author: Steere, J.

text:
      In re REH’S ESTATE. REH v. ERTRACHTER.
    1, Appeal and Error — Bill op Exceptions — Evidence.
    Where a bill of exceptions contains no testimony and only certain requests for findings and tbe findings and conclusions of tbe trial court, resort can only be bad for tbe facts to sucb findings and to documentary evidence in tbe record.
    2. Same — Concessions op Counsel.
    Questions urged on appeal wbieb bave been eliminated by concessions of counsel are not.open for consideration on appeal, where the trial court in its findings did. not pass on such questions.
    3. Gifts — Inter Vivos — What Constitutes.
    A statement signed by a decedent that he was about to leave town and if anything should happen to him his wife should have his property is insufficient on its,face to constitute a gift inter vivos, since it is upon condition, and such a gift must be not only immediate, but absolute and irrevocable.
    4. Same — Causa Mortis — What Constitutes.
    Where a decedent signed a statement that he was about to leave town for his health and in case anything should happen to him, as he was a sick man, his wife was the owner of everything they possessed, and delivered such statement, together with certain leases, bank books, and other papers, to his wife, and died eight days thereafter, such statement and contemporaneous facts stamped the transaction as a donatio causa mortis.

      5. Same.
    It is not essential to a gift causa mortis that the donor be in extremis and that death is certain, but it is sufficient if he is apprehensive of death from present malady or imminent peril, as from a necessary surgical operation which he intends to voluntarily undergo in hope of relief.
    6. Same — Limitations—Real Property.
    A gift causa, mortis is limited to personal property and does not include realty, and may be made without writings, provided the evidence of what is said and done establishes the requisites for its validity.
    7. Frauds, Statute of — Deeds — Sufficiency of Description — Leasehold Interests.
    A leasehold interest is within 3 Comp. Laws, § 9509 (4 Plow. Stat. [2d Ed.] § 11393; 3 Comp. Laws 1915, § 11975), providing that no estate or interest in lands other than leases for á term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, signing, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.

      S. Gifts — Causa Mortis — Leasehold Interests.
    A gift causa mortis cannot he made of a leasehold interest for a term of years.
    9. Deeds — Evidence—Parol Evidence — Sufficiency of Description.
    A deed or conveyance in 'writing of an interest in land must he complete in itself and leave nothing resting in parol.
    Error to Macomb; Tucker, J.
    Submitted January 16, 1917.
    (Docket No. 143.)
    Decided May 31, 1917.
    Annie Reh, administratrix of the estate of Richard M. Reh, deceased, filed her "final account in the probate court. From an order allowing said account, Toni Ertrachter appealed to the circuit court, where a trial was had before the court without a jury. The order of the probate court was affirmed. Contestant brings error.
    Reversed.

      Silas B. Spier and William F. Sawn, for appellant.

      John A. Weeks and Charles H. Hmnmerich, for appellee.
   Steere, J.

The above-named Annie Reh filed her final account as administratrix of her deceased husband,‘Richard M. Reh, in the probate court of Macomb county on August 3, 1914, which was allowed on September 29, 1914. An appeal was taken therefrom to the circuit court by Toni Ertrachter, sister of deceased, where a trial by jury was begun on May 21, 1915, continuing until May 26, when by agreement Of counsel proofs were closed, the jury discharged, and the case submitted to the court for findings of facts and conclusions of law thereon; written requests for findings and conclusions being filed by counsel for the respective parties.

Findings were first made and filed by the court on July 6, 1915, in which the conclusion was reached that the court was without jurisdiction in that proceeding to try the title to the property in dispute, consisting of a lease for a certain hotel and the furniture it contained, for which reason the order of the probate court should be affirmed. Following requests by appellant for amended findings, and inferably before they had been passed upon by the court, counsel for appellee withdrew all jurisdictional objections which he had previously made and requested the court to “take jurisdiction of the whole matter and determine all questions involved.” The court then proceeded with a further consideration of the case, and on March 6, 1916, filed amended findings of fact with conclusions of law, again sustaining the probate court under the facts found.

None of the oral testimony appears in the printed record. The lengthy requests for amended findings filed in behalf of appellant, composing nearly one-third of the record, indicate that considerable testimony was taken during the ipixr days of trial before the proofs were closed as to detailed facts desired found, which were not touched upon by the court in its findings, either because not satisfactorily proven or deemed immaterial. The authenticated bill of exceptions, of which these requests appear to be a part, contains also the original and amended findings and conclusions of the court, certain exhibits, the pleadings, exceptions to refusal to find, to the findings made and conclusions of law, assignments of error, etc., concluding with the certificate of the trial judge that:

“The above bill of exceptions contains only so much of the testimony as is necessary to determine the questions of law involved.”

In the absence of any testimony of the witnesses, the purpose of including these requests in the bill of exceptions is not clear. Of them the trial judge says in his amended findings:

“I can see no benefit to any one in traversing all of the statements in the voluminous requests for amended findings. There is but one question in the case as I see it, viz.: Did Mr. Reh transfer to his wife, Annie M. Reh, on September 4, 1913, title to the property in the Reh hotel, his lease of it, and his money in the banks?”

Under such a condition of the record, resort can only be had for the facts to the findings of the trial court and documentary evidence found in the record.

The statement of facts in appellant’s brief drawn from the source, which is not questioned by appellee, fairly discloses the essential facts involved and nature of this controversy, which appears to center upon the significance of deceased’s holographic effort of September 4, 1913. The statement is as follows:

“Richard M. Reh, on May 21, 1909, leased what was then known as the ‘Hall Hotel property’ in Mt. Clemens, Mich., at an annual rental of $1,800 per year. On April 14, 1911, he also leased certain other rooms in the building adjacent to and afterwards connected with said hotel property at an annual rental of $600 per year, and conducted the two leased properties as the Reh Hotel and Annex. The leases and the furniture in the hotel was the individual property of Mr. Reh. Mr. Reh’s deposits in the banks with which he did business were made in his own name. One lot in the Wood subdivision, Mt. Clemens, inventoried in this estate, was individually owned by Mr. Reh. Mr. Reh and his wife, Annie Reh, owned jointly considerable real estate of value in the city, but outside of this real estate all the other property was owned in the sole name of Richard M. Reh.
“It appears that Richard M. Reh contemplated a trip to and did leave for Atlantic City, N. J., September 4, 1913; that before leaving he went into the Mt. Clemens Savings Bank and in the presence' of the cashier, Mr. Edward A. Heine, executed the following document, viz.:
“ ‘September 4, 1913.
“T am going to leave town for my bealtb. In case anything should happen to me as I am a sick man so my wife Annie Reh Is the owner of everything we possess and nobody else. This statement is signed by myself.
“‘Richard M. Reh.
“ ‘Subscribed and sworn to before me this 4th day of September, 1913. ' ■
“ ‘ Edward A. Heine, Notary Public.’
“This paper was Exhibit H in the trial of this cause in the circuit court, and is in Mr. Reh’s own handwriting, and by the court was found to have been ‘delivered to said Annie Reh on the same day together with the leases, bank books, and other papers.’ He then departed for Atlantic City, where he died September 12, 1918, leaving surviving him his widow, Annie Reh, administratrix, and a sister, Mrs. Tonie Ertrachter, of Chicago, 111., as his sole heirs at law. After his death, on November 10,1913, Annie Reh sold the lease of and furniture in Hotel Reh and Annex to one Rebecca Malbin, receiving therefor the sum of $12,000, $6,000 of which was in cash, and a mortgage for the balance of $6,000, of which $2,000 has been since paid by said Rebecca Malbin. She executed this assignment individually and as administratrix of the estate of her husband. She also transferred the moneys belonging to Mr. Reh in said banks to accounts in her own name, and in his estate accounted only for the lot in the Wood subdivision, inventoried at $100.”

In the original findings the court found and stated as follows:

“Counsel in open court conceded that the list of payments made by Mrs. Reh properly chargeable to the estate amounted to the sum of $2,709.16; that the widow’s allowance made to her by the probate court are properly chargeable to the estate at $1,400; that the eommission on the sale of the lease of the hotel should be charged, making a total charge against the estate and credit to her of $4,259.16.
“The other side conceded for the purpose of eliminating from consideration all question to the title to the cash in bank: An offset should be allowed against the sums due her of $3,916.27, leaving a net balance due Mrs. Reh of $342.89. This would leave the sole question to be determined in a proper proceeding the title to the leasehold interest in the hotel.”

In. the amended findings, after including in the “one question in the case as I see it” deceased’s “money in the bank,” the court further said and found: “The parties in open court agreed that there was a net balance due the administratrix, Mrs. Annie M. Reh, of $342.89, aside from the matter- of the leasehold interest in the Reh Hotel and the furniture,” and the latter the court passed upon, holding they were the property of Mrs, Reh under the writing of September 4, 1913, and what transpired in that connection.

