text:
    WARNER v. BLIVEN.
    Vendor’s Lien—Pdrohase Price. .
    A vendor’s lien cannot exist where the purchase price of the land is so intermingled with that of other property that it cannot be distinguished.
    Appeal from Ionia; Dodds, J., presiding.
    Submitted March 7, 1901.
    Decided July 19, 1901.
    Bill by Johial Warner against Edwin H. Bliven and others to enforce a vendor’s lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      V. H. & H. H. Smith, for complainant.

      R. A. Haioley, for defendants.
   Long, J.

This is a bill filed to enforce a vendor’s lien. It appears that in the fall of 1884 an agreement was made between the complainant and Edwin H. Bliven for the sale of a 40-acre tract of land. There is some disagreement as to the exact price to be paid, whether it should be $1,825 or $1,850. After the exchange of the papers, complainant, claiming that there was yet an amount due on the purchase price, brought suit in justice’s court therefor. After judgment there, the cause was removed to the circuit court for trial. On that trial the court left the question to the jury to determine the amount due the complainant on the purchase of said land, and the jury determined the amount to be $130.48.

The theory of the bill is that the entire purchase price for the land was paid for the E. \ of the S. W. J of S. W. i of section 33, township 7 N., of range 7 W., also the E. \ of the N. W. i of N. W. £ of section 4, township 6 N., of range 7 W., both in Ionia county; that $1,850 was to he paid therefor; that it was all paid but $125 at the delivery of the deed; that the complainant has never taken, received, or accepted any security, or any payment, in part or in whole, of said $125, which is the portion of the purchase price claimed to be unpaid on said premises. The answer avers that the purchase price included, not only the lands set forth and described in complainant’s bill, but also two acres of timber which complainant then owned, and which timber was situated on the west side of the E. -|- of the N. W. ¿ of N. W. of section 4, town of Berlin, Ionia county, together with the right to enter'said premises in order to secure such timber, and that the purchase price of $1,825 was to include this timber as well as the lands described in the agreement.

The complainant himself testified as follows:

Q. Is it not a fact that the bargain was between you and Bliven that you were to put in that land for $1,800, including the timber ?

“A. No, sir; $1,850. * * *

Q. How much was that timber worth,—the two acres of timber ?

“A. I don’t know hardly what it was worth. * * *

Q. You did not talk with Mr. Bliven, nor he with you, and fix any value on the timber ? You didn’t determine the value of it ?

“A. I didn’t any more than that.

Q. The understanding was that he was to cut this timber off from there for firewood purposes, as he wanted it?

“A. Yes, sir.

“ Q. It was to stand there until he wanted to use it from time to time for firewood ? You understood that he was to have the right to have the timber remain upon the premises until he got ready to use it from time to time for firewood ?

A. I am swearing now he was to have it for a certain time.”

The deed from Warner to Bliven of the lands in controversy sets up the consideration of $1,850. In the same deed is a clause reciting a conveyance to Bliven of two acres of timber on the west side of the E. -J- of the N. W. J of N. W. i of section 4. It is not claimed by tbe bill that any part of the consideration was paid for this timber, and the lien is not claimed upon that part of the premises. It is evident from the testimony of complainant himself that a part of the consideration was for this timber as well as for the lands conveyed.' The court below made a decree dismissing complainant’s bill. No reasons are given by the circuit judge for his decree.

It is claimed by defendants’ counsel that no lien for the purchase money can exist or be enforced under the facts as they appear from the evidence in this case, for the reasons:

1. That complainant had no purpose or intent of retaining such a lien at the time of the sale in question or for many years thereafter.

2. That the sale was not a sale of the premises alone, but a sale of such premises together with two acres of timber standing upon another and distinct parcel of land, all for one lump sum of money.

3. That there has been a failure of a portion of such consideration, the exact amount of which is not ascertainable, by reason of complainant’s appropriating a portion of the timber to his own use.

4. That there has been a waiver of such lien, if any ever existed.

But one question need be discussed. It appears conclusively from complainant’s own testimony that a lump sum of $1,825 or $1,850 was to be paid for the land in controversy, including the two acres of timber. It is clear that the parties concerned regarded the payment as a lump sum for the lands and timber. Counsel for defendants invokes the doctrine that a lien upon land in favor of a vendor can exist only for the amount of the purchase price of that identical land, and cannot exist upon that land for the purchase price of some other parcel of land or property, and cannot exist against such land where the purchase price of such land is so intermingled with the purchase price of other land or property that the several items cannot be separated and identified to a certainty. In Clark v. Stilson, 36 Mich. 482, it was said:

“Sebring’s defense is based upon a supposed vendor’s lien upon the parcel of land on section 13. It is conceded that Stilson purchased this land of Sebring, and the purchase price has never been fully paid. December 19, 1871, Sebring. obtained a judgment against Stilson for $1,324, which is supposed to embrace the balance of this purchase price. The judgment was obtained in a suit in which not only was the purchase price of the land counted on, but also the value of personal property to the amount of $1,000 or so. By virtue of an execution upon this judgment, the parcel on section 13 was levied upon and sold to Sebring after Clark had sold under the foreclosure at law. The sum at which the sale was made to Sebring was $800, and this now represents the lien, if it exists at all. But as it is impossible for us to know how much of the judgment represents the price of land and how much the value of personal property, it is also impossible to support a lien on the idea that it is represented by the judgment. The confusion of demands in the suit and in the judgment renders a distinction at this time wholly impracticable.”

When the complainant here filed his bill of particulars in the law cage upon which the judgment was rendered, he set out in such bill of particulars the following: “ Interest on $125, amount due on standing timber and balance due on farm, from December 24, 1884, to date, $6.00.”

We refrain from citing the numerous cases in the brief of defendants’ counsel which uphold' the doctrine claimed, as we are satisfied on complainant’s own showing that the purchase price of the land and timber are so intermingled that it would be impossible to state how much of the judgment represents the purchase price of the land upon which the lien is claimed. Several other questions are raised, but we do not deem it necessary to discuss them.

The decree below must be affirmed, with costs.

The other Justices concurred'.


source: Caselaw Access Project

author: Montgomery, G. J.

license: Public Domain

text:
    SEYMOUR v. WALLACE.
    Witnesses—Competency—Matters Within Knowledge op Decedent.
    Where land was conveyed on condition that the grantee should pay the grantor’s debts, a creditor of the grantor, in a suit by the latter’s administrator to impress a trust upon the land to the extent of such debts, was not disqualified by 3 Comp. Laws, § 10212, from testifying to his claim.
    Appeal from Washtenaw; Kinne, J.
    Submitted March 8, 1901.
    Decided July 19, 1901.
    Bill by William B. Seymour, administrator of the estate of Frances E. Wallace, deceased, against Jacob L. Wallace and Elizabeth Gates, to subject certain property to . the payment of decedent’s debts. From a decree for complainant, defendants appeal.
    Affirmed.

      John P. Kirk (J. Willard Babbitt, of counsel), for complainant.

      Hinckley & Hinckley, for defendants.
   Montgomery, G. J.

This case was before the court at the June term, 1899, and the opinion on the former hearing is reported in 121 Mich. 402 (80 N. W. 242). That decision must be construed as having settled the law of the case, and, by implication at least, to have affirmed the right of this complainant to maintain the present suit, and to obtain relief to the extent of impressing a trust upon the property conveyed to defendant by deceased, to the extent of the indebtedness owing by deceased at her death. It was held in the case that the allowance of the claims in favor of Dr. Murdock and another was not conclusive, but that evidence should be received for the purpose of determining what, in fact, was due them from the deceased. This testimony has now been taken, and the circuit judge has determined that the claims were proven, and has granted the relief prayed.

This conclusion is fully warranted by the testimony, if the testimony of Dr. Murdock is competent. It is contended by the defendants that it is not, but we are cited to no authority which sustains this contention. The representative of the estate in this case is the administrator. The defendant himself is the opposite party. He holds under a conveyance which is not attacked. He is a trustee, and the creditors of deceased are cestuis que trustent. The question litigated is the question of what portion of this property each is entitled to. The question is the same on principle as that involved in McClintock’s Appeal, 58 Mich. 152 (24 N. W. 549), where it is said:

“If there are any'parties in opposition, each legatee is opposed to every other legatee, but it can make no difference to the executor, as such, into whose hands the assets fall. It is rather analogous to a suit in partition than an adverse proceeding against the representative of the estate, who, among these parties, is a mere stakeholder.”

