that by the charter such power is, by clear implication, excluded. See, as bearing on the subject, In re First Street, 66 Mich. 42; Dill. Mun. Corp. (4th Ed.) §§ 97, 780; Weeks v. City of Milwaukee, 10 Wis. 242; Cooley, Tax'n (2d Ed.), 215. The question is not whether the authority may be delegated to the municipality to exempt certain property from taxation, or whether, if this be competent, the council may, by contract, tie its hands for the future; but the controlling fact is that no such power is delegated to the common council in this case. We do not overlook the contention of plaintiff's counsel that this power may be implied from the authority delegated by section 3109a, 3 How. Stat., to acquire by purchase an easement in private lands for the purpose of constructing sewers. We think, however, that the power to contract to exempt other property of the owner from assessment is not to be implied, and that the statute cannot be held to work a repeal of the charter provisions vesting the authority to make the assessment in the board of review. In the cases cited by plaintiff's counsel (Grant v. City of Davenport, 36 Iowa, 396; City of Palestine v. Barnes, 50 Tex. 538; City of St. Louis v. Armstrong, 56 Mo. 298), where the municipality offered to exempt certain property from taxation for a specified time, the agreement was apparently made in each instance by the municipal officers authorized to spread the tax. The common council had no such power in the present case.

2. The settled rule is that executed contracts of private corporations, not unlawful, but ultra vires, will be treated as binding upon the corporation. Carson City Sav. Bank v. Elevator Co., 90 Mich. 550 (30 Am. St. Rep. 454); Dewey v. Railway Co., 91 Mich. 351. But the weight of authority is opposed to the contention that a municipal corporation can estop itself from asserting a want of power to enter into an engagement which is in fact ultra vires. As was said in Newbery v. Fox, 37 Minn. 141 (5 Am. St. Rep. 830):

"The doctrine of ultra vires has, with good reason, been applied with greater strictness to municipal bodies than to private corporations; and, in general, a municipality is not estopped from denying the validity of a contract made by its officers, when there has been no authority for making such a contract."

One reason for so restricting the effect of ultra vires contracts to municipal corporations is that those engaging in such contracts are bound to take notice of the limitations upon the powers of municipal bodies. Rens v. City of Grand Rapids, 73 Mich. 237; Bogart v. Township of Lamotte, 79 Mich. 294. In 1 Dill. Mun. Corp. (4th Ed.) § 457, it is said:

"The duties and powers of the officers or public agents of the corporation are prescribed by statute or charter, which all persons not only may know, but are bound to know. The opposite doctrine would be fraught with such danger, and accompanied with such abuse, that it would soon end in the ruin of municipalities, or be legislatively overthrown."

See, also, Cooley, Const. Lim. (6th Ed.) 261; 1 Beach, Pub. Corp. § 217; Pettis v. Johnson, 56 Ind. 139; Niles Waterworks v. Mayor, etc., of Niles, 59 Mich. 311; City of Detroit v. Michigan Paving Co., 36 Mich. 335,

3. It follows that the ultra vires agreement to exempt the property of the plaintiff from assessment cannot be made the basis of a recovery. There is no finding, sup- · ported by evidence, showing the actual value of the right conveyed by plaintiff, and it may not be profitable to inquire whether the city is liable for such actual value, as, if such liability exists, it is not based upon the contract, but, according to the better authorities, the recovery, if any, is upon quantum meruit. 1 Dill. Mun. Corp. (4th Ed.) § 444; 1 Beach, Pub. Corp. §§ 226, 227.

Judgment should be reversed, with costs, and a new trial ordered.

GREENLEY v. HOVEY.

1. EQUITY PRACTICE--GENERAL DEMURRER-APPEAL.
The right of appeal from an order overruling a general de-
murrer to a bill in chancery, given by 2 How. Stat. § 6737,
was not enlarged or abridged by Chancery Rule No. 9, requir-
ing the reasons for the demurrer to be stated therein; and,
upon an appeal from such order, the question for determina-
tion is whether the bill would, prior to the adoption of such
rule, have been subject to a general demurrer for the defects
stated.

2. VOID TAX SALE-BILL TO VACATE-PARTIES.

The auditor general, while a proper, is not a necessary, party to a bill to set aside an invalid tax sale.

