Whenever there was a controverted question of fact, the judge left the question to the jury for them to determine. The important question in the case is, Was the police judge authorized to issue a search warrant that might be served anywhere in the county of Kent? The plaintiff says no, but fails to find any authority upon the question. The act creating the police court is silent upon the subject of search warrants. In 3 How. Stat. § 6591d, is found a statement of the power of the police court. Among other powers conferred upon the judge is, "He shall also have all the powers and authority of a justice of the peace, except in the trial of civil cases." 3 Comp. Laws, § 11986, confers upon any magistrate authorized to issue warrants in criminal cases, upon proper complaint being made, authority to issue search warrants. Id. § 11988, requires that all search warrants shall be directed to the sheriff or any constable of the county. That the police judge is a magistrate authorized to issue warrants in criminal cases is not open to question. This being so, he has the authority, upon proper complaint being made, to issue search warrants, which shall be directed as commanded by the statute. The form of the complaint to be made in these cases, found in the fourth edition of Tiffany's Cr. Law, 357, indicates that the learned author understood that for property stolen in the city of Adrian, and concealed in a dwelling-house outside of said city, a search warrant might be issued, and such has been the understanding of lawyers. In this case the complaint showed the larceny of a wheel in the city of Grand Rapids, and reasonable cause to believe it was concealed in the house of plaintiff in Byron. This gave the magistrate authority to issue the warrant, and the warrant, being in due and legal form, was a complete protection to the officer. The court might very properly have directed a verdict in favor of defendant, but preferred to leave any controverted question of fact, under proper instructions, to the jury.

Judgment is affirmed.

The other Justices concurred.

CLINE v. WIXSON.

1. MORTGAGES-TITLE TO PROPERTY-FORGED DEED.

A mother died, leaving a husband and five children her surviving. The husband and a son forged a deed purporting to convey her real estate to the husband, and the latter then conveyed the property to the son, who in turn conveyed to another son, having knowledge of the forgery, the latter giving a mortgage back on the property, which was assigned to a third person. Held, that the mortgage was a valid lien on a two-fifths interest in the land, in so far as there was a valid consideration therefor, as the deed from the brother operated to pass his interest as heir.

2. EQUITY PRACTICE-FORGED INSTRUMENT-ESTOPPEL.

One who has defended an action at law relying on a deed known by him to have been forged cannot afterwards maintain a bill for equitable relief based on the fact of such forgery.

Appeal from Sanilac; Beach, J. Submitted June 24, 1901. Decided September 25, 1901.

Bill by Kate M. Cline and Leo E. Cline against Philip L. Wixson and Walter S. Wixson to set aside a foreclosure sale. From a decree for defendants, complainants appeal. Affirmed.

One Jane Cline died intestate August 28, 1892, leaving five children, viz., William M., Sewell, and John Cline, and Lillian Carey and Selina Burch. Her husband, Jacob Cline, also survived her. Sewell Cline died June 8, 1897. Complainant Kate Cline is his widow, and complainant Leo is his son. Jane, at the time of her death, was seised in fee of 120 acres of land. Some time before her death, negotiations were pending for the sale of the land to one Emma Kimball, and she had signed and acknowledged a deed to Mrs. Kimball, and delivered it to her son William, to be delivered to Mrs. Kimball upon the performance of certain conditions, which were never per

