text:
    KELLOGG v. NORTHRUP.
    Deeds — Defeasibility—Parol Evidence — Burden of Proof.
    Although a conveyance absolute in form may be shown by parol to be a mortgage, the burden of proof is upon him who asserts the defeasible character of the instrument.
    Error to Wayne; Carpenter, J.
    Submitted November 6, 1897.
    Decided December 15, 1897.

      Assumpsit by Edward P. Kellogg against Beacb A. Northrup to recover the purchase price of real estate. Prom a judgment for defendant, plaintiff brings error.
    Reversed.

      C. C. Yerkes (Haug & Yerkes, of counsel), for appellant.

      Edwin F. Conely and Orla B. Taylor, for appellee.
   Grant, J.

Declaration in assumpsit upon the common counts. Bill of particulars, balance due on sale of house and lot December 29, 1891. Plea, the general issue. The defense was that the deed was a mortgage. The court instructed the jury that the burden of proof was upon the plaintiff to establish the character of the deed. The learned circuit judge was in error. The onus probandi is upon him who asserts that a written instrument is not what it imports upon its face to be. A deed may be shown to be a mortgage. McMillan v. Bissell, 63 Mich. 66. While the court in that case were equally divided as to the effect of the proofs, all' the justices agreed that a deed absolute upon its face may be shown to be defeasible by parol upon adequate proof. Justice Sherwood recognized the rule that in such case the proofs must be clear and convincing, and said, “Something more than a bare preponderance of proof should be required to change the character of the instrument expressed upon its face.” Chief Justice Campbell stated that that was one of the very few cases where an attempt was made on the part of the grantee to declare the deed defeasible, and said, “It ought not to be done without entirely satisfactory proof.” Undoubtedly, either a grantor or a grantee may establish the defeasible character of the instrument. Such suits usually arise in courts of equity, either on the part of the grantor to redeem, or upon the part of the grantee to declare the deed a mortgage, and to foreclose. In either case the onus is upon him who seeks to change its character. The same rule applies in courts of law. A preponderance of evidence is sufficient. Ferris v. McQueen, 94 Mich. 367.

Error is assigned upon the admission of some testimony. We think it was properly admitted. It is not of sufficient importance to the profession to discuss.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    RABEKE v. BAER.
    1. Seduction — Evidence—Nonaccess oe Husband — Legitimacy oe Issue.
    Plaintiff in an action for seduction, -who was married to a third person in April following the acts complained of, and gave birth to a child in September, cannot testify that she first met her husband in February of the year they were married, as the tendency of such testimony would be to rebut the presumption of legitimacy which obtains as to children born in lawful wedlock, and which public policy requires to be preserved.
    2. Same-Elements oe Oeeense — Evidence oe Intercourse.
    But she may testify to acts of -intercourse with defendant, since conception is not an essential element of the cause of action.

      3. Same — Defendant’s Admissions of Parentage — Competency.
    And, where defendant denies ever having had intercourse with her, evidence of his admissions that he is the father of her child is also competent.
    4. Same — Promise of Marriage — Conditions.
    A recovery for seduction under promise of marriage is not prevented hy the fact that the promise was conditioned on the begetting of a child as the result of the intercourse.
    Error to St. Clair; Eldredge, J., presiding.
    Submitted October 15, 1897.
    Decided December 15, 1897.
    Case by Emelie Roll Rabeke against Charles Baer for seduction. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Stevens & Graham, for appellant.

      Carl A. Wagner (O’Brien J. Atkinson and Seward L. Merriam, of counsel), for appellee.
   Moore, J.

This is an action of seduction, in which plaintiff claims that she was seduced by defendant under a promise of marriage. She secured a judgment, from which an appeal is taken by defendant. It is the claim of the plaintiff that when she was 18 years old, in June, 1890, she entered into the employ of the defendant. Shortly after her employment began, the wife of defendant died. It is claimed by plaintiff that, soon after this, defendant made improper proposals to her, and for that reason she left his employ. She further claims that, later, defendant saw her parents, and stated to them that he wanted the plaintiff to come back to work, and that he wanted to make her his wife. She testified that the last of September, or early in October, 1890, she again commenced working for the defendant, and that soon afterwards he came to her and promised to marry her as soon as his wife had been dead ‘sufficiently long, and accomplished her seduction, and that he had intercourse’ with her frequently for several months thereafter. Before plaintiff was allowed to testify'very much, counsel for defendant was allowed to question the plaintiff, when he elicited from her the fact that in April, 1891, she married one Rabeke, who lived with her until August, 1891, and that plaintiff gave birth to a'child in September, 1891. Defendant denied that he ever had intercourse with plaintiff, and it is the claim of the defense that Rabeke was the father of the child, and that there never had been any seduction.

After the fact had been elicited of the marriage of plaintiff and the birth of the child, counsel for defendant insisted that, as plaintiff was a married woman, she was not competent as a witness in this proceeding; and it is also claimed that it was error in the court to allow her to testify that the man she afterwards married had no intercourse with her until in February, for the reason that the effect of her testimony was to bastardize issue born in wedlock, and that, for reasons of morality and public policy, such testimony was incompetent. It is urged by counsel for the plaintiff that the testimony in relation to nonintercourse between plaintiff and her husband was not drawn out by plaintiff, and that defendant cannot complain. We think counsel in error, as the record shows that plaintiff, when examined by her counsel, testified:

“During the month of October, I did not know August Rabeke, the man I afterwards married. I got acquainted with him, so far as I remember, in February, 1891.”

It was the claim of the defendant that, instead of seducing plaintiff, he had no intercourse with her, and that Rabeke was the father of the child. It is evident that if plaintiff did not know Rabeke in October, 1890, and he did not get acquainted with her until in February, 1891, he could not have had intercourse with her in October, 1890; and the effect of this testimony in relation to intercourse was not different from what it would have been if witness had testified directly to the fact of non-intercourse. It is material, then, to inquire, Was it competent for the wife to testify to the nonintercourse of the man who afterwards became her husband, in view of the fact that her child was born in wedlock, and the effect of her testimony would be to illegitimatize her offspring? Plaintiff’s claim is that the principal question in the controversy is that of seduction, and the birth of the child is an incident that goes to the measure of damages, simply, and that it was competent for the wife to testify as she did. In 1 Jones, Ev. § 96, the rule is stated as follows:

“It is well settled, on grounds of public policy, affecting the children born during the marriage, as well as the parties themselves, that the presumption of legitimacy as to children born in lawful wedlock cannot be rebutted by the testimony of the husband or the wife to the effect that sexual intercourse has or has not taken place between them. * * * The rule not only excludes direct testimony concerning such intercourse, but all testimony of such husband or wife which has a tendency to prove or disprove legitimacy. Eor example, it was held incompetent to ask the husband, for the purpose of proving nonaccess, whether at a given time he did not live a hundred miles away from his wife. * * * The rule rests, not only on the ground that it tends to prevent family dissension, but on broad grounds of public policy. * * * Nor does it depend upon the form of action, or the parties. On the contrary, it obtains whatever the form of legal proceedings, or whoever may be the parties.”

This doctrine is sustained by the uniform current of authorities, so far as I have been able to examine them. See cases cited in 1 Jones, Ev. § 96; Dennison v. Page, 72 Am. Dec. 644 (29 Pa. St. 420). See annotations to this case, where there is a very full collation of the authorities. We do not think it was competent for Mrs. Rabeke to testify to nonaccess with her husband during the period of gestation, or to a state of facts from which the inference must be drawn that she did not have intercourse with him until February. Egbert v. Greenwalt, 44 Mich. 245 (38 Am. Rep. 260).

We then come to the question, Could she testify to the fact of having intercourse with defendant? In 1 Jones, Ev. § 96, following what we have just quoted, it is said: “While the rule prevents the wife from testifying that she has not had intercourse with her husband, it does not prevent the wife from testifying that another person than her husband has had, or has not had, connection with her.” Com. v. Shepherd, 6 Binn. 283 (6 Am. Dec. 449); Chamberlain v. People, 23 N. Y. 85 (80 Am. Dec. 255); People v. Overseers of Poor, 15 Barb. 286; 2 Am. & Eng. Enc. Law, 149. It ought not to be forgotten that this is an action for seduction. It is claimed by plaintiff that her ruin was accomplished as early as the early part of October, and the seduction might be complete, though no conception followed. We think it was competent for her to give, testimony in relation to what occurred between her and the defendant.

Objection is made to the testimony that defendant admitted that he was the father of the child. It is said that the effect of this testimony is to bastardise the child, and therefore the testimony is inadmissible. We have already seen that, for reasons of public policy, it has been -held that the mother could not testify to nonaccess by the husband ; but, as before stated, the primary inquiry here is, did the defendant seduce .the plaintiff ? We think that, in an action between the plaintiff and himself, such an ad. mission is entirely competent. Palmby v. McCleary, 12 Ont. 192; Badder v. Keefer, 91 Mich. 611, 100 Mich. 272.

It is claimed there was no promise of marriage that should have been relied upon by the plaintiff, and that she cannot recover. It is also claimed that as the plaintiff had stated in an affidavit in bastardy proceedings that defendant promised to marry her if, as a result of the intercourse, a child was begotten, the judge erred in refusing a request that, if the jury found that the statement contained in the affidavit was true, the plaintiff could not recover. We think the rule announced in Stoudt v. Shepherd, 73 Mich. 588, is a complete answer to these contentions. It is true that the action of seduction has been hedged about by many fictions of the law, and that many cases can be found sustaining the claim of counsel. It has long been held in this State that a debauched woman could sue in her own name for the injury. Watson v. Watson, 49 Mich. 540; Dalman v. Koning, 54 Mich. 320. It was said in the case of Stoudt v. Shepherd, by Mr. Justice Campbell:

“This court recognized, what we conceive to be the recognized doctrine of experience, that seduction may be accomplished by means of influence and persuasion intended to reach, and actually reaching, the result, which do not necessarily involve either a promise of marriage or pecuniary advantage; and that such effectual persuasion, which is the active cause of it, may be as distinct a grievance as the more venal representations, which appeal to covetousness more than to excited feeling.”

