text:
    SMITH v. MATHIS.
    1. Frauds, Statute op — Evidence—Specific Performance — Parol Evidence — Preliminary Condition — Vendor and Purchaser.
    In a suit for specific enforcement of a land contract, testimony of the vendor that it was orally agreed, at the time the memorandum or agreement was signed, that it should be considered abrogated unless the vendor’s title could be cleared up within two months, was inadmissible to vary or add to the writing that contained no such conditional clause: under the statute of frauds (3 Comp. Laws, § 9511, 4 How. Stat. [2d Ed.] § 11395), the memorandum was conclusive if it contained the requisites of a valid contract.
    2. Same — Execution of Contract — Land Contract — Mutuality.
    Having accepted the memorandum signed by the vendor, the purchaser was bound by the instrument even if he did not, as claimed by the vendor, sign the writing until a later date.
    3. Specific Enforcement — Subsequent Incumbrance — Mortgages — Decree.
    As to a subsequent mortgage of premises that defendant had bound herself to convey by a sufficient memorandum of sale, complainant, who is entitled to a decree of specific performance, may be allowed, by the final order, to pay the mortgage debt, receiving credit for the amount so required upon the agreed purchase price.
    Appeal from Wayne; Mandell, J.
    Submitted January 13, 1913.
    (Docket No. 36.)
    Decided March 20, 1913.
    Rill by Isaac Smith against Rose Mathis and Edward Mathis for specific performance of a contract for the sale of land. From a decree for defendants, complainant appeals.
    Reversed.

      Sloman & Sloman, for complainant.

      JSdward Pokorny (Bernard B. Selling, of counsel), for defendant Rose Mathis.
   Stone, J.

Complainant filed his bill of complaint praying for the specific performance of an agreement made between him and the defendant Rose Mathis, the memorandum in writing of which is as follows:

“$50.00.
“Received from Isaac Smith, of Detroit, Michigan, the sum of $50.00 to apply on purchase price of $9,500.00 for the following piece of real estate in Detroit, Michigan: the southwest corner of Alfred and Hastings street, same extending 95 feet on Hastings street, and 53 feet on Alfred St., together with buildings at present on same. I agree at once to furnish said Smith with a Burton or Union Trust abstract, brought down to date, and showing perfect title in myself. Immediately after furnishing said abstract and its being found perfect by said Smith’s attorneys I agree to enter into the usual Burton form land contract with said Smith, he to pay $1,-950.00 more at time of execution of said contract, and the balance in payments each quarter of $175.00, interest at rate of 6% per annum, being also payable quarterly and to be included in said $175.00 payments, and to be deducted therefrom. Should said title not be satisfactory to said Smith’s attorneys, I agree at once to return to him the $50.00 deposit. The entire principal still due at end of ten years shall be payable at that time.
her
“Mrs. Rose X Mathis.
mark
“Sept. 26,1910.
“Witnesses:
“ Benjamin Frumin.
“L. Siegel.
“ I hereby agree to all above terms and conditions.
“Isaac Smith.”

Complainant by his bill further represented that he had always been ready and willing to comply with the terms of said agreement on his part to be performed; that at the time of the signing of said agreement he paid $50 in accordance with its terms, and thereupon it became the duty of said defendant Rose Mathis to have prepared and brought down to date either a Burton or Union Trust abstract showing title in herself; that complainant had frequently requested her to prepare such abstract, so that he might pay to her $1,950 upon the execution of a land contract, in accordance with the terms of the aforesaid agreement, yet the said defendant refused to comply with the agreement on her part, although he had always been ready and willing to pay said sum and fully perform his part of the agreement whenever said defendant would make and deliver to him such abstract, showing perfect title in herself, and a contract executed within the terms of said agreement. He further represented that after the making of said agreement said defendant had conveyed, or threatened to convey, the said property to her husband, Edward Mathis, for the purpose of hindering complainant in obtaining the enforcement of said contract.

By her separate answer the defendant Rose Mathis admitted that she was the owner of the property described in the bill of complaint. She averred that at the time of the signing of the agreement there was pending in the Wayne circuit court, in chancery, a divorce suit between the two defendants, and that at the time of the beginning of said divorce suit there was filed in the proper office a notice of Us pendens against the property described; that, in addition to that, the court had allowed an in junction to issue against this defendant restraining her from in any manner assigning, transferring, or disposing of said property; that at the time of signing the agreement she was under a severe mental strain and on the verge .of a nervous prostration, resulting from the care she gave to her minor children while suffering from a severe illness, and also was suffering from disgrace and humiliation inflicted upon her by the conduct and actions of her husband, and was mentally and physically incompetent to properly realize the importance and meaning of entering into an agreement of sale for this property; that there were certain representations made to her by the complainant and his representatives that if this defendant desired to repudiate the agreement of sale she was privileged to do so at any time within two weeks thereafter; and that within said two weeks after the signing of the agreement of sale this defendant did tender and offer the return of the #50 mentioned in said agreement, which was refused by the complainant, and for that reason admits having refused to comply with the terms of the agreement. She denied that there was any intent on her part to hinder complainant from enforcing his agreement, and admitted having conveyed the property in question to her former husband, Edward Mathis, and averred that the conveyance to him was a part of an agreement between them in their property settlement, and that at the time of such conveyance to Edward Mathis he likewise quitclaimed any and all right, title, and interest which he claimed in the property in question, and other property, as more fully appears in the bill of complaint in the divorce case.

In and by an amended answer, subsequently filed, defendant Rose Mathis averred that in the said representations made to her by the complainant, at the time she signed the agreement, it was stated that, if she desired to rescind the memorandum of sale, she was privileged to do so at any time within two months thereafter, and she averred that within the said two months after the signing of said memorandum she did tender and offer the return of the #50 therein mentioned, which tender was refused by the complainant; that complainant never claimed to have bound himself to take the property on the terms contained in said memorandum; and that it was specifically agreed and understood that unless said injunction was dissolved and this defendant’s title entirely cleared within two months from September 24th, 1910, said memorandum was not to become operative, and neither party thereto was to be bound thereby. And she averred that said injunction was not dissolved, nor was this defendant’s title cleared within said two months. She denied that on September 24, 1910, or at any time thereafter, before she informed said complainant of her intention not to sell said property, did complainant bind himself in any way or form to buy said property on the terms set forth in said memorandum; that, if there was any acceptance by complainant, it was subsequent to the date of the signing of the agreement, and after she had tendered back the money received by her from complainant; that the agreement signed by this defendant was written in longhand writing, of which there was no copy, and such original and only memorandum of sale, at the time of the signing, was taken by the complainant after this defendant had signed the same, but there was no delivery thereof, at any time by this defendant; and that the complainant was the only person of the parties to the memorandum to have the same in his possession, no duplicate or copy having been given to this defendant.

The separate answer of defendant Edward Mathis alleges that he does not know what were the terms of the agreement; he denies that Rose Mathis was the sole owner of the property; avers that the conveyance to him was for the purpose of securing this defendant for the interest which he had in the property here involved, and also in other pieces of property which were standing in the name of said Rose Mathis as set forth in his bill of complaint for a divorce, to which he prays reference, and he makes reference to the same notice of lis pendens as referred to by the other defendant. After the filing of a general replication, the cause was heard upon the pleadings and proofs taken in open court. The files in the divorce case were offered in evidence by defendants. They showed that the bill was sworn to September 17, 1910, that it was filed September 19, 1910, and an injunction was served upon Mrs. Mathis September 20, 1910, restraining her from selling this property. Upon May 12, .1911, a stipulation was filed withdrawing the bill.of complaint, and on the same day an order was made by the circuit judge permitting the bill of complaint to be withdrawn.

Defendant Edward Mathis offered no evidence to support his claim of ownership of the property here involved. It did appear, however, that there was an agreement whereby Mrs. Mathis was to pay Edward an additional sum of $1,100, and to secure him by executing a satisfactory conveyance of the property here involved to him, to secure him the payment of said $1,100 j that she gave him a deed which was never recorded, and Edward Mathis executed a quitclaim deed to the son, and the latter paid the $1,100. This was April 29, 1911, and Mrs. Mathis gave a deed to her son as security for the $1,100. The bill of complaint and a Us pendens in the instant suit were filed April 28, 1911. This cause was heard May 16, 1912. There was much conflict in the evidence upon the following subjects:

Upon what date the memorandum of agreement was signed by Mrs. Mathis (by her mark), she and some of her witnesses claiming that it was signed on Sunday, which claim was denied by complainant and other witnesses. We have inspected the original instrument. It originally bore date September 24, 1910, but the figures “ 24 ” have been changed to “26.” We take notice of the fact that September 24, 1910, was Saturday, and September 26th was Monday. . After reading the record, we agree with the trial court in reaching the conclusion that the transaction did not take place on Sunday.

