provable facts showing a title good in law but not of record; as, for example, a title by adverse possession. In this connection, it is to be observed that although the statute, Act No. 123, Public Acts of 1915 (3 Comp. Laws 1915, §§ 11736-11738), permits affidavits detailing certain facts to be recorded and makes such recorded affidavits prima facie evidence, in courts, of the facts and circumstances contained, such affidavits may and often do merely point to evidence which would, if not disputed, support a decree quieting title or one reforming an instrument.

4. A foreclosure of a mortgage by advertisement is valid only where the mortgage contains a power of sale, and an agreement like the one before us is not complied with if the title rests upon a foreclosure by advertisement and the abstract does not show that the mortgage contained a power of sale. The recital in the sheriff's deed that the mortgage contains the power is no evidence of the fact. Bryan v. Straus Bros. & Co., 157 Mich. 49. This was an action of assumpsit by vendors upon a land contract.

5. A title is not marketable which rests upon a deed which essentially misdescribes the property conveyed; as when, as in this case, the land is described in the deed as being in a township other than the one in which the land which is abstracted lies.

6. Plaintiffs say that inasmuch as Reuben Adams, vendee in the deed given in the foreclosure proceeding, afterwards executed the conveyance to Israel Bickford, who also acquired such title as Philo Parsons took upon the execution sale, it is immaterial as affecting title whether the foreclosure was valid or invalid, or whether the foreclosure deed correctly describes the land. Parsons, the purchaser at execution sale, had the right to redeem from the mortgage which Reuben Adams owned. Israel Bickford acquired Parsons' interest and right and also acquired Adams'

interest. Adams' quitclaim deed, if not a conveyance of title, may be treated as at least an assignment of the mortgage. There was then no outstanding interest or title. It is further the argument of plaintiffs that the mortgage was either foreclosed or it was not. If not, it became due in November, 1870, since which date more than 45 years have elapsed. But, clearly, plaintiffs' title rests either upon the foreclosure of a mortgage or upon the deed from Mr. Parsons, or upon both, and the validity of each is doubtful. That plaintiffs as defendants might maintain title in an ejectment suit or secure decrees correcting the records, does not answer the specifications of the contract which calls for a title shown by the abstract of title to be merchantable. One informed about all the facts might be willing to purchase the land, accepting a deed from plaintiffs, but that is not the test to be applied. See Ford v. Wright, Walker v. Gillman, supra; Stange v. Gosse, 110 Mich. 153.

7. In Schwartz v. Woodruff, 132 Mich. 513, the action was like the one at bar, but there was no question there of an abstract title. The agreement there was for a good and sufficient conveyance in fee simple, free and clear, etc. The purchase price being all due and a conveyance tendered the purchaser, he declined to accept it upon the sole ground that he did not have the money. There was, in fact, a defective title of record, but the defect was one which the vendor could remedy. And so it was held that as an injustice would result to the defendant purchaser if he was compelled to pay the difference between what could be obtained for a questionable title and what he had agreed to pay for a title free from question, the decree required the vendor to obtain and record the conveyance which would perfect the record title. In the case at bar, the plaintiffs ask for time to perfect their record title. The court below refused this for a reason stated in 200-Mich.—42.

the opinion. This reason seems to me to be based upon facts fairly inferable from the evidence in the case and to be sufficient.

The decree is affirmed, with costs to defendant.

BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

WILLIAMSON v. HANNAN.

1. FRAUD-MISREPRESENTATIONS-MATERIALITY-ROOMING HOUSE. Representations in the sale of a rooming house business and furniture as to the income and respectability of the place, if false, were material.

2. SAME

BROKERS-CONSPIRACY-EVIDENCE-SUFFICIENCY.

In an action by the buyer against the broker, his agent and the owner of a rooming house business for fraud in the sale of same, evidence examined, and held, insufficient to sustain the allegation that the representation that the neighborhood was respectable was false, that the broker's agent represented, as a fact, the income, and that the owner and broker's agent were in confederation to deceive plaintiff.

In the absence of evidence that defendant broker's agent had any knowledge of the reputation or character of any of the roomers of a rooming house, his silence on that subject, and as to whether they would remain in the house for any length of time, was no evidence of fraudulent design on his part, in making a sale of the business.

4. SAME

CONTRACTS-DISAFFIRMANCE-TRIAL.

In an action for damages for fraud and deceit in the sale of a rooming house business, it is immaterial, as affecting

the cause of action, whether plaintiff did or did not disaffirm the contract, hence the action of the court below in submitting that question to the jury, limiting the damages to the amount paid, with interest, was not reversible error.

5. SAME - BROKERS

INSTRUCTIONS.

MISREPRESENTATIONS

INTENT TRIAL

In such action, the broker and his agent being joint defendants with the owner, requested instructions that the broker and his agent could not be held liable unless the statements made by the agent were known by him to be false and were made with intent to deceive and defraud, should have been given.

Error to Wayne; Chester, J., presiding. Submitted April 13, 1917. (Docket No. 148.) Decided September 27, 1917. Reargued February 1, 1918. Former opinion vacated March 28, 1918.

Assumpsit by Margaret Williamson against W. W. Hannan, William Devlin, and others for fraud and deceit in the sale of a rooming house business. Judgment for plaintiff. Defendants bring error. Reversed as to all but defendant Devlin.

Stellwagen & MacKay and Daniel E. Wade, for appellants.

Edward Pokorny, for appellee.

In this cause an opinion affirming the judgment was filed September 27, 1917. The opinion has not been published, a motion for a rehearing having been made October 6, 1917, by defendants other than Devlin, and a rehearing granted. Being convinced that a wrong conclusion was reached, the former opinion is withdrawn, the following to stand as the opinion of the court:

In a declaration, to which no formal objection was made, plaintiff alleges, in substance and effect, that

defendants, on February 23, 1914, with intent to cheat and defraud her, and induce her to purchase from the defendant Devlin the good will and contents of a certain rooming house-furniture, fixtures, carpets, rugs, etc., at No. 485, Grand River avenue, Detroit, and to pay to said Devlin therefor the sum of $1,650, falsely and fraudulently represented to her

"That the said rooming house business was located in a desirable and respectable neighborhood, and the roomers in said rooming house were respectable and hard working people, and that the income of said rooming house business was two hundred and fifteen ($215.00) dollars per month; whereupon and by means of said false and fraudulent representations of the said defendants the said plaintiff was induced to and did purchase said rooming house business and contents therein of the said defendant, William Devlin, and then and there paid to said defendant, Martin F. Gainey, in the form of a check payable to the order of W. W. Hannan, for and on behalf of the said defendant, William Devlin, for the purchase price of said rooming house business and contents therein, a large sum of money, to-wit, nine hundred ($900.00) dollars, and for the balance of the purchase price to-wit, seven hundred and fifty ($750.00) dollars, gave a chattel mortgage on the contents of said rooming house business to said defendant, William Devlin."

The alleged fraudulent representations are negatived, it being alleged that the rooming house is in an undesirable and disreputable neighborhood, the roomers therein drunkards, and the female roomers women of disrepute and bad character; the monthly income was only $125 a month. Damages "in her property rights" to the amount of, to wit, $2,000, are alleged, and she pleads 3 Comp. Laws, §§ 10421, 10422 (3 Comp. Laws 1915, §§ 12350, 12383), as a provision permitting her to maintain an action of assumpsit to recover said damages. The defendants are W. W. Hannan, his clerk and agent, Gainey, and Devlin, the owner of the property. Devlin listed the property for