was proceeded against as a non-resident; that he was brought in by publication, and did not enter an appearance or file any pleading, and that a decree that the title of Wilcox to the premises be quieted as against any claim of Squires was entered May 28, 1870. The plaintiff objected to the introduction of this evidence as irrelevant, and the court excluded it.

It will be observed that Byron F. Squires alone was made defendant in the chancery suit, and that he had at the time no title to the land. The decree was that he be thereafter precluded from asserting title, and we are not informed that he does so. Obviously the claim of title which the complainant made was to Squires a matter of indifference, since it could not in any manner affect his interests. The tax titles had accrued after he conveyed, and enforcing them neither took from him anything, nor made him liable upon his covenant. Therefore if knowledge of the suit had come to him, he would probably have given it no attention, because the result of it could not concern him. The decree as to him muight as well have been left unmade.

It is said, however, that this suit against a party who had no interest to be affected by it, and no occasion to defend it, has been effectual to cut off the right of the party actually concerned, and who probably never heard of it until the decree was presented which was to be conclusive against him. The only reason given for this position is that the plaintiff, by not recording her deed, and suffering Byron F. Squires to appear of record as apparent owner, "has allowed him to appear to the world as the owner of the land now sought to be recovered by her," so that "Squires' day in court was her day, and she must accept the consequences of her own acts." It is, then, upon her failure to place the evidence of her title upon record that this effect of the decree upon her rights is to depend.

The general rule that a judgment or decree binds those only who are parties to it is not disputed. There are a few well-understood exceptions, of persons who, subsequent to the institution of the suit have acquired interests or claims under

the parties; but the plaintiff was not one of these, for her title had accrued before. If she loses her title, then it must, be by force of the recording laws; for independent of these there is no principle of law that could bind her by the judg ment against one whose interest she had acquired long before the suit was instituted.

But the recording laws could not help the defendants. Those laws point out specifically the danger to which the party failing to record his title is exposed, and the courts cannot extend or add to it. Columbia Bank v. Jacobs 10 Mich. 349; Millar v. Babcock 29 Mich. 528. The danger is indicated by § 4231 of the Compiled Laws: "Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded." By "subsequent purchaser" in this section is meant a subsequent purchaser from the same grantor. Mr. Wilcox was not such a purchaser. He does not claim under Squires, but by conveyances from the State which, if valid, should cut off the Squires title altogether. Moreover if he were claiming under deed from Squires, the previous unrecorded conveyance would be valid as against him until he had shown the payment of the purchase price. Shotwell v. Harrison 22 Mich. 410. The mere institution of suit cannot make one a bona fide purchaser.

As the tax deeds were not put in evidence, the record presents no question arising upon them.

The court did not err in its ruling, and the judgment must be affirmed with costs.

The other Justices concurred.

ENOCH EGBERT V. ADAM GREENWALT.

Criminal conversation-Married parties cannot disprove intercourse.

The right to an action for damages for criminal conversation with plaintiff's wife is not barred by the fact that the act was done by violence, and that a criminal action will lie.

In an action for damages for criminal conversation the testimony of the husband and wife is inadmissible to disprove intercourse between themselves for the purpose of raising a presumption against the legitimacy of the wife's child.

A witness may be competent to testify to some facts, and nevertheless be disqualified from testifying in the same case to other facts equally within his knowledge and admissible in evidence.

Act 125 of 1861 does not abrogate the common law principle that the testimony of a wife is inadmissible to disprove intercourse with her husband for the purpose of imputing illegitimacy to her children. Legitimacy is presumed, and where there has been opportunity for intercourse between husband and wife within such a period that a child born of the wife may be legitimate, there must be strong evidence to overcome the presumption and disprove the fact of their intercourse.

Error to Berrien. Submitted June 11. Decided Oct. 6.

TRESPASS ON THE CASE. Defendant brings error. Re

versed.

