text:
    The People, ex rel. Alfred Wolcott, Prosecuting Attorney, v. The Plainfield Avenue Gravel-Road Company.

      Plank-road companies — Failure to rebuild bridge — Forfeiture of franchise — Abandonment of portion of road.

    A gravel-road company, whose road extended from the corporate limits of a city to the southern end of a toll-bridge owned and maintained by a bridge company, having purchased from the bridge company its property and franchises, amended its articles of association so as to include the bridge, and the portion of the highway on the north side of the river to its intersection with another "gi-avel road, as a part of its road. The gravel-road company at one time placed its' toll-gate on the north side of the river, and assumed and maintained control of the bridge, but after the expiration of the charter of the bridge company, which had about three years to run at the time of the purchase, made no extra charge for passage over the bridge. About 13 years after the gravel-road company had assumed control of the bridge, it was carried away by a freshet, and the company, on being notified by the highway commissioner to rebuild the bridge, by an amendment of its articles of association, abandoned that portion of the highway included in its road by the former amendments, assigning as a reason for such action on its part its inability, by reason of charter restrictions, to raise the requisite amount of money by -a mortgage of its road, or by a sale of stock or otherwise. Thereupon a bill was • filed under the statute to declare forfeited the right of the gravel-road company to receive toll. And, in affirming a decree in favor of the complainant, it is held:
    a — That the inability of the defendant to raise money with which to' rebuild the bridge is no answer to the bill.
    b — That the bridge constituted a part of the defendant’s road, and it is of no consequence whether it was destroyed with or without fault on its part.
    c — That the fact that the portion of defendant’s road that included the bridge was added to the original road by amendment to defendant’s charter in no manner affects the liability of the defendant.
    d — That it is no defense that the abandonment specified in How. Stat. § 3650, had not continued for one year at the time the bill was filed, nor is it necessary to determine whether that section is applicable to this case; that the defendant had declared an abandonment of and a refusal any longer to maintain the added portion of its road, or to keep it in repair, and, under these circumstances, the public was entitled to institute the suit at once.
    e — That the defendant had no legal right to amend its articles of association by abandoning that portion of the highway which included the bridge, thus limiting its road to its-original length.
    Appeal from Kent. (Adsit, J.)
    Submitted on briefs February 14, 1895.
    Decided April 16, 1895.
    Bill to declare a forfeiture of the right of the defendant to receive toll for travel over its road. • Defendant appeals.
    Decree affirmed.
    The facts are -stated in the opinion.

      Butterfield & Keeney and Alfred Wolcott, for complainant.

      John W. Ohamplin and Bundy & Travis, for defendant.
   Grant, J.

The object of this bill, which was filed under How. Stat. § 3049, is to declare forfeited the right of defendant to receive any toll by reason of its failure to rebuild a bridge across Grand river.

The defendant was organized February 24, 1880, for the purpose of constructing a gravel road from the city limits of the city of Grand Rapids, where Plainfield avenue intersects the same, along the State road, commonly called the “Plainfield Road,”, through the township of Grand Rapids, to the bridge called the “Plain-field Bridge,” a distance of seven miles. The period of its existence was fixed at 50 years, and the amount of the capital stock at $12,000, consisting of 240 shares at $50 each. It constructed its seven miles of road, began to receive tolls, and has continued to exact and receive them to the present time. These setren miles of road have always been kept in good condition, and as to them no complaint is made. October 11, 1853, a bridge company was organized for the purpose of constructing a toll-bridge over Grand river ofi this highway. The northern terminus of the gravel road was at the southern end of this bridge. The life of the bridge company was fixed at 30 years. It constructed the bridge, fixed the rate of tolls, and continued to operate it until it sold out all its property and franchises to the defendant, October 20, 1880, under a contract of sale, pursuant to which contract it executed a deed to the defendant August 7,. 1880. November 6, 1883, the defendant amended its articles of association by a unanimous resolution by which it extended its road to the north side of Grand river, so as to include the bridge. By a second amendment it included the highway on the north side of the river to the intersection with the Canal Street Gravel Road, a few hundred feet from the bridge. The company at one time placed its toll-gate on the north side of the river, but made no extra charge for passage aver the bridge after the expiration of the bridge charter. The public and the public authorities appear to have acquiesced in this action of the defendant without any affirmative action on their part. The defendant then assumed and maintained control of the bridge until the spring of 1893, meanwhile making whatever repairs it deemed necessary. In March, 1893, a sudden and unusual freshet arose, carrying away a bridge above, one span of which struck and lodged against the Plainfield bridge, which was finally carried away and destroyed. The defendant neglected to rebuild the bridge, and on June 17, 1893, the highway commissioner of the township of Plainfield notified it to rebuild the bridge within 30 days. On June 26, 1893, the stockholders of the defendant, pursuant to notice, met and amended its articles of association by abandoning that portion of the highway which included the bridge, and limiting the road to the original seven miles. The reason for this action was stated in a report by the president to the stockholders, at that meeting to be that a new bridge would cost 88,000, at least; that the law forbade a larger mortgage than one-half .the capital stock; that the stock was fully paid up; that there was no hope of selling any new stock; that the officers of the company had made diligent efforts to secure, aid from the township authorities, by which, with a bonded indebtedness of $6,000, a bridge might be built; and that they had made earnest efforts to find purchasers for an issue of bonds, but had failed. In view of this condition of affairs, the amendment above noted, abandoning'this portion of the road, was unanimously adopted.

The case was heard on pleadings and proofs taken in open court. The only contested question of fact is whether the bridge was destroyed by the negligence of the defendant in failing to keep it in proper repair. Upon this question of fact the court made no finding, evidently regarding it as immaterial. The court entered a decree declaring that the bridge was a part of the road, and that it was the duty of the defendant to maintain it; that it was its duty to rebuild it; that by the failure to rebuild, and abandoning that’ portion of the road, the defendant forfeited the right to take toll on any part of its road; and enjoining the defendant from collecting any toll, or in any way interfering with the right of the public to the use of the highway, — provided, however, that the defendant might within 60 days commence in good faith the building of a bridge to be completed within six months, in which event the injunction would be suspended.

Several questions may be disposed of quite briefly.

1. The financial condition of the company was immaterial. The inability of a corporation to raise funds to make necessary repairs, or to rebuild structures destroyed, may be a complete answer in a suit instituted to compel such repairs or construction (City of Benton Harbor v. Railway Co., 102 Mich. 386), but it is no answer in a proceeding on the part of the public to forfeit its charter. Inability to perform its functions, no matter what the reason, is one of the most potent grounds for forfeiture.

2. The bridge constituted a part of the defendant’s road, and it is of no consequence whether it was destroyed with or -without its fault. If the right of abandonment did not exist, the duty to repair is imperative. It may be a hardship, but it was a part of its contract to make all repairs, no matter what the cause which made them necessary. Meriwether v. Lowndes Co., 89 Ala. 362.

3. The fact that the portion of the road that included the bridge was added by amendment to the original charter in no manner affects its liability. The same rule must apply as would be applicable if the entire road had been originally included. State v. Nonconnah Turnpike Co. (Tenn.), 17 S. W. Rep. 128.

4. It is no defense to this action that the abandonment specified in How. Stat. § 3650, had not continued for a year at the time of filing this bill. It is contended by the complainant that this suit is brought under section 3649, and that section 3650 does not apply. It is unnecessary, however, to determine this question. The defendant by its own solemn resolution, unanimously passed by its stockholders, had declared an abandonment of and a refusal to any longer maintain the road or keep it in repair. . Under these circumstances, the public was entitled to institute this suit at once.

5. This brings us to the principal question in the case, viz., had the defendant the legal right to amend its articles of association so as to restore the original termini of the road, or, in other words, to abandon any portion of its road, so long as it kept five consecutive miles in good condition? Such a conclusion would lead to some strange results. Any plank-road company would thus be enabled to discontinue any part of its road, at either or both ends, so long as it left five consecutive miles in proper condition for travel, and thus leave the public to be inconvenienced, or at its expense repair any damage which such company might consider too expensive for it to make. If, in the present instance, the river had run in close proximity to the city, the company might say to the public:

“We have no funds. You must, rebuild the bridge, if you desire ingress and egress. We have five miles of good road, over which we will still continue to charge toll. The rebuilding of the structure will be greatly to our benefit and .to your convenience. We, however, can avoid liability by voluntary abandonment, as to which you have no choice. If you desire a public highway, you must rebuild it.”

Let us suppose the defendant’s road to have been ten miles in length, extending over one of the principal thoroughfares to the city, with several bridges, built at the public expense, within two miles and a half of each terminus. The center five miles were the least expensive to construct and to keep in repair, and over which, standing by themselves, no franchise would probably have been granted. After receiving the benefits of the entire road for 10 years, a bridge is washed away within a mile of its outer terminus. It chooses not to rebuild, and therefore amends its articles of association by abandoning that portion which includes the bridge. Soon another bridge is washed away within the mile nearest the city, and the company takes like action. Other bridges are swept away in succession, or washouts occur, near the termini, and each time an amendment is made, until finally the company has left only the center five miles, which cost but little to construct or keep in repair. Is it not absurd to say that the Legislature intended to enact a law conferring such power upon a plank-road company?

