source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DODSON v. DODSON.
    1. Wills — Character of Instrument — Deed or Will — ParolEvidence.
    Extrinsic evidence is not admissible to show that undelivered deeds, purporting to convey a present interest subject to a. condition subsequent, were intended to operate as a will.

      2. Same — Undue Influence — Fraud.
    Undue influence may be exercised through fraud.
    3. Same — Evidence—Sufficiency
    Fraudulent influence may be inferred from circumstances.'
    Error to Ionia; Davis, J.
    Submitted December 7, 1905.
    (Docket No. 159.)
    Decided December 30, 1905.
    James E. Dodson and others presented for probate the last will and testament of Philip Dodson, deceased, and also petitioned to admit to probate two deeds executed but not. delivered by decedent. The will and deeds were admitted, to probate, and Harmon B. Dodson and George D. Dodson, sons of deceased, appealed to the circuit court. There was judgment for contestants, and proponents bring error.
    Reversed.

      George E. Nichols and Dwight 0. Sheldon, for appellants.

      Scully & Davis and Morse & Locke, for appellees.
   Hooker, J.

Philip Dodson, acting under the advice of a scrivener, executed two deeds of real estate and a will disposing of his personal property. He took them to his residence and put them in a drawer. Before his death he instructed one of his sons, Edward, with whom he lived, to take the key to the drawer .after his death, have the deeds recorded at once, and present the will for probate. This was done. Two of Philip’s sons were given disproportionately small shares of the property, and they contested the will. It was, however, admitted to probate, and contestants appealed. About fhe time that the appeal was taken, a petition to admit the deeds to probate was filed, and they were afterwards admitted to probate, and an appeal was taken from that order. Subsequently the circuit court made an order consolidating the two appeals, and the case was tried before a jury, resulting in a verdict for the contestants, and an order was entered adjudging that said writings were not the last will and testament of Philip Dodson, and an appeal has been taken, by two sons and three daughters of Philip Dodson, from that order.

An important question in this case is whether the deeds can be held to he a testamentary disposition of the property described in them. We may premise a discussion of that question by the statement that the circumstances under which they were made, and attending their disposition and custody, are convincing that they were so intended. Indeed, they leave no doubt that such was the testator’s intention. But the rule is that a testator’s intention cannot- be given effect as against the plain and unambiguous provisions of a deed, and the rule is settled in this State that where there is nothing in the instrument to indicate a testamentary intent, but, on the contrary, it is in terms plainly a deed conveying a present interest, extrinsic evidence is not admissible to show the contrary. The subject is discussed at length in the case of Clay v. Layton, 134 Mich. 341.

The deeds in question contain similar provisos, a quotation from one of which will serve to show the nature of both: “Provided, that the second party shall within five years after the death of said first party pay to Harmon B. Dodson, his heirs or assigns, five hundred ($500.00) dollars without interest, as follows,” etc. In all other respects these deeds are in the ordinary form of deeds intended to convey a present interest. The least that can be said of them is that, if delivered, they would have conveyed a present interest, though subject to a condition subsequent. It follows, from the case of Clay v. Layton and the authorities there cited, that we must hold that these deeds were not subject to probate as a testamentary disposition of property. We cannot hold that they are ambiguous, and therefore subject to explanation by extrinsic evidence, without saying the same of similar deeds actually delivered during the grantor’s lifetime, which would be to unsettle the law applicable to deeds containing conditions subsequent.

We have examined the testimony with care, and feel justified in saying that there is nothing in the record justifying the submission to the jury of the questions of incompetency, insane delusion, or monomania. The question of undue influence was, however, one which it would not have been proper for the court to determine. As the cause must be reversed on the other grounds, it is unnecessary to discuss the testimony at length, or to say more than that upon the theory that the testator was designedly deceived by the persons with whom he lived and others of his children, it was not impossible that a jury might consistently find an improper and undue influence which would justify the denial of probate to the will. In re Seymour’s Estate, 111 Mich. 203; Rivard v. Rivard, 109 Mich. 98; Lyon v. Dada, 111 Mich. 340. Undue influence may be exercised through fraud. 4 Curr. Law, p. 1873. It is needless to do more than state that fraudulent influence is rarely susceptible of direct and clear proof, but may be inferred from circumstances tending to show it.

The order is reversed, and a new trial ordered.

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


author: Grant, J.

text:
    ROBERTS v. SANITAS NUT FOOD CO.
    Master and Servant — Injuries to Servant — Elevators—Contributory Negligence.
    A servant cannot recover for injury to her foot, caused by its being crushed by the floor of a descending elevator while she stood waiting for the elevator with her foot unnecessarily projecting into the elevator shaft.
    Error to Calhoun; Hopkins, J.
    Submitted December 8, 1905.
    (Docket No. 167.)
    Decided December 30, 1905.
    Case by Ella Roberts, by next friend, against the Sanitas Nut Food Company, Limited, for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Defendant carries on its business in a three-story building. The first floor is slightly above the level of the ground, is composed of cement, and is one room, in which are 11 windows, some composed of six panels of glass and some larger. About midway of the front of the building is an elevator shaft leading to the two floors above. In the outside wall is an opening for the admission of freight to the elevator. A depression about four inches deep was made in the cement floor for the elevator to sink into, so that the bottom of the elevator would be on a level with the floor. The shaft was rectangular in shape. A post was placed at each corner. To these posts upon the sides were attached wire screens. There was no gate in front. The shaft in the floors above had gates. The elevator was used mainly for freight, but the employés were in the habit of using it in going to and from the various floors in the process of their work. At each end of the room was a light. There had been one a few feet in front of the elevator shaft, but for some reason it had not been in use for months. It was customary for the plaintiff and others to descend from the room above to the basement room very often in the process of their work. She and five others on December 1, 1903, descended upon the elevator to the first floor, had performed their work there, and a little after 4 o’clock in the afternoon the six went to the elevator shaft to be taken to one of the rooms above. The signal had been given for the elevator to descend. Plaintiff, a girl 16 years old, a graduate of the public schools, had been at work for the defendant from six to eight months. She stood about a foot from one of the posts, saw the elevator coming, and saw it pass directly in front of her face. She stood with a portion of her foot extending over the edge of the depression. The elevator struck her foot, and injured it. Plaintiff testified that there was a refrigerator and boxes in the vicinity of the elevator somewhat obstructing the light, and that when looking down she could not see her foot. She bases her right of action against the defendant on two grounds of negligence : (1) The failure to provide a gate in front of the elevator, and (2) to keep the lights in front of the elevator in repair. The court, when plaintiff had rested her case, directed a verdict for the defendant, upon the ground that she was guilty of contributory negligence.

      Hatch & Anderson, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Grant, J.

(after stating the facts). It is urged that the defendant violated its statutory- duty imposed by % Comp. Laws, §§ 5346, 5368, in not providing an automatic gate in front of the shaft. The object of these statutes is to prevent employés and others rightfully upon the premises from .falling into the shaft or well of the elevator. It is doubtful if either section of the statute includes a situation such as is shown by this record. There was no well or shaft in the basement into which an employe might fall. This shaft was close, to the side wall of the building. There was no danger of,injury to any employe by falling into this slight depression. Quite manifestly a gate, unless it was close to the floor and several inches from the edge of the depression, would not have avoided the accident; for with such a gate she could have stood where she did, with her foot extending under the gate and over the edge of the depression. Evidently no inspector, under this statute, had required the defendant to construct a gate. It is, however,-unnecessary to determine this question, inasmuch as the court below directed a verdict on the ground of plaintiff’s contributory negligence. In this the court was clearly i*ight.

Plaintiff testified that she stood with the ball of her foot upon the floor. A small portion of her foot extended over the edge of the depression. She looked up and saw the elevator coming. Though it was somewhat dark in the basement, she could readily see the opening above her and the elevator descending. Any one of intelligence — and it is not disputed but that she was a girl of fully, if not more than, average intelligence — would have known how near she was standing to the opening. She testified that she saw the elevator descending, and saw the chain alongside. She stood about a foot from one of the posts. She saw the elevator as the bottom of it descended in front of her face, and yet she did not withdraw her foot or step back. If she stood erect, her foot could not have been more than two or three inches in advance of her face. If she stood ■.upon one foot, with the other extended forward with the toes over the edge of the depression, that was clearly a negligent position. If her vision was obstructed by boxes, which she claims were in the vicinity and obstructed the light from either end of the room, it was her duty to feel and be sure that she stood back a safe distance, which it was entirely feasible for her to do. Poindexter v. Benedict Paper Co., 84 Mo. App. 352; Taylor v. Carew Manfg. Co., 140 Mass. 150, 143 Mass. 470; Buckley v. Railroad Co., 119 Mich. 583.

Plaintiff was perfectly familiar with the surroundings. There was ample room for her to stand a sufficient distance from the shaft. While it seems certain that she could see to determine how near she was to the shaft, yet, if it be true that she could not, she had ample time to feel, and by extending her hand could have touched the post, which would have disclosed to her her position. There was ample room and ample time for her to step back and remain in a safe place. * There was no conflict upon the facts, nor, as the judge held, can reasonable men draw different conclusions from the conceded facts. The plaintiff for some reason was undoubtedly heedless of her position. She had been, or was, talking with a companion about a party which they were to attend. The slightest precaution upon her part would have avoided the .injury.

Judgment affirmed.

