author: Moore, J.

text:
    KRAPP v. METROPOLITAN LIFE-INSURANCE CO.
    1. Life Insurance — Action on Policy — Evidence—Admissibility — Proof of Death.
    Where a life-insurance policy stipulates that the proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the company, they are admissible as an admission though not conclusive.
    2. Witnesses — Physicians—Privilege.
    In an action on a life-insurance policy, physicians cannot testify to facts concerning the health of assured’s relatives which they acquired through their employment by those persons as physicians. Section 10181, 3 Comp. Laws.
    3. Same — Certificate of Death — Admissibility.
    Under section 4617, 2 Comp. Laws, duly filed certificates of death are admissible on the issue of the cause of death of the persons to whom they relate, though the physicians who made them are prohibited by seotion 10181, 3 Comp. Laws, from testifying to the facts therein stated because acquired in their professional capacity.
    4. Evidence — Opinions—Nonexperts—Cause of Death.
    Nonexpert witnesses may testify that certain persons died of consumption, the weight of their testimony being for the jury.
    Error to Wayne; Rohnert, J.
    Submitted December 6, 1905.
    (Docket No. 157.)
    Decided March 13, 1906.
    Assumpsit by Fritz Krapp against the Metropolitan Life-Insurance Company on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Haug & YerTces and O. G. Yerkes, for appellant.

      Frank D. Andrus, for appellee.
   Moore, J.

The defendant, the Metropolitan Life-Insurance Company, is a New York insurance company, having offices and doing business in the State of Michigan. On March 11,1902, it issued a policy of insurance on the life of Minnie Krapp, who was the wife of the plaintiff. The policy was in the sum of $500. Minnie Krapp died on July 6, 1903. The defendant refused to pay the policy on the ground that answers made by the insured to certain questions in the application on which the policy was issued, were not true. Among the statements made by the insured in her application for this insurance were the following: That she was then in sound health, that she had never had bronchitis, nor consumption, that none of her parents, grandparents, brothers, or sisters, ever had consumption, nor any pulmonary disease.

As evidence tending to establish the untruth and incorrectness of these statements, the defendant offered in evidence the proofs of death furnished by the beneficiary, who is the plaintiff. The defendant, to show the answer was untrue as to her parents, grandparents, brothers, and sisters, not having consumption or any pulmonary disease, offered in evidence certificates of death, filed with the health board, and identified by the physicians who filled them out, and who testified that the statements were true, showing that the mother and two sisters died of consumption prior to the issuing of the policy. The defendant also offered the testimony of the physicians, who made out the certificates of death, as to the correctness of the certificates of death; and that the mother and sisters of the insured died of consumption, and had consumption prior to the date of the application. The defendant also offered to show that the mother and two sisters had consumption and died therefrom, prior to the date of the application, by the husband of the mother of the insured and the stepfather of the insured; and also by the immediate neighbors of the family of the insured.

The certificates of death were held inadmissible by the court, because they disclosed matters which were claimed by the plaintiff to be privileged. The physicians’ testimony was held inadmissible, because of privilege. The stepfather’s and neighbor’s testimony, because they were not physicians, and had no special training or experience which would permit them to determine what diseases people may have had. The proofs of death were rejected by the court, because he claimed they are merely secondary evidence of the facts stated therein. At the conclusion of the trial, the court directed a verdict for the plaintiff. The case is brought here by writ of error.

Were the proofs of death admissible for any other purpose than to show that the insured was dead ? It is claimed they are admissible under the following provision in the policy:

“ Proofs of death shall be made to the home office in the manner and to the extent required by blanks furnished by the company, and shall contain answers to each question propounded to the claimant, physicians, and other persons indicated in the blanks, and shall further contain the record and verdict of the coroner’s inquest, if any be held. The proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company.”

And, also, under the following decisions: John Hancock Mut. Life-Ins. Co. v. Dick, 117 Mich. 518 (44 L. R. A. 846); Wasey v. Insurance Co., 126 Mich. 119. We think under these cases the testimony should have been admitted as being in the nature of an admission, though it was not conclusive. It is said that, even if admissible, it is immaterial, because the jury might not infer that because the assured died of consumption, that she had that disease when she was insured, citing Redmond v. Benefit Ass’n, 150 N. Y. 167. It is probable that this contention is true if no other proof was offered to establish the fact, but proof cannot all be offered at once. The testimony was competent, and though but a link in the chain of testimony, it was competent to make it; for a chain is made up of a succession of links.

Did the court err in holding the testimony of the physician was inadmissible because of privilege? The testimony of the doctor was that he acquired the information which was the subject of inquiry only in his professional capacity, while the persons were treated by him as a physician. We think the offered testimony was within the statute, and properly excluded. See 3 Comp. Laws, § 10181, and the many cases cited in the note to said section. See, also, Grattan v. Insurance Co., 80 N. Y. 281; Davis v. Supreme Lodge Knights of Honor, 165 N. Y. 159.

Did the court err in holding that the certificates of death were inadmissible ? Section 4617, 2 Comp. Laws, reads as follows:

“All certificates of death, local registers, or county records authorized under this act, or certified copies thereof, shall be prima facie evidence in all courts, and for all purposes, of the facts recorded therein.”

It is said:

“ These certificates were not admissible for two reasons:
“First. They were secondary evidence when primary was obtainable.
Second. Their contents being privileged matter, under section 10181, 3 Comp. Laws, the offer of their admission was an attempt to circumvent the statute and accomplish indirectly that which the statute directly forbids.”

It is also said that to hold their admission admissible under section 4617 is to nullify section 10181, 3 Comp. Laws, and that, as .the first-named section was enacted last, without a repealing clause, it will not have that effect, counsel citing Buffalo Loan, Trust & Safe Deposit Co. v. Aid Ass’n, 126 N. Y. 450; Davis v. Supreme Lodge Knights of Honor, 165 N. Y. 159; McKinley v. Insurance Co., 26 N. Y. Supp. 63.

An examination of these cases will show they are not controlling. In the first two cases the certificates were not made under a general law of the State, but because of what in one of the opinions is characterized as an obscure provision of the city charter, and it was held, the charter provision was local and should not be so construed as to repeal a general law. In McKinley v. Insurance Co., supra, it was held that even if the certificate then offered in evidence was presumptive evidence of the recitals therein, it could be so only as to the things required by the law to be stated, and that, as the physician was not required to certify that the deceased had been diseased four years prior to his death, the certificate could not be received to establish that fact. ' Other New York ■courts have taken a different view from that suggested by •counsel. Chapter 661 of the Laws of 1893, “the public health law,” provided for the collection and keeping of vital statistics. Section 22 provided that certified copies of the entries of death and causes of death “shall be presumptive evidence in all courts and places of the facts therein stated.” In the insurance case of Keefe v. Benefit Ass’n, 37 App. Div. (N. Y.) 276, 55 N. Y. Sup. 827, it was held that a copy of the record was competent evidence, citing several cases. See, also, Hennessy v. Insurance Co., 74 Conn. 699; McKinstry v. Collins, 74 Vt. 147. We do not think it follows that if effect is given to the provisions of section 4617, 2 Comp. Laws, it repeals or annuls the provisions of section 10181, 3 Comp. Laws. The certificates should have been admitted in evidence.

Did the court err in refusing to receive testimony of others than physicians as to the disease which caused the death of the assured ? Counsel cite only the case of Grattan v. Insurance Co., 80 N. Y. 281, in support of the ruling. In a brief paragraph language is used which sustains the ruling of the trial court. We do not, however, think that decision is controlling. Would it be claimed that an experienced mother would not be competent to say whether a child had measles ? Or that an intelligent person of mature years who had seen many cases could not tell whether one had so prevalent a disease as consumption ? In Elliott v. Van Buren, 33 Mich. 49, Justice Campbell, speaking for the court, said:

“We think there is no rule which can prevent ordinary-witnesses from describing what they see, or from testifying concerning the kind of injury or sickness of others whom they have had occasion to consort with, unless it is something out of the common course of general information and experience, or unless the question presented involves medical knowledge beyond that of ordinary unprofessional persons. It would be ridiculous to shut out testimony of what any juryman would understand well enough for all the exigencies of the case before him, simply because no physician has seen or examined the person. It would lead to a denial of justice in all cases of bodily injuries and sickness which did not occur within range of medical help, and which were not regarded as so difficult of treatment as to demand it. There is no danger that the introduction of common testimony on matters of common knowledge will do any more mischief, when open to cross-examination before a court and jury, than would arise from the want of any legal means of selecting witnesses from the numerous class of professional men, who differ as much in their relative merits as many of them do from laymen.”

See, also, Rogers v. Ferris, 107 Mich. 126; State v. Knapp, 45 N. H. 148.

We think the testimony competent. Its weight was for the jury. For the reasons stated, the judgment is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CREYTS v. CREYTS.
    1. Divorce — Decree—Provision eor Support op Minor Child —Death op Dependant.
    A provision in a decree of divorce against a husband, for the payment of a certain sum monthly, until the further order of the court, for the support of an infant child, is not discharged by the death of the husband.
    2. Same — Commutation op Payments.
    Under sections 8640, 8641, 8 Comp. Laws, the court has the power to make the award against a husband in divorce for the support of children a charge upon his property and alter it from time to time in the interests of justice, and on his death will fix the period for which the payments must continue, calculate their present worth, and make the sum a lien upon his property with priority over all other claims of his widow, heirs, and next of kin, except rights of dower.
    Petition by Carrie L. Creyts for modification of a decree of divorce heretofore granted in this court.
    Submitted January 30, 1906.
    (Calendar No. 19,400.)
    Granted March 13, 1906.

