text:
    PEOPLE v. BARLOW.
    1. Paupers — Residence—Incompetent Persons.
    An incompetent person living with her foster parents for many years, from her childhood and until their death, acquires a residence at the place of their domicile, which she does not lose by working for a person in another county under a contract of employment made by her guardian.
    2. Criminal Law — Taking Case prom Jury — Respondent’s Testimony.
    A criminal case will not be reversed for refusal to take the case from the jury at the close of the people’s testimony on the ground that the proofs did not show aprima facie case, if the testimony subsequently introduced by respondent supplied the omission in the people’s testimony.

      3. Same — Removal of Pauper — Superintendents op Poor.
    It is no defense to a prosecution against the keeper of a county house for the illegal removal of a pauper to another county, that such removal was in obedience to the order of the superintendents of the poor.
    Exceptions before judgment from Lenawee; Chester, J.
    Submitted June 12, 1903.
    (Docket No. 147.)
    Decided September 15, 1903.
    John Barlow was convicted of illegally bringing a pauper into a county other than that in which she had a residence.
    Affirmed.

      Forrest C. Badgley and Charles H. Smith, for appellant.

      Theodore M. Joslin, Prosecuting Attorney (J. N. Sampson, of counsel), for the people.
   Hooker, C. J.

Section 4514 of the Compiled Laws provides:

“Any person who shall send, carry, transport,-remove, or bring, or who -shall cause or procure to be sent, carried, transported, removed, or brought, any poor or indigent person from any township, village, city, or county into any other township, village, city, or county, or from any other State or country into any. county in this State, without legal authority, and there leave such poor person, or who shall entice such poor person so to remove, with the intent to make such county to which the removal shall be made chargeable with the support of such pauper, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be imprisoned in the county jail not exceeding three months, or fined not exceeding one hundred dollars, or both such fine and imprisonment, in the discretion of the court.”

The appellant was keeper of the county house in Jackson county, and was convicted, under the statute quoted, upon a charge of having taken,, sent, or removed one Harriet Marsha, a poor and indigent person, from Jackson county, Mich., into the township of Woodstock, Lenawee county, without legal authority, and of having left her with the intent to make the said township chargeable with her support. The respondent was first tried and convicted before a justice of the peace in Lenawee county, and after-wards in the circuit court for said county. Upon the last trial the prosecuting attorney introduced evidence tending to show that Harriet Marsha was taken by a family named Ambler, then residing in Lenawee county (with whom she soon after removed to Jackson county), when she was a young girl, about 10 years old, from the county house, or from persons who brought her into the county, as an indigent child. That was 40 or 60 years ago. She lived with the Amblers for many years, and until they died. She was left $75 by the will of Mrs. Ambler, and one Fish was appointed her guardian by the probate court for Jackson county. She afterwards lived with Fish until 1899 or thereabouts, when John Hull came to procure her services as help in his family. He made a bargain with reference thereto with her guardian, and she lived at his house in Woodstock, Lenawee county, upwards of two years, when she was returned to Fish, where she remained until her money was exhausted, when, upon the order of the supervisor, she was sent to the poorhouse in Jackson county. The officers of the poor, learned that she had lived with Hull in Lenawee county, and, doubtless, of her earlier residence there. The subject was brought to the attention of the board of superintendents of the poor of Jackson county, which directed the chairman to go to Woodstock and investigate the matter, which he did, and made a report, whereupon the board determined to and did instruct Mr. Barlow, the defendant, to return the woman to Mr. Hull or the supervisor. This was upon the claim that she was a charge upon Lenawee, and not upon Jackson, county. The defendant claimed that he did not know that Mr. Hull lived in Lenawee county, and it is urged that this fact, and the fact that he acted under orders of the superintendents of the poor; constituted a defense, for the reason that it indicates legal authority and absence of unlawful intent. It is not disputed that he" learned before he left Hull’s, if he did not know before, that Hull lived in Lenawee county. The court left the question of her residence to the jury; also the question of defendant’s intent and authority.

Defendant’s counsel contends:

1. That the judgment should be reversed for the reason that, when the people rested, a prima facie case had not been made out.

2. That, under the law, Mis3 Marsha was a resident of Woodstock.

3. That Lenawee county was the domicile of origin of Miss Marsha; that she was always non compos mentis, and the burden could not be shifted to Jackson without showing that she removed with her legal parents.

4. That, at all events, she was a nonresident of Jackson county, and a resident of Woodstock, with the consent of her guardian.

5. If she was a resident of Woodstock, it was the duty of the superintendents of the poor of Jackson county to send her there. This they did, through Mr. Barlow, who acted under legal authority, — i. e., instrúctions from his. superiors, — without intent to violate the law.

In our opinion, there was a prima facie case made out by the people. Defendant did not rest upon his motion, however, but offered testimony which tended to strengthen the people’s case in some respects. In such a case the determination of this question involves all proof. . The undisputed testimony would have justified an instruction that Miss Marsha was a charge upon Jackson county. While possibly an incompetent, the testimony indicates that she lived with foster parents from childhood until their death. They made some provision for her by will, and she remained at the place of their domicile. Under the circumstances, the jury could not do otherwise than find, and the court might have instructed them, that she acquired a residence in Jackson with them, and did not lose it through her employment.by Mr. Hull.

We are not aware that any law of this State requires the keeper of a county house to obey the order of the superintendents of the poor to transport inmates of his house to another county, and, if he does so, he is equally liable with, them, if he transgresses the law. The subjects of his authority and his good faith were left to the jury, which found against him. We think it unnecessary to refer at length to other alleged errors. None of them could well have injured the defendant in the view we have taken of the case.

The conviction is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    DOYLE v. PELTON.
    1. Pleading — Common Counts — Driving Logs.
    An action on the common counts in assumpsit will not lie to recover expenses incurred in breaking a jam and driving logs in a stream under 2 Comp. Laws, § 5075; the declaration should state the facts constituting the cause of action.
    2. Same — Assumpsit.
    An action of assumpsit will not lie to recover the expenses of plaintiff in merely moving defendant’s logs to one side of a stream, so as to permit his own logs to float down the stream.
    3. Logging — Breaking Jams — Statutory Remedy.
    Expenses incurred in merely moving defendant’s logs to one side of a stream, so that plaintiff’s logs can be driven through, cannot be recovered in an action brought under 2 Comp. Laws, § 5075, providing a remedy for expenses incurred in breaking a jam and driving the logs of another.
    4. Pleading — Amendments—Torts—Assumpsit.
    The court will not allow an amendment adding a count in tort for obstructing á stream to a declaration in assumpsit.

    Error to Cheboygan; Shepherd, J.
    Submitted June 20. 1903.
    (Docket No. 76.)
    Decided September 15, 1903.

      Assumpsit by William H. Doyle and William P. Doyle, copartners as Doyle & Son, against David C. Pelton and William Reid, copartners as Pelton & Reid, for expenses incurred in moving defendants’ logs. Prom a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Gross & Harpster, for appellants.

      Frost & Sprague, for appellees.
   Carpenter, J.

Under a declaration on the common counts in assumpsit, plaintiffs sought to recover, in the circuit court for the county of Cheboygan, for expenses incurred in moving logs of defendants in the channel of Pine river, in the counties of Mackinac and Chippewa. The testimony of plaintiffs tended to show that, in order to use said river for the purpose of floating their own logs, they were compelled to and did move the logs of defendants ; that they did not drive defendants’ logs, but simply moved them to one side, so as to make a channel through which their own logs could pass. It was the claim of plaintiffs that, by reason of the above-mentioned facts, a cause of action accrued in their favor against defendants, which, according to section 5075, 2 Comp. Laws, could be enforced under their declaration. The trial court decided that this cause of action could not be enforced under a declaration on the common counts in assumpsit, and directed a verdict for the defendants.

This decision was correct, not only for the reason that plaintiffs should have stated in their declaration the facts which constitute their cause of action (see Chicago & Northeastern R. Co. v. Sturgis, 44 Mich. 538 [7 N. W. 213]; Anderson Carriage Co. v. Pungs, ante, 79 [95 N. W. 985]), but also for the reason that plaintiffs’ cause of action could not be enforced in an action of assumpsit. The case of Chapman v. Manufacturing Co., 20 Mich. 358, is not applicable. In that case it was decided that plaintiff, who, in order to drive his own logs, was compelled to, and did, break a jam of logs made by defendant, and drive said logs, was entitled, by section 5075, % Comp. Laws 1897, to recover his expenditure in an action of assumpsit. The section relied upon reads as follows:

“ If any person or persons shall put or cause to be put into any * * * river * * * of this State any logs, * * * and shall not make adequate provisions and put on a sufficient force of men for breaking jams of such logs, * * * or for running, driving, or clearing the same from the banks or shores of such * * ' * river, * * * and shall thereby * * * hinder or delay the running of any logs, timber, lumber, cedar poles, or other forest products in such waters, it shall be lawful for any other person * * * engaged in floating logs, timber, lumber, cedar poles, or other forest products in such * * * river * * * to cause such jams to be broken, and such logs * * * to be run, driven, and cleared from the banks of such * * * river, * * * at the cost and expense of the person or persons * * * owning the same; and such owner or owners shall be liable to the person or persons * * * doing or causing such work to be done for such costs and expenses.”

Subsequent language of the statute gives the person doing the work a lien on said logs for his charges, and the right to their possession until said lien is satisfied.