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


author: Moore, C. J.

text:
    McNEAL v. VAN DUSER.
    1. Bail — Discharge—Indorsement on Order.
    Under section 10048, sub. 8, 3 Comp. Laws, requiring the indorsement of an order liberating the bail on the second copy of the bail piece, an indorsement on a piece of paper attached to the bail piece is sufficient.
    2. Same — Surrender of Principal.
    Under section 10049, 3 Comp. Laws, appearance bail may surrender their principal and' be exonerated, notwithstanding plaintiff has brought suit upon .the bail bond after forfeiture. .
    Certiorari to a circuit court commissioner for Shiawassee county; Durham, Com’r.
    Submitted December 8, 1905.
    (Docket No. 187.)
    Decided December 30, 1905.
    Case by James W. McNeal against John Van Duser for assault and battery. Suit was begun by capias. There was an order exonerating defendant’s bail on surrender of defendant, to review which plaintiff brings certiorari.
    Affirmed.

      Walsh & Pardee, for appellant.

      W. J. Parker and A. E. Bicharás, for appellee.
   Moore, C. J.

May 11, 1905, James W. McNeal brought suit against John Van Duser by suing out a writ of capias. On May 15th a declaration was filed therein. On June 28th the defendant was arrested, and an appearance bail bond given in the sum of $200, with Robert Bowles as surety. On June 28th a copy of the declaration was served on W. J. Parker, who had appear.ed as attorney for the defendant. On July 14th, no special bail having been filed by defendant, the plaintiff took an assignment of the appearance bail bond and commenced action against the bail, Robert Bowles, by summons. On July 15th the attorney for defendant served on plaintiff’s attorney a plea in the case of James W. McNeal v. John Van Duser, but which service was not accepted. On July 24th the declaration was filed in the action against the bail, and a copy served on defendant’s attorneys. On July 21st the bail surrendered his principal and commenced proceedings before a circuit court commissioner to be exonerated from liability under the said appearance bail bond, and the commissioner made an order to show cause, returnable on July 28th, why the bail should not be discharged. On July 28th plaintiff appeared before the commissioner and filed five written objections, and argued them against the liberation of the surety. On July 31st an order was made by the commissioner exonerating the bail. The plaintiff excepted to the ruling, and brought certiorari proceedings. On August 8th, in the case of James W. McNeal v. Robert Bowles, the defendant filed his plea to plaintiff’s declaration, making the case at issue.

The objections made before the commissioner were:

“1. Because the said appearance bond was, on July 14, 1905, duly assigned from the sheriff of said county to the plaintiff, and an action was commenced in the circuit court for said county on the same date on said bond, and process served on the bail, Robert Bowles; and said action being now in progress for trial.
“ 2. That by virtue of said action at law on said bond, the right to such action being complete and all the proceedings therein being regular, the said plaintiff has elected his remedy, and therefore, under the laws of this State as it is today, has waived his right to pursue the defendant or the sheriff.
“3. Because of such waiver and election, to exonerate the bail would be to unlawfully deprive plaintiff of a vested right and of his day in court, and to deprive him of his property without due process of law, contrary to the provisions of article 5 of the Federal Constitution.
“ 4. Because the pretended order of commitment made by the circuit court commissioner to the sheriff to commit the defendant is not indorsed on one of the bail pieces, and does not otherwise comply with the statute.
“5. Because no costs incurred in the action on the appearance bail were either tendered or paid by the bail or his principal when the application for the order was made.
“6. And plaintiff now adds this further objection, viz., that the order liberating the bail was not indorsed on the second copy of the bail piecé, as required by subsection 3, § 10048, 3 Comp. Laws.”

As to the last-named objection, the order was indorsed on a piece of paper attached to the bail piece. We think the objection too technical.

Counsel say:

‘c The question in this case is whether, after defendant’s forfeiture of the condition in-his appearance bail (the 15 days having elapsed in which to file special bail), and plaintiff has waived his right to proceed against the principal defendant by electing to and actually commencing notion against the appearance bail, the bail has the right to be exonerated upon surrender of his principal. Upon this direct question there is no decision in this Stafe.”

The provisions of our statute in-relation to the giving of bail in civil cases are found in sections 10028 to 10049, 3 Comp. Laws. Section 10047 provides that the defendant may surrender himself, or his special bail may surrender him in exoneration of bail. The following section provides how the surrender may be made. This section was construed in a case, almost the only difference in which from the one before us is that the special bail undertook to make the surrender, while in this case the surrender is made by the surety on the bail bond. The case is Morgan v. Jones, 117 Mich, 59. Section 10049, 3 Comp. Laws, reads:

“ When a bail bond shall have been taken on the arrest of a defendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of his hail, in the same manner, before the same officers, and with the like effect as provided in the preceding section with respect to special bail.”

We think, because of the provision of the statute just quoted, that the case is within Morgan v. Jones, supra.

We are of the opinion .that the action of the circuit court commissioner was authorized.

Order affirmed.

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


author: Moore, J. Ostrander, J.

text:
    PEOPLE v. LASSEN.
    1. Fish — Statutes—Construction—Limitation by Title.
    Act No. 88, Pub. Acts 1899, is not, by reason of its title, which is “An act to amend *' * * ‘An act to regulate the catching of fish in the waters of this State,’ ” limited in its scope to fish caught in the waters of the State, but inhibits the possession of any fish of the prohibited size, regardless of where caught.
    2. Commerce — State Regulation — Fish Laws.
    Act No. 88, Pub. Acts 1899, prohibiting possession of certain fish, is not, though construed to apply to fish lawfully caught in foreign waters, repugnant to the commerce clause of the Federal Constitution (art. 1,. § 8). Ostrander, J., dissenting.
    Error to St. Clair; Law, J.
    Submitted April 27, 1905.
    (Docket No. 190.)
    Decided January 23, 1906.
    Peter Lassen was convicted of violating the fish law and sentenced to pay a fine of $20 and costs.
    Affirmed.

      Avery & Walsh and W. J. Beach, for appellant.

      Alex. Moore, Prosecuting Attorney, for the people.
   Moore, J.

The following is an agreed statement of the facts:

“On the 29th day of June, 1903, the respondent, purchased from one Hitchcock, a Canadian fisherman, 156 wall-eyed pike or pickerel, the whole number weighing 106 pounds. The- purchase was made in the Province of Ontario, in Canada, in the waters of which Province the fish were lawfully caught. Before the fish were purchased, respondent had made a contract to sell them to Prevor Brothers, Boston, Massachusetts. These fish, under the direction of respondent, were brought to his fishhouse on the banks of the St. Clair river, in the city of Port Huron, where he conducts a wholesale fish business, at which place they were taken from a boat in which they had been conveyed over the river from Canada, and placed on the-floor of said fishhouse in the forenoon of June 29, 1903. These fish were kept entirely separate from fish taken from American waters while in respondent’s possession. During the afternoon of said day these fish were weighed by a United .States customs official while in respondent’s fishhouse, and he paid the duty prescribed by United States law upon them, immediately after which the fish were packed with ice in a box under his direction. The box was marked ‘ Prevor Brothers, Boston, Massachusetts,’ and on the same afternoon this box, containing the fish, was delivered to the American Express Company, at respondent’s fishhouse, and billed to Prevor Brothers, Boston, Massachusetts. The box containing the fish was then conveyed by the American Express Company to the station of the Grand Trunk Railway Company in the city of Port Huron, and just as the said express company was loading said box in an express car of said railway company it was seized by Fred E. Fisher, a deputy game and fish warden of. the State of Michigan, and confiscated. The next day said warden went before a justice of the peace of the city of Port Huron and made the complaint on which this prosecution is based.”

The respondent was convicted in the circuit court and brings the case here by writ of error. His claim is:

‘ ‘ First. That there is no Michigan statute making it an offense to have in possession in Michigan fish of said kind and weight lawfully caught in the waters of a foreign country.
‘ ‘ Second. If the Michigan statutes do refer to such fish, they are void, as in violation of the Federal Constitution (article 1, § 8).”

The statute under which defendant was convicted is Act No. 88, Pub. Acts 1899. Its title reads:

“An act to amend sections one and two, and to add sections six and seven of Act number one hundred and fifty-one of the Public Acts of eighteen hundred ninety-seven, entitled ‘An act to regulate the catching of fish in. the waters of this State, by the use of pound or trap nets, gill nets, seines, or other apparatus””

It provides:

The People of the State of Michigan enact: * * *
“ Sec. 2. It shall be unlawful to market or have in possession any sturgeon, * * * ■ any wall-eyed pike or pickerel weighing less than one pound, * * * each in the round.”

The claim is that the title of the act limits the provisions of the statute to fish caught in the waters of this State. We cannot agree with counsel in this view. It is true the title is “An act to regulate the catching of fish in the waters of this State; ” but it is a matter of common knowledge that you cannot tell from its appearance where a fish is caught, and as a method of regulation, and to guard against catching fish of less than one pound weight in the waters of this State, it was competent under the title of this act to prohibit having in one’s possession fish of the prohibited size. As was said by Justice'Long, speaking for the court in People v. Dornbos, 127 Mich. 136, referring to the placing of section 2 in the act:

“It is one of the means intended by the legislature to regulate the catching of fish in the waters of the State.”

See, also, Com. v. Savage, 155 Mass. 278.

We now come to the second question, which is more difficult. Is the statute void because in violation of section 8, art. 1, of the Federal Constitution ? It is said these fish were the subject of foreign commerce, that their seizure by a State official is a State restriction of foreign commerce, and is clearly in conflict with the interstate commerce clause of the Federal Constitution. The caséis ably briefed by counsel, who have collected a large array of authorities. We are also favored with an able article prepared by the learned judge who tried this case, in which the authorities are collected. 60 Cent. Law J. 324.

