text:
    HAINES v. GIBSON.
    1. Principal and Surety — Logging Contract.
    One who becomes surety for the performance by a logging contractor of an agreement to cut and haul the marketable timber from specified lands, the owner, under the terms of the con-, tract, having “the right to dictate from time to time what timber is marketable,” cannot claim his release on the ground that the owner prevented the contractor from cutting and hauling all the marketable timber.

      2. Same —Construction — Material Alteration — Release oe Surety.
    ■The contract provided that “all logs shall be put into Pine lake * * * on or before the 1st day of April, 1896, and shall be driven to the owner’s boom in Lake Superior at the n^outh of Pine river.” With the owner’s consent, the logs were hauled to Ives lake, situated about a quarter of a mile . above Pine lake, and connected with it by a stream. Held, that, the contract specifying no route for conveying the logs to Pine lake, and there being no evidence that the route through Ives lake and the connecting stream was not feasible, the arrangement for hauling the logs to Ives lake was not a material alteration of the contract.
    8. Same — Contractor’s Agreement with Surety — When Binding on Obligee.
    The fact that the contractor failed to keep an agreement made with the sureties on his bond in the absence of the obligee, and without the latter’s consent or knowledge, that he would adopt a specified route for hauling the logs, would have no bearing upon the right of the obligee to enforce the bond as against the sureties upon the contractor’s default.
    4. Judicial Notice — Condition op Weather.
    The court cannot take judicial notice that the weather on the 1st of April in portions of the Northern Peninsula is always such that the lakes and streams are not open for the floating of logs.

      Error to Marquette; Stone, J.
    Submitted October 7, 1897.
    Decided December 7, 1897.

      Assumpsit by Frank E. Haines and Charles T. Fair-bairn against Thomas H. Gibson and James H. Gamble, principals, and Carl Peterson, Louis Calus, and Barnet Levine,' sureties, upon a bond for the performance of a lumbering contract. From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Affirmed.
    Plaintiffs and the defendants Gibson and Gamble entered into a written contract, by which the defendants agreed to cut and haul the marketable pine timber from fcertain lands. The material parts of the contract are as follows:
    “To cut, haul,, and deliver to the first parties in a boom or booms in Lake Superior at the mouth of Pine river, at the time and in the manner hereinafter provided, all the merchantable white pine timber on the following described lands. * * * It is also understood that timber unfit for market shall not be paid for by first parties, and said first parties shall have the right to dictate from time to time what timber is marketable, and what timber shall be left on the land; and the work of second parties shall at all times be under the supervision of the first parties; but any failure of the first parties from time to time to give directions as to matters within their control shall not relieve the second parties from the consequences of any violation of the terms hereof. All said logs shall be put into Pine lake near, the premises aforesaid on or before the 1st day of April, 1896, and shall be driven by second parties to the boom or booms in Lake Superior at the mouth of Pine river as soon thereafter as first parties shall be ready with booms and tugs to take care of the same. * * * The boom or booms to receive said logs in the lake shall be prepared by and under the direction of the first parties, and shall be in readiness to receive the logs as soon after the 1st day of April, 1896, as may be found reasonably convenient by the first parties. * * * All timber of the kind to be removed under this contract, burned or down, must be cut and skidded by second parties first, before cutting and skid'ding standing or unburned timber. * * * All'logs shall be scaled by a competent scaler to be provided by the first parties. * * * The scale of logs made by such scaler from time to time shall be final and conclusive between the parties, unless modified by the scale on the sale of logs; but final settlement between the parties shall be made upon a scale of the logs fixed and received therefor by the first parties on the sale thereof.”
    Plaintiffs were to furnish Gibson & Gamble supplies and advance money for the performance of the contract. They required a bond of guaranty, which Gibson & Gamble signed as principals, and the other defendants as sureties. The sureties became responsible for the faithful performance of the contract by Gibson & Gamble, and to—
    ‘ ‘ Save the said Haines & Fairbairn safe and harmless from any and all loss or damage which may be occasioned to them by reason of any violation or nonfulfillment of the terms of said contract by the said Gibson & Gamble to be performed; and [they] shall pay and reimburse said Haines & Fairbairn for any and all such loss or damage as may be occasioned to them by the neglect or default of said Gibson & Gamble, or by any such violation or non-fulfillment of the terms of said contract.”
    There was no dispute over the amount which plaintiffs had paid Gibson & Gamble over and above the contract price, and the court, at the conclusion of the testimony, directed a verdict for the plaintiffs.

      Clark & Pearl, for appellants.

      Hayden & Young, for appellees.
   Grant, J.

(after stating the facts). The defenses are:

(1) That plaintiffs prevented Gibson &. Gamble from cutting and hauling all the marketable timber.

(2) That the logs were banked upon the shore of Ives lake, instead of being put into Pine lake, as provided by the contract.

Counsel on both sides concede the law to be that sureties may stand upon the strict terms and letter of the contract, and that any material alteration discharges the sureties. This is elementary law. Defendants, upon the trial, when permitted to amend their notice under the plea, expressly disclaimed any fraud. The errors claimed must therefore be discussed upon the basis that all the parties acted in entire good faith.

1. Defendants sought to show that all the marketable pine timber was not cut from the lands, and that Gibson & Gamble were prevented from so doing by the action of the plaintiffs. The complete answer to this claim is that plaintiffs, under the contract, exercised their judgment in determining what was marketable. If, therefore, this was a “jug-handled” or “one-sided” contract, as defendants’ counsel call it, all the parties entered into it with complete knowledge of its terms, and cannot now be heard to complain. It follows that the court properly excluded all the testimony tending to show that all the marketable timber was not cut.

2. Ives lake is about a quarter of a mile above Pine lake, a stream connecting the two. Prom Pine lake a stream runs into Lake Superior. The upper end of Mountain lake is very near the lands from which the timber was cut, and is also connected with Pine lake by-a stream of about the same length as the one running from Ives lake into Pine lake. Counsel for the defendants assume that the expression “put into Pine lake” is synonymous with the term “to bank upon Pine lake.” Counsel also appear to assume that it is common knowledge that the lakes and streams in that country are usually frozen over ther 1st of April, and to argue from this that the proper interpretation to be given to the contract is that the logs were to be hauled to and banked upon the shore of Pine lake. The haul to Ives lake is considerably shorter than the one over Mountain lake to Pine lake. The contract prescribed no route for hauling, and manifestly any feasible route was left open for adoption. If the sureties desired to have a route fixed, they should have had it inserted in the contract. Counsel for defendants offered to show that Gibson & Gamble informed their sureties that the haul would be over Mountain lake; but plaintiffs were not present, and no offer was made to show that plaintiffs knew of or assented to this representation. The contract fairly assumes a possibility that the water might be open, so as to move the logs, by the 1st of April. We cannot take judicial notice that the condition of the weather in that part of the State is always such that the water is never open by that time, and from that to interpret this contract as meaning that the logs were to be hauled to and put upon the ice on Pine lake. We think the court committed no error in rejecting testimony tending to show that the logs were hauled to Ives lake by the assent of the plaintiffs. Their assent would not have relieved the sureties from liability.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    HOLMES v. FORDNEY.
    Evidence — Error in Admission — How Cured — Agent’s Commissions.
    Error in permitting the plaintiff to testify, in a suit to recover a specified commission under a contract for the sale of timber, wherein defendant admits that the sum specified, if anything, is due, as to the customary commission for procuring sales of timber, is cured by the court’s excluding further testimony of like character, and directing the jury that the plaintiff, if his version of the contract is found to he true, can recover no more than the amount agreed upon.
    Error to Marquette; Stone, J.
    Submitted October 7, 1897.
    Decided December 7, 1897.

      Assumpsit by David H. Holmes against Joseph W. Fordney to recover a commission on the sale of certain timber. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      E. J. Mapes and Weadock & Purcell, for appellant.

      Clark & Pearl, for appellee.
   Long, C. J.

The first count of the declaration states the claim of the plaintiff as one for reasonable compensation for his services as explorer, estimator, and timber commission dealer in making a sale' for defendant of about 8,795,000 feet of pine, at $4 a thousand feet, board measure, claiming that the selling price was about $40,000. The declaration also contained the common counts. The plaintiff’s proofs did not warrant a recovery on the first count; and on the trial the claim was made that, under the common counts, the plaintiff should recover $1,000 for his services in making a sale of the timber. The plea was the general issue. The plaintiff had verdict and judgment for the amount claimed.

The first assignment of error is based upon the ruling of the court in permitting the plaintiff to answer the question:

“Do you know what the custom is, and the ordinary price of commissions as fixed by custom under such circumstances, where sales are negotiated and made ? ”

The plaintiff had already testified to a conversation had with defendant in reference to a sale of the timber; that he met the defendant at Marquette, who asked him if he had a man to buy this timber, and that he told him he thought he had; that defendant then asked him who it was, when he stated to him:

“I asked him, before I would tell him who it was, what there was in it for me. * * *
“Q. He asked you if you couldn’t find a purchaser, and you told him you thought you could ?
“A. Yes, sir.
‘ ‘ Q. And he asked you who it was, and you told him you would not tell until you found out how much there was in it for you ?
“A. Yes, sir.
‘ ‘ Q. What did Mr. Fordney say to that inquiry on your part ?
A. He asked me how much I wanted. I told him I wanted a thousand dollars if my parties bought the timber.
The party you had that would buy it you referred to?
“A. Yes, sir; he said he would if they bought the timber.
‘ ‘ Q. He said he would pay you that if those parties you referred to bought the timber ?
“A. Yes, sir.”

