text:
    CITY OF DETROIT v. WAYNE CIRCUIT JUDGE.
    1. Appeal and Error — Chancery Cases — Settlement of Case —Extension of Time.
    Whether the time for settlement of a chancery case can be extended under Act No. 129, Pub. Acts 1905, after the statutory forty days have elapsed without steps taken to perfect an appeal, quaere.
    2. Same — Statute—Application.
    Act No. 129, Pub. Acts 1905, providing for the settlement of chancery cases on appeal, has no application to a case which is not before the court upon pleadings and proofs, but upon an oral demurrer to' an amended bill.

      Mandamus by the city of Detroit to compel George S. Hosmer, circuit judge of Wayne county, to settle a bill of exceptions on an appeal.
    Submitted January 2, 1906.
    (Calendar No. 21,461.)
    Writ denied January 24, 1906.
    Tiehearing granted March 23, 1906;
    reargued June 12, 1906.
    Former opinion withdrawn and previous order affirmed July 3, 1906.
    ' Timothy E. Tarsney, for relator.

      Jasper G. Gates and Thomas A. E. Weadoclc, for respondent.
   Per Curiam.

Under an ordinance of the relator, the city of Detroit, the Co-Operative Telephone Company was granted permission to construct and maintain an electric plant in said city, and was granted the right to use the •conduits, poles, buildings, and other property of the city of Detroit at a proper maintenance rental. The ordinance ■contained many other provisions immaterial to mention.

The company constructed its plant. The public lighting commission of the city presented a bill for the use of the city’s poles, etc., for $410.95. The telephone company contended that under the ordinance it should pay a rate not exceeding one-half cent per duct foot, while the city claimed five cents. The city’s public lighting commission directed the removal of certain of the wires and cables of the telephone company, and thereupon the telephone company filed a bill of complaint to restrain such removal and determine the proper rental. The city and the lighting commission answered the bill. Subsequently, by stipulation, the bill of complaint was amended by adding several paragraphs thereto. To the amended bill no answer was made, but the court heard the. parties on an oral demurrer to the amended bill, and after argument filed an opinion holding many of the provisions of the ordinance void. Some proofs had meanwhile been taken as to the proper rental. A decree was entered on August 22d, by consent in open court of the solicitors for the telephone company, for the full amount claimed by the city. This amount was subsequently paid, and that part of the decree discharged.

The relator took no steps to secure an appeal until October 13th, when it made a motion for an extension of time to settle a case under the statute (Act No. 129, Pub. Acts 1905), which provides that, where the cause is tried, upon testimony taken in open court, either party may make and settle a case, following as far as practicable thé' making of cases for review at law, at such time and in such manner as is now provided by rule for the settlement of bills of exception in cases at law. The court denied the motion on October 18th, for the reason, among others, that more than 50 days had expired after the rendition of the decree before steps were taken to perfect an appeal.. No further action was taken by the relator until November 11th, when it gave notice of a settlement of the case' to be presented to the court on November 16th. The court refused to settle the case, and relator now seeks to compel settlement by the writ of mandamus from this court.

Upon examination of respondent’s return, it appears that this case is not before us upon pleadings and proofs, but upon an oral demurrer to the amended bill of complaint. The case therefore does not come within the statute,,and its construction is not properly before us. The construction of this statute in connection with Circuit Court Rule 47 is of considerable importance to the profession. We therefore choose to withhold a final determination as to the construction of the statute until a case is brought before us directly involving the question.

The court below was correct in. refusing to settle the case for the reason above stated, and the writ is therefore denied, without costs.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    WARREN v. PORTER.
    1. Negligence — Personal Injuries — Runaway Team —Concurring Causes — Pleading.
    The declaration in an action for injuries caused by a runaway team alleged that defendants were negligent in permitting a servant to drive a team on the streets without providing a suitable coupling pin to attach the evener to the-tongue of the wagon; in permitting a nervous and high-spirited team to be driven by a driver incompetent to handle them; in permitting such a team to be driven on a street where street cars passed; that the driver was negligent in driving one of the horses next the street car after being warned not to, by reason of which negligence the horses became frightened so that the driver lost control of them, and by reason of the defective coupling pin giving way they broke from the wagon and ran away, injuring plaintiff. Held, that of the several acts of negligence charged, but two were alleged as concurrent; namely, the allegation of negligence in driving that team of nervous, spirited horses near passing street cars, which caused them to become frightened and run away, breaking from the wagon by reason of the defective coupling pin.
    2. Same — Variance.
    In an action for personal injuries caused by a runaway team, proof was admitted as to the character of the team, as to the driver, and as to his unnecessarily driving one of the horses next to a street car after being warned by the regular driver not to do so. A defective coupling pin in the wagon was also claimed to have been a contributing cause of the runaway, but it appeared that the wagon belonged to another company to whom defendants were furnishing teams for the day, and the court held that defendants’ liability extended only to the negligent handling of the team by the driver, and that if the defective pin was the cause of the injury, plaintiff could not recover. Held, that defendants could not complain on the ground that the defective pin was alleged as a concurring cause of the accident, and, not being .proved, plaintiff was not entitled to recover.
    3. Same — Concurring Causes — Necessity of Proof.
    It is not necessary for a plaintiff to prove all the acts of negli. gence alleged. If any negligent act of defendants is charged, which resulted in the injury to plaintiff, he is entitled to recover, though the declaration charges other acts of defendants as negligent which are not proved, or which may not, in law, be negligent.
    4, Same — Evidence—Notice—Character of Team.
    In an action for personal injuries caused by a runaway team, evidence that the man who sold the horses to defendants told their employe, who did the buying, that the team had run. away before he got them, is admissible as against the objection that it is too remote.
    5. Same — Trial—Instructions.
    In an action for personal injuries caused by a runaway team, alleged to have run because of the negligence of defendants’ driver, and because of a defect in the wagon for which, as appeared from the evidence, defendants were not responsible, instructions examined, and held, to properly submit the issues of negligence and proximate cause to the jury.
    Error to Ingham; Wiest, J.
    Submitted July 21, 1905.
    (Docket No. 125.)
    Decided July 9, 1906.
    Case by William A. Warren, by next friend, against Edgar S. Porter and Lucien D. Driggs, copartners as the Lansing Spoke Company, for personal injuries. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Thomas, Gummins & Nichols, for appellants.

      Frank L. Dodge (Black & Beasoner, of counsel), for appellee.
   McAlvay, J.

Plaintiff, by his next friend, brought suit against defendants for damages for personal injuries received on account of negligence of defendants. Plaintiff, a boy eight years old, was riding on the rear of the wagon, by permission of the driver, along one of the streets of Lansing. A team of horses and driver of defendants was hauling lumber by the day for certain parties from a freight car at the railroad to the mill of said parties, using their wagons. On April 20, 1904, this team was driven during the forenoon by John Polhemus, a driver who had had charge of said team for the year they had been owned by defendants, and had driven themmost of that time. In the afternoon of that day this team, by direction of defendants’ foreman, was turned over to Arthur Bolton to be driven by him. Polhemus hitched up the team and turned it over to Bolton, telling him to keep the off horse away from the street car. Bolton, with another man, started from the car which they were unloading, with a load of about 2,000 feet of hemlock lumber, drove in from the north side, and turned into the street upon which the street car track was located, crossing to the south side of the track and driving west. Bolton sat upon the left side of the load, driving, when an electric car approached. The off horse was next to the car track. The driver stopped the team to let the car pass. This horse became very much afraid of the car. He shied and crowded against the other horse. In plunging and jumping the team became detached from the wagon, pulling the driver off from the load. They got away from the driver, and ran west. Coming from behind to the wagon on which plaintiff was riding, and going in the same direction, the horses ran one on each side of it, bringing the evener to which they were attached violently against the plaintiff, crushing one of his legs, which afterwards required amputation.

At the close of the' plaintiff’s case a motion was made by defendants for the direction of a verdict in their favor for the reasons: That plaintiff’s proofs did not tend to show negligence on the part of defendants, and that the declaration alleged defendants to have been negligent in four particulars, (1) that defendants knowingly employed an incompetent driver; (2) that the team was so afraid of street cars, fractious and unmanageable that it was negligence to permit them to be driven on streets where street cars were operated; (3) that the driver was careless in his manner of driving on this occasion; (4) the use of an insufficient and unsafe drawbolt: That no recovery could be had unless the four concurrent acts of negligence averred in the declaration were proved: That from the declaration and opening statement of plaintiff’s case it appeared the injury occurred by reason of the concurrence of negligent driving, and the negligent use of a weak and unsuitable drawbolt, and both these acts had not been established. This motion was denied, and defendants proceeded with their proofs. The same motion was made and denied at the close of the case. The case was submitted to the jury, and plaintiff recovered a substantial verdict. The errors relied upon are based upon the refusal of the court to grant this motion, the admission of evidence, refusal to give requests, and certain portions of the charge of the court.

