author: Stone, J.

text:
    MILLER v. HARMER.
    1. Drains — Highways—Reopening.
    After a ditch had been established more than 20 years within and along the highway in front of premises of the defendant, who obstructed the flow of water in the drain and prevented the highway officials from cleaning it out, the commissioner of highways need not proceed to reopen it in the manner prescribed by Aot No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 2388 et seq.), but was warranted in resorting to a suit in equity.
    2. Same.
    But where it was shown that in a portion of the drain, steel tubing had been used that did not carry off a sufficient volume of water, flooding defendant’s premises by backing up surface water in times of high water, the highway commissioner should have been required by the decree to remove the tubing or replace it by larger size pipe.
    Appeal from Sanilac; Beach, J.
    Submitted November 20, 1912.
    (Docket No. 141.)
    Decided January 3, 1913.
    Bill by John Miller, highway commissioner of Elk township, Sanilac county, against John Harmer for an injunction and other relief. Defendant filed a cross-bill for affirmative relief. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Fred A. Farr, for complainant.

      Gates & Simonson, for defendant.
   Stone, J.

In this cause, the bill of complaint was filed by the commissioner of highways of the township of Elk, Sanilac county, to obtain a decree restraining the defendant from maintaining an obstruction placed by him in a highway ditch in front of his premises in said township, and for resulting damages. The bill states:

(2) That defendant is the owner and occupant of the E. i of the N. W. i of section 12 in said township.

(3) That the east boundary line of defendant’s said farm is situate one-half mile west of a public highway running north and south between the townships of Elk and Buel.

(4) That on the north line of defendant’s laud, which is also the section line between sections 1 and 12, is a public highway running east and west, which continues westward between sections 2 and 11, and eastward to the township of Buel.

(5) That at the intersection of sections 1, 2, 11, and 12, which is 80 rods west of the west line of defendant’s said land, there is a perceptible depression, or basin, in the land, the incline to which depression extends for approximately one-half mile west, 20 rods north, and 40 rods south, in which depression or basin at times of freshets or excessive rains a large volume of surface water is precipitated. That the natural and proper drainage for such accumulation of surface water is due eastward for approximately 1£ miles, along the south side of said east and west highway to a county drain known as the “Ricket drain ” in section 6 of the township of Buel, said county drain having been constructed in the year 1906.

(6) That to assist in relieving said highway from such accumulation of surface water, and to make a much needed permanent improvement thereof, and consequent benefit to the public, an ordinary ditch was constructed by the highway authorities upwards of 20 years ago from such depression or basin leading eastward and past said premises of defendant along the south side and within said highway to other drains then in operation, thereby furnishing complete and adequate drainage for said highway, causing no injury to the defendant or his said premises, or that of other abutting owners, and that said ditch has until the committing of the grievances hereinafter complained of been maintained by the highway authorities of said township of Elk, and continuously furnished complete and adequate drainage for said highway, without injury or inconvenience, directly or indirectly, to said defendant, or any other person whomsoever, and since the construction of the aforesaid Ricket drain successfully carried such surface water thereto.

(7) That, before said ditch was constructed for the drainage of said highway as aforesaid, said highway at the point of said depression or basin, and for several rods in each direction, on the intersecting highway, and since the committing of the grievances by said defendant thereinafter mentioned and complained of was, and is, by reason of the accumulation of said surface water, rendered dangerous and inconvenient for public travel at times of freshets or excessive rains, and that, while such conditions . prevailed, said surface water would necessarily continue to remain upon said highway until it percolated through the soil or evaporated, or both, and became extremely stagnant and unsanitary.

(8) That it is physically impossible to keep said highway in a condition reasonably safe and convenient for public travel, unless ways and means for the escape of said surface water are provided, and the bill avers that the only practicable course for the drainage of said highway is as thereinafter set forth, which is evidenced by the fact that incident to the construction of the aforesaid Rickefc drain the lands of said defendant and all other lands abutting said highway, including divers tracts in the interior of said sections 12, 1, 2, and 11, were assessed for benefits, and a level taken of the south side of said highway by the county surveyor of said county in October, 1910, showed a fall from said depression or basin to the outlet aforesaid for said surface water of upwards of fiye feet.

(9) That a sufficient growth of grass, weeds, and other foreign substances having accumulated in said highway ditch to materially affect the free flowage therein of said surface water to its outlet as aforesaid, in the month of June, 1910, the overseer of highways of said township of Elk under instructions from complainant, attempted to clean out said ditch, and free the same from said impediments by plowing two shallow furrows in the bottom thereof, and scraping to a smooth surface, but when opposite said premises of defendant, at the beginning of the work, he was interfered with, and prevented by defendant from proceeding further therewith.

(10) That about one month later complainant proceeded to finish the work which said overseer was so prevented from doing, and did finish the same in a skilled and workmanlike manner, but, immediately upon the completion of such work, the defendant proceeded to, and did fill up and obstruct said ditch from draining said highway, by throwing in brush, stones, sticks, rails, and divers other substances of similar nature, and completed such destruotion by plowing the earth therein from either side thereof.

(11) That afterwards, in June, 1911, complainant and the overseer of highways of said township again attempted to clean out said highway ditch, and remove the obstruction therefrom which had been placed therein by defendant, and to that end started a shallow furrow in the bottom thereof, but that the defendant in an angry and threatening manner appeared and immediately filled up the furrow so plowed by complainant and the overseer, and complainant avers and charges that since it was apparent that defendant would continue to arbitrarily obstruct said ditch, and, to avoid possible violence, complainant and the overseer abandoned their efforts to continue to improve said highway.

(12) That ever since the defendant so obstructed said ditch, as aforesaid, at times of freshets or excessive rains, said highway at the point designated has been dangerous and inconvenient for public travel on account of such obstruction ; there being no escape for the great accumulation of surface water. The bill of complaint was filed August 5, 1911.

The answer of the defendant admits the first four paragraphs of the bill.

(5) Admitting the first part of the fifth paragraph of the bill, he denies that the natural and proper drainage of such accumulation of surface water is due eastward as stated, but alleges that the same is immaterial.

(6) He denies that the highway authorities ever constructed any such ditch as is alleged in complainant’s bill upwards of 20 years ago, or any other time, or that they ever had any right to construct such a drain.

(7) He admits the accumulation of water in the depression or basin, but denies that complainant or any other person or corporation ever had any right to empty the water from said basin, either on, over, or across defendant’s premises. ,

(8) Whether or not it is impossible to keep said highway in condition, etc., is immaterial, as neither complainant nor any other person has any right to use defendant’s farm or any part of it for drainage purposes. He has no knowledge as to whether any surveyor has taken levels along the south line of the highway, but he admits that his land is considerably lower than the said depression or basin, and says that if complainant is permitted to construct the drain thereinafter complained of, and for which permission is asked by complainant, such ditch or drain would convey the water not only from the basin described, but also from an exceedingly large tract of land adjacent to said basin, and would precipitate the same upon the lands of defendant, working him great and irreparable injury.

