text:
    MOUAT v. BAMLET.
    1. Contracts — Patents—Royalties.
    A patentee granted to another a license to manufacture and control the sale of a patented heater. Both were to sell the heaters, and the licensee agreed to pay a certain royalty on all sales. Subsequently it was agreed that the royalty on each sale thereafter should be five dollars, instead of the sums stated in the original contract, and that the patentee should also be entitled to a certain percentage off the list price on all heaters he bought. Held, that, since the licensee had the right to regulate prices, the patentee could not avail himself of the benefit of the new contract by taking the royalties thereunder, and also insist, on the right to buy at the old prices.
    2. Same — Substituted Parol Agreement — Settlement — Estoppel.
    Where the parties had acted under a parol agreement which had been substituted for one in writing, and had made settlements thereunder, they were estopped from claiming under the old contract; and it was therefore error, in an action thereon, to exclude evidence of the parol agreement, and of the settlements made under it.
    Error to Wayne; Erazer, J.
    Submitted February 6, 1900.
    Decided March 13, 1900.

      Assumpsit by John D. Mouat against Frank H. Bamlet to recover an amount claimed to be due upon a contract for the manufacture and sale of a patented heater. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Thomas Hislop, for appellant.

      Wisner & Harvey, for appellee.
   Hooker, J.

Mouat was the holder of letters patent for a hot-water heater, and on the 2d day of October, 1890, made a contract with Bamlet whereby he granted to Bamlet a license to manufacture and sell heaters under said patent, and to manage and control their manufacture and sale. Both were to sell heaters, and article 5 of the contract provided that Bamlet should pay to Mouat $25 for each heater shipped to fill' orders procured by him or his agent, and $15 for each heater shipped to fill orders from, other sources, and these sums were to constitute said Mouat’s royalty in full. On May 1, 1894, a new agreement was made as a substitute for article 5, as follows :

“That the royalty on all Mouat heaters sold after May 1st, 1894, shall be five dollars on each size numbered from 1 to 11, instead of fifteen and twenty-five dollars, as stated in original contract. It is further agreed that the price of said heaters shall be 45 per cent, off list, as per latest catalogue to the trade. It is still further agreed that the discount to said Mouat is to be 50 per cent, off list on all heaters purchased by him, and that he is to receive the difference between 45 and 50 per cent, on all sales made to Detroit plumbers and steam-fitters. It is mutually agreed that this contract shall substitute article 5 of original contract, and be in full force from and after May 1st, 1894.”

This action is brought to recover a balance alleged to be due upon these contracts, and also an item for plumbing, which last is unimportant here. The defendant has appealed.

Upon the trial it was claimed by the plaintiff’s counsel that the substituted contract of May 1,1894, was based on catalogue'3, which was then in use, and it was claimed that he had a right to purchase all heaters upon the basis of that catalogue. It appeared that after that date Barn-let made a new catalogue, in which the numbers of the heaters were so changed that the price of each size was increased to the former price of the next higher number. The plaintiff insisted that this was a breach of his contract, and that he had still the right to purchase them at the former price list. The defendant sought to show that in 1895 the parties made an oral agreement that thereafter their dealings should not be governed by the substituted contract of May 1, 1894, and that instead, the plaintiff should receive 50 and 10 per cent, on purchases, and that he should not receive the 5 per cent. (i. e., the difference between 45 and 50 per cent.) on goods sold to the trade, and that from that time the parties settled upon that basis; but this testimony was excluded upon the ground that the written contract could not be affected by such parol agreement. Counsel then made the claim that, if the plaintiff was entitled to recover the 5 per cent., the defendant should be entitled to have applied the additional 10 per cent, which he claimed had been paid under the alleged oral agreement.

The court instructed the jury that:

“The' controversy arising under this contract: First, what is meant by numbers from 1 to 11, and what rights these parties have under these catalogues as mentioned. There are two catalogues offered in evidence here in this case,— one of them that antedates this article of agreement of May 1, 1894, and, I understand, one that was issued subsequently to this agreement; and in the catalogue issued subsequently to this agreement the numbers of these boilers were changed. This article was evidently intended to confine this royalty, under the terms of this article, to heaters from numbers 1 to 11, but in the new catalogue that was issued there were new numbers. The numbers were changed. Number 1 was made number 2, and so on. You have heard the testimony. The same identical heaters were sold; at least, all the heaters from 1 to il were sold; but the numbers were changed, and the prices under the first catalogue were changed. I charge you that it is a fair construction and a legal construction of this contract to say that Mr. Bamlet had a right to change the prices of these heaters as he saw fit, that he had the control of any price issued in any previous catalogue, and that he had a right to raise or lower the price of these heaters as he saw fit. It was his -business to fix and arrange the price at which these heaters were to be sold; but he had no right to change the catalogue in regard to the numbers of these heaters, so as, by designating them by a different number, to prevent Mr. Mouat from receiving his royalty upon the heater. This would not be right, and it is not a construction of this contract that he would be entitled to have. So that, if you find that No. 1 in the original catalogue was No. 2 in the second, he would be entitled to have No. 2 in the second catalogue for the same terms as he would on No. 1,— that is, Mr. Mouat would, — and so as to every number mentioned in the original contract. But the Other parts of the contract would apply as to the price, on the percentage that was to be allowed to Mr. Mouat, or the difference between certain per cents, would be figured according to the terms of the original contract; the price being fixed by the new catalogue, if you shall find that that was the catalogue issued to the trade, and from which these heaters were sold. You have heard all the testimony. There has been some effort made to show that a different arrangement was entered into between these parties subsequently to the date of this contract, by parol, — -that was not in writing. I charge you that no such contract would be binding, and I have excluded all evidence concerning it, for reason that it is in contravention or violation of the statute of frauds, and could not be entered into between these parties lawfully, its performance continuing for more than a year; and for the reason mentioned, and for various reasons, I charge you that it is not for your consideration. But in figuring up the amount, whatever it may be, if you find anything due Mr. Mouat, it is in relation to this written contract, as I have interpreted it, which is before you in the evidence in this case.”

It will be observed that the court construed the contract as giving the defendant the right to change the prices upon the heaters, if he chose to do so, but he held that he could not change the numbers so as to affect the plaintiff’s royalty. It goes without saying (and we do not discover that any claim was made to the contrary) that the royalties earned prior to the change of the catalogue could not be affected by the change in the catalogue; but on May 1, 1894, royalties were limited to five dollars per heater, regardless of the number, in addition to which plaintiff was to have 5 per cent, of the catalogue price on all heaters sold to the trade, and 50 per cent, on all purchased by him. It was thenceforth immaterial to him what numbers defendant put upon tbe heaters, so far as royalty is concerned; and the court held that the defendant had a right to change the price, and, if so, plaintiff could not complain. Yet he was complaining, because the advance in price made the heaters cost him more money than as though sold to him at the old catalogue prices; and the court told the jury that, if No. 1 was raised to No. 2, the plaintiff would be entitled to have No. 2 in the second catalogue for the price of No. 1, and so as to every other number. The court added that the plaintiff was to have the 5 per cent, on the increased price on sales to the trade, and he refused to allow the defendant to recover back the extra 10 per cent, discount over and above the discount fixed by the writing upon plaintiff’s purchases. We are of the opinion that the court was right in saying that the contract gave the defendant the right to regulate prices, as that did not affect the plaintiff’s royalty. The second writing placed the royalties upon another basis, and his contention that he had the right to avail himself of the advantages of that writing by taking the royalties, and insist on his right to purchase at old prices, is not tenable.

Again, if the parties did make a new oral arrangement, and settle under it, the plaintiff is now estopped from claiming the right to collect royalties under the second written contract, upon sales so settled for; and, if he were not, he should not be allowed to collect them, and refuse to account for increased discounts, paid upon the agreement that such royalties, or a part of them, were to be discontinued. The proof upon this subject should have been admitted.

