text:
    FOLEY v. DWYER.
    1. Pleading — Amendable Defect — Objection Not Raised Below.
    Where an alleged defect in the form of a declaration was such that an amendment would have been permitted had the question been raised at the trial, an objection based thereon, raised for the first time on appeal, will not be considered.
    2. Land Contracts —Covenants—Action for Installments. ■
    Where the purchaser’s covenants, in a contract for the sale of land, to pay installments of interest and taxes, are not dependent upon the conveyance or tender of conveyance by the vendor, the latter may maintain an action at law for such interest and taxes paid by him, without any tender.
    3. Same — Assignment—Release of Purchaser.
    An assignment of the purchaser’s interest under an executory contract for the sale of land to one who agrees, in consideration of the vendor’s assent, to fulfill the obligations of the purchaser, though consented to in Writing by the vendor, is insufficient to release the assignor from liability upon a covenant to pay interest and taxes.
    Error to Wayne; Frazer, J.
    Submitted November 16, 1899.
    Decided January 23, 1900.

      Assumpsit by Jobn S. Foley against Jobn M. Dwyer and others upon a contract for tbe purchase of real estate. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Keena & Lightner, for appellant.

      Brennan, Donnelly & Van De Mark, for appellees.
   Montgomery, C. J.

The plaintiff and defendants entered into a contract for the sale and purchase of certain real estate in the city of Detroit. Plaintiff declared on the contract, adding the common counts, and alleging as a breach the failure of defendants to pay taxes and interest according to its terms and provisions, and adding:

‘ ‘ Whereby plaintiff has been deprived of the profits and advantages which might and would otherwise have accrued to him from the performance of the said contract, and has incurred a great expense in endeavoring to procure the completion of the said purchase on tire part of the defendants, and is paying the taxes and assessments on said property, and is otherwise greatly injured, to the damage of the plaintiff $5,000.”

In the first paragraph of the contract plaintiff agrees, for the consideration thereinafter specified, to convey to the defendants the property set forth. The second paragraph fixes the purchase price at $10,750, and stipulates that interest at the rate of 6 per cent, per annum shall be payable on the 1st days of January and July in each and every year, and that the defendants shall pay all taxes and assessments against the property. In the third paragraph the defendants agree to buy the premises at the consideration price above stated, and on the terms above set forth. By paragraph i it is agreed that the plaintiff might pay any tax assessments, which would then be added to the consideration of the contract, and become payable as a part of the next payment; and this paragraph contains the following stipulation: “This contract maybe assigned by the consent of said first party in writing indorsed hereon.”

Defendants pleaded the general issue, and gave notice of an assignment of the contract and consent of the plaintiff, claiming thereby a release of defendants from all obligations under the contract. There is no dispute as to the amount of interest and taxes due and unpaid. On the trial the plaintiff introduced in evidence the contract of sale, and proved the amount of interest and taxes due. The defendants introduced in evidence an assignment of the contract from the defendants to George Ding-wall, and also the consent of the plaintiff to such assignment. Both the assignment and the consent were indorsed on the back of the contract, and dated March 2, 1896, the same date as the contract. At the request of defendants’ counsel, the trial judge instructed the jury to' render a verdict for the defendants on two grounds:

First, That the plaintiff could not maintain an action at law to recover for taxes paid or installments of interest, and that his remedy must be found on the equity side of the court.

Second. That the consent of the plaintiff to the assignment of the contract by defendants to Dingwall was a novation, releasing defendants from all the obligations of the contract.

1. The position taken by defendants at the trial in respect to the first proposition-was stated in their objection to the introduction of the lease as follows:

“It appears that the document sued on, or the contract relied on, is a contract for the sale of land; that the sum sued for is alleged or claimed to be the interest which accrued from time to time on this contract; that at the present time the entire principal appears to be due on the contract. There can be no recovery in this action, or in an action at law for the breach, for the purchase price, or any portion of it. The interest, of course, accruing from time to time, is a part of the purchase price. On a land contract the only action maintainable at law is an action for a breach, the measure of damage being the difference between the value of the land (the vendor retaining the title) and the purchase price agreed upon. An action at law, according to the authorities, is not sufficient, because it does not cover all the rights of the parties. There is no claim there was a tender of any deed. He could not tender a deed unless the principal amount was paid. At the time this action was brought the principal amount was not due.”

In this court an argument is made based on the form of the declaration, it being contended that the declaration seeks to recover damages for the breach of the contract,’ and is not properly framed to recover for the installments due when the action was brought. It is not claimed that the declaration contains sufficient averments to entitle the plaintiff to recover general damages for a breach of the contract. On the contrary, it is said that it does not, as it does not show that the plaintiff has taken the necessary steps to entitle him to the advantage of the default. - But it is insisted that the declaration contains enough averments looking in that direction to render it bad as a declaration to recover for the installments due. ■

We need not consider whether the averments of damages resulting from breach of the contract by the defendants may be treated as surplusage, as we are convinced that this question was not raised on the trial; and, had it been raised, the court might properly have permitted an amendment. Ross v. Township of Ionia, 104 Mich. 320; Findlay v. Railroad Co., 106 Mich. 700; Wierengo v. Insurance Co., 98 Mich 621; Moore v. Thompson, 108 Mich. 283.

Has the vendor in a land contract a right of action at law to recover installments growing due on such contract at a date earlier than that at which the vendor is required, by the terms of the contract, to make title ? It is contended by the defendants that the installments are a part of the purchase price, and that the general rule is that the vendor is not entitled to recover a part of the purchase price, but is limited to a recovery of damages for the breach or a specific performance in equity. We think the solution of the question involved is reached by the application of well-settled rules. If the defendants’ covenants to pay the installments of interest and taxes were dependent on the conveyance or tender of conveyance by plaintiff, there can be no recovery. If the covenants wfere independent, we can see no reason why an action at law may not be maintained. The, general rule is that, where a day is appointed for the payment of money, or part of it, and the day is to happen or may happen before the thing which is the consideration for the money is performed, an action may be brought for the money before performance. In such case it is presumed that the party relied upon his remedy, and did not intend to make the performance a condition precedent. See note to Cutter v. Powell, 2 Smith, Lead. Cas. 23 et seq. The precise question here involved arose in Wilks v. Smith, 10 Mees. & W. 355. Parke, B., said: “The consideration for the defendant’s paying the interest is the plaintiff’s undertaking to sell the land, not the actual sale of it. The plaintiff is not bound to do anything before the money is paid.” See, also, Harrington v. Higgins, 17 Wend. 376; Battey v. Beebe, 22 Kan. 81; First Nat. Bank v. Agnew, 45 Wis. 131; Regents of the University v. Detroit Young Men’s Soc., 12 Mich. 138.

2. The defendants gave in evidence an assignment made March 2, 1896, reading as follows:

“In consideration of one dollar and other valuable consideration to us in hand paid by George Dingwall, and by and with the consent of John S. Foley, party of the first part in the contract of sale annexed, we do hereby assign and transfer the annexed contract to the said George Dingwall, his heirs and assigns. And I, George Ding-wall, assignee as above named, do hereby accept the above assignment, and, in consideration of the assent of John S. Foley to said transfer, do hereby covenant and agree to assume and fulfill all the obligations thereof on the part of said assignee to be fulfilled.”

Beneath this was written:

“I do hereby consent to the above assignment.
“John S. Foley. [Seal.]”

Did this assignment, made with the consent of plaintiff, operate to relieve the defendants? There is no release in terms. The assent is given in terms to an assignment, which implies a transfer of the rights of the assignor. True, the assignee covenanted to fulfill the conditions of the contract, but there was no covenant by plaintiff to release the defendants, and look to the assignee, Dingwall. A question closely analogous has been before this court,' and ruled in accordance with plaintiff’s contention. Wineman v. Phillips, 93 Mich. 223. In that case it was held that the assignment of a lease with the consent of the lessor did not operate to discharge the lessee from his covenant to pay rent. In Bailey v. Wells, 8 Wis. 141 (76 Am. Dec. 233), the same rule was laid down in a case where the terms of the assignment were not materially different from the one under consideration in this case. The learned circuit judge was apparently of the opinion, that a distinction should be taken between the cases cited and the present, for the reason that the landlord, having-put the tenant in possession, has substantially performed his contract, unless there be covenants for repairs, while in. the present case the contract is still executory on the part of the plaintiff. We think this distinction is not supported by the authorities. The ground upon which the; assignor is held still liable, notwithstanding the assignment of his lease and the acceptance of rent from the assignee, is that the covenant to pay rent is still in force. Fletcher v. McFarlane, 12 Mass. 43. Now, it could be urged in. such case that the assent to the assignment would discharge a covenant to pay rent with as much force as it can be in this case that a like assent operates as a release of the covenant to pay interest, taxes, or the unpaid portion of the purchase price. In either case the assignor no longer enjoys the benefit of what he has covenanted to pay for, but in either case he is held on his covenants because it has not been, in terms, discharged.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J. Hooker, J.

license: Public Domain

text:
    FRENCH v. TOWNSHIP OF SOUTH ARM.
    1. Townships — Contract by Township Board — Validity—Fair Grounds.
    A township board has no power, at least in the absence of authority conferred upon it by the electors legally assembled, to bind the township to pay for money and labor expended in putting land owned by the township in condition to be rented to a county agricultural society for use in holding annual fairs.
    2. Same — Application of Funds.
    One who, under the supervision of a township board, expends money and labor in improving township lands, with the design of putting them in condition for use as fair grounds, is entitled to have applied upon his claim against the township for the money and labor so expended a fund raised by vote of the electors for the making of such improvements, even though his agreement is invalid for want of authority in the township board to make it. Hooker and Grant, JJ., dissenting.
    Error to Charlevoix; Corbett, J.
    Submitted November 17, 1899.
    Decided January 23, 1900.

      Assumpsit by Walter L. French against the township of South Arm to recover an amount alleged to be due for improving certain lands for a park and fair grounds. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Frederick W. Mayne, A. D. Cruickshank, and A. B. Nicholas, for appellant.

