text:
    MOORE v. FLINT & PERE MARQUETTE RAILROAD CO.

    Contracts — Evidence.
    Plaintiff voluntarily prepared and submitted to the general solicitor of the defendant railroad company a plan for new terminal and depot facilities in a certain city. In the course of sundry correspondence and conversations with the solicitor, who, to plaintiff’s knowledge, had no authority to bind the company by a contract to buy the plan, plaintiff was given to understand that, in case his plan should be adopted, he would be given employment in the way of negotiating for the required lands, on a basis of compensation which would guarantee to him a sum corresponding with the value placed by him upon the plan. The plans were afterwards submitted to the defendant’s president, and he, while engaged in their examination, either by word or nod indicated acquiescence in plaintiff’s statement as to the substance of the previous negotiations with the general solicitor. Held, not to amount to an agreement by the company to pay plaintiff for the plan if used.

      Error to Wayne; Hosmer, J.
    Submitted January 7, 1898.
    Decided March 15, 1898.

      Assumpsit by George William Moore and George Whitney Moore against the Flint & Pere Marquette Railroad Company for services rendered. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Elliott G. Stevenso n, for appellants.

      Hanchett & Hanchett (H. M. Campbell, of counsel), for appellee.

       Rehearing denied June 28, 1898.

   Montgomery, J.

The plaintiffs’ bill of particulars is as follows:

“For services rendered to defendant in the preparation of a plan for securing for it an independent entrance into the city of Detroit, and for a union depot in connection with the Canadian Pacific, Detroit, Lansing & Northern, and other railroads -------------------------------- $10,000
“For the value of plan submitted and accepted by the defendant for securing an independent entrance into the city of Detroit by the Flint & Pere Marquette Railroad Company, in connection with the Canadian Pacific and Detroit, Lansing & Northern and other railroads, and for joint terminal and depot facilities in connection therewith....................... $10,000”

At the close of the testimony, the circuit judge directed a verdict for the defendant, and the plaintiffs bring error.

The plaintiffs’ testimony tended to show the following state of facts: The defendant company had, prior to the opening of the correspondence between the parties, been running trains into Detroit over the track of the Michigan Central Railroad Company, and it was considered desirable that terminal facilities independent of that company be secured. The defendant’s board of directors had considered the subject, and had had some negotiations with the officials of the Detroit, Grand Haven & Milwaukee Railroad Company looking to that end, but nothing had come of the negotiations. Prior even to this — ■%. e., October 14, 1881 — a' committee on independent Detroit terminals had been appointed, which committee, it would appear, had been continued up to and including the transactions with plaintiffs. Plaintiffs’ testimony tends to show that in 188t> or 1886 they had talked with Mr. Webber, the general solicitor of defendant, and told him that they were figuring on a plan for getting his road an independent entrance into the city. The various routes into the city suggested by plaintiffs were not adopted, but the plaintiffs’ claim is that the idea or plan of plaintiffs as to the manner of securing terminal facilities was adopted; that this plan included co-operation with other railroads, and the building of a union depot to the terminal finally settled upon; and that, -while the precise route was hot followed out, the general plan was.

It becomes necessary to consider somewhat at length the communications which passed between the parties, and, when letters appear, they are referred to as more reliable than the recollections of witnesses. On February 12,1887, plaintiffs, having had, as before stated, some talk with Mr. Webber, wrote him at New York, where he then was attending a meeting of the directors, inclosing a map, and in the letter elaborating somewhat the plans which they had, including the suggestion of a route, and uniting the Flint & Pere Marquette with the Wabash, Canadian Pacific, Detroit, Lansing & Northern, and Toledo, Ann Arbor & North Michigan railroads in constructing a union depot. This letter concluded as follows:

‘ ‘ If the substance of this plan is adopted, we shall expect to do such portions of the work as come in our line.”

On March 3d, plaintiffs again wrote Mr. Webber, suggesting the purchase of five blocks at the place designated in this plan, and saying:

“We have an appraisement of all the property needed, the grade of all the different streets by and over which it is proposed to pass, and a crude plan for entering the city, including the railroad grade to and in the new depot. * * * Should you desire it, we should be pleased to go with you over the ground, show you the location, and explain our plan in detail.”

To this Mr. Webber replied as follows:

“ On my return home, I find your letter of March 3d. Can you give me an approximate idea of the area embraced in the property you mention, and the price at which it can be purchased ? What would be your charge if you should undertake this for us, and secure options, as suggested ? ”

Two things are apparent from this correspondence, namely, that up to this time neither party had understood that the plaintiffs were employed by defendant, and that Mr. Webber understood that the employment contemplated by them was to be in the work of making purchases of property necessary to carry their plan into effect if their scheme were adopted. It would appear that the plan had been freely exhibited with that end in view. This is emphasized by plaintiffs’ next letter, under date of March 8th, in which they say:

“Regarding our charge, we would prefer to take that in the shape of an interest in the enterprise. We will furnish you with all the facts upon which we made our estimate of values, and show you the land and the plan, from which you can judge of the cost, and determine the desirability.”

Again, on the 39th of March, plaintiffs wrote Mr. Webber as follows:

“We have been informed in a somewhat confidential manner that your road has or is about to close a contract for permanent terminal facilities here. How accurate our information is, or why the party who gave us the information did so, we are unable to state. But, if we are correctly informed, your people would doubtless not care to interest themselves in any other terminal. We.do not wish to be understood as urging you to make any decision in regard to our proposition, but if your decision has been made, or when made, we would be pleased to learn of it as soon as it may suit your convenience.”

This letter was referred to Mr. Potter, the vice-president and general manager of the defendant, who wrote in reply:

“Yours of 29th to Mr. Webber is referred to me. I think he showed me some previous correspondence from you on the same subject. The policy of the company is not yet decided as to Detroit terminals; but it is likely to be within 30 days. The map you sent to Mr. Webber opened some troublesome questions, such as the crossing of the Michigan Central Railroad, either at grade or over if practicable. I will see you before anything is done.”

Not having heard further from Mr. Potter, plaintiffs again wrote him, on June 2d, as follows:

“We would like to ascertain whether the question has been settled or not, and, if not, would your company feel disposed to consider further the combination suggested.’

In reply to this, Mr. Potter wrote, on June 3d:

“On account of the absence of our president, Mr. Crapo, who is on the Pacific Coast, no meeting of the directors will be held prior to the last week in June, and then in New York, when, if you will send me details of your plan, I will submit it.”

Plaintiffs replied, inclosing map, and giving details of this plan, and saying that a member of plaintiffs’ firm would probably be in New York the last week in June, and that, if desired, he would appear before defendant’s board, and explain the plan in detail. This meeting was not arranged, and here the correspondence dropped until August 10, 1888, when plaintiffs again wrote Mr. Webber as follows :

“We would like to see you at your earliest convenience. We think we have something that would be of interest to your railroad. . About when will you be in the city, and could we have a short interview with you at that time ? ”

Mr. Webber replied:

“I will be at the Russell House at 9 o’clock tomorrow morning. Would like statement in writing to take East with me.”

Mr. George William Moore was at this time in New York, and, the contents of Mr. Webber’s letter having been telegraphed to him, he wrote a brief sketch of his plan, and sent it to Mr. Webber, at the Windsor Hotel, .New York. To this Mr. Webber replied on August 16th:

“Letter rec’d. Favorable consideration. Make lists of descriptions for sale, with estimates of cost. Will return home Saturday, and call on you if possible.”

On the 17th he telegraphed:

“Will call on you Saturday, at 3, standard time.”

It will be noticed that up to this date the plaintiffs had put Mr. Webber and Mr. Potter in possession of their plan, and their negotiations had been with reference to inducing defendant to join a combination in which the plaintiffs should take an interest, or, in case the defendant ■should propose to carry out the scheme, to obtain employment in the work of securing the necessary property. The negotiations had not included any proposition to buy or sell the plan. Thé plaintiffs were working to promote an enterprise on joint account, or an enterprise which, if undertaken by defendant alone, should furnish them employment. For the purpose of doing this, and not under any promise, express or implied, that they should be compensated for the plan, they had freely exhibited it. There were no fiduciary relations between the parties. There was nothing which precluded the defendant from adopting the plan, which consisted in the main of a proposition to run its road at grade or above grade to a desirable terminus, buy the property necessary to do so, and induce other railroads to join in building a union depot. Had the negotiations ended here, it would have been too clear for discussion that the defendant was left at liberty to join in such an enterprise with any persons or corporations whom it might choose, and that the plan of plaintiffs did not stand in the way. If any promise or undertaking of the defendant whatever can be implied, it was a promise to furnish employment or to join plaintiffs in the enterprise, neither of which promises is counted on or within •the bill of particulars.