It follows that the judgment should be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    FOSTER v. WHELPLEY.
    1. State Lands — Purchase—Partial Payment — Execution.
    A purchaser’s undivided interest in part-paid primary school land is subject, under 1 Comp. Laws 1897, § 1332, to levy and sale on execution.
    2. Same — Estates by Entirety — Fraudulent Conveyances.
    Where the stockholders in an insolvent bank were assessed to pay depositors, the undivided interest of one of them in land which, when the bank became insolvent, was held by him under a part-paid certificate from the State, the other undivided interest having been assigned by him to his wife, was properly subjected to the payment of the assessment, not with standing the fact that his purpose in assigning the interest in the certificate was to create an estate by the entirety, and that a patent was issued, after his liability as stockholder accrued, to him and his wife jointly.
    Appeal from Eaton; Smith, J.
    Submitted February 6, 1900.
    Decided March 13, 1900.
    Bill by Seymour Foster, receiver of the People’s Savings Bank of Lansing, against Solon R. Whelpley and Evaline H. Whelpley, in aid of execution. From a de cree for complainant, defendants appeal.
    Affirmed.

      Russell G. Ostrander, for complainant.

      Dean & Hooker, for defendants.
   Moore, J.

In 1892, Solon R. Whelpley became a stockholder in the People’s Savings Bank of Lansing, Mich., and as such stockholder drew dividends as they were declared by the bank until it became insolvent, and passed into the hands of the complainant as receiver, in July, 1896. After the bank failed, to pay the depositors, it was found necessary to make assessments against the stockholders. A decree was obtained by the receiver against Mr. Whelpley in April, 1898, for $560. An execution was taken out, and a levy made thereunder upon certain real estate, which it is now claimed is owned by Mr. and Mrs. Whelpley in entirety. No sale of the land was made under the execution levy, but this bill was filed to reach the undivided one-half of the said real estate, and subject it to sale upon said execution levy. From a decree in favor of complainant, the defendants have appealed.

The record shows that in 1854 the land in controversy was sold by the State to one Story, who paid only part of the purchase price. A part-paid certificate was issued to Mr. Story, who, in 1861, sold the land to Mr. Whelpley, and assigned to him the certificate. March 27, 1895, Mr. Whelpley assigned an undivided one-half interest in the certificate to his wife. No other assignment was made by him to her. At the request of Mr. Whelpley, preferred by his attorney, who was the brother of his wife, upon the payment of the balance due upon the certificate, $200, in February, .1897, a patent was issued by the commissioner of the land office to Mr. and Mrs. Whelpley, conveying the interest of the State in the lands. The attorney returned the patent, with a request that the words “his wife” should be added after the. names of the grantees, which was done by the land commissioner.

It is claimed on the part of the defendants that what was done by them was done in good faith, and without any intent to defraud. It is said that in March, 1895, when Mr. Whelpley assigned an undivided one-half interest in the certificate to his wife, he owed no debts, and had the right to convey his property to her. It is also said that he at that time was ill, and expected to die, and, for the purpose of placing the title in such a way that it should be absolute in her in case he died, he made this assignment, after consulting an attorney, supposing it would have that effect. It is also claimed that, when the patent was issued, the $200 that was paid upon the property was furnished by Mrs. Whelpley, and the patent was taken in the way it was for the purpose of accomplishing what was attempted to be accomplished by the assignment made in March, 1895, and that this was not a fraud upon the creditor. It is also claimed that, as Mr. Whelpley has never had the legal title to these lands, the complainant has mistaken his remedy. It is an answer to the last claim to say that, under the express provisions of the statute and the decisions of this court, the undivided interest which Mr. Whelpley had in the land prior to the issuance of the patent could be reached by execution. Section 1332, 1 Comp. Laws 1897; Kercheval v. Wood, 3 Mich. 509; Allen v. Cadwell, 55 Mich. 8 (20 N. W. 692).

It is not necessary for us to express any opinion as to whether, in view of the fact that Mr. Whelpley was a stockholder in a bank, and as such stockholder might become liable to the depositors under certain contingencies, he could, in March, 1895, convey his real estate to his wife in such form that it could not be reached should the contingency occur, for the fact remains that the assignment which he made left an undivided interest in the real estate in himself up to the time when the patent was issued. In April, 1898, a decree was rendered for a liability which accrued as early as July, 1896, against Mr. Whelpley, which it was his duty to pay. Foster v. Row, 120 Mich. 1 (79 N. W. 696). If it was not paid, any property owned by Mr. Whelpley, not exempt from levy and sale, could be reached by levy and sale. At the time the liability accrued, he owned'an undivided one-half interest in this real estate, subject to a debt to the State of $200. According to his testimony, this real estate was worth from $1,800 to $2,000. In addition to that, he and his wife owned in entirety a homestead in the village of Grand Ledge. It may be conceded that Mr. Whelpley and his wife acted in the utmost good faith in bringing about a change in this title so that it could not be reached by this creditor, so as to relieve them of any moral turpitude; but what was done operated as a fraud in law against this claim. There is no claim that when the assignment of March, 1895, was made, Mrs. Whelpley paid anything in consideration therefor. After this decree was obtained, Mr. Whelpley could not, without any consideration passing to him, cause the title to property worth nine or ten hundred dollars, which was then subject to levy and sale, to be so changed that it could not be reached by levy and sale. Such an act is, in effect, a legal fraud, whatever the motive which induces it. Newlove v. Callaghan, 86 Mich. 301 (49 N. W. 214); Michigan Beef & Provision Co. v. Coll, 116 Mich. 261 (74 N. W. 475.)

It is said the $200 paid when the patent issued belonged to Mrs. Whelpley, and that her property cannot be reached to pay Mr. Whelpley’s debt. Complainant seeks to reach only the half of this property which was in Mr. Whelpley when he obtained his decree. As Mrs. Whelpley had an undivided one-half interest in the property, it was her duty to pay one-half the amount due the State in order to obtain a patent. When inquiry was made of her brother as to where the $200 came' from, it was not answered very frankly. Mrs. Whelpley was not herself sworn. When her brother was asked, “Whose money did you pay at that time?” he replied, “I received the money from Mrs. Whelpley.” In reply to a,n inquiry addressed to Mr. Whelpley, he said: “The money — the balance that was paid on the certificate — belonged to my wife. Part of it came from an aunt, and I gave her notes against a brother of hers, which had been accumulating interest.” We do not think any injustice has been done Mrs. Whelpley.

The decree is affirmed.

Montgomery, C. J., Long and Grant, JJ., concurred. Hooker, J., did not sit.


author: Hooker, J.

text:
    DUMPHEY v. AUDITOR GENERAL.
    1. Taxation — Description op Lands — Suppioienoy.
    A description of land in a tax roll as a given subdivision of section 8, T. 6, R. 6, is sufficient, where the roll is entitled in the name of the township, although there are four townships in the State so numbered.
    2. Same — Sale to State — Report op Sale — Suppioienoy.
    A tax sale under the law of 1889 will not be set aside, even in a direct proceeding, on the ground that the treasurer’s report of sale failed to show that the land was offered a second time before being bid off to the State, where it appears that the land was in fact so reoffered.

      Mandamus by Edith Dumphey, as guardian of Azuba Dumphey, against Roscoe D. Dix, auditor general, and Joseph S. Hilton, to compel the former to cancel a tax deed.
    Submitted January 23, 1900.
    Writ denied March 13, 1900.

      Willis Baldwin, for relator.

      Horace M. Oren, Attorney General, for respondent auditor general.

      Randall & Corbin, for respondent Hilton.
   Hooker, J.