      William M. Smith, for petitioner.

      Thomas, Cummins & Nichols and L. B. Gardner, contra.
   Hooker, J.

On May 12, 1903, a decree was made by this court, on appeal from the circuit court for the county of Ingham, in chancery (133 Mich. 4), in favor of the aboved-named complainant, dissolving the marriage between the parties, and awarding to her $3,500 alimony, in lieu of dower, and also requiring the defendant to pay to her, for the maintenance and education of Thelma Creyts, an infant whose custody, etc., was given to her, the sum of $10 per month, until the further order of the court; the birth of said infant being therein adjudicated to have occurred upon September 15, 1895. The defendant in the divorce case paid the alimony decreed, and said sum of $10 per month regularly and promptly, until his death, which occurred on January 2, 1905.

At the time the alimony provided by the decree was paid, the defendant had living five sons and daughters, children of a former wife, all adults, and they have survived him. He also had considerable property remaining after payment of the alimony, and soon after the decree was made he gave to each of said sons and daughters $2,000. Soon afterwards he married Roby A. Avery, and she was appointed his administratrix. The inventory shows an estate of about $5,000.

The petitioner, Carrie L. Creyts, complainant in the divorce case, claims that the decree for the payment of $10 per month, for maintenance of Thelma Creyts, is a charge upon the property of the estate, and that said sum should be paid for such period as the court shall hereafter determine. In opposition to this claim the persons interested in the estate claim that the decree is not operative since the death of Creyts. The petition prays that the court modify the decree by adjudging:

1. That the death of John Creyts did not “interrupt or suspend’’the right of petitioner to said sum of $10 per month, but that the sum is payable, until the said Thelma Creyts shall reach the age of 21 years, and that Roby A. Creyts, administratrix, shall make such payments.

2. That the present worth of said payments shall be determined by the court and decreed to be a lien upon the estate of John Creyts, and that payment of said sum be made to petitioner, by Roby A. Creyts, before there shall be a distribution of the estate, and that petitioner have costs of this proceeding.

The original decree was not discharged by the death of the complainant. No one would contend that the provision for the wife would have been discharged by his death or before payment, or before it became due. And in Shafer v. Shafer, 30 .Mich. 163, an appeal by the wife, after a husband’s death, was held allowable if she was dissatisfied with the decree for alimony, and, in the matter of Seibly v. Ingham Circuit Judge, 105 Mich. 584, we held that it was a proper practice to permit the revivor of a divorce suit to permit proceedings upon the decree to adjudicate the reserved question of alimony, upon bringing in the representative. These cases necessarily imply the authority to retain jurisdiction of the property of the husband in a divorce case after the death of the husband, to see that it be applied to the support of the wife and infant children. See, also, Smith v. Waalkes, 109 Mich. 16. In Miller v. Miller, 64 Me. 484, a case in which a similar •order to that in this case was made, it was held that such order was not discharged by the death of the husband. It is possible that, in the absence of the statute, the court ■could do no more than to enforce the decree heretofore made, by proceedings to which the representative should be made a party, if it could do anything in the premises; it being suggested that, in that case, the wife would be on the same footing with any other claimant, and be obliged to obtain and be satisfied with allowance and payment through probate court.

Under our statute,'which authorizes the court to make the decree a charge upon the property, and to change and alter the decree from time to time, in the interests of justice (3 Comp. Laws, §§ 8640, 8641), we are of the opinion that, where the rights of bona fide holders have not intervened, the court may alter, amend, enlarge, or diminish the decree, as the necessities of the one and the ability of the other party may require, and that it may protect the child by making the decree a charge upon property to prevent its dissipation, and that the power is not determined by the death of the husband. How the interests of other creditors might be affected, if at all, need not be,considered, as it does not arise upon the record. We are therefore disposed to hold that this decree should be amended to give the provision for the maintenance of the-child the effect of a lien upon the property of the estate, and priority over all claims of the widow and heirs.

Both parties indicate a desire that the decree be further modified by fixing the period for which such provision shall continue, and determining the amount of the present value of the same, and providing for the immediate payment of such sum, in place of the periodical payments-provided for by the original decree. We have no doubt of our authority to do this, under the provisions of the ' statute referred to, and rather than to keep the estate open and defer distribution with the expense and possible loss necessarily attendant upon such a policy, we approve the alternative suggestion, and we hereby fix such amount, including arrearages and interest thereon, at the sum of $825, and make the same a lien upon the property of the estate not heretofore appropriated by order of the probate court, with priority over all other claims of the widow, heirs, and next of kin, except rights of dower.

A decree may be taken accordingly, with costs to be paid out of the estate, including a solicitor’s fee of $25, to-complainant’s solicitor, the amount of this decree to be paid into court, or to the duly authorized guardian, to be-appointed by the probate court.

McAlvay, Grant, Blair, and Moore, JJ., concurred.

       “Seo. 8640. In all cases where alimony or allowance for the support and education of minor children shall be decreed to the wife, the amount thereof shall constitute a lien upon such of the real and personal estate of the husband as the court by its decree shall direct, and in default of payment of the amount so decreed the court may decree the sale of the property against which such lien is decreed in the same manner and upon like notice as in suits for the foreclosure of mortgage liens; or the court may award execution for the collection of the same, or the court may sequester the real and personal estate of the husband and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied to the payment thereof or the court in lieu of a money allowance may decree such a division between the husband and wife of the real and personal estate of the husband or of the husband and wife by joint ownership or right as he shall deem to be equitable and just.
      ‘ ‘ Seo . 8641. After a decree for alimony or other allowance, for the wife and children, or either of them, ahd also after a decree for the appointment of trustees, to receive and hold any property for the use of the wife or children as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree, respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so-held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.”


text:
    POWERS v. PERE MARQUETTE RAILROAD CO.
    1. Negligence — Personal Injury — Cause—Conjecture.
    Where, in a personal injury case, the cause of the accident is, under the evidence, purely conjectural, the case should not be submitted to the jury.
    2. Same — Presumption — Burden of Proof — Death Without Witnesses.
    Where an accident resulting in the death of plaintiff’s intestate occurred in the absence of witnesses, the presumption that decedent was in the exercise of due care for his own safety does not relieve plaintiff, suing for his death, of the burden of proving the negligence of defendant and that the death was caused by that negligence.
    8. Same — Evidence—Sufficiency—Submission to Jury.
    Where the court can see testimony from which a probability can legitimately arise in favor of a plaintiff suing for a negligent death, the cause should not be taken from the jury.
    4 Master and Servant — Death of Servant — Cause—Conjecture.
    In an action for the death of plaintiff’s intestate, claimed to have been caused by the splitting of a footboard on a switch engine, evidence examined, and held, to raise only a conjecture as to whether the board split and caused him to fall or he fell from some other cause and the board split as it went over him, and that a verdict was properly directed for defendant.
    Error to Kent; Perkins; J..
    Submitted January 5, 1906.
    (Docket No. 20.)
    Decided March 19, 1906.
    Case by Mary A. Powers, administratrix of the estate of Nicholas J. Powers, deceased, against the Pere Marquette Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Emanuel J. Doyle (Francis A. Stace, of counsel), for appellant.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellee.
   Hooker, J.

The plaintiff’s intestate was killed upon the defendant’s railroad, and this action was brought to recover damages upon the ground of defendant’s negligence. The deceased was an employé of defendant —i. e., a switchman — and just previous to his death was riding upon the footboard in front of defendant’s switch engine. No one witnessed his fall from the engine. He was noticed when under the wheels of the engine of car, and the train was stopped. The negligence alleged is that the footboard was checked in the ends, and was supported by brackets that were too short for the purpose, extending only to within four inches from the outer edge of the foot-board. The evidence showed checks in each end of th8 plank, and that the plank extended four inches beyond the ends of the brackets. The footboard was of oak, two inches thick. Nothing indicates that it was unsound. It was about seven inches from the top of the rails. After the accident it was found freshly split the entire length of the board, but the splits from the two ends did not meet. They were connected by slivers — one large sliver about midway between the two ends which was of the full thickness of the plank. The others were smaller, and there were more of them towards the lower or under side of the plank than above. The portion outside of the brackets was bent upward, and it was found, upon moving it, that it would remain in any position that it was left; e. g., pointing downward, or horizontally. All of the testimony tended to show that the deceased must have fallen across the track, his head outside and the feet between the rails, and that he was dragged 2i feet or more from where he was struck by the footboard. There was proof that three or four men had been upon this board at one time shortly before the accident. It was plaintiff’s theory that the splitting of the board caused her intestate to fall upon the track in front of the engine, while defendant’s counsel say that the condition and position of the split portion, and the evidences of dragging, etc., indicate that it was split off and turned upward by reason of the rolling under it of the deceased, who was a man of about 170 pounds weight. It is urged that this is the more probable theory of the two, but that, if not the cause of the fall, the true cause is matter of conjecture merely. A verdict was directed for the defendant, and plaintiff has appealed.

