text:
    TAYLOR v. RICHARDS.
    1. Wills — Construction — Estates Created — Vested or Contingent.
    In determining whether an estate created by a will is vested or contingent, the authorities chiefly agree in favoring the vesting of interests and in treating future interests as vested where there is any present interest in the income of the property.
    2. Same — Devise in Trust.
    Where testator devised land to his grandson upon his reaching the age of 25 years, the control of the same to remain in the hands of the executors until that time, the income to be used for his support and education, and the land or its proceeds to be conveyed to him upon his reaching the prescribed age, if he should show himself worthy and of steady habits, the entire estate, under section 9263, 3 Comp. Laws, passed to the devisees, and, the executors having no beneficial interest, the entire beneficial interest passed to the grandson, the contingency applying merely to the time when he should come into full enjoyment of the estate.
    3. Trusts — Termination—Statutes.
    Where testator devised the entire estate in certain lands to his executors and his grandson, the executors taking no beneficial interest, but merely an estate in trust for the beneficiary, and the beneficiary died before the happening of the contingency upon which he was to receive the legal title, the purpose of the trust ceased, and under section 8851, 3 Comp. Laws, the estate of the trustee ceased, and the estate descended to the beneficiary’s heirs.
    Error to Genesee; Wisner, J.
    Submitted June 17, 1908.
    (Docket No. 49.)
    Decided July 13, 1908.
    George B. Taylor and Lena E. Caldwell, administrators of the estate of William H. Davis, deceased, petitioned the probate court for the distribution of a trust fund under the last will and testament of William Davis, deceased. The petition was granted, and Sarah Richards, an heir of William Davis, appealed to the circuit court. There was judgment for petitioners, and defendant brings error.
    Affirmed.

      William V. Smith, for appellant.

      Brennan & Cook and Black & Roberts, for appellees.
    William Davis died March 18,1884, leaving a will dated June 23, 1883, and a codicil thereto, dated January 14, 1884. These were duly admitted to probate. His will contained the following provisions:
    ■ “I give, devise and bequeath to William H. Davis, the son of said Elmer A. Davis, the farm now owned by me in the town of Davison, being the south half of the southwest quarter and twenty acres off the south part of the north half of the southwest quarter of section ten (10), and the south half of the southeast quarter and the northwest quarter of the southeast quarter of section nine (9), all in town seven (7) north, range eight (8) east, in Davison, containing two hundred and twenty acres. Also all the farming tools, implements and stock on said farm with authority to my executors to sell such farm stock and tools and convert same into money for the use and benefit of said William H. Davis. The rents, profits and income of said farm and farm stock and tools to be used and appropriated for the support and education of said William H. Davis, and for improvements, repairs, fencing upon said farm, the possession of said farm and farm stock, etc., or of the proceeds of a sale thereof to go to said William H. Davis upon his arriving of age of twenty-one years. * * *
    “ I hereby authorize and empower my executors to sell and convey any of my real estate whenever in their judgment they shall think best to do so and to keep, use and apply the proceeds as hereinbefore provided, the title thereto to go as above provided. It is further provided that in case said William H. Davis, son of Elmer A. Davis, shall become dissipated or a spendthrift, then my executors are hereby authorized and empowered to withhold any or all of the legacies and devises hereinbefore made for his benefit from him, or to such extent as they in their judgment may think best. And in case said Elmer A. Davis should also become dissipated or a spendthrift, then and in that case a like power to withhold the control or possession of the bequests and devises made for his benefit is hereby given to my said executors.”
    His codicil contained the following provision:
    “ The farm in town of Davison mentioned in the fourth item of my said will devised to William H. Davis, son of said Elmer A. Davis, I hereby devise to said William H. Davis, upon his arriving at the age of twenty-five years, instead of at once, as in said will provided, the control of same to remain in the hands of my executors until he arrives at that age, the use and income thereof to be appropriated for the support and education as in said will provided, the title thereto to remain in my executors until he arrives at twenty-five years of age, when, if he shall show himself worthy and of steady habits, my said executors shall, if they deem it safe and for his best interest, transfer and convey said farm in Davison to him, said William H. Davis, or in case they shall have previously sold said farm then they shall transfer to said William H. Davis the proceeds of any such sale of said farm, if they shall so deem it safe and for his best interest. The other provisions of said item fourth of said will not inconsistent herewith to remain in force and effect.”
    The testator left surviving a widow, who elected to take her dower and distributive portion under the statute. Her dower in the Davison farm above referred to was set off and admeasured to her use during her life. She after-wards joined with the executors in the sale of the farm, and of the proceeds the sum of $3,600 was set aside for her use, and the income óf the same paid to her during her lifetime. She died April 11, 1906. William H. Davis a son of Elmer, named in said will, was between the age of five and six years when testator died. At the time he reached the age of 25 years, he was an inmate of the Michigan reformatory at Ionia upon conviction of the ciime of burglary. He never married, and died August 2, 1906. The petitioners are administrators of his estate and his heirs. They bring this suit to secure the fund of $3,600 above mentioned. Appellant defends this suit as the heir of William Davis. The question in the suit is whether under the will William H. Davis had such a title in the Davison farm as to descend to his heirs. The trial court held that he had and gave judgment in petitioners’ favor.
   Carpenter, J.

(after stating the facts'). Did William H. Davis have a descendible estate in the Davison farm ? He did if the estate in that farm vested. Did it vest? This depends on the construction of the will, particularly on the construction of the following language found in the second item of the codicil:

“The title thereto to remain in my executors until he arrives at twenty-five years of age, when, if he shall show himself worthy and of steady habits, my said executors shall, if they deem it safe and for his best interest, transfer and convey said farm * * * to said William H. Davis, or in case they shall have previously sold said farm then they shall transfer to said William H. Davis the proceeds * * * if they shall so deem it safe and for his best interest.”