This case is followed in Hallock v. Kinney, 91 Mich. 57.

We do not discover any error in the record, except what we have before pointed out. Because of that error, the case is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    WICKES BROS. v. HILL.
    1. Fixtures — Lease oe Chattels — Conditional Sale.
    A lease of chattels for a given term, at a fixed rental, with an option in the lessee to purchase at a specified price, stands upon the same basis as a contract of conditional sale, so far as the rights of third persons are concerned, where the property has been attached to real estate in such manner as, under ordinary circumstances, to become a part thereof. Couse v. Tregent, 11 Mich. 65, and Powell v. Eckler, 96 Mich. 538, distinguished.

      2. Same — Partnership—Unity oe Title.
    Where the individual members of a copartnership purchased land for partnership purposes, and then bought as a firm, under a contract of conditional sale, an engine, boilers, and other milling machinery, and annexed them to the realty, there was sufficient unity of title to the land and machinery to support the contention of a mortgagee of the -land that the machinery had become fixtures, and was covered by his mortgage.
    3. Same — Milling Machinery — Judicial Notice.
    The court will take judicial notice that boilers and engines used in the equipment of a shingle mill are usually so attached as to become a part of the realty, and to pass by a deed thereof.
    4. Same — Estoppel.
    One who makes a conditional sale of milling machinery, knowing that it is likely to be so attached to the realty as to become a part thereof, cannot maintain his title to the property, after it has been so attached, as against a good-faith mortgagee of the land, even though the original contract of purchase expressly provided that the machinery should not become a fixture by reason of its being annexed to the realty.
    Error to Schoolcraft; Steere, J.
    Submitted April 15, 1897.
    Decided December 21, 1897.
    Trover by Wickes Brothers, a corporation, against William H. Hill and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.
    Plaintiff, under dates of October 1 and December 13, 1892, sold to defendant the Northern Cedar Shingle Company, a partnership, certain machinery, consisting of an engine, boiler, shafting, and other articles necessary for the equipment of a shingle mill. The contract of October 1st was evidenced by a receipt, signed by the shingle company as well as by plaintiff, reciting the property delivered, and then proceeded as follows:
    “Which we agree to safely keep, and carefully use, and not remove from the county of Schoolcraft, State of Michigan; also to keep insured in the sum of-dollars, for the benefit of said Wickes Brothers; also to pay all taxes upon the same; and, at the expiration of nine months from the above daté, return the same to said Wickes Brothers, at East Saginaw, Michigan, free of charges, and unincumbered. It being expressly understood that the title to said engine, boilers, and their trimmings and fixtures shall not pass out of said Wickes Brothers until the full sum hereinafter mentioned shall be paid as herein specified; that the same shall not become a fixture by being placed in any mill or other building, or by being annexed in any manner to the realty; and that the said Wickes Brothers may at any time enter upon the premises upon which said property is located, and take possession of the same, upon a violation of any of the agreements herein contained; and that any money already paid thereon shall be considered as applied as hereinafter mentioned.”
    The consideration was $1,600, |500 of which was paid on the execution of the receipt, and the balance evidenced by four promissory notes of $275 each. It then recited that, upon a compliance with the above provisions, “said Wickes. Brothers will sell said property to the said Northern Cedar Shingle Company, and execute a bill of sale of the same.” The provisions of the second contract were the same.
    The goods were shipped and delivered to the shingle company; which erected a shingle mill, placed the machinery therein, and entered upon the business of manufacturing shingles, which it continued for a few months, and then failed. A considerable part of this property was built into the mill as it was constructed, and in a very substantial manner. The boilers were bricked in, sides and top, the.engine bolted through a solid foundation, and the machinery bolted to the building in the usual manner. The boilers and engine were placed upon a foundation separate from the building, and could be removed from the building only by removing the bricks surrounding them, and taking out a part of the side of the building. The boilers, engine, and machinery were so attached to the building that, in the absence of any agreement to the contrary, they became part of the real estate, and title to them would pass by deed. The shingle company became indebted to its co-defendants, and on April 8, 1893, gave a mortgage upon all the real estate to secure past indebtedness, and also for advances then made, amounting to about $3,000. The shingle company was composed of Solomon Rothschild, Max Simon, and Charles Van Pelt. On September 29, 1892, a deed was made to them, as individuals, of the land upon which the mill and other buildings were erected by them as copartners. Before taking the mortgage, the bank officials caused the title to be examined, and inquired of the partners whether there was any incumbrance upon this property, and whether they owned the machinery. The partners replied that they did, that there was a small amount due upon it, but that' they would take care of that. Plaintiff had no knowledge as to the character of the building to be erected, or of the mortgage, until some time after it was given.
    The court directed a verdict for the plaintiff, leaving to the jury only the question of the value of the property.

      C. W. Dunton and E. C. Chapin, for appellants.

      V. I. Hixson (Watts S. Humphrey, of counsel), for appellee.

       As to the rights and liabilities of vendor and purchaser by conditional sale on default of payment, the authorities are collected in an extensive note to Cole v. Hines, (Md.) 32 L. R. A. 455.

   Grant, J.

(after stating the facts). 1. It is insisted by the plaintiff that these contracts were not conditional, but that they were leases for a fixed term, at a fixed rental, with an option in the lessee to purchase the property at a fixed price; and that, therefore, this case is ruled bj Couse v. Tregent, 11 Mich. 65; Powell v. Eckler, 96 Mich. 538. Both of these cases involved personal property which, under no circumstances, could become real estate. We are therefore of the opinion that they have no application to a case like the present, involving property which, as is well known, is liable to be so attached to the realty as to become a part thereof. It follows that this provision of the contract leasing this property can stand upon no other or different basis than that of a conditional sale. The same acts that will estop the vendor from setting up title in the one case will also estop him in the other.

2. It is next insisted by the plaintiff that this case comes within Adams v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 Mich. 777, upon the ground that there was no unity of title to the land and personalty. We cannot concur in this view. Collyer says: “Where partners purchase real estate for the purposes of the partnership, it is usually conveyed to them as tenants in common.” 1 Colly. Partn. § 113. See, also, Pepper v. Pepper, 24 Ill. App. 316. While the record is not as complete upon this point as it might be, it is evident that this real estate was purchased by the partners for partnership purposes, and that it was so used. The partners, the tenants in common, purchased the personalty, and attached it to the real estate. As we read Robertson v. Corsett, supra, we understand that the title to the real estate was in two of the three partners, in which case there would, of course, be no unity of title.

3. All these parties except the shingle company have •acted in good faith, and the difficult question presented is, Whom does the law protect ? It is insisted by the defendants that the case falls within the following decisions of .this court: Knowlton v. Johnson, 37 Mich. 47; Ingersoll v. Barnes, 47 Mich. 104; Coleman v. Manufacturing Co., 38 Mich. 30; Detroit, etc., R. Co. v. Busch, 43 Mich. 571; and several other cases cited from other courts. It is contended on the part of the plaintiff that the case falls within that of Lansing Iron & Engine Works v. Wilbur, 111 Mich. 413, and authorities there cited, wherein it is stated:

“It is well settled in this State that the vendor may retain title to personal property sold until paid for, 'and that the vendee cannot, before his title becomes absolute, pass a good title, and that the good faith of a purchaser from the vendee is immaterial; nor is the question of notice of the vendor’s rights material.”

This language must be construed with reference to the facts of that case, which were that the defendant had taken a chattel mortgage upon the machinery in dispute, and afterwards purchased the real estate. All the parties had treated it as personal property, and the trial court, in his charge, said that the chattel mortgage “was notice to her of the character of the property,” and it was immaterial whether she purchased in good faith, and without notice of the vendor’s rights. The question now before us was not involved in that case. In Knowlton v. Johnson, supra, the lessee bought and attached the waterwheel, which was the subject of the controvery, in such a manner that it was impossible to remove it without injury to the mill. The lessor protested against removing the old wheel and putting in the new one. The vendors of the new wheel knew where the wheel was to be placed, and contracted with reference to it. They were held estopped to set up a claim of title as against the mill owner. That case differs from this in that the plaintiff here had no knowledge of the manner in which this machinery was to be attached to the land, except that which is to be inferred from its knowledge of the usual construction of shingle mills, and the manner in which the engine, boilers, and machinery must be fixed therein in order to run properly and successfully.