If this be so, it follows that such power must clearly appear in the charter or law authorizing the formation of these corporations. The law requires each corporation to state in its articles the place from which and to which the road is to be constructed. If it desires to take an already existing highway, it can do so only by the consent of the proper public authority. It ought not to be permitted to abandon any part of such public highway at its own convenience, without the assent of the public authorities. There is not a single sentence in any provision of the law authorizing such abandonment without the consent of the Legislature. The learned counsel for the defendant base their argument upon the power conferred upon such corporations to amend their articles of association. This power is found in How. Stat. § 3598, which, after providing for the execution of articles of association, for filing in the proper office, for suing and being sued, for a common seal, for purchasing and acquiring land necessary for constructing, repairing, and preserving its road, for adopting by-laws, etc., provides that such associations shall “be subject to the-provisions contained in chapter 55 of the Revised Statutes of 1846, entitled ‘General provisions relating to corporations,’ as far as the same shall he applicable and not inconsistent with the provisions of this act.'’ The section of the general corporation act relative to amendments is as follows:

“Such corporation may at any time amend its articles of association by filing amended articles of association in the office of the Secretary of State, which said amended articles of association shall be made in all respects consistent with the provisions of the act or acts under which such corporation may be organized.” How. Stat. § 4866.

Under this act these corporations may amend their articles in all those matters which do not affect the public, and with‘which, therefore, the public is not concerned, such as increase or decrease of their capital stock. As already shown, they cannot appropriate to their use of benefit any portion of an existing public highway without the assent of the proper public authorities. Having obtained the control of such highway by such assent, and having thereby agreed to keep it in repair, it would clearly be a most unwise policy to permit the company, at its own convenience, for its own benefit, and at its own choice, to abandon a portion of the highway the moment it has become out of repair. Such power must be shown to be clearly conferred by some provision of the law.

Under the law as it stood (How. Stat. § 3624) prior to the amendment of 1875, this Court was equally divided upon the question whether such corporation, having completed five consecutive miles of its road, obtained a vested right to toll over that part, notwithstanding the failure to construct the balance of the road. People v. Plank-Road Co., 9 Mich. 285. In 1875 the statute was amended, giving the right to receive tolls at any time after the construction of two consecutive miles, but providing that this provision should apply only during the period of construction, and not afterwards. How. Staf. § 3050. This amendment modified section 3624, which read as follows: “Whenever any plank-road company shall have completed their road, or any five consecutive miles thereof, the said company may erect toll-gates and demand and receive toll,” etc., — and regulated the right to charge toll during the period of construction. Section 8649 provides that every plank-road company shall cause to be laid down and kept closely together and in an even manner, so that the surface shall be uniform, the plank upon its road, or, if the said company shall have built any portion of its road of gravel, or of stone so broken as to serve the purpose of gravel, it shall cause said gravel or broken stone, of proper quality and quantity, to be placed upon the road and kept in a uniform manner of the width and depth required by law, and in case of default it shall forfeit the right to receive any toll upon its road. A. bridge is a part of the road, and the corporation is bound to build and keep it in repair, even though the statute is silent in regard to it. People v. Turnpike Road, 23 Wend. 254; Turnpike Co. v. Berry, 5 Ind. 286; Hord v. Village of Montgomery, 26 Ill. App. 41. The right to maintain an action for non-repair was sustained in People v. Plank-Road Co., 67 Mich. 5. Under the defendant’s theory of the law, it can avoid any such proposed action, and nullify the provision of section 8649, by amending its charter as often as any such action is proposed or suit commenced to enforce the remedy. This theory is unreasonable, and inconsistent with the plain purpose of the law and the contracts entered into between the State and these corporations. They cannot receive the benefits without accepting and bearing the burdens.

After the most careful examination we have been able to devote'to the subject, we are constrained to hold that the statute does not confer the right of abandonment claimed, and that the. defendant by its action.has .forfeited the right to receive tolls. • ;

The decree must therefore be affirmed, with costs. The defendant will, however, .be allowed six months from the date of filing this opinion within which to construct the bridge, and thus retain its franchise.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    The Hannah & Lay Mercantile Company, James A. Boots, and The J. E. Greilick Company v. John G. Mosser, The Chicago & West Michigan Railway Company, Robert Sproul, William T. McGurrin, John W. Travis, and Charles S. Travis.

      ■Mechanic's lien — Service of notice on owner — Jurisdiction—iTraud of claimant — Description of premises — Waiver of objections by owner — Costs on appeal.

    1. A failure to serve personally, within the county in which the premises sought to he charged with a lien under the mechanic’s; lien law of 1891, as amended in 1893, are situated, upon the owner, part owner, or lessee of said premises, or, in case of his; absence from said county, then upon his agent having charge-of said premises within said county, a copy of the statement or claim of lien, or, in ease neither of said persons can be found within said county, the non-service of said copy by posting it in some conspicuous place on said premises, is fatal1 to said lien; service by mail, or personal service outside of the county, being insufficient under the statute.
    2. The six months, within which proceedings to enforce a mechanic’s lien must be commenced in order to continue the same, must he computed from the date of the filing in the office of the register of deeds of the statement or claim of lien to the date of the filing of the bill to enforce said lien, or the cross-hill provided for by section 10 of the mechanic’s; lien law of 1891.

      3. A material-man, who had sold to a contractor a quantity of material to he used for purposes other than those of the contract, credited generally on the contractor’s account a payment made'hy him the same day that he received a large sum from the contractee. The material-man afterwards sold to the contractor other material to be used outside of the contract. After the contractor had absconded, the material-man, in making up his lien account, at first credited the full payment thereon, but afterwards changed the credit so as to discharge all of the items for material used outside of the contract, amounting to within $15 of said credit, thus leaving but said $15 credited to the contractor in the statement or claim of lien, and in this form swore to the account as correct in all particulars. And it is held that such action on the part of the material-man was an attempted fraud upon the contractee, and destroyed the lien; citing Gibbs v. Hanchette, 90 Mich. 657.
    4. Where the land against which a lien is sought to be enforced is imperfectly described in the statement or claim of lien, but the building erected thereon is accurately described, the lien will be held good as against the building alone, under section 9, subdivision 4, of the lien law of 1891, as amended in 1893.
    5. Three claimants filed several bills to enforce mechanic’s liens. The solicitors for the owner of the property, at the hearing, and after answers in the nature of cross-bills, filed by other claimants who had been joined as defendants in each suit, had been served on said solicitors, stipulated that all of the cases might be heard together, and that but one decree need be entered. And it is held that, in view of said stipulation, which was acted upon, the defendant owner is estopped from claiming that said answers were filed without leave of the court, or that the same were not seasonably served, or that no process issued.
    6. But one record was presented on the hearing, and but one brief was filed by the solicitors for the defendant owner in all the cases. And it is held that on the dismissal of the original bills, and of the cross-bill of one of the defendant claimants, but one solicitor’s fee will be taxed in favor of the defendant owner.
    Appeal from Grand Traverse. (Corbett, J.)
    Argued February 14 and 15, 1895.
    Decided April 16, 1895.
    Bills to enforce mechanics’ liens. Defendants Sproul & McGurrin and J. W. Travis & Son filed answers in the nature of cross-bills asking like relief. Defendant railway company appeals.
    Decree reversed in part, and modified as stated in the opinion.
    The facts are stated in the opinion.

      Pratt & Davis, for complainants.

      Smiley, Smith & Stevens, for appellant.

      Sweet & Perkins, for defendants Sproul & McGurrin.

      Philip H. Travis, for defendants J. W. Travis & Son.
   Long, J.

In June, 1893, the defendant railway company entered into a contract with John G. Mosser, by which he was to construct an eating house for the company at Traverse City, according to plans and specifications agreed upon, for the sum of $3,397. This included the furnishing by Mosser of all materials as well as all labor. Mosser commenced the construction of the eating house in June, and had substantially completed it on August 35. On July 14 the company paid him $1,500, and on August 38 the sum of $1,500; leaving a balance, including extras,.of $568.03. On receiving the last payment, Mosser absconded from the State, after first making an assignment for the benefit of his creditors. Several parties, among whom are the complainants, filed liens upon the building, as follows: Hannah & Lay Mercantile Company, $293; James A. Boots, $396; J. E. Greilick Company, $325; Sproul & McGurrin, $298; J. W. Travis & Son, $383, — a total of about $1,695. Bills were filed to enforce these liens, and the cases were heard together, and a joint decree' entered against the defendant company and Mosser. The amounts of the several claims, as above stated, were allowed, and made a lien upon the premises, and an order of sale entered to satisfy the liens. The amounts found due to all the claimants aggregate something over $3.,100 more than the amount due from the defendant company to Mosser on the contract. The defendant company appeals from this decree. We shall discuss the claims separately, as the questions raised in some are not applicable to others.

Hannah & Lay Mercantile Company.

It is contended that the decree establishing a lien under this claim should be reversed, because there was no compliance with the lien law, which provides for service of a copy of the statement and claim of lien on the owner of the premises. Section 6, Act No. 199, Laws of 1893, provides:

“Every person filing such statement or account as provided in the preceding section, except those persons contracting or dealing directly with the owner, part owner, or lessee of such premises, shall, within 10 days after the filing thereof, serve on the owner, part owner, or lessee of such premises, if he can be found within the county, or, in case of his absence from the county, on his agent having charge of such premises within the county wherein the property is situated, a copy of such statement or claim; but, if neither of such persons can be found within the county where such premises are situated, then such copy shall be served by posting in some conspicuous place on said premises within five days after the same might have been served personally could the principal or agent, as aforesaid, have been found.”