Does the contingency referred to in this language apply to the gift itself or merely to the time when William H. Davis shall come into its full enjoyment ? If the contingency applies to the gift itself, then William H. Davis had no vested interest. If it applies merely to the time he should come into its full enjoyment, then it did vest. Toms v. Williams, 41 Mich. 552; McCarty v. Fish, 87 Mich. 56. Did the contingency in this case apply to the gift itself, or did it merely apply to the time when William H. Davis should come into possession of the farm ? This question should be answered by a construction of the will and a construction in accordance with the testator’s obvious intention. Did the testator intend that William H. Davis should have no interest in the land unless, at the time he reached the age of 25 years, he should prove himself to the executors to be “worthy and of steady habits?” Whoever answers this question in the affirmative must assert that the executors had authority to withhold from William H. Davis the income of this property after he reached the age of 25 years should he prove himself unworthy and of unsteady habits. Appellant’s counsel contends that they had. He insists that testator intended, in the event of William H. Davis proving himself unworthy, that the trust of the executors should cease and the property be returned to testator’s heirs. Is he right ? The thought of the testator is not expressed in words of precise legal terminology. For instance, there is no formal bequest of any interest in the Davison farm to the executors of testator. And yet it is clear that testator intended those executors to have a trust estate therein. They are given not merely authority to sell said farm, but its custody and control, at least until William H. Davis reaches the age of 25 years. For whom do they hold this trust estate? Manifestly, for William H. Davis, and for no one else. He is to receive the entire income during the entire time that they hold said estate, and, until he reaches the age of 25 years, he is to receive this income no matter what his personal habits may be. Did the testator intend that at that time he should receive less than the income ? The will says that, when William H. Davis “arrives at 25 years of age * * * if he shows himself worthy and of steady habits,” he shall receive more than the income, viz., he shall receive the possession and control of the property. This does not indicate that, if the contingency does not occur, William H. Davis shall be deprived of the income theretofore enjoyed by him. May we presume that he so intended ? To answer this in the affirmative requires us to presume that it was the testator’s intention that in that contingency the trust should cease, and the farm should pass not as a devise under the will, but as an inheritance outside of the will to testator’s heirs at law. This is a most violent presumption, and, as hereafter indicated, opposed to law. It was testator’s purpose to devote the farm — and by that I mean his entire interest in the farm —to the benefit of William H. Davis. Until the latter reached his maturity and proved his trustworthiness, he was to have the income and be deprived of the possession and control. The provision for withholding possession and control was obviously dictated by testator’s regard for the devisee’s personal interests. It was inserted through fear that the devisee might squander the principal, and thus deprive himself of the means of support furnished by the income. Its purpose was to more certainly insure to the devisee the enjoyment of his devise, and not to deprive him of it altogether. It would thwart that purpose to hold that the will authorized the executors to divert the income, if the devisee proved himself unworthy and of unsteady habits. And the court should not place that construction upon the will, unless required to do so by some rule of law. There is no such rule of law. On the contrary, the rules of law applicable to this case sustain the construction indicated in this opinion. We refer to those rules.

Says Chief Justice Campbell, in Toms v. Williams, 41 Mich. 565:

“While there has been some variance among the authorities concerning the legal distinctions between vested and contingent estates, they chiefly agree first in favoring the vesting of interests, and second in treating future interests as vested where there is any present interest in the income of the property.”

Section 9263, 3 Comp. Laws, reads:

“Every devise of lands in any will hereafter made shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to ■convey a less estate.”

The construction insisted upon by the appellant in this case is prohibited by the above section, for, according to that construction, the will of testator has conveyed only a fraction of his estate in this land. It is clear to us that' the testator intended by his will to bequeath his entire estate in the Davison farm. We must therefore hold that by the will the entire estate passed to the devisees therein named. Those devisees are William H. Davis and testator’s executors. To the executors was bequeathed no beneficial interest. The devise to them was merely in trust. To William H. Davis was devised the entire beneficial interest. He was the sole beneficiary of the trust. When the purpose of the trust ceased, the estate of the trustee'ceased. Section 8851, 3 Comp. Laws. That purpose ceased when William H. Davis died, and, he being then the owner of the entire beneficial interest, the entire estate descended to his heirs.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SWEET v. SMITH.
    Mandamus — Propriety—Enforcement of Law — Official Duty.
    Mandamus on the relation of private relators is not available to compel the police officers of Detroit to prohibit Sunday baseball playing in the city, where it does not appear that the grievance of relators is any other than that sustained by other citizens of the city, or that the attorney general has refused to act, since, the grievance being purely a public one, redress should be sought by the people’s public agents, and not by private intervention.
    Certiorari to Wayne; Rohnert, Brooke, Mandell, Murphy, and Hosmer, JJ.
    Submitted July 7, 1908.
    (Calendar No. 22,947½.)
    Decided July 13, 1908.
    Mandamus by John Sweet and others to compel Fred W. Smith, police commissioner, and John Downey, superintendent of police, to enforce certain laws. There was an order denying an order to show cause, and relators apply for a writ of certiorari.
    Application denied.

      James H. Pound, for relators.
   Per Curiam.

