author: Blair, J.

text:
    PATTERSON v. CALHOUN CIRCUIT JUDGE.
    1. Mandamus — Propriety—Taxation op Costs.
    Mandamus is the proper remedy to review the action of the circuit court in retaxing costs.
    3. Costs — Retaxation—Questions Considered.
    The circuit judge on retaxing costs can consider only such objections to the bill of costs as were presented to the clerk.
    3. Judges — Fees—Probate Judge — Drain Prooeedings — Certiorari.
    Where drain proceedings are removed to the circuit court by certiorari, the probate judge is not entitled to any extra compensation for making certified copies and exemplifications of proceedings required by law to be set forth in the return to the writ, section 4393, 3 Comp. Laws, not applying to such matters.
    Mandamus by John C. Patterson and others to compel Joel C. Hopkins, circuit judge of Calhoun county, to re-tax and disallow a bill of costs in certain drain proceedings.
    Submitted January 2, 1906.
    (Calendar No. 21,486.)
    Writ granted July 3, 1906.
    Relators removed certain drain and auxiliary condemnation proceedings by writ of certiorari to the circuit court, where judgment went against them. Respondents presented to the county clerk their bill of costs for taxation, including the following items, viz.:
    ATTORNEY PEES.
    For fees on certiorari on affirmance of judgment below_____§12 00
    For term fees, cause on calendar but not reached or postponed, viz.:
    February term, 1901....................-.................. 5 00
    May term, 1901 _•......------------------------------------ 5 00
    September term, 1901--------------------------..------;____ 5 00
    Clerk’s fee.-............................................... 8 00
    Costs of certified copies and exemplifications............... 97 10
    Affidavittobillof costs.................................... 25
    Taxation of costs..............-........................... 25

      Relators filed their objections to the taxation of this bill of costs, as follows:
    “The item of $97.10 for certified copies and exemplifications, for the reason that no such costs were contemplated or provided for by the statute in certiorari cases.
    “ 2. The items for term fees at the February, May and September terms for 1901, for the reason no such costs are contemplated or provided for by the statute in cases of certiorari.
    “ 3. The cáse was not in condition to notice for hearing at the February and May terms, 1901, for the reason the respondents had not made proper returns to the writ, and the case was postponed to give them time to complete and perfect their returns.
    “ 4. The case was not in condition to be noticed at the September term, 1901, and, when the case was reached, it was continued over the term.
    “5. The affidavits to fee bills are not required, and hence the item for such fees cannot be taxed.”
    The clerk disallowed the term fees for the February and May terms and allowed all of the other items. Relators moved the circuit court for a retaxation, broadening their objections filed with the clerk to include the remaining items of the bill of costs and assigning new reasons. The circuit judge, holding that he could only consider objections which had been presented to the clerk, struck out of the item of $97.10, $24, so that the remainder of $73.10 represented the fees of the probate .judge for certified copies and exemplifications of records and documents returned by him in answer to the writ, and allowed the remainder of the items as taxed by the clerk. Relators petition this court to grant a writ of mandamus, ordering the circuit judge to retax and disallow the entire , bill of costs, in accordance with their objections. • Respondent •presents a preliminary objection to hearing this application that mandamus is not the proper remedy. This objection was held invalid in Schmidt v. Wayne Circuit Judge, 136 Mich. 658.

      John C. Patterson, for relators.

      Hatch & Page, for respondent.
   Blair, J.

(after stating the facts). We agree with the circuit judge that only such objections as were presented to the clerk could be considered on the application for retaxation. This leaves for our consideration the objections to the item of $73.10 for certified copies, etc.,, and the September term fee of $5. Relators contend that, since'section 4346, 2 Comp. Laws, provides that the same practice shall be followed in reviewing drain proceedings on certiorari as is required for reviewing judgments of justices of the peace on certiorari, as near as may be, and since section 942, 1 Comp. Laws, provides that “ the sum of two dollars shall be paid to the justice of the peace for his fees for making a return to the certiorari,” it follows that the $2 fee which was paid to the probate judge was in full of all services performed by him in making his return to the writ. The certified copies and exemplifications were made and returned under the following order for a further return, viz.:

“ It satisfactorily appearing to the court from the record and files of said cause that the respondent, William A. Lane, judge of probate of Calhoun county, has not certified the writ of certiorari and the copy of affidavit therefor, heretofore served upon him, and that he had not certified transcripts of all the papers, orders or proceedings had before him and of record in the probate office of Calhoun county mentioned in said affidavit for said writ, and that in some matters he has returned the original papers and files of the said probate court instead of copies therefrom, on motion of John C. Patterson, attorney for said relators in said cause, it is ordered that the said respondent, William A. Lane, judge of probate of Calhoun county, be and is hereby permitted to withdraw from the files and records of this court all the papers, orders and proceedings which have been heretofore filed in the said probate court and returned by him to this court.

“ It is further ordered that the said respondent, William A. Lane, be and he is hereby required to certify and return the writ of certiorari and the copy of affidavit therefor heretofore served upon him, together with a correct transcript of all the petitions, orders, citations, motions, affidavits, rulings, exceptions, testimony, venire, awards, papers and proceedings, and filed, made or recorded in said probate court and mentioned in said affidavit for writ of certiorari and the'practice of this court, on or before the first day of next term of this court.”

Respondent contends that the allowance of the item of $73.10 was justified and required by section 4392, 2 Comp. Laws, and section 11297, 3 Comp. Laws. That portion of section 4346 necessary to be considered is, as amended by Act No. 272, Pub. Acts 1899, as follows: .

“ Provided, That the proceedings in establishing' any drain shall be subject to review on certiorari as herein provided. Notice of such certiorari shall be served upon the county drain commissioner within ten days after the copy of the final order of determination of such commissioner in establishing any drain has been filed with the county clerk as provided in section one of chapter four, in the same manner as notice is required to be given of certiorari for reviewing judgments rendered by justices of the peace and the writ shall be issued and served and bond given and approved and the subject-matter brought to issue in the same time and manner as near as may be as in such cases provided, except * * *. If the proceedings be sustained, the party bringing the certiorari ■shall be liable for the costs thereof and if they be not sustained, the parties making application for the drain shall be liable for thé costs.”

Sections4392 and 11297 are as follows:

“(4392) Juries and special commissioners shall receive the same compensation as the county drain commissioners, and newspaper publishers shall receive legal rates for advertising. The judge of probate shall receive ten cents per folio for making exemplified copies of any proceedings had in the probate court, two dollars for the appointment of special commissioners, including the certified copy of the order of their appointment and three dollars for all services performed in case a jury is had. For all services mentioned in this section, the county drain commissioner shall draw orders on the funds of the several drains for which said services were performed.”

“ (11297) When there shall be charges in á bill of costs for the attendance of any witness or for copies or exemplifications ' of documents or papers, or for any other disbursements, except to officers for services rendered, such charges for witnesses shall not be taxed without an affidavit stating the distance they respectively traveled and the days they actually attended; and such charges for copies shall not be taxed without an affidavit that such copies were actually and necessarily used or necessarily obtained for use; nor shall such disbursements be allowed without an affidavit specifying the items thereof particularly, nor unless they appear to have been necessary and reasonable in amount, when in any case a party is entitled to charge witness fees, and his bill of costs shall contain an item or items for the attendance and travel of the party himself as a witness, such item or items shall be taxed upon affidavit that the party was in attendance upon the court for the time charged for the purpose of being sworn as a witness and not to assist in the management of the cause, and that the travel was for the purpose of giving his evidence.”