The record shows that the claim of defendants in the argument of said motion raised the question as to whether these allegations are charges of concurrent acts of negligence dependent upon each other. Of the several acts of •negligence charged it is clear that but two of them can be claimed to have been alleged as concurrent. The others are separate and distinct allegations of negligence. The two referred to are the allegation of negligence in driving this team of nervous, spirited horses near passing street cars, which caused them to become frightened and run away, breaking from the wagon, to which they were hitched, by reason of a defective coupling pin. It will be well to consider what the declaration charged as negligence upon which recovery was predicated. It was in two counts, in which the allegations of the concurrent acts of negligence do not materially differ. The acts of negligence charged in the second count are as follows:

“ Yet, notwithstanding the premises, the defendants, •unmindful of the rights of the public, especially in this instance, to wit, the plaintiff, did negligently permit one of its employes, to wit, said Bolton, to drive said team of horses on the streets in the said city without first providing a suitable and proper pin for connecting the evener to the tongue of the wagon to which said team of horses were attached and driven on said 20th day of April, said pin and coupling then and there used being of a weak and unsuitable character and strength to draw a large load of lumber or other material, the pin making said coupling being one-half inch or less in diameter, so that the same readily gave way and permitted said team of horses to more readily escape and become detached from said wagon and run away, as in this instance, at the time' and place and on the date aforesaid; that said defendants were grossly negligent in permiting said team to be driven on Franklin avenue, it being one of the principal and most frequently traveled streets or avenues in said city, by said Bolton, who was inexperienced with said team and incapable and incompetent of driving -them with due and proper regard for the care and safety of the public, -to wit, the plaintiff; that defendants were negligent in permitting said team of horses to be driven where street cars pass and repass on said avenue at the time and place aforesaid; that the defendants, their servants, and employés were negligent and unmindful of their duty to the public and public safety in undertaking to drive said team of horses on said 20th day of April upon said avenue, where street cars were then and there being operated; that the said defendants by its employés, to wit, said Bolton, were grossly and recklessly negligent in attempting to drive said Rob horse on the off or inside and next to said street cars operated as aforesaid, by reason of which negligence both of said horses became and were greatly frightened, so that the driver, said Bolton, lost control of them, and by reason of said defective coupling pin giving way caused them to readily break away from the wagon to which they were hitched and run away as aforesaid. * * * ”

Proof was admitted as to the character of this team, as to the driver, Bolton, and how he handled the team after the caution by the regular driver; that he crossed the track and drove on the left-hand side with this horse, Rob, near the passing street car. It appeared in the case that this wagon, together with the coupling pin, belonged to the Rikerd Lumber Company, for which defendants’ team and driver were working that day hauling lumber, and the court held that the negligence as to the unsafe coupling pin was not the negligence of defendants, and could not be charged to them, and, if injury was shown to be caused by the claimed negligence in driving and handling the team by defendants’ driver, such negligence would be the proximate cause; that if the injury was not caused by such negligence merely, but was caused by the defective coupling pin, plaintiff could hot recover. This view of the trial judge, upon which the case was finally submitted to the jury, was one of which defendants cannot complain. There was no error in refusing to direct a verdict for defendants.

It was not necessary for plaintiff to prove all the acts of negligence alleged. If any negligent act of defendants is charged which resulted in the injury to plaintiff he is entitled to recover, although the declaration may have charged other acts of defendants as negligent which are not proven, or which may not in law be negligent. Smith v. Railroad Co., 100 Mich. 153.

There is but one assignment of error as to the admission of evidence, and it related to the testimony admitted relative to a statement made to Polhemus, who purchased the team for defendants, by the man who was selling, that they had run away once, as he had been informed by the former owner. It is objected to as too remote. It bore upon the character of the team and tended to show notice to the defendants of the care and caution necessary to be exercised in using them. We do not think this was error.

The remaining errors assigned relate to the refusal of the court to give certain charges as requested by defendants, and to portions of the charge as given. The second, fourth, and tenth requests to charge relate to the contention that plaintiff relied upon concurrent dependent acts of negligence which were not proved. This has already been considered in sustaining the action of the court in not directing a verdict for defendants. The charge of the court upon the questions of negligence in this case, so far as it is necessary to here give it, was as follows:

“Now for the plaintiff to recover in this case it is necessary for the proofs to show that the accident was caused by the negligence complained of, and that the negligence complained of resulted from a want of proper care on the part of the defendants.

“When you come to consider the evidence in the case upon the question of whether the negligence complained of has been established, you will consider all of the evidence, and you will draw reasonable inferences from the evidence. You will keep in mind that in order for the plaintiff to recover, you must be satisfied of those ele? ments necessary to establish his case as pointed out by the court, and that he ha(s established all of those elements by what is known in the law as a preponderance of the evidence. * * *

“Now, gentlemen, what caused this team to become unmanageable ? What caused it to get away from the driver ? Was it from fright caused by the street car because of the fact that the driver was on the south side of the track instead of upon the north side ? Was that the reason ? If it was, and you find further from the evidence that the driver knew or should have known from his acquaintance with the team that by driving them upon that side of the street they would become frightened and might get away from him, then actionable negligence has been shown on the part of the defendants. Was it by the fright caused by the street car or was it because of the giving way of the pin that held the evener to the tongue. If, as I said before it was the fright caused by the street car that caused them to run away and get beyond the control of the driver, then that would be negligence, provided the driver knew or should have known that he had no business to be upon that side of the street because the horse would be afraid of the cars and an ordinarily prudent man would not have gone where he did that day. .

“But if, on the other hand, the accident was not caused merely because of the fright, but was caused by the giving way of the pin that held the evener to the tongue, then, gentlemen of the jury, actionable negligence has not been shown against the defendants in this case. * * *

“If the accident was caused by some one of the acts of negligence alleged and the proof shows that the act was the sole cause that brought about the accident and that act was the result of defendants’ negligence, then the defendants are to he held responsible. The fact that causes are alleged for the accident that the proofs show did not cause it, does not defeat plaintiff’s right, if some one of the causes alleged has been proven to have caused it. If the acts proved did not alone cause the accident or you are unable to say from the evidence and the preponderance of it, that they did, then plaintiff’s case fails. The plaintiff must establish the fact that the accident was the result of the acts of negligence complained of or some one of them, •and if you are unable to find that the accident was caused by the acts complained of or some one of them for which -defendants are responsible then the plaintiff’s case fails.

‘ ‘ In employing this driver and for his acts the defendants were not bound to take such care as would preclude all possibility of accident; that is not the rule. No higher degree of care could be expected of the driver than would have been expected from the owners of the team, and had they themselves been in charge of it the rule would be and the rule is that they would be bound to exercise the care that an ordinarily prudent man would be expected to use under like circumstances. * * *

“At the. request of the plaintiff in this case I charge you as follows: The plaintiff claims to recover damages for an injury caused by the negligence of defendants’ servant, Arthur J. Bolton. I charge you that, if the accident in question was due to, and in consequence of, the failure of said Bolton to exercise ordinary care, then the plaintiff can recover damages done, as it is conceded that ■at the time of the accident in queston, Bolton was in the employment of the defendants and in driving the team at that time he was in this discharge of his duties as the defendants’ servant. * * *

“And you are not to forget the instruction I gave you ¡relating to the pin that holds the evener. * * *

“At the request of the defendants I charge you as follows : In this case the plaintiff alleges that he was injured because of certain negligent acts of defendants. The burden is upon the plaintiff of establishing by a preponderance of the evidence that the defendants were negligent in the particulars alleged in their declaration (or ¡some of them) and that such negligence was the proximate cause of the injury to plaintiff.

“The presumption is that the defendants exercised due ■care in the employment of the driver Bolton. In this re-'spect, as in all others, negligence must be proven by the plaintiff. Defendants are not required to introduce evidence to show carefulness in this respect until the plaintiff has introduced some proof tending to show lack of reasonable care.' In order to support an allegation of negligence in the employment of an incompetent or unskillful driver, plaintiffs would have to prove by a preponderance of the proof that the driver was not a reasonably competent and skillful driver, and that defendants knew such to be the case or by the exercise of reasonable care should have known it.”

Plaintiff claimed to recover solely on the ground of the negligence of defendants’ driver, Bolton, and upon this ■claim the case was submitted to the jury by the court with proper instructions as to what would constitute such negligence and that such negligence must be the proximate cause of the injury. The charge was given carefully and correctly stated the law of the case. The requests to charge which were not given were properly refused. They were either covered by the main charge or eliminated from the case by the fact that the negligence relied upon was that of the defendants’ driver.

The judgment is affirmed.

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


author: Ostrander, J.

text:
    JOHN DUNCAN LAND & MINING CO. v. RUSCH.