      E. N. Clink and Pratt & Davis, for appellee.
   Long, J.

This cause was heard before a jury. After plaintiff rested, defendant’s counsel offered no testimony, and the court below directed the verdict in favor of defendant, Plaintiff brings error.

It appears that the defendant town ship became the owner of 40 acres of land for park and fair-ground purposes. After the title was acquired, the township board began to make improvements upon the premises by fencing, grading, and the construction of a one-half mile driveway for teams and bicycles, and preparing the grounds for baseball. A corporation known as the Charlevoix County Agricultural Society exists in that county. In order to secure the holding of the fairs of that society in South Arm, it is claimed that the electors, at the annual township meeting held in 1894, voted to raise one-fourth of 1 per cent, that year and one-fifth of 1 per cent, fin 1895, on the assessed valuation of the township, to improve the grounds. These amounts were spread upon the tax rolls for those years, and for the year 1894 the sum of $819.20 was paid to the township treasurer, and in 1895 the sum of $677.36. August 4, 1894, the township board borrowed $2,500, from which amount the sum of $600 was appropriated to improve the grounds. The improvements were completed, and the grounds rented to the agricultural society for fair purposes for 20 years, commencing October 2, 1894. Since that time the township has annually raised money for improving the lands. It appears that the plaintiff was employed by the town board to make the improvements. He commenced work on June 4, 1894, and has expended in money and services $2,236.29. The work was done under the supervision of the township board. He bought materials, paid for labor, furnished men and teams. The board paid him, out of subscriptions paid in by citizens and by note and mortgage, certain sums, leaving a balance due him of $1,000. He had a settlement with the township board a few days before the annual township meeting, showing such balance. , The township treasurer, it is claimed, made a report to the electors at the annual 'township meeting in 1895, showing the amounts paid plaintiff and the balance remaining unpaid. This report was adopted by the electors, and a vote to raise the one-fifth of 1 per cent. for that year was passed. The township board thereafter, however, refused to pay the amount due plaintiff. This action is commenced for its collection. The court below instructed the jury that the contract was void; that the evidence failed to show that any contract was made with plaintiff by the electors legally assembled in any meeting, or by any legal meeting of the township board.

It appears that the contract with plaintiff by which this indebtedness was created was made in 1894, and counsel for defendant contend that at the meeting of the electors in 1895 the question of the indebtedness of the township to plaintiff was not brought before the electors, and that the electors never authorized its payment, but that the one-fifth of 1 per cent, was levied for improvements. We think the record bears out this contention, and that the court was right in saying that the indebtedness was not created by a vote of the electors, or ratified by them, and that it was beyond the power of the township board to bind the township for its payment. But it appears that there were certain sums of money voted by the electors for the purpose of improvement of these grounds. These moneys were raised by taxation, and actually went into the hands of the township treasurer. There remained of this fund in his hands, unexpended, in March, 1896, the sum of $311.74, and on March 30, 1897, $118.84, and at the annual settlement with the treasurer in 1898 the sum of $26.23. This suit was commenced early in 1898, at which time there was in. the hands of the treasurer, of the moneys raised by taxation for improvements to the grounds, at least $26.23. This money had been appropriated by the electors for the payment of just such work as the plaintiff had done. He was entitled to that amount, and any other amount that remained of the fund at that time should have been paid to him by the board. We are unable to state the amount from the record.

The court below was in error in directing the verdict for defendant. The judgment must be reversed, and a new trial ordered.

Montgomery, C. J., and Moore, J., concurred with Long, J.

Hooker, J.

(dissenting). I am unable to concur with my brethren in this case as to the application of the money actually raised by the township. This money was raised by tax upon the vote of the township to raise one-fifth of 1 per cent, for fair-ground purposes. It is conceded that the township had no authority to raise money for a fair ground. Inasmuch as it has done so, however, it is now proposed to compel it to spend it for such purpose. It is admitted that plaintiff has no valid contract, for he did the work under a bargain which,he was bound to know that the township was not authorized to make. This being so, there is no contract liability that he can enforce by action. The judgment should be affirmed.

Grant, J., concurred with Hooker, J.


author: Moore, J.

text:
    JOHNSON v. COSTIGAN.

    1. Husband and Wife — Partners—Credit—Evidence. '
    Evidence, in an action against a wife for the price of goods, that upwards of 40 notes, running through a period of several years, were given to plaintiffs, having only her signature, and that the business was done in her name, and the credit extended to her alone, was sufficient to justify a finding that she was a sole trader, and not a partner with her husband, though both testified that they were partners.
    3. Same — Instructions.
    Where, in an action against a wife for the price of goods, the jury were explicitly told that if, as defendant claimed, the goods were sold' to defendant and her husband as partners, there could be no recovery in that action, a further instructionthat, notwithstanding “they were doing business with other people, they had a right to make this contract, * * * and, if they made it, they are bound by it,” was not prejudicially erroneous, though, standing alone, it might be held misleading.
    Error to Wayne; Donovan, J.
    Submitted November 17, 1899.
    Decided January 23, 1900.

      Assumpsit by Waldo M. Johnson and Richard O. Wheeler, copartners as Johnson & Wheeler, against Theresa L. Costigan, for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Malcolm C. Yerkes (Bacon & Palmer, of counsel), for appellant.

      Lucius H. Collins (William B. Jackson, of counsel), for appellees.

       Rehearing denied April 3, 1900.

   Moore, J.

The plaintiffs are wholesale grocers. They recovered a judgment against defendant for groceries which they claim were sold to her. It is the claim of defendant that she formed a partnership with her husband under the name of T. L. Costigan & Co., and that the goods were sold to the firm, and that, as under the Michigan decisions she could not engage in a partnership with her husband, she is not liable. The record discloses that the defendant in this case was the defendant in Sherrod v. Costigan, 111 Mich. 644, and the business involved in this transaction is the same business which was the subject of controversy in that case. The defendant submitted two special questions to the jury: First. Were Mr. Costig'an and defendant doing business as partners in September, 1894, and thereafter ? Second. Did Mrs. Costigan, the defendant, authorize Mr. Costigan to purchase goods of plaintiffs, and. have them charged to her alone? The first of these questions was answered “No,” and the last one “Yes.”

It is claimed by defendant a verdict should have been directed in her favor, for the reason that the testimony showed the sales were made to T. L. Costigan & Co. It is true, Mr. Costigan and his wife both swear that the business was done, not as the business of Mrs. Costigan, hut as the business of T. L. Costigan & Co.; but their cross-examination showed that upwards of 40 notes, run ning through a period of several years, were given to the plaintiffs, having the signature of no one but the defendant, — notes that were signed by her personally. It also appeared that she claimed to have bought the business from her husband, as administrator of the estate of her son, who had formerly conducted the business, for the sum of $1,400, while the testimony offered on the part of the plaintiffs tended to show the business was done in the name- of Mrs. Costigan, and the credit was extended to her alone. We think there was an abundance of testimony to justify the verdict of the jury.

I#is claimed by the defendant that the jury included in their verdict a sum of money loaned to the husband of the defendant to enable him to pay his saloon license. These items do appear in the bill of particulars, but the husband testified they had been paid, and we do not think it can be said these amounts were included in the verdict.

Some witnesses were sworn on the part of defendant who testified they had dealt with the firm of T. L. Costigan & Go. ■ In his charge the judge used this language:

“ I will say to the jury that; if they were doing business with other people, they had a right nevertheless to make this contract with Johnson & Wheeler, as the plaintiffs claim, and, if they made it, they are bound by it; if she made it, she is bound by it.”

It is claimed this is error. The language is not clear, and, standing alone, might mislead the jury; but the court, in another portion of his charge, told the jury very clearly and explicitly that, if these goods were sold to Costigan & Co., plaintiffs could not recover. They were also told that, unless the contract related to the separate estate of the defendant, plaintiffs could not recover. The answers of the jury to the special questions indicate very clearly that they did not believe the firm of Costigan & Co. had any existence, and it is evident the portion of the charge quoted did not mislead them.

Some question is made as to the admission of evidence. We are not satisfied from an examination of the record that reversible error was committed.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    MOORE v. AUDITOR GENERAL.
    Taxes — Payment by Check — Purchase of State Tax LanIjs— Priorities.
    A tax is not paid by the giving of a check therefor to the collecting officer, but the lien continues until presentation and payment of the check. Hence, an applicant to purchase state tax land, required by section 84 of the tax law, as a condition to the purchase, to pay all taxes remaining a lien upon the land, who pays the current taxes by check to the local treasurer, is entitled to a deed of the land as against a prior applicant whose application was filed after the giving of the check but before its payment by the bank.

      Mandamus by John R. Moore to compel Roscoe D. Dix, auditor general, to issue a tax deed.
    Submitted October 26, 1899.
    Writ granted January 23, 1900.

      Charles E. Miller and Jay P. Lee, for relator.

      Horace M. Oren, Attorney General (Oahill & Wood, of counsel), for respondent.

       But see Act No. 228, Pub. Acts 1899, approved subsequent to the time when this controversy arose.

   Long, J.

This is a mandamus proceeding to compel the respondent to issue state deeds to relator for the lands described in the petition, which lands, it is claimed, were held as state tax lands, and were subject to sale as such at the time of the application of relator hereinafter mentioned. It appears that in December, 1898, relator wrote a letter to the auditor general, inclosing $500, and asking for the amount necessary to pay to purchase the lands mentioned. Some correspondence took place between the relator and respondent upon this subject, in the course of which the relator was informed that it would be necessary to pay the 1898 taxes, which were then a lien upon the lands, and which must be paid at the offices of the township treasurers. On the 30th day of January, 1899, the relator sent a check to the township treasurer of Rockland township for an amount sufficient to pay the taxes of 1898 upon so much of the lands as are situated in the township of Rockland; and on the 3d day of February he sent a check to the treasurer of the township of Matchwood for an amount sufficient to pay the taxes of 1898 upon so much of the lands as are in that township. Both of said checks were drawn upon the Bank of Iron wood. A few clays later relator received receipts from each of said township treasurers showing on their faces that the taxes of 1898 had been paid..