A careful examination of the authorities shows a wide divergence of opinion. This is illustrated by the two opinions found in People v. Buffalo Fish Co., 164 N. Y. 93 (52 L. R. A. 803), in which the identical questions involved here are discussed. In that case Justice O’Brien wrote an opinion in which he held the statute did not apply to fish taken outside the State, and that, if it did so apply, it would be in contravention of the interstate commerce provision of the Federal Constitution. Parker, C. J., and Landon, J., concurred in this opinion. Werner, J., concurred on the ground that the statute applied only to fish taken from waters within the State. Justice Gray wrote an opinion in which he held that because the fish were lawfully taken in Canada, and were purchased there and imported into the State of New York, upon payment of the duties fixed by the tariff, was not a defense, and that the provisions of the statute inhibiting the possession of the fish were not in conflict with the Federal Constitution. Justices Haight and Martin concurred in the opinion of Justice Gray. The authorities are so fully collated, and the arguments in support of the divergent views of the learned judges are so ably presented, in these two opinions, that we shall not attempt to restate them at length. We do, however, desire to quote briefly from the opinion of Justice Gray as follows:

“ The object of this statute was to protect and preserve certain game fishes during the breeding season; an object, manifestly, in which the people of the State may be presumed to be more or less keenly interested, and which is recognized, as Judge Church observed, in all civilized countries. The purpose is to protect certain fishes within our jurisdiction, with no reference to those of other States or countries. If they may be brought into the State within the close season here, as articles of commerce protected by United States laws, and, therefore, placed beyond the reach of State laws declaring and regulating an internal policy, the result would be to facilitate evasions of the law and to make detection difficult, if not impossible. The general tendencies of human nature, it might not inappropriately be observed, are such as to make necessary so strict a law as to render obedience to the mandate certain. The statute aims at preventing game fishes from being unlawfully taken and exterminated, and any regulation which tends to secure that aim should be regarded as a legitimate and fair exercise of the police power.
“Not an arbitrary, but a wise and politic, purpose is evident in this statutory regulation, touching as it does the interests of the people in a form of food supply, as in a form of sport.” x

As already stated, the authorities are not agreed. One line of authorities is represented by the opinion of Justice O’Brien; the other by the opinion of Justice Gray. The question, however, is not a new one in this State. It was presented in the case of People v. O'Neil, 110 Mich. 324 (33 L. R. A. 696), where it was held, Justice Montgomery speaking for the court, that the statute applied to fish and game taken outside the State, and is within the police power of the State. See, also, State v. Shattuck (Minn.), 104 N. W. 719, and the cases therein cited.

Judgment is affirmed.

McAlvay, Grant, Blair, Montgomery, and Hooker, JJ., concurred with Moore, J.

Ostrander, J.

(dissenting). The record in the case of People v. O'Neil shows that on certain days named respondent, who lived in Detroit, sold in Detroit to a hotel in the same city certain brook trout and quail. Upon the trial, counsel for respondent offered to show that these articles were purchased by respondent in Chicago, and were shipped from that point to Detroit as articles of food. The testimony was excluded, as being immaterial. On the cross-examination, of the respondent witness, he was asked if he knew where the trout were caught or the quail killed, and replied that he did not. In this court, it was contended that if the statute in question there was applicable to the case made by the facts, it operated as a regulation of interstate commerce. It was held that—

“ It is competent for the legislature,'for the purpose of protecting game or fish, to absolutely prohibit the sale of game or fish caught within the limits of the State during a closed season or during the entire year. The question of the right to prohibit the importation and sale of game or fish, with the same purpose, is discussed and the right affirmed in Ex parte Maier, 103 Cal. 476, and the right is also assumed in numerous of the other cases referred to.
“We think the statute is valid, and that the convictions should be sustained, and the court below directed to 'proceed to judgment.”

In Ex parte Maier, referred to (103 Cal. 476), the application of the statute to a case of selling imported game was upheld, upon the express ground that—

“ Petitioner imported the meat into the State, broke the original package, and put the commodity upon the market. It thereupon became property strictly subject to State regulation and control, 'and falls within the denunciation of the "statute. Whether petitioner could have sold the meat as an entire carcass is a question which does not confront us, and which it is not, therefore, necessary to determine.”

In most of the cases involving the application of State statutes passed to protect fish and .game, the legislation has been sustained upon the ground that the State was. the common owner of game and fish, and that such common ownership imparted the right to keep the property, if the State chose so to do, within the jurisdiction for every purpose, to prohibit killing, transportation, possession, and,, generally, to fix the conditions under which any use of or traffic in game might be carried on. It is doubtful if a broader-ground can be asserted. In Geer v. Connecticut, 161 U. S. 519, a case in the decision of which two justices dissented and two did not sit, in which a statute of Connecticut was under consideration, it was said that all ownership of game killed within the State came under the condition imposed that it should not be exported, and confined commerce in such game to internal commerce, and the cases of State v. Saunders, 19 Kan. 127, and Territory v. Evans, 2 Idaho, 658, in each of which it was held that a State law prohibiting the shipment outside the State of game killed in the State violated the interstate commerce clause of the Constitution of the United States, are criticised as not recognizing the fundamental distinction between qualified ownership of game and the perfect ownership in other property, and overlooking' the authority of the State over game killed within the confines of the State, and the power of the State to follow such property into whatever hands it might pass, with conditions and restrictions deemed necessary for the public interest. . In the case of Bowman v. Railway Co., 125 U. S. 465, in which certain legislation of the State of Iowa was considered, it was said:

“ It is not a restriction which only operates upon property after it has become mingled with, and forms a part of, the mass of the property within the State. * * * But the right to prohibit sales, so far as conceded to the States, arises only after the act of transportation has terminated, because the sales which the State may forbid are of things within its jurisdiction.”

It is manifest that State ownership of game and fish is limited to the confines of the State, as is also the operation of all statutes, police or other.' Any regulation which operates upon the right of a citizen of the State to possess or to dispose of game killed in another State must rest for its enforcement upon the proposition that unless enforced other regulations will be rendered nugatory.

If we hold that the statute in question applies to cases of possession of prohibited fish by. a citizen, such fish being intended for sale or for use, or having been caught, killed, sold, or used, within the State, so that the operation of the statute bears some relation to the theory upon which such legislation is alone sustained as valid, and the statute remains in effect as it is in, form a police regulation, we have gone as far as the decision in People v. O'Neil, or in any similar case will warrant us in going. Such a ruling sustains the theory of the qualified property of the citizen in game and fish, and, also, the power of the State to subject its citizens to'regulations calculated to make effectual the conditions of private ownership imposed by the legislature. In the case before us, the admitted facts negative the killing of the fish within the State, and negative their introduction into the State, or their possession within it, for sale or use therein. This is otherwise to say that the facts negative any infraction of the law, even when it is construed in harmony with grounds thus broadly asserted.' It is admitted that the fish were lawfully caught, and were by the respondent lawfully purchased in a foreign country, with the purpose to ship them, according to the terms of a contract for their sale already made, to citizens of Massachusetts, and that the identical fish, and no others, when seized at Port Huron, had been, so far as Federal regulations are concerned, lawfully imported into the United States, and were actually in transit to the point of their original destination in Massachusetts and to the persons to whom they had been sold, in the possession of a common carrier. The construction which must be given the statute, in order to sustain the conviction of respondent, is that it prohibits a citizen of Michigan from contracting to sell citizens of Massachusetts fish to be purchased in Canada and from completing such a contract, when made, by transporting the fish through Michigan on their way from Canada to Massachusetts. It does not seem to me that the decision in People v. O’Neil is authority for such a construction. If it is not, we should hold, I think, that the statute was intended to have no application to facts like those in the cáse at bar, and that the conviction should be set aside and respondent discharged.

Carpenter, C. J., took no part in the decision.


author: Moore, J.

text:
    MURRAY v. FALES.
    Contracts — Enforcement —Injunction—Estoppel—EvidenceSufficiency.
    On a bill to enjoin the payment of royalties for the right to sell and administer certain remedies, evidence examined, and! held, to sustain complainant’s claim that defendant represented to him that by making a certain purchase he would become ¡sole owner of the right.
    Appeal from Kent; Perkins, J.
    Submitted May 4, 1905.
    (Docket No. 141.)
    Decided January 23, 1906.
    Bill by Dennis Murray, individually, and as trustee of Charles M. Beckwith, against James W. Fales and the Keeley Institute Company of West Michigan, to restrain the collection of royalties. From a decree for complainant, defendant Fales appeals.
    Affirmed.

      George E. Nichols, for complainant.

      James H. McDonald and Lloyd L. Axford, for appellant.
   Moore, J.

The bill of complaint in this case was filed in complainant’s own behalf and as trustee of the interests of Charles M. Beckwith. It is an injunction bill. After a hearing a decree was entered containing the following provisions:

“ 1. That a perpetual injunction issue out of and under the seal of this court enjoining the defendant, the Keeley Institute of West Michigan, from paying over any moneys as royalties on the contract mentioned in said bill of complaint and answer and received in evidence, wherein the said Keeley Institute of West Michigan contracted to pay certain royalties to George W. Fales, which said contract was afterwards assigned to said James W. Fales, the defendant herein; and that said Keeley Institute of West Michigan, from the time of the entry of said decree, do pay, and is hereby required to pay, said royalties under said contract to the complainant assigned.
“2. That the said complainant, Dennis Murray, and Charles M. Beckwith, are herewith decreed to be the sole and exclusive owners of the franchise and rights upon which the 1st day of December, A. D. 1891, were, by the Leslie E. Keeley Company, a body corporate of the State of Illinois, set over, transferred, and conveyed to the Keeley Institute, a body corporate under the laws of the State of Michigan, in pursuance of a certain contract upon said date entered into by and between said Leslie E. Keeley Company and the said Keeley Institute, which said contract in and by its terms granted and conveyed to said Keeley Institute, its successors or assigns, the sole and exclusive agency for the sale and administration of Dr., Leslie E. Keeley’s chloride of gold remedies in the State of Michigan; and that the said defendant James W. Fales has no right, title, or interest in and to any part of the territory of the State of Michigan, or the title to any portion of said franchise, by reason of any conveyance to him, by the said Keeley Institute, or in any other manner; and that the entire rights of said Janies W. Fales in and to the entire State of Michigan, held by him in any manner Or form, are hereby declared and decreed to be in the said complainant and the said Charles M. Beckwith.
“ 3. That the said James W. Fales pay to the said complainant andthesaid Charles M. Beckwith all moneys which the said Keeley Institute have heretofore paid to him under protest as royalties within 60 days after the entry of this decree, which said royalties amount to the sum of $170.88, together with the interest thereon from the date of each respective payment at the rate of 5 per cent.
“4. That the clerk of this court, to whom there has been paid certain royalties from time to time by the order of the court, is hereby directed to pay to the said complainant, Dennis Murray, and the said Charles M. Beck-with, all of the moneys in his hands which have been paid to the said Keeley Institute under the order of the court. ''
“5. That the said Dennis Murray and Charles M. Beck-with are hereby declared and decreed to, be entitled to hereafter receive from the Keeley Institute of West Michigan any and all royalties that may become due under the terms of said contract between said company and the said George W. Fales, and are authorized and empowered to collect from said company said royalties, and in every other way are hereby declared to be the owners and entitled to all of the benefits and subject to all the liabilities of the said George W. Fales and his assignee under the terms of said contract.” '

From this decree defendant Fales has appealed.