(9) Defendant admits that in June, 1910, a person acting under the illegal instructions of complainant undertook to construct a drain on his land, and to flood him with the waters from a large territory to the west and north of his land, and that defendant did not and would not permit such trespass to drain said water illegally upon his land.

(10) He admits that complainant has continued his attempts at divers times to work defendant injury in the manner stated.

(11) He denies that he has taken any illegal steps in relation to said drain.

(12) He alleges that if it is either convenient or necessary for drainage of the farm lands, and highways lying to the southwest and northwest of defendant’s farm, the legal course should be taken, and not the attempt either by force, stealth or equity proceedings to force such water upon his land.

Seeking affirmative relief, he prays for the benefits of a cross-bill, and says:

(1) That his said land is first-class agricultural land, known as bottom lands, slightly sloping from the west to east and from the north to the south; that his farm buildings are on the north part of said farm, just south of the highway limits; that it is all very valuable and productive, lying considerably lower than the lands to the westward, northwestward, and southwestward; and that it requires all of the facilities at his hands to keep said land properly drained from the water falling thereon, the melting snow and ice thereon, and such water as naturally finds its way thereon from adjoining lands.

(2) That for a few years last past there has been a small road ditch across the north end of his said farm, and within the highway limits, continuing on to the east a short distance beyond his east line, then crossing the roadbed to the north, then continuing east on the north side of the highway to a county drain. That a short time prior to the acts complained of by complainant in his bill complainant caused or permitted such ditch to the east of this cross-complainant’s land aforesaid to be materially reduced in size by the placing therein of small steel tubes, and the filling in around said tubes with earth, thereby greatly hindering the flowage of the water, setting the same back, and flooding cross-complainant’s land during the time of high water.

(3) That complainant, not being satisfied with draining the water back upon the lands of cross-complainant, thereby working irreparable and great injury to him, has continued to construct highway drains to the westward to bring large volumes of additional surface water down upon cross-complainant’s land, but has also placed upon the highway westward of cross-complainant’s land, and within the radius of the basin aforesaid, a steel tube 18 inches in diameter within the roadbed for the purpose of conveying the water from the northward and northwestward to the south side of said roadbed down to what is termed by complainant the highway drain onto cross-complainant’s land aforesaid.

(4) That complainant, in conjunction with the owners and occupants of the lands to the west and northwest of cross-complainant’s land, has constructed, caused to be constructed, and permitted to be constructed, numerous so-called highway drains, and has extended other highway drains so as to convey large volumes of water into and through said basin down said highway drains onto cross-complainant’s said lands.

(5) That complainant has either caused or permitted numerous owners and occupants of lands to the west and northwest of cross-complainant to construct ditches conveying the waters from their several holdings into the so-called highway ditches, thereby causing and permitting large quantities of surface water from a vast territory to the west and northwest, to be gathered together and precipitated upon the land of cross-complainant, well knowing that, when water is precipitated upon the northwest corner of his land, it will spread out, and cover practically all of his land, working great and irreparable injury to him, prevent proper farming by him, and causing large volumes of stagnant water to remain on his land, making such location unhealthful to the dwelling house thereon, and its inhabitants.

(6) That complainant is, and has been for upwards of a year last past, attempting to excavate along cross-complainant’s land, between his buildings and the roadbed, and to make a deep cut along a part of his land, thereby preventing the latter (cross-complainant) from freely passing from his buildings to the roadbed and thence to his fields, thereby preventing him from the free and full use of his lands, and making the premises unsightly, and greatly depreciating the value of his property.

(7) He alleges that all of these acts of the complainant have been done without any legal proceedings.

He prays that complainant be restrained from constructing any drain, conduits, culverts, or other means of conveying water whereby water may be conveyed directly or indirectly upon his land. In his answer to the cross-bill complainant reasserts his claim as stated in the original bill.

Referring to the steel tube upon the north side of the highway and east of defendant’s premises, complainant says that a predecessor in office at a point about a half mile east of said land, finding it convenient and advisable to do so for a distance approximately of 14 rods, placed therein crock tile either 18 or 20 inches in diameter, and at either end thereof a steel tube 18 inches in diameter, and 8 feet long, which has at all times been of sufficient capacity to furnish complete and adequate drainage for the water traversing said highway at all seasons of the year, and denies that, by reason thereof, the water in said ditch has been retarded or hindered, or that by reason thereof water, has been set back onto the land of defendant. The other allegations of the cross-bill are substantially denied.

The cause was heard upon testimony taken in open court, as in a suit at law. The learned circuit judge, who heard and saw the witnesses testify, entered a decree for the complainant, wherein he found:

(a) That the highway ditch or drain is necessary to keep and maintain the highway adjacent thereto in a condition reasonably safe and convenient for public travel.

(b) That the existence of said ditch or drain, without impediment or obstruction, is a needed improvement to said highway, and consequent benefit to the public, and that the same was constructed with those objects in view.

(c) That said highway and ditch or drain have been continuously in use as such, and for the purposes for which they were constructed and established, for a period of 20 years prior to the beginning of this suit.

(d) That ever since the construction of said ditch or drain the same has been maintained by the highway authorities in good faith for the maintenance and permanent improvement of said highway, and its dimensions have not been enlarged, except by and through the illegal acts and conduct of said defendant.

(e) That said highway authorities were acting within their rights and in good faith when in the years of 1910 and 1911 they attempted to clean out said ditch or drain, and that such cleaning out was for the improvement of said highway.

(/) That said defendant illegally prevented said highway authorities from cleaning out said ditch or drain, as above stated, and as set forth in said bill of complaint, thereby preventing the highway improvement sought by said authorities, as well as causing said highway to become and remain unsafe and inconvenient for public travel.

The court adjudged and decreed that the defendant be perpetually restrained from in any manner interfering with said highway authorities, or any of them, or their successors in office, or any of them, or any person or persons acting under their instructions, or the instructions of any of them, in removing the obstructions placed in said ditch or drain by said defendant, or in cleaning out, and thereafter maintaining, said ditch or drain, or from in any manner interfering with the drainage of said highway, provided, however, that the highway authorities shall only restore said ditch or drain to its dimensions before said defendant enlarged and obstructed the same, as near as may be, by removing all obstructions, sods, or other growth or substances to the depth at which said ditch or drain was prior to said obstruction by defendant, and thereafter maintain the same accordingly, without interference by said defendant. The defendant has appealed.

We cannot here undertake to set out at length the testimony in the case. We have read the record with care, and are satisfied that, by a clear preponderance of the evidence, it appears that the equities of the case are with the complainant, with an exception which we shall point out. We are satisfied that the complainant had the right to clean out and keep open the ditch on the south of the highway in front of defendant’s premises, and that defendant wrongfully obstructed the same. We think that by a clear preponderance of the evidence, each of the findings of the circuit court, as contained in the decree, is supported, and that the defendant should be restrained as therein ordered.

