
    Ellen Donahue and Barney Donahue v. Jacob Klassner.
    
      Land contract: Estoppel. A vendee in a contract for the purchase of land of which he was already in possession, under an adverse title, is not estopped by his contract, in the absence of any special covenant standing as a sufficient foundation for it, to deny the title of the vendor.
    
      Evidence: Deed executed out of the state: Act of 1861. The certificate of a county clerk, — it not appearing that he was the clerk of a court of record, — dated in 1855, verifying the acknowledgment of a deed without witnesses, executed in ‘ 1848, will not entitle the deed to be recorded; nor is it within the healing act of 1861.
    
      Ejectment: Burden of proof on a second trial. The burden of proof is not changed upon a second trial in ejectment, because, under a judgment entered on a verdict rendered on the first trial, the plaintiff had obtained restitution.
    
      Heard January 9.
    
    
      Decided January 10.
    
    Error to Berrien Circuit.
    This was an action of ejectment brought by Jacob Klassner in the Circuit Court for the County of Berrien against Philip Donahue, who died after the commencement of the suit, when Ellen Donahue and Barney Donahue, heirs at-law of Philip, were substituted on the record as defendants. The cause was first tried in the lifetime of Philip, and a verdict was rendered for the plaintiff. A judgment was entered on the verdict, and the plaintiff obtained restitution of the premises. A second trial was awarded under the statute, when the plaintiff again obtained a verdict and judgment. The cause now comes into this court by writ of error.
    
      Edward Bacon, for plaintiffs in error.
    
      F. Muzzy and D. JD. Hughes, for defendant in error.
   Campbell, Ch. J.

This is an action of ejectment, and the principal inquiries in it relate to tlie validity and construction of a conveyance, and the effect of a contract by way of estoppel.

The plaintiff below, in order to prove his title, showed a patent from the United States to D. & J. Petrie; a deed from the Petries to one Barns, and a deed from Barns to C. F. Howe. He introduced evidence further to show that Howe had made a contract to sell the land to Philip Donahue, under whom defendants below claimed as heirs-at-law, and that Donahue failing to pay what was due, Howe assigned the contract and quit-claimed the land to plaintiff.

The plaintiff below, being sworn in his own behalf, showed among other things that Philip Donahue was in possession, claiming ownership before he took the contract, by conveyance from one Jones, who had purchased of David Conant, and that Conant had improved it, and had entered under a tax title.

The first question arising is, whether Philip Donahue was estopped, by the land contract, from disputing plaintiff's title. We do not think he was. He got no possession from Howe, but simply retained a possession he already claimed under color of right. A person in possession is not debarred from fortifying his title by getting in any outstanding titles which he can purchase. There may be some diversity of views in regard to the foundation of estoppels by laird contract, but we think the most satisfactory doctrine, where there is no independent or special covenant standing as a sufficient foundation, is, that the estoppel arises from the fact that the possession which would not have been obtained without it, cannot honestly be retained in defiance of it. But if not so obtained, the only thing that could be derived from the contract would be the title, and of course there would be no justice in compelling a man in possession to give up to one who has no right, and who could not there - fore fulfill his own contract. In a suit on the contract itself, the vendor would not recover without ability to perform on his own part. There is no better reason for giving him a possession which does not belong to him.

The plaintiff’s title therefore became of primary importance. He showed title from the government to D. & J. Petrie. He then undertook to prove a deed from them to Barns by record evidence. The deed purported to have been made in New York without witnesses, and acknowledged in 1843. The clerk’s certificate verifying the acknowledgment' was made in 1855, and does not purport to have been made by the clerk of a court of record. We know of no law which would make this certificate valid, and there is nothing in the healing statute of-1861 which has any reference to such a document.

This might dispose of the case. But as we cannot tell what may be shown upon a new trial, it may be necessary to refer to some points presented and passed upon, in the court below, which are likely to arise again.

We think there is no foundation whatever for the claim that the fact that restitution of the premises was obtained by plaintiff below on a former judgment, changes the burden of proof on a new trial, and compels the defendant to prove his own case. Hpon each new trial the case must be tried just as if it never had been tried before. A new trial in ejectment does not differ in this respect from any other new trial. The issue is the same on every trial, and the burden of proof must conform to it. The plaintiff in ejectment is the party who must prove his right.

This deed to Barns is objected to — aside from its formalities — as not appearing to cover the land contained in the descriptive part of the declaration. That calls for a parcel of thirty-two acres, more or less, including so much of the southeast quarter of section four, in town eight south, of range nineteen west, as lies north of the Central Railroad. The Petries owned the east half of the northeast -quarter, and the entire south half of the section. This made a lot of four hundred acres, of which eighty acres lay north of the middle of the section and three hundred and twenty south of it. The deed to Barns conveys the east end of the south half of the above described tract of four hundred acres, being one hundred acres of land as first aforesaid.” There is no ambiguity in this description. The south half of the four hundred acres is the southerly two himdred acres of the south half of the section, or a parcel of land one hundred, rods wide running across the section from east to west. This, if the section is of full dimensions, would make the most northerly portion of it sixty rods south of the middle of the section. It is evident that but a small portion, if any, of the land described in the declaration is covered by this deed. ( And as there is no evidence in the case tending to identify the boundaries at all, the deed was not available as a source of title upon the facts as returned.

We do not think it necessary to pass upon the other points raised.

The judgment must be reversed, and a new trial granted.

The other Justices concurred.  