The only service claimed in this case is by the mailing of a copy to “Charles M. Heald, Esq., Grand Rapids, Mich.,” together with a letter written to Mr. Heald. No copy was served on the company’s agent in charge of the building, no copy was posted oil the building, and neither the letter nor envelope was addressed to Mr. Heald as “general manager of the railway company,” nor as any officer or agent of the company. The papers were received at Mr. Heald’s office, opened, and the receipt acknowledged by a clerk in the office saying the matter had been turned over to the general attorney of the company. It is contended by the defendant company that this service was not in compliance with the section of the statute above quoted:

1. Because mailing a copy of the claim of lien was not a service of it within the meaning of the section.
2. Because mailing a copy to Charles M. Heald was not equivalent to mailing a copy to the defendant company.
3. Because service outside the county is not authorized by the statute. ■
4. Because, there being an agent of the railway company in charge of the eating house at the time, the law required service on him.
5. Because, if there were no such agent, the statute requires the posting of the claim of lien on the premises.

It is contended on the other hand:

1. That personal service is not required, as the term is used only in referring to the time when substituted service may be had. 2. That county lines are not referred to as restricting the place where service may be made, but, if not found in the county, and no agent is found in charge, then substituted service may be resorted to by posting upon the building. 3. That the statute does not require the claimants to go outside of the county to make service, but they may content themselves with substituted notice, and that, if the notice is served outside the county, and gives actual notice, it satisfies all the requirements of the statute.

•The proofs show that George E. Hunt was the agent of the defendant company, in charge of the building. He was the station agent there, and he testifies that the complainants, the Hannah & Lay Mercantile Company, Mr. Boots, and the J. E. Greilick Company all knew that he was the agent. He was the only representative of the company there in that county. It is admitted that no' service was made on him, and that no notice of the claim of lien was posted upon the building.

This statute is in derogation of the common law, and those claiming benefits under it must bring themselves within its provisions. Phil. Mech. Liens, § -367a.. The statute provides for service on the owner, part owner, nr lessee of the premises, if he can be found within the county; and it is evident from the closing paragraph of section 6, above quoted, that this must be personal service, for it is there provided that if the owner, part owner, lessee, or agent cannot be found within the county where the premises are situate, “then such copy shall be served by posting in some conspicuous place on said premises within five days after the same might have been served personally could the principal or agent, as aforesaid, have been found.” The general rule as to method of serving notice is laid down in 15 Amer. & Eng. Enc. Law, 13á, as follows-:

“Where the statute requires notice, without prescribing the method of service, personal notice is intended, and personal notice must be given by a delivery thereof directly to the person to be notified, and not by delivering the original or a copy to his servants or members of his family at his house. Leaving the original or a copy at the residence with some one other than the person to be served is, perhaps, sometimes spoken of as personal service in a loose way, where there can be no mistake about the real meaning (as in case of bills and notes), to distinguish it from service through the mail, but personal service is, properly, service upon the person to be served; and the general rule is that where notice is required by statute, and the method of service is not prescribed, personal service is meant.”

Carney v. Tully, 74 Ill. 375, was a suit to enforce a mechanic’s lien, and the only question involved was the sufficiency of the service of notice. It was conceded that a, notice had been mailed to the owner, and received by him. It was said:

“The second section of the act provides that the party claiming to have performed labor or to have furnished materials to the original contractor shall cause a notice to be served upon the owner or lessee, or his agent, of the fact of his having performed labor or furnished materials, and that he shall hold the house or building. * * * From the terms employed in the second section the conclusion is irresistible * * * that there must be personal service. The statute itself is in derogation of the common law, and those claiming its benefits must bring themselves within its provisions. Service of a written notice always means actual personal service.”

In Ryan v. Kelly, 9 Mo. App. 396, decided in 1880, the notice of lien was served by delivering the same at the usual place of abode of the owner to the servant girl in his employ. It was said:

“It is true that the doctrine in Missouri is that the mechanic’s lien law should receive a liberal construction, but it is a mistake to suppose that the courts are to do away by construction with the plain provisions of the act. The law, for obvious reasons, provides that the owner, whose property is made liable for an indebtedness not arising out of any contract to which the owner of the property to be charged with the lien was a party, shall be served with notice. The statute provides for the case of the absence or non-residence of the owner by prescribing that the notice may be served upon the owner or his agent; but the statute neither specifies nor indicates any other service than personal service, and whenever this is the case it is settled that personal service is meant. To the cases cited by appellants to this effect, and to those referred to above, a mass of citations might be added, and we know of none to the contrary. Where the legislature has prescribed the mode in which notice shall be given, the courts cannot substitute some other form of notice as an equivalent,”— citing McDermott v. Board of Police, 25 Barb. 635; Rathbun v. Acker, 18 Id. 393.

In the present case, however, the Legislature has expressly fixed the mode of service, and designated it as personal service upon the owner, part owner, or lessee. The other modes are substituted service, when this per: sonal service cannot be had upon the owner, etc. No service in the mode pointed out by the statute was made, and consequently no lien existed at the time of filing the bill. The bill, therefore, must be dismissed as to the Hannah & Lay Mercantile Company, with costs of the court below to the defendant company.

The James A. Boots claim must fail for the same reasons given in the matter of the Hannah & Lay claim. The service made was the same; and that.hill must be dismissed, with costs of the court below to the defendant company.

The J. E. Greilick & Go. claim.

It appears that Mosser .had purchased goods from Greilick which were used elsewhere, and that on July 29 and August 19 he procured other goods from Greilick, which were not for the eating house, but which were shipped away. The goods purchased which were not used for the eating house amounted to $60. On July 11 Mosser paid Greilick $75 on account, and it was credited generally on account. Greilick heard that Mosser had absconded before he made up his lien account, and in making that up he used sufficient of the $75 payment to discharge all the outside items against Mosser, including the items for goods sold Mosser after the $75 was paid, before giving any credit on the lien account. Although Mosser had paid to Greilick the $75 on the very day he received $1,500 from the defendant company, there appears in the lien account a credit of only $15. The original account is returned into this Court, and it appears that Greilick first made up his lien account by crediting the full amount of the. $75 as paid thereon, and then changed the figures, thus giving a credit of only-$15, and in this form swore to it as correct in all particulars. It is confessed that this change of credit was made by Mr. Greilick himself, and after Mosser had gone away, and with the evident intent to get from the defendant company the whole amount. Greilick concealed this change, even from his attorneys, and it was only ascertained by his cross-examination on the trial. It was an attempted fraud upon the defendant company. The case falls in principle within the rule laid down in Gibls v. Hanchette, 90 Mich. 657, 660, in which.it was said:

“The purpose of the statute is that an accurate and truthful claim shall be filed. The authorities very, gen. «rally hold that where there is an honest mistake of fact, made in the honest belief of its correctness, courts will not for that reason hold that the lien is lost. But where claimants place upon record a statement which they know is not correct, the authorities are very uniform “that the lien is lost.”

In Lynch v. Cronan, 6 Gray, 531, under a statute of like import with our own, Chief Justice Shaw held that a failure by a lienor to give a credit for $5 upon a claim for •|24 destroyed the lien.

But, aside from this, there was á failure of service of notice of lien, the same as in the Hannah & Lay case. This bill is therefore dismissed, with costs of the lower ■court to defendant company.

The Sproul & McGurrin claim.

In this case personal service of the notice of the claim •of lien was made upon an agent of the defendant company. But it is contended that no valid proceedings were ever begun by which the lien couldo be enforced. It appears that in September, 1893, the Hannah & Lay Mercantile Company, the J. E. Greilick Company, and •James A. Boots filed separate bills of complaint to enforce their lien claims, and Sproul & McGurrin were made defendants with the railway company in each suit. Sproul & McGurrin had filed their claim of lien with the register of deeds in August, 1893. On December 8, 1893, they filed an affidavit of service with the register of •deeds, and December 9 they filed an answer in the nature •of a cross-bill in each of the three suits, praying for .affirmative relief against their codefendants Mosser and the railway company. No copies of these answers were served on the railway company or its solicitors until the •day when the hearing of the cases in open court began. No notice was given of the filing of these cross-bills, nor was any process issued thereon, nor leave obtained from the court to file the cross-bills; and until just before the ¡hearing the defendant railway company had no. notice or knowledge that any such answers or cross-bills had been filed. When the proofs were offered, the defendant company objected to the same on the above grounds.

Section 10, Act No. 179, Laws of 1891, provides:

“Proceedings to enforce such lien shall be by bill in chancery under oath, and notice of Us pendens filed for record in the office of the register of deeds shall have the effect to continue such lien pending such proceedings. And in such proceedings the complainant shall make all persons having rights in said property affected or to be affected by such liens so filed in the office of the register of deeds, and all persons holding like liens so filed, and those having filed notice of intention to claim a lien, parties to such action. And all persons holding like liens, or having filed notice of intention to claim a lien, or any other persons having rights in said property, may make themselves parties thereto on motion to the court and notice to complainant, and may file their intervening or cross-bills, or answers claiming the benefit of cross-bills, and notices of Us pendens therein. Intervening or cross-bills shall be on oath, and all bills sworn to shall be evidence of the matters therein charged unless denied by .answer under oath,” etc.