It was the claim of complainant that Mr. Beckwith was interested as a stockholder in and manager of the Keeley Institute Company of West Michigan, doing business at Grand Rapids, and a like institution in Detroit. The rest of his claim cannot be better stated-than by quoting the substance of the testimony of Mr. Beckwith as follows:

“ I took charge of the business on May 6, 1902, at Detroit, at the corner of Cass street-and Lafayette avenue, and continued it until it was closed November 8th of the same year. While operating the Detroit institute I happened to go in James W. Fales’ place of business to buy some office supplies, and met Mr. Fales himself. * * *
“ Mr. Fales waited upon me, and after making the purchases I asked that they be sent up to the Keeley Institute, giving him the address. Mr. Fales wanted to know if I was connected with the institute, and I told him I was running it. He stated: That he had formerly been in the Keeley business. He was one of the original purchasers of the Keeley rights in the State of Michigan, and that he was one of the parties that opened the first institute in Michigan at Northville, and that he was actively connected with the business for several months at that place, until some of the other parties interested wanted to move from there. Their intentions were of going to Ypsilanti. That he did not approve of that, and he, in fact, wanted to remain where they were. He said that Mr. Waring was also of the same opinion; but, however, the-institute was moved from Northville to Ypsilanti, and that he and Mr. Waring, when the institute was moved to. Ypsilanti, opened institutes at other points, Mr. Waring at Alma, and he at Benton Harbor. He said that he operated the Benton Harbor institute for a year or two, and it did not pay, and that the parties who had purchased an interest at Ypsilanti became dissatisfied and brought suit against himself, Mr. Radford, and Mr. McVittie, the parties that were the owners of the Keeley franchise in the State of Michigan, and that he closed up the institute at Benton Harbor, and as the business at Ypsilanti was in a bad way or in debt, or something of that sort, that they entered into an agreement with Mr. Waring, selling out to him all their rights in the franchise for the State, and Mr. Waring closed his institute at Alma and moved the Keeley business for the State of Michigan to Detroit, that he did not believe that Mr. Waring had ever paid for it, and that the facts were that he and Mr. Radford and Mr. McVittie were the sole owners at that time of the franchise for the State of Michigan. And he questioned me in regard te how I was operating. I told him that I had a lease from Mr. Waring. That Mr. Waring had represented to me that he was the absolute owner of the franchise for the State of Michigan.
Q. Did you tell him the terms of the lease ?
.“A. Yes; he asked me what I was paying. I told him I was paying Mr. Waring $30 semi-monthly, payáble on the 1st and 15th of each month and also paying him a royalty of $2.50 per month on every patient treated for the first year. After the first year it was to be $5. * * *
‘ ‘ The statement Mr. Fales made was he did not believe my lease was worth anything, that he was positive that Mr. Waring never had carried out the terms of this contract with himself, Mr. McVittie, and Mr. Radford, and although he did not know just how the matter stood, but that was his belief. I asked him why he could not give me definite information in regard to it, and he said this deal made with Mr. Waring was consummated several years before that — I think he gave me the year 1894 — and that the transaction was carried on by Mr. Radford, and that Mr. Radford had all the papers, and his memory was very poor in the matter; that he could not tell just what there was to it; but that Mr. Radford could give all the facts in the case. I asked him, if he could not find it out, find out and let me know, and he told me the better way would be for me to go right to Mr. Radford. * * *
“He said the best way to do would be to buy up the rights of himself and Mr. McVittie and Mr. Radford and he said he would be willing to sell his interest, and he thought that Mr. Radford would do the same and Mr. McVittie, and he says: ‘You go and see Mr. Radford and any deal you make with him will be perfectly satisfactory to me, as we will probably see each other, and he will handle the deal. ’ * * * As far as he was concerned, he would be glad to see the franchise (for the State) sold to some party that was interested in the work and would go ahead and run it in a way he thought it ought to be.
Q. During that conversation was the matter of your connection with the Keeley Institute of West Michigan taken up and talked about?
“A. Yes.
“ Q. What was said about that ?•
A. Well, Mr. Fales asked me how I came to buy in the Keeley business, and I told him that I was financially interested in the Keeley Institute at Grand Rapids. *
* * Mr. Fales told me that he did not know there was an institute running in Grand Rapids. He said in fact he did not know there had been any other institute in Michigan until I told him of it, since the institutes were closed at Benton Harbor and Alma and Ypsilanti, and one of them in Detroit. He asked me how long it had been at Grand Rapids, and I told him it had been opened here in the year 1900. And he wanted to know how the business was doing here. I told' him that business had not prospered in Grand Rapids; that they had just about been able to run along and keep the institute going; that the expenses here at Grand Rapids of running the institute were very heavy, and that there had been times when I thought that perhaps the institute would have to close; the rentals and other expenses could hardly be met; that, in fact, I had to personally borrow money that spring in order to pay certain accounts or indebtedness of the institute that was crowding. He wanted to know how extensively interested I was, and I think he asked me about the business end of it. I told him it was a stock company, and I had been the owner up to six months before that of a small portion of the stock, but that before going to Detroit I had purchased a sufficient amount of the stock, so that I owned a controlling interest here at Grand Rapids. He asked me how I liked the business, and I told him I liked it, but that under the conditions in which I had been operating the institute that it had not been very pleasant, the difficulties were so great in the way of keeping them going; * * * that after the institute had been — or the company had been — organized here that it was discovered that we did not know anything here at Grand Rapids except we had a lease which allowed the company to operate an institute here at Grand Rapids under certain conditions which necessitated our running the business continuously; * * * that I had learned about the chance to get hold of the Keeley Institute in Detroit; that I had gone down there and seen Mr. Waring and under the representations he had maae to me I had entered into the lease which I had there, and that was the situation. Well, Mr. Fales told me: ‘ I don’t know anything about the Grand Rapids Institute; never heard of it; didn’t know there was an institute there. ’ He said: ‘ I didn’t know there was an institute running in Western Michigan after the time I closed the institute there.’ I said to him it was a very funny condition of affairs. We had got a lease in Grand Rapids, we are running there, and you tell me that'you are one of the owners of the Keeley rights in the State of Michigan, and that there is no authority for that lease, of running that institute. He said, ‘ That is a fact.’ He says: ‘ I don’t think you have got any rights there at all.’ I told him where we got them. I told him we got them through George W. Fales, of Benton Harbor. I had, during the time I had been connected there, been paying royalties to him for patients treated. He said he never understood that George Fales got any royalties, or that there was any such deal in existence. ‘Well,’ I said to Mr. Fales, ‘ If that is the case, I don’t see but what the only thing for me to do is to close up this institute here at once and abandon it, and I do not propose to lose the money that I have invested in Grand Rapids. Somebody is going to settle. Somebody has been doing crooked work here.’ ‘ If Mr. George Fales never had any right to issue a lease like that,’ he says, ‘he has got to settle with me,’ and I says, ‘ I am not going to lose anything. Of course, if I could buy the rights for Michigan, why it would enable me to save the money I have got invested in Grand Rapids and at the same time continue and run the institution in Detroit.’ ‘Well,’Mr. Fales said to me, ‘ why don’t you buy them ? ’ I told him I was not a man of very much means, and I did not see how I could. ‘Well,’ he says, ‘I think, Mr. Beckwith, that you can buy the rights without any trouble.’ He says, ‘ I am perfectly willing to sell my interest in the Michigan franchise, and I think Mr. McVittie and Mr. Radford are.’ ‘If you go to Mr. Radford,’ he says, ‘ I guess you will probably find out that you can make a deal.’ ”

He further testified:

“ I called at Mr. Radford’s office. * * * I introduced myself to him; I told him that I was there to find out the situation in regard to the ownership of the Keeley franchise for the State of Michigan. Mr. James W. Fales had sent me to him, and told me he was a part owner of it, and that he and Mr. McVittie owned the balance of the interest. He says: ‘That is true.’ * * * ‘Mr. Fales tells me you have got all the papers in connection with this sale that was made to Mr. Waring, and my lease here with Mr. Waring is for a term of years. Mr. Fales informs me he doesn’t think it is worth anything; my lease is void.’ ‘ Well,’ he says, ‘ I think it is.’ And he says, ‘ Just excuse me a minute,’ and he went on into his other office and came back with the files, opened them up. He says: ‘ Here are all the papers jn connection with it. Now, whatever you want to know,’ he says, ‘I think I can tell you in a very few minutes.’ I says: ‘ Are you gentlemen in a position to give a contract for the sale of this franchise for the State of Michigan?’ Hesays: ‘Yes, sir; here is the contract we made with Mr. Waring, and he has never paid it.’ Then I told him of my talk with Mr. Waring. I says: ‘Mr. Waring says he owns the franchise; that this contract is outlawed.’ Mr. Eadford, laughing, said: ‘He doesn’t know what he is talking about.’ He says: ‘This contract is under seal and is just as binding as the day it was made. Now,’ he -says, ‘ if you want to buy this franchise, we are in position to sell it to you.’ I says: -‘Mr. Eadford, I would like to know what papers you have and what papers you have got here.’ He says: ‘Here is the contract with Mr. Waring, and when we sold this to Mr. Waring we sold him everything that pertained to the Keeley Institute for the State.’ He says: ‘ Here is the stock of myself and Mr. Fales and Mr. McVittie.’ Hesays: ‘We hold as collateral; we were to hold it until this contract was paid; and,’ he says, ‘ here are some other papers; here is a mortgage that runs to us.’ Hesays: ‘ Here is the lien on the franchise.’ ”