Also, there was a sharp conflict as to whether, as matter of fact, it was orally agreed and understood by and between the parties that there was to be no contract, or deal, or binding transaction, of any kind, unless defendant Bose Mathis could give a clear title in two months.

There was also conflict in the evidence as to when complainant added and signed the sentence at the bottom of the memorandum, reading as. follows: “I hereby agree to all above terms and conditions. Isaac Smith ” — it being the claim of complainant that it was done at the time Mrs. Mathis made her mark thereon, and the defendant Mrs. Mathis denying this, and claiming that it was added later. It is undisputed that the words were on the paper when it was produced at the hearing. It is also undisputed that complainant paid Mrs. Mathis $50 at the time she put her mark to the paper, and that complainant took the paper, and that Mrs. Mathis did not retain any copy or duplicate. It is disputed when Mrs. Mathis offered or tendered back the $50; she testifying and claiming that she did it within two months, and complainant claiming and testifying that it was six months after the date of the paper. Upon the hearing of the cause the circuit judge dismissed the bill of complaint with costs to the defendant Rose Mathis. It may be well for us to state the reasons. therefor, as given by the trial judge. They were as follows:

“ I am not satisfied from the proofs in this case that complainant has established his right to what he desires by a fair preponderance of proofs, but I do determine as facts in the case that at the time this deal was entered into and at the time this paper writing was executed by the defendant, it was agreed and understood between the parties that, unless a good and perfect title could have been given by Mrs. Mathis to the complainant in this case, this deal, as it is called, should be declared off within * * * two months. It does appear in the proof in this case that an injunction of this court- prevented for some considerable time thereafter a performance of that part of her bargain by her, and, that being so, then the deal did under the terms of the deal come to an end. If that part of the contract can be read into the contract, and it seems from the case that has been read and cited here that it can — in other words, where the deal itself is contingent upon the happening of a certain event, or the converse of it, the nonhappening of a certain event, it makes little difference, so far as the principle is concerned, whether or not she will get the property clear, or whether the property will be clear. The understanding on her part was simply to perform the terms of this bargain if the property should be clear of the incumbrance of the mortgage. * * * I will state this, that I do think these cases apply. Now I am inclined to think that they do apply with full force, and even if you take the paper writing itself, by itself, and alone, that it shows that it lacks the mutuality that makes the contract binding upon both parties.”

The complainant has appealed, and the two important questions presented are: (1) Was the learned circuit judge right in admitting and considering evidence that it was agreed by parol at the time the memorandum of agreement was entered into, that unless a good and clear title could be given by Mrs. Mathis to complainant within two months the deal should be called off ? (2) Taking the paper writing by itself, does it lack that mutuality necessary to make the contract binding upon both parties ? And this may involve the question whether it was necessary for the complainant to sign the paper to render it enforceable.

1. Upon the first proposition counsel for defendant Rose Mathis urge that the circuit judge did not err in considering this testimony, and they rely upon Cleveland Refining Co. v. Dunning, 115 Mich. 238 (73 N. W. 239), and Ada Dairy Ass’n v. Mears, 123 Mich. 470 (82 N. W. 258), and certain Federal cases. In the first case cited it was held by this court that parol evidence that a written order for the purchase of goods was with the understanding that it was to be obligatory only in case the purchaser should be allowed to cancel a similar order previously given to another person was not inadmissible as varying the terms of a written contract. In that case Justice Hooker said:

The making and delivering of a writing, no matter how complete a contract according to its terms, is not a binding contract if delivered upon a condition precedent to its becoming obligatory. In such case it does not become operative as a contract until the performance or happening of the condition precedent. _ Proving this is not an attempt to vary the terms of a writing admitted to have been executed and delivered with the understanding that it should take effect.”

An examination of the above cases will disclose that neither of them involved any question of the statute of frauds.

Complainant’s counsel claim that in the above-cited cases the arrangement sought to be shown was a condition precedent to the contract coming into existence at all and might be shown by parol evidence; that this holding does not apply to the facts of a case like the present one, where the contract was to take effect at once, and where money was paid and accepted upon the contract át the time of its being made, and where it was at most a condition subsequent; and they cite Mail & Express Co. v. Wood, 140 Mich. 505, 516 (103 N. W. 864, 869), where this court said:

The defendant’s counsel seeks to justify the admission of the testimony and the direction of a verdict on the ground that by the terms of the oral agreement the order was not to become obligatory until the goods were distributed, on the authority of Cleveland Refining Co. v. Dunning, 115 Mich. 238 [73 N. W. 239]. We do not think the proofs bring this case within the ruling of this court in Cleveland Refining Co. v. Dunning, supra. In that case the defendants signed an order for 10 barrels of oil upon the understanding that it was to be obligatory only in case the defendants should be allowed to cancel a similar order previously given to the Standard Oil Company. There was a clear understanding that the cancellation of the one order was to be a condition precedent to the taking effect of the other.”

In the instant case the memorandum of the agreement was clearly within the terms of the statute of frauds (section 9511, 3 Comp. Laws, 4 How. Stat. [2d Ed.] § 11395), and was required to be in writing. - We shall cite cases upon the next point to be considered, to the effect that, where the vendee has accepted such a memorandum, it must, in the absence of fraud, be taken as conclusive, not subject to variation by parol evidence, and, if it contains all of the requisites of a valid land contract, it is binding on both parties. Evidence is not admissible, which, conceding the existence and delivery of the contract or obligation, and that it was at one.time effective, seeks to nullify, modify, or change the character of the obligation itself, by showing that it is to cease to be effective, or is to have an effect different from that stated therein, upon certain conditions or contingencies, for this does vary or contradict the terms of the writing. 17 Cyc. p. 643, citing many cases, including Central Sav. Bank v. O’Connor, 132 Mich. 578 (94 N. W. 11, 102 Am. St. Rep. 433), which fully supports the doctrine.

We are of opinion that the circuit judge erred in holding that the case of Cleveland Refining Co. v. Dunning, supra, applied here, even if the facts were as he found them to be.

2. Taking the memorandum by itself, even if not signed by complainant, at the time it was delivered to him, does it lack that mutuality necessary to make the contract binding upon both parties ?

This court has frequently held that, under our statute above referred to, every contract for the sale of lands is void, unless the contract, or some note or memorandum of it, is in writing, and is signed by the vendor, or his agent lawfully authorized by writing. It does not require .the purchaser to sign the agreement, and, if he accepts it, he is liable on the written contract, though his own assent is verbal. Holland v. Hoyt, 14 Mich. 238; Scott v. Bush, 26 Mich. 418-420 (12 Am. Rep. 311); Burke v. Wilber, 42 Mich. 327 (3 N. W. 861); Mull v. Smith, 132 Mich. 618 (94 N. W. 183); Miller v. Smith, 140 Mich. 524 (103 N. W. 872). In the case last cited Justice McAlvay, speaking for this court, said:

“ The suit was brought upon the written agreement signed by defendants, above set forth. The writing is unambiguous and complete, and requires no extraneous evidence to explain its meaning. It is fundamental that no oral evidence to change or vary its terms would be admissible. As far as this record shows, the writing was signed by defendants with full knowledge of its contents. It is a clear agreement for the sale of certain real estate, properly described, for a certain price, upon certain terms, and acknowledges the receipt of part payment. Plaintiff, having accepted this agreement by making part payment, became a party to it. In the case of Mull v. Smith, 132 Mich. 618 [94 N. W. 183], where, in relation to a memorandum for the sale of real estate, the questions here raised were discussed, the court said:
“ ‘When the memorandum of the oral contract is in writing and signed by the vendor, it is not the contract, but a memorandum, which makes it binding upon him if accepted by the vendee. This is valid evidence of the contract. But can it bind him if not binding upon the vendee ? The statute differs from the English statute, which binds the one sought to be charged only when he has signed it. Under such a statute it may be doubtful if, relying solely upon the memorandum signed by himself, the vendor could enforce or recover damages for the breach of the contract. * * * But whether this is so or not, we cannot doubt that, before either party can make the contract the basis of a suit or action, the element of mutuality must be discernible. See Wilkinson v. Heavenrich, 58 Mich. 574 [26 N. W. 139, 55 Am. Rep. 708]. * * * It being admitted that the vendor has made and the vendee accepted such a memorandum, it must, in the absence of fraud, be taken as conclusive, not subject to variation by parol evidence, and, if it contains all of the requisites of a valid contract, it is binding on both; otherwise not.’ ”

See, also, Orr v. Kenny, 150 Mich. 159 (114 N. W. 228); Adams v. Hotel Co., 154 Mich. 198 (117 N. W. 551, 19 L. R. A. [N. S.] 919).