Counsel for appellant now argue at length in their brief, with citation of decisions, “that there was no transfer of the rights, or title to the commercial bank deposits, of Mr. Reh to Mrs. Reh,” citing 20 Cyc. p. 1239, and other authorities, to support the contention that the rule recognizing a valid gift of a savings account by delivery of the depositor’s passbook does not apply to commercial accounts. It does not appear from the findings whether the bank accounts in question were commercial or savings, but it does clearly appear that the trial court did not pass upon them, for the reason that by concessions of counsel for the respective parties the question of title to cash in bank was eliminated, and the balance due administratrix was determined to be a stated amount, exclusive of the leasehold interest and furniture. We therefore cannot treat those questions as open for consideration by this court.

The court’s findings of fact state that deceased delivered this paper of September 4th to his wife the same day in the presence of some friends, at his hotel, and “at the same time he took from his safe and turned over to his wife the hotel leases, bank books, and some other papers.” The contents of that paper and deceased’s disposition of it on the day he drew and signed it are found by the trial court to clearly show that he “intended the instrument he executed on September 4th as an assignment to his wife of all his property,” and the court concludes that “this gift was perfected * * * by such manual delivery of the property as was consistent with its nature,” emphasized by the fact that this paper with his written evidence of ownership, or title to, the property he intended to and did give her were together placed directly in her hands by him.

This paper, or “statement,” as deceased designates it, read, independently of interpreting acts or circumstances, is an anomalous jumble of sentences and assertions difficult to legally define. Its import is in a sense testamentary. If intended for and to be regarded as a will, it is imperfect and inoperative. On its face it is not a gift inter vivos, for all language referring to property and which in any sense could be claimed to express donation is introduced by the condition, “In case anything happens to me.” A gift inter vivos is not only immediate, but absolute and irrevocable.

While not so stated in exact language, the paper as a whole fairly implies that it was written in anticipation of the writer’s death from the disorder then upon him, in consequence of which he was “a sick man” about to leave his home in search of health, and for the purpose of protecting or providing for his wife if his sickness proved fatal, as he feared, and which in fact occurred eight days later. To that end he lamely stated “so my wife Annie Reh is the owner of everything we possess and nobody else.” Fair construction of this language, under the circumstances and in the connection found, would not limit it to only meaning, or as intended to mean, that she owned what she did own, or that she was the owner of all they possessed before or when he wrote it, which he knew was not true except as what he then might write and do made it true. If, at the same time he delivered this paper to his wife, he also made a legal delivery to her of the property in question in anticipation of death and with intent to absolutely vest control and dominion over the property in her, speaking at and from that time in connection with what he then did the statement was true. His intent, which is admittedly an important question in the case, was one of fact. The court has found as a fact that deceased intended to give this property to his wife and this writing to be an assignment of it to her. The court heard the testimony, which we infer from the time occupied in its taking was voluminous, and from that testimony, which is not before us, decided the fact.

We conclude that this paper of September 4th in connection with the contemporaneous facts found by the court stamps the transaction as a donatio mortis causa, or gift in view of impending dissolution from an existing disorder or danger. Such a gift is always ambulatory and conditional, revocable during the lifetime of the donor. The essentials of a gift mortis causa are that it be made with a view to the donor's death from a present sickness or peril; that there be such present actual or constructive delivery of the subject of the donation as the circumstances of the parties and nature and situation of the property permit; and the gift conditioned to become absolute only on the death of the donor, survived by the donee. The writing of September 4th and facts found present all these elements. The context and circumstances make plain what deceased meant when he wrote, “In case anything should happen to me.” The court finds that at the time he executed this paper he considered himself a very sick man, that his condition was serious, and on that day he went east for relief accompanied by an attendant, dying shortly thereafter. It is not essential to a causa mortis gift that the donor is in extremis and certain of speedy death. The law fixes no such limit. Such gift may be made by one apprehensive of death from a present malady, or imminent peril, as from a necessary surgical operation which he intends to voluntarily undergo in hope of relief. Ridden v. Thrall, 125 N. Y. 572 (26 N. E. 627, 11 L. R. A. 684, 21 Am. St. Rep. 758). A gift cansa mortis, being limited to personal property, may be made without writings. No particular form of words, written or spoken, is necessary to give effect to such a gift, provided the evidence of what was said and done establishes the requisites for its validity. Vandor v. Roach, 73 Cal. 614 (15 Pac. 354). For the foregoing reasons, we conclude that the furniture in dispute, which is purely personal property capable of manual delivery, passed to appellee as a causa mortis gift; but other questions arise as to the leases of the hotel which it is urged by appellant are clearly interests in real estate and could not thus be transferred in this State in violation of section 9509, 3 Comp. Laws (3 Comp. Laws 1915, § 11975), which provides:'

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully, authorized by writing.”

It is elementary, however, that title to real estate cannot pass by a gift causa mortis, which originally had application only to chattels which could be transferred by manual delivery, and has since been extended to personal property generally, which could pass by constructive delivery, including choses in action, with their security even though the security was a lien on realty. While leases for a term of years are chattels real, passing no title or fee of the land, and are as a rule held, to be personal property, they are nevertheless an interest in land, and as such it may well be questioned whether the law of gifts causa mortis would be applicable to them even in the absence of statute defining the manner in which they may be transferred. We are not cited to any authority holding that a leasehold interest in land for a term of years is within the law of causa, mortis gifts. That such interest is within the purview of the statute of frauds invoked is made plain by the language of the act, and is so recognized by this court, including subleases. Fratcher v. Smith, 104 Mich. 537 (62 N. W. 832). This law has been repeatedly held to cover every case where an interest in land is divested by act of the party concerned including both surrenders and transfers. Enos v. Sutherland, 11 Mich. 538; Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124); Whiting v. Butler, 29 Mich. 122; McEwan v. Ortman, 34 Mich. 325; Broas v. Broas, 153 Mich. 310 (116 N. W. 1077); Longe v. Kinney, 171 Mich. 312 (137 N. W. 119); and numerous cases there cited. While deceased’s conditional “statement” that if anything happened to him his wife “is the owner of everything we possess” may be recognized of some probative value touching a causa mortis gift, it fails to disclose any of the characteristics of a “deed or conveyance in writing” of an interest in land, which must be complete in itself and leave nothing resting in parol. Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Hilberg v. Greer, 172 Mich. 505 (138 N. W. 201). If it did not transfer all his interest in land, it did not transfer any. No claim is made that it transferred his lot in the Wood addition inventoried as part of his estate.

For the foregoing reasons, the conclusion is reached that the furniture passed to appellee as a gift causa mortis by the transaction of September 4, 1913, but that the leases, being an interest in land, were not assigned to her by any deed or conveyance in writing in conformity with statutory requirement, and the same, or the proceeds thereof from sale by his administratrix, belong to his estate.

The record does not disclose the value of the unexpired terms of these leases apart from the other property or assets, included in. the sale made by the administratrix, and this court has before it no sufficient facts as basis on which to review and adjudicate her account.

The decision of the circuit court sustaining the order of the probate court will therefore be reversed as to the leasehold interests involved for the reasons above stated, with costs of this court, and the case remanded to the circuit court for retrial and 'such further proceedings upon the final account of said administratrix as parties may desire and the trial court determine, in harmony with this opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    MAGINN v. CASHIN.
    1. Witnesses — Matters Within Knowledge of Deceased — Suits by or Against Heirs — Statutes.
    Section 10212, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12856; 3 Comp. Laws 1915, § 12553), relating to testimony as to transactions with, deceased persons, protects not only personal representatives but tbeir beirs, assigns, etc., and it is immaterial that the deceased’s estate is not a party to, or interested in, the litigation.

