. L. 289; 10 Cox's C. C. 411; Burt v. Burt, 2 Swaby & Tristram, 88; Carmichael v. State, 12 Ohio St. 554; Hayes v. People, 25 N. Y. 390; Reg. v. Mills, 10 Cl. & F. 689.

COOLEY, C. J. The defendant seeks to avoid the penalties of a bigamous marriage by showing that he is a negro, and that the other party to the marriage was a white woman, with whom under the statute it was impossible for him to contract marriage at all. Comp. L., § 4724. The argument is, that if the ceremony of marriage had taken place between parties who, if single, would be incapable of contracting marriage, the marriage ceremony is merely idle and void, and the respondent cannot be said to have been married a second time at all.

The logic of the argument is not very obvious. It certainly cannot be based upon any idea that there must be something of binding and obligatory force in the second marriage; for every bigamous marriage is void, and it is the entering into the void marriage while a valid marriage exists that the statute punishes. Nor can we understand of what importance it can be that there are two elements of illegality in the case instead of one, or why the party should be relieved from the consequences of violating one statute because the act of doing so was a violation of another also.

The authorities sanction no such doctrine. There are loose statements in some of the cases that the second marriage must have been one that, but for the existence of the first, would have been valid; but these evidently relate to the acts and intent of the parties, and not to the legal ability to unite in a valid relation. It was decided in Rex v. Penson, 5 C. & P. 412, that bigamy was committed in marrying a woman under an assumed name, though by law such a marriage between persons capable of contracting would be void. The case of Regina v. Brawn, 1 C. & K. 144, was similar

Hayes v. Livingston.

to the present in its facts, and Lord DENMAN in summing up said: "It is the appearing to contract a second marriage, and the going through the ceremony, which constitutes the crime of bigamy, otherwise it never could exist in ordinary cases, as a previous marriage always renders null and void a marriage that is celebrated afterward by either of the parties during the life-time of the other. Whether, therefore, the marriage of the two prisoners was or was not in itself prohibited, and, therefore, null and void, does not signify, for the woman, having a husband then alive, has committed the crime of bigamy, by doing all that in her lay by entering into marriage with another man. These cases are recognized in the case of Hayes v. People, 25 N. Y. 390, which is relied upon by the respondent, but which affords no countenance for his exceptions.

The recorder's court must be advised that we find no error in the record, and that judgment should be pronounced on the verdict. The other justices concurred.

Judgment affirmed.

HAYES V. LIVINGSTON.

(34 Mich. 384.)

Estoppel in pais―rule of, as to real estate cannot operate to transfer title -

statute of frauds.

Under the statute of frauds it is not permissible that an estoppel in pais should work a transfer of the legal title to land.

A mortgage on land was foreclosed and the land sold. It was then agreed between A, the mortgagor, and B, a second mortgagee, that B should buy up the title under the first mortgage foreclosure sale, and should then sell the land, and after deducting the amount of his own mortgage, and the sum paid for the title, pay over the balance of the proceeds to A. This arrangement was carried out and the land was sold by B to C to whom A represented that the title was in B; but it turned out that the foreclosure of the first mortgage was invalid, and that the title was still in A. Held, that he was not estopped from asserting it against C because, otherwise, it would be permitting an estoppel, resting in parol, to transfer the title contrary to the statute of frauds.

A

CTION of ejectment to recover possession of land. The opinion states the case.

Hayes v. Livingston.

William O. Webster, for plaintiff in error, argued that the legal title to land cannot pass by parol under the provisions of the statute (Comp. L. 1871, § 4692); that in ejectment to the legal title only, and the right of possession under it, is involved, and an equitable title, however clear and indisputable, will not support the action (Tyler on Ejectment, 75; Adams on Ejectment, 32; 2 Greenl. on Ev., § 331; McPherson v. Walters, 16 Ala. 714; Hamlin v. Hamlin, 19 Me. 141; Delaplaine v. Hitchcock, 6 Hill, 14; Whitney v. Holmes, 15 Mass. 152; Ryder v. Flanders, 30 Mich. 336); that the legal title cannot be parted with by mere waiver, or transferred by an estoppel resting in parol. Gugins v. Van Gorder, 10 Mich. 523; Whiting v. Butler, 29 id. 122; Smith v. Mundy, 18 Ala. 182; Gimon v. Davis, 36 id. 589; Jackson v. Demont, 9 Johns. 60; Swick v. Sears, 1 Hill, 18; Mills v. Graves, 38 Ill. 455; Wales v. Bogue, 31 id. 464; Blake v. Fash, 44 id. 302; Hurd v. Cushing, 7 Pick. 169; Heard v. Hall, 16 id. 457; Hale v. Skinner, 117 Mass.

Mitchel & Pratt, for defendant in error, conceding that where, as in this State, the distinction between legal and equitable jurisdiction is kept up, the legal title, so far as relates to the right of possession, must prevail, argued that a plaintiff in ejectment makes out a case when he shows title or right of possession, or any state of facts which estops the defendant from denying his title or right of possession (Gugins v. Van Gorder, 10 Mich. 523; Clee v. Seaman, 21 id. 287); that equity will not permit the statute of frauds to be used as a means of promoting the fraud it was designed to prevent, and that the doctrine of equitable estoppel should be adopted in legal tribunals, and applied as broadly as in courts of equity (2 Smith's L. C. 651; Rangeley v. Spring, 21 Me. 130); that an award upon a parol submission to arbitration of disputed titles has been held to operate by way of estoppel to preclude either party from asserting title in opposition to the award (Robertson v. McNeil, 12 Wend. 578; Clark v. Wethey 19 id. 320; Caery v. Wilcocks, 6 N. H. 177; Doe dem. v. Rosser, 3 East, 15; Bigelow on Estoppel, 607); that examples are abundant where in cases of dedications the owner has been held estopped by acts in pais from asserting his title to land (and see Cleland v. Taylor, 3 Mich. 201); and upon the main proposition the following authorities are cited: Bigelow on Estoppel, 606-7; Hatch v. Kimball, 16 Me. 146; Morse v. Child, 6 N. H. 521; Thomson v. Sanborn, 11 id. 201; Shaw v.