Upon this branch of the case defendants’ counsel cite the following cases: Wilkinson v. Heavenrich, 58 Mich. 574 (26 N. W. 139, 55 Am. Rep. 708); Wardell v. Williams, 62 Mich. 50 (28 N. W. 796, 4 Am. St. Rep. 814); Bowen v. Lansing, 129 Mich. 117 (88 N. W. 384, 57 L. R. A. 643, 95 Am. St. Rep. 427). In Wilkinson v. Heavenrich, supra, the decision was based upon another section of the statute of frauds which requires the writing to be signed by the parties to be charged therewith. We have sought to show that, in the case of the sale of real estate, the statute only requires the contract or memorandum to be signed by the vendor. In Wardell v. Williams, supra, the paper differed so widely from the one in the instant case that it is readily distinguished. It was a mere offer, never accepted and upon which nothing had been paid. It provided that a mortgage was to be given by the purchaser — which distinguishes it from the instant case, for here the vendee was to give his personal promise to pay the purchase price. In Bowen v. Lansing, supra, it was held that in equity, under a land contract, the land belongs to the vendee, but it was not held that his personal promise to pay the purchase price was an interest in land, or that the legal title was in him, as it would be in case of a deed to him and a mortgage back to secure the payment of a purchase price.

We think that the memorandum of agreement, when accepted by complainant, became a binding contract upon both parties. We attach no importance to the fact that a copy, or duplicate of the memorandum, was not retained by Mrs. Mathis. It was forthcoming at the hearing, and there is no question that it was signed, and its contents understood by her. We cannot agree with defendants’ counsel when they say:

“It must be conceded in this case that, had Mrs. Mathis desired to make Smith take the property, she could not have done so.”

At the time of the filing of the bill in the instant case, Mrs. Mathis held the title to this property, and the injunction had ceased to be of force. Subsequently, the title went to the son as security for $1,100.

We are of opinion that the equities of the case are with complainant, and that he is entitled to have specific performance of the contract as prayed for in his bill of complaint. The decree should authorize complainant to pay off the incumbrance, and have credit therefor upon the contract.

The decree of the circuit court is reversed, and a deoree for complainant will be entered in this court in accordance with this opinion. The complainant will recover his costs in both courts to be taxed.

Stbhre, C. J., and Moore, McAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    HOLCOMB v. VAN ZYLEN.
    1. Animals — Words and Phrases — Birds—Statutes.
    Under 3 Comp. Laws, § 5593 (2 How. Stat. [2d Ed.] § 4362), for double damages in case of injuries done by a dog to “ sheep, lambs, swine, cattle or other domestic animal,” a declaration setting up injuries done by defendant’s dog to plaintiff’s turkeys, was not demurrable.
    2. Same — Definition.
    An animal is any animate being, which is not human, endowed with the power of voluntary motion.
    Certiorari to Ottawa; Cross, J.
    Submitted January-13, 1913.
    (Docket No. 68.)
    Decided March 20, 1913.
    Case by William L. Holcomb against Henry Van Zylen for damages to property. An order overruling a demurrer is reviewed by defendant on certiorari.
    Affirmed.

      Walter 1. Lillie, for appellant.

      Louis H. Osterhous, for appellee.
   Bird, J.

The defendant’s dog “raised havoc” with plantiff’s turkeys, and the damage which resulted is sought to be recovered in this action. The declaration is based on the statute. 3 Comp. Laws, § 5593 (3 How. Stat. [3d Ed. ] § 4363). The demurrer which was interposed by the defendant raises the sole question whether a turkey is an animal within the meaning of this statute.

The statute upon which the action is planted provides in part that:

“If any dog shall have killed or assisted in killing, wounding or worrying any sheep, lamb, swine, cattle or other domestic animal,” etc.

As turkeys are not specifically named, it is clear that, if they are embraced within the statute, the authority for so doing must be found in the words “ or other domestic animal. ” An animal is defined by Bouvier as *5 any animate being which is not human, endowed with the power of voluntary motion.” This comprehensive definition seems to have been accepted in legal matters as the proper one. 2 Cyc. p. 304; 2 Am. & Eng. Enc. Law (2d Éd.), p. 348.

The courts have dealt with the question from many different angles, and in nearly every instance they have adopted this definition, and have construed the term “animal” so as to include fowls. In Huber v. Mohn, 37 N. J. Eq. 432, the question arose in the construction of a will, where the testator had given “his horses and all other animals on the premises,” and it was held that the words “ all other animals ” carried with them the fowls on the premises. A statute which prohibited domestic animáis from running at large in the highway was construed so as to include turkeys. McPherson v. James, 69 Ill. App. 337. In construing a statute prohibiting cruelty to animals, a goose was held to be an animal. State v. Bruner, 111 Ind. 98 (12 N. E. 103). A like result was reached in the criminal cases of People v. Klock, 48 Hun (N. Y.), 275 and Reg. v. Brown, 24 Q. B. Div. 357.

The question is a new one. in this court, and when it was first suggested by one of the briefs in the case that there were animals which grew feathers, it was a severe strain on the writer’s credulity to accept it without reserve; but an examination of the question has brought with it the conviction that turkeys are animals under the generally accepted definition of that term as used in the law.

The question, therefore, is whether the legislature, in passing the act, had in mind this comprehensive definition of the word “ animal,” or whether it had in mind the popular and well-understood subdivisions of that term, namely, fowls, birds, reptiles, insects, etc. Either view could be accepted without doing violence to the language of the act. But the fact that the statutes involving this question have been generally construed by other courts in accordance with the general definition induces us to follow them, and hold that the words “ or other domestic animal ” should be construed as including domestic turkeys.

As the same conclusion was reached by the trial court, its order overruling the demurrer will be affirmed, and the writ of certiorari dismissed, with costs to the plaintiff.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred.


author: Brooke, J.

text:
    SOULE v. CITY OF GRAND HAVEN.
    Equity — Jurisdiction—Value of Property — Taxation.
    Complainant’s bill, praying to have a tax lien for special improvements assessed against his property and land of another, as one parcel, removed, after payment by complainant of his due proportion of the tax, was not subject to the objection that the amount involved in the tax was less than $100; the land being worth more than $100, equity had jurisdiction.
    Appeal from Ottawa; Gross, J.
    Submitted January 16, 1913.
    (Docket No. 129.)
    Decided March 20, 1913.
    Bill by Charles E. Soule against the city of Grand Haven for the vacation of a tax lien for a special assessment. Prom a decree for defendant dismissing the bill, complainant appeals.
    Reversed.

      Charles E. Soule, in pro. per. (C. Edward Soule, of counsel), for appellant.

      Daniel E. Pagelsen, for appellee.
   Brooke, J.

Complainant files his bill for the purpose of having certain real estate owned by him relieved from a portion of a special assessment tax alleged by him to be unlawful and excessive. He is the owner of the south half of lot 262, assessed on the last ward tax roll at $650. He also owns the north half of lot 263, assessed upon the last ward tax roll at $500. These two descriptions, which, in the year 1910, when the last preceding ward tax roll was made, were owned by two different people, lie side by side, fronting on Third street, for the paving of which a special assessment was levied. The special tax roll prepared by the assessors and approved by the common council assessed the two parcels as one, and fixed the amount to be paid by complainant at the sum of $299.64. Complainant appeared personally before the board of review, and requested that the lots be assessed separately. This being refused, he paid $149.82, being the assessed cost of the improvement at $4.54 per lineal foot for 33 feet, the south half of lot 262, and the further sum of $125, being 25 per cent, of the assessed valuation upon the north half of lot 263. Complainant later petitioned the common council to vacate its claimed lien for the balance of $24.82 against both parcels. The prayer of this petition was not granted, and complainant thereupon filed his bill of complaint. A decree was entered dismissing the bill upon the sole ground that, the sum involved being but $24.82, a court of equity was without jurisdiction in the premises.