Shortly after the 11th of August, 1888, Mr. Webber called on Mr. George William Moore, and it is contended that at this time there was an agreement made by him to pay for the plan in case it was used by defendant. The testimony of Mr. Moore on his direct examination is as. follows:

“We went over the matter somewhat in detail, and then he said: ‘The board wanted me to ask you what your charges would be in cash.’ I said: ‘If our plans are adopted, I think we ought to have $10,000.’ He said: ‘Well, we, as directors, are trustees for our stockholders, and we have to give an account of what we do; and the board think they would rather pay you by having you extend your work, or by way of negotiating for the land; and we would like to know what you would charge us in case we extend your work, and have you negotiate for purchasing the necessary land for a station.’ I replied: ‘ That, of course, would depend on the value of the land you buy.’ He said he would like to have us fix our,compensation as a percentage upon the assessed value of the land, adding as his reason that in that way the compensation could be definitely fixed, and we would not then be interested in the price they might have to pay. He explained that, if our compensation was fixed by the amount paid, we would be interested in increasing the price. He said: ‘Of course, we know you would not do that; if we thought you would, we would not suggest your acting for us; but it would impair, to some extent, your usefulness, because, if you should disagree with us as to what we ought to pay as a settlement, we could not, perhaps, dis-imbue our minds entirely of the fact that you would get a greater compensation if your suggestion was adopted. Besides, it relieves you and ourselves from any embarrassment, and enables us to go forward with the work without any idea on the part of anybody that it made any difference what prices were paid.’ I told him that would be satisfactory, but that a percentage on the assessed value would be necessarily higher than the percentage based upon the price paid for the land. He said, ‘ Certainly.’
“We looked over the papers there, and I had at that time the list of quite á large amount of property, and we ran it over together to see how much the depot company would probably take, and I said to him: ‘ I should think, Mr. Webber, you would probably want this propérty that is assessed somewhat over $300,000. I think it is $330,000, or in that neighborhood.’ And I said: ‘If we negotiate for this land, I think we ought to have 4 per cent, of the assessed value.’ He said he did not know but that would be fair enough. I said: ‘Mr. Webber, you have your own attorneys and your own landmen, and perhaps you would not want our services.’ I told him that ‘ at first we were inclined to think that we ought to have the conducting of these negotiations, but, upon reflection, we thought perhaps that you would prefer to do it yourself.’ ‘ Well,’ he said, ‘ our present impression is that we would like to have you take hold of it. However,’ he said, ‘that will be a mat'ter of the future.’ I said: ‘Mr. Webber, if you want us to negotiate, we will be at your service; but we will expect you to take land enough so that 4 per cent, of the assessed value will amount to $10,000. If you take land that the commission exceeds $10,000, we will expect an increased compensation.’ He said,‘Certainly.’ The conversation lasted perhaps an hour and a half. I am giving it very briefly. Before going away, the ultimate agreement was that, if we did not negotiate for the land, we were to have $10,000. If we did negotiate for the land, we were to have 4 per cent, of the assessed value, and they were to take land enough so that our commission would amount to $10,000. It might amount to more than that, and, if- it did, we were to have the increased sum.”

We have quoted this testimony at length for the reason that we think, taken as a whole, the statement of the conclusion at the close of the testimony is shown by the text of the conversation to have been inaccurate. Mr. Webber’s testimony is that he made no agreement to pay for plans, and that he had no authority to make such an agreement, and plaintiff’s testimony, as a whole, indicates that limitations of the authority of Mr. Webber were brought home to him. He says Mr. Webber stated:

“We, as directors, are trustees for our stockholders, and we have to give an account of what we do; and the board think they would rather pay you by having you extend your work, or by way of negotiating for the land; and we would like to know what you would charge us in case we extend your work, and have you negotiate for purchasing the necessary land for a station.”

That plaintiffs understood that this was the limit of Mr. Webber’s authority, and that, if any contract was made, it was in the line of that talk, is evident from the following letter written by Mr. Moore, September 23, 1889:

“Hon. William L. Webber,
“East Saginaw, Mich.
“Dear Sir: We originated a plan for a railroad station at Detroit, upon which we spent a great deal of time and some money, and presented it to you, and you told us, if adopted, we should have the business of purchasing the land that should be selected, and our commission to be 4' per cent, on the assessed value of the land purchased, which we both thought would amount to about 110,000. We see from the papers our plan has been adopted, and we hope to hear from you very soon in regard to that portion of the understanding in which we are personally and financially interested.
“Very truly yours,
“Moore & Moore.”

As before stated, Mr. Webber testified that he had no authority to make such a contract as plaintiffs now allege. The only other person with whom they are said to have negotiated is Gov. Crapo. Mr. Moore testifies on his direct examination that he told Mr. Crapo briefly the talk he had with Mr. Webber, and then testifies as follows:

“I do not think Mr. Crapo made any remark to that, except he just nodded his head, and said, ‘Yes, yes,’ or something of that kind. He paid very little attention to that part of it. He simply was watching these maps, and he asked, I should say, 500 questions.”

On cross-examination he testified as follows:

“Q. What did Mr. Crapo say to you when you related to him the conversation which you say ‘you had with Mr. Webber?
“A. I don’t think he made any reply except, ‘Yes, yes;’ just ‘Yes,’ and nodded his head, and went right on looking at the maps. I did not have any discussion. Mr. Crapo did not seem to be particularly interested in the question of compensation. He was very much interested in the plan.
“Q. Then you did not understand him to say anything on the subject ?
“A. All he said was, when I told him, he said, ‘Yes.’ That is all. He entered into no discussion with me about compensation, but he did enter into a very extended discussion of the plan.
“Q. What was it he said ‘Yes’ to?
“A. Why, I told him what I had told Mr. Webber.
“Q. And, when you told him that, he says, ‘Yes, yes, yes ? ’
“A. He said, ‘Yes.’ That is my recollection now. Just nodded ‘Yes,’ and went right on.
“The Court: Did he nod ‘Yes,’ or say ‘Yes?’
“A. Well, I think he did both, — would be my recollection now. Of course, it is a long time ago. I remember the acquiescence in the statement, but I don’t remember the details of it. It would be impossible.”

We do not think this conversation can be construed as a promise to pay by the railroad company. There is nothing in the language employed or the nod of the head showing any more than acquiescence in the statement of the fact that such a conversation had occurred between Mr. Webber and plaintiff. We think no such agreement as counted on was shown, and that the judgment should be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    SCHAFER v. SCHOOL DISTRICT NO. 1 OF BARAGA.
    Schools and School Districts — Board of Education — Special Meetings — Notice.
    Under section 6 of the statute relating to township school districts in the Upper Peninsula (Act No. 176, Pub. Acts 1891), which authorizes special meetings of the board of education to be called by giving at least three days’ notice to each member of the board “if within the district,” action taken at a meeting called upon a shorter notice, which was not attended by one of the members, is invalid, even though the absent member was not within the district when the meeting was called or held.
    Error to Baraga; Hubbell, J.
    Submitted January 25, 1898.
    Decided March 15, 1898.

      Assumpsit by William C. Schafer against School District No. 1 of Baraga for the breach of a contract of employment. From a judgment for defendant on verdict directed'by the court, plaintiff brings error.
    Affirmed.

      S. W. Shaull (Thomas & Gollingwood and Ellis & Nichols, of counsel), for appellant.

      Allen E. Rees, for appellee.
   Moore, J.

Plaintiff sued to recover for a breach of contract made March 1, 1893, which he claims authorized him to teach the school of defendant for the school year commencing September 4, 1893. In the circuit court a verdict was directed in favor of the school district. Plaintiff appeals.

The resolution authorizing the making of the contract was adopted at a special meeting of the board of education, called upon a two-days notice, held March 1st. This notice was served upon four members of the board, all of whom were present. It was not served upon the fifth member of the board, who was absent from the school district the day the notice was issued, and did not return until the day after the meeting was held. The resolution authorizing the making of the contract received the votes of but two of the members of the board who attended the meeting. The record does not show that the other two members voted at all. The statute authorizing the holding of special meetings of the board required at least a three-days notice to be given. Act No. 176, Pub. Acts 1891, § 6. If the three-days notice required by the statute had been given, the fifth member of: the board would have been at home when the meeting was held. In 1 Dill. Mun. Corp. § 264, it is said:

“Such great importance is attached to notice that it can only be waived by universal consent; but if every member of a select body be present at a regular or stated meeting, or at a special meeting, they may, if every one consents, but not otherwise, transact any business, ordinary or extraordinary, though no notice was given; or an insufficient notice.”

It is conceded that the notice was insufficient, and that one member of the board was not present. The board had no authority, in the absence of one of the members, to authorize the making of this contract at this meeting.

It is not necessary to discuss the other questions presented in plaintiff’s brief, for the reason that the argument proceeds upon an assumption of facts shown by the record not to exist.

Judgment is affirmed.

The other Justices concurred.


author: Grant, O. J.

text:
    COLBY WRINGER CO. v. COON
    1. Principal and Surety — Indemnity Bond — Construction—Default.
    Tlie surety upon a bond of indemnity conditioned for the faithful performance by the principal of an agreement whereby he was to act as agent for the handling of the obligee’s goods in certain territory, and was to account weekly, in specified sums, for all wringers and clocks sold by him, and for “other-articles as per price list,” and whereby the obligee was bound to furnish, not only wringers and clocks, but “such other goods ” as might be further agreed upon, —is liable for the principal’s default with respect to goods other than wringers and clocks which were furnished in accordance with the terms, of the contract.
    2. Same — Release of Surety.
    The surety upon such a bond is not relieved from liability because the obligee failed to notify him that the agent was not remitting the full amounts shown to be due by his weekly reports, even though it subsequently develops that the deficiency was underreported, if the obligee had no notice of such dishonesty.
    Error to Wayne; Frazer, J.
    Submitted January 25„ 1898.
    Decided March 15, 1898.