We are asked to review an order of the circuit court for the county of Wayne denying a mandamus, prayed for by relator and others, compelling the respondent “to execute and enforce all the laws pertaining to the preservation of the Sabbath, or the first day of the week, at the baseball park of the Detroit Club.” The purpose of the proceeding was to prohibit Sunday baseball playing in the city of Detroit. It does not appear that the grievance of the petitioners is any other than that sustained by other citizens of the city of Detroit. Neither does it appear that the attorney general of the State has refused to take action in the matter. Under these circumstances, petitioners have no right to relief. The grievanee complained of is purely a public grievance, and redress should have been sought by the people’s public agents, and not by private intervention. See People, ex rel. Russell, v. Inspector and Agent of State Prison, 4 Mich. 187; Miller v. Grandy, 13 Mich. 540; People, ex rel. Delbridge, v. Green, 29 Mich. 121; People, ex rel. McBride, v. Board of Sup’rs of Kent Co., 38 Mich. 422; Steffes v. Moran, 68 Mich. 291; Smith v. City of Saginaw, 81 Mich. 123.

The decision of the circuit court was clearly correct, and we decline to review it in this court.


author: Blair, J. Hooker, J.

text:
    PEOPLE v. LAMB.

    1. Conspiracy — Information—Sufficiency.
    An information which charges a conspiracy “ to commit extortion of and from ” a named person is sufficient, notwithstanding the failure to use the words “the offense of” or ‘ ‘ the crime of ” immediately preceding the word ‘ ‘ extortion, ” since the word ‘ ‘ extortion ” includes within it the idea of crime as much as though the conspiracy were alleged to be to commit any other well known crime. Hooker, Moore, and Carpenter, JJ., dissenting.
    2. Same — Extortion—Evidence—Sufficiency.
    In a prosecution of an attorney and a justice of the peace for conspiracy to commit extortion, evidence examined, and held, sufficient to support a conviction for having demanded and received of the defendant in a bastardy case grossly excessive costs. Hooker, Moore, and Carpenter, JJ., dissenting.
    Exceptions before judgment from Montcalm; Wolcott, J., presiding.
    Submitted November 15, 1907.
    (Docket No. 175.)
    Decided July 13, 1908.
    ' Frank Lamb and Floyd Winter were convicted of a conspiracy to commit the crime of extortion.
    Affirmed.

      R. A. Hawley and Rarden & Rarden, for appellants.

      Earl F. Phelps, Prosecuting Attorney, for the people.

       Rehearing denied September 10, 1908.

   Blair, J.

In my opinion the information in this case is sufficient to support a conviction. The information charges a conspiracy “to commit extortion of and from one Albert Eastman,” etc. I do not think that the failure of the pleader to use the words “ the offense of ” or “the crime of” immediately preceding the word “extortion” affects the substance of the charge. The word “ extortion ” includes within it the idea of the crime as much so as though the conspiracy were alleged to be “to commit burglary.” I think this information is within the rule laid down by this court in the case of People v. Butler, 111 Mich. 483, and the cases there cited. In that case the information charged that the respondents “did combine, conspire, confederate, and agree together by divers false pretenses, subtle means and devices to attain and acquire unto themselves of and from the county of Wayne a sum of money, to wit, the sum of $50, of the value of $50, of the money of it, the said county of Wayne, and to cheat and defraud it, the said county of Wayne, thereof, to the great damage of it, the said county of Wayne.” It was said by the court:

“It is the claim of the respondent that this information should have been quashed, — First, because it states no offense known to the law; second, because it contains no allegations of the means by which respondents conspired to cheat and defraud. The claim of the respondent cannot be sustained. The case is ruled by People v. Richards, 1 Mich. 216; People v. Clark, 10 Mich. 310; People v. Winslow, 39 Mich. 505; People v. Petheram, 64 Mich. 252; People v. Watson, 75 Mich. 582; People v. Dyer, 79 Mich. 480.”

I am also of the opinion that there was sufficient evidence to take the question to the jury as to whether the conspiracy involved the extortion of illegal fees from Eastman.

Defendant Winter testified, in proceedings conducted by a bar committee appointed by the court for that purpose, among other things, as follows:

“I talked with Eastman afterwards, and among other things I said to him that, if it was my sister, he could not settle the matter for $10,000. We talked back and forth, and I don’t remember who spoke of $200, but finally one of us did speak of $200, and Mr. Eastman said he would give the $200 and it was so arranged. I remember that in thi3 talk some one said something about Eastman going over the road if the matter was not settled up. Either I or Mr. Lamb used these words, I think. * * * At the time, Mr. Eastman, Mr. Hendry, and myself were in my office closing up this matter, and, at the time these mortgages were given, something was said about the costs. Mr. Lamb had said there were some costs attached, and I talked with Lamb over the phone, and asked what the costs were, and he told me that they were $10. I do not know whether or not Mr. Eastman paid this $10. I did not see Eastman hand the $10 to Hendry.”

Florence Parm testified:

“After we got down to the office, he [Winter] told my mother that, if she wanted the money, she would have to sign her name; said all he could get out of Albert Eastman was $25, and he had to scare that out of him.”