Edward Bacon for plaintiff in error. Married persons cannot testify to non-intercourse for the purpose of proving the paternity of a child upon another person than the husband: Van Aernam v. Van Aernam 1 Barb. Ch. 375; Cross v. Cross 3 Paige 139; 1 Greenl. Ev. §§ 28, 344.

J. G. Turner for defendant in error.

GRAVES, J. Greenwalt recovered for alleged criminal conversation with his wife. The suit was in the common form of an action on the case and was commenced in August, 1878. The trial took place in February, 1879. The whole

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testimony to prove the imputed intercourse and establish the cause of action was given by Greenwalt and his wife. The act was represented as one to which she was an involuntary party, and as having been accomplished against her will by actual force and over the stoutest resistance of which she was capable. It was referred to some day in December, 1877, earlier than the 27th.

Egbert testified for himself and positively denied having had intercourse with her at any time. It was claimed for Greenwalt that the injury inflicted by his wife's violation was aggravated by her being left pregnant; and the court overruled the defendant's objections and permitted her to testify that her husband, in consequence of having fever and ague, did not sleep with her for some time prior to defendant's connection with her, and had not slept with her since; that soon after the occurrence she discovered she was pregnant, and then informed her husband that the child was defendant's; that it was born the 23d of August, 1878. The plaintiff testified that he did not sleep with her for three months; that in the latter part of June, 1878, he noticed his wife's situation, and she then confessed to him. But he had continued since to live and cohabit with her.

The point of the objection

The record contains a general exception to the court's refusal to consider the evidence sufficient to bar the action. It is too vague to deserve notice. But as counsel adverted to it a few words may not be amiss. is understood as being that the nature of the action excluded the idea of violence and contemplated that the wife's participation was voluntary and not forced, and that as the case made by the evidence negatived her consent and proved that she was debauched by violence, the action failed.

The position is not tenable. The common law, in giving this remedy, instead of making the husband's right of action. depend on his wife's having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent but was overcome by force, and the action has been sustained just the same, whether as matter of fact her will concurred or she was outraged by actual violence.

Bac. Ab. Marriage and Div. 551-553; 3 Bl. Com. 139; 1 Chitty Pl. (7th Eng.: 16th Am. ed.) 140, 141, 150, 151, 188; Broom's Com. 847, 848; 2 Hilliard on Torts, 507; Forsythe v. State 6 Ohio 23. And there seems to be no basis in justice or policy for the position that if the personal wrong is accompanied by circumstances of such atrocity as to elevate it to the public offense of rape, the private remedy is thereby either taken away or suspended. Cooley on Torts 86 to 90. It is not reasonable to convert the wife's innocence into a shield to save her assailant from prosecution for his private wrong to her husband. Lord Holt seems to have recognized the principle that both remedies were admissible in a case of actual violence; and alluding to an attempt to carve out cause for a third proceeding to be carried on in the Bishop's Court, he said: "If a man solicit a woman, and goes gently to work with her at first, and when he finds that will not do, he proceeds to force, it is all one continued act, beginning with insinuation and ending with force." Rigaut v. Gallisard 7 Mod. 78.

In view of the rulings made on admitting evidence and in charging the jury it is unquestionable that the verdict must have been much influenced, if not determined, by the statements tendered on the part of the plaintiff and his wife and received by the court for the purpose of causing the jury to believe that they had no sexual intercourse at the time the child was begotten, and that the wrongful act of the defendant must have been the occasion of her condition, and this evidence in my opinion was not admissible. The parties were living amicably under the same roof and there was no serious obstacle to intercourse. There was such access as gave opportunity. That is not denied, and as matter of fact it was not asserted that intercourse did not take place.

It is not perceived that the wife's being admitted as a witness was objected to; and assuming, for this case, that she was entitled to be called, it does not follow that her personal knowledge of whatever in itself might be pertinent to the issue, was rendered provable by her if objected to. The difference is wide between the competency of one to be a witness in a given case, and the right to use the witness to prove