HITCHCOCK V. SUTTON. The ground of the attachment was that the judgment. debtors, of whom the plaintiff in certiorari was one, were about to dispose of their property with intent to defraud their creditors. The chief error relied upon in the affidavit for certiorari was that there was no evidence before the commissioner showing or tending to show that they or either of them had such an intent. The commissioner's return certainly shows no such evidence. It is objected, however, that the return does not expressly state that all the evidence is returned, and it is therefore presumable that there was evidence to sustain the commissioner's conclusions. But where the error assigned in the affidavit is the entire absence of evidence on a specified point, it is the duty of the commissioner to return fully; and we think from the commissioner's return, in which he states that he returns "a statement of all plaints levied or affirmed before me, together with all things touching the same" in the proceeding mentioned, that his purpose has been to make the return a full response to the affidavit. If in fact other evidence was given, defendants in the certiorari should have applied for a further return. The order of the commissioner must be reversed, and the attachment dissolved. And plaintiff in error must recover costs before the commissioner, and in this court. GRAVES and CAMPBELL, JJ., concurred. CHRISTIANCY CH. J., did not sit in this case. LARKE v. CRAWFORD. The People on the relation of Frederick D. Larke v. Leonard C. Crawford. Quo warranto: Pleadings: Information: Plea. In quo warranto causes the respondent must either disclaim or justify; and the plea is the first pleading that indicates the facts concerning which the controversy as to the right of office will arise. Practice: Disclaimer: Question of fact: Exercise of office. Upon a disclaimer no controversy of fact can arise beyond the simple question of the exercise of the office in question by the respondent. Plea: Justification: Office: Title of respondent: Conclusion: Verification: Burden of proof: Issue of fact. A plea of justification must show all the facts necessary to establish the lawful right of the respondent to the office in question, and must conclude with a verification; and the burden of maintaining it is on the respondent; and no issue of fact can be joined in such cases except upon a replication, or some pleading subsequent thereto, either by denial or by confession and avoidance. Informations: Respondent's title: Demurrer. It is unnecessary to set forth in the information the facts which would negative the respondent's title, and the latter cannot, therefore, demur to it for that deficiency, if it is otherwise sufficient; but must, in all cases where he relies upon his own title, make a showing of it by his own pleadings. Heard and decided October 10. Information in the nature of quo warranto. In this case, when it was called on for hearing, it was discovered that by a mutual misapprehension of counsel it was not in condition to be heard without first raising and disposing of an issue of fact. Some controversy having arisen upon the formalities of the pleadings, the court gave the necessary instructions for forming the issues. The office in dispute was that of supervisor of the township of Rogers, in Presque Isle county. Byron D. Ball, Attorney General, and Sutherland & Wheeler, for the relator. Marston & Hatch, for the respondent. PER CURIA M. LARKE V. CRAWFORD. In cases of quo warranto, the respondent is required to disclaim or justify, and the plea is the first pleading that indicates the facts concerning which the controversy as to the right of office will arise. The information charges the respondent with intrusion into an office, and calls upon him to show by what right he has assumed to hold it. The respondent may deny that he holds, or claims to hold it. Such a plea is a disclaimer, and no controversy of fact can arise upon it beyond the simple question of his exercise of the office. If he does not disclaim he must justify, and by a plea of justification he is bound to show all the facts necessary to establish his lawful right to hold the office. This is an affirmative showing, which he has the burden of maintaining, and it must conclude with a verification. No issue of fact can be joined in such cases, except upon a replication, or some pleading subsequent thereto, either by denial or by confession and avoidance. As soon as the parties have come to an issue on the facts, it is to be tried before a jury like any other commonlaw issue. It is not necessary to set forth in the information the facts which would negative the respondent's title, and the latter cannot, therefore, demur to it for that deficiency, if otherwise sufficient, but must in all cases where he relies upon his own title, make a showing of it by his own pleadings. The pleadings should be re-framed according to these rules, and leave is granted to substitute new pleadings. 