We have held in many eases that the value of the land to be affected by the lien, and not the amount of the claim asserted, determines the jurisdiction of the court. Matteson v. Matteson, 132 Mich. 516 (93 N. W. 1079), and cases cited; Wilcke v. Duross, 144 Mich. 243 (107 N. W. 907, 115 Am. St. Rep. 394). Reference is made to the decision in Van Zanten v. City of Grand Haven, post, 282 (140 N. W. 471).

The decree is reversed, and a decree will be entered in this court granting the relief prayed. Complainant will recover costs of both courts.

Steers, C. J., and Moore, Me Alva y, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: McAlvay, J.

text:
    NORTHOUSE v. CITY OF GRAND HAVEN.
    Appeal from Ottawa; Cross, J.
    Submitted January 16, 1918.
    (Docket No. 127.)
    Decided March 20, 1913.
    Bill to remove cloud from title by Peter C. Northouse against the city of Grand Haven. Prom a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Charles E. Soule (C. Edward Soule, of counsel), for complainant.

      Daniel E. Pagelsen, for defendant.
   McAlvay, J.

This case is controlled by the decision in Soule v. City of Grand Haven, ante, 276. The decree is reversed, and a decree will be entered in this court granting the relief prayed.

Complainant will recover costs of both courts.

Steers, C. J., and Moore, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Moore, J.

text:
    GRAND HAVEN BASKET FACTORY v. CITY OF GRAND HAVEN.
    Taxation — Special Assessments.
    Where complainant owned several lots in a parcel together, only one of them being in the assessment district fixed by the common council, it was not competent to spread a special improvement tax amounting to more than the 25 per cent, of the value of the lot against the entire parcel of lots owned by complainant. 1 Comp. Laws, § 3876 (1 How. Stat. [2d Ed.] § 1821), 1 Comp. Laws, § 3196 (2 How. Stat. [2d Ed.] § 5718).
    Appeal from Ottawa; Cross, J.
    Submitted January 16, 1913.
    (Docket No. 126.)
    Decided March 20, 1913.
    Bill by the Grand Haven Basket Factory against the City of Grand Haven to remove a tax lien from land of complainant as a cloud on his title. From a decree for defendant, complainant appeals.
    Reversed.

      Charles E. Soule (C. Edward Soule, of counsel), for complainant.

      Daniel F. Pagelsen, for defendant.
   Moore, J.

The facts in this case are not in dispute. The bill is filed to quiet title to real estate by removing a cloud therefrom, arising from an assessment levied by defendant as the cost of paving a public street running past property owned by complainant.

The complainant is the owner of lots in the block lying between Sixth and Seventh streets, and Madison and Elliot streets, in Grand Haven. The street which was paved was Seventh street. Lot 6 of complainant’s property fronted on Madison street running back on Seventh street. This lot was the only lot in the pareé! owned by complainant that was in the paving district as established by the city. The other lots were outside of the paving district.

We quote from the brief of complainant:

“The ward tax roll for the year 1910 is conceded to have been the last preceding ward tax roll in reference to said special improvement proceedings; and it is also conceded that in said ward tax roll for 1910 the entire 8£ lots owned by complainant were valued and assessed for State and county taxation, in one parcel, at $10,000. The assessment roll made by the special assessors, and duly confirmed April 17, 1911, fixed an assessment of $400.09 against the entire 8£ lots owned by complainant as its share or portion of the cost of the improvement, which amount thereby became a lien upon the entire of complainant’s said property. Complainant and appellant contends that only lot 6 was subject to assessment, and that the remaining 7| lots, having been omitted from the assessing district, and not being shown on the maps and drawings in connection with the improvement, were unlawfully included in the assessment made and confirmed for the cost of said improvement. It is further claimed in behalf of complainant and appellant that the value of said lot 6, as fixed by the said 1910 ward tax roll, is $1,176.47, which said sum bears the same relation to the $10,000, at which the entire parcel was assessed, as said lot 6 bears to the 8£ lots owned by complainant and valued as one parcel, and that the maximum amount lawfully assessable against said lot 6 on said valuation of $1,176.47 is 25 per cent, thereof, or $294.12. Complainant’s bill admits liability for the full amount lawfully assessable against said lot 6, but alleges that the excess over $294.12 is unlawful and should be removed as a lien or cloud upon its title to said lot 6, and alleges, also, that no assessment was lawfully assessable against the remaining 7£ lots, and that the lien of $400.09 placed upon said lots by the confirmation of said assessment is a cloud upon the title thereto which complainant and appellant is entitled to have removed.”

The court below sustained the validity of the tax as made.

Section 3196, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5718), reads in part as follows:

“In no case shall the whole amount to be levied by special assessment upon any lot or premises for any one improvement exceed twenty-five per cent, of the value of such lot or land, as valued and assessed for State and county taxation in the last preceding ward tax roll.”

Section 3876, 1 Comp. Laws, which is a part of the general tax law of the State (1 How. Stat. [2d Ed.] § 1821), reads in part as follows:

Any person owning an undivided share, or other part or parcel of real property assessed in one description, may pay on the part thus owned by paying an amount having the same relation to the whole tax as the part on which payment is made has to the whole parcel.”

The city council established an assessment district. This included lot 6. As before stated, it did not include the other lots. This being the situation, it was not competent to spread the assessment on the lots outside of the assessment district in the way it was done. See Whitney v. Village of Hudson, 69 Mich. 189 (37 N. W. 184). A decree should have been granted as prayed by the complainant.

The decree is reversed, and one may be entered here in accordance with this opinion, with costs of both courts to complainant.

Steers, C. J., andMcAivAY, Brooke,.Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


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    VAN ZANTEN v. CITY OF GRAND HAVEN.
    1. Taxation — Special Assessments — Paving Tax.
    Out of a parcel of several lots owned by one taxpayer, only those within the assessment district, as fixed by the city counoil, may be specially assessed for paving. 1 Oomp. Laws, §§ 3195, 3196 (2 How. Stat. [2d Ed.] §§ 5717, 5718).
    2. Same — Estoppel — Time to Object — Removing Cloud eeom Title.
    By failing to attend the meeting of the board of review, or file objections to the assessment, the taxpayer did not preclude himself from the remedy afforded by equity.
    3. Same — Laches.
    Nor did such nonaction bar a suit to remove the cloud from complainant’s title, on the ground of laches.
    4. Same — Proportion Payable — Evidence.
    Oral testimony as to the value of the separate parcels, included by the assessing officers, was incompetent: the valuation is fixed by statute as the value given in the last tax roll, and based oh such valuation complainant should be required to pay the proportion of the tax fixed by the ratio of property in the district to the whole area.
    5. Same — Special Assessments.
    Grants of power to make special assessments must be strictly construed and strictly followed.
    Appeal from Ottawa; Cross, J.
    Submitted January 16, 1913.
    (Docket No. 128.)
    Decided March 20, 1913.
    Bill by Cornelius Yan Zanten against the city of Grand Haven to vacate a tax lien as a cloud on complainants’ title. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Charles E. Soule (C. Edward Soule, of counsel), for complainant.

      Daniel F. Pagelsen, for defendant.
    In the year 1911 the defendant city took certain proceedings under the statute (1 Comp. Laws, § 3192 et seq.,
      2 How. Stat. [2d Ed.] § 5714), to pave Seventh street in said city. Complainant is the owner of lot 7, which has a 66-foot frontage on Elliott street and abuts on Seventh street for a distance of 132 feet. Complainant also owns lot 8 and the east half of lot 9. These parcels lie immediately west of and adjoining lot 7. They abut on Elliott street. An old dwelling house stands upon lot 8. Upon the ward tax roll for the year 1910 lots 7, 8, and the east half of lot 9 were assessed as one parcel to the complainant at a valuation of $1,400. An assessment district was duly fixed by the common council, and a plat or map thereof was filed with the city clerk pursuant to section 3195, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5717). Lot 7 only of complainant’s property was included within the assessment district as shown upon the map. A special assessment roll was duly prepared and filed, and notice was given to all property owners affected thereby that the common council and board of assessors would meet to review the same on April 17, 1911. In said special assessment roll the entire 2£ lots owned by complainant were described and assessed as one parcel, the amount of the frontage being stated as 132 feet and the amount of the assessment $400.09. Complainant did not appear at the meeting of the board of review on April 17, 1911, nor did he file any objections to said assessment. On March 4, 1912, complainant submitted a written petition to the common council reciting the foregoing facts, together with the further fact that the assessed value of lot 7 in 1910 was $560; that sum being the proportion which lot 7 bore to the assessment on the 2£ lots for that year. Complainant offered to pay the sum of $140, or 25 per cent, of such assessed valuation, and asked that lot 8 and the east half of lot 9 be released and discharged from said assessment. The prayer of this petition being denied, complainant filed his bill of complaint under 1 Comp. Laws, § 448, as amended by Act No. 256 of the Public Acts of 1909 (4 How. Stat. [2d Ed.] § 11965). The foregoing facts were stipulated, and upon the hearing the trial court, over complainant’s objection, admitted proof of the value of lots 7, 8, and the east half of lot 9, outside the ward assessment roll for the year 1910. From a decree dismissing the bill complainant appeals.
   Brooke, J.

