STEPHENSON . LITTLE.

seizure can be peaceably made, will not be questioned. But Government can only act through its departments, and by its officers, agents and servants. The instructions to Little and Hess from the Commissioner of the General Land office were in my view instructions from the Government, and fully authorized them to act in its behalf in repossessing its property. Moreover, Stephenson, as a wrong doerespecially in this action of trover, where he must rely upon his own title-cannot question the right of the Government to protect itself, or that of the officers or agents of the Government peaceably to reclaim its property.

The judgment must be affirmed, with costs.

Judgment affirmed.

Coe Garratt and others v. Elisha C. Litchfield and

others.

An appeal in chancery will not be dismissed for the failure of the Register to cause a copy of the record to be transmitted to this Court within the time provided by the statute, if such copy is actually filled before the motion to dismiss is made.

Nor will it be dismissed for the failure on the part of the appellant to serve notice thereof on co-defendants, as required by Supreme Court Rule 14, when such failure is sufficiently excused.

Decided July 21st.

Appeal by two of Litchfield's co-defendants from the Saginaw Circuit in Chancery.

J. G Sutherland, for complainants, moved to dismiss the appeal, for the reason that the transcript of the record below was not made and transmitted to this Court within thirty days after the appeal was perfected, as required by the statute.-(Comp. L. § 3599. The transcript was now on file.

Goulds & Hanchett, contra.

GARRATT V. LITCHFIELD.

BY THE COURT: We have never dismissed an appeal in chancery for the failure to cause the return to be filed within the time specified, when the return was actually made and filed before the motion to dismiss was called up. Motion denied.

T. M. Cooley, for defendant Litchfield, at the same time moved to dismiss for the failure of the appellants to serve notice of the appeal upon him, as required by Supreme Court Rule 14.

Mr. Hanchett, contra, read an affidavit showing that the failure to give such notice was accidental - the notice having been actually prepared, and the solicitors supposing it had been served until notice of this motion was given.

THE COURT held the failure to be sufficiently excused, and denied the motion.

OCTOBER TERM, 1862, AT DETROIT.

John R. Wurcherer v. Joseph W. Hewitt and others.

Where bill is filed to foreclose a mortgage, and one is made a party defendant who claims the mortgaged premises under a deed given subsequent to the mortgage, but recorded first, the complainant, if he claims this deed to be fraudulent, must set forth in the bill the facts and allegations which show the fraud. Chancery Rule 91 does not apply to such a case.

And where the only allegation was that such defendant claimed an interest in the premises as subsequent purchaser, incumbrancer or otherwise," it was held that the Court could not consider the evidence taken to show the fraudulent character of the deed, as such allegation does not put such defendant's rights in issue.

Heard July 18th. Decided October 14th.

Appeal from Clinton Circuit in Chancery.

The bill was filed by Wurcherer to foreclose a mortgage given to him by defendant, William A. Hewitt, to secure the purchase price of the mortgaged premises. The mortgage was dated June 14, 1856, but was not recorded until August 20, 1856. Joseph W. Hewitt was made a party defendant, together with others, under the general allegation in the bill that he claimed some interest in the premises "as subsequent purchaser, incumbrancer or otherwise." Joseph W. Hewitt filed an answer, claiming to be a bona fide purchaser of the premises, by deed dated and recorded August 18, 1856. Replication was filed to this answer, and proofs taken to show the fraudulent character of the conveyance. The Court below dismissed the bill, without prejudice, and the complainant appealed. 0. L. Spalding and T. M. Cooley, for complainant.

R. Strickland, for defendant, Joseph W. Hewitt, objected that the Court could not consider the proofs taken to show

WURCHERER V. HEWITT.

the fraudulent character of the deed to him, because there were no allegations in the bill to base the proofs upon. Persons who claim by conveyances recorded before the mortgage which is being foreclosed, cannot be made parties by the general allegation, as provided by Chancery Rule 91.-10 N. Y. Rep. 509; Wal. Ch. 117; Ibid. 260.

MARTIN CH. J.:

We think the objection that Joseph W. Hewitt was not made a party to the bill in such manner as to put his rights in issue, by the general averment under rule 91 of his being a subsequent purchaser, is well taken. This averment is only to be made where the fact of being a subsequent purchaser or incumbrancer appears by the record. In this case, the record gives the title of Joseph W. Hewitt priority to the mortgage, he having recorded his deed first. In such a case, the rule is that the complainant must file his bill specially if he seeks to avoid the title thus acquired with distinct averments of the facts and allegations of the fraud which he claims invalidates such title.

The decree must be affirmed.

The other Justices concurred.

Jane Daniels, Administratrix, vs. Elvira Eisenlord and

others.

A mortgage conditioned for the support of the mortgagee by the mortgagor, during her life time, cannot be foreclosed for the benefit of persons who had boarded the mortgagee at the request of the mortgagor. Such a mortgage is for the benefit of the mortgagee, and not for the benefit of those who may, at the request of the mortgagor, furnish her with support.

Where a bill is dismissed at the hearing, the costs are in the discretion of the Court, except where special provision is made by statute. And this is so, notwithstanding the complainant was administratrix, and filed the bill in her representative capacity.

Heard July 16th and 17th. Decided October 14th.

DANIELS v. EISEN LORD.

Appeal from Wayne Circuit in Chancery.

Complainant, as administratrix of Mary Eisenlord, filed her bill to foreclose a mortgage given to said Mary by her son, Spencer Eisenlord, June 28, 1845, conditioned that the said Spencer Eisenlord should support and maintain said Mary, from the date of said mortgage, during her natural life, and furnish her with all proper and necessary board, meat, food, drinks and lodgings, together with all proper nursing, medicine, and medical attendance in sickness, and to provide and furnish her with all necessary and decent clothing and wearing apparel, and to pay all necessary funeral charges. The defendants are the widow and heirs at law of the mortgagor, whose estate is alleged to have been fully administered upon.

The bill alleged that neither the mortgagor, in his life time, nor the defendants, after his death, performed the condition of the mortgage; that the mortgagee was deceased, and complainant duly appointed her administratrix, and that in the course of administration on the estate of said mortgagee, claims were duly allowed against such estate to the amount of $922 for the board of the said Mary, and for care, nursing, and medical attention while sick; and also $21 50 for tomb stones for said Mary, for the satisfaction of which sums a sale of the mortgaged premises was prayed.

Answers were filed to this bill, which were replied to, and testimony taken. The proofs showed the allowance of claims against the estate of said Mary Eisenlord for her care and board, after the date of the mortgage, as follows: To John S, Daniels, $782; to Lawson A. Van Akin, $80; and to William R. Parmalee, $60. Also, to John S. Daniels, $21 50, for tomb stones. Other evidence showed that this board and care was furnished by the claimants at the request of the mortgagor. While the mortgagor's estate was in process of settlement, Daniels presented against it his claim for the board and care of said Mary, and it was adjudicated upon.