On the ?th day of February relator went personally to the office of the auditor general, at Lansing, and tendered to the auditor general sufficient money to pay for the deeds mentioned, and exhibited to the auditor general tax receipts from the township treasurers referred to; but the auditor general refused to issue deeds to said relator, upon the ground that applications had been made for the purchase of said lands by Charles M. Turner, on behalf of John M. Longyear and Edward W. Sparrow, as to a portion of the lands; by Edward G. Jones, of Appleton, Wis., on behalf of himself and Rush Winslow, as to a portion of the lands; by one Frederick H. Begole, of Marquette, for a portion of the lands; and by one R. B. McPherson, of Howell, Mich., on behalf of William McPherson, Jr., for a portion of the lands; that the Turner application, so called, was made on the 6th day of February, 1899; the Jones application, on the 2d day of February, 1899; the Begole application, on the 1st day of February, 1899; and the McPherson application, on the 4th day of February, 1899. . Upon being advised by the auditor general that deeds would not be issued to him, the relator telegraphed to the Bank of Ironwood, directing said Bank of Ironwood to withhold payment of one of said checks; but on the next day (being the 8th of February) relator again telegraphed to said bank, advising the payment of the check. Neither of the checks in question was actually paid by the bank upon which they were drawn until after the 7th dajr of February. The check made payable to the order of the treasurer of Rockland township, for the sum of $687.91, was paid on the 8th day of February, 1899, and the check payable to the treasurer of Matchwood township was paid on the 9th day of February, 1899.

On the 8th day of February the relator made a new application for the purchase of the lands in question, which application was numbered 4,299, and at the same time tendered to the auditor general an amount sufficient to pay the claims of the State against the lands in question, and again demanded deeds for said lands; and the respondent again refused to issue deeds to the xclator, upon the ground that previous applications had been made for such lands by said Turner, Jones, Begole, and McPherson. Later, and on the 28th day of March, 1899, relator, together with his attorney, called upon the auditor general, and submitted to him pi'oofs that the taxes of 1898, which were paid in the township treasurers’ offices, were originally paid by check of relator, and that the money was not actually received by the treasurers upon said checks until after the said 7th day of Februarjq 1899, and after all the applications had been made by the said Turner, Jones, Begole, and McPherson. At said interview relator insisted that, at the time of the applications of said adverse claimants, the liens for the taxes of 1898 upon the lands in question had not been discharged, and that said liens were discharged on the 8th and 9th of February, respectively, by the payment of relator’s said checks; and relator again demanded deeds of the lands in question by virtue of relator’s said application No. 4,299. Upon respondent’s again refusing to issue such deeds, relator filed the petition in this case, an order to show cause was issued, and the respondent’s answer was interposed.

It is the contention of the auditor general that he had the right to rely and act upon the information given him by the relator, and in fact that all the taxes of 1898 had been paid not later than the 3d day of February, which was prior to the time the Turner application was filed for Longyear and Sparrow, and even prior to the time the application was filed by McPherson. The auditor general says in his return that prior to February 6, 1899 (that being the date the Longyear and Sparrow application was filed), the taxes for 1898 had been paid on all the lands described in the relator’s petition, and that respondent so understood the fact to be; that, at the time such (Long-year and Sparrow) application was received, respondent understood, from information received from relator, as hereinbefore shown, that the taxes for 1898 upon said lands had already been paid, and were no longer a lien upon said lands, but no formal certificate of such payment up to that time had been filed in the auditor general’s office; that the said $7,700 deposited by said Turner (for Longyear and Sparrow) with his application was sufficient to purchase all titles held by the State, and pay all taxes appearing by the books of respondent’s office to be due upon the lands described in said list subsequent to the titles so purchased; that from the certificates of the several township treasurers of the townships in which the lands described in said application are located, on file in respondent’s office, it appears that the taxes on said lands for 1898 were paid prior to February 6r 1899.

While relator concedes that the checks were given at the times herein stated, he still insists that those payments of the taxes were not completed until the checks were presented by the township treasurers to the bank and actually there paid, which was on the 8th and 9th days of February, 1899, and that therefore his application made February 8, and again presented on March 28, 1899, was the only application made after the taxes of 1898 had been paid to the township treasurers. We think the relator is right in this contention, as matter of law, and certainly the equities of the case are all on his side. If the other applications are to be treated as sufficient, those parties will be given all the benefits derived from the payment of the 1898 taxes by the relator. They paid no part of them, but now seek to have advantage of the payments made by relator. Mr. Justice Cooley lays down the rule that:

‘ ‘A tax collector has no authority to receive anything in payment of taxes but such money as at the time is legal tender, or at least passes current. He has no right to receive the promissory notes of individuals; and a bank check is only conditional payment, and the tax will remain in force if the check is dishonored.” Cooley, Tax’n (2d Ed.), 452.

This doctrine is recognized in Kahl v. Love, 37 N. J. Law, 5; Alkan v. Bean, 8 Biss. 83; Koones v. District of Columbia, 4 Mackey, 339. The doctrine of those cases is that where an attempt has been made to pay taxes by check, and for any reason the check is not paid, the tax continues to be a lien upon the lands in question, and the lands may be sold, as in ordinary tax proceedings, for the payment of the taxes so remaining a lien. See, also, Elliott v. Miller, 8 Mich. 132; Jones v. Wright, 34 Mich. 371; Turnbull v. Township of Alpena, 74 Mich. 625; Woodbury v. Lewis, 1 Walk. Ch. 256; Carter v. Lewis, 27 Mich. 241; Mumford v. Armstrong, 4 Cow. 553. It must therefore be held that at the time the application of Longyear and Sparrow, as well as all the other applications, was made, the taxes were a lien upon the property; for, if these checks had not been paid, the treasurers could have returned the lands as delinquent. Under the rule of this court in Hughes v. Jordan, 118 Mich. 27, and cases following it, no one has the right to a deed of the lands from the State without first paying these subsequent taxes. When the relator paid his money on February 8, and again made the demand for the deeds on March 28, 1899, these subsequent taxes had been paid, and he was entitled to his deed. We have not overlooked the cases of People v. Commissioner of State Land Office, 19 Mich. 470, and Hubbard v. Auditor General, 120 Mich. 505. In the first case it does not appear but that the draft in controversy was paid before the rights of the contesting applicant accrued. In 'the second case it appears that the checks had been given by the tax-title purchasers, they had been paid, and the deed issued, before the rights of third parties intervened.

The petition of the relator must be granted, and the auditor general directed to issue deeds to him, and cancel the deeds issued to the other parties.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Grant, J., did not sit.


text:
    PAYN v. GIDLEY.
    Contracts — Husband and Wife — Estoppel—Replevin—Demand.
    Where a husband signed for his wife a contract whereby it was stipulated that a tenant of land purchased by the wife, of which she desired possession, should be allowed, if he vacated the premises, to re-enter and harvest wheat sowed by him, the wife to have a fourth of the crop so harvested, and she, after accepting rents paid under the contract, and taking possession pursuant to its terms, attempted to repudiate the authority of her husband to sign the contract, and denied the tenant’s right to the wheat, and drew it into her own barns, the tenant was authorized in bringing replevin for the same without any previous demand.
    Error to Grand Traverse; Corbett, J.
    Submitted November 17, 1899.
    Decided January 23, 1900.
    Replevin by George Payn and Julia Payn against Howard E. Gidley and Ella M. Gidley. Prom a judgment for plaintiffs, defendant Ella M. Gidley brings error.
    Affirmed.

      C. G. Turner, for appellant.

      Pratt & Davis, for appellees.
   Moore, J.

This is an action of replevin, brought to obtain possession of a quantity of wheat. Prom a judgment rendered in favor of the plaintiffs by the circuit judge, before whom the case- was tried, the defendant Ella M. Gidley has brought the case here by writ of error. The facts are simple. Mr. Payn and his wife were in possession of a farm. Mrs. Payn had a lease of the farm, and was the tenant of Mr. Gleason. Mr. Gleason made an exchange of the farm for property the title to which was in Mrs. Gidley, and deeded it to the defendants, subject to the rights of Mr. and Mrs. Payn. The Gidleys afterwards wanted possession of the farm, and on the 30th of November, 1897, a written contract was drawn by which the Payns paid the rent by making a bill of sale of personal property, and arranged to surrender the possession of the premises subject to certain conditions, some of which were as follows:

“ In further consideration of the premises, said Gidleys agree to allow said Payns to harvest, gather, and take off from said lands and premises all of the wheat and straw from the crop which they have put in thereon this fall, to be harvested during the season of 1898; said Gidleys agreeing to neither commit, suffer, nor allow any waste or damage thereto by their own stock or others, and to do what may be necessary to protect the same from such damage or waste, should any such protection become necessary during said time, in a husbandman-like manner. But said Payns agree to harvest, gather, and thresh such wheat crop in a good, husbandman-like manner, at the proper time and season, at their own expense, and, when so done, to deliver to said Gidleys, in the half bushel, one-fourth part of the wheat so gathered therefrom, when so threshed.”

This contract was signed by Mr. and Mrs. Payn and by Mr. Gidley, who also signed it for his wife. The Payns moved off the farm, and the Gidleys moved upon it. In the following June, Mrs. Gidley undertook to repudiate, in a written notice to the plaintiffs, the authority of her husband to sign the contract, and denied that plaintiffs had any right to the wheat, and claimed to be the owner of it herself. She retained the rent which had been paid by reason of the contract, and the possession of the farm given her by virtue of it. When the wheat was ripe, Mr. Payn attempted to harvest it. Mrs. Gidley then filed a bill, and obtained an injunction restraining Mr. Payn from harvesting the wheat. The injunction was dissolved. Mrs. Gidley testified as follows as to what then occurred:

• “After the injunction was dissolved, I had Mr. Gidley keep right on cutting the wheat. I guess he cut about 20 acres; I don’t remember. Mr. Payn cut the rest. Mr. Payn and Mr. Gidley together cut the whole. As soon as it was cut, we commenced hauling it into the barn. They drew in one load. We did that claiming we were entitled to all the wheat.
“Q. If the wheat hadn’t been replevied from you, you would have hauled it all into the barn ?
“A. Well, it had to be taken care of by some one. We claimed to own it, and intended to haul it all into the barn, and thresh it.”

