Statement of the Case. received. The abstract and accompanying papers in the matter of the title to the Fort Brady reservation proposed site have been forwarded to General Poe, together with my opinion regarding the same. I have recommended and advised that the title is good and complete." The papers referred to in this letter were immediately forwarded by General Poe to the Secretary of War. The latter, under date of March 28, 1887, referred them, together with the deed of conveyance by Ryan and wife to the United States, to the Attorney General, with the request that the War Department be advised as to the validity of the title to the lands in question, and whether the above deed was sufficient to vest the title in the United States. While these papers were in the hands of the Attorney General, Brennan & Donnelly, attorneys for Ryan, wrote to the Secretary of War: "Mr. Thomas Ryan of Sault Ste. Marie, in this State, with whom your department had some negotiations some months ago for the purchase of the S. W. of the S. W. of section 6, the S. E. of the S. E. of section 1, in said town., as a site for Fort Brady, has instructed us to say that he has arranged for a different disposition of the property, and further negotiations are unnecessary. Will you please return to him all papers submitted to the government concerning said property?" This document was referred by the Secretary to the Lieutenant General of the army, who was informed that the title papers had been forwarded to the Attorney General, and that a copy of the document had been sent to the latter. Under date of April 9, 1887, the Attorney General returned the papers to the Secretary of War. They were sent again to the Attorney General on the 16th of April, 1887, the latter being advised by the Secretary of War that their return was not desired, and that the opinion of the Attorney General was desired as to the validity of the title to these lands, as to the sufficiency of the deed to vest the title in the United States, and as to whether there was a sufficient agreement in writing to bind Ryan notwithstanding his attempted withdrawal from the agreement. On the 18th of May, 1887, the Attorney General Statement of the Case. returned the papers to the Secretary of War, with a written opinion to the effect that the deed was sufficient to pass title to the United States provided nothing had transpired since its execution to affect. the title. He advised the Secretary of War that information on that point should be obtained before completing the purchase price, by having search made for liens, incumbrances, etc., down to that date. The Attorney General, on the next day, transmitted the deed of Ryan and wife to the District Attorney, instructing him to continue the search for liens, incumbrances, etc., subsequent to the date of the deed, and saying: "Should the title be found to be unaffected thereby and to remain unchanged, you are instructed to have the deed recorded, after which payment of the purchase money will be made in the usual way through the War Department. Please attend to this promptly and report your doings under these instructions as early as practicable." On the 28th of May, 1887, the District Attorney wrote to the Attorney General, acknowledging the receipt of the latter's letter of the 19th, and saying: "I found upon investigation that he had got a deed from one Anne E. Warner, who made claim of dower, but which claim had no force, I thought, but I found that on the 4th of April Thomas Ryan and wife. deeded to the village of Sault Ste. Marie a strip of land 40 feet wide off the east side of the southwest quarter of the southwest quarter of section 6, and 40 feet off the west side of the southeast quarter of the southeast quarter of section one, making together a strip 80 feet wide, for street purposes. I hereto attach a slip, with the land marked out, showing you what has been done to affect the title to the land. Notwithstanding all this, I recorded the deed running to the United States. Perhaps I should explain further. Since this land was contracted to the government a very remarkable business boom has struck Sault Ste. Marie, and Mr. Ryan claims that the land deeded to the government is worth fifty or sixty thousand dollars. He has made a claim that the government was dealing with the expectation of purchasing it, and assuming that it had not been accepted as yet, but was under Statement of the Case. consideration by the government, while I supposed you had accepted his offer to sell the land for $12,000. This being the situation, I took the responsibility of recording the deed, notwithstanding that eighty feet had been deeded away, thinking that it would be the safest way to secure the government, as the property is unquestionably worth more than $12,000, although the conveyance of the street should be valid. There is no doubt that the village officers knew of such contract when made, and no doubt exists in my mind but the village officers prefer that the government should own this property. The facts seem to be that Thomas Ryan had other lands adjoining this, or in the vicinity, which he had sold for fabulous prices, and he has no doubt promised to other parties the opening of this street, and in pursuance of this fact has made this deed. As this now stands the title of the land is in the government, except only that Ryan has