The questions before us are two:

1. Should the court have allowed the jury to find the accident to have been caused by defendant’s negligence ?

2. If that would otherwise have been proper did not the deceased’s assumption of the risk of riding upon the foot-board in its apparent condition forbid such submission ?

This court has held many times that a (case should not go to a jury where, under the testimony, the cause of the accident is conjectural merely. Counsel for the plaintiff admit in their brief that this is the rule:

“ That when the damages arose from one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damages were produced by the former cause; and he must fail, also, if it is just as probable that they were caused by one as the other.”

But they contend that the circumstances show a probability in favor of plaintiff’s theory, and that the circuit judge was of the opinion that the cause could not be disposed of as conjecture merely. The learned circuit judge did not direct a verdict upon this ground, but upon the theory of deceased’s assumption of the risk. Perhaps it is inferable that counsel are right about his views. In his disposition of the case he said :

‘ ‘ The question is whether the weather checks, as shown by the evidence, were sufficiently dangerous to authorize the submission of the question to the jury to determine whether or not this footboard would have split by the weight of the deceased when placed upon the outer edges thereof. The burden of proof in a negligence case rests upon the plaintiff to establish two propositionsFirst, the negligence pf the defendant; and, secondly, freedom from contributory negligence on his own part, or on the intestate’s part. The plaintiff’s case, therefore, must rest upon this narrow proposition: That the checked footboard is evidence of the defendant’s negligence, and that, no one having seen the deceased at the time he fell, the presumption must follow that he was in the exercise of due care and caution, and did not by any act of negligence on his part contribute to his own death. There is some language used in the Mynning Case which would indicate that the plaintiff is required to show by some evidence that her intestate was in the exercise of due care in order to justify a recovery. I cannot reconcile this language with the other proposition that, in the absence of all proof to the contrary, the legal presumption arises that a person who is killed in an accident is in the exercise of due care and caution, as held in the Mynning Case, in 64 Mich., at page 102, to which I have referred, and the other cases cited by plaintiff’s counsel. If there was no defect, as shown by the evidence, in this footboard, there could not in any event be a recovery; but, if the presumption is to be applied that the deceased was free from contributory negligence, as indicated by tbe cases referred to, and as I believe the rule to be, then the question is, Is the defect shown of sufficient importance to authorize a jury to speculate upon the probabilities of the cause of deceased’s death ? Without further analysis, gentlemen, I am convinced, first, that the defect complained of in this foot-board amounts to some evidence of negligence on the part of the defendant company. While the footboard had been used almost continuously for some time, down to the time of the accident, by the deceased and others, it seems to me that under the circumstances shown there is some evidence of negligence to go to the jury.”

From this we judge that he extended the rule that contributory negligence of one killed will not be presumed, when no evidence tends to show it, by substantially intimating that this presumption is sufficient to take the question of the cause of an accident out of the realm of conjecture. In other words, where death raises the presumption of care on the part of the deceased, a corresponding presumption arises in support of the theory of the plaintiff, and, where any coincident negligence of the defendant is shown, it takes the case to the jury upon the assumption that, where deceased is presumed to have been free from negligence, it must follow that defendant’s negligence caused the accident.

This view takes no account of the fact that a man may suffer an injury without being negligent himself, and where a defendant is not negligent, or where, being negligent, such negligence was in no way the cause of the accident. Grant that in this case a presumption takes the place of proof of due care on the part of the deceased, does it relieve the plaintiff also from the burden of proving, as in other cases, (1) the negligence of defendant, and (2) that the injury was caused by such negligence ? Upon such a theory the burden of proof, as to both of these facts, is shifted in all cases where the accident is without witnesses, except the injured party, who met death in the accident, and it would follow that many of the cases are wrongly decided; and it would seem that there is no excuse for the enunciation of the doctrine that a case should not go the jury where a verdict must rest upon a conjecture or guess, a rule which has been iterated and reiterated by many if not most courts, including our own. See Mynning v. Railroad Co., 64 Mich. 93; Quincy Mining Co. v. Kitts, 42 Mich. 34; Brown v. Railway Co., 49 Mich. 153; Mitchell v. Railway Co., 51 Mich. 236; Stern v. Railroad Co., 76 Mich. 591; Toomey v. Steel Works, 89 Mich. 249; Robinson v. Charles Wright & Co., 94 Mich. 286; Manning v. Railway Co., 105 Mich. 263; Perry v. Railroad Co., 108 Mich. 130; Knapp v. Railway Co., 114 Mich. 201. See 3 Elliott on Railroads, § 1299. There is another line of cases which hold that, where a court can see testimony from which a probability can legitimately arise in favor of a plaintiff, the cause should not be taken from'the jury, and whether there is such is the controlling factor upon this point.

What is there to indicate a probability that plaintiff fell, from the splitting of the board ? We have examined the proof and plaintiff’s brief in vain to find a circumstance which throws any light upon the question, and are forced to say that it is as probable that he inadvertently tripped or stepped over the edge, slipped, or fell, as that his weight caused the plank so split off, thereby precipitating him upon the rails.

The judgment is affirmed.

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


author: Ostrander, J. Blair, J.

text:
    KNEISEL v. KNEISEL.
    Wills — Contest—Undue Influence — Evidence—Sufficiency.
    On the contest of a will hy which testator left his widow the use of his entire property for life, remainder to his heirs, evidence examined, and held, that the question of undue influence of his wife should not have been submitted to the jury.
    Error to Lenawee; Chester, J.
    Submitted January 11, 1906.
    (Docket No. 59.)
    Decided March 19, 1906.
    Barbara Kneisel presented for probate the last will and testament of Peter Kneisel, deceased. The will was allowed in the probate court, and George Kneisel and others, heirs at law, appealed to the circuit court. There was judgment for contestants, and proponent brings error.
    Reversed.

      John E. Bird and John L. O'Mealey, for appellant.

      B. W. Chandler and Smith, Baldwin & Alexanders for appellees.
   Ostrander, J.

Appellant is the widow of Peter Kneisel, deceased, and executrix and proponent of his last will. She assigns error on the proceedings which resulted in a determination that the will should not stand. Peter Kneisel was twice married and had 14 children, 8 by the first and 6 by the second marriage. The contestants in probate court were the 8 children by the first marriage. Two of them appealed from the order admitting the will to probate. The instrument in question is dated July 9, 1898, is short, and the second clause is the one disposing of property. It reads:

“ I give, devise, and bequeath to my beloved wife, Barbara Kneisel, the full use and control of my estate, both real, personal and mixed, for and during the full term of her natural life, with full power to sell or exchange the personal property from time to time for other personal property, as may be necessary or beneficial for the proper management of the farm and farming lands,, and at her decease, then said estate to go to my heirs in equal proportions.”

Peter and Barbara were married March 16, 1878. His children were in age from 17 years to 6 months. They removed to Michigan, and on June 19, 1878, purchased the farm of 95 acres, a portion of which, 55 acres, is disposed of by the will. The purchase price stated in the deed was $4,900. A mortgage for $4,500, a part of the purchase price, was executed on the same day and was released of record February 17, 1894. July 21, 1885, Peter deeded his wife the homestead of 40 acres, “ reserving the full use and control, rents, and profits of said premises for and during the full term of his natural life.” Six of the eight children by the first marriage were sworn for contestants. Proponent was not sworn but produced a large number of neighbors and persons long acquainted with decedent, who gave testimony.

Two grounds of contest were asserted, namely, mental incompetency of the testator, and the undue and fraudulently exercised influence of the wife. The first.ground was abandoned during the trial. Indeed, from the testimony produced on the part of contestants, it would be supposed that their purpose, most successfully accomplished, was to prove the mental competency of the testator. It is urged here that the court should have directed a verdict for proponent. The record is certified as containing all of the material testimony given upon the trial. If there is any evidence o£ the undue influence of the wife, it is found in testimony which tends to show, generally, that she was a woman of persistent purpose, of assertive, and perhaps aggressive, manner, and possessed of a will of her own. That she procured this will to be made, dictated, directly or indirectly, its terms, or is pleased with its provisions, is not attempted to be proved. It is claimed by counsel for contestants that evidence of undue influence is to be found in testimony tending to show a general purpose on her part to get the property for herself, a desire to keep the property from contestants, that she compelled her husband to deed her the homestead, to buy the Bliss-field property, denied him spending money, prevented gifts to the contestants, that he had great natural affection for contestants which she perverted and destroyed, that she quarreled with her husband continuously, creating a condition, relief from which would be purchased, that communication with his children was required to be secret, and he was afraid to have speech with them and with neighbors in her presence, that she was unkind to the contestants, that John, one of contestants, not so bright as other children, was not provided for by the father in his will. A careful examination of the. record, aided by the brief for contestants, fails to disclose testimony tending to prove any of these things beyond this, that there is testimony by way of decedent’s declarations, tending to show that proponent insisted upon the provision made for her in the deed of the homesteád, and was persistent in the idea of securing a home in the village of Blissfield. There is testimony tending to show that she was unkind to contestants, and that she and her husband sometimes quarreled. That Barbara traveled no primrose path in this family is seen, by a glance at the testimony of the contestants. One of them is gracious enough to state that which the testimony of each of them, in the light of human experience, makes evident. This witness was a girl of 7 or 8 years when her mother died, and is now a woman of 33. She lived at home until she was 18, and returned again after working out for a time. She says:

“ The fact is, considering the size of the family, the fact that Mrs. Kneisel was a second wife, and a stepmother to us eight children, she got along there in the home pretty well. * * * Father and mother, except for those occasional quarrels and unpleasant times, got along well. When the skies were not darkened by these little quarrels, it was as happy a home as any around between father and mother. When I was a little girl, I suppose I had notions that did not agree with Mrs. Kneisel’s ideas, and I would have expected as much from my own mother had she lived. * * * After I went away from home, I was sick at one time, and my stepmother came to bring me home, and took care of me and nursed me. I regarded that as rather kind on her part, and, taking it all in all, my stepmother, coming into the family in that way, to mingle with and manage and bring up eight children, it is my judgment now that she was pretty kind to them •and got along pretty well with them.”