We are, however, impressed with the claim of the defendant in his cross-bill that the capacity of the ditch or drain in front of the premises of John Maedel has been materially reduced by the placing therein by complainant’s predecessor of 18-inch steel tubes and crock tile, and filling in around the same with earth, thus operating as an obstruction to the flowage of the water. It appears, and we find that from the point of the basin or depression at the corners of sections 1, 2, 11, and 12, and extending east along the highway, a ditch has existed for over 20 years on each side of the highway, to the east line of the premises of James Regan (being the W. \ of N. E. J, section 12). At this point the ditch on the south side of the highway is carried across the highway through a culvert, and there unites with the ditch on the north side of the highway, and immediately east of this point in the ditch on the north side of the highway is the obstruction consisting of the steel tubes and tile. Whether this 18-inch opening is of sufficient capacity to carry off the water is a question of fact. A careful examination of the testimony upon this point, and taking into consideration all of the surroundings, including the conceded facts that in the spring, and at times of high water, a large quantity of water flows east at this point, all lead us to the conclusion that this steel and tile work is not of sufficient capacity, and that it should be removed entirely, or that other tile, the diameter of which shall not be less than 30 inches, be substituted in place thereof by the complainant within a reasonable time. It appears to us that upon the main questions in the case the doctrine of this court as set forth in the cases of Highway Commissioners v. Ely, 54 Mich. 173 (19 N. W. 940), and Dean v. Millard, 151 Mich. 582 (115 N. W. 739), applies.

It appearing that the ditch or drain on the south side of the highway in front of defendant’s premises has existed for more than 20 years, and that complainant had the right for the betterment of the highway to keep the same open and in good condition, we do not think that the claim of defendant that it was the duty of complainant to proceed under the provisions of chapter 15 of Act No. 283 of the Public Acts of 1909 can be sustained. The decree of the circuit court will be modified by directing the complainant, as commissioner of highways, to remove entirely the steel tube and tile obstruction indicated, or that other tile be substituted therefor, as above specified, within three months; and in all other respects, including the award of costs to the complainant in the court below, the decree will be affirmed.

The defendant will be allowed his taxable costs against complainant in this court.

Steers, C. J., and Moore, McAlvat, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    PUBLIC SCHOOLS OF THE CITY OF MUSKEGON v. SMITH.
    Schools and School Districts — Bonds—Statutes.
    Under Act No. 281, Local Acts 1899, incorporating the schools of Muskegon and conferring on its board of trustees the same powers as are granted to school districts by section 4717, 2 Comp. Laws, as amended by Act No. 12, Pub. Acts 1911 (4 How. Stat. [2d Ed.] § 9932), also conferring power to raise money, purchase sites, erect school buildings and furnish or improve them, respondent, the secretary of the board, should have been compelled by mandamus from the circuit court to sign and issue bonds that had been authorized by the board and voted upon by the electors of the district pursuant to law; and it is held, that the charter provisions authorizing the raising of money by taxation for the construction of buildings (§§ 19, 23, 24, 26) are consistent with the power to issue bonds under the general law.
    Certiorari to Muskegon; Sullivan, J.
    Submitted December 6, 1912.
    (Calendar No. 25,435.)
    Decided January 3, 1913.
    Mandamus by the public schools of the city of Muskegon against Frank H. Smith, secretary of the board of trustees of said schools, to compel respondent to sign and issue bonds authorized by the board. An order denying the writ is reviewed by relator on writ of certiorari.
    Reversed.

      William Carpenter, for relator.

      Cross, Vanderwerp, Foote & Boss, for respondent.
   McAlvay, J.

The relator is a school district, incorporated under Act No. 281 of the Local Acts of 1899. Its affairs are managed by a board of trustees, from which are elected a president and secretary. The respondent in these proceedings is its secretary. The controversy in this ease arose between relator and respondent on account of the refusal on the part of respondent, on being ordered by the proper authority so to do, to sign certain bonds of said school district, and an order was issued against respondent, on the application of relator, from the circuit court for the county of Muskegon, to show cause why a writ of mandamus should not issue to compel him forthwith to sign and issue said bonds.

The facts are undisputed, as appears from the answer of respondent to said order. Briefly stated such facts are as follows: The board of six trustees of said school district, called in the act under which it was organized * the Board of Education,’ at the regular meeting held December 8, 1911, unanimously adopted the following resolution :

“ Resolved, that it is necessary to hold a special election of the qualified electors of the public schools of the city of Muskegon for the purpose of passing on the following questions:
“ (1) Shall the board of education be authorized to erect a school building on block four hundred and ninety-three (493) of the city of Muskegon, according to the revised plat thereof, approved April 9, 1903, at an - expense of more than fifteen thousand dollars ($15,000.00) ?
“ (2) Shall the board of education be authorized to borrow a sum not exceeding thirty thousand dollars ($30,000-.00) for paying the cost of said building, and to issue bonds of the district therefor for a term not exceeding fifteen years, bearing interest at a rate not exceeding five per cent, per annum, that sum being the amount which this board estimates as necessary for that purpose ? ”

The date of the election to be held on the 28th day of December, 1911, for the purpose of voting upon such questions, was duly fixed by resolution, and thereafter, upon legal notice, on the date named, at the election then held, the questions submitted were answered in the affirmative by an almost unanimous vote. Afterwards, in the year 1912, plans were adopted by the board of education, and bids were asked for and received, which were all largely in excess of the sum authorized to be borrowed, and none of these bids were accepted. Later new plans were prepared, and the contract was finally let, August 29, 1912, for the sum of $30,531. The schoolhouse building is now in process of construction. On September 26, 1912, the president and secretary of the board of education were directed to issue the bonds. The secretary declined to sign the bonds or join in issuing them, on the ground that the board of education had no authority to order their issue, as appears from his answer, for the following reasons:

“ (1) IJpon being authorized by the vote of the electors of the district, the bonds were not issued during the then fiscal year.
“ (2) There could have been raised in said district in the year 1911 or 1912, for the purpose of constructing school buildings and purchasing sites therefor, the amount of these bonds ($30,000.00) in excess of what was raised, and still have kept within the limit fixed by section 24 of relator’s act of incorporation.
“ (3) The relator has no power to vote or issue its bonds for constructing school buildings, except the power given or authorized by its act of incorporation; the general school laws in the matter of voting and issuing bonds for such purposes having no application.”

Upon a hearing before the circuit court, the writ of mandamus was denied, and the relator has removed the case to this court by writ of certiorari for review, averring that the action and judgment of the circuit court was erroneous and ought to be reversed.

The sole question involved is the construction of the statute under which relator was incorporated, and whether its provisions are inconsistent with the provisions of the general school laws of this State reserved to relator in such statute, under which it is admitted by relator that action was taken in the submission of the questions relative to building a school building and borrowing the money required by issuing bonds.