All that the plaintiffs in this case did, as heretofore stated, was to move the logs aside, so as to make a channel through which their own logs might be driven. We cannot hold that this is the work specified in the statute. Merely moving the l,ogs aside is not the equivalent of breaking the jam and driving the logs. The work of driving the logs is beneficial to their owner. It is no benefit to him — -indeed, it may be injurious to his interests — to move them to one side of the stream in which they lie. One who seeks the advantages of this statute should perform its obligations. It was held in the case of Chapman v. Manufacturing Co., supra, that the obligation of the owner of the logs to compensate the plaintiff might be enforced in an action of assumpsit, “under the theory of a promise to pay, adopting the conclusive presumption that every man promises to pay what it is his legal duty to pay;” or, as stated .in the case of Woods v. Ayres, 39 Mich. 345 (33 Am. Rep. 396), because “the statute simply imposes the duty to pay.” The statute does not impose upon the owner of logs the duty to compensate plaintiffs for merely making a passageway through those logs. If any such obligation exists, it arises under the principles of the common law, and not by virtue of the statute. It cannot, therefore, be claimed that the statute provides any remedy for the plaintiffs’ grievance. That remedy must be found in the principles of the common law. According to those principles, an action on the case for a tort is the appropriate remedy, if plaintiffs have any grievance whatever.

It follows from this reasoning that the court did not err in refusing to permit plaintiffs to amend their declaration, for the court did not possess power to permit plaintiffs to add a count for a tort to the common counts in assumpsit. See People v. Wayne Circuit Judge, 13 Mich. 206; 1 Chitty, Pl. pp. 108, 109.

The judgment of the court below must therefore be affirmed.

The other Justices concurred.


author: Hooker, C. J.

text:
    NOWLEN v. CITY OF BENTON HARBOR.
    1. Municipal Corporations — Paving Assessments — Estoppel.
    The owner of property abutting upon a street is estopped from denying liability for a portion of the expense of paving the street, where he knew the improvements were being made, and offered no objection to them.
    2. Same — Assessment Districts — Corner Lots.
    It is competent for a city of the fourth class to assess a Corner lot as an entire parcel in two special assessment districts for paving each street, provided it does not impose a greater burden than the statute permits.
    3. Same — Construction oe Statute — Preceding Tax Roll.
    1 Comp. Laws, § 3196, providing that no special assessment shall exceed 25 per cent, of the value of the land “as valued and assessed for State and county taxation in the last preceding tax roll,” refers to the last roll upon which State and county taxes have been spread, and not the roll of the current year, which has been approved by the board of review.
    4. Same — Limitations.
    Under 1 Comp. Laws, §§ 3196, 3295, an assessment may be made upon a parcel of land for 25 per cent, of its valuation for each improvement, but must not exceed 5 per cent, per annum of its valuation for all assessments.
    5. Same — Excessive Assessments — Equity.
    Complainant, in 1900, was the owner of one corner lot and two inside lots, assessed as one parcel for §2,500. He sold one of the inside lots for §1,800. In 1901 the council assessed the two remaining lots for a special paving tax on the basis of a valuation of §3,000, at which they were assessed in the general assessment roll for 1901. Complainant admitted they were worth §3,000. Held, that, as complainant came into equity, he must do equity, and the valuation of §3,000 was not excessive.
    Appeal from Berrien; Coolidge, J.
    Submitted June 24, 1903.
    (Docket No. 84.)
    Decided September 15, 1903.
    Bill by Albert R. Nowlen against tbe city of Benton Harbor and Adolphus S. Miles, city treasurer, to restrain the collection of a paving tax. From a decree for complainant, defendant city appeals.
    Modified.
    The city of Benton Harbor took steps to pave portions of two streets, .Wall and Main, which intersected each other at nearly right angles. The- complainant owned three lots, — No. 3, fronting only on East Main street; Nos. 1 and 2, fronting on East Main and Wall streets,— and in the year 1900 they were assessed together as one parcel at $2,500. Subsequently, and before proceedings to pave were taken, lot 3 was sold for $1,800. Separate resolutions were passed by the council on different days, •and steps were taken to levy assessments for this work, and separate assessment districts were created by the council for the purpose of levying the cost of the respective improvements. Lots 1 and 2 were included as one parcel in each district, and the work proceeded to completion with the knowledge of complainant. For the purpose, special rolls were made, these lots being listed at $3,000, which amount was their assessed value according to a general assessment roll made in the spring of 1901. These special rolls were confirmed in September, 1901, which was before the State, county, and school taxes were spread for that year. The total amount levied against complain•ant for these improvements was $1,03?, which was collectible in five annual payments. The rolls went into the hands of the treasurer for collection in December, 1901. Complainant filed the bill in February, 1902, praying an injunction against the city and its treasurer to prevent the ■collection of the tax, and to set aside such assessment and all proceedings of the council pertaining to said pavement. On the hearing the prayer was amended to include general relief.
    It is observable from the foregoing statement that the proceedings imposed a tax for the two pavements of more than 25 per cent, of the value of the premises, and the ¡amount payable each year exceeded 5 per cent, of the valuation actually made. A number of questions were raised at the hearing:
    (1) To the proceedings generally, by reason of various ¡alleged irregularities.
    (2) To the including of the premises in two assessment •districts.
    (3) That the valuation was irregular and excessive, and that it should have followed the tax roll for 1900.
    (4) That the levy was excessive, because only 25 per ■cent, of the value could be lawfully levied at one time, and only 5 per cent, in one year.
    The circuit court held the tax excessive, and decreed the special assessment void as to complainant, but without prejudice to a reassessment of the property as provided by law. Neither party was allowed costs, except that the treasurer was given costs against the complainant upon the ground that he was an unnecessary and improper-party to the suit. The defendant city has appealed.

      A. Plummer and George TV. Bridgman, for complainant.

      Humphrey S. Gray (G. M. Valentine, of counsel), for defendant city.
   Hooker, C. J.

(after stating the facts). The testimony shows that the three lots had a frontage of 150 feet on East Main street and of 165 feet on Wall street. During the time when these improvements were being made, the paving of Wall street was partially suspended pending negotiations with the complainant for a strip of land from said lots required by the city for the purpose of widening Wall street, and these ended by the payment of upwards of $400 for the same to the complainant, when the work was proceeded with, and finished before December, 1901. The evidence conclusively shows that the complainant knew that this work was being done, and. we think that-he is estopped from questioning his‘ liability for a portion of' the expense, under our repeated decisions, which are cited by counsel. It is only necessary, therefore, to discuss such questions as will aid in determining whether he is entitled to a reduction of the tax spread against these premises. The following questions are important in this connection:

(1) May a given parcel of land be included in two or .more assessment districts ?

(2) Are the restrictions of 25 and 5 per cent, limitations upon a single improvement only, all improvements of a particular class, or all improvements of all classes ?

(3) What is to be taken as the basis of valuation for the ■special assessment ?

It is obvious that it is impracticable to limit a corner lot to one assessment district, except by the arbitrary method of dividing the lot by some sort of an imaginary line, having one terminus at the corner of the lot where the streets intersect and the other at such place as the ■council shall designate; and it is apparent that the entire premises used as a parcel fronting on both streets share in the benefit to be derived from the use of the improvement upon either street, be it sewer, pavement, or any of the utilities, such as water or gas. When the benefits are apportioned by frontage, the total cost of the two improvements would fall upon the entire parcel, whichever method might be adopted, unless it be where there is such a disparity of cost that a levy of the assessments separately might exceed the statutory limit upon one parcel and fall below it on the other. We are of the opinion that it was ■competent for the council to say that this entire parcel was benefited by both improvements, and to assess it for each, provided it did not impose a greater burden than the statute permits; and it follows that the land may be in two assessing districts. We understand that the case of Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204), does not hold to the contrary.

It is urged that a given parcel cannot be assessed for more than 25 per cent, of its valuation in the aggregate, or more than 5 per cent, in one year, for improvements; and it is plausibly urged that, if it were otherwise, it might be assessed for more than its value. On the other hand, counsel for the defendant contend that these limitations ■apply to a single improvement. The statute pointedly refers to “any one improvement.” ' See 1 Comp. Laws, § 3196. We have held that 1 Comp. Laws, §§ 3196 and 3295, should be construed together, and that the fqrmer fixes a limit of 25 per cent, for one improvement, and the latter a limit of 5 per cent, per annum for all assessments. See Corliss v. Village of Highland Parle, 132 Mich. 152 (93 N. W. 254, 610, 95 N. W. 416). While the lots maybe in two assessment districts, the annual tax for both improvements must be restricted to 5 per cent, of the-assessed valuation as shown by the last preceding roil.

Is the valuation excessive? Section 3196 is as follows:

“In no case shall the whole amount to be levied by special assessment upon any lot or premises for any one improvement exceed twenty-five per cent, of the value of such lot or land, as valued and assessed for State and county taxation in the last preceding ward tax roll; any cost exceeding that per cent, which would otherwise be chargeable on such lot or premises shall be paid from the general funds of the city.”

What is meant by the “last preceding ward tax roll?”' Counsel for the complainant contend that it must refer to the last roll of the ward upon which the taxes for State, county, and school purposes have been spread, while' counsel for the defendant maintain that a ward roll which has passed the board of review, and is therefore fixed, SO' far as to become the unalterable assessment upon which State, county, and school taxes must be spread, is within the language of this statute. We incline to the opinion-that the statute, was intended to refer to the assessment contained in the last general roll, and by this is meant a completed roll, upon which State, county, and school taxes have been spread. In both sections — 3196 and 3295 —the term “last preceding [tax or assessment] roll”' is used. In the latter case it is quite clear that it does not mean the roll of the current year, although the term ‘ ‘ assessment roll ” is used, for, if so, what is meant by the words “last preceding?” In the former, the term “tax roll ” is used, and the roll referred to is called in the act the “December tax roll.” Section 3318.