Plaintiff had already testified that he had before that had some correspondence with Col. A. T. Bliss, of Saginaw, and the defendant, about the timber on these lands, and that the defendant had written him he would come up to Marquette and see him. Plaintiff testified that, after the above conversation, he told defendant that the parties to whom he thought he could make the sale were McCall & McBurney; that .he had been over this timber several times, and examined it, and knew its character and quality, and had already had a talk with George Mc-Burney, who was in the employ of McCall & McBurney, and that' McBurney thought they would buy it at a reasonable figure, and wanted plaintiff to get an option on it; that, before defendant left Marquette, he introduced him to George McBurney, and told him he was the man with whom he had talked about the sale; that, after defendant left, plaintiff had further talk with McBurney, and was called into the office of the firm, and talked with by McBurney, of that firm, about the timber; that McCall & McBurney, some two or three weeks after this, caused an examination to be made of the timber, and, in the May following, bought this and a quantity of other timber from defendant, for $40,500. After this testimony was given, the question was asked, and answered under objection, of which complaint is now made, and upon which error is assigned.

We think the testimony wholly irrelevant and incom-. petent; but we are of the opinion that no error was committed which was prejudicial to the rights of the defendant, when we consider the ruling of the court further on in the case, and the charge to the jury. Other witnesses were called by plaintiff, and asked about these commissions, and were permitted to answer. The defendant was called in his own behalf, and testified that the contract made with the plaintiff was for $1,000 as commission, on condition that he sold the timber for $35,000 within 30 days, and that he had no other or different contract with plaintiff; that the plaintiff never made the sale; and he claimed, therefore, that he was under no legal obligation to pay the commissions. Defendant was then asked whether there was any custom regulating the commissions of a broker, — whether there was any established usage,— when the court said:

“I do not believe we ought to go into this question any further. The plaintiff cannot claim to recover to exceed a thousand dollars. He says that was the bargain, and the defendant says, if a bargain was made, it was on the basis of a thousand dollars; so let us not spend more time about this.”

The court subsequently charged the jury substantially that, if they found the contract as claimed by plaintiff, and that no time for sale was fixed, and no amount stated for which the timber was to be sold, the plaintiff was entitled to recover the amount agreed upon as commissions. The court also submitted two special questions to the jury at the request of counsel for defendant:

(1) “Did Fordney agree to pay Holmes $1,000 upon the condition that he should procure a purchaser for the, pine within 30 days, at $35,000?” Ansioer: “No.”
(2) “Did Holmes induce or procure McCall & McBurney to make the purchase ?” Ansioer: “Yes.”

It is not clear how it can now be claimed that the questions in reference to commissions had any influence upon the jury in arriving at their verdict. They were expressly told that, if plaintiff’s version of the contract was found to be true, he could recover no more than the $1,000, and this upon the contract which he claimed was made for that amount.

But counsel contend that the chief error was in permitting the case to go to the jury at all, for the reason that, under the plaintiff’s testimony, he was not entitled to recover upon the contract under which he now claims. It would be of no interest to the parties or others to set out here the testimony which, we think, had a tendency to show that the plaintiff’s theory was sustained. The learned circuit judge thought there was sufficient evidence to go to the jury tending to show the plaintiff’s case. We have examined the record with care, and find that it would have been error' for the court below to have taken it from the jury.-

This covers all the assignments of error.

The judgment must be affirmed.

The other Justices concurred.


text:
    LIVINGSTON v. BRADFORD.
    1. Slander — Charge of Theft — Qualified Privilege.
    Where the cashier of a bank, who suspected that a minor em- ' ployed as janitor and underclerk was in the habit of taking small sums of money from the bank, and that this occasioned the shortage in the bank accounts which occurred from day to day, accused the boy of the theft in the presence of the bookkeeper, who was the only other person who had access to the funds, and who, as well as the cashier, was interested in their safe-keeping, and later in the same' day informed the boy’s father, in a private conversation, that his son had taken the money, the communications were the subject of a qualified privilege, and not actionable in the absence of proof of express malice.
    2. Same — Express Malice — Evidence.
    The mere fact that the cashier, for the purpose of determining whether the suspected employe was responsible for the shortages, placed marked coins where the latter might take them if he- were so disposed, was not sufficient to establish express malice.
    Error to Berrien; Coolidge, J.
    Submitted October 7, 1897.
    Decided December 7, 1897.
    Case by William G. Livingston, an infant, by his next friend, against Walter T. Bradford, for slander. From a judgment for plaintiff, defendant brings error.
    Reversed.

      N. A. Hamilton, for appellant.

      James O'Hara (Hardin W. Davis, of counsel), for appellee.
   Long, C. J.

This is an action for slander, brought by the plaintiff, a young man 18 years of age, against the defendant, who is cashier of the Commercial State Bank at St. Joseph. The bank has been in existence about five years. The plaintiff went into the employ of the bank, having'been selected and engaged by the defendant April 30, 1896, at four dollars per week; and was discharged by the defendant January 30, 1897. Thomas Clark was bookkeeper. No others but plaintiff, Mr. Clark, and defendant had access to the working room of the bank. Plaintiff acted as janitor and underclerk, and sometimes helped to count the cash, especially the silver. The bank had the usual counter, so that an outsider could not reach in and take the money. Previous to January 30th, there had been an unusual run of shortages. Between December 22d and January 20th they amounted, in various small sums, to $31.74. On Tuesday previous to January 30th, defendant placed a 50-cent piece under some papers where the plaintiff worked, which disappeared. A 25-cent piece had -been placed much in the same way, and had disappeared. A silver dollar had before that also disappeared from the side of the tray where the silver was kept. On January 30th, after the close of business, the defendant, in the presence of Mr. Clark, the bookkeeper, charged the plaintiff with having taken these pieces of money. It appears that, on the afternoon this conversation was had with the plaintiff, the defendant telephoned the plaintiff’s father, but was unable to find him; but later in the evening plaintiff’s father found the defendant, who told him about the missing money, and that he thought the plaintiff took it. As set out in the declaration, the defendant stated to the father:

“Will [meaning plaintiff] has been- tempted, and has taken some money. A dollar was there (indicating). A marked half dollar was placed under a paper, for the purpose of catching him. I placed a quarter in a paper down by the waste basket, and that was never found. Will has taken this money.”

No one was present during this lastrónversation except defendant and plaintiff’s father, and during the first conversation no one was present but the parties and Mr. Clark. These are the conversations declared upon.

It also appeared on the trial that the defendant kept a book in which he entered, from day to day the amount of shortages and longages (as it is called) of the bank. These items were entered by the defendant on the day the cash was found to be long or short; and the record shows that from July 22, 1896, to January 20, 1897, the bank was $55.87 short, of which only $6.67 was found. During that time the bank had some $19 of longages, which could not be accounted for. These shortages occurred frequently before the plaintiff entered the bank. The defendant, however, testified that he did not intend to charge the plaintiff with these entire shortages while he was there.

Plaintiff introduced evidence tending to show that the defendant made the charges stated in the declaration. Defendant admitted making such statements to the plaintiff, in the presence of Mr. Clark, and to the plaintiff’s father.

At the close of the testimony, the defendant’s counsel asked the court to charge the jury:

“2. Unless the jury find that the plaintiff did not take either the twenty-five or fifty cent or one dollar pieces, they should find for the defendant.
“3. If Mr. Bradford had reasonable-ground to believe that the plaintiff took either of the three coins mentioned, they should find for the defendant.”
“6. Before the jury can return a verdict for tiie plaintiff, they must find — First, that the plaintiff did not take either of the coins; and, second, that the defendant was impelled by actual ill-will and hatred to say what he did of the plaintiff.”
“8. Under the general issue as pleaded, the defendant may show that the boy did take the coins.
“9. Under the pleadings and evidence, the jury must find for the defendant, unless they find as an affirmative fact that, the plaintiff did not take the coins in question.”
“11. The commftnications alleged to have been, made by Mr. Bradford are shown by the evidence to be what are known as ‘privileged Communications,’ — communications which the defendant had a right to make if true; and, unless you find that the defendant and Mr. Clark have testified falsely about the coins, your verdict should be for the defendant.”

The court refused to give these requests. In the general charge the court gave the definition of slander as “the oral defamation of another without legal excuse, ” and told the jury substantially that if the defendant charged the plaintiff with theft in the presence of Mr. Clark, and also In the presence of plaintiff’s father, in good faith, believing the plaintiff guilty, or without malice and for justifiable ends, the statements would be privileged, and the plaintiff could not recover. The court failed'to charge what the defendant requested by these written requests, and made no reference to the taking of the coins by the plaintiff. The charge was fair to the defendant so far as it went, but complaint is made upon the refusal to charge as requested.

The suit was commenced on Monday following the Saturday upon which these charges were made. The plea was the general issue. Plaintiff had verdict and judgment for $125. All the material testimony taken upon the trial is returned here.

It is claimed by counsel for defendant that the communications made to the father and to Mr. Clark, upon which this action is founded, were privileged. Such communications, however, cannot be classed as absolute privilege, within the definition of that term laid down by this court in Bacon v. Railroad Co., 66 Mich. 166, but rather as qualified privilege, as there defined. The defendant communicated the facts to Mr. Clark, and stated the matter to the plaintiff in the presence of Mr. Clark. No one else was present. Mr. Clark was the bookkeeper of the bank. He had a right to know what the claim made by the defendant was, as he, too, was interested in the safe-keeping of the funds of the bank. The communication was also made to the father by the defendant. No other person was present. As was said in Bacon v. Railroad Co., supra: “The question whether the occasion is such as to rebut the inference of malice if the communication be bona fide is one of law for the court; but whether bona fides exist is one of fact for the jury,”— citing many cases in support of the proposition, and, among them, 1 Am. Lead. Cas. (5th Ed.) 193, where the rule is well stated. The communications to the father and Mr. Clark were privileged; that is, they were made on such occasions and to such persons as rebut the prima facie inference of malice arising from the communication of matter prejudicial to the character of the plaintiff, and throw upon him the onus of proving malice in fact. ■ All the requests of the defendant above quoted should therefore have been given. They were not covered by the general charge.