28 МІСН. -12. HOFFMAN V. HARRINGTON. John M. Hoffman v. Daniel B. Harrington. Administrator's sales: Statute construed: Indirect purchase by administrator : Bona fide purchaser. Whether under our statute (Comp. L. 1871, § 4562) forbidding executors, administrators or guardians, in making sales of land, from directly or indirectly purchasing, or being interested in the purchase, and declaring sales made contrary thereto to be void, a sale to another with the understanding that he should hold for the benefit of the administrator, to protect his interest as the largest creditor of the estate, is such an "indirect purchase" by the administrator as the statute is aimed at, and therefore void, not only between the original parties, but also, at least where the administrator's deed has never been recorded, as against a bona fide purchaser from the nominal purchaser at such sale, as held by CHRISTIANCY, CH. J., with whom CooLEY, J., concurred; or whether, on the other hand, this statute is to be considered as a mere adoption by the legislature of what the courts had theretofore held to be the rule without any statute, and therefore to be construed as subject to the same qualifications and exceptions in favor of bona fide purchasers to which the doctrine as before developed by the courts was subjected, as held by GRAVES, J., with whom CAMPBELL, J., concurred:-Quare? Trespass quare clausum: Tax deeds: Color of title: Evidence. In an action of trespass for entering lands, etc., tax deeds which the evidence shows are void may be treated as color of title; and if the defendant took possession under them, they are admissible in evidence, as tending to show what, and how much, land he claimed. Bill of exceptions: Loss of deed: Evidence. Whether a recital in the bill of exceptions, as to the loss of an administrator's deed, that "the plaintiff's counsel offered the probate records, showing the appointment of" an adminis. trator named, etc., "and also tending to show sale of the lots in question to one Joseph P. Minnie, and the execution of a deed which had been lost," is any thing more than a mere statement that the probate records alone were offered to prove the loss of the deed, is at least doubtful; but as the objection is, not specially that there was no proof of the loss, but only that the contents were not proved, the case is considered as if the bill had stated that "evidence was also given tending to show the loss." Practice in supreme court: Record: Contents of deed: Evidence. The record in this case showing that evidence was given tending to show the sale of the lots in question by the administrator to Minnie, and the execution of a deed upon that sale, the objection that the contents of the deed were not proved, is not sustained. Practice in supreme court: Record: Presumptions. The record failing to show affirmatively when an administrator's sale, which the court below held was void under the statute (Comp. L. 1871, § 4562), was made, it is presumed, in support of the judgment, that it was made after the statute took effect. Quit-claim deed: Usual form. The expression, "a quit-claim deed in the usual form," considered and held, under our statute (Comp. L., 1871, § 4205), to intend such a deed as operates as a deed of bargain and sale, and as is sufficient to pass all the estate the grantor could lawfully convey by deed of bargain and sale. Quit-claim deed: Clause construed: Reservation. A clause in such a deed, following the description of the lands, that "this conveyance is intended to embrace all titles and interests accruing for the purchasing for taxes, delinquent or otherwise, up to and including the year 1863," will not operate to HOFFMAN v. HARRINGTON. limit or confine the effect of the deed to the interests under the tax purchases alone, or to reserve any other interest the grantor had at the time. Practice in supreme court. but all agreeing that no affirmed. The court being equally divided on the main point, other error was committed, the judgment below is Error to St. Clair Circuit. Heard April 30. Decided October 14. A. E. Chadwick, for plaintiff in error. Trowbridge & Atkinson, for defendant in error. CHRISTIANCY, CH. J. This was an action of trespass, brought by Hoffman against Harrington in the St. Clair circuit, for entering upon certain lots in the city of Port Huron, tearing down a fence placed around the lots by the plaintiff, and removing the sills of a house he was preparing to build there. The evidence tended to show that, for some two years prior to the trespass complained of, the defendant was, and up to the time the plaintiff commenced building the fence, continued to be, in possession of the lots, claiming to own. them under certain deeds from the auditor general for delinquent taxes, and certain leases from the city for delinquent city taxes, as well as under a quit-claim deed from one Geel, who, the evidence tended to show, was one of the heirs of John Thorn, the patentee of the lands; and that he used the lots for storing spars, boom poles and other timber thereon, driving piles in front of the lots along the river and filling up portions of some of the lots with sawdust; though he had never fenced the lots, as a fence would interfere with their use for such purposes; that on Friday or Saturday, the 18th or 19th of February, 1869, the plaintiff, having just then obtained the quit-claim deed of the lots from Hamilton (more particularly noticed hereafter), employed a number of men and teams, entered upon the lots, drew off the spars and timber of defendant, and in a hurried manner built a fence around the lots, and |