Sections 942 and 944, 1 Comp. Laws, are as follows:

“ (942) Such writ of' certiorari shall, within ten days after it shall have been issued, or within such other time as the officer allowing the same shall direct at the time of allowing the certiorari, be served upon the justice by whom the judgment was rendered, together with the bond given, and a copy of the affidavit on which the certiorari was allowed; and the sum of two dollars shall be paid to the justice for his fees for making a return to the certiorari, and no certiorari shall be of any effect until all the preceding requisitions shall have been complied with.”

“ (944) The justice, before the return day of such certiorari, or within ten days after the service of such certiorari, shall make return thereto in writing, and file the same; in which return he shall truly and fully answer to all the facts set forth in the copy of the affidavit on which the certiorari was allowed.”

Section 2551 1 Comp. Laws, provides that judges of probate—

“Shall make no charge to any person for any paper drawn or service performed by them or any person or clerk connected with their office except for copies of records or papers on file and certificates and exemplifications of records or papers in his office, which shall be furnished for ten cents per folio and twenty-five cents for certifying, sealing and attesting the same.”

We are of the opinion that section 4392 does not apply to copies of proceedings in the probate court required by law to be set forth in the return to the writ of certiorari by the judge of probate himself, but that it was intended to apply to copies furnished prior to the issuance of the writ, as under sections 4314, 4325, 4327, and 4328, for which services the section requires that the commissioner “ shall draw orders on the funds of the several drains for which said services were performed.” It was the duty of the judge of probate to, return a transcript of the record without any order to that effect. It was certainly his duty to do so after the order of the court to that effect.

“ The return should consist of a full and complete transcript of the record of the proceedings of which a review is sought, since the trial is had by an inspection of the record as returned, and not on any issue of fact. Although the command of the writ is that the record of the inferior court or tribunal shall be sent up, it is not proper to send up the record itself, but a transcript should be returned; unless there is an unmistakable command made, to suit the exigencies of the particular case, that the record itself shall be sent up and not a transcript, in which ■case the writ must be obeyed literally.” 4 Enc. Pl. & Prac. p. 217.

2 Stevens’ Mich. Practice, § 534, p. 508. We think it was the intention of the legislature, in adopting the practice provided for justices"’ courts, to adopt also the provision for fees for making the return, and that the trial judge erred in allowing the item of $73.10.

The record does not contain sufficient allegations or admissions of facts to enable us to determine whether the objection to the September term fee as made before the clerk was valid or not.

The writ will issue, directing the respondent to strike out and disallow the item of $73.10.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    HARRIS v. DETROIT TYPOGRAPHICAL UNION.
    Trade Unions — Expulsion op Members — Review by Courts— Remedy Within Union.
    Where the by-laws of a local trade union provide for review of its action in disciplining members by appeal to the international union, a member expelled for contumacy in refusing to pay a fine, which he claims was imposed without jurisdiction, is not entitled to have the sentence of expulsion set aside by the court and the officers of the union restrained from reporting his expulsion to his employer before he has exhausted his remedy by appeal; and it is immaterial that pending his appeal he may be deprived of the privileges of' membership, since by becoming a member and binding himself to seek redress through appeal, he bound himself to submit to the incidents of such appeal.
    Appeal from Wayne; Rohnert, J.
    Submitted January 9, 1906.
    (Docket No. 35.)
    Decided July 3, 1906.
    Bill by Albert S. Harris against the Detroit Typographical Union, No. 18, and others, fro set aside an order of expulsion and to restrain the reporting of such expulsion to. complainant’s employer. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Bowen, Douglas, Whiting & Murfin, for complainant.

      Fred H. Aldrich, for defendants.
   Montgomery, J.

This is a bill in equity to set aside action taken by the defendant, the Detroit Typographical Union, and to restrain the defendants from reporting to complainant’s employer that he has been expelled from that body. From a decree dismissing the bill, complainant appeals.

The Detroit Typographical Union is, as its name implies, a labor union, having for its object the advancement of the interests of its members by making it possible by its rules and action as a body to secure better terms of employment for its members than could be otherwise obtained. There is also provided a benefit fund payable to members at death. The society is governed by a constitution and by-laws, and is affiliated with an incorporated society known as the International Typographical Union. It appears that the local body is by its constitution authorized to discipline its members, to impose fines, and for contumacious conduct expel members, its action in any such case being subject to review by the officers of the International Union on appeal.

Charges were preferred against complainant, and on a trial of those charges he was fined $500. He, claiming that the action taken was illegal, failed to pay this fine. Thereupon new charges, based upon his contumacy in refusing to pay the fine, were preferred. After a trial he was by a vote of the local body expelled. Complainant immediately gave notice of an intention to claim an appeal to the International Typographical Union, which appeal appears to have been taken since this bill was filed. The action of the local union both in its proceedings resulting in the fine and in those which resulted in complainant’s expulsion are attacked on several grounds which are said to go to the jurisdiction, and it is urged that the court should interfere to prevent the perpetration of the wrong. The learned circuit judge was of the opinion that the criticism of the action taken was warranted, but held that as the complainant had a remedy within the order, to be taken by appeal, a court of equity should not interfere until that remedy is exhausted.

We think his ruling is in accord with our previous holdings. This court has in many cases stated the rule that members of a voluntary or a mutual benefit society may enter into a binding agreement that the rights of its members shall be determined by the society itself. Van Poucke v. St. Vincent De Paul Society, 63 Mich. 378; Hembeau v. Knights of Maccabees, 101 Mich. 161 (49 L. R. A. 592); Fillmore v. Knights of Maccabees, 103 Mich. 437; Hoag v. International Congress, 134 Mich. 87; Barker v. Ladies of Modern Maccabees, 135 Mich. 499. We do not overlook the contention that the complainant had the right to ignore the proceedings which resulted in a fine, on the ground that they were taken without jurisdiction, and that complainant therefore took no appeal therefrom, and should be relieved by the court. It does not appear, however, that complainant has paid the fine, or has any purpose of doing so; nor is there any means of enforcing its payment except by expelling complainant. In the proceedings for complainant’s expulsion an opportunity is afforded for the trial of the question of the validity of the fine order, and that question is now open on the appeal pending before the International Union. This fact distinguishes this case from those of Erd v. Relief Ass'n, 67 Mich. 233, and Meurer v. Protective Ass’n, 95 Mich. 451, and brings the case within Hoag v. International Congress, supra.

It is true that the complainant may, pending his appeal, be deprived of his privileges as a member of the association, but in becoming a member of the organization and binding himself to seek redress for an unlawful or unrea-' sonable sentence by the local body through an appeal to the International Union, he bound himself to submit to the incidents of an appeal actually taken.

The decree is affirmed, with costs.

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


author: Hooker, J. Blair, J.

text:
    PELTON v. O’KEEFE.
    Trespass — Action—Error—Affirmance by Divided Court.
    In this case, involving defendants’ liability for trespass under section 11206, 3 Comp. Laws, in invading plaintiff’s property, under public authority, by building a sidewalk projecting over the street line, a judgment for defendants is affirmed by a divided court; Mr. Justice Hooker, with whom concur Mr. Chief Justice Carpenter and Justices Grant and Montgomery, writing for affirmance on the ground that there is no evidence of plaintiff’s title to the disputed strip except her possession, and that that possession, such as it was, was not inconsistent with the recognition of the public rights; and Mr. Justice Blair, with whom concur Justices McAlvay, Ostrander, and Moore, writing for reversal on the ground that under the undisputed evidence plaintiff’s possession was unlawfully invaded, and that the question of title was immaterial.
    Error to St. Clair; Law, J.
    Submitted January 4, 1906.
    (Docket No. 8.)
    Decided July 3, 1906.
    Trespass quare clausum fregit,by Lorinda Pelton against Diehard D. O’Keefe and others. There was judgment for defendants, and plaintiff brings error.
    Affirmed by a divided court.

