Christiancy J. :
The questions put to the witness, Partridge, for the-purpose of identifying the lands described in the deeds introduced by the plaintiff, and to show who was in possession, were, we think, clearly competent, and the Court erred in overruling them and excluding the evidence.
The ground upon which these questions were objected to and. excluded by the Court, was that a plat must first be proved, properly acknowledged by the proprietors to-entitle it to be recorded. A similar objection had previously been made by the defendants to the introduction of the deed from Howard and Williams to Marsac (the first deed of the series through which the plaintiff claimed) that “ until there is proof of a plat of the village to which the description of the property in question in -the plaintiff’s declaration can apply, the deeds are inadmissible;” and this [239]*239objection was not overruled, but the deeds were received subject to the objection. Both objections seem to have been based upon the idea, that every town, or village, plat not properly recorded by the proprietors according- to the statute in reference to town plats (or at least not so executed and acknowledged as to entitle it to record), is so entirely void and illegal that no conveyance describing the lands by reference to such plat only, can be valid — that the description in the declaration which, after designating the lots and blocks by number “according to the plat of said village of Portsmouth,” must be understood as referring to a plat legally acknowledged and recorded, or so acknowledged as to be entitled to record, though the declaration does not, in terms, describe it as acknowledged or recorded. Such only seems to be the ground upon which these objections are sought to be maintained by the counsel for the defendants.
We think these grounds wholly untenable. None of our statutes in reference to town plats go so far as to render deeds of conveyance between individuals void, because made by reference to an unacknowledged or unrecorded plat. But any such plat, or any other map or plat, whether to be found in a public office or in the possession of any person, may still be used for the purpose of identifying the land intended to be conveyed, though no description be given except by reference to such plat by which the property conveyed could be ascertained. The proprietors would incur the penalty fixed by the statute for laying out such plat and conveying lands by. reference to it, unless executed, acknowledged and recorded according to the requirements of the statute; but the conveyance would still be good between the parties by any description by which the premises could be identified.
The deeds, it is true, refer to- a plat adopted by the Portsmouth- Company, and state it to have been recorded; but these deeds would, I think, still be good, though the [240]*240plat should not in fact have been recorded: the declaration that it was recorded would be rejected as falsa demonstratio: as an incidental circumstance of much less importance than the fact of the existence of the plat itself, and therefore a fact about which the parties drawing the deed would be likely to be less careful and precise. See cases cited in Cow. & Hill's Notes to Phil. Ev. (ed.. of 1839), Note 942. So if recorded in fact, though not according to law, this record might probably be used as evidence under certain circumstances, and might satisfy the reference in the deed, to the recorded plat.
All that' was necessary in the present case was ,to identify the land intended to be conveyed; and for this purpose, as there was no intelligible description except by reference to the plat, it became necessary to prove a plat adopted by the Portsmouth Company; and, if not waived, the best evidence attainable would have been required; either the original, or the record, or if neither could be found, then the next best evidence attainable. But in this case the strict rule requiring the best evidence was, I think, waived by the defendants. The bill of exceptions states that a map or plat was shown to the witness (Partridge, the surveyor), which purported to be acknowledged by Gardner D. Williams, Henry Howard and Benjamin F. Towne, trustees of the Portsmouth Company, on the 5th of May, 1837. The witness testified that this was a lithographic copy of a plat of Portsmouth. No objection was taken to this testimony. This must be treated as a waiver of the objection which might have been made to the proof by copy in lieu of the original.
But so far as the plaintiff’s title might depend upon the deed from the Auditor General for delinquent taxes, a different rule would, I think apply; since the lands could not have been assessed as village lots, with no other description than by reference to such plat, unless the plat had been recorded in fact: — Rev. Stat. of 1846, p. 105; [241]*241Comp. L. § 1140. And I am strongly inclined to the opinion that the presumption of regularity of proceedings raised by the statute then in force, in favor of a deed for taxes, would not dispense with the proof of such recorded plat. But it is not necessary to decide the point here, as the deed for taxes only covered one of the several blocks claimed in the declaration and mentioned in the deeds under which the plaintiff claimed; and the evidence rejected was clearly admissible as to all the other lots and blocks, and as to this block also, so far as the plaintiff made a title independent of the tax deed.