      Assumpsit by the Colby Wringer Company against Edward S. Coon, as surety upon a bond of indemnity. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Suit on a bond of indemnity. Plaintiff, a Vermont corporation, made a contract with one Havens, by which he was appointed sole manager or agent for plaintiff in the city of Detroit to sell, upon terms and conditions fixed by it, and collect payment for, such goods as should be furnished to him. The defendant executed a bond to plaintiff in the sum of $2,000 upon condition that—

      “Said Havens shall well and faithfully discharge his duties as such agent or manager, and the trust reposed in him, and shall keep, and perform each and all the conditions, covenants, and obligations on his part entered into and contained in a certain agreement by and between him and said company [giving the date], * * * and shall also well and truly pay or cause to be paid to the said company, on demand, any and every indebtedness or liability now existing, or which may hereafter in any manner exist or be incurred, on the part of said Havens to said company.”
    Havens agreed to make weekly payments for collections and goods sold. He made reports from time to time of the business, the amount due, and remittances, but failed to pay over all that was due according to his reports. The amount due from Havens gradually increased, though he often remitted the amount due for goods sold during the period of the report. The first and second reports showed no amounts unremitted. The third report showed a balance unremitted of $15.88. This report was dated May 14, 1892. His last report was dated July 14, 1894, and showed a balance in his hands unremitted of $3,025.-80. Shortly after this last report, plaintiff’s agent came to Detroit, and took charge of the business, and upon investigation found that Havens was in fact indebted for goods sold and moneys collected and unaccounted for in a sum largely in excess of the amounts reported. He thereupon notified the defendant of this fact, and, upon refusal to pay, brought suit, and recovered verdict and judgment for the amount of the bond.

      Walter Barlote, for appellant.

      George W. Bates, for appellee.
   Grant, O. J.

(after stating the facts). 1. Defendant contends that he is not liable, for anything but wringers and clocks specified in the contract. The third clause in the contract provides that Havens should pay $3 for each No. 3 Colby wringer sold on installments, and $2.50 for each one sold for cash; $4 for each clock sold on installments, and $3.50 for each clock sold for cash. If the contract did not expressly cover other articles, the defendant’s contention would be sound. The second clause, however, expressly provides that the plaintiff should furnish not only the goods mentioned in the third clause, but also “such other goods as may be further agreed upon by the parties hereto.” The fourth clause, providing for payment, specifies the articles in the third clause, and also “others as per price list.” The terms of the bond cover every obligation under the contract, and made the defendant liable for everything furnished in accordance with its terms. All the goods were so furnished.

2. It is urged that the court erred in instructing the jury that, if defendant understood the situation, there was no occasion to notify him. The objection is that there was no evidence to show such knowledge on the part of the defendant. Mr. Havens died soon after this suit. was commenced. Defendant was not sworn as a witness. On March 5, 1894, plaintiff wrote Mr. Havens, asking if it would not be possible for him to arrange with his bondsman to raise an amount sufficient to square off his cash balance as it stood on his reports. It is fairly to be inferred from Havens’ reply that he had informed defendant of the situation, and had attempted to borrow the money from him. This letter was produced by the defendant, and introduced in evidence without objection. No claim is made that the letter is not competent evidence of the matters therein stated. ' The only claim made is that, if Havens did apply to Coon for a loan of money to pay his indebtedness to plaintiff, this was not such a notice as would make him responsible on the bond. It cannot, therefore, be said that there was no evidence tending to show knowledge on the part of the defendant that Havens was running behind. The question, however, becomes immaterial in view of our holding on the next point.

3. The principal question in the case is, Was the defendant relieved from liability by the failure of the plaintiff to notify him that Havens was behind in his payments? There is no evidence that plaintiff had any knowledge, or intimation even, that the accounts rendered by Havens were not correct. Still the court left that “question to the jury, instructing them that, if plaintiff had knowledge of dishonesty on the part of Havens, it was its duty to notify defendant, and that the failure to so notify him would he a complete defense, but that, if the plaintiff “allowed Havens °to run along in a negligent manner, simply permitting him to go on, and was trying to get these amounts from him, this would not be sufficient to release the security, because the bond was given to cover just such a contingency.” The circuit judge correctly stated the law. Ætna Ins. Co. v. Fowler. 108 Mich. 557, and authorities there cited.

Judgment affirmed.

The other Justices concurred.


text:
    FINGLETON v. KENT CIRCUIT JUDGE.
    1. Probate Courts — Jurisdiction—Equity.
    Under 2 How. Stat. § 6760, providing that the judge of probate shall have jurisdiction of all matters relating to the settlement of the estates of deceased persons, the probate court has authority to determine whether a promissory note given by an executor to a legatee was accepted by the latter in payment of her legacy, upon a petition by the legatee to require the executor to account for her interest in the estate, even though the circumstances of the case are such that equity would also have jurisdiction of the controversy.
    2. Same — Appeal.
    An order denying such petition is appealable, under 2 How. Stat. § 6779, giving a right of appeal to any person aggrieved by any order, sentence, decree, or denial of a judge of probate.

      Mtmdamus by Maryette Fingleton to compel William E. Grove, circuit judge of Kent county, to vacate an order dismissing an appeal from probate court.
    Submitted January 25, 1898.
    Writ granted March 15, 1898.

      McKnight & McAllister, for relator

      E. J. Doyle, for respondent.
   Moore, J.

The relator filed a petition in probate court stating, in substance, that her aunt, Margaret Fingleton, had died, leaving a will by which the relator was entitled to the larger share of her estate, and that the estate amounted to about, $1,000. The petition stated that Bernard Fingleton was appointed executor of the will, filed his bond, took possession of the property, and converted it to his own use; that he had never filed any inventory of the property, and had never paid the petitioner; and asking that he be required to file an inventory and to proceed in carrying out the trust. Later she filed an amended petition, setting up, in addition to the facts stated in the original petition, that said Bernard Fingleton perpetrated a fraud upon her by representing that she was not the legal heir of Margaret Fingleton, and was entitled to nothing under the will, but that he was willing to give her part of the estate when it was settled, and that it would be fully three years before anything could be realized out of the estate, and that he would give her a note, showing the amount she had in the estate, and that it should be paid when the estate was probated; that he did give her a note for $663.87; and that she believes he now claims it was payment for the amount, but that the petitioner did not receive it as payment. The petition also states that Mr. Fingleton represented that he was solvent when he gave the note, but that he was not solvent, and is converting the property willed to the petitioner to his own use; that petitioner has never been paid her legacy, and did'not receive the note as payment, and that the note is worthless; and charging fraud on the part of the executor.

The executor was cited to appear before the court, and did appear. He admitted the making of the w-ill, and that petitioner was a legatee; denied any fraud; admitted the amount due the legatee; and stated that he gave the note mentioned in payment thereof, and that it was received as payment, and is not yet due; that he was solvent when he gave the note, and is yet solvent. A hearing was had before the probate judge, who found that a settlement had been made between the petitioner and executor, and that the note was given and accepted as payment of said legacy, and that the probate court did not have jurisdiction to set aside said settlement. The probate court dismissed the petition. From this action relator- took an appeal to the circuit court in due form. The trial of the case was commenced in the circuit court, and a jury sworn, when, upon motion, the circuit judge dismissed the appeal, upon the ground that the question of the giving of the note as payment and settlement, and the allegations of fraud and deceit, must be determined in equity. This is a proceeding to vacate the order dismissing the appeal.

Was the order an appealable one? The will had been probated. The executor had entered upon the trust. There was no dispute about the amount due the petitioner. If the legacy had not been paid, the legatee had a right to ask that the executor be required to administer the estate; but, if the legatee had been paid in full, she had no further interest in the estate, and her petition would be properly dismissed. No account of the executor had been made to the court of his administration of the estate. A legatee insisted that she was entitled to a share of the estate, and had not been paid. The executor insisted that she had been paid. 2 How. Stat. § 6760, provides: “The judge of probate shall have jurisdiction of all matter relating to the settlement of the estates of such deceased persons,” etc.; and it has been repeatedly held that probate courts are not courts of inferior jurisdiction, but have general jurisdiction in testamentary and other probate matters. People v. Wayne Circuit Court, 11 Mich. 393; Church v. Holcomb, 45 Mich. 29; Schlee v. Harrow’s Estate, 65 Mich. 373. What the relator was asking was for a settlement for her interest in this estate by requiring the executor to account to her for the legacy given by the will, and we think the court had jurisdiction to require this. We are not indicating that equity would not also have had jurisdiction, if the proceeding had been commenced there. 2 How. Stat. § 6779, provides in what cases appeals may be allowed. In Grady v. Hughes, 64 Mich. 540, it was held that an appeal from an order made upon accounting by an administrator was allowable under the statute. In this case the appeal was properly taken, and should be reinstated.

The writ will issue as prayed.

The other Justices concurred.


author: Montgomery, J.

text:
    HAVILAND v. CHASE.
    1. Trespass — Justification—Writ of Assistance — Homestead.
    One who forcibly ejects a wife from her homestead cannot justify under a writ of assistance issued in a proceeding against the husband alone, instituted at a time when the wife was also in possession.
    2. Same — Evidence—Admissibility of Writ.
    In a suit for trespass to the person based upon the forcible removal of plaintiff from premises which she was occupying with her husband as a homestead, a writ of assistance directed against the husband, under which the defendant assumed to act, is admissible in evidence, not as a justification, but as a part of the res gestae, and as bearing upon the question of damages.
    8. Same — Punitory Dama&es.
    An instruction in trespass vi et armis that the jury may award damages “by way of punishment,” if defendant, in the commission of the trespass complained of, was actuated by malice or a reckless disregard of plaintiff’s rights, is erroneous; compensatory damages being the limit of recovery in civil cases, —at least where unaffected by statute.