The wheat was then replevied, with the result already stated. It is the claim of Mrs. Gidley, through her counsel, that, as she was in the lawful possession of the wheat, replevin could not be brought until after a demand had been made upon her; counsel citing a great many cases. The trouble with the contention is that it has no facts to, base it upon. Mr. Payn put in the wheat. He and his wife were in possession of the farui. They yielded possession of the farm by reason of the contract. Mrs. Gidley could not profit by the contract and at the same time repudiate it. By the terms of the contract, she was entitled to only -one-fourth of the wheat, and was not entitled to that until after it was harvested and threshed. When it was threshed, it was delivered to her representative. Her assumed possession of the wheat was unlawful.

Judgment is affirmed.

The other Justices concurred.


text:
    BRONSON ELECTRIC CO. v. RHEUBOTTOM.
    1. Corporations — Lien on Stock — By-Laws.
    A by-law creating a lien on stock for debts of the stockholder to the corporation is valid, though not binding as against innocent purchasers for value.
    2. Same — Assignment op Collateral — Forbearance to Sue— Parol Agreement — Bona Fide Purchaser.
    A creditor who accepts from his debtor a note for the amount due, payable on demand, together with shares of corporate stock assigned as collateral, obtains no more than the shareholder’s equity in the stock, though he agrees by parol to forbear bringing suit for a time in consideration of its receipt -r since, the parol agreement being incompetent to be shown in the event of immediate suit upon the note, there is no sufficient consideration for the assignment.
    Appeal from Branch; Yaple, J.
    Submitted December 2, 1899.
    Decided January 23, 1900.
    Bill by the Bronson Electric Company against Frank C. Rheubottom, Celeste M. Bond, administratrix of the-estate of William H. Bond, deceased, and Joseph W. McCausey, to establish a lien on certain stock in complainant corporation. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Jqhn B. Shipman, for complainant.

      H. H. Barlow, for defendant McCausey.
   Moore, J.

The complainant is a corporation organized under chapter 127, 1 How. Stat.; section 4192 providing :

“Certificates of stock may be transferable, but the, transfer shall not be valid unless a record of the same shall be made on the books of the company in such form-as the directors shall prescribe.”

At the stockholders’ meeting of the corporation, November 28, 1895, all being present, including the defendants Rheubottom and Bond, and voting therefor, by-law 6 was passed, reading as follows:

“Any stockholder desiring to sell his or her shares of stock in this incorporation shall first notify the president or secretary of such fact, and give him and the board of directors ten days in which to purchase, or find a purchaser for, said stock. At the expiration of said ten days’ time the stockholder may sell at pleasure, providing the stockholder is not indebted to the company. Any indebtedness for lighting or any other purpose to the company shall become a proprietary lien on the stock to the full amount of the indebtedness.”

On March 6, 1896, a contract was made by Rheubottom and Bond with the company, which Rheubottom and Bond failed to carry out, and when the bill was filed there was due upon it to the company $650. Rheubottom and Bond each owned 50 shares of stock in the company. Their certificates are dated December 11, 1895. These certificates provide that the stock is “transferable only on the books of said company, in person or by attorney, on the surrender of this certificate.”

On December 21, 1896, Rheubottom and Bond were indebted to the Union City National Bank in the sum of $935.71, which indebtedness was then due. The bank demanded payment, and Rheubottom and Bond desired an extension, and offered as security the 50 shares of stock owned by Rheubottom and the 50 shares of stock owned by Bond. At the time this offer was made, Rheubottom and Bond stated that they could sell this stock for $1,800, but hoped to get more, and that they could sell the stock at any time, and pay the indebtedness. The president of the bank suggested that they give such collateral security for the loan until such time as they could sell it. These shares of stock were, under such arrangement, indorsed n blank, and delivered to the bank, and a note given for he indebtedness, which, in words and figures, is as follows:

“$935.71. Union City, Michigan,
“December 21, 1896.
“On demand after date,- we, or either of us, promise to pay J. W. McCausey, president, or order, nine hundred and thirty-five dollars and seventy-one cents, at the Union City National Bank, value received, with annual interest at seven per cent.
[Signed] “ Rheubottom & Bond.”

At the time of this offer and transfer, the bank had no notice or knowledge of the existence of any claim on the part of the Bronson Electric Company upon such stock. The bank held the stock and their note, without taking any steps for collection, until February 15, 1897. In February the bank was notified that complainant claimed a lien on the stock. The bank, on the 15th day of February, 1897, gave personal notice, and advertised the same for sale on the 15th day of March, 1897, at public auction, at their banking office, in Union City; and on March 15, 1897, it was sold and bid off in form for $275, Mr. Mc-Causey acting as representative of the bank, auctioneer, and the bidder for and buyer of the stock. At the time of the sale he was again informed by officers of the company of the complainant’s claim upon the stock. The stock has never been presented to the company, or transferred upon its books; nor has McCausey or any one else asked to have it transferred, or surrendered the certificates to the company. Both Rheubottom and Bond were, and are still, insolvent.

The bill was filed to enforce the complainant’s lien upon the stock for the amount owing it by Rheubottom and Bond under their contract, and for its sale to satisfy the same; McCausey, having a subsequent claim upon it, being made a defendant. The bill was taken as confessed by both Rheubottom and Bond’s administratrix, after personal service upon each. McCausey alone answered, admitting Rheubottom and Bond each owned 50 shares of complainant’s stock, as alleged; alleging that they owed the Union City National Bank, of which he was president, $935.71, “and, desiring an extension of such indebtedness,” gave it their note for that amount, ■due on demand, and to secure the note turned over this stock, the bank knowing nothing of complainant’s lien upon it; that Bond is dead, and his estate is insolvent, and Rheubottom is also insolvent; that afterwards, and before the bill was filed, the bank sold the stock to satisfy the note, and it was bid off by him, and “he is the bona fide ■owner thereof, and paid a valuable consideration therefor, and that the same is now in his possession,” etc. To this answer a general replication was filed, and, as to him, the case was heard on proofs. The decree dismissed the bill.

A good many questions are argued in the briefs, but we think it necessary to discuss but two of them:

First, did the complainant have a lien upon the stock for the amount of the debt due to it from Rheubottom and Bond? The complainant answers this question in the affirmative, and cites the following authorities: 2 Beach, Priv. Corp. §§ 644-646; 1 Cook, Stock, Stockh. & Corp. Law, §§ 522, 524, 525; 1 Thomp. Corp. § 1032; Ang. & A. Corp. §§325, 355; 1 Mor. Priv. Corp. § 201; Wood’s Field, Corp. § 122; 2 Cook, Corp. §§ 524, 525; 1 Spell. Priv. Corp. §§ 478, 486; Jennings v. Bank of California, 79 Cal. 323 (5 L. R. A. 233, 12 Am. St. Rep. 145); Reading Trust. Co. v. Reading Iron Works, 137 Pa. St. 282; Mohawk Nat. Bank v. Schenectady Bank, 78 Hun, 90; Wetherell v. Loan Ass’n, 153 Ill. 361; New England Trust Co. v. Abbott, 162 Mass. 148 (27 L. R. A. 271); Tuttle v. Walton, 1 Ga. 43; John C. Grafflin Co. v. Woodside, 87 Md. 146; Cunningham v. Trust Co., 4 Ala. 652; St. Louis Perpetual Ins. Co. v. Goodfellow, 9 Mo. 149; M’Dowell v. Bank of Wilmington, 1 Har. (Del.) 27; Child v. Hudson’s Bay Co., 2 P. Wms. 207; Spurlock v. Railroad, 61 Mo. 319; Vansands v. Middlesex County Bank, 26 Conn. 144; Planters’, etc., Ins. Co. v. Selma Sav. Bank, 63 Ala. 585, 594. There is some conflict in the authorities upon this proposition. 1 Thomp. Corp. § 1032, states the rule as follows:

“ According to the weight of authority, a by-law creating a lien on the shares of a member for debts due by him to the corporation is valid and binding, though not as against innocent purchasers for value.”

The second question then becomes pertinent: Was the-bank an innocent purchaser for value ? On the part of defendant McOausey it is insisted an agreement to forbear bringing suit for an indefinite time, if followed by actual forbearance for a reasonable time, is a good consideration; citing Calkins v. Chandler, 36 Mich. 320 (24 Am. Rep. 593); Howe v. Taggart, 133 Mass. 284. See, also, Clark, Oont. 171, and cases cited. On the other hand, it is urged that the bank did not change its relations with Rheubottom and Bond; that its debt was an antecedent one; that the bank held the stock as collateral security upon an old debt, and that this did not make it an innocent holder for value, or exempt the stock from being chargeable with all equities against it, — citing McGraw v. Solomon, 83 Mich. 442; Edson v. Hudson, Id. 450, 455; Henriques v. Ypsilanti Sav. Bank, 84 Mich. 168, 176; Schloss v. Feltus, 103 Mich. 525 (36 L. R. A. 164); Brooke v. Struthers, 110 Mich. 562, 569 (35 L. R. A. 536); Vincent v. Hansen, 113 Mich. 173, 174. It does, not appear very clearly by the testimony that it was agreed the bank should forbear suit. Three writings were passed upon the occasion when the stock was transferred. Two were the assignments in blank upon the certificates of stock, and the other was a note, a copy of which already appears herein. This note might have been sued immediately by the bank, and, if sued, Rheubottom and Bond could not set up, by way of defense, any agreement to-forbear suit. Phelps v. Abbott, 114 Mich. 88. The bank had the same right to immediately sue this note which it had to sue before the note was given. Peninsular Sav. Bank v. Hosie, 112 Mich. 351; Hitchings v. Edmands, 132 Mass. 338. It parted with nothing when the stock was assigned to it, and we do not think it can be said it was an innocent purchaser for value. The most that can be said in its favor is that it obtained the right to sell whatever equity Rheubottom and Bond had in the stock, and apply the proceeds on its debt.