But counsel for plaintiff contend that the placing of the coins there was an effort on the part of the defendant to entrap the plaintiff, and induce him to commit an offense, and that there was no justification or excuse for such conduct. No motive was shown for placing the coins there, except that testified to by the defendant. He was cashier of the bank, had hired the plaintiff, and could discharge him at any moment. It is evident, therefore, that the coins were not placed for the plaintiff to take, and thus find an excuse for his discharge. The plaintiff was 18 years of age, and apparently a young man of intelligence. He was handling the money of the bank every day, and must have known that whatever money was found behind the bank counter was the money of the bank. If he took the coin placed there by the defendant, he did so with full knowledge that it was a dishonest act. He must have known that he had no more right to it than to any of the moneys he was in the habit daily of counting. • On cross-examination he testified that on several occasions he had shaken dice for cigars, and upon one occasion had played a game of poker for money, and from his testimony it appears that he was familiar with the rules of the game. It does not appear that he spent very much money in gaming, but his wages were only four dollars per week. His conduct at least shows that he had intelligence enough to know what was right in the discharge of his duties at the bank. The defendant was the cashier of the bank. The duty rested upon him to see that the affairs of that corporation were fairly and honestly conducted. It was not unlawful, or even improper, if he suspected the plaintiff of peculation, to place these coins where he might know whether the plaintiff was in fact honest in the discharge of his duties there. Small losses, of from 25 cents to $1.50, were occurring daily. They could not be accounted for. He claims to have suspected the plaintiff, and placed these coins where, if taken, their loss would be at once discovered. It is evident some one took them. If the plaintiff took them, or the defendant had good reason to believe he took them, the plaintiff had no right to recover.

Counsel for defendant asked the court to charge the jury that they must find for the defendant. Under the record as it is returned here, we think that charge should have been given. The only question which could arise in the case is the bona fides of the defendant in making the statements to the plaintiff in the presence of Mr. Clark, and the communication to plaintiff’s father. As we have seen, these communications were privileged; that is, the circumstances under which they were made rebut the presumption of malice, and throw upon the plaintiff the onus of proving malice in fact. In Jackson v. Hopperton, 16 C. B. (N. S.) 829, cited with approval in Bacon v. Railroad Co., supra, Mr. Justice Erie said:

“A plaintiff does not sustain the burden of proof which is cast upon him by merely giving evidence which is equally consistent with either view of the matter in issue. Where the presumption of malice is neutralized by the circumstances attending the utterance of the slander or the publication of the libel, the plaintiff must give further evidence of actual or express malice in order to maintain his action.”

There is no evidence in this case showing or tending to show malice on the part of the defendant towards the plaintiff, unless' the placing of the coins may be so considered ; but the circumstances surrounding that transaction rebut any such presumption. In Toogood v. Spy- ring, 1 Cromp., M. & R. 193, cited in Bacon v. Railroad Co., Baron Parke remarked:

“If such communications are fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits.”

We fail to find anything in the words spoken, the occasions upon which the communications wei’e made to plaintiff and Mr. Clark and to plaintiff’s father, or the circumstances surrounding the case, from which the jury would be justified in finding that the defendant was actuated by malice towards the plaintiff.

The judgment must be reversed, and a new trial awarded.

The other Justices concurred.


author: Grant, J.

text:
    NEVERSORRY v. DULUTH, SOUTH SHORE & ATLANTIC RAILWAY CO.
    1. Railroad Companies — Right op Way — Fences.
    At the common law, railroad companies were not required to fence their p roperty.
    3. Same — Statutes—Police Power.
    The statute requiring railroad companies to erect and maintain fences of a specified height and character along their rights of way was adopted pursuant to the police power of the State, not alone as a protection to the property of'adjacent owners, but as a protection to the employés and passengers upon trains.
    3. Same — Agreement with Adjacent Owner — Effect on Rights of Third Persons.
    The amendment of 1885 (3 How. Stat. § 8877), providing that nothing contained in the statute shall be construed to prevent the erection of such fences as may be agreed upon in writing between the railroad company and the owner of land through which, the road runs, does not enable the company to avoid liability to third persons for killing stock, by agreeing with the landowner for the erection of a fence not reasonably sufficient to prevent stock from straying upon the right of way.
    4. Same.
    A landowner, however, who loses stock because of the insufficiency of a fence which he has himself erected and main- ' tained pursuant to an agreement with the company, has no right of action for his damages.
    5. Same — Contributory Negligence.
    The contributory negligence of the owner of stock in permitting it to run at large is no defense to an action, where the animals get upon the right of way through defective fences maintained by the company, or by adjacent owners under agreement with the company.
    fi. Same — Evidence—Notice.
    Where, in an action against a railroad company for killing stock upon its right of way, there is evidence tending to show that the bars through which the stock got upon the right of way were improperly constructed, evidence that they had been frequently found down, and had been replaced by employes of the company, is admissible to charge the company with knowledge of their defective condition.
    Error to Chippewa; Steere, J.
    Submitted October 8, 1897.
    Decided December 7, 1897.
    Case by Harriett Neversorry against the Duluth, South Shore & Atlantic Railway Company for killing stock. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Three horses belonging to plaintiff were killed upon the defendant’s right of way by one of its trains. Recovery was based upon the failure of the defendant to maintain proper fences. One David Crowley owned 160 acres of land, through which defendant’s road passed. By an arrangement between Crowley and the company, two openings were made in the fences on each side of the track, and opposite Crowley’s house and inclosure, for his convenience and accommodation, to enable him to go to and fro, and to reach the highway on the south side of the railroad. Two sets of bars were placed in these openings, instead of gates. Crowley evidently was to take care of them. He had about an acre inclosed by an apology for a fence, consisting simply of poles resting on stumps from a foot and a half to three feet high. Some of these were down at the time. The horses strayed" into this inclosure after dark, and were either driven by Crowley onto the railroad track, as claimed by the defendant, or strayed through the bars onto the right of way. Plaintiff recovered verdict and judgment.

      Oren & Webster, for appellant.

      Warner & Sullivan, for appellee.
   Grant, J.

(after stating the facts). 1. The principal defense urged is that pail road companies and adjacent landowners may contract as to the character of fences, bars, or gates to be provided at farm crossings; and that, when they do so agree, the company is not liable for the loss of animals which enter the right of way through such fences, bars, or gates, and are injured or killed. At the request of defendant, the court instructed the jury as follows :

“If plaintiff’s horses got onto the railroad track by reason of the bars in front of Mr. Crowley’s being put down, either by Mr. Crowley or some one acting under his directions, under the facts in this case the plaintiff cannot recover, regardless of the height of the bars in question. If the bars in question were sufficient to reasonably serve the purpose of turning back such beasts as such bars are generally designed to restrain, then the defendant is not liable to maintain a better one, and your verdict must be for the defendant.”

The case was left to the jury upon the theory that bars • and gates at these farm crossings, which were constructed by agreement, were not required to be of the height and character provided for by the statute, but only of a height and character sufficient to reasonably guard against the intrusion of animals.

At the common law, railroad companies were not required to fence. Williams v. Railroad Co., 2 Mich. 259; Continental Improvement Co. v. Phelps, 47 Mich. 299. The right to compel railroads and landowners to fence is founded upon the police power of the State. Staats v. Railroad Co., 4 Abb. Dec. 287; Corwin v. Railroad Co., 13 N. Y. 46; Flint, etc., R. Co. v. Lull, 28 Mich. 510; Gilson v. Munson, 114 Mich. 671. This statute was adopted, not alone as a protection to the property of adjacent owners, but as a protection to the employes and passengers upon railroad trains. Same authorities; also, Bay City, etc., R. Co. v. Austin, 21 Mich. 390. It follows that the contributory negligence of the plaintiff in permitting his animals to roam at large is no defense to an action where such animals get upon the right of way through the defective fences of the company. Flint, etc., R. Co. v. Lull, supra; Grand Rapids, etc., R. Co. v. Cameron, 45 Mich. 451; McDonald v. Railway Co., 51 Mich. 628.

The statutes of this State, after providing very minutely for the character and height of fences to be erected and maintained by railroad companies, contain the following proviso, which was an amendment to the law in 1885:

“Provided, further, that nothing herein contained shall be construed to prevent the erection of any other fence than that herein provided for, as may be agreed upon in writing between the duly-authorized agent or officer of any railroad corporation and the owner of any land through which the road of such corporation may be in operation.” Act No. 234, Pub. Acts 1885, § 15 (3 How. Stat. § 3377).

While there are' authorities holding that cattle trespassing are not within the protection of this law, yet the weight of authority is to the contrary. 7 Am. & Eng. Enc. Law, 929-932. Evidently, the legislature did not intend to leave the character of these bars and gates at farm crossings, erected by agreement, in doubt or uncertainty, for it provided that the agreement between them must be in writing. The agreement in this case rested in parol. It is true tha Crowley" could not have recovered for damages to his animals which entered the right of way through these bars, because they were just such as he chose to erect and maintain. Enright v. Railroad Co., 33 Cal. 230. When we consider that the broad purpose of this police enactment, under the authorities above cited, is to protect railroad employes and passengers, as well as the property of adjacent owners and others living in the vicinity, and that contributory negligence of the owners of stray animals is no defense, it is impossible to reach the conclusion that a railroad company is entirely relieved from liability by permitting an adjacent owner to put up any such fence, bars, or gates as he may choose. If it were so held, the practical result would be to annul the statute, and relieve the companies from any liaoility whenever they and the adjacent owners see fit to agree to any kind of a fence. They might agree to such a fence as Crowley had put around his inclosure, which was practically little better than no fence at all.