      Error to Livingston; Smith, J.
    Submitted January 25, 1898.
    Decided March 15, 1898.
    Trespass vi et armis by Edith Haviland against Almon L. Chase, Chauncey M. Wellman, and Thomas Gordon, Jr. From a judgment for plaintiff, defendants bring error.
    Reversed.

      William P. Van Winkle and Dennis Shields, for appellants.

      Louis E. Howlett and Watts, Bean "& Smith, for appellee.
   Montgomery, J.

The plaintiff brought suit for trespass to the person, and gave evidence tending to show that while she was living in a house in Iosco township,,Livingston county, where she had resided for some 11 years, with her husband, Charles J. Haviland, defendants forcibly removed her from the premises; that she was not at the time in good health; and she also offered testimony to show some other circumstances of aggravation.' The defendants attempted to justify under a writ of assistance in the hands of defendant Chase, who was at the time sheriff. This writ was issued in'a proceeding against Louis A. Haviland, Louis J. Haviland, and Charles J. Haviland, which was instituted in 1888, at the time when plaintiff was occupying the premises with her husband. The case really presents but few questions.

It is contended that there was no evidence connecting Gordon with the trespass, but we think the testimony was ample both as against him and the defendant Wellman.

Error is assigned upon the refusal to admit the writ in evidence. This writ was no justification, but we think it was admissible as a part of the res gestee, and as bearing on the question of damages, within the holding of this court. Sutherland v. Ingalls, 63 Mich. 620. We think it clear that the writ could afford no authority as against the plaintiff. She had such a right in this homestead as entitled her to be made a party. Spalti v. Blumer, 56 Minn. 523. We have held that in ejectment the wife in actual occupancy of the homestead is a necessary party (Sessions v. Sherwood, 78 Mich. 234; Kalkes v. Storms, 93 Mich. 480), and that this is equally necessary in a case where the plaintiff is proceeding after the foreclosure of a purchase-money mortgage. Gibbs v. O’Neil, 85 Mich. 633. The reason for this is clear. The fact that the homestead right may be subordinate to the lien of the mortgage does not bar the right of the wife to reedeem from such mortgage in protection of her homestead right. See Spalti v. Blumer, supra.

We feel constrained to hold that the learned circuit judge erred in the instruction given to the jury on the sub ject of damages. The court charged:

“I have already given you some general instructions relative to the question of ‘ actual damages; ’ that is, the amount of the actual loss suffered' or sustained by the plaintiff by reason of the trespass complained of. There is in the law another element of damages designated as ‘exemplary’ or ‘punitive’ damages. Such damages, if given at all, are only given by way of punishment of the defendants in case that, in the commission of the trespass complained of, they were actuated by malice or a reckless disregard of plaintiff’s rights.”

The rule has obtained in this court for many years that damages in civil cases should be limited by some rule of compensation. This rule was announced, upon full consideration, in Scripps v. Reilly, 38 Mich. 10, and has been adhered to since. It is true, charges have been sustained where exemplary damages have been referred to as “punitory” or “vindictive” (Ross v. Leggett, 61 Mich. 452); but the court has in no case not depending on statute given sanction to the distinct instruction that the jury may award a sum by way of punishment to the defendant, by whatsoever term such sum may be designated. The law recognizes that acts of indignity to the person or reputation may give an added smart or injury to the feelings if actuated by malice or committed in wanton disre.gard of plaintiff’s rights; but the theory upon which damages are increased because of these motives is thht the injury is deemed to be greater. Therefore it has been held that an instruction that the jury may award damages by way of punishment is improper. Stuyvesant v. Wilcox, 92 Mich. 233; Stilson v. Gibbs, 53 Mich. 283; Wilson v. Bowen, 64 Mich. 133; Lucas v. Railroad Co., 98 Mich. 5.

The only apparent exception to this rule is created by statute, — section 228358, 3 How. Stat., which provides for the recovery of actual and exemplary damages. In my own view, the recovery under this statute ought not to include smart money, but should be limited to such increased compensation for injury to feelings as could fairly be said to follow from wanton or willful invasion of rights (see Ford v. Cheever, 105 Mich. 679); but the statute has not always had this construction. The present case does not, however, arise under the statute.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, C. J.

text:
    ALBION MALLEABLE IRON CO. v. FIRST NATIONAL BANK OF ALBION.
    1. Equity — Dismissal of Bill Without Proofs.
    Complainants filed a bill to obtain a construction of certain instruments whereby the property of their debtor became vested in one of the defendants as trustee for creditors, certain of whom were preferred. The bill prayed that the instruments be decreed to amount to a common-law assignment and the preferences be declared void, that the trustee render an account as to his doings, which were alleged to have been fraudulent, and that a receiver be appointed to take charge of the property. Before any proofs were taken, the court, upon the hearing of a motion for an injunction and a receiver, entered a decree dismissing the bill, based upon a finding that the instruments were merely securities, and could not be construed as a common-law assignment. Held, that the court was in error, as complainants were entitled to be heard, in any event, upon the question of the fraud of the trustee.
    2. Same — Appeal—Receiver."
    Where a bill of complaint was dismissed, without the taking of proofs, under a misapprehension of the rights of the parties, and the property in controversy was already in the hapds of a receiver, and all charges of fraud were denied by the answer, the appellate court, upon reversing and remanding the cause, refused to pass upon the matter of the appointment of a new receiver, but left the same for determination, by the lower court.
    Appeal from Calhoun; Smith, J.
    Submitted January-26, 1898.
    Decided March 15, 1898.
    Bill by the Albion Malleable Iron Company and others, as creditors of the Elms Buggy Company, against the First National 'Bank of Albion, Henry M. Dearing, and others, for the construction of certain instruments whereby the property of the debtor became vested in defendant Dearing as trustee, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Reversed.

      The bill in this case is filed by a number of creditors of the Elms Buggy Company of Albion, Mich., whose claims aggregate in amount about $15,538, for and in their own behalf and in behalf of such others of the creditors of said Elms Buggy Company as might wish to come in under said bill. The substance of said bill, so far as necessary to state it herein, is as follows:
    (1) The Elms Buggy Company is a manufacturing corporation formed under the laws of the State of Michigan, and engaged in the manufacturing and selling of buggies. And it continued in business until May 22, 1896, when it had on hand property of various kinds of the value of about $100,000.
    (2) At the date last mentioned, the Elms Buggy Company was indebted to complainants for goods and material put into its manufactory in about the aggregate sum of nearly $16,000, all of which is now due, but a considerable part of which was not due at the date before mentioned.
    (3) The Elms Buggy Company purported to have a paid-up capital of $45,000, and so continued to state in its annual reports, and complainants believed that such was the case during the time and all the time until after said 22d day of May, 1896, and dealt with said company relying upon the supposed truth of that statement. They have recently discovered that, instead of said company having had $45,000 of actual cash capital, as a matter of fact said $45,000 was made up largely of the old Albion Manufacturing Company’s plant, which consisted of some old sheds, engine, boiler, and shafting of insignificant value, and the balance of the capital was $7,500 which was borrowed by the stockholders of the First National Bank of Albion, and their stock put up as collateral to secure its payment; and, aside from said $7,500 borrowed, the capital put in did not exceed $10,000.
    (4) The First 'National Bank, defendant herein, has been, ever since the organization of the Elms Buggy Company, the financial agent of said company, and to a certain extent has had charge of the financial part of its business; and while the Elms Buggy Company had been holding out to complainants that it had a paid-up capital of $45,000 which had been paid for in cash or its equivalent, the said bank all of said time knew that said buggy company had not received from its $45,000 of stock to exceed $10,000.