The incorporating act provides that the board of education may, by resolution, determine the sums necessary to be raised by taxation for the purpose of purchasing grounds and the erection, improvement, and furnishing of school buildings, not exceeding, for any one year, one-half of one per cent, on the dollar of the taxable property in the city, as shown by the assessment roll of the preceding year. It authorizes the board to erect school buildings, but requires, if the building is to cost more than $15,000, that the question of the propriety of its erection shall be first submitted to the electors, and authorized by them. Section 26 of this act provides:

“ Should any greater sum be required in any one ye'ar than can be raised under the provisions of the foregoing sections, such sum, not exceeding one per cent, of the taxable property in the city for the preceding year, may be raised by tax or loan, if authorized by a majority vote of the qualified electors of the school district, voting at any annual or special meeting called by the board for the purpose of voting thereon.”

The foregoing are all of the provisions contained in this incorporating act, material to this issue, specially authorizing the raising of money for the purposes of buying school sites and constructing, furnishing, and improving school buildings, and are contained in sections 19, 23, 24, and 26.

In the month of June each year the board of education is required to determine, by resolution,, the amount necessary or proper to be raised by taxation during the next school year for all purposes authorized by the above act, and on or before the first Monday in July in each year “the said board is required to transmit and certify the total amount so estimated to the common council of the city of Muskegon, which amount so reported, the common council shall cause to be raised by tax on all the taxable property in the city.”

Section 26, above quoted, refers to all of the funds for all purposes specified in the sections referred to, including the fund for the purposes of purchasing grounds for schoolhouse sites and constructing, furnishing, and improving school buildings.

Section 16 of the act, among other things, provides:

“Said board shall also have all the powers and privileges conferred upon school boards and upon qualified voters of school districts at any annual or special district meeting by the general laws of this State, not inconsistent with this act.”

It is contended by relator that under this provision of the incorporating act relator is authorized and empowered to proceed under the provisions of section 4717, 2 Comp. Laws, as amended by Act No. 12 of the Public Acts of 1911 (4 How. Stat. [2d Ed.] § 9932), and that it did so proceed to submit to the qualified electors of the district the questions hereinbefore quoted, and obtained their consent to borrow the required amount for the purposes stated, and to issue bonds of the district therefor. The material portion of such section, as amended, reads as follows:

“Any school district may, by a majority vote of the qualified voters of said district, present at an annual meeting, or a special meeting called for that purpose, borrow money and may issue bonds of the district therefor, to pay for schoolhouse site or sites, and to erect and furnish school buildings. The district board or board of education shall estimate the amount of money necessary to be raised and shall state their estimate in the notices of the annual or special meeting at which the question of borrowing money and issuing bonds shall be submitted to the people; and at said meeting the voters shall have power to ratify by the vote aforesaid the estimate of the district board or board of education, or to fix a new limit on the amount to be borrowed and for which bonds may be issued.”

Then provision is made limiting the amount which may be raised and the amount of the bonded indebtedness, and also limiting the period of indebtedness to 15 years.

The contention of the respondent is that the authority of relator to raise money in excess of the amount provided under preceding sections is limited to the provisions of section 26 of the act under construction, and that, it being admitted that the amount of assessable property on which such taxes could have been levied for the year 1911 was sufficient to have included the amount ($30,000) which relator was authorized to borrow and issue bonds therefor, the whole question to be decided is whether the provisions of section 26 are inconsistent with the authority conferred by the general school laws, reserved to the district by section 16 of the act of incorporation, above quoted.

The circuit court held that they were, as we are informed by the briefs, upon the ground that specific provision was made in sections 24 and 26 relative to the subject matter in issue.

We are constrained to hold that the provisions relied upon by respondent are not inconsistent with the provisions of the general school laws reserved to relator. A careful examination of the act of incorporation shows that in it there is no express provision authorizing the issue of bonds by relator for money borrowed, although section 23 of the act recognized bonded indebtedness existing and falling due by the following provision:

Fourth. For the payment of interest and indebtedness falling due, the fund so provided to be termed the * bond fund.’ ”

And provision is also made in section 27 that—

‘ ‘ The board of education may refund or renew obligations of the district on such terms and for such time as it may from time to time deem expedient.”

Section 26 provides that amounts required in any one year greater than can be raised under the foregoing sections may be raised by tax or loan, which is the only expression in the statute providing for borrowing money, except in anticipation of taxes levied, from which it cannot be inferred that a bonded indebtedness was contemplated.

It appears in relator’s brief, and is not denied, that the construction contended for has been the practical construction given to this statute for many years, and several school buildings have been built where similar action has been taken, and the validity of bonds issued under such action has never before been questioned.

In our opinion, considering all the terms of this incorporating act relative to the finances of relator, particularly the requirement that a complete estimate must be made in June each year for the following year for any and all purposes, and that early in July such estimate must be certified to the common council, to be spread upon the tax rolls, when at any time after such dates exigencies might arise, or it might appear that the construction and improvement of school buildings not appreciated or known at the time might be absolutely necessary for the welfare of the public schools, or it might not be considered desirable to burden the tax roll of any one year to the entire limit allowed, this act incorporating the relator, containing no provision for the issue of bonds for any purpose, of necessity requires a construction that it was the legislative intent, by the reservation to relator contained in section 16 of “ all powers and privileges conferred upon school boards and the individual voters of school district under the general school laws, not inconsistent with the act,” to give relator the power to issue bonds, which it claims it has lawfully exercised in the proceedings taken for that purpose. We conclude that the court was in error in holding that the provisions of this act were in this respect inconsistent with the provisions of the general school laws relied upon by relator.

It follows from the construction we give to this act that the further reason given by respondent for his refusal to sign these bonds, because they were not issued within the year 1911, does not require consideration.

The judgment of the circuit court is reversed, and a judgment will be entered in this court ordering a writ of mandamus to issue, according to the prayer of petition. No costs will be allowed to either party.

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


author: Per Curiam.

text:
    LADIES OF THE MODERN MACCABEES v. DALEY.
    1. Contempt — Decree—Form of Order — Advice of Counsel as Exouse for Disobeying Decree.
    A respondent in contempt proceedings is not chargeable with contempt of court for refusing to obey an opinion or order of the court requiring her to pay certain funds to the complainant, if she acted under advice of her solicitor and purposed taking an appeal from the order as soon as a formal appeal-able decree should be drafted.
    2. Same — Estoppel—Judgment.
    Biit having acted upon the opinion or order of the court filed in the cause, by claiming and receiving from the register of the court funds that the order awarded to her, and by taking preliminary steps to perfect an appeal, respondent lost the right to insist that a final order had never been entered.
    Contempt proceedings by Agnes Hatch against Mary E. Daley for disobedience of an order of the court entered in the above entitled cause (166 Mich. 542 [131 N. W. 1127]).
    Submitted December 10,1912.
    (Calendar No. 24,581.
    Respondent acquitted and discharged January 3. 1913.

      A. Elwood Snow, for petitioner Hatch.

      George C. Ryan, for respondent Daley.
   Per Curiam.

