text:
    NEWBERRY v. CHICAGO LUMBERING CO.
    1. Wills — Devisees—Rights of Action — Trespass on Lands.
    The right of action for unlawfully cutting timber on lands previously devised accrues only to the devisee.
    3. Assignments — Effect—Interest Transferred.
    An assignment by the devisee of lands of his right of action for unlawfully cutting timber thereon passes nothing where, previous to the assignment, he had settled with the trespasser and given up such right for a valuable consideration.
    3. Appeal and Error — Pleadings — Amendment — Discretion of Court — Harmless Error.
    Where, in an action of trover for the conversion of timber, the defendant claimed upon a second trial that plaintiffs’ assignor had waived his right of forfeiture by extending the time for removal of the timber, and it appears that the court considered this a proper defense, and was disposed to allow such an amendment of the notice accompanying the plea as to cover it, and that all knew that defendant supposed the defense to be covered by the notice as amended, the discretion of the court in allowing the amendment will not be interfered with, and no prejudicial error arising from variance appears.
    4. Pleading — Inconsistent Defenses — Election—Estoppel.
    The question of estoppel arising out of election of defenses (if the rule applies to defenses) depends upon there being a necessary inconsistency between the two claims, and a duty to choose between them; and in an action for the conversion of timber there is no inconsistency between a claim that plaintiffs’ assignor had settled the matter before assignment, and a claim that he had waived the right of forfeiture and extended the time to cut the timber.
    5. Vendor and Purchaser — Standing Timber — Time to Remove — Forfeiture — Waiver — Sufficiency — Statute of Frauds.
    The right to claim and enforce a forfeiture of standing timber sold by written contract may be waived by parol.
    6. Deeds — Quitclaims—Effect.
    A quitclaim deed of lands conveys no interest in standing timber thereon which has been previously conveyed by the owner by written instrument, the right of forfeiture therein reserved having been waived.
    7. Licenses — Revocation — Interest of Licensee — Sale of Standing Timber.
    A purchaser of standing timber has a license coupled with an interest, and if the vendor’s right of forfeiture for non-removal is waived, the license is not revocable during the continuance of the interest.
    8. Vendor and Purchaser — Standing Timber — Nonremoval— Forfeiture — Waiver.
    In an action of trover for the conversion of timber, evidence examined, and held, to support a finding that the vendor’s right of forfeiture for nonremoval had been waived prior to the assignment of his rights to plaintiffs.
    9. Compromise and Settlement — Claim for Conversion — Validity.
    Where a creditor of an estate filed a bill to reach the interest of the heirs in a contract under which defendant was cutting timber on lands belonging to a decedent, which action resulted in the heirs givifig defendant bonds of indemnity, there was no legal impediment to an agreement involving the settlement of the suit before decree, the surrender by defendant of its indemnity bonds, and the relinquishment by the sole heir and assignee of the claimant of all claims against defendant for trespass growing out of the timber contract.
    10.Principal and Agent — Authority of Agent — Compromising Claims.
    Where the administrator of an estate was given a power of attorney by the heirs authorizing him to settle and adjust all aooounts with any person and to compromise and conclude the same, he had authority to compromise a claim of the heirs against defendant for trespasses in cutting timber on lands of decedent after expiration of the time for removal, and to waive a right of forfeiture thereof for nonremoval.
    Error to Schoolcraft; Steere, J.
    Submitted June 4, 1908.
    (Docket No. 15.)
    Decided September 10, 1908.
    Trover by Jay L. Newberry and Lou J. Le Veque against the Chicago Lumbering Company of Michigan. There was judgment for defendant, and plaintiffs bring error.
    Affirmed.

      George P. McCallum (L. O. Holden and Frank P. Sullivan, of counsel), for appellants.

      O. W. Dunton (G. It. Brown, of counsel), for appellee.
   Hooker, J.

The plaintiffs brought and were defeated in an action of trover for the conversion of timber cut by the defendant upon certain lands. The cause is now before us on a writ of error issued at the instance of the plaintiffs. It was tried before the circuit judge without a jury, and a finding of fact and law was filed. The land from which defendant cut the timber consisted of 280 acres which had belonged to James Gibb Ross, of Quebec, at the time of his death, on October 1, 1888. Ross left a will, in which he devised all of his property to his brother, Frank, with directions to use one-half for charities, and the other half for himself, except £2,000, which he was directed to send to Miss Mary Frame. It was 14 years after the death of James Gibb Ross before this will was discovered, and admitted to probate in Marquette county, Mich., on July 1, 1908. At that time the estate had been in the hands of an administrator continuously after 1889, and much of it had been distributed among creditors and heirs of James Gibb Ross. If the record shows when this action was commenced, we have been unable to ascertain readily. Reference to the original record shows, however, that a declaration was filed December 16, 1905, which states that defendant had been previously summoned. Before that time the administrator had rendered his final account, which was allowed. The residue of the estate was assigned to Frank Ross, the administration closed, and the administrator discharged by order of Marquette probate court, dated July 6, 1908, three days after the admission of the will to probate. While the property was being administered as that of an intestate, presumably under the misapprehension that Ross had left no will, persons apparently recognized by all parties to this action to have been the heirs of James Gibb Ross, acting through one James Connolly, as attorney in fact, sold by two separate contracts to the defendant all of the pine timber on upwards of 24,000 acres of land belonging to the estate, in which the lands involved in this case were included. These contracts fixed a time limit for the cutting and removal of said timber at September 9, 1899, and they contained the following provision, viz.:

“And if not so removed by said date, the right to remove the same shall be forfeited.”

Full payments were made according to the terms of the contracts of sale, and the contracts were ratified by Frank Ross and the others interested in the estate; no controversy being raised as to the validity of the transactions. The first contract bears date September 6, 1889, the second October 26, 1891. In November or December, 1898, defendant applied to Connolly for an extension of time to cut the timber upon the land included in this action. At this time Connolly was the Michigan representative and general agent of the Ross heirs, and administrator of the estate. Connolly informed defendant that the time would be extended on same, and subsequently encouraged defendant to expect an extension of time on other lands. On December 19, 1898, Connolly sent defendant a quitclaim deed of the timber, with a letter saying that- he thought “it was all that defendant would require.” This quitclaim covered the 40 acres of the land on section 24 included in this action. It was signed “John Connolly, Administrator,” and it had but one witness. The defendant went on and removed the timber. Connolly some years afterwards challenged defendant’s right to continue cutting, and between February and April, 1900, caused an estimate to be made of the timber then standing on the lands, and some correspondence passed between Connolly and defendant about the matter. Apparently on December 15, 1900, Connolly had been succeeded as administrator by one Russell, and on that day the latter filed a bill against defendant and the Ross heirs. It charged that the claim of one Sullivan for $100,000 had not been paid,/ and that Connolly and the heirs had sold land and timber, and paid some claims against the estate, and distributed the remainder of the estate, that Connolly had been removed as administrator, and Russell appointed in his stead. The bill also alleged the making of timber contracts with defendant, and prayed an accounting by all defendants in that suit and an injunction restraining further cutting by the defendant in this action, and application of the value of the timber cut to complainant’s claim. The cause was heard on pleadings and proofs, and an opinion was filed, in which the court held that the defendant in the present action must account to the administrator for timber cut and converted by it during the sis years nest preceding-the filing of the bill from the lands embraced in the contracts which were owned by the Ross estate. The injunction was modified during the pendency of the proceedings, and defendant allowed to continue cutting, provided it should report to the court the amount of timber it should cut. Before a final decree was made, and on April, 1903, the Sullivan claim was paid, and the bill was dismissed by consent of all parties. When the Sullivan claim was filed, the Lumbering Company (defendant in this action) was still indebted to the Ross estate to an amount of $11,000 or $12,000 for timber. It declined to pay, without being indemnified for any damages and costs it might sustain on account of the prosecution of the Sullivan claim, and thereupon the Ross heirs gave it a bond for $16,000 to protect it against the Sullivan claim. This was in November, 1895. At the same time the Bank of Quebec gave defendant a written guaranty to the extent of $16,000 as indemnity against loss that it might suffer by reason of paying the balance due for timber in case the claim of Sullivan should be sustained. The effect of the settlement which led to the dismissal of the Russell bill is one of the disputed questions in the case, and we will defer further reference to the facts in connection with it until that subject is discussed, except to say that the settlement was made on the evening of April 15, 1903.

The appearance of the plaintiffs in this transaction occurred in February, 1904, when Newberry and Connolly made a deal for securing by plaintiffs a quitclaim deed from the Ross heirs of some 10,000 or 12,000 acres of land in Michigan. One deed dated February 22, 1904, covered lands on the Lower Peninsula. The other, covering Upper Peninsula lands, was dated February 24,1904. In both the Ross heirs were named as grantors and plaintiffs as grantees. The nominal consideration for each deed was $1. They contained provisions assigning all rights of action of the grantors for trespasses and nonpayment of taxes under land contracts. Connolly sent these deeds to Ross & Co. by mail for execution, suggesting that, when they should have examined the deeds and found them satisfactory, they wire Connolly that they would not accept less than $1,000 for the lots described; $450 only having been offered. Without waiting for a reply, Connolly on February 24, 1904, acting as attorney for Frank Ross and other Ross heirs, executed to the plaintiffs a quitclaim deed purporting to assign and transfer to plaintiffs, their heirs and assigns, the Ross interest in the lands therein described, and all rights and claims the Ross heirs had against any person, firm, or corporation whatsoever for the unlawful cutting and removing of timber or trespassing upon any parcel, and for all neglect or refusal to pay taxes upon such lands as they had agreed to pay under contracts. Connolly afterwards telegraphed Ross & Co.:

“Newberry refuses to increase offer, will accept deeds executed by John Ross, think better accept.”