    1. Taxation — Tax Titles — Notice to Redeem — Sufficiency. When a description of land has been sold for the taxes of several years, and a single tax deed issued to a purchaser from the State, the notice to redeem required by section 140 of the tax law (Act No. 229, Pub. Acts 1897) is good if it specifies the amount paid for the deed.
    2. Same. If a tax deed contains several descriptions of land, sold for thd1 taxes of a single and the same year, the notice to redeem) should specify the amount required to redeem each. daA scription.
    3. Same — Real Estate — Assessment. oifT When one owner owns a section of land it is not necgssfcryLftb; divide and value it for taxation by 40-acre descriptions,-, j
    4. Same — Tax Titles — Notice to Redeem — Service— EI0IENOT- , imr-Jv./, -A A notice to redeem from a tax sale under section MO, o^ the .tax law (Act No. 229, Pub. Acts 1897) is sufficient \f an ^exáqV copy of the notice be served. 11 10.110010 Dill jo
    5. Same — Deceased ' Owner — Service on . ifx^ouSiR^.Su'EEi-'* CIENOY. • -IBXOOD blUs! 10 .fiOljr
    With respect to the service of the notice t'#§élKem'’l,ffb'm',ka->táxí sale, under section 140 of the tax law (Act No. 229,i Ruth (Acts! 1897), the fact of service and not jl|i%(r§inr$) ,ofi¡tb|tjfifl}Óer making the service controls, aud¥a,.^JJf5gr a^e^e^^j^ service was made upon the widow.'1 íwiñ teidi£íEÍ) ’firioíl

      6. Same — Bill to Se¿ Aside Service — Dismissal.
    A bill to set aside a notice to redeem and the service thereof cannot be dismissed on the ground that the notice gave the proper persons notice of defendant’s interest in the land, and that no one was deceived, where the objections to the notice are such that they might be presented upon application of defendant for a writ of assistance.
    7. Same — Tax Deed — Title of Purchaser.
    Tax deeds issued by the State, being expressly made subject to the relevant conditions imposed by Act No. 229, Pub. Acts 1897, as amended, convey no interest not liable to be divested by proceedings under that act, and a contention that the statute attempts to provide a forced transfer by one owning title to lands is untenable.
    Appeal from Gogebic; Haire, J.
    Submitted February 9, 1906.
    (Docket No. 128.)
    Decided July 9, 1906.
    Bill by the John Duncan Land & Mining Company against Albert H. Rusch to set aside a certain tax notice and the service thereof. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.
    The bill of complaint, filed January 16, 1905, by one claiming to be the owner of the original or government title to the N. £ of section 12, in town 47 N., of range 42 "W., prays that a certain tax notice and the service thereof be declared void and be set aside, and that defendant be required to convey to complainant said land upon payment of the amount he paid for a certain tax deed, plus 100 per cent., and plus the additional sum of $5 for each description of land contained in the deed, less the costs of this proceeding. There was a decree dismissing the bill of complaint.
    It appears that complainant had no title to the premises when the tax notices were served. The original record title was in Patrick A. O’Donald, Charles S. Draper, and Henry Gamble, and James B. Peters was holder and owner of a recorded tax deed. The tax notices were addressed to these persons respectively, and were served upon each of them, except Charles S. Draper. Mr. Draper was dead. By his will, duly probated, his wife, Sarah T. Draper, was made sole executrix and devisee, and on September 19, 1892, she had filed her approved bond, conditioned to pay all debts, etc. The notice was served on Mrs. Draper, who is described in the return made by the sheriff as “ wife of Charles S. Draper, deceased.”
    Complainant thereafter derived its title to the land by quitclaim deeds from the owners above named, including Mrs. Draper, but at what particular date or dates neither the record nor the briefs afford information. The notice is here set out:
    “ To Patrick A. O’Donald, Charles S. Draper and Henry Gamble, owners of, and James B. Peters, the holder of, tax title to the lands herein described:
    “Take notice, that sale has been lawfully made of the following described land for unpaid taxes thereon, and that the undersigned has title thereto under tax deed issued therefor, and that you are entitled to a reconveyance thereof at any time within six months after service upon you of this notice, upon payment to the undersigned of all sums paid upon such purchase, together with one hundred per cent, additional thereto, and the fees of the sheriff for the service or cost of publication of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum of five dollars for each description, without other additional costs or charges. If payment as aforesaid is not made, the undersigned will institute proceedings for possession of the land.

      “ Gogebic County, Michigan.
    “Taxes for years 1889, 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, and 1901.
    “Yours respectfully,
    “Albert H. Rusch.
    “ Place of business: Reedsville, Wisconsin.
    “Dated Oct. 18, 1902.”
    It appears that defendant has a tax deed, dated August 25, 1902, conveying, by 40-acre descriptions, the N. E. i, and the N. E. £ of the N. W. i of the section, for the taxes of 1895, 1896, 1897, and 1898, for a consideration of $150.40, and a deed of same date conveying by 40-acre descriptions the remainder of the N. of section 12 and the S. E. £ of the N. W. i of section 18, same town and range, for a consideration of $120.32, for taxes of the same years. In the bill of complaint it is stated that defendant holds a certain tax deed conveying said premises for the delinquent taxes of 1889 to 1901, both inclusive, for which he paid $648.74 “as your orator is informed and believes,”' and in the answer this allegation of the bill is admitted. The stipulated facts, however, are that at the time of the service of the notice defendant “ had a tax certificate for the purchase of said lands for the taxes of the year 1899, and later received two deeds, each of which, for one consideration, conveyed separate and distinct 160 acres of said described lands, and for the taxes of the years 1890 and 1899 said defendant had tax certificates for the purchase of said described land, and subsequently received a separate and distinct deed for each 40 acres of said, described lands, for. one consideration, for the years of taxes as aforesaid. And that defendant paid the taxes for the other years, as stated in the tax notices, as a condition of purchase.”
    The land was listed for taxation in years 1895 to 1898, inclusive, in 40-acre descriptions. It is charged in the bill, and admitted by the answer, that the sheriff served the notice on Gamble and on Mrs. Draper by delivering a copy thereof.

      Three objections to the sufficiency and effect of the tax notices are made in the brief for complainant:
    (1) The amount of the taxes should have been specified by 40-acre descriptions. (2) Copy of the tax notice, instead of an original notice, was served. (3) The service upon Mrs. Draper was ineffective; the statute providing for service, in such cases, upon the executor or administrator of the deceased owner.

      J. F. Carey, for complainant.

      O. H. Feed, for defendant.

       Rehearing denied July 24, 1906.

   Ostrander, J.

(after stating the facts). 1. It has been decided (Williams v. Olson, 141 Mich. 580) that, when a description of land has been sold for taxes of several years, and a single tax deed issued to a purchaser from the State, the notice is good if it specifies the amount paid for the deed. We have held, also, that, if the tax deed contains several descriptions of land, sold for the taxes of a single and the same year, the notice should specify the amount required to redeem each description. Jackson v. Mason, 143 Mich. 355. The statute (section 141, general tax law), expressly provides that the person holding certain interests in the land, as grantees, mortgagees, shall be entitled to a reconveyance “ of such interests in such lands so held.” The usual method of assessment of unoccupied lands, outside of plats, is by a government description corresponding to the owner’s holdings. It is not necessary, when one owner owns a section of land, to divide and to value it for taxation by 40-acre descriptions. It is a fair construction of the language of section 140 of the tax law, and one which accords with the purpose of the law, which requires that the notices given shall indicate the sum required to be paid to obtain a reconveyance of any description of land in the tax deed, whether sold and held for the taxes of one or for those of several years. This the notice here in question did not do. In other respects, the notice seems designed to convey as little intelligence as possible. It speaks of a single deed, and the meaning to be gathered from it is that a single deed conveying each of the eight 40-acre descriptions was issued for the taxes of 13 years. It appears that, at the time the notice was served, defendant did not have deeds of portions of the lands for several of the years.

2. The statute requires service of a notice. The form of the notice is set out in the statute. The purpose of the notice is to direct the attention of the persons upon whom it is served to the fact that the land has been sold, and that a repurchase of it may be made under conditions. We are not prepared to say that the legislature, in the use of the words “a notice” in one part of the section, and “a copy of said notice” in another part of the section, meant to distinguish between a paper signed by the owner of the tax titles and a copy of that paper which conveyed exactly the same intelligence. The purpose of the act is accomplished when the necessary knowledge is acquired by the persons upon whom notice is required to be served. What the statute aims to have communicated to owners of land is knowledge of the facts which the form of the notice is calculated to afford them. This knowledge is conveyed as well by a copy as by an original, and we are of opinion that a construction of the statute which would require that an original notice be in all cases served would be overnice, and we shall decline to so hold. The service by copy was a sufficient- service.

3. The notice in the case at bar was addressed to the owners, by name, and among those named was Charles S. Draper. This corresponded with the record. The notice was sent to the sheriff of Saginaw county and was served, by a copy, upon Mrs. Draper, the widow. It appears that she was the proper person to whom notice should have been given; she being in fact the executor of the last will and testament of her deceased husband. The return of the officer does not indicate this fact. The question presented is whether the court shall accept the return of the officer which does not sufficiently, for the purpose of the statute, describe the person served, or the fact, made to appear, that the proper person was served. I think, for reasons set out in Williams v. Olson, supra, that the fact should control.