      2. Appeal and Error — Review—Equity—Evidence — Documentary Evidence.
    Where, in an equity case, the conclusions of the trial judge are based upon incompetent testimony to an extent not clearly disclosed, the Supreme Court will eliminate such testimony, and, independently of any presumption which might otherwise arise from the trial court’s determination, pass upon the significance of the documentary evidence to which such testimony relates in the light of properly proven surrounding facts and circumstances. .
    3. Mortgages — Deeds—Consideration—Presumptions.
    Where a brother and sister were tenants in common of premises in which their mother had a life estate, and the mother indorsed his note given to his sister for money loaned and received from him a deed to his interest in the premises for an expressed consideration of one dollar .and gave him back a contract of sale and defeasance of the same property for a stated consideration corresponding in amount with such note and later conveyed the premises to the sister for a nominal consideration, held, that the surrounding facts and circumstances strengthened the legal presumption that the instruments referred to of even date operated together as a mortgage.
    4. Same — Land Contracts — Deeds—Presumptions.
    The contract of sale, containing the customary provisions of an ordinary land contract, but not containing a condition binding him to buy, and providing that the stipulations therein should apply to and bind the heirs, assigns, etc., of the respective parties, was sufficient, in connection with a deed.of the same date to her of said premises for a consideration of one dollar, to show that such deed was a mortgage.
    5. Same — Deeds — Construction of Instrument — Subsequent Grantees.
    Such deed and‘land contract continued to be a mortgage, even in the hands of a grantee of the premises.
    6. Same — Deeds—Assignments.
    The deed to defendant from her mother of premises to which the mother held title by a deed which was in fact a mortgage given to secure the mother as indorser on the grantor’s note given to defendant for a loan, constituted an assignment of such security.

      7. Same — Foreclosure—Forfeiture.
    The holder, as assignee of the mortgage, could not foreclose same hy merely declaring the contract forfeited.
    Appeal from Genesee; Stevens, J.
    Submitted January 10, 1917.
    (Docket No. 92.)
    Decided May 31, 1917.
    Bill by William J. Maginn against Frances A. Cashin to have a deed declared a mortgage and plaintiff permitted to redeem. From a decree for plaintiff, defendant appeals.
    Modified and affirmed.

      Farley & Selby, for plaintiff.

      Black & Roberts, for defendant.
   Steere, J.

The bill of complaint filed in this case asks that a certain deed to defendant of a described store property in the village of Mt. Morris, Genesee county, be declared a mortgage and plaintiff permitted to redeem.

For some time prior to and on June 2, 1908, defendant, Frances A. Cashin, and her brother, McArthur T. Cashin, owned as tenants in common the property in question which was left them by their father subject to a life estate.reserved to his wife and their mother, Mary A. Cashin. On that date McArthur Cashin borrowed from defendant $450, giving her his promissory note therefor indorsed by their mother, to whom he on the same date gave a warranty deed of his undivided one-half interest in the property in question for the stated consideration of $1. There was but one witness to this deed, and it was not recorded. On the same date the mother, Mary A. Cashin, gave back to McArthur a land contract for the premises described in his deed to her for a consideration of $450 to be paid on or before June 1, 1909, with interest at 6 per cent, per annum; he to pay all taxes assessed against said property. Defendant testified that she would not have lent her brother the $450 without security, and for that relied upon her mother’s income from her life estate.

The mother, Mary A. Cashin, was then (June 2, 1908) about 53 years of age, and died on March 6, 1913. McArthur Cashin wholly defaulted in his indebtedness to his sister and mother, paying neither principal, interest, or taxes. On February 28, 1913, shortly before her death, Mary A. Cashin executed to defendant, for the expressed consideration of $1, a warranty deed to an undivided half interest in the property. Of this defendant, who owned one-half interest, testifies:

“I did not inquire how my mother got the other half interest at the time she gave me the deed, nor did I pay her any money for the deed, and made no inquiry about any incumbrance on the property.”

The mother had control of and the income from this property under her life estate until the time of her death. The lot was occupied by a store building and the property, which rented for $200 per year, was assessed for $1,500. Plaintiff testified that it was “worth better than $2,000” on June 2, 1908, when McArthur gave his deed of a half interest to his mother.

After her mother’s death defendant assumed charge. of the property and collected the rent. To what extent she at first recognized her brother’s interest in it, subject to his indebtedness to her, is in dispute, but it is shown that following their mother’s death there were negotiations looking to an adjustment of the matter along the line of defendant paying her brother a proposed balance above the amount he owed her for a conveyance of his interest in this property, which progressed to a point where a deed to her from McArthur Cashin, who then lived in Chicago, was sent to a local attorney who represented him for delivery upon closing the deal, but after obtaining an abstract of the property, which she states she showed “to a friend,” she declined to make any settlement. Her testimony and that of the attorney are widely at variance as to what was said and done in that connection. She also testified that the existence of the contract from her mother to her brother was unknown to her until after her mother’s death, when plaintiff told her of it. He testified that she knew all about it and its purpose at the time he drew it, and that when he drew the deed from her mother to her he called her attention to McArthur’s interest in the property, and she replied, “I will take care of that.”

It is admitted that some time subsequent to her mother’s death, and before plaintiff received his deed from McArthur, she served notice upon the latter of forfeiture of his land contract because of default in payment. The notice is dated May 6, 1913, but the date of service is not shown.

By deed dated May 31, 1915, McArthur Cashin sold and conveyed all his interest in this property to plaintiff for an expressed consideration of $1. Plaintiff testified that McArthur made him an offer and he took him up, the consideration being $100 and “some work I had done for them,” a promissory note being given for the $100.

Defendant was notified of the sale, and plaintiff thereafter collected one-half of the rent from the tenant until he had received $85, when further payments to him were refused at her instance, followed by plaintiff filing this bill.

The trial court found that the deed from McArthur Cashin to his mother was given to secure, or indemnify, her for indorsing his note to his sister and was in legal effect a mortgage; that the deed from the mother to defendant operated as an assignment of such security to defendant from whom the $450 was borrowed; that plaintiff by his deed from McArthur of his half interest in the property held title to the same subject to such incumbrance, and was entitled to redeem by paying the amount of the note with interest thereon together with one-half the insurance, taxes, cost of improvements paid by defendant and one-half of the $85 rent he had collected, less one-half the rent defendant had collected since her mother’s death.

■ In behalf of defendant it is first complained that the court erroneously permitted plaintiff, against objection, to testify in his own behalf to matters 'which, if true, were equally within the knowledge of Mary A. Cashin, deceased, in violation of section 10212, 3 Comp. Laws (3 Comp. Laws 1915, § 12553). No written opinion was filed by the trial court, but it is indicated in the brief of plaintiff’s counsel this testimony was admitted on the theory that the statute was inapplicable because the estate of deceased was not a party to or affected by the litigation, and neither defendant nor plaintiff’s grantor was interested in the subject-matter as an heir.

Plaintiff was the conveyancer who drew the instruments in question and witnessed their execution, going to deceased’s home for her signature and acknowledgment. He was permitted to give his version of the transaction, in which he testified to the understanding of the parties as to the conveyances and the intent of deceased in giving the instruments she executed. This, we think, was not permissible under the statute. Since the amendment of 1875 it is not essential to its application that thé deceased's estate be a party to or interested in the litigation. The law protects not only “personal representatives,” but “heirs, assigns,” etc., of a deceased person, and is by prevailing construction applicable where they are in antagonism.

This controversy turns on the acts and dealings with the property by Mary A. Cashin in her lifetime. The interest these parties are litigating is directly affected by what she did and why. Either might invoke the statute to shield his or her interest from the testimony of the other as to transactions with Mrs. Cashin which, if true, were equally within her knowledge. Whatever variations may be pointed out in any of the many eases where this statute is involved, either before or since the amendment of 1875, the proper rule of construction is clearly and unequivocally stated in Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143). That case has been frequently cited with approval in subsequent decisions. In Shepard v. Shepard, 164 Mich. 183 (129 N. W. 202), where numerous decisions upon the statute are cited, Justice Stone quotes and emphasizes the language used by Justice Champeen in the Ripley Case as having increased significance in view of later amendments of the statute.

To what extent the trial judge based his conclusions upon the incompetent testimony of plaintiff is not clearly disclosed, and therefore it becomes the duty of this court to eliminate such testimony, and, independent of any presumption which might otherwise arise from the trial court’s determination, pass upon the significance of the documentary evidence in the light of properly proven surrounding facts and circumstances.

It is shown that on June 2, 1908, the mother and her two children owned this store property together as the husband and father had left it to them, each of the children an undivided half of the fee, and the mother a life estate of the whole, giving her so long as she lived the same control, use, and enjoyment of the property as though she owned it absolutely. The purchase of a' half or the whole of the fee would be of no benefit to her in that particular. Her son wanted to borrow $450 from her daughter, which the latter declined to loan him without security, and the mother indorsed his note for that amount. While both sister and mother were apparently disposed to assist him, and did so when protected from loss, it is fairly indicated that the transaction was with them an accommodation because of kinship rather than a business venture for gain.