Had the lots 1 and 2 been assessed as one parcel on the December, 1900, roll, we should have little difficulty in determining the amount that complainant should pay upon this tax. But they were not. Lot 3 was included with them, and all were assessed at $2,500. Complainant’s counsel suggest an apportionment of the valuation of 1900 according to superficial area. Upon this basis this property would be valued at $1,363. But, while these two lots had a front of 165 feet on Wall street and 100 on Main, lot 3 has a front of only 50 feet on Main street, and no front on Wall. Moreover, the complainant has sold lot 3for$l,800. The law does not require the adoption of this method. Neither does it expressly authorize the council to make a new assessment. What the council apparently did was to take the assessment roll of 1901, in which the property was assessed at $3,000, as a basis. Moreover, the complainant admits that the lots are worth $3,000. Yet he asks that they be assessed at about one-third of that price, while presumably his neighbors are assessed at a much higher rate. This is not equity. He is before us asking equity, and that he be relieved from an excessive assessment. If he is to be relieved, it must be upon the basis of what is equitable. We are of the opinion that the taxes chargeable against him on each of the two assessments should not exceed $750, of which the defendants should collect not exceeding one-fifth of $750 upon this roll, that being 5 per cent, of $3,000.

The decree will be modified in accordance with this opinion. Complainant will recover costs of the circuit court against the city, and the defendant city will recover costs of this court against him. No costs for or against the treasurer will be allowed.

The other Justices concurred.

       Viz.; Byram v. City of Detroit, 50 Mich. 56 (12 N. W. 912, 14 N. W. 698); Baisch v. City of Brand Rapids, 84 Mich. 666 (48 N. W. 176); Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161); Goodwillie v. City of Detroit, 103 Mich. 283 (61 N. W. 526); Duffy v. City of Saginaw, 106 Mich. 335 (64 N. W. 581); Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583); Fitzhugh v. City of Bay City, 109 Mich. 581 (67 N. W. 904); Moore v. McIntyre, 110 Mich. 237 (68 N W. 130); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22); Township of Walker v. Thomas, 123 Mich. 290 (82 N. W. 48); Tuller v. City of Detroit, 126 Mich. 605 (85 N. W. 1080).


author: Montgomery, J.

text:
      In re ARCHER.
    1. Criminal Law — Grand Jury — Contempt—Public Policy.
    Public policy does not prevent a grand jury from reporting to the court the nature of its proceedings for the purpose of having a witness who refused to produce his books and papers before the jury punished for contempt. People v. Lauder, 82 Mich. 109, and People v. Thompson, 122 Mich. 411, distinguished.
    2. Criminal Contempt — Written Interrogatories.
    In proceedings for a criminal contempt under 1 Comp. Laws, § 1098, the respondent is not entitled to have written interrogatories furnished, and time to answer. D
    3. Witnesses Before Grand Jury — Books of Account — Competency.
    On the hearing in habeas corpus proceedings for the discharge of a witness who has been committed for contempt in refusing to produce his books of account before the grand jury, the . court will not presume that there are no entries in the books which might be proper evidence against any other person than the witness.
    4. Same — Practice..
    The proper practice in such case would be for the witness to produce his books before the grand jury, and, when requested to exhibit them, raise the question of competency, and have it determined by the court, if necessary.

      Certiorari to Wayne; Donovan, J.
    Submitted September 11, 1903.
    (Calendar No. 20,136.)
    Decided September 15, 1903.

      Habeas corpus proceedings and certiorari by John Archer to vacate an order of commitment' for contempt of court.
    Petitioner remanded.

      Flowers, Moloney & Bishop, for petitioner.

      Ormond F. Hunt, Prosecuting Attorney, for the people.
   Montgomery, J.

The petitioner has sued out a writ of habeas corpus and certiorari to review the action of the circuit court for the county of Wayne in committing him to the custody of the sheriff for a contempt of court in refusing to produce his books and papers before the grand jury now in session in said court. Briefly stated, the proceedings in which the contempt was adjudged were as follows: The grand jury made a report that the witness was required to appear before them under a subpoena duces tecum, and was called upon to produce his books, checks, receipts, bills, invoices, etc., showing his transactions with the city of Detroit and the department of public works of said city, whether in his own name or in the name of himself and others, between the 1st day of January, 1901, and the 1st day of July, 1903; that he appeared before such jury, but refused to produce the books, not, however, claiming ány privilege on the ground that anything contained in them would tend to incriminate him, but placing his refusal upon the ground that he was not compelled to produce them. Acting upon this report of the jury, the court made an order to show cause why he should not be punished for contempt. This writ was returned, and, before later proceedings, notice was served upon him to appear before the court, and produce the books and papers to be used before the grand jury. This he failed to do, and on the 4th of September he was adjudged guilty of contempt in failing to obey the subpoena, and in failing to obey the order of the court; he having appeared before the court on the 4th, and having refused to produce his books before the grand jury.

It is urged in this court that the proceedings are irregular and invalid, for the reason that the report of the grand jury divulged the nature of the proceedings before them, and that public policy does not admit of the grand jury stating such facts publicly, and spreading them upon the court records. A discussion of this question might perhaps be avoided, inasmuch as there was a direct refusal to obey the court order of like character; but as the question is of some importance, and as the ruling of this court in the two cases of People v. Lauder, 82 Mich. 109 (46 N. W. 956), and People v. Thompson, 122 Mich. 411 (81 N. W. 344), appears to have been misapprehended, we take the occasion to say that we do not think the rule of public policy prohibiting a disclosure by a grand juror of facts coming to his knowledge while a member of the grand jury is to be so construed as to block the wheels of justice, and bar the grand jury from compelling, through the instrumentality of the court, a recalcitrant witness from obeying the mandates of the court. The grand jury is an arm of the court, but it is without power to enforce its own process by its own mandate. How, then, shall a witness who refuses to answer a question before a grand jury be dealt with? It is very clear that it must be made known to the court that the witness has refused to comply with the court’s mandate before the court can act. There are only two ways that this might be done, and that is either by a report of the grand jury to the court, or by an affidavit of some one of the grand jurors or the prosecuting officer. Section 11887, 3 Comp. Laws, relates to the testimony of grand jurors upon trial, and was not intended to prevent such information being conveyed to the court itself as that embodied in the present report. A very well reasoned and instructive case upon this subject is Heard v. Pierce, 8 Cush. 338 (54 Am. Dec. 757), in which cases are cited which fully sustain the right of the grand jury to take the steps taken in this case; and there is nothing in the decisions of the Lauder or Thompson cases which, in our judgment, militates against these holdings.

Acting upon this information, the respondent was required to appear and show cause, and, in addition to this, was, by express order of the court, required to produce the books before the j ury, and refused to do so. He complains of the practice, and says he should have had the opportunity of having interrogatories furnished and given time to answer. He bases this contention upon section 10909 of the Compiled Laws, which is a section of the chapter relating to attachments to enforce civil remedies. The present is a criminal contempt, and comes within the provisions of section 1098, 1 Comp. Laws. The practice was not irregular in requiring immediate obedience to the order of the court.

It is next. urged with considerable force that as the report of the grand jury shows that the jury are not attempting to indict or proceed against Archer himself, and there is no claim that the books and papers required to be produced are evidence against him, the evidence sought is immaterial and incompetent, as it is said the books of account may not be used in evidence against any other person. It is to be noted that.the books are not produced in answer to the subpoena, and the question then raised as to particular items, nor does the case present any question as to whether the books of account are sought to be used against any other than John Archer, who might be entitled to the protection of the court; but we are asked to say, as matter of law, that under no circumstances could these books of account, or any entries in them, be any evidence of competent facts against any other person than John Archer. Apart from the fact that the proper practice has not been pursued by petitioner, we are not prepared to say, as matter of law, that there may not be entries in the books which might be proper evidence as against parties other than petitioner. This could only he shown by an inspection of the hooks. It is due to the petitioner that it should be stated that his counsel offered to produce the books, and permit an inspection by the trial judge, on condition that portions of books immaterial to the issue before the grand jury should be sealed up, and only such parts submitted as had a bearing upon the questions under consideration. The proper practice for the petitioner to pursue is, to produce his books before the grand jury, and, upon being requested to exhibit any one of the books or vouchers, raise the question of materiality, and then have it determined by the court, if necessary.

The application for discharge on habeas corpus will be denied, and the petitioner remanded to the custody of the sheriff.

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


text:
    BOARD OF SUPERVISORS OF IONIA COUNTY v. IONIA CIRCUIT JUDGE.
    1. Township Bridges — Taxation—Constitutional Limitations.
    Act No. 62, Pub. Acts 1889 (2 Comp. Laws, §§ 4051-4056), authorizing boards of supervisors to provide for the construction of bridges on the boundary between townships, and apportion the expense to the townships, is not in conflict with article 10, § 9, of the Constitution, limiting the power of tho board to borrow or raise by tax in any one year to §1,000, unless authorized by a majority vote of the electors of the county.
    2. Same — Statutes.
    2 Comp. Laws, § 4131, limiting the power of townships tp raise by taxation for building bridges wholly within the township to $2,000 in one year, unless authorized by a vote of the electors, does not restrict the power conferred upon the board of supervisors by Act No. 62, Pub. Acts 1889, to authorize the construction of a bridge on the boundary between townships.
    3. Same — Petitions—Boards op Supervisors.
    The refusal of a board of supervisors at its October session to authorize the construction of a town-line bridge does not prevent the board at its January session from authorizing its construction in pursuance of a new petition.

      Mandamus by the board of supervisors of Ionia county to compel Frank D. M. Davis, circuit judge of said county, to dissolve an injunction.
    Submitted May 12, 1903.
    (Calendar No. 19,899.)
    Writ granted September 22, 1903.