In the brief of counsel for defendant, it is urged that the averments of the bill of complaint show, affirmatively, that the proper persons had notice of the defendant’s interest in the land; that more than six months elapsed after service of the notices before the bill was filed, and, as it'does not appear that any one interested was deceived or injured, the court below was right in dismissing the bill of complaint. To this it may be replied that, upon application by defendant for his writ of assistance, the objections now made to the proceedings could be presented. Nor can it be properly said that the objections to the form of the notice are merely technical.

Defendant insists, also, that the statute provisions which have been considered are not constitutional because not within the title of the act, and because in effect they provide for a forced transfer by one owning a title to lands. Yarious possible consequences of enforcement of the law are pointed out and claimed to amount to limitations of constitutional rights. It will not be profitable to follow, here, the discussion undertaken. The deeds which the defendant received from the State are expressly made subject to the relevant conditions imposed by Act No. 229, Pub. Acts 1897, as amended. Whatever the title which the State held, it sold to defendant an interest in the lands which was liable to be divested.

The decree below is reversed. A decree will be entered in this court in conformity with the prayer of the bill, upon payment to defendant of the amount tendered in the bill of complaint. It appearing that the complainant, before the filing of the bill, offered to pay to defendant the statutory amount to obtain reconveyance, complainant will recover costs of both courts.

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


author: Grant, J. Montgomery, J.

text:
    RICHARDSON LUMBER CO. v. JASSPON.
    Taxation — Tax Titles — Notice to Redeem — Service — Copy — Sufficiency.
    A notice to redeem from a tax sale, under section 140 of the tax law (Act No. 229, Pub. Acts 1897), is sufficient' if an exact copy of the notice be served. John Duncan Land & Mining Co. v. Busch, ante, 1, followed.
    Appeal from Cheboygan; Shepherd, J.
    Submitted October 19, 1905.
    (Docket No. 86.)
    Decided July 9, 1906.
    Bill by the Richardson Lumber Company against Anna Jasspon and Frank W. Gilchrist to quiet title to land. From the decree rendered, complainant appeals.
    Affirmed.
    Complainant, by mesne conveyances from the government, became the owner of the original title to the lands here in dispute. Its conveyances were obtained, one in November, 1901, and the other in January, 1902. Defendant Jasspon in August, 1899, purchased the lands from the State for delinquent taxes for the years 1882 to 1894, inclusive. Her deeds were duly recorded. Defendant Gilchrist has an interest in the land obtained from the defendant Jasspon, acquired after the expiration of the six months specified in the notice. Shortly after obtaining these deeds she caused notice to be served under Act No. 229, Pub. Acts 1897, amending section 140 of the general tax law. This act provides that:
    “No writ of assistance * * * shall be issued until six months after there -shall have been filed with the county clerk * * * a return by the sheriff of said county, showing that he has made personal service * * * of a notice; * * * or (in case of the nonresidence of the grantee, etc.) he shall send to such grantee, etc., a copy of said notice by registered letter, if the address of such grantee, etc., be known to him.”
    The then owners of the land were residents of the State, and the sheriff made return of service upon them, that he has ‘ ‘ served the within and foregoing notice * * * by personally delivering to * * * a true copy of said notice.” In May, 1902, complainant applied to the auditor general for certificates of error against said sales. The application was denied. In September, 1902, complainant filed petitions to open the decrees under which the sales were made. These petitions were dismissed in January, 1903, and no appeal taken therefrom. On- January 17, 1903, complainant filed a petition for leave to'file a bill of review in said proceedings. To this petition answers were filed, but whether such petition has been heard and decided by the court the record does not show. Soon thereafter, the exact date not appearing, complainant filed this bill to quiet title, alleging the invalidity of the defendants’ tax title. Issue was duly joined, proofs taken, and the bill dismissed.

      Henry K. Gustin, for complainant.

      I. 8. Canfield, for defendants.
   Grant, J.

(after stating the facts). Is the notice, served upon the owner of the land in this case, in compliance with Act No. 229, Pub. Acts 1897, and valid ? This is the sole question in the case. Counsel for complainant contends that the notice is void because the return of the sheriff shows that a copy, and not the original notice, was served. It is further contended that this notice is a step in the proceedings to divest the owners of land of their titles, and therefore must be strictly followed. Counsel insists that this notice is similar to, and must be governed by, those cases wherein notices have been held insufficient to confer jurisdiction in garnishment, attachment, and drain cases, citing Campan v. Charbeneau, 105 Mich. 422; Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18; Millar v. Babcock, 29 Mich. 526; Buckley v. Lowry, 2 Mich. 418; King v. Harrington, 14 Mich. 532; Colton v. Rupert, 60 Mich. 318. All these cases involve proceedings before judgment necessary to be taken or notices to be given in order to confer jurisdiction upon'the courts or the drain commissioner.

In Campau v. Charbeneau the petitioner, a resident of Detroit, owned lands in Macomb county, through which the respondent, the drain commissioner, had taken proceedings to establish a drain. No personal service was made upon the petitioner, who was the only one whose land Was to be taken, but a published notice in Macomb county, which was not addressed to the petitioner, was relied upon as sufficient. The statute required the notice to be addressed to the owner. It was held that the notice was void.

In Hannah & Lay Mercantile Co. v. Mosser the provision of the statute requiring notice was wholly ignored.

In Millar v. Babcock the statute required the publication of a notice which was not given, or published, in consequence of which the court lost jurisdiction.

In Buckley v. Lowry a writ of attachment was held void because the statutory affidavit was not annexed thereto.

King v. Harrington is a similar case.

In Colton v. Rupert an affidavit-to bring in the defendant, who was absent from the State, was held void, because it did not contain the statutory requirements.

These cases are based upon the well-known principle-that such proceedings are in derogation of the common law, are harsh, and must therefore be strictly construed and followed. In this case the proceedings had been taken in court to determine the title held by the defendants. The owners of the land had an opportunity to appear in that court and set up any defects in the proceedings. They neglected to do so. As this court has often said, every landowner knows that his lands are subject to taxation to support the government. It is his duty to watch the proceedings, and, if he claims fatal defects therein, to appear before the several tribunals to obtain redress. See Commissioner of State Land Office v. Auditor General, 131 Mich. 147. In many, and probably most, cases the failure to pay is intentional. It is well known that large areas of timber lands are intentionally abandoned by the owners after the timber has been removed. But whether the failure to pay, or to seek redress in the ways provided by law before the decree, results from intention or neglect or other cause, is immaterial. The validity of the tax titles here in dispute has been established by decree of the court. The notice required by Act No. 229 is one of favor to the original owner, by which he is permitted to still save his land by paying twice the amount of the tax and certain other charges. It is not a harsh proceeding, and should not, in my opinion, be subject to the same strict rules which are made to govern the harsh proceedings by attachment, garnishment, and condemnation of land in drain and similar proceedings. It is not a notice required in the course of proceedings to divest the owner of his title. It is a favor granted to him after he has been divested of his title, by which his title may be restored to him.

The theory of the tax law and the status of the title, when these notices are given, are important to consider. It is the theory of the law to give the landowner every opportunity before the assessor, the boards of review, and the courts, to appear and show why his assessment is unjust, or for any good reasbn is void. If he is dissatisfied with the decision of the chancery court, he may appeal to the court of last resort. The law thus furnishes him every opportunity to secure and protect his rights. The name given by courts or layman to the right conferred by section 140 is of no consequence. "W e spoke of it in Pike v. Richardson, 136 Mich. 414, as a statute providing for redemption, and to be liberally construed in favor of the redemptioner. The statute fixes the status of the title. The land of complainant had been duly assessed, and it neglected to pay its taxes, or to take any steps provided by the law to test the validity of the tax. Due proceedings in chancery were had, the tax lien foreclosed, its property sold, and the title conveyed to the defendant Jasspon.

The amendment to the general tax law (section 140) expressly recognizes that the proceedings to foreclose, if regular, have conveyed the title to the tax purchaser. The language of this section is:

“No writ of assistance * * * for the possession of any land the title to which has been obtained under and in pursuance of any tax sale hereafter made,” etc.

The notice to be served is provided by the statute, and requires the tax title owner to state that a sale of said land has been lawfully made, and that the undersigned has title thereto under tax deed issued therefor, and that you are entitled to a reconveyance,” etc. Section 141, a part of the same act, also provides that when the original owner has paid he shall be entitled to “a re-conveyance” of. the land. This language is consistent only with the theory that the title has passed out of the original owner into the owner of the tax title, and that the former is entitled, in the language of the statute, to a re-conveyance, if he chooses to pay twice the amount of the tax and certain other charges.

Whether you call the notice served the original or a copy is, I think, of little significance. The record shows the notice which in form is in strict compliance with the statute. The sheriff returns that he served it by personally delivering a true copy thereof. In Williams v. Olson, 141 Mich. 580, the return of the sheriff showed that he served “ a notice of which the notice hereto attached is an exact duplicate, by delivering,” etc. The notice was held valid. What difference is there between an “exact duplicate” and an “ exact copy ? ” The landowner had a notice just as effectual as though he had been served with what is called the “ original.” See Bradley v. Williams, 139 Mich. &30; John Duncan Land & Mining Co. v. Busch, ante, 1.

