text:
    McINTYRE v. WYCKOFF.
    1. Mortgages —Foreclosure —Distinct Farms — Sale in Parcels — Second Incumbrance.
    Where land covered by a mortgage is occupied as two distinct farms, it is proper, under 2 How. Stat. § 8503, on foreclosure, to sell the farms separately, although the premises are subject to a prior incumbrance.
    2. Same — Redemption—Restriction as to Time.
    One cannot complain that permission to redeem from a mortgage, granted as an act of grace, was limited to he exercised within 20 days.
    3. Same — Descriptions—Foreclosure Sale.
    A mortgage covered certain lands, “less one acre sold therefrom.” • The one acre was leased, not sold, and a second mortgage, given to secure the payment of accrued interest upon the first, covered the entire description, and contained the usual covenants of warranty. Held, that it was proper, on foreclosure of the second mortgage, to sell as one parcel.
    Appeal from Huron; Beach, J.
    Submitted January 26, 1899.
    Decided March 23, 1899.
    Bill by John McIntyre against Frank H. Wyckoif and others to set aside a mortgage foreclosure. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    January 23, 1893, complainant executed a mortgage to defendant Wyckoif for $1,750, upon two descriptions of land, each of which was occupied as a farm. One piece contained 120 acres. The second piece was described as follows: “The S. i of the S. E. £, less one acre sold therefrom, of section 19, T. 15 N., R. 12 E.” Complainant was unable to pay the interest due upon this mortgage at the end of a year, and executed another mortgage, for $150, upon the same land, to Mr. Wyckoff.' This mortgage, however, included the whole of the S. i of the S. E. i of section 19, It contained the usual covenants of warranty. Complainant paid neither interest, principal, nor taxes. In 1895 proceedings were taken to foreclose the second mortgage by advertisement. The proceedings were regular, and the land was sold pursuant to the notice, on June 17, 1895, to defendant Wyckoff. Complainant did not redeem. On March 22, 1897, defendant Wyckoff served a notice upon complainant to surrender up possession of said premises. Thereafter, and on. June 7, 1897, complainant filed this bill, praying that the sale of said premises be set aside, as null and void, that an accounting be had to determine the amount due upon said mortgages, and that the tax certificates and deeds issued by the auditor general be canceled. The case was heard upon pleadings and proofs taken in open court, and decree rendered dismissing the bill of complaint, but permitting the complainant to redeem by the payment of the amount determined by the decree to be due to the defendant Wyckoff within 20 days from the date thereof. From this decree, complainant appeals.

      Hiram L. Chipman (Bacon & Palmer, of counsel), for complainant.

      W. T. Bope, for defendants.
   Grant, C. J.

(after stating the facts). The reasons given in the bill of complaint, upon which complainant seeks relief, are these:

(1) The lands were sold for an amount in excess of the amount due on the mortgages..
(2) The sale is void* because the equity of redemption in the lands was divided, and sold as two parcels.
(3) Because the second parcel was sold as one parcel, whereas it should have been sold in two, viz., the one-acre piece, and the balance excluding this acre.
(4) Because there was an agreement made at the time of the foreclosure sale between complainant and one Byan, who acted for Wyckoff in the foreclosure proceedings, that, if he (complainant) would make no contest or unnecessary expense, Wyckoff would bid the property in, sell it, retain the amount due him on the two mortgages, and pay the balance .to complainant.

1. Complainant testified that he did not receive the full amount of the two mortgages, and that, therefore, the amount alleged to be due was excessive. Upon this point, as well as upon the alleged agreement for the foreclosure proceedings, there is a direct conflict of testimony. We think the circuit judge reached the correct conclusion. The preponderance of evidence is with the defendant Wyckoff on both these points. A discussion of the testimony would be valueless.

2. The sale in two parcels was in strict compliance with the statute. Each was occupied as a separate farm, and complainant was possessed of the equity of redemption in each parcel. Under our statute, there was no indivisible equity of redemption on account of the prior mortgage. Our statute is explicit upon this point (2 How. Stat. § 8503), and requires distinct farms to be sold separately.

3. Complainant insists that the 20 days to pay the amount found to be due was unreasonable. The permission given by the decree to the complainant to redeem was an act of grace, and not of right. From that decree the defendants have not appealed. It follows that the complainant is not in a position to raise that question.

4. We see no force'in the contention that the one acre should have been excepted from the sale. If the act of the parties by the first mortgage, though the description was indefinite, had recognized this as two parcels, the second mortgage, which was being foreclosed, recognized them as one parcel; for that mortgage covered the entire description, and complainant gave a warranty of title. It appears that this one acre was not sold, but was leased.

Decree affirmed, with costs. Complainant will be given 20 days within which to comply with decree.

Hooker, Moore, and Long, JJ., concurred. Montgomery, J., did not sit.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    FIRST NATIONAL BANK OF NILES v. SHUE.
    1. Bills and Notes — Bona Fide Holder — Collateral Security.
    One who receives negotiable paper, before maturity, as collateral security to a loan then made, without notice of any infirmity in the paper, is a bona fide holder.
    2. Appeal — Review—Harmless Error — Questions not Raised
    Below.
    The court cannot affirm a judgment on the ground that an erroneous instruction on one of the questions in the case, was, in view of other questions, without prejudice, where the record does not purport to contain all the evidence, and there is nothing to indicate that such other questions were presented in the trial court.
    Error to Bay; Maxwell, J.
    Submitted January 24 1899.
    Decided March 23, 1899.

      Assumpsit by the First National Bank of Niles against John Shue and Hattie E. Shue upon a promissory note. From a judgment for plaintiff for less than the amount claimed, it brings error.
    Reversed.
    This is a suit upon a promissory note dated August 22, 1894, for $85, payable to J. C. Newman or order, at the Second National Bank, Bay City, made by the defendants, who are husband and wife. The note is indorsed in blank on one end by J. C. Newman. On the opposite end of the back of the note is the following: “If one-half of this note is paid when due, an extension of six months will be given on balance of note.” Upon the trial it was conceded that the defendant Hattie was not liable. One Louis Newman, a brother of J. O. Newman, obtained a loan of $2,000 at the plaintiff bank, and turned over to it, as security, this note and other similar notes, amounting to $5,900. Both Newmans are and were at the time nonresidents of the State. The note was obtained by one Watson, the agent of J. C. Newman, who traveled over the country selling dry goods and other merchandise. The note was transferred by Louis Newman to the plaintiff before due. The defense is that the note was obtained by fraudulent representations, which it is immaterial to-state. The cashier of the bank testified that no officer of the bank had any notice or knowledge of the defense to this note at the timé it was transferred to it. Louis Newman did not testify. The deposition of J. C. Newman was taken, wherein he testified that he indorsed the note, but he does not testify to receiving any consideration from Louis Newman or any one else, nor does he testify that he transferred the note to Louis. Defendant Shue admitted that he received goods as a part of the consideration of this note to the amount of $31, but claimed a want of ’ consideration for the balance. The court directed a verdict for the plaintiff for this conceded amount, but submitted to the jury the question whether any further amount was due. The' jury rendered a verdict for $31 and interest.

      Frank S. Pratt, for appellant.

      J. F. Kinnane and L. McHugh, for appellees.
   Grant, C. J.

(after stating the facts). The court below instructed the jury that plaintiff could recover only the amount actually due upon the note, and that it could not recover for that part of the note for which there was no consideration “until it acquired the whole property, and became a bona fide purchaser,” This is the sole question presented by the plaintiff, and on which it seeks a reversal of the case. The court was in error. A party receiving negotiable paper, before due, as a collateral security to a loan then made, without notice of any infirmity in the note, is a bona fide holder, and will be protected. Williams v. Keyes, 90 Mich. 290 (30 Am. St. Rep. 438); Coleb. Coll. Sec. § 4; Railroad Co. v. National Bank, 102 U. S. 14; Helmer v. Commercial Bank, 28 Neb. 474.

It is, however, urged on the part of the appellees that, although the court may have been in error in this charge, yet upon the entire record the defendants were entitled to a verdict. There is nothing upon the record to indicate that these questions, now presented, were raised in the court below. The record does not purport to contain all the evidence. "We cannot, therefore, affirm the case upon the ground that the charge of the court was error without prejudice. Wierengo v. Insurance Co., 98 Mich. 621.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    HOLMES v. McDONALD.
    1. Gift Inter Vivos — Attempted Revocation.
    A recorded mortgage executed to a father by his son, conditioned upon the payment to the father of an annual sum during his life, and after his death of a specified amount to his daughter, who knew of the gift and that it'was secured by the mortgage, is a gift inter vivos to the daughter, and cannot be revoked by the discharge of the mortgage by the father as fully paid and satisfied.
    3. Same — Presumption of Acceptance.
    A gift beneficial to the donee will, in the absence of proof to the contrary, be presumed to have been accepted.
    3. Deeds — Delivery—Effect of Recording.
    Recording a deed, with intent to pass title, is a sufficient delivery.
    Appeal from Tuscola; Beach, J.
    Submitted January-25, 1899.
    Decided March 23, 1899.
    Bill by Jennie Holmes against John McDonald and others to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      T. W. Atwood, for complainant.

