
    Ellen Donahue vs. Jacob Klassner.
    An estoppel by land contract arises from tho fact that possession which wouI$l not have been acquired without it, cannot be honestly bo ptaiaed in defiance of it,
    A deed was made and acknowledge in N, Y., in 1843, without witnesses. Clerk’s certificate na to acknowledgment, was made in 183li, but does not purport to have been made by a Clerk of a Court of record. 12eW,*tImtthe deed was invalid.
    Tho fact that restitution of promises is obtained from a judgment in an action of ejectment, does not change the burden of proof on a subsequent trial of the same cause.
    Error to Berrien Circuit,
   Ojomiori bí/

Campbell, Ch, J,

This is an action of ejectment, and the prinoipal inquries in it relate to the validity and 'construction of a conveyance and, the effect of a contract by way of estoppel' 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 from Barns to O. F. Howe. He introduced evidence further to show that Howe had made a contract to sell the land to Philip Donahue, under vrhom 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.

Plaintiff below testified that Philip Donahue was in possession claiming ownership before he took the contract by conveyance from one Jones, who had purchased of David Qonant, and that Conanthad improved it, and had entered under a tax title. The first question arising was whether Philip Donahue was es-topped by-the land contract from disputing plaintiff's title.

. Held, That he was not. lie 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. The most satisfactory■■ doctrine in regard to the loundation of estoppels by land contract, 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 itkiannot honestly be.retained in defiance of it. But if not so obtained, the only thing that could be derived from the contract would he 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 therefore fulfil his own contract. In a suit on the contractjtself, the vendor would not recover without ability to perform on his part. Plaintiff’s title, therefore, becomes of primary importance.

Held, That the deed from Petrie to Barns, was invalid. It was made in New York -without witnesses, and acknowledged in 1813. The clerk’s certificate, verifying the acknowledgment was made in 1856, and does not purport to have been made by the clerk of a court of record. -This disposes of the case, but some rules were laid down to guide in a new trial.

Held, That there is no foundation 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 oh a new trial and compels the defendant to prove his own case. ■ Upon the new trial- the case must be tried justas if it had never been tried before. The deed of Barns is also objected to.as not appearing to cover the land' contained in the descriptive, part, of the declaration.

Held, that 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.

Judgment must be reversed, and a new trial ordered.  