I think the decree should be affirmed, with eosts.

Hooker, J.,.concurred with Grant, J.

Montgomery, J.

I concur in holding this ease ruled by John Duncan Land & Mining Co. v. Busch, ante, 1.

McAlvay and Blair, JJ., concurred with, Montgomery, J.


author: Grant, J. Blair, J. Montgomery, J.

text:
    HEBBLETHWAITE v. DETROIT UNITED RAILWAY.

    Street Railroads — Personal Injuries — Street Crossings — Contributory Negligence — Failure, to Stop, Look, and Listen.
    Where plaintiff, having stopped his horse and looked for an approaching street car at a point where he could see 75 to 100 feet up the track, and seeing no car, proceeds to cross the track, he is not guilty of contributory negligence, asa matter of law, in failing to again stop his horse to look for an approaching car, after he bias passed a projecting awning on an adjoining store building which obstructed his view, and when his horse’s feet would be within four feet of the rail and the horse's head within two feet of the track, and on a line with the projecting car body.
    Grant and Blair, JJ., dissenting.
    Error to Wayne; Rohnert, J.
    Submitted January 9, 1906.
    (Docket No. 41.)
    Decided July 9, 1906.
    Case by John H. Hebblethwaite against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.
    Hastings and Mullett streets, in the city of Detroit, cross each other at right angles; Hastings running north and south. Hastings street is 50 feet wide. Mullett, as appears from the plat in the record, is a little narrower. Defendant’s track' runs in the center of Hastings street. At the northeast corner of the two streets is a brick store, built close to the street lines. It has a window on Mullett street at the corner. On Hastings street in front of the store is an awning extending 5.8 feet beyond the lot line and 6.9 feet above the sidewalk. Attached to the lower edge of the awning is a flap 1 foot wide. When the awning is raised, one approaching Hastings street on Mullett street from the east can look through the windows of the store to the north on Hastings street. The distance from the east rail of the track to the outer edge of the awning is 16.7 feet.
    Plaintiff was riding westerly on Mullett street, on the north half, but near the center. He was driving a light delivery wagon drawn by one horse. The awning was down. He testified that he stopped as he approached and entered the line of Hastings street, leaned forward, looked .and listened, neither saw nor heard a car, and proceeded to drive across; that he first saw the approaching car when about 75 feet distant; that the forefeet of his horse were then on the west rail. He then hurried his horse across, but the roof of the car struck the roof of his wagon about two feet from the hind end. He was thrown from his wagon and injured. He alleges four grounds of negligence: (1) Failure to sound the gong; (a) an unreasonably high rate of speed; (3) the dangerous nature of the crossing; (4) the inattention of the motorman just before the collision. His declaration alleges that he “checked his horse so that the same came almost to a stop.” Some of his witnesses testified that he did not stop, but simply slowed down, while one testified that he did not slow up, but “jogged along at his usual pace.”
    The judge found as a fact, and so stated to the jury, that, according to plaintiff’s own testimony, the horse’s head when he stopped was 4 feet from the east rail, and in that position plaintiff could look up Hastings street “as far as his eyesight would reach.” He testified, however, that from where he stopped he could look up the street only about 75 or 100 feet. The judge also found that, when approximately 19 feet from the east rail, plaintiff had a view of 125 feet up the street. The court therefore instructed the jury:
    “ The plaintiff either stopped at a place where he could have seen away up the street, or else he stopped at a place where he could not see as the law requires; and there was sufficient space between the rail and the place where he could see and be safe for him to see and act cautiously, as a prudent man should act in crossing- that track.”
    The defendant gave no testimony, and the court directed a verdict upon the case made by the plaintiff.

      David E. Heineman, for appellant.

      Oorliss, Leete & Joslyn and Paul B. Moody, for appellee.

       Rehearing denied December 17, 1906.

   Grant, J.

(after stating the facts). The reciprocal rights and duties of travelers at the intersection of streets has been frequently discussed in this court. It is the duty of the motorman to watch, and, so far as practicable, keep his car under control. On the other hand, it is the duty of the traveler to be alert. He is chargeable with notice that the street cars must travel at a higher rate of speed than, ordinary vehicles; that they are heavy and cannot stop as soon as other vehicles; that they cannot turn aside; and that the only method of avoiding collisions is to stop. This court, speaking through my Brother Montgomery, said:

“It is incumbent upon the driver of a vehicle before attempting to turn across the track to take proper means of ascertaining whether the way is clear, and this is especially true of the attempt to turn across the track in the middle of a block, or at any place other than a regular crossing.” Fritz v. Railway Co., 105 Mich. 50.

See, also, Hilts v. Foote, 125 Mich. 241; McGee v. Railway Co., 102 Mich. 107, 112 (26 L. R. A. 300).

Plaintiff was familiar with the situation and the danger. He had driven daily for some time over this place, and without any inconvenience could have informed himself of the approach of the car. If he could not from the place where he stopped see the car, he knew that the motorman- could not see him. If he stopped with his horse’s head a few feet from the track and the motorman saw the horse, he (the motorman) would have been justified in acting upon the belief that the horse would not be driven across until his car had passed.

Plaintiff produced two witnesses as to the speed of the car. One frankly testified that he could not tell the speed, but that the car was not going particularly fast. The other testified that it was going pretty fast, about 20 miles an hour. This witness was riding a bicycle. The street was rough. He was going in the opposite direction to the car. He met and passed it at the alley midway of the block. When he got to the next street, he heard a crash. It is thus clearly demonstrated that he on his bicycle was traveling at the same rate of speed as was the car. He testified that he could not tell how fast he was riding, but that it would be impossible for him to ride “ on that rough pavement to exceed 10 miles an hour.” Under this testimony there was no evidence that the car was going at an unlawful rate of speed.

No negligence can be imputed to the defendant on account of the dangerous nature of the crossing. It is only made dangerous by the narrow streets and the erection of buildings upon the street lines, so that the traveler must approach within a short distance from the track before he 'can look along Hastings street and see approaching cars. Hundreds of such situations occur in the streets of cities. The situation, which is lawful, imposes greater care and watchfulness upon travelers in controlling vehicles as well as street cars. At the intersections of streets where travel is congested policemen are frequently stationed to control the passage of vehicles and pedestrians. Where the travel is not congested, every traveler and every manager and driver of vehicles, whether drawn by horses or propelled by electricity, or other motive power, must exercise due care and watchfulness. The degree of care and watchfulness must depend upon the conditions surrounding each place. There was ample room for plaintiff in this case to stop and look before placing himself in a place of danger by attempting to cross the track. Had he done so, the accident would not have happened. It was his duty to do so. We think the case is ruled by Merritt v. Foote, 128 Mich. 367; Doherty v. Railway Co., 118 Mich. 209; and Hilts v. Foote, supra. See, also, Borsehall v. Railway, 115 Mich. 473.

It is, however, claimed that the motorman at the time the plaintiff was upon the track was for the moment inattentive and looking in another direction. If this were so, that would not excuse the act of the plaintiff in attempting to cross the track in front of the approaching car. Neither would the failure of the motorman to sound the gong excuse such act. In such case the negligent act of each would have contributed to the accident, and neither party, if injured, could recover against the other.

Judgment should be affirmed.

Blair, J.

I concur in the result reached by Mr. Justice Grant. As the majority are of a contrary opinion, I do not express my own views at length.

Montgomery, J.

In Ryan v. Railway Co., 123 Mich. 597, the plaintiff before crossing the track looked in the direction from which the car approached, and saw no car, and thought that was far enough to look to make the attempt to cross safe. In an opinion in which the distinction between ¡steam railroads and electric street railways, noted in Garrity v. Railway Co., 112 Mich. 369 ( 37 L. R. A. 529), was again stated, it was held that the question of plaintiff’s negligence was for the jury. That case should "rule this case. See Booth on Street Railway Law, § 304.

The judgment should be reversed, and a new trial 'ordered.

Carpenter, C. J., and McAlvay, Ostrander, Hooker, and Moore, JJ., concurred with Montgomery, J.


text:
    HOOCK v. SLOMAN.
    1. Equity — Chancery Practice— Witnesses — Examination in Open Court — Notice—Necessity.
    Under section 10188, 3 Comp. Laws, notice to take proofs in open court in chancery cases in Wayne county is necessary; section 1 of Act No. 31, Pub. Acts 1903, dispensing with notices of trial in that county having no application to the matter of taking proofs.
    •3. Same — Statutes—Application.
    Section 491, 1 Comp. Laws, refers to cases in proceedings against absent, concealed, or nonresident defendants, and cannot be construed to authorize taking proofs in open court without notice in a foreclosure suit where defendant is in court.
    ;3. Same — Answer—Denial—Necessity.
    Where the answer to a foreclosure bill neither admits nor denies the allegations of the bill, but leaves the complainant to his proofs, and does not aver want of sufficient knowledge to form a belief, the averments of the bill as to the amount due on the debt are admitted, and complainant is entitled to a decree for that amount, with interest, without proofs; but sums paid in taxes after the filing of the bill require proof to support their allowance in the decree.
    Appeal from Wayne; Brooke, J.
    Submitted January 30, 1906.
    (Docket No. 70.)
    Decided July 9, 1906.
    Bill by Henry Hoock against Adolpb Sloman and Lottie T. Sloman for the foreclosure of a mortgage. From a decree for complainant, defendants appeal.
    Affirmed in part, and remanded.