The mother indorsed her son’s note and he gave her a deed of his half interest in the property for the expressed consideration of $1, receiving back from her a contract of sale and defeasance of the same property, for a stated consideration corresponding in amount with the note she had indorsed for him. She already had complete use and enjoyment of the property for life, and no reason appears why she should desire to purchase his interest. It is not proven that she directly paid him anything for the deed, nor presumed beyond the nominal consideration stated in the instrument. The gross inadequacy of price, or absence .of price for the property, is a strong circumstance indicating that security, and not actual sale, was what the parties intended by this deed. The transaction did in fact operate as security for her indorsement and the attending circumstances naturally suggest such was its purpose. The note which the mother indorsed was not paid, and, shortly before her death, she conveyed to her daughter the security which had been given her |n that connection. The surrounding facts and circumstances strengthen the legal presumption that these instruments of even date operated together as a mortgage. In Jeffery v. Hursh, 58 Mich. 246 (25 N. W. 176, 27 N. W. 7) it is said:

“It is now settled, as well as any principle of law can be, that an absolute deed, with a bond or separate defeasance or agreement executed at the same time, to reconvey the estate upon payment of a certain sum of money, constitute a mortgage, if the instruments are of the same date, or are executed and delivered at the same time, and as one transaction; and when this is the case, it is a conclusion of law that they constitute a legal mortgage.”

This language is quoted with approval in Reed v. Bond, 96 Mich. 134 (55 N. W. 619); and the rule, also reiterated in Clark v. Landon, 90 Mich. 83 (51 N. W. 357), was early announced in Swetland v. Swetland, 3 Mich. 482. Defendant’s testimony furnishes no convincing proof to overcome the strong confirmatory circumstances which support the conclusion of law which necessarily arises from the contemporary documentary evidence and undisputed facts.

It is. further contended for defendant that the contemporaneous land contract from Mrs. Cashin to her son, agreeing to sell him the property for $450, contains no condition binding him to purchase, and the rights of the parties not being reciprocal, it operated only as a conditional sale, thereby affording no support for the presumption that his deed to her of even date was a mortgage, as it might were he obligated to buy. It is true the instrument does not in express terms state that he “hereby agrees to buy,” as it does that she “hereby agrees to sell,” but it is a contract signed by both parties detailing the customary provisions of an ordinary land contract with paragraphs as to what is “agreed by the parties,” amongst which are that he agrees to pay all taxes assessed against said land, including the year 1908, and that the stipulations therein contained are to apply to and bind the heirs, assigns, etc., of the respective parties thereto. This is not a case where' the deed is. given in payment of an adequate, or any, purchase price, or even in liquidation of an existing debt. It was, we think, manifestly given only to secure and indemnify the grantee as the accommodation indorser of a note of the grantor. The conveyance extinguished no debt. A deed shown to have been so given, even without any defeasance obligation in writing, is held to be a mortgage. Meeker v. Warren, 66 N. J. Eq. 146 (57 Atl. 421); Dudley v. Buckley, 68 W. Va. 630 (70 S. E. 376).

Being a mortgage in the beginning, the transaction remained a mortgage. The deed to defendant from her mother operated as. an assignment of the latter’s, security. This, defendant might, of course, have foreclosed, but she could not do so by merely declaring the contemporaneous contract forfeited.

Neither of these parties appeals to the court with any overweening equities. Defendant denied her brother’s interest in the property, and then sought to cut him off by notice of forfeiture. Plaintiff, who figures as conveyancer in the transaction and was fully informed of her attitude, advisedly bought the brother’s interest in the property, and with it a lawsuit. We are constrained to conclude that he has, under applicable principles of law, sustained his contention that the deed, considered with the contemporaneous contract, in the light of unquestioned surrounding facts and circumstances, constitutes, a mortgage from which he has a right to redeem. Before commencing this suit he made no tender, but in his bill asked for an accounting. The court in its decree determined from the proofs what balance was required to redeem, which we see no reason to disturb, except that there should be added to the amount as decreed the taxes assessed against the property from and including 1908 until the death of Mary A. Cashin, which plaintiff’s assignor by his contract expressly agreed to pay. So modified, the decree of the trial court is affirmed, without costs to either party.

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


text:
    BISHOP v. DODGE.
    1. Vendor and Purchaser — -Action for Price — Evidence—Admissibility — Pleadings.
    In an action to recover on a note given in payment for land, where the defendant pleaded the general issue with notice of the special defense that the note was obtained. by false and fraudulent representations relative to such land which defendant was negotiating for, evidence offered by defendant after plaintiff rested to show the note was without consideration because given for a deed to the land which had not been delivered, was inadmissible under the pleadings, and as showing that such defense had been' litigated adversely to defendant in a former suit brought by him.
    2. Escrow — Deeds—Delivery—Taking Effect.
    Where- a note given for the purchase price of land and a deed for such land were placed in escrow with a third party, the note to be delivered to the vendor and the deed to the vendee at the maturity of the note, held, that such escrow was to be construed as a deed by the vendor to the vendee from its first delivery to the depositary as soon as the time expired and the condition was fulfilled under which it remained in escrow, during which its effect as a deed to the vendee remained suspended.

    3. Deeds — Delivery—Title.
    The deed passed by such delivery in escrow beyond the vendor’s control, and, at the stipulated -time, became the purchaser’s absolutely and vested title in him unconditionally.
    4. Judgment — Foreign Judgment — Conclusiveness — Res Judicata.
    The decision of the court of a foreign State as to the validity of a note given for the purchase price of land is conclusive in another controversy involving the same subject matter.

      5. Pleading — Evidence—Notice—Scope oe.
    Proof of an affirmative defense under a plea of the general issue with notice of special defense cannot he made beyond the scope of the notice.
    6. Judgments — Res Judicata — Question oe- Law.
    Whether a former adjudication interposed by plaintiff to an affirmative defense tendered under a special notice is res judicata and operates as an estoppel by judgment against such defense is a question of law for the court.
    7. Pleading — Res Judicata — Notice.
    It is immaterial at what stage of the case a former adjudication interposed to a special defense, under notice filed with the plea of general issue, is proven, as no pleading in answer to a special notice under such plea is required.
    Error to Van Burén; Des. Voignes, J.
    Submitted January 9, 1917.
    (Docket No. 63.)
    Decided May 31, 1917.
    Assumpsit by Maggie L. Bishop, doing business as the Bishop Jewelry Company, against Thomas F. Dodge on a promissory note. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      W. J. Barnard, for appellant.

      Lincoln H. Titus, for appellee.

      On delivery of deed in escrow as a change of title or interest, see note in 38 L. R. A. (N. S.) 142.

   Steere, J.

Plaintiff brought this action against defendant in the circuit court of Van Burén county on a promissory note for $600 given by the latter to the former, reading as follows:

“$600. Lawton, Mich., April 22, 1909.
“On or before six months after date I promise to pay to the order of Bishop Jewelry Company six hundred dollars, with interest at 7 per cent, per annum, value received.
“Thomas F. Dodge.”

Plaintiff declared upon the common counts in assumpsit with a copy of note attached to the declaration and notice that the same, constituting the sole cause of action, would be introduced in evidence upon the trial. Defendant pleaded the general issue with a somewhat lengthy notice of special defense, the substance of which is that the note was obtained by false and fraudulent representations relative to certain land which defendant was negotiating for and contracted to buy, in connection with which said note was given without consideration.

The trial resulted in a directed verdict and judgment thereon in favor of plaintiff for the amount of said, note with interest. It is stated in defendant’s brief that the meritorious questions raised by the numerous assignments of error are:

“Is it error for the court to direct a verdict for plaintiff without giving defendant an opportunity to be heard?
“Is it error, for the court to direct a verdict for plaintiff and prevent defendant from showing that the suit has been prematurely brought and that consideration for the note had not been tendered him?”

Upon the trial plaintiff introduced the note in evidence accompanied by the depositions of Maggie L. Bishop, plaintiff, showing that she was the owner of the note; that the same had not been paid; that she was doing business as the Bishop Jewelry Company which did not signify any corporation or partnership, but simply her trade-name. Her answers to cross-interrogatories proposed by defendant’s counsel relative to the transaction which resulted in defendant giving the note were also admitted in evidence against plaintiff’s objection. Plaintiff thereupon rested, and, a motion to direct a verdict for defendant being overruled, defendant’s counsel made the following opening statement to the jury:

“In this case we will contend that there was no consideration for this note, that those people have got $600 of our moncey, and that this note was given for a deed of these oil lands, and they have never tendered us a deed and we have never seen one and don’t know where there is any deed. We will show further that they did send this note to the Lawton bank and made a draft on us for. $600; Mr. Dodge was notified, and he went there and refused to pay the note because the deed didn’t accompany the note, and, so far as we know, the property might have been deeded to somebody else; that no deed has ever been delivered to us or tendered to us, and, as shown by her deposition here, the sole consideration for this note was the deed to these oil lands which we have not received, and none has been tendered to us, and therefore the note is without consideration.”