      (5) On May 22, 1896, said buggy company was indebted to others' besides complainants, aggregating, including complainants’ claims, the sum of $34,000, all for goods and material bought by said company, the greater part in January, February, March, and April, 1896, and much of said indebtedness was not due on May 22d aforesaid; and said corporation was also at the last-mentioned date indebted to Maria C. Blanchard for $1,600 and to Lucina Sheldon for $3,400, as they believe.
    (6) On May 22, 1896, the First National; Bank pretended that said buggy company was indebted to it in the sum of $41,000 direct indebtedness, besides a large amount of contingent indebtedness arising on indorsed paper (the amount complainants being unable to state), and the defendant the Commercial & Savings Bank claimed said buggy company was indebted to it $5,000 on a note.
    (7) On said 22d day of May, 1896, said buggy company pretended to be unable to pay its debts in full, and, for the purpose of disposing of its property, and distributing the same among its creditors, executed and delivered to defendant Henry M. Dearing a general assignment for the benefit of all its creditors, said assignment being embraced in two instruments, copies of which are annexed to the bill.
    (8) As advised and believed, complainants say the making of said assignment was brought about by said First National Bank, and that said huggy company was no more insolvent then than in September, 1895, before any of said $34,000 of goods were bought, and the First National Bank knew this; and that it was understood between the Elms Buggy Company and the First National Bank that the former should buy largely, and, after said goods had been put in, then the company should put the bank in a position of priority of claim as against the persons from whom said goods were bought; and that the making of said assignment was to carry out the above-mentioned design, and to give said bank a priority of claim on said goods above that of the persons from whom they were bought; and that said Dearing was made trustee or assignee in said written assignment in order to carry out the scheme, he being the cashier of said bank.
    (9) Immediately after making said assignment, Dearing took possession of the property covered by it, began to sell the same, and run the business of said buggy company, and has since so continued. It was not the intent of said buggy company, when said instrument • was made, to redeem from it, or to pay the debts mentioned in it, but it was always its intention that Dearing should run it to pay up debts; and, the next day after said assignment was made, the manager of the company hired out to said Dearing to assist him in running the business, and the said company carried out its intent to have all of said property sold to pay its debts, and both it and said Dearing construed said instrument as an assignment.
    (10) Said First National Bank and the Commercial & Savings Bank now pretend said instrument is-a chattel mortgage, and that they and said Blanchard and Sheldon are entitled to priority over complainants and the other creditors representing $34,000 of claims. But complainants allege that because of the provision put into said instrument by which Dearing was given the absolute right to dispose of said property at either public or private sale, as, in his judgment, he saw fit, and because said Elms Buggy Company never intended to pay said debts or redeem said property, and because of the construction put on it by the parties, the said instrument was a common-law assignment, and the alleged preferences contained in it are void under the statutes of the State of Michigan.
    (11) Of the $41,000 mentioned in said instrument as owing said First National Bank, complainants are advised that only $15,000 is legitimately the debt of the buggy company, and all above that is on notes on which the buggy company is only indorser, and is not its indebtedness, and not within its power to become surety on it.
    (12) The First National Bank and Dearing well knew, while the Elms Buggy Company was purchasing of complainants, that such purchases were being made, and property changed by. painting, etc., so that complainants could not replevy, and, if they got the property back, it would be worthless to them in its changed condition, and they knew that complainants equitably should have a lien on said property prior to said bank, and they permitted and advised said Elms Buggy Company to purchase and get said property in its factory for the purpose of obtaining a lien thereon ahead of complainants.
    (13) Said Dearing has not properly carried out his trust. He has not disposed of said property, and applied the proceeds thereof to the debts of said corporation. He has collected $26,000, the greater part of which he has paid to the First National Bank, and has paid no other creditors of said Elms Buggy Company, except $1,600, which he claims to have paid Blanchard, and $600 to the Gale Manufacturing Companyf which was one of the $34,000 creditors mentioned in said assignment. He has given, or pretended to give, security on some of the Elms Buggy Company property to the Commercial & Savings Bank of Albion to secure a large amount of alleged indebtedness claimed by it against said buggy company, but which was not, in fact, a legitimate indebtedness, and such security was given for the purpose of giving said Commercial & Savings Bank priority over complainants.
    (14) Said Dearing, the First National ¡Bank, and the Commercial & Savings Bank have combined together for the purpose of barring out complainants’ claims and the claims of other creditors, amounting to $34,000 aforesaid. Dearing has had placed in his hands sufficient to pay nearly all the buggy company’s debts, — property amounting, as reported by him August 24th, to $118,000, subject to $85,000 of debts, which reported amount accompanied a letter by Dearing, calculated to keep creditors quiet, so that their plans could be carried out, and to keep complainants from resorting to the courts to obtain their rights, and thus led complainants to believe that, if they kept quiet, they would get their pay in full. After paying over to said First National Bank a large amount of money, Dearing caused another circular to be sent out by Wolcott, agent, offering 20 per cent, for their claims, followed by a discouraging letter by Dearing, and still later by another by Wolcott, calling a meeting of creditors for February 4, 189?, to inspect affairs of company and property. Some of complainants went to said meeting, and found Dearing had no.statement of what had been done by him, and said company was then alleged to be represented by Wolcott, a director of the Commercial & Savings Bank, and newly-elected president of the buggy company. It was impossible for complainants to obtain any information as to the past management of said Dearing, or what the condition of the property of the buggy company was, sufficient to enable them to judge whether it was best to accept the 20 per cent, offer. Dearing was requested to furnish a statement of what he had done under his trust, but he failed and refused to do it, and this was a part of the scheme to obtain to themselves the property of said buggy company.
    (15) Instead of furnishing any such statement or information, said Dearing, on February 23, 189?, filed a bill in chancery in this court for an alleged foreclosure of what he claims to be a mortgage on real estate and a mortgage on personal property, being the instrument which complainants claim to be an assignment as aforesaid, in which said two banks before mentioned and Blanchard and ''Sheldon are parties defendant, and none of the creditors embraced in said $34,000 of claims were made defendants. ■Said bill, among other things, prayed for appointment of a receiver over said property, and, after bill was filed, application was made to court for appointment of receiver. The defendants in said suit consenting to it, the court, on February 24, 1897, appointed one John Johnson as such receiver, he being a stockholder and one of the directors in the Commercial & Savings Bank, and a stockholder in the Elms Buggy Company. He filed a bond, signed as sureties by stockholders of the Commercial & Savings Bank and by the president and stockholders of the First National Bank. If the parties made defendants in such suit were necessary parties, then complainants were also. ■Said bill set forth no grounds whatever for the appointment of a receiver, and the court was imposed upon by said parties in making such appointment, and complainants believe such appointment would not have been made had the court not believed that it was desired by all persons in interest. The failure on Dearing’s part to make complainants defendants in such bill, and to give them notice of application for receiver, was a part of defendants’ scheme (said banks and said Dearing) to obtain the property ■of said buggy company through such foreclosure, and prevent complainants from getting anything out of it, and prevent them from applying for and getting a receiver who was disinterested between the parties.
    (16) It would be a great sacrifice to sell the personal property coming to Dearing through said assignment at a forced sale, as it consists of unfinished vehicles and parts thereof, and twice as much could be realized from the same goods at private sale rather than by foreclosure sale;, and the attempt to force said stock to said foreclosure sale by said Dearing and said banks, and this through the decree and sanction of the court, is another step in the attempt to get the property from complainants, and to apply the proceeds of such sale to other than complainants’ claims; and by such scheme, if successful, said two banks will get all of said property, except such as Blanchard and Sheldon may get. Said property as heretofore manipulated by Dearing has very much depreciated in value, and much good and collectible commercial paper is now claimed by him to be worthless; but same is not worthless, and said banks expect to get it through said foreclosure proceedings.
    (17) Said Dearing and Johnson are both antagonistic to complainants, and are now managing said property in the interest of said two banks and against complainants’ interest. Dearing is attempting to shield himself from-his failure in carrying out his trust in a proper manner by having Johnson appointed receiver, and shifting the responsibility upon him. Johnson is only an agent and tool of Dearing and said banks, and complainants claim the right to have a receiver appointed who has no personal interest to subserve, who will take charge of the insolvent buggy company without prejudice or bias as against any one interested, and who will dispose of said property in a manner which will be for the best interests of all- beneficiaries; and that Dearing should be restrained from forcing said property to a public sale, and said Dearing and Johnson should be ordered to turn over all of said property to a receiver to be appointed by this court.
    (18) The prayer of the bill is:

      “First. That the court should decree that the said instrument made by the Elms Buggy Company, and now denominated a chattel mortgage, is in fact a common-law assignment for the benefit of all the creditors of the Elms Buggy Company, and that all the creditors of said company are entitled to share proportionately in its property, and that the preferences therein mentioned are void.

      “Second. That Henry M. Dearing be required to account to this court for his acts and doings as trustee under said instrument, and to render an account of all moneys received by him and paid out by him, stating the particulars in regard thereto; that he be required to account for and pay in all moneys received by him, and which may have been improperly paid out by him.
    ‘ ‘ Third. That the rights of all the creditors of said Elms Buggy Company in and to the property of said Elms Buggy Company should be adjudicated upon by said court.

      “Fourth. That the court decree that the proceedings brought by said Henry M. Dearing for the foreclosure of the two instruments mentioned in the bill, and the appointment of defendant Johnson, were collusive as between the parties mentioned in the bill, namely, the two banks and Dearing and Johnson, and that the same were commenced without any right or authority, so far as complainants’ rights' are concerned; that the court had no jurisdiction to appoint Johnson as receiver; and that the bill on which such appointment was made be made a part of the proceedings in this case so far as is necessary.

      “Fifth. That a receiver be appointed in this suit, and Dearing and Johnson be required to turn over to such receiver all property, books, etc., of the Elms Buggy Company _ • ■
    _ “Sixth. Prayer for general relief.”
    Answers and replications were duly filed, and notice given by the various parties to take the testimony in open court., After all these proceedings, complainants made a motion for an injunction and the appointment of a receiver. Upon the hearing of this motion the court refused an injunction and the appointment of a receiver, and entered a decree dismissing the bill.

      Adelbert Culver, Boudeman & Adams, and Bowen, Douglas & Whiting, for complainants.

      Herbert F. Winsor, Monfort D. Weeks, and Parkinson & Campbell, for defendants.
   Grant, C. J.

(after stating the facts). The court based its conclusion upon the finding that the mortgages or trust deeds were merely securities, and could not be construed as common-law assignments.