(after stating the facts). We are of opinion that the defendant acquired no jurisdiction in the premises over lot 8 and the east half of lot 9, but was limited in making up its assessment roll to lot 7, which alone of complainant’s property had been included in the assessment district. Notice of the making and filing of the map or plat showing the district was given according to law and it must be presumed complainant had notice, if not knowledge, thereof. By such notice complainant was advised that lot 7 only had been placed within the assessment district, and he had a right to assume that, in making up the roll, lot 7 only would be taxed.

It is said by defendant that complainant’s failure to attend the meeting of the board of review, or to file objections to said assessment, should be held to preclude him from seeking relief in the present proceeding — that he is now bound by the assessment. We cannot agree with this view.

In the case of Steckert v. City of East Saginaw, 22 Mich. 104, Justice Cooley, speaking for the court, said:

‘ ‘ To hold that a man is bound at his peril to take notice of illegal action on the part of the public authorities, is carrying the doctrine of constructive notice very much farther than the authorities will warrant. We think, on the other hand, that the citizen has a right to assume that the law is being obeyed instead of violated by the public authorities.”

Defendant insists, and the court held, that complainant was guilty of laches in not appearing and objecting to the confirmation of the assessment roll. In a proceeding for the sale of lands for delinquent paving taxes (Auditor General v. Calkins, 186 Mich. 1 [98 N. W. 742]), this court had under consideration the various sections of the statute here involved. We there said:

“ This is not a case where a court of equity will leave a party complainant to his remedy at law. The defendant is now for the first time brought into court and given an opportunity to contest the validity of the proceedings. The statute gives him the right to wait until the State moves to foreclose the tax lien upon his property, and then gives him the right to appear and make any objections which were fatal to the proceedings. He cannot, therefore, be charged with laches.”

The complainant herein did not wait until an attempt was made to enforce the illegal tax, but himself by seasonable action brought the matter to the attention of the court. The charge of laches is groundless.

Defendant being limited by its own act in making the assessment district to lot 7, what is the proper amount to be assessed thereon? Section 3196, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5718), provides that:

“In no case shall the whole amount to be levied by special assessment upon any lot or premises for any one improvement exceed twenty-five per cent, of the value of such lot or land, as valued and assessed for State and county taxation in the last preceding ward tax roll.”

The limit of taxation is here fixed as well as the method of determination. No authority is given to fix an assessment based upon any valuation except that given “in the last preceding ward tax roll.” The court improperly admitted and gave consideration to oral testimony as to value. This court has held that grants of power to make local assessments must be strictly construed and strictly followed. Sibley v. Smith, 2 Mich. 487; Clark v. Crane, 5 Mich. 151 (71 Am. Dec. 776); Whitney v. Village of Hudson, 69 Mich. 189 (37 N. W. 184). But it has been held that where a lot or parcel included within the special assessment district is part of a larger tract or parcel, and is assessed together with that lying outside the district as one parcel upon the ward roll, the assessors may apportion the value of the parcel within the district to the value of the whole tract as assessed upon the ward roll. Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204). In the instant case the assessors failed to make this apportionment, but, as we have seen, assessed without warrant that portion of complainant’s property lying outside the district as well as lot 7, which was within. Inasmuch as the computation apportionment put in evidence by complainant seems to be equitable, we can perceive no reason for disturbing it. Lot 7 in area is two-fifths of the whole and $560 is two-fifths of the whole assessed value of $1,400. The improvements, be their value small or great, are located upon lot 8, while lot 7 is vacant, so that it may be presumed that the area method of apportionment was at least just to the defendant.

The judgment is reversed, and a decree will be entered in this court releasing and discharging all of complainant’s property from the tax lien upon payment of $140 and interest. Complainant will recover costs of both courts.

Steere, C. J., and Moore, McAlvay, Kuhn, . Stone, Ostrander, and Bird, JJ., concurred.


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      In re GANUN’S ESTATE. GANUN v. GANUN.
    1. Evidence — Wills — Admissions of One of Several Beneficiaries — Undue Influence.
    On the contest of a will for undue influence, evidence of statements or admissions made by proponent, executor of the estate, who was one of the beneficiaries, tending to prove undue influence, was incompetent because the rights of other beneficiaries standing in no relation of privity should not be prejudiced by his unsworn declarations.

      2. Wills — Undue Influence — Evidence.
    Opportunity for wrongdoing is not alone sufficient to establish undue influence: there must be, .also, evidence of acts or circumstances from which the jury might find that the influence was exercised.
    3. Same.
    Where it was contended that the son and widow of testator influenced him unduly in the making of the will, but the testimony showed he was of sound mind, and desired to make the disposition that he made of his estate, that he consulted two reputable attorneys before it was drafted, and a considerable interval elapsed after the consultations before he gave final instructions for its preparation, going alone in each instance, that only the lawyer who drew the instrument knew of its existence until after the death of testator, some two years and eight months after executing the testament, the court should have instructed the jury that undue influence was not shown.
    Error to Lenawee; O’Mealey, J.
    Submitted January 7, 1913.
    (Docket No. 12.)
    Decided March 20, 1913.
    Francis Ganun presented for probate the last will of Nathan Ganun, which was contested by Addison Ganun and Newman J. Ganun. From an order of the probate court granting the petition, contestants appealed to the circuit court. Judgment for contestants. Proponent brings error.
    Reversed.

      Smith, Baldwin & Alexander, for appellant.

      John A. Riley and Jacob N. Sampson, for appellees.

       Evidentiary force of circumstance that one benefited by a will was the draftsman thereof, or was active in procuring its execution, see note in 38 L. R. A. (N. S.) 370.

   Brooke, J.

The will is contested upon the ground of undue influence only.

In February, 1908, Nathan Ganun, the testator, being then 71 years of age, made a will which was made operative by his death in October, 1910. He left surviving him a widow and four children. At the time the will was executed, Frank, the eldest son, was 50 years of age, Addison was 48, Newman 46, and Melvina 44. All were married and had children, most of whom had reached maturity at the time of the death of testator. The estate amounted to some $28,000. By his will testator gave to his widow during her life the income from the entire estate; to his daughter, Melvina, $4,000. To each of his two sons, Addison and Newman, he gave the income during life from $5,000, with remainder over to five of Frank’s children — to Oliver (Frank’s son) 40 acres of land, to Cecil (Frank’s son) $2,000, to Raymond (Frank’s son) $2,000. The residue of the estate he gave to his son Frank, and appointed him executor. Three other children of Frank’s were not mentioned in the will, and no bequest was made to any of the other grandchildren. Addison left home when about 21 years of age, and Newman at about the age of 26. Frank lived with his father until his marriage, and' thereafter upon a farm very close to that of his father. Up to the time of the death of the testator, he continued to work with his father upon his father’s farm as well as upon his own. Two of Frank’s daughters were practically reared in the testator’s home, and the relations between the testator and his Wife and Frank and his family were very intimate. During the last 15 years of testator’s life, Newman and Addison lived in Toledo, Ohio, and the daughter, Melvina, in a western State. These children visited their father, the testator, at comparatively rare intervals, though they as well as their children were upon friendly terms with him. Testator was a man much opposed to the use of intoxicating liquor as a beverage. There is testimony in the record tending to show that the son Addison was somewhat addicted to such indulgence, and that his father disapproved of his course. The record likewise shows that testator assisted Newman to start a mercantile business which after two or three years proved to be unremunerative. Newman quit the business. The testator was held as a partner, and was obliged to pay the debts of the concern to a considerable sum — probably about $3,000. Newman worked as a bartender for about six months, and for a short time owned and operated a saloon.

The following testimony was admitted over the objection of proponents: Lydia J. Bancroft, mother of Addison’s wife, testified:

ee Q. Just tell the jury what conversation you heard between Frank and your daughter ?
“A. I heard him tell Addision that he would see that he didn’t have any of his property to spend.”

Clara Ganun (Addison’s wife) testified:

ilQ. State as nearly as you can the exact language used by Frank and by Addison that day.
“A. Frank said that he would see to it that the two boys didn’t have any of that property to spend.”