Thereafter plaintiff’s counsel objected to the introduction of any testimony by defendant, either under statement of counsel or the special notice given with his plea of the general issue, for the reason that the otherwise material matter so stated and set up in defendant’s special notice had been litigated on its merits in the courts of Oklahoma, and was res adjudicateu In support of this objection he offered in evidence an authenticated transcript of a judgment and proceedings relating to it of record in a case between defendant Thomas F. Dodge, as plaintiff, and Maggie L. Bishop and others, as defendants, begun on September 13, 1909, in the district court of Rogers county, Okl., where defendant filed a complaint setting up at length matters in relation to a contract by him with plaintiff for the purchase of certain land in that locality said to contain producing oil wells, at an agreed price of $1,200, for part of which the $600 note involved in this litigation was given.

From this transcript it appears that the differences between these parties in relation to the validity of this note and the contract in connection with which it was given had been litigated in the Oklahoma court on the initiative of Dodge, resulting in a verdict and judgment adverse to Ms contention that a motion by him for a new trial had been denied, and the judgment against him was not appealed from. The duly certified records of that case show that on April 22, 1909, Dodge contracted to purchase from Maggie L. Bishop 20 acres of land near a place called Claremore, in Oklahoma, at an agreed price of $1,200, of which he was to pay one-half down and give his note due in six months for the balance, his note and a deed from her of the land to be deposited with the Farmers’ Bank & Trust Company of Claremore, to be held by it in escrow until the maturity of said note, when the deed was to be delivered, to him and the note to her; that, pursuant to such agreement, the deed and note were so deposited in escrow as aforesaid and $600 in cash paid by him. It further appeared that this land lay in “what is commonly called the oil and gas belt,” and that oil had been found upon it.

On September 13, 1909, while the bank yet held the deed and note in escrow, and a few days before the latter fell due, Dodge commenced his action in the Oklahoma court against said Maggie L. Bishop, her husband who acted as agent for her, and the bank, claiming he had been fraudulently deceived into purchasing the land by false representations as to the quantity of oil produced by oil wells located upon it, asking in his complaint:

That “the defendant Farmers’ Bank & Trust Company be required to deliver into court the said deed and note so deposited with it in escrow as aforesaid, and that it then be discharged without costs, and that he have judgment against the defendants Maggie L. Bishop and J. W. Bishop in the sum of $600, with interest from the 22d day of April, 1909, at the rate of 8 per cent, and that the note so executed as aforesaid be canceled and returned to this plaintiff, and that this plaintiff be decreed to have a lien upon the premises above described to secure the payment of said $600, and interest, and that upon the payment of said $600, and interest, and the return of said note said deed be delivered back to said defendant, and the lien thereby created be satisfied, and that this plaintiff may have such other and further relief as may be equitable in the premises and his costs herein.”

His special notice under a plea of the general issue in the instant case is along the same lines and in substance sets up the same grounds of defense stated by him as grounds for relief in his complant in that case. In said complaint he states that:

His note, “together with the said deed, was to be deposited with the defendant Farmers’ Bank & Trust Company, to be held in escrow until maturity of said note, and upon the maturity of said note said deed was to be delivered to this plaintiff [Dodge] and said note to said defendant.”

He further alleges that:

“Said deed and said note were so deposited in escrow as aforesaid and said $600 in cash was paid by this plaintiff.”

As to a want of consideration he alleges:

“That he bought said land exclusively as an oil proposition, and that the same is of no value whatever to him for any purpose other than as an investment in oil and gas, and that, had he not been induced by the means aforesaid to believe that they were of great value as such investment, he would not have entered into said contract.”

The grounds upon which he sought relief having been put in issue by defendant’s pleadings, the matter was litigated on its merits, with the result already stated.

The interrogating suggestion in his counsel’s brief that a verdict was directed in this case without giving defendant an opportunity to be heard evidently relates to the court’s ruling that testimony which defendant offered, and sought to introduce, was not admissible because the subject-matter of the proposed testimony had been formerly litigated and was res adjudicata, for his counsel was fully heard upon the law and the admissibility of his proposed testimony. Thereafter, on motion of attorney for plaintiff, a verdict was directed.

During the discussion of these questions between counsel and court the following occurred:

“The Court (addressing defendant’s counsel): You abandon in this case, as I understand it, a right to go to the jury on the question of false representation, but contend that you have a right to go to the jury on the question of consideration only?
“Defendant’s Counsel: That is it exactly.
“The Court: Suppose, for instance, the court declined to rule now and the defendant went on with his proof: you would not contend that you would have any right to introduce any testimony tending to show fraudulent representation ?
“Defendant’s Counsel: Not at all.”

At the close of the charge and before the directed verdict was taken defendant’s counsel said:

“At this time we offer to show that it was agreed between Mrs. Bishop and Mr. Dodge, at the time this note and this deed were put in the bank, that when this note matured that the bank was to telephone to Mrs. Bishop and the bank was to send the deed to Mr. •Dodge at Lawton, and the note should also be sent there to the bank and demand for payment made at Lawton. And that this has never been done. And we will also show that the note was sent to the bank at Lawton and demand made on Mr. Dodge to pay the note, and that he refused to pay the note because the deed did not accompany it according to agreement.”

The trial court rightly held that defendant’s proffered testimony was not admissible under the condition of the case as it then stood, and the directed verdict was thereupon taken. No special notice of such affirmative defense had been given under defendant’s plea of the general issue, and he had distinctly set out in his complaint as plaintiff in the Oklahoma case that both his note to Maggie Bishop and her deed of the land to him had been delivered in escrow to the bank, a third party, to be held by it in that capacity until the note fell due when it was to be delivered to her and the deed to him. Under such a delivery to a third party the deed passed beyond her control, and at the expiration of the stipulated time became his absolutely and vested the title in him unconditionally. Such an escrow is to be construed as a deed by her to him from its first delivery to the bank as soon as the time expired and the condition was fulfilled under which it remained in escrow, during which its effect as a deed to him had remained suspended. Hatch v. Hatch, 9 Mass. 307 (6 Am. Dec. 67).

• That the validity of this note and the consideration for it had been directly involved and decided in the former litigation between these parties was made plain by the transcript of judgment from the Oklahoma court, and was conclusive in this subsequent controversy where the same matter came up again under defendant’s special notice. Execution of the note was not denied, and it was incumbent on defendant to give special notice of whatever affirmative defense he desired to make. He could not make proof of any affirmative defense beyond the -scope of his notice. Whether the former adjudication which plaintiff interposed was res adjudicata and operated as an estoppel by judgment against the affirmative defense tendered under the special notice was a question of law for the court. Were a defendant seeking to raise the question, it should have been pleaded, but under our practice no pleading in answer to a special notice under a plea of the general issue in an action at law is provided for. The propriety of plaintiff’s manner of raising the question at that stage of the case by objection to any testimony under the defendant’s special notice and proof in support of the objection was questioned by the court at the time the transcript of judgment was offered, objection to it being made by defendant, the court intimating it was out of the order of proof and plaintiff by then objecting, with his reasons therefor, could save his rights, and later as a matter of rebuttal might show, if able, estoppel by record, but while plaintiff’s counsel was arguing to the court his right to introduce the transcript of judgment at that time defendant’s counsel finally relieved the court from ruling by saying, “If you want the jury excused, put her in and we will thresh it out.” This was done.

In 8 R. C. L. p. 842, it is said in discussing this question that estoppel by record or otherwise should as a general rule be pleaded, where the case gives opportunity, “or, if from the nature of the case it cannot properly be pleaded, but goes rather to the admissibility of evidence, it should be made the basis of an objection to such evidence, and, if not thus involved, is waived.”

If, as we think the court rightly held, there was a former adjudication which operated as an absolute bar to the affirmative defense of which special notice was given, it could make no difference in the final result at what stage of the case the former judgment was proven. Clink v. Thurston, 47 Cal. 21. Such was inferably the attitude of defendant’s counsel in consenting to “thresh it out” at that time.

We conclude that under the record before us the proof of a former adjudication upon the matter embodied in defendant’s special plea was before the court, and against it proof of the defense proposed was inadmissible.

We therefore find no occasion to disturb the judgment rendered, and the same is hereby affirmed.

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


author: Steers, J.

text:
    SWEENEY v. SWEENEY.
    1. Divorce — Custody of Children — Modification of Decebe.
    The court granting a divorce decree has authority to modify the decree as to the care and custody of minor children of the parties as the best interests of the children require, and it is its duty to do so where changed conditions or facts not disclosed upon the original hearing clearly show that the rights of the parties and the welfare of the children demand it.