Azuba Dumphey owned, and with her husband occupied, the premises in controversy in 1889, when the taxes, including a drain tax, were levied upon it. At the April term, 1892, of the circuit court for the county in which the lands are situate, the petition of the auditor general for a decree against delinquent tax lands was heard; Azuba Dumphey having been personally served with process, and, through a solicitor, having filed objections to the validity of the drain tax. Testimony was taken in open court, and the validity of the drain tax was sustained. In May, 1892, at an offering by the

county treasurer under the law of 1889 (Act No. 195, Pub. Acts 1889), the land was bid in to the State. In May, 1893, it was reoffered, and sold to Cyrus W. Pettit, he receiving a deed from the county treasurer. This was under the provisions of section 111 of the law of 1891 (Act No. 200, Pub.. Acts 1891). Pettit conveyed to Hilton in 1894, and on July 14, 1894, Hilton began ejectment proceedings. A verdict was rendered for the defendant, but the case was reversed, and a judgment rendered for the plaintiff, upon a review of the case by this court. Hilton v. Dumphey, 113 Mich. 241 (71 N. W. 527). Subsequently, in a proceeding to which these respondents were strangers, the probate court appointed Edith Dumphey guardian of Azuba Dumphey, and she thereupon filed a petition in chancery, making respondents parties, and asking, upon account of alleged insanity and incompetency of Azuba Dumphey, that the sale be set aside, and she be permitted to pay the taxes. The circuit court and this court sustained the demurrer interposed by the defendants. Dumphey v. Hilton, 121 Mich. 315 (80 N. W. 1). The proceeding now before us rests upon a petition filed by the guardian, asking a peremptory mandamus to compel the auditor general to cancel the deed made by the county treasurer to Pettit. Three grounds are relied upon: First, that the tax roll did not sufficiently describe the land; second, that the drain tax did not properly appear upon the roll; and, third, that the sale of the land for the delinquent tax of 1889 was not in accordance with section 62 of the tax law of 1889.(Act No. 195, Pub. Acts 1889).

The alleged defect in the description is that the land is described as a given subdivision of section 8, T. 6, R. 6. The fault found with it is that there are four townships in the State numbered 6 and range 6. The roll was for the township of Dundee, which contains but one township 6, range 6. We are of the opinion that the description was sufficient, under the holding in Auditor General v. Sparrow, 116 Mich. 585 (74 N. W. 881).

This land was assessed in 1889. It was offered for sale under a valid decree in May, 1892. The law of 1889 had meantime been supplanted by a new tax law passed in 1891, but section 111 of that act (Act No. 200, Pub. Acts 1891) provided that lands previously returned delinquent should be sold under the act of 1889. Accordingly this-property was offered, and was reported to the auditor general as bid in to the State for want of other bidders. It is claimed that the report of sale did not show that the land was offered a second-time before being bid off to the State, and therefore the sale should be set aside and the deed canceled. Upon the first hearing of this controversy, it was said that, had the petitioner applied seasonably, the court would have set aside the sale, but that, not being-a jurisdictional defect, the sale could not be attacked collaterally. The petitioner has now attacked it directly, and maintains that the auditor general should cancel the deed for this defect. Section 111, Act No. 200, Pub. Acts 1891.

' This report of sale is much more comprehensive than the one passed upon in the case of Jenison v. Conklin, 114 Mich. 9 (71 N. W. 1114), which was said to be a sufficient compliance with the statute. It is contended that we have held to the contrary in our former opinion, where it was said, “ If defendant had applied to the court in that proceeding seasonably, there can be no doubt but that the sale would have been set aside.” We construe this to mean that the court would, upon such an application, accompanied by proof that the land was not properly sold, have set aside the sale, and not that this would have been done without such proof. It was distinctly said that the omission to reoffer, not the want of particularity in the report, was an irregularity merely in making the sale. The case shows, also, that the defendant had-appeared in the proceeding, and should have applied seasonably, .apparently meaning within the eight days prescribed by statute. This record contains affidavits which show that the sale was properly made, though the report failed to show that the land was reoffered. Under these circumstances, the auditor general properly refused to cancel the deed. These views, in connection with the case of Dumphey v. Hilton, 121 Mich. 315 (80 N. W. 1), cover the questions raised.

The writ is denied.

The other Justices concurred.


author: Montgomery, C. J.

text:
    NORTHWESTERN COOPERAGE & LUMBER CO. v. SCOTT.
    1. Taxation — Property Seized on Warrant — Replevin.
    The failure of the township treasurer to make a verified return of uncollected personal taxes, required by section 55 of the tax law of 1893 as a basis for the issuance by the county treasurer of a warrant for their collection, while sufficient to defeat an action at law to recover the tax, will not, of itself, in view of 3 Comp. Laws 1897, § 10651, providing that replevin shall not lie for property taken by virtue of a warrant for the collection of any tax, authorize the maintenance of replevin for property seized under a warrant fair on- its face.
    3. Same — Privies.
    Under section 40 of the tax law of 1893, providing that personal taxes shall be a lien on all personal property of the person assessed from and after the 1st day of December, and shall take precedence of any subsequent sale thereof, except where made in the regular course of trade; and 3 Comp. Laws 1897, § 10651, providing that replevin shall not lie for property taken by virtue of a warrant for the collection of any tax,— one who purchases chattels after the date mentioned cannot maintain replevin therefor against a tax collector who has seized them under a warrant, fair on its face, directed against the vendor.
    Error to Iron; Stone, J.
    Submitted January 12, 1900.
    Decided March 13, 1900.
    Replevin by the Northwestern Cooperage & Lumber Company against Edward Scott. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Fred H. Abbott, for appellant.

      Cook & Pelham, for appellee.
   Montgomery, C. J.

In the year 1898 personal taxes amounting to $291.28 were assessed against the Buckeye Stave Company in the township of Iron River, Iron county. On the 1st of December, 1898, the Buckeye Stave Company was the owner of two horses, and on the 15th of December, 1898, it acquired two more. The horses were sold to the plaintiff by the Buckeye Stave Company in June, 1899. The defendant in August, 1899, seized these four horses by virtue of a tax warrant'issued by the county treasurer, commanding the collection of this tax so assessed against the Buckeye Stave Company. The plaintiff recovered, and defendant brings error.

The circuit judge ruled out the tax warrant, on the admission of defendant’s counsel that no sworn return had been made to the county treasurer as required by section 55 of the tax law of 1893; holding that such a return was jurisdictional. Unquestionably, such a return would be essential in an action by the treasurer or municipality. Township of Port Huron v. Potts, 78 Mich. 437 (44 N. W. 289). But the question here presented is whether replevin lies against the treasurer for property seized by virtue of a warrant fair on its face, where it appears that the property seized is subject to seizure on such process if valid. We think that this question must be answered in the negative. The statute (section 10651, 3 Comp. Laws 1897) reads, “No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine in pursuance of any statute of this State.” It is true, it has been held that this statute does not prohibit replevin where the alleged tax could not by any legal possibility have been levied (Le Boy v. Railway Co., 18 Mich. 233), or when the property seized is that of a stranger to the tax ( Travers v. Inslee, 19 Mich. 98; Tousey v. Post, 91 Mich. 631 [52 N. W. 57]). In either of these cases the officer, who is bound to know the law, knows the limits of the authority conferred by the warrant. But in a case where a warrant on its face is valid, and the party against whom the officer proceeds is the one against whom the warrant is directed, or his privy, the rule is different. To permit replevin in such a case is to render the statute nugatory. Hill v. Wright, 49 Mich. 229 (13 N. W. 528); Hood v. Judkins, 61 Mich. 575 (28 N. W. 689); Hill v. Graham, 72 Mich. 659 (40 N. W. 779). See, also, Curtiss v. Witt, 110 Mich. 131 (67 N. W. 1106); West Michigan Lumber Co. v. Dean, 73 Mich. 463 (41 N. W. 504). The language of the court in Hood v. Judkins, supra, is applicable here:

“It is also objected that the defendant was permitted to introduce in evidence the warrant of the county treasurer, without a showing that a return had been made by the township treasurer, stating the taxes remaining unpaid upon personal property, as required by section 44 of the act. There is no foundation for this objection. The property in question was held, at the time it was taken upon the writ of replevin, by virtue of the tax roll and the warrant thereto annexed. There was no claim upon the part of plaintiffs that this tax had been paid by them, or by any one for them, and therefore it could not concern them in this case whether any such statement had been made or not.” '

By the terms of section 40 of the tax law of 1893, a lien to the amount of the tax is created upon the personal property of the person assessed, from and after the 1st day of December. The plaintiff was therefore a privy to the Buckeye Stave Company.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    HIGHLAND v. SCHULTE.
    Boards op Health — Small-Pox—Double House —Quarantine. 2 Comp. Laws 1897, § 4459, provides that the provisions of the general statute relating to the public health shall apply to all cities and villages, except where their charters contain provisions inconsistent therewith. Sections 4424,4425,4427, and 4460 provide for the investigation of cases of contagious dis-ease by local boards of health, and for the isolation of infected persons. Act No. 408, Local Acts 1898, § 11, authorizes the board of health of the city of Detroit, in cases of epidemic disease, to take such measures, though not otherwise authorized, as they may in good faith deem the public health to demand. Held, that the latter section fell within the exception of the general law, and hence the board of health of the city of Detroit was authorized to provide, by general regulation, that, when small-pox should break out in one half of a double frame house, the whole of the house should be quarantined.
    Error to Wayne; Lillibridge, J.
    Submitted February 6, 1900.
    Decided March 13, 1900.
    Case by Peter H. Highland against Joseph H. Schulte and others, constituting the Detroit board of health, for false imprisonment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Bacon & Yerkes, for appellant.