He was immediately advised (March 7th) that “John Ross could not sign deed, that he had no power of attorney from Frank Ross.” In the same letter he was informed that “we do not think that you are- getting enough for those lands, and do not like the way you have made up the deeds, too much of the blanket about them.” Defendant claims that Ross declined to sign deeds containing the clause assigning claims for trespass or neglect to pay taxes; but this is disputed. On May 11, 1904, Frank and John Theodore Ross, in consideration of $1, and other valuable consideration, for themselves and as attorney in fact and trustee for William and Anna Ross and Frances Ella Ross Fitzgerald, and William Patterson, executor of William Ross, deceased, gave a quitclaim deed to plaintiffs in this case for 6,000 acres, including the land in controversy in this action, and on June 3, 1905, Frank Ross, at the solicitation of both Connolly and Newberry, executed the following instrument:

“I hereby sell, assign, and transfer to Jay L. New-berry, of Petoskey, Michigan, and Lou J. Le Yeque, of Marquette, Michigan, and to their heirs and assigns, all claims I have against any person, firms or corporations, for nonpayment of taxes or unlawfully cutting or unlawfully removing timber from any and all lands heretofore sold and conveyed to them by me.
“ Witness my hand and seal this 3rd day of June, 1905.
[Signed] “Frank Ross.”

It was not delivered until after July 13, 1905, and no money was paid to Frank Ross or to the representatives of the Ross estate by plaintiffs in connection with this deal beyond the payment of the $450, paid the year before on delivery of the deed. The court found that:

‘ ‘ Newberry some time after brought suit in the United States court in the name of Frank Ross to recover for the alleged trespass involved in this suit; but, when Frank Ross learned of the same, he repudiated the action, and ordered the suit discontinued, which was done.”

Under the caption, “ Conclusions of Law,” the court has stated other facts in connection with his legal conclusions. As they are essential to an understanding of the case, we insert the “Conclusions of Law:”

“As this case now presents itself, it is the opinion of the court that the amount of timber cut from the lands in question by defendant, and time of cutting, are immaterial, as the same result would be reached if plaintiffs’ claims as to time and amount were conceded to be true. The views already expressed by this court in deciding the case on the previous trial, as to the force and effect of the settlement of the Russell chancery suit, are adhered to. It was then said:
“ ‘When the timber was severed from the land, it became personalty. It had all been severed from the land in sections 82 and 12, in town 45 north, of range 19 west, when the chancery suit of Russell, Administrator, v. Chicago Lumbering Company and Others, was heard and settled. The court in that case acquired jurisdiction to stay waste, enjoin removal, require an accounting for all timber cut or taken, and to render a personal decree against the defendant for the value of same. The court in that case held that defendant must account to complainant for the timber cut and removed from the lands described in this case, but, before a decree was entered, negotiations were had, and all matters in controversy finally settled. The question of title to and value of the timber then cut from the lands referred to in this case was involved in that. Those matters entered into the settlement as discussed and adjusted between the parties in interest. By that settlement the defendant took title to all severed timber, and is thereby now in a position to both deny plaintiffs’ title and show title in itself. While the Russell chancery suit was apparently begun by him, as administrator, for the purpose of protecting and collecting the Sullivan claim, yet the court, at the same time, acquired jurisdiction over this timber and authority to compel the defendant to account for same. The settlement which followed included all matters in controversy over which the court had jurisdiction. The litigation and settlement were not only between Sullivan, the administrator, and the Ross estate, but between the defendants in this case and Prank Ross, and the other defendants in that, and all questions as to the timber cut by defendant from these lands to that date were fully adjusted and settled. In that view of the case, there can be no recovery by plaintiffs for any timber cut from sections 12 and 22, in town 45 north, of range 19 west.’
“It was and is the opinion of the court that the unsevered timber yet remaining upon the land was not within the purview of that settlement, as it appeared by the record of the case, and that such record did not protect defendant in subsequently cutting and removing the pine then standing on the northeast quarter of the southeast quarter of section 24, in town 45 north, range 18 west. As the case then presented itself, it was also held that Connolly’s quitclaim deed of the timber upon that 40 was unauthorized and did not amount to a license to cut. That Connolly did extend the time to cut the timber standing upon that 40, and did waive the right of forfeiture to the full extent of his ability, both by parol and in writing, is beyond question. It now appears to the satisfaction of the court, by the testimony produced in this case, that Geggie, the authorized agent of Ross and representative of the Ross estate, ratified Connolly’s act by an agreement which he made with Charles R. Brown, the authorized attorney of defendant, on April 15, 1903. This agreement was in parol, and made the evening before the final settlement of the Russell suit. The matter of extension of time and waiver of forfeiture was not, in the opinion of this court, the subject-matter of the Russell litigation, which on the record would be disposed of by a settlement and discontinuance of that suit, but the fact that this agreement was entered .nto in connection with negotiations relative to the settlement of the Russell suit would not destroy its validity if the minds of the parties actually met, and such an agreement was actually entered into between them. Whatever room there was for contention at the last trial, it is now clearly settled that the time for cutting and removing standing timber can be settled by parol. Wallace v. Kelly, 148 Mich. 336.
“ It is strenuously urged and argued in this case on behalf of plaintiffs that both the testimony offered and defenses made at the first trial of this case and the present one are contradictory and inconsistent, that ‘ an examination of the pleadings and evidence upon the first trial of this case shows that, under the defense then made, defendant was liable in any event for the timber cut from section 24. The testimony produced by the defendant showed that the settlement took place in April, 1903. The timber was not cut on section 24 until the summer of 1904, consequently could not be included in the settlement. The object in changing the defense to extensions and ratifications is to cut off plaintiffs’ right to recover for that timber. Having been defeated upon the first trial on the theory adopted by defendant’s counsel, who alone furnished the testimony to support it, the same counsel now proposes to adopt another theory to overcome the fate of his first efforts, and again he furnishes the testimony to support his new position.’ In view of that contention, and to give the plaintiffs the full benefit of their exception, the testimony of C. R. Brown, George P. Brown, and James Geggie is made a part of the findings of fact. It is true that the testimony of C. R. Brown, given upon the former trial, did not go into detail or state specifically that Connolly’s extensions of time were discussed, but rather, in a general way, was to the effect that all matters in difference between the parties were settled. Yet it does not seem to us to be inconsistent with the testimony given by him at the present trial, which is more elaborate and goes more into details, being also substantiated by that of Geggie and George P. Brown, who did not testify upon the former trial. So far as he went upon the first trial, his testimony appears substantially as upon the second. It is true the contention was then made to the court that the settlement of the Russell suit included and dispos'ed of all matters between the parties, including the right to cut on section 24 also, and the testimony then offered was not sufficiently full to enable the court to find, as a matter of fact, that there had been an express extension of time and waiver in relation to section 24, But the failure of defendant to produce fully the testimony upon that point, and the refusal of the court to take the view contended for by its counsel, would not, upon this trial, estop it from the benefit of a parol waiver of forfeiture, now clearly proven by the testimony of more than one witness, and undisputed. The conclusion is reached in this case that Ross, by his general land agent, Connolly, and also by his general business manager, Geggie, who acted in the final settlement of all matters in difference between the Ross estate and defendant, waived conditions subsequent in conveyance of the timber in question, thereby giving defendant legal right to cut the timber from section 24, as it did, and that thereafter Ross neither had nor made any claim against defendant. When he assigned to plaintiffs all claim he had for trespass and nonpayment of taxes on lands previously conveyed to them, he neither had nor claimed, nor intended to convey, any claim or claims against the defendant for unlawfully cutting or removing the timber in question. Judgment will be entered in favor of defendant, with costs of suit.”

This cause has been tried twice. Upon the first trial the court found that the settlement in 1903 was a sufficient defense as to all’ claims of plaintiffs for timber cut before the settlement but not as to timber on section 24, which had been cut afterwards, and a judgment for $5,274 was rendered in plaintiffs’favor for the later cutting. A new trial was granted on motion of the plaintiffs. We understand that this motion was based on affidavits tending to contradict the alleged settlement as proved by defendant on that trial. Upon the second trial it was claimed by defendant, not only that the settlement was made, thereby extinguishing all claims that Frank Ross then had, if he had any, but that, though the settlement should not be established, there was a waiver of all right of forfeiture, and an extension of time for the removal of all timber from the land by agreement between the parties, and that this was recognized and ratified by the parties in the alleged settlement. As to this suggestion the plaintiffs make three contentions:

(1) That the pleadings do not justify such proof.

(2) That it is a defense inconsistent with that made on the first trial and therefore defendant is estopped to make it.

(3) That it was not proved.