John Hendry, the constable who served the warrant, testified:

“ I took Eastman to Lamb’s office when I arrested him. Mr. Lamb read the complaint to Eastman, and, before he hardly got through reading it, Eastman said: ‘Yes; I am guilty. What does it cost to settle it.’ Mr. Lamb told him that he could hot settle it. He says, ‘It is something I cannot settle here; ’ but he says: ‘ I understand Mr. Winter is her attorney. Perhaps it might be adjusted some way’ — something like that. * * * I think Mr. Eastman asked Lamb where Winter’s office was, and finally Lamb said to him, ‘ If the officer will permit, I will go with you,’ and I said to them, ‘ Go on if you want to,’ and they went out. * * * About the time this transaction was closed Mr. Winter said to Eastman : ‘ You understand you are to pay the costs.’ Eastman said, ‘Yes,’ and went right down in his pocket in a hurry, seemed to be anxious to get his money out to pay it, and asked how much the costs were, and Winter asked me how much the costs were, and I told him I did not know, and suggested that he would have to ask Lamb. I gave him the number of Lamb’s phone and Winter called him and said to him: ‘ Those costs were $10, weren’t they, in that case ? ’ And he stepped down from the phone, and said: ‘Yes; that is what they are.’ Eastman gave me the $10, and after supper I went up to the justice office and gave the $10 to Mr. Lamb, and he gave me $5 of it for my fees, and I came away. I gave Lamb the same $5 (10) Eastman gave to me. I after-wards talked with Mr. Lamb in regard to this matter over at Stanton, and Mr. Lamb told me that he and Winter had divided the money between them. That is all.' This was on the streets of Stanton. He said to me: ‘ They might as well own úp; it was all off anyway ’— and that Mr. Winter had told the whole circumstance just as it was, and he said, ‘ He and I divided the money between us, and that was all there was of it.’ * * * After this matter was closed up and we were all together there in Winter’s office, something was said about the costs. I did not know what the costs were, and Winter did not know. I suggested to Winter that he call up Lamb and find out, and Winter finally telephoned to Lamb. I don’t know all the talk they had over the phone, but finally Winter said, ‘ Then the costs are $10;’ but I don’t know what Lamb said about it, of course. I don’t remember all that was said over the phone by Winter at the time.”

Eastman testified:

“ I went back to Winter’s office, and my wife went with me. I understood that this $175 that I was getting from Belknap and paying to Winter was to settle up with Mrs. Parm and the girl. I understood, also, at the time, that I was to pay the costs in addition to the $175, and that was the way I understood it right along. Before any money was paid over to Mrs. Parm, this question of costs was brought up; that is, as to how much the costs were. It was while I was there in the office, and the check was brought down and laid on the table. Before we got through and got the thing fixed up, something was said about the amount of the costs; how much the costs were. I think that John Hendry first inquired about the costs. John Hendry said that I had got to pay the costs. He made the statement there that I had got to pay the costs, I think I asked him how much the costs were, and I think Hendry asked Winter, and Winter said that he did not know how much the costs were. Then somebody suggested that they call up Lamb and find out how much they were, and the reason that Lamb was called up was that none there knew how much the costs were. So Mr. Winter, called up Mr. Lamb. When he got Mr. Lamb on the phone, he says: ‘ Lamb, how much are the costs ? ’ Of course, I did not hear what Lamb replied, and finally Winter turned around and told me the costs were $10, and I paid the $10 to Hendry. * * *
“Q. You have stated you paid these $10 costs P
“A. Yes, sir.
“Q. Who first spoke to you about the matter ?
“A. About the costs ?
“Q. Who told you to pay the costs or that you had got to pay them ?
“A. I maybe mixed up. I. know one of them asked me. I think it was or might have been Hendry.
“Q. What is your best recollection as to whether it was Hendry or Mr. Winter ?
“A. I said Mr. Winter once, didn’t I ?
“Q. What is your best recollection now in regard to it ? Was it Mr. Hendry or Mr. Winter?
“A. I won’t say, I can’t prove it.
“Q. No; I didn’t ask you to say for certain, but what is your best recollection in regard to it now, as to whether it was Mr. Winter or Mr. Hendry told you that you had got to pay the costs ?
“A. I think it was Hendry said so.”

It appears from the testimony that Eastman understood all the time that he was to pay the costs in addition to the $175, and about the time the transaction was closed respondent Winter called Eastman’s attention to this, according to the testimony of Hendry, saying, “You understand you are to pay the costs, ” to which Eastman said, ‘ ‘ Yes.” It further appears from Winter’s own testimony that prior to the meeting at his office to close the matters up “ Mr. Lamb had said there was some costs attached,” etc.

From this testimony the jury might fairly infer that part of the original scheme was that Eastman was to pay not only the $175, but also the costs of the proceedings before the justice, and that it was part of the original understanding between the respondents that they should get for themselves as much as possible over and above the amount which Mrs. Farm would accept and as much as they could get in excess of the legal costs. This view is, I think, borne out by the fact that, according to the testimony of Hendry, Winter did not ask Lamb what the costs were, but said to him, “Those costs were $10, weren’t they, in that case?” indicating an agreement theretofore between Winter and Lamb as to the amount of costs which they would demand, and which both of them knew was' grossly excessive. So far as these questions are concerned, which are the only questions discussed in the opinion now before the court, I think the rulings of the circuit judge should be sustained.

I have examined the record with reference to the other assignments of error relative to the rulings of the court upon the admission of testimony, the refusal of requests to charge, and to portions of the charge as given, and am of the opinion that they are not well founded. The jury were distinctly instructed that a conviction could not be had for obtaining the $175, but only for obtaining the $10 of costs. The charge correctly stated the claims of the parties and the rules of law applicable to the case, and the rights of the respondents were carefully protected.

The conviction is affirmed, and the record remanded for further proceedings in accordance with the law.

Grant, O. J., and Montgomery, Ostrander, and McAlvay, JJ., concurred with Blair, J.

Hooker, J.