    2. Same — Custody of Children — Modification of Decree — Appearance of Prosecutino Attorney.
    On a bill for divorce, where, subsequent to a decree giving the divorced wife the care and custody of the parties’ minor children, a petition is filed by the husband for a change of such care and custody on the ground that the wife is not a fit person for such care and custody, and the hearing is acrimonious, with hitter charges and recriminations between the parties seeming to overshadow the question of the interests of the children, the case should not he disposed of without appearance of the prosecuting attorney under the statute on behalf of the children.
    Appeal from Kent; Brown, J.
    Submitted January 12, 1917.
    (Docket No. 155.)
    Decided May 31, 1917.
    Bill by Lillian Sweeney against Láveme G. Sweeney for divorce: On petition of defendant for a modification of the decree respecting alimony and the custody of the children. From an order dismissing the petition, defendant appeals.
    Reversed.

      John W. Powers, for plaintiff.

      Niehols & Shaw, for defendant.

      On modification of decree of divorce because of changed conditions, see note in 44 L. R. A. (N. S.) 1026.
      On effect of second marriage upon obligation to pay alimony, see notes in 62 L. R. A. 974; L. R. A. 1915F, 820.

   Steers, J.

Defendant appeals from an order of the Kent county circuit court in chancery dismissing his petition for the custody of his and plaintiffs two children and for relief from an order previously made requiring him to pay her $25 a month alimony.

These parties were married in 1902, and on September 25, 1912, plaintiff obtained a pro confesso decree of divorce from defendant in which it was adjudged that she should have the care, custody, and education of their “minor children, Glen Sweeney, eight years old, and Miles Sweeney, four years old, the issue of said marriage, until they respectively attain the age of fourteen years,” or until the further order of the court. Defendant paid the monthly alimony as provided in the decree until February, 1916, amounting in all to $1,135. In the meantime he had remarried, was again divorced and again married to a third wife, with whom he was living at the time of this hearing. This petition, filed on February 29, 1916, sets out that, because of the sickness of his present wife and necessary expenses, he was unable to keep up payment of the alimony imposed, although he had for a long time allowed other bills to accumulate in order to pay the same, until he could not obtain further credit, and threatened garnishment proceedings imperiled his position with the Pere Marquette Railroad Company, for which he was working as a baggageman at $70 per month; that he was refused the privilege of seeing his children whom he was ready and willing to support and care for which he could properly do at much less expense, and he had ascertained that plaintiff was leading an immoral life, which the children, being then eight and twelve years of age, could realize and understand, for which reason he asked a modification of the original decree, granting him custody of the minor children and relief from payment of alimony.

Plaintiff’s answer is a lengthy pleading, reciting various former delinquencies of defendant, charging that he is not a proper person to have the care and custody of the children, and denying that she has been guilty of improper or immoral conduct.

That the trial court had authority to modify the decree originally rendered in the case as the best interests of the minor children required cannot be questioned, and it would be the duty of the court to do so where changed conditions or facts not disclosed upon the original hearing clearly showed that rights of the parties and the welfare of the children demanded it.

Upon the hearing of this petition, on April 26, 1916, defendant testified that his increasing necessary expenses above his income had resulted in an indebtedness of $250 which his creditors were pressing, his then wife was sick at home, and it was necessary that he in some way provide for her; that he had no money or means of getting any before his next pay day on April 1st, when he would receive $35; that he did not want his boys brought up in a home where such things as he had learned of were going on, and if given their custody he thought he could properly care for and bring them up in a better manner in the home he now had; that because of the things he had heard he engaged his attorney, to whom he had paid but $10, to prepare this petition, which he swore to on information and belief, and with the knowledge of his attorney made arrangements early in February with a constable named Nichols, whom he had formerly known when a railroad man, to go up to plaintiff’s place occasionally and see what he could ascertain. The attitude of the court towards the result of Nichols’ investigation is defendant’s most serious ground of complaint.

It was shown by the testimony that Nichols, who at times worked as a private detective, then proceeded to investigate, and on the evening of Saturday, February 26th, while watching plaintiff’s place, saw two men go in there and was able to see, just at the bottom of a drawn window curtain, what occurred and could also hear their conversation, hearing, amongst other things, an engagement for a meeting there the next Monday night, after one of the men had said he was. going to be in the city until Tuesday; that he reported what he had seen and heard, and Monday night about 12 o’clock went back to the house with defendant and his attorney, where they found plaintiff, another woman, and two men under circumstances and in a condition the details of which may be omitted, but which if true fully justified defendant’s charges.

While plaintiff admitted entértaining strangers at her home on the two occasions mentioned, she denied the more flagrant misconduct charged, but while on the stand did testify in answer to questions by defendant’s counsel in part as follows:

“Two weeks ago last Saturday night I had some men there.. One left about 11 o’clock, and the other left about 1 o’clock. The one that left the latest was the one that called to see me, and the one that left earlier called to see another lady that was there at ■fliA Turnip % %
“Q. You had a lot of drinks?
“A. We had a lot of ginger, and we put a little whisky in it. * * * The young man who came to see me gave the name of Harry Jewell. He called me first over the telephone on the 17th day of February. I didn’t see him until the 25th. I seen him on Saturday night and I seen him again on Monday night. I saw him the first time on Friday at the depot. He brought the whisky and ginger ale with him. * * *
“Q. Did you go to bed with either one of those men.
“A. We were in the bedroom. The bedroom is downstairs, and there is a window at the side of the house. We were all in the bedroom, but I was not in the bed. * * * I had on my underclothes, my kimona, and my nightgown. * * *
“Q. Now, this fellow, how much did he have on? ‡ ‡ ¥
“A. He had on his underclothes, his pants, and his socks.
“Q. Now, as a matter of fact, all four of you people were in bed. * * *
“A. No, sir; we were on the bed, and we were not under the covers.
“Q. Well, you were drinking pretty freely, weren’t you?
“A. We had one bottle of wine. * * * We told stories that I will admit we should not have told in company.”

In justification of her conduct, it was charged that this affair was the result of a conspiracy on the part of defendant, his attorney, and the detective to blacken the woman’s character by procuring the two men found with her and the other woman to go there as they did.

Early in the hearing, while defendant’s counsel was cross-examining plaintiff as to her condition and conduct on the night in question, the court said:

“Wait a minute, let me ask something. So far as you know, Mr. S-, so far as your client has advised you, did you know anything about any attempt on the part of anybody that these young men should go up there ?”

This was answered in the negative, with the explanation that a detective had been engaged to watch and investigate, who reported what he had learned. The court examined counsel sharply upon the subject, though not under oath, who positively denied any knowledge of or participation in an attempt to “put up a job on this woman,” as the court termed it. At the conclusion of counsel’s emphatic denials, the court, apparently on the theory that plaintiff was defendant’s wife, said:

“I will say this thing unhesitatingly, that if a husband or his attorney conspires with persons to make a date with a man’s wife, and after a certain amount of opposition, through the instrumentality of the agents of the plaintiff or the husband in the case, the wife finally does something that is indiscreet, or something that is worse than indiscreet, if the husband is a party to it he hasn’t got clean hands. * * * The frailties of human nature won’t stand for anything of that kind charged up to the court.”

Subsequently, the court severely examined defendant and Nichols, who positively denied under oath any knowledge of the two men found at plaintiff’s house before they were discovered there, or any participation in or knowledge of any plan or conspiracy to induce improper conduct on the part of plaintiff, asserting the two men were absolute strangers to them and on that evening, when found at defendant’s home, refused to give their names, although one replied he was. a traveling man and they were stopping at the Morton House, and subsequent efforts to locate them had been unsuccessful. The court, however, arrived at the “unescapable conclusion” that Nichols arranged with the men found there to go out and give “an opportunity to go in and catch them with these women.” A careful study of this record leads to the impression that the trial court may have had before it facts which the record does not disclose; but, assuming such was the case, we are unable to adopt the court’s conclusions that her conduct with those men was therefore involuntary and not detrimental to the home environments of her children. Its influence upon them would be the same whether voluntary or involuntary. In discussions occupying several pages of the record, the court said in part:

“It does not appear now that there was anything that the children had knowledge of, that they were upstairs, and, if this was a designed conspiracy to involve this woman, it probably never will happen again in the world. I hope it never will. If she was guilty of this offense voluntarily, allowed these men to come there voluntarily, if I felt that she entered into this thing without having it put in her way, I would not hesitate a minute to take these children away from her. * * * Mrs. Sweeney has made here in court certain very damaging statements, no question about it; and the only thing that the court takes into consideration is that it has the earmarks of a very put-up job on this woman, that these men were induced to go there by the husband or somebody for him. * * * It I can help this woman by taking advantage of this circumstance which is a mighty unfortunate one for her — I am not shielding her a particle. She is guilty of conduct that, if it was her natural and uninvited conduct, I would not hesitate a minute to take the children away from her.”