      C. D. Joslyn, for appellees.
   Hooker, J.

In June, 1894, the plaintiff resided in the east half of a double frame dwelling in Detroit. On June 24th a case of small-pox was found in the family then residing in the west half of said building, said disease being epidemic in the city at that time. The case was reported to the health officer, who, acting under a regulation of the board, immediately directed that the entire building should be quarantined, and the plaintiff' and his entire family were confined in their house for a month. There was no passage from one tenement to the other, and’ the back yards were separated by a high board fence, and there was nothing to show that the plaintiff or any one in his house had been exposed to the disease. The order was made under a general regulation adopted by the board of health, providing that, in all cases where small-pox broke out in one half of a double frame house, the entire house should be quarantined. Plaintiff claims that he lost his Job, at which he was earning $50 a month, and that he was out of work for 10 months, causing a loss of $500. It was for this he brought this action against the defendants, who constituted the board of health. The court directed a verdict for the defendants, and the plaintiff has appealed.

It is said that the quarantine of the plaintiff was not made as the result of an investigation by the board in regard to the circumstances or conditions of this double house, but was made under a general regulation adopted by the board of health, providing that, in all cases where small-pox should break out in one half of a double frame house, both halves of the house should be quarantined. It is claimed that such rule was beyond their authority.

Section 11, Act No. 403, Local Acts 1893, provides:

“Seo. 11. In case of pestilence or epidemic disease, or of danger from anticipated or impending pestilence or epidemic disease, or in case the sanitary condition of the city should be of such a character as to warrant it, it shall be the duty of the board of health to take such measures and to make such appointments, and to do and order and cause to be done such acts, for the preservation of the public health, though not herein or elsewhere or otherwise authorized, as they may in good faith deem the public safety and health to demand.”

Counsel for the plaintiff urge that this provision, which they concede is broad enough, if valid, to warrant the action taken, should be construed with the general law. Section 4459, 2 Comp. Laws 1897, provides:

44 * * * The provisions of this chapter, and the amendments thereto, shall, as far as applicable, apply to all cities and villages in this State, and all duties which are, by the provisions of this chapter, to be performed by the board of health of townships, or by the officers and inhabitants thereof, shall in like manner be performed by the board of health and the officers and inhabitants of such cities and villages, with a like penalty for the nonperformance of such duties, excepting in cases where the charters of such cities and villages contain provisions inconsistent herewith.”

The following sections are cited as pointing out the duties and conferring authority on boards of health in general, and it is claimed that they limit the broad power which would otherwise be conferred by section 11:

“ Sec. 4424. When any person coming from abroad, or residing in any township within this State, shall be infected, or shall lately before have been infected, with the small-pox, or other sickness dangerous to the public health, the board of health of the township where such person may be shall make effectual provision, in the manner in which they shall judge best for the safety of the inhabitants, by removing such sick or infected person to a separate house, if it can be done without danger to his health, and by providing nurses and other assistance and necessaries,” etc.
“Sec. 4425. If any such infected person cannot be removed without danger to his health, the board of health shall make provision for him, as directed in the preceding section, in the house in which he may be, and in such case they may cause the persons in the neighborhood to be removed, and may take such other measures as they may deem necessary for the safety of the inhabitants.”
‘4 Sec. 4427. Any two justices of the peace may, if need be, make out a warrant under their hands, directed to the sheriff or any constable of the county, requiring him, under the direction of the board of health, to remove any person infected with contagious sickness, or to take possession of convenient houses and lodgings, and to provide nurses, attendants, and other necessaries, for the accommodation, safety, and relief of the sick.”
“Sec. 4460. That whenever the health officer of any ' township, city, or village in this State shall receive reliable notice, or shall otherwise have good reason to believe, that there is, within the township, city, or village of which he is the health officer, a case of small-pox, diphtheria, scarlet fever, or other communicable disease dangerous to the public health, it shall be the duty of said health officer, unless he is or shall have been instructed by the board of health of which he is an executive officer to do otherwise, immediately to investigate the subject, and, in behalf of the board of health of which he is an executive officer, to order the prompt and thorough isolation of those sick or infected with such disease, so long as there is danger of their communicating the disease to other persons; to order the prompt vaccination or isolation of persons who have been exposed to small-pox;” etc.

It needs no lengthy discussion to show that the public welfare requires more prompt and stringent measures to prevent the spread of an infectious disease in large cities than are required in rural districts or villages. Section 11 recognizes this, and was evidently designed to give larger powers to the board of health in Detroit than to other boards in the State. We think it was proper for them to make the rule complained of, and delegate to the health officer the examination of conditions and enforcement of the regulation, as, from the nature of things, the board could not act collectively on each case that might arise, with the necessary promptness and efficiency. Section 11 falls clearly within the exception of section 4459. We think that it does not appear that the provisions of the law applicable to the case were not complied with.

The judgment of the circuit court is affirmed.

The other Justices concurred.


author: Long, J.

text:
    GRASHAW v. WILSON.
    1. Action on Appeal Bond — Averment of Breach — Sufficiency.
    A judgment for restitution of leased premises was rendered against W. and F. for nonpayment of rent, for which both were liable under their lease. W. alone appealed, and gave a bond conditioned that he would pay all rent due and to become due if the plaintiff should recover. On appeal the plaintiff obtained a judgment of restitution, but no part of the rent was paid, and he brought an action on the bond against W. and his sureties. The declaration averred that a large amount of rent was due from W. and F., and that they refused to pay it. Held, that this averment was a sufficient assignment of the breach of the bond to enable plaintiff to recover.
    2. Same — Evidence—Files of Original Suit.
    In an action upon a bond given on appeal from a judgment for the restitution of leased premises, conditioned for the payment of rent in case plaintiff should recover, it was proper to admit in evidence the files and records in the original suit, though one of the defendants therein did not join in the appeal.
    3. Lease — Writing—Variation by Parol.
    The terms of a written lease cannot be varied by proof of a prior or contemporaneous verbal agreement.
    4. Summary Proceedings — Judgment of Restitution — Delay in Taking Out Writ.
    Where plaintiff in summary proceedings waited 14 days after recovering judgment, upon defendant’s appeal from a commissioner’s judgment, without taking out a writ of restitution, at the expiration of which time defendant voluntarily surrendered the premises, there was no such delay as to deprive plaintiff of his action upon the appeal bond, conditioned for the payment of accrued rent in case he should “ obtain restitution * * * upon the said appeal.”
    Error to Baraga; Haire, J., presiding.
    Submitted February 6, 1900.
    Decided March 13, 1900.

      Assumpsit by Thomas Grashaw against Robert Wilson, principal, and John Falk and others, sureties, upon an appeal bond. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      Button & Culver, for appellants.

      JS. J. Mapes, for appellee.
   Long, J.

