not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in no wise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it afterwards, has never been recognized as a legal defense to an action for breach of the contract. The rule of damages was the proper one under the declaration in this case, and the theory of the plaintiffs. If the theory of the defense was correct, that the deed was never delivered or accepted, then in this action there could be no damages recovered. This was submitted to the jury, and they found against defendant's theory.

It is assigned as error that the court gave undue prominence in his charge to the testimony of Newton H. Barnard in stating to the jury that the certificate of the acknowledgment of the mortgage from Arnold to Dougherty was not to be lightly overturned by interested witnesses. Arnold denied that he ever acknowledged the mortgage, and there was some other testimony, and some things about the acknowledgment itself, that tended to corroborate his denial. Barnard and other witnesses testified that he did acknowledge it. Barnard was the notary who signed the certificate of acknowledgment. The rule undoubtedly is that the burden of proof rests upon the person denying the acknowledgment to show the falsity of the certificate, which carries with it the usual presumption that the officer making it has certified to the truth, and has not been guilty of wrongful or criminal action. See Hourtienne v. Schnoor, 33 Mich. 274; Johnson v. Van Velsor, 43 Id. 219 (5 N. W. Rep. 265), and cases there cited.

It is not claimed that Mr. Barnard was a party to any

fraud in this respect, as we understand from the record, briefs, and oral arguments in this case; but it is contended that he was the attorney of the plaintiffs then as he is now, and also a witness in their behalf, and that this instruction gave too much weight to his testimony, which was given in favor of the truth of the certificate as he made it. This, in our opinion, would not alter the presumption in favor of the certificate. It would have been proper for the court to have charged the jury that the burden of proof was on Arnold to show that he did not acknowledge the mortgage, and we think this would have been better under the circumstances than the language used by the circuit judge, although we are not prepared to say that his charge as given was erroneous.

It is also insisted that the court erred in the measure of damages in that he instructed the jury, if they found for plaintiffs, the damages would be the fair market value of the land, with interest, without stating to them that they should deduct therefrom the value of the buildings reserved, and the cost of moving them to the Shaw farm, and that the damages were, under such charge, made up from the value of the land with the buildings reserved upon it. This last claim is denied by plaintiffs' counsel, who insist that the damages, as found, did not include the value of the buildings.

As the case must go back for a new trial, this matter need not be further examined. The court should, however, upon the new trial clearly inform the jury that the value of the reserved buildings must not be included in the valuation of the land in estimating the damages, and that the cost of moving such buildings from the Arnold to the Shaw farm must be deducted from the value of the land.

We have now examined all the assignments of error

argued by defendant's counsel in their briefs, except one or two, which do not merit discussion.

The judgment must be reversed, and a new trial granted, with costs of this Court to defendant.

SHERWOOD, C. J., CHAMPLIN and CAMPBELL, JJ., con-
LONG, J., did not sit.

curred.

ALLEN D. CHESEBRO V. JOHN E. POWERS ET AL.

[See 70 Mich. 370.]

Slander of title-Joint liability-Measure of damages-Evidence-
Statute of limitations.

1. While it is true that two or more persons cannot as a general rule be held jointly liable for a verbal slander, yet, under circumstances where all are jointly concerned and interested, and participate in the general purpose, such concert and co-operation may be shown, although the false and malicious statements may have been made by one alone. Haney Manufacturing Co. v. Perkins, 78 Mich. 1.

2. In a suit for defamation of title by the execution of a deed containing a statement that the plaintiff had fraudulently and without consideration obtained possession of the land described in the deed, and that he pretends to own it, etc., which statement is found to have been malicious and upon no foundation of right whatever, plaintiff should be allowed to make full proof of the acts and conduct of all of the defendants,—they having all participated and actively engaged in the execution and delivery of the deed,—in their continued claim of title under the deed and the recital therein, not only to show their continued claim of pretended rights in the premises, but also their motive in inserting the recital in the deed, and in their pretended claims thereunder.