1. The court was in error in dismissing the complainants’ bill. The cause was at issue, and ready for the introduction of proofs. The sole question for determination was whether a receiver should be appointed and a temporary injunction granted. If the instruments are held to be assignments, the complainants are not seeking to set them aside, but to have the trust enforced with the preferences declared void, so that all the creditors may share equally. This is the proper and equitable course to pursue in case of assignments with preferences. If the instruments are held to be securities, and valid, the complainants are entitled to be heard upon pleadings and proofs as to the alleged violation of the trust by the assignee, Mr. Dearing. .By the express terms of the mortgages — if held to be such • — -the complainants are interested, and entitled to call the trustee to an account. He filed a bill, which is claimed to be collusive, and did not make these complainants parties. Under either aspect of the case the court should not have dismissed the bill until after a hearing upon the proofs. It is proper to add that the answers deny all the material allegations of the bill.

2. The conveyances are between the Elms Buggy Company and Mr. Dearing as trustee. They state that they are made for the purpose ‘ ‘ of securing the payment of all its [the buggy company’s] debts to all its creditors.” They cover all the property of the company, and say that said company “does sell, assign, transfer, set over, and mortgage unto said second party as such trustee,” etc. They then prefer certain creditors, and, after they are paid, the avails of the residue are to be divided among the other creditors. It is not stated therein when the debts are due, but they contain the usual provisions for taking possession upon default in payments. The instrument ■called the “ chattel mortgage ” closes with these provisions :

'“It is believed by said first party that it is for the benefit and advantage of the creditors for it to continue the business of manufacturing until such time as it shall have used up all its stock now on hand for the purpose of transforming the raw material into manufactured stock, and, in case some certain lines should be exhausted, that it should buy sufficient new material of any kind not on hand necessary to complete the working up of any other available for that purpose. For this reason said first party contemplates the continuance of its said business, and of selling said product for the benefit of those secured. And it is expressly understood that said first party shall keep a true and accurate and detailed account of all the expenses of so operating the business, and of all receipts, and shall render such account and statement to the said trustee, who shall have the right to examine into the said business and said work; and if, at any time, he shall believe that the continuance of said business is not for the interest of the creditors secured hereby, he shall have, full power and authority to stop the operation of said factory, and take possession of the said property, if he deems it necessary, and at maturity of this mortgage dispose of the said property in accordance with the terms of this mortgage. And said party of the second part, as such trustee, is also authorized and empowered, by himself or his agent, to receive into his custody all proceeds of sale, and all remittances, and all orders for manufactured goods at all times; and for that purpose he shall have access to all correspondence and letter books of said first party to such extent as, in his judgment, is necessary for the full and complete discharge of his duties hereunder.”

The bill alleges that the trustee immediately took possession, and conducted the business until he filed the bill above referred to, and that the parties by their acts construed the conveyance to be a general assignment for the benefit of creditors. It is unnecessary to now determine the character of these instruments upon their face. Fraud is charged, and we are not prepared to say that they may not be shown by proofs to in fact constitute an assignment. Upon this we express no opinion, but prefer to leave it to the final determination of the case. We can only dispose of the question now as if it were before us on demurrer.

3. Counsel for complainants strenuously urge that this court should appoint a receiver, or direct the court below to appoint one. All allegations of fraud are denied by the answers. The property is already in the hands of a receiver, who presumably has given a good and sufficient bond. Upon ascertaining the view of this court upon the law of the case, the court below will, of course, take such action as it shall deem advisable to preserve the property for the benefit of those who shall eventually be entitled to it. We think that this question should be left to the determination of that court.

The decision is reversed, with the costs of this court, and the case remanded for further proceedings.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. WARNER.
    1. Swamp Lands — Grant of 1850 — Islands in Great Lakes.
    A marshy island in one of the Great Lakes, not in existence at the time of the swamp-land grant by Congress to the State in 1850, belongs to the State, by virtue of its ownership of the soil beneath the waters of the Lakes.
    2. Same — Certification by Secretary of Interior — Effect of Omission of Lands.
    A marshy island in one of the Great Lakes, existing as unsurveyed land at the time of the certification by the secretary of the interior of the list of swamp lands covered by the grant, will not, because of its being omitted from such list, be deemed to have been determined by the secretary not to be within the grant, unless there is evidence tending to show that the question as to such land was actually considered and passed upon.
    3. Same — Character of Grant — Suspension of Right of Entry.
    The swamp-land grant wa,s a grant in prcesenti, conveying to the State the title to such lands as came within its terms, but suspending the right of entry until the lands covered thereby should either be determined by the secretary of the interior, or he should refuse to act.
    4. Same — Adjudication.
    Where the secretary of the interior refuses to make the determination as to particular unsurveyed lands claimed by the State under the terms of the grant, the State may cause a survey to be made, and have the matter adjudicated in the courts.
    5. Same — Adverse Possession as Against State.
    Possession of such lands under claim of title would not be adverse to the State until its right of entry became complete under the terms of the grant.
    6. Same — Reclamation.
    The swamp-land grant of 1850 covered all swamp and overflowed lands, and not those alone which were susceptible of profitable reclamation by drains and levees.
    7. Riparian Rights —Great Lakes —Limit of Private Ownership.
    The limit of private ownership of islands in the Great Lakes is. the water line, regardless of the fact that adjacent land is submerged only to a slight depth, and is grown up to aquatic plants
    8. Same — Accretions—Submerged Island.
    Additions to the land of a littoral proprietor by the action of the water become a part of the land, and belong to the owner, where they are so gradual as to be imperceptible; but if an island arises out of the water, and afterwards becomes connected to the land of the littoral proprietor, it belongs to the State.
    D. Same — Access to Navigable Water.
    The owner of an island in one of the Great Lakes has no such right of access to navigable water as will support a claim of title in fee, as against the State, to an intervening island.
    Error to Huron; Beach, J.
    Submitted January 28, 1898.
    Decided March 15, 1898.
    Ejectment by the people against Hulbert H. Warner and John D. Weeks. Prom a judgment for plaintiff on verdict directed by the court, defendants bring error.
    [Reversed.

      Gyrenius P. Black (John G. Milburn, of counsel), for appellants.

      Fred A. Maynard, Attorney General (Avery Bros. ■& Walsh, of counsel), for appellee.
   Hooker, J.

In 1853 there existed in Saginaw Bay an island called “Maisou,” which had never been surveyed. In that year a- survey of this island was made by the government, and it was sold in 1868. A copy of the plat which was made by the surveyor is attached to this opinion, whereby it is shown that the surveyor found land lying to the eastward of Maisou island, which, he denominated “Wet Marsh,” and apparently did not survey. It appears upon the plat as two small islands. These islands now constitute a part of a somewhat extensive stretch of land and shallows, known as the “Middle Ground,” shown by a map filed herewith, and which is claimed by the State, but occupied by the defendant Warner, who is the admitted owner of Maisou island.

By Act No. 66, Pub. Acts 1891, the Middle Ground is made a public hunting and shooting ground. An effort was made by the State, in 1885, to induce the authorities at Washington to survey this Middle Ground, and issue a patent to the State, under the swamp-land act of 1850; and a survey of some sort was made by a federal surveyor, named Strudwick. The defendant Warner intervened, and made claim to the Middle Ground as an accretion to Maisou island; and, upon the other hand, the State claimed title to the newly-found land as accretions

to the two islands mentioned as “Wet Marsh.” The commissioner of the general land office determined that the Middle - Ground was an accretion to Maisou island. The matter was finally disposed of by Vilas, secretary of the interior, by a decision reported in 7 Land Dec. Dep. Int. 255 ( The Middle Grounds). This decision reversed that of the commissioner. We infer from the decision that the survey was completed in 1887 by Strudwick, and was duly filed;-that it included the “swamp and overflowed grounds called the ‘Wet Marsh,’ and other land then apparently lying between them and Maisou island, * * * now known as the ‘Middle Grounds.’” The controversy appears to have related to the territory between Maisou and the original Wet Marsh; Warner claiming it as an accretion to Maisou, and the State claiming it as an accretion to the Wet Marsh. To determine this, it became necessary to locate the Wet Marsh as it was in 1850, and investigate the nature, condition, and extent of the alleged accretion. This the secretary refused to do, upon the ground that the department was “not equipped with the proper means of ascertaining these facts.” He therefore directed the discontinuance of the proceedings under the surveys, and that the parties be left to the maintenance of their rights in the courts. The State thereupon proceeded to make a survey, and, after its completion, brought ejectment against Warner and his tenant, who have appealed from a directed verdict in favor of the State. Their first contention is that the State has not proved its own title.

If the land which was denominated “Wet Marsh” in the plat of 1853 was in existence in 1850, it was included in the grant to the State, provided it was of the character described. If it was not then in existence, it became the property of the State by virtue of its ownership of the submerged land at the bottom of the lake. People v. Silberwood, 110 Mich. 103. Assuming its existence in 1850, and that it comprised only such land as the act sought to convey, it then became the duty of the secretary of the interior to so determine, and list it as such. The defendants maintain that it was determined not to be swamp land within the act, inasmuch as the interior department made .and filed a list embracing lands within the township of which both surveys show that this is a part, which list did not include these islands. Failing in this contention, it is ■said that there has never been a determination that any of these lands were covered by the act. We will pass the first contention with the remark that if the inference is warrantable that particular lands in a township are not ■covered by the act, because not included in the list or patent of lands made by the interior department in furtherance of the law, it should not apply to lands which, though within the township, have never been surveyed, unless there is evidence tending to show that the question as to such lands was actually considered and passed upon. It is evident that these lands were not considered when the list was made. What evidence there is indicates that the ■department considered these islands the property of the State, when they were brought to the attention of the secretary. The case of Chandler v. Mining Co., 149 U. S. 79, applied to a claim to lands which had been surveyed previous to the time that the list was made. This might reasonably justify the presumption of exclusion. The ■decision of the secretary of the interior referred to would indicate that it was his understanding that unsurveyed land is not treated as excluded because not in certified lists of the township. Until the islands were surveyed, it could not be told whether or not they would be within the township, which until that time had not been extended to them. No list of lands or patent has been made of territory in this locality since 1853. On the contrary, when it was demanded, it was refused, not because the department could not determine that these islands were the property ■of the State, but because.it had not the means, or (as the secretary held) the power, to determine where they were located. In other words, while he conceded the right of the State, he was unable to determine what portion of the land for which the State asked a patent constituted these islands, and could not know that some part of the land asked for was not an accretion to Maisou island, and therefore no part of or accretion to the property granted to the State.