In April, 1896, the plaintiff executed a lease in writing to Robert Wilson and Herman Falk of certain premises in said lease described for hotel and saloon purposes, at a rental of $100 per month. The lease does not state the day of the month when it was executed. The lessees entered into possession, and in February, 1897, the rent being in arrears, the plaintiff commenced proceedings before a circuit court commissioner against both lessees for restitution of the premises. March 2, 1897, judgment of restitution was rendered by the commissioner. Robert Wilson alone appealed from this judgment. He gave a bond on appeal, the penalty of which is $2,400. It recited the rendition of the judgment by the commissioner in favor of Thomas Grashaw for the restitution of the premises. The conditions of the bond are as follows:

‘ ‘ That if the said Thomas Grashaw shall obtain restitution of the premises described in the aforesaid complaint in the said suit upon the said appeal, if the said Robert Wilson shall forthwith pay all the rent due or to become due to the said plaintiff for the said premises up to the time when the said plaintiff shall obtain possession thereof, then this bond shall be null and void.”

This bond was signed by John Falk, Matt Menzghor, and Peter Girard, the defendants here, as sureties; and they each justified their responsibility on oath before the commissioner. The cause was tried in the circuit court, and a judgment of restitution rendered in form against both lessees. No process for restitution of the premises was issued, but after the expiration of the term the lessees voluntarily moved out. This action is brought upon the bond given before the commissioner.

The cause was tried before a jury. The defendants, by their counsel, objected to the introduction of any testimony under the declaration, for the reason that the declaration describes the bond as one given in a cause brought by the plaintiff against Robert Wilson alone, conditioned that said Wilson should forthwith pay all rent due or to become due up to the time the plaintiff should obtain possession of the premises, while for a breach of said bond it alleged that rent was due from Wilson and Falk as co-partners, and the breach consisted in their not having paid rent. This objection was overruled by the court, and exception taken. This ruling constitutes the first assignment of error. It is contended that the assignment of a breach of a bond must correspond to the condition thereof, or no cause of action is stated.

It appears that while Wilson and Falk signed the lease, and suit befoi’e the commissioner was commenced against both, and judgment rendered against both, yet Wilson alone appealed and gave the bond. The suit on the bond is against Wilson and his sureties. The declaration recites the giving of the bond and its conditions, the trial in the circuit court of the cause in which it was given, the rendition of judgment against Wilson, and that the judgment still remains of force and effect. For breach of the condition of the bond it is averred that “a large amount of rent was due from said Wilson and one Herman Falk, as partners, for the rent of the premises described in said complaint, to secure the payment of which said writing obligatory was executed; and avers that neither the said Robert Wilson nor said Falk has at any time, although often requested so to do, paid the amount of rent due to said Thomas Grashaw,” etc.

Wilson had the right to appeal independent of Falk. The judgment before the commissioner was against the two, and Wilson appealed. So far as the proceedings in the circuit court were concerned, Falk stood convicted of unlawfully withholding the premises. Both stood convicted of wrongfully failing to pay the rent in accordance with the terms of the lease. Wilson alone took the appeal and gave the bond, and it was the condition in the bond that, if the plaintiff obtained restitution, the sureties were to pay the rent. It did not matter from whom the rent was due, whether from Wilson alone or from Wilson and Falk. Under the lease the rent was due from Wilson and Falk. Under the bond the rent was to be paid “if the plaintiff obtained restitution.” We think the assignment of the breach corresponded to the condition of the bond with sufficient certainty to enable the plaintiff to recover for' the breach. The conditions of the bond are set out substantially in the declaration, and the defendants were fully advised of such conditions, and what the claimed breach was. They were not misled by the pleadings, and we think the objection too technical to warrant a reversal of the case.

The second assignment of error is based upon the ruling of the court in admitting in evidence the files and records in the-case of Grashaw against Wilson and Falk. We think the court was not in error in permitting them to be introduced in evidence.

The defendants gave notice under the plea of the general issue that they would show on the trial that, at the time of making the lease, it was orally agreed, as a part of the consideration of said lease moving from plaintiff to defendants Wilson and Falk, that said plaintiff would repair the building mentioned, in the lease, build new floors over the saloon, and renovate, clean out, and repair the water-closet upon the premises; that said plaintiff failed to fulfill his agreement in that respect, and that, in consequence thereof, the said premises, during all the period aforesaid, were untenantable, dangerous to health, and not fit for the purposes for which the same were leased; that, at the time of giving said lease, the water-closet upon said premises was in a foul condition, deleterious to health, and a public nuisance, and rendered the said premises unfit for the purposes for which they were leased; that, during the month of June subsequent to the giving of said lease, the said defendants Wilson and Falk threatened to leave said premises because of the condition thereof, and threatened to refuse to pay any more rent, and that then and there the said plaintiff, in consideration that said defendants Wilson and Falk would remain in said premises, and pay the rent in said lease stipulated, agreed to repair said building and renovate said water-closet; that said defendants Wilson and Falk, relying upon said promises, then and there agreed to remain in said premises, and pay the rent in said lease stipulated, and did then and there pay plaintiff a large sum of money, which they would not have paid were it not for the promises of plaintiff aforesaid; that the plaintiff neglected and failed to perform the conditions of his agreement as aforesaid; that, defendants would recoup their damages. On the trial the defendants sought to show the facts set out in this notice. This was objected to, and the objection sustained. The court was not in error in refusing to-admit the testimony offered on this branch of the case. The offer of evidence showed that the lessees knew the condition of the premises at the time the lease was signed, and that the lessor agreed to repair. The terms of the written lease could not be varied by proof of a prior or contemporaneous verbal agreement. Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665 ), and cases there-cited.

The court was asked to charge that the plaintiff, having failed to prove that restitution of the premises was obtained under and by virtue of said proceedings brought for the restitution thereof, could, therefore, not recover. This was refused. The judgment for restitution was rendered April 16, 1897. Plaintiff recovered possession April 30th. No writ of restitution was issued, but on that day the defendants voluntarily surrendered possession. There was no unreasonable delay, and we think the court was not in error in refusing this charge. Holcomb v. Bonnell, 32 Mich. 6; Estey Manfg. Co. v. Runnels, 67 Mich. 310 (34 N. W. 581).

We find no error in the case, and the judgment must be affirmed.

The other Justices concurred.


text:
      In re WOODCOCK.
    Indigent Insane — Support by County — Legal Settlement— How Effected.
    Act No. 178, Pub. Acts 1897, §1(2 Comp. Laws 1897, § 4556), which provides that no person who has not maintained himself for one year after >his entry into any county shall be admitted to any of the State asylums as a charge upon such county, except for temporary care pending his return to the county where he was last continuously settled for a year, is to be construed as an expression of the legislative intention to fix at one year the time required for an indigent insane person to gain a settlement in any county; and a person, therefore, who, after living in a county for less than a year, became insan.e and indigent, was properly committed as a charge upon the county from which he had removed, though the proceedings were taken under the general statute (1 Comp. Laws 1897,' § 1915), which fails to specify the time required to effect a legal settlement.
    Error to Kalamazoo; Buck, J.
    Submitted February 6, 1900.
    Decided March 13, 1900.
    In the matter of. Alice Woodcock, an indigent insane person. From a judgment of the Kalamazoo circuit court finding that St. Joseph county was liable for-the support of said Alice Woodcock, the superintendents of the poor, of St. Joseph county bring error.
    Affirmed.

      H. P. Stewart, for appellants.

      Sheridan E. Master, for appellees.
   Long, J.

The superintendents of the poor of Kalamazoo county made application to the probate court of that county to have Alice Woodcock adjudged an indigent insane person, and that she'be' admitted into the insane asylum at Kalamazoo, and there supported at the expense of St. Joseph county. A hearing was had before that court, and the order made as prayed. The case was removed by the superintendents of the poor of St. Joseph county to the circuit court for Kalamazoo county by writ of certiorari, and there affirmed, and now comes into this court by writ of error.