So, in this case, it may be said that the controversy here is not by a claimant against the estate, but it is a proceeding to determine what portion of this property belongs to defendant, and what to claimant, under an instrument which, by its terms, is not to operate as an assignment until the debts of deceased are paid. We think the testimony of Dr. Murdock was admissible, and that the case was made out.

The decree will be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    FOLEY v. GRAND RAPIDS GASLIGHT CO.
    Injury to Employe—Obvious Danger.
    Plaintiff had been employed by a gaslight company for several years in laying service pipes and occasionally in taking up street mains. The superintendent of the company started plaintiff and others at putting in a main, and then went away, and the plaintiff thereafter left temporarily. On his return he found the trench, about five feet deep, fully dug, and, without any directions, got down into it, to put in a reducer, when the earth gave way, and he was injured. Plaintiff and his witnesses testified that the sides of the trench looked perfectly sound. The company had shoring, which the men might use as needed. ' Held, that the fact -that shores were not put in did not entitle plaintiff to recover, as the danger was as apparent to him as to any one.
    Error to Kent; Perkins, J.
    Submitted April 2, 1901.
    Decided July 19, 1901.
    Case by Micbael Foley against the Grand Rapids Gaslight Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Stuart & Barker, for appellant.

      McKnight & McAllister and James A. Lombard, for appellee.
   Moore, J.

The plaintiff recovered a judgment of $2,000 against defendant for injuries received by him while at work for defendant in a trench. The case is brought here by writ of error, defendant insisting a verdict ought to have been directed in its favor.

The plaintiff is a man of mature years. He had, according to his testimony, been in the employ of the defendant the greater part of the year for nearly four years, when he was injured. During three summers he was employed in laying service pipes. The defendant says he was foreman of his gang engaged in that work. He says he was not foreman, but timekeeper; that there was no foreman. The record shows he was paid 25 cents a day more than the other men in the gang. The laying of service pipe required an opening to be made at the street main, where the main was tapped, and a small pipe connected with it, and the small pipe was then conveyed, through a trench much smaller and shallower than those in which the street mains were laid, to the building which was to be supplied with gas. During the summer of 1897 the plaintiff and the men with whom he worked were upon two or three occasions employed to take up street mains.

In August, 1897, the plaintiff, with a number of other men, according to the testimony of the plaintiff, was set to work run'ning a four-inch main. The superintendent showed them where to start the work, and then went to some other portion of the city. Plaintiff worked until about 3 o’clock, and then went over to Madison avenue, after something he wanted to make the connection. Upon his return the ditch was completed. It was about five feet deep. Without any direction from any one, the plaintiff got into the ditch, for the purpose, with the aid of his brother-in-law, Mr. Palmer, of putting in a reducer. He stooped down to blow up a bladder that was to be used to shut off the pressure of gas, while Mr. Palmer started to loosen a plug, when the earth gave way, and plaintiff received injuries. He testified that, before he got into the ditch, he looked at it, and both banks appeared all right; “there seemed to be a good bottom and well dug, and it seemed to be all right.” Mr. Palmer also testified, in response to an inquiry by the judge:

“I did not consider it any danger at all. I did not think there was any danger whatever connected with it in getting down in that ditch. I thought no more of it than I would getting off this chair. I could not help but look at the sides of the trench, because our work was right there in the ditch; but the idea of danger did not come to me at all.”

Mr. Wilson, a witness for plaintiff, also testified that he looked at the sides of the trench. “They looked to me perfectly sound and solid; did not observe any danger of their caving in.”

The above is all the testimony upon that subject. After the superintendent set the men at work, he did not return to where they were at work until after the accident. The plaintiff also testified:

“I never raised any objection to working in these mains when I was sent to work there. I imagined it was as safe as any place else. I felt as though if I was working for them I should do what they told me, whether it was working on the main pipes, or on the service, or down in the shops, or in the factory, or anywhere.”

It is claimed the plaintiff, as to the danger of putting in mains, was an inexperienced man, and should have been warned of the danger, and that the defendant should have put in shores against the sides of this trench, and in that way protected the plaintiff. It is said the case of Ostrander v. City of Lansing, 111 Mich. 693 (70 N. W. 332), sustains the verdict in this case. An inspection of that case will show it is easily distinguishable from this one. Were it not for the fact that the accident happened, there is not a particle of testimony in the case indicating the situation was such as to require shoring. The record discloses that the defendant company had braces, plank, and shoring, which the men might use as needed; that they were not often needed, but, when they were, the foreman of the gang attended to the sending and getting them, unless the superintendent was there. Under the record, as made, it cannot be said that this man, who had worked in trenches for three summers, though most of the time in service trenches, was an inexperienced man, who was not as capable of judging of the dangers of going into a trench but four and one-half or five feet deep as any one. The danger he incurred was as obvious to him as to any one. It was one of the hazards of the business in which he was engaged. Lamentable as was the accident, it did not afford a cause of action against defendant. Illick v. Railroad Co., 67 Mich. 632 (35 N. W. 708); Balle v. Leather Co., 73 Mich. 158 (41 N. W. 216); Powers v. Lumber Co., 92 Mich. 533 (52 N. W. 937); Vincennes Water-Supply Co. v. White, 124 Ind. 376 (24 N. E. 747); Texas & Pac. R. Co. v. French, 86 Tex. 96 (23 S. W. 642); 1 Bailey, Pers. Inj. §§,501-504. Judgment is reversed. No new trial.

The other Justices concurred.


text:
    GLASIER v. CITY OF YPSILANTI.
    Trial—Conduct of Counsel.
    A judgment will not be reversed because of objectionable criticisms of witnesses or statements of the law by counsel in his argument to the jury, where the court immediately reproved such counsel, and placed matters before the jury in their true light, and the verdict shows no prejudice.
    Error to Washtenaw; Kinne, J.
    Submitted April 5, 1901.
    Decided July 19, 1901.
    Case by Ella A. Glasier against the city of Ypsilanti for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Fred W. Creen ( Fdward P. Allen, of counsel), for appellant.

      A. J. Sawyer & Son, for appellee.
   Moore, J.

The plaintiff obtained a judgment of $600 against' defendant for personal injuries received on a defective sidewalk. The case is brought here by writ of error. The errors assigned all relate to the conduct of counsel for the plaintiff. It is insisted there was a persistent attempt on his part to put one of the witnesses for the defense in a false position before the jury, and to draw from his testimony inferences which the witness expressly disclaimed. It is also insisted that the counsel persisted in attempting to state what the law was which applied to the case, thus usurping the functions of the judge.

As to the first of these criticisms, counsel says he was justified by the attitude of the witness and what he said. As to the second criticism, he says he was simply replying to the argument of counsel for defendant, who undertook to state the law applicable to the case, and that counsel expressly stated to the jury they were not to take the law from counsel upon either side, but from the judge. From an examination of the record, we are satisfied that counsel in his zeal went further in his criticism of the witness and in his presentation of his views of the law than he was justified in doing by any proper practice. If what he did had been permitted by the court to go unrebuked and uncorrected, we should deem it our dutjr to reverse the case, and direct a new trial. But when the counsel exceeded his privilege he was promptly called to order, and the attention of the jury was called to a correct statement of what was said by the witness. The learned judge also called the attention of the jury to what was said in the argument in relation to the law of the case. He made a very lucid, clear, and full statement of the law which should govern them. It is evident from the amount of the verdict that the jury heeded what was said by the judge, rather than what was improperly said by the counsel. See Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581); Warren v. Halley, 107 Mich. 120 (64 N. W. 1058); Phippen v. Railway Co., 110 Mich. 351 (68 N. W. 216); Wenzel v. Johnston, 112 Mich. 243 (70 N. W. 549); Ford v. Cheever, 113 Mich. 440 (71 N. W. 837).