It is evident that Frank Ross is the only person to whom a right of action could have accrued against the defendant for unlawfully cutting timber on these lands, because they were his lands under the will. It is undisputed that on June 3, 1905, he executed to plaintiffs an assignment of whatever rights he had, and it is obvious that if he never had such a right, or, having such, had previously thereto settled and given up such right for a valid consideration, nothing passed by such assignment, and the same is equally true of any conveyance or assignment made in the name or on behalf of Frank Ross after such settlement.

We will not discuss the first question at length. The record shows plainly enough that the court considered this a proper defense, that he was disposed to allow such an amendment to the notice accompanying the plea as to cover it, and that all knew that the defendant supposed that it was sufficiently covered in the notice as amended. Moreover, the plaintiffs were not deceived or misled regarding it, and the point is technical. We will not interfere with the discretionary action of the trial judge in allowing the amendment, and we find no error to defendant’s prejudice in relation to the subject.

The second ground of plaintiffs’ objection calls for but little more consideration than the first. Upon the assumption that, the defendant relied only upon the settlement, when the case was first tried, it does not follow that such reliance is necessarily inconsistent with the claim that Frank Ross had then no just claim, though the fact that it was not claimed before, if such were the fact, was one to be considered in determining the truthfulness of the claims of waiver and extension now set up. The question of estoppel arising out of election of defenses (if the rule applies to defenses) depends upon there being a necessary inconsistency between the two claims, and a duty to choose between them. There was no obligation to forego either of these claims, and no necessary antagonism between them. If it is true that there was a valid waiver of forfeiture or extension of the period of the right to cut, and still the matter was in dispute, no legal inconsistency arises from an adjustment of the claim, thereby ending the dispute.

The third contention requires us to determine whether there was a question of fact for the trial judge to decide as to the alleged waiver or extension; and this will require a reference to the testimony. It is undisputed that the time limit of the two contracts was September 9, 1899. The provision for forfeiture of the right to cut timber has been quoted. It provides for a clear forfeiture of a right to cut timber purchased and paid for. Williams v. Flood, 63 Mich. 493. That the right to claim and enforce such a forfeiture may be waived by parol is settled in the recent case of Wallace v. Kelly, 148 Mich. 336. It follows that, if there was any proof tending to show such waiver, the question was for the trial court, and not for us, but we must determine whether there was any such evidence. Connolly was shown to have been the general land agent for Michigan of all the Ross heirs, including Frank Ross, the devisee. He had powers of attorney from all of them. The following excerpt from the instrument executed by Frank Ross in his own right, and as attorney for the other heirs, indicates the power conferred on Connolly:

“Do hereby substitute, make, constitute, and appoint James Connolly, of the city of Marquette, in the State of Michigan, to be the true and lawful attorney of said Frank Ross and John Theodore Ross, acting as aforesaid, to whom they give full power and absolute authority for and in the name, and on the behalf of the said Frank Ross and John Theodore Ross, acting as aforesaid, for themselves and for the other heirs of the said late James Gibb Ross, to ask, demand, receive, and recover of and from all and every person and persons to whom it doth, shall or may concern, all and every the sums of money, both principal and interest, costs and charges, goods, wares, merchandise, effects, and things whatsoever that now is, or are, or hereafter shall be due, owing, payable, or belonging to the said Ross & Co., or of the estate of the late James Gibb Ross, or to the heirs of the late James Gibb Ross, in the State of Michigan, and in the state of Wisconsin; also for them, the said Frank Ross and John Theodore Ross, acting as aforesaid, and for the said heirs, to examine, settle, adjust and balance all accounts with any person or persons, and all judgments, and rights of action, and to compromise, arbitrate and conclude the same, and what shall be agreed on to receive, and to give good and valid receipts and. discharges therefor; and for and in the name and on behalf of the said Frank Ross and John Theodore Ross, acting as aforesaid, or in any legal manner, to sue, commence and prosecute any action or actions, suit or suits, at law or in equity, and to appear in any court or courts, there to answer, defend and reply to all matters touching or concerning the premises, and to do, pursue, sequester, implead, seize, arrest and attach persons and effects in the interest of the said estate, and generally in the premises to manage, negotiate, transact and conduct, liquidate, adjust and settle, as fully and amply as they, the said constituents, in their capacity and as such attorneys of the other heirs of the said decedent might or could do, if personally present.
“ Also to sell and dispose of the real estate belonging to the estate of the said James Gibb Ross, deceased, or which may now belong to the heirs of the said deceased, in the State of Michigan, and in the State of Wisconsin, with full power to make, execute, and deliver land contracts, deeds, and other conveyances of said real estate, hereby ratifying and confirming all that our said attorney, James Connolly, shall lawfully do or cause to be done by virtue of these presents. ”

There was testimony that Connolly was also administrator of the James Gibb Ross estate, that he was in control and management of such estate, and that he made defendant’s contracts, the validity of which has not been questioned. In 1898 the defendant applied to him for further time, which it claimed was necessary for the cutting of the timber which it had purchased. The negotiations were partly in writing, and some are said to have been oral. They related to an extension of time for the removal of the timber beyond September 9, 1899. Several letters passed, in which Connolly finally consented and Connolly executed and sent to defendant a quitclaim of the pine upon the descriptions on which extensions were asked. The evidence of Connolly indicates that his consent to the extensions was with the approval of, and authorized by, Frank Ross. Relying on the waiver, the defendant continued to cut timber on such lands, some of it on section 24, after the settlement of the Sullivan suit, and it paid the taxes up to the time it finished cutting as it had agreed in the contracts to do. If such a waiver and extension were made, they protected the defendant against any charge of trespass growing out of cutting timber under the contracts upon the lands covered by such waiver.

It is claimed by plaintiffs that, if defendant had an extension, it terminated at the end of two years according to its terms, and, if not, it was revoked by Connolly’s deed and the deeds from Ross to plaintiffs in the spring of 1904, after which time some of the timber on section 24 was cut. It must be remembered that the two deeds mentioned were quitclaim deeds, and therefore they conveyed, at most, only the remaining interest in this land. Previous to that time, defendant had purchased all of the timber on the land, and it had been conveyed to it by a proper instrument. It is true that it was subject to a forfeiture, but there is evidence in the case upon which the learned circuit judge found that the right to forfeit had been lawfully waived, not for two years merely, but absolutely. If that is true, the unqualified title to the timber was then in the defendant, and it did not pass by those quitclaim deeds to the plaintiffs. Defendant had a license coupled with an interest, and, if the right to forfeit was waived, it was not revocable during the continuance of the interest. Powers v. Harlow, 53 Mich. 507, and cases there cited; Williams v. Flood, 63 Mich. 490; Wait v. Baldwin, 60 Mich. 623, 626. We cannot say that there was no evidence supporting the finding. This disposes of plaintiffs’ contention that a verdict should have been directed in their favor so far as the timber cut from section 24 after the alleged settlement is concerned.

The finding does not show that the waiver extended to any other lands. As to those, the record shows that on each trial the court found that all claims for cutting timber after September 9, 1899, were settled at the time of the settlement of the Sullivan suit. This alleged settlement has been alluded to, though the facts have not been fully stated. Sullivan had a protracted litigation with Ross and his representative which resulted in a large judgment in his favor. Subsequently he filed the bill hereinbefore mentioned, to which defendant was made a party, with a view to reaching the purchase price or value of the timber cut by it. This led to complications in relation to the contracts between defendant and the Ross heirs, and some indemnity bonds were given to the defendant by the Rosses. Frank Ross, who was the devisee under the will, made an arrangement with Sullivan by which he agreed to, and subsequently did, pay his claim, taking an assignment of his judgment. By the terms of the arrangement, the chancery suit was to be settled before decree, and to this suit the defendant was a party, and it is its claim that its consent to this disposition of the chancery case was obtained by an arrangement with Frank Ross, in which it was agreed that it should give up its indemnity bonds, and that all claims for trespass growing out of the timber contracts should be relinquished by Ross. We see no legal. impediment to the validity of such an agreement. There was testimony tending to establish it, and the judge appears to have believed that such a settlement was made, for he has so found. The finding states that all timber sued for in this cause, except that on section 24, was cut before the settlement, and was covered by it, and that there could be no recovery for the cutting of such timber. It also states that the authorized agents of Frank Ross waived the forfeiture provided for in the contracts, as to section 24.

It is contended that there is no testimony tending to show that Connolly had authority to do this, and that there was no evidence of any valid ratification by Geggie or Brown, or authority on their part to ratify it. We think there is such evidence of both. There are some assignments of error that we do not specifically mention. Some of them relate to rulings upon the introduction of testimony, others that specific findings were not supported by any evidence. We omit further allusion, because they cannot affect the result. Some of them related to unessential matter; others we find to have an unsubstantial foundation, because there was evidence tending to support the findings.