      Cyrus A. Hovey, for appellant.

      Avery & Walsh, for appellees.
   Hooker, J.

The plaintiff, being the owner of a triangular parcel of land at the junction of Eleventh and Water streets, in the city of Port Huron, brought an action of ^trespass against the defendants, under section 11206, 3 Comp. Laws, which reads as follows:

“ If any person shall be ejected or put out of any lands •or tenements in a forcible and unlawful manner, or being put out, be afterwards holden and kept out by force, or with strong hand, he shall be entitled to maintain an. action of trespass and shall recover therein three times the amount of damages assessed by the jury or .a justice of the peace in the' cases provided by law.”

She alleged title in her declaration, and the case was certified to the circuit court by the justice, where a verdict for the defendants was rendered. Plaintiff has appealed.

The defendants are the superintendent of public works, the city engineer, two policemen, and a sidewalk contract- or in Port Huron. There are many assignments of error, but the defendants’ counsel maintain that the court should have directed a verdict for the defendants, and that therefore they should not be considered. Whether this is a correct conclusion or not, it is proper to consider that, question first. The plaintiff bought the premises in 1888. At that time they were used for a pasture, and had a fence along the street, which had stood there some years, and was out of repair. This fence was at once removed by plaintiff’s husband, who proceeded to build a house upon the lot. The posts of the fence were taken out, with the exception of a few which were sawed off close to the surface of the ground. About 14 years before the trial the plaintiff’s husband built a sidewalk three feet wide, the east side of the walk being three feet west of .the line-of the fence referred to, which plaintiff claims to have-marked the line of her lot. This action grew out of the building of a new cement sidewalk, in place of the old wooden one; the same having been ordered by the common council, and plaintiff having neglected to comply with the ordinance, notice having been served upon her.

An ordinance was in force, fixing, the outer edge of walks at seven feet from the street line, and we understand that defendants claim to have adhered to this rule in laying this walk. In doing so, according to plaintiff’s testimony, .the new walk extended beyond the line of the fence and covered the posts remaining in the ground. Plaintiff offered testimony tending to show that the space? between the walk, when completed, and his house, was only a foot or fourteen inches. That he had graded and sodded the land between the old walk and the house, and had some vines and shrubs, and one evergreen tree, growing upon it, which were disturbed and destroyed by excavating for the walk. He offered testimony tending to show that, upon learning that the men were at work upon the walk, he drove them off with a revolver. At that time his wife was away from home, and the house was locked. He then went to his shop in another part of town, but returned later and a second time pulled up the stakes and forms that he claimed to be on her premises, and while so engaged was told by a policeman to desist, or he would be taken care of, and stopped him under threat of arrest. Plaintiff added to the foregoing the following testimony:

“After they got through with their operations there, my line on the west side of the house 102 feet long and 5 feet wide on the inside of the walk and about 9 feet wide on the outside of the walk was all déstroyed, and in order to fix it I had to spend time and labor to draw off the dirt, and the grass was all dead and spoiled.”

The new sidewalk lapped over plaintiff’s west lot line about 14 inches. The defendants assert:

1. That the testimony does not show that the lot line was on the line of the fence removed in 1888.

2. That the plaintiff’s occupancy of the strip of land was not inconsistent with the use of the street by the public, and was not therefore adverse.

3. That, whether the preceding claims are warranted or not, the facts do not support an action under the statute.

4. That a verdict should have been directed for the defendants upon plaintiff’s own showing.

It is conclusively established that the center line of Eleventh street was surveyed through this ground at the time of platting. It was in line with certain alleged •monuments supposed to be in the center of Eleventh street. It is unimportant whether these monuments were designed to mark the center of Eleventh street when set. The projection of that line, whatever it was, became the center line of the extension of Eleventh street, as shown by the plat, and as surveyed on the ground. The plat shows an attempt to dedicate 33 feet on each side of the line, and other testimony that it was so surveyed and staked and the street has been since used. The land in dispute is within the 33 feet, and at one time was fenced, as shown, for a few years, but plaintiff removed the fence in 1888, and since that time her occupancy has not been clearly inconsistent with the public rights. There being in the record no evidence except the alleged possession to show that the plaintiff had title to the land, and that possession, such as it was, not being inconsistent with the recognition of the public rights, the court might, with propriety, have so instructed the jury. This renders a discussion of the other questions unnecessary.

The judgment is affirmed.

Carpenter, C. J., and Grant and Montgomery, JJ., concurred with Hooker, J.

Blair, J.

(dissenting). I am unable to concur in the opinion of Mr. Justice Hooker in this case. I think that, upon the undisputed evidence, the plaintiff was entitled to verdict, and that the court should have directed the jury that the only question for their determination was the amount of damages to be awarded. The trial judge correctly instructed the jury that:

‘ ‘ The actual title of neither the plaintiff nor the city of Port Huron is in issue. * * * The gist of the action against the defendants here, as alleged in the plaintiff’s declaration, under the statute I have read to you, is that they gained possession of the land on which the cement sidewalk was afterwards constructed and ejected and put out the plaintiff from her possession in a forcible and unlawful manner and retained the possession thus gained by force.”

It is apparent, therefore, that the question of prime im-portance is whether the plaintiff was in actual and peaceable possession of some portion of the land described in the declaration, possession of which was taken and held in a forcible and unlawful manner by defendants. I do not think that the testimony admits of two answers to this question.

Plaintiff’s husband, Frederick EL Pelton, testified that his wife began to occupy the land described in the declaration on the 1st day of June, 1888, and from that time, until the building of the cement walk, she claimed to be the owner of these premises.

“ She owned it and occupied it during all that timé. She was in the actual possession of these premises, and that occupation was visible and so that anybody around there could know it and everybody did know it, and her possession was distinct from that of anybody else. * * * When we went there on June 1,1888,-there was a fence around this land. The boards ran lengthwise of the fence on Eleventh street with big, heavy cedar posts. I have given the west line of the premises, and that fence was upon that line. The fence had been there since April, 1885. We went there in 1888. The location of the fence has not been moved either to the east or west since I knew it. * * * I took the fence down and built it into the house for sheeting. I sawed five of the cedar posts off. The stumps of the five posts I sawed- off remained in the ground. (Witness produces one of the stumps of the posts.) In building the sidewalk, they pulled out two of them and the other three are under the cement sidewalk that they built. I built a sidewalk on the west side of the property. It was three feet wide, made of good heavy two-inch planks, running lengthwise and stringers running crosswise. This walk I built 14 years ago.

Q. Before you built that walk, did you apply to the city engineer and receive from him the lines on which you were to build it ?