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    HOME SAVINGS & LOAN ASS’N v. MASON.
    1. Building and Loan Associations—Mortgages—Conflict of Laws—Place of Contract.
    A contract whereby a resident of Michigan becomes a stockholder in a Minnesota building and loan association, and takes out a loan secured by mortgage on property in Michigan, which contract is by its terms to be performed in Minnesota, there being no intention that any part of it shall be performed in Michigan, is a Minnesota contract, and governed by the laws of that State.
    2. Same—Stock Dues—Reduction of Indebtedness.
    Payments made to a building and loan association by a borrowing member as stock dues do not ipso facto operate as a reduction of the debt.
    3. Same—Insolvency—Pleading.
    An averment that a building and loan association is unable to repay to its members more than 50 per cent, of what they have paid in on their stock sufficiently alleges its insolvency.
    4. Same—Voluntary Liquidation—Acquiescence of Members— Foreclosure.
    Where the directors and a majority of the stockholders of a building and loan association determine to go into liquidation by reason of its insolvency, a borrowing member who has acquiesced in the plan, and stopped his payments, cannot successfully resist the foreclosure of a mortgage given by him to secure the loan on the ground that he is not in default.
    5. Same—Accounting.
    Where a building and loan association becomes insolvent, so that it is unable to carry out its contract with a borrowing member, the latter should be charged with the amount loaned, with interest at the legal rate, and credited with interest and premiums paid, but not with payments on stock.
    Appeal from Delta; Stone, J.
    Submitted April 5, 1901.
    Decided July 19, 1901.
    Bill by the Home Savings & Loan Association against Richard Mason and Julia A. Mason to foreclose certain mortgages. From a decree for complainant, defendants appeal.
    Affirmed.

      Smith & Bmpson (J. C. Haynes, of counsel), for complainant.

      B. D. Mead, for defendants.
   Montgomery, C. J.

The bill in this case was originally filed for the foreclosure of two mortgages given to the association to secure two separate loans made to the defendant Richard Mason as a member of the association. It appearing, in the course of the trial, that the company was insolvent, in the sense that it would be unable to pay its stock, as it accumulated, in full, and that the directors and a majority of the stockholders had determined to go into liquidation, the court treated the case as a proper one for an accounting, and applied the rule adopted by this court in Russell v. Pierce, 131 Mich. 308 (80 N. W. 118), and Phelps v. Loan Ass’n, 131 Mich. 343 (80 N. W. 130). The decree entered was that the defendants should repay complainant the amount of the loans, with interest at 7 per cent, (the Minnesota rate), less the sums paid by defendants as interest and premiums, with interest computed in favor of defendants upon the payments at like rate. The court declined to allow the payments on stock made by defendants in reduction of complainant’s claim. The defendants have appealed from this decree.

It is contended that this case is not the case of a Minnesota contract, and that it is ruled by National Mut. Bldg. & Loan Ass’n v. Burch, 134 Mich. 57 (83 N. W. 837), rather than by Russell v. Pierce. We do not agree with this contention. In this case the contract was, by its terms, to be performed in Minnesota. There was no intention that any part of it should be performed in Michigan. The case falls within Russell v. Pierce and the authorities there cited.

It is contended that the complainant’s method of conducting business was in violation of the Minnesota statute; but, without entering upon a discussion of this claim in detail, it will suffice to say that we do not find that complainant’s plan of business departed from the statute in any substantial particular.

The principal question is whether the complainant is entitled to foreclose the mortgages before the maturity of the stock. It is claimed by defendants’ counsel that the defendants were not in default when the bill was filed, and that the plan of liquidation could not be adopted without the consent of all the stockholders, and that the allegations of the bill are insufficient allegations of insolvency. As to the latter claim, the bill shows that the stock could not be paid in full, and, under the plan of the association, it would appear that, if this be true, it would be impossible to mature the stock, and liquidate the indebtedness of stockholders to the company, unless preference was given to one stockholder over another. The injustice of permitting the business to be continued on this basis is apparent. We do not find it necessary to decide whether, under these circumstances, a majority of the stockholders can, against the protest of a minority, go into liquidation. The evidence shows that all stockholders acquiesced in the plan of liquidation, defendant among the rest. Defendant stopped payments. We think that when he learned of the attempt at dissolution, and of the plan of liquidation, he was bound to make his election. Central Bldg. Ass’n v. Witzell, 13 Phila. 54; End. Bldg. Ass’ns (2d Ed.), § 501; Thornt. & Bl. B. & Loan Ass’ns, § 390.

The decree will be affirmed, with costs of this court to' complainant.

The other Justices concurred.


author: Montgomery, O. J.

text:
    GOGLE v. DREGER.
    Deeds—Description oe Premises.
    A deed describing the land conveyed as bounded on the north by the lands of W. and 1ST., on the east by the land of S., and on the west by a quarter-section line, does not include a strip lying between the lands of W. and N., and immediately south of a north and south highway further dividing their premises.
    Error to Berrien; Coolidge, J.
    Submitted April 5, 1901.
    Decided July 19, 1901.
    Trespass guare clausum by John Gogle against Ludwig Dreger. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Gore & Harvey and Edward Bacon, for appellant.

      O’Hara & O’Hara, for appellee.
   Montgomery, O. J.

Trespass guare clausum. The strip of land here in question lies in the village of Dayton, south of the south end of Maple street, which is two rods wide, and the strip in question is four rods north and south by two east and west. In 1874 the land immediately west of it was owned by August Wentland, and that immediately east by William A. Neal. The land owned by both these parties extended north, abutting on Maple street. Reynolds, who owned the strip in question in 1874, conveyed, at that time, to Smith, land bounded on the north by the lands of Wentland, Neal, and Smith, on the east by land of Smith, Hoag, and Allen, and on the west by the north and south center line of section 7. The east and west boundaries named in the deed do not indicate that any part of the land conveyed is bounded on the east by Neal’s land, or on the west by Wentland’s land. Went-land, at that time, had a fence along the south boundary of the strip in question, and used the' south end of the strip as a barnyard. Defendant claims title to the strip in question, or, at least, a right of way over it, through this deed. Plaintiff was in possession at the time of the alleged trespass. Plaintiff recovered a judgment for nominal damages.

We think that, as a matter of' law, the deed from Reynolds to Smith failed to describe the strip in question, or convey any title to it or right of way over it, as it did not give the east and wfest boundaries of it, and that plaintiff, having possession at the time of the trespass, was entitled .to a verdict. Therefore no error has been committed to defendant’s prejudice, and the judgment will be affirmed.

The other Justices concurred.


text:
    WILSON v. ADDISON.
    1. Equity Pleading—Bill in Aid of Execution.
    A bill in aid of execution is not demurrable because the remedy-under a levy on personalty, disclosed by the bill, is not shown to have been exhausted.
    2. Same.
    A bill in aid of execution need not show an execution returned unsatisfied.
    3. Same—Multifariousness—Creditor’s Bill.
    A bill may be filed for the double purpose of aiding an execution and of reaching property not subject thereto, based on a return of execution unsatisfied, and the issue and levy of an alias writ.
    4. Same—Parties.
    A bill in aid of execution may join as defendants persons claiming under separate conveyances from the debtor, and having no common interest.

      Appeal from Wayne; Frazer, J.
    Submitted May 8, 1901.
    Decided July 19, 1901.
    Bill by Maude Wilson against Frederick Addison, Anna Addison, and Charles Addison in aid of execution and to reach other assets of the debtor. From an order overruling her demurrer to the bill, defendant Anna Addison appeals.
    Affirmed.

      Boioland M. Connor, for complainant.
    ‘ William B. Jackson (George Gartner, of counsel), for appellant.
   Montgomery, C. J.

The bill in this case presents the double aspect of a judgment creditor’s bill and a bill in aid of execution. It alleges, among other things, that an execution was issued and returned unsatisfied, and subsequently another execution issued and levied on certain property, which is alleged, on information and belief, to belong to defendant Frederick Addison, the judgment debtor, but which, it is alleged in the bill, he pretends is partnership property, in which defendant Charles Addison has an interest. It is also alleged that this second execution has been levied on certain real estate claimed to have been conveyed by defendant Frederick Addison to defendant Anna Addison, his wife, for the purpose of hindering and defrauding creditors. A disclosure is asked for, and it is prayed that the deed be set aside. Anna Addison demurred, her demurrer was overruled, and she has appealed.

1. It is insisted that the bill is bad because the remedy against the personal property is not shown to have been exhausted. So far as Anna Addison is concerned, this is a bill in aid of execution, and is authorized by the statute (3 Comp. Laws, § 9167). See Williams v. Hubbard, Walk. Ch,, at page 29; Vanderpool v. Notley, 71 Mich., at page 428 (39 N. W. 574).