The judgment is affirmed.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    CARPENTER v. CARPENTER.
    1. Husband and Wife — Separation Agreement — Construction.
    Under a separation agreement by which the wife agrees to accept certain described property and release all claim and right to any and all property, real and personal, then owned by or thereafter to be acquired by the husband, and to release him from any obligation to support her, property owned by the wife in her own right remained her own, and personal property and household chattels originally the husband’s, or accumulated after the marriage by joint effort, and not mentioned in the agreement, remained the husband’s.
    2. Crops — Conveyance of Land — Effect.
    Where, pursuant to a separation agreement, a husband conveyed land to his wife without reservation of the crop growing theron, the title to the crop passed with the land.
    3. Evidence — Parol Evidence — Varying Writing — Separation Agreement. '
    In trover by a wife against her husband for the value of property taken away by him subsequent to the execution of a separation agreement in writing, parol evidence is not admissible to show that the writing did not contain all of tho agreement.
    4. Trover and Conversion — Evidence—Title to Property:
    It was competent for the attorney employed by the parties mutually to draw the separation agreement to testify that the husband stated that the household goods belonged to the wife.
    5. Husband and Wife — Separation — Wife’s Property — Removal by Husband.
    Where, after the execution of a separation agreement settling their property rights, the husband took away property belonging to the wife, she was entitled to recover its market value, but she was not entitled to recover for property belonging to a third person.
    6. Same — Statutes—Application.
    Sections 8693 and 10333, subds. 7 and 9, 3 Comp. Laws, have no application to the rights of husband and wife under a separation agreement, and do not prevent a division of property between them or the sale or release by her to him of her interest in the property.
    Error to Grand Traverse; Mayne, J.
    Submitted June 4, 1908.
    (Docket No. 33.)
    Decided September 10, 1908.
    Trover by Perlie P. Carpenter against Ora A. Carpenter. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Underwood & Umlor and John W. Patchin, for appellant.

      Parm C. Gilbert, for appellee.
   Ostrander, J.

The parties are husband and wife, who, agreeing to thereafter live separate and apart from each other, undertook in December, 1905, to divide between themselves certain property. A written memorandum, signed by the wife, evidences the bargain which they made. Some personal property, which by the terms of this memorandum she was to receive, was not delivered to her and a cash payment of $25 was not made. There is testimony tending to prove that she owned in her own right personal property, and that her husband, the defendant, owned personal property in addition to that mentioned in the agreement. He gave her the homestead upon which their belongings were, and later he carried away property not mentioned in the memorandum which each claims to own. She sued in justice’s court in an action of trover, recovering a small judgment. Defendant appealed, and in the circuit court plaintiff recovered a judgment of $61, which defendant asks to have reversed for errors in admitting testimony and in instructions to the jury. It is not claimed that the form of the action would permit a recovery by plaintiff of property which her husband was by agreement to deliver or to pay to her, but it was agreed in the justice’s court, and later in the circuit court, that the differences of the parties should be determined, the form of the action notwithstanding. It is the theory of plaintiff’s case that a mutually binding and legally enforceable contract exists. The terms of that contract are clear. With the exception of the $35 cash, and a few bushels of buckwheat and of potatoes, she has received what he agreed to give. She, on her part, agreed to accept the described property, and release all claim and right to any and all property, real or personal, then owned by, or thereafter to be acquired by, her husband, and to release him from any obligation to support her. This is the only reasonable interpretation of the writing. If she owned property in her own right, it still remained her own. Personal property owned by the husband not mentioned in the agreement remained his property. Household chattels originally the husband’s, or accumulated after the marriage by joint effort, were not divided, and therefore remained the property of the husband. With the land, no reservation appearing in the deed which, pursuant to the agreement, was executed by the husband, passed the growing crops.

Testimony was admitted for plaintiff, over objection, which tended to vary the written agreement, to show that it was not all of the agreement. This was error. The testimony of the attorney employed by the parties mutually to prepare the agreement and deed, to the effect that the husband stated that the household goods or most of them belonged to the wife, was competent. The court properly instructed the jury, after going over the items of property mentioned in the agreement, as follows:

“ The claim is made by the plaintiff that some property was taken that was her own individual property. Now, as far as any of her own individual property was taken— if you find that any was taken, from the evidence in this case — she is entitled to recover its value, because it was her property, and under this contract she had not parted with the title to it, and her husband had obtained no title. What, if any, of her individual property was taken, he should pay for at its market value. Of the property enumerated in the pleading it is claimed that some of it belonged to Mr. Theron Carpenter, and other of it to a son ■ of his. Now, whatever property you find belonging to Mr. Theron Carpenter or to his son, neither the plaintiff nor the defendant had any title to it, and the plaintiff cannot recover it or its value. ■ You will not pay any attention to any property that belonged to Thereon Carpenter or to any other person. You will consider only the property of the defendant and the plaintiff.”

He, also, after reading 3 Comp. Laws, §§ 8692, 10,322, subds. 7, 9, and after reference to certain decisions of this court, said to the jury:

“Under these statutes and these two decisions, I charge you that, without the consent of the wife, the husband could not take the household goods without the consent of the wife, and, when he did take them, it was wrong and an injury to her rights, and he must respond for the damages in this action.”

We do not perceive how the statute provisions referred .to apply here. The exemption of household property from sale or mortgage without the consent of the wife and the interest in such property which the marital relation and the statute creates do not prevent a division of property by the husband and wife or a sale or release of her interest by the wife to the husband.

The judgment is reversed, and a new trial granted.

Grant, C. J., and Blair. Montgomery, and Hooker, JJ., concurred.


author: Blair, J.

text:
    MALINOWSKI v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railroads — Injuries to Passenger — Negligence— Evidence — Sufficiency.
    In an action by a passenger against a street-railway company for personal injuries alleged to have been caused by a premature starting of a car while plaintiff was getting on, evidence examined, and held, sufficient, though conflicting and containing inconsistencies and contradictions, to support a verdict for plaintiff.
    2. Witnesses —Credibility —Instructions —Propriety —Falsus in Uno Falsus in Omnibus.
    A requested instruction to the effect that, if a witness is untruthful upon one point, his testimony may be entirely disregarded, is properly modified by the addition of an exception with reference to matters as to which he is corroborated and leaving the truth of the witnesses’ testimony entirely to the jury-
    3. Trial — Instructions — Burden of Proof — Misleading Instructions.
    In an action by a passenger against a street-railway company for personal injuries, an instruction that the jury are the best 12 men to determine the accident, “because of this negligence, as the case may be,” of any 12 men in the world, because they have heard more about it, and know the most about it, was not misleading as intimating that defendant’s negligence had been established, the court having repeatedly charged that the burden was upon plaintiff to prove defendant’s negligence and his own freedom from negligence by a preponderance of the evidence.
    Error to Wayne; Donovan, J.
    Submitted June 4, 1908.
    (Docket No. 31.)
    Decided September 10, 1908.
    Case by Stanislaus Malinowski against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Dohany & Dohany, for appellee.
   Blair, J.

Plaintiff sued defendant to recover for injuries alleged to have been received June 3, 1905, through the negligence of defendant in suddenly starting a Brush street car while plaintiff was boarding the same on Woodward avenue between Fort street and Monroe avenue, in the city of Detroit. In consequence of the accident a wheel of the car ran over and crushed plaintiff’s right foot, necessitating the amputation of four toes. Plaintiff recovered a verdict of $1,200. Defendant entered a motion for a new trial, for the reason, among others, that the verdict was against the weight of the evidence. The motion was denied, reasons therefor filed, exceptions properly saved, and defendant brings the record to this court for review upon writ of error.

As stated by counsel for defendant in their brief, the principal point presented to this court is that the trial judge erred in not granting a new trial upon the ground that the verdict was contrary to the weight of the evidence.

Plaintiff testified:

“At that time I was working for the gas company at the meter house on River and Twenty-third streets; was earning $2.25 a day working nights. When I started home the morning of June 3d, I took a Fort street car, and got a transfer on Brush. Got off the Fort street car at Fort and Woodward, close to the city hall — in front of the city hall. I waited for a Brush street car right close to the city hall door. The Brush, street car stopped there where I was standing, right opposite the city hall on Woodward avenue. * * * While the car was standing still I tried to get on. I got my right foot on the step. I had hold of the railing with my right hand, and in the other hand I had my lunch basket. While I had my right foot on the step of the car, and my right hand hold of the brace, the car started off. When the car started off I fell off. It cut off four toes, my foot caught.”

George M. Kolb, sworn for plaintiff, testified as follows:

“I am a patrolman of the metropolitan police force, and have been for 13 years. I am now, and on June 3, 1905, was, connected with the central station. My beat on that morning was on Monroe and Cadillac Square. Saw Malinowski on that morning. When I first saw him he had his back to me. I just saw him falling from a Brush street car going north — an open car. When I looked at that car it was about between the center of the city hall and the south end of it — between Fort and Monroe, but nearer Fort. The car was going north while he was falling from it. I was standing right there in front of the German-American Bank, out toward the curbstone. After he fell I walked over there; saw he had his foot smashed — his right foot. Somebody telephoned for the ambulance, and I stayed until it came.”

John Kaminski testified for plaintiff:

“I am employed at the American Car & Foundry Company. I know plaintiff. On June 3, 1905, when he was injured, I was on Woodward avenue by the monument there. I was just walking up that way selling papers. The first I saw the plaintiff that morning, I saw him get on the Brush street car there. Before he got on the Brush street car, he was standing there on the corner waiting for a car. The car was going north. It stopped right there on Woodward avenue, between Fort and Michigan. I was standing right at the soldiers’ monument at that time. When the car came to a stop, plaintiff was getting on the car. It was an open car. While plaintiff was getting on the car, he fell on his back. He put his foot on the step that runs alongside of the car, and grabbed over there with his hand. After he grabbed the rod with his hand, and put his foot upon the board, the car started to go, and he fell on his back off the car under the wheel on the pavement. His foot went under the wheel.”