      T. A. E. & J. C. Weadock, for defendants.
   Long, J.

It appears that Alexander McDonald, in June, 1886, conveyed, by warranty deed, to his two sons, John and Donald, defendants here, certain lands in Tuscola county, and took back from them a mortgage on the land for $3,000, conditioned as follows:

Provided always, and these presents are upon this express condition, that if the said parties of the first part shall and do well and truly pay, or cause to be paid, to the said party of the second part, the annual interest on the first day of September in each year, at six per cent, per annum, on three thousand dollars, during the lifetime of said Alexander McDonald, and, after his death, the sum of five hundred dollars to their sister, Jennie McDonald, then these presents shall cease and be null and void.”

Jennie McDonald at this time was about 14 years of age. The mortgage was duly recorded by Alexander McDonald, and payments of interest were made from time to time upon this mortgage, the principal payments being made by John. On October 9,1889, a new arrangement was entered into, and Alexander McDonald discharged this mortgage of repord, reciting in the discharge that the same had been fully paid and satisfied. John McDonald took a quitclaim deed from his brother, Donald, and his wife, and thereupon made and delivered to his father another mortgage to secure the payment annually of a sum equal to the annual interest on $3,000, during the lifetime of the father, but without providing for the payment of the $500 to Jennie. This mortgage was duly recorded. . At the time this last mortgage was made, Jennie had married Mr. Holmes. During the lifetime of Alexander, his son John continued to pay him the amounts specified in the mortgage. Alexander died in July, 1894. Jennie thereupon filed her bill to foreclose the first mortgage, claiming that there was due her thereunder the $500, and that Alexander McDonald, her father, had no power to discharge that mortgage and cut off this payment secured to her thereunder. The court below entered a decree of foreclosure, and found that the amount of $500 was due complainant, with interest at 6 per cent, per aunum from date of decree. From this decree, defendants appeal.

The court held that the case was ruled by Love v. Francis, 63 Mich. 181 (6 Am. St. Rep. 290), and that the recording of the mortgage providing for the payment to Jennie of $500 amounted to a gift inter vivos. Counsel for defendants say that “the question whether Alexander McDonald intended to give Jennie $500 absolutely, and that he did so, and she accepted it, answered in the affirmative, would bring this case within some of the rules laid down in Love v. Francis, and, answered in the negative,' should end the case; ” but they contend that there never was any delivery to Jennie; that to contend that the recording of the mortgage was a constructive delivery will not do in this case, because Alexander discharged the mortgage, and delivered it up to the makers, and entered into a new arrangement; that there is no question but that Alexander intended, at the time of making the first mortgage, to provide $500 for Jennie, to be paid after his death; but that the means to effectuate that result he always retained, and, when conditions changed, he changed his mind, and that the gift which he had intended for her was never delivered, and never placed beyond the control of the donor.

To constitute a gift inter vivos, there must be a delivery of the thing given, either actual or constructive. It is not necessary that it be delivered to the person intended directly; "it may be delivered to some person for him, or to a trustee for that purpose; but in all cases such a disposition of it must be made in favor of the donee as effectuates the object, and places the jus disponendi beyond the power of the donor to recall. Love v. Francis, 63 Mich. 181 (6 Am. St. Rep. 290). It is well settled that an intention to give, evidenced by a writing, may be most satisfactorily established, and yet the intended gift may fail because no delivery is proved. Wadd v. Hazelton, 137 N. Y. 215 (21 L. R. A. 693, 33 Am. St. Rep. 707). Another well-settled rule in relation to such gifts is that, to make them valid, the transfer must be executed; for the reason that, there being no consideration therefor, no action will lie to enforce it. To consummate such gift, there must be such a delivery from the donor to the donee as will place the property within the dominion and control of the latter, with intent to transfer the title to him. Gray v. Barton, 55 N. Y. 72 (14 Am. Rep. 181).

But counsel for defendants contend that there is no evidence in the case that the complainant ever accepted the gift, or knew that it was intended as a gift. The complainant testified that at the time her father conveyed the farm to the sons, and at various times afterwards, ■ she talked with him about this matter, and her father told her that John was to pay him so much a year, and at his death she was to have $500, and that she knew the mortgage was made to secure that amount to her. It is evident, therefore, that the complainant knew about the gift and that it was secured by the mortgage. There is no testimony that she did not accept it, and, under such circumstances, the rule is that, in the absence of proof to the contrary, a gift beneficial to the donee will be presumed to have been accepted. In re Dunlap’s Estate, 94 Mich. 17, and cases there cited; Green v. Langdon, 28 Mich. 221.

In Wadd. v. Hazelton, supra, it appeared that the deceased asked one C. to draw an assignment of bond and mortgage to plaintiff, declaring his intention to give them to plaintiff. Deceased, after receiving the assignment, bond, and mortgage from C., kept them a month, and then delivered them, with other papers, to C., — the assignment being signed, but not acknowledged or recorded,— directing C. to deposit them in the bank, where they remained at the time of his death. It was held that there was no declaration of trust; whereas, in the present case, the deceased himself placed the mortgage upon record, and stated to the complainant that she was to receive the sum of $500. Here was a declaration of trust as well as a recording of the trust mortgage. The recording was equivalent to a delivery of -the mortgage, and, by so recording it, the trustee had put it beyond his power to recall it. This was the only delivery possible under the circumstances. It has been repeatedly held in this State that the recording of a deed, with intent to pass title, is a sufficient delivery, and that actual manual delivery and formal acceptance are not necessary in such a case. Compton v. White, 86 Mich. 33; Fenton v. Miller, 94 Mich. 204; Glaze v. Insurance Co., 87 Mich. 349. Recording a deed is presumptively a delivery, as between grantor and grantee. Sessions v. Sherwood, 78 Mich. 234.

"While it is held in Glaze v. Insurance Co., supra, that this presumption may be rebutted by proof that the grantor did not thereby intend to pass title as of the date of the deed, yet, in the present case, the only matter that can be urged against this presumption is that the father afterwards discharged, or attempted to discharge, the mortgage of record. This was long after the mortgage was recorded, and after he had, power to recall the gift, and we think the testimony of complainant shows that the attempted discharge was made after her father had told her that she was secured under it. The circumstances are such that we are inclined to the view that it was a completed gift, and when made, and the mortgage was recorded, it was beyond the power of the donor to recall it.

The court below very properly held that the mortgage for the $500 remained a lien upon the property, and awarded foreclosure. That decree must be affirmed, with costs.

The other Justices concurred.


text:
    LAMB KNIT-GOODS CO. v. LAMB.
    1. Principal and Agent — Good Faith.
    An agent who has done his full duty in making a purchase for his principal at the lowest possible price cannot be required to deliver to the principal property received from the seller after the termination of the agency.
    2. Corporations — Bill to Compel Surrender of Stock — Parties.
    A bill in equity by a corporation to compel the surrender of certain shares of its stock cannot be sustained, where the certificates have been transferred on the books of the company to one not made a party to the bill, who purchased them from defendant for a bona fide consideration.
    3. Same — Relief.
    Nor, under such circumstances, can relief be granted upon the theory that defendant continues to own other shares of stock like those which the bill was framed to reach.
    Appeal from Shiawassee; Smith, J.
    Submitted January 27, 1899.
    Decided March 23, 1899.
    Bill by the Lamb Knit-Goods Company against Isaac W. Lamb to compel the surrender of certain shares of stock alleged to have been fraudulently obtained. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Fred L. Chappell (Hugh P. Stewart, of counsel), for complainant.

      Cahill & Wood, for defendant.
   Long, J.

The bill was filed in this cause to compel defendant to surrender to complainant eight shares of complainant’s own capital stock, of the par value of $200; which stock, it is claimed, was obtained by him in fraud of complainant’s rights, while acting as its agent. It is also sought to compel the repayment to complainant of all dividends paid on said shares to defendant, and to enjoin him from transferring, or in any manner incumbering, the stock during the pendency of these proceedings. The bill was dismissed by the court below, and complainant appeals.

From the view we take of the case, we do not deem it necessary to set out the evidence. The complainant claims that the defendant is seeking to make a profit out of the business of the complainant while acting as its agent; but it appears that the transaction in which the defendant was acting as agent of the company had been closed, so far as defendant had anything to do with it, before these eight shares were turned over to him by Potter & Loomis, who held them. The record shows that the complainant company had bought of Potter & Loomis certain knitting machines, tools, patents, etc., for $2,500. In payment, the complainant turned out to them $1,000 of the stock of the company, and gave notes to secure the balance. It appears that, prior to that time, defendant had paid to Potter & Loomis $200 to secure an option on this property for a stated time. This option had expired, and the $200 had become forfeited. At the time of the purchase by complainant, defendant, acting- as its agent, attempted to get a reduction of $200 on the purchase price. This was refused, and the purchase was completed for the $2,500. After this was done, and the whole transaction closed, Potter & Loomis agreed to transfer to defendant the eight shares in controversy here. There is nothing in the record showing, or tending to show, that this was any part of the original agreement for the purchase by the complainant. In fact, the purchase had been made, the contract signed, the notes made and delivered with the $1,000 in shares of stock, before any arrangement had been made between defendant and Potter & Loomis in reference to the transfer of these eight shares. Under the agreement between Potter & Loomis and the defendant, these eight shares were to be delivered to defendant when the notes of complainant were fully paid; and this was done. Defendant had nothing to do with the payment of these notes. He was in no way obligated upon them, and it appears conclusively that he had done his full duty in making the purchase for complainant at the lowest possible price. The fact that Potter & Loomis gave him the eight shares after the whole matter was closed up does not give the complainant the right to demand them of him or to claim any rights in them. It was but the recognition, on the part of Potter & Loomis, of the claim which defendant had against them for the $200, and which they had before that declared forfeited by the expiration of time.

