author: Montgomery, J.

text:
    COCKERLINE v. FISHER.
    1.. Landlord and Tenant — Summary Proceedings — Judgment-Effect.
    Where, on summary proceedings to recover possession of land from a tenant, the tenant had judgment on other grounds than that there was no rent due when the suit was instituted, the judgment was not res judicata as to a claim for rent due prior to its entry.
    2. Same — Nonpayment of Rent — Termination of Tenancy — Demand.
    Under section 11164, 3 Comp. Laws, authorizing the termination of a tenancy for nonpayment of rent by a notice to quit or pay rent, it is not • necessary that a formal demand be made on the premises as a prerequisite to re-entry.
    3. Same — Agent of Landlord — Payment of Rent.
    Where a notice to a tenant to quit or pay rent was intrusted to the agent of the landlord for service, and was served on the premises, the tenant was entitled to treat such agent as having authority to receive the rent and discharge his obligation by making payment.
    4. Same — Contract—Construction.
    A contract by which plaintiff covenants to pay defendant two-thirds of the income of a farm, unless otherwise specified, to be paid when hay, grain, potatoes, hogs, wool, or any other marketable product is sold, the toll to be first deducted, is a lease.
    •5. Same — Re-entry—Artifice—Unlawful Entry.
    Where a landlord had a right of re-entry for nonpayment of rent at the time he induced his tenant and his family to leave the premises in order that he might take peaceable possession, and, had the tenant remained at home, it would have been his duty to have delivered possession on demand of the landlord’s agents, it was immaterial that the landlord induced him by artifice to leave the premises.
    Error to Oakland; Smith, J.
    Submitted February 10, 1905.
    (Docket No. 136.)
    Decided May 12, 1905.

      Trespass quare clausum fregit by William Cockerline against Maxwell M. Fisher. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      John H. Patterson (Fred A. Baker, of counsel), for appellant.

      James H. Lynch, for appellee.
   Montgomery, J.

William Cockerline, the plaintiff, became the tenant of Maxwell M. Fisher under a contract dated February 1, 1899. The plaintiff covenanted and agreed to pay to defendant two-thirds of the income of said farm, unless otherwise specified, to be paid as follows, to wit:

“When hay, grain, potatoes, hogs, wool or any other marketable product is sold, the toll is to be deducted, and two-thirds of the balance paid to the party of the first part. Two-thirds of the milk and one-half of the eggs and increase of poultry is to be turned over to party of the first part.”

November 3,1900, Mr. Fisher gave Cockerline notice to quit and surrender possession ‘ ‘ by reason of the violation by you of the terms and conditions of the lease bearing date February 1, 1899.” April 18, 1901, another written notice to the same effect was given. October 3, 1901, a notice to quit and surrender “or pay the rent due me” was given by Fisher. The first two notices were served by George W. Fay, a deputy sheriff and constable, and the third notice was served by Victor Van Every, a deputy sheriff. The certificates of these officers show that the first and third notices were served on Cockerline at his residence in the township of Bloomfield, which was on the farm rented. July 17, 1901, Mr. Fisher instituted proceedings before a circuit court commissioner to recover possession. Cockerline entered a plea of not guilty. The case was tried on the 6th of September, 1901, before a jury, and a verdict of not guilty was rendered, when Fisher took an appeal to the circuit court. After the service of the notice of October 3, 1901, to quit or pay the rent due, Mr. Fisher, October 12, 1901, commenced another suit before the circuit court commissioner to recover possession, which came on for trial under a plea of not guilty October 31, 1901. After the trial had commenced, this suit was discontinued by the counsel for the complainant.

While Cockerline and his wife were in Pontiac on October 31, 1901, to attend the trial before the commissioner, Mr. Fisher, by persons employed by him for that purpose, took peaceable possession of the farm. When Cockerline and his wife went to Pontiac, they left three children on the farm. Harry, aged 19 years, went with a team to a field about 20 rods from the house, and was engaged in rolling the field; Eleanor, aged 8 years, went to school; and Irene, aged 13 years, remained at the house. The persons employed to take possession for Mr. Fisher were Harry Schellenburgh and Ernest C. Miller, and it appears from their testimony and that of Harry Cockerline and Irene Cockerline that when Schellenburgh and Miller arrived at the premises they found Irene in the yard back of the house and Harry in the field; that Schellenburgh told Irene to go over to Albert Fisher’s house, and stay with Fisher’s daughter, Adelaide, which she did; that Miller went down in the field, and told Harry that he had taken possession for Mr. Fisher, and told him he had better go to Pontiac, and inform his folks, which he did. Schellenburgh and Miller then moved all of Cockerline’s household goods and effects into the highway, and put a rope across the entrance to the premises, and when Cockerline came they prevented him from entering on the premises by threatening to use force if he attempted to do so; Schellenburgh being armed with a gun and Miller with a ball bat. Mr. Fisher has retained possession of the farm ever since.

This is an action of trespass, brought by Cockerline against Fisher to recover damages on the theory that the latter had no ground on which he could forfeit the lease, and, if he did have good grounds for taking possession, he did so forcibly. The declaration contains four counts. The first two are in the usual form of trespass quare clausum, the only difference being that in the first count it is alleged that the defendant pointed a loaded gun at the plaintiff, and threatened to shoot him; and in the second count that allegation is omitted. The third and fourth counts are like the first and second, with a reference to section 11206, 3 Comp. Laws, and a claim for treble damages under that statute. At the trial in the court below before the Honorable George W. Smith, circuit judge, the counsel for the defendant, Fisher, offered “to prove that there was over $300 rent due at the time of the service of the notice October 3, 1901,” but the circuit judge, on the objection of counsel for the plaintiff, excluded all evidence of rent due from sales made prior to the 6th day of September, 1901, on the theory that the judgment for the defendant, rendered on that day, in the first suit before the circuit court commissioner, was res judicata. It was, however, admitted that between the 6th of September and the 3d of October, $152.81 in cash came into plaintiff’s hands from a sale of wheat and oats; two-thirds of which belonged to defendant. Plaintiff admitted that no money was paid over in pursuance of the notice of October 3d. Defendant offered to show that there was also a personal demand for rent made upon plaintiff July 17, 1901. The circuit judge excluded this testimony, and ruled, for the purposes of the trial, although expressing some doubt upon the first question, three things:

(1) That the first proceedings before the commissioner were res judicata of defendant’s right to demand rent due up to September 6th.

(2) That the lease or contract being silent as to the place of payment, demand for the rent should have been made on the farm.

(3) That if the jury found that the purpose of the second suit was to entice plaintiff and his wife away from home, so that a peaceable re-entry could be made, and defendant entered, taking advantage of their absence, said entry was unlawful.

1. We do not find im the record that it was adjudicated in the first case before the commissioner that no rent was due at the time that suit was instituted. On the contrary, it does appear affirmatively that other grounds of defense were argued in that proceeding. We think it should not be said that if the plaintiff in fact had failed to pay over to the defendant the rent due prior to September 6th, the judgment of the commissioner, which determined simply that the defendant in this case was not at that time entitled to a judgment of restitution, necessarily discharged Cockerline from the obligation to pay the rent due. McSloy v. Ryan, 27 Mich. 110. This question is, however, of minor importance, as it appears by plaintiff’s own testimony that at the time of the re-entry and of the service of the third notice there were funds in plaintiff’s hands which it was his duty to pay over on proper demand.

2. We think the court was in error in holding that a personal demand on the premises was a prerequisite to the exercise of the common-law right of re-entry. The statute (3 Comp. Laws, § 11164) provides a means of terminating a tenancy for nonpayment of rent by a notice to quit or pay rent. It has been held in New York, under a similar statute, that a notice to deliver possession or pay rent takes the place of a formal demand on the premises. Van Rensselaer v. Ball, 19 N. Y. 100; Van Rensselaer v. Snyder, 13 N. Y. 299.

It is no stretch to say that when this notice was intrusted to the agent of the landlord for service, and was served upon the premises, the tenant had the right to treat such agent as having authority to receive the rent and discharge his obligation by making payment.

We do not overlook plaintiff’s contention that the relationship existing between plaintiff and defendant was not that of tenant and landlord, but that they were tenants in common of the crops. We do not think the lease subject to this construction as to all of the crops or personal property. It is true that as to certain of this property they may have been tenants in common, but under the terms of the lease above quoted Cockerline became the owner of the crops, with full power to sell and convert the same into money. Witheral v. Booming Co., 68 Mich. 48-52. Moreover, the language of the instrument shows it to have been intended as a lease, and a right of security in case of a breach of the covenants or obligations is expressly reserved. Such an instrument is a lease if also something more. Rowlands v. Voechting, 115 Wis. 352.

3. It follows from what has been said that defendant had a right of re-entry on the 31st of October, 1901, under the holding in Smith v. Loan & Building Ass’n, 115 Mich. 340 (39 L. R. A. 410). Did he forfeit that right by the artifice practiced in instituting a civil suit to induce the plaintiff and his wife to leave home in order that he might regain possession ? No case in point is cited, and the question must be determined on principle. Of what does the plaintiff complain in this connection ? If he had remained at home, it would have been his duty to deliver possession on the demand of plaintiff’s agents. He has no legal grievance for being deprived of the opportunity of making an unauthorized resistance to the exercise of a just right. The court was in error as to this question.

The other questions presented are not likely to again arise.

The judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

license: Public Domain

text:
    HOGAN v. DETROIT UNITED RAILWAY.
    1. Railways — Equipment — Sale — Contract — Record — Subsequent Purchaser — Good Faith — Question eor Jury.
    Where one electric railway purchased, before its completion, all the assets of another, taking a guaranty of title to equipment, the question of its good faith, as against one who had sold equipment on a contract of conditional sale, is for the jury, though the contract of conditional sale was not acknowledged and recorded with the secretary of State in accordance with section 6336, 2 Comp. Laws.
    2. Same — Guaranty—Eyidence.
    The taking of the guaranty is a circumstance which may be considered by the jury as bearing on the question of good faith.
    3. Same — Trover—Good Faith — Burden op Proof.
    In trover by the seller of electric-railway equipment on an unrecorded contract of conditional sale, against a purchaser from the buyer, the burden is upon plaintiff to prove defend.ant’s lack of good faith or notice of .his rights.
    Error to Wayne; Hosmer, J.
    Submitted February 14, 1905.
    (Docket No. 65.)
    Decided May 12, 1905.
    Trover by Walter G. Hogan against the Detroit United Railway. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark ( Geer & Williams, of counsel), for appellant.

      Bowen, Douglas, Whiting & Murfih, for appellee.
   Montgomery, J.

This is an action of trover brought by Walter G. Hogan, assignee of the Northern Electrical Manufacturing Company, against the Detroit United Railway, to recover the value of certain electrical apparatus ithat came into the possession of the defendant by the purchase by it of the property of the Detroit, Rochester, Romeo & Lake Orion Railway. The Detroit, Rochester, Romeo & Lake Orion Railway was an interurban electric road which extended from Royal Oak to Flint, with a branch from Rochester to Romeo. It was constructed and equipped under three certain contracts, dated respectively March 23, 1899, June 5,1899, and June 5, 1900. The construction company received $1,100,000 of bonds, $470,000 of stock, and $30,000 in cash, which was in full payment for such construction and equipment. In January, 1901, the construction company entered into a written contract with the Northern Electrical Manufacturing Company for the purchase of the electrical apparatus in question. This contract provided that payment for this apparatus should be made in installments, and that the title to said apparatus should remain in the Northern Electrical Manufacturing Company until the purchase price should be fully paid in cash, and that the apparatus should be delivered within four months. The apparatus was not delivered within four months. In fact it was not delivered until the following September and October. On July 27, 1901, the Detroit, Rochester, Romeo & Lake Orion Railway entered into a contract with the Detroit United Railway for the sale of all its property. The negotiations preceding the execution of this contract were conducted on behalf of the Detroit United Railway by Mr. J. C. Hutchins, with the exception of the negotiations as to the purchase price, which were conducted by Messrs. Everett and Moore. Before entering into the contract Mr. Hutch-ins had an examination of the condition of the road made by the heads of three departments of the Detroit United Railway, viz., the general superintendent, superintendent of tracks, and superintendent of motive power. These superintendents furnished Mr. Hutchins with written reports of the examination made by them.

In the report of Mr. E. J. Burdick, superintendent of motive power, there is the following reference to the apparatus in question:

“ They have also contracted for three 250 E. W. rotary converters, none of which are as yet in place, and from the present outlook will not b,e in shape for two or three months.”

Mr. Burdick testified that he received his information concerning these rotaries from the men at work on the road, and that Mr. Ray, engineer of the Detroit Construction Company, verified the information; that he was informed by the men that the apparatus was to be of the Stanley pattern, but that he was not informed and never learned that it was to be installed by the Northern Electrical Manufacturing Company; that he had no information or knowledge whatever of the contract between the Detroit Construction Company and the Northern Electrical Manufacturing Company for the installation of this equipment. The contract of July 27th provided that the road should be completed in accordance with the recommendations contained in the reports of the three superintendents to Mr. Hutchins. The Detroit United Railway took possession of the road on August 1,1901. This apparatus was installed by the Detroit Construction Company, under the supervision of a representative from the Stanley Company, in September and October, 1901, and was ready for operation the latter part of October or the 15th of November. The Detroit United Railway received its deed of the property from the Detroit, Rochester, Romeo & Lake Orion Railway in November, 1901, and paid the full purchase price for the property on December 2, 1901.

After the failure of Frank C. Andrews in February, 1902, the Northern Electrical Manufacturing Company first notified the Detroit United Railway of its claim to this apparatus. It is claimed that this was the first information that the Detroit United Railway had of the contract between the Detroit Construction Company and the Northern Electrical Manufacturing Company, and that the Northern Electrical Manufacturing Company claimed to hold title to the apparatus. There remained due the electrical company under the contract the sum of $9,950, for which it had accepted the promissory note of the Detroit Construction Company, indorsed by Andrews, Winter, and Lau, dated January 4, 1902. The contract between the construction company and the electrical company had never been acknowledged and filed in the office of the secretary of State in accordance with section 6336, 2 Comp. Laws.

In June, 1902, because several creditors of Frank C. Andrews, including the Northern Electrical Manufacturing Company, threatened to institute involuntary bankruptcy proceedings against Andrews, the Union Trust Company paid the claim of the Northern Electrical Manufacturing Company, and took an assignment of its contract with the construction company in the name of Walter G. Hogan. It demanded the apparatus from the Detroit United Railway, and then brought this action and recovered judgment in the circuit court. The defendant claims that it is a bona fide purchaser of this apparatus, without notice.

It is contended that there was no evidence having any tendency to show that the defendant was not a bona fide purchaser for value, and that a verdict should have been directed for defendant. We think that the facts and circumstances were such as to leave it open to the jury to find that the defendant refrained from making inquiry or» investigation, either because it was assumed that liens existed or would exist when the property was finally turned over, or, for reasons of its own, did not care to pursue an inquiry suggested by the situation. We by no means intimate that this was a necessary inference or one for .the court to draw, but do hold that it was open to the jury to draw that inference if convinced of its truth. In reaching this conclusion, these facts, of which there was testimony, have weight: First, that it was known that the work of construction was incomplete; second, that the contract of July 27th was supposed to cover all the assets of the selling company, and that a guaranty was exacted.

This brings us to the second question raised, viz., the court ruled that the fact that a guaranty was taken might be considered as bearing upon the question of whether defendant was a bona fide holder. It is strenuously insisted that this was error, that it in effect made the exercise of business prudence evidence of bad faith. We are convinced, however, that, in the circumstances of this case, it was open to consideration by the jury for the purpose stated by the circuit judge. Standing by itself, it would not have been admissible for the purpose suggested; but, when taken in connection with the fact that defendant was taking over the entire property, and took possession before its completion, and of its knowledge of the resourcos of the selling company, it was a circumstance bearing upon the question of good faith. Under section 6336, 2 Comp. Laws, such a contract as that relied upon by plaintiff is not valid as against any subsequent judgment creditor, or any subsequent bona fide purchaser for value and without notice.

The circuit judge charged:

“ There is no question about that, gentlemen of the jury. Upon one who claims to be a bona fide purchaser for a valuable consideration the burden of proof always rests; and I am obliged to say to you about the burden of proof, as I have said to you, not as a panel, but to you as members of other panels, that the ‘ burden of proof ’ or the ‘ preponderance of testimony ’ does not mean necessarily any class of testimony or any kind of evidence, or the number of witnesses, but it means that testimony which satisfies you of the very right of the case. And if the Detroit United Railway has done that thing, it has sustained the burden of proof, and, if it has not done that, it has not.”

In case of property, the possession of which has been procured of the plaintiff by fraud, the rule as to the burden of proof is as stated by the circuit judge. Whitaker Iron Co. v. Preston Nat. Bank, 101 Mich. 150. Under the recording laws, where the question arises between a vendor and purchaser, the rule has been settled for many years that when the purchaser shows the payment of a valuable consideration, and that no notice of the true owner’s title appears of record, the burden is cast upon such owner to show notice of his rights brought home to such subsequent purchaser. Shotwell v. Harrison, 22 Mich. 419; Hanold v. Kays, 64 Mich. 439.

For the error in this instruction, the judgment is reversed, and a new trial ordered.

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


text:
    SEITZ v. PEOPLE’S SAVINGS BANK.
    1. Boundaries — Continuation.
    As a general rule a boundary line marked part of the way will be continued in the same direction for the full distance.
    2. Adverse Possession — Boundary Line.
    Evidence in a case where the space between two dwellings was used wholly by the occupants of one, examined, and held, that whether such use was merely permissive, or hostile so as to vest title to the whole space in the user, irrespective of the lot line, was for the jury.
    3. Covenants — Breach—Action—Evidence—Harmless Error.
    In an action for breach of the covenant of warranty in a deed, where it was undisputed that the plat, abstract, and advertised notice of the sale showed a lot 30 feet wide, error, if any, in admitting evidence that it was stated to plaintiff at the sale that the lot was 30 feet wide, is harmless.
    4. Same — Damages—Expense op Depending Title.
    Where a purchaser of property resold it, taking a mortgage for a part of the purchase price, and, on his attempting to foreclose the mortgage by advertisement, the mortgagor filed a bill to restrain foreclosure and unsuccessfully attempted to have his claim for a deficiency of land adjudicated, the expense of defending the chancery suit could not be recovered by the original purchaser against his vendor in an action on the covenant of warranty, title to a portion of the land having failed.
    5. Same — Attorney’s Fees.
    A grantor of land is liable on his covenant of warranty for attorney’s fees expended by the grantee in defending the title.
    Error to Wayne; Mandell, J.
    Submitted February 17, 1905.
    (Docket No. 176.)
    Decided May 12, 1905.
    Covenant by Mabel Ward Seitz against the People’s Savings Bank for breach of warranty in a deed. There was judgment for plaintiff, and defendant brings error.
    Affirmed conditionally.

      Keena & Lightner, for appellant.