The rule is settled beyond controversy in this State that, as to conditional sales of personal property retaining the title in the vendor until paid for, no subsequent vendee obtains the title while the property remains personalty. This is upon the theory that the possession of movable property, known as chattels, is not conclusive of ownership or right of possession, and that he who buys takes subject to the title of the real owner. When personal property is attached to, and becomes a part of, the realty, a different rule applies. Title of record and possession of real estate are usually conclusive, and a bona fide holder takes title free from any existing equities. As between the original vendor and vendee, no-title passes, and as between them the vendee cannot make it realty contrary to his agreement. In such cases the intention of the parties must govern. When, however, the vendor sells machinery which it is well understood may, and, in the absence of agreement, does, become part of the realty by being so attached that it cannot be removed without injury, and thereby places it in the power of his vendee to so attach it, and sell or mortgage to innocent third parties, the better and more just rule is that he must suffer. Haven v. Emery, 33 N. H. 69; Voorhees v. McGinnis, 48 N. Y. 278; Taylor v. Collins, 51 Wis. 123; Bass Foundry & Machine Works v. Gallentine, 99 Ind. 525; Jenks v. Colwell, 66 Mich. 428; Davenport v. Shants, 43 Vt. 546; Ewell, Fixt. 316 et seq.; Porter v. Steel Co., 122 U. S. 267; Fryatt v. Sullivan Co., 5 Hill, 116; Hunt v. Iron Co., 97 Mass. 279.

We may take judicial notice of the fact that some of such machinery as was here sold is usually attached so as to become a part of the realty, and a deed of the realty carries with it the title to the machinery. In fact, it is necessary to so attach it in order to make it useful. This machinery was sold to be used in the construction of a shingle mill. It was so used. Without it the mill was of little value. There was nothing to give notice to the defendant mortgagees that there was an agreement between plaintiff and the shingle company that it was personalty. They examined the title, and the records in the town clerk’s office, to ascertain if there was anything there to indicate such intent. Nothing appeared. They also asked the members of the partnership, and they informed them that they held the title absolutely. We think this was an exercise of good faith, and of all the precaution the law requires on the part of a purchaser or mortgagee. We do not think that any case in this court has gone to the extent of holding that one who makes such a conditional sale, having good reason to believe that the property may become realty, can maintain his title to the property as against a purchaser or mortgagee of the realty in good faith.

Some of tbe articles mentioned in the declaration are not real estate, and the testimony is not sufficient to enable us to determine what part is realty and- what is personalty.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J. Montgomery, J.

text:
    SMITH v. DETROIT LOAN & BUILDING ASSOCIATION.
    1. Landlord and Tenant — Notice to Quit — Re-entry—Statutes.
    3 How. Stat. § 5774, provides that, in all oases of neglect or refusal to pay rent on a lease at will or otherwise, seven days’ notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease. 2 How. Stat. § 8295 et seq., prescribes a summary procedure to recover the possession of lands withheld by a tenant after the determination of his estate as above provided. Held, that a tenant’s right to the possession of leased premises terminates upon his failure to pay the rent due within the time fixed by the notice; that the landlord may then exercise his common-law right peaceably to re-enter and take possession to the exclusion of the tenant; and that such right is in no way abridged by the remedy provided at law.
    2. Same — Forcible Entry and Detainer — What Constitutes.
    An entry which has no other force than that implied in every trespass is not within the forcible entry and detainer statute.
    3. Same.
    Where a landlord, by notice to quit,’ terminates a tenancy for nonpayment of rent, and afterwards, during the tenant’s temporary absence, gains possession of the premises and removes the tenant’s goods, he is not liable to the latter for injuries inflicted by his agents in repelling the efforts of the tenant to regain possession, unless more force was used than was necessary to accomplish the result.
    Moore, J., dissenting.

      Error to Wayne; Carpenter, J.
    Submitted June 8, 1897.
    Decided December 21, 1887.
    Trespass by Minnie Smith against the Detroit Loan & Building Association. Erom a judgment for plaihtiff, defendant brings error.
    Reversed.

      Levi J. Fick and Robert Young, for appellant.

      Jay Fuller, for appellee.
   Moore, J.

Plaintiff recovered a judgment against the defendant for a trespass committed upon her person and to her personal property, from which judgment defendant appeals.

Plaintiff’s declaration alleged, in substance, that she purchased upon land contract from defendant, on the 20th day of March, 1890, lot 28 and the west half of lot 29, of Hunt & Leggett’s subdivision. The declaration then stated the terms of the contract as originally made, and alleged:

‘ ‘ That plaintiff went into possession of the premises by virtue of it, and that November 1, 1895, the contract was modified [stating the terms of the modification], and that on March 30, 1896, while she was in the possession of the premises by virtue of the contract, the defendant entered upon said premises, and' without process of law, and contrary to the just rights of the plaintiff in said premises, and while the plaintiff was sick, wickedly and wrongfully caused the said plaintiff to be knocked down and bruised, and to be thrown bodily from and out of the said building on said premises, and to be dragged out from said premises; * * * and that the said defendant caused the goods and chattels of the plaintiff in said buildings on said premises to be thrown into the street, and deprived plaintiff wrongfully of her goods and chattels,” etc.

Another count in the declaration charged that the plaintiff came into possession of said premises March 20, 1890, by virtue of said contract and agreement, and that, while she was rightfully in possession of said premises, an assault was made upon her by defendant, and her goods were thrown into the street.

The plaintiff introduced testimony tending to show all of the facts stated in her declaration. The modification of the contract which plaintiff claims was made in October or November, 1895, was an oral modification, and not in writing. It is the claim of the defendant that in the fall of 1895 the plaintiff was in default in her payments under the contract, and that proceedings were commenced before a circuit court commissioner to obtain possession of said premises, which resulted in a judgment for restitution in favor of the defendant corporation; that, after this judgment was obtained, an arrangement was made with the plaintiff by which she was to pay rent at the rate of $10 per month, and that her possession from that time was to be as tenant, and not as vendee. The record discloses that on February 21, 1896, the defendant caused a'notice to quit or pay rent to be served by leaving it at the house with Mr. Engel, who occupied the lower part of the house as a tenant under Mrs. Smith. Within a week plaintiff had knowledge of the serving of this notice, and filed a bill in equity. In her bill of complaint she claimed to be in possession of the premises as vendee by virtue of the terms of the contract, setting it up, and stating that she was ready to perform all of-its conditions, and praying for an accounting, and for specific performance, and for a writ of injunction. A temporary injunction was granted, according to the prayer of the bill. Defendant answered to said bill, and upon its motion, on March 30, 1896, the injunction was dissolved.

At this time plaintiff was keeping house in the upper part of the house upon the premises. No one was living in the lower part of the house. She had occasion to go to the business part of the city during the day, and before doing so locked the house, and carried the key with her. During her absence, and shortly after the injunction was dissolved, the attorney for the defendant unlocked one of' the doors of the house, caused the plaintiff’s goods to be removed to the barn upon the premises, and put a family in possession. Upon the same day, and shortly after, the plaintiff returned to the premises, unlocked the side door of the house, and entered. She claims she was then set upon by the persons in possession, and very cruelly beaten; that, during her absence, her furniture had been thrown out of the house, and that she had never seen it from that time until the time of the trial; that, as the result of the beating, she was sick, and confined to the house, for some time; that, as soon as she was able to do so, she saw the defendant corporation, and was referred by it to its attorney; that she informed the attorney she wanted a deed of the premises, and was ready to comply with the terms of the contract; that he informed her she had been fired out of the premises, and that he had instructed the person who had put her out to keep her out; that, if she went back again, she would be kicked out, and he would have her arrested.

On the part of the defendant it was claimed that Mrs. Smith was not treated as she testified; that no more force was used than was necessary to repel her attacks; that she finally left the premises voluntarily; that no injury was done to the personal property, and that she was notified where it was, and that she could have it at any time.

The circuit judge charged the jury, in effect, that they could not go back of the proceedings before the circuit court commissioner, which proceedings must be regarded as conclusive, and that the relation of vendor and vendee was ended by them; that the relation of vendor and vendee could not be restored by an oral agreement between the vendor and the vendee. ■ He further charged them that the notice of February 21, 1896, that plaintiff should either vacate «the premises or pay the rent due, did not terminate the relation of landlord and tenant;' that under such circumstances, if the tenant. does not vacate, it is the duty of the landlord to commence proceedings in court, and get a judgment, before a tenancy can be ended; and that in this case, while the entry was, in the eyes of the law, a peaceable entry, it was nevertheless an unlawful entry, and he charged the jury they must find a verdiet for some amount in favor of the plaintiff. He then charged them upon the question of damages to her person; and, in reference to the damages to the goods, he charged the jury as follows:

“Respecting the wrong done her goods, if you find that all the defendant did was to set her goods outside, and notified her that she could take them, it was her duty to take them, and thereby lessen the damage to that extent. * * * If, on the other hand, she was deprived of the goods entirely, and told she could not have them, why then she would be entitled to the value of the goods.”

The defendant insists there are three reversible errors in this case. One is that the proofs do not sustain the cause of action alleged in the declaration, because the-cause of action alleged is that the plaintiff was in possession -as vendee under the contract, while the proofs show that she was in as a tenant, and that her tenancy had been terminated by the notice, and the court erred in not directing a verdict for the defendant as requested. Another ground assigned to be error is that, as the entry was a peaceable entry of premises to the possession of which the defendant was lawfully entitled, therefore the plaintiff cannot recover. The third claim is that the court erred in his instruction to the jury as to the damages which might be allowed in relation to the personal property.

The declaration was not demurred to, but the plea of the general issue, with notice of the defenses heretofore mentioned, was interposed. The gist of the declaration is, not a trespass upon real property, but a trespass upon the person and to personal property, while the plaintiff was rightfully in the possession of certain real property. We quite agree with the learned trial judge that it was immaterial whether the possession of the real estate by the plaintiff was as vendee, as claimed by her, or-as a tenant, as claimed by defendant, if she was in fact lawfully in the possession of the premises; and we see nothing in the-pleadings that would prevent a recovery if the facts warranted it.