(dissenting). The defendants were convicted of the offense of conspiracy upon an information, the substance of which follows:

“That Frank Lamb and Floyd Winter unlawfully, falsely, deceitfully, and fraudulently did combine, conspire, confederate, and agree together to commit extortion of and from one Albert Eastman, and the said Frank Lamb and the said Floyd Winter did on the said 5th day of March, A. D. 190*?, in the said city of Greenville, in said county, in pursuance of and according to the said conspiracy, combination, confederacy, and agreement between them, unlawfully, corruptly, deceitfully, and extorsively extort, receive, and take of and from the said Albert Eastman the sum of one hundred and eighty-five dollars, of the value of one hundred and. eighty-five dollars, to the great damage of the said Albert Eastman, and to the evil example of all others.”

We are asked to review the trial upon writ of error sued out in behalf of both defendants.

Several questions are raised, the most far-reaching of which are two, viz.: Did the information state, and did the testimony tend to prove, an offense ? There was no serious dispute about the facts. They were, in substance, that Lamb, who was a justice of the peace, was approached by a Mrs. Parm and her daughter, a girl of under 16, who complained that she was enceinte, and charged one Eastman with the paternity of her prospective offspring. They wished to have Eastman arrested and made to pay them something for the disgrace and the support of the child, should one be born. She signed a complaint, and a warrant for bastardy was issued, and Eastman was arrested. Winter, the other defendant, was a lawyer. After the Parms left his office, Lamb telephoned to Winter, asking him to come to his ( Lamb’s) office; Winter said, “ What is the trouble ? ” and Lamb replied, Nothing, only there is something on, something good.” Winter complied, and Lamb told him what had occurred, and suggested that he act as attorney for Mrs. Parm and her daughter against Eastman, stating that they would be satisfied with $25 or $35, and suggesting that the balance that they could get from Eastman could be divided equally between them. This was agreed to, and Lamb gave Winter a note to Mrs. Parm. The note and the interview that followed, as stated by Winter, were as follows:

“Eastman was arrested and brought before Lamb just after noon on the same day, and, when the warrant was read to him, he said he was guilty and wanted to settle; he saying at the time: ‘Yes; I am guilty. What does it cost to settle it ? ’ No one had previously said anything to him about settling the matter. Lamb told him that he [Lamb] could not settle it, but suggested that Winter was Mrs. Farm’s attorney, and that he better go to him. Eastman not knowing where Winter’s office was, Lamb went with him to Winter’s office, leaving the officer at Lamb’s office.”

Eastman paid Winter $175, of which $25 was paid to Mrs. Parm. She gave the following receipt to Winter:

“Greenville, Michigan, March 5, ’07.
“I hereby agree to accept $25 in full of all claims which I may have against Albert Eastman for bastardy with my daughter.
[Signed] “ Clara Parm.”

It appeared from the testimony of Winter and others that, at the time of the adjustment of the matter in Winter’s office, there was talk about costs. Hendry, the officer who made the arrest, testified:

“About the time this transaction was closed Mr. Winter said to Eastman: ‘You understand you are to pay the costs.’ Eastman said, ‘Yes,’ and went right down in his pocket in a hurry; seemed to be anxious to get his money out to pay it, and asked how much the costs were, and Winter asked me how much the costs were, and I told him I did not know, and suggested that he would have to ask Lamb. I gave him the number of Lamb’s phone, and Winter called him and said to him: ‘ Those costs were $10, weren’t they, in that case ? ’ And he stepped down from the phone and said: ‘Yes; that is what they are.’ Eastman gave me the $10, and after supper I went up to the justice’s office and gave the $10 to Lamb, and he gave me $5 of it for my fees, and I came away. I gave Lamb the $5 (10) Eastman gave to me. * * * I did not know what the costs were, and Winter did not know. I suggested to Winter that he call up Lamb and find out, and Winter finally telephoned to Lamb. I don’t know all the talk they had over the phone, but finally Winter said: ‘ Then the costs are $10.’ But I don’t know what Lamb said about it, of course. I don’t remember all that was said over the phone by Winter at the time.”

Eastman testified:

‘' That he was not sure whether Winter or Hendry first spoke about the costs, but thought it was Hendry. I understood all the time that I was to pay the costs in addition to the $175, and that was the way I understood it right along. Before any money was paid over to Mrs. Parm, this question of costs was brought up; that is, as to how much the costs were. It was while I was there in the office, and the check was brought down and laid on the table. Before we got through and got the thing fixed up, something was said about the amount of the costs; how much the costs were. I think that John Hendry first inquired about the costs. John Hendry said that I had got to pay the costs. He made the statement there that I had got to pay the costs. - I think I asked him how much the costs were, and I think Hendry asked Winter, and Winter said that he did not know how much the costs were. Then somebody suggested that they call up Lamb, and find out how much they were, and the reason that Lamb was called up was that none there knew how much the costs were. So Mr. Winter called up Mr. Lamb. When he got Mr. Lamb on the phone, he says: ‘ Lamb, how much are the costs ? ’ Of course, I did not hear what Lamb replied, and finally Winter turned around and told me the costs were $10, and I paid the $10 to Hendry.”

There was no testimony indicating that the subject of costs or fees was ever discussed by the parties except in the talk by telephone, except that of Winter as to talk at the time of the settlement, when it was said there were some costs, and the statement by Winter that Lamb had said that there were some costs attached which does not indicate a conspiracy relating to costs.