      William K. Clute, Prosecuting Attorney, and B. A. & W. E. Haivley, for relator.

      Chaddock & Scully, for respondent.
   Montgomery, J.

At the January session of the board of supervisors, a petition was presented by the township of Portland, asking to have a bridge constructed across Grand river, which should be partly in the township of Portland and partly in the township of Danby, and that the expense of constructing the same should be apportioned between the two townships. This action was taken under Act No. 62, Pub. Acts 1889 (2 Comp. Laws, §§ 4051-4056). The prayer of the petition was granted, and an apportionment made, when a bill was filed by Danby township to restrain the construction of the bridge, on the ground that the board of supervisors had exceeded its authority. No question appears to have been raised as to the regularity of the proceedings, if the statute in question is to be sustained as constitutional, and not held to be restricted by the provisions of the general statute limiting the amount of indebtedness which counties and townships may incur in any one year for the construction of highways and bridges.

The statute has been before the court in three different cases. Township Board of Ecorse v. Board of Sup’rs of Wayne County, 75 Mich. 264 (42 N. W. 831); Osborne v. Lindow, 78 Mich. 606 (44 N. W. 414); Township of Frenchtown v. Board of Sup’rs of Monroe County, 89 Mich. 204 (50 N. W. 757). In none of these cases is the constitutionality of the act determined, although the act has been held not to cover a drawbridge, and some doubt has been cast upon the validity of the act. The present case would seem to render it necessary for us to determine definitely the question of the constitutionality of this act.

The constitutional provision (article 10, § 9) reads as follows:

“The board of supervisors of any county may borrow or raise by tax one thousand dollars for constructing or repairing public buildings, highways, or bridges; but no. greater sum shall be borrowed or raised by tax for such purpose in any one year, unless authorized by a majority of the electors of such county voting thereon. ”

The general statute fixing the powers of boards of supervisors (1 Comp. Laws, § 2484, subd. 7) is as follows:

“To borrow or raise by tax upon such county any sums of money necessary for any of the purposes mentioned in this act: Provided, that no greater sum than one thousand dollars shall be borrowed or raised by tax in any one year for the purpose of constructing or repairing public buildings, highways, or bridges, unless authorized by a majority of the electors of such county voting therefor as hereinafter provided. ”

It will be seen that this simply follows the provisions of the Constitution. The question, then, is whether this limitation of power excludes the right of the legislature to provide for the construction of a bridge across the stream forming the boundary of the two townships, and to repose the duty of determining the relative proportion of cost to be borne by the different townships in the board of supervisors.

That, in the absence of constitutional restrictions, such a power exists in the legislature, we think is fully settled by the adjudicated cases. Brayton v. City of Fall River, 124 Mass. 95; Guilder v. Town of Otsego, 20 Minn. 74; Guilder v. Town of Dayton, 22 Minn. 366; City of Haverhill v. Inhabitants of Groveland, 152 Mass. 510 (25 N. E. 976); Town of Underhill v. Town of Essex, 64 Vt. 28 (23 Atl. 617); State, ex rel. Bulkeley, v. Williams, 68 Conn. 131 (35 Atl. 24, 421, 48 L. R. A. 465); Town of Kirkwood v. Newbury, 122 N. Y. 571 (26 N. E. 10); People, ex rel. Root, v. Board of Sup’rs of Steuben County, 146 N. Y. 107 (40 N. E. 738); Cooley, Tax’n (2d Ed.), 682 et seq. The question is thus presented whether the restrictions of the Constitution above quoted apply to such a power as is here delegated to the board of supervisors. We think it very clear that they do not. The restriction is as to borrowing or raising by tax not to exceed the sum of $1,000, unless authorized by a majority of the electors of the county. It is manifest that in determining the amount of investment necessary for the construction of a bridge between two townships, and the proportion which each shall bear, the electors of other portions of the county have no possible concern or interest. It would seem to follow, therefore, that this restriction upon the power of the board is a restriction placed upon the power of the board in undertakings which affect the entire county.

It is suggested that it would be remarkable if the framers of the Constitution intended to restrict the entire county to an expenditure of $1,000, and should leave in the hands of the legislature the authority to impose upon two townships a much larger burden. But the, answer to this is that burdens of this character are generally imposed upon the locality peculiarly benefited, and not upon the county at large. The framers of the Constitution may well be said to have had in mind that the county would and should undertake such improvements only in rare cases, and that the burden should be left to rest where it belongs, — upon the locality peculiarly benefited. The same reasoning which leads to this conclusion as to the constitutional provision of course applies with greater force to the restrictions of the general statute above quoted.

Reference is made by respondent’s counsel to the case of Township of Ada v. Kent Circuit Judge, 114 Mich. 77 (72 N. W. 35). This case construed a special act of the legislature. Under the authority of this act, the legislature assumed to impose upon the county a burden of $5,000, one-half to be raised in each of two years. This was in direct violation of the above-quoted provision of the Constitution, which limits the right to impose upon the county a tax of more than $1,000, without a vote of a majority of. the electors of the county voting thereon. It was said in that case:

“What the supervisors are prohibited by the Constitution from doing, the legislature does not possess the power either to do itself, or to compel the boards of supervisors to do.”

It is also urged that section 4131 of the Compiled Laws provides that, where it is necessary to raise a sum in excess of $2,000 for building or repairing any bridge in a township, the question shall be submitted to a vote of the electors of the township, and that this constitutes a restriction upon the power conferred upon the board of supervisors by Act No. 62, Pub. Acts 1889. But this cannot ■be so, for the reason that section 4131 related to bridges wholly within the township, while Act No. 62 relates to-bridges partly within two townships, and in its very nature was calculated to provide for the construction of a bridge when one, at least, of the townships refuses to cooperate with the adjoining township in its construction.

A similar petition was presented at the October session of the board, and refused. A new petition was presented at an adjourned meeting in January, and it is claimed that, as the former had not been reconsidered, the subsequent proceeding was illegal. We think this objection is without force, as the proceeding instituted was essentially a new proceeding, based upon a new petition.

We think the writ of injunction should not have been allowed, and the application for mandamus will be granted. As the case involves a public question, no costs will be awarded to either party.

The other Justices concurred.


author: Grant, J.

text:
    TROMBLEY v. CANNON.
    Mortgages — Discharge—New Mortgage — Tender.
    Where complainants exchanged land with a mortgagor, and the mortgagee agreed, in consideration of five dollars, to discharge his mortgage, and accept one for the same amount on the land received by the mortgagor from complainants, the mortgagee could not be compelled to discharge his mortgage until the new one had been tendered.
    Appeal from Lenawee; Chester, J.
    Submitted May 13, 1903.
    (Docket No. 64.)
    Decided September 22, 1903.
    Bill by Joseph Trombley and Maggie Trombley against James Cannon to compel the discharge of a mortgage. From a decree for complainants, defendant appeals.
    Reversed.
    Complainants, husband and wife, made an exchange of lands by deed with one Sarah J. Chase. Mrs'. Chase conveyed to complainants, as tenants by the entirety, by warranty deed. Prior to the exchange, Mrs. Chase had given a small mortgage to defendant. The bill alleges that Mr. Cannon, for and in consideration of five dollars paid to him by Mrs. Chase, agreed with the parties to discharge the mortgage upon the lands conveyed by Mrs. Chase, and to accept in lieu thereof a mortgage from Mrs. Chase upon the lands conveyed to her; that the deeds were exchanged upon this understanding and agreement with defendant; and that defendant, Cannon, after-wards refused to discharge the mortgage upon complainants’ lands. The purpose of the bill is to obtain a discharge of said mortgage. Proofs were taken in open court, and decree entered that the lands of complainants be relieved from the lien of said mortgage.

      William M. Long and Watts, Smith & Baldwin, for complainants.

      John O. Zahel and Willis Baldwin, for defendant.
   Grant, J.

(after stating the facts). It is conceded that defendánt agreed to discharge the mortgage .on the land to be conveyed to complainants, and to accept in lieu thereof a mortgage on the other land. He did not,, however, agree to discharge the one until he had received the other. The complainants and Mrs. Chase exchanged deeds, without the tender to defendant of a mortgage executed by Mrs. Chase. Until this was done, no obligation rested upon defendant to discharge the other mortgage. He was then, and always has been, ready to carry out the agreement. All the parties agreed to meet at a certain time and place to execute the papers. Defendant went, but complainants and Mrs. Chase were not there. Defendant instructed the scrivener, upon whom the parties had agreed to draw the papers, to see that the new mortgage was executed. Complainants and Mrs. Chase afterwards came, and the deeds were executed, but the mortgage was not. The scrivener was not the general agent of defendant, and had no authority to waive the execution of the mortgage by Mrs. Chase. Defendant has not been guilty of laches in not proceeding to secure a mortgage from her. He was under no obligation to do so.

Decree reversed, and bill dismissed, with the costs of both courts.