      L. O. Stanley, for appellee. •
   Montgomery, J.

This action is brought to recover on a breach of covenants of warranty in a deed to plaintiff of property described as the west half of lot numbered twenty-nine (29) in section 9 of the Governor and Judges’ Plan of the city of Detroit. That the bank had title toa parcel of land at substantially the described location is not disputed. The ground of recovery is that there was a shortage in the parcel. It is undisputed that, according to the Governor and Judges’ Plan, lot 29 is 60 feet in width. The evidence on the trial disclosed that title to the east half of lot 28 (adjoining the property which is the subject of this controversy on the west) was in Fred R. Gartner. The easterly half of lot 29 was owned by Mr. Simons. The evidence on this trial showed that the line between the Gartner property and the bank property was marked by user, and a portion of the way by a fence at a place easterly of the surveyed line, but as defendant contends, and as the evidence fairly shows, that the line fixed by user had been established for much more than the statutory period, this line could not be disturbed by a survey. It is the defendant’s contention that the easterly line of the bank property was likewise fixed by user and adverse possession for a period of more than 15 years, and that this line was so fixed as to give the bank property substantially 30 feet in width for its entire length. This contention of defendant presents the important question in the case.

Plaintiff concedes that if the case presented is one of a mere shifting of the location of the various lots by an actual occupancy for the statutory period, and if each parcel contains the proper area, there is no cause for complaint ; but it is insisted that this case distinctly concerns the quantity of land and not its location, and that, while there is a frontage of 30 feet, there is a shortage at the rear of the lot 2.15 feet, and that this shortage continues to near the front of the lot, leaving a gore-shaped shortage, so to speak. It is obvious, therefore, that an understanding of the evidence relating to the easterly line of the bank property and of its legal effect is essential. To one reading the record, it is equally obvious that it is difficult. The evidence tends to show that the parcel east of the bank property was occupied by a brick house; that between the walls of that brick house and the bank property was a passageway extending from the front to the rear of the bank (or Seitz) property, inclosed at either end with a lattice fence, having a door to admit of passage; that this passageway was used solely in connection with the bank property; that there was a walk next to the bank property occupying substantially one-half of this passageway to a point some 55 feet from the front, where steps were at one time erected leading into a side door of the Seitz house, and that a walk had been carried around these steps to the rear of the house, and that at the point opposite the steps this walk extended to the wall of the Simons house on the east. A shed on the Simons property extended westerly from the line of the main building 1.55 feet, and a brick barn at the rear of the Simons property extended easterly of the west line of the main wall of the house about 2.15 feet. The eaves of the Simons house overhung the walls 18 inches. The question presented is whether proof of occupancy of this character conclusively shows that the occupancy of this passageway was adverse and not permissive. The question was submitted to the jury as a question of fact. It is to be noted that there was at the most a conflicting occupancy. The eaves of the Simons house overhung the Seitz walk at the point where it extended around the steps and came up to the wall of the Simons house. The eaves were nearly in line with the line of the brick barn extended.

As a general rule, a line marked part of the way will be continued in the same direction for the full distance. 5 Cyc. 876; 4 Am. & Eng. Enc. Law (2d Ed.), p. 807. In view of this presumption, and of the actual location of the brick barn, and of the extension of the eaves westerly of defendant’s claimed line, we think it was a question for the jury as to whether the various occupants of the Seitz house intended to assert a title adverse to that of the occupant of the Simons house. See Carbrey v. Willis, 7 Allen (Mass.), 364; Smith v. Smith, 110 Mass. 302; Bloch v. Pfaff, 101 Mass. 535.

Complaint is made of rulings of the circuit judge admitting evidence of statements made at the time of the sale to Mrs. Seitz showing that the parties understood that the property conveyed covered 30 by 100 feet. Complaint is also made of portions of the charge submitting that question to the jury. We do not think defendant has cause for complaint. The undisputed testimony shows that lot 29 of section 9 of the Governor and Judges’ Plan was platted as a lot 60 by 100 feet, that the abstract which was shown to plaintiff showed the same area, and that the public advertisement of the sale stated that the lot was 30 by 100 feet. We think it must be held that plaintiff bought and was entitled to receive the quantity. Jones v. Pashby, 62 Mich. 614; Heyer v. Lee, 40 Mich. 353.

After receiving the conveyance from defendant, plaintiff resold the half lot in question to one William Mitchell, who paid a portion of the purchase price and gave back a mortgage. On plaintiff attempting a foreclosure by advertisement, Mitchell filed a bill making Gartner, who occupied the premises lying west of the premises in question, a party, claiming that he (Mitchell) was entitled to have the full width of 30 feet, and that Gartner encroached upon him. The bank was also made a party to this proceeding, but procured the bill to be dismissed on its demurrer. Mrs. Seitz was also made a party, and the bill was dismissed as to her at the hearing, and costs awarded to her. The decree was without prejudice to a suit at law by Mitchell. Such suit was instituted, based on covenants of warranty in the deed of Seitz to Mitchell, and the bank was vouched in by Seitz, but declined to undertake the defense. Plaintiff incurred an expense of $25 in her defense to this last suit, and $100 in the chancery suit. The sum of $125 was included in the verdict in the present case as compensation for these expenditures. We think defendant was not properly chargeable for expenses incurred in the chancery suit. It appears that that proceeding was not one in which the claim of Mitchell against Seitz could be considered and determined. The bank is not to be charged with costs because of Mitchell’s abortive attempt to transfer the controversy to chancery. The lawsuit stands on a different footing.

The defendant contends that counsel fees are not recoverable, but that the plaintiff’s recovery should be limited to the purchase price of that portion of the land as to which the title failed, and taxable costs incurred in the suit determining the title. The cases are not agreed, but the better rule, in our opinion, and the one sustained by the weight of authority, is that the expenses of the defense of title, including attorney’s fees, are recoverable. This was intimated in Webb v. Holt, 113 Mich. 338. See, also, 8 Am. & Eng. Enc. Law (2d Ed.), pp. 190 and 191, and cases cited; 11 Cyc. pp. 1176, 1177.

The judgment will be reversed, and a new trial ordered, unless the plaintiff shall elect to remit $100 from the verdict and judgment. Tf this course is taken, the judgment will stand affirmed, but without costs to either party.

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


author: Moore, C. J.

text:
    ALLEN v. CITY OF WEST BAY CITY.
    1. Municipal Corporations — Personal Injuries — Defective Sidewalk — Notice of Defect — Question for Jury.
    In. an action against a city for injuries from a defective sidewalk, evidence examined, and held, that whether the defect had existed a sufficient length of time prior to the injury to constitute constructive notice to the city was a question for the jury.
    3. Same — Notaries Public — Verification of Notice — Attorney —Validity.
    A claim against a city for injuries is not invalid under section 2640,1 Comp. Laws, though the notary before whom the claim was verified subsequently commenced a suit for the injuries as attorney for. the plaintiff.
    Error to Bay; Shepard, J.
    Submitted February 9, 1905.
    (Docket No. 118.)
    Decided May 12, 1905.
    Case by Nellie Allen against the city of West Bay City for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      S. Gf. Houghton, for appellant.

      James Donnelly, for appellee.
   Moore, C. J.

This case was brought by plaintiff to recover for injuries received by her ’ on a defective sidewalk. It was the claim of the plaintiff that in August, 1903, she received a fall upon a sidewalk which was not reasonably safe and fit for travel, which injured her severely, and resulted in a miscarriage. The case was tried before a jury, which returned a verdict for $475. The case is brought here by writ of error.

We have examined all of the assignments of error, but shall discuss only the most important of them. It is claimed there is no proof of the particular defect which caused plaintiff’s injuries existing prior to the said 11th day of August, the day of the accident. Counsel says: “Before plaintiff can recover, she must show by positive proof that the particular defect in the sidewalk which caused the injury existed a sufficient length' of time prior to the accident to constitute constructive notice, and we submit this case is entirely devoid of such testimony;” citing many cases: It is true, as claimed by counsel, that the street commissioner testified he had repaired the walk the day before the accident, and nailed fast the only loose board in the vicinity; but that testimony is not conclusive. He also testified that where he nailed the plank there were three stringers, all perfectly good. On the other hand, there was an abundance of testimony that this plank walk had been down 15 or 16 years, and was in bad repair. One of the witnesses said there were no stringers at all, unless it was the middle one, and that was rotten; that it was a lot of holes, places where there were big holes in it; that the planks were all loose; and that it had been so five or six years with no repairs. A witness who was with plaintiff when she was hurt testified:

“We went down Washington street and on Elm to her home. The loose plank tripped her. The boards rested on the ground. There were no stringers, and no nails in the board at all. The board turned clear over when she fell. * * * The sidewalk where Mrs. Allen fell was all loose boards. When you would walk they would first turn up one way and then another. There were no stringers, and the planks were broken and rotten. The planks were crosswise. This walk was bad during all the time I lived near Mrs. Allen, which was fifteen months. When hurt, Mrs. Allen was in the center of the walk. I was a few steps behind her. Many boards were loose so they could be taken up. I know they were loose because when you were walking on one end the other would lift up.”

There was an abundance of testimony, if believed, that the particular defect in the walk which caused the injury had existed a long time. This made a question for the jury-

It is objected that the verified claim of plaintiff sent to the council does not comply with the charter. This claim was directed to the mayor and common council, stating when and where the accident occurred, and the manner of it, the injuries received, the names and residences of the attending physicians, and the claim for damages. It stated a desire to take the matter up with the council with a view of a settlement on a reasonable and just basis. It was subscribed and sworn to by the plaintiff and her husband on the 28th of August, 1903, before James Donnelly, notary public. On the 31st of August it was filed with the city clerk. It then had written on the cover of it a request that it be presented to the council, which request was signed James Donnelly, attorney for claimant. The only objection to this affidavit we deem it necessary to notice is the claim it is void under the statute because sworn to before a notary public, who was plaintiff’s attorney; counsel citing Germaine v. City of Muskegon, 105 Mich. 213; Chamberlain v. City of Saginaw, 135 Mich. 61; Blumrich v. Village of Highland Park, 131 Mich. 209. In the first of these cases the court expressly declined to pass upon the question raised, and held that, even though void, the council had waived the defect. In the last-named case no written claim was presented to the council. In Chamberlain v. City of Saginaw, supra, it is stated in the opinion that it was conceded no notice was given under the charter as it then existed. Certainly none of these cases sustain the position of counsel. It already appears the affidavit was sworn to August 28th. It was filed August 31st, and referred to the proper committee and the city attorney. They never made any report, and on the 16th of November this suit was brought.