It is urged in the briefs of counsel that complainant failed to show that Rheubottom and Bond were indebted to it. The record shows otherwise. Mr. Warner swore positively to the amount of the indebtedness, and no evidence was offered to the contrary. The complainant is entitled to a lien on the stock of 1650 and interest.

The decree of the court below is reversed, and one will be made here directing a sale of the stock to satisfy this lien; the balance, if any, to be paid to the defendant Mc-Causey. Complainant will recover costs of both courts.

The other Justices concurred.


author: Montgomery, C. J.

text:
    RENACKOWSKY v. BOARD OF WATER COMMISSIONERS OF DETROIT.
    1. Limitation of Actions — Pleading—Demurrer.
    The question of limitations as a defense in an action at law cannot be raised by demurrer.
    2. Constitutional Law — Introduction of Bills in Legislature — Fifty-Day Limit.
    Article 4, § 38, of the Constitution, which provides that no new bill shall be introduced into the legislature after the first 50 days of a session shall have expired, does not render invalid a section attached to a bill after the expiration of the 50-day period, if the bill itself was introduced in time, and the section was a proper one to be embodied in the bill. So held with reference to the provision of Act No. 463, Local Acts 1895, amendatory of the Detroit city charter, limiting the time within which actions may- be brought for negligent injuries.

      3. Limitation op Actions — Depenses—Estoppel.
    In an action for personal injuries, plaintiff may meet a defense of limitation by showing that defendant, by promising a settlement, led him to believe that a suit to enforce his claim was unnecessary.
    Error to Wayne; Wisner, J., presiding.
    Submitted October 3, 1899.
    Decided January 23, 1900.
    Case by August Renackowsky against the board of water commissioners of the city of Detroit for personal injuries. From a judgment for defendant on demurrer to the declaration, plaintiff brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark (Selling & Hatch, of counsel), for appellant.

      Arthur Webster (Charles Flowers and C. D. Joslyn, of counsel), for appellee.
   Montgomery, C. J.

The plaintiff brought this action to recover for injuries sustained by reason of the negligent act of defendant in the year 1893. The suit'was instituted in December, 189?. To a declaration setting up the facts the defendant interposed a demurrer, setting up a statute of limitations as to such^afitions, enacted in 1895, and in effect September 1, 1895 (Act No. 463, Local Acts 1895). By stipulation, the plaintiff amended his declaration, setting up, as reasons why the statute of limitations had not run, the following facts:

“1. That the said defendant recognized the fact that the plaintiff had a cause of action against the said defendant, and by reason of said recognition plaintiff was induced to permit the time to pass in which the statute provides’that suit shall be brought against said defendant.
“2. That the said defendant from time to time made payments to plaintiff in consideration of his cause of action, which payments continued until November 1, A. D. 189?.
“3. That the said defendant, before the time limited for bringing suit against it had run, adopted a resolution in -which it was resolved that said plaintiff should receive his full pay as long as he was disabled, regularly, whether he worked or not.
“1. That said defendant, upon the 20th day of November, A. D. 1897, declined to pay plaintiff his said claim, assigning various reasons, but not stating as. one of its reasons that the claim was barred by limitation.
“5. That the entire course of conduct of the defendant has been such as to render it unjust and inequitable that the said limitation should be set up as the defense of this action.”

No further pleading was filed, but the demurrer was treated as directed to the amended declaration. The case proceeded to hearing on demurrer, and judgment passed for defendant. Plaintiff brings error.

Three questions are raised:

1. Can the question upon which the case turned be raised by demurrer ?

2. If it can, is the statute constitutional ?

3. If both of the foregoing questions are resolved in the affirmative, has the defendant estopped itself from relying upon the statute ?

The general rule is that the statute of limitations must be pleaded, and that the defense cannot be raised by demurrer. 13 Enc. PI. & Prac. 200. It is stated by defendant’s counsel that in this case all the facts relied upon by the plaintiff to establish an estoppel to plead the statute of limitations were set up in the declaration as amended. The plaintiff’s cbunsel did not concede this, and, as the plaintiff was not bound to set up these facts in the first instance (Dean v. Crall, 98 Mich. 591 [39 Am. St. Rep. 571 ]), we do not feel justified in departing from the practice, and determining the case on demurrer.

We might rest our decisiofi on this question of-pra<->tir>fi but as the other questions are fully briefed, and are necessarily involved in the case, we deem it proper to express our views upon them. The question as to the constitutionality of the act was discussed in the briefs of counsel in Springer v. City of Detroit, 118 Mich. 69, and, although in the opinion the question was not discussed, the act was treated as valid. We have re-examined the reasons urged against the validity of the act, and are of the opinion that the act is valid. See City of Detroit v. Wayne Circuit Judge, 112 Mich. 317.

The meritorious question involved in the case is whether the plaintiff may meet the defense of the statute by showing that, before the time fixed by statute for the bar, the defendant, by its course of conduct, led the plaintiff to believe that a suit to enforce his rights would be unnecessary, and thereby lulled him into a feeling of security. Defendant’s counsel cite authority to the effect that an action for tort, once barred, cannot be revived by a néw promise. 1 Wood, Lim. 176. The reason for this is plain. In actions on contract it is the new promise which supports the action, while an action for tort cannot be based on a promise. But the claim of the present plaintiff is not that a- cause of action once barred has been revived by a new promise, but that the conduct of the defendant has induced the plaintiff to refrain from bringing action within the period fixed by statute, and that such conduct should estop the defendant. In a similar case (Armstrong v. Levan, 109 Pa. St. 177), Mr. Justice Paxspn said:

“ It was not the question of-the revival of a tort by a promise to pay made after six years. The conversation referred to occurred before the statute had run, and it was a distinct promise to pay in consideration that the plaintiff below would not sue. If, therefore, she relied upon this promise, — if she was thereby lulled into security, and thus allowed the six years to go by before she commenced her suit, — with what grace can the defendant now set up the statute? The promise operated, not to revive a dead tort, but by way of estoppel. It has all the elements of an estoppel.”- ■

See, also, Voorheis v. Benefit Society, 91 Mich. 469.

The judgment will be reversed, and the case remanded, with leave to the defendant to plead over. The plaintiff will recover costs in this court.

The other Justices concurred.


author: Long, J. Grant, J.

text:
    WHITELEY v. INGHAM CIRCUIT JUDGE.
    Costs — Discontinuance—Ejectment.
    Under 3 Comp. Laws 1897, § 1-1260, which provides that, in all actions in which the plaintiff would be entitled to costs upon a judgment rendered in his favor, if, after the appearance of the defendant, such plaintiff shall discontinue his suit, the defendant shall have judgment for “his full costs,” a defendant in ejectment who takes a new trial under the statute, •and who subsequently has judgment upon discontinuance by the plaintiff, while not entitled to have taxed against the plaintiff the costs paid in compliance with the statutory requirements giving a new trial, is entitled to recover the costs of the first trial, including his attorney’s fees for that trial, and the stenographer’s and witness fees. Grant, J., dissenting.

      Mandamus by James Whiteley and others'to compel Eollin H. Person, circuit judge of Ingham county, to allow relators certain costs in an action of ejectment.
    Submitted December 12, 1899.
    Writ granted January 23, 1900.

      Smith & Hood, for relators.

      Charles F. Hammond, for respondent.
   Long, J.

This was an action of ejectment, and on the trial in the circuit court the plaintiff had judgment. The defendants removed the case to this court by writ of error, where the judgment was affirmed. Subsequently defendants exercised their statutory right of a second trial, by the entry of the usual order, conditioned on the payment of all costs up to that time, which costs the defendants paid, and the case stood for trial in the usual manner. Before another trial was reached, the plaintiff voluntarily dismissed her suit; the defendants consenting thereto on payment of costs to be taxed. The defendants presented to the clerk of the circuit court a bill of costs .for taxation,, which included the statutory fees and costs of the trial in the circuit court, as given to prevailing parties. Objection being made to these costs, the clerk, upon a hearing in the matter, disallowed the same, but taxed such costs and fees as defendants were entitled to arising subsequent to-the order granting the second trial. On motion for re-taxation before the circuit judge, the clerk’s action was. affirmed, and the order was made of which relators complain.

The respondent contends that there is no statute entitling the relators to tax the costs and fees of the first trial, and that they are entitled only to such costs and fees as are given by law on the discontinuance of a case. It is insisted that the proceedings to and including the first trial were fully and forever closed when the order for a second trial was entered, and the defendants, as a condition therefor, paid the costs of that trial, which the statute imposed, and that, therefore, relators cannot claim any costs arising before that time. On the other hand, counsel claim that the relators are entitled to all their costs incurred since the commencement of suit, under the provisions of section 11260, 3 Comp. Laws 1897, which provides :

“In all actions and proceedings in which the plaintiff would be entitled to costs upon a judgment rendered in his favor, if, after the appearance of the defendant, such plaintiff be non-suited, discontinue his suit, be non-prossed, or judgment pass against him on verdict, demurrer, or otherwise, * * * the defendant shall have judgment to recover against such plaintiff his full costs, which shall have the like effect as all other judgments.”

We think the relators are correct in their contention. The claim made by them is not that they are entitled to recover back what they paid on the removal of the case to this court, nor what they paid to obtain a second trial in the action of ejectment. Those costs they would have no right to recover, under the rule laid down in Jeffery v. Hursh, 58 Mich. 246, 259, as they were costs paid in compliance with the statutory requirements giving them a new trial. Their claim is that they are entitled to recover their costs of a trial in ejectment; that is, attorney fees: (1) For proceedings before notice of trial, $15; (2) for subsequent proceedings before trial, $5; (3) for trial of issues of fact, $15, — together with term fees when case is on calendar and not reached, some other disbursements, and their witness fees. We think relators are entitled to recover these fees, amounting to $99, under the provisions of the section above quoted. The clerk, however, struck out all their costs, except proceedings before notice of trial, $15; for all subsequent proceedings before trial, $5; March, term fees, 1899, $5; May term fees, 1899, $5; affidavit to bill of costs, 25 cents; taxation of costs, 25 cents, — making $30.50 allowed the relators as costs, thus striking out their attorney fees for trial of cause, the stenographer fees, and all witness fees; and this was affirmed by the circuit court. The relators’ taxable costs were properly stated by them in their tax bill; and the order of the circuit court and the action of the clerk of that court must be reversed, and the costs taxed as claimed by relators, and set forth in their tax bill. The relators will recover the costs of this motion. The cause will be so certified to the circuit court.