The other Justices concurred.


author: Moore, J.

text:
    CASGRAIN v. HAMMOND.
    1. Perpetuities — Suspension op Alienation — Lives in Being.
    By'reason of the statute, against perpetuities (3 Comp. Laws, §§ 8796, 8797), a suspension of the power of alienation not based on lives is void; and the power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.
    2. Trusts — Suspension of Alienation — Term Not Based on Lives.
    ' A conveyance of lands in trust for 14 years and during the life of the grantor, to be distributed at the expiration of the trust among certain persons or the survivor or survivors of them, suspends the power of alienation in a manner not based on lives, and is therefore void.
    3. Same — Distribution op Estate.
    Where land is conveyed to a trustee under a trust which is void, on the death of the grantor the land should be distributed under the statute.
    4. Equity Jurisdiction — Bill to Quiet Title — Possession.
    Equity has jurisdiction to set aside a conveyance of lands in trust which is void under the statute against perpetuities, upon the complaint of an heir, although he is not in possession.
    Appeal from Wayne; Hosmer, J.
    Submitted June 2, 1903.
    (Docket No. 8.)
    Decided September 22, 1903.
    Bill by Annie H. Casgrain and George H. Lee, an infant, by Gilbert W. Lee, his next friend, against Charles F. Hammond, Florence P. Hammond, William J. Hammond, Edward P. Hammond, an infant, by guardian ad litem, and George H. Hammond, to set aside a trust deed. From an order overruling a demurrer to the bill, defendants Charles F., William J., and Edward P. Hammond appeal.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for complainants.

      Thomas A. E. Weadock, for appellants.
   Moore, J.

This proceeding was commenced in chancery by filing a bill of complaint, some portions of which read as .follows:

“That during her lifetime Ellen Hammond, now deceased, of the city of Detroit, Wayne county, Michigan, acquired the title in fee and was the owner ” of real estate, which is described in the bill of complaint, “upon which said described lands and premises the said Ellen Hammond caused to be constructed a building costing * * * upwards of seven hundred thousand dollars, * * * and was at the time of the death of said Ellen Hammond, and now is, of the value of upwards of one million of dollars.
“That on the 20th day of February, A. D. 1898, the said Ellen Hammond died intestate, leaving no last will, and subsequently William J. Hammond and your oratrix, Annie H. Casgrain, were appointed administrators of the estate, and duly entered upon the performance of their duties as such administrators; that the estate of the said Ellen Hammond has never been closed, nor have the administrators filled their final account or been discharged.
“That the said Ellen Hammond left as her heirs at law George H. Hammond, Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond, Edward P. Hammond, and your oratrix, Annie H. Casgrain, all children of the said Ellen Hammond, and your orator, George H. Lee, grandchild of the said Ellen Hammond, being a son of Sarah Hammond Lee, who bad intermarried with Gilbert W. Lee, and had died prior to the death of Ellen Hammond; and the said heirs at law became entitled in equal proportions to all of the estate of Ellen Hammond, share and share alike. * * *
“That on or about the 12th day .of September, A. D. 1895, the said Ellen Hammond executed to Charles F. Hammond, one of the above-named heirs at law, a warranty deed in form of the lands and premises above described, in which deed the said Charles F. Hammond is described as trustee, and in which said deed the consideration for the conveyance is stated as the sum of one dollar and other considerations, * * * which deed was recorded in the office of the register of deeds for the county of Wayne on the 1st day of October, 1895; * * * and your orators show that, by reason of the recording of said deed as aforesaid in the public records in the office of the register of deeds of Wayne county, the title in fee to said lands appears to be in the said Charles F. Hammond. * * *
“Your orators further allege that they are informed and verily believe, and therefore charge the truth to be, that it was not the intention of the said Ellen Hammond, deceased, to vest the title in fee of the said lands and premises in the said Charles F. Hammond, trustee, .and they are informed and believe, and charge the truth to be, that on the same date, and simultaneously with the execution of the said deed to Charles F. Hammond, trustee, by the said Ellen Hammond, the said Charles F. Hammond executed and delivered an instrument in writing, duly acknowledged and witnessed, so that the same was entitled to be recorded in the office of the register of deeds for the county of Wayne under the strict requirements of the law with reference thereto, which said instrument in writing is denominated a ‘declaration of trust,’ by the terms of which the said Charles F. Hammond did thereby declare, as grantee and trustee in the deed named aforesaid, that he received and held the title to the same property in trust for the purposes in said declaration of trust named, that is to say, to let, lease, manage, and control the property according to his best judgment, so as to yield as large an income' as possible, and, after paying and discharging the »taxes and repairs thereon and expenses in the care and management, to account and pay over to the said Ellen Hammond, during the term of her natural life, the net income derived therefrom at such times as she might ■desire for her use and maintenance, and, should the said Ellen Hammond die before the expiration of the period of fourteen years from the execution of the trust, then the said net income'was to be divided and paid in equal proportions by the said Charles F. Hammond to William J. Hammond, Florence P. Hammond, Ethel E. Hammond, Edward P. Hammond, and the said Charles F. Hammond, and that, at the expiration of the term of the trust ■created thereby, he should convey the lands and premises in question to William J. Hammond, Florence P. Hammond, Ethel E. Hammond, Edward P. Hammond, and the said Charles F. Hammond, or to the survivor or survivors of them, in equal -undivided shares, and that the interest of any one or more of the persons named, to wit, Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond, who may decease before the expiration of the trust hereby created, shall pass to and be conveyed to the survivor or survivors of the persons above named, and shall not pass to the heirs or assigns of any one of them who-may decease; that the trust hereby created should continue until the decease of the said Ellen Hammond, and,, should she decease before the expiration of fourteen years from the date thereof, — that is to say, on or before the 12th day of September, A. D. 1909, — then the said trust should continue until the expiration of the fourteen years from the date of said instrument, and in that event terminate at the end of fourteen years from the date thereof.. * * =1=
“That the said declaration of trust has never been recorded, so that the records of the title to the said lands and premises do not disclose the correct nature and extent of the title which the said Charles F. Hammond has in the lands and premises aforesaid; and your orators are-informed and believe, and therefore charge the fact to be,, that the said declaration of trust is now in the actual possession of the said Charles F. Hammond, trustee. * * *■
“Your orators further show unto the court that the said declaration of trust and the said warranty deed in truth and in fact constitute one instrument, and together show the intent and purpose with which the said Ellen Hammond, deceased, conveyed the title of the lands and premises hereinbefore described to the said Charles F. Hammond, trustee, and she is entitled to have this court so declare; that by the ternas thereof the said Ellen Hammond attempted to convey the said lands and premises to-the said Charles F. Hammond, trustee, for uses and purposes and upon terms and conditions in violation of law, and especially in violation of the provisions of the statute-of this State more specifically described as compiler’s sections 8796 and 8797 of the Compiled Laws of Michigan for-1897, being sections 14 and 15 of chapter 237 of said Compiled Laws, pertaining to real property and of the nature and qualities of the estates in real property and the alienation thereof. * * *
“That, immediately upon the death of the said Ellen Hammond, your orators, equally -with the other -heirs of the-said Ellen Hammond, each inherited and became by right the owners in fee of an undivided interest in the said lands and premises by inheritance, that is to say, each an undivided one-eighth thereof; and each of the said heirs of the said Ellen Hammond also became the owners in fee of an undivided one-eighth interest thereof by inheritance, and as such became entitled to have and receive from time to time, as the same accrued, a like proportion of the rents and profits arising therefrom. * * *
“Your orators further show that George H. Hammond died intestate .in the city of Detroit in the year 1886, leaving a • large estate, consisting of real and personal property, which estate was afterwards administered in the probate court for the county of Wayne; that the administration thereof has never been closed, and a large part of the real estate thereof has never been partitioned and distributed ; that, as one or the distributees of the estate of said George H. Hammond, the said Ellen Hammond received, on account of her share or interest therein, personal property, which, converted into money, amounted to about one million dollars; that the other distributees of said estate and heirs of the said George H. Hammond were George H. Hammond; Annie H. Casgrain, your oratrix; Sarah Hammond Lee, now deceased, and of whom your orator, George H. Lee, is the sole heir, as hereinbefore referred to; Charles F. Hammond; William J. Hammond; Florence P. Hammond; Ethel K. Hammond, since deceased; and Edward P. Hammond.
“That, after the death of said George H. Hammond, the said Ellen Hammond was duly appointed the guardian of the persons and estates of William J. Hammond, Charles F. Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond, who were at the time minors and infants under the age of twenty-one years, and as such guardian the said Ellen Hammond received into her possession and had control of a large amount of money and personal property of each of the said infants, which was inherited by them from George H. Hammond, deceased, and was distributed to them as heirs of his estate; that, as your orators are informed and believe, when the said Ellen Hammond purchased the land and premises hereinbefore described, and erected the building thereon, the said Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond were still minors, infants under the age of twenty-one years, and the said Ellen Hammond was still guardian of their persons and estates, and had the control and custody of their property; that the said Charles F. Hammond claims, and your orators are informed and verily believe and charge the truth to be, the said Ellen Hammond, without any authority from the probate court for the county of Wayne, or any other court of competent jurisdiction, and without the authority of law, did borrow and use certain of the moneys belonging to the estates of each of said infants, and used the same, with a large amount of her own money, paying for the property and building aforesaid; that is to say, that she used of the money and property of the said William J. Hammond the sum of fifty thousand dollars, of the said Charles F. Hammond the sum of fifty thousand dollars, of the said Florence P. Hammond the sum of one hundred and twelve thousand dollars, of the said Ethel K. Hammond the sum of one hundred and sixteen thousand dollars, and of the said Edward P. Hammond the sum of one hundred and twelve thousand dollars; that your orators have no means of knowing the exact amounts of said infants’ estates borrowed by said Ellen Hammond; that in the purchase of said property and erection of said building the said Ellen Hammond used, as your orators are informed and believe, and therefore allege as true, of her own money, the sum of seven hundred and fifty thousand dollars, in addition to the sums borrowed from the estates of said infants.
‘ ‘ That, at the time of the death of the said Ellen Hammond, the said Florence P. Hammond, Ethel K. Hammond, and said Edward P. Hammond were infants and were under the age of twenty-one years, and the said Charles F. Hammond, who had arrived at the age of twenty-one years and upwards, succeeded the said Ellen Hammond as guardian of the persons and estates of the said three last-named infants; that the estates of the said Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond, infants as aforesaid, have never been closed, nor has the estate of the said Ellen Hammond, deceased, ever been closed, or her accounts as guardian of the respective infants or of their estates ever been filed, settled, and allowed, nor have the accounts of said Charles F. Hammond as guardian ever been filed, settled, and allowed.
“And your orators further allege that the said Charles F. Hammond now pretends and claims that by reason of the premises, and the use of the said several sums of money belonging to the said, infants by their guardian, the said Ellen Hammond, deceased, in connection with her own moneys, in paying for the property aforesaid, the said Florence P. Hammond and the estate of said Ethel K. Hammond, now deceased, as hereinbefore stated, and the said Edward P. Hammond and the said Charles F. Hammond and William J. Hammond are each entitled to have a lien upon the premises and building aforesaid for the amounts aforesaid, respectively.
“Your orators do not deny that the several sums of money respectively hereinbefore set forth belonging to the estates of the said several infants, and used by the said Ellen Hammond for the purposes aforesaid, should be accounted for by the estate of the said Ellen Hammond, nor do they deny that they are entitled to have the same paid. On the contrary, your orators admit that the said Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond are entitled to protection to the extent of the amounts of money belonging to their said estates, respectively, out of the estate of the said Ellen Hammond, deceased, generally, or, if this court may so direct, that each of them may have a special or equitable lien upon the premises hereinbefore described as security for the same; and your orators admit that the said defendants are entitled to an accounting as to the same, and that they are entitled to have this court find and determine the amount thereof.
“That the estate of the said Ellen Hammond is amply sufficient to repay to the said infants the sums aforesaid, when the same shall be proved according to law.
‘ That your orators are informed and believe that the moneys belonging to the estates of the said infants so used by the said Ellen Hammond in the acquisition of the premises and the construction of the building aforesaid are those referred to in the declaration of trust hereinbefore referred to, a copy of which is hereto attached, and which the said infants are required to receipt in full for and to release and discharge the estate of the said Ellen Hammond from, as set forth in the said declaration of trust, before said Charles F. Hammond, the trustee, shall convey to them, or any of them, any interest in or share of the said premises.
“And your orators allege that, notwithstanding the said claims of said Charles F. Hammond as to the use of said moneys of said infants by said Ellen Hammond in part payment of the cost of said property, your orators are entitled to have said trust deed declared unlawful and invalid, and the said Charles F. Hammond is not entitled to have and retain the rents and profits of said premises, as he now claims and is doing.”

