Wanzer, appellee, vs. Blanchard & Buckland, 3 Mich. 11

By the Court, Martin, J. If Buckland has any title to the mortgaged premises, he acquired it through the deed from Blanchard. "When the village of Pontiac was laid out and allotted we are not advised, but we are informed by the stipulation in the case, that a plat of the village was recorded in the year 1830. Under the-law as it then existed, such record, if the plat in other respects conformed.to the requirements of the statute, operated to vest in the county of Oakland the fee of all the lands appropriated for streets and other public uses, in trust for the uses and purposes intended, and for no other purpose.

Under the allegation in the bill and the admission in the answer, that the discontinuance of the use of the premises as a street was a long time before the execution of the mortgage, and under the claim of defendant, Buckland, in his answer, that although used for a short time, it in fact was never a street, and was never established as such, and in the absence of all proof upon this point, we are bound to presume, under a defence like the present, every thing against the title which is attempted to be set up adversely to the mortgage, and to hold the defendant to strict proof of his legal and equitable rights.

At the common law, when the owner of land has laid it ont into village lots, intersected with roads and public squares, such roads and squares are dedicated to the public use. But it is not the fee of the land which passes in such cases; the public have only ah easement in the land, the fee. its elf for all other purposes remains in the owner. See 22 Wend. 435. Our statute was designed, as remarked by the Court in the case of The People vs.

Beaubien, 2 Doug. 259, 270, to proyide an explicit mode of dedication, and to render certain the rights of purchasers and the public in the grounds thus dedicated, and it obviates the difficulty met with in some of the cases in the application of the common law principle of dedication in regard to the ownership of the fee, by providing that upon compliance with the requirements of the statutes, this should vest in the county, in trust for the designed use.

If then the plat was duly executed, acknowledged and recorded, before the discontinuance of this portion of Wárren street, the title having become vested in the county thereby, remains there still, unless such discontinuance operated to revest the fee in the original proprietor, or his- grantee — in other words, unless the property reverted; while if it be true, as claimed and insisted by the défendant, Buckland, in his answer, that though the property was for a short time used for a street, yet it never was such in fact,.and never was established as such, we cannot infer that the fee was ever in the county.

The claim of the defendant is inconsistent with such idea, or with any other, except that the dedication was by user alone and not by grant, in which case, the discontinuance operated to restore to the proprietor or his grantee all Ms original rights over the property. Assuming such to be the fact, the question arises — to whom did it revert ? Upon this question the evidence is entirely silent. In 1832, however, it appears that the trustee of the Pontiac association conveyed to LeRoy all lands of the company not designated and numbered by lots upon the plat of the Company’s purchase, and not sold, &c.

This deed appears upon its face to have been designed to convey to Le Roy all the vacant grounds in Pontiac. . To the title of Le Roy, Whittemore succeeded by conveyance executed in 1833. Now if the title did not vest in the county, it must necessarily follow that it passed to Le Roy, and from him to Whittemore — for Farnsworth reserved nothing from sale except the allotted grounds, and such other as had been sold or contracted — and the premises in question would fall within neither description.

But it is contended that this property was not embraced in the deed to Le Roy, as it was a street and designated as such, and that the deed reserved lands “designated” as well as lands “numbered by lots.” But the language, of the deed will not bear this construction. The words are, “ designated and numbered by lots,” the fact of allotment being the test of the exception. But admitting the other to be the true construction, still there is no evidence that the premises were ever “ designated ” as a street — while on the contrary, the defendant, Bucldand, insists that such is hot the fact. By this he must abide.

Buckland bases his own claim of title upon a deed from Farnsworth, executed in 1850 — and based Farnsworth’s right to convey, upon the fact of no dedication but by user, and of reversion of such use by discontinuance. If it reverted to Farnsworth, it must have been before the deed to Le Roy, and before the record of the plat, or the claim of the defendant himself, as set up in the answer, would be false — for if the plat had been duly recorded, and Warren street was a part, then the property had been “ established” as a street.

This view of the case renders it unnecessary for us to en-quire into the effect of such discontinuance were the fee in the county, or to its effect upon the rights or title of purchasers of lots bounded upon these premises in such case. In .no aspect in which the case can be viewed, can we discern that any thing was acquired by the defendant, BucHand, through the deed of Farnsworth. It becomes unnecessary, also, to inquire into the right of Henderson to convey, and into the title which Blanchard acquired through that deed, or into the effect of Whittemore’s acts in respect to such title.

BucHand having purchased from Blanchard the equity redemption of the mortgaged premises, and gone into possession under such purchase, is estopped to deny the title of the mortgagor upon proceedings to foreclose, even when he insists upon adverse title in himself; much more is he estopped from setting up title in a stranger. Had this objection been made upon the hearing, or by proper preliminary proceedings, it must have been regarded as valid.

How such questions can be litigated in this Court, in proceedings to foreclose the mortgage, under any form of pleadings, but more especially under pleadings like the present, is beyond our comprehension. The complainant has a right to foreclose upon the title of the mortgagor, and those claiming under him. What title may be acquired under such foreclosure, is a question to be solved by proceedings instituted in another form. The decree of the Circuit Court, for the county of Oakland, must be affirmed.