Counsel for defendants claim: This record shows that the defendants entered into an arrangement, whereby Lamb should aid Winter in getting the consent of Mrs. Parm and her daughter to allow Winter to represent them in a settlement of the matter with Eastman, that the case should be settled for as large a sum as practicable, and that Mrs. Parm should be induced to accept a small sum, and that .the defendants would divide the excess between themselves. There is not a syllable of evidence that they had any talk or thought of extorting illegal official fees from anyone. The claim of the prosecution being that the offense was a conspiracy to extort official fees, it appears to have been sustained only upon the theory that the money received and divided must be treated (so far at least as concerns the portion received by Justice Lamb) as excessive compensation in the way of payment for official duties, and the learned circuit judge allowed the jury to so find. The evidence shows that the only charge made for official action was $ 10 called costs, and this was paid by Eastman as such. If there is any evidence that the sum was excessive, it is affirmatively and conclusively proved that it was never the subject of a conspiracy. It was not even divided with Winter.

The subject of the conspiracy was the amount that should be obtained from Eastman for the complainant for a wrong committed by him, which the complainant might lawfully settle, and a part of which it was contemplated that Winter should obtain for his services, and which he should divide with the j ustice for sending the case to him, and possibly such assistance as Lamb might give him, which was not the subject of official fees and which nothing indicates that the parties understood to be so. We are of the opinion that the court erred in this instruction.

The information. It remains to inquire whether there is occasion for a new trial. Had this information charged that the defendants conspired “to commit the offense of extortion,” or to commit specified acts which would, if committed, constitute extortion under any of our statutes (see 3 Comp. Laws, §§ 11240, 11241, 11242, 11326), it is possible that it might be sustained under the rule stated in Alderman v. People, 4 Mich. 433, and People v. Butler, 111 Mich. 483, and cases theite cited. It does neither, though it does allege that the defendants conspired to ‘ ‘ commit extortion.” The Case of Alderman was recognized as an extreme case, though it rests upon a necessity, viz., that others cannot know, and perhaps even conspirators may not know, upon whom or by what means the contemplated offense is expected to be or may be practiced, and therefore it is sufficient where the offense has a well-settled meaning at common law, so that by describing it by the term by which it is generally known the nature of the offense contemplated by the conspirators is clearly indicated to describe it by such term. If the omission of the words “ offense of” is permissible without destroying the validity of the information — which I might assent to, did the case turn upon that question alone — I am nevertheless impressed that, inasmuch as the information shows that the conspiracy was carried out “ in pursuance of and according to the conspiracy, combination, confederacy, and agreement between them, the defendants,” to do a thing which in and of itself as therein described, would not necessarily be extortion when done, the first general allegation is so qualified as to make the charge uncertain. I have had doubts whether this language should not be held to so qualify the first statement as to render it doubtful whether the conspiracy was to extort unlawful official fees, or to unlawfully, fraudulently, and deceitfully extort money (not official fees) from Eastman, by duress or fraud or by some other means, not necessarily criminal. It is as though it charged specifically in the first instance a conspiracy to do the very acts which the instrument mentions as being done in “pursuance of, and accordance with the conspiracy, combination, confederacy, and agreement,” and which do not justify an inference of taking pretended official fees by an officer or anyone else, and which, standing alone, would be insufficient. Under the rule of strict construction applicable to informations, this language is the more particular description of what the parties conspired to do, and must be taken in preference to the general description, extortion, at least to the extent of rendering uncertain the former allegation. It limits the general language, to say the least, and introduces an element of uncertainty not usually tolerated in informations. Whereas in this case there is not a clear, positive, and unqualified charge that the conspiracy was to commit an offense having a well-known and not uncertain meaning, the case is not necessarily covered by the rule invoked.

I am therefore of the opinion that the judgment should be reversed and defendants discharged.

Moore and Carpenter, JJ., concurred with Hooker, J.


author: Ostrander, J.

text:
    CHICAGO & KALAMAZOO TERMINAL RAILROAD CO. v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Eminent Domain — Railroads—Condemnation Proceedings — Review — Certiorari.
    The determination of the court upon the issue which may be raised in conformity with the provisions of section 6245, 2 Comp. Laws, may be reviewed by certiorari, whatever the form in which cause is shown of record; but, the proceedings being summary, and dilatory proceedings not being favored, it is not contemplated that cause shall be shown by a series of special pleadings, the decision upon each of which may be separately reviewed.
    2. Same — Railroads—Property Subject.
    The court declines to say that a railroad company may not own. land, other than that excepted in section 6242, 2 Comp. Laws, which is subject to be condemned by another railroad company for use as a way for its tracks.

      3. Same — Pleadings—Petition—Sufficiency.
    A petition, by a railroad oompany, to condemn lands belonging to another railroad company, which avers the facts required . by section 6242, 2 Comp. Laws, is sufficient, it being the duty of the landowner to bring before the court the facts relied upon to defeat the showing, rather than the duty of the petitioner to negative, or state byway of exclusion and inclusion, every fact and theory upon which the owner might rely to show the property to be exempt.
    Certiorari to Kalamazoo; Adams, J.
    Submitted May 12, 1908.
    (Docket No. 133.)
    Decided July 13, 1908.
    Condemnation proceedings by the Chicago & Kalamazoo Terminal Railroad Company against the Grand Rapids & Indiana Railway Company. There was an order overruling a demurrer to the petition, and respondent brings certiorari.
    Affirmed.

      Alfred J. Mills, for petitioner.