      Jay Fuller, for complainant.

      A. C. Patterson (Sloman & Sloman, of counsel), for defendants.
   McAlvay, J.

Complainant filed his bill for the foreclosure of a mortgage given by defendants upon certain real estate situated in Wayne county. Defendants filed a joint and several answer, neither admitting nor denying the allegations of the bill of complaint, but leaving complainant to his proofs. To this answer a replication was filed. No notice was given under the statute for an examination of witnesses in open court. The cause came on to be heard March 5,1904. The proofs were taken in open, court, defendants objecting thereto on the grounds that the case stood for hearing on pleadings alone, as no demand for an examination of witnesses in open court had been made or filed therein. The court overruled the objection, and proceeded to hear the case. The mortgage and note were introduced in evidence, and the solicitor for complainant was sworn and testified as to the balance due on the same, and as to State, county, and village taxes assessed against the mortgaged premises and paid by complainant, showing a balance of #21,071.87 due complainant on the note and mortgage, with interest thereon, including’ taxes paid and interest. A decree was granted for this amount.

Defendants upon their appeal to this court raise but one question:

“Did the. court have authority to hear this case on proofs taken in open court, when no demand had been made for such an examination of witnesses in open court in accordance with the statute ? ” •

The statute upon which defendants rely reads as follows :

“ Either party to a cause in chancery shall have a right to an examination of all the witnesses in open court, as in a suit at law if within ten days after the cause is at issue he gives notice in writing to the opposite party of his intention to claim such right, in which case no examination of witnesses shall be had before a circuit court commissioner ; but the cause shall be heard in its course on the calendar by examination of witnesses in open court, unless the court, on cause shown, otherwise direct.” Section 10188, 8 Comp. Laws.

It is claimed by complainant that no notice is necessary under this statute in Wayne county in order to examine -witnesses in chancery cases in open court by reason of Act No. 31, Pub. Acts 1908, regulating the practice in said •county, and bases such claim upon section 1 of said act:

“Hereafter whenever a cause shall be at issue in the circuit court for the county of Wayne either at law or in chancery, either party or the attorney or solicitor for •either party, may request the clerk of the said court to place the same upon a list to be by him prepared, of causes ready for trial, and said cause shall then be in -condition, after the lapse of one week, to be tried as the judges of said court may from time to time direct.”

To hold with complainant in this contention it will be ■ necessary to find that actually or by implication the general statute providing how the right to examine witnesses in open court in chancery cases may be obtained has been repealed by the above section of the act quoted. We do not so construe it, and find nothing in the act indicating .an intention of relieving a party desiring to examine witnesses in open court as in a suit at law from giving the -other party notice of his intention to claim his statutory Tight. This right is one which had been created by the statute and the provisions of the statute must be complied with. Chancery Bule 14, subd. b, provides as to the notice of trial and hearing in case either party shall elect to Bave the testimony taken in open court under the statute. 'Chancery Buie 14, subd. c, provides:

“ If neither party so elects the testimony shall without •f urther order be taken before a circuit court commissioner. ”

As to the notice of trial and hearing provided for in subdivision b, Act No. 31, Pub. Acts 1903, will control; but -as to taking proofs the statute is in force.

Complainant also insists that the court, under section -491, 1 Comp. Laws, had the right to examine complainant or his solicitor in open court as to payments made that should be credited defendants, or refer the case to a master to take such proofs. The section cited refers to cases in proceedings against absent, concealed, or nonresident -defendants, and is not applicable to this case.

It is appreciated by the court that defendants’ case presents no equity, and is purely technical. Chancery Rule' 10, subd. d, provides: ■

“ Every answer shall contain an explicit admission or denial of each allegation in the bill of complaint as to which the defendant has knowledge or belief. But as to-matters charged in the bill as to which the defendant avers he has no knowledge sufficient to form a belief he shall not be required to admit or deny the same, but shall state his want of such knowledge. And every material allegation in the bill to which the defendant shall not make answer shall be taken as admitted by the de fend-ant.”

Construing defendants’ answer according to this rule,, it must be taken as an admission of every material allegation in the bill of complaint. There is no explicit admission or denial of any allegation of the bill. There is no-statement of want of knowledge as to matters charged in the bill. The answer was in fact a confession that the amount of $20,021.22 as set forth in the bill of complaint was due and unpaid. The only proof taken was a computation of the amount of the principal and interest due to-the date of decree, and of taxes paid by complainant, with interest thereon. The computation of the amount' due upon the note and the mortgage could have been made-by the court. As to the taxes paid it was necessary to take proofs. The amount was paid after the filing of the bill of complaint, and consequently was not included in the admissions of defendants, and we think would come within the statute requiring notice, if proof thereof was. to be taken in open court.

The decree of the circuit court is affirmed as to the amount of principal and interest due upon the note and mortgage, and the cause is remanded, with permission to complainant to take proofs before a commissioner as to the amount of taxes with interest thereon paid by complainant, according to the rule in such case provided. No-costs are awarded in this court.

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


author: Hooker, J. Ostrander, J.

text:
    GRIFFIN v. JACKSON.
    1. Taxation — Tax Deeds — Issuance — Time — Redemption — Validity.
    A tax deed issued before the expiration of the period for redemption is void, and is not validated by the passing of the period without offer to redeem.
    2. Same — Tax Titles — Notice to Redeem — Persons Entitled.
    A tax title purchaser is not required to serve the notice to* redeem, provided for by section 140 of the tax law, on the grantee in a prior void tax deed, and the original owner is. not entitled, when sued in ejectment, to take advantage of plaintiff’s failure so to do.
    Error to Saginaw; Gage, J.
    Submitted February 2„ 1906.
    (Docket No. 97.)
    Decided July 9, 1906.
    Ejectment by Albert A. Griffin against Andrew E. Jackson and another. There was judgment for plaintiff on a verdict directed by the court, and defendant Jackson brings error.
    Affirmed.

      W. E. Qrane (Gf. W. Davis, of counsel), for appellant.

      Albert McOlatchey, for appellee.
   Hooker, J.

The plaintiff brought, ejectment, claiming title in fee to the E. fractional % of N. W. fractional N section 6, township 11 N., range 3 E., 87.44 acres of land.. The defendant has appealed from an adverse judgment; upon a directed verdict. There are three alleged titles involved in this case, which, stated chronologically, are as. follows:

First. The original title. This stood in Andrew Jackson when this action was begun, as grantee of Timothy W. Jackson, who was then dead. Andrew Jackson’s title was taken subject to a land contract previously given by Timothy Jackson to Dennie Beebe.

Second. Allen’s tax title. The land was regularly sold at tax sales, and bid in to the State, for the taxes for the following years, viz.: 1891, 1892, 1893, and 1894, covering the entire premises, and 1895, 1896, 1897, covering the north portion. The State’s title was offered for sale at the delinquent tax sale of 1901, and bid in by Allen. He obtained a tax deed for the same on August 1, 1901, from the auditor general. In October, 1904, he quitclaimed his interest to Paxson, as trustee and committee of Timothy W. Jackson, an incompetent.

Third. Plaintiff’s title. This,is based on taxes assessed in 1889 and 1890, for which all of the land was bid in to the State,, and so held for several years. These sales were afterward canceled, prior to the time of Allen’s purchase, but the time and reason for cancellation, and at whose instigation it was done, do not appear. The land was after-wards readvertised, being included in a later petition, the year not stated, but doubtless of the year 1902. A decree was entered April 12, 1902, and the lands were bid in to the State in May of that year. A deed issued to him July 1, 1903, reciting his purchase from the auditor general as having occurred on August 2, 1902.

The meritorious questions seem to be: (1) Whether Allen’s title was such as to be available against the plaintiff in ejectment; (2) whether plaintiff made the requisite proof of the service of statutory notice. The plaintiff’s deed is based upon the latest decree, though it includes the earlier tax. So far as the record shows, the proceedings and the deed are regular. Defendant seeks to show an outstanding title in Allen or Paxson, as trustee under the quitclaim deed from Allen. To avail anything the deed to Allen must (1) have conveyed the title of the State; (2) it must be superior to the later deed.

