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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,

Opinion of the Court.

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75 Michigan, 600; McCullough v. Day, 45 Michigan, 554; Martz v. Eggemann, 44 Michigan, 430; Patrick v. Howard, 47 Michigan, 40; Hyne v. Osborn, 62 Michigan, 235; Hendricks v. Rasson, 53 Michigan, 575; Stevens v. Castel, 63 Michigan, 111.

VI. Chartier, the trustee in the deed from Ryan, had no power to reconvey the tract to him, and consequently nothing passed by his deed. 2 Howell's Stats. § 5565, § 5573, subd. 5; § 5583; Methodist Church v. Clark, 41 Michigan, 730, 739; Pierce v. Grimley, 43 N. W. Rep. 932. And this may be taken advantage of in ejectment. Doolan v. Carr, 125 U. S. 618; Reynolds v, Iron Silver Mining Co., 116 U. S. 687, 698.

Mr. Solicitor General for defendants in error.

MR. JUSTICE HARLAN, after stating the facts, as above reported, delivered the opinion of the court.

No question is made in this case, as in view of the decisions. of this court and the statutes of Michigan there could not properly be, in respect to the right of the United States, by purchase, to acquire the premises in dispute for the purposes of fortification and garrison expressed in the act of July 8, 1886. Kohl v. United States, 91 U. S. 367; United States v. Jones, 109 U. S. 513; Van Brocklin v. State of Tennessee, 117 U. S. 151, 154; 2 Howell's Anno. Stats. Mich. §§ 5202, 5203. Nor can it be doubted that what was done by the Secretary of War and by other officers of the government acting under his direction was within the limits of the authority conferred by that act. It is equally clear that in the absence of the Secretary the authority with which he was invested could be exercised by the officer who, under the law, became for the time Acting Secretary of War. Rev. Stat. § 179.

But the defendant insists that the alleged contract between him and the government was not valid or binding under the statute of frauds of Michigan, which provides that "every contract for the leasing for a longer period than one year, or for the sale of any lands, or interest in lands, shall be void,

VOL. CXXXVI-6

Opinion of the Court.

unless the contract, or some note or memorandum thereof, be in writing and signed by the party by whom the lease or sale is to be made, or by some person by him lawfully authorized by writing." Howell's Stat. § 6181. His contention is, that the writings, including telegrams, which are relied upon to establish a valid, binding contract, do not, in themselves, show that the lands therein referred to are the lands in question, and, therefore, no written memorandum, such as the statute requires was executed. In support of this view we are referred to Gault v. Stormount, 51 Mich. 636, 638. In that case, the memorandum was only a receipt, given at Wyandotte, Michigan, by the party selling, showing that he had received from the party proposing to buy "the sum of $75 as part of the principal of $1050 on sale of my house and two lots on corner of Superior and Second streets in this city." This receipt was held to be insufficient to answer the requirements of the statute, for the reason that "though it specified the purchase price, it failed to express the time or times of payment, and there is no known and recognized custom to fix what is thus left undetermined; " the court adding that "a memorandum, to be sufficient under the statute, must be complete in itself, and leave nothing to rest in parol." It will be observed that the memorandum in that case was not rejected as insufficient because of any want of fulness in the description of the premises, nor is there any intimation that such description, (if the case had turned upon that point,) might not have been aided by extrinsic parol evidence, identifying the premises intended to be sold. That case did not in any degree modify the decis ion in Eggleston v. Wagner, 46 Mich. 610, 618, where the court said: “A further objection is that the proposal did not sufficiently describe the real estate to satisfy the statute of frauds. The general principle is not questioned. The degree of certainty with which the premises must be denoted is defined in many books, and the cases are extremely numerous in which the subject has been illustrated. They are all harmonious. But they agree in this, that it is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the

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