Montgomery, C. J., Hooker and Moore, JJ., concurred with Long, J.

Grant, J.

(dissenting). Eelators were defendants in an ejectment suit tried in the circuit court, appealed to this court, and affirmed. Whiteley v. Whiteley, 110 Mich. 556. Eelators were granted a new trial under section 10981, 3 Comp. Laws 1897. Before trial was had, plaintiff submitted to a voluntary nonsuit, which was consented to by the relators. Eelators now seek to recover costs of the first trial, in which the judgment was affirmed in this court. But for the statute, relators’ right to further litigation would have been ended. The statute, however, gives them the right, upon certain conditions, to have a new trial, which conditions are the payment of all damages and costs which have been awarded against them by the judgment in the first trial. The payment of these costs is the sole condition upon which they are entitled to it. By the former judgment relators were obliged to pay their own costs. That judgment is conclusive of all costs incurred up to that time. It is conceded that they could not recover of the plaintiff the costs which they had paid as a condition for the new trial. Why should they be permitted to recover costs which they had paid out in that suit at their own expense in support of their own defense? The judgment is as conclusive as to costs in the one case as in the other. The case is, upon a new trial given by grace of the statute, to be tried de novo, and the prevailing party can only recover whatever costs he has incurred from that date up to the final judgment. I think the circuit court reached a correct conclusion, and that the writ of mandamus should be denied.


text:
    ASHWELL v. BULLOCK.
    Title to Office — Mandamus—Quo Warranto.
    When an office' is already filled by an actual incumbent, exercising the functions of .¡the office defacto and under color of right, mandamus will not lie to compel him to turn over the books and papers pertaining to the office to one who disputes his title; quo warranto being the proper remedy.

      ■Certiorari to Wayne; Frazer, J.
    Submitted December 12, 1899.
    Decided January 23, 1900.

      Mandamus by William H. Ashwell to compel Fred C. Bullock to turn over to • relator the books and papers pertaining to the office of secretary of the school board of the village of Highland Park. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Clifton D. Cordon, Henry B. Craves, and Charles H. Hatch {H. H. Hatch, of counsel), for relator.

      F. L. Brooke and Rowland M. Connor, for respondent.

       As to mandamus to compel surrender of office, see note to Stevens v. Carter, (Or.) 31 L. R. A. 342.

   Moore, J.

In July, 1899, the school board of Highland Park consisted of Trustees Thorpe, Kneale, Ketcham, Davison, Langdon, and Bullock. The last named was secretary of the board. An election was held July 10, 1899, to elect trustees in the place of Davison, Langdon, and Bullock, whose terms expired. At that election Davison, Ashwell, and Yoorheis received more votes than did their opponents. July 19th the old board held a meeting, when Davison, Ashwell, and Yoorheis all tendered their acceptance of the office of trustee. The board received the acceptance of Davison, but- declined to receive the acceptance of either Ashwell or Yoorheis, for the reason that, at the time of the election, their names did not appear upon the assessment roll, and it was claimed they were not eligible to the office of trustee. The old board then adjourned. Kneale, Ketcham, Bullock, and Lang-doh on the same day held a meeting, and ele'cted officers. Bullock was re-elected secretary, and has continued to hold the books and papers pertaining to the office, claiming to be the legally-elected secretary. On the 17th of August, Thorpe, Davison, Ashwell, and Yoorheis held a meeting, and elected Ashwell secretary. On the 15th of September he made a demand for the books and papers pertaining to the office upon Bullock, who refused to deliver them to him. He then petitioned the Wayne circuit court for a writ of mandamus to compel the delivery of the books to him. The court denied his petition, and this is a proceeding to review the action of the circuit judge by means of a writ of certiorari.

It was the claim of the petitioner that, at the time of the election, he and Voorheis both had property liable to assessment, and that the failure of the assessing officer to assess them did not render them ineligible to the office. The circuit judge was of the opinion that the title to an office was involved, and that a writ of mandamus was not a proper remedy. It is urged upon the part of relator that the circuit judge was in error, and that, where a public officer is prima facie entitled to an office, a writ of mandamus is the proper remedy to compel his predecessor to deliver up the books and papers pertaining to the office; citing High, Extr. Leg. Rem. §§ 73, 74; Ketcham v. Wagner, 90 Mich. 271; Huntley v. Finley, McGrath, Mand. Cas. No. 1180. It is apparent from the statement of the case already made that not only does the respondent claim to be secretary of the board, but he also claims that the relator is not only not secretary of the board, but that he is not a member of the board, for the reason that he was not eligible to an election as a member of the board; so that not only is his title to the office of secretary questioned, but his title to the office of trustee. It is also clear that, if Ashwell and Voorheis were not eligible to be elected trustees, then Ashwell could not be elected secretary. The inquiry involves, not only the title to the office of secretary, but also an inquiry into the titles of Voorheis and Langdon, neither of whom is before the court, to the office of trustee. Under such a condition, the rule is as follows:

“In determining the extent to which the courts may properly interfere by mandamus with questions relating to the title to and possession of public offices, it is necessary to recur to an important principle, frequently asserted throughout these pages, and which may be properly termed the controlling principle governing the entire jurisdiction by mandamus. It is that, in all cases where other adequate and specific remedy exists at law for the grievance complained of, the writ of mandamus is never granted. Applying this principle to cases where relief has been sought to determine disputed questions of title to and possession of public offices, the courts have almost uniformly refused to lend their aid by mandamus, since the remedy by information in the nature of a quo warranto is justly regarded as the most appropriate and efficacious remedy for testing the title to an office, as well as the right to the possession and exercise of the franchise. And the rule may now be regarded as established by an overwhelming current of authority that, when an office is already filled by an actual incumbent, exercising the functions of the office de facto and under color of right, mandamus will not lie to compel the admission of another claimant, or to determine the disputed question of title. In all such cases, the party aggrieved, who seeks an adjudication upon his alleged title and right of possession to "the office, will be left to assert his rights by the aid of an information in the nature of a quo warranto, which is the only efficacious and specific remedy to determine the questions in dispute. And whenever it is apparent, on the face of the pleadings, that the issue presented involves ■a determination as to the person properly elected to an ■office or entitled to exercise its functions, the writ of mandamus will be withheld.” High,Extr. Leg. Rem. § 49.

See, also, People v. Common Council of Detroit, 18 Mich. 338; School Dist. No. 8 of Tallmadge v. Root, 61 Mich. 373; Pariseau v. Board of Education of Escanaba, 96 Mich. 302.

The only decisions of our court which are apparent ■exceptions to this rule are Lawrence v. Hanley, 84 Mich. 399, and Ketcham v. Wagner, 90 Mich. 271. The first •of these cases was one where the chairman of the board of auditors applied for a mandamus to compel the sheriff •to return to him books and papers belonging to the board of auditors. A reading of the case shows that the sheriff had no business with the books, which were lawfully in possession of Mr. Lawrence when taken from him. The ■court used the following language:

“This would dispose of the matter at present before us, but it does not settle the question really in issue. .We ■deem it for the public good, the case being to us so clear, ■to decide here and now the question of the right to ■the office as between Collins and Leteker. This is not usual in mandamus proceedings, quo warranto being in most cases the most appropriate proceeding to test the right to hold an office; but the exigencies of the .case, as we view it, and the public interest, demand that the question shall be speedily determined, which cannot be done by quo warranto. And when a person in office de jure et de facto is interfered with by one whose lack of title is plain, and governed by adjudicated cases in- our own courts, it is not only proper, but best, to settle the question by mandamus. * * * We think the title to this, office is clearly ruled by People v. Lord, 9 Mich. 227. There was no vacancy occasioned by the death of Nagel that the governor could fill by appointment.”

In the case of Ketcham v. Wagner, the opinion shows the question of the title to the office was not involved, the-court holding that the respondent was neither expressly nor impliedly retained in office, and therefore had no right ■ to retain the books and papers. Whatever may be said of these cases, it is very clear the case before us is not taken out of the rule. We think the circuit judge made a proper disposition of the case.

Affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    BALCH v. JAYCOX.
    Deeds — Misdescription—Reformation—Execution.
    Where a husband attempts to convey land to his wife without consideration, believing she would thereby be enabled to qualify as surety upon his liquor bond, and the conveyance-fails on account of a misdescription, an execution against him, levied on the land sought to be conveyed, will stand,, although the wife seeks in equity to reform the deed.
    Appeal from Alcona; Simpson, J.
    Submitted January 3, 1900.
    Decided January 23, 1900.

      Bill by Theresa Balch against James A. Jaycox, George G. Jaycox, and George W. Balch to restrain an execution sale and to reform a deed. From a decree for complainant, defendants Jaycox appeal.
    Reversed.

      Main J. Connine, for complainant.

      O. Ii. Smith (R. J. Kelley, of counsel), for appellants.
   Hooker, J.

The locus in quo is a piece of land in the village of Harrisville, 4 by 24 rods in size. In 1881 it was owned by Balch. He also- owned and resided upon another parcel, known as “Lot 8.” On June 29, 1881, Balch-made a deed to his wife, upon a recited consideration of “one dollar and other good and valuable considerations.” It described lot 8, and a parcel 4 by 24 rods in size, adjoining the premises in dispute upon the south. There was no intention to convey the second parcel described, which Balch did not own, and it was included through a mistake in an attempted description of the parcel north of it, which, as stated, Balch did own. This deed was made for the sole purpose of enabling the wife to become his surety upon a liquor dealer’s bond which he then contemplated giving, and afterwards did give, and which the wife signed as surety. Whether it was accepted or not does not appear. Balch became indebted to the defendants Jaycox in 1886, and they obtained a judgment against him in February, 1888. They took an execution, and attempted to have it levied upon the land of Balch, but the same mistake was made in the description that was made in the deed. In 1894 a bill in aid of execution was filed, and issue was joined. Upon the hearing the mistake was discovered, and then the defendants Jaycox dismissed their bill, took a new execution, and caused it to be levied, by a correct description, upon the premises upon which they had previously attempted to obtain a levy. Thereupon Mrs. Balch filed the-bill in this cause to restrain the sale and correct the deed. The defendants Jaycox appeal from a decree in favor of Mrs. Balch.