2. There was evidence tending to show that the bars were not properly constructed; that they consisted of three poles, about three inches in diameter, the top one three feet five inches from the ground, the bottom one ten inches, and the middle one halfway between; that two boards were nailed to the posts, with six little pieces laid across them for the poles to rest on; and that the ends of the poles rested loosely on these pieces. Testimony was introduced tending to show that the bars had been frequently found down, and that the section men had sometimes put them up. This was offered to show knowledge on the part of the company of the condition of the bars. If it had been conclusively shown that the bars were properly constructed, this testimony would have been incompetent. No liability would then have attached to the company without showing that the bars were down through its fault. The court, in effect, so instructed the jury. But, in view of our conclusion that the company is liable for negligence in construction, it was competent to show- its knowledge upon this point. The testimony naturally tended to show this, for its employés, in putting up the bars, must necessarily have learnéd their construe tion and condition.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    AULTMAN, MILLER & CO. v. SLOAN.
    1. Chattel Mortgages — Assignment.
    An instrument purporting, for a valuable consideration, to ‘' assign, release, and deliver” to a third person all right, title, and interest in the security or property covered by a chattel mortgage therein described, is an assignment of the mortgage, and not a discharge thereof.

      2. Same-j-Parties — Res Judicata.
    A mortgagee of chattels assigned the mortgage, and afterwards obtained judgment against the mortgagor on the debt, in an action to which the assignee was not made a party. Held, that, although the mortgagor defended on the ground that the debt had been assigned, the judgment was not binding on the assignee.
    3. Same — Discharge—Evidence—Appeal.
    Whether or not there was error in permitting a township clerk to testify that he had no authority to enter the cancellation of a certain chattel mortgage, and that the entry was made through mistake, becomes immaterial on appeal, where the record itself does not show that the alleged discharge was made in the manner prescribed by the statute (2 How. Stat. § 6201).
    Error to Calhoun; Smith, J.
    Submitted October 12, 1897.
    Decided December 7, 1897.
    Trover by Aultman, Miller & Company against James Sloan. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Mains & Cavanagh, for appellant.

      L. B. Tompkins (W. H. Porter, of counsel), for appellee.
   Moore, J.

This is an action brought to recover for the value of certain property which plaintiff claims that defendant wrongfully converted. The interest plaintiff claims to have in the property grows out of a chattel mortgage given to it by Byron Cool and Andrew Cool, May 2, 1894. Prior to the giving of this mortgage, Byron Cool had given one to Charles R. Mains, and Byron Cool and Andrew Cool had given three others to •Charles R. Mains. It is the claim of defendant that he purchased the four mortgages owned by Mr. Mains on November 15, 1894, on which day Mr. Mains executed and delivered to Mr. Sloan a paper reading as follows:

“For a valuable consideration to me in hand paid by James Sloan, of the township of Homer, county of Calhoun, and State of Michigan, the receipt whereof is hereby confessed and acknowledged, I hereby assign, release, and deliver to said James Sloan all my right, title, and interest in the security or property covered by the following described chattel mortgages: One executed by Byron J. Cool and Andrew Cool, and the note accompanying the same, on which note interest is paid in full to October 1, 1891, on payment of $18.60, and interest paid in full to October 13, 1892, by payment of $20.03, there being no other indorsements on said note or mortgage; said mortgage dated October 15, 1890, to secure the payment of $193.72.”

Then follows a description of three other chattel mortgages, with amounts due thereon.

“All of said chattel mortgages having been executed to me, and no other sums having been paid than those so indorsed; the first one drawing 8 per cent, interest, the second one drawing. 8 per cent, interest, the third one drawing interest at 10 per cent., and the fourth drawing interest at 10 per cent.”

When this paper was delivered the mortgages were also delivered. Defendant claims title to the property through the foreclosure of two of these mortgages.

After the papers were delivered to Mr. Sloan, he took them to the office of the town clerk, and a statement was indorsed on one of them that there was $50 due on it, and on another one that there was $35 due on it; and the clerk was instructed to cancel two of the mortgages, and to leave two in force. He did so, but it is the claim of Mr. Sloan that he canceled a mortgage that he was not instructed to cancel. Upon the foreclosure the property was sold for $80.75. Subsequent to the execution of the paper by Mr. Mains to Mr. Sloan, Mr. Mains sued the two Cools to recover the debt secured by the four chattel mortgages made to him. The Cools interposed as a defense that Mains had transferred the debt to Mr. Sloan, and could not recover against them. In that suit Mr. Mains recovered a judgment, which judgment was put in evidence in this case. Mr. Sloan was not a party of record to that litigation. On the trial Mr. Sloan was allowed to show by the verbal testimony of the deputy clerk, who canceled the mortgage, the mistake which was made in canceling the mortgage.

There are three questions needing attention:

First. Was the paper executed by Mr. Mains to Mr. Sloan an assignment of the four mortgages, or was it simply a discharge of the mortgages ?

Second. Is the judgment in Mains v. Cool and Cool binding upon Mr. Sloan?

Third. Was it error to allow the clerk to testify that a mistake had been made in canceling the chattel mortgage ?

1. “Assign” is defined by Webster to mean to transfer or make over to another; and in Burrill’s Law Dictionary it is said that to assign is to make over or set over to another; to transfer. The thing set over or transferred in this paper by Mr. Mains is stated to be all his right, title, and interest in the security or property covered by the four mortgages. His right, title, and interest in the security or property covered by the mortgages was a lien thereon to secure the payment of the sums of money stated in the paper to be unpaid. Giving to the words their usual and ordinary meaning, the paper must be construed to be an assignment of the mortgages, and not a discharge of them.

2. Whatever interest Mr. Sloan had in the mortgages, he obtained from Mr. Mains. When Mr. Mains asserted that he had not assigned the chattel mortgages to Mr. Sloan, while the latter asserted he had, it is difficult to see how there is any such privity between Mr. Mains and Mr. Sloan as to make a litigation of the question in the case of Mains v. Cool and Cool res judicata, when Mr. Sloan was not a party to the litigation, even though the defendants made such a claim by way of defense. If this contention is true, it would be possible for Mr. Sloan’s assignor and the mortgagors named in the mortgages to cut off the rights of Mr. Sloan, without giving him an opportunity to be heard. In McKinney v. Curtiss, 60 Mich., at page 620, it is said:

“No judgment in any legal proceeding can be held a bar unless .the claim of the party which has been presented for adjudication has been passed upon, or the party has had the right in such proceeding to have the merits of such claim adjudicated.”

See Perkins v. Oliver, 110 Mich. 402. Mr. Sloan was not a party to the litigation, and is not bound by its result.

3. 2 How. Stat. § 6194, provides when it shall be the duty of the clerk to file chattel mortgages. Section 6201 provides how a chattel mortgage may be discharged:

“Any chattel mortgage * * * maybe discharged by an entry on the book kept by the township or city clerk * * * signed by the mortgagee or his personal representative or assignee, acknowledging the satisfaction of the mortgage, in the presence of the township or city clerk, * * * or his deputy, who shall subscribe the same as a witness thereto; and such entry shall have the same effect as a deed or instrument of release, duly acknowledged and filed,” etc.

There is nothing in the record to show that the discharge was made in the manner prescribed by the statute. It does not appear from the record that the book containing the entry was offered in evidence. The clerk having charge of the record testified as follows:

“I find a record of that mortgage in the index book [reading]: Cool, Byron J., to Charles R. Mains. Given September 2, 1890. Filed September 2, 1890. Renewed August 31, 1891. This was given for $33.93. Renewed September 6, 1892. Renewed September 4, 1893. Renewed September 10, 1894. Canceled December 22, 1894, and delivered to Byron Cool, by order of James Sloan, assignee.”

Mr. Burt, who was the deputy clerk at the time the entry was made, testified that the entry was made by mistake, and it nowhere appears that the entry was signed by Mr. Sloan. Under the record as made, we do not think it is shown that the mortgage was legally discharged, and do not deem it necessary to discuss whether it was error to allow the witnesses to testify as to what occurred at the time the entry was made.

The' other assignments of error have been considered, but will not be discussed. We think the case was fairly and properly tried.

Judgment is affirmed.

The other Justices concurred.


text:
    CITIZENS’ SAVINGS BANK v. VAUGHAN.
    1. Banks — Lien on Deposits — Demand Notes — Set-off.
    A demand note made to a bank by a depositor is due at once, within the rule that banks have a lien upon deposits for debts “due” from their depositors, and it may, therefore, without actual demand, be treated as a matured debt for the purpose of set-off in proceedings between the bank and the depositor.
    3. Same — Unambiguous Contract — Evidence of Intent.
    The plain terms of the contract cannot be changed by showing by evidence aliunde that the note was not intended to become due until some future time.
    3. Partnership Associations — Incurring Liability — Statutory Restrictions — Effect of Nonconformance.
    The statute governing partnership associations (1 How. Stat. § 3369) provides as follows: “No debts shall be contracted nor liability incurred for said association except by one or more of said managers, and no liability for an amount exceeding $500, except against the person incurring it, shall bind the said association, unless reduced to writing, and signed by at least two managers.” Held, not to warrant the construction that a contract by one officer only, for an amount exceeding §500, is good for that sum, and void for the excess, but that the invalidity attaches to every such contract in its entirety.
    4. Receivers — Dividends—Interest.
    A creditor of an insolvent corporation is equitably entitled to interest upon a dividend payable to him from the date of the order directing the dividend, where payment has been delayed by an unsuccessful contest by the receiver.
    *5. Same — Costs.
    The proceedings upon a petition for an order directing the receiver of an insolvent corporation to pay a dividend to the petitioner, pursuant to a decree previously entered that dividends be paid on all claims duly proved, are in the nature of special motions, and the petitioner is not entitled to full costs, as in a contested suit, even though decree passes in his favor after the joining of issue and the taking of proofs.