2. It is, of course, unnecessary to the relief sought

against Anna Addison that the bill should show an execution returned unsatisfied. But it does show that fact, and the issue of the later execution cuts no figure. Clark v. Davis, Har. Ch. 227, 235.

3. The bill is not multifarious. It is perfectly regular to file a bill for the double purpose- of aiding an execution and to reach property not open to execution. Beam v. Bennett, 51 Mich. 148 (16 N. W. 316); Clark v. Davis, Har. Ch. 227; Williams v. Hubbard, Walk. Ch. 28. The demurring defendant is not in position to complain that complainant has found it necessary to join other defendants in the effort to secure a lien upon sufficient property, of the judgment debtor to satisfy her claim. Hamlin v. Wright, 23 Wis. 491; Allen v. Railroad Co., 11 Ala. 437; Chase v. Searles, 45 N. H. 511; 5 Enc. Pl. & Prac. 547.

The order overruling the demurrer will be affirmed, and the case remanded, with costs of this court to complainant.

The other Justices concurred.


author: Hooker, J.

text:
    HEINEMAN v. SULLIVAN.
    1. Mandamus—Trial—Exceptions—Appeal.
    Where no exception is taken to the ruling of the court, on the trial of issues in mandamus, excluding a claim of set-off, the question is not open to review in the appellate court.
    2. Same—Findings of Fact.
    Findings of fact by the court on the trial of issues in mandamus are conclusive on the appellate court if there is evidence to support them.

      Certiorari to Monroe; ICinne, J.
    Submitted May 7, 1901.
    Decided July 19, 1901.

      Mandamus by Frank Heineman to compel Daniel F. Sullivan, drain commissioner of Monroe county, to issue orders for the payment of .certain drain contracts. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Hiram L. Bice, for relator.

      Willis Baldwin, for respondent.
   Hooker, J.

The relator entered into three contracts, with the respondent, as drain commissioner, upon three distinct drains, known as the “ Little Stony Creek Drain,” “Little Sandy Creek Drain,” and “Roberts Drain,” respectively, and claims to have completed the same, and that a balance is his due upon each, which respondent refused to pay. A petition for mandamus to compel the issue of drain orders for the same was filed in the circuit court, an issue of fact was made and heard, and an order determining the amount due relator, and that the writ issue, was entered. The respondent has removed the cause by certiorari.

Two questions are discussed:

First. Respondent claims that there was no proof tending to show that the drains were completed or accepted, although the circuit judge found that they were accepted, and, further, that, although accepted, such acceptance does not preclude a refusal to pay if in fact they were not completed.

Second. Respondent asserts that he had let another contract to the relator on the “ Bunce Drain,” taking bond for performance, and that he was afterwards compelled to relet it at a loss of $189, by reason of relator’s refusal to do the work contracted. It is contended that this was a proper set-off to the relator’s claim.

Upon the trial of the question of fact, counsel for respondent stated that the issues were two: (1) The question of the completion of the contracts. (2) The nonperformance of the contract on the “Bunce Drain.” After a colloquy regarding an admission, relator’s counsel refused to admit that the “Bunce Drain” contract was forfeited, and the job resold, and said:

“ We do not admit that. We say there was no contract proper. If that is an issue of fact, we shall have to ask for an adjournment, in order to produce witnesses.

“Mr. Baldwin: I am willing to try the first issue, and leave the other issue to be tried if it should arise.

“The Court: It is agreed that these are separate contracts. For the purpose of this hearing, at present I will rule that the alleged fact on the part of the respondent that there is another contract unperformed, or partially performed, cannot be urged here as an offset to this proceeding, upon the contracts relied upon in this case for recovery. , '

“Mr. Baldwin: I suppose it is admitted that, under the ruling of the court, the only issue is whether or not the contracts under which payment is sought have been completed ?

“Mr. Bice: Yes.”

No exception was taken to the ruling, and no offer of testimony appears to have been afterwards made. We cannot, therefore, pass upon the question of set-off.

The learned circuit judge found from the proof that the three jobs were accepted as completed. We think that a reasonable construction of the order justifies the conclusion that he determined that the drains were completed according to contract, and we cannot review the question of fact.

The order is affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    JONES v. JONES.
    Divorce—Appeal—Be view .
    Complainant, a man 76 years of age, and possessed of considerable property, married defendant, a girl of ,18, after being threatened with a suit for breach of promise. They lived together but a few months, when complainant filed a bill for divorce on the ground of extreme cruelty, to which defendant interposed a cross-bill, asking for separate maintenance. The testimony was conflicting, and the court awarded a divorce to complainant, with alimony to defendant. Held, that the decree would not be disturbed.
    Appeal from Cass; Carr, J.
    Submitted May 9, 1901.
    Decided July 19, 1901.
    Bill by John W. Jones against Jessie C. Jones for a. divorce. From a decree for complainant, defendant appeals.
    Modified.

      D. 0. French (Alfred J. Mills, of counsel), for complainant.

      Dallas Boudeman (Marshall L. Hoioell, of counsel), for defendant.
   Grant, J.

This is a bill for divorce. The parties were married on the 26th of June, 1899.. The complainant was then 76 years of age, and the defendant 18. He was a man of wealth. Defendant lived at home wi th her parents, who were next-door neighbors to complainant. It is unnecessary to enter into the details of this unfortunate marriage. It was fostered by the defendant’s parents. It was evidently no affair of love, but rather one prompted by mercenary motives. It is evident that, not long after the engagement, complainant desired to break it off, and the parties neither met nor communicated with each other for nearly a year. Complainant then received a letter from the attorneys of defendant, threatening a suit .for breach of promise. She was accompanied to the law office for that purpose by her father. After the threat of suit he married her. After living together a short time she left him. He then filed this bill for divorce on the ground of cruelty.

Both parties testified, and there was a sharp conflict in their testimony as to their relations during the time they lived together. The circuit judge saw the witnesses, and was in better position to determine which told the truth than we are. She filed a cross-bill asking for a divorce, but afterwards amended her bill,- asking for a separate maintenance. The court entered a decree of divorce for complainant, but gave the defendant $3,000 alimony, and her solicitors $600 for fees, besides what they bad already received during the progress of the suit. We think the court below, in entering a decree for the complainant, reached the correct conclusion.' We are, however, of the opinion that the defendant, under the circumstances, should receive $5,000 as alimony, and that her solicitors be allowed $200 for services upon this appeal, and that the defendant should recover the'costs of both courts which have not heretofore been allowed and paid. With this modification the decree is affirmed.

The other Justices concurred.


text:
    TRAVIS v. STEVENS.
    1. Husband and Wife—Action for Support Furnished Wife— Competency of Wife as Witness.
    Under 3 Comp. Laws, § 10213, providing that a wife shall not be examined as a witness against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by him to her, or out of his refusal or neglect to furnish his wife or children with suitable support, within the meaning of Act No. 136, Pub. Acts 1883 (providing that all persons shall be deemed disorderly who, being of sufficient ability, refuse or neglect to support their families), a wife is not competent to testify for the plaintiff, over her husband’s objection, in a common-law action against the husband for support furnished to the wife after she had left him by reason of his alleged misconduct.
    2. Same.
    The wife’s testimony is none the less inadmissible because in the particular action defendant is shown to be of sufficient ability to support his wife.
    3. Witnesses— Credibility—Evidence.
    In an action against a husband for support furnished his wife after she had left his home, it was error to permit defendant to be cross-examined as to whether he had sustained illicit relations with another woman many years before his marriage.
    Error to Hillsdale; Chester, J.
    Submitted April 16, 1901.
    Decided July 19, 1901.

      Assumpsit by John M. Travis against Henry Stevens for support furnished to defendant’s wife. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Sampson & Barre, for appellant.

      Frankhauser & Cornell, for appellee.
   Montgomery, C. J.

This is an action brought for support furnished to the defendant’s wife since 1896. The facts were that the wife of defendant left her husband in 1891, and subsequently filed a bill of complaint, asking a divoi’ce. This bill was dismissed, and, in the course of the proceedings, defendant testified that he was willing to receive his wife back, and would welcome her home. The testimony on the part of the plaintiff tended to show that Mrs. Stevens returned to her husband’s house on the 8th of February, 1896, and that, so far from welcoming her home, defendant refused to receive her, and she again departed, and took up her residence with plaintiff. The defendant, however, testified that he was, on the occasion referred to, willing to receive his wife, and so stated. The jury found for the plaintiff, and defendant brings error.