That Allen’s deed was issued several months before the period of redemption expired is shown by the case of Monaghan v. Auditor General, 136 Mich. 247. It was therefore void when issued. It may be said that the period of redemption has long since expired, and that it should be treated as having conveyed the State’s interest, and therefore conclusive, so long as the State does not question it. We are cited to no authority supporting such a view, ■and do not discover that appellee’s counsel in any way allude to or attempt to answer plaintiff’s brief upon this question. We doubt the propriety of such a holding. ‘The auditor general acted under a statute without ány discretion. His act, a ministerial one, was unauthorized, because premature. To say that the deed would become valid by lapse of time would be to open the door to parol proof on the question of attempts to redeem, when, a deed having issued, the auditor general would not be likely to permit redemption. The courts are not hasty in cutting off the rights of landowners whose lands have been sold for taxes, and we are of the opinion that this question ■should be governed by the usual policy. Allen’s deed being void, it cannot be used to show title in another, thereby ■defeating plaintiff’s claim. If it be said that a deed can now be issued, it is without force, as ejectment turns on legal, not equitable, titles. Prior to the time that Allen bid in the premises, the sale for taxes for 1889 and 1890 ■against the premises had been canceled. The land was xeadvertised for such years, and plaintiff’s title grows out of a sale pursuant to such readvertisement. If it is paramount to a prior sale for the later tax, the Allen title becomes unimportant. Such seems to be the rule laid down in the cases of Auditor General v. Patterson, 122 Mich. 39, and Auditor General v. Newman, 135 Mich. 288; Auditor General v. Sherman, 136 Mich. 161; Schulte v. Auditor General, 131 Mich. 676. Nor can it be held that the plaintiff’s title is invalid, because he did not purchase the title covered by Allén’s void deed. The State had sold said titles to Allen. That appears to have been a valid transaction, and after expiration of the right of redemption Allen became entitled to a deed. There was nothing due to the State upon these titles, and plaintiff was therefore under no obligation to pay such taxes, even if Allen did take a deed prematurely. The case of Auditor General v. Clifford, 148 Mich. 626, is distinguishable; the cancellation in that case having followed the purchase, while in this case it preceded Allen’s purchase. The distinction is made in that case.

This makes it unnecessary to discuss a number of questions raised, especially that of priority of deeds, and constrains us to say that upon the face of the record plaintiff’s-tax deed stands as a valid paper. It would seem to follow that he should prevail in this case if he has served the proper notice upon all persons entitled to the same. This must depend upon our construction of the statute. The-plaintiff caused a. statutory notice to be served upon Andrew Jackson September 1, 1903. No other person was served with notice, and Andrew Jackson only is defending this action; Beebe having permitted judgment by default. It is apparent, therefore, that Jackson, having full notice, is, so far as this point is concerned, relying upon a technicality. He had seasonable notice and might have protected himself, had he cared to do so. At the time-Griffin purchased the State’s title at delinquent sale, Act-No. 204, Pub. Acts 1899, was in force. Titles sold to Allen for taxes were outstanding, although the deed was-void on its face. Assuming that Allen had not parted, with his interest, he (Allen) was not entitled to notice under that law. But before Griffin obtained a deed the law was amended, requiring notice to the “grantee or grantees, under the last recorded deed issued by the auditor general” (see Act No. 236, Pub. Acts 1903), and it is contended that this law applies. Griffin’s purchase gave him contract relations with the State. He purchased land that had been bid in to the State, upon which redemption had expired, and under the law then in force he would become entitled to a deed in one year, unless the owner-should meantime redeem from his purchase, the right to do which was reserved by the State. Monaghan v. Auditor-General, 136 Mich. 247. Before he could obtain possession under that deed he was required to give such owner a further opportunity to save his land, by a repurchase from him, after a notice in the form prescribed. By analogy to other land contracts, this contract with the State was not subject to changes by either without the consent of the other. The State could not require other notices to be served upon persons claiming under other tax titles, without impairing the obligation of the contract. We do not mean to intimate that one in privity with the person required to be served may not have the right to repurchase.

It is said that this new statute only affected the remedy, but is this so? There is nothing in the law of 1899 that required the purchaser to reconvey to any one except the owner of the regular title. There is nothing to indicate an intention to give such a right to the holders of earlier tax titles, unless we are to say that such holder is a “grantee under the last recorded deed in the regular chain of title to the land.” We are of the opinion that by “regular chain of title” was meant the chain of title based upon the patent, and that one claiming under another tax title was not intended to be included, although we can imagine cases where it would be as important that he should be included — e. g., where his tax title has been sustained by law, and he is in possession under it — ánd in any case it would seem just that he should be. The legislature recognized this in the later statute, making special provision for notice to both classes. A practical difficulty in the way of doing this, by construction of the act of 1899, is that the act contemplates notice only to the one holding under the “last recorded deed in the regular chain,” not to all persons claiming under any deed. If we may suppose two chains, one based on a tax deed and the other upon the patent title, we then have a last recorded deed under each. Should we say that the holder of the last tax title must decide at his peril which is the valid title, and serve upon the holder of that, or that he must serve on both, when only one chain is mentioned ? We think it more probable and more reasonable that the term “ regular title ” was used with reference to the original government title, and believe that to be the meaning, as generally understood by lawyers. Counsel for appellant indicates such understanding in his brief.

The point is made that the notice left the amount required to be paid uncertain. The only uncertainty related to the fees of the sheriff, prospective at the time the notice was drawn, and therefore uncertain. The notice was sufficiently definite. It is also said that the decree should not have been admitted, for the reason that the designation of the newspaper in which the publication was made did not state the year taxes referred to. This claim is answered by the cases of Watts v. Bublitz, 99 Mich. 586, and Waldron v. Auditor General, 109 Mich. 231.

Counsel complain that the court rejected evidence offered to show that the contract rights of Dennie Beebe had been transferred to his parents, Andrew and Mary Beebe. It was not claimed that either had sought to repurchase within the six months, and the question was immaterial.

The judgment of the circuit court is affirmed.

Moore, J., concurred with Hooker, J.

Ostrander, J.

I concur in affirming the judgment on the ground that Allen’s tax deed was, upon the authority of Monaghan v. Auditor General, 136 Mich. 247, void on its face. Upon the authority of Morse v. Auditor General, 143 Mich. 610, mere lapse of time — that is to say, the passing of the redemption period — would not make it a good deed. Allen was, therefore, entitled to no notice from plaintiff, and want of such notice cannot aid the appellant.

McAlvay and Blair, JJ., concurred with Ostrander, J.


text:
    JARRAIT v. PETERS.

    1. Landlord and Tenant — Breach of Contract— Failure to Give Possession — Damages.
    The measure of damages, where a lessor fails to give possession of the leased premises, is the difference between the actual rental value and the rent reserved.
    2. Same — Interruption op Business.
    Defendant leased premises to plaintiff, the term to begin at a future day, and in the interim gave plaintiff permission to bring his tools and desk to the premises and use defendant’s machinery and horse and wagon when not in use by defendant, plaintiff paying a certain price for such use. Before the beginning of the term, defendant repudiated the lease and refused to deliver possession to plaintiff in accordance with it. Held, that plaintiff’s occupancy and carrying on of his business on the premises was not such an established business as would create an exception to the general rule and permit-the recovery of damages for the loss of prospective profits caused by interruption of plaintiff’s business.
    Error to Wayne; Mandell, J.
    Submitted February 2, 1906.
    (Docket No. 99.)
    Decided July 9, 1906.
    Case by George H. Jarrait against Louis M. Peters for damages, for refusal to give possession under a lease. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Thomas Hislop, for appellant.

      Van Zile & Brownson, for appellee.

       Rehearing denied December 17, 1906.

   McAlvay, J.

This is an action for damages brought by plaintiff against defendant for refusal to give possession of certain premises leased by plaintiff for the term of two years. On October 13, 1903, these parties entered into a certain contract in writing for leasing certain premises belonging to defendant used for the purpose of carpet cleaning and carpet weaving, together with the tools, machinery, and appliances connected therewith, for the rent of $1,200 for the term of two years from and after January 5,1904; $50 to be paid on the execution of the lease, and $50 on February 5, 1904, and a like sum on the 5th day of each month thereafter during the term of the lease. Plaintiff paid $25 and gave his note for $25 when the lease was executed. Privilege was given to plaintiff to purchase the entire property for $3,000.

On October 19, 1903, plaintiff, having lost his employment by reason of the fact that he intended going into business, brought his tools and desk to defendant’s premises and was permitted by defendant to remain and use some of the machinery, and horse and wagon, when defendant was not using the same, and to pay a certain price for such use. This arrangement was independent of the leasing in dispute. It did not amount to a possession and control of the premises. It was simply an accommodation or license revokable by defendant at any time. Plaintiff remained there under this arrangement doing work for himself until December 18th following, when defendant told him to quit and refused to allow him the use of the place afterwards. On January 5, 1904, plaintiff came to the place, tendered $25 to make the balance of the first payment, and demanded possession under his lease, which defendant refused! He never went into possession under the lease. He at once brought this suit.