In this cause, pursuant to an opinion handed down therein (166 Mich. 542 [131 N. W. 1127]), a decree was entered in this court by which it was, among other things, ordered that the defendant Mary E. Daley present to the circuit court in chancery for the county of Saginaw her claim for costs and expenses in the execution of the trust and have the same determined by that court. She filed her petition in that court, in which she asked for an allowance, and, after a hearing thereon, said court in a written document filed in the matter allowed her the sum of $150, and directed the register of the court to turn over to her the trust fund then in the hands of the court, to be distributed according to the decree of this court, and that the said register take her receipt for the money, and furnish her with a copy of the order and determination of the court. This determination was made April 1, 1912. Pursuant thereto, defendant did apply to the register of said court and from him received and took possession of the fund, amounting, with accrued interest, to something more than $1,000. The decree of this court required the said Mary E. Daley, after the payment of certain sums, including the payment of the costs and expenses of execution of the trust, to pay one-half of the remainder of the fund to Agnes Hatch. On the 21st of August, 1912, Agnes Hatch demanded of said Mary E. Daley payment of one-half of the residue of said fund, claiming there was due to her the sum of $268.54. Payment not having been made, Agnes Hatch petitioned this court for an order commanding the said Mary E. Daley to show cause why she should not be punished as for contempt, and be removed as said trustee for the disobedience of the decree of this court, and for wilful refusal to pay the money ordered by her to be paid to petitioner. An order to show cause was made, and for a return thereto the said Mary E. Daley says that the circuit court for the county of Saginaw, in chancery, made no order in the premises, but, on the contrary, filed an opinion merely, which is not in form an order, and which from its form cannot be called or treated as an order of the court. She further returns that the amount allowed her by the circuit court was inadequate, and that, feeling herself aggrieved, she took steps to perfect an appeal to this court, procuring a transcript of the stenographer’s minutes, and that the case for review was agreed upon by opposing counsel, who stipulated as follows:

“It is agreed between the attorneys that the foregoing contains the record in the matter of said appeal, and. that ,the court may sign the same without notice.”

But she says that, owing to the fact that no order had been entered pursuant to what she denominates an opinion, no order was made settling the case for review on appeal; that, in a desire to avoid a second appeal to this court, she conducted negotiations with the aid of her counsel, hoping to come to a settlement with interested parties, and, believing that such a settlement was possible, she has not perfected her appeal; that is to say, she has filed no claim of appeal, and has not paid to the register of the circuit court his fee, but asserts that she had no occasion to do either until an appealable order had been entered. She further returns that her solicitor will apply immediately to the said circuit court in chancery to have an appealable order entered, and that an appeal will be prosecuted to this court for review at the earliest possible moment; that she has been advised by her solicitor that she could not appeal until an appealable order had been entered in such cause. In conclusion she returns that, if this court is of opinion that the opinion or order of the circuit court for the county of Saginaw, in chancery, is an order from which an appeal might have been taken, she stands ready and willing to perform any decree or sentence without contempt proceedings against her, if this court will indicate what she is to do.

So far as her personal conduct is concerned and is described in the return, it is not traversed, and we are of opinion that she is not to be held guilty of a contempt of the court, if, as she states, she acted upon the advice of her counsel with respect to the character of the order which was made by the circuit court of the condition upon which her right to appeal depended and if she desired to appeal.

We are also of opinion, stated here for the benefit of all parties, that, however the form of the written instrument made by the circuit court for the county of Saginaw in chancery may differ from the approved forms of orders and decrees as indicated in the text-books upon the subject, Mrs. Daley is not in a position to claim that the instrument after it was filed did not have the force and effect of an order, because, pursuant to it, she called upon the register of the court, and was paid and receipted for the money in the hands of the court, and was then and there furnished with a copy of the said instrument. All parties appear to have treated it as an order of the court. No question is made that the amount demanded by petitioner is not a proper amount to be paid, if the court below has finally determined the costs and expenses due to respondent.

An order will be entered finding respondent not guilty of contempt of court, but she will be required to pay to petitioner, as costs, 810.


author: Bird, J.

text:
    WALTER v. PEOPLE’S HEALTH & ACCIDENT INSURANCE CO.
    1. Insurance — Negligence—Exposure to Danger.
    Under a proviso in an insurance policy limiting the recovery to two-fifths of the full amount of insurance, if death should “ result from unnecessary exposure to obvious risk of injury or obvious danger,” plaintiff could recover the full amount of the policy unless the insured was guilty of gross or wanton negligence.

    2. Same.
    Evidence that decedent, who was engaged in buying and shipping produce, was killed while walking on the railroad right of way, that he stepped off the tracks when the whistle blew and, seeming to become confused as the train approached, hesitated, turned about and fell in the way of the locomotive, that the public used the tracks at the point in question for a regular traveled way, presented a question of fact for the jury as to whether the act of decedent was intentional and whether he was guilty of gross or wanton negligence.
    Error to superior court of the city of Grand Rapids; Stuart, J.
    Submitted November 17, 1911.
    (Docket No. 137.)
    Decided February 18, 1913.
    Assumpsit by Carrie M. Walter against the People’s Health & Accident Insurance Company upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Geo. E. & M. A. Nichols (F. O. Eldred, of counsel), for appellant.

      Smedley, Hall & Gillard, for appellee.

       On the question of voluntary exposure to unnecessary danger, within meaning of insurance policy, see notes in 40 L. R. A. 432; 22 L. R. A. (N. S.) 779; 27 L. R. A. (N. S.) 1164; and 40 L. R. A. (N. S.) 135.

   Bird, J.

The plaintiff is the beneficiary of an insurance policy issued by the defendant company, insuring plaintiff’s husband against accidental injuries, sickness, or death. In January, 1910, the insured was killed while walking on the right of way of the Grand Rapids & Indiana Railway Company near the station of Reno. The defendant refused to pay the full insurance, but tendered two-fifths of it, under stipulation “ K ” of its policy, which provides that, in the event of death—

“ Resulting from unnecessary exposure to obvious risk of injury or obvious danger, * * * the limit of the company’s liability shall be two-fifths of the amount which would otherwise be payable under the policy.”

This amount was refused by the beneficiary, and a trial resulted in a judgment for her of $780, the full amount of the policy. It is the claim of the defendant that, under this stipulation in the policy, the plaintiff was entitled to recover only two-fifths of the amount named in the policy, as it was conceded that the insured was killed while walking on the railroad right of way, and that, as there was no conflict in the material testimony, the trial court should have determined the question as one of law, instead of submitting it to the jury.