The date of this conversation is fixed as of January, 1908; the will being executed in February, 1908. Alfred Hart testified:

“A. She (Jane Ann Ganun, testator’s widow) at one time said that Newman or Addison wouldn’t get any of the property as long as she and Mr. Ganun lived. * * * She said something about Newman wanting the farm down there, or the boys wanting the property, and she said they wouldn’t get it until they got done with it.”

Newman Ganun testified:

“Q. What did she (Jane Ann Ganun) say at that time ?
“A. Well, she said she would see that it was fixed so they wouldn’t get any of it. * * *
“Q. I ask you if you and Frank did have a talk about property matters in the barn at your father’s homestead. * * *
“A. The conversation in the barn, well, I drove into the barn, and he came in there. Of course, this was after the will was probated, and the first question he says to me, he says, ‘ I don’t want you boys to think that I have taken advantage of you here;’ and he wanted me to come up there and frame up some kind of a settlement, and he went on and we talked about that. Then we went over there to the house, and talked there some, and, of course, in this talk that day there was nothing much brought out only he didn’t take advantage of us, and he wouldn’t make the settlement and give us or buy us a farm. Of course, he had lots of provisions in this agreement, and one thing and another, and I told him I couldn’t agree to anything of that kind under the condition that was, but, of course, he wouldn’t make it unless my brother Addison would do the same thing as me. At that conversation Frank said that the first he knew there was a will was either on the day or the next day after father’s death. Mother came to him, and told him that she found a receipt for a will, and that is the first that he ever knew there was a will. There was no further talk between us about the will. I told him that it was the most damnable piece of business that I ever saw gotten up. I have told all I remember about the conversation with Frank in the barn. I had another conversation with him in the house. Mother, Frank, and I were talking, and I said to Frank, * You told me in going to Blissfield a couple of weeks before that, or three weeks before that, a couple of weeks before father died, that Ollie was going to get that 40 acres, and, if I had stayed on the 120, I would have had something, and you claimed you were worried because you would have Addie’s money to look after;’ and I says, ‘ How did you know these things if you didn’t know there was a will P and him and mother both spoke at the same instant, ‘We surmised it.’ ”

Proponents’ rights were duly preserved by timely objection or motion to strike out.

It is the contention of appellants that all the foregoing testimony was improperly admitted, for the reason that by making proof of statements or admissions made by Frank and his mother, Jane Ann, having a tendency to defeat the will, the rights of other legatees under the will who were not jointly interested with Frank or his mother were swept away. Assuming, for the moment, that the evidence quoted was such as to support an inference of undue influence, was it admissible ? The question was first passed upon in this State in the case of O’ Connor v. Madison, 98 Mich. 183 (57 N. W. 105), where it is said:

“The question was referred to by this court in Re Estate of Lambie, 97 Mich. 49 [56 N. W. 223], where the declarations of one who was devisee of the entire estate were held admissible. But we think that the rule does not extend to cases where there are several interested in sustaining the will, as in this case.”

An examination of the original record in this case shows that the legatees, evidence of whose declarations was held to have been properly excluded, were neither of them named as executors, and were therefore not formal parties in the suit. O'Connor v. Madison was followed as settled law in Re Estate of Lefevre, 102 Mich. 568 (61 N. W. 3). It was again followed in Roberts v. Bidwell, 136 Mich. 191 (98 N. W. 1000), and in that case it was held that evidence of the declarations of Brant Roberts was not admissible. Brant Roberts was one of the executors named in the will, himself filed the petition for its probate, and was a formal party in the proceeding. In the case of In re Loree's Estate, 158 Mich. 372 (122 N. W. 623), a verdict was directed for the proponent at the conclusion of the testimony, upon the ground that no evidence of undue influence had been produced. The evidence was examined in this court, and it was said:

“A consideration of all of the evidence in the case does not support the conclusion of the court.” A re-examination of the record in that case convinces us that this conclusion was warranted, based upon the evidence which was admitted by the trial court. In that case Catharine Loree was one of many legatees, and was executrix and proponent of the will. We there said:
“ Statements (declarations) made by her at other times, whether in testator’s presence or absence, were material upon the question of undue influence., and her attitude towards these contestants.”

The admissibility of evidence of declarations of Frank and Jane Ann Ganun in the case at bar is predicated upon this language. It will be noted that in the Loree Case there is no discussion.of the authorities upon the question. It is clear, under all the authorities, that evidence of declarations or admissions of Jane Ann Ganun, she being neither executrix nor proponent, were inadmissible. Does the fact that Frank Granun is both executor and proponent make such evidence admissible as to his declarations ? We think not. As we have seen, such evidence was excluded in the case of Roberts v. Bidwell, supra. In the early case of Shailer v. Bumstead, 99 Mass. 112, cited with approval in O’Connor v. Madison, supra, it is said:

“ In connection with the evidence thus offered and rejected, the contestants offered also the declarations and conduct of Hayden and Shailer, named executors, subsequent to the date of the will. And this brings us to another important question in the case. The' evidence, for the purpose for which it was offered, was, we think, properly excluded. It was not proposed thereby to contradict their testimony. The admissions of a party to the record against his interest are, as a general rule, competent against him; and this rule applies to all cases where there is an interest in the suit, although other joint parties in interest may be injuriously affected. But it does not apply to cases where there are other parties to be affected who have not a joint interest, or do not stand in some relation of privity to the party whose admission is relied upon. A mere community of interest is not sufficient. Devisees or legatees have not that joint interest in the will which will make the admissions of one, though he be a party appellant or appellee from the decree of the probate court allowing the will, admissible against the other legatees. * * * Before the death of the testatrix, the interest of all these parties in a will, liable at any time to be revoked, was not such a direct interest as should render their admissions competent against other parties. The separate admissions of each, made after the act, that the will was procured by their joint acts of fraud or undue influence, cannot be permitted to prejudice the other ” — citing many cases.

The identical question was passed upon in the case of McMillan v. McDill, 110 Ill. 47, where evidence of declarations of Robert McMillan, the executor of the will, was held to have been improperly admitted, although the trial court received the evidence as against him alone, and not against his codefendants. See cases cited. See, also, Gardner on Wills, p. 201, and cases cited in note, and on page 142; Schouler on Wills and Administration, p. 120, and note. Upon principle we think it is clear that the mere fact that one of several legatees is named as executor, and thereby burdened with the duty of proposing the will for probate, should not make evidence of his declarations admissible as against his colegatees when otherwise such evidence would be incompetent. Instances, may readily be imagined where an executor with a negligible interest under the will would be largely benefited by having the will set aside and the estate distributed under the statute of descent. In such a case the temptation to make declarations as to mental incompetence or undue influence is evident, and proof of such declarations might not only greatly advantage the declarant, but sweep away the rights of the other legatees under the will. It should be noted that twice since the Loree Case was decided this court has distinctly reaffirmed the principle of O’Connor v. Madison. In re Hewitt’s Estate, 161 Mich. 536 (126 N W. 848, 21 Am. & Eng. Ann. Cas. 47); In re Mc-Master’s Estate, 163 Mich. 210 (128 N. W. 259). In the latter case, upon the facts, it was held that the case was outside the rule. So far as the language used in the Loree Case can be construed as questioning or changing the rule, it must be disregarded. As before pointed out, it was not necessary to the decision.

We have discussed this question somewhat at length in order that there may be no doubt among the profession as to the true rule in such cases, and we have assumed in the discussion that the testimony in question had a legitimate tendency to establish undue influence upon the part of Frank Ganun or his mother. We think it doubtful whether the evidence (even if admissible) has any such probative force. Nathan Ganun was a man of strong mental and unusual physical equipment. He was hard-headed, frugal, and industrious. He was a man of affairs in a limited way, careful of his business, and jealously retained full control thereof until more than two years after the will was executed. Jane Ann, his wife, and Frank, his eldest son, were his closest and most intimate associates. It may be said that both had abundant opportunity to practice fraud or to exercise undue or unlawful influence upon the testator.

But, under the law, opportunity alone for wrongdoing is not sufficient. Outside of such opportunity, there must be evidence of acts or circumstances from which the jury may find that the fraud was perpetrated — the undue influence exercised. We have read the record with care, and are unable to find any testimony which even remotely indicates that either Frank or his mother influenced or sought to influence the making of the will.

