text:
      In re SHAILER ESTATE. APPEAL OF FIDELITY & DEPOSIT CO. OF MARYLAND.
    1. Trusts — Powers op Trustee — Consent op Beneficiary — In-pants — Ratification or Disaffirmance.
    Where a beneficiary, before reaching majority, urged and persuaded the trustee to use part of the estate to purchase a store and business to be run by the beneficiary and her husband for the former’s benefit, and no attempt was made after becoming 21 years of age by the beneficiary to disaffirm the action of the trustee, her grandaunt, who supported and aided the beneficiary during her minority, apparently occupying the position of a parent towards her, the action of the trustee in employing the estate for such purpose was with the consent of the beneficiary and therefore valid under a trust instrument investing the trustee with full power to sell, exchange, or reinvest the estate property.
    2. Same — Accounting. ■
    An investment of $1,400 being made with trust funds at the request of the beneficiary, in property which was mortgaged to raise further sums amounting to about $1,200, the original amount so invested should have been credited to the trustee on final accounting; no credit should be allowed for the sums obtained on the mortgage which was foreclosed and the property bid in to satisfy the debt.
    3. Same — Compensation.
    The court on appeal will not interfere with the exercise of discretionary power by the lower court in refusing to allow compensation to the trustee, who, during her lifetime, made no claim therefor and probably had no intention of asking for it.
    4. Same — Costs.
    The costs of a suit instituted by the trustee to recover property of the estate, in which the trustee was defeated and costs awarded and paid, should be allowed out of the estate.
    Error to Bay; Gage, J., presiding.
    Submitted June 7, 1912.
    (Docket No. 45.)
    Decided November 8, 1912.
    Matilda E. Daglish presented for allowance her final account as trustee under the will of Harriet O. Shailer, deceased. From an order of the probate court settling the accounts of the trustee, after her death, and the appointment in her stead of Albert E. Miller as trustee, the Fidelity & Deposit Company of Maryland appealed to the circuit court. From the order entered, appellant brings error.
    Reversed.

      Curtis E. Pierce and John E. Kinnane, for appellant.

      W. A. Collins, for appellee.
    The matter in issue in this proceeding arises out of the trust created in the will of Harriet C. Shatter. The important provisions follow:
    “ I appoint Henry R. Wooster, of Saybrook, trustee of all the residue of my estate to be held in trust for my grandchildren, to wit: Harry Wilmot Bradley, Harriet Wilmot Bradley and Rose Wilmot Bradley, each to receive one-third of the income thereof, or so much as may be necessary to be used for their support and education, and if the income shall be insufficient, then so much of the principal as may in the discretion of said trustee or his successor in said office be necessary for that purpose, and to this end I do hereby devise and bequeath to said trustee all of the residue of my estate aforesaid, vesting in said trustee full power to sell, exchange all or any portion of said property and to re-invest the same as will in his judgment be for the interest of said legatees.
    “ Upon reaching the age of twenty-one years of either of my said grandchildren, the income of his or her share shall be paid directly to said legatees, and upon attaining the age of twenty-five years, respectively, the full share, including principal and income, shall be paid or transferred to said legatees.
    “ Said trustee is required to make annual returns of the condition of said estate to the probate court, and he is. also to give suitable bond for the faithful discharge of the duties of said trust, and said bond may be furnished by any of the surety companies of this State and the costs thereof to be paid from my estate.
    “In the event of the death of either of my grandchildren before the age at which the estate is to vest, viz., twenty-five years, said share is to go to and vest in the survivors absolutely.”
    The will was duly admitted to probate, and the trust was executed in so far as it related to Harry Wilmot Bradley and Harriet Wilmot Bradley. On March 26, 1902, Matilda E. Daglish, a sister of the testatrix, and therefore a grandaunt of the remaining cestui que trust, was appointed trustee of the trust created by the will. She qualified as such trustee, and gave a bond in the penal sum of $8,000, with the appellant as surety thereon. At the time of her appointment, the trustee receipted to the judge of probate for personal property valued, according to the inventory, at the sum of $6,980.73. From 1902 to 1907 Mrs. Daglish seems to have handled the estate without rendering any account of her dealings to the probate court. On September 19, 1907, she filed an account with that court which showed alleged-disbursements (exclusive of any compensation to herself as trustee) on behalf of her cestui que trust to an amount upwards of $600 in excess of the value of the estate which she had received, including the income thereof. No hearing was had upon this account before the death of Mrs. Daglish, which occurred October 28, 1908. After her death, one Albert Miller was appointed trustee of the estate, and upon his petition the account of Mrs. Daglish was heard and passed upon without notice to the surety upon her bond. Upon this hearing, the probate court found that Mrs. Daglish as trustee was chargeable with a balance amounting to $6,483.23. Thereafter the Fidelity & Deposit Company appealed from said order.
    The circuit court restated the account, finding a balance due from the estate of Mrs. Daglish to the trust estate in the sum of $5,831.91. Upon this hearing the court filed findings of law and of fact. Appellant proposed amendments thereto, and, after considering the same, the court filed his findings as to the facts and the law as follows:
    “ Findings op Fact.
    “(1) The court finds: The value of the 200 shares of capital stock of the Iron-Silver Mining Company of Colorado, being certificates Nos. 18079 and 18080, at the time of the sale and conversion thereof, was $180, or 90 cents a share.
    “(2) That the income and dividends received by the trustee, Matilda E. Daglish, during the period of her trusteeship was $1,294.
    “ (3) That Matilda E. Daglish was appointed trustee of the trust created by Harriet C. Shailer, deceased, and qualified as such on March 26, 1902, the appointment being made by the probate court of Bay county. That Harriet C. Shailer died on January 23, 1893, leaving a last will, which was admitted to probate, and is in evidence in this case. That of the three beneficiaries named in said will Harry W. Bradley died while a minor without issue. Harriet W. Bradley, another beneficiary, received her share of the estate and trust funds on arriving at the age of 25 years. That Rose Wright West, who prior to her marriage was Rose Wilmot Wright, was the sole remaining beneficiary under the will. That Matilda E. Daglish was a sister of said Harriet C. Shailer, and Rose Wright West was a granddaughter of said Harriet C. Shailer. Said Rose West was about nine years of age when Mrs. Shailer died, and from that date she made her home with, and lived with, Mrs. Daglish, and the two lived and treated each other practically as mother and daughter until the marriage of Rose West. That after the marriage of Rose West in 1903, she and her husband, and later her two children and Mrs. Daglish, lived together a considerable portion of the time until Mrs. Daglish died October 28,1908, and were furnished with money by Mrs. Daglish at frequent intervals.
    “(4) That in December, 1905, Mrs. Daglish, on the request and solicitation of Rose West, purchased a store and business in Cleveland, Ohio, for Rose West, and she and her husband took possession of the business and ran it until July, 1906. That the money for the purchase of the business was borrowed from the Commercial Bank in Bay City, and the following trust property was pledged by said trustee to said bank as security for the money so borrowed, viz., bond No. 1329 of Ohio & West Virginia Railroad' Company, five shares of stock of the National Shoe & Leather Bank, 200 shares of the capital stock of the Iron-Silver Mining Company. The money so borrowed, amounting to $1,900, was sent to Rose West in Cleveland by Mrs. Daglish in New York drafts, payable to the order of Rose West, and was used by her in the purchase of the said store and business. That $100 more was advanced by Mrs. Daglish about the time of the purchase of the store. That in June, 1906, Mrs. Daglish took $200 from Bay City to Cleveland to pay indebtedness accruing in Cleveland store and business. In July, 1906, Mrs. Daglish took possession of the store, and closed it out, and settled up the indebtedness and liabilities in connection with it, and received, after the payment of all of the liabilities, the sum of $200, which was all that she saved out of the venture. That Rose West became 21 years of age on the 30th day of May, 1906. That she became 25 years of age on the 30th day of May, 1910, and that she was married in the fall of 1903. That after becoming 21 years of age in May, 1906, she and her husband continued to operate said store and business in Cleveland, and she made no objection to the action of her trustee in making such investment. That she first knew that the money that went into the Cleveland store business was borrowed by her trustee at the Commercial Bank, and property from the trust funds pledged to secure the repayment of the same, when she was with Mrs. Daglish at the times when said notes were renewed. After the death of Mrs. Dag.lish in October, 1908, she was personally notified by the Commercial Bank that said notes were past due, and that the securities would be sold if payment was not made; said letter being dated November 25, 1908. That no action of any kind was taken by Rose West objecting to or disaffirming the Cleveland store investment.
    “(5) In January, 1909, Albert Miller, who was appointed trustee to succeed Mrs. Daglish, demanded the surrender of the securities held by the Commercial Bank for the above loan, and later in the same month brought suit in chancery in the circuit court for the county of Bay to compel said bank to surrender said securities, on the ground that they were unlawfully pledged by the trustee, and that such pledging was unauthorized and invalid. Said cause was heard on pleadings and proofs and the bill was dismissed, the ground for such dismissal being set forth in the opinion of Judge Sharpe filed in said cause, and which is in evidence in this case. Said decree has not been appealed from nor set aside.
    “(6) That the investment and expenditure in the purchase of the Cleveland store and business was made solely for Rose West, at her request, with the expectation on the part of all that it would be successful and furnish employment for Rose West and her husband and benefit them and the trust funds. That Rose West knew all about the transaction, and urged Mrs. Daglish to buy the store and business for her with the understanding that the money put into it would come out of Rose West’s share of the Shailer estate in the hands of Mrs. Daglish as trustee.
    “ (7) In April, 1908, Rose West sought to persuade Mrs. Daglish to assist her and her husband to invest in a limekiln at Omer, Mich. The purchase price of said limekiln was to be $7,000. Two thousand dollars was required to make the first payment. Mrs. Daglish raised $1,400 in some manner, and then negotiated the purchase of the property at the above price for and in the name of Mrs. West’s husband and one McDonnell. Mrs. Daglish then took back from this firm a mortgage for $2,000, and put that up with the Arenac Exchange Bank for a loan of $600, which she then turned over to be applied by West and McDonnell as the balance of the $2,000 advance payment on the purchase price of the limekiln property. After the death of Mrs. Daglish, the mortgage in question was foreclosed by the Arenac Exchange Bank, and the property was purchased by said bank, on the foreclosure for the amount of its mortgage. A couple of months after the original purchase of the limekiln property, Mrs. Daglish again hypothecated the $2,000 mortgage to the Arenac Exchange Bank for an additional loan of $600. This $600 was raised for the purpose of building a new kiln on the limekiln property, and a considerable portion of it was used for that purpose; the same being advanced by Mrs. Daglish as needed. This investment of Mrs. Daglish in said limekiln property was induced by the solicitation and persuasion of Rose West and her husband.
    “ (8) That while Rose West and Mrs. Daglish were living at Omer, and while the limekiln was being operated, Mrs. Daglish was taken sick and died on October 28, 1908. After her death a fire occurred which destroyed a considerable portion of the limekiln property, and it was abandoned. The Arenac Exchange Bank foreclosed the mortgage which Mrs. Daglish had hypothecated to it for the loans aforesaid, and the limekiln property was sold on the foreclosure for the amount due said bank.
    “ (9) That Mrs. Daglish paid in interest to the Commercial Bank of Bay City on the loan which she made in 1905, on the trust securities in her hands as above stated, for the purchase of the Cleveland store and business, the sum of $400.99. That the original note given when the loan was made in 1905 was renewed from time to time, and in 1907 $1,000 was paid upon said loan by the sale to said bank of the Ohio & West Virginia Railway bond, which was one of the securities hypothecated for the loan. Interest was paid at the time of the several renewals during the lifetime of Mrs. Daglish of the balance of said loan which remained unpaid. That, after the death of Mrs. Daglish, Albert Miller was appointed to succeed Mrs. Daglish as trustee of said trust, and he brought suit against the Commercial Bank to recover the securities so hypothecated, which suit was commenced in January, 1909, and was finally decided about one year later. Shortly after this decision, the securities which had been hypothecated to the bank were sold, and the indebtedness of the bank, together with the interest and costs of the suit by Albert Miller, trustee, were satisfied and paid out of the proceeds of such sale. That the costs of the suit brought by Albert Miller against the Commercial Bank were taxed at the sum of $47.27, and were paid out of the proceeds of the sale of the securities hypothecated to the bank as above set forth.
    “ (10) That Mrs. Daglish was appointed trustee in March, 1902, and continued to act as trustee until her death on October 28, 1908, a period of 6£ years. That on September 21, 1908, Bose West started on a trip to Conneautville, Pa., and received from Mrs. Daglish on the Arenac Exchange Bank a check for $100, which was indorsed by said Rose West, and paid through said bank on said day. That said Rose West on the last-mentioned date received for her own purposes the sum of $50 from said trustee, as part of said check.
    “(11) Proposed finding of fact No. 11 is refused. All of appellant’s proposed findings of fact that are not embodied and found in the foregoing findings are refused by the court.
    “Findings of Law.
    “(1) Appellant’s proposed finding of law No. 1 is refused, and the court finds that said trustee is not entitled to any credit on account of the Cleveland store and business.
    “ (2) Appellant’s proposed finding of law No. 2 is refused, and the court finds that said trustee is not entitled to any credit on account of the limekiln investment at Omer, Mich.
    “(3) Appellant’s proposed finding of law No. 3 is refused, and the court finds that said trustee is not entitled to any credit for interest paid on the Commercial Bank loan, or for cost taxed in the suit brought by her successor against the Commercial Bank.
    “(4) Appellant’s proposed finding of law No. 4 is refused, and the court finds that said trustee is not entitled to any compensation for her services as trustee in said estate.
    “ (5) Appellant’s proposed finding of law No. 5 is refused, and the court finds that said trustee is not entitled to any credit on account of the 50 shares of stock of the Concrete Machinery Company of Detroit.
    “ (6) Appellant’s proposed finding of law No. 6 is refused, and the court finds that said trustee is entitled to credit of fifty dollars ($50.00) only for said check of September 24, 1908.”
    Appellant claims that the balance found against the estate of Matilda Daglish should be reduced by the following items:
    The item for the Cleveland store and business____$2,000 00
    The item for the Omer Limekiln matter......■... 2,600 00
    For services of trustee during during the period of said trust, 6£ years at $50 per year___________• 325 00
    The sum paid for interest to the Commercial Bank on the loan made to purchase the Cleveland store and business............................. 400 99
    The item of costs in the suit of Albert Miller, Trustee, v. Commercial Bank......-___________ 47 20
    The express charged against said trustee on account of the Iron & Silver Mining Co. stock____ 220 00
    Addition credit on account of $100 check on Omer Bank_________________-........................ 50 00
    If these items are allowed, a balance against the trustee would still remain in the sum of $188.79.
   Brooke, J.