It appears that the insured was a commission merchant, engaged in buying, loading, and shipping farm produce at the stations in the vicinity of Reno; that on the morning of the day he was killed he drove from his home to Reno, left his team in the blacksmith shop, and proceeded on foot to Harrington, one mile south of Reno. While returning the engineer of the south-bound train, which ran over him, saw him walking between the'rails in the vicinity of Reno station. Four hundred and seventy-nine feet north of this station the track is crossed by a highway, which is the main street of the village. When the engineer whistled for this street crossing, the insured stepped outside of the rails, and a moment later, when the station whistle was given, he stepped further away, and continued on his way toward the village. When within 60 or 70 feet from the locomotive, he was seen by the fireman to hesitate, turn partly around, and place his hands on his breast and fall on the track. The fireman testified that his face had a peculiar look, a confused or muddled look. There was snow on the ground at the time to the depth of eight inches, and at the point where he was struck it was nearly two feet deep, owing to the fact that snow had been thrown out and away from a switch near by. The insured was 52 years of age, and in good health, although his wife testified that he was not feeling well when he left home in the morning. It is argued from these facts that the insured came to his death from his own carelessness, and from unnecessary exposure to obvious risk of injury and obvious danger, and that the trial court was in error in refusing to so instruct the jury.

This court in the case of Johnson v. Accident Co., 115 Mich. 86 (72 N. W. 1115, 40 L. R. A. 440, 69 Am. St. Rep. 549), defined the term “voluntary exposure to unnecessary danger ” as meaning “ a conscious or intentional exposure, involving gross or wanton negligence on the part of the insured.” It is pointed out that the exception thus defined differs materially from the one in suit, in that the word “ voluntary ” is omitted in the latter, and that by reason thereof a greater degree of care is required on the part of the insured. In the later case of Irwin v. Benefit Ass’n, 127 Mich. 630 (86 N. W. 1036), the wording of the exception was “ voluntary or unnecessary exposure to danger.” An effort was made in that case to distinguish it from Johnson’s Case, based upon the difference in the wording of the exceptions, but the court refused to do so, and expressly held that it was ruled by Johnson’s Case. The effect of the exception in the instant case is substantially like the one in the Irwin Case, and we must hold that it is ruled by it. It follows, then, that the test of the insured’s conduct is whether he was guilty of gross or wanton negligence.

Testing the insured’s conduct by this rule, we do not think it can be said as a matter of law that the insured was guilty of gross or wanton negligence in walking upon the railroad right of way and track from the station to the village. There was no direct inhibition in the policy against walking upon the tracks or right of way of a railway. It was shown by the testimony that it was the usual traveled way from the station to the village, and that it had been so used for 24 years. If the insured simply did what the patrons of the railroad were in the habit of doing, he could not be charged, as a matter of law, with gross or wanton negligence. In walking upon the track, in leaving it when the whistle was sounded, and in moving further away from the track, as the train came nearer, the conduct of the insured was that of an ordinarily prudent man. When he stopped, turned half around, placed his hands on his breast, and with an excited or muddled look on his face fell over on the track, his conduct was that of an abnormal man, and whether this abnormal conduct was intentional or otherwise is a question about which reasonable minds might differ. The insured’s conduct in its entirety, considered in connection with the attendant circumstances, presented a question from which different inferences might fairly be drawn, and it was therefore a proper question for the jury. Continental Casualty Co. v. Johnson, 119 Ill. App. 93; North American Accident Co. v. Gulick, 25 Ohio Cir. Ot. R. 395; Alloway v. Insurance Co., 35 Pa. Super. Ct. 371; Preferred Accident Ins. Co. v. Muir, 126 Fed. 926, 61 C. C. A. 456.

The judgment of the trial court is affirmed.

Steers, C. J., and McAlvay, Stone, and Ostrander, JJ., concurred.


text:
    YALE STATE BANK v. FLETCHER.
    1. Attachment — Affidavit—Statutes—Bill in Aid of Execution.
    Unless the affidavit in attachment proceedings is attached to the writ the judgment is invalid. 3 Comp. Laws, § 10556, 5 How. Stat. (2d Ed.) § 13357.
    2. Same.
    Evidence considered and found to establish the fact that the affidavit was annexed to the writ before service.
    3. Same — Default Judgment — County Clerk — Power of Deputy —Assessment of Damages.
    The deputy county clerk may act in the place of the clerk to whom a case has been referred for assessment of damages after a default judgment: he may perform any duty that his principal could perform.
    4. Same — Inventory—Certifioate.
    The fact that the sheriff filed a certificate with the copy of the writ of attachment, certifying that the annexed inventory was a true copy, etc., did not tend to prove that no inventory was made.
    5. Homestead — Bill in Aid of Execution — Attachment.
    On the hearing of a suit in aid of execution to subject defendant’s homestead to plaintiff’s claim, complainant could not prevail unless the value of the homestead was shown to exceed $1,500; and the trial court correctly dismissed the bill of oomplaint upon a record showing that the only evidence tending to prove the value of the homestead was the appraisal in attachment proceedings, which complainant had not offered in evidence by specifio reference to the paper as suggested on the hearing by the trial court.
    Appeal from Sanilac; Beach, J.
    Submitted November 20, 1911.
    (Docket No. 149.)
    Decided February 18, 1913.
    Bill in aid of execution by the Yale State Bank against Fred C. Fletcher and others. From a decree for defendants, complainant appeals.
    Affirmed.

      Jay B. Weymouth, for complainant.

      Gates & Simonson {Wm. H. Aitkin, of counsel), for defendants.
   Bird, J.

Complainant appeals from a decree dismissing its bill filed in aid of an execution against defendant Fred C. Fletcher. It appears from the record that complainant caused a writ of attachment tó be levied upon a certain 40 acres of land in Sanilac county, which was owned and occupied by defendant Fletcher as his homestead. In those proceedings a judgment was obtained by complainant for the sum of $682.50, and an execution was levied on the land in question. Defendant Fletcher could not be found within the county of Sanilac, and service was had by publication. This bill was then filed to aid in the enforcement of the judgment. Substituted service was likewise had in this suit. It is charged that after the indebtedness accrued, but before the suit was commenced, the defendant Fletcher conveyed the 40 acres to defendant Lefler, and he in turn conveyed it to Fred C. Fletcher and his wife, Lavina W. Fletcher, and that these conveyances were made for the purpose of placing it beyond the reach of the creditors of Fred C. Fletcher.

Upon the hearing complainant offered the judgment in attachment, and it was objected to upon the ground that it was void. Several reasons are urged against its validity. It is first argued that the court acquired no jurisdiction because the affidavit was never annexed to the writ of attachment, in accordance with the requirement of section 10556, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13357). If this objection is well taken, it disposes of the case, as this court has held that this provision is mandatory. Holmes v. King, 158 Mich. 445 (123 N. W. 1).

The following facts are relied upon to show that the affidavit was never annexed to the writ:

(a) The affidavit was made and filed on the 27th day of April, the same day the writ was issued.

(&) The calendar entry showing that the affidavit was filed on April 27th, and afterward changed to read, “Affidavit exhibited on April 27th.”

(c) That the affidavit is now attached to and filed with a copy of the writ.