But there is another reason why the bill cannot be sustained. It was filed to compel the defendant to surrender these eight shares of stock. It appears that the shares had been sold and transferred by him to his wife for a bona fide consideration, and the certificates transferred to her on the books of the company. Therefore the defendant did not own them at the time the bill was filed, and no transfer could be compelled. His wife was not made a party.

But counsel for complainant contend that the defendant owned other shareá of like character, and that he could bé compelled to surrender eight of these other shares. The bill was filed to compel surrender of these eight shares, and we think the court below, under the circumstances, properly refused to enter decree for the complainant upon both grounds set forth here.

The decree must be affirmed, with costs.

The other Justices concurred.


text:
    BLACK v. COMMON COUNCIL OF DETROIT.
    1. Municipal Corporations — Appropriations by Council —Objections of Taxpayer — Laches.
    Actual notice or knowledge of an unlawful appropriation of public moneys by the common "council of a city is necessary to deprive a taxpayer, on the ground of laches, of the right to object.
    2. Same — Council Proceedings — Publication—Notice.
    The publication of the council proceedings embodying the resolution by which the appropriation was directed, unless brought to the attention of the taxpayer, would not constitute such notice.
    3. Same-Illegal Expenditure — Bill to Enjoin — Laches.
    Delay in filing a bill to enjoin an alleged illegal expenditure of public funds, for four days after notice of the threatened action, does not constitute laches.
    4. Same — Entertainment of Guests — General Powers.
    The charter of a city must contain an express grant of authority to expend money for the entertainment of guests to make lawful an appropriation of the public funds for that purpose, such an expenditure not being within the scope of general municipal powers.
    5. Same — Application of Credits.
    A provision in a charter authorizing the common council to credit all moneys not raised or received for the purpose, of any particular fund to “such fund as it shall direct” will not justify such an application of moneys as would operate to increase a particular fund beyond the express limitations
    " of the charter.
    6. Same — Ultra Yires Contract.
    • A city whose power is limited by the charter to raise a specified amount in each year for the purpose of entertainment has no power to enter into a contract to expend any greater amount, and is not liable for any greater amount, although it has had the use of supplies furnished under such a contract, as the contractor is presumed to know the limitations upon the power of the council.
    Appeal from Wayne; Frazer, J.
    Submitted January 27, 1899.
    Decided March 23, 1899.

      Bill by Clarence A. Black and others, taxpayers of the city of Detroit, against the common council of said city and others, to enjoin an expenditure of public moneys. From a decree for complainants, defendants appeal.
    Affirmed.

      Warner, Codd & Warner and Walker & Spalding (C. A. Kent, of counsel),-for complainants.

      Charles Flowers (John J. Speed, of counsel), for defendants.
   Long, J.

This bill was filed by Clarence A. Black and 13 other citizens and taxpayers of the city of Detroit against the common council, the controller, and the treasurer of the city, to restrain them from using or expending the sum of $5,000, which the common council of the city, by resolution, directed to be paid into the entertainment fund from and out of the general fund. The charter of the city (compilation of 1893), by section 222, provides that the common council shall have power to annually levy, assess, and collect, on the assessed value of all real and personal property of the city made taxable by the laws of this State, a sum not exceeding $2,000, for the purpose of defraying the expenses of receptions, entertainments, and celebrations, to be expended from time to time therefor in such manner as the common council shall by resolution direct. On April 19, 1898, by resolution of the council, the gross sum of $3,304,247.31 was adopted as the estimate for the year' 1898, to be assessed and collected to defray the expenditures of the several funds for the year ending June 30, 1899. This gross fund embraced the sum of $2,000 for the fund known as the “Public Entertainment Fund,” and this sum is the only amount allowed by the estimators of the city and the common council for public entertainments for -such fiscal year.

The city moneys are, under the charter, divided into specific funds, each of which is to. be applied to specific purposes, and no other. The transfer of money from one fund to another is prohibited. It appears, however, that, before these moneys were transferred to the entertainment fund, the city had paid from its general fund, for gas used by the county of Wayne in the county offices, about $40,000, for which it made claim against the county, and which claim was finally adjusted at $20,-000. On July 12,1898, there remained an unpaid balance of $5,000 on this claim; and on that day the common council, by resolution, directed the controller, upon collecting that sum, to credit it to the public entertainment fund, for use in entertaining the League of American Municipalities in August following. This sum was paid to the controller, and transferred by him to that fund, and it is admitted that it was the intention of the city and the other defendants to use this money for the purposes directed by the resolution of the council. The convention of this league was to commence on August 2d, and upon August 1st this bill was filed, and a temporary injunction issued, restraining the use of this $5,000 for that purpose. One Thomas J. Smith, who had supplied $1,000 worth of fireworks to entertain the league, was permitted to intervene as a defendant. His testimony shows that he-had this material in Detroit on July 28th, and that it was used on August 2d, the day after the injunction was granted. He further testified that when he made his contract, and when he furnished the material, he knew nothing about the condition of the entertainment fund of the city, or about its other funds, and that he knew nothing about any other contracts made by the city for such entertainment. On the hearing below, the injunction was made permanent. Defendants appeal.

The answer of the city alleges that, before the filing of the bill, contracts had been entered into with various parties, amounting to $7,000, which were based upon the supposed fact that there was $7,000 lawfully in the entertainment fund, and that said contracts had, for the greater part, been executed. The answer also alleges that, long before the filing of the bill, the complainants knew that said contracts were being made and executed, and said expenditures made, and that they willfully permitted them to go on until nearly the full amount'of $7,000 had been used or appropriated, before filing their bill of complaint; The facts are not in dispute.

1. Counsel for defendants contend that the complainants were guilty of laches in not filing their bill sooner, as it appears that the common council, as early as July 12th, adopted a resolution ordering the controller to transfer this $5,000 to the entertainment fund, and .that 15 days elapsed from that time before defendant Smith had his material on the ground, and 19 days before the bill was filed. It is not claimed that complainants had actual notice of these matters, but counsel contend that, the council proceedings being regularly published, this was sufficient notice. We think, however, that actual notice or knowledge of a proceeding complained of is necessary, to take away the right to object thereto, on the score of laches. Here the complainants moved within 4 days after they had knowledge of the proceedings to expend this fund.

2; Counsel for the city contend that, while there is a limitation in the charter upon the amount to be raised by tax for entertainment purposes, yet the section does give the power to expend money for entertainments, and that authority is found in other sections of the charter to place other moneys to the credit of the entertainment fund. Attention is called to the limitation (section 184) placed upon the power to raise by tax the principal funds of the city, such as the general fund, poor fund, general road fund, and fire commission fund;.but counsel say that this limitation is not directed, in terms, to the amount of each fund, but is fixed at 1 per cent, of the taxable property for all the funds named. The contention is, therefore, that this limitation does not limit the amount of the expenditures from these funds, if the moneys therefor may be raised from other sources than taxation. Attention is also called to section 207 of the charter, which provides that all moneys not raised or received for the purpose of any particular fund shall be credited to the general fund, or such other fund as the common council shall direct. Therefore it is argued that this $5,000 coming from the county might, under this provision of the charter, be placed in the entertainment fund, and, not being raised by taxation, the council could expend it for such entertainments.

There might be some force in these' contentions if expenditures for entertainments were within the scope of general municipal powers; but, unless expressly conferred, there is no such power. 1 Dill. Mun. Corp. (4th Ed.) § 149; Gregory v. City of Bridgeport, 41 Conn. 76 (19 Am. Rep. 485). Section 222 of the charter, in effect, empowers the expenditure for entertainments of a sum not exceeding $2,000, which is to be raised by taxation. There is no other grant of power to expend anything for this purpose. For this reason, the discretionary power given by section 207, to credit moneys not received for the purpose of any particular fund to such fund as the common council may direct, does not apply. There being no power to expend more than $2,000 in any one year for such purpose, there is no power to credit moneys in excess of $2,000 to that fund. While there is a limitation, by the provisions of section 184, on the power to raise money by taxation for the purposes of certain funds, there is no limitation in the charter on the power to expend moneys for the purposes for which those funds are raised, but the power to provide for those purposes is given in general terms by the provisions of chapter 7 of the charter. The common council, therefore, exceeded ■ its power in placing this $5,000 in the entertainment fund.