{after stating the facts). We will consider the claimed items of credit in their order. At the outset it is pertinent to observe that the powers conferred upon the trustee by the instrument creating the trust are peculiarly broad. The beneficiaries are each to receive from the trust fund—

“One-third of the income thereof, or so much as may be necessary to be used for their support and education, and if the income shall be insufficient, then so much of the principal as may in the discretion of said trustee or his successor in office be necessary for that purpose, and to this end I do hereby devise and bequeath to said trustee all the residue of my estate aforesaid, vesting in said trustee full power to sell, exchange all or any portion of said property and to reinvest the same as will in his judgment be for the interest of said legatees.”

Acting under the powers conferred by this instrument, the trustee, who was the sister of the grandmother of the cestui que trust, allowed Mrs. West, her ward, to persuade her to make the Cleveland investment in December of the year 1905. At the time the investment was made, Mrs. West was between 20 and 21 years of age. As soon as the business was purchased, Mrs. West and her husband went into possession and management thereof, and so continued until about July of the year 1906. In the meantime Mrs. West became of age on May 30, 1906. Upon reaching her majority, Mrs. West did not attempt to disaffirm or repudiate the act of her grandaunt and\ trustee, but by continuing in possession and control of the business thereafter tacitly affirmed the transaction. It is to be noted, further, that though her trustee, Mrs. Daglish, lived about 2£ years after she (Mrs. West) became of age, no steps were taken to question the transaction. The relationship between Mrs. West and her trustee was of a peculiarly intimate character. They lived together from the time Mrs. West was nine years old until the death of Mrs. Daglish, and during all that period, even after the marriage of Mrs. West, Mrs. Daglish contributed largely to the support of Mrs. West and her children. When Mrs. Daglish died, it was found that she had made Mrs. West the sole beneficiary under her will; the inventory of the estate showing it to be of the value of about $1,000. These two people seem to have sustained toward each other the sentiments of a fond and perhaps overindulgent mother and a loving daughter. Had Mrs. Daglish continued to live, it is only fair to Mrs. West to say that it is believed no steps would ever have been taken by her or in her behalf to compel her aunt and trustee to pay to her again money which had once been paid at her earnest solicitation, and the benefit of which she had enjoyed. The fact that Mrs. Daglish is now dead should not be permitted to weigh in the consideration of the question. It should be treated exactly as if Mrs. West herself were now seeking to recover from her trustee this sum which she has already succeeded in persuading that trustee to turn over to her in person and which she has used.

In Quimby v. Uhl, 130 Mich. 198, at page 212 (89 N. W. 722), it is said:

“ Where beneficiaries either expressly or impliedly assent to the action of their trustee in managing their property not in strict accord with the terms of the trust, they will be held to have acquiesced in such action ” — citing cases. .

See, also, Skelding v. Dean, 141 Mich. 143 (104 N. W. 410), and authorities there cited and reviewed.

It is urged that, when the Cleveland investment was made, Mrs. West was an infant, and therefore incapable of consenting to an- unlawful use of the trust estate. This is true, but, as already pointed out, she became of age a few months later, and by her acts thereafter clearly implied her consent. Her failure to disaffirm the acts of her trustee during the 2£ years following, while said trustee was alive, is also significant. We must hold that the $2,000 constituting the Cleveland investment should have been allowed as a credit in the account of Mrs. Daglish. It necessarily follows that the item of $400.99 paid out by the trustee as interest upon the loan from the proceeds of which this advancement was made should likewise have been allowed.

The Omer limekiln item of $2,600. We are unable to discover from the record that the trustee advanced for this purpose more than $1,400, either from her own estate or that of her cestui que trust. The balance of $1,200 was raised by hypothecating a mortgage for $2,000 upon the property itself. This investment was unquestionably made by the trustee for the benefit of Mrs. West and at her request. Mrs. West was at the time about 23 years of age, and knew that her estate was being used for the purpose of raising the money. This item to the amount of $1,400 should have been allowed.

Touching the demand for an allowance for compensation of the trustee, we are of opinion that it should he denied. During the years the trustee acted she made no demand for compensation for her services in that capacity, and, considering the facts in the case, we have no doubt she had no intention of ultimately making such a demand. In any event, the allowance of a claim to compensation by a trustee is a discretionary matter, and we have no disposition to disagree with the finding of the learned circuit judge upon this point. Henderson v. Sherman, 47 Mich. 267 (11 N. W. 153). The item of $47.20, costs in the suit of Miller, Trustee, v. Commercial Bank, should have been credited. We think the other claimed credits were properly denied. Deducting from the balance found by the circuit judge the sum of the credits above allowed will leave a balance of $1,983.72.