Hayes v. Livingston.

Beebe, 35 Vt. 205; Halloran v. Whitcomb, 43 id. 306; Brown v. Wheeler, 17 Conn. 345; Johnson v. Conn. Bk., 21 id. 148; Sayles v. Smith, 12 Wend. 57; Presbyterian, etc., v. Williams, 9 id. 147; Corkhill v. Landers, 44 Barb. 218; Medley v. Williams, 7 Gill & J. 61; 6 Harris, 343; Clark v. Diggs, 6 Ired. 159; Duncan v. Duncan, 3 id. 317; Pool v. Lewis, 41 Ga. 162; Burkhalter v. Edwards, 16 id. 593; Thompson v. Wheatly, 8 S. & M. 499; Winnie v. Cole, 1 Miss. 119; Doe v. Pritchard, 11 S. & M. 327; Leland v. Wilson, 34 Tex. 79; Cornelius v. Burford, 28 id. 202; Morrison v. Keeler, 13 La. Ann. 543; Davison v. Sillman, 24 id. 225; Spears v. Walker, 1 Head, 166; Merriweather v. Larmon, 3 Sneed, 447; McAfferty v. Conover, 7 Ohio St. 99; Shaw v. Potter, 50 Mo. 281; Fair v. Howard, 6 Nev. 304; Davis v. Davis, 26 Cal. 23.

COOLEY, C. J. In the court below Livingston recovered a judgment in ejectment on the strength of an estoppel in pais. His case was that Hayes, whose title to the land at a former time was conceded, had given two mortgages upon it, one of which had been foreclosed under the power of sale, and the land sold to a third party; that the other being held by one Corey, an arrangement was made between him and Hayes, under which Corey was to buy up the title under the foreclosure, and then, when he should be able to find a purchaser, sell the land and from the proceeds take out the amount of his mortgage and the amount he should have paid for the foreclosure title, and pay over the remainder to Hayes; that this arrangement was carried out so far as concerned the purchase of the foreclosure title, and that subsequently Corey sold to Livingston, being first told to do so by Hayes, and Livingston not making the purchase until assured by Hayes that the land was Corey's, though the latter was to pay over to Hayes a surplus from the purchase-price when the sale was made. This case was disputed by Hayes, who claimed that whatever was paid by Corey in acquiring the foreclosure title was only a loan to be repaid with interest. The dispute as to these facts would not have been important in the ejectment suit, had the foreclosure title proved to be valid, but it was claimed on one side, and conceded on the other, that it was defective, and left the legal title in Hayes. But Livingston insisted that Hayes, by his arrangement with Corey, and by telling Livingston, after Corey bought, that the latter was owner, had estopped himself from setting up

Hayes v. Livingston.

any title in opposition to that which Livingston had acquired in reliance upon his own statement; and the circuit judge so instructed the jury. The jury having found the facts to be as claimed by Livingston, a verdict and judgment in his favor followed as of course.

If the rule of estoppel in pais is the same when the right to real property is involved as it is when only personalty is in question, the circuit judge was undoubtedly right in his instruction. The principle is so old that it has ceased to be brought into controversy, that when one has knowledge that his own chattels are being sold as the property of another, and encourages the sale without asserting his right, or even by his silence allows a purchase to be made in ignorance of his title, he shall not thereafter be permitted to assert such title to the prejudice of the purchaser. The rule is as sound in morals as it is indisputable in point of law; and has often been recognized in this court. Dann v. Cudney, 13 Mich. 239; Truesdail v. Ward, 24 id. 117; Meister v. Birney, id. 435.

But a difficulty arises when it is proposed to apply the same principle to real estate. The statute of frauds is express that no interests in lands, with certain exceptions which are unimportant here, shall be created or transferred otherwise than by deed; and although it is perfectly true, as is shown by Mr. Bigelow in his treatise on the law of Estoppel (p. 606), that where one by his conduct is precluded in law from asserting his title in property. there is strictly no transmission of title, yet this is a mere technicality; the legal consequences are precisely the same, and for all practical purposes the estoppel works a conveyance. It would hardly be creditable to the administration of the law if the application of a statute so important as the statute of frauds should be turned away and defeated by a technicality so shadowy and unsubstantial.

It is not to be denied, however, that there are several cases which apply the doctrine of estoppel indiscriminately to both real and personal estate. The cases in Maine are very decided. Hatch v. Kimball, 16 Me. 146; Durham v. Alden, 20 id. 228; Rangeley v. Spring, 21 id. 13; Copeland v. Copeland, 28 id. 525; Stevens v. McNamara, 36 id. 176; Bigelow v. Foss, 59 id. 162. These cases appear to have overruled Hamlin v. Hamlin, 19 Me. 141. The following are usually referred to as supporting the Maine cases: McCune v. McMichael, 29 Ga. 312; Beaupland v. McKeen, 28 Penn. St. 124; Shaw v. Beebe, 35 Vt. 205; Brown v. Wheeler, 17