If it be assumed, as it must be, for the purposes of this case, under the proofs, that, after the agreement of November, 1895, the plaintiff’s occupancy was that of a tenant, the next question to be considered is, Did the notice of February, 1896, terminate the tenancy, so that defendant was justified in taking possession of the premises as it did, and using force to put the plaintiff out when she attempted to repossess herself of the house? Defendant insists it did, and cites 3 How. Stat. § 5774; 2 Tayl. Landl. & Ten. §§ 531, 532, and note 1; Hoffman v. Harrington, 22 Mich. 55; Hyatt v. Wood, 4 Johns. 150 (4 Am. Dec. 258); Ives v. Ives, 13 Johns. 235; Mussey v. Scott, 32 Vt. 82. An examination of the authorities cited will show that the decisions were rendered in cases brought either for trespass to the real estate, or to obtain the possession of the real estate, or where the tenancy was ended beyond any contingency that it might be restored by the act of the tenant. I think with the trial judge that section 5774, 3 How. Stat., is to be construed in connection with section 8295, 2 How. Stat., which provides how possession of premisés may be recovered, and section 8299, 2 How. Stat., which provides that upon the trial to recover possession of the premises, if it is claimed that complainant is entitled to the possession of the premises in consequence of the. nonpayment of any sum of money due either as rent or as a part of the purchase money, this amount shall be ascertained, and be stated in the judgment, and with section 8308, 2 How. Stat., which provides that no writ of restitution, for five days after judgment, shall issue, if the defendant shall pay, during the five days after the rendition of judgment, the amount so found due, and double the amount of costs.

If effect is to be given to the provisions of all these sections, I do not see how the construction contended for by the defendant can be given. The tenant has a right to rely upon these provisions of the statute, and that right cannot be cut off by the plaintiff’s arbitrarily taking the law into his own hands, and determining for himself that the tenancy is ended. Where there is a dispute between the vendor and vendee, or the landlord and tenant, or the mortgagor and the purchaser at a mortgage sale, as to the right of possession, it cannot be said that the person who is seeking to obtain possession is given entry by law until that dispute is settled by the courts in the manner prescribed by law. An entry under the circumstances claimed by the plaintiff to exist in this case was, as the learned trial judge stated, an unlawful entry (2 How. Stat. § 8284), and cannot be excused or justified, where the action is brought for injury to the person and the personal property of the one evicted. No great hardship can come to any one by following the provisions of the statute in asserting possessory rights. It is undoubtedly the purpose of these statutory provisions to change the common law in relation to the right of entry where that right is controverted, and to provide a peaceable and summary way to dispose of a disputed right of possession. A hearing may be had within a very short time, and must be had within 30 days, and no appeal can be taken without giving a bond in twice the amount of the annual rental of the premises in dispute. The statute should be given such a construction as to make it effective,’ and do away with such disputes and encounters as occurred in this case.

As to the other assignment of error, in relation to the charge of the court upon the question of damages in relation to the personal property, we think there is testimony in the case that justified the giving of the charge.

I think the judgment should be affirmed.

Montgomery, J.

I cannot agree with the conclusion of Mr. Justice Moore. On the contrary, I think that, when the plaintiff failed to pay the rent due within the time fixed by the notice served upon her, her right to occupy the premises terminated. In my opinion, it was not the purpose of section 8299 and section 8308 to abridge the common-law right of re-entry in such cases. These sections should be construed as providing a remedy by proceedings in court, and the limitations are to be construed as limitations placed upon such remedy.. To give to these sections of the statute the construction adopted by the trial judge, and approved by Mr. Justice Moore in his opinion, is to extend the term of the tenant beyond the time fixed by agreement. In 2 Tayl. Landl. & Ten. § 532, it is said, after a consideration of many authorities:

“The right of the landlord forcibly to enter, and expel the tenant who holds over after the conclusion of his term or the expiration of a notice to quit, subject only to indictment under the statutes for excessive force against the person, is now generally established.”

In Ives v. Ives, 13 Johns. 235, it is said:

“It is well settled that the person having title — that is, having a right to enter — is not liable in an action of trespass for entering with force, although liable to indictment for a forcible entry.”

To the same effect is Souter v. Codman, 14 R. I. 119 (51 Am. Rep. 364).

In the case of Freeman v. Wilson, 16 R. I. 524, it is said:

“At the expiration of a notice to quit, the tenant becomes a trespasser, and the landlord may enter the premises during the tenant’s absence, take possession, and remove the tenant’s goods, without legal process, and the tenant has no right to re-enter.”

And see Low v. Elwell, 121 Mass. 309 (23 Am. Rep. 272); Hyatt v. Wood, 4 Johns. 150 (4 Am. Dec. 258).

In Fuhr v. Dean, 26 Mo. 116 (69 Am. Dec. 484), it is said:

“Where one having title to land and a right of entry enters thereon, although the entry be by force, the common law affords no civil remedy to the party dispossessed. He must resort to the statutory remedy by action of forcible entry and detainer.”

2 How. Stat. § 8284, provides:

“No person shall make any entry into lands, tenements, or other possessions but in cases where entry is given by law, and in such cases he shall not enter with force, but only in a peaceable manner.”

The succeeding sections provide how possession may be restored if one does enter by force.

In construing .statutes containing similar provisions, the courts have not been agreed as to what is meant by force and a peaceable manner. In Smith v. Reeder, 21 Or. 541 (15 L. R. A. 172), it was held, in a case where a lease of property had by its own limitation expired, and the tenant refused to surrender possession, but continued to hold over, and the landlord, during the temporary absence of the tenant, leaving no one in possession, entered in a peaceable and orderly manner, and, having so entered, forced open in a peaceable manner an outer door of a dwelling house on the premises which had been fastened by the tenant, and in a careful manner removed the tenant’s goods, and stored them in an outbuilding, and moved his own household goods and family into the house, sending word to the tenant that he could have a reasonable time in which to come upon the premises to remove his goods and stock, that this was not a forcible entry, within the meaning of the statute. In the same case it is held that a forcible entry, within the meaning of the statute, is an entry accompanied with some circumstance of force or violence to the person, or one accomplished in a riotous or tumultuous manner, endangering the public peace. An entry which has no other force than that implied in every trespass is not within the statute.

In the case of Ft. Dearborn Lodge v. Klein, 115 Ill. 191 (56 Am. Rep. 133), it is held:

“The word ‘force,’ as here used, means ‘actual force,’ as contradistinguished from ‘implied force.’ Any entry requires force, in the literal sense of the term, but that, of course, could not have been meant, for it would involve an absurdity. Nor does it mean that force which the law implies where a peaceable entry is made by one having no right to enter, for the act absolutely prohibits a person of that kind'from making an entry at all. The conclusion, therefore, is irresistible that the force which the statute inhibits is actual force.”

See Willard v. Warren, 17 Wend. 257.

In the case of Hoffman v. Harrington, 22 Mich. 55, it is said, with respect to real property, that the "owner, having a right of entry, may, since the statutes, enter peaceably upon one who is in possession without right, by the very terms of those statutes, and that a forcible entry is not made unless the tenant is forcibly expelled, and is not complete until the expulsion.

In the case of Shaw v. Hoffman, 25 Mich. 162, it is ' said that, in construing our statute, much respect should be given to the decisions of the courts construing like statutes. Chief Justice Christiancy said:

“The statute was not intended to apply to a mere trespass, however wrongful. The entry or detainer must be riotous, or personal violence must be used, or in some way threatened, or the conduct of the parties guilty of the entry or detainer must be such as in some way to inspire terror or alarm in the persons evicted or kept out. In other words, the force contemplated by the statute is not merely the force used against or upon the property, but force used or threatened against persons as a means or for the purpose of expelling or keeping out the prior possessor. ”

In Franck v. Wiegert, 56 Mich. 474, it is said:

“ If the defendant, at.the time he entered into possession of the property, had the right to that possession, and he entered peaceably, such possession would be lawful, and neither the plaintiff nor her husband would have the right forcibly to put him out. ”

In the case of Marsh v. Bristol, 65 Mich. 378, 385, it is said:

“Under the law as it existed before the statute, the default of plaintiff under the lease would have justified Bristol in entering and using sufficient force to put him out. The statute changing this right does not make the continuance in possession any less unlawful, but, in the interest of public tranquility, provides against breaking the public peace. In doing so, it adopts the definitions of the law as existing on the subject of forcible entries, which were already indictable in other cases, and by this prohibition were made indictable in these cases. It provides that a person put out by forcible entry may be restored to possession. 2 How.' Stat. §§ 8284, 8285. But where there has not been a forcible entry, it does not forbid retaining possession by force, unless the possession is unlawful, and against the rights of the person kept out.”

And, in commenting upon the case of Hoffman v. Harrington, it is said:

“Itwas further said that leaving goods on the premises could not prevent making a peaceable entry, as force against property was no breach of the peace, and the force, to make it unlawful, must be against the tenant himself. In that case the property was actually put off, but that was held not to bring it within the statute. It is entirely well settled that unless the tenant is driven off, either by actual force applied to him, or as the only apparent way of avoiding its use against him at the time, he cannot be regarded as forcibly expelled, and there is no forcible entry.”

It is also said:

“ The object of the statute against forcible entries is not to aid men in violating their obligations, and holding what they have no right to hold, but merely to prevent riotous and forcible measures in breach of the peace. Bristol and his principal were the parties wronged by plaintiff’s continuance in possession against right. By going into possession without breaking the peace, Bristol committed no wrong in claiming possession, and in remaining there peaceably; and, this being so, by plaintiff’s own showing plaintiff himself was the aggressor to regain a wrongful occupancy. This the law will not permit.”