The judgment is reversed, and'the case is remanded to the circuit court, with directions to enter a judgment in accordance with this opinion. Appellant will recover costs of the appeal.

Moore, C. J., and Steere, MoAlvay, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PINEL v. PINEL.
    1. Appeal and Error — Bond—Stay—Judicial Sale.
    Unless an appealing defendant furnishes a bond as required by Act No. 299, Pub. Acts 1909, as amended by Act No. 160, Pub. Acts 1911, the decree in favor of complainant is not stayed, and may be enforced at complainant’s peril pending the decision on appeal: this court cannot enjoin further proceedings on account of defendant’s alleged poverty.

      2. Same — Equity—Briefs.
    It is the duty of complainant, after a hearing and decree on pleadings and proofs, to furnish the first brief in the Supreme Court; Supreme Court Rule 41.
    3. Same.
    Defendant’s remedy is by application to file an appeal bond, nunc, pro tunc.

    Bill by Thomas F. Pinel and another against Charles W. Pinel, Rachel Pinel, and Rachel Campsel, to require defendant Rachel Pinel to pay taxes and interest on a mortgage covering premises in which defendant claimed a life estate. From a decree for complainants, defendant Rachel Pinel appeals. On petition of appellant to restrain proceedings to enforce the decree and on motion of appellees to dismiss.
    Submitted October 15, 1912.
    (Calendar No. 25,152.)
    Petition and motion denied November 8, 1912.

      Lynn M. Johnson, for complainants.

      Devine & Snyder, for defendants.
   Stone, J.

In this case, pending an appeal by the defendant Rachel Pinel to this court from a decree entered in the court below on January 15, 1912, the said defendant has filed her petition here praying for an injunction to restrain the complainants from prosecuting a suit commenced by them before a circuit court commissioner for the recovery of possession of certain premises consisting of a farm, in which the said defendant had a life tenancy under the will of her deceased husband. By the terms of said will the complainants were left the remainder of a part' of the premises at the termination of said defendant’s life estate. At the time of the death of the testator, there was a mortgage hpon the farm, upon which there remains unpaid the sum of $2,500 of principal. In 1901, the said defendant as life tenant having failed to pay the interest on the mortgage and the taxes on the farm, the complainants filed a bill praying that the duty of the said defendant be determined, and that she be ordered to keep down the interest and taxes aforesaid, or, in default thereof, that her interest and estate be sold, the proceeds of such sale to be used in the payment of said interest. On January 8, 1902, a decree was entered defining the duty of said defendant as life tenant, and requiring her to pay the said interest and taxes during the continuance of said life estate as the same became due. The decree also provided that, in case the said defendant should fail to comply with the terms thereof, the complainants were authorized to apply to the court in said cause for such other and further order and decree as might be necessary to fully protect and preserve their remainder interest in said premises.

On August 14, 1911, complainants filed their petition in said cause, representing, among other things, that on August 16, 1910, they had become the purchasers of said mortgage, and that two years’ interest on said mortgage had not been paid by said defendant, and that the same was then past due. The petition prayed that the said defendant be ordered and decreed to forthwith pay said interest so due and unpaid, and that, if she neglected so to do, then that her life estate, or so much thereof as might be necessary, be sold, and the moneys obtained thereby be decreed to be used in the payment of said interest unpaid by said life tenant. An issue was joined, testimony taken, and the matter was brought to a hearing, resulting in the decree of January 15, 1912, aforesaid. In and by said decree, it was found that the two installments of interest on said mortgage which fell due February 9,1910, and February 9, 1911, of $125 each, were past due and unpaid, and that said defendant Rachel Pinel refused to pay either or both of said installments of interest, and that demand had been made for the same, and that said $250 was a lien upon the life estate of said defendant. It was therefore ordered, adjudged, and decreed in said cause that said defendant should pay the said two installments of interest amounting to $250 within four months from the service upon her of a copy of said decree, and, if said defendant did not pay said amount within said four months, then in such case the sheriff of the county should sell her interest in said premises, as near as may be, in the manner provided for the sale of real estate on execution, at public vendue, after giving the same notice thereof as is required in sales of real estate upon execution, etc. From this decree the said defendant appealed, filing her claim of appeal on February 29, 1912. She did not, however, give or file the appeal bond provided for by Act No. 299, Pub. Acts 1909, as amended by Act No. 160, Pub. Acts 1911.

No stay of proceedings having been asked for, and it appearing by the answer of said complainants to the petition of defendant for an injunction that a copy of the decree was duly served on said defendant on or about January 18, 1912, and she having failed to pay the amount due or any part thereof, the sale was advertised, and on July 10, 1912, was made, and the life estate of said defendant was sold and bid in by the complainants for $250. The merits and regularity of said decree and the rights thereunder are questions which are involved in said appeal, and we shall not attempt to dispose of them on this petition. The complainants, claiming that their deed upon such sale became absolute at once, and that defendant has no right of redemption from such sale, have taken proceedings to obtain possession of said premises. We are asked to restrain such proceedings. The defendant having failed to give and file the statutory appeal bond, the proceedings under the decree are not stayed, and the complainants may proceed, at their peril, to enforce their rights thereunder, as they understand them;, and we cannot relieve the defendant because of her alleged poverty.

Coupled with their answer to the petition of defendant, complainants move to dismiss the appeal for want of prosecution. It appears that defendant and appellant has perfected her appeal, and has printed the record. As, under Rule 41 (127 Mich, xxxiii) of this court, the duty to serve the first brief rests upon complainants and appellees, the merits of their motion are not apparent, and must be denied.

The petition of defendant for an injunction must also be denied, but as under the holdings of this court in Coeling v. Barnard, 159 Mich. 634 (124 N. W. 533), and Commercial Nat. Bank v. Gaukler, 164 Mich. 215 (129 N. W. 195), we have the right to permit the defendant, upon a proper showing, to file an appeal bond nunc pro tunc, in this court, staying proceedings under the decree, the petition will be denied without prejudice to her right to make such application.

No costs are allowed to either party.

Moore, 0. J., and Steere, McAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


author: Kuhn, J.

text:
    VANDERVEEN v. ELLIS.
    Compromise and Settlement — Fraud—Brokers.
    In an action by a customer against a stockbroker for a balance due, evidence examined, and held, to show a settlement in full, free from any fraud.
    Error to Ottawa; Padgham, J.
    Submitted October 8, 1912.
    (Docket No. 5.)
    Decided November 8, 1912.
    Assumpsit by Arend Vanderveen against George E. Ellis for money had and received. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Walter I. Lillie, for appellant.

      Farr & Kolyn (John A. Brown, of counsel), for appellee.
   Kuhn, J.

The plaintiff was a physician in the city of Grand Haven, and the defendant conducted a stockbroker’s office in the city of Grand Rapids. For many years the plaintiff had been in the practice of purchasing stocks upon margins, and had dealt with various Chicago and Detroit brokers. In 1901 the plaintiff began to deal with the defendant in buying stocks upon margins, continued this for a time, and closed the account with a profit of about $1,600. He began dealing again with the defendant in May, 1906, by purchasing stocks upon margins, and in 1907, the defendant desiring to close out his brokerage business, Connor H. Smith took his place as a broker. The plaintiff was informed of this, and desired the defendant to continue the business for him, but consented to turn over to Mr. Smith the stock held on margins by the defendant, and also a balance of $1,837 then in the hands of O’Dell & Co., through whom the defendant dealt. There were also 500 shares of stock purchased for the plaintiff upon margins. These were turned in at the then market price and immediately repurchased by Smith, at the same price, for plaintiff. Thereafter the plaintiff continued to do business with Smith. Some time in 1908 Smith closed out the business, and the plaintiff at that time claims there was due him from Smith $2,500. Plaintiff assigned his claim to one Lamereaux, and suit was commenced against Smith, but subsequently a nonsuit was submitted to. Plaintiff took a reassignment of his claim from Lamereaux, and brought suit against the defendant in assumpsit by declaration with bill of particulars attached. The trial judge directed a verdict in favor of the defendant.

It is contended by the defendant that, having been elected mayor of the city of Grand Rapids in the winter and spring of 1907, he desired to close. out his stockbroker’s business, and that, after some negotiations, on May 4, 1907, he effected a complete settlement with the plaintiff of all business in his hands at that time and had no further business relations with him at ail.

The following correspondence between the parties was introduced in evidence:

“City oe Grand Rapids, Michigan.
“ Mayor’s Office,
“George E. Ellis.
“Stanley Jacowski,
“ Secretary.
“April-17, 1907.
Friend Vanderveen:
“As you know I retired from business December 31, 1906, and the accounts are all transferred to Connor Smith, excepting a few and I desire to transfer them. You can draw down all excepting two dollars per share which he requires for his protection. Kindly inform me by return mail so that I can transfer your account and balance to Connor Smith.
‘c Thanking you for past favors,
“Yours respectfully,
“George E. Ellis.”
“ Grand Haven, Michigan, April 18th, 1907.
“ Hon. George E. Ellis.
“Dear Sir:
Your letter received. I have felt perfectly safe with my stocks in your hands. That is the reason why I prefer to leave them with you, in hopes that in the near future I could get out and make up a part, at least, of my severe losses. But I presume you prefer to free yourself of this responsibility and would like to make this transfer to Mr. Connor Smith. He, of course, is a perfect stranger to me and I would like your candid opinion as to his credit and financial reputation. This I would treat as strictly confidential, but I would like to know in making the transfer does your commissions go with the stocks to Smith and will I settle with him for both the buying and selling when I close them out ? According to my receipts you are now holding money amounting to $6,463. Isn’t that right ? I have been obliged to make loans from bank here and would like to draw to make good some of that loan. When I receive your answer I shall run up first part of next week to see you.
“Yours truly,
“A. Vanderveen.”
“ City of Grand Rapids, Michigan.
“Mayor’s Office.
“George E. Ellis.
* * Stanley Jacowski,
“ Secretary. “April 20, 1907.
c ‘Friend Vanderveen:
“Your credit balance inclusive of dividends, etc.* is correct, $6462.00. Connor Smith is all right and I believe him to be entirely honest and I think he is worth twenty thousand dollars. There will not be any charge for extra commission, and when you transfer you can draw all in excess of two dollars per share.
“Yours truly,
“ George E. Ellis.”