The questions presented relate to the admission of testimony. The wife of the defendant was permitted to testify, against his objection, as a witness for the plaintiff. This is assigned as error. 3 Comp. Laws, § 10213, contains these provisions, which are the only ones#material to the questions here involved:

“ A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support, within the meaning of act number one hundred and thirty-six of the session laws of eighteen hundred and eighty-three.”

It is clear that this right of action does not grow out of a personal wrong or injury done by the husband to the wife, within the meaning of this statute. People v. Quanstrom, 93 Mich. 254 (53 N. W. 165, 17 L. R. A. 723).

Was the testimony admissible under the other clause of the section ? In other words, does this action grow out of the refusal or neglect to furnish the wife support, within the meaning of Act No. 136 of the Public Acts of 1883? This act is the disorderly act, and provides, among other things, that all persons shall be deemed disorderly who, being of sufficient ability, refuse or neglect to support their families, or who leave their wives or children a burden on the public. The action here planted does not depend upon the ability of the husband to support the wife. It does not grow out of the refusal to support, ‘ ‘ being of sufficient ability,” but is’ a common-law action, which may be brought by one furnishing the wife support in any case where the husband, by his conduct, drives her from his home, on the ground that she becomes his agent of necessity. 15 Am. & Eng. Enc. Law (2d Ed.), p. 886.

But it is urged that, in this particular case, the defendant was shown to be of sufficient ability. But, if this question was litigated, it was foreign to the issue, and, to hold her testimony within the contemplation of the statute, we would have the anomaly of importing into the case an additional issue, to be tried for the purpose of determining the competency of testimony bearing upon the real issue. While this difficulty may not be a conclusive reason, yet it is of weight, and we think the construction which calls for such a result should not be adopted.

This is an action of contract. The wife, under the theory of the plaintiff, became the agent of the husband. It does not involve a trial of the husband’s disorderly conduct. His refusal to support is only material as bearing upon the question of whether the wife is clothed with authority to make the contract upon which plaintiff sues.

The defendant, when a witness upon the stand, was, on cross-examination, interrogated as to having sustained illicit relations with a woman many years before his marriage to his present wife. This testimony was not admissible, within the rule laid down in People v. Mills, 94 Mich. 630 (54 N. W. 488).

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

The other Justices concurred.


text:
    MAINE MILE-TRACK ASS’N v. HAMMOND.
    Bills and Notes—Consideration—Gambling Debt—Bona Fide Holder. "
    A statute of Maine provides that all notes or bills, given for gambling debts are void against all except bona fide holders. Plaintiff sued as indorsee of a check given in that State in payment for pool tickets on horse races. Held, that, the testimony on the subject justifying no other conclusion than that plaintiff took the check with knowledge of the consideration therefor, judgrhent was properly rendered for defendant.
    Error to Wayne; Donovan, J.
    Submitted May 7, 1901.
    Decided July 19, 1901.

      Assumpsit by the Maine Mile-Track Association against George H. Hammond, Jr., individually and as administrator, to recover the amount of a check. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.

      Edward W. Pendleton, for appellant.

      Charles W. Casgrain, for appellee.
   Montgomery, C. J.

This is an action on a check drawn on the Michigan Savings Bank of Detroit for the sum of $1,123.25, payable to the order of William A. Cloutman, signed by the defendant. The defense was that the check was given in Maine for a gambling debt. The statute of Maine, which was put in evidence, provides that all notes, bills, bonds, mortgages, securities, or conveyances given in whole or in part for money or goods won by gambling are utterly void against all persons except bona fide purchasers of real estate and holders of negotiable paper for a valuable consideration without notice. The jury found for defendant, and plaintiff brings error.

The undisputed evidence shows that the plaintiff association owns and controls Rigby Park, at which place races are conducted; that in the year 1897 it leased the grand-stand to Foss & Smith; that William A. Clout-man, the payee named in the check, was the cashier of Foss & Smith in their pool-selling business, and that this was known to be his business and connection with Foss &. Smith by plaintiff’s manager; that this check was given in payment for pool tickets, and was written in blank, and Cloutman given authority to fill it out for any balance due from defendant after the amount was ascertained at the close of the races.

Numerous assignments of error appear in the record. They all relate to the testimony bearing upon the question of notice to the plaintiff, through its manager, H. F. Farnham, of the consideration of this check, and the instructions bearing on that phase of the case. It is stated in the brief of counsel for the appellant that Farnham had no notice of what this check was given for to the payee by the maker; that there was no conversation, prior to the delivery of the check, as to its consideration; that Farnham knew nothing about the check prior to the time it was given to him by Foss & Smith. If this is a fair deduction from the testimony of plaintiff’s witnesses, it may be of some importance to inquire whether error was committed in the course of the trial in the respects claimed. But a careful examination of the record satisfies us that these deductions from the testimony of plaintiff’s witnesses are not warranted, and that, upon the undisputed testimony in the case, it conclusively appears that plaintiff’s manager had notice of the consideration of this check. While the check bears date September 28th, it was not, in fact, received by Farnham for the plaintiff until the middle of October. On the 6th of October two telegrams were sent by Farnham to the defendant, one reading: “Your account was given me in settlement. Send check to me;” and the other reading: “Monday Quimby mailed you tickets and full explanation. If not satisfactory, will copy books.” The tickets referred to, and the only tickets which defendant had any negotiations with Foss & Smith about, were pool tickets, representing bets on races. These telegrams show that as early as October 6th Farnham knew of this fact, and that the account related to pool tickets; further, that he had access to the books in which the account of them appeared. It is true that on direct examination Farnham testified, in answer to the question “whether or not there was any conversation, prior to the delivery of the check to you, by any one as to the consideration of this check,” that there was not; and, in answer to the question ‘ ‘ State fully anything you knew in relation to the check prior to the time it was given to you by Foss & Smith,” he answered, “I knew nothing about the check. I did of the draft. ” It also appeared by his testimony that Foss & Smith had given a draft on Hammond for some $1,400, and turned this over to himself, but that payment was stopped on this draft. This draft represented the account referred to in the telegrams above quoted. On cross-examination he testified:

Q. When Foss & Smith tendered you the paper marked ‘Exhibit A,’ what did they say? You have stated that they said they got their matters fixed up.

“A. They said the matter was straightened out with Hammond. They gave me a draft first, and, before I deposited it,—I don’t know whether it was the same day, or the next second day after I had it in my possession,— Hammond wired me from either Detroit or Lexington that he had stopped payment of the draft, and I took it back to them. I knew nothing about Cloutman’s financial ability nor of Hammond’s financial ability. Foss & Smith’s name does not appear on Exhibit A. * * *

“Q. When you heard from Foss & Smith that they had straightened their matters out with Hammond, what did you understand it referred to,-—‘their matters ? ’

“A. Why, the draft,—this account. The amount of the draft they first tendered me was, I think, a little rising $1,400.

“Q. What matters did you think Foss & Smith had with Hammond ?

“A. I didn’t give it a thought at the time. Foss & Smith, like myself, were cashing checks for horsemen all the time.”

But one inference is open from this testimony,—that Farnham knew that this draft was given for the account of defendant with Foss & Smith; that he knew that this account was for pool tickets; that the account had been turned over to him; that he also knew that the check (Exhibit A) was,given in lieu of the draft; .that he accepted it with a full knowledge of these facts,—and it is impossible to say that he was a good-faith purchaser.

We think the correct result was reached, and the judgment will be affirmed.

The other Justices concurred.


text:
    OWEN v. WARD’S ESTATE.
    Administrator De Bonis Non—Appointment—Petition—Incomplete Administration—Necessity for Proof.
    Appointment of an administrator de bonis non will not follow as of course on the filing of a petition containing the jurisdictional averment of an incomplete administration of the estate, but petitioner must make at least a prima facie case by the introduction of evidence.
    Error to Wayne; Donovan, J.
    Submitted April 17, 1901.
    Decided July 19, 1901.
    Petition by Tubal C. Owen for the appointment of an administrator de bonis non of the estate of Eber B. Ward, deceased. The petition was denied in the probate court, and petitioner appealed to the circuit, where the order of the probate court was affirmed. Petitioner brings error.
    Affirmed.

      Alfred Russell, for appellant.