In the case of Gillespie v. Beecher, 85 Mich. 355, which was a case where the plaintiff was in possession of an hotel as a tenant (which hotel was owned by the defendant) after the lease had expired, it was held the jury should have been instructed that, if they were satisfied from the testimony that the lease had terminated, Mr. Beecher was entitled in the law to the possession of his premises, and that he had a right to enter peaceably into the possession thereof, and that plaintiff and her husband had no right to remove him by force; that in doing so they made an assault upon him that was unlawful, and he had a right to resist such assault by force sufficient to repel it; and that, if he used no more force than was necessary to repel the assault, he would not be liable to the plaintiff in such action.

We think it follows from the cases cited that the jury should have been instructed that, if the plaintiff had leased the lands from defendant, as testified to by its attorney, and the lease had been terminated for nonpayment of rent, and the defendant, through its attorney, had obtained possession of the house peaceably, it was not liable in this action, unless more force was used by its agents than was necessary to repel the effort of plaintiff to regain possession of the house.

As to the other assignment of eror, in relation to the charge of the court upon the question of damages in relation to the personal property, we think there is testimony in the case that justified the giving of the charge.

Plaintiff’s counsel, in his brief, argues that the court erred in charging the jury that the proceeding before the circuit court commissioner ended the relation of vendor and vendee between the parties. As the plaintiff has not appealed, or assigned error in relation to this matter, we are not inclined to discuss the question.

For the reasons stated, judgment is reversed, and a new trial ordered.

Long, C. J., and Grant, J., concurred with Montgomery, J. Hooker, J., did not sit.


text:
    LAIRD v. LAIRD.
    1. Witnesses — Matters Within Decedent’s Knowledge — Parties in Interest.
    The wife of complainant in a bill for specific performance of a contract by which her husband’s father was to give the husband whatever property he should die seised of is a party in interest, because of her homestead and dower rights in any land covered by such contract, rendering her incompetent, under 3 How. Stat. § 7545, to testify to conversations with decedent.
    2. Inconsistent Remedies — Election — Wills—Claim Against Estate.
    A son of testator, who secures the probate of the will, devising certain land to him, subject to the payment of a specified amount to his brothers and sisters, and then obtains an order to sell the land to pay a debt to himself for boarding the father, and the expenses of administration, cannot afterwards, and while his claim against the estate is pending on appeal, maintain a bill for specific performance of an alleged parol agreement by the father to give to him whatever property he should die seised of, in consideration of such board.
    Appeal from Wayne; Lillibridge, J.
    Submitted October 5, 1897.
    Decided December 21, 1897.
    Bill by Charles Laird against William C. Laird and others, heirs of James Laird, deceased, for the specific performance of a land contract alleged to have been made by deceased in his lifetime. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James H. Pound, for complainant.

      C. E. Warner, for defendants.
   Grant, J.

Complainant seek's to enforce the specifici performance of a parol land contract, claimed to have' been made with his father, James Laird, deceased. The. defendants are his brothers and sister. The contract alleged in the bill is that his father boarded with complainant and his wife “with the express promise that at his death he, said James Laird, should give to your orator, in compensation of his said board, whatever property he died seised of.” The contract is stated by complainant’s wife thus:

“He (my husband) told father, he said, if the house was not rented by next Wednesday, we will move; and I said, ‘No, I want to know how we stand.’ ‘Well,’ he said, ‘I have not paid you any boárd. You may move into the house, and consider it your own, but we will have to pay all the taxes, and make all the repairs, and fix it to suit yourselves. It will be yours along with the rest, but not until I am done.’ ”

This was in 1888. Complainant and his wife took possession of the house, and occupied it rent free; the father living with them until his death, in 1893. They lived together as one family.

1. Is the testimony of complainant’s wife competent, under 3 How. Stat, § 7545; Act No. 121, Pub. Acts 1895 ? She has a direct interest in the subject-matter of the litigation. If the agreement be sustained, she secures homestead and dower rights, of neither of which can she be deprived except by her own voluntary act. She is as deeply interested as her husband. If the legal title be in him, he cannot convey it, or deprive her of possession. She can hold possession during her life. She is, therefore, a party in interest, within both the letter and spirit of the law, and her testimony must be excluded from consideration. In re Lambie’s Estate, 97 Mich. 58; Hillman v. Schwenk, 68 Mich. 293, 301.

2. The defendants reside in Scotland. The father,, a common laborer, was of frugal habits, and left an estate, real and personal, which inventoried $3,975.29. He left no debts, and no claims were presented against the estate except that of the complainant for board, etc., amounting to $1,261.75, to which, under the theory of the existence of this contract, he was not entitled. Mr. Laird was a member of the Presbyterian church, and Dr. Dickie was his pastor. He had been ill nine days before his death. Dr. Dickie wrote the will, which was witnessed by him and Mr. Laird’s physician, Dr. Barclay. The will was executed the day of his death, and several hours previous thereto. Complainant and his wife at the time both knew of its execution, and its terms. Complainant and one Taylor were made executors. It devised the house where complainant lived to him, subject to the payment of $1,000 to the executors, to be divided, with his other property, equally among testator’s other children. The house and lot bequeathed to complainant was of the value of $1,800. Complainant’s wife testified that she went into the room with Dr. Dickie, and said to Mr. Laird, “Now, father, tell Mr. Dickie what you want done.” The deceased then informed Dr. Dickie what he desired to do with his property. Dr. Dickie wrote the will in accordance with his directions. Dr. Barclay testified that he was of sound mind at the time.

The will was executed January 10, 1893. Complainant presented it to the probate court, and petitioned for its probate. It was duly probated, complainant’s claim allowed, and, upon the petition of the complainant, an order made to sell the real estate to pay the debts and expenses of administration. The petition stated the expenses of administration to be $275. Meanwhile the complainant had not informed his brothers and sister of his claim against the estate, or of its allowance, or of the proceedings taken to sell the land. It is evident that he intentionally kept this information from them. On learning the situation, the defendants took steps to appeal from the allowance of complainant’s claim, and secured from this court an order allowing such appeal. After this was done, the complainant filed this bill on October 16, 1895. He made no claim of this alleged contract, either to Dr. Dickie or to his father, at the time the will was executed. He has not yet abandoned his claim against the estate, and it is still pending in the circuit court. This conduct is utterly inconsistent with the claim set up in this bill. The will is inconsistent with it, and the rent and the devise to him of the house and lot appear to have been ample compensation for the care of the father. The will is equitable and just. The subsequent conduct of the complainant ratified it, and debars him from now setting up another and inconsistent claim. He deliberately, and with full knowledge of the facts, chose his remedy, and must abide by it. Hinchman v. Weeks, 85 Mich. 535; Sullivan v. Ross’ Estate, 113 Mich. 314.

It is unimportant to discuss the testimony claimed to show a contract resting entirely in parol.

The decree is affirmed, with costs.

The other Justices concurred.


author: Long, C. J. Moore, J.

text:
    MILLER v. VOORHEIS.

    Vendor, and Purchaser — Misrepresentations—Rescission—Caveat Emptor.
    The falsity of representations made by the owner and proprietor of an hotel to induce a iiurchase of the property by one wholly ignorant of its value and earning capacity, to the effect that it was worth from §6,000 to §8,000, and that its net earnings to him had been §100 per month, entitles the purchaser to a rescission of his contract to purchase for §6,000; the rule of caveat emptor not applying where the statement relates to a material fact solely within the knowledge of the seller.
    Appeal'from Clinton; Daboll, J.
    Submitted October 5, 1897.
    Decided December 21, 1897.
    Bill by Robert F. Miller and Victoria Miller against William T. Voorheis to rescind a contract for the purchase of real estate. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Almond G. Shepard and Edwin H. Lyon, for complainants.

      High & Everett (William A. Norton, of counsel), for defendant.

       Rehearing denied February 16, 1898.

   Long, C. J.

The bill in this cause was filed to set aside a certain contract for real estate, to discharge a $1,500 mortgage, and for an accounting for $500 paid when the contract was made. On the hearing, the court below dismissed complainants’ bill, with costs.

Complainants are husband and wife. The bill sets up that in 1895 they owned certain hotel property in Elsie, Clinton county, worth about $5,000; that defendant owned certain hotel property in the village of Ovid, Clinton county; that he, in person and by his agents, solicited them to purchase the hotel property at Ovid, and, in order to induce them to purchase, represented the property to be of the value of upwards of $6,000, and that said property had been occupied and operated by defendant for about one year immediately prior thereto, at a profit to him of $100 per month, and that the parties occupying it prior thereto had made a profit of $100 per month during all the time it had been occupied by them; that, upon these representations, the complainants purchased the property of defendant, taking a contract in writing therefor. The contract expresses a consideration of $6,000, to be paid, $500 at execution of the contract, $1,500 note, with mortgage on the Elsie property owned by complainants, due in three years, with interest at 7 per cent., $1,000 to be paid in 18 months, and the balance, $3,000, to be paid in five years, with interest at 7 per cent. The property covered by this contract was the hotel property at Ovid, and all furniture in the hotel, except certain goods mentioned. The bill sets up that the $500 was paid down, and the $1,500 note and mortgage made and delivered; that complainants took possession of the property, but were unable to make any profits whatever. And they allege that the representations made by the defendant were false; that he made no profits there; and that the property was not of the value.of $6,000, as represented by defendant. It is also claimed byihe complainants that the complainant Robert F. Miller was old and. infirm, and unable to transact business, and hence easily misled by the false representations of the defendant.