1 Comp. Laws, § 2640, reads:

“ That it shall not be lawful for notaries public who are attorneys and counsellors at law or solicitors in chancery to administer oaths in causes in which they may be professionally engaged.”

Until this statute was enacted, it was not unlawful for the attorneys in a cause to act as notaries public. Snyder v. Hemmingway, 47 Mich. 553. After the statute was enacted it was held in Bradley v. Andrews, 51 Mich. 100, that an affidavit for an appeal from justice’s court, sworn to before a notary public who was attorney, would not be treated as wholly void, but as a defective affidavit.

In Sullivan v. Hall, 86 Mich. 7 (13 L. R. A. 556), it was held, Justice Long speaking for the court, where an affidavit to enforce a lien upon logs was sworn to before a notary public, who afterwards appeared as the attorney for the plaintiff, that, as it did not appear he was the attorney for plaintiff at the time the affidavit was made, it was not in violation of the statute. We think this case much in point. The affidavit was made the 28th of August. Three days later it was sent to the council. This suit was commenced .November 16th. We do not think the objection was well taken. See, also, 2 Cyc. 12.

The judgment is affirmed.

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


text:
    ROBERTS v. LENAWEE CIRCUIT JUDGE.
    Mandamus — Refusal to Dismiss — Jurisdiction.
    A motion to dismiss a will contest on the grounds that (1) the suit abated with the death of the contestant, (2) it has not been diligently prosecuted, and (3) because contestant has not paid the costs of a previous reversal by the Supreme Court, is in effect amotion to dismiss for want of jurisdiction and mandamus will not be granted to review its denial.
    Mandamus by H. Brant Roberts to compel Guy M. Chester, circuit judge of Lenawee county, to dismiss a will contest.
    Submitted March 28, 1905.
    (Calendar No. 21,006.)
    Writ denied May 12, 1905.

      Thomas A. Wilson and Watts, Smith & Baldwin, for relator.

      John JE. Bird, JohnL. O'Mealey, and Bred B. Wood, for respondent.
   Moore, C. J.

Jacob G. Roberts died in October, 1900, at the age of 88 years, leaving, him surviving, two sons, the relator, H. Brant Roberts, and Carroll Roberts. The latter was at that time an inmate of the insane asylum at Kalamazoo. He left an estate, consisting of lands and money, of the value of several thousand dollars. After the father’s death, relator offered a paper purporting to be the last will of his father to the probate court, and it was allowed. No contest was made there. The alleged will gave nearly all of the éstate to relator. Charles Bidwell was appointed guardian for Carroll Roberts, and took an appeal to the circuit court. Two trials were had, the last one resulting in a disallowance of the will. The case was removed to this court, and was reversed in March, 1904. [Roberts v. Bidwell, 136 Mich. 191.] In December, 1903, Charles Bidwell, the guardian, died. In January, 1904, Carroll Roberts was declared sane by a decree of the probate court of Lenawee county. A motion was filed in the circuit court asking to amend by striking out the name of the guardian and letting the case stand in the name of Carroll Roberts. In May, 1904, and before this motion was heard, Carroll Roberts died, leaving, him surviving, two sons, Linn Roberts and Laverne Roberts. Application was then made for administration upon the estate of Carroll Roberts, and for the appointment of his son Linn Roberts as administrator.

Counsel for relator moved the court that the case be dismissed for the following reasons:

1. Because said will contest, or the right to contest the will of said Jacob Roberts, deceased, does not survive.

2. Because said contestant had not diligently prosecuted his appeal.

3. Because said contestant has failed to obey the order of the Supreme Court adjudging costs against him.

4. Because said estate ought to be speedily settled.

The trial judge overruled the motion, and the writ of mandamus is asked to review his action.

The motion is, in effect, a motion to dismiss for want of jurisdiction. The trial judge, in overruling the matter, held he had jurisdiction. Under these circumstances the order of the court cannot be reviewed by mandamus. Stevens v. Harris, 99 Mich. 233; Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270; Steel v. Clinton Circuit Judge, 133 Mich. 698.

The application for mandamus is denied.

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


author: Carpenter, J.

text:
    CITY OF SOUTH HAVEN v. VAN BUREN PROBATE JUDGE.
    Eminent Domain — Public Use — Navigable Waters — Harbors —Enlargement—Cities.
    A city of the fourth class cannot condemn land for the purpose of improving and enlarging a harbor on navigable water. Section 1, chap. 25, Act No. 136, Pub. Acts 1899.
    Certiorari to Van Buren; Carr, J.
    Submitted March 28, 1905.
    (Calendar No. 21,005.)
    Decided May 12, 1905.
    Mandamus by the city of South Haven to compel James H. Johnson, probate judge of Van Burén county, to proceed with the hearing of a petition to condemn certain land. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Chandler & Donovan (Hiram T. Cook and A. J. Mills, of counsel), for relator.

      Samuel H. Kelley, M. L. Howell, and Thomas J. Cavanaugh, for respondent.
   Carpenter, J.

Certiorari to review mandamus proceedings. Relator filed a petition in the probate court for the county of Van Burén seeking to acquire by condemnation certain land situated within its corporate limits “for the purpose of improving the navigable waters of Black river within the corporate limits of said city by widening and deepening the watercourse of said Black river within said city limits and constructing public wharves, docks, slips, basins, and landings on the navigable waters of said Black river.” Respondent, said probate judge, dismissed said petition on the ground that he had no jurisdiction to proceed thereunder. Relator thereupon instituted these proceedings to obtain a mandamus directing respondent- to proceed with said cause.” The circuit court denied relator this relief, and we are asked to review that decision.

While it may possibly be inferred from its petition that relator proposes to use some of the land sought to be condemned for the purpose of constructing public wharves,, docks, slips, basins, and landings, it is clear that its essential purpose in condemning said land is to acquire it for the purpose of making a larger and more commodious harbor; that most of the land sought to be condemned will be used for that purpose; and that relator will obtain no-substantial benefit from this condemnation unless it may be so used. (The case of Wilkinson v. Dunkley- Williams Co., 139 Mich. 621, related to this same property, and affords some evidence of the necessity of enlarging said harbor.) We ought not, therefore, to issue a mandamus compelling respondent to proceed, unless relator has the legal right to acquire by condemnation land to be used for the purpose of creating or enlarging a harbor upon navigable water. Has it that right ? That depends upon the proper construction of section 1, chap. 85, Act No. 136 of the Public Acts of 1899. (An act relating to cities of the fourth class, to which relator belongs.) That section, so far as material to the question under discussion, reads as follows:

“Private property may be appropriated for public use in any city * * * for public wharves, docks, slips, basins and landings on navigable waters and for the improvement of watercourses; for sewers, drains and ditches.”

It cannot be and is not contended that that portion of the above language authorizing land to be appropriated for “public wharves, docks, slips, basins and landings on navigable waters ” authorizes the taking of land for the creation or enlarging of a harbor. The city has authority (see section 3143, 1 Comp. Laws) to “construct, maintain and control public wharves, docks, piers, landing places and levees, basins and canals,” but it has no authority to enlarge, create, control, or maintain a harbor on navigable water. Harbors on navigable waters are generally made and controlled by the Federal authorities.

The question remains, Can relator, under its grant of authority in this statute to take land “for the improvement of watercourses,” take the same for the purpose of enlarging or creating a harbor upon navigable water? What is the proper construction of the grant to the city of the authority to take land “for the improvement of watercourses?” Does it authorize the city to take land for all improvements of watercourses, even though the city itself is powerless to make such improvement, or does it merely authorize the city to acquire such land as is required to make an improvement which it (the city itself) has the power to make ? I think the latter construction is the proper one, otherwise the city might, under this statute, acquire land which might never be devoted to a public use. See Trombley v. Humphrey, 23 Mich. 471. By denying that the language under consideration gives to the city authority to take land for the purpose of enlarging a harbor on navigable water, we do not render it altogether meaningless, for the city has authority to make certain improvements in watercourses. I think section 3155, 1 Comp. Laws, which gives relator and all cities of its class authority to “establish, construct and maintain sewers and drains whenever and wherever necessary * * * for the drainage of the city ” (see, also, sections 3169, 3170, 1 Comp. Laws), gives ample authority to make improvements in watercourses for the purpose of drainage. Nor am I willing to say that a city may not make improvements in watercourses for purposes other than drainage, but it is clear that it cannot make them to enlarge a harbor on navigable water. Before the section under consideration was amended in 1899, it read: “And for the improvement of watercourses for sewers, drains and ditches.” Section 3222, 1 Comp. Laws. It will be noticed that when amended this portion of the statute was changed only by punctuation. Mere changes in punctuation are not of special significance. See Campau v. Dewey, 9 Mich. 406. See, also, Cushing v. Worrick, 9 Gray (Mass.), 382; Gyger’s Estate, 65 Pa. St. 311; Hamilton v. Steamboat R. B. Hamilton, 16 Ohio St. 432. We are of the opinion that the statute properly construed does not authorize cities to take land for the enlargement of a harbor upon navigable water, and that respondent should not, therefore, be compelled to proceed with the condemnation proceedings.

Whether the legislature can authorize a city to acquire by condemnation proceedings land which it itself has no power to devote to a public use, and whether it may authorize a city to enlarge a harbor on navigable water, are important constitutional questions not involved in this case, which we do not consider.

The order of the circuit court is affirmed.

