ROBINSON v. BOYD ET AL.

proofs necessitate the inference that both Dayton and Wolverton were kept in ignorance of the state of the negotiation with Hodge, and the terms of it, and of the circumstance that Boyd and Wiggins regarded the negotiation with them as given up.

The bargain with Hodge being consummated on the 27th of January, the latter surrendered his claim of $737 on the personal property, and took the real and personal estate without discharging any of the liens upon it, except that covering the claim last mentioned.

He then employed Boyd at fifty dollars per month to take charge of the property.

Wolverton, believing that the negotiation between himself and Boyd and Wiggins was still in progress, and approaching consummation, in a purchase by him for more than $3,500, called again on Boyd on the 1st day of February, and only four days after the purchase by Hodge, but was then informed by Boyd of the sale to Hodge, and was referred to the agent Baker, as the person who would make the sale to him, Wolverton.

The latter thereupon called on Baker in order to effectuate the bargain which he had sometime sought; and although it appeared that Hodge had not purchased with the view of carrying on the livery business, and that in his circumstances he could not carry it on except under disadvantage, and did not intend to keep the property, but was anxious to sell it; nevertheless, it could not be purchased by Wolverton for less than $3,650, with $400 down. This was but four days after the purchase by Hodge, and while the liens on the real estate remained undischarged, Wolverton was obliged to take the real estate subject to the incumbrances to be considered as part of the purchase price. Hodge gave up the securities he held for the $737, and this was the sole act of his in the nature of a payment down. Wolverton paid $400 in cash. The difference between the alleged consideration for the sale to Hodge on the 27th of

ROBINSON v. BOYD ET AL.

January, and the consideration for the sale by him to Wolverton, four days after, was $1,139.84. The defendants now claim that the whole property was not worth over from $2,000 to $2,600, although they would not dispose of it, except as between themselves, for less than $3,650. The complainant claims that it was worth the latter sum. was much sought for at that price. It was sold for that. The opinion of the parties, as shown by their conduct, favored the same view. The character and quantity of the property justify the belief that Wolverton did not exaggerate its value. In either view of the value, the difference in the sale price in some four days was a large one; and the circumstances wholly fail to account for such difference upon any hypothesis consistent with the claims of good faith. The statements in the answer are unsatisfactory. The claim of $737 was already secured by chattel mortgage on the whole personal property: no private purchase of the equity of redemption was called for, or appropriate to protect the interest of the mortgagee under such mortgage, against the action of subsequent execution creditors. The other demand of Hodge was secured by mortgage on the real estate, and certainly the position of that lien relatively to others, whether by mortgage, attachment or execution, could not be changed by the acquisition of the equity of redemption, nor could it be impaired by the action of subsequent execution creditors. Hence, the alleged necessity for the purchase by Hodge, in order to protect his interests, does not appear to have existed. According to the evidence the legal title to the whole property was transferred to him upon the bare surrender of the chattel mortgage for $737, and, as a consequence, he acquired, without consideration, the right to appropriate to his own use, or hold by secret trust for Boyd and Wiggins, whatever could be obtained for the equity of redemption in the whole real and personal property. Wolverton was at the time endeavoring to buy that equity for between eleven and

ROBINSON . BOYD ET AL.

twelve hundred dollars, and, as already stated, neither Boyd and Wiggins or Hodge were willing to sell it for less than that. No doubt can be entertained, but that it was worth the sum for which it was sold, and, to that extent, I think the conveyance to Hodge was wholly voluntary, as against the creditors of Boyd and Wiggins.-Boyd v. Dunlap, 1 Johns. Ch. 478; Mohawk Bank v. Atwater, 2 Paige, 54; Wickes v. Clarke, 8 Id. 161, 172; Wright and Cook v. Stanard, 2 Brock. 312-314; Hopkirk v. Randolph, Id. 133, 150,

Under these circumstances, was the complainant entitled to the relief he asked? I think that he was. By the management of the defendants, an amount of property belonging to the execution debtors, worth between eleven and twelve hundred dollars, was actually transferred to Hodge, for no apparent consideration whatever, and was immediately transferred, by the latter, to an innocent purchaser, upon terms satisfactory to Hodge. When the latter sold to Wolverton he exercised his own discretion as to payment and security, and was content to take what he received, in place of the property for which he had paid nothing.