3. Counsel for defendants further contend that, although the common council had no power to place this $5,000 in the entertainment fund, yet defendant Smith having in good ' faith entered into a contract with the city, and having given his money and property, and the city having had the benefit of the performance of the contract, it is bound to make compensation. Counsel cite sections 935 and 936 of the fourth edition of Dillon on Municipal Corporations to - sustain this contention. The proposition is there laid down that :

“As regards a bona fide contractor with the city, who had expended money for its benefit in respect of a matter within the scope of its general powers, the contract would not be ultra vires, in the true sense of that term; and the city would be estopped to set up as a defense its own irregularities in the exercise of a power clearly granted to it.” 2 Dill. Mun. Corp. (4th Ed.) § 936.

Counsel cite several cases sustaining this proposition, which is undoubtedly well settled. But the expenditure of moneys for such purposes is not within the scope of the general powers of municipalities. Dillon lays down the rule that:

“It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation, the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability not authorized thereby. * * * All acts beyond the scope of the powers granted are void.” 1 Dill. Mun. Corp. (4th Ed.) § 89.

The common council of the city of Detroit had no general power to raise money for the purpose of entertainments. Its power was limited by section 222 to raise by taxation $2,000 in each year for that purpose. Not having the power to raise any greater amount, it had no power to enter into contracts to expend any greater amount.

It is said, however, that the city is liable because it has had .the use of the supplies which defendant Smith furnislied. But, as said in Spitzer v. Village of Blanchard, 82 Mich. 246, ‘ ‘ the limitation of power upon the common council appears in the public statute, and is presumed to be known by all dealing with corporate authorities.”

“Those who deal with the agents of a municipal corporation must take notice of the restrictions in its charter in respect to the powers of the corporation and its agents, and the mode in which such powers may be exercised, and must see to it that the contracts on which they rely are authorized by the charter.” Commercial Bank of Rochester v. City of Rochester, 42 Barb. 488; McDonald v. Mayor, etc., of New York, 68 N. Y. 23 (23 Am. Rep. 144).

In Hodges v. City of Buffalo, 2 Denio, 110, the plaintiff insisted that, though the city had no express authority to make the expenditure, yet the claim could be sustained on the ground that, the plaintiff having furnished the entertainment, the corporation had received the consideration, and was bound to pay, although the engagement was made without legal authority. The court said in that case:

“It is said to be analogous to subsequent ratification by a corporation of the unauthorized act of its agent. I cannot concur in this view of the case. The doctrine referred to assumes that the principal had power to confer the requisite authority in the first instance. It cannot be maintained that a corporation can by a subsequent ratification make good an act of its agent which it could not have directly empowered him to do.”

Where the contract is void, the contractor cannot recover of the corporation in any form, — neither under the contract nor quantum meruit. All who deal with a municipal corporation must see that the contract upon which they rely is within its powers. Halstead v. Mayor, etc., of New York, 3 N. Y. 430; Brady v. Mayor, etc., of New York, 20 N. Y. 312, 319; Cowen v. Village of West Troy, 43 Barb. 48.

The court below was not in error in directing the decree in favor of complainants, and making the injunction permanent. The decree must be affirmed, with costs.

Grant, C. J., Hooker and Moore, JJ., concurred. Montgomery, J., did not sit.


author: Hooker, J.

text:
    MULLREED v. THUMB.
    Vendor and Purchaser — Failure oe Title — Rescission.
    Two sisters entered into an agreement whereby one conveyed certain lands to the other in consideration of the latter’s relinquishing her right to appeal from an allowance of the former’s claim against an uncle’s estate, and of her giving a deed of her interest in lands supposed to belong to such estate. Upon its developing after settlement that the lands covered by the deed were no part of the uncle’s property, the grantee sought a rescission of the contract. Held, that inability to place the grantor in statu quo, because of the lapse of the time in which she might have appealed from the allowance of the claim, rendered the relief sought inequitable.
    Appeal from Wayne; Frazer, J.
    Submitted January 27, 1899.
    Decided March 23, 1899.
    Bill by George Mullreed against Anna Clark-Thumb, impleaded with Thomas P. Clark and John F. Clark, for a partition of real estate. From the decree rendered, complainant appeals.
    Affirmed.

      Walter Barlow, for complainant.

      A. F. & F. M. Freeman (B. M. Thompson, of counsel), for defendant.
   Hooker, J.

The history and nature of this controversy will be found in the cases of Mullreed v. Clark, 110 Mich. 229, and Mullreed v. Thumb, 116 Mich. 440. The latter was a partition case, and this court did not make a final decree, but allowed the case to be remanded, with leave to the complainant to file an amended bill and take further proof. Such bill was filed, and the cause is now here upon a decree which is not satisfactory to the complainant. It will be seen, by a reference to the case last cited, that leave was given to file a bill to reform the contract by showing that it was the design of the parties to convey and receive an undivided twelfth interest in the premises, and not to limit the estate conveyed to such interest as Mrs. Thumb might have as heir of James Phillips. No attempt has been made to do this, but the claim now made is that the complainant should be allowed to rescind the contract upon the ground that both parties supposed the land to belong to James Phillips’ estate.

The estate of James Phillips was not limited to this land. There was considerable personal property, and few claims besides Mrs. Mullreed’s, though it does not appear how much Mrs. Mullreed received upon her $3,000 claim. Mrs. Thumb had an undoubted right to appeal from the allowance of this claim, and she relinquished this, and quitclaimed her interest in the land as heir of James Phillips, and received therefor a deed to 24 acres of land. The complainant is in no position to put Mrs. Thumb in statu quo, as she has lost her right to contest the claim. The relinquishment of her right to appeal was a valid consideration, and there would be as great a probability of injuring Mrs. Thumb by permitting a rescission as. there could be of injuring the complainant by denying it. The former opinion seems to limit the complainant to an amendment with a view to reforming the deed so that he might receive a twelfth interest, and contains no hint that rescission would be allowed. We are not convinced that it would be equitable, if the right is not excluded by our former decision.

The decree is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    HAMILTON v. FENTON.
    1. Deeds — Construction—Ejectment.
    "Whether a deed, which is clear and unambiguous upon its face, expresses the true intention of the parties, cahnot be investigated in an action of ejectment.
    2. Same — Interest Conveyed.
    The words “only heirs at law of A. B.,” following the names of the grantors in a deed, do not operate to limit the estate conveyed to the interest acquired through A. B.
    Error to Genesee; Wisner, J.
    Submitted January 27, 1899.
    Decided March 23, 1899.
    Ejectment by William Hamilton against J. Brush Fen-ton and Mary A. V. Fenton. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    This is an action of ejectment to recover a triangular piece of land on lot 12, block 55, in the city of Flint. Artemus Thayer was, on the 14th of May, 1874, the owner of lots 10, 12, and 14 of said block. On-that date he gave a mortgage to the plaintiff on lots 12 and 14, and "the south 12 feet of lot 10. Lot 10 lies immediately adjoining lot 12 on the north. Thayer, on the same day, conveyed to his daughter (the defendant Mary A. V. Fenton) the north 54 feet of lot 10. Shortly after this conveyance, the defendant J. Brush Fenton erected a brick residence on lot 10, which, after it was constructed, was found, to extend a trifle over the southerly line of the land which had been deeded to Mrs. Fenton. When this fact was discovered, Mr. Fenton informed Mr. Thayer of the fact, and purchased a strip from him, taking a deed to the land in his own name, but afterwards deeding to his wife, defendant Mary A. V. Fenton. The land conveyed by these conveyances was described by metes and bounds, and extended at the rear of the lot some 18 feet south of the north line of lot 12, and at the front about 3 feet; comprising, besides other lands conveyed, a wedge-shaped strip off the north side of lot 12, 18 feet at the rear and 3 feet at the front of the lot. On the 1st of February, 1879, the plaintiff, on request, released from his mortgage the south 12 feet of lot 10 and the north 3 feet of lot 12. Mr. Thayer died in 1880, and on the 11th of April, 1882, the heirs at law of Mr. Thayer, including the defendant Mary A. V. Fenton, who was a daughter of Mr. Thayer, joined in a conveyance to plaintiff of lots 14 and 12, except the north 3 feet thereof. The conveyance thus included the wedge-shaped piece not released from the mortgage, but which had been conveyed by Mr. Thayer in his lifetime. It is this piece of land w:hich is in controversy in this action. It appears that, after the conveyance to Mr. Fen-ton by Mr. Thayer, the two put down a well on the line between the two properties, as defined in the deed, and a fence was built on this line for a portion of the distance across the lot. The circuit judge, upon findings of fact which embodied the above, rendered a judgment for the plaintiff, and the defendants bring error.

      George R. Gold and William Newton, for appellants.

      Durand & Carton, for appellee.
   Montgomery, J.