Act No. 179, Laws of 1891, was amended by Act No. 199, Laws of 1893. Section 9 of this latter act provides •that—

“The several liens herein provided for shall continue for six months after such statement or account is filed in the office of the register of deeds, and no longer, unless-proceedings are begun to enforce the samé,” etc.

The answers in the nature of cross-bills were filed December 9, 1893, which was within four months after fhe statement of lien was filed with the register of deeds b>y the claimants here. The six months would elapse on February 26, 1894. While the answers were filed within the six months, they were not served on the codefendant, — the railway company, — and it had no, notice of them, until in April following. The claimants here contend that the filing of the answers in the nature of cross-kills was within the time; that no leave of court was necessary to bring in the defendant company; and that the date of service of the cross-bills is immaterial, as the proceedings were commenced when the cross-bills were filed. Counsel rely upon Sheridan v. Cameron, 65 Mich. 680, 682, to support this contention. It was there said:

“We think the filing of a bill or petition is the beginning of the suit, and that the service of process is only a step in the cause.”

Under the statute then in force the proceedings to enforce the lien were to be commenced within 60 days, and the reasons were given there that led to the conclusion that the filing of the bill was the beginning of the suit or proceedings, as, if the defendant were absent, and must be brought in by publication, the 60 days would elapse before the service was legally completed. We think the time must be computed from the filing of the claim of lien to the date of filing the bill or cross-bill asking affirmative relief.

The defendant railway company, at the hearing and after the answers in the nature of cross-bills had been served on it, stipulated by its solicitors that all the causes might be heard together, and they were so heard. In view of this stipulation it cannot now be heard to say that the answers were filed without leave of the court, or that service was not made in time, or that no process issued. Sproul & McGurrin were regularly made parties defendant to these bills. They appeared, and filed their answers in the nature of cross-bills. Both the railway company and Sproul & McGurrin were present in court by their solicitors, and the causes proceeded under the stipulation, and by this stipulation it was agreed that but one decree need be entered in the causes. By this, appearance and stipulation the railway company is estopped from .raising the questions suggested. It is. uniformly held that all objections to the process or proceedings by which a defendant is brought into court are waived by- pleading to the merits. Gunn Hardware Co. v. Denison, 83 Mich. 40. If the time of the service of the answers was insufficient, the court could very properly have extended it under the last paragraph of section 10 of Act No. 179, Laws of 1891, which provides:

“Amendments may he made to any bill or cross-bill at any time before final order, and, if it shall appear that any party has had insufficient notice of any such proceedings, such further notice shall be given as the court shall think just.”

No further time was asked, but the parties went to hearing and thus waived those claims.

It is contended, further, as to this claim, that there is no evidence of service of notice of lien on the owner or agent, nor any evidence of posting of notice. Reliance is placed by claimants on the allegations of service in the cross-bill, and the production of the affidavit of such service, filed with the register of deeds. This made a prima facie case. This question was settled in Bourget v. Donaldson, 83 Mich. 478.

It is contended, further, that though proof of service is made by the affidavit, yet the service was made outside the county, and was therefore not in compliance with the statute. The affidavit states:

“That on the 25th day of August, A. D. 1893, he served a statement of amount due and claim for a lien, * * * with a notice, * * * upon the Chicago & West Michigan Railway Co., a corporation, * * * by serving the same personally upon Charles M. Heald, general manager of said railway company, by handing the same to him personally on said 25th day of August, A. D. 1893.”

There is no showing that the claim was served within the county where the property is situate. The affidavit of service is made by Walter F. Mercer, who swears that he resides at Grand Rapids, and is the agent of Sproul & McGurrin, who reside at Grand Rapids. It is evident that the case was heard below upon a service which admittedly was made at Grand Rapids, and outside the county where the property is situate. Counsel • claim that this point was not raised below, but we think the objection that the affidavit “does not show a legal service of the papers” sufficiently raises the question. Section 6 of the act of 1893 is fully set out in the discussion of the Hannah & Lay claim, and provides for the service of notice of lien. The question of personal service was settled in discussing that claim. The point now raised is whether the service upon the owner must be made within the county. We think that this section fully settles the question that the service, if made upon the owner, must be made within the county. If the owner can be found within the county, notice must be served upon such owner. The section negatives the idea of service anywhere else upon the owner. No other service upon the owner is recognized. If not served upon the owner within the county, then service may be made upon the agent within the county having charge of the property; and, if no service can be made upon either within the county, then by posting upon the building. These are the specified modes of service, and the general rule is that, where a specified mode of service is pointed out, that mode must be followed. This claim must therefore fail for want of proper service of notice, and the cross-bill must be dismissed, with costs of the court below to defendant railway company.

J. W. Travis é Son olaAmi.

These lien claimants were also made defendants in the three suits first named, and filed answers in the nature of cross-bills; and under a stipulation with the solicitors for the defendant railway company they were to have the same relief as they would have been entitled to had they filed original bills. The notice of lien was served on “George E. Hunt, having in charge such premises -within the county wherein the property is situated.” The only objection urged against this claim is that relating to the description of the property. Section 5 of the act of 1891 provides that- the claim of lien shall contain “a correct description of the property to he charged with the lien.” It is contended that no such correct description is contained in the claim of lien. While we think the description of the land is imperfect, the building itself is accurately described. Subdivision 4, § 9, Act No, 199, Laws of 1893, provides for a decree against the building alone, and under that provision the lien will beheld good against the building. The decree in this case will therefore be modified so that a sale of the building alone may be made, unless the lien is paid within -60 days from the entry of modified decree here. J. W. Travis &. Son will recover their .costs of both courts from defendant railway company.

The defendant railway company will recover the cost» of this Court to be taxed against the Hannah & Lay Mercantile Company, James A. Boots, the J. E. G-reilick Company, and Sproul & McGurrin in equal proportions* Only one record is presented here, and but one brief by the railway company in all the cases. One solicitor’» fee only will therefore be taxed.

The other Justices concurred.


text:
    Peter Boyer v. Nathaniel Soules.

      Statute of frauds — Promise to pay debt of another — Agreement to indemnify eo-surety — Interest of promisor — Evidence— Settlement — Duress—Appeal—Waiver of objections.

    1. The verbal promise of a mortgagee to indemnify a third party from loss if he will become eo-surety with the mortgagee in a bond given by the mortgagor on the replevin by him of the mortgaged property from attaching creditors of the vendor of the mortgagor, who attack the sale and mortgage as fraudulent, is an original undertaking, and not within the statue of frauds.
    '2. An objection that there was no evidence warranting the submission to the jury of a particular claim will not be considered where the record does not purport to contain all of the evidence on that subject.
    3. Where a defendant, who has introduced in his defense the receipt of the plaintiff showing a settlement of the claim sued upon, requests the court to instruct the jury that; unless •. they find that the settlement was procured by duress, their verdict should be in his favor, it will be presumed on appeal that there was sufficient evidence to warrant the submission of the question of duress to the jury.
    4. The purchaser of a stock of goods mortgaged the goods, after which they were attached by creditors of his vendor, and he replevied them from" the creditors. The mortgagee induced another party to become co-surety with himself in the replevin bond by promising to indemnify him from loss in doing so. Judgment passed for the defendants in the replevin suit, and also in their favor in a suit brought upon the replevin bond. In a suit, brought against the mortgagee by his co-surety to recover the money by him paid on the latter judgment, the court admitted in evidence in. the plaintiff’s favor-the files and records in the attachment suit. And it is held that it was a case in which the broadest latitude of investigation was permissible under the claim of the plaintiff that the replevin suit was in fact for the benefit of the defendant, and that the court did not err in receiving said evidence.
    Error to Eaton. (Smith, J.)
    Argued February 15, 1895.
    Decided April 16, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Garry O. Fox and Yerhon H. Smith, for appellant.

      James M. Powers and Lymam E. McCall, for plaintiff.
   Long, J.

Plaintiff’s claim is that about the 1st. of July, 1886, David E. Hollenbeck and wife were engaged in. the mercantile business in Eaton county, under the name of D. E. Hollenbeck & Co. This firm sold out its entire stock of goods to William M. Crane. The defendant, Soules, assisted Crane in making the purchase by loaning him money to the amount of $8,000, taking Crane’s note therefor, and a chattel mortgage on the entire stock of goods as security for the amount. At the time of the sale of the goods to Crane, the firm of D. E. Hollenbeck & Co. was indebted to Allan Shelden & Co., of Detroit, in the sum of $4,000, as well as in large sums to other creditors. On July 17, 1886, Allan Shelden & Co. sued out a writ of attachment against D. E. Hollenbeck & Co., and the sheriff of Eaton county levied upon the entire stock in the hands of Crane, it being claimed that the sale to Crane and the mortgage to Soules were fraudulent and void as to creditors. The goods were inventoried at the sum of $4,685.03. Crane and Soules desired to replevin them, and on July 29 a writ of replevin was taken out by Crane, and the goods were seized by the coroner and turned over to Crane on1 July 30, 1886., Defendant, Soules, signed this replevin bond with Crane. Crane then came to plaintiff, Boyer,' to sign the bond as one of the sureties, which he refused to do, and thereafter Soules came to him and represented that he knew all about the Crane affair, and that he (Soules) was secured for the whole matter, and, if he (Boyer, the plaintiff here) would sign the bond With him (Soules), he “should never have to pay a copper on the bond, and he [Soules] would pay any liability that might arise on it.” Upon this assurance the plaintiff signed the bond, which was given for the sum of $9,500. The replevin suit was tried, resulting in a verdict and judgment in favor of the defendant in that suit, who waived return of the property, and a money judgment was entered against Crane for $4,685.03 and costs of $547.10. Execution was issued thereon against Crane, and returned unsatisfied, and suit was then brought on the bond, and judgment rendered against Crane and the sureties, the parties here, for $5,323.27 and hosts of $26.70. Execution was issued on this judgment. Crane was insolvent, and Soules had disposed of all his property before the execution issued. The sheriff levied the execution upon the farm of Boyer, and threatened to sell the farm unless the amount was paid, with costs. To save his farm, Boyer raised one-half of the money due on the execution. He did this because Soules refused to pay any amount whatever unless the plaintiff would pay one-half and give him (Soules) a receipt in full for all claims against him. This Boyer at first refused to do, when the attorney of Soules stated to him that no money would be paid by Soules if the receipt was not signed. The sheriff then stated to Boyer, in the presence of the attorney of Soules, that if nothing was going to be settled he should collect the whole amount of Boyer. Boyer paid one-half of the amount and Soules paid the other half. This suit is brought to recover from Soules the half paid by Boyer. Testimony was given on the trial on the part of the plaintiff tending to support his claim.