      Appeal from Clinton; Daboll, J.
    Submitted October 12, 1897.
    Decided December 7, 1897.
    Petition by the Citizens’ Savings Bank of Detroit against Coleman C. Vaughan, John H. Fedewa, and Edwin EL Lyon, receivers of the Michigan Mortgage Company, Limited, for the payment of dividends. From the decree rendered, both parties appeal.
    Modified and affirmed.
    On February 6,1894, the Michigan Mortgage Company, Limited, made a voluntary assignment for the benefit of creditors. On February 8th a bill of complaint was filed in the circuit court for Clinton county, in chancery, asking for the appointment of receivers to take charge of the mortgage company’s property, and to carry out the purpose of the assignment. On February 9th the present receivers were appointed. The receivers, June 1, 1895, were directed to pay a dividend of 15 per cent, on all direct claims duly proven, and for that purpose calculated all claims as of that date. The Citizens’ Savings Bank filed a claim against the insolvent estate,, composed of five items:
    (1) The company’s $2,500 note, dated October 24, 1893, and due February 27, 1894.
    (2) The company’s $2,625 note, dated January 15, 1894, and due May 18, 1894.
    (3) The company’s $6,000 note, dated September 8, 1893, and payable on demand.
    (4) The company’s alleged indorsement of John EL Fedewa’s $1,000 note, due June 2, 1894.
    (5) The company’s alleged indorsement of Edward Brown’s $2,000 note, due May'26, 1894.
    The receivers disputed the liability of the company upon its alleged indorsement of the Fedewa and Brown notes for the reason that the indorsement was made by only one officer of the company. The liability of the company was admitted upon the other three items. The mortgage company kept one of its banking accounts with the Citizens’ Savings Bank. On February 6, 1894, there was a balance of $1,849.96 to the credit of the company.. The bank claimed the right to offset this credit of $1,849.96 against its claim upon the demand note, leaving a balance on which the dividend should be paid. The receivers insisted that the amount of the bank’s dividend should first be ascertained, and the credit deducted from that. The undisputed claim of the bank is $10,132.90. If the credit is deducted from this, it leaves the bank’s claim at $8,282.94, of which 15 per cent, is $1,242.44. On the other hand, if the dividend is first calculated, it comes to $1,519.93, and, if the credit is to be .used against that, it puts the bank in debt to the receivers. The receivers refused to pay_a dividend to the bank, and the bank thereupon petitioned for an order directing the receivers to pay. An issue was framed, and tried by the court without a jury. The circuit judge held:
    (1) That the bank might offset the credit against the demand note.
    (2) That the mortgage company was not liable upon the Brown and Fedewa notes, as the indorsement was by one officer only.
    (3) That the bank was not entitled to interest upon its unpaid dividend.
    (4) That the bank was entitled to a solicitor’s fee of but $10 upon this issue.
    Both parties appeal.

      Gray & Gray, for petitioner.

      Edwin H. Lyon, and Fedewa & Walbridge, for defendants.
   Grant, J.

(after stating the facts). 1. Did the bank have the right to offset the deposit of the mortgage company? If the note was due, the offset was properly allowed. It is conceded that banks have a lien upon deposits for debts due from their depositors. No lien, however, attaches until the maturity of the debt. Bolles, Banks, § 374; Gibbons v. Hecox, 105 Mich. 513. The learned counsel for the receivers cite several authorities upon the question of reasonable time to be allowed before a demand note becomes overdue and dishonored. Those cases affect solely the liability of indorsers. They have no application in suits upon a note between the promisor and the promisee. In such a case the universal rule is that the note is due at once, and that no demand is necessary before bringing suit. Palmer v. Palmer, 36 Mich. 487 (24 Am. Rep. 605); Beardsley v. Webber, 104 Mich. 88; Peninsular Sav. Bank v. Hosie, 112 Mich. 351. If the note be due so that suit may be brought without demand, it is also due, for the purposes of offset, when the promisor sues the bank to recover claims against it.

The receivers introduced evidence from which they argue that these demand notes were not intended as temporary loans, and would not become due until some future time. The - plain terms of the contract cannot be thus changed. The paper is a demand note, pure and simple, and is to be controlled by the rules applicable to such paper. The circuit judge rightly held that the deposit is an offset.

2. The statute governing partnership associations- provides as follows (1 How. Stat. § 2369):

“And no debts shall be contracted nor liability incurred for said association except by one or more of said managers, and no liability for an amount exceeding $500, except against the person incurring it, shall bind the said association, unless reduced to writing, and signed by at least two managers.”

Undoubtedly both parties acted in ignorance of this statute, but the statute must control. The liability, being for more than $500, required the signatures of two of its managers to make it valid. Is the mortgage company liable on each note to the extent of $500 ?. Counsel for the bank contend that the indorsement is good for $500, and void for the excess. We cannot concur in this view. The words of the statute are, “no liability for an amount exceeding $500,” etc. We think the statute contemplates that the invalidity should attach to every contract in its entirety where the amount exceeds $500.

3. The bank was entitled to its money at the time the dividend was declared. The receivers saw fit to appeal. The bank has thus been deprived of the use of its money. We think it equitably entitled to interest from the date of the order directing a dividend.

4. While this proceeding is in chancery, and ,a petition was filed, answer made, issue joined, and proofs taken, yet we think the petitioning bank was not entitled to full costs, as in a contested suit in chancery. These proceedings are in the nature of special motions, and costs are in the" discretion of the court, under Chancery Rule 22.

Decree will be modified in accordance with this opinion, and costs of this court awarded to the bank.

The other Justices concurred.


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

text:
    DETROIT NATIONAL BANK v. BLODGETT.
    Duress — Parent and Child.
    Two sons resisted, on the ground of duress, the foreclosure of mortgages executed by them to secure a loan made to their father of money used by him to improve their property. It was shown on behalf of one of the sons that he signed a mortgage four days after becoming of age, at the command of his father, who was a violent man, of whom he stood in great fear; that about a year later he executed a new mortgage in place of the first, to obtain for his father a five years’ extension on the indebtedness; and that he was obliged to sign the mortgages in order ‘ ‘ to keep peace in the family. ” On behalf of the other son it appeared that he was dependent upon his father for the support of himself and his wife, and that his father had threatened to turn them out of doors unless he signed the mortgage; that he consented to sign only after taking the advice of his attorney that the instrument could be set aside.

      Held, that there was no such duress shown as would avoid the mortgages.
    ON APPLICATION FOR REHEARING.
    Equity — Inherent Powers — Questions of Fact — Jury.
    The legislature cannot abridge the right of courts of chancery to pass upon questions of fact without the intervention of a jury. Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, approved and followed.
    Appeal from Wayne; Steere, J., presiding.
    Submitted October 12, 1897.
    Decided December 7, 1897.
    Application for rehearing denied January 25, 1898.
    Bill by the Detroit National Bank against Cornelia H. Blodgett and others to foreclose certain mortgages. From a decree for complainant,- defendants Charles G. and Ralph C. Blodgett appeal.
    Affirmed.

      Henry A. Harmon (John D. Conely, of counsel), for complainant.

      Hamilton G. Howard and C. J. O’Flynn, for appellants.
   Long, C. J.

This proceeding was commenced for the foreclosure of three mortgages. Complainant’s claim is that Charles C. Blodgett was the owner of certain property in Detroit, known as “Lots 1, 2, and 3 on the north side of Franklin street,” and “Lots 1, 2, and 3 on the south side of Woodbridge street.” His wife, Cornelia, had an estate for her own life in other property in Detroit, known as “Lots 29, 30, 36, and 37 of the Louis Moran Farm.” The children of Mr. and Mrs. Blodgett, namely, Elma Louise Smith, May N. Blodgett, Alice Blodgett Craig, Charles G. Blodgett, Ralph C. Blodgett, and Adelaide P. Blodgett, held the remainder in fee, each owning an undivided one-sixth. The title of Mrs. Blodgett and the children to the property owned by them came from the will of Solomon Gardner, the father of Mrs. Blodgett. He died in 1878. The place had been his homestead, and it became the home of Mr. and Mrs. Blodgett and their children after the death of Mr. Gardner.

As early as 1888, Mr. Blodgett formed an intention to tear down the buildings that were then upon the place, and to erect thereon rentable buildings called “flats,” and to be known as the “Blodgett Terrace.” At this time but three of the Blodgett children had arrived at full age. They were Elma Louise Blodgett, now Mrs. Smith, May N. Blodgett, and Alice Blodgett, now Alice Blodgett Craig. To accomplish the building of the terrace, Mr. Blodgett borrowed money from the complainant, the Detroit. National Bank, and from time to time gave to complainant his notes at four months for the money so ■borrowed. The payment of these notes was guaranteed by Mr. C. H. Buhl,' and two mortgages were given to him to protect him because of such guaranty. Both mortgages bore date April 30, 1888. One mortgage was on the property owned by Mr. Blodgett, as heretofore stated. This mortgage was signed by Mr. and Mrs. Blodgett. The other mortgage was on the property owned by Mrs. Blodgett and the children. This was signed by her and the three children- who had then become of full age, namely, Elma, May, and Alice. The money borrowed was expended in the building of the Blodgett Terrace. This terrace was wholly on the property owned by Mrs. Blodgett and the children, and the expectation was that the investment was for the benefit of the family. At the outset the venture was supposed to be a good one in a business sense, though it did not turn out to be so.