Defendant called as witnesses the motorman and conductor of the car, its stockkeeper, Cook, and two passengers by the name of Wilcox and Russell, who gave, evidence tending to show that plaintiff’s accident happened at the corner of Brush street and Gratiot avenue, several blocks distant from the place fixed by plaintiff and his witnesses. Mr. Russell testified:

“ I recollect an accident which happened in June, 1905, when I was on a street car, Brush street car. It happened on the Gratiot avenue line near the corner of Brush. I was sitting near the center of the car, I should imagine. The man was sitting ahead of me. I must have noticed him, but didn’t pay any attention to him more than any other passenger. The accident first drew my attention to him. I saw him step from the car. I thought he stepped from the car; it did not appear to me that he fell off. It seemed to me that he got off of his own volition. He certainly fell down. He was on the ground or street or pavement afterwards, after he got off the car. * * *
“Q. Do you think you would know the man, if you saw him again ?
“A. No, sir; I do not think I would.”

Mr. Wilcox testified:

‘c I was sitting in the car, an open car, about 8:10 or 8:15 a. m. To the best of my recollection, I was sitting in the forward part of the car, probably the third seat, ánd there was a man got on the car there, and the car stopped at Brush street, and as the car turned on Gratiot he was sitting on the end seat, and he simply rolled out of the car, so far as I could see, and fell on the pavement, and was picked up and sat back on the car. * * * He took off his shoe, as I remember it. I did not see his foot bleeding, or anything of that nature. I got off the car at Jefferson avenue. The man was still on the car then. I do not think I would recognize him if I saw him. As to his nationality, I would say that he was either a German or Polish descent. He said something, but I could not make out what he said. It was not English, anyway. * * * I do not know the dates this occurred, except it was somewhere about June, 1905. I have never seen any other street car accident. When the man took off his shoe, he was about turning onto Monroe avenue. * * * I remember now, he took his shoe off, and then commenced to take off his sock. That was just a little after the car turned into Monroe avenue. Possibly before he got down to the city hall.”

The conductor, Adamson, testified:

“I first saw the man when he got on the car at Gratiot and Brush, when we stopped there to let our passengers off. The car at that time was going south on Brush street. It stops right on Brush, before you get to Gratiot, to take on and let off passengers there, north of Gratiot on Brush. At the time plaintiff got on the car I was on the rear end; saw him get on platform. Well, when we stopped to let our passengers off, they all got off, and I think that there were two got on, this man and some other man. He got on the front seat, and started to go in to sit down, and I gave the bell to go ahead, and when we started to go around the curve, he got up again and started to get out again, to the outside, going around the curve. I hollered at him to stop, but he got hold of the handle, and as he went around the Gratiot curve, he fell immediately. I gave three bells to stop, the car, and the motorman checked her up, I suppose, in 10 or 15 feet, and we jumped out and picked him up, and put him on the car again, and asked him if he was hurt, and he says, ‘Yes, I am hurt.’ He got on, and I says, ‘We will take you down, and send you to the hospital.’ And at the time we got to the city hall, I told the boy who turns the switch, I told him to telephone for an ambulance, this man says he was hurt. At that time I did not know his foot was crushed then, and I asked him if he wanted to get off, and he says, ‘No; I do not want to get off here.’ I says, ‘All right, we will go down to the depot and come back,’ and after we got down to the depot, he had his shoe removed, and I saw his toes were all bleeding, and the blood was all running over the platform, and we started up again, and we got him off at the city hall, and we got him off there, and he went over to the curb, and I left him in charge of the switchman, and told him to go to the hospital, his foot was hurt. * * * Now, I could not tell you about the date that this accident did occur, in fact it is so long ago I have forgotten. I never saw the man who was injured the date that I tell about after-wards, that I know of. I don’t think I ever saw him from that date up to this; I might have, but I would not know him. * * . * I didn’t start the car before this man got into his seat. He was just sitting down in the front seat. After my car started he jumps out of the seat and started for the side of the car.”

The witness Cook testified:

“At the time he got on, the car was standing still. He first got on the running board as the car started, and then he stepped into the first bench. As the car entered the curve he attempted to sit down, and then stood up again, and put his hand in his pocket. It seemed to me he was going to take out some change, and, as the car swung out on the main track, lost his balance and fell to the ground, striking on his right shoulder, and threw his right foot under the wheel. I got off the car and picked him up. The car stopped. * * * He was standing there just as the car struck the curve. He did not have hold of anything at that time. The car went around the curve while he was in that position. As the car struck the straight track, before he got quite seated, he was thrown headlong on the pavement. He tried to grab hold of the handles, and did not succeed in grabbing anything. He went off head first, off the right-hand side of the car. * * * The car did go some distance after he struck the pavement. I didn’t think at that time any wheel had gone over his foot. I had no reason to believe any such thing had occurred. * * * I did not have anything to do with him after I picked him up. He was sitting down like any other passenger, and rode away. There were no other people in that seat at that time. There were between 6 and 10 people on the car at that time. * * * This man sat in the front seat like any other passenger, and rode along with me after he got back on,
“Q. When did you find out this man had lost four toes off his foot ?
“A. I read it in the paper that night.
“Q. That is the first that you knew of it ?
“A. Yes, sir. * * *
“Q. You could not see this man’s foot while you were sitting alongside of him ?
“A. Yes; I could see his foot, but there were no marks of being run over. I did. not see anything to indicate anything wrong with his foot. I had no occasion to think so.”

The motorman, Weibel, testified:

‘ ‘ I recollect the accident that happened on the 3d day of June, 1905. It happened on Brush, corner of Gratiot, on Gratiot, corner of Brush. * * * I went slow around the curve, and after I got on the main track, I got three bells to stop, and I stopped the car immediately, and I looked back and saw a man lying on the pavement, and I went back there, and my conductor and a man who works down below, he wórks here, this man Cook, picked him up, and he walked, and I thought his shoulders were hurt the way he walked. * * * He didn’t take his shoe off until after we were coming up the hill.
“Q. And then you didn’t see his foot at the depot ?
“A. No, sir.
“Q. Not at all ?
“A. No, sir.
“Q. It was after you got away from the depot ?
“A. Yes, sir. * * * When we were coming up, at that hill from the depot, I discovered that he had a foot injured so bad he ought to go to the hospital. * * * Up to that time I had not heard any complaint at all from him about his foot.”

There is no inherent improbability in the account given by plaintiff and his witnesses as to the place where, and the manner in which, the accident occurred. It is apparent that the most important question of fact in the case was, Where did the accident really occur ? Upon this question the witnesses for the respective parties are in irreconcilable conflict, and its determination must depend upon the credit given by the jury to the individual witnesses. There were inconsistencies and contradictions in the testimony of ' plaintiff’s witnesses. There were also inconsistencies and contradictions in the testimony of defendant’s witnesses. The credibility of witnesses is a subject peculiarly within the province of the jury, and they evidently believed the plaintiff and his witnesses, and adopted their version of the accident as reliable. The trial judge, who heard the same testimony, declined to hold that their verdict was against the weight of the evidence; and, after a careful consideration of all the testimony, we are of the opinion that such determination was not erroneous.

Error is also' assigned upon the refusal to give defendant’s third request to charge without qualification. The third request was as follows:

“ I charge you that if you find that a witness is telling an untruth about any one point, you may find that the whole of that witness’ testimony is not to be believed, and disregard that witness entirely.”

To this the court added the following:

“Except it be corroborated by other testimony, but I will leave the truth of the witnesses’ testimony entirely to the jury.”

We find no error in this qualification. Heddle v. Railway Co., 112 Mich. 551.

It is further contended that the trial judge erred in charging the jury as follows:

Now, gentlemen, with your candor, with your training, with your business experience, and with the instruction that you have had here, you are the best 13 men to determine this accident, because of this negligence, as the case may be, of any 13 men in the world, because you have heard more about it, and know the most about it.”

In view of the fact that the trial judge repeatedly instructed the jury that the burden of proof was upon the plaintiff, and that he must prove defendant’s negligence and his own freedom from negligence by a preponderance of the evidence, we do not think that the jury could have understood the court as intimating to them that defendant’s negligence had been established. Seeley v. Swift & Co., 151 Mich. 545.

The judgment is affirmed.

Grant, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Grant, C. J.

text:
    PRATT v. MILLARD.
    1. Exeoutobs and Administbatobs — Rights and Duties — Real Estate.
    An administrator, either general or special, has no interest in the real estate, and no right to the possession thereof, except when there is insufficient personal property to pay the debts and expenses of administration.
    2. Same — Right to Maintain Suit.
    In the absence of any allegation in the bill that it was filed in the interest of creditors, or any offer to show that there were creditors, an administrator could not maintain a suit to set aside deeds executed by intestate, on the grounds of fraud, undue influence, and mental incapacity.
    3. Costs — Appeal—Chanoeby Suit — Eailube to Demur.
    Where a bill filed by a special administratrix showed upon its face that complainant was not entitled to maintain the suit, defendant should have demurred and thus avoided the expense of preparation for trial; and where defendant did not raise the question until after complainant’s counsel had made his opening statement prior to taking proofs in open court, no costs were allowed on affirmance of a decree dismissing the bill.
    Appeal from Grand Traverse; Davis, J., presiding.
    Submitted June 4, 1908.
    (Docket No. 18.)
    Decided September 10, 1908.
    Bill by Sarah E. Pratt,'special administratrix of the estate of Delia Stata, deceased, against Hattie A. Millard to set aside certain deeds. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      J. J. Tweddle, for complainant.

