Jno. Atkinson and Isaac Marston for appellant. Henry M. Cheever for appellee. Actual possession by a grantee is not necessary to title: Thatcher v. St. Andrews Church 37 Mich. 264; the grantor's act in recording and again receiving the deed after record could be shown, and in the absence of evidence that the deed was never acted upon by both parties, was strong evidence of an intention not to deliver: Jackson v. Cleveland 15 Mich. 94; a grantor's retention of a deed until his death, was held not inconsistent with its validity, if he intended it to be effectual: Ellis v. Secor 31 Mich. 189; unconditional deposit of a deed with a third person for delivery to the grantee is sufficient delivery, if received and acted upon by the grantee: Hosley v. Holmes 27 Mich. 417; Latham v. Udell 38 Mich. 238; and though a deed thus deposited be wrongfully delivered before the happening of the contingency upon which it was to be delivered, it takes effect as a delivery, when such contingency occurs: Wallace v. Harris 32 Mich. 380; the date of delivery may be proved by parol, and to determine this, the question as to when the minds of the parties met in considering the instrument complete, is admissible: Cook v. Knowles 38 •Mich. 316; McCullough v. Day 45 Mich. 554. CAMPBELL, J. Plaintiff brought ejectment for certain lands in Wayne county, and [defendant] prevailed. Both parties claimed under a title granted by the United States to Richard Sutliff. Plaintiff claimed under Minerva Sutliff, to whom, it was insisted, Richard deeded in 1857. Defendant claimed under a deed from Richard Sutliff to Burritt Sutliff in 1858. There was an issue presented to the jury allowing them to pass upon an adverse possession in Burritt and those in his line of title. But we find no foundation for any theory that could possibly make out any such claim, except by eking out his period of possession by making his father, Richard Sutliff, an adverse holder against his wife, Minerva, during their married life and family occupancy. This is not within any rule. The only question which was open for serious controversy was whether the deed to Minerva was ever operative. If it was, then plaintiff made out a good case. If not, then the judgment for defendant was right. It appeared that Richard made and recorded the deed to his wife. But it further appeared that he got it back when recorded; and there was evidence tending to show that he retained it and never delivered it, and that she never knew of it during his life-time, and denied claiming any interest in it. There were facts enough on both sides to have the question laid before the jury, unless the mere fact of recording is conclusive, which there is no rule of law to maintain. The jury found it was never delivered. This being so, the finding is conclusive, unless there were errors in receiving testimony, and we see nothing of that sort in the case which could have affected this question. The judgment must be affirmed. The other Justices concurred. 53 577 61 8 AMABLE SOUVAIS V. ALVAH E. LEAVITT ET AL. Correction of court record-Plea puis darrein. 1. An entry of judgment in the journal of the court may properly be corrected by order of the judge if nobody has been misled by the error, and the party against whom the judgment was rendered knew what it actually was and took action accordingly. 2. In an action upon an appeal bond the satisfaction of the judgment after joinder of issue cannot be shown unless specially pleaded. 3. Questions of pleading, especially if they change an issue already formed, must ordinarily be settled in the trial court. 4. The discretion of a trial court in excluding a plea puis darrein will not be reviewed unless it has been abused; and where defendant, after learning the facts on which to base it, has delayed to file it for a long time and until after the case has come to trial and been submitted by the plaintiff, it is not clear that the discretion has been abused. Error to the Superior Court of Detroit. (Chipman, J.) April 24.-April 30. 58 MICH-37 53 577 90 240 53 577 119 208 53 577 f153 '605 DEBT. Defendants bring error. Affirmed. F. A. Baker and Henry M. Cheever for appellants. Stewart & Galloway for appellee. COOLEY, C. J. This action is brought upon a bond in the penal sum of seven thousand six hundred dollars, dated July 10, 1882, the condition of which was as follows: "Whereas, judgment has been rendered in the Superior Court of Detroit, in favor of said Amable Souvais, against the said Alvah E. Leavitt, for three thousand seven hundred and sixty and 86-100 dollars, damages and costs, in which judgment and proceedings the said Alvah E. Leavitt complains that there is error in substance, and to be relieved therefrom, hath obtained a writ of error to remove the same to the Supreme Court, to the end that the error made therein may be corrected: Now, therefore, the condition of this obligation is such, that if said Alvah E. Leavitt shall prosecute his said writ of error to effect, and shall pay and satisfy such judgment as shall be rendered against him upon the said writ of error, in said Supreme Court, then this obligation to be void, otherwise to remain in full force and virtue." The declaration alleged the affirmance of