His further testimony is that he was shown the papers and he was assured they were in a condition to be foreclosed against Mr. Waring, and, when this was done, the purchaser would be the owner of the right to use the Keeley remedy for the entire State of Michigan; that he made the purchase, and afterwards settled with Mr. Waring and obtained his interest; and that after doing so Mr. James W. Fales obtained an assignment from Mr. George W. Fales of his contract with the Keeley Institute Company of West Michigan, and asserted his right to collect royalty, and hence this suit. It is the claim of James W. Fales that before his talk with Mr. Beckwith he had become the owner of the right to use the remedy in the western part of Michigan, which by various leases had come to his brother, George W. Fales, and that he did not sell his interest therein to Mr. Beckwith, that the sale made to Beckwith was indicated by the papers which were drawn, and that they did not purport to convey the interest to the entire State. He also claims he had no actual interest in the eastern part of the State but simply represented Mr. McVittie.

We think the question is, Was it represented to Mr. Beckwith by Mr. Fales that Mr. Fales, 'Mr. McVittie, and Mr. Radford were the owners of the right to use the remedy for the State of Michigan, and that by making the purchase of them which Mr. Fales proposed Mr. Beck-with would succeed to that right ? The circuit judge in whose presence many of the witnesses, including James W. Fales and Mr. Beckwith, testified, found Mr. Beck-with’s version of the transaction was true. There are many things in the record to corroborate Mr. Beckwith. On the cross-examination Mr. Fales testified, among other things:

“ Some time in the fall of 1902, 1 do not recall the date, Mr. Beckwith came into my store, and during the course of some purchases there the matter of his being connected with the Keeley Institute in Detroit came up. * * * On that day he told me that he was operating here in Grand Rapids under a contract or some authority, and I told him I did not know about that. I did not know anything about the institute here in Grand Rapids. At least if I did, I had forgotten it, and I wanted to inquire and would inquire of my brother about the transfer. I think that is about all that was said; that was the first interview I had with him. I intimated to him that he had better inquire of Mr. Radford about Mr. Waring’s rights in the eastern .part of the State. I cannot say just what I did say. No; he did not explain any details to me about the Waring purchase. I do not recall his telling me then that he came down to Detroit and had entered into a lease with Mr. Waring or giving me the terms of the lease. I do not think he did so at the second meeting, though he may have done so. I am not positive.
Q. Didn’t you say to him you did not understand that Mr. Waring had any rights, that he had forfeited the same, and that you and Mr. McVittie and Mr. Radford were the owners of that entire matter ?
“A. I do not think so.
Q- Will you say you did not make that statement ?
“A. Well, I can’t say that I did not.
Q. You can’t say that you did not ?
A. No, sir.
Q. And didn’t you also advise him to go and see Mr. Radford, and that Mr. Radford would tell him what the situation was and explain it to him ?
“ A. Yes; I told him that I knew nothing about it; that he better go and see Mr. Radford because he had all the papers and everything in hand; that I had understood — ■
Q. And didn’t you in that same talk say to him that you did not know — that you had no recollection or could not understand — how any one had any right to give him any lease to operate an institute in any part of the State ?
“A. Yes, sir. * * *
Q. His statement at the time that he first talked with you and the reason be went to Mr. Radford was on account of your suggestion that the parties would be willing to sell. You have no recollection of any such statement being made to him ?
“A. No; I do not remember it.
Q. Would you say you did not make any such statement ?
“A. No; I will not. I do not know why I should tell him I owned Michigan. Why was it necessary I should tell him I owned Michigan as long as there was no controversy about it ?
Q. You understood from your talk with him, didn’t' you, that he was operating over here in Grand Rapids by some arrangement with your brother, George W. Fales ?
“A. Yes; I didn’t want to bring any reproach upon my brother. I wanted to find out, and I understood that he was paying George W. Fales royalties. I do not think he mentioned that he was desirous of getting the other side of the State so there would not be any competition of ownership. He had leased it from Mr. Waring. I think I may have intimated to Mr. Beckwith that Mr. Waring did not have any right. No; I did not give him to understand or intimate that my brother did not have any rights. I told him to go and see Mr. Radford in regard to his contract with Mr. Waring. There wasn’t any necessity for distinguishing the territory at all, because I owned the western part of the State and had no interest in the eastern part of Michigan. I simply put him upon inquiry in regard to his property that I supposed he had bought, I got the western part of the State by lapsing of the contract for certain payments, and, if those payments were not made, the property wás to revert to me; I did not take any steps to declare a forfeiture of that contract. It is as I supposed declared itself.
Q. Then, if you owned and understood you owned, and it was agreed and had been for years between your brother George and yourself, as you state here, that you were the owner of that territory, will you explain why you went to him and got an assignment of that contract and of his rights on the 4th day of October, 1902 ? * * *
“A. Well, I think he sent me an order on Mr, Beck-with. I am not positive whether he sent me this assignment which has been read in evidence. It was executed at Benton Harbor. I do not remember whether he mailed that to me, or brought it to me. I think he mailed it to me.
Q. Have you got the letter, or copy of the letter, that you wrote your brother at that time, with you ?
A. No, sir, I have not. I think I kept a copy of it, I am not sure. I did not ask him to make this assignment. He made it of his own free will and accord. It was voluntary. * * * My brother explained to me that he thought I paid in a good deal of money there, and any benefits that were accruing I should have them. After-wards, when he visited me, that was the explanation.”

The assignment from George W. Fales to James W. Fales recites a consideration of $1 and other valuable consideration. There is no claim anything was in fact paid at the time it was made. The case is not free from doubt, but we think the complainant has established his case by a strong preponderance of evidence.

The decree is affirmed.

Carpenter,C. J., and Me Alva y, Blair, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    DAWSON v. FALLS CITY BOAT CLUB.

    1. Adverse Possession — Instructions.
    In an action of ejectment for a strip of land along the boundary between two parcels, title to which is claimed by defendant by adverse possession, an instruction that if, after defendant moved on the premises, he caused the fence that was then existing between the parcels to be moved still farther towards plaintiff’s land, his claim of possession would be a shifting one, and not distinct, and he could not maintain his claim of adverse possession as to “that property,” held, not sufficiently specific.
    2. Same — Evidence.
    Where plaintiff in ejectment in effect admits that, unless a certain agreement is found to have been made, she is not en-, titled to recover all the land described in her declaration, but claims that, in any event, there is still a strip of the land which she is entitled to recover, she must point out the par- . ticular portion claimed by her.
    Error to Chippewa; Steere, J.
    Submitted November 8, 1905.
    (Docket No. 98.)
    Decided January 23, 1906.
    Ejectment by Carrie Dawson against the Falls City Boat Club, Eben S. Wheeler, and Clara P. Wheeler. A judgment for plaintiff was affirmed by this court (125 Mich. 433), and defendants demanded a statutory second trial, resulting in a judgment for plaintiff, which was reversed on error (136 Mich. 259). A third trial having resulted in a judgment for plaintiff, defendants bring error.
    Reversed.

      George A. Cady (John H. Goff, of counsel), for appellants.

      E. S. B. Sutton (John W. Shine, of counsel), for appellee.

       Rehearing denied June 4, 1906.

   Ostrander, J.

Upon a former trial of this case (125 Mich. 433) it was a debated question whether the strip of land, the subject of the controversy, was in fact a part of private land claim No. 106, for which plaintiff had the paper title, or of private land claim No. 105, paper title for which was in defendant Wheeler. Upon the last trial" the defendants based their defense upon the fact of adverse possession of said strip. The declaration describes two parcels of land — one a triangular strip 617.8 feet long and 15 feet wide at its base, extending from Portage, avenue north to the shore line, so called; the other a strip of land bounded on the south by the base line of said triangle and extending thence north to the channel bank of St. Mary’s river. The jury returned a verdict for plaintiff against all defendants for both parcels of land. In 1867, one Easterday, the owner of claim No. 106, built a fence between that claim and claim No. 105, extending from Portage avenue north to some point short of the channel bank, probably to a point near the base of the land first described in the declaration, supposing the line of the fence to be the true line between these claims. Plaintiff, as part of her case in chief, offered evidence, which is undisputed, that she and her grantors occupied claim No. 106 up to this line fence, and that defendant Wheeler and his grantors occupied claim No. 105 up to this fence. At some point between Portage avenue and the channel bank, probably at or near the base of the said triangle, there was a north and south fence across claims 105 and 106, and occupancy of the portion of the disputed territory north of this fence is claimed by plaintiff to have been less clearly defined and evidenced than of the portion south of the fence. She introduced evidence tending to show that in 1879 or 1880, 12 or 13 years after th¿ line fence was built, her grantor having discovered that t,he fence was not on the true line of the properties as deeded, the true line was by the adjoining proprietors evidenced, admitted, and agreement made to build later a new fence on the true line; that thereafter actual occupancy continued precisely as before to the time of beginning this suit, unless, in 1889, defendant, in repairing or extending this line fence, moved it still farther over upon claim No. 106. Defendants introduced evidence contradicting the alleged discovery of the wrongful location of the line fence and the alleged agreement concerning the true boundary line, and tending to show that successive purchasers down to defendant Wheeler supposed they were buying and were put in actual possession of land bounded on the east by the said line fence; that the fence had not been moved to the east.