On May 4, 1907, the defendant sent the plaintiff a statement of account as follows:

Grand Rapids, May 4,1907.
Account Purchase and Sale of............
For account of Dr. A. Vanderveen.
By [and then the name “Connor H. Smith” has been scratched out, and “successor to” has been scratched out, and leaves] George E. Ellis, Morton House.
1906.
May 15 Bot. 100 O & W, 49$, Sold 38$...... $1,150 00
May 16 Credit of certificates of deposit................. $300 00
June 15 Bot. 100 O & W, 48$, Sold 38$..... 1,035 00
June 15 Bot. 100 G. W., 18, Sold 11$..................... 675 00
June 16 Credit by certificate of deposit................. 400 00
June 16 Credit interest........... 7 00
June 38 Credit by certificate of deposit................. 500 00
July 30 Credit dividend 3 per cent. 300 O & W.............. 400 00
December 3 Bot. 100 S. R., 84$, Sold 31$..................... 1,375 00
December 17 Bot. 100 Gas 96$. Sold 93$ 400 00
1907.
Januaiy 17 Credit by certificate of deposit................. §1,200 00
January 31 Credit by certificate of deposit............ 1,000 00
February 15 Credit by dividend 100 gas 150 00
February 20 Credit by interest on certificate of deposit_______ 5 00
May 7 Credit by check.......... 800 00
May 15 Credit by check---------- ' 800 00
May 25 Credit by check__________ 1,000 00
May 4 Paid C. H. Smith, per instructions .............. 1,837 00
§6,462 00 §6,462 00

No question is made by the plaintiff as to the correctness of this statement, and it appears that all his transactions with the defendant up to this time were perfectly satisfactory to him, and he never made any complaint. It appears that the terms of the settlement were well understood by Vanderveen, and were assented to by him, and it was understood that their business relations were at an end. The testimony further shows that after May 4, 1907, the plaintiff did business entirely with Connor H. Smith. Memoranda of transactions between Vanderveen and Smith were introduced in evidence, all of them headed'as follows:

“Account purchase and sale of.....—
“Eor account of Dr. A. Vanderveen.
“By Connor H. Smith, successor to George E. Ellis, Morton House.”

During all this period the checks made out by Vanderveen in payment of these transactions were made payable to Connor H. Smith, and not to Ellis, and Vanderveen drew out from Smith $1,700. It seems to us that the transaction of May 4, 1907, terminated the liabilities of Ellis to , Vanderveen on that day, unless it was tainted with fraud. Plaintiff alleges fraud in a special count in his declaration, and the basis of his claim is the statement made by Ellis regarding the financial condition of Smith when Vanderveen inquired of him regarding Smith. The statement made by Ellis in the letter regarding Smith’s financial condition was merely one of opinion, and the record does not disclose that at the time he wrote the letter he was not entirely warranted in his conclusions. Smith testified that at that time he was worth quite a considerable sum over $20,000. Ellis also showed Vanderveen a statement of Smith’s financial relations with his brokers which showed that Smith had a balance of $22,667.66 with O’Dell & Co. We cannot find any evidence that Ellis made any fraudulent misrepresentations in order to effect the settlement of May 4, 1907. The settlement was complete, and terminated the relations between the parties, and should be conclusive.

For the reasons stated, the action of the court below in directing a verdict for the defendant is sustained.

Mooee, 0. J.,and Steeee, McAlvay, Beooke, Stone, Osteandee, and Bied, JJ., concurred.


author: Moobe, C. J.

text:
    AUSTIN v. AUSTIN.
    1. Divorce — Condonation—Extreme Cruelty.
    ■ Numerous but unsuccessful attempts on the part of a wife to live peaceably with her husband, who treated her with extreme cruelty, did not condone the offense so as to deprive her of her right to a divorce.
    2. Same — Alimony.
    An allowance of $20 a month for the support of a four-year old child was reasonable.
    Appeal from VanBuren; Des Voignes, J.
    Submitted October 18, 1912.
    (Docket No. 11.)
    Decided November 8, 1912.
    Bill by Myrtle Austin against Merle Austin for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Thos. J. Cavanaugh, for complainant.

      Cole & Coembel and David Anderson, for defendant.
   Moobe, C. J.

This is a divorce proceeding. The parties were married February 23, 1902, and lived together until March 8, 1911. One child was born to them, and this child'at the time the bill was filed was four years • of age. From a decree in favor of the complainant the case is brought here by appeal.

The charge in the bill of complaint is extreme cruelty, alleged to be evidenced by beating complainant, by calling her vile names, by dragging her out of bed and striking her, and by other acts of cruelty not necessary to state here. Complainant also charges defendant with infidelity to her. The defendant answered, denying the charges. The case was put at issue and tried in open court. The testimony was very conflicting. The defendant was a witness, and among other things drawn out upon the cross-examination was the following:

“ I told him (a brother of complainant) like this: She told around I pounded her. I says, if she is going to tell those things, I might as well have the game as the name. I did slap her. I don’t know how many times. I can’t tell how many times. I can’t count them today. I didn’t slap her every time I felt like it. I felt like it a lot of times I didn’t. I have slapped her with my hand, not always across the face, have slapped her arms, and sometimes I have slapped her on the face. I don’t know where I have slapped her. Wherever it came handy I would strike or slap her.”

At another place he said:

“ I kicked off my rubber boot, and it flew off and hit her. I didn’t have any intention of hurting her.
“Q. What did you want to kick a rubber boot at her if you didn’t ?
“A. Why because I was — she was nagging at me. I told her to keep still, or I would throw it. I was in anger, mad.”

Again:

“ I don’t remember any occasion on Christmas eve. I don’t remember of pulling her hair on that night. I have pulled her hair sometimes when she had both hands clawed into mine, to make her let loose. I slapped her because she was nagging me.”

His excuse was that he was nagged beyond endurance.

Counsel claim that what occurred were mere wrangles that should not be regarded as a cause for divorce. It is further claimed (we quote from the brief):

“Some things that counsel does not say in his brief are impressive. For example, why does he ask for a divorce on the ground of contracting a venereal disease when his client swears that this occurred in December, 1909, that she fully and freely forgave, and she saw no evidence that he ever repeated that offense. The record demonstrates, further, that, if he ever was guilty of any pounding or slapping or harsh language, she forgave that. Why does not counsel discuss the proposition of condonation, and show either that there was no condonation or that the offenses were legally revived. Where is there any evidence in this record to show revival of these forgiven offenses ? ”

The case was argued orally at great length, counsel insisting that no case had been made, but if, admitting for the sake of the argument that it was established, then it was contended the offenses-had been condoned.

We have read this record-with care. It is not necessary to recite its contents. A very strong case is made for the complainant which is not wiped out by the several efforts of complainant to get along with defendant.

Complaint is made as to the provisions of the decree in regard to the little property and an allowance for the support' of the child. The decree as to the property follows an agreement made between the parties, and is not unreasonable.

The allowance of $20 a month for support ■ of the child is not excessive.

The decree is affirmed, with costs.

Steere, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    GORETSKI v. AU SABLE & NORTHWESTERN RAILWAY CO.
    1. Railroads — Negligence—Cattle Guards — Animals.
    Evidence that plaintiff’s horse when it was struck and killed by defendant’s train was near the cattle guard which was placed about 115 feet from a public road, that the road was established in 1873, before enactment of the statute requiring highways to be maintained four rods in width, and by user had been established at a width of 37 feet opposite the cattle guard, that at this point the fence along the highway formed a pocket and crossed the track at some distance from the intersection of the right of way and the line of the road, and that plaintiff’s horse wandered into this pocket on defendant’s land, and thence onto the track, presented a question for the jury as to the width and location of the highway.
    2. Same — Statutes—Question of Pact.
    ‘ Whether the cattle guard was properly located and whether defendant had left its tracks and right of way exposed beyond the limits of the road was properly left to the jury under 2 Comp. Laws, § 6294; 3 How. Stat. (2d Ed.) § 6648; Parker v. Railway, 93 Mich. 607 (53 N. W. 834).
    3. Same.
    It was a question of fact whether or not the guard was as near the highway as practicable.

      4. Same — Trial.
    The court properly refused to direct a verdict for defendant whose evidence was contradicted by plaintiff's; and it was proper to submit to the jury the issue as to the position of plaintiff’s horse in or outside of the highway when it was killed.
    Error to Alcona; Connine, J.
    Submitted October 14, 1912.
    (Docket No. 57.)
    Decided November 8, 1912.
    Case by John M. Goretski against the Au Sable & Northwestern Railway Company for the negligent killing of plaintiff’s horse. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry, for appellant.

      Albert W. Black, for appellee.
   Stone, J.

This is an action on the case to recover the value of a horse belonging to the plaintiff which was killed at a place where the defendant’s railroad crosses a highway in Curtis township, Alcona county, on August 3,. 1909. Upon the trial it was conceded by the defendant that the horse was owned by the plaintiff, and that it was killed by being run over by a train operated by the defendant. The plaintiff recovered a verdict and judgment of $100, and the case is here for review upon errors alleged in the trial, and in the refusal to grant a new trial.