      James H. Campbell, for respondent.
    The petition in the condemnation proceeding, after describing the land sought to be condemned, contains the following averments:
    “ That said real estate is required, for public purposes and uses; to wit: For the purposes of your petitioner’s incorporation and railway, in constructing, operating, and building its said railway and the appurtenances thereof, and as and for a right of way for its said railway, and for the main line thereof, and also for building thereon and maintaining and operating such additional tracks as are necessary and convenient for the construction, maintenance, and accommodation of your petitioner’s railway, and the taking thereof is necessary for public use. * * *

      “ Seventh. That said piece or parcel of land and property is not any part of the track or right of way of the Grand Rapids & Indiana Railway Company, a corporation which is incorporated and exists under and by virtue of the laws of the State of Michigan, and also under and by virtue of the laws of the State of Indiana, as your petitioner is informed and believes, which is thé owner thereof, nor is it any part of the track or right of way of any other railroad company within the intent and meaning of section 17 of the general railroad laws (Laws 1873, Act No. 198) of the State of Michigan.”
    The demurrer to the petition is here set out at length:
    “The Grand Rapids & Indiana Railway Company, respondent, says that the petition in this proceeding is not sufficient in law, and does not state facts or set forth a case which gives the court jurisdiction to proceed under said petition to appoint commissioners, as therein prayed, for the reasons:
    “(1) There is no provision, in any statute of Michigan, which authorizes proceedings for the condemnation of the land of one railroad company for the use of another railroad company upon the facts, or for the purposes, set forth in said petition.
    “(2) The statute, the general railroad law of this State, being Act No. 198, Laws 1873, as amended, allows proceedings for the condemnation of land owned by one railroad company for use by another in only three cases, viz.: (a) For the purposes of a crossing; (6) for depot or terminal facilities; (c) of a roadbed, or part thereof, which has for five years remained in an unfinished condition, and without having the ties and iron thereon.
    “(3) The petition does not seek to acquire the land described therein, and sought to be condemned for a crossing, nor for depot or terminal facilities, and. the same is not shown to be an unfinished or unused roadbed.
    “(4) The petition does not show that the land described therein, and sought to be condemned, is subject to condemnation under Act No. 198, Laws 1873, as amended, by the petitioner, for the purposes and in the manner set forth therein.”
    The briefs and arguments present two questions. The first involves the right to review, in this proceeding, the order of the circuit court, which merely overrules the demurrer, and gives the respondent in the condemnation proceeding the opportunity to answer the petition. The second involves the merits of the demurrant’s case, which rests upon the proposition that the petition does not, by averment of necessary facts, show that the land sought to be acquired is subject to condemnation for the purpose stated in the petition.
   Ostrander, J.

(after stating the facts). The right to review, by certiorari, the determination of the court upon the issue which may be raised in conformity with the provisions of 2 Comp. Laws, § 6245, is settled by prior decisions of this court. U. S. Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668. But it is not contemplated by the statute that cause shall be shown by a series of special pleadings, the decision upon each of which may be „ separately reviewed. As has been repeatedly indicated by this court, the proceeding is not strictly judicial in character — is summary — and dilatory proceedings are not favored. The form in which cause is shown of record is not very material, so long as objections, however predicated, supposed to relate to the preliminary issue, are presented.

Counsel for plaintiff in certiorari says that a question is presented which involves “consideration and determination of the extent to which the property of one railroad company may be taken by another by condemnation, under Michigan statutes, what land may be so taken, and for what purposes, the rights which may be acquired, as title or easement, and the construction of ” 2 Comp. Laws, § 6242, as amended by Act No. 266,- Pub. Acts 1899. It is only in the most limited sense that any of these matters are involved. General, applicable, principles are not in doubt. This court said, in Battle Creek, etc., R. Co. v. Tiffany, 99 Mich. 471, 474:

“It is elementary that the power to condemn land is in the State, and can be exercised only in such cases and by such methods as the legislature may authorizé; also, that land once taken for and applied to a public use is not usually subject to condemnation under general laws, but only where the power is granted by express language or necessary implication. Again, railroads are permitted to condemn lands for their use because the use is considered a public one, and land procured for railroad purposes by purchase is as much for a public use as when it is condemned ; all being upon a common footing, and not subject to a subsequent exercise of the right of eminent domain, unless authorized by an enactment of the legislature.”

In Cincinnati, etc., R. Co. v. Bay City, etc., R. Co., 106 Mich. 473, one of the objections made was:

It appears that this is an attempt to condemn the property of another railway, under circumstances unauthorized by statute.”

It was argued, upon an appeal from the award, that the petition and this objection raised a jurisdictional question, to be settled before proceeding to an award. It was said that section 3331, 3 How. Stat., which is 2 Comp. Laws, § 6242, above referred to,

“ Subjects railroad property to condemnation, excepting (under some circumstances) the track and right of way. The argument is made that this is an attempt to condemn the track and right of way; and, if this appeared from the petition and answer, it might be necessary to try the question. But it does not, and we think the circuit judge was right in declining to allow the question to be raised.”

Undoubtedly, the petition must affirmatively state facts necessary to give the court jurisdiction. In view of these decisions we are not prepared to say that a railroad company may not own land, other than that excepted in section 6242, which is subject to be condemned by another railroad company for use as a way for its tracks. The petition, apparently, avers such facts as are required by the provisions of this section. We think it better practice, in such cases, to require the owner of the land to bring before the court the facts relied upon to defeat the proceeding, rather than to require the petition to negative, or to state by way of exclusion and inclusion, every fact and theory which the owner might rely upon to show the property to be exempt.

The order of the court below is affirmed.

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


author: Hooker, J.

text:
    KELLY v. SPROUL.
    1. Limitation of Actions — Accrual—Principal and Surety— Contribution.
    A surety is not protected against contribution by the failure of his co-surety to make payment until after the statute of limitations has run against their joint obligation, which obligation has been kept alive as against him by a valid judgment in favor of the obligee; since the right of action for contri, button does not accrue until after payment has been made.
    2. Same — Statutes—Application.
    Sections 9734, 9742, 3 Comp. Laws, limiting the time within which actions may be brought in certain cases, have no application to an action for contribution between sureties.
    Error to Kent; Perkins, J.
    Submitted June 15, 1908.
    (Docket No. 97.)
    Decided July 13, 1908.
    Assumpsit by Timothy Kelly, administrator of the estate of Patrick Kelly, deceased, against Robert Sproul for money paid. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Carroll & Nichols, for appellant.