“A. Yes, sir. The walk was three feet west of the fence, that is, the east side of the walk was three feet west of the fence, and the west side of the walk was six feet from the fence. This walk was repaired by me one year prior to the building of the cement walk, by putting in 45 new two-inch planks, and at another time 45 more planks, 90 altogether. It was in first-class condition. Besides building the house and walk, I hired a man to draw dirt on the land east of these lines and make it up level and grade it and put it in first-class shape up to the walk, three feet outside of the posts. I made a lawn and sowed grass. After I got the lawn and everything in good shape, I started to buy shrubbery. The first I bought was from Mr Rice, and I paid him about $15 for the first order. I set out a Northern spruce tree 13 years ago. It was then 2£ feet high, and, when destroyed, it was 8 feet high. When these people came there and put the new walk in, they pulled it out. It was within the line of the walk that they built. They had to .take it out to build the walk. The tree was in the north corner at •the intersection of Eleventh and Water streets. I worked with the tree every spring for 13 years, and cultivated it and kept it wired to keep the dogs away from it, and trimmed it and kept it trimmed to bring it into shape, or it wouldn’t be worth a dollar. I had on the house some climbing honeysuckles, which formed an arch up to the peak of the house from the corners and extended down, covering the windows: There were two of these plants, each about 40 feet long. They bloomed all summer, all the season. They were in the very finest condition, healthy. I had 20 clematis. There'were from three to five sprouts each. There were three that had a good many more than that. They were 13 years old and very fine and about 14 feet high. I had 9 climbing roses. They had on from three to five sprouts, and they ran from six to eight feet in height. I also had five rose bushes, quite large, carrying 8 or 9 sprouts and about 5 feet high, moss roses. They were from 4 to 6 years old. We also had 50 assorted dahlias. They were annuals. They were all planted, ready for blooming. I also had there 3 peonies 13 years old, in thriving condition. The bunches would be as large at the bottom as a patent pail and two feet high.

Q. Did you have there 2 bunches of dieiytra spectabilis ?

“A. Yes; they were 6 years old. My wife brought them from Canada. We also had a row of asters, the rows were two feet by 30. They were just opening up. The bunches of spectabilis were about the size of a patent pail and branched out at the top the size of a half bushel. We also had a row of sweet peas, about 10 feet long, they were on a four-foot wire. We had a 28-foot row of nasturtiums, also 28-foot row of balsams, three double bunches of hollyhocks, a flower bed containing sweet williams, honeysuckles, and hyacinths. This bed was 7 by 10 feet. * * * The board walk was down very solid, and they had to split the boards up to get them up, they broke and split them every way. What they did not use for fences were thrown into the street, and carried away by Tom, Dick, and Harry. They were digging nearly three-quarters of the way through. There were men here and there digging it out to a depth of about 6 inches and throwing the dirt on the lawn.

Q. What did they do to your flowers that you described to the jury ?

“A. They laid out everywhere. They laid out into the street amongst the dirt, piled right in amongst the dirt, •and all through it everywhere. They were destroyed.

Q. With reference to the line you have given to the jury, the line of the old fence, where were they digging?

“A. They were digging inside of that from my walk "to the house, from my walk right up to the house. There was one foot from the house to the walk, and, by the time they took out from 6 to 9 inches and put their timbers down, it brought it up to within 2 or 3 inches of the house, so on thp west side of my property there was a space of 9 inches wide took from the line on to my wife’s property. This growth of flowers and climbing vines and. things that I have described, I found some of them in the street, and some of them hanging there without roots, and the roots cut off, and they all wilted and died, and what they did not tear down, I tore down.

“[That these plants, flowers, and things he spoke 'of came right up to the line of the old fence on the westerly side of the property in suit, and that that condition had existed for a period of about 12 years prior to the time of the alleged trespass.]

Q. When you found these doings going on, will you tell the jury what you did ?

“A. Well, I went up, and, I think it was Mr. Baker, I asked him and told him, and I took him down to the fence, and I said: ‘You are destroying my property there, Mr. Baker.’ Well, that wasn’t the first. The first thing I done was to grab their lines and throw them out into the street to stop them from working and cutting any more.

‘ ‘ Q. Did you tell them whether to continue work or not?

“A. I told them to stop.

Q. Did you tell them who you were acting for ?

“A. Yes, sir.

Q. What did you tell them ?

“A. I told them it was my wife’s property. She was. away from home, and I was there to look after it, and I was going to stop it.

Q. Well, go ahead.

A. I took Mr- Baker to the post, one of these posts that stood up, and I says: ‘ Do you see there ? There is a post that has stood for 25 years, 20 years to my knowledge.’ He says: ‘ I am sorry for you, but I can’t help it.’' He says I must take this, it has got to come. Well, I says, ‘It won’t go.’ So I went on pulling up the stuff and throwing it out, and there was a couple were going to come at me with a pick.

Q. Who?

“A. Some of the workmen, a kind of foreman, I guess he was. I told them it was going to come up just the same. Isays: ‘You ain’t going to stop it.’ So I went in the house»and I came out again prepared for battle, and they went and sat down, and I finished the balance of it.

Q. How were you prepared ?

“A. I got a revolver and came out, and I put it in my hip pocket so they could see it plain. I told them I didn’t want to do any harm to them, but they were on my property, and they must get off.

Q. Did they get off ?

“A. They got off. * * *

A. After I got away, after the police came, they started to put it down again.

Q. Was that still on your wife’s property ?

“A. Yes.

Q. What did you do then ?

A. Well, the police had passed me and didn’t know me, going to my shop. I came on and finished it up again, so I was just taking up the last stake when one of those policemen, he jumped on me, and he said: ‘ Here, don’t touch another thing here. If you do,’ he says, ‘ you will be taken care of.’

Q. How did he say you would be taken care of ?

“A. I just forget what he did say, but he stopped me from doing anything more. I think he said he would arrest me, I think that is the' words he used. I took him to the post and showed him. I said: ‘Would you arrest me for trying to protect my property ? ’ He says: ‘We can’t help it. We have got our orders from the city attorney to put this walk down. ’ Well, thinks I, I guess I will let it take the legal way, and from that I entered suit. These policemen were Fred Keener and Albert Trapp. After they got through with their operations there, my line on the west side of the house 102 feet long and five feet wide on the inside of the walk and about 9 feet wide, on the outside of the walk was all destroyed, and, in order to fix it, I had to spend time and labor to draw off the dirt, and the grass was all dead and spoiled, sand with clay on top, and I had it all taken away.”

James Baker, who had charge of constructing the walk, testified:

“ I put the walk down where the stakes set by the city engineer indicated that it should go. * * * We had to take some sod off the east side of the old sidewalk, and we also had to dig up some few flowers around there, a couple of places where they came out to the walk or pretty near to the walk. * * * We didn’t get over any further than was necessary to build the sidewalk. We have to have from 3 to 4 inches outside of the sidewalk for room for our rails; 2 by 4 we put in each side of the walk. * * * We drove stakes at the outside and put the rail to those stakes.

“Q. So that it is necessary for you to cut the sod out about how. many inches ?

“A. From 3 to 4 inches.

“Q. Outside of the walk itself ?

“A. Yes, sir.

“Q. Will you go on and tell the jury just how much in the way of flowers and shrubs and things of that kind it was necessary and you did cut away there, in order to lay this walk ?

“A. Well, there was a few flowers along there, alongside of the house, and also some south of the house at the back of the other house, at the back of both houses. They came out pretty near to the old walk. My men dug the flowers up and laid them over on the lawn inside of the yard.

“Q. Can you tell the jury about how many inches of lawn, or how much lawn, you had to cut away ?

“A. Well, it would be about three feet. It might be a trifle over that.”

Mrs. Lorinda Pelfcon, the plaintiff, testified as follows:

“I am the plaintiff in this suit, and the wife of Fred H. Pelton. We have been in Port Huron 20 years next April. I heard the testimony of my husband with respect to the beginning of work and the occupation of this property that he described, and I also remember the fence. I saw that fence about the second day after we came to Port Huron; that would be 20 years ago, the 1st of next April, or April 1, 1885. The flowers, shrubs, vines, and things that have been destroyed by my husband and others have extended up to the line of the fence for about 13 years. I did not see Mr. O’Keefe around the house, and on the west side of my property shortly before the cement walk was built, but I did see him there about a year before that. I remember the original sidewalk; that it was repaired. There were no holes in it, nor any wide cracks nor any rotten places, nor anything except the ordinary weathering of the walk.”