The defendant answered the bill, and claimed:

1. That he did not make any representations as to the value of the property.

2. That the property was worth all he obtained for it, and all that complainants contend he represented it was worth.

3. That the net earnings of the property were, in fact, #100 per month.

4. That the complainants were familiar with the value of the property, and had as their advisor and counselor one Barton M. Besley, their son-in-law, who was an experienced business manager and hotel keeper.

Complainants gave testimony tending to support the claim made by the bill, both as to the representations claimed to have been made by the defendant, and as to the actual value of the property. Defendant testified that he never made any representations as to the value of the property or the earning capacity of the hotel.

We think the testimony clearly shows that the defendant represented the value of the property to be from $6,000 to $8,000. It is said, however, that, even if such representations were made, they were not such representations as the complainants had a right to rely upon; that they saw the property, and had a son-in-law there, who was an hotel keeper; and that they were advised by him. The complainants testify that they did rely upon such representations, and were induced thereby to buy. Undoubtedly the general rule is that any purchaser must expect that the vendor will seek to enhance his wares, and must disregard the vendor’s statements as to value. But this case is one where the vendor had the opportunity to know the value much better than the vendees could. He had kept the hotel there. He knew its earning capacity. If it had earned $100 per month, aside from the bar, it was of greater value than it would have been if it had less earning capacity. The representations must be taken as a whole. It is, we think, shown that the defendant represented that it would earn $100 per month, and had earned that, aside from the bar, for the five months prior, during which time he had himself operated it. The complainants claim to have relied upon that statement. If that had been true, the property might «have been worth the amount paid. If it were not, true, it would doubtless be worth much less. At least, that had some bearing upon the question whether the complainants relied upon defendant’s representations as to value. The defendant knew that complainants were wholly ignorant of its earning capacity, — what it had earned, and what it might likely earn. Defendant knew what it had earned, and was in better position than complainants to judge what it was likely to earn in the future. Under these circumstances, the representations did not take the form of a mere expression of opinion. They were statements of facts, upon which complainants had the right to rely, and the rule of caveat emptor does not apply. Maxted v. Fowler, 94 Mich. 109, and cases there cited.

The learned circuit judge saw the witnesses, and had an opportunity to better judge of their candor and fairness; yet, from a reading of the whole record, we are compelled to disagree with him. The hotel was, as some of the witnesses describe it, “a rocky old shell.”' Many witnesses have given their estimate of value, and froth this testimony, given by witnesses on both sides, we are compelled to find that the property was of much less value than represented. If it had the earning capacity represented, we might not have reached that conclusion. The complainants, together with their daughter and her husband, took possession of the property, the son-in-law operating the bar. They operated the hotel one year. In the meantime they had discovered that it was not worth the price, and, as they claim, that the defendant, had not made the profits from it which he claimed. They went to defendant about it, and he promised them he would get rid of the property. This he tried from time to time to do, but, not succeeding, the complainants told him they proposed to rescind the sale. They moved out, and tendered him back the real and personal property, which he refused to take, though he took possession of it, and rented to other parties.

In the negotiations for the sale, the defendant was assisted by John M. Bryson, and upon the hearing it appeared that Bryson was paid by the defendant 3 per cent, of the selling price. The complainants were not informed that Bryson was acting for defendant in making the sale. They claim he pretended to be their , friend, and advised them that there was money in the property at $6,000; that they must purchase right away, as he knew another stood ready to take it if they did not; that defendant had made more than $100 a month clear profit out of it. The answer sets up that Besley was acting for complainants, and “spoke to one John M. Bryson, * * * and requested him to find out how and on what terms this defendant, would sell the hotel property mentioned in the bill of complaint. In pursuance of said conversation with said Besley, the said Bryson came to this defendant, and this defendant then and there stated to said Bryson that he would sell the property,” etc. From this answer it would appear that Bryson was acting for the complainants. At least, it is apparent that neither the defendant nor Bryson let the complainants know that Bryson was acting for the defendant, when in fact he was in defendant’s employ. The complainant Robert F. Miller was an old man, and was easily led to believe the representations made by Bryson and defendant that the hotel paid $100 per month.

But it is contended by the defendant that the hotel actually had an earning capacity of $100 per month, aside from the bar. We are unable to agree with this contention. There is considerable evidence in the record on this question. Lewis Fox, a witness for the complainants, testified that he was clerk for the defendant while he kept the hotel, and prior to that had been the clei’k there under Retan, when he kept it; that, although Retan had much more trade than the defendant, it did not pay its way, but he had to take money from the bar to keep the hotel running. , The defendant introduced his books in evidence, kept while he operated the hotel, in which were entered the receipts and expenditures; but these are not very satisfactory as explaining the whole expense account, when the testimony of the defendant is considered.

From the whole evidence, we are satisfied that the complainants’ contention is correct that the hotel was not paying $100 per month; nor was it worth the amount represented. It was not the “bonanza” that Bryson represented it to be. There was such misrepresentation in regard to the value and earning capacity that the complainants have the right to a rescission.

The decree below must be reversed, and a decree entered here in accordance with the prayer of the bill. The complainants will recover the costs of both courts.

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

Moore, J.

(dissenting). I cannot reach the same conclusion arrived at by the Chief Justice. The record shows that complainants had known the hotel property for years. Prior to its purchase, with their son-in-law, they made an examination of the property. After the papers were drawn, they were left with the scrivener for some days before delivery, and were not delivered until complainants had an abundant opportunity to learn further about the property, if they desired. I think the proofs disclose a case where the doctrine of caveat erupt or should apply.

The testimony is conflicting. The trial judge had the witnesses before him. His opportunity for deciding who of them were truthful, and who were not, was much better than ours. I think, with the trial judge, that the complainants have failed to establish the case stated in their bill of complaint.

The decree should be affirmed.

Grant, J., concurred with Moore, J.


text:
    BOSTWICK v. WAYNE CIRCUIT JUDGE.
    1. Justices of the Peace —Jurisdiction in Replevin — Local Acts.
    An action of replevin is not brought to recover “debt or damages and, therefore, Act No. 460, Local Acts 1895, § 9, conferring upon justices of the peace in the city of Detroit original jurisdiction in all civil actions wherein the debt or damages do not exceed 8100, and concurrent jurisdiction in all civil actions wherein the debt or damages do not exceed 8500, except in certain specified cases, not including actions of replevin, does not enlarge the replevin jurisdiction of Detroit justices, but leaves it to be governed by the general statute (3 How. Stat. § 6856), which fixes the limit at $100.
    3. Same — Appeal—Dismissal—Costs.
    Where defendant, in an action instituted before a, justice of the peace, does not raise a jurisdictional question until after appeal to the circuit court, he is not entitled to costs upon the dismissal on appeal.

      Mandamus by Noble Bostwick to compel William L. Carpenter, circuit judge of Wayne county, to dismiss an appeal.
    Submitted October 5, 1897.
    Writ granted December 21, 1897.

      Henry B. Graves, for relator.

      B. B. Wilkinson, for respondent.
   Grant, J.

The sole question involved is, Does Act No. 460 of the Local Acts of 1895 confer upon justices of the peace of the city of Detroit jurisdiction in replevin cases involving more than $100 ? Section 9 of the act is as follows:

“ Every justice of the peace elected in the said city of Detroit, and duly qualified according to law, shall have original jurisdiction of all civil actions wherein the debt- or damages do not exceed the sum of $100, and concurrent jurisdiction in all civil actions wherein the debt or damages do not exceed the sum of $500, except as provided in section 6815 of Howell’s Annotated Statutes of Michigan.”

An action of replevin is no't brought to recover debt or damages, but to recover specific property unlawfully de-' tained by the defendant. The language of the section above quoted is not applicable to an action of replevin. The act is silent as to this action, and the jurisdiction of the justices of the peace is therefore governed by the general statute. 2 How. Stat. § 6856. The affidavit alleged the property to be “ worth $1.50 and not to exceed $500.” It follows that the justice had no jurisdiction, and the circuit court should have dismissed the appeal taken by the plaintiff.

The defendant did not raise the question before the justice, and not until the case was appealed to the circuit court. He is therefore not entitled to costs. The writ of mandamus will issue, directing the court below to dismiss the appeal, but without costs.

The other Justices concurred.


author: Hooker, J.

text:
    BRISTOL v. SUTTON.
    1. Contracts — Time of Performance — Statute of Frauds.
    A verbal agreement by A. to pay a specified sum to B. if the latter will perform certain services for C., extending over a period of more than one year, is void under the statute of frauds.
    3. Same — Acceptance of Benefits — Implied Promise.
    In such case, the appropriation by O. of the benefits of the services, though rendered with the knowledge and approval of A., does not raise an implied promise on the part of A. to pay therefor.
    Error to Calhoun; Daboll, J., presiding.
    Submitted October 5, 1897.
    Decided December 21, 1897.
    Henry Bristol presented a claim against the estate of Smith H. Bristol, deceased, based upon a contract for services. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment there for claimant, Edward Sutton, the administrator of the estate, brings error.
    Reversed.

      T. E. Barkworth, for appellant.

      Edwin H. Lyon, for appellee.
   Hooker, J.