      Doyle & McKenna, for appellee.
   Hooker, J.

The finding of facts in this case shows that in 1893, Anna A. Grady was complainant, and Frank T. Warrell defendant, in summary proceedings then pending in the circuit court for Kent county. Being defeated, complainant Grady removed the cause to this court, filing the statutory bond required in such cases, dated November 18, 1893. Patrick Kelly and the defendant in this action were her sureties upon the bond. The judgment was affirmed (Grady v. Warrell, 105 Mich. 310) and a judgment for costs against Grady was entered in this court on May 21, 1895, and a few days later costs were taxed, which she never paid.

On September 30, 1903, Patrick Kelly died and during that year Timothy Kelly was appointed administrator of his estate. A claim was filed in probate court by J. Tome Preston, Warrell’s assignee, on March 17, 1904, against the estate of Kelly, for $196.57, based on the appeal bond aforesaid dated November 18, 1893, and the judgment of the Supreme Court rendered May 21, 1895.

On June 21, 1904, it was allowed at the sum of $180.93 as a valid claim against the estate of Kelly, and on January 7, 1907, Timothy Kelly, administrator, compromised the claim, paying on behalf of the estate $175. On January 17th he brought this action for contribution against Sproul, Kelly’s co-surety on the bond, before a justice of the peace, declaring on the common counts. The defendant pleaded the general issue accompanied by notice that the cause of action had not accrued within 10 years from the time when the action was commenced. Afterwards by amendment he claimed the benefit of the six-year statute of limitations. The defendant appealed to the circuit court, where, on a trial before the court, plaintiff recovered a judgment on findings for $87.50.

The record shows that the allowance of the claim against the estate of Patrick Kelly was 9 years and 1 month after the rendition of the judgment by the Supreme Court, and payment was made 11 years, 7 months and 16 days after filing of the remittitur in the circuit court. This case was begun 10 days later. The defendant has brought the case here on writ of error.

It presents the question whether a surety is protected against contribution by the failure of his co-surety to make payment until after the statute has run against their joint obligation, which obligation has been kept alive, as against him, by a valid judgment in favor of the obligee. The authorities are believed to be nearly unanimous in sustaining the right of action in such a case upon the theory that the right of action for contribution does not accrue until payment is made. In addition to cases cited by counsel, a discussion of the question will be found in 1 Brandt on Suretyship and Guaranty (3d Ed.), §§ 320, 321; 7 Am. & Eng. Enc. Law (2d Ed.), pp. 340, 341, and notes.

Counsel for the appellant cite certain Michigan statutes, claiming that they have changed the rule for this State. 3 Comp. Laws, §§ 9734, 9742. We are of the opinion that they have no application to such a case as this.

The judgment is affirmed.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.


text:
    ANDERSON v. PENDL.
    Replevin — Defendant’s Possession — Nature — Question for Jury — Demand—Necessity.
    In an action of replevin for a span of horses in the possession of B., claimed by plaintiff to have been lent to A. with an agreement for their return and subsequent sale to him, evidence examined, and held, to present an issue of fact for the jury, since if B.’s version was true he bought the horses of plaintiff on an agreement made by A., acting as his agent, and was not only entitled to their possession under the contract of sale, but, the horses having come lawfully into his possession, he was entitled to a demand before having them tafeen from him on the writ.
    Error to Newaygo; Palmer, J.
    Submitted June 16, 1908.
    (Docket No. 84.)
    Decided July 13, 1908.
    Replevin by Thomas A. Anderson against Peter Pendí. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Cogger & Broomfield, for appellant.

      John G. Anderson, for appellee.
   Hooker, J.

The plaintiff brought replevin for a span of horses which at the time of the issue of the writ were in the custody of the defendant, Peter Pendí. He claims that he had made an agreement with Paul Pendí, the brother of Peter, that he would sell to him (Paul) this team for $200; that he had advertised the team for sale on the 11th of May, and that whatever price he was forced to pay at the auction he should have the team for $200; that Paul wanted to use the horses at once, and he loaned them to him with the understanding that he would return them upon the 11th. He claims to have agreed to take a note that should be acceptable to one Gannon, a banker, who was to be clerk at the auction. Paul Pendí turned the horses over to his brother Peter, from whom they were replevied after demand was made on Paul.

Defendant denies that his possession was unlawful, and claims that he bought the horses on an agreement made by his brother, acting for him, and the plaintiff, by which he was to give his own and his brother’s note for $200 and the horses were at once delivered, the note to be given later to suit plaintiff’s convenience; that there was no arrangement by which the horses were loaned, or were to be returned on the 11th; that on the 11th the plaintiff refused to accept either a note as agreed, or other security offered, and the property was replevied without demand. The learned circuit judge directed a verdict for plaintiff, and the defendant has appealed.

These claims raised an issue of fact for the jury. If defendant’s version was true, he was in lawful possession of the property, and the replevin would not lie, for two reasons:

First. No demand was made upon him for them before suit.

Second. He had a right to the possession as against the plaintiff at that time, under the contract of sale.

It was therefore error to direct a verdict for the plaintiff. The case should have been left to the jury.

The judgment is reversed and a new trial ordered.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.