There is no evidence of any fraud. The testimony negatives want of knowledge by the testator of all the conditions which may be supposed to influence the ordinary man in disposing of property. On the other hand, it is undisputed that Barbara has worked early and late, in the house and in the field, has been frugal, interested, has ministered, for different periods of time, to eight children of another mother and to six children of her own. Including the homestead, deeded to her in 1885, the estate consists of 95 acres, the lot in Blissfield, and personal property appraised at about $1,300. There is no evidence of undue influence • to be found in the will itself. If there was undisputed testimony to the effect that Barbara had proposed the disposition of property which was made, had argued the matter with her husband and persuaded him to do precisely what he did do, it would hardly be claimed that constituted undue, fraudulent influence. It does not appear that she was present when the will was drawn, nor that she knew its terms.

The jury should have been instructed that there was no evidence of undue influence. The judgment is reversed, and a new trial granted.

McAlvay, Grant, and Montgomery, JJ., concurred.

Blair, J.

I concur upon the ground that the testimony shows affirmatively that, at the time of the execution of the will in question, the testator was a man of sound mind, firm in its purposes, and discloses no evidence of any fraud practiced upon him by proponent. In such a case, I think the evidence must be clear and positive of facts and circumstances which reasonably justify the inference that a firm and intelligent mind has been overcome and dominated by another. The trial judge seems to have submitted the case to the jury upon the theory that there was evidence justifying the inference that the will was so procured. I think this conclusion was based upon a misapprehension of the testimony. He charged the jury that, “I think they claim that there is testimony here that she left him at one time and she followed him around and insisted upon his making these conveyances or this will; and that she wouldn’t come back unless he didetc/ The testimony referred to by the court did not relate to the making of the will at all but to the execution of the deed of the homestead in July, 1885, 13 years before the making of the will. There was testimony tending to show that proponent procured the deed by threatening to have testator arrested for slapping her unless he executed it, but the witness who gave this testimony says that: “ Before she went over to her sister’s, Mrs. Rogers’, my father slapped her. He slapped her in the morning and she went over the same day, over to Mrs. Rogers’.” The record discloses no justification for Mr. Kneisel striking his wife, and it would, therefore, appear that he was liable to arrest and punishment. The fact, if it were found to be a fact, that he preferred to deed her the homestead, subject to his life estate therein, rather than stand trial, would not warrant the inference that 13 years later, without any similar advantage, she compelled him to make the will.

Most of the material evidence in the case relates to this period culminating in the making of the deed, and there is no testimony tending to connect the procuring of the deed with the execution of the will-or tending to show any relation whatever of the proponent to the making of the will. It is claimed, however, that the will shows upon its face that it is unnatural, in not making some special provision' for the weak-minded son John. The testimony does tend to show that John was not up to the average in mental power, but it does not show that his mind was so weak as to authorize a jury to impeach the father’s judgment as to the provision which should be made for him. The statute commits to the testator the determination of the justice and wisdom of his disposition of his property, and the facts must be very exceptional before a jury can be permitted to substitute their judgment for his, where it appears that his mental faculties are unimpaired.

Neither, in my opinion, can it be reasonably urged that this is an unjust or unnatural will. The children of the first wife were all grown up and, including John, capable of supporting themselves. The proponent had toiled very hard in the house and in the fields to pay off the mortgage, and care for the large family of children. The estate was no more than sufficient to provide for her support and enable her to relax her efforts and take some comfort in her declining years, which this record shows she has abundantly earned. At all events, the will presents no such unnatural disposition of the estate, in the light of the testimony, as to warrant an inference of undue influence, and I think the court should have directed a verdict for the proponent.


text:
    CARNAHAN v. CARNAHAN.
    1. Judgment — Conolusiveness.
    Where, on a bill for divorce, defendant filed a cross-bill seeking to enforce a trust in certain money in the hands of complainant, and complainant joined in the trial of both questions, and neither appealed from the decree, complainant cannot thereafter attack the decree in so far as it awards defendant a portion of the trust fund, on the ground that the court should not try property rights in a divorce case.

      S. Divorce — Division op Property — Jurisdiotion.
    Under section 8640, 3 Comp. Laws, authorizing a division of certain classes of property in a divorce case, the court has power to determine what property belongs to the husband, and divide the same between the husband and wife.
    3. Same — Execution Against Wipe.
    Section 8640, 3 Comp. Laws, does not authorize execution against a wife in favor of her husband to enforce an order in a decree of divorce between them requiring her to pay over to him certain money which the court finds she holds in trust for him.
    4. Contempt — Civil Remedies.
    Where execution may issue to collect a decree for the payment of money, the proceeding by contempt to enforce a civil remedy cannot be resorted to.

      5. Same — Decrees—Enforcement.
    An order in a decree for divorce that the wife shall pay over to the husband a particular portion of a trust fund which she has on deposit beyond the jurisdiction of the court, is not “a decree for the payment of money ” in the ordinary sense, so as to be enforceable by execution, and is therefore enforceable by contempt proceedings under section 10891, 3 Comp. Laws, sub. 3.

    6. Same — Issuance of Execution — Effect.
    The fact that a void execution has been issued and a void and ineffective levy made, under which no benefit has been derived by the husband, and no injury suffered by the wife, does not affect the subsequent maintenance of contempt proceedings against her.
    7. Same — Parties—Trustees in Bankruptcy.
    A trustee in bankruptcy may join with the bankrupt in contempt proceedings to compel the bankrupt’s divorced wife to pay over a sum of money which the court in the divorce case found she held as trustee for her husband and ordered her to pay over to him.
    8. Same — Bankruptcy—Effect.
    Where a decree of divorce directs the wife to deliver to her husband a certain portion of a trust fund, the assignment of such decree to the husband’s trustee in bankruptcy, by the institution of bankruptcy proceedings against him, does not change the nature of the wife’s obligation to mere debt enforceable only by execution.
    9. Arrest — Contempt — Criminal Process — Imprisonment of Women.
    Section 10343, 3 Comp. Laws, forbidding imprisonment of females on any process in any civil action, has reference only to writs of capias ad respondendum, ad satisfaciendum, and kindred process, and does not prohibit the enforcement of chancery decrees and orders against female defendants by contempt proceedings, which are not civil but criminal.
    10. Contempt — Enforcement of Civil Rights — Imprisonment.
    The provisions of the Constitution (art. 6, § 33) and statutes (§ 9553, 3 Comp. Laws), prohibiting imprisonment for debt, do not, in view of section 9554, 3 Comp. Laws, prohibit proceedings for contempt to enforce a chancery order requiring a woman to pay over a fund on deposit in a foreign bank which, the court in a decree for divorce has decreed to belong to her husband.
    11. Same — Evidence.
    Where, in a proceeding for contempt to enforce an order in a decree for divorce requiring the wife to pay certain money to her husband, the husband’s trustee in bankruptcy was made a party to the application, and his relationship to the case was alleged in the application and admitted in the answer, the admission of proof thereof was not improper.
    13. Same — Term of Imprisonment.
    Where a decree for divorce adjudges that a certain fund held by the wife in a foreign bank belongs to the husband, and requires her to pay over a portion of it over to him in settlement of their property rights, which she fails to do, an order for her imprisonment for contempt, until the further order of the court, for disobedience of the order, is not indefinite (§§ 10913, 10915, 3 Comp. Laws).
    Appeal from St. Clair; Law, J.
    Submitted February 8, 1906.
    (Docket No. 110.)
    Decided March 19, 1906.
    Bill by Minnie Carnahan against Nelson F. Carnahan for a divorce, in which a decree was entered for complainant, but requiring the payment of a certain fund to defendant : On petition of defendant and- Charles E. Ormsby, trustee in bankruptcy of defendant, complainant was found guilty of contempt in refusing to make said payment, and she appeals.
    Affirmed.

      Cady & Crandall, for complainant.

      Elmer E. Stockwell (Thomas Wellman, of counsel)for defendant.

       As to compelling payment of alimony by contempt proceedings, see. note to Staples v. Staples (Wis.), 34 L. R. A. 433.

   Hooker, J.

