I find nothing further needing consideration in the assignments of error, and the judgment should be affirmed. CHAMPLIN, J., concurred with SHERWOOD, C. J. 78 455 83 219 78 455 102 543 JUDSON J. DIKEMAN AND ORVILLE DOUGHERTY V. OTIS ARNOLD [See 71 Mich. 656.] Deed-Delivery-Acceptance-Evidence-Contract for sale of land— 1. Where the fact that negotiations were pending for an exchange of land is not disputed, but the contention of the defendant, who is sued for refusing to execute a deed of his land, is that the delivery of a deed which the plaintiffs claim was made absolutely pursuant to such negotiations, at a meeting of the parties at a given date, was conditional upon the approval by defendant's attorney of the abstract of title to said land to be by him thereafter examined, what had taken place before said meeting of the parties is immaterial and irrelevant upon the issue of such delivery, unless the defendant can be shown to have said or done something before going to the place of meeting indicating an intention to accept said deed without such investigation of title. 2. The testimony of a conveyancer who acted for all of the parties in preparing deeds and other papers on a proposed exchange of land, as to what transpired while the papers were being drafted, is not privileged by reason of his being also the attorney for one of said parties. 3. A grantee may waive his right to the evidences of a good title, and rely upon his own knowledge, and the covenants of warranty in his deed, but is not obliged to do so. 4. The adverse possession of land by a patentee and those claiming under him for fifty years renders evidence of the non-record of the patent irrelevant in a suit involving the title to the land. 78 455 111 516 78 455 j157 295 j157 299 e157 7300 5. Where a grantee accepts a deed without its being executed by the wife of the grantor, upon her agreement to afterwards execute it, which she does, he cannot be heard to say that the deed was never delivered to or accepted by him because of his refusal to again receive it after such execution by the wife, whose only interest in the land is an inchoate right of dower. 6. Where under an agreement for an exchange of land one party executes and delivers the requisite deed, and the agreement as to a conveyance by the other party is void, and he refuses to perform it, such refusal has the effect to rescind the contract and raise an implied promise to pay for what he has received upon it. Nugent v. Teachout, 67 Mich. 571. 7. A contract for the sale of land, a part of which is occupied as a homestead, which contract is not signed by the wife, is only void as to the homestead, and an action lies for damages against the husband for refusing to convey the remainder of the land pursuant to the contract. 8. A certificate of acknowledgment carries with it the presumption that the officer making it has certified to the truth, and the party attacking it has the burden of proof to show its falsity. Error to St. Joseph. (Loveridge, J.) Argued October 30, 1889. Decided December 28, 1889. Assumpsit. Defendant brings error. Reversed. The facts are stated in the opinion and in the former report of the case. O. F. Bean and Howard & Roos, for appellant. Howell, Carr & Barnard and Dallas Boudeman, for `plaintiffs. [The points of counsel are stated in the opinion and in the former report of the case.-REPORTER.] MORSE, J. This is the second appearance of this case in this Court. The facts and the matters in controversy were quite fully stated in the opinion of Mr. Justice CHAMPLIN when the case was here before, see 71 Mich. 656 (40 N. W. Rep. 42), and will not here be referred to again, except in so far as it shall be found necessary to a proper understanding of the questions here discussed. Upon the second trial in the court below, the plaintiffs recovered judgment for $8,900.67. A motion for a new trial was made, and upon such motion it was ordered that, unless plaintiffs consented to a deduction of $799.30 from the amount of said judgment, a new trial would be granted; but, if such deduction was made, the motion would stand as denied. The deduction was made. Thereupon the defendant came to this Court upon writ of error. The first main objection raised here to the proceedings on the trial is in relation to the admission of evidence of the talks and negotiations between the parties to the suit, and also between Shaw and the plaintiffs, prior to June 16, 1887, the day plaintiffs claim the deeds were executed and delivered, and to the instruction of the court to the jury that— "All the talks, negotiations, and contract, made prior to the time when this deed [from plaintiffs to Arnold] is alleged to have been delivered and accepted, are wholly immaterial, except as they bear upon the question of such delivery and acceptance.' دو Among the items of evidence thus objected to are 1. The conversations in detail between plaintiffs and defendant at various times prior to said June 16. 2. Testimony showing that the defendant was building an addition to his barn on his homestead, and gave directions to his help to stop work until the question of the trade was determined. 3. That he drew out manure between June 11 and 16, and that he put it on lands other than that which he talked of trading. 4. The introduction of the contract of June 11, which was shown to have been abandoned on the night of June 15. This class of testimony is claimed to be clearly inadmissible to show delivery of the deed on the 16th, or afterwards, under the holding of this Court in Pierson v. Spaulding, 67 Mich. 640, 649 (35 N. W. Rep. 699). The main question of fact to be determined by the jury was the delivery of the deed by Dikeman and Dougherty to Arnold, and his acceptance of it. If this was not found, the case was ended in favor of defendant. This question of delivery depended mainly upon what transpired on June 16. This was the central transaction, and the question arises, what bearing, if any, did the transactions before that time have upon the fact whether or not the deed was delivered and accepted on that day? It appears from Mr. Arnold's testimony that he agreed to the contract of June 11, as made by his son George, and that he went to town upon the 16th to make this trade, and that he there entered into the contract made upon that day; but his contention is that none of the papers passed that day, or were to pass; that it was understood and agreed that he should be satisfied with the title of the Shaw farm before the trade should be completed; that the deeds and all the other papers were to remain in the hands of Barnard, the attorney who drew them, and undelivered, until he could see Mr. Bean, his attorney, and have him look over the abstract of the title to the Shaw farm; that he took an abstract furnished by plaintiffs over to Bean's office on the 16th; that Bean was going to a funeral, and did not have time to fully examine the abstract, but told Arnold that it was not a full abstract, and he wanted to examine the will under which Mrs. Shaw claimed title, and could not attend to it that day; that the papers better not be exchanged that day; and Arnold replied that the papers were not to pass that day. In the view of the theories of both parties, testimony that Arnold stopped work on his barn before June 16, and while the negotiations were going on, and that he drew out manure on other lands than those involved in this trade, was immaterial and irrelevant for any purpose, as the same could have no bearing upon any legitimate issue between the parties; and, if used, as it might have been under the charge of the court, to delivery of the deed and show, or as tending to show, a a consummation of the trade on June 16, or at any time thereafter, its admission was error. And while it was proper, and perhaps necessary, to show some of the prior negotiations between the parties from the beginning as a part of the history of the transaction, and to give the court and jury a proper understanding of what was in issue, many of the talks and acts of the parties, put in testimony in detail, had nothing to do whatever with any question in the case. If any of the testimony so given had been in conflict with the final contract as made on June 16, it would not have been permitted to have any bearing or weight against the contract; and, if it were all in harmony with such contract, it could be of little use, except to show the steps leading to the transaction on the 16th. I fail to discover what bearing, if any, these talks and negotiations had, or could have had, upon the question of the delivery and acceptance of the deed by the defendant on June 16. It is not claimed by plaintiffs that any contract was completed until that day, except the contract of June 11, which was altered and modified by the arrangement claimed to have been made on the 16th. We think that all the talks and negotiations of the parties prior to June 16, and the acts of the defendant, or any of the parties, before that time, were inadmissible, as bearing upon the question of delivery of the deed and acceptance of the same on that day, excepting the talk plaintiffs claim to have had with Arnold on the night of June 15 at his home in relation to the consummation of |