The hearing in this matter was unfortunately acrimonious, with bitter charges and recriminations between the parties which, as they developed, seem to have overshadowed «to a degree the vital question of the best interests of the minor children. The court dismissed defendant’s petition, with language indicating the case was disposed of largely on the theory that, the shown dissolute conduct of the mother of these children was imputable to defendant’s machinations and therefore involuntary, and adjudged defendant guilty of contempt in not paying the alimony due in February.

We are impressed that this controversy should not be finally disposed of until the minor children are properly represented by the prosecuting attorney appearing in their behalf under the statute which authorizes such action and requires service of process upon the prosecuting attorney in divorce cases where there are minor children. Whether his appearance was entered in this case in its inception we are not advised. It is not shown that a copy of this petition was served upon him. The purpose and spirit of the statute is that, in the public interest and for the welfare of the children, the court shall have the independent aid of disinterested counsel, impartial between the contending parents, to investigate the facts and present to the court the true situation, so far as the best interests of the children are concerned.

The record presents a situation where the services of the prosecuting attorney, who could independently investigate the facts and impartially present them to the court, would be particularly helpful.

The order dismissing defendant’s petition and adjudicating him guilty of contempt will be set aside, without costs to either party on this appeal, and the case remanded, with directions that a copy of the petition be served upon the prosecuting attorney, who shall appear for the minor children and be heard in their behalf before final disposition of said petition.

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


text:
    GILCHRIST v. MYSTIC WORKERS OF THE WORLD.
    1. Witnesses — Confidential Communications — Physicians — Waiver — Statutes—Public Policy.
    An anticipatory waiver by an insured in an application for a life insurance policy of the privilege prohibiting the disclosure by attending physicians’ of information obtained in a professional capacity, which is to become operative upon the death of the patient, is invalid under Act No. 234, Pub. Acts 1909 (5 How. Stat. [2d Ed.] § 12826; 3 Comp. Laws 1915, § 12550), as being against public policy.
    2. Abortion — Definition—Statute—“Miscarriage.”
    It is not a conclusive defense to a life insurance policy making such, policy void for violation of the criminal laws of the State, that insured procured an abortion upon herself since the word is primarily equivalent to miscarriage, and the causing or procuring the same, under 3 Comp. Laws, §§ 11502, 11503 (5 How. Stat. [2d Ed.] §§ 14555, 14556; 3 Comp. Laws 1915, §§ 15224, 15225), may, under certain circumstances, be innocent, and even necessary to preserve life.
    3. Evidence — Rebuttal.
    The term “rebuttal evidence,” as commonly understood and applied in practice, means evidence introduced in denial of some affirmative matter of defense which the answering party is endeavoring to prove.
    4. Appeal and Error — Discretion oe Trial Court — Reception oe Evidence.
    Whether evidence may be given on rebuttal, or after the defense has rested, even though it should properly have been offered in chief, is generally a matter within the discretion of the trial court, which will not be interfered with by the appellate court, unless a clear abuse of discretion is shown.
    5. Trial — Reception oe Evidence — Rebuttal.
    In an action on a benefit certificate of a fraternal insurance company, in which the defense was procurance of a criminal abortion by insured upon herself in violation of terms of the policy making it void for violation of the criminal laws of the State, where a witness for defendant, a nurse, testified that she heard deceased, on the day before her death, tell the attending physician, in response to his questioning, that an abortion had been performed on her the day before she was brought to the hospital, and that deceased told witness that the reason the act was done was that she could not afford to raise any more children, and the witness stated on cross-examination that upon the day deceased was brought to the hospital she stated that she had suffered a miscarriage, brought on by working, held, that evidence of facts tending to show the improbability of the statement implying criminality and the probability of the other was proper in rebuttal.
    6. Evidence — Question for Jury.
    In an action on a benefit certificate against a fraternal insurance company, held, that evidence that a hospital nurse, a witness for defendant, heard insured on the day before her death tell the attending physician, in response to his questioning, that an abortion had been performed on her the day before she was brought to the hospital, and that deceased told witness that the reason the act was done was that she could not afford to raise any more children, and that upon the day deceased was brought to the hospital she stated that she suffered a miscarriage, brought on by working in the garden, raised a question for the jury as to whether a criminal abortion caused her death or she suffered a miscarriage from unintentional overexertion.
    7. Juey — Question foe Juey — Credibility of Witnesses.
    The jury are the judges of questioned facts and of the credibility of the witnesses.
    8. Evidence — Criminal Law.
    Evidence held, insufficient to establish the defense, in an action on a death benefit certificate, that insured procured a criminal abortion upon herself.
    Error to Mecosta; McDonald, J., presiding.
    Submitted January 18, 1917.
    (Docket No. 64.)
    Decided May 31, 1917.
    Assumpsit by William H. Gilchrist against the Mystic Workers of the World on a certificate of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles E. Sturtz and Butler & Everett, for appellant.

      Albert B. Cogger and Broomfield & Worcester, for appellee.
   Steere, J.

A former trial of this case is reported in 188 Mich. 466 (154 N. W. 575), to which reference may be made for a sufficient statement of the nature of the controversy and the undisputed facts. The case has been retried, in the circuit court of Mecosta county, resulting in a verdict and judgment in favor of plaintiff for $804.30, being the conceded amount due under the benefit certificate upon which this action is brought, provided any liability is shown.

Defendant requested the court to submit to the jury three special questions. The first two were submitted, and the third refused. They are, including the answers to those submitted, as follows:

“(1) Did Mrs. Gilchrist come to her death by reason of an abortion having been committed upon her?
“A. No.
“(2) Did Mrs. Gilchrist cause an abortion to be brought about?
“A. No.
“(3) Did Mrs. Gilchrist consent to the performing of an operation on her which resulted in an abortion being produced upon her ?”

A motion for a new trial was made by defendant for the following reasons.

“ (1) That the verdict of the jury was and is against the weight of the evidence, which was produced and received on the trial of said cause.
“ (2) That the court erred in excluding the evidence of Dr. George H. Lynch, the physician who attended Grace P. Gilchrist in her lifetime.
“ (3) That the court erred in admitting the evidence of the plaintiff’s witnesses, Alta Scouten, Neva Scouten, and William H. Gilchrist, as rebuttal testimony, for the reason that the evidence of those witnesses did not, in any way, rebut the testimony produced and received for and in behalf of the defendant.”

This motion was denied. The reasons given by the trial court for such ruling are, briefly stated, that the verdict was not so clearly against the weight of evidence as to justify the court in setting it aside; the facts sought to be proven by Dr, Lynch were in their nature confidential information acquired by him while attending deceased professionally, and that the testimony of the three witnesses mentioned in the third ground of defendant’s motion was, in the opinion of the court, proper rebuttal evidence against defendant’s claim that deceased died by reason of a criminal abortion.

Defendant called Dr. Lynch, the family physician who attended deceased professionally in her last sickness, and asked him questions upon the subject calling for information obtained in his professional capacity, to which objection was timely made and the proposed evidence was excluded as privileged. When the doctor was called defendant’s counsel frankly drew attention to the former ruling of this court upon the admissibility of such evidence, and stated that the proposed testimony was offered under the waiver clause in deceased’s application for “the purpose of making the record at this time, with the benefit of an exception.” Upon that question, speaking through Justice Ostrander, this court said when the case was here before:

“The waiver contained in the application was therefore against public policy and void, and the testimony of the attending physicians as to all knowledge obtained by them in such capacity was properly excluded.”

Counsel again urge and argue at length, as was done in defendant’s application for a rehearing upon that decision, that the former opinion on this point should be overruled, as against the weight of authority, a construction of the statute inimical to legitimate defense against fraud, and seriously detrimental to the interests of defendant and other insurance companies doing business in this State. After further examination of the decisions cited and the statutes to which they relate in the light of the stringent prohibitory terms of the Michigan statute, as now amended, we remain of the opinion that the language of our statute clearly expresses the legislative intent to prohibit, as a matter of public policy, anticipatory waivers of this nature which are to become operative after the mouth of the patient is closed by death, and are content with the reasons given in the former opinion.

Deceased was a married woman about 30 years of age, living with her husband and two children in Big Rapids, Mich., near the home of her parents. While at her home she was taken seriously ill in the forenoon of Sunday, May 25, 1913, and on the advice of their family physician was removed to the hospital on the following day, where she died on May 29th. Plaintiff was her husband and the beneficiary named in her policy, or benefit certificate.. Facts were either proven or admitted making out a prima, facie case for plaintiff.