"We have found some difficulty in understanding the testimony as to the location of the railroad and highway, for want of a proper map. The appended sketch produced from Exhibit B, which was received in evidence without objection, on the trial, will aid somewhat in understanding the situation. The repeated letters “oooo o o ” are supposed to indicate the course taken by the horse to the point where he was killed upon the track.

The alleged negligence upon which the action is based is that the defendant neglected to fence its right of way as provided by the statute. There is no claim that the fences and cattle guard were not in good condition. The negligence alleged is that they were not properly located. At the point in question the railroad does not cross the highway at right angles, but diagonally. The cattle guard in question was southerly of a point where the railroad crossed the traveled portion of the highway, a distance of about 114 or 115 feet. There was considerable

conflict in the testimony as to the actual width of the highway and the highway lines. On the part of the plaintiff the testimony tended to show that the point where the railroad crossed the State road was 115 feet from the center of the road to the cattle guard on the south; that there was no fence for that distance between the State road property and the cattle guard; that the land on each side of the railroad for that distance was open on both sides to the public; that on the south side it was uneven, and on the north side it was more level; that the railroad track could have been fenced out to the State road crossing; that the highway at that point for a little distance ran almost parallel with the right of way of the railroad; that the highway was about 30 feet wide; that the northeast end of the south cattle guard came pretty near to the highway; that it was about 20 feet from the nearest end to the center of the State road — that is if a line were drawn at right angles with the railroad track from the nearest end of the cattle guard, it would be about 20 feet — that after crossing the railroad track the State road bends around southerly, and for some distance runs parallel with the railroad.

One of plaintiff’s witnesses on cross-examination testified as follows:

“Q. Isn’t it a fact that the east end of the cattle guard in question runs out to the highway — the old State road ?
“A. The east end; yes. It runs right to where it is fenced. As far as it is fenced in.
“ Q. And isn’t it a fact that it is fenced right to the edge of the highway ?
‘ ‘A. The highway is fenced right to that cattle guard, and stops right at the cattle guard.
l‘Q. What I say is — isn’t that fence or cattle guard right to the edge of the highway, the old State road ? Here is your railroad running along here and the highway running along here, isn’t it a fact that that cattle guard runs right to the highway ?
“A. Yes.”

One of the plaintiff’s witnesses described the killing of the horse as follows:

“ I saw Goretski’s horse killed. I was working below the railroad in my field when I heard the log train whistle for the crossing. * * * I looked up, and saw this horse standing across the State road with his head south. When I looked again, he was standing right across the middle of the track still facing south, about halfway between the State road crossing and the cattle guard. From there the horse went down into a depression or hole as we called it, on the south side of the railroad, and, when the engine came down, the engineer blew his whistle twice, and then I saw the horse start up the bank, and saw the engine run into it. When the horse was struck by the train, it was as near as it could be to the cattle guard, and not behind the guard.”

A stream runs under the track right north of the south cattle guard. It was here conceded that it was about 1144 feet from the crossing proper to the cattle guard. On cross-examination this witness testified that the horse was not over 8 or 10 feet away from the cattle guard when it was struck; that right where the horse was standing when he first saw it, from fence to fence the highway was quite wide. It took in that hole or deep depression. The State road and the railroad and all of it was mixed in together. He did not know there is any legal width for a State road. It was an old trail, he understood, that had been cut there for years for a tote road. Witness had been there about 17 years, and this road has always been just as it was when he moved there. On redirect examination he testified that the used part of the old State road was wide enough for two wagons; that there was just one wagon track right there, and it was the track that was used by people in driving up and down that road; that there was a narrow strip of land between the railroad track, the rails and ties of the track, between that and the used portion of the road, between the road and the railroad track; that there was no fence or guard or protection on either side of the railroad track to keep cattle from getting on this point of land, and on the railroad track for the distance of 115 feet back to the cattle guard; that there was a field fence that set away back, belonging to a farmer there, that made a kind of a bag there — several rods from the railroad; that it was between the railroad track and this fence that this hole or depression was — between the two fences. Evidence was also produced by the plaintiff, that, considering these two lines, inclosing the traveled part of the State road and these two lines, the railroad track, it would not inconvenience the public travel along this road for some distance if the fence and cattle guard were moved to a point nearer the crossing proper; that the fence and cattle guard could be moved some closer to the crossing, probably 30 or 40 feet; that, if that were done, the nearest end of the cattle guard would be pretty close to the highway, within four or five feet.

On the part of the defendant there was evidence tending to show that at the point in question the State road runs bn the railroad right of way over 200 or 300 feet; that at the point opposite the cattle guard the highway was 37 feet wide; that the fenced line of the right of way —that is, the fenced line between the highway and the railroad track — runs right up to and is attached to the cattle guard; that, if the cattle guard were moved closer to the crossing, it would be on the main traveled highway ; that from where the fence and cattle guard meet to the center of the highway if 19 feet, it would leave about 15 feet between the cattle guard and the edge of the' road in question. There is land there that is not used for driving or track purposes. To the west of the railroad track and to the north of the cattle guard there is a depression. The fence along the railroad track is the railroad fence, and the other is a private fence. As a matter of fact cattle getting in this triangular piece of land from the highway and the State road in question could not get out again except by crossing the railroad track or going out along the fence line to the State road. The State road, as it. was called, was put in there in 1873, and the railroad was built in 1891.

“The cattle guard is 14 feet wide, the pit, and they put the cattle guard in here. The section crew in building that cattle guard had this fence come by and alongside the State road, and they measured over the two rods over to that point. Most highways are four rods wide. This is an old State, road, and is especially narrower than any other legal road in the State now. They first took this line to where it comes in here, and they put that cattle guard in there because they did not want to encroach on the highway. If they had put it closer, they would have had a very narrow road here, and no team would have had a chance to pass another. * * * The section crew in building that cattle guard put it there because they did not want to encroach on the highway.”

The roadmaster of the defendant testified to the same, in substance. On cross-examination he testified as follows:

“Q. You own some property along the railroad track, here on this side of the track ?
“A. I expect so.
Q. Now, then, why could not the fence be built along your line between that right of way and the highway ?
“A. It is built just about to the nearest point that I built fences then.
“Q. The railroad owns some of this land between the crossing proper, and the place where the cattle guard now stands. Why could not the railroad company build the fence along its own land there, and up to a point nearer to this crossing ?
“A. You might build nearer the grade, but you would have a regular pen there.”

The defendant requested the court to charge the jury as follows:

“ (1) I charge you, as a matter of law, that if you find that the so-called south cattle guard extends up to the south line or boundary of the highway that your verdict shall be no cause of action.
“ (2) I charge you that the facts showing that the so-called south cattle guard does not extend up to the south line or boundary of the highway or State road, so called, are undisputed, and that you are to find such to be the facts.
“ (3) I charge you as a matter of law that the undisputed facts show the defendant to have complied with section 6294 of the Compiled Laws of 1897, and therefore your verdict shall be no cause of action.”

The above requests were refused, except as covered by the general charge.

The court charged the jury, among other things, as follows:

“Now, the defendant railroad company claims in this case that it has complied with the statutory requirements in regard to the fences and cattle guards. That is their defense — that they have complied with the statutes substantially, and that they had there that day erected and in good order fences and cattle guards that met fully the requirements of the statute. They claim that they had built fences both on the easterly and westerly sides of this railroad, and built a cattle guard at the north side of this highway, and one at the south side of the highway, and proper connecting fences. That is their claim.
“ Now, there is no claim here that the fences as built, or the cattle guards as built, were not sufficient. The claim of the plaintiff is that they were not properly located and extended. The claim of the plaintiff is that the railroad fences did not cover the entire right of way outside of the highway. So you see the complaint is not on account of the kind of fence that had been erected there, or the kind of cattle guard, but the complaint is of the location of the fences and the cattle guard.
_ “Now, this statute requires the fences to be erected at highway crossings up to the line of the highway, to that point where the line of the highway and" the line of the railroad right of way meet. It contemplates that railroad tracks shall not be exposed except within the limits of the highway, that outside of the highway they shall be fenced, and that part of the railroad track which is unfenced shall consist only of that part of it which lies within the boundaries of the lines of the highway.
“As I told you before, highways must be left open their full width by everybody, railroads included. So this defendant, the railroad company, need not have fenced into the highway, nor upon any part of the highway, but only up to the line of the highway. So you see it is important for you to determine from the evidence where the line of the highway was, and where the line of the railroad right of way was, and the defendant was required to fence up to that point where those two lines met, but not beyond that.
“So, gentlemen of the jury, if this defendant, the railroad company, fenced up to the line between its own right of way and the highway line, then it has done its full duty, and there can be no recovery in this case. In other words, if the place where this horse was killed was a part of the highway and within the highway lines, there can be no recovery in this case. If the fences and the cattle guards were on the highway line, then the defendant is not liable, and your verdict would be in favor of the defendant, no cause of action. On the other hand, if the defendant, the railroad company, exposed and left unfenced any material or substantial part of its right of way outside of the highway, then it increased the exposure which the public would be liable to, and if it left unfenced any part of its right of way outside of the highway, and if by reason of that the horse was killed, then the defendant would be liable. And it is the duty of the plaintiff to trace the killing of the horse to the neglect to fence. In other words, the killing of the horse must he, in a degree, and to a certain extent, the consequence of the neglect to fence, if there was any such neglect. The mere fact that the horse was killed there does not of itself give any right of action. The question is, Did the defendant neglect in its duty to fence, and by reason of that was the horse killed ? The neglect of duty must be shown upon the part of the defendant. Was the killing of this horse due to the defendant’s failure to fence this right of way at the point where it was its duty to fence it, viz.: at the point outside of the highway ? If not, there can be no recovery, but if so there may be a recovery.”