The plaintiff’s claim against the estate of his uncle was allowed in the circuit court upon the showing that he was emancipated when about 15 years of age, and that he then left home, and that a little later, at his uncle’s request,'he agreed with him that he would return, and remain with and assist his father upon the father’s farm until he should attain his majority, and that his uncle promised to pay him $1,000 if he should do so, and that the plaintiff carried out the agreement. It is admitted that this contract was within the statute of frauds, and it seems to be conceded that it would fall within the principle of Whipple v. Parker, 29 Mich. 369; Cadman v. Markle, 76 Mich. 448 (5 L. R. A. 707); Moore v. Horse-Nail Co., 76 Mich. 606; In re Williams' Estate, 106 Mich. 490; and the more recent case of Rhea v. Meyers' Estate, 111 Mich. 140,- — had the services been “for the defendant” instead of another. It is said that, if it is true that the claimant was.emancipated, he may have a cause of action against his father, who received the benefit of his services, but not against the uncle, who did not.

The evidence shows that the services were rendered at the request of the uncle, and, but for the statute of frauds, the contract would have been a valid one, notwithstanding the fact that the work was to be done upon the farm of another. The law would not inquire whether, or in what manner, such services were of benefit to the uncle, but would treat the services as rendered ‘ ‘ for the defendant, ” and compel him to pay for them, because he had promised to do so. But the promise was void, because not in writing, and, if a recovery is to be had, it must be upon a promise which is valid, either express or implied; and, as the only express promise is that mentioned, the case depends upon our ability to find an implied one to pay the value of the services rendered.

It appears that the claimant went to work at the request of his uncle. If it can also be found that his uncle appropriated the benefits of his labor, the law will authorize the inference of a promise to pay the value of the services. The only evidence upon the subject is, in substance, that the claimant went home, and worked for his father, and that the uncle knew the fact, and from time to time expressed his approval of his course and conduct. If this can be called an appropriation of the benefit of the services rendered, the recovery can be sustained, as this question was left to the jury.

In the case of Liddle v. Needham, 39 Mich. 147 (33 Am. Rep. 359), the plaintiff, Needham, promised to give to Liddle’s son a deed of certain land, and, in consideration of this promise, Liddle promised to give his note for $300. Needham gave the deed, but Liddle refused to give the note. Mr. Justice Graves, in his opinion, calls attention to the fact that the promise to give the note was based upon an executory promise to give the deed, and the contract was necessarily held void under the statute of frauds. • Upon the right to recover under the common counts the court said:

“Is the case in any better shape to justify recovery under the common counts? The court think not. If there is any chance for contending for an actionable right in favor of any party under them, it must be by implying an undertaking from a proved acceptance of Needham’s grant. The cáse leaves no basis for any other theory. The door is closed against the existence of any tenable express promise. And if we assume that no technical difficulties exist, and concede as true — what is strongly denied — that young Liddle actually accepted the deed as a conveyance, there being no pretense of acceptance through any other person,- and still the case must fail. The undertaking to be implied would have to be imputed to the recipient of the grant, young Liddle, and not to his father, who, as to this matter, is to be regarded' as a stranger. The unwritten bargain, being of no force to constitute a contract and create legal contract relations, cannot be resorted to as help in making out such a relation by implication. The only consequence of the attempt to imply a promise would, therefore, be to imply it as against a third person, and indirectly negative the making of any promise by the party charged.”

This discussion seems to describe the situation here quite accurately, and there is force in the statement that the executory promise to pay was made in consideration of the executory promise to work, and that the acceptance of the services, and the benefits derived from them, was by the father, and not the uncle, and therefore, as counsel contends, could not be of any aid in establishing contract relations by implication. The only fact in this case that can, by any possibility, distinguish it from Liddle v. Needham, is the knowledge and approval of the performance of the services. We think that such knowledge and approval do not justify an inference that the uncle received a benefit, and that the approval of the claimant’s conduct is not a subsequent act, which can be said to have created an obligation to pay where it would not otherwise exist. The case of Waldron v. Laird, 65 Mich. 237, recognized the correctness of Liddle v. Needham, but is shown to be distinguishable from it. We think this case is ruled by Liddle v. Needham.

The order of the circuit court is -reversed, and a new trial directed.

The other Justices concurred.


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    BROWER v. TATRO.
    1. Arrest — Jurors—Privilege—Civil Warrant.
    One in attendance upon court as a juror impaneled and drawn for the current term is privileged from arrest on a civil warrant issued out of justice’s court.
    3. Same — Waiver.
    The privilege, however, is a personal one, going, not to the validity of the process, but to that of the service, and it may therefore be waived.
    3. Justices of the Peace — Motion to Quash — Sufficiency of Showing.
    The statement of counsel on a motion to quash in justice’s court, that the defendant, who was arrested on a civil warrant, was a juror in attendance on the circuit court, is too informal to establish the fact of his privilege from arrest.
    4. Same — Continuance—Affidavit.
    But the filing of an affidavit sworn to on February 18th, showing that defendant was on that day engaged in the circuit court as a juror, 'that cases were assigned for each day from February 18th to and including the following week, and that, by reason of his duties as a juror, he could not go to trial on February 19th in the case against him, entitled him to a continuance, and it was error to proceed to judgment in his absence.

      Error to Berrien; Coolidge, J.
    Submitted October 6, 1897.
    Decided December 21, 1897.
    Trover by Jacob Brower against Louis N. Tatro. A judgment for plaintiff in justice’s court was reversed on certiorari, and plaintiff brings error.
    Affirmed.

      James O’Hara, for appellant.

      Gore & Harvey, for appellee.
   Hooker, J.

The return shows that the defendant was brought before a justice on a civil warrant on the 16th day of February. His attorney moved the court orally to quash and dismiss the proceedings for the reason that the defendant was privileged from arrest, .being a jui*or for the circuit court, which was then in session. The counsel for plaintiff made the.point that this was not shown by affidavit, and also claimed that there was no privilege granted to jurors. The court denied the motion. The record contains no evidence that any showing was made that the defendant was such juror at the time, unless the statement of counsel is to be considered sufficient. Thereupon the defendant pleaded the general issue, and moved an adjournment to March 20th. The court adjourned the cause until February 19th. It does not appear that any showing was made. The defendant was left in the hands of the officer who made the arrest. Oh the 19th his counsel appeared and moved for an adjournment, upon the ground stated in an affidavit then filed, sworn to on the 18th of February, that he was at that time —i. e., the 18th day of February — engaged in the circuit court as a juror, having been impaneled and drawn for the then current term; that cases were assigned for each day from February 18th to and including the following week; that to compel him to go to trial during said term would be a contempt of the circuit court; and, further, that by reason of his duties as a juror he could not go to trial in said cause. The motion was denied. Defendant’s counsel abandoned the case, and the plaintiff took judg-. ment. The case was reversed in the circuit court upon certiorari, and is brought here by writ of error.

We have no means of knowing the ground upon which the learned circuit judge reversed said cause. Among the errors assigned are that the justice erred in overruling defendant’s motion to dismiss the proceedings and discharge the defendant, and that he erred in overruling the motion for continuance. Whether a discharge from arrest would have been equivalent to a dismissal of proceedings, we need not inquire, as he was not discharged. The questions before us are whether the proceedings should have been dismissed or continued.

The warrant was not void, because it was based upon a sufficient affidavit; but, if the defendant was a juror at the time of his arrest, such arrest was a breach of his privilege, and he had a right to be discharged from arrest by any proceeding legally adapted to the purpose. Until he took the necessary steps to bring before the justice the fact that his arrest was a breach of his privilege, there would be nothing to show that there was a defect of jurisdiction. The want of jurisdiction does not appear upon the face of the proceeding, but depends upon extrinsic facts, and, under the ordinary rule, must be pleaded, unless the proceedings are quashed upon motion, or in obedience to a mandamus. The jurisdictional question would not go to the validity of the process (see Van Wezel v. Van Wezel, 1 Edw. Ch. 113), but to that of the service; and, whether the question should be raised on motion to quash or plea to the jurisdiction, the claim of privilege would be open to dispute, and the judgment would be final unless reversed. Had the justice quashed these proceedings and dismissed the case on the statement of counsel, without other evidence that the defendant was a juror, the case would have been reversed upon certiorari at the instance of the plaintiff.

Exemption from arrest is a personal privilege, and may be set up in abatement of an action, or may be waived; and it has been held that the waiver is complete when the party or witness fails to claim at once, and does some act in the cause in reference to his appearance or defense. Petrie v. Fitzgerald, 1 Daly, 401; Humphrey v. Cumming, 5 Wend. 90; Smith v. Jones, 76 Me. 138 (49 Am. Rep. 598). In Green v. Bonaffon, 2 Miles, 219, it was held that privilege must be set up within a reasonable time after arrest, or it will be waived. Chase v. Fish, 16 Me. 132; Woods v. Davis, 34 N. H. 328. In Tipton v. Harris, Peck (Tenn.), 414, giving prison bonds was held to be a waiver. In Randall v. Crandall, 6 Hill, 342, a plea in bar is said to be a waiver of privilege. In a note to be found in Cooley, Const. Lim. 161, it is said that it is not a trespass to arrest a person privileged from arrest, even though the officer be aware of the factj that the arrest is only voidable; and, in general, the party will waive the privilege unless he applies for discharge by motion or on habeas corpus. See cases cited. The case of People v. Judge of Superior Court, 40 Mich. 729, holds that the arrest is not void, but voidable, and that privilege from arrest is primarily for the benefit of the person privileged. These authorities are cited, not to sustain the proposition that the defendant waived his privilege, — a question that need not be discussed, — but as showing that the proceedings before the justice are not void, but voidable, and that, the defendant not having established the fact of his privilege upon his motion to quash, the proceedings should not have been quashed.