The defendants introduced a mortgage on the lands in question executed by Tromble (through whom plaintiff claimed by several mesne conveyances) “to Charles L. Rich-man and Lyon,” dated June 24th, 1839, for $136 21, with an assignment of the interest of Lyon to Ri'chman, endorsed on the back; but the assignment was neither acknowledged or recorded. In this mortgage, the premises were described in the same way as in the deeds through which the plaintiff claimed, viz: designating the number of the lots and blocks “agreeable to a plat of said village as adopted by the Portsmouth Company, and recorded in the Register’s office for the county of Saginaw,” and by no other description. This mortgage was prior to the deed from Tromble, through which the plaintiff claimed (the latter being dated October 3d, 1846).
The defendants proved the foreclosure of this mortgage by advertisement under the statute, and a deed of the sheriff to Charles L. Richman, dated September 28th, 1841, which was the day of sale. The bill of exceptions does not state what this deed purported to convey, whether the ' whole or any part of the mortgaged premises; but, as no point is made upon this, we will consider it, as the counsel seem to have treated it, as a deed purporting to convey the whole mortgaged premises. On this deed was endorsed the certificate of the sheriff, that the sale would [242]*242become absolute in one year, unless the same Avas redeemed according to law. There was evidence tending to shoAV a j)ayment of most of this mortgage, and an offer to pay the- balance; and also testimony tending to controvert the evidence of payment, from which it may be inferred that the sum claimed to have been paid was included in the sum for which' the mortgage was foreclosed, though it does not appear for what sum the foreclosure was had.
The defendants also introduced, among other deeds, a quit claim, dated July 27th, 1850, executed by said Rich-man to Henry C.
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Christiancy J. :
The questions put to the witness, Partridge, for the-purpose of identifying the lands described in the deeds introduced by the plaintiff, and to show who was in possession, were, we think, clearly competent, and the Court erred in overruling them and excluding the evidence.
The ground upon which these questions were objected to and. excluded by the Court, was that a plat must first be proved, properly acknowledged by the proprietors to-entitle it to be recorded. A similar objection had previously been made by the defendants to the introduction of the deed from Howard and Williams to Marsac (the first deed of the series through which the plaintiff claimed) that “ until there is proof of a plat of the village to which the description of the property in question in -the plaintiff’s declaration can apply, the deeds are inadmissible;” and this [239]*239objection was not overruled, but the deeds were received subject to the objection. Both objections seem to have been based upon the idea, that every town, or village, plat not properly recorded by the proprietors according- to the statute in reference to town plats (or at least not so executed and acknowledged as to entitle it to record), is so entirely void and illegal that no conveyance describing the lands by reference to such plat only, can be valid — that the description in the declaration which, after designating the lots and blocks by number “according to the plat of said village of Portsmouth,” must be understood as referring to a plat legally acknowledged and recorded, or so acknowledged as to be entitled to record, though the declaration does not, in terms, describe it as acknowledged or recorded. Such only seems to be the ground upon which these objections are sought to be maintained by the counsel for the defendants.
We think these grounds wholly untenable. None of our statutes in reference to town plats go so far as to render deeds of conveyance between individuals void, because made by reference to an unacknowledged or unrecorded plat. But any such plat, or any other map or plat, whether to be found in a public office or in the possession of any person, may still be used for the purpose of identifying the land intended to be conveyed, though no description be given except by reference to such plat by which the property conveyed could be ascertained. The proprietors would incur the penalty fixed by the statute for laying out such plat and conveying lands by. reference to it, unless executed, acknowledged and recorded according to the requirements of the statute; but the conveyance would still be good between the parties by any description by which the premises could be identified.
The deeds, it is true, refer to- a plat adopted by the Portsmouth- Company, and state it to have been recorded; but these deeds would, I think, still be good, though the [240]*240plat should not in fact have been recorded: the declaration that it was recorded would be rejected as falsa demonstratio: as an incidental circumstance of much less importance than the fact of the existence of the plat itself, and therefore a fact about which the parties drawing the deed would be likely to be less careful and precise. See cases cited in Cow. & Hill's Notes to Phil. Ev. (ed.. of 1839), Note 942. So if recorded in fact, though not according to law, this record might probably be used as evidence under certain circumstances, and might satisfy the reference in the deed, to the recorded plat.