The defendant made a motion for a new trial for the . reasons that the verdict was contrary to law and the evidence ; that the question was one of law to be decided by the court, and that the verdict should have been directed for the defendant; that the undisputed evidence established the fact that the cattle guard was built in accordance with the statute, at the junction of the railroad right of way and the public highway, because the undisputed evidence showed the highway to be 37 feet wide at the point where the cattle guard had been constructed, because the undisputed evidence showed that the cattle guard in question had been built up to, and adjoining the highway itself, that the highway is fenced to and runs to the cattle guard; that the cattle guard could not be nearer to the highway without being on, or encroaching on the highway; because the highway was shown to be a State road, and to have been laid out and constructed more than twenty years ago; because the undisputed evidence established the fact that the boundaries of the highway were the fences along either side; because upon the evidence the width of the highway was a matter of law for the court; and because the railroad company could not be compelled to construct its cattle guard on a highway, or encroach on the highway with its right of way. In its reasons for denying the motion for a new trial the court said in part:

“ Much time was spent by counsel in showing the location of the southerly cattle guard, and its relation to, and distance from, the fence and the highway on the easterly side of the railroad track. I did not regard this as so material and controlling as the distance this guard was from the crossing, and the location and distance of this guard from the fence on the westerly side of the track, and how much territory was left unfenced and exposed there, because the horse got to the point on the right of way, and upon the track where it was struck, immediately from the westerly side of the track. There was no showing, on either side, how far it was from the outer edge of this guard to the fence along the westerly side of the track; nor whether that fence could have been brought nearer to the railroad track; nor whether the connecting fence on the west side could have been brought nearer to the crossing proper, all without encroaching upon the highway. The horse was killed by reason of the unfenced space on the west of the track, and not by reason of the space left on the east. As the proofs did not show the dimensions of this unfenced space on the west, and as it appeared that the cattle guard was 114| feet from the crossing, I think it was an open question whether defendant had extended its westerly line of fence, and its cattle guard up to the highway line, on the westerly side of the track, whether defendant had, on the westerly side of the track, at this point, left uninclosed territory not part of the highway, that should have been inclosed by fences; in other words, whether defendant had on the west constructed its fences upon the highway lines.”

Exceptions were duly filed to the refusal to grant a new trial, and the record contains 21 assignments of error. These assignments of error are grouped by counsel for appellant, and urged in the following positions:

(1) That the highway or State road, so called, was, as a matter of law, a legal highway, with its west boundary line, the fence, running between the right of way and highway, and joining with the cattle guard.

(2) As matter of law, if the cattle guard was constructed so that the east end of such guard ran up to the highway and was connected with the fence along the highway, the railroad company had done its duty so far as concerns the location of the guard, and cannot be held liable for the killing of the horse.

(3) Assuming, but not conceding, the rule to be that, in case of a diagonal crossing, the railroad should construct its cattle guard along the line of highway, it is contended that in this case the railroad could not be held to do this, as a matter of law, because the highway and railroad were so located as to make it geographically impossible, and because of the impracticability and inconvenience attendant upon such construction.

(4) The court in its charge so submitted the case to the jury as to convey to them an erroneous impression as to the facts for their consideration, and the application of the rules of law upon which they acted in arriving at a verdict in favor of the plaintiff.

(5) The evidence showed the horse to be in the highway at the time it was struck by the train.

No time need be spent upon'the question whether this State road, so called, was a legal highway. It is conceded to have been such by the plaintiff, but it is claimed that its width was a question for the jury.

There was evidence tending to show that it was at one time an old trail that had been cut out and used for years as a “tote” road, and that it was opened about 1873. We think that its width, depending upon the user and nonuser, was a question for the jury. In the case of' Coleman v. Railroad Co., 64 Mich. 160 (31 N. W. 47), it was held that a highway can be partially discontinued by nonuser, and stands, as against long (adverse) possession, no better than any other property, and a highway by nonuser only is measured as to its width by such use. In that case, as here, counsel cited the statute — the present section 4061, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 2193) —and the fact was noted by the court that the clause in that statute making such roads 4 rods wide, was adopted in 1881, after the highway in question had become a public road by user. We think, therefore, that the question of the width of the road was one for the jury, and that the court did not err in submitting the question to them.

Was the cattle guard properly located ? This, we think, was also a question for the jury, an£ was properly submitted by the court in its charge to them. It would seem that the court must have had in mind the case of Parker v. Railway Co., 93 Mich. 607 (53 N. W. 834). This was a highway crossing case, and the question presented was similar to the one we are considering. After referring to the statute providing for railway fences, Chief Justice McGrath, speaking for the court, said:

“This statute evidently contemplates that railway tracks shall be exposed within the limits of the highway only. By exposing its right of way and tracks beyond the limits of the highway, the defendant had increased the danger, and rendered itself liable for damage occasioned thereby. Andre v. Railroad Co., 30 Iowa, 107; Railroad Co. v. Newbrander, 40 Ohio St. 15; Jeffersonville, etc., R. Co. v. Morgan, 38 Ind. 190; Fort Wayne, etc., R. Co. v. Herbold, 99 Ind, 91.”

There is evidence in the record that the cattle guard in question was laid at right angles with the railroad track, and was back about 115 feet from the crossing proper, and that no fence was maintained on the west side of the track for the entire distance of 115 feet, and that the only fence referred to was a private fence, several' rods away from the railroad track, between the cattle guard and the highway proper, thus forming a pocket on what was, by plaintiff, claimed to be land belonging to the railroad company, no part of which was highway, unfenced and unguarded, into which the plaintiff’s horse entered, and from which it came upon the track and was killed. We think it was a question of fact for the jury to determine where the boundary lines of the highway were.

Was the guard as near the highway as practicable ? We think this was also a question for the jury, and was properly submitted to them.

Should the court have directed a verdict ? We cannot agree with appellant’s counsel that only a question of law was presented. We think, as we have already said, that a question of fact was presented, and was properly submitted to the jury.

Was the horse in the highway when it was struck by the train ? It is very evident that the horse was upon the railroad track when it was struck and killed by the train. Whether it was within the boundary of the highway proper was a question for the jury, and was answered by their verdict.

We find no reversible error in the record, and the judgment below is affirmed.

Moore, O. J., and Steere, McAlvat, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


text:
    ALBERT v. PATTERSON.
    1. Limitation of Actions — Estoppel—Bill of Review.
    Shortly before the statute of limitations had run against complainant’s deficiency decree, her solicitors filed a petition for leave to issue execution against defendant in the suit. Objection being made, the circuit judge took the matter under advisement and would have entered an order allowing execution except that defendant’s solicitors presented to him a petition to file a bill of review which the judge granted ex parte, staying at the time the proceedings under the petition for execution. The court was advised by defendant’s solicitors that their application conformed to the rules of practice and the proceedings were regular, and, in reliance on such assurance, neglected to grant, as he otherwise would have done, the preceding petition for execution. The solicitor for defendant failed to notify complainant or her counsel of the said proceedings for review of the decree or the order so made although the court requested him and he consented so to do. Complainant’s solicitor did not learn of the order until after the statute of limitations had run against the deficiency decree; immediately on learning of the action of the court he made objection to the regularity of defendant’s petition and procured an order for execution under the decree. On demurrer to complainant’s bill in aid of her execution, held, that the ex parte order allowing defendant to file a bill of review and staying proceedings was improvidently granted, and defendant was estopped by the irregular action of her solicitors in procuring the order from relying on the statute of limitations as a defense.
    2. Same — Bill of Review.
    If defendant’s petition had been regularly granted and her bill of review had been dismissed at the hearing, the proceeding would have interrupted the running of the statute and defendant would have been still liable for the deficiency.
    Appeal from Kent; Brown, J.
    Submitted October 16, 1912.
    (Docket No. 97.)
    Decided November 8, 1912.
    Bill by Margaret Albert against Clara Patterson and another in aid of an execution upon a decree in chancery. From an order sustaining a demurrer to complainant’s bill, the complainant appeals.
    Reversed.

      William Wisner Taylor, for appellant.

      Walker & Fitzgerald, for defendants.
   Stone, J.

This case is here upon appeal by complainant from a decree sustaining the demurrer of defendants to the amended bill of complaint, and dismissing such amended bill, which was filed in aid of execution. The following statement of facts, contained in the amended bill, shows the history of the case, and the proceedings which led up to it. On May 26, 1899, complainant filed her bill in the circuit court for the county of Kent, in chancery, against the defendant Clara Patterson and others to foreclose a certain land contract. A subpcena was duly issued, and personally served upon the said Clara Patterson and all the other defendants, except one, who was brought in by due order of publication. The subpoena, in the underwriting, stated that a personal decree was sought against the defendant Clara Patterson, and that the bill was filed to reach interests in property, and not to obtain any further relief against the remainder of the defendants. None of the defendants appeared in said cause, and the bill of complaint was duly and regularly taken as confessed, in accordance with the practice of the court. On December 11, 1899, a final decree was duly made and entered in said cause in favor of complainant, and against all of the defendants. The decree referred the case to the circuit court commissioner to make sale of the . premises, and to report any deficiency that might arise on the sale. The decree was dully enrolled on February 26, 1900. On March 3, 1900, the commissioner made sale in pursuance of the decree and filed his report, which showed a deficiency on such sale of $563.16. The land contract sued upon drew interest at the rate of 6 per cent, per annum. No payment of such deficiency, or any part thereof, has ever been made, or tendered by said Clara Patterson, or by any one in her behalf.