This testimony was undisputed, and from it it appears conclusively that at the time plaintiff purchased this property and began her occupancy of it, the west line was plainly defined by a board fence, the line of which was readily determinable from the cedar posts remaining in the soil at the time of the alleged trespass, and to which the attention of the persons building the waík and the police officers, who compelled plaintiff’s husband to desist from protecting her property, was expressly called.

As said by this court in Beecher v. Galvin, 71 Mich. 391:

“There are other ways of holding possession of land besides inclosing it with a fence.”

See, also, Sauers v. Giddings, 90 Mich. 50. Aside from maintaining a fence, the plaintiff did all that was possible to manifest to the community a claim to the possession of the land up to the line of this fence. She constructed a sidewalk, the inner edge of which, in accordance with the city ordinance, was three feet from where she claims her west line was located, and the line of this walk was given to her by the city engineer. After the construction of this walk, she planted trees, perennial flowers, vines, and shrubs, of the value, according to the testimony of a man conceded to be an expert, of $200, between the sidewalk and the house, and, admittedly, upon the strip of land in question. It is true that some of the plants encroached upon the space between the sidewalk. and the west line, and, if the defendants had built this walk without notice of where the true line actually was, a different question might be presented. In this case, however, they were notified where the true line was, by the most unmistakable evidence, the cedar posts fixed in the earth, to which their attention was called by plaintiff’s husband. After being so notified of where plaintiff’s line actually was, according to his contention, if they proceeded further, they did so at their peril. There is no evidence in this case of any custom on the part of lot owners, in Port Huron, or elsewhere, to plant trees, shrubs, and vines manifestly intended to be permanent between the lot lines and the sidewalk lines, and it would be unreasonable to suppose such a custom. The natural presumption is that, when a property holder makes permanent improvements, he supposes he is making them upon his own property. It has become customary in cities to remove street fences, and I am not willing to hold that thereby the title and possession of property is in anywise changed or imperiled. Certainly when the lot owner, after taking down his fence, plants permanent trees, shrubs, and vines which come up to the line of the fence, and maintains them there for 13 or 14 years, it cannot be said that his possession is in doubt. It further appears that the contractor in constructing this walk, dug out and occupied with the side planks three or four inches of land unquestionably belonging to the plaintiff and cast earth upon her lawn along the front of her property. This he had no lawful right to do, and his so doing was a trespass. Clark v. Wiles, 54 Mich. 323; Davies v. City of East Saginaw, 66 Mich. 37; Mathewson v. City of Grand Rapids, 88 Mich. 558. It is not a sufficient answer to say that such occupation was merely temporary and incidental to the construction of the walk, since it destroyed plaintiff’s permanent improvements, which would require many years for their restoration.

Thus far I have proceeded upon the theory that the east line of the sidewalk as laid was the true line. I do not find any evidence in this case, however, to indicate that the line of posts did not mark the true line of plaintiff’s property. It was not attempted to show that the city of Port Huron, or the municipal authorities, or the public, had ever established the east line of Eleventh street in front of this property where the east line of the sidewalk was laid by them. The only attempt which was made to defend the line as established by the defendants was by introducing evidence of a certain alleged plat and surveys. The plat w;as properly held by the court to be defective, and that the lands were not dedicated thereby, and it was only received as a de facto plat. This plat purports to have authorized:

“ Marcus Young, civil engineer, to subdivide said land, of which the within map is a correct representation of such subdivision, drawn to a scale of 100 feet to the inch. ”

Young testifies:

“I never attended any institution where they teach civil engineering. I never had any education. I never attended any school after I was 11 years of age. What information I have got I have got it outside of schools. I never studied as a civil engineer more than in my line of business, which for 35 years has been the real estate business. I think Sands Carpenter drew the description for that plat. I do not know the name of the instrument that Mr. Carpenter used in making the survey. I helped hold the stakes and carried the chain, and did whatever Mr. Carpenter directed. I was assisting him. Mr. Carpenter had charge of the instrument, and under his direction we drove the stakes and set the pickets and carried the chain wherever he said was right.”

Mr. Carpenter was the engineer who actually made this survey, and it is apparent that Young could not possibly have known whether the lines as run by Carpenter were correct or not. It does, however, clearly appear that Eleventh street, according to the scale of the plat, was ■not a 66-foot street. The principal witness for defendants, the then city engineer, Phelps, testified as follows:

“ The witness scaled the plat and testified that Eleventh street scaled 63 feet; that is, 63 feet would be the nearest foot. It would not be more than 64 feet nor less than 63 feet. Twelfth street scales 66 or 67 feet; Ward street, 66 feet; Young street, 68 feet. It is marked on the map 66. The lots which are marked on the map as 54-foot lots scale 55 feet, 52, or 53 feet, 52 feet, 53 feet, 52 feet plus, 52 feet, 52 feet, 52 feet, so that these seven lots, supposed to be 51 feet wide each, hardly any two of them agree. This map is not carefully drawn to a scale.”

Young, who was the only witness who testified as to the original survey for the plat, testified that they projected Eleventh street through this plat from posts at the center of Howard and Eleventh and Griswold and Eleventh streets. What kind of posts they were, he could not tell.

After we had run around this land on these lines, and had taken these two posts or stakes, or whatever they were, as guides, we attempted to run a line up what we thought was the center of Eleventh street north, we ran that line across the plat to the north side of Ward’s land, where it intersected the fence along Water street.

Q. Now, if these posts that you took as guides were not set in the right places, your line would not be right, would it ?

“A. No.

Q. And whether they were set in the right place, you ■don’t know, do you ?

“ A. No, sir.”

There is no legitimate evidence in the case that Eleventh •street, as actually established by user, or as originally surveyed, was a 66-foot street. The line of the sidewalk was therefore determined upon a false basis, by assuming that the center line of Water street, as determined by the city engineer, was the center line of a street which was actually thirty-three feet wide on each side thereof.

“ Measured 26 feet to the sidewalk. We set out stakes 25% from the center, and then we built the walk six inches from the center. We set them 25% from the center of the street, and then they set the walk six inches from the> stake, and they didn’t disturb the stakes.

“Q. That is marking the outside edge of the sidewalk?'

“A. Seven feet from the street line, yes. I did that all along the line where this new sidewalk was being built. In this case we ran along one line, and that was the out* side line.

“ Cross-Examination :

“Q. In setting those stakes, or in fixing the center line of Eleventh street, you didn’t pay any attention to the. occupation at all on the sides of the street, did you ?

“A'. Not at that time.

“ Q. Not when you set these stakes or made these-measurements for the sidewalk ?

“A. No, I think not.

Q. Nor you didn’t take into consideration any old fences, if any ?

‘‘A. I think not at that time.

“ Q. Nor the occupation on the west side of Eleventh street of Lomasney or any of those people ?

“A. I don’t think we did when we staked out this walk.

Q. Nor you did not take into consideration any occupation on the east side of Eleventh street ?

“A. Not that I remember of.

Q. You simply arbitrarily fixed that line where you said was the center of Eleventh street, is that true ? That calls for yes or no ?

“A. Yes, where I say the center line is, yes.”