There is no dispute but that the bond was signed by the plaintiff at the request of Soules, and under his promise to save plaintiff harmless, and upon which promise he relied. It is not contended, either, but that at the time the plaintiff signed the bond Soules had a chattel mortgage upon the property replevied, and was desirous to aid Crane in getting possession of the stock to protect his mortgage interest. It is contended, however, that the promise of Soules was a collateral one, and made solely for the benefit of Crane, and therefore within the statute of frauds. The evidence shows conclusively that at the time this agreement was made Soules assured the plaintiff that he had security enough to pay the whole thing; and it also appears as conclusively that at that time Soules actually had a chattel mortgage on the goods to the amount of over one-half their value. It is apparent, therefore, that if Crane failed to hold the goods undpr his purchase from Hollenbeck & Co. the Soules mortgage would be worthless.

But, aside from the consideration of the security which Soules had, the promise was not a collateral one, and therefore not within the statute of frauds. It was an original undertaking to save the plaintiff harmless. A promise by one person to indemnify another for becoming a guarantor for a third is not within the statute of frauds. Such promise need not be in writing, and the assumption of the responsibility is a sufficient consideration for the promise. Chapin v. Merrill, 4 Wend. 657. It is settled that if. B. agrees with C. that, if he will execute an instrument as cosecurity for A., he (B.) will indemnify him from loss, such agreement, in a suit by B. against C. for contribution, will be enforced and held valid. Barry v. Ransom, 12 N. Y. 462; Mallory v. Gillett, 21 Id. 412; Taylor v. Savage, 12 Mass. 102; Story, Eq. Jur. § 498; Cutter v. Emery, 37 N. H. 567; Ross v. Espy, 66 Penn. St. 481; Creswell v. Wood, 10 Adol. & El. 460; Fennell v. Mulcahy, 8 Ir. Law R. 444. The statute enacts that “every special promise to answer for the debt,default, or misdoings of another person” shall be void unless actually signed, etc. The undertaking in the present case was not to pay a debt of Crane’s, but, if plaintiff would sign the bond or undertaking with Crane, Soules would save him harmless if plaintiff was called upon to pay anything thereunder. Such a case is fully discussed in Wildes v. Dudlow, 11 Moak, Eng. Rep. 788, decided in 1874; and Sir R. Malins, V. C., there remarks: “If one man could induce another to alter his line of conduct in that way, and then meet him with the statute of frauds, that statute, instead of being a protection against fraud, would be the direct means of fraud;” citing Thomas v. Cook, 8 Barn. & C. 728, where the case is fully discussed by Justices Bayley and Parke.

The present case need not, however, rest solely upon the naked promise of the defendant to save the plaintiff harmless. Here it is proved without contradiction that the defendant had an interest in the property replevied. He had a mortgage upon it for more than half its value. and assured the plaintiff that he had ample security in his hands to protect him. Belying upon this, the plaintiff signed the bond. The case in this view falls within the rule of Calkins v. Chandler, 36 Mich. 325, which follows the rule of Nelson v. Boynton, 3 Metc. 396, which is that “cases are not considered as coming within the statute when the party promising has for his object a benefit which he did not before enjoy, accruing immediately to himself.” This rule was followed in Bice v. Opera-House Building Co., 96 Mich. 24.

It is contended, however, that by the giving of the receipt the plaintiff settled any cause of action which he might have had against the defendant. The receipt is as follows, after entitling the cause:

“Whereas, judgment was heretofore rendered in said cause, costs taxed, which in all at this time amounted to the sum of $5,460.26, and for the collection of which amount execution had been issued and levy made upon the property (real estate) of the above-named defendants, Nathaniel Soules and Peter Boyer, and each of said last parties having paid his just proportion of said amount, viz., $2,730.13, the said Crane being irresponsible, it is hereby agreed on the part of said Boyer that, said Soules having paid his just proportion of judgment, costs, and expenses in said cause, that the said Boyer has no claim whatever against said Soules by reason of the signing of the bond upon which said above suit was brought, or in any matter or thing connected therewith; and this is considered a receipt in full for all claims and demands which I may have against said Soules at this date.”

While the receipt recites that the property of both had been levied upon, it appears that no property of Soules was actually levied upon. The levy was made upon some real estate that once stood in his name, but which he had conveyed before the levy was made thereon. The plaintiff contended that he gave the receipt under duress, and that question was left to the jury, who found in accordance with plaintiff’s contention. Defendant contends here that there was no evidence in the case which warranted the submission of that question to the jury; but, as the record does not purport to contain all the evidence on that subject, we cannot say that there was no evidence to warrant the charge. It is evident, however, that on the trial in the court below the defendant did not so contend, for he asked the court to charge the jury upon that very question as follows:

“A receipt containing an agreement of settlement between the parties of the subject-matter of this suit has been put in evidence by the defendant. In the absence of fraud-in procuring such settlement, or duress or undue influence, such settlement would be binding upon the parties, and is a complete bar to this action; and if you find that no fraud or duress or undue influence was used by Soules, or his agent or attorney, in procuring such settlement, then your verdict should be for the defendant.”

This request was given by the court, and the presumption is that there was sufficient evidence to warrant,the submission of that question to the jury.

It is further contended that the court erred in permitting the plaintiff to put in evidence the files and records in Shelden & Co. v. D. E. Hollenbeck & Co. We think it was proper to permit the plaintiff to go into the whole case for the purpose of showing the interest which the defendant had in the goods, and in the cases that were brought leading up to the giving of the bond in question. It was a case in which the broadest latitude of investigation was permissible under the claim of the plaintiff that the replevin suit was in fact for the benefit of .the defendant in the present case.

We have examined the other claims made, but find no error, and no further questions which require discussion.

As we think no error was committed which was prejudicial to the defendant, the judgment must be affirmed.

McGrath;, O. J., Grant and Montgomery, JJ., concurred. Hooker, J., took no part in the decision.


author: Montgomery, J. Grant, J.

text:
    Ira Carley and Edward L. Parmenter v. Roland C. Gitchell et al.

      Pvblio lands — Contract to convey homestead — Claim—Validity— License — Equity jurisdiction.

    1. ' A contract made in anticipation of the entry by the contractor of land under the United States homestead law, by which he agrees to sell to the contractee a portion of the land, and, upon acquiring the government title thereto, to convey said portion to the contractee, who in the meantime is to have the use of the same, is against public policy, and will not be enforced in a court of equity; citing Anderson v. Oarhins, 135 U. S. 483;
    2. Occupancy by the contractee of the contracted land for a period of time less than that required to create a right by prescription, and the making, with the knowledge of the contractor, of improvements thereon contemplated by the contract, will not create a license to use the land, irrevocable so long as the improvements are maintained.
    3. A proposed homesteader of government land contracted to sell, and convey when he should acquire the government title, to the owner of a mill site separated from the land by a river, which the contractee desired to dam, a strip of land upon which one end of the dam might rest, and such other portions of said land as might be flooded by reason of the erection and maintenance of the dam. The contractee, who under the contract was entitled to the immediate possession of the contracted land, in company with his grantee, to whom he had conveyed one-half of the mill site, constructed the dam, and erected a sawmill on the mill site, which they thereafter operated for 10 years,, during which time they used said strip of land for the storage of lumber, and erected buildings thereon for use in connection with their business, and flooded about eight acres of the land. The contractor entered the land as a homestead, and after his death it was patented to his widow, who sold and conveyed the entire land to third parties, and they brought ejectment against the contractee and his grantee, who thereupon filed a bill to enforce the specific performance of the contract and restrain the prosecution of the ejectment suit. And it is held that, the complainants not having obtained a title to the land such as is enforceable either at law or in equity, and having acquired no right by prescription, and having placed themselves in the position in which they are while acting under a contract void bn the ground of public policy, it is impossible to relieve, them without ignoring the rights of property, and assuming to make contracts for parties, or to punish one party to an illegal contract and thereby advance the interests of the other, which cannot be done any more on the equity side of the court than in a suit at law.
    Appeal from Menominee. (Stone, J.)
    Argued October 11, 1894, and reargued by order of the Court February 14, 1895.
    Decided April 16, 1895.
    Bill for specific performance of a land contract, or, if tbe contract cannot be enforced, then for a decree awarding tbe possession of tbe land to complainants for a term of years sufficient to fulfill tbe purposes of tbe contract. Complainants appeal.
    Decree affirmed.
    Tbe facts are stated in tbe opinions.