(after stating the facts). It is manifest that the question presented is, What is the proper construction of the deed to plaintiff ? For, if this deed be held to be a valid and effective conveyance of the wedge-shaped strip in controversy, the previous relations of the parties, as mortgagor and mortgagee, cannot be deemed of controlling importance, while if, on the other hand, the defendants’ contention that the deed conveyed simply the interest which vested in Mrs. Fenton as one of the heirs at law of Artemus Thayer be allowed, the previous dealings may have more significance. We are dealing with this issue in a court of law, and must determine the effect of this deed by its own terms, if it is complete in itself and unambiguous. We are not at liberty to correct any supposed mistakes which may have occurred in its execution. As the circuit judge pertinently said: “The intent must be gathered from the instrument itself, if possible.”

Is there any difficulty in ascertaining an expressed intention in this deed? If not, we are not at liberty to enter upon an investigation of the question whether that expressed intention is the real intention. That question might be open in a court of equity, if fraud or mutual mistake were shown, but not in a court of law and in this form of action. We discover nothing ambiguous in this deed. Apt words of conveyance are employed, and the lands intended to be conveyed are defined. The fact that the grantors are named as heirs at law of Artemus Thayer does not, we think, introduce any element of uncertainty. The words, “only heirs at law of Artemus Thayer,” follow the names of the grantors in the deed. They are not expressed to be words of limitation on the estate, and neither in the premises nor any subsequent clause are there any restrictive words to be found. The statute (section 5653, 2 How. Stat.) provides that a deed of quitclaim and release in the form in common use shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale. It must be held that the triangular piece in question was conveyed by the deed of April 11, 1882. It is not shown that the plaintiff has since relinquished his title, or that the occupancy up to the line claimed by the defendants has been by virtue of any agreement with plaintiff. The most that can be claimed is that he has acquiesced in this occupancy for a period less than that fixed by the statute of limitations.

Judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    BUCKLEY v. FLINT & PERE MARQUETTE RAILROAD CO.
    1. Railroads —Crossings —Injury to Pedestrian —Contributory Negligence.
    A pedestrian who knowingly passed through the gates that guarded a railroad crossing, with which she was familiar, and who, after standing for 10 minutes on one of the main tracks, awaiting a chance to cross a track farther on, which she found obstructed, was struck by a train and injured, was guilty of negligence, even though, by reason of the darkness of the night and escaping steam, she was unable to distinguish the tracks or approaching trains, and supposed she was standing in a place of safety; it being her duty, under the circumstances, sooner to make sure of her position.
    2. Same — Gross Negligence — Evidence.
    That the fireman and engineer of a railroad train which on a dark night struck and injured plaintiff, who was negligently upon the track, testify, in an action to recover for her injuries, that they ought to have seen her if she was upon the track, but did not see her, although they were keeping watch, is not sufficient evidence of gross negligence to warrant a recovery notwithstanding plaintiff’s contributory negligence.
    Error to Saginaw; Wilber, J.
    Submitted January 27, 1899.
    Decided March 23, 1899.
    Case by Mary Buckley against the Flint & Pere Marquette Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      John F. O'Keefe (George W. Weadock, of counsel), for appellant.

      Hanchett & Hanchett, for appellee;
   Moore, J.

Plaintiff sued the defendant to recover damages for injuries received by her upon a street railroad crossing. The circuit judge directed a verdict in favor, of the defendant, upon the ground that the negligence of plaintiff was such that she was not entitled to recover. It is claimed by plaintiff:

First. That the question of the negligence of the plaintiff was for the jury.
Second. That, even though the negligence of plaintiff contributed to her injury, she was entitled to recover, because of the gross negligence of defendant.

The record shows that, at the time of the injury, 12 tracks of the railroad company crossed Wadsworth street. This crossing is 13G feet east of Fourteenth street. Approaching the railroad crossing from Fourteenth street, the first track is the main track for outbound trains. The second track is the main track for inbound trains. The other tracks are used for freight purposes. There was a sidewalk on the north side of Wadsworth street, from Fourteenth street, going east, which extended to the first railroad track. The planking then extended south between the rails of the first track until it reached the planking of the roadway in the middle of the street. This roadway was planked with planking 32 feet wide. The planking commenced west of the first track, and extended east until all the tracks were passed. There was a gate across the highway, just west of the first track, but it did not extend across the sidewalk.

According to the case made by the plaintiff, she was a woman in good health, about 52 years old, who for about six weeks had lived three blocks east of the railroad tracks, and had passed over them several times prior to the day of the injury, which occurred upon the 31st day of March. About half past 5 or 6 o’clock, she left her house, and passed over these tracks, going to the house of Mrs. Winston. It was then daylight. The hearing of plaintiff was good, but she was somewhat nearsighted. Prior to living where she did at the time of the accident, plaintiff lived for a long time two doors away from the Seventh-street crossing, where there were more tracks than at Wads-worth-street crossing, and had been in the habit of going upon the right of way, and picking up pieces of coal and fuel which had dropped from passing trains. She testified that upon the night in question, at about half past 7 o’clock, when it was quite dark, she came east from Fourteenth street, on the sidewalk, until she reached the railroad. She noticed the gate was up, and followed the sidewalk until the planking turned to the south, when she followed it to the planking in the highway. She then went a little farther east, when she found they were switching cars east of her on the freight tracks, and she waited for an opening in the train, so that she could go home. She says the bumping of the cars and the escaping of the steam of the locomotive made a good deal of noise, and obscured her vision; that she looked and listened for any train that might come in, and saw and heard none; that she supposed she was in a place of safety when she was struck and hurt. She says she does not know where she was standing when she was struck. One of her witnesses says she was standing upon the second track, and stood there for 10 or 15 minutes, and was struck by the incoming train. It also appeared that the planking between the rails and between the tracks was about even with the rails of the several tracks. There was a very considerable space between these various tracks.

It is claimed by counsel that plaintiff was deceived by the evenness of the planks between the rails, and supposed she was standing in a place of safety, when she was in fact standing on the track; and they insist that it should have been left to the jury to say whether what was done by plaintiff was consistent with the requirements of ordinary care, or whether she was guilty of contributory negligence,— citing Regan v. Railway Co., 85 Wis. 43; West v. Railroad Co., 32 N. J. Law, 91; Chicago, etc., R. Co. v. Hansen, 166 Ill. 623; Greany v. Railroad Co., 101 N. Y. 419; Wilson v. Railroad Co., 132 Pa. St. 27. These cases are either easily distinguished from the case at bar, or are not in harmony with a long line of decisions in this court.

Counsel also cite Cooper v. Railway Co., 66 Mich. 261 , (11 Am. St. Rep. 482); McDuffie v. Railway Co., 98 Mich. 356; Lonis v. Railway Co., 111 Mich. 458; Tobias v. Railroad Co., 103 Mich. 330; Willet v. Railroad Co., 114 Mich. 411. These cases are none of them in point. Before entering upon the track, the persons injured had done what the law required, and when attempting to cross were at once injured. In the case 'at bar, the plaintiff knew when she entered through the gate that guarded the railroad tracks; she knew she was in a place of danger, where trains were liable to pass and repass; she knew of the existence of the tracks in the vicinity of where she stood, and that the railroad crossing was a place of danger; and, without making certain that she was standing in a place of safety, she stood inside of the gate, and, ’according to the testimony of her witness, remained upon one of the main tracks of the crossing for 10 or 15 minutes, until she was struck and injured. According to all the testimony, she was so near this track as to be struck by the passing train. If this did not constitute negligence, it would be difficult to find a case of negligence. Brady v. Railroad Co., 81 Mich. 616; Gardner v. Railroad Co., 97 Mich. 240; Houghton v. Railway Co., 99 Mich. 308; McGee v. Railway Co., 102 Mich. 107 (26 L. R. A. 300, 47 Am. St. Rep. 507); Braudy v. Railway Co., 107 Mich. 100.

It is the claim of plaintiff that as the fireman and engineer (according to their testimony brought out upon the cross-examination), in the exercise of ordinaiy care, should have seen the plaintiff when they were 300 feet south of the crossing, and did not see her, but ran over her without even knowing they had struck her, they were guilty of gross negligence; that as there was testimony that the bell was not rung and the whistle blown, and that the train was, running 50 miles an hour, the jury should have been allowed to pass upon the question of gross negligence, — citing Battishill v. Humphreys, 64 Mich. 514; Bouwmeester v. Railroad Co., 63 Mich. 557; Denman v. Johnston, 85 Mich. 387; Schindler v. Railway Co., 87 Mich. 400; Richter v. Harper, 95 Mich. 221; Thomas v. Railway Co., 86 Mich. 496; Montgomery v. Railway Co., 103 Mich. 54 (29 L. R. A. 287). The cases are not in point. There is nothing in the record showing that the train was running 50 miles an hour. On the contrary, the testimony is that it was running from 12 to 18 miles an hour. It is true, the engineer and fireman testified upon cross-examination that, if plaintiff had been standing on the track, they ought to have seen her. They both testify that they were keeping watch, but did not see her. The testimony upon both sides shows that the crossing was more or less obscured by smoke and steam; and it is claimed by the plaintiff she was unable to see the headlight of the locomotive, for that reason, though the testimony is very conclusive that under ordinary conditions the headlight could be seen for a long distance. There is nothing in the record to show that the engineer knew that the plaintiff was in danger, and did not heed the danger, and that, after knowing that fact, he did or omitted to do anything he ought to have done to avert the threatened injury. In Schindler v. Railway Co., 87 Mich. 411, Justice Long defined gross negligence which would authorize a recovery notwithstanding the contributory negligence of the plaintiff as follows:

‘ ‘ It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences, as affecting t'he life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effort to avoid them.”