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


author: Grant, J.

text:
    FLYNN v. SERVICE.
    Drains — Right to Construct — Prescription.
    Where a ditch was dug solely to carry water from a lake into a mill pond, and was shortly afterward abandoned and allowed to fill up so the water ran in it only when the lake overflowed in times of high water, the successors in interest of the person who originally constructed the ditch acquired no prescriptive right to reconstruct and use it for drainage purposes.
    Appeal from Shiawassee; Smith, J.
    Submitted April 4, 1905.
    (Docket No. 9.)
    Decided May 12, 1905.
    Bill by Matthew H. Flynn and Catherine Flynn against Charles Service, Christopher Dansby, and Thomas Denehe to restrain the digging of a certain drain. From a decree for complainants, defendants appeal.
    Affirmed.
    Complainants filed their bill to restrain the defendants from digging a drain draining three small lakes known as Hemingway Lake and Twin Lakes, and discharging the water upon their land. Hemingway Lake lies a short distance west of the public highway running north and south. The lakes are upon the lands of defendants Dansby and Service. Defendant Denehe’s land lies east of and adjacent to the public highway. Complainants’ land adjoins Denehe’s on the east. The drain was being dug across the land of Denehe and the public highway into Hemingway Lake, by means of which the water of the lakes would be lowered, and discharged upon complainants’ land. The drain was completed to the highway and within about 20 rods of Hemingway Lake when complainants filed their bill and obtained an injunction. The case was heard upon pleadings and proofs taken in open court, and the decree entered enjoining the defendants from opening a drain between Hemingway Lake and Twin Lakes, and requiring the drain from Hemingway Lake to be restored to its former condition.

      Albert L. Chandler, for complainants.

      Watson & Chapman, for defendants.
   Grant, J.

{after stating the facts). The main purpose of this drain was to benefit the lands of the defendants Service and Dansby by lowering the water in these lakes. The land on the west side of Hemingway Lake is 4 to 4£ feet higher than the lake. Defendants did not claim upon the hearing in the court below, neither do they claim here, the right to construct a new drain and turn the water upon complainants’ land. Their sole defense, as stated upon the hearing below, is a permanent easement, obtained through one Isaac Wright, who is alleged to have dug the drain 46 years before. Whether this defense can be made under defendants’ answer is doubtful, as no such defense is set up therein. See Reed v. Jour dan, 109 Mich. 128, 133, and authorities there cited. We will dispose of the case, however, without deciding that question. It is apparent by this record that this drain was not originally dug by Mr. Wright with any view to drain or improve the lands in its vicinity. It was dug for the sole purpose of taking water from Hemingway Lake into a mill pond owned by Mr. Wright. It was a private affair, dug for one single purpose. It does not clearly appear what right Mr. Wright had to construct or maintain it. Probably in that early day the erection of the mill and the use of the water to run it may have been an advantage to the inhabitants of the surrounding country. The land was probably not then very valuable, and the owner may have consented to or acquiesced in the construction of the drain to furnish water for the mill. This use by Mr. Wright cannot, under this record, be made the basis of a prescriptive right by adverse user in others to continue the drain for drainage purposes. The dam of the pond went out some years after the digging of the drain, the mill was abandoned, and never thereafter used. No one then, as appears upon this record, asserted any right to the use of this ditch as a means of draining his land. It was not kept open. Cattle tramped over it, and in a few years it was filled nearly level with the surface of the ground. There was a natural depression from Hemingway Lake along the line of this drain, and in high water, when the lake overflowed. its banks, the water ran in this direction. Under these circumstances, there is no foundation for the claim of prescriptive right. A. P. Cook Co. v. Beard, 108 Mich. 17; Turner v. Hart, 71 Mich. 128; Chapel v. Smith, 80 Mich. 100, 112.

The decree is affirmed, with costs.

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


text:
    SIMMONS HARDWARE CO. v. ROSE.
    1. Saving Questions for Review — Findings — Exception — Amendment.
    Where no exception is taken to the findings, and no additional or amended findings are proposed with a purpose of presenting additional questions, the only question open for review on error is whether the facts found justify the judgment.

      2. Garnishment — Liability of Garnishee — Executory Contract — Amount not Due.
    Where a contract for the installation of heating and plumbing work provided for payment of a part of the price when the work had reached a certain stage, remainder when the work was completed, there was, after the first payment, and before completion of the work, nothing due the contractor which could be reached by garnishment.

      Error to Schoolcraft; Steere, J.
    Submitted April 5, 1905.
    (Docket No 17.)
    Decided May 12, 1905.
    Garnishment proceedings by the Simmons Hardware Company against Harry Rose as garnishee defendant of Byron B. Baker. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      James O. Wood, for appellant.

      C. D. Dunton, for appellee.
   Montgomery, J.

Plaintiff sought to charge the defendant Rose as garnishee of the principal defendant. The case was tried before the court without a jury. The evidence disclosed that defendant Baker had undertaken by two separate contracts to put in the heating and plumbing in a new block being erected by defendant Rose. Under the heating contract Baker was to furnish all work and material at an agreed price of $2,248.61, and under the plumbing contract he was to furnish the work and material for $489.60 Each contract provided for payments when the work had reached a certain stage, but postponed the remaining portion of the contract price until the work was completed. Before the service of the writ in this case, defendant Rose had paid$l,-000 to apply on the two contracts. It is conceded that all payments due had been made, but it is claimed that at the time the writ was served more had been earned upon each contract, although not presently payable, and that this was subject to garnishment.

The circuit judge, at defendant’s request, found the facts and law as follows:

“The question of fact presented by the record in this causéis this: Was the defendant Baker at the time this suit was commenced, entitled under the two written contracts to a sum in excess of $1,000, which amount is conceded to have been paid him ? Upon this proposition the testimony is conclusive. The testimony shows that under the heating contract the boiler was on the premises, set in place, and bricked in, but the radiators were not in place, and the job was not finished. Under the plumbing contract the tank was not in the building, and had not been set in place, and the same had not as yet been received from the factory. The written contracts governed as to the amount due and the time of payment, and under these contracts only the sum of $1,000 had become due at the time Baker abandoned the contracts.
“ It conclusively appears from the evidence that at the time this suit was commenced Mr. Rose had paid to Mr. Baker all sums due to Baker under the contracts, and there were in his hands no funds belonging to the said Baker.
“The contracts were executory, and had not been completed at the time the writ issued. All payments due under the contracts had been made. If more had been earned under the contracts, it was not then due. The provision of the garnishment statute as to ‘ any contingent right of claim ’ does not apply to executory contracts. Conditions existing at the time of service of writ govern. It is the opinion that this case is governed by Webber v. Bolte, 51 Mich. 113, and also Kiely v. Bertrand, 67 Mich. 332.”

No exceptions were taken to these findings. The only question open is whether, under the facts found, judgment should have been entered for plaintiff. Haines v. Saviers, 93 Mich. 440.

Without restating the findings of the circuit judge, we think he correctly interpreted the cases relied upon by him. It is suggested in a supplemental brief that we could enlarge the scope of this appeal by permitting an amendment to the bill of exceptions. The difficulty was not in settling the bill. The fact appears to be that no exceptions were taken to the findings, nor were any other findings proposed by the defendant with a purpose of presenting additional questions.

The judgment is affirmed.

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


text:
    PENFOLD v. CHARLEVOIX SAVINGS BANK.
    1. Banks — Financial Standing — Report of Directors — Fraud Inducing Sale of Stock — Evidence—Sufficiency.
    Alleged fraud of bank directors, consisting in false reports of the financial condition of the bank, inducing a sale of stock of said bank, is not proved where it appears that the report of the directors to the commissioner of banking, in order to make the statement balance, contained such items as “ unadjusted errors in loans,” “unadjusted errors in stocks,” “unadjusted errors in cash paid,” “unadjusted errors in real estate,” etc., and that the commissioner of banking mistakenly treated such items as assets, and reported the bank sound, when in fact the statement of the directors showed that the bank’s capital was impaired.
    2. Same — Refusal to Transfer Shares.
    Unauthorized action of the directors of a bank in withholding assent to the transfer of stock to a purchaser thereof, preventing the purchaser from reselling the stock before the insolvency of the bank became known is not in itself evidence of fraud on the purchaser.
    Error to Charlevoix; Davis, J., presiding.
    Submitted April 5, 1905.
    (Docket No. 11.)
    Decided May 12, 1905.
    Case by Jonathan Penfold against the Charlevoix Savings Bank and others for fraudulent representations inducing purchase of stock. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      B. W. Kane and Thomas Smurthwaite, for appellant.

      Lisle Shanahan (Dallas Boudeman, of counsel), for appellee.
   Montgomery, J.

The plaintiff began suit against the defendants by declaration in trespass on the case, alleging that the Charlevoix Savings Bank, for a number of years had been employed in the banking business, and defendants Nicholls and Buttars, during the time complained of :in the declaration, were directors of such bank, and on April 25, 1893, plaintiff purchased for $3,000 from Luther E. Allen and Mary E. Allen 30 shares of the stock of said bank, of the par value of $3,000, and on such purchase obtained an assignment of certificates of such shares of stock, which certificates at the time of such purchase ■stood in the names of the two persons above named.