Both had a perfect legal right to persuade the testator to leave his property as he did, and, if they had done so, the will would still stand as testator’s will, if at the time of its execution he was of sound mind and the instrument represented his own desires in the premises. The record shows that the testator consulted two reputable lawyers before the will was drawn; that some time elapsed after such consultations before he gave final instructions for its preparation; that he went alone in each instance; and (excluding the testimony improperly admitted) that no one except the lawyer who drew the will knew of its existence until after the death of the testator. Considering the character of the testator for thrift and industry and his principles (or prejudices) as to the use of intoxicating liquors, the disposition he made of his estate should create no unfavorable comment. At any rate, it was his estate, and he had the unquestioned right to make such disposition of it as he saw fit. He made his will and lived for two years and eight months thereafter, during all of which time he was in full possession of his mental faculties and transacted his business, but made no change in his will. We are of opinion that the motion to direct a verdict for proponents at the close of contestants’ case should have been granted. Many errors are assigned upon the refusal of the court to give proponents’ requests to charge and upon the charge as given. Our conclusion upon the principal question renders discussion of those assignments unnecessary, though some of them are not without merit.

• The judgment is reversed, and a new trial ordered.

Steere, O. J., and Moore,' Kuhn, Stone, and Ostrander, JJ., concurred. McAlvat, J., concurred in the result. Bird, J., did not sit.


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    AMERICAN AUTOMOBILE INSURANCE CO. v. COMMISSIONER OF INSURANCE.
    1. Insurance —Fire and Indemnity Polioies — Automobile Insurance-Mandamus .
    In a mandamus proceeding to compel the commissioner of insurance to rescind a ruling, requiring relator to cease transacting personal liability insurance in Michigan, a foreign corporation, issuing insurance on automobiles in connection with personal liability insurance and indemnity against accident, and including in its policy an agreement to defend suits, pay costs, etc., having exceeded the authority conferred by Act No. 15, Pub. Acts 1911, amending Act No. 77, Pub. Acts 1869, is not entitled to the writ (3 How. Stat. [2d Ed.] § 8049 et seq.).

    2. Same — Foreign Corporations — Conflict of Laws.
    Since the policy of this State, as evidenced by statutes and decisions, is to separate insurance on property from other lines, the rule of comity, permitting a corporation organized under laws of another State that authorize it to transact liablity and other insurance on automobiles, to engage in similar business in sister states, does not empower it to engage in such distinct lines of business not permitted by the statutes of this State.
    Mandamus by the American Automobile Insurance Company, of St. Louis, Missouri, against C. A. Palmer, insurance commissioner of the State of Michigan, to compel respondent to rescind an official ruling that relator should suspend personal liability insurance on automobiles.
    Submitted January 14, 1913.
    (Calendar No. 25449.)
    Writ denied March 20, 1913.

      Hobson & Murfin, for relator.

      Grant Fellows, Attorney General, and L. W. Carr and Thomas A. Lawler, Assistant Attorneys General, for respondent.
   Moore, J.

The questions involved cannot, perhaps, be better understood than by quoting from the briefs of counsel. The following is from relator’s brief:
“ Relator is incorporated under the laws of the State of Missouri, where, by its charter and certificate of authority, it is authorized to write ‘ all kinds of insurance on automobiles, to wit, fire, theft, collision, property damage and liability.’ Through application properly made in different States, it is doing an automobile insurance business in approximately 30 States of the Union. On the 5th of March, 1913, after complying with the Michigan statutes and departmental regulations, the commissioner of insurance for this State authorized relator to transact business in this State under Act No. 136 of the Public Acts of 1869, as amended by Act No. 15 of the Public Acts of 1911. Whereupon, and until October 33, 1913, relator wrote automobile insurance in Michigan as it was doing in many other States, covering by its policy losses through fire, theft, collision, property damage and liability. On October 33d the commissioner of insurance for Michigan directed that relator should discontinue writing personal liability business on automobiles. The commissioner on application has refused to change his ruling or reverse his order, holding that Act No. 15 of the Public Acts of 1911 does not permit writing the form of policy relator had been writing.
“The title in section 1 of what is generally known as the 8 Fire Insurance Act ’ was amended by Act No. 15 of the Public Acts of 1911, so that the title now reads, ‘An act relative to the organization and powers of fire, marine and automobile insurance companies transacting business within this State.’ The sole change in the title being the addition of the word * automobile.’ Section 1 was amended by adding a third subdivision. That section permits the incorporation of companies for any and all of the purposes therein enumerated, the first subdivision relative to fire insurance companies, the second subdivision relative to marine insurance companies, and the third subdivision (the new one giving rise to this controversy) reading: ‘To make insurance on automobiles, whether stationary or being operated under their own power against any hazard.’ The primary question presented for determination is whether or not in that act the words ' any hazard ’ mean ‘any hazard,’ or ‘any hazard except personal liability.’
“The second question, regardless of the answer to the foregoing inquiry, is as to whether or not, if relator is entitled to do business at all in this State, it should not, as a matter of comity under a settled rule of law, be entitled to do the same business here that it is authorized to do by its charter and the laws of its home State, where there is no express legislative prohibition to the contrary here. While the problem is apparently a simple one, yet the ruling of the commissioner seems to make it necessary to consider briefly the history of our insurance laws.”

Then follows a history of the insurance laws.

Proceeding, counsel say:

“Confessedly, automobile insurance is in a class by itself. The largest risk possible to take in the automobile insurance line by any company is a fire risk incident to the burning of a garage harboring a number of machines at the same time, which is undoubtedly the reason for putting automobile insurance under the ‘ Fire Act.’
“We have therefore the following significant circumstances to be borne in mind:
“ (1) The sudden necessity of an automobile insurance policy which would cover ‘any hazard.’
“ (2) We have the reason for providing under the * Fire Act ’ for the incorporation of automobile insurance companies.
“(3) We have the restrictive language in the ‘Life Act,’ which specifically enumerates what may be insured and prohibits any other kind of insurance.
“ (4) We have like language in the act to provide for the admission into this State of a limited class of automobile insurance companies.
“ (5) We have the act designed by the legislature to meet the suddenly developed demand which, in the desire of the legislature to meet, was intentionally and deliberately made as broad as possible by amending the title, so that in its title the act provided for the organization of automobile insurance companies, and in the body of the act such companies were authorized ‘ to make insurance upon automobiles (a) whether stationary, or (6) being operated under their own power against any hazard.’
“ If the legislature intended to say ‘ against any hazard except liability,’ why did they not say so? The word e any ’ certainly cannot be construed in this connection to mean only a portion of hazards, nor can it be construed to mean ‘any one hazard.’ The department has construed it to mean ‘only certain hazards.’ We respectfully submit it must mean either ‘any one hazard’ or ‘every hazard,’and the context and the reasoning prompt the belief that ‘ every hazard ’ is intended; otherwise the legislation was idle.”

The query might be germane here: If the legislature meant to authorize liability insurance, so called, why did it not say so ? Before raising that inquiry, we quote from the brief of the attorney general:

“ The relator is an insurance company organized under the laws of the State of Missouri. It has complied with the provisions of Act 136, Public Acts of 1869, as amended, being sections 7224, etc., Compiled Laws of 1897, and being the act with reference to fire and marine insurance companies. If has not complied with the provisions of Act 77, Public Acts 1869, being sections 7190, etc., Compiled Laws 1897, and being the act which with its various amendments controls the organization of life, casualty, and surety insurance companies. At the time of the service of the commissioner’s order, it was writing ‘personal liability business on automobiles.’ In other words, it was writing the kind of policies which insured the owners-of automobiles from personal liability for damages done by them to pedestrians and others in their use of the machines. The statutory policy of the State and the departmental policy of the insurance department has always been to keep the two lines of insurance separate and distinct, those companies which wrote insurance upon property being organized under one act (the act under which relator was authorized to do business), and those companies which wrote insurance with reference to liability to persons being organized under another act (the one. with which relator has not complied). The fire and the marine act being designed to permit those companies which write insurance upon property to organize and do business under one class of provisions and restrictions, while those companies which write insurance upon the lives of persons, damage to persons, and in cases where the element of accident and chance more largely prevail, being authorized to organize under the so-called life act.
“ The writing of fire and marine insurance is as old as the country itself, and it has been so long in existence that it is possible to figure with a reasonable degree of certainty the percentage of loss, and therefore what restrictions are advisable, in order to provide such safeguards as may be needed to throw around this class of business. The writing of so-called liability insurance is, however, of recent date. Prior to 1909 there was no statute in the State which permitted companies to write this character of insurance business. At this time the life act was amended by Act 297. However, the legislature in its widsom has all along seemed to feel that greater safeguards should be thrown around those companies which write life, sick, accident, and casualty insurance than is thrown around the company which writes insurance upon property and upon property alone. If this policy of the law in this State has been changed at all since 1869, it must be by the act under consideration, viz., Act No. 15, Public Acts 1911, p. 18.
“The legislature of 1911 by this act amended the fire and marine act in only, one particular, viz., by adding in section 1 the following:
“ ‘Third. To make insurance upon automobiles, whether stationary or being operated under their own power against any hazard.’
“ The same legislature at the same session also made provision for the writing of automobile insurance in the State by companies organized under the laws of other States by passing Act 111, Public Acts 1911, p. 167, which act specifically limited the liability to be covered by the policy of insurance to be issued by such foreign companies in Michigan to property loss and maintained the fixed policy of the State to segregate property insurance from liability insurance. We quote as much of it as may be important here:
‘ “ It shall be lawful f or such insurance companies organized under the laws of any other State and authorized by law to transact the business of insuring motor cars and other vehicles against loss or damage by fire, loss or damage while being transported in any conveyance by land or water, loss or damage by theft, robbery or pilferage, loss or damage sustained by collision with any object moving or stationary, and loss or damage done to property by such motor cars and other vehicles through the operation thereof, to do the business of insuring automobiles and other vehicles against the hazards herein enumerated, only in this State with the consent of the commissioner of insurance of this State upon filing the statements making the applications and complying in all respects, as far as applicable with the provisions of an act entitled “An act relative to the organization and powers of fire and marine insurance companies transacting business in this State, being sections,” ’ etc.
“We respectfully submit that this act specifically limiting the kinds of insurance that may be written by foreign automobile insurance companies controls, and is exclusive. The respondent, commissioner of insurance, has construed-these amendments to mean that an insurance company organized under the laws of this State, or of foreign company organized under the laws of another State, may write property insurance upon automobiles, but may not write personal liability insurance where the damage insured against is done and the liability created in the negligent use of the machines. * * * If the relator desired to write casualty insurance alone, it would be necessary for it to comply with Act 77, Public Acts of 1869, as amended, and, if it did comply with the provisions of this act, it cannot write fire and marine insurance. Act 297, Public Acts 1909, p. 697, in section 1 thereof, after enumerating the various kinds of insurance which may be written by a company organized under its provisions, provides that:
‘ ‘ ‘ Each, company organized under this act shall have authority to reinsure any risk authorized to be undertaken by them, and to grant reinsurance upon any similar risk undertaken by any other company, but shall not have power to undertake marine and fire risks, or any other species of insurance whatever than that specified in some one or more of the foregoing subdivisions.’
“The distinction between insurance upon property where the recovery is limited to the value of the property destroyed and liability insurance where the value of the property is of minor importance is apparent. Therefore the legislature in its wisdom has provided that an insurance company writing fire and marine insurance (viz., insurance upon property) need not make a deposit with the State treasurer to secure its policy holders, but may retain its securities in its own hands; while a liability insurance company is required to deposit in specified securities the sum of $100,000 with the State treasurer to secure its policy holders. It may be that this action is because of the fact adverted to heretofore, that fire and marine insurance is old, well established, and the probable amount of loss in any one year readily ascertainable, while with a liability company the amount to be paid under any policy may be $100 if the injury done is small, or it may be $5,000 if the injury done is great. A property insurance policy upon an automobile is limited to the value of the machine, and the damage done by the machine; while in the case of liability insurance it may be tenfold the value of the machine.”

We think we have quoted sufficiently so that we may very properly approach the first question; that is, whether the amendment authorizes liability insurance, so called. The language of the statute is not complex. Authority is given to “make insurance on automobiles.” If it was an insurance on the automobile against fire, that would be a recognized hazard to which automobiles are subject. If it was an insurance on the automobile against theft, that, too, would be a recognized hazard to which the automobile is subject. So of injury by accident, and the liability in each case would not be greater than the value of the automobile. Is not the relator doing more than placing insurance on automobiles? Section 1 of the policy clearly places insurance upon automobiles. Section 2 reads in part as follows:

“Against loss or expense arising or resulting from claims upon the assured for damages by reason of the ownership, maintenance, manipulation or use of any automobile enumerated and described in statement IV of the schedule of statements, on account of:
“Injury to Persons. (A) Bodily injuries or death accidentally suffered or. alleged to have been suffered by any person or persons as the result of an accident occurring while this policy is in force;
“ Damage to Property. (B) Damage to or destruction of property of every description (except property in charge of the assured, or any of the insured’s employés, or carried in or upon any automobile covered by this policy) arising from an accident occurring while this policy is in force; and, in addition to the above, the company does hereby agree:
“ Defense of Suits. (C) To defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, for damages suffered or alleged to have been suffered on account of the bodily injuries or death or the damage to or the destruction of property as set forth in this section; and,
cc Payment of Costs. (D) To pay all costs taxed against the assured in any legal proceeding against the assured, defended by the company in accordance with the foregoing agreement; and to pay interest accruing after entry of judgment on that part of such judgment act in excess of the limit of liability of the company under this section; and,
“ Medical Aid. (E) That such immediate surgical relief as shall be imperative at the time of an accident involving bodily injuries, may be provided by the assured at the expense of the company.”

We think it a strained construction of language to say that a contract of this sort is simply the placing of insurance on an automobile. The liability thus created is not limited by the value of the automobile. Instead of being property insurance, it makes a contract of an entirely different character from that authorized by the amendment.

We may now consider the second question, i. e.: May the relator continue to issue so-called liability insurance as a matter of comity? The position of counsel is stated by them as follows:

“ There is an added reason peculiar to this relator which entitles relator to the relief prayed. The order complained of, and here sought to be set aside, is that we discontinue writing liability insurance on automobiles. It is undisputed that by the laws of our domicile and by the express terms of our charter in Missouri we are entitled to write the form of policy we had been writing which includes liability. Under these circumstances, we are entitled to do the same in Michigan. The law is settled:
“ ‘The corporations of one State may exercise any or all of their powers in another State unless the latter State by its statutes, decisions or policies forbids ’ [citing many cases].

“As one of the foregoing cases expresses the rule:

“ ‘ Where there is no positive prohibitive statute, the presumption under the law of comity that prevails between the States of the Union is that the State permits a corporation organized in a sister State to do any act authorized by its charter or the law under which it is enacted, except when it is manifest that such act is obnoxious to the policy of the law in this State.’
“It becomes therefore, necessary, in demonstrating the applicability of the foregoing proposition in the case at bar to ascertain if there is any prohibitive statute or public policy forbidding relator to write liability insurance. The statutes relative to the admission of nonresident insurance companies into Michigan are confessedly loosely drawn, and not altogether satisfactory. An examination of all the sections in any way applying to the present situation fails to disclose any express statute prohibiting doing that which we ask. On the other hand, the general statute relative to the right of foreign corporations to do business in this State in express terms provides:
“ ‘ That no such foreign corporation shall be permitted to transact business in this State unless it be incorporated in whole or in part for the purpose or object for which a corporation may be formed under the laws of Michigan, and then only for such purpose or object.’ Public Acts 1907, No. 310.
“ By its express terms, this act does not apply to insurance companies. It is manifest, therefore, that th legislature has expressly removed, so far at least, that restriction from applying to insurance companies. In other words, instead of there being legislative prohibition against our writing liability, such prohibition, in the light of the rule as announced, has been expressly removed from insurance companies.”

The attorney general does not concede that in its home State the relator is authorized to engage in the business ot liability insurance, but contends that the policy of the State of Missouri is the same as the policy of this State, to segregate the different kinds of insurance, and to prohibit the transaction of more than one kind of insurance by the same company. It is not, however, necessary to pass upon that question.

It is to be observed that in all the authorities upon this subject cited by counsel for relator, it is made clear that, if the proposed act is obnoxious to the policy of the law of the State, the rule of comity will not prevail. We have quoted sufficiently from the briefs of counsel to indicate the questions involved. Without further citation of the authorities, we shall content ourselves with saying that we are in accord with the argument of the attorney general, to the effect that it is the policy of the State to separate the business of insurance upon property from other lines of insurance, and that, before we should hold this policy has been changed by the legislature, it should speak in less uncertain terms than it has done in the amendment of 1911. The case of American Telephone & Telegraph Co. v. Secretary of State, 159 Mich. 195 (123 N. W. 568), is in point.

The writ is denied.

Steere, C. J., and MoAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.

       3 How. Stat. (2d. Ed.) § 8049 et seq.