formed, and the deed was never delivered to Mrs. Kimball. After Jane's death, Jacob and William erased the name of Mrs. Kimball in the deed, inserted the name of Jacob Cline, and recorded it. Subsequently Jacob conveyed the land to William, and he conveyed it to Sewell, and Sewell executed to William a mortgage for $1,200. Afterwards defendant Philip L. Wixson became the purchaser of the undivided interests of Mrs. Carey, Mrs. Burch, and John Cline, and defendant Walter S. Wixson purchased the mortgage, for which he paid $550. He foreclosed the mortgage by advertisement, whereupon complainants filed the bill in this cause to set aside that sale. The theory of the complainants is that the deed to Jacob was a forgery, and that Sewell had no title to mortgage, and that, therefore, the mortgage is void. Defendant Philip, after he obtained his title to the three undivided interests, brought an action of ejectment. Complainants in this suit, the defendants in the ejectment suit, relied upon the deed to Jacob and from Jacob to William and from William to Sewell. The jury found that the deed to Jacob was forged, and rendered a verdict for plaintiff, Philip L. Wixson, for the undivided three-fifths of the land. After this case was heard in the court below, complainants paid the costs of the ejectment suit, and took a new trial, thus again asserting the validity of the deed to Jacob. Proofs were taken in open court, and a decree entered holding that the deed to Jacob was forged, and that defendant Philip was the owner of the undivided three-fifths, that his interest was not subject to the mortgage, that complainants were the owners of an undivided two-fifths, and that their interest was subject to a lien of two-fifths of the mortgage, $480, and interest. From this decree complainants have appealed. Defendant Walter has not appealed.

E. C. Babcock, for complainants.

Avery Bros. & Walsh, for defendant Philip L. Wixson. Quinn & Wixson, for defendant Walter S. Wixson.

GRANT, J. (after stating the facts). Sewell Cline, when he executed the mortgage, was the owner of the undivided two-fifths of the land. He knew that the deed to Jacob was forged, and that the deed from William to him conveyed only William's undivided one-fifth. The mortgage was valid as to the two-fifths then owned by Sewell. His heirs, whose rights are the same as his were, will not be permitted to defend a suit at law relying upon the validity of those deeds, and then to maintain a suit in equity upon the ground that they were void because of the forgery of the deed to Jacob. It is alleged in the bill that the mortgage was given to secure a life maintenance for Jacob Cline, but there is no evidence to sustain the allegation. Complainants have failed to prove that there was not a valid consideration for the mortgage. The decree gives them all they are entitled to, and is affirmed, with costs.

The other Justices concurred.

HART v. DOYLE.

1. DEEDS DESCRIPTIONS-GOVERNMENT SURVEY.

Whether a deed of a given subdivision of land" according to the government survey" may pass title to land which would fall within the lines of such subdivision if extended, but which, by reason of an intervening meandered stream, is platted as part of another subdivision,--quære.

2. TRESPASS-PLEADING-LOCUS IN QUO.

Where, in an action of trespass, it appeared that the locus in quo had been treated locally, for purposes of taxation and otherwise, to the knowledge of all parties, as part of a certain government subdivision, the use of such description in the declaration, though not technically accurate, could not have misled defendant, and was sufficient.

128 MICH.-17.

128 257

147 137

3. SAME-ADVERSE POSSESSION.

Where plaintiff in trespass establishes a title by adverse possession, his failure to make a paper title is unimportant.

4. ADVERSE POSSESSION-SUFFICIENCY OF FINDING.

A finding by the trial court that plaintiff had exercised acts of ownership and possession over the land in dispute for more than 15 years will be treated, in support of the judgment, as a finding of title by adverse possession, where it is apparent that it was intended as such finding, and there is evidence to sustain it.

5. TRESPASS

TREBLE DAMAGES-BURDEN OF PROOF. In trespass under 3 Comp. Laws, § 11204 et seq., for cutting timber, defendant, if he would avoid the penalty of treble damages, must show that the trespass was casual and involuntary.

6. APPEAL-PRACTICE-SUPPLEMENTAL BRIEFS.

An appellant is not entitled to a consideration of alleged errors first brought to the attention of the court by supplemental brief.

Error to Van Buren; Carr, J. Submitted May 7, 1901. Decided September 25, 1901.

Trespass by Roswell Hart, guardian of Maria Hart, an incompetent, against Stephen Doyle, for cutting timber. From a judgment for plaintiff, defendant brings error. Affirmed.

Thomas J. Cavanaugh, for appellant.

Benjamin F. Heckert, for appellee.

MONTGOMERY, C. J. This is an action of trespass. The first count of the declaration describes the land upon which the alleged trespass was committed as "the land of the said Maria Hart, known and described as being the west half of the west half of the northeast quarter of section fourteen, situate in the township of Hartford," etc. In the second count the words, "containing forty acres of land, be the same more or less, according to the United States survey," were added. Judgment was rendered under the first count.