Defendant under its plea of the general issue had given notice of the defense that deceased breached the terms of her contract of insurance by violating one of its provisions reading in part as follows:

“The society shall not be liable to any member, or the beneficiary of any member, on account of any injury, disability or death caused, directly or indirectly, in whole or in part, by drunken or immoral conduct or which is the result of the wilful act of such member or of his violation or attempted violation of any of the laws of the State or country in which he may be at the time of such injury”

—the wilful act and unlawful conduct charged being that deceased violated a criminal law of this State in procuring and being a party to a criminal abortion upon herself which resulted in her death. To sustain this charge defendant introduced in evidence the admissible portion of the medical certificate of death signed by deceased’s attending physician, manifestly prepared by filling out a blank form, which reads in part:

“The cause of death was as follows: Peritonitis. Duration, 5 days. Contributory. Abortion.”

The unqualified word “abortion” in its primary meaning is the equivalent of miscarriage, and does not in the abstract necessarily import crime. Our penal statute upon which defendant relies (sections 11502, 11503, 3 Comp. Laws [3 Comp. Laws 1915, §§ 15224, 15225]) adopts the synonymous term “miscarriage,” and recognizes in its provisions that, causing or procuring the same, may, under certain circumstances, be innocent, and even necessary to preserve life.

Defendant also introduced as a witness the professional nurse who attended deceased in that capacity during the time she was in the hospital and was present when she died. The nurse testified that she heard deceased, on the day before her death, tell the attending physician, in answer to his direct inquiry, that an abortion had been performed upon her by a certain doctor on the Saturday before she was taken to the hospital; that deceased also talked with witness in regard to it, describing in part what had been done, and giving as a reason that she could not afford to raise any more children. This witness also testified on cross-examination that upon the day deceased was received at the hospital she stated that she had suffered a miscarriage, brought on by working in the garden. Asked by defendant’s counsel if witness noticed any peculiar condition after she made the statement on the day before she died, witness answered:

“Just before she made the statement she seemed more restless; after she made it she seemed easier and more calm.”

Plaintiff’s counsel moved to strike out this answer, and the court said:

“Strike it out, the last part of the answer, that she seemed easier after she made the statement.”

After defendant rested plaintiff called as rebuttal witnesses Alta Scouten, Neva Scouten, and Wm. H. Gilchrist, the mother, sister and husband of deceased. Etrror is assigned on the admission of the testimony of these witnesses, because not rebuttal. The term “rebuttal evidence,” as commonly understood and applied in practice, indicates evidence introduced in denial of some affirmative matter of defense which the answering party is endeavoring to prove. In the orderly course of a trial each party is primarily required to introduce all the evidence upon which he relies to establish his side of the case before he rests, following which a plaintiff may give proof in reply, or rebuttal, to some affirmative fact which has been introduced to sustain the defense. The first evidence in this case offered in regard to an abortion was introduced by the defense, and the only evidence tending to show that it was unlawful, and deceased’s death, which plaintiff had proven, resulted indirectly from her wilful act was the nurse’s testimony as to statements by deceased. She told of two contradictory statements, the one implying criminality and the other innocence. Conceding that both statements were made as testified to, evidence of facts tending to prove the improbability of the one implying criminality and the probability of the other would fairly be in its nature rebuttal to an affirmative defense. The purpose and import of the testimony complained of was in that direction. But whether evidence may be given on rebuttal, or after the defense has rested, even though it could and should properly have been offered in chief is, as a rule, recognized to be a matter within the discretion of the trial court, which will not be interfered with by the appellate court, unless a clear abuse of the discretion is shown. The nurse’s testimony as to deceased’s admission of a criminal abortion fixes the date as Saturday, May 24th, and the testimony introduced for rebuttal relates largely to the impossibility or improbability of such an occurrence in fact upon that date. The trial court rightly ruled that such testimony was not subject to the objection urged.

It was shown, amongst other things, by this rebuttal testimony that deceased’s home, where she resided with her husband and children, was near her mother’s, and the two families were on familiar terms; that deceased was at her mother’s home daily, and was there twice during the morning of the Sunday she was taken ill, once before the family had all arisen, when on her way to get milk, and again with her two little girls, after which she went out with her sister, who was learning to ride a bicycle and instructed her, helping her to ride, and herself riding the wheel up and down a path near her home. Both the mother and sister testified, that she was as usual, and apparently all right then, but later one of the little girls came over and said her mother was sick, when Mrs. Scouten at once went over, and, after putting her in bed, called a physician; she testified that deceased was at home all day the previous Saturday (on which it is claimed an abortion was performed), and went down town that evening with her husband to get some shoes for the children, returning while witness was yet there with the children; that witness was at the hospital every day, as long as her daughter lived, and during a part of the time, as her condition became worse, she had a very high fever and was not in her right mind, scarcely knowing her mother when she came into the room. Plaintiff, who was away at work during working hours, testified that he knew of his wife’s pregnancy, and she was not sick, “júst ailing, as you might call it,” that on Saturday evening, May 24th, he went down town with his wife to get some things, and she got shoes for the children, when they returned home together and retired about 10 o’clock, occupying the same room; that he arose first on Sunday morning, and busied himself getting his garden ready to plant, she getting breakfast as usual; that about 10 o’clock on Sunday she was “taken worse, changed so we really knew she was sick” and he sent for his mother-in-law; that he went with her to the hospital, and was there with her all the time except as conditions necessitated his leaving the room; that she had a high fever the day before she died, which was her worst day, and, while he did not think she was out of her head, she was “a little flighty” and “at random some of the time.” In surrebuttal the nurse testified that deceased was rational when she made the statement before testified to.

In this case we have as proof of the fact relied upon by the defense only the testimony of the nurse of two statements by deceased, which are not in harmony. Whether a performed criminal abortion caused her death, or she suffered a miscarriage from unintentional overexertion is a question of fact put in issue by the statement testified to. The condition of deceased, her acts and the surrounding facts and circumstances on the day the abortion is claimed to have been performed and the next day, as also her condition when the statements are said to have been made, cannot be pronounced wholly immaterial and were within the scope of evidential facts for the jury to weigh.

In the somewhat analogous case of Brown v. Mystic Workers of the World, 151 Ill. App. 517, the court states the essentials of a defense of this nature much more stringently than applied here. That case was an action on a benefit certificate similar to this, and the defense claimed that the assured had procured a criminal abortion by obtaining and taking pills to produce such result.

The court there said in part:

“As we understand the law, the burden of proof rested upon plaintiff in error [defendant] to establish, by a preponderance of the evidence, each and every element constituting the crime of criminal abortion. * * * Practically the only evidence in the record tending to show her intent to produce a criminal abortion is the testimony of a physician .who attended her during her last illness. He testified that she told him she had taken pills to produce the abortion. * * * If it be contended that the crime of criminal abortion is clearly deducible or inferable from this evidence referred to, the fact that she wished an abortion, and the other facts and circumstances appearing in the evidence, the reply is that the jury, in such a case as this, must be regarded as fully as capable of deducing or inferring correct conclusions from facts and circumstances proven as are the members of this court. * * * While Mrs. Brown said to the doctor that she took pills to produce an abortion, that statement may not, for instance, have satisfied the jury and the trial judge that she took pills with a criminal intent. Here such intent was a necessary element. In order to prevail, it was necessary for plaintiff in error to prove such intent by a preponderance of the evidence.”

In the instant case the court said to the jury:

“I need not confuse you with any definition of abortion. None is necessary. The question is, Did she ask the doctor to relieve her of pregnancy, and did the act of the doctor result in her death, was that the direct, producing cause of her death? If you find from a fair preponderance of the evidence this theory of the defendant’s is true, then your verdict should be no cause of action. * * * jf * * * you -find that she did come to her death because of her own wrongful act, your verdict would be no cause of action.”

—and later in the charge, gave a request of defendant as follows:

“I further charge you, gentlemen of the jury, if you should find from the evidence in this case that the deceased came to her death by reason of procuring an abortion to be performed upon her, that such an act would constitute a breach of contract of insurance between herself and the defendant in this case, and if you so find plaintiff cannot recover.”

Thus plainly instructed, the jury answered defendant’s two special questions as before related. The jury were the judges of the questioned facts, and the credibility of witnesses. They were deciding an issue of fact upon which defendant had the affirmative. We are not able as a matter of law to find their conclusion, from the facts and circumstances proven, that defendant had failed to affirmatively establish the ultimate, disputed fact to their satisfaction, is so against the great weight of evidence as to demand that their verdict be annulled.

No reversible error is found in the rulings of the trial court. The judgment will therefore stand affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Brooke, and Fellows, JJ., concurred. Moore, J., did not sit.