The facts were agreed upon as follows:

“1. That the above-named Alice Woodcock is insane, and has been insane since or about the 1st day of May, 1898.
‘ ‘ 2. That the above-named Alice Woodcock is a widow; that she was a resident of Mendon township, St. Joseph county, for several years prior to, and on or about, the 1st day of October, 1897, when she removed from St. Joseph county into Kalamazoo county, and became a resident of Kalamazoo county, and resided there continuously up to the- time of filing the petition in this cause in said court. At the time she moved into Kalamazoo county, she intended to make Kalamazoo county her place of residence, and wholly to abandon her residence in St. Joseph county.
“3. That, at the time she moved into Kalamazoo county, she had been a widow about two years; her husband in his lifetime being a farmer, and owning a farm in Mendon township, St. Joseph county. She had then living three children, whose ages are 8, 11, and 15 years, respectively, all of whom are now living. Her husband was in comfortable circumstances at the time of his death, and neither he nor the said Alice Woodcock was in indigent circumstances at the time of his death, nor at any time previous thereto. The estate of her husband was duly administered upon in the probate court of St. Joseph county, and the said Alice Woodcock received her portion of said estate as widow, and at the time she changed her residence from St. Joseph to Kalamazoo county, as above stated, she was not in indigent circumstances, and did not become so until several months after her residence in Kalamazoo county. The said Alice Woodcock was in indigent circumstances at the time of filing the petition in this cause.
‘ ‘ 4. That the application to the probate court of Kalamazoo county to have the said Alice Woodcock adjudged to be an indigent insane person was filed in the probate court of Kalamazoo county the 11th day of June, A. D. 1898.”

Three errors are assigned in the affidavit for certiorari, and these cover all the claims now made here. They are that the court erred:

“1. In its finding, as a matter of law, that said Alice Woodcock had not acquired a legal settlement in the said county of Kalamazoo.
“2. In its finding, as a matter of law, that said Alice Woodcock was legally settled and a resident of Mendon township, St. Joseph county.
“3. In directing that said Alice Woodcock be supported in the insane asylum at Kalamazoo at the expense of St. Joseph county until restored to soundness of mind, if effected within two years, or until otherwise ordered.”

Section 1913, 1 Comp. Laws 1897, provides for proceedings before the probate court on applications to inquire into the insanity of persons so charged. That court has power under the section to determine that question; but before making an order committing such insane person, as a private patient, to any of the public asylums supported by the State, he must require the petitioner or friends of the insane person to enter into bond for the support of such insane person. But, by section 1915, when a person in indigent circumstances, and not a pauper, is foúnd insane by the court, he may make an order admitting such person to the asylum, to be there supported by the county to which he belongs until he be restored to soundness of mind, if effected within two years, or until otherwise ordered, or at the expense of the State, if the judge of probate shall find that such insane person has no legal settlement in any county of this State, or he is unable to find from the evidence where that settlement is, provided the said insane person is a citizen of this State, etc.

The only question, therefore, is whether the court properly found that Alice Woodcock had a legal settlement within the county of St. Joseph. The statute is not very explicit as to how the legal settlement of an indigent insane person may be ascertained. The settlement referred to in section 1918 is the legal settlement which the person has acquired. Just how the question is to be determined is not set out in that section. How long a residence is required, to give a legal settlement within a county by an insane person, is not specified. In a subsequent statute, however, the legislature provides a method of ascertaining the question in certain cases. By section 1, Act No. 178, Pub. Acts 1897 (being section 4556, 2 Comp. Laws 1897), it is provided:

“Any person who is old, sick, infirm, blind, crippled, idiotic, epileptic, insane, or otherwise incompetent to earn a livelihood at the time of such person’s entry into any county, city, village, or township in this State, or any person, being otherwise competent, who has not maintained himself or herself for one year after such entry, shall not be entitled to admission into any of the State asylums * * * at the expense of the State or the county, * * * excepting such temporary care or relief as such person may require pending the return of such person back to the county where such person was last continuously settled for one year.”

It is evident from this provision of the statute that the legislature regarded it necessary for such person to maintain himself for one year in a county before he could gain a legal settlement therein.

In Wright v. Genesee Circuit Judge, 117 Mich. 244 (75 N. W. 465), the question was how long a residence by complainant was required, under section 6228, 2 How. Stat., to give the court jurisdiction to entertain a bill for divorce. That section fixes no definite time, and it was held that if the complainant, being a resident of the State, came into the county with intent to make it her bona fide residence, the court had jurisdiction under a bill immediately filed by her. It was there said:

“ The statute fixes no time that one must occupy a place or home in order to become a resident of a certain locality, when not coming from without the State, except in certain cases, such as acquiring a residence for the purpose of exercising the privileges of an elector, for the purposes of taxation, for gaining a settlement as a pauper,” etc. '

In cases of indigent insane persons, the legislature has determined that a legal settlement may be had in a county when a person, being otherwise competent, has maintained himself for one year after such entry. While this statute is independent of the statute under which the court acted in the present case, yet we regard it as an expression of the legislative intention to fix the period of time and the circumstances under which a legal settlement may be acquired by an indigent insane person within any county. The facts show that this person had not acquired ‘a; legal settlement within Kalamazoo county at the time of the adjudication, but that she had a settlement within the county of St. Joseph. The court very properly so held:

The proceedings are affirmed, with costs of -all the courts against St. Joseph county.

The other Justices concurred.


text:
    MILLER v. MICHIGAN CENTRAL RAILROAD CO.
    1. Appeal and Error — Question Not Open.
    Whether the trial court erred in submitting a case to the jury upon one only of several counts in the declaration cannot be considered where defendant alone appeals.
    2. Railroad Companies — Negligent Loading oe Cars — Inspection — Injury to Section Man — Fellow-Servants.
    The train crew of a freight train in loading cars, and a station agent in inspecting the cars to see that they are properly loaded, are fellow-servants of the section men along the line of the road, and, therefore, one of the latter, who is struck by timbers projecting from a car negligently loaded and inspected, cannot recover for his injuries against the company, where it has fulfilled its duty to choose competent servants, and to provide them with a safe place in which to work, and with suitable machinery and appliances.
    Error to Oakland; Smith, J.
    Submitted February 7, 1900.
    Decided March 13, 1900.
    Case by Henry Miller ¿gainst the Michigan Central Railroad Company for personal-injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John H. Patterson (Henry Russel, of counsel), for appellant.

      Joseph H. Holman and A. & S. H. Perry, for appellee.
   Moore, J.

The defendant brings error in this case to review the proceedings of the court below, in which the plaintiff was permitted to recover for personal injuries alleged to have been caused by the negligence of defendant. The plaintiff was an employé of defendant, and was engaged at work in the line of his employment at the time of the accident. The conductor of a train which stops at all the stations along the line to pick up and unload all kinds of freight, on reaching a certain station, was informed by the station agent that two pieces of timber, about 8 inches square and 25 or 30 feet long, were to be taken to another station, a few miles away. The conductor and two brakemen of the train crew placed the timbers on a flat car in the train, but failed to comply with the rules prescribed by defendant, with which they were familiar, for the proper loading of cars, in that they did not use a sufficient number of stakes to secure the timbers properly on the car. The agent also on this occasion disregarded the same rules, and neglected to inspect the loading to see that it was properly done. The train having resumed its journey, the timber, on account of the motion of the car, shifted sideways to such an extent that at a point some three or four miles farther on, where a gang of section hands of defendant were at work surfacing the track, one end of one or both of the pieces of timber projected beyond the side of the car. It was in the forenoon, and, as the train approached, the section men saw it, and moved aside to let it pass; but the plaintiff, the foreman of the gang, was not far enough away to escape the projecting timber, and was struck and injured by it. The train crew, the agent, and the plaintiff were competent and experienced men in their respective work, and at the time of the accident were all engaged in the ordinary course of their employment in the common service of the defendant. It is claimed the court shoúld have directed a verdict for defendant, because the negligence, if any was shown, was that of fellow workmen.

The declaration contained seven counts. The court allowed the case to go to the jury upon the third .count only. The plaintiff did not appeal, and we cannot consider whether or not the court erred in declining to let the case go to the jury under any of the other counts. See Stevenson v. Woltman, 81 Mich. 200 (45 N. W. 825), and the many cases there cited.