Appellants do not complain that the questions of fact thus raised were submitted to the jury, but complain of the language used in instructing the jury concerning the effect to be given the not very satisfactory evidence of moving this line fence. The court said:

“ There is some claim in this case that the fence which was erected by Mr. Easterday, as appears by the undisputed testimony, upon the then supposed line between these two private land claims, has been moved in later years. The undisputed testimony seems to be that this fence was built by Mr. Easterday in 1867, as he believed at that time, upon the true line. It would be the law that, proof being given of the building and existence of such a fence at that time, it is presumed to continue where it was then erected, and presumed to be upon the true line, in the absence of anything to the contrary, under the testimony as given. But whether or not it has at any time been moved is a question of fact for you; and if you find that, after Mr. Wheeler moved upon the premises, he caused this fence that was then existing between claims 105 and 106 to be moved still farther to the east, his claim of possession would be a shifting one, and not distinct, and he could not maintain his claim of adverse possession in this suit as to that property. But that is a question of fact for you whether the fence has ever been moved or not.”

It is contended that the jury must have understood the charge to mean that if they found the fence had been moved the defendants could not recover. Counsel for plaintiff say that the charge sufficiently indicated to the jury that by the term “that property” the court meant the additional land, if any, taken in by moving the fence. They maintained that the burden was upon defendants to show to what land the claim of adverse possession extended, and that, if there was no proof of the precise limits of the land claimed to have been adversely occupied, the jury were required to find for plaintiff. Besides the testimony that at the time of beginning this suit, in 1898, the fence was in some places farther to the east than it had been years before, there was testimony tending to show that at the time of the alleged agreement about the boundary line the fence was, at Portage avenue, some inches' on defendant’s property, and that when the suit was begun it was on the true line. The jury might have believed that the fence was moved at Portage avenue, and it would still be true, since plaintiff claims none of the land on claim No. 105, that such moving of the fence to the true line ought to affect the real issue not at all. We think the language used by the court was likely to be misunderstood by the jury, and that the direction was, in any event, not sufficiently specific.

The testimony of Easterday, the man who built the fence, and who testifies to the agreement made between himself and defendant Wheeler’s grantor, is that by a proper survey, with reference to which said agreement was made, ‘c we found the old fence was 18 inches too far to the west at Portage avenue and at the north end it was 15 feet too far to the east. * * * The Ripley survey of the line between 105 and 106 and Carleton’s second survey were virtually the same.” This seems to indicate precisely such a strip as is now described in the declaration, except that at Portage avenue the line claimed begins at the true boundary, instead of 18 inches to the west of the true boundary. The fence was built on a line given to Easter-day by a surveyor. Easterday, in relating the circumstances of the boundary line agreement, was talking about the fence which he built in 1867. His testimony is to the effect that the owner of claim 105 agreed with him that'he would thereafter occupy that part of the land east of the true boundary line in recognition of the true line and until the fence should become decayed; that the fence remained in the same place until 1884, when he sold claim 106 to Dawson, and when defendant Wheeler purchased claim No. 105. There had been, in 1884, 17 years of occupancy with that fence as the dividing line. No one fixes the time of moving the fence earlier than 1889, which adds five years to the actual occupancy of the same strip. Plaintiff proved a certain occupancy by defendant and his grantors of certain lands described in her declaration for the required period, and attempted to avoid the legal effect of such occupancy by evidence that it was not, because of an alleged agreement, adverse. The land to which the alleged agreement related appears to be the same land described in the declaration. If it is not, and if the plat, which indicates by a red line and by statement the “line of old fence,” does not mean the Easterday fence, and also the east boundary of the strip described in the declaration — if, in other words, plaintiff claims that, even if the jury find the alleged agreement not to have been made, there is still a strip of the described land, which she is entitled to recover — she should, upon a record like the one before us, point out the particular portion claimed. She in effect admits that unless a certain agreement is found to have been made she is not entitled to ■ recover all the land described in her declaration. If the jury found there was no such agreement, what land was she entitled to recover ?

The other errors assigned have been examined. Discussion of them will not be profitable. The charge on the whole favorably presented defendants’ theories, and is not open to the criticisms made. It is clear that the answers to special questions and the general verdict can stand together.

We feel constrained, for reasons stated, to reverse the judgment and grant a new trial.

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


text:
    SOUTH GRAND RAPIDS IMPROVEMENT CO. v. MICHIGAN CENTRAL RAILROAD CO.
    Ejectment — Burden of Proof — Adverse Possession.
    In ejectment against a railroad company for a strip of land along its light of way, where plaintiff shows a record title from defendant’s grantor to the parcel through which the railroad runs, excepting the right of way, and introduces by stipulation a map of the right of way made by defendant’s engineers, according to which the original right of way did not include the land in dispute, a prima facie case for plaintiff is established, and the burden is on defendant to show title by adverse possession.
    Error to Kent; Wolcott, J.
    Submitted November 17, 1905.
    (Docket No. 142.)
    Decided January 23, 1906.
    Ejectment by the South Grand Rapids Improvement Company against the Michigan Central Railroad Company. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Taggart, Denison & Wilson, for appellant.

      Knappen, Kleinhans & Knappen, for appellee.'
   Grant, J.

This is an action of ejectment to recover a strip of land 1,500 feet long by 10 feet wide, along the westerly side of the defendant’s right of way in the city of Grand Rapids. One of plaintiff’s grantors conveyed to the defendant a right of way 100 feet wide through the -quarter section of land upon which the property in dispute is located. The subsequent deeds from such grantor to the plaintiff excepted from them the defendant’s right of way. The exception did not locate the right of way. Plaintiff claims the record title. It introduced its title deeds, and, by stipulation, a map of the defendant’s right of way, made by its own engineers. According to this map, the original right of way did not include the land in dispute. Defendant’s claim appears to be based upon adverse possession, claiming that the land in dispute had been inclosed by a fence as a part of its right of way for more than 15 years. Plaintiff claims that the fence as it now exists was removed to its present location 12 years ago, and that therefore defendant had not obtained title by adverse possession.

The court instructed the jury that plaintiff had made out a prima facie case, and that the burden of proof was upon, the defendant to show adverse possession. We think the instruction correct. The correctness of its own map does not appear to have been disputed by the defendant. Plaintiff’s deeds and the map showed that this land was not originally included in the defendant’s right of way. This being so, the defendant could obtain title only by adverse possession, and the burden of proof to sustain such title was clearly upon it.

Judgment affirmed.

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


text:
    PEOPLE v. BROWN.
    1. Rape — Evidence—Other Offenses — Subsequent Acts.
    In a prosecution for rape, evidence of subsequent acts of sexual intercourse between defendant and prosecutrix is inadmissible.

    2. Criminal Law — Trial—Argumentative Instructions.
    In a prosecution of a negro for the alleged rape of a white girl, an instruction that prosecutrix is a little girl; that her condition must draw on the sympathy of any moral man, and, if she is in the family way with a colored man, it makes it still worse; that the jury are entitled to consider the fact that .she acknowledges that she is in the family way from a colored man as bearing on the truth of her story, and whether it would be natural for a young girl to acknowledge that, etc., — is erroneous as argumentative.
    Error to Van Burén; Carr, J.
    Submitted November 16, 1905.
    (Docket No. 251.)
    Decided January 23, 1906.
    Ela Brown was convicted of statutory rape, and sentenced to imprisonment for two years in the branch of the •State prison at Marquette.
    Reversed.

      Anderson & Warner, for appellant.

      John E. Bird, Attorney General, and Bussell M. ■Chase, Prosecuting Attorney, for the people.

      As to evidence of other crimes in criminal case, see People v. Nagle, 137 Mich. 88, and note to People v. Molineux (N. Y.), 62 L. R. A. 193.

   Hooker, J.

The defendant was convicted and sentenced to two years’ imprisonment for the offense of statutory rape; the girl being a few days under 16 years of age according to the testimony upon the subject. The act was proved by her own and other testimony, and, as mo testimony was offered for the defendant, it is not in •any way contradicted. The time fixed was late in June, 1904. Her sixteenth birthday was July 15, 1904.

The first error assigned relates to testimony of other -acts of intercourse, all after July 15, 1904, and proof by a physician that she was pregnant in March and May, 1905, together with her own testimony that she had sexual intercourse with the defendant several times, and that she believed herself pregnant, and, if so, he was the cause of it. The judge admitted this testimony upon the theory that it tended to show the relations of the parties, and corroborate the testimony regarding the offense charged, .and he instructed the jury that:

“You are to consider this evidence and give it such weight as you think it entitled to, in determining whether this respondent did or did not, on or about the date ■charged,'have intercourse with Pearl Mull.”

The Michigan authorities supposed to support the ruling, which have been brought to our notice, are the following: Badder v. Keefer, 91 Mich. 614; People v. Hubbard, 92 Mich. 326; People v. Schilling, 110 Mich. 412; People v. Craig, 116 Mich. 388; Matthews v. Detroit Journal Co., 123 Mich. 608; People v. Jamieson, 124 Mich. 164; People v. Elco, 131 Mich. 520; People v. Dupounce, 133 Mich. 2; People v. Stison, 140 Mich. 216.

We may divide these into two classes of cases, civil and criminal. We will first discuss the former. Badder v. Keefer, supra, was a civil action for seduction. The question ruled upon is made clear by the ruling, which was as follows:

“ It was competent for plaintiff to show by the witness Nora that she yielded to defendant’s solicitations under promise of marriage, and also to show subsequent acts of illicit intercourse. This is a civil case, and the rule stated in People v. Clark, 33 Mich. 112, a criminal prosecution for seduction, does not apply.”