The complainant, a woman, was found guilty of a contempt for not paying certain moneys in accordance with a final decree in a divorce case, and- has appealed from an order that she pay the sum of $666.60 to Ormsby, trustee, and that, in default of such payment, she be, and remain, imprisoned in the common jail, until she shall have performed the requirements of the order, or until the further order of the court.

A history of the proceedings is as follows: On August 27, 1904, Nelson E. Carnahan filed a bill for divorce against his wife, Minnie Carnahan, the appellant. It prayed that certain property to which Minnie Carnahan had the legal title be declared a trust in favor of Nelson Carnahan. No service of the subpoena was had on Minnie Carnahan, and apparently the case went no further. On September 1, 1904, Minnie Carnahan filed a bill for divorce and alimony against Nelsofi. E. Carnahan. He answered and filed a cross-bill, by which he attempted to make his former bill a part of his cross-bill by reference. The case was heard on pleadings and proofs in December, 1904, and Minnie Cárnahan testified that she had on deposit in Sarnia $1,200, being the amount of' an insurance upon property earned by Nelson. The court thereupon made an order in open court restraining her- from transferring, assigning, or otherwise disposing of the same, until the determination of the cause, or the further order of the court. On December 22, 1904, a decree was made granting a divorce to Minnie Carnahan, adjudging that she had in her possession or under her control $644, which in justice and equity is the property of Nelson Carnahan, being the sum found by the court as an equitable property settlement between them, and it was therein ordered that Minnie Carnahan turn over and pay to the said Nelson Carnahan, or his solicitors, the said sum, and, it appearing that she had said sum on deposit in the Lamb-ton Loan & Investment Company of Sarnia, Canada, that within 20 days from the signing of the decree she give to said Nelson or his solicitor a check upon said company, authorizing and directing it to pay and turn over said sum to Nelson Carnahan or his solicitor. This decree was enrolled January 10, 1905. On July 24, 1905, Nelson E. Carnahan’s solicitor filed a precipe for execution, and it was issued, and the same has not been returned unsatisfied. The appellant claims that the records in the office of register of deeds in St. Clair county show an undischarged levy of said execution upon real estate. On August 5, 1905, a joint written application of Nelsón E. Carnahan, and Charles E. Ormsby, his trustee in bankruptcy, was. filed, asking an order to show cause, against Minnie Carnahan, why she should not be punished for contempt for disobedience of the aforesaid decree. This application was accompanied by documents showing the facts stated therein, relating to the bankruptcy proceedings, etc., and a demand of payment. Complainant answered, a hearing was had, and the aforesaid order followed, from which Minnie Carnahan has appealed.

The following claims of counsel show the questions to-be considered:

(1) That in the divorce case the court had no jurisdiction to decree that the wife should turn over property to-the husband, and to the extent that it required it the decree was void, and does not support the contempt proceedings.

(2) An outstanding execution precludes proceedings for contempt.

(3) That there is a misjoinder, for the reason that the-trustee in bankruptcy is not jointly interested with Mr. Carnahan in the decree.

(4) That the trustee claims by assignment, and his. claim is simply one of debt.

(5) This is a proceeding to enforce a civil remedy, and for that reason is a civil action, and the law does not permit a woman to be imprisoned in such a case.

(6) The evidence offered to prove that Ormsby was appointed, and had qualified, as trustee, was not admissible.

(7) The demand made was legally insufficient.

(8) The court has not found that Ormsby has suffered injury by reason of the alleged misconduct.

(9) That there was no evidence indicating that the right® of Carnahan were impaired, impeded, or prejudiced, and that he had suffered loss and injury by the alleged misconduct.

(10) There is no evidence to support the finding.

(11) The order is void because the period of commitment is indefinite.

The first point raised is that the decree is void for the reason that property rights should not be tried in a divorce case. It is sufficient answer to say that equity has jurisdiction to grant divorces and to enforce trusts, and whether properly cognizable in one suit, as a rule, or not, the parties are bound by the decree, not having appealed. The record shows that the complainant joined in the trial of both questions. The decree cannot be considered void. Furthermore, as will be seen later, 3 Comp. Laws, § 8640, authorizes a division of certain classes of property, and it must follow that the court has power to determine what property the husband has.

Could execution issue, and, if so, does that preclude proceedings for contempt ? The decree affords the only light as to the conclusions of the judge upon questions of fact. From that we may infer that he has attempted to make a property settlement between them. We cannot suppose that the separate property of the wife was considered, and therefore may conclude that he was dealing with property belonging to them in common (being evidently personal), or the separate property of the husband as claimed in his answer. That the court had a right to decree a division of this property between the husband and wife is shown by 3 Comp. Laws, § 8640. It follows that under this statute it is within the power of the court to issue execution against the husband, or sequester the real and personal property of the husband, or declare a lien upon it under the express provisions of that section, to enforce the payment of alimony. It is silent, however, upon the question of execution against the wife, and, being a statute especially designed to afford relief to the wife, we think it was not designed to afford the husband relief against the wife, except incidentally in the decree as to division of property. It is probable that the possibility of a necessity of enforcing the decree against the wife, by execution or otherwise, was not considered. This would leave this decree to be enforced against her in the same way that it could be in a case brought for the single purpose of obtaining the husband rights in this fund. There is no doubt of the authority of the court to award execution upon application for the collection of any decree for the payment of money. See 1 Comp. Laws, § 468, which provides:

“(468) Sec. 63. ' The court may enforce performance of any decree, or obedience thereto, by execution against the body of the party against whom such decree shall have been made, or by execution against the goods and chattels, and in default thereof, the lands and tenements of such party; but no execution shall be issued on any final decree, until the same shall have been enrolled, as hereinbefore provided.”

This is an old statute, being section 3517 of the compilation of 1857. It has been the settled rule in this State that, where execution may issue to collect a decree for the payment of money, the proceeding by contempt to enforce a civil remedy cannot be resorted to. See Haines v. Haines, 35 Mich. 138; North v. North, 39 Mich. 67; Swarthout v. Lucas, 103 Mich. 494. We have no doubt that such is now the rule, except as it is modified by 3 Comp. < Laws, § 10891, subd. 3, and in construing that section we must harmonize the last provision of subdivision 3 — i. e., “ And for any other disobedience to any lawful order, decree or process of such court,” with the earlier provision permitting contempt proceedings on decrees “ for the nonpayment of any sum of money * * * in cases, where by law, execution cannot be awarded ” — and if we must say that this is a decree for the payment of money, in the sense of the term there used, this remedy is not appropriate.

As already indicated, this decree should be interpreted as deciding that upon a settlement of the question of alimony the court has determined how the property of the husband or that in which he has an interest with his wife shall be divided between them. It has been found, and adjudicated, that of this property she has in her control, beyond the jurisdiction of the court, on deposit, the amount, a sum which equitably belongs to him, and that she turn over and pay this sum. This is not a decree for the payment of money in the ordinary sense. It is not subject to the exemption law. The decree requires delivery of the specific thing — i. e., the fund — in contradistinction to the payment of a debt, and a writ of execution is not. appropriate in such a case. The fact that a void execution has been taken, and a void and ineffective levy made, does not affect the question; it being apparent that no benefit has been derived from it by the defendant and injury suffered by complainant.

Ormsby has succeeded to the defendant’s property, and in the capacity of trustee in bankruptcy is injured and impeded by the refusal to pay, and is entitled to receive the money when paid. The defendant is also injured and impeded for the reason that he is entitled to have it collected and paid in discharge of his debts, and to the return to him of any surplus that may remain. We see no impropriety in their joining in an application to the court to enforce payment by proper means.

We do not accept complainant’s theory that the assignment of this decree which follows like that of other property, the adjudication in bankruptcy, changes its nature and makes a debt of what has not been so decreed. If there were any disposition to comply with the decree, the complainant could readily find a way of safely doing so, even if we admit the contention that she cannot safely pay to Ormsby.

Counsel invoke the statute (3 Comp.'Laws, § 10342), which provides:

“ (10342) Sec. 45. No female shall be imprisoned on any process in any civil- action except in actions for the violation of any of the provisions of an act entitled ‘ An act to prevent the manufacture and sale of spirituous or intoxicating liquors as a beverage,’ the same being chapter sixty-nine of the compiled laws of eighteen hundred and seventy-one, in which action she shall be liable to the same punishment as a male.”

This raises one of th¿ most important questions in the case. Is this a civil process, and, if not, can a process in its nature criminal be used to enforce a civil right through imprisonment ? The only constitutional provision forbidding the imprisonment of women is the following:

“ No person shall be imprisoned for debt arising out of or founded on a contract express or implied, except,” etc. .Const, art. 6, § 33.

In addition to the statute heretofore mentioned is the following:

“(9553) Sec. 1. No person shall be arrested or imprisoned on any civil process issuing out of any court of law, or on any execution issuing out of a court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract expressed or implied, or for the recovery of any damages for the nonperformance of any contract.
‘ ‘ (9554) Sec. 2. The preceding section shall not extend to proceedings as for contempts to enforce civil remedies; nor to actions for fines, penalties, or forfeitures, or on promises to marry, or for moneys collected .by any public officer, or for any misconduct or neglect in office, or in any professional employment.” 3 Comp. Laws, §§ 9553, 9554.