It was further testified by Mr. Phelps:

“There are two different lines of sidewalk on the west side of Eleventh street, namely, the one running by the Mennonite Church, and one south. I don’t think there are sidewalks upon three different lines of that street and all given by me. I originally gave the line 26 feet from the center of the street, but for some reason it was after-wards moved.”

As I understand the record, although the width of the new walk is not definitely stated, it was four feet wide. Baker, the contractor, who put the walk down, testified

“Q. As I understand it, this new line of this walk was a little further to the east than the old walk ?

“A. Yes, about three feet to the east.'

"Q. It got over three feet ?

“A. About three feet.

“Q. From where the old walk had been ?

“A. Yes.”

As stated in defendants’ brief:

“The situation is that for some years an old wooden walk extended on the east side of Eleventh street. Between this walk and plaintiff’s house there was a distance of about four feet. When the new walk was built, it was placed about three feet further to the east. This brought it up to about a foot from plaintiff’s house.

Since the west line of the new walk was located by the city engineer, Phelps, as being seven feet west of the east line of Eleventh street, it.is apparent that the east line of Eleventh street, according to his survey, would cut off two feet of plaintiff’s house.

I think the judgment should be reversed, and a new trial granted.

McAlvay, Ostrander, and Moore, JJ., concurred with Blair, J.


author: McAlvay, J.

text:
    WYANDOTTE BREWING CO. v. HARTFORD FIRE-INSURANCE CO.
    Fire Insurance — Standard Policy — Ownership oe Land — Yerbal Application — Eefeot.
    Where a Michigan standard policy, insuring a building against fire, is issued, in response to a verbal applicatiop therefor, in which nothing is said about the ownership of the land on which the building stands, and the land belongs to another than insured, of which neither the insurer nor its agent has notice, the policy is void, though the insured has no knowledge of the provision as to ownership of the land, and puts the policy away without reading it.
    Error to Wayne; Hosmer, J.
    Submitted January 31, 1906.
    (Docket No. 38.)
    Decided July 3, 1906.
    Assumpsit by the Wyandotte Brewing Company against the Hartford Fire-Insurance Company on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Maybury, Lucking, Emmons & Helfman, for appellants.

      Charles H. Marr (Dickinson, Stevenson, Cullen, Warren & Butzel, of counsel), for appellee.
   McAlvay, J.

Suit was brought by plaintiff upon a fire-insurance policy of the Michigan standard form for the sum of $600, issued by defendant to plaintiff November 29, 1902, for one year, and covered the ice houses of plaintiff on Detroit river in Wyandotte, Mich. The application for insurance was verbal. The lots upon which the buildings stood were not owned by plaintiff, but were occupied by it as lessee. The land belonged to the Marx estate when the policy was issued and was subsequently partitioned. Nothing was said by either party at the time the policy issued relative to the title or interest of plaintiff in and to the land upon which the property was located. Marx, president of defendant company, accepted the policy without reading or examining it, placed it in his safe and retained it, and claimed he never knew its contents. Upon the partition proceedings Nicholas Marx and John Marx each acquired title to one of these lots. They were brothers of Frank Marx, president of plaintiff company, who purchased John’s lot. He was unable to agree with Nicholas as to the rent, which was to be thereafter paid by plaintiff, for the ground on which one of the ice houses stood. Nicholas Marx ordered the ice house removed from his lot. Plaintiff agreed to do this by December 1, 1903. The fire which destroyed the ice houses occurred November 17, 1903. After the fire there was attached to the policy the following rider:

‘ ‘ It is hereby understood and agreed that the interest of the Wyandotte Brewing Co. covered in policy number 20,919 is assigned to Frank Marx * * * and is his property exclusively.”

The same statement was made in the proofs of the loss. The declaration in the case alleged relative to the foregoing assignment that this “indorsement attached to said policy of insurance was attached by defendant’s agent under a mistaken idea of the facts in the case, and said indorsement was not authorized by the plaintiff or its officers until after said fire had occurred. *

Defendant denied plaintiff’s right to recover, upon the following grounds:

1. Because the building insured was upon “ground not owned by the insured in fee simple,” and no written “ agreement ” thereof was indorsed on the policy as required by the terms thereof.

2. Because title to the ground on which the insured buildings stood changed after issuance of the policy and no written “agreement” of the change was indorsed on the policy, as required by the terms thereof.

3. Because the policy had been assigned before suit to Frank Marx; a bill in equity is necessary to correct the claimed mistake before liability of defendant to plaintiff becomes fixed.

4. No proofs of loss were furnished within the time required by the policy.

At the close of the case each party moved the court for an instructed verdict, which was denied. It appearing that the questions involved were questions of law, by stipulation the jury were excused, and the parties agreed that the case be submitted on briefs to the court to be determined by him, and a verdict entered, as if the jury were present. The court directed a verdict in favor of plaintiff, and judgment was entered for the amount of the policy and interest.

The principal error relied upon by defendant as a reason for reversing this judgment is that the court erred in not holding that the policy was void for the reason that the building insured was “ on ground not owned by the insured in fee simple, and no written agreement thereof was indorsed on the policy as required by its terms.”' The policy sued upon was the regular Michigan standard policy, and the clause relied upon by defendant reads:

“ This entire policy unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void * * * if the subject of insurance be a building on ground not owned by the insured in fee simple. ”

. It is an admitted fact in this case that plaintiff never owned the ground upon which the buildings were located. The buildings, as the proofs show, were owned by plaintiff, and were located on leased ground. At the time the insurance was placed, nothing at all was said by either party as to the title to the ground. No questions were asked by defendant’s agent, and no representations made by plaintiff. There was no written application. As far-as the record shows, defendant or its agent had no knowledge of the condition of the title to the ground. The-court, in his decision, held that the case at bar was controlled by the cases of Hall v. Insurance Co., 93 Mich. 184 (18 L. R. A. 135), and Hoose v. Insurance Co., 84 Mich. 309 (11 L. R. A. 340). The contention of defendant is that the case is distinguishable from these cases; that the application was verbal; that the policy was issued by defendant and accepted by plaintiff without objection and that he is bound by the terms of his contract — citing Wierengo v. Insurance Co., 98 Mich. 621.

The cases above mentioned and other cases before this court have discussed this clause of the Michigan standard ■policy referred to. The question in the Wierengo Case appears to be the same question involved in this suit. The insurance in that case was secured upon a verbal application. No terms of the contract were mentioned except the amount. Upon the receipt of the policy neither the insured nor her agent read it, and did not read it until after the fire. The policy was the Michigan standard policy for $1,000 containing the same clause as to title to land and mortgages on personalty as in this case. It covered a stock of merchandise upon which, at the time, there was a chattel mortgage for over $1,200. Neither defendant nor its agent had any knowledge of this mortgage at the time the policy issued. Justice Grant, speaking for the court, said:

“In this case, where there was no written application nor any terms of the policy agreed upon by parol except the amount, the insured must be charged with knowledge that the policy he receives cohtains the contract, binding upon him as well as the insurer. He must knQW that the policy, which is the contract, contains the usual terms of such instruments. He may not lay it aside without reading, and when he seeks to recover upon it, and finds that, under its plain provisions, he cannot recover, say: ' I did not read it. The insurer did not tell me what it contained. I did not know that it was necessary to tell him about the title and condition of my property, and therefore I am not bound by its terms.’ Had Mr. Pearson or his principal read the contract — which he could have done in a few moments — they would at once have known these plain and important conditions, which the defendant had the clear right to insert, and to make a condition of .its validity. Certainly the insured must be held to some degree of diligence in obtaining knowledge of the contracts to which they are parties. Ignorance will not relieve a party from his contract obligations. The law only relieves him therefrom in cases of fraud, mistake, waiver, or estoppel. An insurer is not required by the law to inquire into the condition of the title to the property insured, or to inform the insured of all the conditions and terms of the policy to be issued, or to read it to him, or inform him of its contents. When received and accepted without objection, he must be bound by its terms unless these terms are waived by the insurer. This is the law of contracts, and there is no reason or authority for holding that an insurance contract is an exception thereto.”