We are of the opinion, however, that the obligation to attend the session of the circuit court as juror was a good ground for adjournment. It is true that the statute does not mention this as a ground for adjournment, but duties imposed by law made it impossible for the defendant to be present before the justice without a breach of such duties. Under such circumstances he should not be compelled to permit his case to be tried in his absence, and without the benefit of his presence. We think the justice should have granted the adjournment. The justice returns that the statute (2 How. Stat. § 6837) required him to try the case within three days; but a reference to the section shows that this requirement yields to an adjournment.

The judgment of the circuit court is affirmed.

The other Justices concurred.


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    NATIONAL BANK OF STURGIS v. LEVANSELER.
    1. Banks — Sale of Real Estate — Bond of Indemnity — Authority of President.
    The directors of a hank, in the presence of one who had agreed to purchase property owned by the bank, authorized the president to execute to such purchaser a bond of indemnity against any legal claim or lien which a specified company might have upon the property. The bond given by the president was conditioned upon the bank’s obtaining from the company a good and sufficient written lease. The lease procured was not satisfactory to the purchaser, and he declined to accept it, and refused to pay the amount due on a purchase-money mortgage until the condition of the bond should be satisfied. Held, on foreclosure of the mortgage, that the giving of the bond conditioned for the procuring of a lease was unauthorized, and did not bind the bank.
    3. Same — Mortgage Foreclosure — Failure of Title — Evidence of. Damages.
    In such case, the mortgagor was not entitled to have any damages for alleged failure of title offset against the amount due upon the mortgage, where it did not appear from his showing that the company had made any claim of title, or in any way disturbed him, so as to require indemnity under the terms of a bond such as the president of the bank was authorized to give.

      3. Vendor and Purchaser — Rescission—Laches.
    A vendee of land cannot rescind the contract of purchase where he has occupied the premises, and defended the foreclosure of a purchase-money mortgage, without making any offer to put the vendor in statu quo.

    4. Mortgages — Manufacturing Plant — After-acquired Machinery.
    A mortgage upon a manufacturing plant will, in the absence of evidence of a contrary intent, be held to cover machinery subsequently purchased to replace such as was old and out of repair, or which is adapted to the purposes of the business.
    Appeal from St. Joseph; Yaple, J.
    Submitted October 8, 1897.
    Decided December 21, 1897.
    Bill by the National Bank of Sturgis against Frank E. Levanseler and Helen B. Levanseler to foreclose a purchase-money mortgage. Defendants filed an answer in the nature of a cross-bill, asking a rescission of the contract of purchase, or, in lieu thereof, a specific performance of the same by complainant. From a decree for complainant, defendants appeal.
    Affirmed.

      Charles A. Sturges and Howard, Roos & Howard, for complainant.

      Osborn, Mills & Master, for defendants.
   Hooker, J.

Complainant, being the owner of a furniture manufactory in the village of Sturgis, negotiated a sale thereof to Frank E. Levanseler, one of the defendants. During the negotiation he professed to believe that the building did not stand wholly upon lots 6 and 7 of block 10, but extended 10 feet over and upon other lands adjoining, known in this record as the right of way of the Grand Rapids & Indiana Railroad, and from the record we should perhaps find such to be the fact. An agreement was reached, and at a meeting of the complainant’s board of directors, at which Frank E. Levanseler was present, the following resolution was adopted:

“Resolved, that the contract made by the officers of the bank with Frank E. Levanseler for the sale to him of lots 6 and 7, block 10, known as the ‘White Brick Factory,’ for the sum of $3,500, — $1,500 to be paid down in cash, and $2,000 in one and two years, with interest, secured by mortgage on the property, — is hereby ratified and approved ; and the officers are hereby authorized to execute the necessary deed therefor; also, to execute a bond to Mr. Levanseler to indemnify him against any legal claim or lien the G. R. & I. R. R. Co.- may have on the property. Adopted, and on motion adjourned.
[Signed] “L. E. White, President.” -

When the 'writings were drawn, the president of the bank executed a different bond than that described in the resolution. The following is a copy:

“Know all men by these presents, that the National Bank of Sturgis, a corporation created, existing, and doing business by virtue of the laws of the United States of America, having its place of business at Sturgis, St. Joseph county, State of Michigan, is held and firmly bound unto Frank E. Levanseler, of Sturgis, St. Joseph county, State of Michigan, in the sum of-dollars, lawful money of the United States of America, to be paid to the said Frank E. Levanseler, or his certain attorney, or his heirs, executors, administrators, or assigns, to which payment well and truly to be made the National Bank of Sturgis, its successors and assigns, are bound firmly by these presents.
“Sealed with the seal of the National Bank of Sturgis, and dated this 5th day of October, A. D. 1892.
“The condition of this obligation is such that if the above-bounden corporation, the National Bank of Sturgis, its successors or assigns, or any of them, shall, within a reasonable time after the execution of these presents, procure for the said Frank E. Levanseler from the Grand Rapids & Indiana Railroad Company a good and sufficient lease in writing of any and all the lands belonging to said railroad company, and now occupied by the factory building or buildings on this date conveyed or sought to be conveyed by said National Bank of Sturgis to said Frank E. Levanseler, which said lease shall confer upon said Frank E. Levanseler, his heirs, executors, administrators, and assigns, full right and privilege to peacefully occupy and possess said lands and the building or buildings situated thereon, and to remodel, improve, and repair the same so long as said Frank E. Levanseler, his heirs executors, administrators, and assigns, shall occupy the same, and to totally remove the said building or buildings from the said lands, with the understanding that such removal shall terminate said lease, then, upon the performance of the above conditions, this bond and the above obligation shall cease, and shall be npll and void, otherwise, it shall remain in full force and effect.
“In witness whereof, the said National Bank of Sturgis, by order of the board of directors of said bank, hath caused the corporate seal to be affixed and these presents to be subscribed by their president.
“The National Bank of Sturgis,
“By Levant E. White, President.
“Signed, sealed, and delivered in the presence of
“Burritt Hamilton,
“Justin J. Wait.”

It will be observed that the bond is without definite penalty, no sum having been inserted in the blank. The property — i. e., lots G and 7 — was conveyed to Levanseler, and the purchase-money mortgage in suit was executed and delivered to the complainant, who put the purchaser in possession of the entire factory, that portion situated upon the railroad land included. He made repairs upon-the premises, and placed some new machinery therein, a portion of which was placed in the part of the factory situated upon the railroad land. At his request, the complainant secured a lease from the railroad company of the strip mentioned; but it was not satisfactory to the defendants, as its duration seems to have depended upon the shipment of the product of the factory over the Grand Rapids & Indiana line, and it was not accepted. Default was made in the payment of the mortgage, and this proceeding was commenced to foreclose the mortgage, and a decree was rendered in favor of the complainant, from which the defendants have appealed.

The defendants maintain that the complainant has not performed its contract; i. e., procured a-lease from the railroad company of the parcel outside of the two lots conveyed and mortgaged. It seems beyond dispute that the agreement contemplated the conveyance of the factory and machinery as a whole, with a bond of indemnity against any legal claim or lien of the Grand Rapids & Indiana Railroad Company. Why the president of the bank offered, and the defendant Frank E. Levanseler was willing to accept, a bond providing for the procurement of a lease, does not appear. Upon this record we must find that the president had no authority to execute and deliver a bond conditioned to procure a lease, and this the defendants knew. He had authority to give a bond of indemnity against the assertion of legal title or lien by the railroad company, but the defendants do not seem to have cared for this. The alleged tender was conditioned upon the procurement of a lease, not on the execution of a proper bond of indemnity in accordance with the resolution. The tender was not, therefore, a discharge of the mortgage, and the defendants are not entitled to specific performance, for the reason that they are not entitled to the lease they claim. As to rescission of the contract, they have never taken the necessary steps to rescind. They have not acted promptly, nor have they proposed to put the bank in statu quo. On the contrary, they have occupied the premises, defaulted in payment, and defended the foreclosure case. They bought the premises agreeing to take a bond to indemnify them against a legal claim of title. So far they have not been disturbed, nor is there evidence that the railroad claims title, except the negative evidence arising from the execution of a lease upon request, and the refusal to execute a different one. It is not shown that they have suffered any damages through a claim of title, and, had the bond been given in accordance with the resolution, it is not clear that a right of action would exist upon it. Under such circumstances we would not feel justified in reducing the amount due upon the mortgage, by an offset by way of damages, if it would otherwise be proper in this proceeding, which we do not detérmine. •

We are of the opinion that there is no equity in the defendants’ claim that the whole or any part of the new machinery should not be subject to the mortgage. Much of it appears to have gone in as repairs, to replace old, and the remainder was adapted to the purpose of the factory. We may reasonably suppose that both parties intended that the machinery would be considered a part of the plant, and be covered by any mortgage upon the premises. Smith v. Blake, 96 Mich. 542.

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

The other Justices concurred.


author: Per Curiam.

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    UHL v. FAAS.
    Appeal — Review.
    A decree dismissing a foreclosure bill, on the ground that defendants had established their claim of payment, was affirmed upon a review of the evidence.
    Appeal from Monroe; Kinne, J.
    Submitted October 13, 1897.
    Decided December 21, 1897.
    Bill by Fredrika Uhl, executrix of the last will and testament of John Uhl, deceased, against Margaret Faas and Christian Faas, to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Willis Baldwin (William Look, of counsel), for complainant.

      Landon & Lockwood, for defendants.
   Per Curiam.

This is a proceeding to foreclose a mortgage of $150, and turns upon a question of payment. It is purely a question of fact, and we are of the opinion that the evidence of the defendants overbalances that of the complainant. A discussion of the evidence is unnecessary.

The decree is affirmed, with costs.