Charles, the fourth child, became of full age on the 13th day of February, 1891. In pursuance of the family understanding, and on the 17th of that month, four days after Charles had become of age, a new mortgage was given, signed by Charles alone. The mortgage from Charles covered all the mortgagor’s right, title, and interest in and to the terrace property. Its condition was as follows:

“These presents are upon the express condition that if Charles C. Blodgett, father of the party of the first part, shall pay at maturity all notes made by him, and indorsed by said Christian H. Buhl, and held by the Detroit National Bank, or any and all renewals of notes so made, indorsed, and held, or which may be hereafter so made, indorsed, and held, and save the said Buhl harmless from all loss or damage by reason of an agreement dated April 30, 1888, between said Buhl and the said bank, wherein he guarantees to said bank the payment of all notes discounted by said bank for said Charles C. Blodgett, it being understood that the notes now held by said bank so made and indorsed were given for moneys borrowed to erect the building' now on the aforesaid premises, in consequence whereof I have been benefited, and the liability for which moneys I should share with Cornelia H. Blodgett, Elma Louise Blodgett, May N. Blodgett, and Alice Blodgett Craig, who have given a mortgage on said premises dated April 30, 1888, to secure the payment of said notes, and to save said Buhl harmless on account thereof, the consideration moving to me being the benefit my estate has derived from the use made of said moneys, and, further, the agreement of said Buhl and said bank to grant reasonable renewals of said notes, then these presents and said notes shall cease, and be null and void.”

The agreement referred to in the foregoing condition was made contemporaneously with the making of the two mortgages first herein mentioned, namely, the one signed by Mr. and Mrs. Blodgett and the one signed by Mrs. Blodgett and the three older children.

About a year after the giving of the mortgage by Charles, and on the 28th day of January, 1892, the indebtedness of Mr. Blodgett to the bank had reached the sum of $100,000, whereupon, and on that day, Mr. Blodgett, Mrs. Blodgett, and the four older children, Elma, May, Alice, and Charles GL, gave their bond for that sum to complainant; principal payable on or before five years from its date, with interest at 6 per cent, per annum, payable monthly. At the same time two new mortgages were given. One was on the property owned by Mr. Blodgett, and was signed by Mr. and Mrs. Blodgett; the other was ■ on the property of Mrs. Blodgett and the children, and was signed by her and the four elder children mentioned. The three former mortgages, including the one given by Charles, were discharged.

Ralph C. Blodgett, the fifth child, became of full age January 9, 1894. He was married on April 30, 1890, soon after he became 17. Shortly after he became of age, and on January 18, 1894, he gave to the bank a mortgage on the terrace property. At this time he was living at 234 Woodbridge street, on the opposite side of the street from the terrace. The rent of this house was paid by his father. The condition of this mortgage is as follows:

Provided, always, and these presents are upon the express condition, that if Charles C. Blodgett, Cornelia H. Blodgett, Elma Louise Smith, May N. Blodgett, Alice Blodgett Craig, and Charles G. Blodgett, or either of them, shall pay or cause to be paid to said Detroit National Bank the sum of $100,000 on or before the expiration of five years from January 28, 1892, with interest thereon at the rate of six per cent, per annum, payable monthly, according to the terms of a certain bond executed by them bearing date January 28, 1892, and secured by mortgage executed by them, except said Charles C. Blodgett, beai’ing the same date, and recorded in Liber 298 of Mortgages, page 127, said bond and mortgage having been given to secure moneys loaned for and used in erecting the building on said lots hereinbefore described, and therefore used for the benefit of said Ralph C. Blodgett, as well as for the benefit of said mortgagors, for which reason the security of this mortgage is given, then these presents and said bond shall cease, and be null and void. ”

The payments were largely behind at the time this suit was begun, and there was unpaid at the time of taking the decree the amount stated therein. The bill was filed for the foreclosure of the three mortgages, namely, the two of January 28, 1892, and the one subsequently given by Ralph. Originally, Mr. Blodgett was a defendant. He died, and fhe suit was revived. Mr. Ered C. Harvey, his administrator, was made a party; so was Adelaide P. Blodgett, the sixth child of Mr. and Mrs. Blodgett. The bill was taken as confessed by all of the defendants except Charles G., Ralph, and his wife, Mary. Marj^ was under age at the time she signed the mortgage. This was conceded at the hearing, and it was consented by the complainant that the bill should be dismissed as to her. The Portage Red Stone Company and John P. Ruhl were made parties under the- subsequent incumbrance clause. Adelaide P. Blodgett was made a party because of the interest derived by her upon the death of her father in the property which had been his, and. her interest in the terrace property is exempted from the decree.

The contention of the defendant Charles G. Blodgett is that when he joined in the execution of the terrace mortgage, and the bond to which it is collateral, he was young and inexperienced, that he did not fully understand their contents, and that he executed them through fear of his father, and that they should therefore be set aside as -to him. Ralph C. Blodgett contends that when he and his wife executed the mortgage of January 18, 1894, they were then occupying a house the rent of which was paid by his father; that he and his wife were wholly dependent upon him for their house rent and board; that, before and directly after he became of age, his father practically forced him to execute the mortgage, and he feared that, if he'refused to sign, his father would cease to pay the rent, or furnish a home and food for his family; that his father was a man of violent temper, and he did not wish to cross him; that under these circumstances he signed the mortgage. His wife, in her answer, makes the same contention. These defendants, Charles, Ralph, and Mary Blodgett, all contend that they received no actual benefit-from the moneys mentioned in the mortgages. Defendants introduced several witnesses, who testified that the elder Mr. Blodgett- was a man of rough, coarse ways, of large size, with a heavy voice and violent temper, and of a domineering disposition, and much given to profanity and vileness of language. They gave it as their opinion that his children would not dare to disobey or cross him. In reference, to the circumstances of signing the first mortgage, Charles testified-:

“I was working for the First National Bank at that time [date of execution of mortgage], and I came home about 4 o’clock in the afternoon; and he [father] says, ‘I want you to go down town with me.’ And I supposed he wanted me to go down and hold the horse for him while he went in somewhere. So I got into the buggy, and we went down, and when he turned off Jefferson avenue he said, ‘I want you to sign some papers.’ Well, I said I didn’t care to sign those papers. I said: ‘You are not getting sufficient out of that thing to pay, and I don’t see any reason why you should make us sign this thing, when in time it will all have to go anyway. It will be only a few years when it will be foreclosed.’ ‘Well,’ he says, ‘that is all right. I promised Mr. Buhl you would sign that thing, and you have’ got to sign it.’ I was afraid to say anything to him, and I never talked backed to him at all, because I didn’t dare to; and we got down.. He hitched the horse in front of the post-office, and walked up, and I never said anything until I got to Mr. Harmon’s office. Mr. Harmon went in the other room, and got the papers, and brought them out, and laid' them on the table, and he says, ‘You sign right here.’
“Q. Who said that?
“A. Mr. Harmon. And father said right after him, ‘That’s right, sign it right there.’ But I says, ‘Wait a moment; I would like to read this.’ And he [father] said: ‘ There is no damn use in your trying to read this thing. You can’t make head or tail of it.’ Mr. Harmon says, ‘ That is right; let him read it,’ and I picked it up, and started to read it. While I was there, he [father] got a little nervous-acting, and walked up and down the room, swinging his arms; and I could not make anything out of the paper; and I finally got disgusted, and threw it down on the table. He [father] says, ‘Are you ready to sign it ? ’ and I was thinking at the time whether I had better or not. Well, I thought the only thing to keep peace in the family was to sign it, and be done with it, so I did it, through fear of having an awful rumpus if I did not.”

He also testified that he signed the second mortgage under coercion from his father. On cross-examinatioil he stated that he knew this second mortgage was to take the place of the prior one, and that the second mortgage was to run five years, and'-that he told his father it was a foolish arrangement. He also knew the amount was $100,000, and that the bank had agreed to postpone the payment for five years by the giving of this mortgage; and he stated, “The main reason I signed it was to keep peace in the family.”

Ralph, after detailing what took place between himself and his father, his father’s threats of turning himself and wife out of doors, says that he then consulted Mr. Howard (an attorney in Detroit); that he consulted him a number of times about signing the mortgage; and that Mr. Howard advised him to sign it for the sake of peace in the family, and told him that, if he did sign it, he (Howard) thereafter would have it set aside. Witness further testified, “I signed it altogether on Mr. Howard’s advice.” Both Charles and Ralph admit that they knew this money went into the building of the terrace, the title of which was in their mother and her children.

Prior to the time this testimony was given, the elder Blodgett had died. It appears, however, that he had obtained these moneys from the bank, and had expended them upon property belonging to his wife and children. It may have been, and undoubtedly was, an unwise undertaking, as it jeopardized the whole property, his own as well as that belonging to his wife and children. When he received the money, it was with the understanding that the children who were then under age would sign the mortgage when they became of age. When Charles came of age, he signed the first mortgage. The circumstances under which he claims to have signed it have been set out. He signed the second mortgage about a year later, when he was nearly 22 years of age. He knew then what it was for, but claims that he was again coerced; that he signed it under duress; but he knew the time for payment was being extended five years by his signing this mortgage, and he says he signed it.to keep peace in the family. As .to Ralph, his statement was that he signed the mortgage because Mr. Howard advised it.

We think no duress is shown which should avoid these mortgages. It is true that courts of equity grant relief in many cases where there is no legal duress in the strict acceptation of the term, and where the wronged party would perhaps be remediless at the common law; or, as stated in 2 Pom. Eq. Jur. § 951:

“Where there is no coercion amounting to duress, but a transaction is the result of a moral, social, or domestic force exerted upon a party, controlling the free action of his will, and preventing any true consent, equity may relieve against the transaction on the ground of undue influence, even though there may be no.invalidity at law.”

The rule is stated by Mr. Justice Story in his work on Equity Jurisprudence (section 239), that:

“Where a person does an act or makes a contract when he is under duress, or the influence of extreme terror, or of threats, or of apprehensions short of duress, he may be relieved in equity, for in cases of this sort he has no free will, but stands in vinculisj and the constant rule in equity is that where a party is not a free agent, and is not equal to protecting himself, the court will protect him. * * * Circumstances, also, of extreme necessity and distress of the party, although not accompanied by any direct restraint or duress, may, in like manner, so entirely overcome his free agency as.to justify the court in setting aside a contract made by him, on account of some oppression or fraudulent advantage or imposition attendant upon it.”