If the statute first cited is to be applied literally, and no woman can be imprisoned, as a means of enforcing civil rights, the court of chancery, is powerless to enforce trusts against female trustees, the delivery of securities or other property, or obedience to injunctions, if not the production of testimony, and litigants are at the mercy of women who may refuse obedience to the judgments of courts of justice. We think that substantial rights such as these were not within the intent of the legislature in giving immunity from imprisonment on civil process, which may reasonably be held to be limited to writs of capias ad respondendum, ad satisfaciendum, and kindred process. Counsel for the complainant cite no authorities except the statutes, and we assume, therefore, that a search for others has been unavailing. If the question has been decided in this court, we have no recollection of the case. That the process is ■criminal and not civil, see Schwab v. Coots, 44 Mich. 463; Langdon v. Wayne Circuit Judges, 76 Mich. 373; Montgomery v. Booming Co., 104 Mich. 413. In Scott v. Chambers, 62 Mich. 538, the court did not give a woman’s immunity under the statute, as a reason for not sustaining contempt proceedings against her, disposing of the case upon another ground. The same was true in Latimer v. Barmore, 81 Mich. 592. See, also, 4 Enc. Pl. & Prac. p. 803, subd. c, and note. That the power extends generally to all who refuse obedience, see 9 Cyc. p. 23. See, also, 7 Am. & Eng. Enc. Law (2d Ed.), 40.

The objection to the introduction of proof of Ormsby’s relation to the case was not well taken. It had been alleged in the application, accompanied by a certified copy of the order, and complainant’s answer admits it. It was proper to show it.

We are of the opinion that a sufficient demand was •shown.

We think it sufficient for the court to find that Carnahan’s rights were impaired and impeded, etc., and the • order permitting payment to Ormsby was proper.

There was sufficient proof that both Carnahan’s and Ormsby’s rights were impaired and impeded.

The tenth claim need not be further discussed, being covered by what has been said. The eleventh is that the order made is indefinite, providing that complain•ant be imprisoned until the further order of the court. 3 Comp. Laws, § 10915, is said to limit the punishment to ;six months. Section 10913 provides:

“(10913) Sec. 23. When the misconduct complained ■of consists in the omission to perform some act or duty, which is yet in the power of the defendant to perform, he shall be imprisoned only until he shall have performed ■such act or duty, and paid such fine as shall be imposed, ;and the costs and expenses of the proceedings.”

Such oases are not covered by section 10915. See People v. Jones, 33 Mich. 303; Wilcox Silver Plate Co. v. Shimmel, 59 Mich. 524; Chapel v. Hull, 60 Mich. 167; Latimer v. Barmore, 81 Mich. 592; Swett v. Thorkildsen, 115 Mich. 314.

We find nothing in the record that warrants a reversal of the order, and the same is affirmed, and the case remanded that the same may be enforced.

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


author: Ostrander, J.

text:
    CITY OF BATTLE CREEK v. BARNES.
    1. Statutes — Partial Invalidity — Other Provisions.
    Act No. 392, Local Acts 1905, amendatory of the charter of Battle Creek, though invalid as to the provision therein attempting to create a municipal court for the city, is valid as to the provision changing the term of office of the mayor, eliminating the provision for his compensation, and placing a restriction on continuous holding of the office by the same person, since the invalid portion may be eliminated and. leave the part relating to the mayor in force.
    2. Munioipal Corporations — Officers—Compensation—Unlawful Payment — Recovery.
    Money paid to the mayor of a city as salary, on the supposition that a statute repealing the provision of the charter providing a salary was void, when in fact it was valid, may be recovered back.
    Error to Calhoun; North, J
    Submitted February 26, 1906.
    (Docket No. 226.)
    Decided March 20, 1906.
    Assumpsit by the city of Battle Creek against George S. Barnes for money had and received. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Bernard J. Onen, for appellant.

      O. S. Clark, for appellee.
   Ostrander, J.

Act No. 430, Local Acts 1899, entitled “An act to amend and revise the charter of the city of Battle Creek,” with the amendments from time to time made thereto, creates a municipal corporation and contains the legislative plan for the government and control thereof. By Act No. 392, Local Acts 1905, the local judicial system was attempted to be changed. The change was ineffective. Attorney General, ex rel. Hooper, v. Loomis, 141 Mich. 547. By the same act the term of office of the mayor of the city was changed, a provision of the old charter providing for his compensation was eliminated, and a restriction placed upon continuous holding of the office by the same person. All acts or parts of acts inconsistent with or contravening the amendatory act are expressly repealed. It is urged here that the amendatory act has no force or effect because (1) it fails to provide for the election of justices of the peace; (2) it diminishes the term of office of justices now in office; (3) the portion of the act declared unconstitutional by this court is so related to and forms such a part of the scheme of the whole act that no part of it can be sustained. If the third contention is resolved against appellant, the other two will require no attention.

A very small part of the charter is attempted to be amended. Those parts not amended remain in force. There is nothing to forbid the assumption that the legislature intended to change the provisions relating to the office of mayor, and intended, also, at the same time, to change the provisions relating to justices of the peace and to substitute new provisions therefor. No reasons for either change suggest themselves which would apply to support the other. The change of either, in the manner attempted, in no way affects the other. Eliminating from the amendatory act the provisions establishing a municipal court leaves nothing remaining which is inconsistent with those provisions of the act amended relating to the same subject-matter. The charter as amended is as complete and in every way as effective as it was before the amendments were made. Counsel for appellant cites and relies upon People v. Hiller, 113 Mich. 209, in which it is said that where an act or portion of an act is amended' so as to read ” in a prescribed way, that the section amended is entirely repealed. But in that case the amendatory section was valid.

That part of the amendatory law which is invalid has no force or effect. It may be eliminated and leave the portion relating to the office of mayor in force. The city having recovered judgment against the mayor for moneys paid to him as salary upon the supposition that the amendatory act was entirely invalid, the judgment is affirmed.

Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    GRAND RAPIDS NATIONAL BANK v. FORD.
    1. Mortgages — Deed Intended as Mortgage — Record.
    A deed absolute in form, but intended to operate as a mortgage, and accompanied by an unrecorded defeasance, is void as to a bona fide purchaser, it being recorded in the book of deeds instead of mortgages. Sections 8979, 8980, 8981, 8988, 3 Comp. Laws.
    3. Vendor and Purchaser — Bona Fide Purchaser — Pre-existing Debt.
    A creditor who surrenders security for a portion of his claim afforded by a declaration of trust and receives in its stead a deed of lands, is, as to such lands, a bona fide purchaser, as against a prior grantee claiming under a conveyance ineffectually recorded.

      Appeal from Kent; Perkins, J.
    Submitted October 6, 1905.
    (Docket No. 22.)
    Decided March 27, 1906.
    Bill by the Grand Rapids National Bank against Thomas F. McGarry, Nettie B. McGarry, and Mary A. Ford to foreclose a mortgage. From a decree for complainant, defendant Ford appeals.
    Reversed, and bill -dismissed.

      Burlingame, Belden & Orton, for complainant.

      Butterfield & Keeney, for appellant.
   Montgomery, J.

This was a suit for the foreclosure ■of a deed held by the complainant as security for the debt ■of defendant Thomas F. McGarry. The bill of complaint was taken as confessed by defendants Thomas F. McGarry and Nettie B. McGarry. Defendant Mary A. Ford, a subsequent purchaser of the property, contested the right of the complainant in the circuit court, and now appeals from the decree of that court.

In September, 1897, the defendant Thomas F. McGarry ■ and his wife executed a warranty deed running to Frank M. Davis (the cashier of complainant bank) of lot 4 of Tuft’s second addition to the city of Grand Rapids. This deed was given to secure the payment of a #1,000 note upon which McGarry’s apparent liability was that of an indorser, and a further sum of $1,500 that day advanced. A defeasance was executed at the same time. This deed was recorded in the book of deeds in the office of the register of deeds of Kent county. It was not recorded in the book of mortgages. Nor was the defeasance at any time recorded. On September 15, 1900, the defendants McGarry conveyed the property in question by warranty ■deed to defendant Mary A. Ford. She had no actual knowledge of the existence of the prior deed, but it was assumed that the property was free and clear from all incumbrances.

Two questions are presented for decision: (1) Whether the record of the deed to complainant as a deed — the fact being admitted that it was as between the parties to it intended to operate as a mortgage — was constructive notice to Mrs. Ford; (2) whether, if the record be held not to be constructive notice, Mrs. Ford is in a position to assert rights as a bona fide purchaser.

The question first stated has been presented in briefs and arguments which indicate that nothing which would aid the court has escaped the attention of counsel. The provisions of the statute, in so far as they are material, are as follows:

Section 8979, 3 Comp. Laws, provides that the register of deeds shall keep an entry of deeds and an entry book of mortgages. .