If, on parting with the property thus obtained from Boyd and Wiggins, he received insufficient security, the risk or loss should fall upon him, and not upon the other creditors, who by his means were cut off from all opportunity to reach the property itself. Whether he made an imprudent sale, or took insufficient security, or made a gratuitous disposition of the property, he ought not to be allowed to say that he is only chargeable with what he may have actually received from Wolverton.

Having obtained the equity of redemption without consideration, and having placed it beyond the reach of the complainant, and having failed to make any explanation which would enable the court to grant relief in any other manner, I think he should be personally charged with the value of the property so obtained. As already stated, such value is sufficiently shown by the conduct of the defendants,

THE PEOPLE V. DOESBURG.

the efforts of third persons to purchase, and the actual sale to Wolverton.

As the decree below placed the value of the property so obtained without consideration at the same sum, I think it ought to be affirmed, with costs.

COOLEY CH. J. and CAMPBELL J. concurred.

CHRISTIANCY J. did not sit.

People ex rel. Frank H. White v. Hermanus Doesburg.

Quo Warranto: Special Verdict: Mis-trial. Where a verdict finds in favor of one party only a part of the facts necessary to decide the issue made by the pleadings and contains no general finding separate from or independent of the special facts so found, it must be treated as a special and not as a general verdict, and not being sufficient to found any judgment upon, amounts to a mistrial, so that the case must be re- tried.

Quo Warranto.

Heard and Decided June 2d.

In this cause certain issues of fact, arising upon the several pleas of the defendant, were referred for trial to the Ottawa Circuit.

A trial by jury was had, and a verdict rendered for the relator, and which, with the report of the Circuit Judge, were transmitted to this court for final judgment.

The following is the report of the Circuit Judge:

"The issue of fact, joined in the cause entitled as above, having been sent for a new trial, and by jury, the Circuit Court for the County of Ottawa, by an order of the Supreme Court, dated and tested the 16th day of October, A. D. 1867, which order requires said Circuit Court to return to the Supreme Court the verdict of the jury on such new trial, and the evidence taken on such trial, together

THE PEOPLE v. DOESBURG.

with all rulings and proceedings thereon, with the opinion of the Circuit Court thereon, with all convenient speed; and the same came on for trial by jury, at the special term of the Circuit Court for the County of Ottawa, which was duly and legally ordered by the Circuit Judge thereof, and was begun and held at the court house, in the city of Grand Haven, in said county, on the 25th day of November, 1867, the Honorable Moses B. Hopkins, Circuit Judge, presiding.

During said special term, and on the 23d day of December, 1867, a jury, consisting of twelve good and lawful men of said county, were summoned, tried, empanneled and sworn to try the issue of fact joined in said cause, and said jury sat together and heard the proofs and allegations on the part of the relator, and of the defendant, and after hearing the charge of the court, retired from the bar thereof, under charge of a sworn officer of the court, and after being absent for a time, to consider of their verdict, and on the 31st day of December, 1867, returned into court, and rendered a verdict in writing as follows:

"We, the jury, find the issues of fact joined in this case, in favor of the relator, in this-that at the general election, held at Spring Lake, November 6, 1866, the inspectors of said election did suppress three ballots, voted at said election, by that number of electors, which ballots had the name of the relator, as a candidate for County Clerk and Register of Deeds upon them, and did substitute a like number of ballots, with the name of Hermanus Doesburg upon them, as a candidate for the same office.

(Signed)

"JAMES H. WHEELER,

"Foreman."

Which verdict was received and entered in the journal of the court.

The relator introduced John B. Perham as the first witness in the case, who testified as to who constituted the Board of Inspectors at the general election in Spring Lake, November 6, 1866, and the situation of the board in the