See, also, Richter v. Harper, 95 Mich. 221.

Even if the engineer had seen the plaintiff (the undisputed testimony is that he did not see her), there is nothing in the record which shows that he had any reason to suppose that she would not hear the sounding of the bell or blowing of the whistle, which he says were rung and blown, and would not step aside in time to avoid any danger from the passing of the train. There is nothing to indicate that the engineer knew that plaintiff had placed herself in a place of danger, and omitted to do what he ought, after knowledge came to him, to protect her from the consequences of her own negligence, or that he did anything- likely to cause injury to the plaintiff, indicating an entire or intentional disregard of consequences. See Borsdhall v. Detroit Railway, 115 Mich. 473, and cases cited.

Judgment is affirmed.

Grant, C. J., Hooker and Long, JJ., concurred. Montgomery; J., did not sit.


text:
    BURNHAM v. HOME INSURANCE CO.
    1. Garnishment — Interpleader—Burden of Proof.
    Where one interpleaded in garnishment claims under an assignment alleged to be prior in point of time to the institution of the proceedings, the burden of proving such priority rests with him.
    2. Same — Abatement—Insurance.
    Garnishment proceedings against an insurance company will abate upon plaintiffs assigning his claim to a third person, and defendant’s paying the insurance to the assignee.
    8. Trial — Leadino Questions.
    The allowance of leading questions is a matter within the discretion of the trial court.
    •Error to Charlevoix; Corbett, J.
    Submitted February 7, 1899.
    Decided March 23, 1899.
    Garnishment proceedings by James K. Burnham, Frederick C. Stoepel, and others, copartners as Burnham, Stoepel & Co., against the Home Insurance Company, as garnishee of Neil Gallagher. William J. Quan was interpleaded as a claimant under an alleged prior assignment. From a judgment for plaintiffs, claimant and the garnishee bring error.
    Affirmed'.

      Remy & Mann and Dart & Dart, for appellants.

      Pratt & Davis (Geer & Williams and J. H. Cole, of counsel), for appellees.
   Montgomery, J.

This is error brought to review a trial between the plaintiffs and William J. Quan, inter-pleaded in a garnishment proceeding. The verdict of the jury was in favor of the plaintiffs, and the claimant, William J. Quan, brings the case here for review.

The proceeding under which Quan was made a party was taken under section 8085, 3 How. Stat., as amended by Act No. 178, Pub. Acts 1895.

The principal defendant, Gallagher, held a policy of insurance in the Home Insurance Company, and also one in the North British & Mercantile Insurance Company. A portion of the property covered was burned in the spring of 1895, and the loss under the policy in the Home Company was adjusted on the 15th of May, 1895. The garnishment proceeding was instituted on the 16th of May, and service of the writ made on the 18th. The claimant, Quan, asserted that an assignment of the policy was made to him by Neil Gallagher on the 10th of May, 1895. The principal issue tried at the circuit was whether such an assignment was made at the time stated, or at any time prior to the service of the writ in this case.

The testimony on this subject was that of Mr. Quan himself, one Burns (Mr. Quan’s credit man), Neil Gallagher, and one Bobert McNeil. It is claimed by counsel for the claimant that this testimony, taken as a whole, established the fact of the assignment antedating service, and that the circuit judge should not have left the question to the jury; and this presents the principal question in the case. As before stated, the answer of Quan asserts an assignment on the 10th of May. Neil Gallagher was made a witness by plaintiffs, and did testify that an assignment was written on both policies on May 10th, and that the policies were then placed in an envelope addressed to Mr. Quan, at Chicago, and placed in the postoffice at St. James; that on the 14th he took the package from the postoffice, and retained them in his possession until the 15th of May, when he sent them by Robert McNeil to Charlevoix, to be mailed. The first chapter of this story is inherently improbable, and is rendered'much less credible by the reason assigned by the witness for making the assignments and mailing them on the 10th, which was that the witness desired to hurry up the adjusters, and by the further fact (which it was quite within the province of the jury to find) that between the 10th and 14th the mail had been taken from St. James, so that, if this letter had been deposited in the mail as Gallagher testified, it would have been beyond his control before the 14th. Burns testified that the policies came to them a few days after the date of the assignment, — maybe a week after, five days, or something like that. On cross-examination, in answer to the question whether he could state, from his recollection, when the policies were received, he stated that he could not state the exact date, but that his recollection was that it was five or six days after. The witness, however, testified that he notified the insurance companies of the assignment the day he received the policies; that he also knew that the companies were notified by Mr. Quan’s attorneys, Remy & Mann, a second time; “and that this notice was very shortly after my own, — within a few days.” Yet it appears that this notice by Mr. Quan’s attorneys was dated June 7th. Mr. Quan’s recollection was very uncertain as to the time of the receipt. -Mr. Gallagher testified that the letter containing the policies was handed to Mr. McNeil to mail on the 15th. McNeil testified that Gallagher wrote a letter in his presence, but does not identify the letter in question, and does not testify positively that the policies were mailed by him.

1. Does this testimony conclusively show that the policies were delivered to Quan, or mailed beyond recall, before the 18th ? In view of the fact that many circumstances were shown which bore upon the credibility of the witnesses and the accuracy of their recollection, we think the question was one for the jury, and that .if, as contended by the plaintiffs, the burden of proof rested upon the claimant, the verdict should not, on this ground, be disturbed. Under similar statutes in other States, it has been generally held that, when the intervener claims an assignment of a claim prior in point of time to the institution of garnishment proceedings, the burden of proving priority rests with him; and this, we think, is a reasonable application of the rule that the burden of proof should rest with the party who is presumed to be in possession of the facts. See 2 Shinn, Attachm. § 676; Smith v. Barclay, 54 Minn. 47; Bergman v. Sells, 39 Ark. 97.

2. It appears by a stipulation between the parties that three suits in garnishment, antedating that of plaintiffs, had been commenced against the insurance company by creditors of Gallagher. It was sought to prove that these cases were no longer pending, by testimony which it is claimed by the claimant was incompetent, and was admitted over his objection. We do not find it necessary to pass on this ruling, for the reason that we think the circuit judge was right in holding that, in any case, the claimant was not in a position to prosecute these suits further. It was shown that the creditors instituting these suits had assigned the causes of action to Quan, and it was also shown that the insurance company had paid over to Quan the amount of the insurance. It is doubtless true, as contended, that the assignment would give the right to the assignee to prosecute the garnishment proceedings to judgment, if the parties • continued in a relation to each other entitling the assignee to follow the fund in that proceeding; but it clearly appears that no recovery could have been had in that proceeding, for the money which the creditors were pursuing had already been paid to the assignee of these creditors, Mr. Quan.

3. Error-is assigned upon rulings of the circuit judge allowing leading questions to the witness Gallagher. The rulings were within the discretion of the court, and that discretion was wisely exercised.

The judgment is affirmed.

The other Justices concurred.


text:
    DURRELL v. RICHARDSON.
    1. Replevin — Sufficiency of ’Writ — Description of Property.
    The description in a writ oí replevin of the goods as a quantity of hosiery, underwear, dry goods, and notions, of a specified value, shipped by the plaintiff, and now contained in a designated store occupied by a named defendant, is sufficient.
    2. Same — Trial on Merits — Waiver of Irregularity.
    An imperfection -in the form of a writ of replevin, in directing that the property replevied be delivered to the plaintiff’s agent instead of to the plaintiff, is waived by the defendant’s joining issue in the case and proceeding to trial upon the merits.
    8. Same — Goods Fraudulently Purchased — Mortgages—Bona Fide Loan — Evidence.
    In replevin for goods fraudulently purchased, brought by the seller against the buyer and the buyer’s brothers-in-law, who claimed as subsequent mortgagees, there was evidence that an earlier mortgage was made to the brothers-in-law, and was withheld from filing; that they were familiar with the mortgagor’s affairs, and knew, when they took their mortgage, that large purchases had been made on credit, and that their mortgage would give them priority over the seller; that the alleged loan for which the mortgage was given amounted to 513,000, and, if made, was advanced in cash taken from the private safe of the mortgagees, who were 'engaged in the milk business on a moderate scale; and that, in an earlier proceeding, the testimony of the parties as to the source of the funds loaned was different from that offered by them in the replevin suit. Held, to warrant the court in submitting to the jury the question whether there was in fact any bona fide loan.
    '4. Same — Mortgagee’s Participation in Fraud.
    On an issue as to whether the mortgagees of certain goods participated in the fraud of the mortgagor in buying them on credit with the intention of never paying for them, the fact that the mortgage was withheld from record for SO days, while the mortgagor was engaged in business and buying goods, and that, instead of filing the same, a new mortgage was taken of a later date, may be considered, especially where the mortgagees were advised, when the first mortgage was given, that the failure to file it would entitle intervening creditors to priority.
    5. Same — Burden of Proof.
    In replevin for goods fraudulently purchased, one claiming under a subsequent mortgage from the vendee has the burden of showing his own good faith.
    Error to Wayne; Erazer, J.
    Submitted February 9, 1899.
    Decided March 23, 1899.
    Replevin by Oliver H. Durrell and others, copartners as Brown, Durrell & Oo., against Henry W. Richardson, Thomas E. Hall, William B. Hall, and Emma H. Hall. From a judgment for plaintiffs, defendants Hall bring error.
    Affirmed.