We think this is decisive of the question before us, and unless the cases relied upon by the court, and other cases cited by counsel for plaintiff, overrule it, we consider the question as to the construction of the part of the contract under consideration settled in this State. The fact that in this case the question is as to the title to the ground upon which the insured buildings were situated, and in the case just cited was as to a chattel mortgage on personal property makes no difference. • Each requirement is of equal binding force as a part of the same stipulation in the contract. The only distinction being as to the class of property to which each applies. The following author-

ities are in accord with the opinion above quoted: Security Ins. Co. v. Mette, 27 Ill. App. 324; Phenix Ins. Co. v. Searles, 100 Ga. 97; Dumas v. Insurance Co., 12 App. Cas. (D. C.) 245 (40 L. R. A. 358).

A review of the cases claimed by plaintiff as contrary to or overruling the Wierengo Case, supra, will, we think, disclose that such is not the fact. In Hoose v. Insurance Co., supra, opinion by Champlin, C. J., defendant, among other reasons, denied plaintiff’s right to recover because she was not sole and unconditional owner of the property and did not own the ground, upon which the insured building stood, in fee simple, in violation of the conditions of ' the policy. The policy covered the building, stock of groceries, and so forth, and store furniture and fixtures contained in the building. The policy as to the real estate interest reads:

“ Insure Mrs. Margaret Hoose to the amount of * * * one thousand dollars on the tworstory frame building occupied as a grocery store and dwelling situated on the northwest corner of Milwaukee and Beaubien Sts., Detroit, Mich., * * * against all such immediate loss or damage sustained by the assured as may occur by fire to the property above specified, but not exceeding the interest of the assured in the property.”

At the time the insurance was written, she held under a land contract and there was a mortgage on the premises. The application was verbal, and it was claimed, and the jury found specially, that defendant’s agent had been told, and knew at the time the policy issued, the condition of the'title. This court held that such verbal statements became a part of the contract, and the finding of the jury was conclusive upon defendant that it had knowledge of the condition of the title. In construing the clause in the policy relative to the title to the ground on which the building stood, which is the same as in the policy in the suit at bar, the court says:

“ In construing this portion of the policy the whole must be taken together. Now the object sought to be accomplished“by the person applying for insurance was to obtain indemnity against loss by fire of her interest in the building. If the insurance company which made out this policy, upon the verbal application to its agent, had desired to know what interest it was insuring in should have stated it in that part of the policy pertaining to the risk.”

And further:

“Construing this portion of the policy with the testimony in the case, and with the fact that the company issued the policy to Mrs. Hoose without stating in the policy what her interest was, but insuring the building against loss by fire to an amount not exceeding the interest of the assured in the property, we think it must be held that the defendant understood the condition of the title and intended to insure whatever interest Mrs. Hoose had which was insurable, not exceeding the amount named in the' policy.”

The court also held that the requirements of the policy as to indorsements of changes of title referred only to such changes as arose after its delivery and acceptance.

In Hall v. Insurance Co. (opinion by McGrath, J.), supra, the suit was brought by an assignee of the policy. This assignment was made by the consent of the company and defendant’s agent was told that the insured had assigned his interest in the policy to plaintiff. The court held that the defendant, by consenting to the assignment, had made a contract with plaintiff, and was estopped from defending against the assignee on account of prior breaches unknown to either party; that the information it received at the time of the assignment was sufficient to put it upon inquiry. It also held that the assignor had an insurable interest. In this case the application was verbal. No statement as to the condition of the title was asked for or given. In its reference to the Hoose Case, the court was in error as to its statement that the facts were precisely the same. In the Hoose Case, as above already stated, defendant company was informed of the exact condition of title when the insurance was written. This case, however, was not determined and decided upon that question, as already appears.

In Guest v. Insurance Co., 66 Mich. 98, opinion by Campbell, C. J., the application was verbal, and the insured stated he held under a land contract. The policy read: “Lot held by virtue of a land contract.”

In Gristock v. Insurance Co., 87 Mich. 428, opinion by Grant, J., the application was not in writing and defendant’s agent was informed of a mortgage.'

In Miotke v. Insurance Co., 113 Mich. 166, opinion by Hooker, J., insured was a foreigner unable to write and speak English. He stated that he held the land on which the house was situated on contract. The contract was, in fact, to himself and wife jointly.

The most recent case before this court, bearing upon' the question under consideration, is Brunswick-Balke-Collender Co. v. Assurance Co., 142 Mich. 29, opinion hy Blair, J. Plaintiff was the owner of certain saloon furniture and fixtures, billiard and pool tables, of which it had made a conditional sale retaining title in the property, and also upon which it had taken a chattel mortgage to secure the title notes. The application was verbal and the record does not show that any specific representations were made as to title. The court said:

In the case at bar the plaintiff had an insurable interest. It had' the legal title and was the owner of the property insured subject to the rights of Rawson Bros, to acquire its title by performance of its contract of sale. The only actual description of their interest in the property contained in the policy was the language ‘ $1,100 on their saloon furniture and fixtures, etc.’ This was a true description, and defendant cannot complain because of its own negligence in failing to, require a more specific description.”

The cases cited in the opinion have already been discussed. The case decides that the description of the property in the policy was not untrue; that the owner of the legal title of personal property need not disclose the fact that he had agreed to sell such insured property upon ■conditions reserving title. This is supported by authority. A conditional sale in the law of fire insurance is not an .alienation. 3 Joyce on Insurance, § 2284, and cases cited. Earlier Michigan cases cited by plaintiff to the point that the insured need not disclose the state of title to the property insured are not in point, for the reason that the insurance contracts did not so require, or the facts showed waiver or estoppel. In the cases discussed, where the opinion'of this court has not been given, enough of the facts of each case has been stated to show some knowledge as to title, or waiver on the part of the insurer. This court has never in terms overruled the case of Wierengo v. Insurance Co., supra, and it is evident such has not been the intention. Some members of the court who concurred in that case have sat in all the cases herein above considered, except the Quest Case, and in no instance has the decision in that case been referred to or questioned, for the undoubted reason that these cases were distinguished by them.

In this case, at the time that the policy issued, plaintiff was not the owner of the land in fee simple. The burden of the proof to show knowledge in the defendant of this .fact was upon the plaintiff. This it failed to do. The defendant had no such knowledge, therefore the policy was void. The court should have directed a verdict for defendant. We find no other errors in the case.

Judgment is reversed, and a new trial ordered.