“Sec. 8980. In the entry books [book] of deeds, the register shall enter all deeds of conveyance absolute in. their terms and not intended as mortgages or securities, and all copies left as cautions, and in the entry book of mortgages he shall enter all mortgages and other deeds intended as securities, and all assignments of any such mortgages or securities; and in the entry book of levies he shall enter all levies, attachments, notices or lis pendens, sheriffs’ certificates of sale, and United States marshals’’ certificates [certificate] of sale, noting in such books the day, hour and minute of the reception and other particulars, in the appropriate columns in the order in which such instruments are respectively received, and every such instrument shall be considered as recorded at the time so noted. And the said record of such levies, attachments, notices, lis pendens, sheriffs’ certificates, marshals’ certificates, and the original papers required by statute to be filed to perfect such levies, attachments, notices, lis pendens, and certificates on file in the office of the register of deeds, shall be notice to all persons, of the liens, rights and interests acquired by or involved in such proceedings, and all subsequent owners or incumbrancers shall take subject to such liens, rights or interests.
“Sec. 8981. Different sets of books shall be provided by the registers of deeds of the several counties, for the recording of deeds and mortgages; in one of which sets • all deeds required by the preceding section to be entered in the entry book of deeds, shall he recorded at full length, with the certificates of acknowledgment or proof of the execution thereof, and in the other, all such instruments as are required to be entered in the entry book of mortgages, shall, in like manner, be recorded.
“Sec. 8988. Every conveyance of real estate within this State, hereafter made, which shall not he recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.”

It is very clear that, if the statute be construed literally, the instrument in question should have been recorded as -a mortgage. It cannot be questioned that this deed was, by the parties to it, intended as a security. It would seem, therefore, that, unless the complainant’s contention that the statute should be construed to mean that deeds, appearing to the register of deeds to be intended as security, are the only ones included in this phrase, the record was not made as the statute directs. It is strenuously insisted that the word “intended” should be interpreted as referring to something which is apparent in the language or form of the instrument, and not dependent upon the hidden mental process going on in the mind of either the grantor or the grantee, or both. This contention would have great force if the mere deposit of the paper for record constituted notice to subsequent purchasers, but it has been held that the statute (section 8988) above quoted, puts the burden upon the person offering the paper for record of seeing to it that the instrument is properly recorded. Barnard v. Campan, 39 Mich. 163; Gordon v. Hydraulic Co., 117 Mich. 620. It is difficult to imagine a case in which the grantee in a deed would not be aware of the fact that such deed was intended as security. It is then within the power of the party offering the instrument for record to comply with the statute, if the statute be given the construction for which defendant’s counsel contend. Indeed, we are not able to see how we can place upon the words “intended as security’’the construction contended for by complainant, without doing violence to the obvious import of the language. It. is to be noted that the register is to record in the book of deeds all deeds of conveyance absolute in their terms, and not intended as mortgages or securities.. The construction contended for would result in eliminating from the statute the words italicized.

Can the direction that instruments intended as security be recorded in the book of mortgages be treated as directs ory ? Authorities are cited which, in construing statutes differing somewhat from ours, treat such a provision as directory; but we think the better reasoned cases hold such provisions mandatory. The purpose of the recording law is that the true state of the title be represented. If the grantee in a conveyance complies with the terms of the statute, he is protected. If he fails to comply with, the plain requirements of the statute, the subsequent purchaser in good faith is protected, and is not to be charged with constructive notice. In 1 Jones on Mortgages (6th. Ed.), § 511, the rule is stated:

“ When it is provided that mortgages shall be recorded in books kept for that purpose separate from other instruments, a mortgage recorded as a deed is not effectual as against subsequent bona fide purchasers or mortgagees, even if the mortgage be in form an absolute deed, but intended as security for a loan of money ” — citing authorities.

The author adds:

“Except in States'whose statutes require a different-construction, the record of a conveyance in the form of an absolute deed, in a book kept for the recording of deeds, ought to be held to impart effectual notice of the rights or interests conveyed, although a statute requires mortgages to be recorded in separate books.”

The author also cites Kennard v. Mabry, 78 Tex. 151, to the point that a statute, which is merely directory to the recorder in this respect, would not invalidate a record of the mortgage not made in the record books-specially used for mortgages. This section fairly states the law. • As. we have pointed out, we cannot construe this statute as being merely directory to the register, for the reason that in this State at least the duty of complying with ¿he recording law rests upon the grantee. Nor do we think we can safely treat any of the distinct requirements of this statute as directory merely. The statute declares void, as against good faith purchasers, any conveyance “not recorded as provided in this chapter.” We cannot say that a conveyance recorded elsewhere than in the place designated is recorded as provided in the chapter referred to. Our conclusion is sustained by the reasoning in the following cases: Thompson v. Mack, Har. Ch. (Mich.) 150; Gordon v. Hydraulic Co., 117 Mich. 620; Dey v. Dunham, 2 Johns. Ch. (N. Y.) 182; Warner v. Winslow, 1 Sanf. Ch. (N. Y.) 432; Gillig v. Maass, 28 N. Y. 214; Odell v. Montross, 68 N. Y. 502; Friedley v. Hamilton, 17 Serg. & R. (Pa.) 70; Ives v. Stone, 51 Conn. 446; White v. Moore, 1 Paige (N. Y.), 553. Numerous cases are cited by complainant, most of which rest upon statutes differing materially from ours. As to those cases which cannot be distinguished, we must decline to follow them.

Does Mrs. Ford occupy the position of a bona fide purchaser ? It appears that defendant McGarry had in his possession at one time #8,000 belonging to Mrs. Ford. On November 1, 1898, McGarry represented to Mrs. Ford that he had loaned this money to one J. G. McGarry, and that to secure the repayment thereof J. G. McGarry had deeded to defendant McGarry a hotel property, in Walker, Minn. The deed to Thomas F. McGarry was in fact made, but whether there had been a loan to J. G. McGarry is at least doubtful. However, T. F. McGarry gave Mrs. Ford his promissory note for the amount; accompanied by an instrument reciting that he had negotiated a loan to J. G. McGarry, and declaring that said property was held in trust for Mrs. Ford, and providing for its sale in case of default. The property, while subject to prior incumbrances, had an equity available to Mrs. Ford of something over $2,000. On the 15th of September, 1900, a new agreement was made between the parties, by the terms of which McGarry deeded to Mrs. Ford the lot in Tuft’s subdivision for $3,500, paid her $500 in cash, and agreed to pay the remainder in installments, which was to be in full of all claims and demands. And it was expressly agreed that this engagement was to take the place, and stand in lieu, of all other negotiations upon the subject-matter. This was a discharge of the security afforded by the declaration of trust. McGarry so treated it and conveyed away the equity in the Minnesota property before Mrs. Ford learned of complainant’s claim. The rule of Schloss v. Feltus, 103 Mich. 525 (36 L. R. A. 161), is invoked by complainant. It is contended that the only consideration for the conveyance to Mrs. Ford was the discharge of a pre-existing debt. There was in this case something more. There was release of the security of the trust agreement, and a transfer of the trust property to an innocent purchaser while Mrs. Ford stood disabled to enforce the trust, because of her agreement to abrogate it. She could not have been placed in statu quo after learning that she had been defrauded. In these circumstances she is entitled to occupy the position of a bona fide purchaser.

The decree will be reversed, and the bill dismissed, with costs of both courts to defendant Ford.

Carpenter, C. J., and Grant, Hooker, and Moore, JJ., concurred.


author: Moore, J. Grant, J.

text:
    ERPELDING v. McKEARNAN.
    Contracts — Illegality—Effect—Parties in Pari Delioto.
    A corporation having sold all its property, business, and good . will to another corporation engaged in the same business, one o£ the stockholders in the selling corporation brought suit against the managing stockholder to recover his proportionate share of a sum which he alleged was paid by the purchaser to the manager as a part of the consideration for the sale in accordance with a secret agreement between them. Held, that evidence offered by defendant that the sale was a part of a fraudulent scheme on the part of the parties to create a monopoly in the business was admissible, since if plaintiff was party to the illegal contract he could not recover.
    Error to Muskegon; Russell, J.
    Submitted October 11, 1905.
    (Docket No. 34.)
    Decided March 27, 1906.
    Assumpsit by George B. Erpelding against John Mc-Kearnan for money had and received. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Cross, Lovelace & Loss (Harrison Geer, of counsel), for appellant.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellee.
   Moore, J.

In April, 1900, a corporation was organized in Chicago with $20,000 capital, known as the “ Century Seating Company.” Its business was to be the manufacturing and selling of school furniture and school supplies. The plaintiff and his brother John E. Erpelding owned one-half the stock of said corporation. Mr. Mc-Kearnan, the defendant, was the man who suggested the organization of the corporation. uHe was a stockholder therein, and its manager. A company known as the> “American School Furniture Company” was already doing business in Chicago. Soon trouble and litigation arose between the two corporations.

It is the claim of plaintiff that in the latter part of the year 1901 an agreement was made at Chicago through Mr. McKearnan, acting for the Century Seating Company, with the American School Furniture Company that the latter should become the purchaser of all the stock, business, and good will of the Century Seating Company, and that plaintiff and his associates were led to believe that the consideration therefor was the sum of $30,000. That said sale was made and said $30,000 was divided between the stockholders of the Century Seating Company, the plaintiff and his brother receiving thereof $15,000. It is the further claim of plaintiff that before he commenced this suit he learned for the first time that Mr. McKearnan. had a secret agreement with the officers of the American School Furniture Company that McKearnan should be paid $8,500 in addition to the $30,000 already mentioned, and that this was kept from the plaintiff and his brother and the other stockholders. Upon receipt of this information the plaintiff took an assignment from his brother o£ his interest, and it is to recover one-half of the $8,500 so paid to Mr. McKearnan that this suit is brought.

