LEAVITT v. LEAVITT. the first time after more than twenty years, and, in the case of two witnesses at least, in revenge for wounded vanity, we think no tribunal, with a decent regard to common sense, could allow any one's character to be destroyed by such proofs. If such witnesses, under such circumstances, can be relied on as truthful, when they have not even been subjected to cross-examination, and have been allowed to indulge in hearsay and inadmissible statements, it would not be very difficult to satisfy a Court of anything. We are glad to say that no case has yet appeared in our Court like this, either in the wicked absurdity of the cause of action, or in the equally disgraceful character of the testimony which has been galvanized, after this long interval, to maintain it. We trust, for the honor of humanity, that it will stand alone. It would not be an edifying spectacle for a Court of justice to allow the witness of twenty years of virtuous fidelity to be overthrown by such evidence. Nor would it be more defensible to admit even clear proof of misconduct in youth to break up a household where children have been brought up, from infancy to maturity, by a mother whose married life had been blameless. The proceeding has no redeeming feature, and we shonld feel that we had done less than our duty had we omitted to express our disgust and abhorrence at it. The decree below must be affirmed. MARTIN and CHRISTIANCY J.J. concurred. COOLEY J. did not sit in this case. THE PEOPLE v. THE TOWNSHIP BOARD OF SPRING WELLS. The People, on relation of Michael Sage, v. The Township Board of Springwells. Application for laying out a highway. -The Commissioners of Highways have no power to entertain a second application for laying out the same road within one year from the first, and any proceedings by the Commissioners on a second application, within that period are void. Heard October 12. Decided October 16. Certiorari to the township board of Springwells. The return to the writ showed the following facts: On the 9th day of September, 1864, application having been made by seven freeholders of the town of Springwells for a highway in said town, the commissioners of highways proceeded to view the premises described in said application, and ordered and determined in favor of laying out such highway. From this order Michael Sage, and others, whose property was to be affected by the projected road, appealed to the township board, by whom the order of the commissioners was reversed. Subsequently, on the 31st day of January, 1865, another application by the requisite number of freeholders having been made for the laying out of said highway, the highway commissioners made another order in favor of the same. An appeal was also taken from this order by said Sage, and others, to the township board of Springwells, and the board sustained the order. Certiorari was brought to review this final action of the board. H. M. Cheever, for the relator, contended that the highway commissioners had no power to entertain the application, a similar application for the same road having been made within twelve months before. - S. L., 1861, p. 256, §1. COOPER v. BIGLY. COOLEY J.: As the record shows that the present proceedings were commenced within one year from the time when another petition for the same road had been presented and denied, the commissioners had no power to entertain them, and the proceedings must be reversed.-Laws of 1861, p. 256, §1. MARTIN Ch. J. and CAMPBELL J. concurred. CHRISTIANCY J. did not sit in this case. David Cooper v. John Bigly, Thomas B. Bigly, Francis E. Eldred, Frank Vincent, DeWitt C. Holbrook, and Levi Bishop. Marshalling securities-sale should be made in inverse order of alienation. - Upon the foreclosure of a mortgage upon premises which have been conveyed or incumbered in parce's subsequently, to the mortgage, the premises should be sold in the inverse order of such conveyances or incumbrances, unless the mortgagee will be prejudiced by having the property so sold. And this rule does not depend upon the existence or non-existence of covenants of warranty. Conveyances subsequent to mortgage ― record of, not notice to mortgagee. A mortgagee cannot be affected by a subsequent conveyance or incumbrance of the mortgaged premises, of which he has no notice, and the record of such conveyance or incumbrance is not constructive notice to him. --- Release, by mortgagee, of part of his securities.- Where, therefore, A had a mortgage upon lots one, two and three, and B had a subsequent mortgage upon lot three, and they having no knowledge of conveyances which had been made of lots one and two subsequently to their mortgages, conjointly released a part of lot three, it was held that B's equitable right to have lots one and two first sold was not thereby affected. Purchase by mortgagee of the equity of redemption when will not merge the mortgage. The purchase, by a mortgagee, of the equity of redemption will not merge the mortgage, where there are intermediate rights, or the interest of the mortgagee requires that the titles should be kept separate. Change of title pending suit-supplemental bill.