It is contended by counsel for the defendants that the conveyance was without consideration, and therefore voluntary, and that, while it was valid, and passed the title to lot 8, which was correctly described, it gave Mrs. Balch no legal claim to the parcel misdescribed; as to that, the attempted conveyance failed through the misdescription ; and that Mrs. Balch has no equitable interest in the parcel. The evidence fails to show that a gift was intended, or that any contract was made in relation to the giving of the bond. The conveyance was attempted merely to make Mrs. Balch eligible as a surety, not as a consideration to support a promise to become a surety. Apparently, she was willing to sign said bond without compensation,— an idle ceremony, by the way, as such a bond could not bind her. It was therefore subject to levy as the property of the husband.

The decree is reversed, and the bill dismissed, with costs of both courts.

The other Justices concurred.


author: Grant, J.

text:
    KOOISTRA v. ROCKFORD INSURANCE CO.
    Insurance — Surrender op Policy — Authority op Agent.
    Plaintiff applied to L., an insurance agent, for insurance upon her property, and was informed hy L. that the companies which he represented would not accept the risk, but that he would try to place it elsewhere. The local agents of several companies were consulted by L., and policies were successively issued, all of which were ordered canceled when reported to the companies concerned, among which companies was defendant. After a fire, plaintiff sought to hold defendant liable, upon the ground that L. had no authority to accept notice of cancellation and surrender the policy. Held, that plaintiff could not be sustained in the inconsistent contentions that L. had authority to surrender prior policies, which, unless canceled, would render subsequent insurance void, and yet, under precisely the same state of facts, had no authority to surrender the policy in suit.
    Error to Kent; Adsit, J.
    Submitted January 3, 1900.
    Decided January 23, 1900.

      Assumpsit by Almira C. Kooistra against the Rockford Insurance Company of Rockford, Illinois, upon a fire policy. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff, the owner of a frame hotel in the village of Conklin, authorized her husband to procure, if possible, insurance upon it. He applied to one Lathrop, an insurance agent. Mr. Lathrop testified that he informed Mr. Kooistra that it was a hard risk; that he could not write it in the companies represented by him, but that he might be able to place it elsewhere. The negotiation was carried on entirely between Mr. Kooistra and Mr. Lathrop. Mr. • Kooistra’s version of the conversation was that he applied to Mr. Lathrop for insurance on the 19th of February, 1898, left with him the deeds containing the description of the property, paid him $50 upon the premium, and instructed him to procure insurance, to which Lathrop replied, “All right.” Mr. Lathrop made no attempt to secure the insurance in his companies. He first applied to one Melis, local agent of the Continental Insurance Company. Melis issued a policy, delivered it to Mr. Lathrop, and reported the risk to his company. The company refused to carry it, and ordered its cancellation. Melis notified Lathrop, who surrendered the policy for cancellation, and it was canceled. Lathrop then applied to one Bodwell, the local agent of several companies, including the defendant. Bodwell told Lathrop that he did not know whether his company would carry it, but he would try. He then wrote the policy in suit, delivered it to Mr. Lathrop, made the daily report thereof to his company, which refused to carry it, and instructed Mr. Bodwell to cancel it. Bodwell notified Lathrop of his instructions, but told him that he had written back an explanation to the company in regard to the risk. The policy was not then canceled. To this letter of Mr. Bodwell the defendant replied, still refusing to carry the risk, and instructing him to cancel it. Bod-well notified Lathrop, who then produced the policy, which was in his possession, and surrendered it to Bodwell for cancellation. It was canceled on March 17, 1898, returned to the home office of the defendant, and destroyed.
    Lathrop had paid Bodwell the premium, $54. Bodwell did not then return the premium to Lathrop, but by agreement it was left with Bodwell for the purpose of procuring other insurance, and Bodwell attempted to obtain insurance in another company, — the Milwaukee Mechanics’, of which he was the local agent. Bodwell wrote this policy and delivered it to Lathrop. That company promptly refused to carry the risk, and ordered its cancellation. Bodwell so notified Lathrop, and Lathrop surrendered to him that policy, which was canceled. March 3d Lathrop applied to Bodwell for insurance upon the personal property in the hotel. Bodwell wrote a policy in the Security Company of New Haven, of which he was the local agent, and delivered that policy to Mr. Lathrop. That company declined to carry it, and ordered cancellation. Bodwell so informed Lathrop, and that policy was surrendered and canceled. Upon the cancellation of the policy upon the furniture by the Security Company, Lathrop obtained a policy upon it in another company, which latter policy was in force at the time of the fire, which occurred March 25, 1898, and was paid. Bodwell returned the premium to Lathrop after the fire. Whether Lathrop returned it to plaintiff does not clearly appear. On June 10th, after the fire, plaintiff .tendered to the defendant the amount of the premium, $54. Lathrop testified that none of these policies were delivered to Mr. Kooistra. Mr. Kooistra testified that the policy in suit was delivered to him; that he retained it in his possession about a week, and then returned it to Lathrop for the purpose of procuring insurance upon the furniture. Mr. Kooistra also testified that he' knew nothing about the issuance and cancellation of the other policies. The court left it to the jury to determine whether Lathrop had authority to accept notice of cancellation, to waive five days’ notice required by the policy, and to surrender it; instructing them that,—
    ‘ ‘ If Mr. Kooistra instructed Mr. Lathrop to keep trying to get insurance until he found some company that would carry it, then Lathrop became the agent of the plaintiff, and notice of the cancellation of the policy given by the defendant to him was sufficient notice, and when he surrendered the policy to Bodwell it ended the liability of the defendant thereon.”
    Plaintiff recovered verdict and judgment.

      Hotoard, Boos & Howard, for appellant.

      M. B. Butler, for appellee.
   Grant, J.

(after stating the facts). Was the policy legally canceled ? It is conceded that authority to procure insurance does not imply authority to consent to cancellation. This is well settled, and the citation of authorities is unnecessary. Lathrop was the agent of plaintiff. He was at no time and in no sense the agent of the defendant. She had no contract with Lathrop- for insurance in any particular company. The fact that Mr. Lathrop had delivered the policy to Mr. Kooistra, who had returned it, is of no consequence. The possession of the policy, under the circumstances, was sufficient to justify Bodwell in believing that Lathrop had authority to surrender it, and that it was under his control. Lathrop and Bodwell both understood that it was doubtful if the defendant would carry the insurance. It was entirely natural that the policy, should remain in Lathrop’s possession until the company had determined whether it would carry or cancel it. It was evidently contemplated that Bodwell, on hearing from the defendant, should notify Lathrop. When Bodwell did so, he found the policy in Lathrop’s possession. Delivery to the plaintiff by Lathrop was not essential to the validity of the' policy. It was as valid in the possession of Lathrop as it would have been in the possession of plaintiff or her -husband. If a fire had occurred before surrender and cancellation, the defendant would have been liable, unless it was avoided by the existence of the first policy. It therefore follows that the first policy, issued by the Continental Company, was a valid one, unless it was legally canceled. Lathrop was clothed with no more authority to surrender that for cancellation than he was to surrender the one in suit. . It must follow, under plaintiff’s theory, that the first policy was in force at the time of the fire. Four policies had been issued, surrendered, and canceled while they were in the agent’s possession. Can plaintiff have her choice as to which one of these is valid? If the first was valid, all the others are void. Furthermore, she ratified the act of her agent in surrendering the policy upon the furniture procured through Mr. Bod well. Was Lathrop her agent to surrender one policy, and not the other? The law will not permit her to say, “Lathrop was my agent to surrender one policy, but was not my agent to surrender another,” under precisely the same state of facts. She left the policy in the hands of her agent, and thus placed it in his power to mislead the defendant, who acted in good faith in canceling the policy. If Mr. Lathrop failed to notify plaintiff, this is no fault of the defendant. By leaving the policy with her agent, she placed it in his power to mislead the defendant. If both parties are innocent, it is her act which has misled, and she must be the sufferer.

There is no substantial dispute as to the material facts in the case. It therefore became a question of law for the court. We think the court should have directed a verdict for the defendant.

The judgment is reversed, and, inasmuch as no different case can be made upon a new trial, none will be ordered.

Hooker, Moore, and Long, JJ., concurred with Grant, J. Montgomery, C. J., concurred in the result.


text:
    DICKERSON v. CORNING.
    Mortgages — Deficiency Degree — Bill oe Review — Service oe Prooess.
    One against whom a decree for a deficiency passes in foreclosure proceedings, the officer having made return that he was served with process, may on bill of review, when it appears that he was not so served, be given an opportunity to mate defense; but the decree against him will not be disturbed on the ground merely that he had no opportunity to attend the sale and see that the property sold for its fair value, if it is not made to appear in fact that the property was sacrificed and that a resale is desired.
    Appeal from Midland; Dodds, J.
    Submitted January 3, 1900.
    Decided January 23, 1900.
    Bill of review by Freeman B. Dickerson against Edward Corning and Anna Corning, executors of the last will and testament of William Corning, deceased. From a decree for defendants, complainant appeals.
    Affirmed.

      Walker & Spalding, for complainant.

      Camp & Brooks and William G. Gage, for defendants.
   Grant, J.