On November 29, 1909, complainant filed her petition praying for leave to have execution issue against said Clara Patterson for such deficiency. Copy of ■ said petition and notice of the hearing thereof were duly personally served on said Clara Patterson on said November 29th; the hearing being on December 6, 1909. On the last-named day said Clara Patterson appeared by her solicitors in opposition to granting the prayer of the petition. At the request of the solicitors of said Clara Patterson, the argument of the petition was adjourned to the next day, December 7th. On the last-named day, said petition and matter were fully argued by the solicitors for the respective parties, and the court took the same under consideration and advisement. On December 9, 1909, without any notice to complainant, one of the said solicitors for the defendant Clara Patterson, and acting for her, induced the said circuit judge, at chambers, by an ex parte application, to grant an order for leave to file a bill of review in said proceedings, which order, among other things, provided :

“That no further proceedings be had in the original ■ cause of Albert v. Patterson, pending hearing of same.”

Said petition of Clara Patterson for leave to file bill of review was verified by her on December 6, 1909, and certified by her said solicitors on December 7, 1909. Said order so made by said court at chambers, December 9, 1909, in the caption thereof purports to have been made in open court, whereas in fact it was made in chambers, and without notice to the complainant, her solicitor, or any one in her behalf.

When said order was made, as aforesaid, the circuit judge inquired of one of the solicitors for said defendant Clara Patterson, having the matter in charge, whether the said practice in the said matter of said ex parte application for leave to file a bill of review was regular, and in accordance with the statutes of the State and the rules and practice of the court, and was then and there assured by said solicitor that said practice was regular and in accordance with the statutes and rules and practice, and said circuit judge, relying on said assurance of said solicitor, and not having time to examine therein, improvidently granted and made the said order. ' The said circuit judge, having made the said order, which by its express terms stayed all further proceedings in the original cause of Alberts. Patterson, wherein execution for deficiency was sought by complainant, deemed it unnecessary to give an opinion in, or decide the matter of, the petition for leave to issue execution submitted on. December 7th, and then pending before him, as he otherwise intended to have done, and would have done, in favor of the petitioner, Margaret Albert, and in ample time on or before December 10, 1909, so that the execution prayed for by the complainant could issue and be levied within 10 years from December 11, 1899.

At the time said circuit judge made such ex parte order, it was then and there understood and agreed by said solicitor for defendant Clara Patterson with said circuit judge that he, said solicitor, should immediately, and on said December 9th, notify the said solicitor for complainant of the making thereof, and serve said complainant’s solicitor with a copy thereof. Said order so made at chambers ex parte, and without notice to complainant, or any one in her behalf, was prepared and drafted by said solicitor for said defendant Clara Patterson. Defendant’s said solicitor utterly failed to give any notice whatever, verbal or otherwise, of the granting of said order to the solicitor for complainant, or to the complainant, or to any one in her behalf. Complainant’s said solicitor did not learn of the making of the said order until late in the afternoon of December 13th, when the said circuit judge called said solicitor to the bench of the court, and inquired of him whether he had been informed by said defendant’s solicitor of the making of said order. Complainant’s said solicitor then immediately called the court’s attention to the fact that the granting of the order, and the application therefor, were irregular, and not in accordance with the rules and practice of the court. Thereupon said circuit judge sent for the said solicitor for defendant to at once appear in open court, and, upon his doing so, the circuit judge informed said defendant’s solicitor that the court had been misled to improvidently grant said petition, and make said order, and then and there granted said petition for execution for deficiency, and directed said solicitor for complainant to prepare the proper order therefor. Said order was prepared and signed late in the afternoon of December 13, 1909. Execution was taken out and a levy made on defendant Clara Patterson’s property December 14, 1909. On February 5, 1910, complainant filed a bill in aid of said execution so levied. To this bill defendants demurred on the ground that at the time the execution was issued and levied the statute of limitations had run, the original decree háving been made as heretofore stated, on December 11, 1909. This demurrer was overruled by the court below, but was sustained on appeal to this court in Albert v. Patterson, 167 Mich. 162 (182 N. W. 548), in which this court said :

“A question is raised by complainant as to the estoppel of defendants against presenting the above ground of demurrer by reason of their alleged conduct in delaying the issuance of the execution and procuring a stay of proceedings, which we do not deem it proper to determine upon this record.”

The order was therefore reversed, and the demurrer sustained, with leave to complainant to amend her bill so as to set up the claimed estoppel. An amended bill was accordingly filed, setting up in full the granting of the ex parte order, and the conduct of defendants’ solicitor, as hereinbefore stated. To this amended bill defendants demurred; the sole ground of the demurrer being the running of the statute of limitations, and that the reasons set up in the amended bill, for failure to issue the execution within 10 years from the decree, are wholly insufficient. The court below sustained the demurrer and dismissed the bill, and the complainant has appealed.

The important question here presented is, Are not the said defendants estopped from demurring to the amended bill of complaint for the reasons set forth- therein ? We are here dealing with a demurrer to an amended bill of complaint, the material allegations of which must be considered as true. One of the allegations is that the circuit judge, having made the ex parte order, deemed it unnecessary to give any opinion, or decide the matter of the petition then pending before him, as he otherwise intended to have done and would have done in favor of the petitioner Margaret Albert, in ample time, on or before December 10th, so that the execution prayed for could have been issued and levied within the 10 years. It appears, then, that the solicitor for the defendants, by irregular practice, induced the circuit judge to grant an improvident and irregular order authorizing the defendant Clara Patterson to file a bill of review which said order restrained all further, proceedings in the original case of Albert v. Patterson.

It is contended by counsel for defendants:

(1) That as knowledge of this order did not come to complainant’s solicitor until December 13th, after the 10 years had elapsed, it could not have operated on the actions of complainant’s solicitor.

(2) That the order did not operate to prevent complainant from proceeding to sue at law upon the decree within the 10 years.

In our opinion the question is not what effect the irregular order had upon complainant or her solicitor, but what the effect was upon the action of the circuit judge. Clearly, by the allegations of the amended bill, the circuit judge was misled, and lulled into inaction upon the petition, by the irregular practice of defendants’ solicitor. He did not act upon the petition within the statutory period as he otherwise would have done. Neither is it an answer to say that complainant might have sued at law on the decree. She was proceeding in a legal manner to enforce her rights, but was prevented from doing so by the inaction of the circuit judge, which inaction had been brought about by the irregular practice of defendants’ solicitor. Should not defendants under such circumstances be held to be estopped from pleading the statute of limitations ? We think so. See Steele v. Bliss, 166 Mich. 593 (132 N. W. 345, 37 L. R. A. [N. S.] 859), and the cases there cited, especially Wakefield v. Brown, 38 Minn. 363 (37 N. W. 788, 790, 8 Am. St. Rep. 671), where this language is used:

“On the same principle, if the defendant brought a writ of error, and thereby hindered the plaintiff from taking his execution within a year, and the plaintiff in error was nonsuited, or the judgment affirmed, the defendant in error might proceed to execution after the year, without scire facias, because the writ of error was a supersedeas to the execution, and the plaintiff must acquiesce until he hears the judgment above. The reason for this is that the stay of execution being with the consent and for the benefit of the judgment debtor, and the injunction or writ of error being his own act, he should not take advantage of them, nor could he be surprised or prejudiced by the delay, because that delay was in fact referable to himself.”

If leave to file bill of review had been regularly granted, and such bill had been dismissed at the hearing, still said defendant would be liable for the deficiency. The demurrer should have been overruled.

The decree below is reversed, and the cause will be remanded, with leave to defendants to answer. The appellant will recover her costs in this court.

Moore, C. J., and Steers, McAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


text:
    CRANE v. READ.
    1. Mortgages — Deed as Security — Evidence.
    Evidence of complainant that defendant advanced to him the purchase price of a farm, taking title as security, denied by defendant and his witnesses, who olaimed that the transaction was a purchase by defendant, is found to be insufficient to overcome the presumption that the deed conveyed the title in fee to defendant.

    2. Trusts — Statutes—Resulting Trusts.
    Undhr 3 Comp. Laws, § 8835, 4 How. Stat. (2d Ed.) § 10675, abolishing any resulting trust if the title of real property is taken in the name of one person, when the consideration is paid by another, defendant could not be required to convey the farm to complainant on tender of the price.

      Appeal from Washtenaw; Kinne, J.
    Submitted. October 11, 1912.
    (Docket No. 45.)
    Decided. November 8, 1912.
    Bill by George C. Crane against George Read and another to have a deed declared a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John W. Dwyer and Frank A. Stivers, for complainant.

      J. F. Lawrence, for defendants.

       As to whether a deed absolute on its face, but intended as a mortgage, conveys the legal title, see note in 11 L. R. A. (N. S.) 209.

   Stone, J.

The bill of complaint in this cause was filed to have a certain deed construed to be a mortgage, and that the complainant be decreed to have all the rights, claims, and privileges of a mortgagor, and be permitted to redeem therefrom in accordance with the terms of an alleged agreement entered into with the defendant George Read, and that the defendants may be decreed to execute and deliver to complainant a deed of the farm in question according to the terms of an alleged agreement and understanding between complainant and defendant George Read. The parties are all residents of the township of Pittsfield, Washtenaw county. The complainant resides upon the farm in question, and the defendants own and occupy a farm across the highway from the farm occupied by complainant. On February 3, 1909, the complainant entered into a written lease of, and option to purchase, with one Charles F. Pardon, administrator of the estate of Gustav H. Wiederhoft, deceased, the said Wiederhoft farm (being the farm in question) for one year beginning March 15, 1909, and ending March 15, 1910, at the rental of $150, to be paid on September 15, 1909. The party of the first part reserved the right to enter and remove gravel from gravel pit. The said lease contained the following provision:

“ Said party of the second part shall have the privilege of purchasing said above-described lands and premises, within the term of this lease, for the sum of $3,300.00, and if he so purchases, the rent stipulated in the lease to be paid by him shall apply as á part of said purchase money above agreed upon; and it is also agreed that, in case of said purchase, the amount of money received by said party of the first part for gravel sold from said gravel pit as aforesaid shall also be applied as a part of the purchase money.”