(a, b) If it be conceded that the affidavit was filed on the date that the writ was issued, it is not important if it were actually annexed to the writ before it was executed. We think counsel are in error in assuming that the filing is conclusive evidence that it remained in the custody of the clerk. The statute does not require the affidavit to be filed when the writ issues, and the fact that it was inadvertently marked with the filing stamp of the clerk would not prevent its being attached to the writ and delivered to the sheriff. The testimony of the complainant’s attorney and the deputy clerk who issued the writ shows that the affidavit was annexed to the writ and taken away by complainant’s attorney on the day that the writ issued. The case of Holmes v. King, supra, to which our attention is called upon this proposition, is not in point for the reason that the situation there dealt with shows that the affidavit was not filed until after the writ was executed, showing conclusively that the affidavit could not have been annexed to the writ before it was executed.

(c) As further evidence that the affidavit was never attached to the writ, counsel point to the certificate of the sheriff attached to the return, which certifies that “the writ is a true copy of the writ of attachment to me directed, etc., and a true copy of the inventory made by me, etc.”, In making his return, the sheriff filled in this blank certificate, which is ordinarily made use of for certifying copies of the writ and inventory for service. This certificate was unnecessary, and, as there is nothing in the law which requires it to be indorsed upon the return of the sheriff, we think it should be disregarded as surplusage. The mistake misled no one and should not be permitted to affect the validity of the proceedings. The return, considered in connection with the inventory and appraisal, fairly shows that the original writ, and not a copy, was returned. The objection, therefore, that the affidavit was not annexed to the writ, is not borne out by the record.

Further objection is made that no inventory was made and filed. The basis of this objection is the same as the preceding one, namely, that the certificate on the sheriff’s return certifies that the inventory returned with the writ was a true copy, etc. The objection is purely technical and without merit.

When the default of the defendant was filed, an order was entered under rule 12, referring the matter to Fred J. Kemp, county clerk, for assessment. The assessment was actually made by the deputy county clerk, John D. Allin, and a report was made and filed by him. It is argued that, after the matter had been referred to Fred J. Kemp for assessment, it could not be made by Allin. The office of deputy county clerk is one created by statute (1 Comp. Laws, § 2572 [1 How. Stat. (2d Ed.) § 1217]), and, unless his powers are limited by the statute, he may perform any act which his principal may perform (29 Cyc. p. 1395). The matter was referred for assessment to the official and not to the individual, and, if it were a proper matter to refer to the clerk for assessment, the deputy had the authority to act for his principal. Dorr v. Clark, 7 Mich. 310; Andres v. Ottawa Circuit Judge, 77 Mich. 85 (43 N. W. 857, 6 L. R. A. 238).

The defendants raise some questions with reference to the pleading and evidence of the complainant in the chancery case, which seem to us more serious. The point is made that the bill of complaint nowhere charges what the value of the property was at the time the conveyance was made, and that there is no competent proof in the record that the 40 acres was worth more than the exemption of $1,500. The complainant argues that the appraisal shows that it was worth $2,400. The defendants contend that the appraisal is not a part of the evidence, and that if it were it would be no evidence of the value of the land. The question as to whether the appraisal is in evidence depends upon the following testimony:

“Mr. Kemp identifies file handed him as the official file from his office in the law case of the Tale State Bank v. Fred C. Fletcher.
“Mr. Weymouth: I offer the files in evidence.
“Court: You may offer the papers by title.
“Mr. Weymouth: We offer in evidence the writ of attachment entitled in the case of the Tale State Bank v. Fred C. Fletcher, the return under date of May 13, 1909, by William H. Epplett, sheriff, filed May 25, 1909.”

The testimony elsewhere shows that the writ, inventory, appraisal, and return were all fastened together, and it is the argument of the complainant that, when the writ was admitted in evidence, all the papers were thereby admitted. Whatever merit there may be in this contention, it cannot avail where the trial court in advance suggests that the papers be offered by their title. By this suggestion the trial court said in effect to counsel that, whatever papers he desired admitted, he must make specific offers of them. Because the appraisal was fastened to the writ, as a matter of convenience in making the return, it did not thereby become a part of it, so as to admit it in evidence under a ruling admitting the writ. Having reached this conclusion, it is unnecessary to decide what force the appraisal would have had as evidence of value if it had been properly in the case.

Aside from the appraisal, there is no evidence of the value of the 40 acres. When an equity court is asked to set aside a conveyance on the ground of fraud and the amount of land conveyed does not exceed the acreage exempted by the Constitution and statutes, there should be some substantial showing that the value of it exceeds the exempted value, and, until this showing is made, the homesteader ought not to be disturbed in the possession and enjoyment of his exemption.

The chancellor has given us no hint as to the reasons which moved him to deny relief to complainant; but we think the denial was fully warranted on this ground, and his decree will be affirmed, but without prejudice to the complainant. The defendants will recover their costs in this court.

Steere, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.


author: Brooke, J. Ostrander, J.

text:
    BARRIS v. EMMONS.
    1. Estates op Decedents — Fraudulent Conveyances — Executors and Administrators.
    In a suit by the administrator of an estate to set aside a conveyance, made by deceased to take effect at his death, of a life interest in his homestead to his widow" and the remainder to his children by a former marriage, the deed was properly set aside as fraudulent to creditors, though the widow was the principal and largest claimant.
    2. Same — Acceptance—Estoppel—Payment.
    The widow could not be held to have accepted the conveyance as payment of her claim because she caused it to be recorded after her husband’s death, where there was no recital that payment was intended, nor did her act estop her from objecting to its validity unless the other grantees so acted in reliance thereon as to prejudice their rights if it was set aside.
    3. Same — Widow’s Rights — Dower.
    Until her dower rights were assigned to the widow, she was entitled to occupy the homestead under 3 Comp. Laws, § 8929, 4 How. Stat. (2d Ed.) § 10921.
    4. Same.
    The suit being instituted by the administrator to subject the property of decedent to the rights of creditors, the attitude of the widow was not controlling.

      5. Same — Res Judicata — Fraud.
    The contention that the claim of the widow against the estate was a fraud, was res judicata, after her claim had been allowed by the commissioners on claims and allowed at reduced amount on appeal to the circuit court, from which judgment no further appeal was taken.
    Appeal from Allegan; Padgbam, J.
    Submitted October 11, 1912.
    (Docket No. 37.)
    Decided February 18, 1913.
    Bill by Ransom J. Barris, as administrator de bonis non of the estate of Alfred Emmons, against Emily E. B. Emmons and others, to set aside a conveyance of decedent for the benefit of creditors. From a decree for complainant, defendants appeal.
    Affirmed.