      Julian G. Dickinson, for appellants

      Elliott G. Stevenson, for appellees.
   Montgomery, J.

This is an action of replevin to recover a quantity of dry goods and notions sold by plaintiffs to defendant Richardson, the plaintiffs claiming that the goods were obtained by Richardson by means of false and fraudulent representations relating to his financial ability, and without any intent on his part to pay for them. The defendants Hall Bros, hold a chattel mortgage of $12,-000, and the defendant Emma H. Hall, one of $2,000, each covering the entire stock of Richardson, of which the goods in question were but a portion.

The record shows that the defendant William B. Hah made a motion to dismiss the proceeding on the ground that the writ was not in the form required by statute,,-because the writ contained no sufficient description of the goods, and because the writ commanded the officer to deliver the goods to Joseph A. Burns, agent for the plaintiffs, instead of to the plaintiffs. The description of the goods was “a quantity of hosiery, underwear, dry goods, and notions, of the value of' $4,700, shipped by Blown, Durrell & Co., and now contained in store number 90 Woodward avenue, and now occupied by Henry W. Richardson, one of the defendants herein.” We think this description is sufficient, under, repeated rulings of this court. Sexton v. McDowd, 38 Mich. 148; Farwell v. Fox, 18 Mich. 166; Burt v. Addison, 74 Mich. 730; Peterson v. Fowler; 76 Mich. 258; Simmons v. Robinson, 101 Mich. 240; Dillon v. Howe, 98 Mich. 168, and note.

The imperfection in the form of the writ, in directing that the property replevied be delivered to the plaintiffs’ agent, might have been remedied by amendment, and was waived by defendants when they joined issue in the case and proceeded to trial on the merits. Manhard v. Schott, 37 Mich. 234;, Austin v. Burroughs, 62 Mich. 181; Stevens v. Harris, 99 Mich. 230; Clark v. Dunlap, 50 Mich. 492; Dailey v. Kennedy, 64 Mich. 208. The case of Warren v. Crane, 50 Mich. 300, cited by defendants’ counsel, was distinguished in Dailey v. Kennedy by Mr. Justice Champlin, and its doctrine limited to cases in which the party is deprived of his, liberty.

It is next contended that the evidence given on behalf of the defendants conclusively shows that the defendants Hall were good-faith incumbrancers, and as such entitled to a verdict. This contention has made it necessary to consider the entire evidence, all of which appears in the record, and it will be necessary to refer more at length to the facts in this opinion.

It appears that the defendant Richardson came to Detroit in the summer of 1896, and engaged in the dry-goods business at No. 90 Woodward avenue. After a brief but eventful career, he failed for a sum which no creditor complains of as too small. When his failure occurred, the Halls were found to have chattel mortgages, executed on September 23d, aggregating $14,000, i. e., $2,000 to Emma H. Hail, and $12,000 to Hall Bros. On the trial the defendants offered testimony to the effect that Richardson, who is a son-in-law of Mrs. Emma H. Hall, and a brother-in-law to the two Hall brothers, was formerly engaged in the wholesale liquor business in Louisville, Ky.; that in the spring of 1896 he sold out his business, receiving, as the Halls supposed, some $10,000; that in August, 1896, Mrs. Hall and Hall Bros, each received a letter from Richardson, stating that he had a stock of $20,000 to $25,000, and asking a loan, and offering a mortgage on the stock. The purpose of the loan was stated to be to enable him (Richardson) to buya stock known as the “ Winans Stock,” which he expected to be sold cheap. The Halls offered testimony tending to show that they loaned Richardson, on September 2d, $12,000 in cash, and Mrs. Hall that she loaned him $2,000 in cash. Hall Bros, testify that the $12,000 paid to Richardson was made up of $11,600 which they had, and had for some time kept, in their safe, and $400 drawn from the bank on their check. Mrs. Hall testified that she had the $2,000 in money in her house. Hall Bros, were engaged in running a milk depot and selling milk from the wagon. They explain the fact of having so much money on hand by stating that they had fear of the banks in Louisville. It is contended by plaintiffs’ counsel that the story is inherently improbable. It is unusual, to say the least, for business men to carry the amount of currency stated, and it is also unusual to loan in currency such large sums of money; but we need not determine whether this improbability is such that the jury might be justified in disbelieving it if wholly uncontradicted, but, in view of the fact that the testimony shows that an earlier mortgage was made, which was withheld from filing, and of the close relationship of the parties, of the probable familiarity of the Halls with the affairs of Richardson, of the fact that they knew his stock was purchased on credit and that the giving of the mortgage would give them priority over those who had gold him the goods so recently, and especially in view of the fact that there was testimony that one of the Halls and Richardson had in another proceeding testified that the amount of the consideration for the mortgages was paid over by the Halls to Richardson by a draft, we think the court was justified in submitting the question whether there was any bona fide loan, or any loan at all, made to Richardson.

It is contended that no representations were shown to have been made to plaintiffs upon which they were entitled to rely. The plaintiffs’ credit man testified that Richardson stated to him that he had #18,000 in cash, and that he intended to discount his bills. There was ample ground for the jury to find this statement untrue.

The defendants asked an instruction that the failure to record the first mortgage was no badge of fraud. The court did charge as follows:

“I am asked to charge you as to the keeping of this mortgage off record. The simple fact that this mortgage was not on record would not be, of itself, of any benefit to the plaintiffs in this suit, only as it might tend to show the actual intention of the parties, and give you some light as to whether there was any fraud in this case. The mortgagee had a right to keep the mortgage off record if he pleased, and it did not affect his legal rights, providing there was no fraud in the transaction; but the object of introducing that testimony is for the purpose of giving you an opportunity of knowing the entire situation,- — -to give you an opportunity to judge whether there was not fraud in this transaction on the part of the mortgagees. Fraud, like any other question, must be proved. It cannot be inferred from absolute testimony, but that is what amounts to proof. Inferences may be drawn from any testimony that necessarily follow from the giving of the testimony, but nevertheless fraud must be proven, as any other fact must be proven in any case, and it must be proven by a preponderance of evidence. Plaintiffs set out that these goods were obtained fraudulently, and that the mortgagees participated in the fraud; that they were parties to it. That, gentlemen of the jury, must be established by the plaintiffs by a preponderance of evidence, in this case as in all others; that is, the evidence must be evidence that satisfies your judgment, drawn from the testimony given in this case, whatever conclusions you may draw from the testimony, that satisfies you, if they satisfy you by a preponderance of testimony over and above the testimony of defendants that there was fraud in this case, and then you are at liberty to act upon it, and not otherwise.”

This instruction was sufficiently favorable to the defendants. The fact that the mortgages were withheld from record for some 20 days, while Richardson was engaged in business, and might be presumed to be buying goods, and, instead of filing the same, a new mortgage was taken of a later date, is of some significance, and bears on the question of whether there was a conspiracy between the Halls and Richardson, and is given added force by the fact that the Halls had been advised, when the first mortgage was given, that the failure to file the mortgage would entitle intervening creditors to priority. The instruction as to the burden of proof was too favorable to defendants. Whitaker Iron Co. v. Preston Nat. Bank of Detroit, 101 Mich. 146; Cappon & Bertsch Leather Co. v. Preston Nat. Bank of Detroit, 114 Mich. 263.

We think no error was committed to the prejudice of the defendants.

Judgment is affirmed.

The other Justices concurred.


text:
    SWART v. CHIPPEWA CIRCUIT JUDGE.
    1. Quo Warranto — Pleading—Replication—Rules or Court.
    Under Circuit Court Rule No. 46 (e), providing that quo warranto proceedings shall be at issue upon the filing of replication, respondent’s remedy, where new matter is set up in the replication, is by application for leave to reply, and not by motion to strike the replication from the files.
    2. Same — Amended Rules.
    To avoid misapprehension in the future, an amendment was entered to the rule concurrently with this opinion, expressly authorizing the court to permit pleadings beyond the replication, on application of either party.

      Mandamus by Edgar J. Swart to compel Joseph H. Steere, circuit judge of Chippewa county, to strike from the files a replication in quo warranto proceedings.
    Submitted March 14, 1899.
    Writ denied March 23, 1899.

      William Webster and John W. Shine, for relator.

      Warner & Sullivan and M. F. McDonald, for respondent.
   Montgomery, J.