      John W. Patchin, for defendant.
    The purpose of the bill of complaint in this cause is to set aside two deeds, alleged to have been obtained through fraud and undue influence on the part of the defendant, the grantee, and the mental incapacity of the grantor. The grantor was one Delia Stata. One deed was executed November 4, 1898, and the other February 8, 1899. Mrs. Stata died intestate March 12, 1901. No administration upon her estate was had until May 21, 1906, when complainant was appointed special administratrix, and on May 31st following filed this bill of complaint. She alleged in it that she and defendant are sisters, and that they and four others (naming them) are the sole heirs at law of the deceased, and that the interests of all except defendant “are represented by your oratrix as special administratrix of said estate.” She then alleges with great prolixity the facts upon which she relies for relief. Defendant answered, denying that complainant represents the other heirs, and traversing all the charges of fraud, undue influence, and mental incapacity. The answer contains the usual general demurrer clause. Replication was duly filed, and demand made for taking testimony in open court. The cause came on for hearing, and counsel fdr complainant made a statement of his case. Counsel for defendant then objected to the taking of any testimony, and moved to dismiss the bill upon the ground that the court had no jurisdiction of the case, because, under the law, neither a special nor general administrator has the authority to file a bill of complaint to set aside deeds executed by his intestate, except for the benefit of creditors. The court so held, and entered a decree dismissing the bill without taking any testimony.
   Grant, C. J.

(after stating the facts). Upon the hearing and argument in the court below, and as well in this court, the counsel for complainant insisted that she was entitled to maintain the bill in her capacity as special administratrix. He did not and does not now claim that complainant represented herself or the heirs at law in any other capacity than as administratrix. There is no allegation in the bill that it was filed in the interest of creditors. Neither was there any offer to show that there were any creditors of the estate. An administrator, either general or special, has no interest in the real estate, and no right to the possession thereof, except when there is insufficient personal property to pay the debts and expenses of administration. O’Connor v. Boylan, 49 Mich. 209; Kellogg v. Beeson, 58 Mich. 340; Rough v. Womer, 76 Mich. 375. Under these circumstances it would have been idle ceremony to take testimony upon the merits, as no relief could have been granted.

The case is not ruled by Gray v. Eldred, 144 Mich. 23. In that case it was apparent that there might be two trials, and possibly two appeals to this court to determine the issues. In this case the statement made by the counsel in his opening showed that complainant was not entitled to a decree upon the facts stated. Under the statement, the heirs are the only ones who could maintain a bill to set aside the deed, as they are the sole parties interested. Defendant should have demurred, and thus have avoided the expense of preparation for trial. Under these circumstances, no costs will be allowed.

Decree affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: McAlvay, J. Grant, C. J., and Blair, J.

text:
    BRADFIELD v. BRADFIELD.
    1. Divorce — Jurisdiction—Residence oe Parties — Statutes — Construction.
    Section 8624, 3 Comp. Laws, is mandatory, and no court in this State has any authority to grant a decree of divorce unless it affirmatively appears that the complainant has resided within the State for one year immediately preceding the filing of the bill.
    2. Same — Residence—Intention—Eeeeot.
    In determining whether complainant in, a bill for divorce was a resident of the State as required by law, her intention as well as her acts must be considered; intention has always been given large consideration, but intention without acts to support it is not controlling.
    3. Same — Evidence—Sufficiency.
    On a bill for divorce, filed by the wife more than two years after her departure from her husband’s residence in this State, and within one month after her return to the State for the express purpose of instituting suit, evidence examined, and held, that she was not a resident of this State at the time of filing the bill.
    4. Same — Pleading—Admission oe Residence — Effect.
    In a suit for divorce, an admission in the answer of the allegation of residence in the bill cannot confer jurisdiction on the court, if the complainant is in fact a nonresident, nor does it preclude defendant from raising the question.
    Appeal from St. Clair; Law, J.
    Submitted June 8, 1908.
    (Docket No. 46.)
    Decided September 10, 1908.
    Bill by Elizabeth P. Bradfield against Thomas P. Bradfield for a divorce. Prom a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      George G. Moore (Cyrus A. Hovey, of counsel), for complainant.

      Bufus G. Lathrop (Bowen, Douglass, Whiting & Mur fin and Francis A. Stace, of counsel), for defendant.
   McAlvay, J.

A decree was granted complainant in this suit for divorce on the ground of extreme cruelty and nonsupport, and she was given the custody of two children. Defendant appeals, and alleges as reasons for reversing and setting aside the decree that the court did not have jurisdiction (a) because of the nonresidence of complainant; (6) because of the failure to notify the prosecuting attorney of the pendency of the suit as required by law; (c) because the decree is not supported by the evidence.

The provision of our statute upon the matter of the residence of a complainant is as follows:-

“No decree of divorce shall be granted by any court in this State in any case, unless:
“First, The party applying therefor shall have resided in this State for one year immediately preceding the time of filing the bill or petition therefor.” Section 8624, 3 Comp. Laws.

The provision is mandatory, and no court in this State has any authority to grant a decree of divorce unless it affirmatively appears that complainant has resided within the State as required by the statute. In determining whether in this case complainant was a resident of the State under this law, and in any case where residence is to be determined, the intention coupled with the acts of the party must both be considered. Intention has always been given large consideration, but claimed intention without acts to support it is not controlling. In this case the undisputed facts disclose that complainant resided with her husband in Grand Rapids, in this State, for several years after their marriage; that two children were born to them; that in June, 1904, complainant with, these children, a girl and a boy, went to visit her aunt in Pontiac, and to attend a wedding there, at which the children were to act as ribbon bearers; that she intended to return, but instead, without the knowledge of defendant, was induced to take the children and go with her mother to Atlantic City, N. J. The record shows that her mother resided at Atlantic City, N. J., and her father resided at Butte, Mont. These parties had before this had differences. They are both highly educated, refined, and cultivated people. Complainant was the daughter of wealthy parents, and at the time and since her marriage has received from her parents and friends diamonds, personal property, and cash to the amount of more than $25,000. Defendant was a young lawyer of good character, but without means, starting in his profession. Complainant’s father was always violently opposed to the marriage of these parties. It is undisputed, as the record shows, that complainant did not intend to separate herself from her husband, and not again return to him, until January 10,1905. At that time she so wrote him, and the determination then formed has been persisted in, and not been revoked. She had remained at her mother’s residence in Atlantic City from the time she went there as above stated, until the time this letter was written.

It is admitted by counsel for complainant that, until she determined to live separately from him, and refused to return to her home in Grand Rapids, his residence continued to be her legal residence. As already stated, she has never revoked her determination to separate and live apart from her husband, and, after she so announced to him, she continued to live in New Jersey. Whatever negotiations between the parties looking towards a reconciliation were had, were the acts of a relative or a friend. Complainant never sought them, and always imposed conditions which she knew defendant could not by any possibility meet. Both she and her counsel insist that she then changed her residence to Pontiac. This contention is based entirely, as far as that'time is concerned, upon her testimony that such was her intention. There is no evidence in the case that she so declared at the time. The court must discover from the record whether there are any acts and doings of complainant to support this claim, or whether it was simply an undisclosed intention. She remained in New Jersey for three months next following January 10, 1905. Her first return to Michigan was in April, 1905. She remained in the State six months, spending the time in Pontiac and Grand Rapids. Her aunt testifies that she was visiting her and some friends in Grand Rapids. Complainant testifies that while in Grand Rapids she packed her household goods. She returned to New Jersey some time in September, 1905, and continued to remain there, with her children, at her mother’s home, until August, 1906, when she came to Michigan for the express purpose of instituting this suit. The bill of complaint was filed September 7, 1906. At this time she was at her aunt’s house in Pontiac, and testifies that she was visiting her. During this period she testifies that she attended to the removal of her furniture from Grand Rapids, at about Thanksgiving time, and arranged to establish- her home in Pontiac. Her aunt testifies that she remained about two weeks after Thanksgiving, and then “rushed home to be with her children Christmas.” The removal of her furniture at or about the time the bill was filed in this cause is the first act disclosed by this record done by complainant to establish her residence in Pontiac. The record shows that complainant, during 13 of the 20 months intervening between her separation from her husband and the commencement of this suit, was living within the State of New Jersey; that her children lived there all of the time and were sent to school; that when she left Michigan and her husband she selected her place of abode in New Jersey, and by her acts became a resident of that State, thereby losing her residence in Michigan; that at the time of filing her bill she was not a resident of Michigan. Those who were nearest to her at the time so understood it. Her father testified :

“ My daughter and her children have made their home with my wife'for nearly four years.”
Mr. O’Brien testified:
“She was then living with her father and mother at Atlantic City.”

He is an eminent lawyer of Grand Rapids, who knew these parties well, knew the circumstances of the case, and counseled her at her father’s request.