conveyed away this 80-foot strip. I shall be pleased to take any steps that may be directed in this matter." Under date of June 9, 1887, the Attorney General transmitted to the Secretary of War the letter of the District Attorney, in which he said: "It appears that since the date of that deed, and before the same was recorded, namely, on the 4th of April, 1887, the said Ryan and wife deeded a small part of the premises to the village of Sault Ste. Marie for the purpose of a street. Notwithstanding this, the United States attorney thought it advisable to put the deed to the United States on record. By the law of Michigan an unrecorded deed is 'void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof whose conveyance shall be first duly recorded.' If the conveyance to the village has been first duly recorded, and is otherwise within the provision of law just adverted to, its title to so much of the premises as is granted thereby would doubtless be superior to a title derived under the deed to the United States. However, should the use of that part of the premises for the purpose of a street be unobjectionable, the failure to derive the title thereto under such deed may be unimportant." Statement of the Case. The Lieutenant General of the Army recommended that the ground be not purchased unless the 80-foot right of way referred to be given up by the village. This recommendation was approved and the papers were referred to the Chief of Engineers, Colonel Poe, to ascertain whether the village would relinquish the strip 80 feet wide. The Secretary and the Lieutenant General decided " to await further action of the village council of Sault Ste. Marie, that the rights of the United States should be maintained, and that payment must be withheld until the roadway is relinquished to the government, thus making the title of the United States good to the whole tract conveyed by the deed of Thomas Ryan to the United States." The result desired in this particular was attained; for by deed of May 22, 1888, the village, which had then become a city, relinquished to the United States all the rights that it had obtained from Ryan and wife under their deed to it of April 4, 1887. It was admitted at the trial that previous to the action of the village council authorizing said deed, namely, May 22, 1888, Major Adams, on behalf of the United States, made a tender to Ryan of the sum of twelve thousand dollars. Before this tender, Adams had an understanding with the local authorities that the village would make the relinquishment, which they shortly thereafter did. It appeared in evidence that Ryan was not the holder of the legal title at the beginning of the negotiations between him and the government. On the 6th of June, 1883, he and his wife conveyed to James R. Ryan by deed, which was recorded, without any reservation therein for streets. By deed of June 16, 1883, recorded June 19, 1883, James R. Ryan and wife, for the consideration of one dollar "and other considerations," conveyed by quit-claim deed ten acres of these lands to Remegius Chartier, S. J., and his successors and assigns, "to be forever the property of the Fathers of the Society of Jesus for the purpose of education and other works, in accordance with their constitution, with the power to sell and dispose of the same to accomplish the same ends in case circumstances should require it; together with all and singular Argument for Plaintiff in Error. the hereditaments and appurtenances thereunto belonging or in anywise appertaining; to have and to hold the said parcel of land herein before described to the said party of the second part, and to his successors, heirs and assigns to the sole and only proper use, benefit and behoof of the said party of the second part, [his] successors, heirs and assigns forever." Chartier, for the consideration of one dollar, by deed of November 26, 1886, recorded November 29, 1886, reconveyed said parcel to James R. Ryan. The latter, by deed of December 6, 1886, recorded December 13, 1886, conveyed to Thomas Ryan the same premises which the latter and wife had conveyed by their deed of June 6, 1883. Other facts are set out in the bill of exceptions, but the above are all that are necessary to be stated. Mr. Michael Brennan, Mr. John C. Donnelly and Mr. Isaac Marston for plaintiff in error. I. There was no contract between the parties valid under the statute of frauds of Michigan. Gault v. Stormount, 51 Michigan, 636, and cases cited. II. There was no mutuality in the alleged contract, which was essential to its validity. Wilkinson v. Heavenrich, 58 Michigan, 574; Richardson v. Hardwick, 106 U. S. 252. III. An acceptance by the Secretary of War was necessary before the proposal could become a binding contract. Gilbert & Secor v. United States, 8 Wall. 358; Parish v. United States, 8 Wall. 489; Filor v. United States, 9 Wall. 45; United States v. Burns, 12 Wall. 246. IV. Until delivery and acceptance of the deed, either party could terminate the negotiations, and Ryan did, actually, terminate them. V. The papers were submitted to the United States only for inspection. This was not a delivery, transferring title. Wadsworth v. Warren, 12 Wall. 307; Graves v. Dudley, 20 N. Y. 76; Parker v. Parker, 1 Gray, 409; Murdoch v. Gilchrist, 52 N. Y. 242; Eggleston v. Wagner, 46 Michigan, 610; Taft v. Taft, 59 Michigan, 185; Pennington v. Pennington, |