The bill prays that the two instruments may be decreed to be invalid, and for an accounting of the rents and profits, with a general prayer for relief.

Florence P. Hammond filed an answer in the nature of a cross-bill, and asks the court to pass upon the validity of the trust settlement, and that there may be an accounting as to the amount due her from the estate of Ellen Hammond for money used in the construction of the building belonging to her. The other defendants demurred to the bill. From an order overruling the demurrer, those defendants have appealed.

A sufficient statement of the contents of the deed from Mrs. Hammond to Charles F. Hammond, trustee, dated September 12, 1895, has already appeared. On the same day there was signed and executed by Charles F. Hammond and Ellen Hammond a paper called a “ declaration of trust,” the material parts of which read as follows:

Whereas, Ellen Hammond, of Detroit, Wayne county, Michigan, as party of the first part, has this day executed and delivered to Charles F. Hammond, as trustee, by conveyance in the form of a warranty deed, the following described premises, to wit, * * * for the consideration of one dollar and other valuable considerations, expressed therein. Now, I, the said Charles F. Hammond, grantee and trustee named in the said deed, do hereby declare the nature and purposes of the trust for which conveyance was made to me to be as follows:
“1. I am to let, lease, manage, and control said property as shall' seem best in my judgment, so as to yield as large an income as, possible, -and, after paying and discharging all taxes assessed against the same, and repairs to the building situate thereon, and expenses of care and management, account for and pay to the said Ellen Hammond, for and during the term of her natural life, the net income derived therefrom at such times as she may desire for her use and maintenance.
“2. Should the said Ellen Hammond decease before the expiration of the trust created hereby, then the net income aforesaid is to be divided and paid in equal proportions by second party to Charles E. Hammond, William J. ■ Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond, or the survivor of them, until such expiration.
“3. At the expiration of the trust created hereby, I (Charles F. Hammond) am to convey by proper conveyance to the said Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond, and Edward P. Hammond, or the survivor or survivors of them, the premises above described, in equal undivided shares. The interest of any one or more of the persons named, to wit, Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel E. Hammond, and Edward P. Hammond, who may decease before the expiration of the trust created hereby, shall pass to and be conveyed to the survivor or survivors of the persons above named, and shall not pass to the heirs or assigns of any one of them who may decease.
“4. The trust created hereby by said conveyance shall continue until the decease of the said Ellen Hammond, and, should she decease before the expiration of fourteen years from the date hereof, then the said trust shall continue until the expiration of the fourteen years from this date, and in that event terminate at the end of fourteen [years from the date hereof. Should the said Ellen Hammond survive the period of fourteen years from this date, the trust created hereby shall terminate at her decease.
“The conveyance so made is to satisfy and cancel any and all claims that- either said Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel E. Hammond, and Edward P. Hammond may have against said Ellen Hammond for moneys received by her as guardian, to the extent that she has invested such funds in the property above described for them severally or their estates; and, before they or any of them shall receive the conveyance of the interest provided hereby to be conveyed to them at the expiration of the trust hereby created, they shall each execute and deliver to said' Ellen Hammond’s legal representative proper releases and discharges of any and all such claims against her and her estate.”

On the part of Charles F. Hammond it is said he may take either of three positions:

“First. He may insist that the deed conveys the property to him absolutely, for a sufficient consideration, and neither the complainants nor any other heir of Ellen Hammond would have any claim upon it; or,
Second. That if the trust agreement, so called, is a part of the original conveyance, and the two instruments are to be treated as one, and the trust limitations should fail, in that event the legal title vests at once in the cestuis que trustent, free from any limitation; or,
Third. That the conveyance and trust agreement, considered together, make but one instrument, and the trust is legal, and binding upon all the world.”

On the part of the complainants it is insisted the trust sought to be established must fail, as in conflict with the following provisions of the statute:

3 Comp. Laws, § 8796 (14). “Every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.”
3 Comp. Laws, § 8797 (15). “The absolute power of alienation shall not be suspended by any limitation oT condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.”

It is also claimed the following sections bear upon the controversy:

3 Comp. Laws, § 8844. “ Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust; and the person for whose benefit the trust was created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity. ”
3 Comp Laws, § 8795, is as follows:
“ Future estates are either vested or contingent: They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate; they are contihgent ‘ whilst the person ¡to whom or the event upon which they are limited to take effect remains uncertain.”

New York has had a statute similar to sections 8796, 8797, 3 Comp. Laws, which has been construed a good many times. The effect of these decisions is that a suspension of the power of alienation not based on lives is void, and that the power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. See Moore v. Moore, 47 Barb. 260; Garvey v. McDevitt, 72 N. Y. 556; Rice v. Barrett, 102 N. Y. 161 (6 N. E. 898); Cruikshank v. Home for Friendless, 113 N. Y. 337 (21 N. E. 64, 4 L. R. A. 140); Haynes v. Sherman, 117 N. Y. 433 (22 N. E. 938); People v. Simonson, 126 N. Y. 299 (27 N. E. 380); Booth v. Baptist Church, 126 N. Y. 215 (28 N. E. 238); Trovobridge v. Metcalf, (Sup.) 39 N. Y. Supp. 243.

Our own statute has been construed by this court in Trufant v. Nunneley, 106 Mich. 554 (64 N. W. 469), in which it was held that, if effect was given to certain provisions in the will, there would be a time during which there would be no person or persons in whom the estate could vest in fee simple absolute, hence no person in being who could convey, and that this will in that regard was void, and, as to the property affected by the void will, it must be distributed under the statute.

In State v. Holmes, 115 Mich. 456 (73 N. W. 548), Justice Grant, speaking for the court, said:

“The law of this State in regard to estates in possession and in expectancy is found in 2 How. Stat. § 5523 et seq. The provisions controlling this case are sections 5530 and 5531, which read as follows:
“‘Every future estate shall he void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended ■when there are no persons in being' by whom an absolute fee in possession can be conveyed.
“ ‘ The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.’
“ This statute was adopted in the State of New York in 1830. It was subsequently adopted in this State verbatim et literatim, and is found in the Revised Statutes of 1846. The construction placed upon this statute by the courts of that State has a controlling influence, and courts will presume that the legislature recognized and accepted such construction. Greiner v. Klein, 28 Mich. 12. The court of appeals of New York had passed upon this statute several times before its adoption here. Coster v. Lorillard, 14 Wend. 265, 312; Hawley v. James, 16 Wend. 61; Hone v. Van Schaick, 7 Paige, 231; Irving v. DeKay, 9 Paige, 529. It has been before that court many times since. Yates v. Yates, 9 Barb. 324, 347; Tayloe v. Gould, 10 Barb. 398; Tucker v. Tucker, 5 N. Y. 417; Rose v. Rose, 4 Abb. Dec. 108; Moore v. Moore, 47 Barb. 260; Garvey v. McDevitt, 72 N. Y. 556; Rice v. Barrett, 102 N. Y. 161 (6 N. E. 898); Cruikshank v. Home for Friendless, 113 N. Y. 337 (21 N. E. 64, 4 L. R. A. 140); Haynes v. Sherman, 117 N. Y. 433 (22 N. E. 938); People v. Simonson, 126 N. Y. 299 (27 N. E. 380); Booth v. Baptist Church, 126 N. Y. 215 (28 N. E. 238); Trowbridge v. Metcalf, (Sup.) 39 N. Y. Supp. 243.
“ The rule established by these authorities is that a suspension of the power of alienation not based on lives is void, and that the power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. It is said in Moore v. Moore:
‘ In all the adjudicated cases upon this statute the courts have uniformly held that the period of suspension of alienation could not be measured by time alone; that life must, in some form, be the measure of the period of suspension.’
“ In that case suspension was for three years. In Bose v. Bose it was for five years.
“Tested by this rule, the devise must fail. There are no persons in being who can convey an absolute fee in this land. If all the parties mentioned should now unite in a conveyance, the grantee would take only a life estate. The widow has only that interest to convey. The State has nothing to convey, for it has no interest until the conditions are accepted. The grandson has nothing to convey, and cannot have until the State refuses or neglects to accept the condition. The title to the land is left ‘ swinging in abeyance,’ without protection, owner, or abiding place. A squatter might take possession, and no one could eject him. It is not exempt from taxation, because the State does not own it. It cannot be assessed to the grandson after the death of the widow, because he does not own it. This condition of things may exist for five years. It therefore violates the statute, and is void.”