It is urged that, even should the court hold that complainant was not a resident of this State within the meaning of the statute, defendant by admitting in his answer the allegation of the bill relative to her residence is precluded from raising the question. Such admission did not confer jurisdiction upon the court. If the law were otherwise, the very purpose of the statute would be defeated, and collusive and fraudulent divorces encouraged. Such holding would be against public policy. Upon this question the conclusion of the court is founded upon reason and supported by authority. Smith v. Smith, 10 N. Dak. 219. In this case the court said:

“Residence must be established to have been within the letter and spirit of the statute before the action was commenced, or the court acquires no jurisdiction of the subject-matter of the action. * * * Nor would her admission in her answer of plaintiff’s residence confer upon the court any jurisdiction in this respect. * * * It is. against the policy of the law that divorces be decreed by consent of the parties immediately interested. It is likewise against the policy of the law that courts should grant divorces to any applicants save bona fide residents of this State.”

. The supreme court of Indiana, in discussing this question, says:

“In every divorce suit the State, for the enforcement of its policy concerning the marital relation, constitutes the third party, and no admission can be made by the other parties which will affect the public interest.” Prettyman v. Prettyman, 125 Ind. 149.

See, also, Schmidt v. Schmidt, 29 N. J. Eq. 496; Bennett v. Bennett, 28 Cal. 600. It will not be necessary to discuss any other questions raised. The decree of the circuit court is reversed, and a decree will be entered dismiss-. ing the bill of complaint, without costs.

Moore and Carpenter, JJ., concurred.

Grant, C. J., and Blair, J.

We concur in the above opinion, and we also are of the opinion that complainant made no case upon the merits.


author: Carpenter, J.

text:
    DANT v. HALL.
    Partnership — Accounting—Propriety of Decree.
    On a bill for a partnership accounting, evidence examined, and held, to support the decree rendered.
    Appeal from Iosco; Connine, J.
    Submitted June 8, 1908.
    (Docket No. 39.)
    Decided September 10, 1908.
    Bill by Alexander Dant against George Hall for a partnership accounting. From a decree for defendant, complainant appeals.
    Affirmed.

      Jahraus & Bawden, for complainant.

      Ward B. Connine, for defendant.
   Carpenter, J.

This is a suit in equity for a copa'rtnership accounting. The copartnership was formed for the purpose of buying and shipping live stock. The suit was heard in the circuit court upon testimony taken in open court. The trial judge made a finding that there was $112.32 due defendant and entered a decree in his favor for that amount. Complainant appeals.

The principal complaint in this court is that the trial judge erred in deciding that a certain shipment of stock made by defendant on the 4th of September, 1905, was an individual and not a partnership transaction. This is a question of fact upon which there is conflicting testimony. An examination of that testimony satisfies us that the decision of the circuit judge was correct.

The only other complaint suggested by complainant’s brief relates to the method of computation adopted by the circuit judge. Indeed, we infer that no objection is made to that method, for the brief, though suggesting that a different method “can be taken and justice be done,” nevertheless states “perhaps the only way to determine this case and arrive at anything like a fair adjustment of the differences between these parties is to follow the method used by the trial judge.” We agree to the statement contained in the last quotation.

The decree is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    JOHNSON v. SMITH.
    Quieting Title — Evidence—Sufficiency.
    On a bill to quiet title to certain land, evidence examined, and' held, sufficient to support a decree for complainants.
    Appeal from Berrien; Coolidge, J.
    Submitted June 10, 1908.
    (Docket No. 58.)
    Decided September 10, 1908.
    Bill by James Johnson, Julia A. Johnson, and Eliza M. Smith against Mary P. Smith to quiet title to certain land. From a decree for complainants, defendant appeals.
    Affirmed.

      Gore & Harvey, for complainants.

      Charles H. Roberts and Lawrence C. Fyfe, for defendant.
   Moore, J.

This is a proceeding in chancery brought for the purpose of quieting the title of Eliza M. Smith to the W. \ of the W. i of the S. W. fractional J of section 35, town 7 S., range 21 W., which complainant Eliza M. Smith claims to own subject to the rights of Francis F. Brown, under a land contract possessed by him. The case was tried in open court. The circuit judge granted a decree as prayed for in the bill of complaint. The case is brought here by appeal.

A great many legal questions are discussed, particularly in the brief filed by the appellant. The important question, however, is not a legal one, but is a question of fact. In 1866 Henrietta A. Ballangee and Edna Ballangee were the owners of the southwest fractional quarter of section 35, containing 60.41 acres. On November 5, 1866, Henrietta A. Ballangee conveyed by warranty deed an undivided interest in the southwest fractional quarter of section 35 to Edwin Ballangee. On November 28, 1867, Edna Ballangee conveyed her undivided half interest in the land to Susan A. Swift. On April 20, 1869, Edwin Ballangee and wife conveyed -their undivided half interest in the land to James Johnson and Josiah Johnson. The defendant and her husband in 1879 resided on a piece of land next east and adjoining the above land. It is the claim of the complainant that it was agreed that the defendant should acquire the interest of Susan A. Swift, whose name then was Susan A. Swift-Orvis, which was an undivided one-half interest, and that, for the purpose of dividing the respective interests in said land and giving title thereto, James Johnson and wife and Josiah Johnson and wife would deed their interest in the east half of said land to the said Mary P. Smith, and that Mary P. Smith would deed her interest in the west half of said land to the said Josiah Johnson and wife and James Johnson and wife. It is further claimed that Mary P. Smith, in pursuance of said agreement, purchased the interest of Susan , A. Swift-Orvis, and that for the purpose of carrying out said agreement aforesaid the following conveyances were made: Quitclaim deed from James Johnson and wife and Josiah Johnson and wife to Mary P. Smith, dated May 23, 1879, acknowledged same' day, recorded June 17, 1879, conveying the east half of the southwest fractional quarter of section 35-5-21, containing 30.21 acres; quitclaim deed Mary P. Smith to Josiah Johnson and wife, Margaret, and James Johnson and wife, Julia A., dated May 23, 1879, acknowledged same day, recorded December 30, 1881, consideration one dollar, conveying 'the west half, section 35-7-21, 30.21 acres. Another deed pertaining to this transaction is a warranty deed from Susan A. Orvis, formerly Susan A. Swift, to Mary P. Smith, dated June 15, 1879, consideration $1,000, conveying undivided half of southwest fractional quarter, section 35-7-21. When the Johnsons first acquired an interest in the land, there was a house and prchard on the west half of the land into which J osiah J ohnson moved, and where he continued to live until his death, 20 years or more later.

It is the claim of complainant that, when the deeds above mentioned were delivered, the parties supposed that the effect was to give the Johnsons title to the west half of the land, and Mrs. Smith title to the east half thereof. It will be observed that the quitclaim deeds are of earlier date than the deed from Mrs. Orvis to Mrs. Smith. Just when the respective deeds were delivered does not appear, but it does appear that the deed from Mary P. Smith to the Johnsons was not recorded until a year and a half after Mrs. Smith had a deed from Mrs. Orvis. Up to the time of these conveyances Mrs. Smith had no title to any of the land, while the Johnsons were the owners of an undivided one-half thereof, and, when Mrs. Smith obtained the conveyance from Mrs. Orvis, she became the owner of an undivided half thereof; and it was only by reason of the quitclaim deeds that Mrs. Smith became the owner of the east half, and the J ohnsons ceased to be the owners of an interest in the east half. Before this proceeding was brought, an attorney in the interest of complainant saw the defendant and asked for a quitclaim deed. She at that time disclaimed any title in the west half, and said she must consult an attorney, and declined to give the deed. It is now claimed in her behalf that, as her deed from Mrs. Orvis is dated later than her quitclaim deed, her quitclaim deed, in fact, conveyed nothing.

It is the claim of complainants that, immediately following the giving of the above deeds, a line fence was built between the west half and the east half of said land, and that the Johnsons and their legal successors, claiming to be the owners thereof, have occupied the land up to said line fence, and that Mrs. Smith has occupied the land east of said fence, claiming to be the owner thereof, and that Mrs. Smith never claimed any interest in the land west of the fence until after the interview with the attorney mentioned above.

It is also the claim of the complainant that the Johnsons or their successors paid or caused to be paid the taxes on the west half of said land, except as will be stated hereafter. We have already stated the claim of defendant as to the effect of the deeds which were made in 1879. She also now disputes that the Johnsons and their grantors have been in possession of all the land west of the fence, and insists that sometimes no one was in possession. She also claims some title by virtue of a quitclaim deed from Roscoe Dix and wife to Mary P. Smith of the southwest fractional quarter, dated October 9,1886, consideration, $5} in which it is recited:

“This conveyance is made to release all claims of said first parties acquired by purchase of delinquent taxes for the years 1874, 1877, and 1880.”

It does not appear that the State ever made any deed to Mr. Dix, and Mrs. Smith, until after this proceeding was brought, made no claim by virtue of the Dix deed or release to any part of the west half of this land. After the suit was commenced she made a quitclaim deed; the consideration therein being recited as $25. We regard it as a significant fact that, though Mrs. Smith must know all the facts surrounding this transaction, for some reason she did not take the witness stand, and tell the court what she knew. We have not recited all of the conveyances which are shown in the record, but we have referred to such of them as we have deemed necessary. A reading of the record satisfies -us that the testimony sustains complainants’ claim. From that testimony we infer that the deed from defendant dated May 23, 1879, was not delivered until after the delivery of the deed to her from Susan A. Orvis, which bears date June 15, 1879.