      Sawyer & Waite, for complainants.

      W. H. Phillips (B. J. Brotan, of counsel), for defendants.
   Montgomery, J.

Tbe conceded facts in tbis case are as follows: Complainant Parmenter, on April 3, 1883, purchased land for a sawmill site on Cedar river, in tbe S. W. corner of the S. W. I of section 35, township 35 N., range 27 W., in Menominee county. At tbis point tbe Cedar river runs nearly on the line between sections 31 and 35. On May 26, 1883, one Samuel McIntosh and Parmenter made a written contract, by which McIntosh agreed to sell to Parmenter a strip of land in tbe S. E. corner of the S. E. -} of section 31, 968 feet long and 132 feet wide, and also such other portions of tbe S. E. \ of tbe S. E. ^ as might be flooded or overflowed by reason of tbe building and maintaining of a dam by said Parmenter across said river when said river was at its usual height, for tbe sum of $3 per acre for all of said land so described. Said McTntosTi agreed to convey tbe title by proper deed to Parmenter, after he had acquired a good, sure, and. indefeasible title from the United States to said 40 acres of land, at which time the consideration was to be paid. Parmenter was to have possession of the strip. This agreement was duly recorded May 31, 1883. Soon thereafter Parmenter conveyed a half interest in this mill site to complainant Carley. The complainants immediately erected a mill upon their land upon the east bank of the stream, and constructed a dam, one end of which rested upon the land described in tbe above agreement. They also took possession of said strip, and have used it for storing lumber, and have erected some buildings thereon. The erection of the dam caused about eight acres to be flooded all the time, which, without the dam, would be flooded only in the spring and at the time of heavy rainfalls. The cost of their entire mill plant is $22,000. They occupied said mill property from .1883 to October, 1892, when this bill was filed. McIntosh made a formal entry of this land, 80 acres (S. of S. E. {-), under the homestead act of Congress, on the 25th day of June, 1883. He lived upon and occupied it, clearing and improving certain portions thereof, until March 13, 1888, when he died. His title would have become complete in June following. His widow made application under the homestead act, thereby succeeding to the rights of her husband, and obtained a patent September 1, 1891. December 24 following she conveyed the land by deed to the defendants. Prior to the entry of McIntosh, one Kenny had made entry of this 80 acres, and had made certain improvements thereon. For reasons unnecessary to mention, his entry and application were void. McIntosh was poor, and at the time he made the agreement Parmenter paid Kenny for his improvements, for McIntosh, who desired to make a homestead entry upon the land, and also the expenses of McIntosh in making the entry. The land was at that time of little value, not exceeding $3 per acre. Owing to the erection of the mill its value was increased to |12 per acre. After the purchase by the defendants, they brought an 'action of ejectment against complainants, who thereupon filed this bill in chancery, setting up the above facts, alleging the irreparable injury to them by the substantial destruction of their property, and praying for the specific performance of the contractj that they be decreed to be in the rightful possession of the property for the purposes of flowage, and that, if the contract cannot be enforced, they may be decreed to have possession for a term of years sufficient to fulfill the object of the mill plant and improvements. The case was heard upon pleadings and proofs, and the bill dismissed.

The circuit judge found this agreement between .McIntosh and Parmenter to be against public policy, and void under the homestead act. It will be noticed that the contract in question was made prior to the actual entry of the land as a homestead by McIntosh at the United States land .office, so that he was required to make both the preliminary affidavit under section 2290 of the Revised Statutes, and final proof of occupancy under section 2291. Section 2290 requires that the applicant shall make an affidavit, in which he shall state that such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person. Section 2291 requires that, in addition to proof of residence and cultivation, the applicant shall make affidavit that no part of such land has been alienated, except as provided by section 2288, which section authorizes a conveyance for church, cemetery, or school purposes, or for the right of way of railroads.

We think it is impossible to distinguish the present case from Anderson v. Carkins, 135 U. S. 483. In that case Anderson agreed with Oarkins, by an agreement bearing date December 16, 1876, to convey to him by good and sufficient warranty deed, on or before May 1, 1881, the land described. The land was entered as a homestead on the 7th of March, 1877. On the 31st of March, 18S4, Anderson made final proof under the homestead law. The land contracted to be conveyed by-Anderson had been in the possession of Carkins, who held it, together with 80 acres additional, as a timber claim, from 1873 to the time of the contract. He had broken and cultivated 40 acres, and planted on it 20 acres of trees. The improvements that he had made were of the value of $1,000, and it was in consideration of his relinquishing his claim to the 60 acres that the agreement to convey the land in question, one-half of the amount, was made. A similar consideration was furnished in the present case by Parmenter, he paying Kenny for the improvements which he had made upon the land prior to the entry of McIntosh. The Court, in Anderson v. Carldns, had no difficulty in holding that there was ample consideration for the contract, but it was held void on grounds of public policy. The Court said:

“There can be no question that this contract contemplated perjury on the part of Anderson, and was designed to thwart the poliey of the government in the •homestead laws, to secure for the benefit of the homesteader the exclusive benefit of his homestead right. Such a contract is against public policy, and will not be enforced in a court of equity.”

See, also, Mellison v. Allen, 30 Kan. 382.

But it is strenuously insisted that,—

“As McIntosh permitted the complainants to have possession of this land, and the use of the stream, with the right to attach their dam to his side of the stream, with knowledge that they were to build a mill, and as a matter of fact was knowing to the steps entered into by them to build and equip the mill at the large expense which they were to,” his acts should be construed as “at least a license, which in time might ripen into an easement, even if it had not after this lapse of time; and being a license acted upon, and upon which money was expended, it would be irrevocable so long as the mill of complainants was carried on and operated at that point.”

The occupancy has not been for a sufficient length of time to create a right by prescription, and it is but an evasion to say that that which could not be made the subject of agreement, because of public policy intervening to prevent it, can be sustained as a license, where the only attempt at license is in the execution of an agreement void in law. To sustain this contention would be in effect to malee a new contract for the parties, and we think it not permissible.

An attempt is made to bring this case within the case of Edwards v. Mining Co., 38 Mich. 46. In that case a bill was filed for an injunction. Defendant, at a cost.of some $60,000, had erected a stamp mill on the banks of Hill creek, and had been operating the same for some years. As a result of its operation, large quantities of sand were carried down by the waters of the stream, and deposited on the bottom lands below, and the evidence showed that it would be impossible to carry on the -mining operations of defendant with profit unless this were permitted. After the erection of the mill, the complainant purchased a piece of land, through which the water ran, a short distance below this mill, and upon which the mill, as operated, was depositing sand. This land was purchased for speculative purposes, and apparently under an expectation of being able to force defendant to buy it at a large advance on the purchase price. The real value of the land, except as a convenience to the business of defendant, was small. The Court held, in effect, that an injunction is not a process to be lightly ordered in any case, and is not a matter of right, and it was said:

“Wherever one keeps within the limits of lawful action, he is certainly entitled to the protection of the law, whether his motives are commendable or not; but, if he demands more than the strict rules of law can give hitn. his motives may become important. In general, it must be assumed that the rules of the common law will give adequate redress for any injury; and when the litigant avers that under the circumstances of his particular case they do not, and that, therefore, the gracious ear of equity should incline to hear his complaint, it may not be amiss to inquire how he came to be placed in such circumstances.”

It was further said in the cuse that—

“It is beyond question that complainant sustains a legal injury, for which he is entitled to suitable redress. The only question on this record is whether he is entitled to the special redress he seeks, namely, an injunction.”

And in conclusion it was said:

“If complainant wants more than is reasonable, he has a right to obtain it under the rules of law, but he cannot demand the aid of equity in a speculation. If, in speculative language, he has a corner in real estate, there is no greater reason why he should have the assistance of an injunction to aid his schemes than there would be if on the produce exchange he had effected a corner in grain. Without the writ, in either case he may be the sufferer, but he suffers nothing for which damages cannot compensate him.”

We have quoted from the opinion of Mr. Justice Cooley. In this case Chief Justice Campbell dissented, and Mr. Justice Marston did not sit; Mr. Justice Graves concurring in the result reached by Mr. Justice Cooley. But this case is an authority rather for the defendants than for the complainants. The effect of the decision was to remand the complainant to his suit at law, and this was put upon the ground that a court of equity is not bound to interfere by an injunction when an adequate remedy at law exists. Indeed, it was stated in distinct language:

* “He is entitled to his rights under the rules of law, but he is entitled to nothing of grace.”

In the present case this is precisely what the defendants aré asking by their action of ejectment. If they were before the court, asking an injunction, and the opinion of Mr. Justice Cooley in Edwards v. Mining Co. should be followed, an injunction would be denied them on the ground that they are entitled to their rights under the rules of law, but that they are not entitled to anything of grace, and they would be remanded to their remedy by an action at law. What a mockery this would be, if, after they were thus remanded to a court of law, and were prosecuting their suit, it would be open to the defendants in that litigation to turn about and file a bill to prevent them from pursuing the very remedy to which the court had remanded them.