This testimony was admissible as bearing upon the question of damages. It was competent to receive this as a part of the res gestse, as it constituted a part of the transaction, which was a continuing act or relation following and growing out of the seduction and promise. See Kennedy v. Shea, 110 Mass. 147; Blagge v. Ilsley, 127 Mass. 191; Lavery v. Crooke, 52 Wis. 612; Klopfer v. Bromme, 26 Wis. 372; Davidson v. Goodall, 18 N. H. 423; Hewitt v. Prime, 21 Wend. (N. Y.)79; White v. Murtland, 71 Ill. 250; Stoudt v. Shepherd, 73 Mich. 598.

Several of the cases are bastardy proceedings, which are classed as civil proceedings, or at least not criminal. People v. Harty, 49 Mich. 490; In re Cannon, 47 Mich. 485. The cases of Badder v. Keefer and People v. Schilling related to previous acts only, and therefore need no discussion. In the Case of Jamieson, supra, it was said:

“Upon the trial respondent’s counsel objected to the introduction of testimony showing acts of sexual intercourse about the 1st of October following. Respondent absolutely denied any sexual intercourse with the complainant. Acts of intercourse and undue familiarity both before and after the alleged act resulting in conception are admissible, as bearing upon the probability of the intercourse at the time stated in the complaint.”

This case clearly holds that such testimony is admissible to prove the former act, and, unless there is thought to be a distinction between bastardy cases and criminal cases, which admits of a different rule, is an authority in point. It is noticeable that both cases cited in support of the rule are distinguishable. Thus, People v. Schilling, supra, related to a previous act, about which the authorities agree, while Matthews v. Detroit Journal Co., supra, was a libel suit, where the subsequent act did not involve sexual intercourse, but only friendly or intimate conduct, though improper, and moreover the testimony was offered by the defendant, and was well calculated to mitigate damages. It is fair to state, however, that the case holds that it was admissible to prove a former act of adultery, and that it is supported by several criminal cases cited from other States.

The case of People v. Stison, 140 Mich. 216, was a charge of incest. Complaint was made of the admission of evidence of her pregnancy and the birth of a child. The opinion intimates that this evidence standing alone might not have been admissible, but in connection with other facts it was. These facts were that the pregnancy was probably the result of the act charged; that the girl went to a hospital in another town under an assumed name; that defendant corresponded with her under that name while she was there, deceiving her parents by saying that he did not know her whereabouts. An admission that he was the father of a child thus begotten would be admissible, and these circumstances were convincing as tending to show a recognition of the relation charged. This case is not in point, therefore. Upon the other hand, we find a number of cases denying the admissibility of such testimony.

In People v. Jenness, 5 Mich. 306, there is an implication that the testimony should be limited to previous acts. See, also, Templeton v. People, 27 Mich. 502.

In People v. Clark, 33 Mich. 112, a seduction case, it was distinctly held that previous, but not subsequent acts were admissible; and see Boyce v. People, 55 N. Y. 644, for a similar case, and People v. Schweitzer, 23 Mich. 301, where the rule was applied in a larceny case.

The question was squarely raised and decided in the case of People v. Etter, 81 Mich. 570, a case of statutory rape, and the case was reversed, for that and other reasons.

In People v. Fowler, 104 Mich. 449, an adultery case, the same rule was announced, as it was also in the later case of People v. Payne (seduction), 131 Mich. 474. See, also, People v. Bressler, 131 Mich. 390.

Counsel for the people claim that this testimony was admissible as tending to' show the relation of the parties (none the less so because it involved sexual intercourse), citing People v. Elco, 131 Mich. 519; People v. Hubbard, 92 Mich. 326; People v. Craig, 116 Mich. 388.

In People v. Hubbard, supra, such testimony (not involving sexual intercourse) was held admissible. The case of People v. Craig cannot be said to be in point. The testimony complained of was not offered by the prosecution, but by the defense to discredit the complaining witness.

In People v. Elco, supra, the writer of the opinion cited both classes of cases and sought to distinguish them, evidently not intending to overturn the cases of People v. Craig, People v. Etter, and People v. Fowler. From this review of Michigan cases, it would seem that the Jamieson Case is the one most nearly in point, and that apparently a distinction has been attempted between testimony showing subsequent sexual intercourse, and that showing other friendly relations. The testimony was incompetent, and should not have been admitted.

In his charge, the judge said:

“As to the sexual intercourse: You know what she said: That it happened after the mother died; happened before they went to Kalamazoo on the 4th. Now you can look at that. Why, she is anyhow a little girl, and it must draw on the sympathy of any moral or model man to look upon that little girl in the family way, and, if she is in the family way with a colored man, it makes it still worse. Then, gentlemen, as bearing on the truth of her story, you can consider the fact that she acknowledges to you that she is in the family way from a colored man. Would that be natural? Would that be natural for a young girl to come up and acknowledge that ? You can consider that. His case — this case — has been tried twice. Now, I have said enough to you on that point. If the defendant is innocent, he should be acquitted. The people have got to satisfy you beyond a reasonable doubt of his guilt.
“Now, as to her age: Now, she testified herself that she will not be 17 until the 15th of the coming July. There are other facts tending to corroborate her in that, and I think that book introduced this morning is strong evidence going to show what the girl’s age is. It is for you to consider; but I think that is a strong circumstance, and here is a woman testified it is her handwriting. She wrote it at the request of her mother when the child was an infant. Now, if that be true, that is strong evidence going "to show what the real age of the child is. Now, if the ■child is not 17 until the middle of the coming July, and he had intercourse with her before, the defendant is guilty, if you find beyond a reasonable doubt. Now, I guess that is about all.”

This language was argumentative, and from it a jury might readily infer that she would not be likely to admit her improper relation with a negro, unless it were true. It has been held many times that such instructions are not permissible. People v. Pitcher, 15 Mich. 397; Sebright v. Moore, 33 Mich. 92; Perrott v. Shearer, 17 Mich. 48; Blackwood v. Brown, 32 Mich. 104; People v. Finley, 38 Mich. 482; Springett v. Colerick, 67 Mich. 362; Chase v. Buhl Iron Works, 55 Mich. 139; Wheeler v. Wallace, 53 Mich. 355, 364; People v. Gastro, 75 Mich. 127; Fraser v. Haggerty, 86 Mich. 521; Wessels v. Beeman, 87 Mich. 481; Letts v. Letts, 91 Mich. 596; Wilson v. Hotchkiss’ Estate, 81 Mich. 172; Haynes v. City of Hillsdale, 113 Mich. 44; People v. Hanaw, 107 Mich. 337; People v. Palmer, 105 Mich. 568; Heddle v. Railway Co., 112 Mich. 547; Valin v. McKerreghan, 104 Mich. 213, Blumeno v. Railroad Co., 101 Mich. 325; Preston Nat. Bank v. Insurance Co., 115 Mich. 511; Raymond v. Wolfenden’s Estate, 99 Mich. 165; Hanaw v. Jackson Patriot Co., 98 Mich. 506.

The judgment is reversed, and a new trial ordered.

Grant, Blair, Montgomery, and Ostrander, JJ., ■concurred.


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    METHEANY v. KENT CIRCUIT JUDGE.
    1. Contempt — Proceedings—Interrogatories.
    Contempt proceedings in which interrogatories are not filed as required by section 10909, 3 Comp. Laws, are fatally defective.
    2. Same — Jurisdiction—Statutes—Rules.
    Sections 198-203, 1 Comp. Laws, and Circuit Court Rules Nos. 50-57 did not abrogate the general jurisdiction to punish for contempt given to courts of chancery by section 10891, 3 Comp. Laws.
    3. Same — Waiver of Right to Interrogatories.
    A defendant in chancery, proceeded against for a contempt for failing to obey an order requiring the production of books and papers, does not, by insisting that sections 198-203, 1 Comp. Laws, and Circuit Court Rules Nos. 50-57, control the proceedings, waive his right to have them subsequently conducted under section 10909, 3 Comp. Laws, requiring the filing of interrogatories to defendant, etc.
    4. Same.
    A defendant who had failed to comply with an order to produce the books of a corporation of which he was president, on an order to show cause in contempt proceedings, filed an affidavit stating that since the making of the order he had not had possession or control of any of the books, that he had endeavored to comply with the order, but had been unable to do so, and that he was informed that whatever books were in existence were in the hands of a specified person. Held, that the affidavit was too indefinite and evasive to require consideration by the court.
    Mandamus by Richard R. Metheany to compel Willis B. Perkins, circuit judge of Kent county, to set aside an order requiring relator to show cause why he should not be punished for contempt.
    Submitted December 4, 1905.
    (Calendar No. 21,381.)
    Writ granted January 23, 1906.
    In February, 1904, the Union City Lumber Company secured a judgment against the Traverse City, Leelanau. & Manistique Railroad Company upon cognovit. Execution was issued and returned nulla bona. The lumber company then filed a bill in chancery in April, 1904, against the railroad company and its stockholders to com-, pel them to pay for the stock subscribed for or owned by them, alleging that the stockholders had not paid the par value of their stock. Service was had' upon the defendants, including the relator, except one Daniel W. Kaufman. The bill was dismissed as to him and issue duly joined as to the others. October 31, 1904, the lumber company filed a petition asking for the production of certain books and papers. The petition was in due form, and its allegations sufficient to justify the production of the hooks. Due notice thereof was served upon the railroad company and relator, its president. No answer appears to have been made to that petition. It was finally brought on for hearing on January 16, 1905, and an order made requiring the relator and the railroad company to produce the books. Relator was duly served with a copy thereof. No attempt was made to vacate that order. About six months thereafter an order was duly made and served upon the relator to show cause why he should not be punished for contempt for refusing and neglecting to obey the order of the court. This petition was met with an affidavit, made by relator, saying:
    “ That since the making of the order in the above entitled cause on January 17, 1905, this deponent has not had possession of any of the books, papers, or vouchers mentioned in said order, and the same has not been under, his control; that since said order was made the deponent has made every effort to comply with said order, but has been unable to do so; that this deponent never had charge, possession, or control of said books, papers, or vouchers, etc., but is informed that whatever of such books, papers, „ or vouchers are in existence are in the hands of and under the control of Mr. D. W. Kaufman of the city of Chicago, 111., and were in his possession at the above place and before and ever since the making of said order, and beyond the possession and control of this deponent; and that deponent is in no way able to produce said books, papers, or vouchers as directed, and is in no way responsible for their nonproduction.”
    Upon the hearing the court stated that he regarded the affidavit as insufficient, and would allow relator a week longer in which to deposit the books. This the relator refused to do, and upon the final hearing denied the jurisdiction of the court to find him guilty of contempt, except under proceedings taken in accordance with Circuit Court Rules 50-57 (124 Mich, xxxviii), inclusive, and sections 198-203, 1 Comp. Laws. The court held that the general jurisdiction given to courts of chancery to punish for contempt in section 10891, 3 Comp. Laws, is not abrogated by the rules and statutes above cited,- and still exists. The case is before us for review upon petition for the writ of mandamus.