      Wells, Angelí, Boynton & McMillan and W. W. Gurley, for appellee.
   Hooker, J.

Many years ago, Eber B. Ward died, leaving much property and many debts. He left a will making Emily Ward, Ms sister, one of several entitled to share in the income of the residue of his property, and provided that, upon her death, her share of said income should be equally divided among the living children of two deceased sisters of the testator, one of whom (Abbey Owen) was the mother of the petitioner in this proceeding. The will also provided that, upon the death of all of the class, the estate should be divided among the surviving children of said two deceased sisters, Abbey Owen and Sally Brindle. The estate went through the process of' administration, one Potter being executor. His final account was passed upon by this court in the case of Owen v. Potter, 115 Mich. 556 (73 N. W. 977). Tubal 0. Owen, the petitioner in this proceeding, was a nominal defendant, though really a complainant in interest, in that case. Id. page 560. Ward died in 1875. Emily Ward died in 1891. The estate was found to be insolvent, and it is claimed by the appellee that nothing was left for distribution, and that the records of the cause and estate in the several courts, introduced upon the trial below, so show.

This proceeding arises upon a petition filed in probate court for the appointment of an administrator de bonis non. A citation was issued, and served upon Potter, who had acted as executor. This petition indicates a design to attack the integrity of Potter’s administration of this estate, and to reopen his final account, and the question of fraud, which was involved in the chancery cause of Owen v. Potter, 115 Mich. 556 (73 N. W. 977). We understand that upon the hearing of the present cause in this court such design is disavowed, and that it is urged that the petition alleged that there are unadministered assets belonging to the estate. Counsel for Potter, who appeared and opposed the application, insist that the allegations of the petition are not a sufficient statement of such fact; but we think the question is foreclosed by the opinion filed upon his motion to dismiss this proceeding, reported in 125 Mich. 30 (83 N. W. 1003). The parties tried out both in probate and circuit court the question whether or not there were any unadministered assets, and it was determined that there were none. No formal findings of fact and law were filed, and no reason is given for questioning the correctness of this determination; and the case seems to be resolved into the question whether or not the petitioner was entitled to the appointment of an administrator de bonis non upon his petition, without proof that •it was true, and in face of proof alleged to- show the contrary.

The record and our own Reports show the allowance of the final account and discharge of the executor. The petition indicates, if it does not expressly show, it. These orders were made in the probate court in which this petition was filed. 3 Comp. Laws, § 9332, provides for the appointment of an administrator de bonis non in case of the death of an administrator without having fully administered the estate, and section 9334 makes a similar provision for cases where the authority of the administrator has been in any way extinguished before administration is completed. Such appointment must be based on an uncompleted administration. In the present case it is said to rest upon an allegation that the estate has assets not administered, and, if it has, the administration is not complete. This court has held that primarily administration can only be granted upon a petition containing the essential jurisdictional facts. See Shipman v. Butterfield, 47 Mich. 487 (11 N. W. 283); Wilkinson v. Conaty, 65 Mich. 621 (32 N. W. 841); Hang v. Primeau, 98 Mich. 95 (57 N. W. 25 ). Grant that the petition shows incomplete administration, by an allegation that there are unadministered assets, and it was necessary for the 'petitioner to prove his allegation; otherwise, the court could not act. 1 Chat. Prob. Law, §§ 825, 944, and cases there cited. In Wilcoxon v. Reese, 63 Md. 542, it was held that:

“To authorize the grant of letters of administration de bonis non, there must be something remaining to be done to complete the administration of the estate of the deceased, or some function to be performed in regard to it; otherwise, such letters would be simply nugatory. ”

See, also, American Board of Com’rs for Foreign Missions’ Appeal, 27 Conn. 344; State v. Smith, 52 Conn. 558.

In Grimes v. Talbert, 14 Md. 169, it was said: “In an application for letters, the dying intestate and leaving personal estate must be shown.” See, also, Donaldson v. Raborg, 26 Md. 312. In Wisconsin it is said that the appointment of an administrator is unnecessary, if not invalid, when the decedent leaves no personal property. Flood v. Pilgrim, 32 Wis. 376; Filbey v. Carrier, 45 Wis. 469. In 1 Woerner’s American Law of Administration (section 235) it is said that, “before letters of administration can properly be granted, there must be proof, to the satisfaction of the probate court, that the intestate died, * * * leaving property;” and in relation to administrators de bonds non, at section 247, the author says, “It is sufficient, to recapitulate, * * * that there must be an estate remaining unadministered, and a vacancy in the office; * * * otherwise, there can be no grant of letters de bonis non.”

It is claimed that our own decisions are not in accord with these authorities. Merely alluding to the fact that our statute (section 9323 ) provides for “letters of administration of estates,” we will examine the cases cited. In the case of Nugent’s Estate, 77 Mich. 500 (43 N. W. 889), an order refusing to appoint an administrator was reversed when it was shown that it was desired to litigate a claim to certain property alleged to belong to the estate. As the probate court was not the proper forum, it was held.that an administrator should have been appointed; the fact that there was such a claim apparently being undisputed. McCarty’s Appeal, 81 Mich. 460 (45 N. W. 996 ), was similar. A mother applied for administration upon her daughter’s estate, which consisted of a legacy. Interested parties opposed upon the ground that the legacy was invalid, and probate and circuit courts tried that question in that proceeding. It was held that they could not do that lawfully, and that letters should have been granted. In re Brooks’ Estate, 110 Mich. 8 (67 N. W. 975), involved a similar question, though the question passed on was a question of pleading. Neither of these was a case of an administrator de bonis non.

We are of the opinion that the foregoing authorities justify us in holding that a petitioner is not entitled as of course to letters de bonis non upon filing a perfect petition, and that it is only upon making a prima facie case by proof that the court can lawfully act. The case of Buss v. Buss’ Estate, 75 Mich. 163 (43 N. W. 688), is distinguishable from this. There the executor died without making distribution of funds in his hands, no order having been made for his discharge. It was upon the ground that administration was not complete, and conclusively appeared so, that the order denying letters was reversed.

We are of the opinion that neither the probate nor circuit court committed error, and the order is affirmed, with costs.

Moobe, Long, and Gbant, JJ., concurred. Montgomeby, C. J., did not sit.


text:
    STEUBEN COUNTY WINE CO. v. LEE.

    Fraudulent Conveyances—Consideration—Antecedent Debt.
    A conveyance by a debtor to liis daughter will not be sustained as against his creditors, on the ground that it was given in payment of an antecedent debt, where it appears that the title to the debtor’s homestead was taken in the name of the daughter on its imrchase by him, and is still held by her, affording ample security for her claim.
    Appeal from Calhoun; Smith, J.
    Submitted. June 5, 1901.
    Decided. July 19, 1901.
    Bill by the Steuben County Wine Company against Horace D. Lee, Ora E. Alton, and others in. aid of execution. From a decree dismissing the bill, complainant appeals.
    Reversed.

      IT. W. Cavanagh and M. IT. Nichols, for complainant.

      L. B. Tompkins, for defendants.

       Rehearing denied November 4, 1901.

   Hooker, J.

Complainant, a judgment creditor of defendant Horace D. Lee, filed this bill in aid of execution to reach certain real estate previously conveyed by Horace D. Lee to his daughter, Ora E. Alton. On the part of the defense it is claimed that the premises were deeded to compensate Mrs. Alton for property that came to the father’s hands from the estate of her mother’s father, and which was due and owing to her by reason of her mother’s decease. The other, defendants were incumbrancers by mortgages made by said Lee before said conveyance, upon a sufficient consideration.

There is testimony that Ezra Brown was the grandfather of Ora Alton, and about the year 1880 he died, leaving an estate of about $500 to his daughter, Ora Alton’s mother. This came to the possession of Mr. Lee, Ora’s father. His wife died a year or two later intestate, and her estate was divisible between him and his daughter. No administration was had, but he was at some time appointed guardian of Ora. There is a claim that he had received $400 from his wife’s father many years ago, but we consider that stale. We are satisfied from this record that the conveyance was made to protect the property from creditors by Mr. Lee. Whether Ora Alton participated in this design may be a matter of greater doubt. She seems to have obtained title to the homestead, called the “ La Dow” property, which he purchased, and it is still in her name, having been deeded to her when purchased, which ought to amply secure her.

