SUPREME COURT OF MICHIGAN.

ERASTUS L. NORTON vs. CATHERINE COLGROVE.

Filed October 8, 1879.

Where a vendor of real estate is charged with a duty to make payment, and, neglecting so to do, the vendee is compelled to pay for the protection of his interests, the law will imply a promise to repay. Defendant contracted to convey plaintiff certain land clear of certain encumbrances. Defendant, at plaintiff's request, conveyed the land to plaintiff's wife, but having failed to clear off the encumbrances plaintiff was, in order to save his interest, obliged to pay the same. Held, that the fact that the conveyance was made to his wife did not prevent plaintiff recovering the money so paid out. Where one other than the covenantor in a covenant against encumbrances has paid the same, the covenantor is liable for nominal damages only.—[ED.

Error to Eaton.

Henry A. Shaw, for plaintiff in error.

M. V. & R. A. Montgomery, for defendant in error.

COOLEY, J. The plaintiff's case is this: That in August, 1870, in a land trade between defendant and plaintiff, defendant bound herself by a written contract to convey to him a certain piece of land subject to $6,000 encumbrance; she to pay off a large sum over and above the $6,000, which was then a lien on the land; that this excess was to be paid on the first of April, 1871; that the land was conveyed by defendant to plaintiff's wife, at plaintiff's request, on the last day named, but that the defendant did not pay off the excess of the encumbrances as agreed, and plaintiff was obliged to pay large sums to save the land from being taken on foreclosure of the mortgages, and he seeks to recover the amount so paid as money paid to defendant's use.

The objections to a recovery in this case, as they are presented in the defendant's brief, are the following:

1. There was no request by defendant that plaintiff pay this money for her, and consequently he cannot recover as for money paid for her use. But the deduction does not follow from the premise. If the defendant was charged with the duty to make payment, but neglected to do so, and plaintiff was compelled to pay for the protection of his own interest, the law will imply a promise to repay. Hales v. Freeman, 1 B. & B. 391; Fosler v. Ley, 2 Bing. N. C. 268; Paroson v. Linton, 5 B. & Ald. 521; Brown v. Hodgson, 4 Saund. 187; Hale v. Huse, 10 Gray, 99. It was decided in Hunter v. Amidon, 4 Hill, 345, followed in Sargeant v. Cunier, 49 N. H. 310, that a

vendor of encumbered property was liable in a court for money paid to the purchaser who had been compelled to discharge the encumbrance in order to retain the property. Such a payment is a compulsory discharge by the vendee of a duty incumbent on the vendor; it is in no sense a voluntary payment.

2. As the land was conveyed by the defendant not to the plaintiff, but to the plaintiff's wife, it is argued that the amount of the encumbrance is not a matter of legal concern to the plaintiff, and for that reason an implied promise cannot arise. in his favor, even if it might have arisen under other circumstances. This argument assumes that by the conveyance to his wife it is to be assumed that the plaintiff retains no legal interest in the further performance of the defendant's contract, and could suffer no pecuniary injury if the excess of encumbrances was not paid off. The record furnishes no support for this assumption. We are not informed what were the arrangements between the plaintiff and his wife. He may, for a sufficient consideration, have undertaken that defendant should perform his obligation, and whether he did or not he has presumptively an interest in having the lands he conveyed discharged of all encumbrances. Nor is it of any legal concern to the defendant that the conveyance was made to the wife rather than to the plaintiff himself. The defendant's obligations are not enlarged or diminished thereby. It is not claimed that the plaintiff caused any right of action he may have had against the defendant, either legal or equitable, to be transferred to the wife, and the deed alone would neither convey nor extinguish any such right. The deed satisfied the previous contract, so far as it constituted performance, but no further, and it left further obligations unimpaired.

3. The defendant, it is said, is liable to plaintiff's wife, on the covenant contained in the deed to her, and this is inconsistent with any liability to the plaintiff on an implied promise. But it does not appear in the case that the deed to plaintiff's wife contained any covenant against encumbrances; if it did, the defendant would be liable on it for nominal damages only, unless the wife herself paid off the encumbrances. Delavergne v. Morris, 1 John. 358; Stannard v. Eldridge, 16 John, 254; Porter v. Bradley, 7 R. I. 538; Willitts v. Burges, 34 Ill. 494; Green v. Tallman, 30 N. Y. 191; Linder v. Lake, 6 Iowa, 164. None of these objections appearing to be sufficient, the court erred in taking the case from the jury, and the judgment mus be reversed, with costs, and a new trial ordered. We have not noticed certain criticisms which are made on the

plaintiff's declaration, as it was not demurred to, and if it had been he would doubtless have been permitted to amend. (The other justices concurred.)

A defendant is not amenable to prosecution upon a criminal information unless he has been examined or given a chance to be examined before a lawful officer. A prisoner irregularly charged with a criminal offence was found guilty and recommended to the mercy of the court. The judge gave him to understand that he would receive a severe sentence unless he withdrew his plea of not guilty, pleaded guilty, paid in $400, and estopped himself from bringing error. He went through the form of doing this, paying in the $400. Held, the judgment should be reversed. -[ED.