—The purchaser of a parcel of land at a foreclosure sale may file a bill to compel the foreclosure of a prior mortgage upon that and other property, and to have the other property first sold; and where, pending a suit in such case, the prior mortgagee purchases the interest of the complainant, he may file an original bill, in the nature of a supplemental bill setting up the change of title, and is entitled to the same relief that could have been had under the original bill. COOPER V. BIGLY. Mis-description of property in a mortgage-the effect as to record notice. Whero property was described in a mortgage as "lot number one, in section twentyeight, on the Forsyth or Porter Farm, in the city of Detroit - being on the south-west corner of Fort and Sixth streets," which description was correct, except as to the section, which should have been eighteen, and it did not appear that there was a section twenty-eight on the farm named, it was held that the record of such mortgage was notice to subsequent purchasers of the property. Whether, where a description is so framed that it may be intended for one lot as well as another, the record of the instrument is not sufficient to put a purchaser of either upon inquiry. Quere. Covenant in a deed-exception in, when not void for uncertainty. - Where the covenant against incumbrances in a deed contained an exception of a "certain mortgage," without giving the date or amount of the mortgage, or the name of the mortgagee, but the proof disclosed only one mortgage upon the property, it was held that such exception was not void for uncertainty, but would be understood as referring to the only mortgage proven in the case. Held, also, that such exception could not affect the grantee's equitable rights in reference to the order of sale of the property covered by said mortgage. Marshalling securities — consideration of conveyances subsequent to mortgage, who may not question.· One who purchases a parcel of land, subject to a mortgage upon that and other property, and with full record notice of a conveyance of the other property, gets no greater rights by virtue of such purchase than his grantor had; and in a suit for the foreclosure of the prior mortgage, and to marshal the securities, he is not in a position to attack such deed for want of consideration. Heard July 10. Decided October 17. Appeal in Chancery from Wayne Circuit. The facts are sufficiently stated in the opinion. F. H. Canfield and A. Pond, for complainant : 1. The several parcels of land should be sold in the inverse order of their subsequent alienation. The general rule of marshalling assets and securities by Courts of Equity, in the inverse order of alienation, is too well settled in this country to require argument in this cause to sustain it. We refer, however, to the following, which are but a few of the many authorities which sustain our general proposition.-1 Story's Eq. Jurisprudence, §633; Mason v. Pagne, Walker's Ch. R., 459; Howard Ins. Co. v. Halsey, 4 Sandf., 565; 8 N. Y., 271; Chapman v. West, 17 N. Y., 125; La Forge Ins. Co. v. Bell, 22 Barb., 271; Commercial Bank v. Reserve Bank, 11 Ohio, 444; Guoin v. Knapp, 6 Paige, COOPER v. BIGLY. 35; Grovesneur v. Lynch, 2 Paige, 300; Stuyvesant v. Hale, 2 Barb. Ch. R., 151; Ayers v. Husted, 15 Conn., 504; Hastings' Case, 10 Watts, 303; Shannon v. Marsellis, 1 N. J. Ch., 413; Wickoff v. Davis, 3 Green. Ch., 224. By his purchase from the bank, Cooper acquired all the legal and equitable rights of his grantor in the premises. Whatever equities were capable of being enforced by the bank against the present defendants, can now be enforced by Cooper. - Griffith v. Griffith, 9 Paige, 315; 1 John's Ch. R., 213; Noyes v. Burton, 29 Barb., 631. 2. There has been no merger of complainant's mortgage by reason of the warranty deed which he received from John Bigly, of the Fort street and Woodward avenue lots. The doctrine is well established that a deed of the equity of redemption will not operate as a merger of a prior mortgage, where there are intervening incumbrances. -Snyder v. Snyder, 6 Mich., 470; 1 Washburn on Real Property, 564. 3. The release of a portion of the Woodward avenue lot, by Cooper, does not affect his lien as against Vincent. In the marshalling of the securities no account will be taken of the fact that a portion of the premises have been released, unless it be shown that the prior mortgagee had notice of the subsequent conveyance or lien. -Wheelwright v. Depyester, 4 Edwards' Ch., 232; Howard v. Halsey, 8 N. Y., 271-4 Sand., 565; Talmage v. Wilgers 4 Edwards' Ch. R., 239, note; Stuyvesant v. Hale, 2 Barb. Ch. R., 151; James v. Brown, 11 Mich., 25. 4. The record of Cooper's mortgage was constructive notice of his lien on the Fort street lot. Although a portion of the description of this lot contained in the mortgage is erroneous, still it is suf ficient to identify the premises intended to be conveyed, |