We think the complainant is entitled to relief. The decree is reversed, and a decree will be entered in this court that the deed to the said Ora Alton be held void as against the complainant, and that the premises described therein are subject to the levy of said complainant’s execution, subject to incumbrances held by other defendants, and that complainant recover its costs of both courts.

The other Justices concurred.


author: Long, J.

text:
    WELLIHAN v. NATIONAL WHEEL CO.
    1. Injury to Employé — Negligence—Proximate Cause — Question for Jury — Fellow-Servants.
    Plaintiff was employed in defendant’s factory to operate a spoke lathe, and while in a narrow space, oiling it, the foreman, knowing plaintiff’s position, without warning, set the machine in operation, which startled plaintiff, and, in his attempt to escape from his dangerous position, he stumbled, and his arm was thrown into the knives. Held:

    (1) That the question of whether the foreman’s negligence was the proximate cause of the injury was properly submitted to the jury.
    (2) That, if the purpose of the foreman in starting the machine was to see whether it did the work properly, rather than to ascertain whether it was safe for the use of the operator, his act was that of a fellow-servant, and plaintiff could not recover.
    2. Fellow-Servants — Who Are.
    The question of fellow-servant is to be determined from the employment, and not from the grade of the offending servant. If both employés are engaged in the same common enterprise, though in different grades, they are fellow-servants.
    Error to Jackson; Peck, J.
    Submitted February 1, 1901.
    Decided July 19, 1901.
    Case by Michael "Wellihan against the National Wheel Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Wilson & Cobb, for appellant.

      Richard Price ( Charles A. Blair, of counsel), for appellee.
   Long, J.

This action is brought to recover for the loss of an arm through the alleged negligence of the defendant. The injury occurred January 7, 1898, in a spoke lathe operated in defendant’s shop in the city of Jackson. The plaintiff had commenced work on the lathe the day before the accident. He was a man about 38 years of age, and had been for many years employed in the capacity of fireman and engineer in the railway service prior to the time of entering into the employment of defendant, on January 6, 1898. The machine or spoke lathe was operated by power in defendant’s shop. Knives are attached to a cutter head mounted on a carriage, which travels from right to left when forming a spoke. When the knife head is at the right, the timber is placed in position. The machinery is then placed in gear by means of a clutch, which sets in motion the screw shaft, and the cutter head travels to the left, forming a spoke. After the spoke is formed, the motion of the feed shaft is, by an automatic adjustment, reversed, and the head travels to the right. The knives revolve continuously while the head is reversing and when at rest. The spoke being formed is about breast high to the operator, who stands in front and to the right of the lathe while operating it. Back of the machine, and two feet four inches distant therefrom, is a channel eight or nine inches deep, about twenty inches wide, into which the greater part of the shavings fall, and are carried away by a moving belt.

The declaration alleges, substantially, that the plaintiff was employed January 6, 1898, by one Edmonds, defendant’s foreman, to operate the machine, who instructed him in its use, operation, and management; that previous to such employment he had had no experience in the use of this or similar machinery; that it was his duty to oil the machine, and in doing so it was necessary to go behind it; that on the day he was injured it became necessary for him to oil the machine; that, before doing so, he threw the machine out of gear, leaving the head at the east end of the lathe, and, with his oil can in his right hand, passed around behind the machine; that there was a pile of spokes or wheels near the west end of the machine, leaving but a - narrow space for him to pass in; that he had passed through this space, and had taken a position at the rear and west of the machine, and was stooping over to oil the machine, when Edmonds, the foreman, threw the machine into gear, and started to run out a spoke which had been placed therein; that this set the cutter head in motion, and fine shavings and dust were thrown back in his direction, making it difficult to see, and also making it dangerous to pass to the west, because of the gear at the west end being set in motion; that, as he raised up, the machinery was all in motion, and shavings flying about him; that he had not completed oiling the machinery, and to do so would have to pass to the east in the rear of the lathe, and towards the approaching knives; that, as he raised up, he had only taken one step, and did not have time to consider whether he ought to pass to the east end, as aforesaid, when he stubbed his foot against some object on the floor, and fell forward; that, to save himself from falling, he involuntarily threw out his right arm, when the knives came in contact with it, and cut it off; that it would have been safe to have passed around the lathe, had it been left alone; that it was defendant’s duty to furnish him a safe place to work in; that the starting of the machinery made his position exceedingly and unnecessarily dangerous, because the place was narrow and crowded, and the shavings filled the air and confused him; that the knives passed over and along the entire length of the lathe; that he had a right to assume that the machine would not be interfered with while he was oiling the same, and he unnecessarily put in a place of great danger. It is also averred that the plaintiff was acting with due care in what he was doing.

On the trial plaintiff had verdict and judgment for $4,000. Defendant brings error.

It is contended by defendant that there was no proof of negligence on its part. ■ The plaintiff testified:

“ I was stooped over. Had the oil can tipped bottom side up, oiling the' machine, when that clutch — whatever you call it — came together. Edmonds’ starting the machine caused it to come together. I did not see him when he started it, but he must have been at the southeast corner — that is where the lever is — to start it. He was there when I raised up. When I went to oil the machine, I had the oil can in my hand. I met Edmonds near the southwest corner of the lathe. He must have seen me go in with the oil can in my hand. I spoke to him. He said nothing to indicate that he was going to start the machine. I had no knowledge or expectation that he was going to start it. After he started the machine, I straightened up, and kind of squared around,, faced to the east, took a step, and struck my toe, and fell. I did not go to the floor; just stumbled. * * * The first thing I knew, I -felt a little pain in my fingers, and, when straightened up, jerked myself out, and my arm was gone just above the elbow. * * * When the machine was started, the knives were coming towards me. That was all the way they could revolve. * * * Edmonds was foreman of the shop; had charge of the machines and men around them.”

We think it must be held that there was sufficient proof to go to the jury on the question of defendant’s negligence, and that subject was properly submitted, unless Edmonds and plaintiff were fellow-servants.

It is contended by defendant’s counsel that plaintiff was guilty of contributory negligence. We t'hink that question need not be discussed, as it was fully and fairly submitted for the determination of the jury by the court below.

It is contended that the negligence complained of was not the proximate cause of the injury. We think the court very properly left that question to the jury, and that there was sufficient evidence to warrant the jury in finding that the starting of the machine by Edmonds was the proximate cause of the injury. The sudden and wholly unexpected starting of the machine, with the knives rapidly revolving where the plaintiff stood, seems to have startled him so that, in his attempt to retreat from the peril of his position, he stumbled and fell upon the knives. Edmonds himself regarded the position of the plaintiff as a dangerous one; and it seems to us that any prudent man might have expected some injury to result from the starting of the machine when the plaintiff was in the position he was.

It is also claimed that Edmonds was a fellow-servant of plaintiff, and therefore no recovery could be had. The court charged the jury upon that question as follows:

“Another very important element in the case, and one to which much proof and considerable argument has been made, is the question of fellow-servant; that is, whether, at the time of this accident, the plaintiff and Mr. Edmonds, the defendant’s foreman, who started the machine, were what is known in law as ‘fellow-servants.’ Without running the risk of confusing you by fuller statements as to the meaning of this expression under the circumstances, I give you now explicit instructions as to your duty in determining the question in this particular case. If the plaintiff was injured and lost his arm by the negligence of Edmonds, the defendant company would not be responsible for that unfortunate consequence, provided Edmonds and the plaintiff were fellow-servants; and in such a situation the plaintiff would be compelled, if he wanted to enforce any action for such loss or injury, to bring his suit against Edmonds, and not against the company. Now, in this case I instruct you that Edmonds was a fellow-servant of the plaintiff, unless you find from the evidence, and a preponderance thereof, that at the time he started this machine he was engaged in the work of inspecting or testing the machine for the purpose of seeing whether it was a safe machine for operatives to work with. If he started the machine to run through that spoke for any other purpose than that, he was a fellow-servant of the plaintiff, and the plaintiff cannot recover. I repeat this, gentlemen, to avoid misunderstanding about it: Unless you find from the evidence, and a preponderance thereof, that when Edmonds did the act of starting that machine, to run out that spoke, he was doing it for the purpose of determining whether the machine was a safe machine for operatives to use and to be used in that factory, he was a fellow-servant of the plaintiff, and the plaintiff cannot recover. If he had any other object in it, then it was an object which would have made him a fellow-servant with the plaintiff. * * * You should examine all the evidence upon that subject. The plaintiff has testified that he did not see him when he started out. Of course, he cannot testify what was in the mind of Edmonds. Edmonds has testified that his object was, his purpose was, to run through a spoke to see that it came out right, —that it was making proper spokes. Now, gentlemen, it is true that the testimony of Edmonds as to what his purpose was is not conclusive upon you; hut you should give it fair consideration, — give it such weight as you think it fairly entitled to; and you should consider, in connection with it, all the surrounding circumstances which tend to throw light upon the question as to what he was doing there when he started that machine and ran out that spoke, — whether he was doing it to carry on the work of seeing that the machine was a safe machine for operatives to work or not. It he was doing it for the purpose of seeing whether the machine was safe, if it was a part of the work he was intrusted with by the defendant, to see that the machines were safe machines to be used by the operatives, then he was doing the master’s work, and was not a fellow-servant with the plaintiff. If he was doing it for any other purpose that has been referred to in this trial,— as if he was doing it for what he says he was, to run the spoke through to see that the work came out right, — and if he was doing it in the general furtherance of the operative work of the factory, he was a fellow-servant of the plaintiff, and the plaintiff cannot recover.”