Error to Alpena.

Turnbell & McDonald, for plaintiff in error.

Otto Kirchner, Attorney General, for the people.

GRAVES, J. O'Hara was informed against for adultery, and pleaded against the prosecution that it was not founded on any preliminary examination before a qualified officer. He averred that the only color of such an examination was before a night policeman, who was neither in law nor fact a justice of the peace. The pleading need not be repeated. The defence was overruled by the court and the defendant placed on trial. The jury returned a verdict of guilty, and recommended the defendant to the mercy of the court. Some very extraordinary proceedings followed. The defendant was given by the judge to understand that he must submit to a severe sentence or else withdraw his plea of not guilty; enter a plea of guilty and immediately pay $400, and estop himself from bringing error. He accepted the last alternative, and went through the form of withdrawing the plea on which he had been tried and convicted, and of pleading guilty, and paid in the $400.

The attorney general very naturally declined to offer anything in defence of these proceedings. We are not informed upon what ground the judge sustained the jurisdiction against the objection made to it. The truth of the matters pleaded seems to have been admitted, and that being so it would appear to follow that it stood admitted that there was no foundation for the information. Unless the defendant had been examined or had been given a chance to be examined v3-11 (no. ii)

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before a lawful officer, he was not amenable to the prosecution. The great impropriety of the latter proceedings referred to is too manifest to justify extended comment.

When a convicted person is brought up for sentence he has rights still, and it is specially incumbent on the judge to take care that they are fully observed and protected. No sort of pressure can be permitted to bring. the party to forego any right or advantage, however slight. The law will not suffer the least weight to be put in the scale against him, and any attempt cannot fail to be reprobated. Standing at the bar to receive judgment, the law surrounds him with its protecting principles, and intends that his sentence shall be the reflection of its justice, and, as far as possible, free from all taint of human frailty.

Very recently the state has given the principle expression in positive legislation, (Laws 1875, p. 140,) and surely the bench ought to guard against examples to the contrary.

The judgment must be reversed. (The other justices concurred.)

ANDREW W. COмSTOCK and others vs. GEORGE N. FLETCHER. Filed October 14, 1879.

Defendant, under an arrangement with the former owner of land bought by plaintiff, placed certain machinery thereon for the purpose of drilling a salt well. After the project had been abandoned, and plaintiff's purchase of the land, defendant removed part of the machinery, and was removing the balance, when, plaintiff objecting, he entered into a contract, promising if they would let him remove it he would return the property and replace it in the same condition as before. Held, that the machinery was not fixtures so as to pass with the realty; that if defendant was owner of such machinery, there was no consideration for his promise to return it, and he was not liable for its conversion.--[ED.

Error to Alpena.

J. D. Turnbull, for plaintiffs in error.

Kelley & Clayberg, for defendant in error.

CAMPBELL, C. J. Plaintiffs sued defendant in trover for the conversion of certain machinery, which had once been in a drill-house, set up for boring a salt well in Alpena. The property where the machinery was first set up had been owned by one Lockwood. Fletcher made an arrangement with Lockwood whereby it was contemplated that he should furnish the machinery necessary for sinking a well, and erect certain salt blocks and some other apparatus, in considera

tion whereof he was to have a half share in the land and business. Fletcher put up the drilling machinery in question, but the well was not sunk, and the arrangement was never carried out, and he made no transfer.

Lockwood sold the land to plaintiffs. Their only title to the property depends on its having become appurtenant to the land, or on a subsequent contract from Fletcher, which will be presently referred to. If not a part of the realty Lockwood could not have sold it to them, and did not, in fact, make any assignment of any different character.

It is not important to look into the very elaborate and extended discussion of the doctrine of fixtures contained in the charges and requests, because the facts do not require it. The machinery was put upon the ground to sink a well, which is a temporary purpose. It was not so attached to the freehold as not to be removed without injury, and therefore, on well-settled principles, it could not become realty without being either intended or especially adapted for permanent use as a part of the freehold. There is nothing in the case to indicate this, and the jury, if there had been, were properly directed on this head. There is no presumption of such a union. The presumption is all the other way. Wheeler v. Bedell, 40 Mich. 693.

The plaintiffs, however, claim that Fletcher is estopped by a subsequent arrangement from denying their right. After the Lockwood project was abandoned it was desired to use this machinery to sink a well for other parties, and Fletcher removed part, and was preparing to remove the rest, against plaintiff's objections, when they entered into an amicable contract, signed by Fletcher, whereby he promised to return the property and replace it in the same condition, after the new well was finished, if they would let him remove it.

We think it very clear that this agreement cannot be construed into anything more than a promise to put the property back where it was before. It is no relinquishment of right, and no recognition of any title in plaintiffs.

If Fletcher owned the property they had no right whatever to impose terms, and there was no consideration for any contract on his part to give up either title or possession.

There was nothing in the case to sustain the plaintiffs' claim, and the correctness or incorrectness of some of the rulings can make no difference in the result.

Judgment must be affirmed, with costs.

(The other justices concurred.)