Inasmuch as the defendants have demurred to the bill of complaint, which avers the recorded deed and the declaration of trust constitute but one transaction, for the purposes of this controversy it must be so considered. The important question, then, is whether the effect of the two papers is to suspend the power of alienation for a period of time not based on lives. It is insisted by the defendants that there were always persons in being in whom the title vested, and who could have joined in a deed and conveyed the fee, and that the answer to the question should be no. Counsel cite Caspari v. Cutcheon, 110 Mich. 89 (67 N. W. 1093), Toms v. Williams, 41 Mich. 552, and Torpy v. Betts, 123 Mich. 243 (81 N. W. 1094). In the Caspari Case it was conceded by counsel that they did not regard the trust void because of the statute against perpetuities, and that question was not in the case. In the Toms Case it was held that the application of rules against perpetuities depends on whether the interest devised is vested or not. What was said in that case is not controlling in this one. A reference to Torpy v. Betts will also show it is not controlling in this case.

Can the trustee and the cestuis que trustent join in a deed, and thereby give a good title? Now that Mrs. Hammond is dead, the trustee is not authorized by the declaration of trust to convey to anybody until 14 years from the date of the declaration of trust, and it is his duty to retain control of the property during all of that time. At the expiration of the 14 years it is made his duty to make a conveyance, not to all the cestuis que trustent named in the declaration of trust and their heirs and assigns, but it is expressly provided that, should any of them die during the 14 years, no title shall pass to the heirs and assigns of the deceased one. The conveyance to be made by the trustee is to be made to such of the cestuis que trustent as are living at the end of the 14 years. Suppose one of them should today make a deed of his interest in the premises, and should die before the expiration of the 14 years, what title would his grantee get? Clearly nothing, for no title would ever come to the grantor. What is true of one is true of each of the others. Whether any of them will ever have any title to the property will depend upon whether they live until the expiration of the 14 years. It would seem to be very clear that, by the terms of the trust, no one is authorized to convey a title in fee until the 14 years has expired. This, we think, brings it clearly within the provisions of the statute.

The trust, then, having failed, it would be contrary to the purpose of Mrs. Hammond to allow the warranty deed to stand. It is clear she had no intention of conveying the title in fee to this large amount of property to Charles F. Hammond for his sole benefit. It is equally clear she did not intend to vest the title in fee presently in the persons named in the declaration of trust. We think it follows that both deeds fail, and the estate attempted to be conveyed thereby must be regarded as belonging to the estate of Ellen Hammond, and be distributed under the statute. Trufant v. Nunneley, 106 Mich. 554 (64 N. W. 469); Wheelock v. American Tract Society, 109 Mich. 141 (66 N. W. 955, 63 Am. St. Rep. 578); St. Amour v. Rivard, 2 Mich. 294; Coster v. Lorillard, 14 Wend. 265; Ahern v. Ahern, (Sup.) 65 N. Y. Supp. 81.

In Tregonwell v. Sydenham, 3 Dow, 194, it is said:

“Wherever land, or any interest in land, which would descend to the heir at law, is devised for purposes which the law will not permit to take effect, the heir at law shall have the benefit of the interest so devised as undisposed of, whether the testator intended that he should have it. or not; for there is this distinction between the case of a devisee and that of an heir at law: That the devisee tabes by force of the intent of the testator, and can only take what is given him by the will; whereas the heir at law takes whatever is undisposed of, not by force of the intent, but by the rule of law.”

See Andrews v. Lincoln, 95 Me. 541 (50 Atl. 898); Gray, Perp. § 413; Bigelow, Eq. 17; Jenkins v. University, 17 Wash. 160 (49 Pac. 247, 50 Pac. 785); Greene v. Dennis, 6 Conn. 293 (16 Am. Dec. 58); Van Kleeck v. Reformed Dutch Church, 6 Paige, 600; Post v. Hover, 33 N. Y. 593; La Large v. Brown, (Sup.) 52 N. Y. Supp. 93; Lawrence v. Smith, 163 Ill. 149 (45 N. E. 259); Thomas v. Gregg, 76 Md. 169; Tilden v. Green, 130 N. Y. 29 (28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487).

The remaining question calling for consideration is, Will chancery take jurisdiction of this case ? In Davenport v. Stephens, 95 Wis. 456 (70 N. W. 661), it was said:

“Some question was raised whether the plaintiff has shown such possession as should entitle her to -maintain this action. It is entirely immaterial whether she was in actual possession or not. No other person was in the actual possession. One who has the legal title to land, whether in possession or not, may maintain an action in equity to remove a cloud of title upon his land, where the invalidity of the hostile claim cannot be shown by any record, but must be proved by evidence aliunde. Pier v. City of Fond du Lac, 38 Wis. 470; Goodell v. Blumer, 41 Wis. 436; Herren v. Strong, 62 Wis. 223 (22 N. W. 408). In this case the invalidity of the defendant’s claim could be shown only by evidence dehors the record. Section 3186, Rev. Stat. [1878], extends, rather than limits, the jurisdiction of the courts in the cases to which it is applicable. Fox v. Williams, 92 Wis. 320 (66 N. W. 357).”

See Chautauque County Bank v. White, 6 Barb., at page 605; Beedle v. Mead, 81 Mo. 297; 1 Comp. Laws, § 448; Rowland v. Doty, Har. Ch. (Mich.) 3; Ormsby v. Barr, 22 Mich. 80; King v. Carpenter, 37 Mich. 363; Eaton v. Trowbridge, 38 Mich. 454; Allen v. Waldo, 47 Mich. 516 (11 N. W. 366); Cleland v. Casgrain, 92 Mich. 139 (52 N. W. 460).

The decree of the court below is affirmed. Defendants will be allowed 30 days in which to answer.

The other Justices concurred.


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    PARKINSON v. PARKINSON.

    Divorce — Cruelty—Prejudice oe Children — Witnesses.
    Where complainant’s allegations of cruelty were only supported by his own testimony and that of his son and daughter, who were clearly prejudiced against defendant, and the wife’s testimony, which was corroborated by that of neigh.bors, denied the allegations, a divorce should not have been granted.
    Appeal from Wayne; Rohnert, J.
    Submitted June 3, 1903.
    (Docket No. 20.)
    Decided September 22, 1903.
    Bill by Charles A. Parkinson against Mary E. Parkinson for a divorce. From a decree from complainant, defendant appeals.
    Reversed.

      Allan H. Frazer, for complainant.

      George H. Prentis, for defendant.

       Rehearing denied October 27, 1903.

   Grant, J.

Complainant asked and obtained a divorce from his wife in the court below. They had been married 24 years when the bill was filed, and had reared three children, who were then, respectively, 22, 20, and 17 years of age. The charge is extreme cruelty. The acts charged are threats to kill complainant and the children, the use of profane and abusive language, assaults upon •complainant and two of his children, an ungovernable temper, slovenly habits, the taking and giving away of some of his personal property, and refusing him and his ■son entrance to his home. The answer denies all the acts of cruelty charged. The complainant’s case depends ■entirely upon his own and the testimony of one of his sons ■and his daughter. The prejudice and feeling of the children against their mother, and in favor of their father, ■very clearly appears in their testimony. Their neighbors, who were frequently in the house, and knew the defendant, unanimously give testimony showing that she was a faithful wife and a good housekeeper. The charge of •slovenly habits is so completely negatived by the testimony of those conversant with her housekeeping and home life that we regard this charge as completely refuted. This Refutation is so complete that it casts suspicion upon the ■credit to be given to all the testimony of the complainant ■and his children.

The complainant owned no property when they were married, and his wife remained closely at home during their married life, attending assiduously to the duties of fhe household and the rearing of the children. Complain•ant was frequently away from home on hunting and fishing excursions, while she remained at home, attending to her home duties. There is very strong evidence that complainant was not faithful to his marriage vows. When ■she refused her husband admission to the house was after .he had filed a bill for divorce against her, and which was -then pending, but afterwards discontinued. She was a witness in her own behalf, and denied all the charges made against her. A statement of the testimony would form no valuable precedent, and we consider it unnecessary to state it in detail.

We cannot agree with the learned circuit judge in holding that the complainant is entitled to a divorce. The decree below is therefore reversed, and the bill dismissed-,, .with the costs of both courts.