3. SAME-PLEADING-GENERAL DEMURRER.

The failure of the complainant in such bill to offer therein to refund the taxes paid by the purchaser is not such an omission as can be taken advantage of on general demurrer.

Appeal from Kent; Grove, J. Submitted October 5, 1897. Decided January 18, 1898.

Bill by Harlan A. Greenley and Ella J. Morse against
Cyrus A. Hovey and Nathan Griffin to set aside a tax sale.
Defendants appeal from an order overruling their de-
murrer to the bill. Affirmed.

Earle & Hyde, for complainants.
Cyrus A. Hovey, for defendants.

MONTGOMERY, J. Complainants filed a bill of complaint, alleging that defendant Hovey became the purchaser, at the tax sale of 1895, of certain property, which the county treasurer assumed to sell for the taxes of 1893; that the certificate issued to Hovey on this sale was assigned to defendant Griffin, but that defendant Hovey is still the real owner; that the sale was void, for the

reason that the lands in question were not included in the advertised list; and praying the cancellation of the certificate. Defendants interposed a demurrer, and, under Chancery Rule No. 9, stated the reasons for the same. The circuit judge overruled the demurrer, and defendants appeal. The two special reasons assigned in the court below, and which are urged in this court, are: First, that the bill contains no allegation of any tender of the taxes due on the property, nor any offer to pay; second, that the auditor general is not made a party.

The statute (section 6737, 2 How. Stat.) permits an appeal from an order overruling a demurrer. Chancery Rule No. 9 was not intended to enlarge or abridge this right. It follows, then, that the question for determination is whether, for the alleged defects, the bill would, prior to the adoption of this rule, have been subject to a general demurrer.

We think the auditor general, while a proper party, is not a necessary party, to this proceeding. Section 75 of Act No. 206, Pub. Acts 1893, contemplates that a sale may be vacated in a case to which the auditor general is not a party, and provides that the auditor general shall have notice of that fact.

The failure to offer in the bill to do equity by refunding the tax paid is not, we think, such an omission as can be taken advantage of on a general demurrer. A general demurrer challenges the equity of the case made by the bill, and will be overruled if a case for equitable relief is set out, however imperfectly. Glidden v. Norvell, 44 Mich. 206; Wilmarth v. Woodcock, 58 Mich. 484; Cochrane v. Adams, 50 Mich. 16. The case stated by the bill was one of equitable cognizance, and complainants were, under the averments in the bill, entitled to some measure of relief. It is true, the court might require, as a condition to relief, the payment of the valid tax; but these matters can be taken care of on the hearing, or, at the most, should be made the subject of a special demurrer. See Sandford v. Flint, 24 Mich. 26, and cases

cited in note 3 (Ann. Ed.); Shuee v. Shuee, 100 Ind. 477;
Clement v. Everest, 29 Mich. 19; Thomas v. Beals, 154
Mass. 54. There is a distinction between a case like the
present, which is in its nature a bill to quiet title, and
such a case as Palmer v. Township of Napoleon, 16
Mich. 176, which was a bill to restrain the collection of a
tax, and the bill wholly failed to show what was the legal
and what was the illegal part of the tax.

The order will be affirmed, and the case remanded.
The other Justices concurred.

115 506

s124 508

115 506 873NW 806 869ASR 589 130 2491

BEATH v. CHAPOTON.

1. NOTES-DURESS OF IMPRISONMENT—EMBEZZLEMENT.
One who, having embezzled money from his employer, gives
his promissory note in settlement and acknowledgment of
the debt, cannot defend an action upon the note on the
ground that his signature was obtained under duress, consist-
ing of threats to arrest and imprison him for the crime.

2. SAME-CONSIDERATION.

A note executed in settlement of a charge of embezzlement
is valid in the hands of the payee only to the extent of the
moneys misappropriated.

3. SAME-FRAUD ON INDORSER-KNOWLEDGE OF PAYEE.
One who is induced to indorse a note, given in settlement of
a charge of embezzlement, through the maker's representa-
tion that the note is for the purchase of an interest in the
payee's business, is not liable to the payee if the latter knew
of the means by which the indorsement was to be secured.

Error to Wayne; Donovan, J. Submitted October 12, 1897. Decided January 18, 1898.