the judgment in the Supreme Court. The defendants, who were Leavitt and his sureties in the bond, pleaded the general issue. Issue was joined June 30, 1883. The case was brought to trial December 28, 1883, before a jury. When the plaintiff put in the record evidence of his judgment, it was found that the journal of the Superior Court for the day on which judgment was rendered had never been signed by the judge, and that in the entry of the judg ment by some blunder of the clerk the sum stated was a much smaller sum than the sum for which judgment had been directed. The judge, against the objection of defendants, signed the journal nunc pro tunc, and directed that the entry of judgment should be corrected. When the plaintiff had rested his case the defendants offered in evidence an instrument purporting to be signed by the plaintiff, dated October 17, 1883, which recited said judg ment, and acknowledged full payment and satisfaction thereof and of all costs in the Superior Court and the Supreme Court, in consideration of the sum of three thousand dollars, the receipt of which was acknowledged. Counsel for the plaintiff objected that the discharge, having been given since issue joined, was not admissible without being specially pleaded, and the court sustained the objection. Defendants then asked leave to plead the discharge puis darrein continuance. This was objected to on the part of the plaintiff, who claimed that the paper was obtained from him by fraud. The court declined to permit the plea to be filed, and the plaintiff took a verdict for the amount of the judg ment and interest. The plaintiff then, admitting that he had received three thousand dollars from the defendants, entered a remittitur to that amount, with interest from the time he received it. Defendants bring error. The right of the judge to order the errors in the records of his court to be corrected is undoubted. Nobody had been misled by them. The defendants knew that judgment had been ordered, and they took action which assumed that it was in due form of law. They also understood what the amount was, and recited it correctly in the bond they gave. It was a matter of course to correct the record under such circumstances. Emery v. Whitwell 6 Mich. 474. Nor did the judge err in holding that the alleged discharge was not admissible under the issue. Buell v. Irwin 24 Mich. 145, 149; Jenney v. Potts 41 Mich. 52. The case of Kimball v. Wilson 3 N. H. 96, which is cited for the defendants, was a case in which the discharge was obtained before plea, and therefore has no application to this case. Haven v. Beidler Manuf. Co. 40 Mich. 286 was also different from this. The action was trover, and the plaintiff, to make out his case, found it necessary to put in proof a certain contract. The defendant was then suffered to show that, by facts occurring after issue joined, this contract was discharged. The contract was not counted upon; the suit was not upon it; it came into the case as an item of evidence, and as the defendant could not know it would be offered, he could not be required to interpose any special plea in respect to it. Whether the judge should have permitted the plea puis darrein continuance to be filed is not so clear. Much may be and much has been, in this case, forcibly said for and against his action. But the question now is whether we can set aside his action, even though we should be of opinion that he ought to have ruled differently. It is admitted that as a general rule questions of pleading must be settled in the trial court, and litigation would be interminable if it were otherwise. This is particularly true when the question is of the change of an issue already formed; for the parties are supposed to have made their preparations for trial with reference to the issue as formed, and may be put to cost, inconvenience and, perhaps, loss of rights, if the issue is changed. And only the court where the case is pending can inquire into all the facts and make provision for protecting all equities, if a change in the issue is allowed. And its action must not only appear to be wrong, but its discretionary power must have been abused before an appellate court can be justified in overruling it. In this case the motion for leave to file a new plea was made under circumstances that were very unusual and peculiar. More than two months had elapsed since the necessity for the plea had arisen; the parties in the mean time had prepared for trial upon the issue as it stood, and had entered upon it, and the plaintiff had concluded his case before the motion. was made. The facts which it was proposed to plead had all the while been known, and we are not apprised of any showing that the defendants had been laboring under any misapprehension as to the rule of evidence under the issue as it stood. It could not be assumed that the plaintiff had come prepared to meet an issue which he was not notified would be made, and the filing of the plea would therefore most probably require a discharge of the jury and a postponement of the trial to a future term. All these facts made the question one that addressed itself peculiarly to the discretion of the trial judge; and we do not see how we could interfere to con |