This may be a hard case for the complainants, but, they not having obtained a title to the land such as is enforceable either in equity or in law, and having acquired no right by prescription, and having placed themselves in the position in which they are, acting under a contract void on the ground of public policy, we find it impossible to relieve them, unless we shall ignore rights of property, and assume to make contracts for parties, or punish one party to an illegal contract and thereby advance the interests of the other. This we cannot do any more on the equity side of the court than in a suit at law.

• The decree of the court below will be affirmed, with costs.

McGrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J.

Grant, J.

(dissenting). It is contended that the agreement between McIntosh and Parmenter is against public policy and void, because, under the terms of the homestead act, neither McIntosh, had he lived, nor Mrs. McIntosh, could have completed the evidence required to obtain a certificate and patent without commit^ ting perjury. In making such proof the applicant is required to make “affidavit that no part of such land has been alienated.” It is argued that this agreement was an alienation within the meaning of the law. The case of Anderson v. Carkins, 135 U. S. 483, is relied upon to support this contention. The decision of that Court in such cases is binding upon the state courts, and must be followed. Our only inquiry, therefore, is directed to the question whether that case governs this. The facts are wholly dissimilar. In that case the consideration was paid. The agreement recited that Anderson, the homesteader, had sold the land to Carkins, and had agreed to give a deed at a specified time, which was before the expiration of the five years. At the time the contract was made, — December 16, 1876, — Carkins had been in possession of the entire quarter section, which he had held as a timber claim, from 1873. The contract was made in contemplation of Anderson’s taking the land as a homestead. Carkins had made improvements to the value of $1,000, and relinquished his possession to Anderson, who was to enter into possession to acquire the title under the homestead act, and convey one-half the land to Carkins in .payment for the improvements. March 7, 1877, Anderson entered the land as a homestead. Under these facts it is too clear to require argument that the scheme was in direct violation of the homestead act, and that there was ño bona 'fide intention on the part of Anderson to make the land a homestead. Obviously he could not make the requisite proof without committing perjury. Equity will not interfere in such a case. In the present case there is nothing to indicate bad faith on the part of McIntosh in making his homestead entry, nor on the part of Parmenter in entering into the contract. The location and erection of the mill greatly enhanced the value of the entire land entered by McIntosh. A homesteader may convey the land the next day after his entry and occupation have ripened into a title. There is much force in the argument that a man may contract lawfully, before he has obtained title, to do that which he has a clear right to do after he has obtained it; and it may not be entirely free from doubt that the federal courts would not so hold. But the language of the Court in Anderson v. Carkins is very broad. Besides, it cites and quotes with approval Mellison v. Allen, 30 Kan. 382, which was also written by the same justice, who was then a justice of the supreme court of Kansas. Eeferring to that case, we find the issue stated as follows:

“It will be perceived that the single question is whether the contract to convey, made prior to the ripening of his homestead right and the proving up of his homestead claim, was a legal and valid contract, and one whose specific performance equity will enforce.”

It does not appear in this case whether the deed of conveyance was to be made before or after the perfection of the title in the homesteader. This language, however, covers the contract in the present case; and, notwithstanding the good faith of the parties to it, and the strong equity in behalf of the complainants, we do not feel at' liberty to hold to the contrary. In this respect, therefore, the decree of the court below must be sustained.

I think, however, that the complainants are entitled to relief to prevent the destruction of the dam, one end of which rests upon the defendants’ land. The dam and mill plant were erected with the express assent of. McIntosh, and with the knowledge and acquiescence of his wife. Both were greatly benefited thereby. The defendants purchased with full knowledge of these facts and of the situation. They possess no rights, legal or equitable, other than those possessed by Mr. and .Mrs. McIntosh. A trifling amount would, in any event, compensate them for all the damages sustained, while the destruction of the dam would work irreparable injury to the complainants, causing a loss of many thousands of dollars. The land overflowed is comparatively worthless, and is overflowed in its natural state some portions of the year. We think this branch of the case is clearly within the rule enunciated by this Court in Edwards v. Mining Co., 38 Mich. 46. In that case the land, useful for only the same purposes as this, was' covered with stamp sand from the defendant’s stamp mill, which practically destroyed its valué. In the present case it is covered with water. The forcible language of Mr. Justice Oootucy in that case is equally applicable here, and we refer to it without quoting it. While the purpose of the defendants in making the purchase is not as clearly shown upon the record as was that of Mr. Edwards, still we cannot shut our eyes to the situation, nor to the conclusion, that their purpose waá the same. The defendants can be amply compensated in a suit at law for the small damage, if. any, sustained, and to this remedy the court of equity will leave them.

It is, however, urged that complainants are not the owners of the land seeking relief, as was Edwards, and that courts of equity will not restrain a land-owner from prosecuting a suit to enforce his strict legal rights. Belief in equity is not circumscribed by such a narrow and technical rule. Its province is to relieve from the enforcement of strict legal rights and remedies, where equity and good conscience require it. To hold otherwise would be to abandon the substance for the shadow. The principle established in the Edwards case should govern in the present one, and this cannot be determined by the answer to the question, who is the moving party? Had- the Allouez Mining Company sought relief from some legal action on the part of Edwards, which would have prevented the flowing of the sand over his land, and destroyed the stamp-mill plant, would the court have replied to it, “You can have no relief from this action, notwithstanding it results in the ■destruction of your property, causing you great and irreparable injury, although Edwards will suffer only nominal damages?” If the Allouez Mining Company had ■erected a dam across the stream for the storage of water with which to run its mill, as was often done in that region, and, by the express assent of Edwards or his grantor, had placed one end of its dam against and upon the bank of his land, and had Edwards brought an action of ejectment to oust it, or threatened to remove the dam upon his land, he would have been seeking the enforcement of his strict legal rights. If the company had then appealed to the chancery court to restrain such suit or threatened action, would the court have held that Edwards was pursuing his strict legal right, and the court was therefore powerless to grant relief? If, in the present case, the entire dam were on the complainants’ land, the defendants, under the principle established in the Edwards case, could not obtain its removal, but would be left to their remedy in a suit for- damages for overflowing their land. Can' the rule be different simply because one end of the dam rests upon the defendants’ land? It is difficult to imagine a stronger case for the interposition of a court of equity, whose peculiar jurisdiction is to grant relief from the enforcement of a strict legal right, where justice and good conscience require it, and where irreparable injury will result to the one party, w7hile the other can be amply compensated in a suit for damages. The language quoted in the opinion of my Brother Montgomery from the decision in the Edwards case must be read and interpreted in the light of the fact that in that case the sole remedy of Mr. Edwards was by suit to recover damages for the virtual destruction of his property.

Complainants seek to have the decree of the court below modified so as to restrain the defendants from interfering with the dam as it existed at the time of their purchase, until they shall have time to cut and manufacture the timber for which their plant was constructed. I think the decree should be so modified, and the case remanded to the conrt below, with the instruction to permit the parties to produce further testimony if desired, and to determine the time -which the complainants shall have for that purpose. I think no costs should be allowed.


author: Montgomery, J. McGrath, C. J.

text:
    Louis Fritz v. The Detroit Citizens’ Street Railway Company.

      Street railways — Collision while attempting to cross track — Contributory negligence.

    1. in the absence of something to excuse the performance of that duty, it is incumbent upon the driver of a vehicle in a public street traversed by a street railway, before attempting to turn across the track, to take proper means of ascertaining whether or not the way is clear, and this is especially true where the attempt is made in the middle of a block, or at any place other than a regular crossing; citing Watson v. Railway Co., 53 Minn. 551.
    2. In a personal injury case it appeared that the plaintiff was driving a milk wagon alongside of and near to a street-railway track; that, when near a street crossing, he suddenly ' turned and attempted to cross the track, and the rear end! of his wagon was struck by a motor car, which had been following him for some distance; that the motorman did not see in advance, nor until a very few seconds before the collision actually occurred, that the plaintiff was about to attempt to cross the track. And it is held that the rule that ■ the fact of a precedent negligence of a plaintiff, resulting in producing a situation known to the defendant, who, after the discovery of such condition, may, by the exercise of care, avoid injury, is not a contributory cause to an injury thereafter produced by disregard of this discovered condition, is-not applicable to the ease.
    Error to Wayne. (Lillibridge, J.)
    Argued February 15, 1895.
    Decided April 16, 1895.

      Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinions.

      Eeena & Lightner, for appellant.

      Russel & Campbell and A. C. Angell, for defendant.
   Montgomery, J.

This is a case of collision. There was testimony tending to show that plaintiff was driving north on Woodward avenue in the city of Detroit, in a milk wagon. It was covered at the sides and behind. There was an opening of two feet wide opposite the driver’s seat. In front there was an opening across the wagon about two feet in depth, between the dashboard and the hood. This and the openings at the sides were the only aperatures through which plaintiff could look out, as his back curtain was down. On the left side of the wagon he had 11 or 12 empty milk cans, each three or four feet high. He could not, on account of these cans, well look out of the left side of the wagon. Plaintiff was familiar with the locality. After turning onto Woodward avenue, he drove past Lamed street, and to near the corner of. Woodward and Congress. There were three horse cars ahead of him on the Woodward-avenue line, going north, and on the opposite side of the street a Michigan-avenue car was going south. Plaintiff testified that when about 50 feet in the rear of the last horse car, and just before he got to the crossing on Congress street, he turned across the track, and when on the track the rear wheel of his wagon was struck by defendant’s motor car. He testifies:

“I was watching my way ahead to get across, and was driving my horse at the usual 'gait. I did not see the car at all before the accident. I never noticed the car. I did not hear any gong rung. They always used to ring a bell at every crossing since they had electric cars. Some gongs rung very hard, but this one never rung, I don’t think; either a little one or a big one. I heard nothing, and I think I would have heard the gong if it had been rung.”