The trial judge was in doubt as to whether he ought to have charged the jury that the conductor and the station agent, who were responsible for the loading of the timber, were fellow-servants with the plaintiff or not. He expressed himself as of the opinion that the cases decided in this court were not harmonious, and that under the later cases he ought to allow the case to go to the jury. He doubtless referred to the cases of Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 592); Anderson v. Railroad Co., 107 Mich. 591 (65 N. W. 585); McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597). A reference to these cases will show that each of them announced the doctrine that it was the duty of the master to provide a reasonably safe place to work, and machinery, tools, or appliances in a reasonably safe condition with which to work, and that this was a duty which could not be delegated by the master, so as to escape liability. If the master has provided a safe place to work, or tools, machinery, and appliances reasonably safe with which to work, these cases do not indicate that the negligent use of these things by a fellow employe would make the master liable. These cases, as applied to the testimony in the case at bar, restricted as it was by the court to the third count in the declaration, did not justify a submission of the case to the jury upon the theory that the station agent and conductor were not fellow-servants. In that respect the case is controlled by Dewey v. Railway Co., 97 Mich. 329 (52 N. W. 942, 56 N. W. 756, 16 L. R. A. 342, 22 L. R. A. 292, 37 Am. St. Rep. 348); Jarman v. Railway Co., 98 Mich. 135 (57 N. W. 32); Loranger v. Railway Co., 104 Mich. 80 (62 N. W. 137); and Frazee v. Stott, 120 Mich. 624 (79 N. W. 896). The last-named cases all relate to the negligent use by fellow-servants of cars, machinery, or appliances which were reasonably safe for the purposes for which they were intended. Under such circumstances it is held that the negligence of the fellow-servant does not make the master liable. If the distinction we have pointed out is borne in mind, we think it will be found the decisions are not inharmonious.

Judgment is reversed, and a new trial ordered.

The .other Justices concurred.


author: Per Curiam.

text:
    TOMPKINS v. BOWEN.
    Writ of Error — When Lies — Interlocutory Orders.
    An order overruling a demurrer to a declaration is not reviewable on writ of error, the province of which is to bring up for review final judgments only.
    Error to Genesee; Wisner, J.
    Submitted February-20, 1900.
    Decided March 13, 1900.
    Case by William H. Tompkins against Bruce S. Bowen and John B. Leitch, saloon-keepers, and George A. Cotharin and Charles B. Flanders, sureties on their liquor bond, to recover damages and the statutory penalty for selling intoxicating liquor to plaintiff’s minor daughter. From an order overruling a demurrer to the declaration, defendants bring error.
    Dismissed.

      Everett L. Bray, for appellants.

      Williams & Wilson, for, appellee.
   Per Curiam.

This is a demurrer to a declaration. The court below made an order overruling the demurrer, and gave the defendants until the first day of. the next term to file and serve plea. No further order was made in the court below, and no final judgment entered. The defendants bring the case into this court by writ of error. The province of a writ of error is to bring up for review final judgments or determinations, and it is not employed to bring up interlocutory decisions made pending tbe litigation. Brady v. Railroad Co., 73 Mich. 457 (41 N. W. 503), and cases there cited.

The writ of error must be dismissed, with costs. The merits are not open for discussion.


author: Grant, J.

text:
    COOK v. HALL.
    [Two Cases.]
    1. Tax Sales — Petition to Vacate — Laches.
    A petition to set aside a tax sale, though based on jurisdictional . defects, will not be entertained where filed more than two years after petitioner learned of the sale, and he fails to excuse the delay, and the rights of third persons have intervened.
    2. Same — Rights of Third Persons.
    The rights of a purchaser of timber products from a tax-title claimant cannot be litigated on a petition to set aside the tax sale.
    Appeals from Alger; • Steere, J.
    Submitted January 30, 1900.
    Decided March 13, 1900.
    Petitions by Chauncey P. Cook against Sidney S. Hall and others to set aside certain tax sales. Prom decrees dismissing the petitions, petitioner appeals.
    Affirmed.
    These two cases involve the validity of the tax deeds issued by the auditor general for the sale of lands delinquent for 1893 and 1894. The same lands are involved in both cases. The sale for the delinquent taxes for 1893 took place in December, 1895; and for 1894, in December, 1896. Defendant Gubtil became the purchaser from the State of a portion of the lands on January 15, 1897; Hall and Leighton became purchasers of other parcels in Decernber, 1896; and defendant Brown purchased one 40 at the county treasurer’s sale December 7, 1896.
    The petitioner resides at Hillsdale. He made no attempt to pay his taxes when due, or to appear in the proceedings instituted by the auditor general to foreclose the tax liens. He knew as early as January, 1897, of the purchase by the defendants Gubtil, Hall, and Leighton, and tried to negotiate with them for the repurchase, and sent his attorney to Alger county for that purpose. Even then he took no steps to have the tax deeds set aside, or to otherwise protect his rights. He rested until 1899, when he filed the petitions in these cases. When he signed and swore to them does not appear, as neither the petition nor the jurat is dated. His notice to the defendants that the petition would be brought on for hearing on the 23d day of May, 1899, was dated March 29, 1899. The petition is entitled in the original proceedings; sets forth the petition filed by the auditor general; the proceedings and sale thereunder; reasons why the sale should be held void; the cutting of the timber from the lands by Gubtil, who purchased the title of Hall, Leighton, and Brown; the sale thereof to defendant the Manistique Lumbering Company; the cutting and sawing of the same by the defendant the Grand Marais Sawmill Company; that the lumber cut therefrom is now piled upon the docks of said company, awaiting shipment; the sale by the Manistique Lumbering Company to the defendant the Edward Hines Lumber Company; that some timber still remains upon the land; that other logs have been cut, and are banked along the shores of Lake Superior, ready for towing at the opening of navigation; and that in November, 1897, petitioner sent the auditor general a draft for $250 in payment of the taxes for the year 1894; that said draft was paid and charged to his account; and that in May or Juné, 1898, the auditor general returned a check of the state treasurer to him for said amount, stating that the land was not subject to redemption. The petition then asked:

      “(1) That the petition may be treated, and have the same effect, as a bill of review.

      “(%) That the decree entered in the auditor general’s proceedings for the sale of the lands for taxes may be set aside and vacated.
    “(3) That the sale of the lands to the defendants be set aside, and the deeds issued be ordered to be delivered up and canceled, and, in default thereof, that a decree may be made on this petition that shall operate as a reconveyance of the property to the petitioner.
    “(4) For the writ of injunction.
    “(5) That the logs, timber, ties, and other forest products taken from the lands by defendant Gubtil, and sold by him to the Manistique Lumbering Company, be decreed to be the property of the petitioner.
    “(6) That a receiver be appointed to take charge of these forest products.
    “(7) That the petitioner maybe given costs, and also the privilege of filing a bill of review if he shall be so advised, or if it is deemed necessary by the court.”
    The infirmities claimed in the decree and sale are as follows :
    “ (1) That said decree was prematurely entered, and the parties interested herein were thereby deprived of substantial rights, in violation of the statute in such case made and provided.
    ‘ ‘ (2) That said court did not continue in session for five days after the day fixed for hearing objections to said petition of the auditor general, as required by law, and no one interested was able to appear and make objection to said taxes within five days after the date so fixed for hearing objections to said petition, but was thereby prevented from so appearing and making objections.
    ‘ ‘ (3) That, at the time said petition for the sale of lands for the taxes of the year 1894 was prepared and filed by the auditor general herein, the said hereinbefore-described lands had been bid in and sold to the State, and were held by the State under such bid, for the taxes of the year 1893, and 'that the said hereinbefore-described lands were included in said petition while so held by the State for the taxes delinquent for the year 1893.
    “ (4) That when said lands were sold to the said William Leighton, Sidney S. Hall, Charles R. Brown, and Benjamin W. Gubtil, they were disposed of in one sale and as one purchase, and included the taxes delinquent for both the years 1893 and 1894; and the defects affecting either year or any one tax extended to and vitiated the whole sale and purchase.
    “ (5) That when said lands were purchased by William Leighton, Sidney S. Hall, Charles R. Brown, and Benjamin W. Grubtil from the State as aforesaid, said William Leighton, Sidney S. Hall, Charles R. Brown, and Benjamin W. Grubtil did not pay and discharge all taxes which were at the date of said purchase a lien and charge upon the same, as required by law, and that therefore said sale has -never been perfected.
    “(6) That there was no proper proof or evidence before the court upon which to base such decree.
    “(7) That at the time said decree herein was made, filed, and entered, the different amounts had not been, and were 'not, entered by the clerk of said court and county in said tax record as the amounts decreed against said lands for delinquent taxes herein, but the same were subsequently ' entered after said decree had been made.
    “(8) That said proceedings whereby it is sought and attempted to take said hereinbefore-described lands for the taxes delinquent for the years 1893 and 1894 are contrary to and in violation of the Constitution of the State of Michigan and the Constitution of the United States,— particularly of the fourteenth amendment to the Constitution of the United States, — in this: That said proceedings result in an attempt to deprive this petitioner of his property without due process of law.
    “(9) That said taxes for the year 1894 have been fully paid and discharged by your petitioner.”
    The court refused to appoint a receiver, but granted a preliminary injunction. The notice given by petitioner to defendants stated that the petition “ will be founded upon the pleadings and proceedings herein, now on file in said court, together with the records of said court herein, and the petition of Chauncey F. Cook, the petitioner, filed in said matter, with a true copy of which you are hereby served.” No further pleadings appear in the case, except that defendant Charles R. Brown filed a disclaimer, but it appears that this was not done until after the case was heard and disposed of. It therefore cannot be considered as a part of the record.