We cannot accede to the contention that the government has made no survey of this Middle Ground. There is not only the original survey, the plat at least of which shows the Wet Marsh, but there is the Strudwick survey, whatever it was, upon which the commissioner determined the Middle Ground to be an accretion to Maisou, and the secretary determined that it was at least a doubtful question. There is significance in his statement that — -

“The plat of the government survey also shows that at some considerable distance, a mile and a half to two miles, to the northeast, two small marshy islets of land appeared, of such inconsiderable size and so wet that no distinct plat of them as parts of any section was made, but the surveyors simply marked them as ‘Wet Marsh.’ Necessarily, therefore, if this survey was any indication of the fact, these small plots of wet marsh passed to the State under the swamp-land act of September 28, 1850. That act was a present grant, and vested the title to all the swamp and overflowed lands of this character within the limits of the State in the State upon its passage. Whether or not a tract of land passed to the State by virtue of that grant depends simply upon the question, What was the character of the land at the time, as being swamp or overflowed ? A special agreement has been made with Michigan (1 Lester’s Land Laws, 542), as with some other States, whereby the field notes of the government survey are to be conclusively taken as the basis of determination of swamp and overflowed land in that State, and of adjustment under the grant. * * * This recital of the facts shows that all of the title of the United States to the swamp and overflowed lands mentioned, being such as were shown by the plat and field notes of the survey, passed to the State in 1850, and that all the title of the United States to Maisou island passed to the patentee in 1868.” The Middle Grounds, 7 Land Dec. Dep. Int. 256.

May we not reasonably understand that this land was all surveyed, and that the secretary was satisfied, and has determined by this decision, that the Wet Marsh passed to the State in 1850? And does it not follow, as the secretary practically says, that all of this Middle Ground, whether wet or dry, high or low, that has appeared above the water since, must belong to the State, unless it may be lawfully considered an accretion to Maisou? What element is it that is lacking in the State title ? Simply an inability to designate the particular legal subdivisions that cover the original “Wet Marsh.” Apparently, that can never be done authoritatively by a survey. The only evidence by which it may now be established is the recollection and testimony of men.

If the secretary is correct in his opinion that his department cannot determine this question, it is manifest that only the courts can. If wrong, it is plain that he has refused to do so. In such case the courts may, as to each parcel, after it is brought within a legal subdivision by survey. Two cases are cited by cofinsel for the State as authorizing an inquiry by a court in an action brought to recover the land. The first of these is Railroad Co. v. Smith, 9 Wall. 95. This case sustained the admission of oral proof of the character of the land, offered by the defendant in possession under a patent from the State, which purported to convey the premises as swamp land, to establish the proposition that they were not within a subsequent grant to a railroad, from which the plaintiff derived its claim of title, because within the exception in the later grant, which excluded lands conveyed under the swamp-land act. This was upon the theory that the swamp-land act constituted a grant of land in prcesenti, passing the title to the lands, — a proposition which is sustained by numerous State and Federal cases. This was not a unanimous opinion, and has since been discussed in several cases, where prominence has been given to the fact that this evidence was admitted, not to establish a title, but to show that the particular land could not be considered within the railroad grant. Stress was also laid upon the fact that the secretary of the interior had neglected or refused to do his duty, and, as the courts had no power to compel performance, the State would be remediless, and might lose an entire grant through the contumacy or neglect of an officer, if the courts could not settle the question. In this case there was a federal survey. In the later case of Wright v. Roseberry, 121 U. S. 488, Mr. Justice Field had occasion to review this question, in a case where the plaintiff, who was a patentee of the State of swamp lands, undertook to recover possession from an occupant claiming title under a patent from the United States issued after 1850. The land had never been surveyed by the general government, nor had the lists mentioned been made or filed, nor had a patent issued to the State. We will not attempt a lengthy discussion of this case. It reviews the former cases, and contains the following significant language:

“ The result of these decisions is that the grant of 1850 is one in prcesenti, passing the title to the lands as of its date, but requiring identification of the lands to render the title perfect; that the action of the secretary in identifying them is conclusive against collateral attack, as the judgment of a special tribunal to which the determination of the matter is intrusted; but, when that officer has neglected or failed to make the identification, it is competent for the grantees of the State, to prevent their rights from being defeated, to identify the lands in any other appropriate mode which will effect that object. A resort to such mode of identification would also seem to be permissible where the secretary declares his inability to certify the lands to the State for any cause other than a consideration of their character.”

We understand the effect of this decision to be that where the secretary of the interior has neglected to perform his duty under the act, by identifying the land, a person who claims under the State may prove his title in a collateral action by showing, by any evidence that will prove it, that the premises in dispute were necessarily included in the grant, according to its terms. ■ It is true that the decision in that case might have been planted solely upon subsequent legislation, wherein Congress authorized another mode of identification, but it was not. We understand it to enunciate the doctrine that, when the means provided by the act for adjudicating the question of what particular lands are actually within the terms of the original grant fail, the State or its grantee ,may identify the land conveyed by the usual methods of identification, and by proving that it is within the description of the deed. And if counsel are correct in saying that it is admitted that the government never made a survey of this territory, and therefore that we cannot find that the secretary has determined that these islands were “ swamp or overflowed lands,” and that they became the property of the State, then we should merely say that these facts also were not determined, and are yet open questions, and ’may be determined by a survey by the State and adjudication by the courts. From the cases cited, we understand that the swamp-land act was a grant in prcesenti; that it' conveyed the title, but suspended the right of entry until it should be determined by the statutory tribunal what subdivisions of land it applied to, or it should refuse or fail to do so. When this tribunal failed and refused to act, the suspension was at an end, and the State or its assignee was at liberty to identify and take possession or bring an action to recover the land, upon the theory that the grant was certain because it could be made certain, as in any other case.

Here, then, we have, at the worst, a case where two islands are known to have belonged to the State, or may be shown to he within the grant. Through natural causes, it has become impossible for them to be definitely located with reference to any legal subdivision, or, if that is possible, the tribunal erected to determine the question has no jurisdiction, or has refused to act in the premises, and convey the land by patent to the State. We think it is competent for the State to survey the premises, and to prove the facts regarding the nature of the land, and thus establish title in the State.' Practically, however, it is of little importance "in the case to know in what particular legal subdivision those original wet marshes should be located. Wherever they were, so long as within the territory described, it is sufficient if they were all swamp. It is the other and additional land that gi-ves rise to the actual dispute. But for this, there could be no claim that the premises were an accretion to Maisou, and it only becomes important to know where the wet islands were situated when it becomes necessary to find that some of this land was an accretion to them; and this only becomes necessary in case there is a possibility of its being an accretion to Maisou, because upon this defendant Warner’s title depends, and, if the land is not his, it must, under the evidence, belong to the State, if the two islands were swamp lands.

It is urged that the islets were not swamp or overflowed lands, within the act, because they could not be profitably reclaimed. We think the act should not be construed to grant only such parcels as were specifically and individually susceptible of profitable reclamation by drains and levees. All swamp lands were granted, that the State might thereby acquire a fund for general drainage purposes. The act applies to islands as well as the main land, and, if we cannot say that the evidence indisputably shows that the islets were swamp and overflowed lands, we must, at the least, say that was a question for the jury.

Being convinced that the State has proved a prima facie title to, at least, a portion of the premises, we will discuss the case from the standpoint of the defendants. There are four subjects to which our attention is directed:

1. Whether the evidence conclusively shows that no part of the Middle Ground is an accretion to Maisou.
2. Whether, under the law, the defendant Warner’s title extends eastward from Maisou to the deep water beyond the Middle Ground.
3. Whether, as owner of Maisou, he has any riparian rights which justify a reversal of the case.
4. Adverse possession.

The most comprehensive claim of title on the part of the defendant Warner is that his purchase of Maisou island gave him title of all land and water to the center of the main channel between the Middle Ground and the ■east shore of the bay. This would include the Wet Marsh and all of the Middle Ground. We have already intimated that the rule by which such a result is reached does not apply to the Great Lakes. The title to the fee in the submerged land belongs to the State. People v. Silberwood, 110 Mich. 103.