And on cross-examination he testified:

“Before I started to turn across the track, I did not look out of the side window to see if anything was coming from the south, because I did not notice any danger. I had to watch ahead. That is what I was looking for. I wanted to get across the track, and, if I had noticed anything, I would not have gone right ahead. * * * I listened to see if I could hear anything, and passed right, across after the Michigan-avenue car was coming up the street. ■ I didn’t stop my horse after I turned from Jefferson. I cannot tell just how fast I had been coming up Woodward, but I was just trotting along at the usual gait, same as milk wagons usually go.”

Joseph M. Kehoe, a member of the police force, testified that he noticed the milk wagon cross Woodward avenue; that the Michigan-avenue car slacked up, and the Woodward-avenue car, bound north, “came right along at a fair rate, and hit the milk wagon in the back, the back hub, and turned the wagon over.” He also testifies that he thinks the motor car could have stopped before it got to the milk wagon. The defendant produced Phineas J. Tucker, who saw the accident from the street, and who testifies that his attention was called by the ringing of the gong, and that the wagon was about 15 feet ahead of the car when the wagon got fairly on the track. Orla B. Taylor testifies on behalf of the defendant that he was riding on the front seat of the car; that, when he first noticed the milk wagon, it was going north, right along the track, possibly eight or ten feet in front of the car, and on the east side of the east ■track; that the west wheel of the wagon was within an inch or two of the track, running very close to the rail, and possibly over upon the'track; that, the wagon being in this position as they came up, the motorman sounded his gong; but that, as they came up to the south crossing of Congress street, the wagon turned suddenly to the west, being diagonally across the track; that, at the time it turned, the hind end of the wagon was not more than six or eight feet — ten feet at the outside — from the front of the car; that the wagon had been going slowly, and the car was keeping right along behind the wagon; that the motorman began' to turn the brake immediately after the wagon swung. He was corroborated in this by the conductor and the motorman. Upon this testimony the circuit judge directed a verdict for defendant, and the plaintiff brings error.

In determining whether the instruction of the circuit judge should be sustained, it will be well to recall briefly the general rules relating to the rights and duties of the respective parties. The driver of a vehicle in a public street traversed by a street railway is bound to take notice of the conditions. He knows that the street cars run in grooved tracks, and that it is therefore impossible for the driver or motorman to turn out to avoid collision with an object on the track; that the only means of avoiding collision is by stopping the car; and that this cannot be done instantly. It is therefore negligence for the driver of a carriage to suddenly turn directly in front of an approaching car, whether the car be coming from the direction in which he is driving or from the rear. We think it is also true that, in the absence of something to excuse the performance of that duty, it is incumbent upon the driver of such a vehicle, before attempting to turn across the track, to take proper means of ascertaining whether the way is clear, and this is especially true of an attempt to turn across the track in the middle of a block or at any place other than a regular crossing. See Watson v. Railway Co., 53 Minn. 551. This the plaintiff failed to do in this case. Unless he had the right to assume that there was no car in the rear with which he was likely to come in contact, or unless he had the right to rely upon his failure to hear the sound of the gong, it was clearly negligent for him to turn across the track suddenly, and without assuring himself by proper investigation that no car was coming. Booth, St. By. § 315. In fact, until the car approached the crossing, it is very doubtful whether it was the duty of the motorman to sound any gong. So long as the plaintiff was traveling in the same direction, and at such a gait as would not result in collision, it cannot be said that the motorman had any occasion to sound the gong, as he would have no reason to apprehend that the plaintiff would come to a stop or make a short turn across the track.

But it is said that there was testimony from which the jury might have inferred that the plaintiff’s position was discovered in time to enable the defendant to avoid the collision. It is a rule recognized by repeated decisions of this Court, and maintained by text-writers, that the fact of a precedent negligence of plaintiff, resulting in producing a situation or a condition known to defendant, who, after the discovery of such condition, may, by the exercise of care, avoid injury, is not a contributory cause to an injury thereafter produced by disregard of this discovered condition. One of the earliest cases to lay down this rule is Davies v. Mann, 10 Mees. & W. 546. This rule is well stated in Bish. Non-cont. Law, § 466:

“It is sometimes very correctly said that, if one discovers another to have been negligent, he must take precautions accordingly, omitting which he is liable to the other for the damages which follow from his own want of care; for, however nearly related two separate negligences may be, the one cannot bar an action for the other unless it is contributory, and, though an unseen position might contribute to an accident, a discovered one cannot.”

See, also, Citizens' Street Railway Co. v. Steen, 42 Ark. 321.

This rule has been applied by this Court in street-railway cases. See Laethem v. Railway Co., 100 Mich. 297, and Montgomery v. Railway Co., 103 Id. 46. In each of these cases the situation of plaintiff was such that it was apparent to the motorman that, if the car continued in its course, a collision would be inevitable, and this was apparent to him for a considerable time before the collision. Do these cases necessarily rule the present? In this case it is apparent that the collision was of a sudden. The motorman did not see in advance that the plaintiff was about to cross the track, nor until a very few seconds before the collision actually occurred. It Is not a case in which the plaintiff had been driving up the track, and was run down by the motorman, but an attempt to cross the track, unexpected and sudden. If we assume that, under these circumstances, the plaintiff had by this act placed himself in a position where his negligence might have been discovered and the car brought under control, it will result that, in every case where an attempt to cross ahead of a street car is made, the question of whether there was a timely discovery of the - situation will turn upon whether the motorman could have stopped his car after the attempt was made, and it would follow that, if he could, his negligence will authorize a recovery, notwithstanding the contributory negligence of plaintiff. With such a rule, there could no longer be any such thing as contributory negligence, defeating a recovery, in any case where the defendant’s negligence consists of failing to control the car. We think the circumstances of this case are not •such as to justify the application of the doctrine of Davies v. Mann and kindred cases, and that the plaintiff’s negligent act must be held to have directly contributed to the injury. See Railway Co. v. Chatterson (Ky.), 29 S. W. Rep. 18; Boerth v. Railroad Co., 87 Wis. 288.

Judgment affirmed.

Long, Grant, and Hooker, JJ., concurred with Montgomery, J.

McGrath, C. J.

(dissenting). Plaintiff, going north, undertook to cross the street upon which were cars in the immediate locality, going south. His view of the •rear was cut off by tlie construction of tbe vehicle upon which he Avas riding. He says that he listened and heard no gong, and that he thinks that he would have heard the gong had any been sounded. The witness Kehoe, a policeman, says that, at the time the wagon started to go across the avenue, no gong was sounded by the’motorman; that he took particular notice of that, speaking to the conductor about it; and that “the motor car could have stopped before it got to the milk wagon; it had lots of time.” The witness Taylor says that the motor struck the wagon north of the middle of Congress street; that at the south cross-walk of Congress street the wagon turned to the west; that he first observed the wagon about midway between Lamed and Congress streets; and that at that time the west wheel of the wagon was within an inch or two of the track, running very close to the rail,-and possibly over upon the track. Tucker says that, when the motor struck the wagon, it was not far from the middle of Congress street, but it would be nearer the north line of Congress. Taylor says the wagon was crossing Congress street diagonally. The motorman testified, that when the wagon turned to cross the track, the wagon and car were 12 -feet apart. The witness Tucker says that the wagon was 15 or 20 feet ahead of the car when the wagon got on the track. The court directed a verdict for the defendant, and we are bound by that view of the testimony which is most favorable to the plaintiff.

From the testimony given, if a jury had found that plaintiff was within the lines of Congress street when he undertook to make the crossing; that at that time the car was 20 feet behind the wagon; that for some distance prior to that time the wagon had been within a feAV inches of the track, as stated by the witness Taylor; that no gong was sounded until after plaintiff had turned in upon the tracks, and was in the’ act of crossing; that plaintiff was giving, and was necessarily giving, some attention to the south-bound cars; that the motorman, had he kept'his car under control, could have stopped the car before he struck the wagon, — no court would have been justified in setting aside the verdict. I concede that the driver of a vehicle in a public street traversed by a street railway is bound to take notice of the conditions. But this is not a one-sided obligation. Streetcar companies are bound to recognize the rights of others to the use of the street, and, in approaching a vehicle upon the track, they are bound to take notice of the conditions that environ the driver of that vehicle. I cannot subscribe to the doctrine that a party entitled to use a public street is chargeable with knowledge, under all circumstances, of the approach of a car from the rear. A driver upon the track, or in close proximity to it, himself so circumscribed that he cannot see, is entitled to a warning before being run down. In the present case, according to the motorman’s testimony, he had seen the wagon for some distance prior to the collision; and the witness Taylor says that during all that time the left wheels of the wagon were within an inch or two of the track, and possibly over upon the track. The danger was in no sense undiscovered. It was, in any event, the duty of the motorman to observe and to see the danger. The case should have gone to the jury.