The declaration then proceeds to say: That the defendants, with the intent to deceive the public, and especially the plaintiff and others who might become purchasers of the capital stock of said bank, being required by law to make reports to the commissioner of banking of the State .showing the true financial condition of the bank, did, before plaintiff’s purchase, make and file with the commissioner of banking reports “which were in fact incorrect and misleading, and which were then well known to the ■defendants to be incorrect and misleading, in that according to said reports the said bank was solvent, and had sufficient assets to pay all its liabilities, without any impairment of its capital stock, and that the said bank could pay in full all its liabilities and have remaining its entire capital stock and by reason of said reports said Charlevoix Savings Bank came to be known as a solvent institution, with unimpaired capital,” etc. That plaintiff, in reliance upon said reports, and believing them -to be true, purchased, received, and accepted said stock, etc., when in truth and in fact said stock was not worth its face or par value, and the capital of said bank had become so far impaired that its stock was worth but about 10 per cent, of its face value. That, since said purchase by plaintiff, defendants have continued to make like reports to said commissioner of banking; said reports representing said bank to be in a solvent condition; the last of which reports being made in 1898, when it was shown that the bank was .in a solvent condition, able to pay its debts, and have then remaining all of its capital and a surplus. That since said purchase the plaintiff caused such certificates of stock to be presented to defendant for surrender, and requested a transfer of said stock on the books of the bank, and that new certificates be issued to plaintiff, and this was refused, whereby plaintiff was deprived of the said sharps of stock. That, plaintiff- having opportunity to sell said stock, the intended purchaser inquired of the defendants about said stock, and they denied that the plaintiff owned or held any stock in said bank, whereby plaintiff was deprived of the opportunity to sell the same. That defendants have denied that plaintiff was a stockholder in said bank, and gave him no notice of the meetings of its stockholders. That defendants, owning and controlling a majority of the stock of the bank, on January 30, 1899, without any chance for plaintiff to vote on the question, and unknown to him, undertook to place said bank in liquidation, thereby destroying its business and franchises, etc. The defendants formed another bank, and advertised the same as the successor of the Charlevoix Savings Bank, and said defendants, and others under the name of Nicholls, But-tars & Co. are now doing the banking business formerly done by the said Charlevoix Savings Bank.

With respect to quite a number of these allegations no proof was offered or pretended to be offered. It will be seen by the foregoing that the pretended cause of action is based entirely upon a fraud alleged to have been committed by the defendants against the plaintiff. The action is in tort, as claimed by plaintiff in the declaration and in their brief. After all the testimony had been given on the part of the plaintiff, the court directed the jury to return a verdict for the defendants.

The evidence as to fraudulent representations by defendants consisted of the reports made by defendants’ officers to the State commissioner of banking, accompanied by the report of the commissioner based thereon, accompanied by testimony that the commissioner’s report came to plaintiff’s notice before the purchase of the stock by him and induced the purchase. We do not pass upon the abstract question suggested by the case, as to whether one who relies in the purchase of bank stock upon the commissioner’s published statement of the condition of a bank, summarized from the report of the bank’s officers, may, where such summarized statement accords with the statements of the bank’s officers, and where the statement is shown to be an untruthful representation of the bank’s condition, have an action on the case as for a fraudulent representation. This is not such a case, as the circuit judge rightly ruled. At the outset of plaintiff’s case, it is apparent not only that the report of the banking commissioner was not an accurate summary of the bank officers’ statements, but that, had the real report of such officers been correctly set out, no one at all familiar with such statements could have failed to discover that the capital stock of this bank was impaired. Among ■ the items reported in order to make the debit and credit side of the statement balance were: ‘ ‘ Unadjusted errors in loans and discounts;” “Unadjusted errors in stocks, bonds and mortgages;” “Unadjusted errors in cash paid to July, 1890;” “ Unadjusted errors in cash, $70.01;” “ Unadjusted errors in real estate;” “Expense, bank suspense.” These items aggregated about $11,000, and, unless these items appeared to be assets, the statement, on its face, showed that the bank’s capital was. impaired nearly 25 per cent. It is absurd to assume that, had this exact statement been presented to plaintiff, he would have been misled into the belief that “errors” were as good as cash. In fact, it is clear from his testimony, that, had he known that these items of errors appeared in the statement of the bank officers, he would not have taken the stock. Through some unaccountable oversight, these items appear to have been treated by the commissioner of banking in his report as real estate. The defendants were not responsible for this, and, eliminating this, we discover no tangible evidence of fraud.

As to the claim of damage to plaintiff through defendants’ refusal to transfer the stock on the books of the bank, the condition of the record is unsatisfactory. As before stated, the declaration contains but a single count, and it appears that defendants asked that plaintiff be required to elect upon what cause of action he would rest his case, and that his counsel stated in response to the court that “ the declaration was substantially one of a single count, and that these various'acts were set up as a series of acts constituting as a whole the cause of injury to the plaintiff.” Viewed in this light, we are not able to see that a recovery should have been permitted to the plaintiff for a technical breach of duty in denying plaintiff’s right to have the transfer of this stock entered upon the books of the bank. It is entirely clear that no fraudulent purpose is shown by defendants’ refusal to permit such transfer. There is nothing to indicate bad faith, and about the most that can be said is that plaintiff was, by this refusal of the defendants to act, prevented from recouping his loss by putting off stock having no market value upon others who might have been deceived by the same misleading report of the commissioner of banking, upon which he acted, and for which defendants were not responsible. Even though defendants were acting under a mistaken power, no fraud was perpetrated in withholding assent to the transfer of stock. In fact, it would seem they were acting under the directions of the commissioner of banking. An assessment had been made upon the stock. The refusal to transfer the stock on the bank’s books challenged the attention of the prospective purchaser to this assessment, but did not prevent a transfer between the parties. Under these circumstances, the plaintiff suffered no substantial injury, unless it resulted from the facts being known, and of this the plaintiff ought not to complain.

No prejudicial error appears. Judgment affirmed.

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


text:
    UNION TRUST CO. v. MICHIGAN ELECTRIC CO.
    Contracts — Construction.
    A dealer in electric lamps agreed with .a manufacturer to carry a specified number of the manufacturer’s lamps in stock at all times, the dealer to give a note, which he was to be allowed to settle “ by return of lamps * * * at any time at the option of either party, and by a 60-day notice by either party.” Held, that the manufacturer did not have the right to elect to take lamps in payment of the indebtedness, such election being the right of the dealer; the words “ at the option of either party ” relating to the time of payment, giving either party the option of determining when the note should be paid.
    Appeal from Wayne; Brooke, J.
    Submitted April 5, 1905.
    (Docket No. 13.)
    Decided May 12, 1905.
    Foreclosure bill by the Union Trust Company, trustee, against the Michigan Eléctric Company, in which the Bryan-Marsh Company intervened by petition asking for the surrender of certain lamps. From an order denying the petition, petitioner appeals.
    Affirmed.

      Angelí, Boynton, McMillan & Boclman, for complainant.

      Stellwagen & MacKay, for petitioner.
   Carpenter, J.

In February, 1904, defendant Michigan Electric Company executed to complainant a trust mortgage for the benefit of its creditors. A suit was commenced to foreclose said mortgage, and complainant was appointed receiver. Among the assets coming into complainant’s possession and covered by the mortgage were a large number of incandescent lamps. The Bryan-Marsh Company filed an intervening petition asking that there be turned over to it sufficient of these lamps to satisfy its claim of $2,500 against said principal defendant. In the circuit court a hearing was had on this petition, testimony was taken, and the petition denied. Petitioner appeals.

Did the trial court err in denying said petition ? Petitioner bases its right to these lamps in part on a certain written agreement and in part on a subsequent oral modification of that agreement. The testimony convinces us that the written agreement was never orally modified. Petitioner’s rights must therefore be determined by the written agreement. That agreement was signed by each party thereto, and was as follows:

“This Supplemental Agreement dated this 13th day of July, 1903, between the Bryan-Marsh Company of Chicago, Illinois, party of the first part, and the Michigan Electric Company, of Detroit, Michigan, party of the second part.
Witnesseth, Whereas the party of the second part agrees to carry in stock twenty-five thousand (25,000) incandescent lamps and give party of the first part a monthly report of same accompanied by an order calling for enough lamps to make the quantity in stock equal to twenty-five thousand (25,000) ’lamps. Party of the first part agrees to allow party of the second part to give party of the first part a $2,500 note without interest, to be renewed every four months, with the understanding that the stock of the party of the second part is at all times kept at 25,000 lamps. The party of the second part hereby agrees that the amount of invoices for lamps ordered during any one month will be paid for in cash on or before the twentieth of the month following dates of invoices.
‘ ‘ Party of the first part agrees to allow party of the second part to settle the above $2,500 note by the return of lamps to that amount at purchase price at any time at the option of either party, and by a 60-day notice by either party. ”

The said Michigan Electric Company never elected to return the lamps in payment of the $2,500 indebtedness, and petitioner is therefore not entitled to relief unless it had the right, by virtue of the above agreement, to elect to take said lamps in payment of said indebtedness. Has it that right ? That depends upon the construction of the clause:

‘ ‘ Party of the first part [petitioner] agrees to allow party of the second part [Michigan Electric Company] to settle the above $2,500 note by the return of lamps to that amount at purchase price at any time at the option of either party, and by a 60-day notice by either party.”

Mr. Stoddard, who executed this contract for defendant, and Mr. Keech, who executed it for petitioner, each was permitted to testify to the construction he placed on this contract. It is scarcely necessary to say that we cannot be governed by their testimony, which was conflicting. This contract, like other contracts, must be construed from a consideration of its language and the surrounding circumstances. As thus construed, has petitioner a right to take the lamps in payment of its indebtedness ? Petitioner insists that the words ‘ ‘ at the option of either party ” gave to it, as well as to the defendant, the right to elect whether the indebtedness should be paid in money or in lamps. "We cannot assent to this construction. This renders meaningless the language “ party of the first part agrees to allow party of the second part to settle the above $2,500 note by the return of lamps.” The contract certainly gave to the Michigan Electric Company the right to elect to pay said indebtedness in money or in lamps. As the Michigan Electric Company had that election’, it is impossible that the other party to the contract, the petitioner, should also have it. Each party to this contract could not, in the nature of things, have that election. For the election of one that payment should be made by turning over the lamps would deprive the other of the right to have payment made in money. The words “at the option of either party ” must therefore receive a construction in harmony with the election given to defendant to pay the $2,500 indebtedness either in money or in lamps. It is easy to place such a construction upon those words. They relate, as decided by the circuit judge, to the time of payment of the $2,500 indebtedness. They give to either party the option of determining by a 60-day notice when the four-months’ note of $2,500 shall be paid. When that indebtedness is paid, the contract gives to defendant, but not to petitioner, the election of determining whether it shall be paid by the return of lamps or by money.

It results from these views that the petition was properly denied. The order appealed from is therefore affirmed, with costs.