The relator in this case is respond- . ent in a quo warranto proceeding pending in the Chippewa circuit court, instituted on relation of Clark A. Watson, for the purpose of trying the title to the office of sheriff. The information was filed in the usual form. The relator (respondent in that proceeding) filed his plea, which, in substance, set up that he holds the office by virtue of an election at which he and Clark A. Watson were candidates, and that he (Swart) received 1,348 votes as against 1,332 cast for Watson. To this plea the relator in that proceeding filed a replication, setting up that in certain precincts the inspectors counted certain ballots which were illegal for the respondent, and certain frauds and irregularities in other precincts, which it is claimed should exclude the vote cast, and -that, with the corrections in the counts which should be made, the relator was entitled to the certificate of election and was elected. ,On filing this replication, the relator caused the case to be placed upon the calendar for trial in pursuance of the provisions of Circuit Court Rule No. 46 (e). The respondent moved to strike this replication from the files, and, upon this being refused, has applied to this court for a mandamus to compel the circuit judge to grant the motion.

It is not contended that the relator below, in setting up the infirmities of the respondent’s title in the replication, has in any way departed from the common-law practice; but it is urged that, inasmuch as the particular averments of the relator’s title first appear in the replication, the respondent is given no opportunity to reply, and that the rule ought to be construed so as to require the relator to set up the particulars of his title in the first instance. The rule was adopted to obviate the delays which were possible under-the former practice, which oftentimes enabled the respondent in quo warranto proceedings to prolong the contest over the office until a judgment for relator was fruitless. In many cases the replication introduced no new matter, and yet the respondent could go through the form of filing a rebutter, and the relator was required to file a surrebutter. We are disposed to think that, under the rule as it now stands, there may be some force in the complaint that there may be cases in which the respondent has no opportunity to reply to new matter, or to aver particular matter in avoidance. In such cases, the circuit court has power, on special application, to permit a further reply by respondent, and in the present case such an application would doubtless be entertained. The application to strike the replication from the files certainly was not a step to that end.

In order to avoid misapprehension, we have, concurrently with this opinion, entered an amendment to the rule, which gives the circuit court power to permit further pleadings.

The application is denied, but without costs.

The other Justices concurred.

       Circuit Court Rule No. 46 (e) is amended by adding the following proviso: “Provided, that the court may, on application of either party, permit further pleadings to be filed, and grant a reasonable time therefor, not exceeding ten days to each party.”


text:
    WEBSTER v. WHEELER.
    1. Taxes — Payment by City to County — Recovery.
    Where an amount charged against a city for a special relief fund is included in the city collector’s settlement with the county treasurer, although no tax for the purpose is spread on the city rolls, the collector may compel its return, independent of the question whether he knew of its inclusion.
    2. Same.
    A county treasurer has no right to receive from a city collector an amount charged against the city for a special fund, when he has knowledge that the city spread no tax for the purpose.
    3. Same — Defenses—Crediting Fund.
    The fact that the amount so received has been credited by the county treasurer to the specified fund is no defense to a proceeding to compel its repayment.
    4. Mandamus — Moneys Paid Treasurer — Return to Collector.

      Mandamus is a proper remedy to compel a county treasurer to refund to a city collector an amount included in the settlement between them as the city’s portion of a special fund for which no tax was spread on the city rolls.
    5. Same — Parties.
    Such a proceeding may properly be instituted by the collector in his individual name.
    6. Counties — Claim for Moneys Paid Treasurer — Presentation to Supervisors.
    A claim for moneys wrongfully received by a county treasurer, and retained by him in his official capacity, is not a claim against the county, or against money belonging to the county, in such sense as to require its presentation to the board of supervisors.'
    7. Mandamus — Notice of Hearing — Waiver.
    Respondent in mandamus proceedings waives the objection that he did not receive the four days’ notice of hearing provided for by Circuit Court Rule No. 19 (5) by answering and going to hearing after the denial of motion to dismiss.
    8. Same — Court Rules — Application.
    Whether mandamus proceedings are covered by the above rule,— queer e.

    9. Same — Issue—Affidavits Contradicting Answer.
    The answer in mandamus proceedings should not be contradicted by affidavits.

      Certiorari to Wexford; 'Aldrich, J.
    Submitted November 15, 1898.
    Decided April 4, 1899.

      Mandamus by Orange Webster to compel Edgar W. Wheeler, county treasurer, to repay certain money wrongfully received. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Sawyer & Bishop, for relator.

      C. C. Chittenden and E. E. Haskins, for respondent.
   Hooker, J.

Webster, as collector of the city of Cadillac, met with Wheeler, the treasurer of the county of Wexford, to settle the account between the city and county. As the result of such settlement, Webster paid Wheeler the sum of $5,762.69. In this was included the sum of $151, which was charged against the city for the soldiers’ relief fund. It is conceded that this tax was not spread on the rolls of said city, and consequently was not collected by Webster. Negotiations for repayment having failed,, Webster applied to the circuit court for a writ of mandamus to compel Wheeler to repay him the amount. The petition states that the relator was unaware of the fact that this item was included in the account settled, and that the money was therefore paid through mistake. The answer asserts that the same was paid through a mutual understanding that the city owed it to the county, and should pay it from the general fund. The circuit' judge directed that the writ issue, and certiorari has brought the case to us.

We do not discover that there is a claim that the collector was under obligation to pay the amount in dispute from any other fund than one raised for the purpose, and there was ■ no such fund; and, if he was not under an obligation to pay it, the county treasurer had no authority to exact it.' Nor was the collector at liberty to pay it from the funds belonging to the city. It is therefore immaterial whether the relator did or did not know that it was included in the settlement. The county treasurer’s answer shows that he knew the circumstances, and he should not have received moneys from the collector which he knew he was not entitled to. If he has done so, the fact that he has credited it to the relief fund is no impediment to its repayment. He can balance the credit by a debit charge when he pays it.

The relator’s duty is to collect the taxes, and pay them over to the city jpd county treasurers. Act No. 429, Local Acts 1895. He has paid to the treasurer of the county a sum that he should have paid to the city treasurer. It is now in the custody of the county treasurer, in his official capacity. He might, perhaps, be compelled to pay it to the city, on the application of the city treasurer; and, as it is the duty of the relator to pay to the city this sum, we think he may require the treasurer of the county to pay it back to him, and proceed by mandamus to compel it. The case differs materially from People v. Board of Sup’rs of Kent Co., 38 Mich. 424. The case of People v. Auditor General, Id. 750, is also distinguishable, as, according to the answer, this sum did go into the county treasurer’s hands, as a distinct and independent item, wrongfully received. This relator is not an inter-meddler. He is the proper custodian of a fund which he has been unjustly deprived of, and which is withheld from him. It is his duty to get it and pay it to the city treasurer. It was not necessary for him to proceed in the name of the city; neither should he use the name of the treasurer.

Again, it is contended that this is a claim that should go before the supervisors. This is not a claim against the county, or against money belonging to the county. The county treasurer has money, received in an official capacity, it is true, but it is money to which he has no right, as against the relator; and we think mandamus a proper remedy to compel its restitution.

Counsel assert that the respondent is not properly before the court, for the reason that he did not receive a notice of four days. It is claimed that the proceeding is to be governed by Circuit Court Rule No.19(5). We need not decide whether mandamus proceedings are covered by that rule or not, because, after the motion to dismiss was denied, the respondent answered and went to hearing. If a party is not willing to stand upon his right to notice, he should not be permitted to raise the question after putting his adversary to the expense of a trial upon the merits. The right is a technical one, and justice demands, in all such cases, that it be treated as waived.

The answer in mandamus proceedings should not be contradicted by affidavits. If the relator desires to dispute the answer, issues should be settled and tried in an orderly manner. The result in this case is not affected by the affidavits, however, and therefore we do not reverse the case upon the ground of the irregular practice.

The order of the circuit is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    CLEMENT, BANE & CO. v. OCEANA CIRCUIT JUDGE.
    Foreclosure — Deficiency Decree — Creditor’s Bill.
    A deficiency decree in a foreclosure suit, on which execution has been issued and returned nulla bona, may be the basis of proceedings at law in the nature of á judgment creditor’s bill, under 2 How. Stat. chap.- 278.

      Mandamus by Clement, Bane & Company to compel Fred J. Russell, circuit judge of Oceana county, to vacate an order dismissing a proceeding instituted under chapter 278, 2 How. Stat.
    Submitted December 27, 1898.
    Writ granted April 4, 1899.

      L. K. Soper, for relator.

      L. G. Rutherford, for respondent.
   Per Curiam.

In a foreclosure suit in chancery, under

chapter 247, 2 How. Stat., the relator, a corporation, obtained a decree against the mortgagors for the deficiency. Execution was issued and returned nulla bona. It then commenced proceedings under chapter 278, 2 How. Stat., entitled “Proceedings at Law in the Nature of a Judgment Creditor’s Bill.” The respondent held that this chapter applied only to judgments at law, and not to decrees in chancery. We think the court in error. In 5 Enc. Pl. & Prac. 489, it is stated that “it has been uniformly determined that such [ money ] decrees may be made the basis of creditors’ bills.” The authorities from the different States are there cited. If this be so, we see no reason why we should hold that the chapter above cited is not applicable to this proceeding.

The writ will issue as prayed.