Mr. McKearnan interposes by way of defense the claim that the American School Furniture Company was a trust organized for the purpose of controlling the manufacture and sale of school furniture, and that its purpose in acquiring the Century Seating Company was to remove a competitor in its business, and that as part of the consideration for the purchase by the American School Furniture Company, it was agreed that there should be spread upon, the books of the Century Seating Company an agreement to hire Mr. McKearnan for five years at the sum of $3,000 a year, and that the Century Seating Company should continue to exist as a corporation, and should be held out to the public as a corporation still independent of the trust, and as doing business on its own account, and that the plaintiff and his brother were parties to that agreement, and consented to its being made, were participants therein and in the fruits thereof. It is further claimed that said agreement was contrary to public policy, and was so tainted that the law will leave all the parties thereto where they left themselves.

The further defense is made that no part of the $8,500 which was paid to defendant was paid as part of the consideration for the stock, good will, and business of the Century Seating Company, but it is Mr. McKearnan’s claim that the American School Furniture Company recognized that he was practically the Century Seating Company, and desired to obtain his services and in consideration of his agreeing, in case the American School Furniture Company made the purchase as contemplated, that he would enter into its employ for the period of five years at the ostensible salary of $8,000 a year, that it would pay to him in addition thereto the sum of $8,500, and that the payment was made as agreed and for that purpose only.

The circuit judge upon the trial submitted to the jury one question only, and that was whether the $8,500 was paid to Mr. McKearnan as part of the purchase price of the stock, good will, and business of the Century Seating-Company, and charged the jury if it was, then the plaintiff was entitled to a judgment for one-half the amount thereof. On the other hand, he charged them if the payment was made to Mr, McKearnan as part of the compensation which he was to receive as an employé of the American School Furniture Company for the five years, which he agreed to work for them, the plaintiff could not recover. The jury found a verdict for the full amount of the claim of the plaintiff. The case is brought here by writ of error.

The questions involved in the case all center about the one question as to whether the transaction between the two corporations, if as claimed by the defendant, was so tainted with fraud because against public policy that the law would leave the parties where it found them. If the defendant is right in this claim the case should be reversed. If wrong it should be affirmed.

We can present the issues involved in no better way than to quote from the briefs of counsel. Counsel for plaintiff say:

“ The stockholders and owners of the Century Seating Company sold their entire interest in such company and the entire plant, assets, business, and good will of the company. The consideration for the property was paid in cash by the purchaser. The vendors retained no part of, no interest in, and no control over, the property sold. After the sale, none of the vendors had any connection with the property except that the defendant and possibly the plaintiff were employed by the vendee and paid salaries which constituted the consideration for their services. Such a sale and transfer, even to an illegal trust or monopoly, is not unlawful. As well might it be said that the farmer is prohibited from selling his, wheat to the board of trade operator who is seeking to ‘ corner ’ the wheat market, or from selling his cattle to members of the beef trust. * * *
“ The alleged illegality of the contract in question cannot avail the defendant as a defense to this action for the reason that such contract was not between plaintiff and defendant, but was with third persons who have fully performed the same and paid over the moneys to defendant for the plaintiff and his assignor, and this suit is not brought to enforce such alleged illegal contract or any part thereof. That contract has been fully performed and executed by the parties thereto. The moneys sought to be recovered have been paid to the defendant by the representatives of the American School Furniture Company for the plaintiff’s use. The illegality (if any) of the original transaction at most ‘only appears incidentally in explaining whence the moneys were received.’ Neither the American School Furniture Company nor the public will be benefited or injured in any manner by the enforcement of the implied contract of the defendant to pay to the plaintiff the moneys received by the former for the latter’s use. To establish his case, it was not necessary for plaintiff to prove or rely upon the alleged illegal contract or any part thereof.” Citing Willson v. Owen, 30 Mich. 474, 475; Richardson v. Welch, 47 Mich. 309-312; Peo ple v. Hawkins, 106 Mich. 479-484; McDonald v. Lund, 13 Wash. 412; Planters’ Bank v. Union Bank, 16 Wall. (U. S.) 483; Armstrong v. American Exchange Nat. Bank, 133 U. S. 433, and many others.

Counsel insist that in most, if not all, of the cases, including those cited and so copiously quoted by counsel for defendant, wherein the right of recovery has been denied will be found, upon examination, to have been suits upon the illegal contract itself. Counsel for defendant say:

“We are not contending that a mere sale of stock or property to an illegal trust, is, in itself, unlawful. On the contrary, we expressly conceded that one corporation, or one or all of its stockholders, might sell their stock to whomsoever they saw fit.
“Our claim was that the stockholders of the Century Seating Company did not stop with a mere sale of the entire capital stock and property of that corporation, which, under some circumstances might have been an innocent act, but that they went further — that other, and unlawful elements, entered into the transaction, which stamped it as being in violation of law, and which contaminated and destroyed any cause of action which plaintiff might otherwise have; that except for the unlawful features of the contract, no sale could have been made; that the unlawful elements were the major consideration for which the moneys were paid; that the contract was made to further the unlawful objects and purposes of the American School Furniture Company, and was therefore void on the ground of public policy, independent of any statutory provisions; * * *
The principal object of the sale was the stifling of competition, and the parading of the Century Seating Company in the guise of a competitor c not in the trust,’ when, as a matter of fact, the plant of the Century Seating Company was to be dismantled and shipped to the different factories of the American School Furniture Company, as was done within two or three weeks from the date of the sale, the whole purpose of the transaction being to subserve the unlawful objects of the American School Furniture Company.
“ The unlawful purposes of the transaction were of the very essence of the contract, and cannot be separated therefrom. Yet the jury were not permitted to pass upon the question whether the unlawful elements of the contract formed any part of the consideration for the payment of the moneys sought to be recovered.”

They insist the evidence tending to show the illegality of the contract should have been admitted, and the jury, under proper instructions, permitted to pass upon the question, citing Richardson v. Buhl, 77 Mich. 632 (6 L. R. A. 457), Detroit Salt Co. v. National Salt Co., 134 Mich. 103, and many other cases, but relying especially upon Richardson v. Buhl, supra, and the cases cited therein, and McMullen v. Hoffman, 174 U. S. 639, from which counsel quote freely.

It must be remembered we are not to decide whether an illegal contract was established to which plaintiff was a party, for the trial judge declined to allow defendant to go into that question. It may be that if defendant had been allowed to make what proof he could he would have failed to establish the fact that plaintiff and his brother were parties to an illegal contract. We must assume for the purposes of this case that if permitted to introduce his testimony he could have established the fact. There is a difficulty in harmonizing all the cases cited, and we shall not enter upon that task. The principles involved are discussed at great length in Richardson v. Buhl, supra, Detroit Salt Co. v. National Salt Co.,supra, and in McMullen v. Hoffman, supra. These cases we think are according to the great weight of authority. We have not overlooked the cases cited by counsel for plaintiff, but we think many of them are distinguishable from this case. In Willson v. Owen, 30 Mich. 474, the question was submitted to the jury as to whether Willson was associated with the plaintiffs in the illegal venture, and they found he was not. Attention is called to this fact in the opinion, and the court afterwards say:

“The implied promise of one holding moneys for such an association must be understood to be, to make payment to those who are associates when suit is brought.
* *
“The illegality of this association only appears incident-. •ally in explaining whence the moneys were received; but the ground of recovery is that the moneys were received for the plaintiffs, and it is not material how or on what account they came to his hands, if in fact for the plaintiffs’ use.”

But suppose it had been found that plaintiff and defendant alike had been engaged in the illegal transaction, is it not likely a different result would have been reached? Suppose three men enter into a conspiracy to sell a gold brick to a farmer, and succeed in the transaction and get .away, one of them carrying with him a sum of money as a result of the successful carrying out of the conspiracy, ■can it be said that, after the transaction between the farmer and the conspirators is ended, if the conspirator who had the money withheld it, the law would aid the •other two in recovering an equal share of it from him? We think the question must be answered in the negative. "The other cases cited are either distinguishable, or, if not, we decline to follow them. This disposition of the case makes it unnecessary to pass upon the other questions.

Judgment is reversed, and a new trial ordered.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.

Grant, J.

I concur in the opinion of my Brother Moore. Courts will not aid parties in the distribution of the funds obtained by joint criminal conduct, or by a conspiracy to violate the laws of the country, when the claimant is a party to such conspiracy. If the plaintiff in this ■case was not a party to the agreement made with Mr. McKearnan, and was not an active party to any fraudulent scheme to evade the law and create a monopoly, he is - entitled to recover. If he was he is not. Mere knowledge on plaintiff’s part of the unlawful purpose of the purchasers of the plant would not be sufficient to make him a party to the conspiracy. It often happens that a manufacturer cannot afford to fight a trust or monopoly, and, rather than face financial ruin, will sell to such trust or monopoly. The law protects him in so doing, and will not permit the purchaser to set up the illegality of its own acts, intents, and purposes in defense of his contract.

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