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


text:
    UNION TRUST CO. v. MORGANS.
    Bills and Notes — Action—Witnesses—Transaction with Decedent.
    Where, in an action by an administrator on a note payable to his intestate, there is no evidence as to the transaction which resulted in the giving of the note, except the note, the evidence of the maker being incompetent under the statute relative to testimony as to transactions with decedents, judgment must be rendered for plaintiff.
    Error to Oakland; Smith, J.
    Submitted April 4, 1905.
    (Docket No. 6.)
    Decided May 12, 1905.
    Assumpsit by the Union Trust Company, administrator de honis non with the will annexed of the estate of Lucetta R. Medbury, deceased, against William H. Morgans on a promissory note. There was judgment for defendant, and plaintiff brings error.
    Reversed, and judgment entered for plaintiff.

      Mussel & Campbell, for appellant.

      Patterson & Patterson, for appellee.
   Moore, C. J.

In her lifetime Mrs. Lucetta Medbury, who lived in Detroit, was the owner of a lighting system at Pontiac, Mich. The defendant was her manager. She executed to him papers reading as follows:

“Detroit, Sept. 9, 1899.
“To Whom It May Concern:
“I hereby agree to accept of William H. Morgans, the sum of sixty-two thousand two hundred and ninety-eight 17 /100 dollars on or before the 27th day of September, 1899, in full for the Pontiac Gas Co. plant and property agreeable to a certain inventory, dated Detroit, Sept. 9th, 1899, as made by Isaac C. Baxter of this city.
“L. R." Medbury.
“Witness: George N. Brady.
“I extend this proposition from this date until November 27, 1899.
“L. R. Medbury.”

On the 20th of November, 1899, the defendant delivered to Mr. Jessop, who went to Pontiac, representing Mrs. Medbury, drafts amounting to $62,298.17, and a note reading as follows:

“$2,000.00. Detroit, Mich., Nov. 20, 1899.
“Three years (on or before) after date, without grace, I promise to pay to the order of Lucetta R. Medbury, Two Thousand Dollars, at the First National Bank of Detroit, with interest at 6 per cent, per annum. Value received.
“W. H. Morgans.”

And the sale of the lighting plant by Mrs. Medbury was then completed. Later she died. , The note was not paid, and this suit was brought. It was tried before the circuit judge without a jury. He rendered a judgment in favor of defendant. The case is brought here by writ of error.

The second and sixth paragraphs of the findings of fact made by the circuit judge present the questions involved. They read as follows:

2. That the time allowed in Exhibit A proving too short for the defendant Morgans to organize a company and procure the necessary money to take over the plant, Mrs. Med-bury on or before November 27, 1899, extended the time from September 27, to November 27, 1899. From the use for the words ‘ I extend this proposition,’ without naming any change in the amount, I infer and believe the extension carried with it an option to Mr. Morgans to have a transfer of the plant made by Mrs. Medbury at the same amount, $62,298.17, and that it was so understood by the parties at the time the extension of time was made. * * *
‘ ‘ 6 There is no way of determining with certainty from this record why the note was exacted and given, or whether it was in fact based upon any adequate consideration. Mrs. Medbury is deceased, and the testimony of Mr. Morgans was excluded by the statute. They had a conversation about it at Mrs. Medbury’s residence in Detroit a few days before November 20, 1899, but only a fragment of their conversation, relating to whether or not it should draw interest, was overheard by the witness Jessop.
“ From the surrounding circumstances, and from the facts found in paragraph 2 of the finding, I infer and believe that, between September 27th and the time of conversation in Detroit spoken of by Jessop, Mrs. Medbury reached the conclusion that she was selling the plant too cheaply, and in some manner notified Mr. Morgans he could not have it unless he increased the price by $2,000, and that the time was so short before the expiration of the option as extended, and the arrangements with the Chicago parties in such a condition, that he was compelled either to jeopardize the arrangements for the sale of the plant to the new company, or comply with her demands, and that he chose the latter alternative, and that, not having the money himself, and not having arranged for the furnishing by the Chicago parties of this extra amount, he promised to give and she promised to accept his personal note for the amount in lieu of the money, and that in pursuance of such a promise by him, she caused the deeds and the note to be prepared between the time of this conversation in Detroit and November 20th. This, in my belief, accounts for Jessop bringing the note to Pontiac, ready for signature by Morgans.
“It is, however, but an inference or belief, with nothing really tangible in the record upon which to base it. Perhaps I may have unconsciously been influenced in reaching that belief by my acquaintance with the defendant Morgans, and his offer to testify in the case.”

Mr. Morgans was sworn as a witness, but his testimony was excluded as being within the statute. The only testimony bearing upon the consideration for which the note was given is the papers themselves, the testimony of Mr. Jessop, and certain entries made by him in the books of Mrs. Medbury of his own volition, and which are not inconsistent, if competent testimony, with the idea that the note was given, as it states, for value received. The testimony of Mr. Jessop in relation to his knowledge of the giving of the notes is very meager, and is as follows:

“ Q. What did you say to Mr. Morgans with reference to his giving this note ? * * *
“A. I didn’t say anything to him that I know of.
‘ ‘ Q. Didn’t you ask him to give a note ?
“A. I did not.
Q. Now, to refresh your recollection,1 didn’t you bring the note out from Detroit, already drawn up ?
11 A. Oh, I did that. I handed it to him, and he signed it.
Q. And didn’t you tell him he must give the note before you turned over the other papers ?
“A. Well, I don’t remember of telling him that, but that was a párt of the deal.
Q. Well, that was a part of the instructions ?
4 ‘A. Part of the instructions; yes, sir.
“ Q. Yes; that you must not turn over the papers until he gave his note for |2,000. If he paid the amount specified in the option ?
“A. It was to be one deal. * * *
44 Q. Well the deal was to be $62,298.17 in cash, and Mr. Morgans’ note for $2,000. Now, is that all the instructions you had from Mrs. Medbury in regard to this total of $64,000 and something ?
“A. That is all that I recollect of.
‘ ‘ Q. Did you have any instructions in regard to consummating that deal from any one else except from Med-bury ?
“A. I did not.
Q. Now, what was the $2,000 note given for ?
“A. I didn’t know. * * *
Q. Do you recollect of being present at an occasion before this matter was closed up, when Mrs. Medbury and Mr. Morgans were present and had a conversation about adding $2,000 to the option — contract price ?
“A. Well, yes; but it was only in this way: ¡Mr. Morgans wanted the note not to bear interest.
Q. Yes?
“A. And Mrs. Medbury would not consent to it. Now, that is all that I can remember in regard to the transaction at all.
Q. You have no recollection about the conversation that took place before that, or around you there before that ?
“A. X don’t remember.
Q. Do you remember the occasion of there being any talk about the note, or what led up to it ?
“A. No; the deal, as I remember it — the deal had already been made.
“Q. Yes?
“A. And Mr. Morgans wanted the note made without interest, to which Mrs. Medbury would not consent.”

There is nothing in the testimony of Mr. Jessop or the other testimony from which the inference can be fairly drawn that the note was not given for a valid consideration. The trial judge suggests that he may have been unconsciously influenced in his conclusion by his acquaintance with the defendant and his offer to testify. Unless this had weight with the trial judge, it is difficult to see how he reached the conclusion he did. If it did have weight with him, then the object sought to be prevented by the statute was not accomplished. A business transaction occurred between Mrs. Medbury and Mr. Morgans, resulting in his giving her a written promise to pay $2,000 at a stated time, for value received. The mouth of Mrs. Medbury is closed by death. The mouth of Mr. Morgans is closed by the law. There is .no competent evidence to impeach the written promise. 4 Am. & Eng. Enc. Law (2d Ed.), p. 186.

Judgment is reversed, and a judgment may be entered here for the amount of the note and interest, with costs of both courts.

Me Al v ay, Grant, Montgomery, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    CURTIS v. BREWER.
    1. Resulting Trusts — Enforcement—Rights of Bona Fide Purchaser.
    Testatrix directed land to be sold, the proceeds divided into three equal parts, and two of such parts turned over to her two sons, to be held by them in trust for their children. One of the sons purchased the land, the deed reciting as consideration only two-thirds of the price actually paid_. One-third was disposed of as the will directed and the other was paid to the other son, to be held by him in trust according to the provisions of the will. Held, that the children of the purchaser were not entitled to one-third of the land as against a bona fide mortgagee from their father.
    2. Executors — Sale—Right to Purchase.
    The statute (§9095, 3 Comp. Laws), providing that executors may not purchase lands sold by them, does not prevent- a purchase by an executor expressly authorized by the will.
    Appeal from Calhoun; Hopkins, J.
    Submitted April 4, 1905.
    (Docket No. 10.)
    Decided May 12, 1905.

      Bill by Le Grand Curtis and another against Mark B. Brewer and others to restrain the foreclosure of certain mortgages, and for an accounting. Defendant Brewer filed an answer in the nature of a cross-bill praying for the foreclosure of said mortgages. From a decree for defendant, complainants appeal.
    Affirmed.

      J. M. & J. L. Powers, for complainants.

      William PL. Porter, for defendant Brewer.
   Hooker, J.