Complainant immediately took possession of the farm in accordance with the terms of said lease and option, and he is still in possession. Complainant gave his note to said Pardon for the rental of $150, with interest at 6 per cent., payable in six months. When this note became due, complainant, not having the money with which to pay it, applied to defendant- George Read to borrow the money. The latter agreed to loan the money to complainant, providing complainant would give him his note for the amount, and secure it by an assignment of the lease and option. This was done. . The following assignment was indorsed upon said lease and signed by complainant:

“ For value received I hereby assign unto George Read the within lease and option.
“ Dated Sept. 20, 1909.
“George C. Crane.”

The note of complainant was made and delivered, reading as follows:

“$150.00. Ann Arbor, Mich., Sept. 20, 1909.
“On or before ninety (90) days after date, I promise to pay to the order of George Read one hundred and fifty dollars at First National Bank, Ann Arbor, Mich., with interest at the rate of six (6) per cent, per annum after date. Value received. .
“ This note is secured by assignment of lease and option dated Feb. 3, 1909, on farm in Pittsfield township, said lease to be assigned to maker on payment of this note.”

The $150 was accordingly loaned to said complainant, and the rental paid and indorsed on the lease.

It is the claim of the complainant that he, desiring to purchase the said farm under the terms of the lease and option, before said option expired, applied to defendant George Read for a second loan, this time for a loan sufficient to purchase the farm; that said defendant consented to loan the amount necessary, providing said complainant would permit said defendant to take the deed of the farm in the latter’s name as security for the total amount advanced, said defendant stating that he preferred to loan in this way rather than take a mortgage. It is claimed that complainant agreed to this proposition, it being understood between them that said defendant would convey the said farm to complainant on payment of the amount of the loan with interest; that, in accordance with this agreement, Charles F. Pardon, administrator of the Wiederhoft estate, deeded the said farm to George Read, defendant, understanding that said conveyance was for complainant, and that said defendant was to hold the deed as security until such time as complainant would pay the amount due to said defendant; that the deeds from the Wiederhoft estate to said defendant were made upon the understanding that they should be considered as security for the payment of the money, which said Read then and there advanced to enable the complainant to secure the said farm under the option; that in taking the said deeds the said defendant agreed with complainant to réconvey the said farm to complainant within one year, or before that time, if complainant had the money ready to pay the amount due said defendant because of his advancements; that complainant permitted the farm to be conveyed to said defendant because he had confidence in the latter and trusted him to do as he agreed on account of being neighbors and friends; that, although the deed to said defendant is absolute on its face, yet, in fact, it was intended as a security for the payment of the money advanced by said defendant for the benefit of complainant; that ever since the delivery of the lease and option complainant has been, and still is, in the actual possession and occupation of said farm without objection or hindrance from said defendant, or from any other person; and that complainant has always been ready to perform his part of the agreement, and for that purpose, on March 18, 1911, he presented to the defendants a deed for them to sign, and at the same time tendered the full amount due them in cash, to wit, $3,536.90, and that said sum was the amount due said defendant George Read according to his own figures, and that said defendant refused to sign said deed or accept the money tendered.

We have here stated the position and claim of complainant as set forth by his solicitor. It may be said in brief that each and every material claim of the complainant is denied by the defendants. There is an absolute and direct contradiction in the testimony in the case in relation to the taking of the deed by the defendant Read of the land in question as security. It is conceded by said defendant that the lease and option were assigned to him to secure the loan of the $150. It is the claim of defendant George Read that complainant not only did not pay the $150 note when due, but that he has never paid it; that the lease and option expired on March 15, 1910, and that about four days later, and on March 19, 1910, Mr. Pardon being at liberty to sell the property to him, the defendant Read purchased the farm and paid for it; that the deeds were drawn and delivered in the probate office, and that complainant had nothing to do with the transaction, and was not even present; that said defendant bought the farm absolutely; and that complainant had nothing to do with the transaction. Among other things, the defendant George Read testified as follows:

“ Towards the time that the option would expire, I cannot remember dates, but Mr. Crane came up occasionally, and he wanted to know one day if I would buy the place and sell it to him on a contract. I told him that I did not like to do that, I did not like to deal in contracts, and I would not do it. Then he wanted to know how much money I would put into it and take a mortgage on it. I told him I would put in $2,000, and take a mortgage on it, and, if he could raise the rest, he could do it in that way. He could not do that, or did not. Some time after that, when he was dealing with those parties in Ohio, he came to me and wanted to know if I would lend $1,000, and take a mortgage on the place. I told him I would, but I never heard any more of it, never any more was said to me about a mortgage. * * *
“Q. Finally you had a talk with Mr. Crane about buying this place, what was that over in your house when you said you would rent it to him?
“A. I told him then, it was either the time he wanted me to put up $2,000 and I told him I would, or the time we were talking about the land contract. I told Mr. Crane that if he could not buy the place I would buy it and rent it to him for $150, the same he was paying, ‘ and I will give you this $150 that you are owing me for the note for your bargain.-’ That is what I told him.”

Without quoting further from the testimony, it is sufficient to say that it is the claim of the defendant Read that nothing came of these conversations, but that, after the lease and option had expired, he purchased the property absolutely from the estate, and that there was no understanding between him and complainant, nor' between him and the grantor or grantors of the farm, that the purchase was in any way or manner for the benefit of complainant. The evidence of Mr. Pardon tends to support the claim of the defendant Read. That the complainant has persisted in remaining in possession of the farm is not denied, but it is the claim of said defendant that complainant is there without right. Every claim of the complainant material to his recovery is denied by the defendants, except the facts of the tender and the refusal to make a deed. The circuit judge who heard and saw the witnesses testify dismissed the bill of complaint.

A careful reading and consideration of the record have brought us to the conclusion that the complainant has not made out his case by even a preponderance of the evidence. In this class of cases the proof ought to be sufficient to overcome the presumption that the instrument in question truly represents the transaction in its entirety. Schmidt v. Barclay, 161 Mich. 1 (125 N. W. 729, 20 Am. & Eng. Ann. Cas. 1194).

So far we have treated the case as presenting a question of fact only. It is the contention of defendants’ counsel that a fundamental and fatal objection to the complainant’s claim is the fact that the statute is a complete bar to his right to recover. Section 8835, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10675), provides as follows:

“ When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”

It is urged that in this case the complainant advanced no money whatever for the purchase of the land in question, but the whole consideration was advanced by the defendant Read; and there was no writing in relation to the transaction outside of the deed from a third party which was absolute on its face. It is said that this section of the statute proceeds on the assumption that the person requesting and directing the conveyance furnished and supplied the consideration for the purchase of the land; that the fact that the defendant supplied the purchase money, and that such purchase money was paid by him, does not in any way change or alter the rule that brings this case within the statute; and that an express direction does not, and will not, result in favor of the complainant, although he requested and directed the conveyance to be, made to the defendant, which claim, however, is expressly denied by the defendants. It is claimed that this doctrine finds support in the recent cases of Halliday v. Basil, 170 Mich. 489 (136 N. W. 354), and Longe v. Kinney, 171 Mich. 312 (137 N. W. 119). See, also, Taylor v. Boardman, 24 Mich. 287; Tiffany v. Tiffany, 110 Mich. 219 (68 N. W. 127); Desmond v. Myers, 113 Mich. 437 (71 N. W. 877); Chapman v. Chapman, 114 Mich. 144 (65 N. W. 215, 72 N. W. 131); Hamilton v. Wickson, 131 Mich. 71 (90 N. W. 1032).

Counsel for complainant claim that section 8885 has no application in this case; that complainant is not seeking to establish a trust, and that in all cases that have been before this court it has been held that a deed absolute in form may be proved by parol to have been intended as a mortgage — citing many familiar cases. Complainant’s counsel further claim that in Gamble v. Ross, 88 Mich. 315 (50 N. W. 379), exactly the same state of facts existed; that Gamble had. a contract with Webber, who owned the lands in fee. At Gamble’s request, Webber conveyed the lands to Ross, and the conveyance was held tc be a mortgage from which Gamble might redeem. We think that the case cited can be distinguished from the instant case in this: In that case the written assignment of the contract to Ross contained this language:

“And hereby authorizes said Webber to make, execute and deliver to them (the Rosses) the warranty deed of said land specified in said contract to said first parties in said contract of December 30,1889, for the purposes aforesaid.”

Upon that subject this court said, at page 330 of 88 Mich. (50 N. W. 383):

“ These papers must be construed together. While the deed is absolute in form, yet the contracts with it clearly evidence the intention of the parties. It was not intended by Gamble, nor understood by the Rosses, that the Rosses were to have the title absolutely in fee. The deed was intended as a mere security, and the conditions upon which the Rosses took it are clearly indicated in the assignment of the contract executed on the same day — i. e., a reconveyance of the land upon the performance of these conditions. It must therefore be treated as a security, or, in other words, a mortgage.”

In the instant case, construing all the papers together, the deed coming from a third party to defendant George Read, who paid the consideration, the transaction, considered as a whole, is more consistent with the claim of said defendant than with the claim of complainant. We think that the statute cited applies in this case. So, in either view of the case, we are of the opinion that the circuit judge reached the correct result, and the decree below is affirmed, with costs to the defendants.

Moore, C. J., and Steere, Brooke, Kuhn, and Bird, JJ., concurred with Stone, J.

Ostrander, J. . I concur upon the ground that the evidence does not support the complainant’s case.

McAlvay, J., concurred with Ostrander, J.