      The record shows that respondents Gubtil, Hall, and Leighton appeared generally through their solicitors, and that the Manistique Lumbering Company, the Marais Lumber Company, and the Edward Hines Lumber Company appeared specially through their solicitors. These defendants objected to the jurisdiction of the court to hear and dispose of the matter. The court took the motion under advisement, but did not dispose of it until the entry of the final decree. The objections to this jurisdiction are thus stated:
    “(1) That no review of the proceedings, either for the sale of the 1893 or 1894 taxes, could be had by petition, for the reason that the decrees upon both of said proceedings had been enrolled, and the sales made thereon had-been confirmed, more than two years prior to the time of the filing of said petitions.
    “(2) That the time given by the statute within which petitioner had a right to move the court to set aside the decrees had long since lapsed, and that the petitioner was barred from such relief by petition.
    “(3) That the petitioner, by his petition, sought to litigate conflicting titles between third parties and those not parties to the record in the original proceeding by this petition, and that no such matters could thus be litigated, and no decree made thereon.
    “(4) That this proceeding was entitled in the original proceeding of the auditor general for the sale of taxes upon certain lands for the years 1893 and 1894, which was a special statutory proceeding for the purpose of foreclosing the State’s lien, and that in such proceeding the conflicting rights of parties to personal property could not be litigated or determined.
    “(5) That the-petitioner’s right to open the original tax proceedings is barred by statute.
    “(6) That, if the proceedings had been taken within the time allowed by statute, no questions could have been considered by the court on a petition to open decree, except (a) that the lands affected were not liable to taxation for the year for which the same were sold; or (b) that the taxes had been paid thereon; or (c) that the court, in taking the proceedings, had acted without jurisdiction.
    “(7) That the petitioner’s proceeding was multifarious, both as to parties and subject-matter.”

      At the hearing, counsel for respondents asked that petitioner be compelled to determine whether he was proceeding under his petition as a bill of review, or a petition therefor, or as a petition in the original proceedings by the auditor general for sale. This was declined, and the court also held this motion in abeyance. The petitioner first took up the case of the sale for 1894. Some testimony was introduced by petitioner under objection and exception. During that hearing certain stipulations were entered into in open court, that certain testimony taken upon that case should also be considered in the case of the sale for 1893, — subject, however, to the same objections that were made to the introduction of any testimony. The decrees were duly enrolled, and the sales confirmed. The court found that the sale of the lands for the taxes of 1893 was invalid, and the sale for the taxes of 1894 was valid, and thereupon entered decrees dismissing both petitions.

      John A. McKay (Dan H. Ball and Thomas E. Bark-worth, of counsel), for petitioner.

      George W. Davis (Humphrey & Grant, of counsel), for respondents Hall, Leighton, and Gubtil.

      De Vere Hall, for respondents Manistique Lumbering Co. and Marais Lumber Co.
   Grant, J.

(after stating the facts). These petitions cannot be treated as petitions for leave to file bills of review. In such petitions the petitioner must present to the court his proposed bill, excuse 4he delay, and show the merits of his case. Petitioner knew that his lands were assessed and taxed. He knew the time at which these taxes became due and payable. He is presumed to know, and probably did know, all the proceedings taken by the. auditor general under the law to sell his lands for nonpayment. He has made no affidavit or showing of merits. No complaint is made of the assessment, or that the taxes were unjust. He attacks only the proceedings leading up to and upon the sale. He knew that his lands were sold, and that some of the defendants had obtained title thereto, and yet chose to rest upon his rights for two years, without taking any steps provided by the law to test the validity of the proceedings. Some of the defendants have meanwhile become interested, not in the land itself, but in the timber cut therefrom, and without any knowledge that the petitioner claimed any interest therein. Under such circumstances, equity requires that a party move with promptness to assert his rights, and to protect the interests of those who may become innocent purchasers of the products which may be severed. Petitioner has utterly failed to make any showing entitling him to the favor or grace of a court of equity. His present position is one of his own choosing, for which he has no one to blame but himself. The rule in such cases is well stated in Campau v. Van Dyke, 15 Mich. 371:

“Sound public policy and a just regard for the stability of private rights require that the solemn judgments and decrees of courts, affecting the rights of property, shall not be lightly disturbed, nor, without the strongest reason, allowed to be impeached after any considerable period of time, during which the parties have been allowed to rely upon them, and others may have obtained interests on the faith of them, or the evidence by which they might have been sustained has been lost. And if a party to such judgment or decree might, after any considerable period, impeach its validity without showing a proper excuse or reasonable justification for the delay, * * * a general feeling of insecurity and distrust, very injurious to property and business, must naturally result.”

The same doctrine is asserted in the following cases: Warner v. Juif, 38 Mich. 662; McVickar v. Filer, 31 Mich. 304; Day v. Cole, 65 Mich. 154 (41 N. W. 505); Sanford v. Haines, 71 Mich. 116 (38 N. W. 777). Parties who have thus acted cannot complain if courts of equity leave them to those remedies which the strict rules of law afford. Petitioner has made no attempt to excuse his laches.

We have previously commented upon the policy of the present tax law of this State. It seeks to give every man the opportunity to appear in court and raise objections to the validity of his tax. As we have frequently said, “ Every man is presumed to know the law,” and undoubtedly all landowners do know that their lands are subject to sale for nonpayment of the taxes assessed against them. There is therefore little excuse for any failure to protect their interests. The law has also seen fit to expressly limit the power of the courts to set aside the confirmation to two cases, namely, where the taxes have been paid, or the property was exempt from taxation. The court has held that, when application is made within a reasonable time, it will set aside the decree and sale' in case of an entire lack of jurisdiction. If it appears upon the face of the proceedings that the court never acquired, or, having acquired, had lost, jurisdiction, this is a complete defense in a suit at law. To his legal remedy, under such circumstances, the tax law and equity leave him. Probably, being in possession, he might maintain a suit in equity to remove a cloud from title, where the proceedings were void upon their face.

These petitions must be treated as ones to set aside the decrees in the original proceedings, and to permit the petitioner to attack the validity of the decrees and sales; and the sole issue in those proceedings was, Were the decrees valid? The tax law is neither designed, nor is it adapted, to the trial of the rights of parties who have bought the products of these lands from either the original owner or the tax title owner after the sale. If either party seeks to reach these products which have been severed from the realty and sold as personalty, he must commence by an original proceeding, in which the parties interested can be summoned into court and defend their rights. Crawford v. Tuller, 35 Mich 57; Spaulding v. O’Connor, 119 Mich. 45 (77 N. W. 323).

This disposal of the cases renders it unnecessary to determine the questions raised upon the tax proceedings. Some, if not all, of them have already been disposed of by former decisions.

The decrees are affirmed, with costs.

The other Justices concurred.