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


text:
    SEITZ v. STARKS.
    1. Garnishment — Indebtedness of Garnishee — Question for Jury.
    Where, in garnishment proceedings, the defense is that the garnishee defendants did not purchase certain goods from the principal defendants, but from a creditor of the principal defendants, to whom the principal defendants had sold them, and the plaintiff claims the defense is a subterfuge and pretense, made for the purpose of defeating the garnishment proceedings, the issue raised is one of fact for the jury.
    2. Evidence — Fraudulent Conduct — Res Inter Alios Acta.
    Where, in garnishment proceedings, the defense is that the garnishee defendants did not purchase certain goods from the principal defendants, but from a third person, to whom the principal defendants had sold them, the admission in evideuce of testimony concerning a sale of other goods by the principal defendants to other persons, of which the garnishee defendants had no knowledge, and which is claimed to have been fraudulent, is prejudicial.
    3. Witnesses — Impeachment—Immaterial Matter.
    In garnishment proceedings the defense was that the garnishee defendants did not purchase certain goods from the principal defendants, but from a third person, to whom the principal defendants had sold them. The principal defendants having testified in the case, they were cross-examined in relation to a sale of other goods to other parties, about which they had not been questioned on direct examination, and about which the garnishee defendants were not shown to have any knowledge. Held, that the bona fides of the other sale was immaterial to the issue, not proper cross-examination, and that testimony that such sale was in fact fraudulent was not admissible for the purpose of impeachment.
    4. Garnishment — Evidence—Admissibility.
    The issue being whether the garnishee defendants bought the goods from the principal defendants or from a creditor of the principal, to whom the principal had sold them, it being plaintiff’s claim that a member of the creditor firm negotiated the sale from the principal to the garnishee, an unsigned memorandum of the contract of sale drawn by the creditor’s bookkeeper under direction of the member of the firm negotiating the sale, and delivered to the garnishee defendants and kept by them until after process in the suit was served, is admissible.
    5. Trial — Instructions—Assumption op Disputed Facts.
    An instruction that certain facts are undisputed, when in fact they are disputed, is properly refused.
    6. Same — Singling Out Testimony.
    The trial judge should avoid calling specific attention to the truth or falsity of the testimony of a particular witness, and the interest of the parties on one side.
    Error to Berrien; Coolidge, J.
    Submitted January 31, 1906.
    (Docket No. 80.)
    Decided July 3, 1906.
    Garnishment proceedings by William H. Seitz and Eugene O. Roniger, copartners as Seitz & Roniger, against Levi Starks and William Abel, copartners as Starks & Abel, as garnishees of Joseph, George, and Charles Edgcumbe, copartners as Edgcumbe & Sons. There was judgment for plaintiffs, and defendants bring error.
    Reversed.

      G. M. Valentine, for appellants.

      Gray & Seitz (L. G. Fyfe, of counsel), for appellees.
   McAlvay, J.

This is the second time this case has been before this court. A reference to Seitz v. Starks, 136 Mich. 90, will disclose the questions passed upon at that time. From a judgment in favor of plaintiffs, defendants have again brought the case here upon writ of error, claiming that the present record differs from the former one in several important particulars, and wff are asked to reverse the judgment of the lower court on account of errors claimed to have been committed as to those matters. The principal dispute in the case is whether these garnishee defendants were in fact indebted to Edgcumbe & Sons, principal defendants. The principal defendants were engaged in the grocery business, and also carried a stock of wall paper. Plaintiffs claim that the garnishee defendants were indebted to the principal defendants at the time suit was commenced for the stock of groceries and fixtures purchased by them from the principal defendants. The defense is that no sale was made to the garnishee defendants, but that the sale was made to another party, the Kidd, Dater & Price Company, from which the garnishee defendants purchased said stock. Plaintiffs insist that this defense is a subterfuge and a pretense, made for the purpose of defeating the garnishee proceedings. This, is obviously an issue of fact for the jury.

We will consider the matters which are claimed by defendants to be errors not arising in the former case, in the order presented:

1. That the court erred in admitting testimony relative to the sale, inventory, and delivery of the stock of wall paper to one Rice. The sale of the wall paper was not connected with the sale of the groceries and fixtures. These defendants are not shown to have had any knowledge of that sale. It occurred evidently after this suit was commenced, as the garnishment is mentioned by Rice in his testimony. Defendants insist that it is immaterial. It is claimed as admissible because referred to by Edgcumbe, defendants’ witness, upon direct examination. He was cross-examined at length upon the matter, as was' also his son, who was one of the firm, who had not referred to the transaction upon direct examination, and the witness Rice was produced by plaintiffs for the purpose of discrediting the Edgcumbes. The testimony of Rice tended to prove that this sale was made in the manner he described for the purpose of avoiding garnishment and in fraud of creditors. The matter was immaterial to this issue, and therefore not proper as cross-examination or for purposes of impeachment. Its effect was certainly prejudicial to these defendants who could not be bound by fraudulent conduct in a transaction, occurring after their purchase, to which they were not parties, and of which they were not shown to have any knowledge. The court was in error in permitting the introduction of this evidence.

2. The unsigned paper claimed by plaintiffs to be a memorandum of the actual transaction between Edgcumbe & Sons and the garnishee defendants was considered in the former opinion, and was held properly admitted as a circumstance tending to show the relation of vendors and vendees between these parties. It is claimed that this record shows that the Edgcumbes had no knowledge that this paper was made by Kidd, Dater & Price Company’s bookkeeper, and delivered to garnishee defendants, and it was therefore error' to allow it in evidence. Plaintiffs’ evidence tended to show that Dater, of this company, negotiated this sale between Edgcumbe & Sons and defendants ; that he was acting for Edgcumbe & Sons; that such part of the stock of groceries as defendants did not need Kidd, Dater & Price Company would take; that •part of the fixtures were purchased by defendants from. Edgcumbe & Sons later when the inventory was completed; that defendants admit they did not know it was claimed they were purchasing from the Kidd, Dater & Price Company until after service of the garnishee process. Under plaintiffs’ theory the paper was admissible. The relation of Dater to the transaction is in dispute. From the evidence the jury could find that he was acting for the principal defendants in making the sale to the garnishee defendants, and his testimony shows that he directed his bookkeeper to draw a paper; that he saw this paper, heard it read, and approved it, but claims that he did not give it much attention; and that the instructions he gave the bookkeeper were to draw a memorandum between the Edgcumbes and his company. This paper was in fact delivered to these garnishee defendants and kept by them until after process in this suit was served.

3. It is claimed that, as to the sale of the groceries and fixtures being made at the same time by one sale, the evidence is undisputed, and that the court should have so charged the jury. The requests referred to assumed what was not true as to the evidence. There was a dispute as to the facts mentioned. The requests were properly refused.

4. The court properly refused to instruct the jury reíative to the effect of a judgment in this suit against the garnishee defendants and paid by them, as a defense against any indebtedness Kidd, Dater & Price Company might claim on account of this transaction. See former opinion in this case.

5. The other errors claimed refer to the reception and rejection of testimony and the charge of the court. As to these rulings of the court upon the evidence we do not find anything to the prejudice of defendants. We find no error in giving the requests to charge on the part of plaintiffs. It is claimed that in his main charge the court was argumentative, and was in error in saying, among other things: “ It is therefore important for you to determine whether Mr. Dater is testifying to the truth. As I say, if he is testifying to the truth, then the effect of this contract is entirely destroyed ” — and also: ‘ ‘ These par-

ties,. being interested, take the stand and testify positively to those facts.” The court should have avoided calling attention so specifically to the truth or falsity of Dater’s testimony and the interest of the parties on one side. We do not find any testimony of such statements made by Mr. Edgcumbe relative to this sale as appeared in the former trial and were held to be improper, nor is any such testimony pointed out by defendants’ counsel. The trial judge, in referring to his statement, either did so inadvertently, or referred to statements made by him in the presence of, or to, the defendants. We think the case warranted the language of the court in referring to the contradictory statements of defendants made out of court and on the witness stand. With the exception above stated, the charge by the court fairly submitted the case to the jury.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

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