Benjamin Curtis died seised of 160 acres of land, leaving a widow, Mary T. Curtis, a daughter, Margaret Abbey Curtis, and two sons, Joshua W. and OnasF. Curtis. Margaret” Abbey Curtis died unmarried, after the making of the will of Mary T. Curtis, hereinafter mentioned, but before the death of the testatrix. At the time this will was executed Onas F. Curtis had three children, who are now living, named respectively Mary B. Boughton, Le Grand Curtis, and Mabel G. Curtis (now McKee, she having married since this suit was commenced). Joshua W. Curtis had five children living at the time of his death, named respectively Josephine, Benjamin W., Charles, Martha, and Bertha, and one, named Albert P. Curtis, was born after the will was made. The bill alleges, and the answer is said to admit, and it was conceded at the hearing, that at the time the will was made and at her death Mary T. Curtis was the owner of the undivided two-thirds of the northeast quarter of section 13, etc. Counsel for the defendant claims — and we understand that it is not disputed — that the remainder of the quarter section over and above the portion that belonged to Mary T. Curtis was the property of Onas F. Curtis. Mary T. Curtis’ will was executed on December 31, 1883, and her daughter, Margaret Abbey Curtis, died intestate on April %, 1884. The will of Mary T. Curtis provided for the disposition of the undivided two-thirds of section 13, aforesaid, as follows:'

“ Second. It is my will and I direct that the following described land, to wit: The undivided two-thirds part of the Northeast Quarter of Section Thirteen (13), in Town Two (2) south, of Range Six (6) West, now owned by me and where I now reside, and being in the town of Marshall, Calhoun county, Michigan, if not sooner disposed of by me, be sold within one year after my decease by my executrix and executors, hereinafter named, and their survivors, and a majority of them. And I give and devise the said land to said executrix and executors and the survivors of them in trust for the execution of my will, with full power to sell and dispose of said land at public or private sale within said time, upon such terms and in such manner as to them shall seem meet. And I hereby empower said executors and executrix, or a majority of them, and of the survivors, to sell and convey said land to any one of their number who may desire to become the purchaser at the best price to be obtained, the proceeds of which sale they are to distribute according to the bequests herein contained.
Third. I give and bequeath to my daughter, Margaret Abbey Curtis, her heirs and assigns, one equal third part of all my personal estate which I may own at my decease, after payments of debts as aforesaid. Also I give to my said daughter the use of one-third part of the proceeds of the sale of my real estate during her natural life, and the remainder after her decease is disposed of as provided in paragraphs Eleven (11) and Twelve (12) of this will.
Fourth. I give to my sons Onas F. and Joshua W. Curtis, their heirs and assigns, to each of my said sons respectively; one equal third part of my estate, real and personal, which I may' own at my decease, after payment of debts as aforesaid, subject to the power of sale herein given to my executors as to the realty, but in trust as to the capital, of said one-third part given to each of my said sons respectively, which said capital is to be distributed, share and share alike, by my said sons and their successors m the trusts respectively to each of their children on their attaining the age of twenty-one years, as hereinafter expressed and provided. * * *
Sixth. The third part of my estate which I may own at my decease herein bequeathed to my son, Onas F. Curtis in trust as aforesaid, I desire him to invest upon good security, and to pay over to each of his children, Mary B. Curtis, Le Grand Curtis, and Mabel Curtis, in manner following, that is to say, Five hundred dollars to each of said children on attaining the age of twenty-one years, in case such payment shall be desired by them or either of them, and when the youngest child of my said son, Onas F., including such as may hereafter be born to him, shall come of age, then the share of each child of my said son Onas F., shall be ascertained upon the principal and the deficiency which may appear in the sum already paid to those who have previously or at that time come of age shall be paid them and to the issue of such of them as shall not survive to that period by representation.
Seventh. The third part of my estate which I may own at my decease, herein bequeathed to my son, Joshua W. Curtis, in trust as aforesaid, I desire him to invest upon good security, and to pay over to each of his children, Josephine Curtis, Benjamin W. Curtis, Charles Curtis, Martha Curtis, and Bertha Curtis, in manner following, that is to say, Five hundred dollars to each of said children on attaining the age of twenty-one years, in case such payment shall be desired by them dr either of them, and when the youngest child of my said son, Joshua W. including such as may hereafter be born to him, shall come of age, then the share of each child of my son, Joshua W. shall be ascertained upon the principle of an equal division, according to the number of such children, and the deficiency which may appear in the sum already paid to those who previously or at that time have come of age, shall be paid to them and to the issue of such of them as shall not survive to the period by representation.
Eighth. It is expressly understood, and such is my will, that the interest and income on the said shares of my property herein given in trust to my said sons shall belong to them absolutely as their own.
Ninth. It is my will that each of my said sons shall have the power and it is hereby given, to appoint by deed or will a trustee or trustees in his place and stead, or as his successor or successors in the trust hereinbefore expressed and declared, and in default of such appointment when necessary, or in the case of the disability of my said sons respectively, such trust shall dissolve upon the guardian of the minor children of such son or sons so dying or disabléd to act respectively at the option of such guardian or guardians upon giving security by him or her to be fixed and approved by the judge of probate of Calhoun county for the time being, or otherwise a trustee or trustees shall be appointed according to law by a competent court.
‘ ‘ Tenth. It is my will that no security shall be required of either of my said sons for the performance of the trusts above specified.
‘ ‘ Eleventh. I give and bequeath One thousand dollars out of the proceeds of the sale of the one-third part of the two-thirds of the North-East Quarter of Section Thirteen, in Town Two South, of Range Six West, mentioned and described in the preceding second paragraph of this will, after the termination of the life interest therein above bequeathed to my daughter, Margaret Abbey Curtis, to Trinity Church, in the city of Marshall, county of Calhoun, and State of Michigan, upon the trust and confidence to invest the same upon interest upon good security or securities by bond and mortgage upon unincumbered real estate, or in government or municipal bonds, and to appropriate the interest of Five hundred dollars of said money annually if needed to the relief of the poor of the parish, as the vestry of said church for the time being shall direct, and to appropriate the interest of the remaining $500 of the said $1,000 to the diocesan missions of the Diocese of Western Michigan, and to the Domestic and Foreign Missions of the Protestant Episcopal Church of the United States of America, in such proportion between said missions as the vestry of said Trinity Church may deem proper.
Twelfth. The rest and residue of the proceeds of the sale of the said one-third of the two-thirds of said land mentioned in the second paragraph of this will after the termination of the life interest therein given to my said daughter, I give to the Association of the Diocese of Western Michigan upon the trust and confidence to invest the same in good security, as specified in the preceding paragraph, and to appropriate the interest and income thereof to diocesan missions in said diocese, including the building or aid towards building churches therein.”

Mary T. Curtis died May 16, 1884. The will was admitted to probate on June 14, 1884. On June 20, 1884, the executors named in the will and appointed by the probate court executed a deed of the undivided two-thirds of the land described in the will to one of their number, Onas F. Curtis, a consideration of $6,400 being named therein. On January 2, 1890, Onas F. Curtis and wife executed a mortgage to Mark B. and Edward G. Brewer, administrátors -of the estate of Chauncey M. Brewer, deceased, for $1,441, upon the northeast quarter and the north half of the southeast quarter of section 13, excepting two small parcels on the latter description, which last description was released from the mortgage on April 1, 1890. On March 30,1891, Onas F. Curtis and wife executed a mortgage to Milford D. Buchanan for $3,600 on the northeast quarter of section 13. Both of these mortgages came to the hands of Mark B. Brewer, who began a foreclosure of the second mortgage, by advertisement, about January 20, 1902, claiming due upon the two mortgages a little over $8,200. On March 3, 1902, the complainants Le Grand Curtis and Mary B. Boughton, children of Onas F. Curtis, filed the original bill in this cause, making all other parties in interest defendants, and procured an injunction against the foreclosure until the rights of the beneficiaries under the will of Mary T. Curtis should be determined by the court, alleging that the land constituted a trust estate charged with the payment of their legacies and those of the children of Joshua W. Curtis, and asking that an account be taken, and a lien therefor decreed, and in default of payment of the same the mortgages be canceled, and that the premises be sold to pay said legacies. An answer in the nature of a cross-bill was filed by Brewer asking a foreclosure of his mortgages. An answer to the cross-bill was filed. The record fails to show either answer by or default against the other defendants, and we discover no allusion to their attitude in the briefs, except as inferences may be drawn from the discussion of the proofs. Upon the hearing the court sustained the answer and cross-bill, and gave defendant a decree of foreclosure as prayed, and the prayer of the original bill was “denied.”

The proofs show that the executors paid the legacy to Trinity church and the residue bequeathed to the association of the diocese of Western Michigan. Joshua W. Curtis also received $3,200 in money, which he held in trust for his children. These sums, aggregating $6,400, were paid by Onas F. Curtis upon his purchase of the property. It is claimed that the price at which it was sold was in reality $9,600, instead of $6,400. It was a sale under the will, and, had the executors received that amount in cash, it would have been their duty to pay over to Onas F. Curtis $3,200, which he would have been authorized to receive in trust for his children. Instead of that course being taken, he took a deed of the land upon payment of $6,400. It is not unreasonable to suppose that this was done with the understanding that he assumed the same liability as would have been created had the money been formally turned over to him. We have little doubt that a court of equity would hold him liable as a trustee, and it is not certain' that, as between his children and himself, the claim would not be enforced against the premises. The Brewers are in a different position, however. The will and the probate proceedings show that the administrators were authorized to sell, and that Onas F. Curtis might lawfully buy, this land, and that it was sold to him for $6,400, which sale was approved, and which sum appeared in the deed to have been the consideration paid. This amount was actually paid, and there was nothing to indicate to Brewer that the trust was not being faithfully carried out at the time the mortgages were given by Curtis. It is contended that Onas F. Curtis obtained the absolute legal title to but two-thirds of the interest of Mary Curtis, and that as to the other third his title was qualified by a trust, first, because Onas F. Curtis could not purchase the land from the executors, of whom he was one, and, second, because he did not pay for it. We are of the opinion that Onas F. Curtis might purchase from the executors, in view of the express provisions of the will, which conferred the power upon them to sell to one of their number. We think that 3 Comp. Laws, § 9095, has no application to this case. The testatrix saw fit to authorize a sale to one of the executors, and this she had the right to do.

The defendants relied upon the records referred to, which they had the right to do. They were under no obligation to inquire whether Onas F. Curtis had faithfully discharged the trust confided to him in his disposition of the fund.

The decree is affirmed, with costs.

Moore, C. J., and McAlvay, Grant, and Montgomery, JJ., concurred.-