All that' was necessary in the present case was ,to identify the land intended to be conveyed; and for this purpose, as there was no intelligible description except by reference to the plat, it became necessary to prove a plat adopted by the Portsmouth Company; and, if not waived, the best evidence attainable would have been required; either the original, or the record, or if neither could be found, then the next best evidence attainable. But in this case the strict rule requiring the best evidence was, I think, waived by the defendants. The bill of exceptions states that a map or plat was shown to the witness (Partridge, the surveyor), which purported to be acknowledged by Gardner D. Williams, Henry Howard and Benjamin F. Towne, trustees of the Portsmouth Company, on the 5th of May, 1837. The witness testified that this was a lithographic copy of a plat of Portsmouth. No objection was taken to this testimony. This must be treated as a waiver of the objection which might have been made to the proof by copy in lieu of the original.
But so far as the plaintiff’s title might depend upon the deed from the Auditor General for delinquent taxes, a different rule would, I think apply; since the lands could not have been assessed as village lots, with no other description than by reference to such plat, unless the plat had been recorded in fact: — Rev. Stat. of 1846, p. 105; [241]*241Comp. L. § 1140. And I am strongly inclined to the opinion that the presumption of regularity of proceedings raised by the statute then in force, in favor of a deed for taxes, would not dispense with the proof of such recorded plat. But it is not necessary to decide the point here, as the deed for taxes only covered one of the several blocks claimed in the declaration and mentioned in the deeds under which the plaintiff claimed; and the evidence rejected was clearly admissible as to all the other lots and blocks, and as to this block also, so far as the plaintiff made a title independent of the tax deed.
The defendants introduced a mortgage on the lands in question executed by Tromble (through whom plaintiff claimed by several mesne conveyances) “to Charles L. Rich-man and Lyon,” dated June 24th, 1839, for $136 21, with an assignment of the interest of Lyon to Ri'chman, endorsed on the back; but the assignment was neither acknowledged or recorded. In this mortgage, the premises were described in the same way as in the deeds through which the plaintiff claimed, viz: designating the number of the lots and blocks “agreeable to a plat of said village as adopted by the Portsmouth Company, and recorded in the Register’s office for the county of Saginaw,” and by no other description. This mortgage was prior to the deed from Tromble, through which the plaintiff claimed (the latter being dated October 3d, 1846).
The defendants proved the foreclosure of this mortgage by advertisement under the statute, and a deed of the sheriff to Charles L. Richman, dated September 28th, 1841, which was the day of sale. The bill of exceptions does not state what this deed purported to convey, whether the ' whole or any part of the mortgaged premises; but, as no point is made upon this, we will consider it, as the counsel seem to have treated it, as a deed purporting to convey the whole mortgaged premises. On this deed was endorsed the certificate of the sheriff, that the sale would [242]*242become absolute in one year, unless the same Avas redeemed according to law. There was evidence tending to shoAV a j)ayment of most of this mortgage, and an offer to pay the- balance; and also testimony tending to controvert the evidence of payment, from which it may be inferred that the sum claimed to have been paid was included in the sum for which' the mortgage was foreclosed, though it does not appear for what sum the foreclosure was had.
The defendants also introduced, among other deeds, a quit claim, dated July 27th, 1850, executed by said Rich-man to Henry C. Scott, purporting to convey all the lots and blocks claimed by the plaintiff in his declaration, and further proved that said Henry C. Scott died in the year 1851, and that the defendant Catherine Scott, Avas his Avidow, and the other defendants his heirs at law. The defendants also proved a receipt from the proper township treasurer for the taxes of the year 1851 on the block sold for the tax of that year as shown by the Auditor General’s deed, which had been introduced by the plaintiff. The plaintiff’s counsel requested the Court to charge, that if the jury find that the plaintiff and defendants both claim title to the property from Tromble, the defendants are estopped from denying that Tromble had title. This the Court refused, and instructed the jury that the plaintiff must prove in himself a legal title, and that the deeds put in evidence by the defendants did not estop them.