There can be no contention as to what the general rule is. The only difficulty is in applying it. It is a question which must be determined by the facts of each case. 6 Am. & Eng. Enc. Law, p. 81, § 16. But this much is settled by all the cases: That the duress or undue influence must be such as would overcome the will of a-person of ordinary firmness. Buchanan v. Sahlein, 9 Mo. App. 552; Seymour v. Prescott, 69 Me. 376. If the rule of those cases be applied to the present one, it is clear that the defendants have made no such showing as entitles them to be relieved from the operation of these mortgages. Charles executed the second mortgage when nearly 22 years of age. He had already executed one before that, after arriving at his majority; and the mere fact that he executed this second mortgage to keep peace in the family does not show such duress or undue influence as to warrant the discharge of such a lien upon his interest in the premises, when the very fund for which it was given went into his own property for its betterment. The case of Ralph is clearer still. He did not execute the mortgage simply because of the influence which his father had over him, but upon the advice of his friend and adviser, and with the understanding that that adviser could have the mortgage set aside by raising the question of duress when he was ready to move in the matter. The court very properly held that this was no defense to the mortgages.

The decree below must be affirmed.

The other Justices concurred.

ON APPLICATION FOR REHEARING.

Long, J.

This cause was submitted at the October term, 1897, and an opinion was filed December 7th following, affirming the decree below. Ante, 160. Before the filing of the opinion, the record and briefs were carefully examined by the whole court; and, from such examination, we were all of the opinion that the defense sought to be made of undue influence by the elder Blodgett upon his two sons, Charles and Ralph, was not sustained by the proofs. As it was'there said: “Duress or undue influence must be such as would overcome the will of a person of ordinary firmness.” No such influence was shown to exist, but, on the contrary, it clearly appeared from the testimony of Charles that he executed the mortgage to keep peace in the family, and, from the testimony of Ralph, that he executed it under the direction and advice of his attorney. We can but reiterate that the defendants wholly failed to establish any such claim as set up.

Counsel for defendants, however, now make a motion for rehearing, not upon the ground upon which the opinion was based, but for the reason that the writer of the opinion omitted to pass upon the question of the right of the appellants to a jury, which was demanded in the court below, and refused. We had supposed that it was generally understood by the bar that this question was finally and conclusively settled in Brown v. Kalamazoo Circuit Judge, 75 Mich. 274; and the learned counsel for the defendants seem to have regarded the question as decided adversely to their claim here, for in their brief in the original case they say:

“The demand was denied [in the court below], under the decision in the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274. It is respectfully submitted that this decision should be reversed, which will appear from a review of the reasons advanced by Mr. Justice Campbell in support of the decision.”

We cannot agree with counsel in that contention. That opinion was filed at the June term, 1889, nearly 10 years ago, and has since been adhered to by this court, and followed in every circuit court in chancery in the State. In it, it was held that Act No. 267„ Pub. Acts 1887, is unconstitutional in so far as it assumes to provide a final' decision of questions of fact in chancery suits by the verdict of a jury, and the rejection of testimony by the presiding judge as in a suit at law. - This opinion was concurred in by the whole bench, and was announced after a very careful review of the Constitution of the United States and of this State, as well as the common law and the English divisions of law and equity; and it was there determined that the cognizance of equitable.questions belongs to the judiciary as a part of the judicial power, and, under our Constitution, must( remain vested where it always has been vested heretofore. But counsel cite certain provisions of the statutes, of which they now claim Mr. Justice Campbell misconceived the true intent and meaning. Counsel also cite certain cases decided both before and after the case of Brown v. Kalamazoo Circuit Judge, claiming they have some bearing on the question, and upon which they ask a reversal of that case. These statutes were referred to by Mr. Justice Campbell as having reference to appeals in chancery cases, and the cases referred to by counsel here hold that appeals in chancery cases are statutory, — a very different question from the one dealt with by Mr. Justice Campbell. The statute of 1887 attempted to deprive the court of equity of the power to determine questions of fact, and to substitute the verdict of a jury in place of it; and, as well reasoned by Justice Campbell, the legislature had no such power. He says:

“The system of chancery jurisprudence has been developed as carefully and as judiciously as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere.”

This opinion has been cited with approval in two subsequent cases: Laprad v. Sherwood, 79 Mich. 523; Maier v. Wayne Circuit Judge, 112 Mich. 491. The cases cited by counsel which they insist support their contention that they were entitled to a jury are Demaray v. Little, 17 Mich. 387; Cady v. Manufacturing Co., 48 Mich. 137; People v. Hanrahan, 75 Mich. 611; Tillotson v. City of Saginaw, 94 Mich. 240; Lake Superior, etc., Iron Co. v. Auditor General, 79 Mich. 351; Merriman v. Peck, 96 Mich. 603; People v. Bussey, 80 Mich. 501; Schafberg v Schafberg, 52 Mich. 429; Maier v. Wayne Circuit Judge, 112 Mich. 491. Most of these cases treat of the question of appeals in chancery, and hold that such appeals are governed and controlled by the statute, and that, in the absence of statute, no such right of appeal exists. Counsel for defendants contend that “therefore the act of 1887 is constitutional, notwithstanding it takes away from the appellate court its former statutory power to disturb the verdict of a jury in the lower court.”

The court of chancery has always had the right to pass upon questions of fact without the intervention of a jury. This is so under the English practice, and has ever been-the practice in this State. The rules of practice in this State were largely shaped by legislation in accordance with the views of Chancellors Farnsworth and Manning prior to the adoption of the present Constitution. Since the adoption of the present Constitution, no attempt was made by the legislature, until the act of 1887, to deprive the chancery court of its power to determine questions of fact in all cases coming before it. The framers of the Constitution of 1850 did not attempt by that instrument to limit its jurisdiction, or to take from it the powers then possessed. Those powers and jurisdiction, by the Revised Statutes of 1846, were co-extensive with the powers and jurisdiction of the court of chancery of England, with the exceptions, additions, and limitations created and imposed by the Constitution and laws of the State. It is undoubtedly within the power of the legislature to change the formalities of legal procedure; but, as said in Brown v. Kalamazoo Circuit Judge:

“ It is not competent to make such changes as to impair the enforcement of rights. * * * There are various kinds of interests and controversies which cannot be left without equitable disjnosal without either destroying them or impairing their value. * * * The functions of judges in equity cases in dealing with them is as well-settled a part of the judicial power, and as necessary to its administration, as the functions of juries in common-law cases. ”

But the right of appeal in chancery cases was recognized in the Revised Statutes of 1846, and has since been recognized as a part of the chancery procedure.

But counsel contend that the cases of Schafberg v. Schafberg and Maier v. Wayne Circuit Judge, supra, support their contention. The former case was fully discussed in the latter, in which Mr. Justice Hooker said:

“ It is said that these comments [in the Schafberg Case\ are obiter dicta. The decision is put upon two grounds one of which is that the proof failed, and so it is possible to say that the decision would have been the same had the question of amendment been omitted; but it may also be said that the decision of the merits was obiter, because the bill must have been dismissed upon the other ground so fully discussed. But, whatever may be thought of the consideration given to this statute in the Schafberg Case, we may find some light thrown upon it by the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274. This case arose upon a statute (Act No. 267, Pub. Acts 1887) which attempted to ingraft trial by jury upon equity practice; and, in a learned discussion of the subject by Mr. Justice Campbell, this court vindicated the constitutional right of trial by a chancellor in equity cases [75 Mich. 285], closing with the following emphatic utterance: ‘ Theory amounts to nothing in the history of jurisprudence. The system of chancery jurisprudence has been developed as carefully and as judiciously as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere.’ ”

This language could not be misunderstood. So that in 1889 the question was settled, so far as the power of the legislature is concerned to ingraft any such rule upon the equity practice; and as late as 1897 the principle is again enunciated, and the above language quoted with approval by this court. We find counsel, howevter, still persistently urging that a trial by jury in equity cases may be had.

In Dunn v. Dunn, 11 Mich. 286 (decided May 20,1863), it was said by Mr. Justice Campbell:

“There is no authority, which I have discovered, which renders it incumbent on any court of chancery, or even proper, to follow a verdict which is not calculated to aid the conscience of the court in solving questions of fact otherwise doubtful. Without going into cases in detail, I refer to East India Co. v. Bazett, Jac. 91; O’Connor v. Cook, 8 Ves. 535; Cleeve v. Gascoigne, 1 Amb. 323; Lord Faulconberg v. Peirce, Id. 210; Locke v. Colman, 2 Mylne & C. 42; Bootle v. Blundell, 19 Ves. 494, 500; Blackburn v. Gregson, 1 Brown, Ch. 423; Armstrong v. Armstrong, 3 Mylne & K. 45.”

We had thought the distinction between the cases cited by counsel, holding that chancery appeals are statutory, and the present question, so clear, and the point at issue here so well settled by the other cases cited by them, that the contention in their original brief would not be seriously urged. It has never been the practice in this court to discuss every claim made by counsel in briefs, and, indeed, space in the published reports would not admit of that course. But it is intended to discuss every question which may turn the scale one way or the other, or where it may be thought to be of interest to the profession. When, however, a point has been so squarely decided as the present, and that decision often referred to in other opinions, it cannot interest the parties or the profession to again repeat what has been formerly held.

The motion for rehearing must be denied, with costs.

The other Justices concurred.


text:
    HOOPER v. McALLISTER.

    1. Partition — Parties.
    A railroad company to which, all the tenants in common of a tract have deeded a strip in fee for a right of way is not a necessary party to a suit between such cotenants for the partition of the tract, excluding the strip in question.
    2. Homestead — Undivided Interests — Mortgages.
    A homestead will not attach to an undivided interest in a tract of land which, as a whole, exceeds the homestead limit both in acreage and in value, where there has been no separation of the undivided interests; and therefore it is not necessary to the validity of a mortgage upon such undivided interest that the wife of the owner should join therein.

