ALLEN V. CARPENTER.

know, or ought to know, when he is in default; and, if he does not know when his land is sold, he knows where to examine and inquire; and an inquiry once a year, at the registry, can always enable him to find out when he must redeem or vacate possession. Those cases where a tenant cannot be expected to be able to ascertain the determination of his tenancy without notice, are left to be governed by the provisions requiring such notice.

If

But a court can not, on any safe principle, even where the rule of law is severe, undertake to change it on any imagined ground of hardship. Still less can it be permissible to change a certain and simple rule of law into one dependent on the fluctuating notions of a jury. we hold that a mortgagor retaining possession is entitled to notice, under any circumstances short of his being a tenant at will, we have no authority of law for holding that he is not entitled to it at once.

There can be no dispute as to when the rightful holding ceases, and none therefore as to the time when the wrongful holding begins. The expiration of redemption is the only point of time when the tenure changes, and then, if ever, the holding by sufferance commences.

In the case of Livingston v. Tanner, 12 Barb. 481, where a tenant for the life of another held over innocently, after the life estate had, without his knowledge, been terminated, the Supreme Court, moved by the apparent hardship of the case, after a delay of four months before possession demanded, undertook to bring the party within the statute providing for terminating tenancies at sufferance by notice, although there was another statute which declared such persons trespassers. But this decision was reversed by the unanimous opinion of the Court of Appeals; who held that, while the defendant was undoubtedly a tenant at sufferance by the common law, the fact that a statute made special provision for his case showed that this tenancy was thereby removed from its

common law designation, and required no notice to terminate it. Livingston v. Tanner, 14 N. Y. 64. And the delay in bringing suit was regarded as entirely immaterial, so long as the landlord had not given his consent to the new occupation, so as to make it a tenancy at will. It was the tenant's duty to leave, whether the landlord desired personal possession or not.

It seems to me clear that under our statute, whether this be technically a tenancy at sufferance, or any. other species of wrongful deforcement, it is not such a tenancy as requires notice to terminate it.

ure,

It may also be remarked that even if there had been any doubt about Prior's position under the first forecloseand after the delay referred to, there can be none as to his duty on the dismissal of his bill. It is a well settled rule that a mortgagor can file no bill for relief, which will not be regarded as a bill to redeem; and it is equally settled that the dismissal of a bill to redeem operates as a foreclosure. Prior certainly had notice of the dismissal of his own bill; and there has been no laches since. This confirmed the validity of the first foreclosure. And he could not at once rely on it and repudiate it.

I think, however, as before intimated, that his tenancy was one that required no notice to terminate it, and also that the Commissioner's proceedings to oust him cannot be assailed collaterally.

As these points dispose of the case, it is not necessary to refer to the other errors assigned.

MARTIN Ch. J. concurred.

The court being thus equally divided, the judgment below was affirmed.

BEEKER V. HASTINGS.

John J. Beeker and others v. Hastings and others.

Sale of chattels: Caveat Emptor. Complainant being owner of certain real estate in Detroit, sold the same to defendant, and received in payment therefor certain copper stock and defendant's note. Defendant directed complainant before taking the stock, to make inquiries as to its value and not to rely upon his, defendant's, estimation of it. The stock proved worthless. Held, that in such a case, where parties stand upon equal terms as to their opportunity of obtaining information concerning the subject matter of sale, each is bound to rely upon his own judgment and means of knowledge. Decided November 8th.

Heard October 23d.

Appeal in Chancery from Wayne Circuit.

The bill in this cause was filed to set aside a conveyance on the ground of fraud and inadequacy of price. It was dismissed in the court below.

The facts are stated in the opinion.

J. P. Whittemore, for complainants.

The bill in this case seeks to rescind the deed given to the defendants as obtained by fraud and through a bargain, "such as no honest or fair person would accept on the one part, and such as no person, not under delusion or imposed upon, would grant on the other; a transaction which shocks the conscience, and produces an exclamation."

Land, which the defendants admit in their answers was worth $1,600 cash, was sold for nothing, and the title warranted to the extent of the consideration of $2,000.

1. The consideration was so inadequate as, from that fact alone, to raise the presumption of fraud.

2. The parties were unequal. The grantees were sharp, shrewd speculators; the grantors, an ignorant German woman and her daughter, a child of sixteen years, and her son, scarcely arrived at full age, whose occupation entirely unfitted him for such a transaction. They were all but slightly acquainted with the English language and entirely ignorant of business transactions.

BEEKER V. HASTINGS.

3. The defendants show that they have abandoned the contract on their part, which, as they claim it to be, required them to proceed and perfect the title at their own expense.

The excuse for so doing, which they allege, i. e., the non-fulfillment by Beeker, on his part, though a good answer to an action of damages on the contract, amounts to an election to rescind the contract for breach of it by the other party. It places the parties where each can recover back what has been paid, or, if nothing has been paid, simply annuls the contract.

The warranty deed can not be allowed to stand on the defendant's own showing. The prayer of the bill to annul it, and that defendants reconvey, so as to place the complainants in the same position they were before its execution, must be granted; and then, if there is any legal or equitable remedy for defendants in the case, after this deed is annulled, let them seek it where it is to be found.

Cleveland Hunt, for defendants.

1. There is no claim made in the bill that the grantors of the deed were idiots even were they permitted to stultify themselves-nor more ignorant or incompetent than the average of that class of uneducated foreigners; nor does complainants' testimony show that degree of ignorance that unfits men for the transaction of ordinary business. So that no extraordinary case of incapacity being made out, this court will not take the time to weigh any nice questions of capacity or incapacity.

A Court of Equity will not measure the size of people's understandings and capacities, there being no such thing as an equitable incapacity where there is a legal capacity. Story Eq. Jur. § 236 to 238; 1 Johns. Ch. 351; Redfield on Wills, 105 to 133.

Capacity will be presumed, and the burden of proof

BEEKER v. HASTINGS.

is on the complainant to show the want of it. - Redfield on Wills, 39, 40, and Note.

If the question of fraud is disposed of, the adequacy or inadequacy of the price paid for the land is also disposed of "For courts of Equity as well as courts of Law act upon the ground that every person who is not from his peculiar condition or circumstances under disability, is entitle to dispose of his property in such manner and upon such terms as he chooses, and whether his bargains are wise and discreet, or profitable, or otherwise, are considerations not for courts of justice, but for the party himself to deliberate upon."-1 Story Eq. Jur. 244, 5, 6; 1 Cox. 383; 5 Vesey 845.

Inadequacy of consideration is not then of itself a distinct principle of relief in equity.

The burden lies with the appellant on appeal, and this being a question of fact, and the testimony being conflicting, the appellant must make out a clear case of mistake in the court below. All presumptions are against him. -1 Barb. Ch. Pr. 395; 4 Eng. L. & E. p. 3.

CHRISTIANCY J.

The decree of the court below declaring the deed void. as to complainant Maria E. Braun, on the ground of her minority, not having been appealed from by her or the defendants, we are only to consider the case so far as it relates to the complainant John J. Beeker.

Complainants and their mother, since deceased, believing themselves to be the owners, and being in possession of a lot on the plat of a part of the Louis Moran farm, undertook, through complainant John J. Beeker, to sell the same. He employed an agent by the name of Gee to make the sale, but having for some time been unable to find a purchaser, he at length introduced said John J. Beeker to defendant Hastings, as a person likely to purchase. Hastings went two or three times to see the property, and the price talked