It is not denied that if it had been shown that the defendants, or Henry C. Scott, under Avhom they claimed, had gone into possession under the deed from Richman, they would have been estopped to deny the title of Tromble, through whose mortgage that title was derived. But the plaintiff had been prevented from showing Avho was in possession, and there is no evidence on the subject. But it does, I think, appear clearly enough from the bill of exceptions, that the defendants claimed title through Tromble. They Avere under no necessity, it is true, o± [243]*243setting up any claim of title in themselves. All they were • required to do was to defeat the title of the plaintiff". This would have been as effectually accomplished, had the defendants stopped with the proof of foreclosure and the deed to Riehman, as it could be by deriving that title to themselves; and had they stopped here, there might, have been no ground for holding that they had. admitted any title in Tromble. But they saw fit to go further, and to show a conveyance from Riehman to Scott, the death of the latter, and that one of the defendants was his widow and the others his heirs at law. The object of this manifestly was to show the title in the defendants: and for this purpose the testimony might perhaps have been objected to by the plaintiff as entirely irrelevant, not tending in any way to sustain the defense or to weaken the plaintiff’s case. But if the defendants saw fit to strengthen the plaintiff’s case, by setting up a claim of title in themselves derived through the .Tromble mortgage, the plaintiff was not bound to object; and the title thus set up was, I think, equal to an admission in open court, that the defendants claimed title through Tromble, and should therefore have been treated, for the purposes of the trial, as an admission of Tromble’s title, dispensing with proof of that title on the part of the plaintiff. - Had they also shown another title in themselves not derived from Tromble, the effect might have been different; but as they made no claim of title except through this, the only inference would seem to be that they claimed under this. See Jackson v. Tuttle, 9 Cow. 233; Jackson v. Cole, 4 Cow. 587; 1 Phil. Ev. (by Cowen, Hill & Edwards), p. 440. The case of Jackson v. Tuttle was reversed by the Court of Errors, 6 Wend. 213, but upon another point in no way affecting the question of such admission.
For the like reason, also, I think this claim of title-under the Tromble mortgage — which describes the property, with reference to the plat substantially in the same way [244]*244■as in the plaintiff’s deeds, and states the plat to be recorded — was, as between these parties, an admission of the plat referred to, and of its being recorded, if a record were necessary.
Whether the j>eriod of redemption should have been ■one year or two years, is a question which does not properly arise in the case. To have raised this point, the plaintiff ■should have shown a tender, or an attempt to redeem within the two years. The foreclosure would not, we think, be void because the sheriff erroneously certified on the back of the deed that it would become absolute in ■one year, instead of two years. The statute, so far as it imposes the duty of endorsing this certificate, must be •looked upon as directory, and his certificate could not alter the legal period of redemption.
The point taken by the plaintiff, that the assignment -of Lyon’s interest in the mortgage conveyed no interest without showing that his interest in the mortgage debt was also assigned, is equally aside from the case in its present form. It does not appear (although it must have appeared on the trial), whether the foreclosure was in the ■name of Richman alone, or in the names of Richman and Lyon. Richman was the purchaser on the foreclosure sale; but non constat that the foreclosure was not in the names ■of both mortgagees. Every presumption must be made in favor of the proceedings and judgment of the Court below •till the error be made affirmatively to appear.
There was no error in refusing to charge, as requested •by the plaintiff, that the receipt for the taxes, signed by the collector, without proof of payment of the taxes, was ■not sufficient to invalidate the tax deed. The Court was correct in holding the receipt prima facie evidence of payment. It does not fall within the rule which excludes ■hearsay evidence, nor does it rest upon the principle which admits entries made by third persons against their interest, ■or in the ordinary course of business. The giving a receipt [245]*245for taxes by the township treasurer is an official act, which the statute requires him to perform. The manifest purpose of the statute we think was to furnish the tax payer with written evidence of payment. The action of the treasurer in reference to the payment, receipts and returns for the taxes, are a part of the res gestae or “proceedings” upon which the validity of the deed depends. The receipt is therefore* original evidence; not, it is true, conclusive, but sufficient till invalidated by proof.
The judgment must be reversed, with costs, and a new trial granted.
Manning J. concurred. Martin Ch. J. concurred in the result.