The depth of water upon submerged land is not important in determining the ownership. If the absence of tides upon the Lakes, or their trifling effect if they can be said to exist, practically makes high and low water mark identical for the purpose of determining boundaries (a point we do not pass upon), the limit of private ownership is thereby marked. The adjoining proprietor’s fee stops there, and there that of the State begins, whether the water be deep or shallow, and although it be grown up to aquatic plants, and although it be unfit for navigation. The right of navigation is not the only interest that the public, as contradistinguished from the State, has in these waters. It has also the right to pursue and take fish and wild fowl, which abound in such places; and the act cited has attempted to extend this right over the lands belonging to the State adjoining that portion of the water known to be adapted to their sustenance and increase.

Upon the subject of accretions, we understand the law to be that additions to the land of a littoral proprietor by the action of the water, which are so gradual as to be imperceptible, become a part of the land, and belong to the owner of the land, but, when not so, they belong to the State. So, if, by the imperceptible accumulation of soil upon the shore of an island belonging to a grantee of the government, or by reliction, it should be enlarged, such person, and not the State, would be the owner; but if an island should first arise out of the water, and afterwards become connected to that of the private proprietor, it would not thereby become the property of such person, but would belong to the State. See 1 Am. & Eng. Enc. Law (2d Ed.) 467, et seq., and cases cited. It will be seen by the map that the point at which Maisou island and the Middle Ground approach each other nearest is on the S. W. 1; of section 8. If the Middle Ground or any part of it is an accretion to Maisou island, it is by reason of the growth of the former from this point; and it becomes important to know whether the land was washed up against Maisou, and gradually extended that point eastward and northward, or whether land arose from the-water to the northward and eastward, and gradually approached Maisou, until a gradually-narrowing water-passage was obliterated at times of low water. In the former case there may be force in the claim that there-was an accretion to Maisou, and it would then become important to know how far it extended. We are of the 'opinion that this was a question for the jury, and sh ould not have been taken from them. We have here, therefore, a question of fact as to whether any, and, if so, what, portion of the Middle Ground is an accretion to Maisou. As to such extent the defendants would be entitled to a verdict.

It is contended that the defendant Warner, as littoral proprietor, has a right of access to navigable water to the eastward of Maisou. If this is true (which we do not intimate), it is merely a right to use the intervening land for the purpose, which does not interfere with the rights of the public, and does not support a right to take-full possession, and exclude both the State and the public from a large area of land and water, under a claim of title in fee. There is nothing in the case to indicate that any such access has ever been sought, or that it is likely to be. It is not clear that, with the exception of a very small portion, the entire shore of Maisou is not accessible to vessels ; and it is obvious that this is' not a meritorious defense in an action brought to determine the ownership of land, where each party claims an absolute title in fee simple.

It remains to allude to the question of adverse possession. The claim is made, and some evidence appears in support of it, that tbe defendant Warner and his grantors have enjoyed the exclusive possession, under claim of title, of the whole or some portion of the land in controversy from the year 1870. This possession, such as it was, does not appear to have been unquestioned. As early as 1885, we ‘find the State claiming it, and from that time to this it has steadily attempted to acquire possession ; and, as appears, the right of entry to the two islets and their accretions did not accrue until the failure of the secretary of the interior to list and convey the land.

We think the court erred in taking the case from the jury. The judgment is reversed, and a new trial ordered.

The other Justices concurred.

       Page 230.

       See opposite page.


text:
    WIGHT v. ROETHLISBERGER.
    1. Equity Pleading — Parties—Wards.
    A bill to restrain the sale of land on execution by one who obtained a judgment as guardian is not demurrable on the ground that the ward is not made a party, where it does not show that the ward is interested.
    2. Same — Suit Against Sheriff — Official Capacity — Sufficiency of Allegation.
    A bill to restrain the sale of land on execution, which alleges that defendant levied “as sheriff,” sufficiently shows that the suit is against the defendant in his official capacity, although he is not described as sheriff in the prayer for relief.
    3. Same — Jurisdiction—Amount Involved.
    The jurisdiction of equity over a suit to enjoin the sale of land on execution depends upon the value of the land, rather than upon the amount of the judgment.

      4. Same — Presumption oe Value.
    The court will assume, in support of the jurisdiction over a bill to restrain the sale of 44 lots located in a thriving and populous city, that they are worth more than §100, in the absence of any allegation of value.
    5. Same.
    Whether á bill would lie to restrain the unlawful interference with the owner’s enjoyment of property worth less than §100, —guare.

    6. Same — Multifariousness—Relief.
    The fact that the statute providing for the maintenance of bills to remove clouds from title does not authorize the assessment of damages in such a suit does not render such a bill multifarious because it embodies a claim for damages, since complainant would be entitled to such relief only as is consis. tent with the case stated in the bill.
    7. Same — Estates by Entirety — Actions—Parties.
    A wife is a proper party to a bill to restrain the sale, under an execution directed against her husband, of lands held by them as tenants by the entirety.
    8. Same — Tenants in Common.
    But a tenant in common with them, whose interest is not affected, no levy having been made thereon, is not a necessary party to such a bill.
    .9. Same — General Demurrer — Question oe Fraud.
    The claim that the husband took title in himself and wife for the purpose of defrauding his creditors cannot be considered ■on a general demurrer to the bill, where there is nothing upon its face denoting such fraudulent purpose.
    Appeal from Kent; Adsit, J.
    Submitted January 27, 1898.
    Decided March 15, 1898
    Bill by Henry T. Wight and wife against Frederick A. Roethlisberger and Irving Woodworth to enjoin an execution sale. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.
    The material averments of the bill are as follows: Complainants are owners in fee, as tenants by the entirety, of 44 lots of land in the city of Grand Rapids. The deed to them was executed August 31, 1895. Defendant Roethlisberger, as guardian, obtained a judgment against complainant Henry T. Wight, caused an execution to be issued out of the circuit court for the county of Kent, and defendant Woodworth, sheriff of said county, by virtue of said execution, levied on said lands. Said lands are held by complainants for the express purpose of sale and exchange. Said levy operates to prevent them from selling or disposing of said lots, was intended to so operate, and has caused them damage to exceed $100. Defendant Roethlisberger refuses to release said levy, and says that he shall in a short time proceed to sell, and has furnished to said sheriff a bond of indemnity, and he refuses to release the levy. Complainants allege on information and belief that Roethlisberger does not intend to file a bill in aid of his execution, but is holding the same thereon for the express purpose of causing damage to them, and to force them to pay the amount of said execution. ‘ They fear that Roethlisberger, without filing a bill in chancery in aid of his execution, will proceed to sell said lands. They pray for an injunction to restrain the sale, and for a decree to remove the cloud from their title, and for damages. Defendants demurred. The demurrer was overruled, and they appeal.

      Wolcott & Ward, for complainants.

      Cutcheon & Sioarthout, for defendants.
   Grant, C. J.

(after stating the facts). 1. The

first ground of the demurrer is that the ward of Roethlisberger is a necessary party. Where the interests of an infant are involved, he must be made a party, and a guardian ad litem appointed. It is unnecessary to cite authorities to sustain this proposition. But this bill does not show that the ward is interested. When the judgment roll is introduced, it may show that the ward has such interest as to require the interposition of a guardian ad litem to protect his interest. If it should then appear that such appointment is necessary, it will be. time for the court to take action.

2. It is urged that the suit is not planted against Wood-worth in his official capacity. The bill alleges that he has levied as sheriff, and this is sufficient. The fact that in the prayer for relief he is not described as sheriff does not determine that he is sued individually. All the allegations must be considered.

3. It is next urged that the bill does not show affirmatively that more than $100 is involved. We think it fair to assume that 44 lots in the city of Grand Rapids are worth more than $100. This question must be determined by the value of the lots, and not by the amount of the judgment in the suit at law. Fuller v. City of Grand Rapids, 40 Mich. 395. Where the jurisdiction depended on the amount of the interest involved, and there was no allegation of the value of such interest, the court refused to dismiss the bill on general demurrer, and said, “We will not assume that a debt to secure which the debtor turned out 1,500 tons of No. 1 iron ore was not over $100.” Glidden v. Norvell, 44 Mich. 206. If, however, the lands were not worth $100, still it does not follow that a 'bill will not lie to prevent the unlawful interference with the owner’s enjoyment. The contrary view seems to have been taken by the court in White v. Forbes, Walk. Ch. 112. Upon this question we express no opinion at the present stage of the controversy.

4. It is insisted the bill is multifarious, because it prays for the removal of a cloud from title, and for damages. The point is that the right to maintain a bill to remove a cloud from title is statutory, and the statute does not authorize the assessment of damages in such a suit. Complainants, then, have prayed for relief to which they are not entitled. They would be, in that case, entitled to such relief as is consistent with the case stated. Hammond v. Michigan State Bank, Walk. Ch. 214; Varick v. Smith, 5 Paige, Ch. 137. See, also, 15 Am. & Eng. Enc. Law, 947.

5. We think that Mrs. Wight is a proper party, and that the tenant in common with complainants is not a necessary party. His interest is not affected, and no levy is made upon it. There is no injury to the common estate.

6. Defendants claim that the object of complainant Wight in taking title to this land in himself and wife was to defraud his creditors. There is nothing upon the face ■of the bill to show any such purpose. It does not appear that Mr. Wight was at that time indebted to defendant Roethlisberger or his ward, whoever he may be. Defendants can only take advantage of this by proper suit to establish the fraud and secure relief. Whether this can be done by an answer in this suit is not before us. We only hold that there is nothing now before the court to justify this conclusion.

Decree affirmed, with costs, and case remanded for defendants to plead or answer according to the rules and practice of the court.

The other Justices concurred.