The declaration alleges that Edmonds, in starting the machine, was acting as the representative and foreman of the defendant. It is the claim of counsel for defendant that there is not a particle of evidence in the case showing or tending to show that Edmonds, at the time of the accident, started the machine to see if it was safe to operate, and therefore in starting it he was not acting as a representative of the master; that Edmonds’ negligence in starting it cannot be imputed to the defendant. On the other hand, counsel for plaintiff point out certain testimony, and refer to certain circumstances, which they contend justify the charge. They refer to the fact that a considerable part of Edmonds’ time was devoted to the supervision of the manufacture of spokes; that it was his duty to keep the machines in repair, and instruct the men how to operate them; that if a machine did not work properly, and was not turning out spokes just as Edmonds wanted them, he adjusted the machine so it would do that; that he set the machines to make different sized spokes, and left the men to run them after that; that he had adjusted this machine so that it would center the spokes, and run them through all right, and there was no reason for his examining it or running it for that purpose; but that he knew the feed did not work right, and there was reason for his examining and fixing it on that occasion.

We think the testimony does not bear out the assertion of counsel that Edmonds was fixing the machine on the occasion of the accident because the feed was not working right. The testimony referred to by counsel is set out in their brief as follows:

“ Well, I had been bothered a little with it. It would go about half way, — about the center of the spoke, — and stop feeding. It would not feed. The knives would revolve, but it would not feed. So I tried three or four spokes that way, and had trouble every time to reach the west to hold the lever there, in order to have it feed; and I thought I would oil it, and try whether that would have any effect. * * *
“Q. He was there working at the machine, fixing it in some way, a few minutes before this happened ?
“A. No, sir; not to my knowledge. He brought spokes that I supposed had been turned for a lumber wagon, to be made smaller. If he changed the machine, I have forgotten it. Think he ran through two or three. He would have to change the machine to turn larger spokes. He turned two or three spokes just or not long before this happened. He was not standing at the machine when I started to go to oil it. He came from the west end of the shop. I met him at the soutwest corner of the machine. Just came right from the other end of the shop somewhere. He did not put the spoke in that he turned out. I took that spoke out, and put one in, before I went after the oil can. I did not take out the spoke he put in. Don’t know how long had been running it since he was there last; it was not very long; might have been eight or nine minutes; was but a very short time. Had made no complaint about the machine stopping. He knew all about it better than I. Ran very well the first and second day. Took it all apart three or four different times. Had not seen Edmonds at this time since it began to stop. Had turned four or five spokes, — something like that. It bothered me. Had not seen Edmonds to make any complaint about that. * * * Oh, no; he did not bring the spokes there at that time. They had been brought there before, and I had been working on them. * * * Edmonds sawed off the clutch that was up on the corner; sawed it to square it up. This is not the clutch I was oiling. * * * Edmonds took the west end of the machine down two or three times — most all the machinery on the west end of the machine — the first day I was there. * * * He [Edmonds] goes around and looks at the work every little while, to see if the machine is doing the work right, and, if it is not, he remedies it. He had to watch the machine, too, that something don’t get loose. If it did, he would have to fix it. If it got loose, it might be unsafe.”

Edmonds testified:

‘ ‘ He came next morning, and went to work. Instructed him how to operate the machine, how to set the spokes, to oil, and all instructions there were to give. Operated the machine myself to show him. Spent six or seven hours the first day teaching him. He was turning spokes from the ordinary timber the day of the accident. I made a change just before it occurred, to: turning club spokes,— re-turning them to smaller spokes. The size can be changed without changing the pattern — did not change the pattern — by adjusting the knives down to or farther from the spoke. After adjusting the machine, was there perhaps 10 minutes. Did not leave the machine until the accident. Do not, as a general thing, get the first spoke the right size; have to try three or four. I probably turned a half dozen. The plaintiff stepped back of me while I was operating the machine. I put in the spoke that was being turned when he was hurt. When I put that spoke in, the machine was working all right then.
‘ ‘ Q. When you say all right—
“A. The adjustments, the rests, were working all right. When the spoke was nearly through cutting the head, I first discovered that plaintiff was not behind me, where had last seen him. Saw him at west end of machine, oiling clutch. As the vibrator dropped back, I looked down at brake at east end of machine. * * *
‘ ‘ I only had the top pulley, where the clutch is, off the first day the plaintiff was there.
Q. And at that time did you take the clutch out ?
“A. Yes, sir; I had it off once in the forenoon, and cleaned it off. Perhaps later on I had it off, and took it out to the machine shop, and sawed it off or filed it up, — ■ filed a shoulder on.
‘ ‘ Q. Why was that done ?
“A. In slipping, it had worn the corner off a little rounding. After I did that it worked better.
Q. What effect had that being worn that made it necessary to file it off ?
“ A. When we raised the vibrator, it did not set the screw going; that is, it would go a little bit, and then stop and catch. It would not feed properly. * * *
“When the vibrator dropped back, I looked down at the brake on the east end of the machine, and the next time I saw him he was directly back of the knives. * * *
Q. What did you look down at that brake for ? You were speaking of some brake at the end of the machine.
“A. I wanted to see— It opens up and closes. Sometimes it will rub on the wheel going up. Merely a block on top of the wheel, small pulley about seven inches in diameter, and there is a lever underneath it. It works automatically.
Q- What would be the effect if it didn’t work just as you wanted it to, — anything serious ?
A. Why, no; not particularly.”

The injury was not caused by reason of any defect in the machinery itself. The defendant had furnished a safe machine, a safe place to work, and the injury was caused by the negligence of a fellow-servant of the plaintiff, and for which the defendant was in no wise in fault. It is a general rule laid down many times in this court that it is not the grade of the servant, but the employment, that determines the question of fellow-servant. If they are engaged in the same common enterprise, though in different grades, they are fellow-servants. We think the rule laid down in Beesley v. F. W. Wheeler & Co., 103 Mich. 203 (61 N. W. 659, 27 L. R. A. 268), is decisive of this case. It is as follows:

“ The true test, it is believed, whether an employé occupies the position of a fellow-servant to another employé, or is the representative of the master, is to be found, not from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant by which another employé is injured; or, in other words, whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master,”— citing McKinney, Fel. Serv. § 23; Flike v. Railroad Co., 53 N. Y. 549 (13 Am. Rep. 545); Crispin v. Babbitt, 81 N. Y. 516 (37 Am. Rep. 521); Ford v. Railroad Co., 110 Mass. 240 (14 Am. Rep. 598); Anderson v. Bennett, 16 Or. 515 (19 Pac. 765, 8 Am. St. Rep. 311).

It was said by Mr. Justice Montgomery in a concurring opinion in that case, at page 212:

‘'I think it is clear that where the danger or injury results from the operation, and the negligence is that of one who is engaged in the common employment, it cannot in any proper sense be said to be attributable to a fault in providing a safe place to work, or safe machinery or appliances.”

See, also, Schroeder v. Railroad Co., 103 Mich. 215 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354).

The court therefore should have directed the jury that Edmonds was a fellow-servant with the plaintiff, and that plaintiff could not recover.

Judgment must be reversed, and a new trial granted.

The other Justices concurred.

       Continued from Vol. 127.