Campbell J.:
The objection to Partridge’s testimony was not upon the ground that the 'plat produced was not genuine, nor on the ground that it was not entered on the records of the county. The copy had already been received without objection, and the objection which, if existing, might have been raised, that it had not been recorded in fact, was waived. This left but a single further objection to be taken, which was that the plan was not acknowledged. This might have been well taken, had a question arisen concerning the validity of the record for the purposes contemplated by the statute relative to town plats. But a reference may be had for purposes of identity to any map, public or private, and whether legally made or not. The deed in this case referred to a plat adopted and recorded in the registry of the county. As the case stands, it is to be assumed, in the absence of any specific objection, that the plan produced is the one adopted and recorded in fact. Being used for purposes of identification merely, it makes no difference that ii is not a legal record. The witness therefore should have been allowed to answer [246]*246the question: — People v. Beaubien, 2 Doug. Mich. 256. The. want of a legal record could only affect the tax title.
The defendants introduced a mortgage prior to the deed under which plaintiff claims, made by Tromble (the original source of plaintiff’s title) to Richman and Lyon, with an assignment from Lyon to Richman, not acknowledged or recordéd; and a subsequent foreclosure of this mortgage, and a deed made under it to RiehSaan, the defendant’s grantor, which is alleged to be defective because not endorsed with the proper period of redemption. I agree with my brother Christiancy, that such a mistake, if existing, can not destroy the title if otherwise regular. But, in the case before us, the mortgage being made prior to 1843, gave the mortgagee a possessory right to the land: — Mundy v. Monroe, 1 Mich. 68. The foreclosure, whether regular or not, passed to the purchaser the rights of the original mortgagee: — Gilbert v. Cooley, Walk. Ch. 494. In such a mortgage (whether it be so with others or not) a deed of the land, or an assignment of the mortgage, entirely silent as to the debt, conveys the mortgage interest: — Niles v. Ransford, 1 Mich. 338. In whatever way it is viewed, therefore, the title under the mortgage must be regarded as a good possessory title until redeemed.
I agree also that the receipt for taxes, for the reasons given by my brother Christiancy, was properly received in evidence.
I am of opinion that the Circuit Judge was right in refusing to charge that defendants were estopped by their title introduced from disputing the original title of Benois Tromble. There was no evidence to show that defendants went into possession under that title. The deed from Richman to Henry Scott was a quit-claim. It is very well settled that a party may fortify his title by buying in outstanding titles or pretended titles, and that such pur^ chase, unless it is the means of obtaining possession, can not operate by way of estoppel against him. To hold [247]*247that merely introducing evidence of such a quit-claim estops the party is equivalent to denying the right altogether; for the right is nugatory if it can not be used. The whole doctrine of estoppel rests in mutuality; and is simply a rule that one who has been enabled, by means of a conveyance or lease, to obtain possession or some other advantage, can not avoid restoring possession to any other person who, by the effect of the same conveyance or act, has become entitled to it. Thus, a landlord who puts a tenant in possession is bound by the lease which binds his tenant, and can not disturb him during the term. The tenant, having enjoyed the term by means of the lease, must restore possession when the lease terminates. So as between mortgagor and mortgagee, the former is bound to permit the latter to retain possession until redemption, and the latter is bound, when thus put in possession, to restore it on redemption. But if a person already in possession should purchase a mortgage, and, upon redemption, be compelled to give up possession, he would be thus forced to restore more than he received, and to lose independent rights. This is not just or reasonable. Reference. has been made by Mr. Cowen to Jackson v. Cole, 4 Cow. 587, and Jackson v. Tuttle, 9 Cow. 233, as establishing a rule that whenever a defendant introduces evidence which would show or tend to show a divestiture of the title, whatever it may be, Avhich plaintiff relies on in himself or some former source of title, such evidence amounts to an admission that the person thus divested had a good and legal title. No reason or authority was found for such a view by Court or counsel, and I think none satisfactory can be found. The whole doctrine was repudiated in Tuttle v. Jackson, 6 Wend. 213, reversing the latter case, and holding that a defendant is not ordinarily precluded from showing any number of titles, and that his possession will be presumed to be under the valid one, if not shown to have been otherwise taken. .This is in accordance with [248]*248the general doctrines. See Den v. Sharp, 4 Wash. C. C. 609, where the case presented was very nearly identical with the case at bar; and the decision in which was approved by the Court of Errors in 6 Wend. 213.
I think the Court below erred in excluding the evidence offered to identify the lands, and that the judgment should be reversed and a new trial granted for this reason; but that there were no other errors made out.