3. The taxable costs awarded to a party in a suit to remove a cloud upon his title caused by the insertion in a deed of a statement that he had fraudulently obtained possession of the land, which

he pretends to own, etc., are not the measure of his damages in a suit for defamation of title, but he may recover as damages any other reasonable outlay incurred in removing such cloud, it appearing that the defendants acted maliciously, and under a claim which they knew to be false, for the purpose of harassing the plaintiff and thereby forcing a settlement.

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4. Whether How. Stat. § 8714, limiting actions for slanderous words to two years after the cause of action accrues, applies to an action for defamation of title by the execution of a deed and inserting therein a statement that the plaintiff had fraudulently obtained possession of the land, etc., query? But, if so, the continued claim of rights under the deed, which were settled adversely to defendants in a suit to remove the cloud thereby created less than two years prior to the commencement of suit, will save the action from the operation of the statute.

Error to Kent. (Grove, J.) Argued November 14, 1889. Decided December 28, 1889.

Case. Plaintiff brings error. Reversed. The facts are stated in the opinion.

Godwin, Adsit & Dunham, for appellant, contended for the doctrine stated in the opinion.

J. C. FitzGerald (Charles Chandler and Francis A. Stace, of counsel), for defendants, contended:

1. Taxable costs are the only recompense awarded to a successful litigant to compensate him for the expense of prosecuting a just claim or defending against an unjust and illegal one; citing Harmon v. Tappenden, 3 Esp. N. P. 278; Malden v. Fyson, 11 Adol. & Ell. (N. S.) 292; Loton v. Devereux, 3 B. & Adol. 343.

2. The plaintiff could not recover under the proofs, for no action can be maintained if the acts of the defendants were done in good faith for the purpose of asserting a claim which they at the time believed to be valid, no matter how erroneous and ill-grounded such belief might be; citing Pitt v. Donovan, 1 Maule & S. 639, 648; Smith v. Spooner, 3 Taunt. 246, 254; Walkley v. Bostwick, 49 Mich. 374; Thompson v. White, 70 Cal. 135; Like v. McKinstry, 3 Abb. App. Dec. 62, 66, 67; Pater v. Baker, 3 Man. (Gr. & S.) 831, 868; Wilson v. Dubois, 35 Minn. 471.

3. The plaintiff having instituted and prosecuted to judgment his suit in chancery to be relieved against the act of the defendants in placing the deed and mortgage on record, he cannot now bring this suit at law to recover damages on account of the same act. The chancery court had jurisdiction over the entire matter, and its decree should be final; citing Chesebro v. Powers, 70 Mich. 370.

4. Damages for slander of title must be such as naturally and proximately result from the act of the defendants; citing 3 Suth. Dam. 674; Walkley v. Bostwick, 49 Mich. 374; Vicars v. Wilcocks, 8 East, 1; Ward v. Weeks, 7 Bing. 211; Tutein v. Hurley, 98 Mass. 211; and special damage is of the essence of the action; citing Wetherell v. Clerkson, 12 Mod. 597; Cook v. Cook, 100 Mass. 194; Wilson v. Dubois, 35 Minn. 471; and the words must be spoken pending some treaty or public auction for the sale or purchase of the property, or the action will not lie; citing Starkie, Sland. (Folkards) § 128.

5. It seems to us that this action cannot be classified as coming under any other head than that of the law of libel, and it has always been so treated and considered in the books; citing Townsh. Sland. & Lib. § 130; Starkie, Sland. (Folkards) § 124; and that the fact that it is not for defamation of character by words actionable per se does not affect the general nature of the suit as being one for libel and slander, and therefore barred by the statute; citing How. Stat. § 8714.

LONG, J. There is but little controversy about the facts in this case. The plaintiff's claim in his declaration is that he is the owner of certain real estate in Kent county, of the value of about $5,000, and that the defendants, well knowing the premises, but contriving, and falsely and fraudulently intending, to injure the plaintiff, and cause it to be suspected and believed that he, the said plaintiff, had no title in or to said land, and to spread a cloud upon the title thereto, and to hinder and prevent the plaintiff from enjoying his said estate free from any annoyance on the part of the defendants, and to prevent him from selling, mortgaging, or conveying said property, and to cause and procure the plaintiff to sustain and be put to divers great expense in order to definitely settle and decree his title thereto to be free from such slander