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


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    WATERS v. JOHNSON.
    1. Mechanics’ Liens — Statement of Claim — Surplusage.
    Where complainant filed a bill for the foreclosure of a lien for' a definite amount against defendant, a statement in the claim of lien as follows: “And also for certain materials furnished in’improving a house on land hereinafter described, in pursuance of a contract with A. C., contractor,” — was treated as surplusage.
    2. Same — Owner—Claim of Lien.
    Sections 10714 and 10715, 3 Comp. Laws, requiring a claim of mechanic’s lien to contain the name of the owner of the-premises, if known to the claimant, and a copy of such statement to be served on the owner, refer to the person who-owns the premises at the time the claim of lien is filed.
    3. Same — I^ame of Owner Unknown.
    Where the name of the owner of the land is unknown to the-claimant at the time of making the claim of lien, that fact should be stated in the claim of lien.
    4. Same — Misstatement of Name.
    A misstatement in the name of the owner in a claim of lien-filed with the register of deeds is fatal to the proceedings, • unless the claimant’s ignorance of the true name of the owner-is chargeable to the owner himself.
    Appeal from Yan Burén; Carr, J.
    Submitted June 5,. 1903.
    (Docket No. 156.)
    Decided September 22, 1903.
    Bill by Harlan P. Waters, Frank J. Pugsley, and 'Harry C. Waters, copartners as H. C. Waters & Company, against Alva M. Johnson, Ellen M. Johnson,. .Elizabeth Stevenson, and the First National Bank of Paw Paw, to enforce a mechanic’s lien. From an order overruling a demurrer to the bill, defendant Stevenson appeals.
    Reversed.

      Barnard & Lewis, for complainants.

      .David Anderson and Archibald Gattell, for appellant.
   Carpenter, J.

This is a suit in chancery to enforce a mechanic’s lien. Defendant Stevenson appeals from an •order overruling a demurrer to complainants’ bill of complaint.

The bill avers that the labor and materials for which the lien is claimed were furnished under a contract between •complainants and defendant Alva M. Johnson, in improving and repairing the house and barn of said Johnson, , situated on the land described in said bill; that the first of .said material and labor was furnished July 6, 1901, and the last December 28, 1901; that on February 10, 1902, •complainants filed in the office of the register of deeds of Van Burén county (the county in which the property in -controversy is situated) their claim of lien, and served the .same on said Alva M. Johnson; and that defendant Alva M. Johnson and his wife, Ellen Mi Johnson, on December 21,1901, by warranty deed, conveyed the property in controversy to defendant Elizabeth Stevenson, and that said ■deed was recorded in the office of the register of deeds ■of Van Burén county, in Liber 111 of Deeds, at page 540.

The said claim of lien is annexed to, and made a part • of, complainants’ bill. It states that complainants furnished certain labor and materials in and for improving .and repairing a certain house and barn situated on the land thereinafter described, “in pursuance of a certain ■contract with Alva Mason Johnson, the owner; and also for certain materials furnished in and for improving and repairing a certain house and barn, situated on the land .hereinafter described, in pursuance of a certain contract -with Alonzo Curtiss, contractor; * * * and that there is justly and truly due [the complainants] therefor from-the said Alva Mason Johnson, over and above all legal-set-offs, the sum of $305.33, for which amount [they] claim-a lien on said land, of which Alva Mason Johnson is the-owner.” Said claim of lien is sworn to by complainant Harry C. Waters.

The grounds of the demurrer may be classified under three heads, which we will proceed to state and dispose of.

First. That said bill did not sufficiently state the terms-of the contract and of its performance. -Respecting this ground, we think it unnecessary to say more than that in our opinion it is not well taken.

Second. That it appeared by the claim of lien that a portion of the amount claimed was furnished to AlonzoCurtiss, a contractor; that the bill was defective in not stating what amount was furnished to Curtiss, and in not making him a party. The basis of this ground of demurrer is-the following statement in the claim of lien:

“And also for certain materials furnished in and for improving and repairing a certain house and barn, situated on the land hereinafter described, in pursuance of a certain contract with Alonzo Curtiss, contractor.”

The only construction we are able to place upon the-claim of lien compels us to regard the foregoing statement as surplusage. It seems to have no connection whatever-with the claim asserted against defendant Johnson, which, it is stated, amounts to $305.33. In our judgment, therefore, this ground of demurrer is not well taken.

Third. That the case made by the bill is fatally defective, because it shows that complainants named as owner in their claim of lien, and served notice of said claim upon, not defendant Stevenson, but defendant Johnson. It appears by the bill that defendant Johnson owned the-property at the time that complainants entered into their contract to improve and repair it, and that defendant Stevenson owned it, and had owned it for more than a month, when the claim of lien was made. In making- and serving the claim of lien, should the lien claimants. have regarded defendant Johnson or defendant Stevenson as the owner of the premises ?

The statutes which provide for this claim and service are sections 10714 an,d 10715, 3 Comp Laws. Section 10714 provides for the claim of lien. It requires the claim to contain, among other things, ‘ ‘ the name of the owner, part owner, or lessee, if known,” and to be verified by affidavit; and the form therein contained has this recital; ‘ ‘ Of which-is the owner (or part owner or lessee, as the case may be).” Section 10715 requires a copy of said statement, “within ten days after the filing thereof,” to be served “on the owner, part owner, or lessee of such premises,” and that “proof of such service shall be filed in the office of the register of deeds * * * before any subsequent proceedings shall be taken for the enforcement of such lien. ”

We think it obvious that the owner referred to in both these sections is the owner at the time the- claim of lien is made. In our opinion, the above-quoted language of the statute admits of no other construction. The evident purpose of the statute is to give notice to the party most vitally interested that a lien is asserted against his property. We cannot suppose that the law contemplated so futile a proceeding as a notice to one who has no interest whatever in the property, simply because he once had an interest-therein. While this question has never before received the attention of this court, decisions in harmony with these views have been made in several of our neighboring States. See Amidon v. Benjamin, 128 Mass. 534; McPhee v. Litchfield, 145 Mass. 565 (14 N. E. 923, 1 Am. St. Rep. 482); Derrickson v. Edwards, 29 N. J. Law, 468 (80 Am. Dec. 220); Corbett v. Chambers, 109 Cal. 178 (41 Pac. 873); Sprague Investment Co. v. Mouat Lumber & Investment Co., 14 Colo. App. 107 (60 Pac. 179); Willamette Lumbering Co. v. McLeod, 27 Or. 272 (40 Pac. 93); Collins v. Snoke, 9 Wash. 566 (38 Pac. 161).

Complainants contend that they were under an obligation to name in their claim of lien, and to serve notice upon, the true owner only when his name was known to them, and that it is not in this case to be presumed that her name was known to them. The basis of this contention is the language of section 10714, requiring the statement of the name of the owner, “if known.” It is true that lien claimants are by this language relieved from the obligation of stating in their claim the owner’s name, if in fact his name is not known. See McPhee v. Litchfield, 145 Mass. 565 (14 N. E. 923, 1 Am. St. Rep. 482); Durling v. Gould, 83 Me. 134 (21 Atl. 833). The lien claimants must take advantage of this language when they make their claim of lien. If, as in this case, they file a statement in which they swear, in effect, that they do know the owner’s name, the statute does not relieve them from the consequences of a mistake in stating that name. McElwee v. Sandford, 53 How. Prac. 89. It is to be noted that if the lien claimants are, by section 10714, relieved from their obligation to state in their claim of lien the owner’s name when they do not know it, there is nothing to indicate that their obligation in section 10715, to serve the owner within 10 days, does not bind them within that time to ascertain his name.

What, then, are the consequences of misnaming in the claim, and of failing to make service upon, the owner whose property it is sought to take ? The statute, in our judgment, imperatively requires that said owner be named in the claim, save when his name is unknown, in which case it need not be stated, and that service be made upon said owner within 10 days. It follows, therefore, that when the lien claimants proceed against a certain person as the owner, and positively swear in their claim that he is the owner, they will not be permitted to excuse this mistake by pleading ignorance, pnless, as hereinafter pointed out, that ignorance is justly chargeable to the owner himself. A contrary construction of the statute would defeat its evident purpose, that the owner, as well as others inspect-ring the record, should have notice that his interests are affected. One inspecting the record made by the complainants in this case could not suppose, as possibly he might if the claim of lien had not positively averred defendant Johnson to be the owner, that the interests of defendant Stevenson were in any way affected. It follows, therefore, that the suit of complainants must fail, unless under an amendment to their bill they can present proofs which will excuse their disregard of the provisions of the statute. If no such amendment is possible, we ■should, in reversing this case, not only sustain the demurrer, but dismiss complainants’ bill. If such an amendment is possible, we should remand the record to the ■court below.

We are bound, therefore, in disposing of this case, to determine whether it is possible for complainants to make a case which would excuse the mistakes pointed out. We have already determined that these mistakes would not be excused simply because complainants did not know that defendant Stevenson was the owner of the property. If, however, defendant Stevenson so conducted herself as to lead complainants to believe that defendant Johnson continued the owner of said property, she would be estopped from taking advantage of their position now. If she neither took possession of the property in suit nor recorded her deed, we think her conduct would have justified complainants, in the absence of any notice to the contrary, in asserting that said Johnson continued to be the owner of ■said property. The bill of complaint avers no fact directly bearing upon this question. While we cannot presume the existence of any such fact, it would be unjust to deprive complainants of all opportunity of proving it, if by any possibility it does exist.

The order of the court below overruling the demurrer will therefore be vacated, and the demurrer sustained. The case will be remanded to the court below, with directions to permit complainants to amend their bill, if, under the decision in this case, they are advised that such an amendment can be made. Defendant Stevenson will recover costs.

The other Justices concurred.