      McKnight & McAllister, for relator.

      Thomas Parks Bradfield, for respondent.
   Grant, J.

{after stating the facts). The contempt proceedings are entirely regular until the order holding the relator guilty of contempt. The statute (3 Comp. Laws, § 10909) requires interrogatories to be filed where the defendant has been brought into, and has appeared before, the court, which interrogatories must specify the facts and circumstances alleged against the defendant, and require his answer thereto. It is a fatal error not to comply with this statute. Latimer v. Barmore, 81 Mich. 592, 605. Unless, therefore, the filing of interrogatories was waived, the learned circuit judge was-in error.

We think the court was right in holding that the rules and sections 198-203, 1 Comp. Laws, do not abrogate the usual proceedings for contempt in courts of chancery. But section 10909 does apply to these proceedings in chancery. We do not think the record shows that relator waived them. By insisting that the rules and sections 198-203 control the proceedings, relator did not waive his right to have the proceedings afterwards conducted under section 10909, if the court should rule against him.

We think the circuit judge was correct in holding that the affidavit of the relator, made when ordered to show cause why he should not be punished for contempt, was too indefinite and evasive, and justified him in disregarding -it, and required further proceedings by the use of interrogatories.

The writ will issue setting aside the order, and allowing further proceedings in accordance with the statute, should the lumber company desire it.

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


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    WILSON v. GODKIN.
    Trial — Evidence—Witnesses—Examination—Objections.to Testimony — Questions Raised.
    An objection to a question as to the value of services, on the ground that it is “incompetent and immaterial,” does not raise any objection to the competency of the witness to answer the question.
    Error to Bay; Shepard, J,
    Submitted December 8, 1905.
    (Docket No. 177.)
    Decided January 23, 1906.
    Assumpsit by Ira Wilson against John Godkin for work and labor. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Lee E. Joslyn, for appellant.

      A. H. McMillan (E. W. Newton, of counsel), for appellee.
   Grant, J.

This cáse is before us for the second time. See 136 Mich. 106. The contract between the parties and the issues involved are there fully stated. The case was reversed, and a new trial had. The court instructed the jury fully and fairly in accordance with that opinion, and a verdict, for the third time, resulted for the plaintiff for $29.32.

We find no error in the instruction of the court, or in the refusals to give any of the requests preferred on behalf of the defendant. The deduction of railroad fare and the price of the six days’ labor was made under the direction of the court in accordance with our former decision; plaintiff admitting that he had voluntarily abandoned his contract without cause.

Error is assigned upon the admission of testimony by the plaintiff of a conversation prior to the execution of the written contract in regard to his employment as engineer. An examination of the record discloses the fact that plaintiff offered no such testimony. He was asked, and gave testimony on direct examination, only in regard to an agreement made after the execution of the written one. The only testimony of a prior conversation was brought out by the defendant on plaintiff’s cross-examination; and the defendant asked no instruction to be given to the jury upon the subject.

Error is assigned upon the admission of the question to the plaintiff: “What was the value of your service as engineer in Mr. Godkin’s mill per day?”- — -the objection being that it was “incompetent and immaterial.” It is now urged that the plaintiff had not shown sufficient knowledge of the value of such survices to make his testimony admissible. No such objection was made in the court below. The objection that the question was incompetent did not relate to the competency of the witness to testify, but to the competency of the subject-matter inquired about.

We find no error upon the record, and the judgment is affirmed.

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


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    BIENSTEADT v. CLINTON CIRCUIT JUDGE.
    Judgment by Default — Setting Aside — Time for Application.
    Under Circuit Court Rule No. 12, a default entered after personal service cannot be set aside unless applicatior is made within six months after service.
    Mandamus by John C. Biensteadt to compel George P. Stone, circuit judge of Clinton county, to vacate an order setting aside a judgment entered on default.
    Submitted January 9, 1906.
    (Calendar No. 21,494.)
    Writ granted January 23, 1906.

      William M. Smith, for relator.

      Lyon & Moinet, for respondent.
   Ostrander, J.

Declaration was personally served on defendant and his default entered-March 29, 1905. Judgment for plaintiff followed. Motion to set aside judgment and default and for an order restraining proceedings to collect said judgment was presented to the court, and an order staying proceedings made and the motion and accompanying papers filed with the clerk September 30, 1905. The notice of hearing said motion was served on opposing counsel October 2d. On hearing, judgment and default were-set aside. On the application of relator, plaintiff in said action, the writ of mandamus is issued to set aside the order vacating said judgment and opening said default because the application was not made within six months after the default was entered. Circuit Court Rule 12; Petley v. Wayne Circuit Judge, 124 Mich. 14; Carpenter v. Judge of Superior Court of Grand Rapids, 126 Mich. 8; Jocgue v. McRae, ante, 370. The contention of respondent that the matter should be governed by Michigan Mut. Fire-Ins. Co. v. Wayne Cir cuit Judge, 112 Mich. 270, Pratt v. Montcalm Circuit Judge, 105 Mich. 502, Steel v. Clinton Circuit Judge, 133 Mich. 695, and other like decisions, is denied, since the essential purpose of the rule is to set a limit to the time within which the court may act.

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


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    ROSS v. GUENTHERODT.
    Landlord and Tenant — Adverse Possession — Possession by Tenant.
    Where a tenant builds on leased land a house which partially extends onto other land of the lessor, adverse possession will not commence to run against the lessor until the date of a deed by the lessor to the lessee of that portion of the premises leased.
    Error to Wayne; Donovan, J.
    Submitted January 4, 1906.
    (Docket No. 3.)
    Decided January 23, 1906.
    Ejectment by Edward H. Ross against Louisa Guentherodt and others. There was judgment for defendants, and plaintiff brings error.
    Reversed.

      William M. Mertz (Dalton, Mertz & Benaud., of counsel), for appellant.

      James H. Pound, for appellees.
   Hooker, J.

Previous to 1883 one Parker owned lot 21, section 49, Guoin Farm, in Detroit, and lived upon the easterly portion of it. In 1879 he leased a portion of the premises for five years to one Pominville, who moved a house upon it, setting it upon posts. It is inferable that this lease covered the west half of the lot, and possibly more. Presumably this was a written lease, but we do not find it in the record, and we cannot say that it did or did not cover more than the west half of the lot. At this time the defendant Guentherodt and her husband lived upon the lot west of lot 21, and there is testimony indicating that their house extended a foot or less upon lot 21. In 1883 Pominville purchased the west half of lot 21 from Parker, who gave him a deed of it, and, as Pominville’s house extended over the line upon the east half of the lot, asked him to move it. They had a survey and found that Parker was right, and Pominville promised to-move it, but wanted to wait until the Guentherodts should move their house from lot 21. After some delay Parker became offended, and built a fence 10 or 15 feet high against Pominville’s windows for the purpose of forcing him to move the house. Soon after this Parker died, and the east half descended to his widow and children, and in 1897 was sold and conveyed to the plaintiff. Pominville, who lived upon the west half, paid a small sum to Mrs. Parker to remove the fence soon after Mr. Parker’s death in 1884. In November, 1893, Pominville conveyed the west half to the National Loan & Investment Company. That company sold it by land contract to Mrs. Guentherodt. It does not appear when this was done. Her tenants were in possession, however, when plaintiff bought the east half in October, 1897. It is apparently conceded that Pominville’s deed from Parker was dated January 19, 1883, and this action was commenced in December, 1897.

Three claims are made on behalf of the defendant: (1) That the line was established by agreement when Parker built his fence; (2) That Pominville paid Mrs. Parker $3 or $5 for the land on which the house stood; (3) that the defendant has title by adverse possession.

In our opinion the undisputed proof entitled plaintiff to a verdict.

1. There is no testimony which tends to show that Parker and Pominville ever agreed upon any other line than the correct onebut, on the contrary, the former insisted at all times that the latter’s house should be moved across the line, and the latter promised to move it.

2. There is nothing more than a little hearsay testimony that Mrs. Parker attempted to sell the ground to Pominville. She made no deed or other writing, and she had no authority to convey the interests of the children, had she desired to.

3. Adverse possession could not have commenced to run until the date of Pominville’s deed, and the testimony conclusively shows that it was not claimed during Parker’s life. It could not commence running during the minority of the heirs. Moreover, this action was begun within 15 years after Pominville’s deed was given.

The judgment is reversed, and a new trial ordered.

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