The circuit judge made a righteous decree, and it is affirmed, with costs.

Grant, C. J., and Blair, Carpenter, and McAlyay, JJ., concurred.


author: McAlvay, J.

text:
    ANDREWS v. BRACE.
    1. Fraud — Sale of Stock — Rescission — Limited Partnership ' i Associations.
    On a bill by a stockholder in a limited partnership association to rescind a sale of stock on the ground of fraud, there is no occasion to determine whether defendants made any misrepresentations to induce complainant to purchase, where he did not buy in reliance upon the representations, but was at the time the manager of the association, more familiar with its affairs than any of the defendants, and bought in reliance upon his own judgment.
    2. Partnership — Limited Partnership Associations — Organization — Irregularities—Effect—Sale of Stock.
    That a limited partnership association did not acquire a valid title to all the property specified in its articles, and that the amount of its cash capital was overstated, would not affect the validity of its organization, nor the ownership of stock by a good-faith purchaser thereof, and therefore would not give such a purchaser a right to rescind.
    Appeal from Wayne; Hosmer, J.
    Submitted June 10, 1908.
    (Docket No. 66.)
    Decided September 10, 1908.
    Bill by Fred C. Andrews against William H. Brace, David D. Cady, and Martin E. Galvin to rescind a sale of certain stock on the ground of fraud. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      McDonald & Fowler, for complainant.

      Dwight O. Rexford, for defendants.
   McAlvay, J.

September 29, 1903, complainant became the manager of a partnership association named the “Standard Pure Food Company, Limited, of Detroit.” At the same time he purchased from the three defendants —the principal shareholders in said association — 75 shares (25 shares from each one) of its capital stock, paying therefor to defendant Galvin the sum of $3,750, or $50 a share. The par value of this stock was $7,500. The stock was not delivered to complainant at that time, because, as he testifies, “ both sides wanted to see if everything was satisfactory or not.” Early in the year 1904 complainant, who had managed the partnership association for several months, and had become familiar with its affairs, announced his dissatisfaction with his purchase, and thereupon a new agreement was made by him and the three defendants, the terms of which are in dispute. Complainant testifies that by this new arrangement it was agreed that the capital stock of the association, then $500,000, should be reduced to $250,000, and that each of the defendants should deliver to him 50, instead of 25, shares of its capital stock. Owing to pending litigation this new arrangement was not consummated until December, 1904, and at that time each of said defendants delivered to complainant 50 shares of said capital stock. No reduction, however, had been made in the amount of the capital stock of said association. ' It remained, as hitherto fixed, at the sum of $500,000. About the time this stock was transferred to complainant, he received a dividend of 2£ per cent, thereon. Soon after the stock was acquired by complainant, the partnership association was converted into a corporation, called the “Standard Pure Food Company.” At the stockholders’ meeting held for the purpose of forming the corporation complainant voted his stock. He received in the corporation the same number of shares he had held in the partnership association. He became secretary of the corporation. He was also its manager, and he continued to be its manager until January 1, 1906. During this time he held his stock, and exercised all the rights of a stockholder. Soon after he ceased to be manager, he tendered the stock back, and then brought this suit to rescind upon the ground of fraud. The case was heard on testimony taken in open court, and a decree entered in the circuit dismissing complainant’s bill.

There is no occasion to determine whether defendants made any false representations to induce complainant to purchase this stock. He did not buy in reliance upon those representations. He acquired his stock under the new agreement made in 1904. At that time complainant was manager of the association. He was more familiar with its affairs than were any of the defendants. If any of the representations- which had before that time been made were false, he knew it. He made that new agreement with his eyes open and relying upon his own knowledge and judgment. He was not defrauded.

Complainant contends that he has a right to rely upon the former false representations because this new agreement was never performed. This contention is based upon the testimony of complainant, heretofore alluded to, that according to the new agreement he was to receive 150 shares of stock of the association after the capital stock of the association was reduced to $250,000. We answer the contention by saying that we do not credit this testimony. It is contradicted by the testimony of defendants, and it is not consistent with complainant’s conduct.

Complainant contends that there were certain irregularities, which he characterizes as fraudulent, in the organization of the partnership association which did not come to his attention until shortly before he commenced this suit. We answer this by saying that we do not credit complainant’s testimony upon this subject. We think every material representation which could possibly be called fraudulent was known to him at the time the new agreement was made.

Complainant also contends that the partnership association was not legally organized, and that he has a right to rescind because he contracted to purchase stock in the partnership association limited. The partnership association was organized in due legal form. The material irregularities brought to our attention are these: That it did not acquire a valid title to all the property specified in its articles, and possibly that the amount of its cash capital was overstated. Such irregularities as these would not affect the validity of the organization. In other words, complainant would be, especially if he acted in good faith, an owner of stock in a partnership association limited.

The decree is affirmed.

Grant, C. J., and Blair, Moore, and Carpenter, JJ., concurred.


text:
    TRIECE v. CITY OF SOUTH HAVEN.
    1. Adverse Possession — Extent of Possession— Description in Deed — Extension of Lot Lines.
    That complainant and his grantors took title to lots by description and numbers according to the recorded plat of the village, did not preclude complainant from claiming title by adverse possession of anything beyond the lot lines.
    S. Same — Evidence—Sufficiency.
    On a bill by a lot owner against a city to restrain it from disturbing complainant’s sidewalk and moving it upon his premises, evidence examined, and held, that the evidence of adverse possession by complainant and his grantors, of the strip of land in dispute, was abundant to give complainant title.
    3. Judgment — Relief Granted — Conformity to Pleadings — Prayer for General Relief.
    On a bill against a city to restrain it from disturbing complainant’s sidewalk and moving it over upon his lots, complainant claiming title by adverse possession of a strip of land claimed by the city to be within the platted limits of the street, a decree quieting complainant’s title to the disputed strip is not objectionable as not prayed for, there being a prayer for general relief, and the relief granted not being repugnant to that prayed for.

      Appeal from Yan Burén; Des Yoignes, J.
    Submitted June 10, 1908.
    (Docket No. 55.)
    Decided September 10, 1908.
    Bill by William G. Triece against the city of South Haven to enjoin an encroachment upon complainant’s premises. From a decree for complainant, defendant appeals.
    Affirmed.

      Cook & Chandler, for complainant.

      Andrew Donovan and Alfred J. Mills, for defendant.
   McAlvay, J.

Complainants, husband and wife, tenants by the entireties, owned two lots in the city of South Haven, and filed their bill of complaint against defendant municipal corporation to restrain its officers and agents from interfering with and disturbing the sidewalk in •front of said lots, and from moving the same in and upon said lots as they without authority were threatening and undertaking to do; complainants claiming that the cement sidewalk as laid was upon the true line of said lot, and also that they and their grantors had occupied to said line, claiming title thereto, since 1858. After suit was brought Martha J. Triece died. This was suggested upon the record, and the suit proceeded on behalf of complainant as survivor and sole owner of the premises. On filing the bill of complaint, a temporary injunction issued. Defendant answered, admitting that it claimed that the north boundary line of Huron street was about four feet farther north than is claimed by complainant, and that the council passed a resolution requiring the said sidewalk to be removed and placed upon the legal line, insisting that complainants are encroaching upon the street, and also admitted that it intended to compel complainants to put the sidewalk upon the true line as claimed by the city. Issue was joined, and a hearing had upon the merits. The court granted the prayer of the bill, and made the injunction permanent.

Defendant asks us to reverse the decree, and urges that complainant cannot assert title to this strip of land by adverse possession, for the reason that he and his grantors took title of these lots by description and numbers according to the recorded plat of the village, and therefore is precluded from asserting anything beyond the lot lines. Complainant claimed and offered evidence tending to show that these lots had been inclosed and occupied for a great number of years on the line he insists is the line of the street; that soon after platting a barn was built up to this line, and that a fence was built; that shade trees were planted on the outer line of the walk; that later a sidewalk was built .and renewed; that the authorities knew of this and acquiesced in it. The record shows that the shade trees are in a line with other shade trees on the same side of the street which have been set out for a long time. When this cement walk was put down, the rotten ends of fence posts of the old fence were found; also, what appeared to be monuments of a survey showing rotten stakes and stones around them. There was substantial evidence that this was the original line between the lot and street. The present walk is laid several inches farther north than the line complainant contends for. The evidence of adverse possession was abundant, which, under the rule laid down by this court, would give complainant title to such part of the street, if any, he and his grantors occupied. Flynn v. City of Detroit, 93 Mich. 590, and cases cited.

The other questions raised as to the sufficiency .of the proofs need not be discussed. The evidence in the case supports the decree granted.

Defendant insists that the bill if complaint is not sufficient to warrant a decree quieting title because not prayed for. There was a prayer for general relief, and the relief granted is not repugnant to that prayed for. The decree does not prohibit the defendant from taking any proper step to acquire title under and by reason of its right of eminent domain; but it does fix the line of these lots and the highway as between the parties, and confirms, the title of complainant in and to the lots as claimed by him.

The decree of the circuit court is affirmed, with costs.

Grant, C. J., and Blair, Moore, and Carpenter, JJ., concurred.