      Appeal from Calhoun; Smith, J.
    Submitted October 13, 1897.
    Decided December 7, 1897.
    Bill for partition by Frederick B. Hooper against Alice McAllister and others. From the decree rendered, complainant appeals.
    Modified.

      Barbour & Rexford, for complainant.

      John C. Patterson, for defendants.

       Rehearing denied February 16, 1898.

   Long, C. J.

Complainant filed his bill for partition of certain premises in said bill described, setting forth that he and the defendants named have an estate in possession in said lands, and that the same are so circumstanced that a partition thereof cannot be made without great prejudice to the parties, and that it is necessary that a sale be made, and the moneys arising be divided among the parties according to their rights and interests. The land is described as the S. W. ¿ of section 13, township of Penn-field, Calhoun county (except a strip held by the Chicago & Grand Trunk Railway). The complainant claims to own in fee an undivided one-half of the land, derived from E. Darwin Brown through the foreclosure of a mortgage given by him to Betsey M. Barbour April 2, 1886, for $2,000 and interest, and by her foreclosed at law in 1892, and bid in. Complainant claims also to own in fee certain undivided interests in the other undivided half. This claim of title is made through a certain mortgage given September 28, 1878, by Lavinia K. Brown, Z. Edward Brown, and Celia Webber to Charles C. Peavey for $400, the foreclosure of this mortgage and sheriff’s deed thereon, and through mesne conveyances from the purchaser.

It appears that E. Darwin Brown, the person who executed the $2,000 mortgage, and one Orlando Brown, were the owners in common of the premises described, each owning an undivided half interest. Orlando died intestate in September, 1862, leaving him surviving his widow, Lavinia K. Brown, and three children, viz., Z. Edward Brown, Celia G. Brown, who married Mr. Webber, and Ruth Brown, who married Mr. McAllister. Ruth Mc-Allister died intestate, leaving her surviving three children, all of the age of 21 years and upwards, named Alice, Orlando B., and Earl; so that the undivided half interest of Orlando Brown in the described premises became vested by inheritance in his widow, children, and grandchildren above named. After the death of Orlando Brown, the said E. Darwin Brown and the widow, children, and grandchildren of Orlando quitclaimed a strip of the land to the Chicago & Grand Trunk Railway Company.

Defendants Z. Edward Brown and his wife, Katie Brown, answered the bill in the nature of a cross-bill, denying complainant’s title and equities, setting up a homestead interest in the mortgaged premises, and the wife claiming an inchoate dower interest. They also claimed an extension of time and >a modification of the mortgage; that there was no forfeiture of the conditions in the mortgage making the power of sale operative; praying the cancellation of the mortgage foreclosure proceeding and the deed given on the sale, and that the mortgage be declared void as to the homestead interest. The other defendants also filed an answer in the nature of a cross-bill, denying that the complainant obtained title by the foreclosure of the Peavey mortgage.

It appeared that the mortgage given by E. Darwin Brown included, in addition to the undivided of the S. W. £ of section 13, the entire interest in a 40-acre tract described as the N. W. J of the S. E. i of the same section. As the whole of this 40-acre tract passed to the purchaser on foreclosure, there existed no joint or common right in the others, and no condition to make it a factor in any suit for partition. But it further appeared that an interest actually remained in the undivided half of the land in controversy not covered by the Peavey mortgage. That interest was the share which had descended from Orlando to his daughter Ruth, and from the latter to her three children, the McAllister defendants. Neither of the moi’tgagors represented that interest.

The complainant therefore claims title as follows:

1. The fee to an undivided four-sixths of the property described in the bill.

2. In addition thereto, the fee to an undivided one-sixth, and a vested estate for the life of Lavinia K. Brown in one-third thereof, or an undivided one-eighteenth of the whole property, subject to the inchoate right of dower of Katie Brown, the wife of Z. Edward Brown.

3. That he is the owner of a vested estate for the life of Lavinia K. Brown in one-third of each of the undivided one-eighteenth shares owned by the defendants Alice, Orlando B., and Earl McAllister, respectively.

4. That Katie Brown, subject to the complainant’s estate for the life of Lavinia K. Brown in an undivided one-third • thereof, or one-eighteenth of the whole, has an inchoate right of dower in an undivided one-sixth, namely, one-eighteenth.

o. That each of the three McAllister defendants is the owner of an undivided one-eighteenth, subject to complainant’s estate for the life of Lavinia K. Brown in one-third thereof, or one fifty-fourth of the whole property.

And that, under such circumstances, a decree for partition should be awarded, and a reference made to a commissioner to report whether the property is “so circumstanced that a partition and division thereof amongst the parties interested cannot be made without great prejudice to the owners,” as provided by the statute (2 How. Stat. § 7871).

The proofs were taken in open court, and the court filed a written opinion, finding that the foreclosure of the $2,000 mortgage was valid, and the parties bound by it. As to the foreclosure of the $400 mortgage, the court found that the foreclosure was premature; and, as that court says, this finding is “not based upon the ground of fraud, nor entirely upon the ground of irregularity, but upon the broad and equitable ground that the foreclosure was premature as being without default;” and yet in the decree the land was discharged of this lien. A decree was therefore entered that the complainant ought not to have the full relief asked in his bill, and that the defendants Z. Edward Brown and Katie Brown are entitled to the relief asked in their cross-bill. The prayer for partition as contained in the bill as to that part of the premises described in the mortgage given to Peavey, and described in the sheriff’s deed on foreclosure, was denied, and the sheriff’s deed given upon the sale in the foreclosure of that mortgage was canceled and set aside, and the land discharged of the lien of the mortgage. The cause was referred to a circuit court commissioner to report the condition of the premises as to a partition, on the basis that the value of one-half of the premises go to complainant, and one-half to the defendants, Celia Webber, and Lavinia K. Brown. Defendants were awarded costs. Complainant appeals.

None of the defendants having appealed, the question of the validity of the E. Darwin Brown mortgage, and its foreclosure and the sale thereunder, cannot now be raised. So far as the defendants are concerned, they must be held as acquiescing in that decree. The only questions, then, to be considered and discussed, relate to the interests acquired under the Peavey mortgage, and the interests which each party to the proceedings takes in the premises.

It is contended, however, that the Chicago & Grand Trunk Railway Company should have beep made a party. Inasmuch as that company acquired title to the premises conveyed, it was not necessary to make it a party. No right is claimed by the complainant in that strip of land conveyed as a right of way, and the defendants had conveyed all their interests therein, and could claim no rights in the premises.

As to the Peavey mortgage, it is contended by counsel for defendants that, Z. Edward Brown being married at the time the mortgage was executed, and his wife not having joined in its execution, it was void, for the reason that the premises were less than 40 acres in amount, and less than $1,500 in value. This contention cannot be sustained. The lands in controversy were the entire of the S. W. i of section 13; that is, 160 acres of land. It was held by E. Darwin Brown and Orlando Brown in his lifetime as tenants in common, each owning an undivided half interest. At Orlando’s death it descended to his widow and the three children. At this time the farm was occupied by E. Darwin Brown, the widow of Orlando, and his three children. It was occupied as one farm, and the parties all lived in the same house thereon, with E. Darwin Brown as the apparent head of the family. They were the owners of undivided interests therein, and the whole 160 acres was of much greater value than $1,500. The house was built out of the proceeds of the farm, except that the widow furnished $1,200 in money therefor out of her separate means, and the heirs raised $500 by mortgage on their undivided half of the premises. There has been no separation of these interests in the buildings or in the lands. This was the situation at the time the Peavey mortgage was given. All the heirs joined in this mortgage except Ruth’s children and Katie, Z. Edward Brown’s wife. It was not necessary to the validity of the mortgage that Z. Edward’s wife should join. While her inchoate dower interest is not claimed by the complainant to have been in any way surrendered, it is apparent that she has no homestead right in the premises which can now be enforced. It has been held by this court that a homestead right may be claimed in land held by a tenancy in common if the whole does not exceed in quantity and value the homestead limit. Sherrid v. Southwick, 43 Mich. 515; Cleaver v. Bigelow, 61 Mich. 47. The case is ruled by Tharp v. Allen, 46 Mich. 389. Z. Edward Brown had no interest in any particular part different from any other part of the whole. He never had any exclusive possession of any particular part or of the whole land. His interest in any part was no different than in the whole. He had no particular, exclusive right to the dwelling. That was owned by the parties jointly. Under these circumstances, the mortgage was not void because not signed by the wife. Tharp v. Allen, supra.

It is also contended that some arrangement had been made by Z. Edward Brown with the owner of the mortgage that the time of payment of it should be extended from year to year until notice of demand of payment was made by the mortgagee. This is not sustained by the proofs. Mrs. Betsey M. Barbour was the mortgagee. It appears from her letters written to E. Darwin Brown, which were put in evidence by the defendants, that Z. Edward Brown was in arrears on his interest for two years. Some interest money was paid to Mrs. Graves, who, defendants contend, was the agent of Mrs. Barbour. There is no evidence to satisfy us that Mrs. Graves was the agent of Mrs. Barbour, and authorized to receive this interest money. This money was paid some nine months after the sale on foreclosure. The premises were bid in, and the title passed to Levi L. Barbour; and at least it cannot be claimed that Mrs. Graves was in any sense the agent of Mr. Barbour.

The court was in error in finding the mortgage was prematurely foreclosed, and also in error in setting aside the sheriff’s deed, and relieving the property of the lien of the mortgage. The decree must be modified in accordance with the claims of the complainant herein set forth, and the cause remanded to carry the decree into effect. Complainant will recover the costs of both courts.

The other Justices concurred.