The claim of defendant is that at the time of making the lease the plaintiff fraudulently represented that his brother would furnish him the money, and it was agreed that plaintiff would pay defendant the sum of $500 for stock on hand, horse, wagons, and the good will of the business, as a condition precedent to going in under the lease, and that plaintiff fraudulently induced defendant to execute said lease, and, not fulfilling this agreement, was refused possession under the lease. The declaration charges that the damages for which suit was brought -arose on account of defendant refusing to deliver possession of the property leased and unlawfully withholding the same from plaintiff. Under the general issue defendant gave notice of the defense above outlined. The case was tried before a jury and resulted in a judgment for ■plaintiff.

Numerous errors are assigned by defendant. A consideration of the two material errors upon which defendant mainly relies will, we think, dispose of the case. He bases his contention that the judgment should be reversed mainly upon the ground that the court erred in charging the jury that they could consider .and allow plaintiff as damages in this ca§e his prospective profits that would arise in two years out of this business. It is well settled upon authority that the measure of damages when a lessor fails to give possession of the leased premises is the difference between the actual rental value and the rent reserved. 1 Sedgwick on Damages (8th Ed.), § ,185. Mr. Sedgwick says:

“ If the business were a new one, since there could be no basis on which to estimate profits, the plaintiff must be content to recover according to the general rule.”

The rule is different where the business of the lessee has been interrupted. Taylor v. Cooper, 104 Mich. 72.

This was not an interrupted business, as the cour-t appeared to view it in his charge when he said :

“You must determine from all the evidence whether that business was so established as to convince you or any reasonable body of men with reasonable accuracy that there was profit in that business, and, if you can determine from that experience of his, then all the testimony of the various persons that have been introduced here to tell you what the probable profits would be becomes proper for you to consider.”

Also:

“ He has introduced evidence which would tend to show what his profits would have been during the two years.”

Also:

“ He is entitled to the profits that are shown by the evidence here to be reasonably probable that he would have made.”

The circumstances snown, under which he was permitted to use some of the machinery, would not' warrant, treating this as an established business of plaintiff, and bring the case within the exception to the general rule for the measure of damages above given, and.allow recovery for further damages. Errors are assigned upon the portions of the charge above given. The evidence admitted tending to show the prospective profits plaintiff might have made for the ensuing two years should therefore-have been excluded under the objections made by defendant, and the jury should have been instructed that the plaintiff’s damages, if any, would be the difference between the actual rental value of the premises and the rent reserved in the lease. The theory of defendant as to fraud was submitted under proper instructions.

Other errors assigned upon the introduction of evidence need not be considered, for the reason that on account of the views herein expressed these questions will not again arise.

Judgment is reversed, and a new trial granted.

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


author: Montgomery, J.

text:
    MURPHY v. CADY.
    1. Evidence — Documents—Certified Copies — Admissibility.
    Exemplified copies of pension vouchers executed more than 30 years ago, made pursuant to section 883, U. S. Rev. Stat., prove themselves and are admissible in evidence as though they were originals, though there is no proof of the handwriting of the signer of them.
    3. Same — Ancient Documents — Laches.
    The rule admitting ancient documents in evidence without proof of their execution is not qualified by any exception in respect to the laches of the party relying upon them.
    3. Limitation of Actions — Death of Party — Administration.
    Where a guardian died in 1876 and no administrator was appointed until complainant procured defendant’s appointment in 1899, complainant’s bill, filed in 1900, for an accounting of the guardian’s doings, is not barred by the statute (§ 9737, 3 Comp. Laws).
    4. Equity — Laches.
    Where a guardian died in 1876 and his ward did not learn of her rights until 1897, .when she immediately began negotiations with the guardian’s heirs, and procured the appointment of an administrator in 1899, and filed her bill for an accounting in 1900, she was not guilty of laches.
    5. Costs — Reversal—Defense not Made Below.
    Where a surety on a guardian’s bond did not plead the statute of .limitations below, but denied that he was ever a surety on the bond, and it appears that limitations constitute a complete defense, no costs will be awarded in his favor on remanding the cause with permission to him to amend his answer.
    Appeal from St. Clair; Tappan, J.
    Submitted February 8, 1906.
    (Docket No. 113.)
    Decided July 9, 1906.
    Bill by Barbara C. Murphy against Burt D. Cady, administrator of the estate of Patrick Butler, deceased, and James Butler, for an accounting. From a decree dismissing the bill complainant appeals.
    Reversed.

      Bernard B. Selling and James A. Muir, for complainant.

      Avery & Walsh, for defendants.
   Montgomery, J.

This is a bill for an accounting. The bill alleges that complainant is the daughter of one Samuel Connolly, who died a widower prior to the 7th day of April, 1870; that said Samuel Connolly was a soldier of the United States in the war of the Rebellion, and that his minor children were entitled to receive a pension from the United States; that said Connolly left surviving heirs complainant and two sisters, who constituted his family, and that each was entitled to participate in such pension; that Patrick Butler was, on the 7th day of April, 1870, duly appointed guardian of the complainant and her two sisters and of their estates; that defendant James Butler was surety on the bond of Patrick Butler, given as such guardian; that pension money belonging to complainant was received by Patrick Butler prior to January 1, 1873, amounting, in the aggregate, to $265.91 (the items are given); that Patrick Butler departed this life on the 8th of December, 1876; that no administration was had of his estate until on complainant’s application Burt D. Cady was, on the 11th of December, 1899, appointed administrator.

The bill further sets out that until late in the spring of 1897 complainant knew nothing of the guardianship matter, and did not know that the United States government had ever paid a pension for her benefit; that it was claimed by James Butler that Patrick Butler had in his lifetime expended certain moneys on complainant’s behalf. The complainant offers to allow any sum found to have been properly so expended, if any, and prays an accounting.

Separate answers were filed. Both answers 'aver laches. The administrator denies, on information and belief, the statement that Patrick Butler received pension moneys belonging to complainant, and also sets out that Patrick Butler expended a considerable sum of money, and furnished board and clothing to complainant. In support of the claim of laches, it is set up that complainant knew that Patrick Butler was her guardian many years before, and that he received pension moneys for her. The answer also sets up the claim that in 1880 James Butler settled with complainant and took an assignment of any claim she held against the estate of Patrick Butler. The answer of James Butler also sets out this alleged settlement. The case came on for trial in open court. At the close of complainant’s testimony, the defendants asked that the bill be dismissed, and it was so ordered. Complainant appeals:

The court decided the case for the defendant on the ground that no evidence had been adduced showing that the pension moneys were received by Patrick Butler. The complainant introduced exemplified copies of pension vouchers, made pursuant to section 882, U. S. Bev. Stat. The circuit judge seems to have been of the opinion that this certificate entitled the receipts purporting to be signed by Patrick Butler to be treated as originals, but held that, as there was no proof of the handwriting of the signer of the original, the complainant failed in her proof, and that she could not invoke the rule as to ancient documents because she had waited so long a time before attempting to assert her rights. The view that this authentication is to be treated as though the original were produced, is well supported by the cases of Lacey v. Davis, 4 Mich. 140; Clark v. Hall, 19 Mich. 356; Gilman v. Riopelle, 18 Mich. 145; Tillotson v. Webber, 96 Mich. 145; Hunt v. Order of Chosen Friends, 64 Mich. 671.

"We need not determine whether the certified copy of the receipt would, in a case where it did not stand as a representative of an ancient document, be sufficient evidence of the due execution of the receipt, for we know of no such qualification of the rule in favor of admitting ancient documents as that made by the circuit judge. The question is whether this document, produced from a source which is an eminently proper one, and consistent with its validity and genuineness, proves itself. If the complainant has been guilty* of such laches as bars her from any remedy on the case made, that is another matter. Nor is this testimony unsupported. The answer assumes that certain pension money, belonging to complainant, was received by Patrick Butler, and the appointment of Patrick Butler was petitioned for for the very purpose of collecting this pension. Complainant was not barred of her action by the statute. 3 Comp. Laws, § 9737; Field v. Loveridge, 114 Mich. 220. Nor does the record as made show that she was guilty of laches. The deceased Patrick Butler was a trustee. He rendered no account to his ward or to the court, and according to her testimony she had no knowledge of her rights until 1897, and then immediately began negotiations' with the parties interested.

■ The point is made in this court, on behalf of the defendant James Butler, that the statute, 3 Comp. Laws, § 8727, bars action against him after four years from the death of Patrick Butler. This is true. See Perkins v. Cheney, 114 Mich. 570. It does not, however, appear that this point was made in the court below. On the contrary, the answer of James asserts that he never was surety on Patrick Butler’s bond. We think, under these circumstances, he should not recover costs of this court.

We do not think defendant should be fully cut off from any defense open. The decree will be reversed, and a decree entered in favor of complainant, adjudging that she is entitled to recover from the estate of Patrick Butler the amount of this pension money, less such payments and expenditures as may be shown, unless it shall be found that she has discharged or assigned her claim, freely and without fraud being practiced upon her, and the case will be remanded for further proceedings.

As the case must be remanded, the defendant James Butler will be permitted to amend his answer to set up the statute of limitations. The complainant will recover the costs of this court against the estate, the costs of the court below to abide the event.

Grant,'Blair, Ostrander, and Hooker, JJ., concurred.