For a statement of this case, see Corning v. Burton, 102 Mich. 86, 96. After it was remanded to the court below, Mr. Dickerson filed a bill of review. Defendants answered, and the case was heard upon pleadings and proofs taken in open court. The court held that Mr. Dickerson was not served with the subpoena, and had no knowledge or notice of the foreclosure proceedings until he was served with a petition for execution for the deficiency ; that the land was not sold at the foreclosure sale for less than its actual value; that it does not appear that a greater sum would be realized upon another sale ;• and that Mr. Dickerson was liable for the deficiency. His counsel now insist that if the court below reached the correct conclusion upon the evidence, that he was not served with process, the decree as to him is absolutely void, and he is discharged from his obligation to pay. The complainants in the foreclosure suit relied upon the return of the sheriff that he had served the subpoena upon Mr. Dickerson. They had the right to act upon that return, and are guilty of no neglect of duty. It would bé a harsh and unconscionable rule which would deprive them of any of their legal rights because of the mistake of the officer. While there are authorities which hold that the return of the officer is conclusive after judgment or decree, we think the better rule is that the defendant may appear in the same proceeding by motion to set aside a judgment, or by a bill of review to set aside the decree and sale, and thus give him the opportunity to make a defense to the suit. There are many authorities in support of this rule. A party cannot otherwise be held to have had his day in court, to which every litigant is entitled. It conclusively appears that Mr. Dickerson has had this opportunity, and has been permitted to introduce any defense that he might have. He has made no defense upon the merits. He has therefore suffered no injury. The defendants offered to transfer the entire mortgaged property to him upon payment of the mortgage debt. ' They have acted equitably and justly with him. It would be inequitable, under these circumstances, to permit him to escape all liability. Counsel, when asked upon the hearing of what right Mr. Dickerson had been deprived, replied that he was entitled to notice of the proceedings, so that he might attend the sale and see that the property sold for its fair value. He does not ask for a resale. There would be much force in this claim if it appeared that the property sold for less than its value, and he now asked for a resale. We are cited to no authority which holds that, where judgments and decrees are set aside in direct proceedings for failure to serve process,, the defendant is held to be discharged. He has obtained all the rights to which he was entitled when he has been permitted to appear and interpose his defense. He could have done nothing more if he had been served with process.

There are other interesting questions in the case, but this disposal of it renders their discussion unnecessary. We think the decree of the court was correct, and it is affirmed.

The other Justices concurred.


text:
    LEPPALA v. CLEVELAND IRON-MINING CO.
    Master and Servant — Assumed Risk — Contributory Negligence.
    Where a mining company had provided a suitable and safe platform for its employés to stand on when engaged in barring down ore, which would become clogged in the chutes constructed to discharge the ore into ore cars, an experienced workman who, without being authorized or directed to do so, climbed into one of the cars for the purpose of performing that duty, was guilty of negligence, rand assumed the risk of being injured by contact with a trolley wire overhead.
    Error to Marquette; Stone, J.
    Submitted January 5, 1900.
    Decided January 23, 1900.
    Case by John Leppala, administrator of the estate of Daniel S. Leppala, deceased, against the Cleveland Iron-Mining Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff’s decedent was a miner, and at the time of his death had worked in the defendant’s mine two years. It is claimed that he was killed by coming in contact with a trolley wire used in conveying cars loaded with ore along the levels of the mine to the shaft, where the ore was dumped from the cars into skips, and hauled to the surface. The situation, the method of doing the work, and the circumstances under which the deceased died, are so well and concisely stated in the brief of Mr. Wood, one of the attorneys for defendant, that we adopt his statement:
    “At the time this accident occurred, the deceased was filling cars on the second level, at raise No. 2. The ore was deposited in the raise above, and came down, through a chute, into cars standing beneath. When the car was full, it was hauled to the shaft on rails by means of an electric motor, and taken to the surface in skips. At the chute where the accident occurred, there was a ladder-way going from the level to the drift above, and so constructed that it passed alongside of the chute. The chutes were constructed with holes in the sides, so that, when clogged with ore, the men loading cars could go upon the ladder, and, using an iron bar, pry the ore loose, so that it would run through the chute into the cars below. The level running from the shaft, at the point where the accident occurred, was 7 feet wide and 7£ or 8 feet high. The rails ran in the center of the level. The cars used to carry the ore to the shaft were 4 feet wide, 6 feet long, and 4 feet high, and stood 6 inches above the rails. Directly above the center of the tracks ran the trolley wire, which was 6 inches from the top of the level. This wire furnished the power to haul the cars to the shaft. Directly across the tracks from the chute was a platform running alongside the car, 18 inches high, provided by the company for the men to stand on when barring the ore at the mouth of the chute. At the time of the accident, the deceased was barring down ore from the chute into the car. The car was about half full of ore at the time. The chute had become clogged, and the deceased was trying to make the ore run. He climbed upon the ladder, and tried to bar from there, but was unable to start the ore. Coming down from the ladder, he came around in front of the chute to bar in the mouth of the chute, and, instead of getting on the platform provided for the purpose, he climbed into the car, inserted the iron bar in the chute, and commenced to bar. In so doing he raised his head, and came in contact with the trolley wire overhead, and received a shock, which, it is alleged in the declaration, was the cause of his death.”
    The negligence charged is the failure to—
    “Make the wire safe by locating it above the reach of the employes while engaged about their work, to properly coyer and insulate the said wire, and to inform the deceased and the other employés working in the said mine and drifts and stopes of the danger incurred by taking hold or touching the said unprotected wire.”
    The court directed a verdict for the defendant.

      Clark & Pearl, for appellant.

      George Hayden and James C. Wood, for appellee.
   Grant, J.

(after stating the facts). The reasons given by the court for his directions were that no negligence was shown on the part of the defendant, and no damage to the plaintiff. The voltage used was 220. Other plants like this had been in operation in other mines for several years, some of them having a voltage of 500. No accident had ever happened. Workmen had frequently come in contact with this and other wires, receiving a shock which did no harm. No instance is shown where any contact with a voltage of 220 had resulted in injury. It is urgently insisted that the testimony fails to show that death was caused by contact with the wire. Deceased was only a few months past 21 years of age. There was no evidence that he had contributed anything to the support of his father. We, however, do not choose to base our decision upon either of these questions. We think it clear that the deceased, when he got into the car to bar down the ore, assumed the risk, and was guilty of contributory negligence. The sides of the car sloped towards the center. The danger of doing this work in the car is apparent, and is clearly shown by the testimony, because of the danger of being struck by the ore when it started to run. The defendant had provided suitable and safe places for its employes to stand in barring down the ore. The deceased had never been authorized or directed to get into the car for that purpose, and no custom to so do was shown. For this reason the. judgment must be affirmed.

The other Justices concurred.


text:
    CAPLE v. SWITZER.
    Mortgages — Description of Property — Exceptions — After-Acquired Title — Covenants of Warranty.
    Though a deed excepting from the grant “a part assigned to a widow as her dower interest ” be construed as excepting the fee of the part assigned, and not merely the widow’s life estate, if the grantee mortgages the entire land “except the life estate of the widow,” title subsequently acquired by him from the remainderman will inure to the mortgagee, under covenants of warranty contained in the mortgage.
    Error to Gratiot; Daboll, J.
    Submitted January 5, 1900.
    Decided January 23, 1900.
    Ejectment by John S. Caple and Andrew J. Hall against John S. Switzer and Elizabeth Switzer. From a judgment for plaintiffs, defendants bring error.
    Affirmed.
    One Patrick Egan died intestate, seised of the N. of the N. E. ^ of section 12, town 12 N., of range 4 W., in Gratiot county, leaving a widow and seven children. Due proceedings were had by which the estate was partitioned; a small piece, the subject of this suit, being assigned to the widow as her dower estate. Subsequently the defendants acquired the interests of all the heirs, except one. The deeds conveying these interests contained the following description:

      “Thenorth half of northeast quarter of section twelve, town twelve north, of range four west, less all that part assigned by the probate court of Gratiot county, Michigan, to Bridget Egan, widow of Patrick Egan, as her dower interest in and to said premises; also, less that, part assigned to Martin Egan by probate court of Gratiot county, Michigan, as heir at law of said Patrick Egan. This deed is intended to convey sixty-two and one-half acres of land, more or less. Also, less one and twenty7 eight one-hundredths acres off north side, for cemetery.”
    The defendants executed a mortgage to one John Elannigan, which Elannigan assigned to Josephine Elannigan. The mortgage contained the following description:
    “ The north half of northeast quarter of section twelve, town twelve north, of range four west, except the life estate of Bridget Egan, widow of Patrick Egan, in that part assigned to her by the probate court of said county as her dower interest, and also excepting that part assigned by said probate court to Martin Egan as heir at law of said Patrick Egan, and also excepting one- and 28-100 acres on north side heretofore conveyed for cemetery purposes; and also excepting Martin Egan’s residuary interest in Bridget Egan’s dower.”
    The mortgage was foreclosed, the time of the redemption expired, and Josephine Elannigan deeded the land to the plaintiffs. Some time after executing this mortgage, defendant John obtained the title to the piece of land in dispute. Plaintiffs brought this suit in ejectment to recover possession, claiming title by virtue of the foreclosure proceedings and deed thereunder. Defendants insist that the piece of land was not covered by the mortgage, and that the after-acquired title did not inure to the benefit of the mortgagee and his grantees. The court below found that the mortgage covered the land in dispute, subject to the life estate of the widow, and that, she being dead, plaintiffs had title thereto.

      J. Lee Potts, for appellants.

      George P. Stone (Kelly S. Searl, of counsel), for appellees.
   Grant, J.

(after stating the facts). Whether the expression in the deeds, “less all that part assigned by the probate court of Gratiot county, Michigan, to Bridget Egan, widow of Patrick Egan, as her dower interest in and to said premises,” excepts the fee of the land, or only the widow’s life estate, may be doubtful. Four months after 'defendants obtained their title, they executed the mortgage, by which they mortgaged the entire land, ‘ ‘ except the life estate of the widow. ” This might fairly be construed as a construction by the defendants of the language of the deeds. But, whether this be so, the mortgage clearly covered the land, subject to the life estate. The title thereto subsequently acquired by the defendants inured to the benefit of the mortgagee and his grantees, under the covenant of warranty contained in it. White v. Smith, 37 Mich. 291; Gray v. Franks, 86 Mich. 382.

Judgment affirmed.

The other Justices concurred.