      G. E. Wilkes, for complainant.

      E. J. Doyle, for defendants.
   Brooke, J.

The facts in this case are clearly stated in the opinion of the learned circuit judge, who heard it, as follows:

“ The bill in this cause is filed by the administrator of the estate of said Alfred Emmons, deceased, to subject certain real estate (owned by said Emmons at his decease) to the payment of his debts, as allowed against his estate; there being no personal estate with which to pay said debts. The said Alfred Emmons died on, to wit, the 7th day of June, 1907, intestate, and up to that time was the owner in fee of the east half of the west half of the southwest quarter of section 14, township 4 north, of range 12 west, Allegan county, Mich.’ Afterward, to wit, on the 27th day of January, 1908, the probate court of Allegan county duly appointed the said John A. Beamer administrator of the estate of said Emmons, deceased, who accepted the trust, filed his bond, and received letters of administration of said estate. An inventory and appraisal of said estate was duly made; and the appraisal of said real estate was $3,000, and personal was appraised at the sum of $211. Afterward the widow’s statutory allowance set off to her by the probate court, to wit, $300, and allowance to the said widow of $3 per week for the time of one year. This last amount has not been paid. The said Alfred Emmons, at the time of his decease, left a widow, Emily E. B. Emmons, him surviving, and three daughters by a former marriage, whose names are as follows [defendants herein] : Lydia J. Morehead, Esther Ann Bisbee, and Lillie E. Parsons. Commissioners on claims were duly appointed by the probate court, and claims were allowed by them to one Oscar Douglas for the sum of $54.35, and to Emily E. B. Emmons one claim of $65.85, and another claim of $916.57. After the allowance of the said claims by the commissioners, the above-named three daughters, heirs at law of said deceased, appealed from the allowance of the claim of $916.57, aforesaid, to the circuit court for the county of Allegan, which said appeal afterwards came on to be heard before the court without a jury; and, upon such hearing and trial, a verdict was rendered on such claim and appeal by the said court at the sum of $600, and interest at five per cent, from June, 1907. This verdict and judgment now referred to is reported back to the said probate court; the claim aforesaid was the amount found by the circuit court, not having been paid, and no assets available for the payment thereof, except the said land, and the said Alfred Emmons in his lifetime having made a warranty deed thereof to these defendants in this cause, to take effect at his death. The bill in this case was filed to set the same aside to the effect of having the said land subjected to the payment of said claims. The bill was filed under C. L. 1897, § 9363.
“This cause came on to be heard before the court on the issue joined herein, and proofs taken in open court. Proofs of the files and proceedings in the probate court in said estate offered and received in evidence, and from which it appears that on, to wit, the 10th day of March, 1910, the aforesaid John A. Beamer deceased, and petition for administrator de bonis non was filed, and Ransom J. Barris was duly appointed as such by the probate court on, to wit, the 7th day of June, 1910. Oral proofs were also offered on the hearing herein by both parties. From the evidence produced in the hearing, it appears that no assets, except as shown by original warrant and inventory and appraisal, ever came into the hands of John A. Beamer, as administrator of said estate, or into the hands of the said Ransom J. Barris, as administrator de bonis non of said estate. And the only available assets of said estate to pay the claims against it, and which are still unpaid, is the said land in question, which is embraced in said deed and running to the defendants in this case. I also find from the proofs that the said deed, so given by Alfred Emmons to defendants, was voluntary on his part, and no consideration therefor was paid by the grantees therein named, nor either of them. The said land, as shown by the proofs in the case, is of the value of from $2,500 to $3,000, and is the homestead of the widow, the said Emily E. B. Emmons, and was the homestead of the said Alfred Emmons at the time of his death. In consideration of the foregoing, I am of the opinion that the said deed be set aside for the purpose of subjecting the said land to the payment of the said debts against the estate, subject, however, to the right of said defendants to pay the said claims and the costs of the proceedings in the probate court and in the circuit court upon said appeal from commissioners’ findings aforesaid, and, upon such payment, to retain the land in accordance with the- terms of said deed. A decree may be prepared in accordance with this finding, for signature. It is suggested that the later papers be entitled in the name of the administrator de bonis non”

A decree having been entered in favor of complainant, defendants (other than Emily E. B. Emmons, against whom the bill was taken as confessed) have appealed.

Appellants first urge that the deed was made for a valuable consideration as to defendant Emily E. B. Emmons, and as to her it operated as a payment on the indebtedness to her; and, as it was in value greater than the amount of the indebtedness, such indebtedness was thereby paid in full. The deed itself does not indicate that it was made in consideration of the debt then owing from Emmons to his wife. Her testimony negatives the assumption, and the circuit judge found the contrary to be the fact. It is clear from the record that the deed was not delivered during the lifetime of the grantor.

It is next claimed by appellants that the deed was not void or voidable as to creditors, as it conveyed to the only creditor then existing an interest in land, in value equal to, or greater than, the amount of the debt. This is simply-stating the first proposition in a different way.

The deed speaks from the time of delivery. At that time, Mrs. Emmons was not the sole creditor of the estate. But, aside from this consideration, the position of appellants is fully met by the statement that the deed was a voluntary conveyance, without consideration.

Appellants say that, because Mrs. Emmons caused the deed to be recorded shortly after the death of her husband, she should now be held to be estopped to deny its validity. Appellants fail to point out how their conduct has been influenced through reliance upon this act of Mrs. Emmons. Her own conduct, after the deed was recorded, was the same as it would have been had the deed not been recorded.

As grantee of a life estate under the deed, she was entitled to possession of the description conveyed. As widow of Alfred Emmons (in the absence of the deed), she was still entitled to occupy the premises until some steps were taken to assign her dower. 3 Comp. Laws, § 8929 (4 How. Stat. [2d Ed.] §10921); Benedict v. Beurmann, 90 Mich. 396, 402 (51 N. W. 461).

In this proceeding, however, Mrs. Emmons is neither asserting nor denying the validity of the instrument. The suit is brought by the administrator, who finds that there are debts of the estate which he is unable to satisfy without having recourse to this piece of real estate. The attitude of Mrs. Emmons is not important, and the fact that she happens to be the principal creditor of the estate has no bearing upon the rights or duties of complainant in the premises. If, however, the whole proceeding be considered as one taken in the interest of the widow, we see nothing calling for criticism in her course. She has a legal right to repudiate the deed (if she can do so) and to stand upon her rights as a creditor and as a widow entitled to her statutory, rights.

It is said by appellants that the claim of Mrs. Emmons was proved by a fraud on the estate. We think that question is foreclosed. She filed her claim before the commissioners on claims, where it was allowed at a certain sum. Her stepchildren (appellants here) appealed from such allowance to the circuit court, where the claim was reduced and allowed. No appeal from that judgment has been taken. Presumably appellants interposed their defense of fraud in the suit at law. At any rate, they had the opportunity so to do, and must now be held bound by the judgment. Moreover, this record contains no testimony tending to cast doubt upon the righteousness of that judgment.

The judgment is affirmed, with costs of both courts.

Steers, C. J., and Moore, MoAlvay, Kuhn, Stone, and Bird, JJ., concurred.

Ostrander, J.

(concurring). The statute which is supposed to give the complainant administrator the authority to institute the present suit is 3 Comp. Laws, § 9363 (4 How. Stat. [2d Ed.] § 11074). The deed which he seeks to have set aside evidences, and all parties seem agreed upon this point, a testamentary disposition of property. With some hesitation, I have reached the conclusion that because the conveyance is a deed in form, and has been recorded as such, it may be said that the case is brought within that provision of the statute reading:

“ Shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors.”

Every testamentary disposition of property is subject to the rights of creditors, although, if made by a last will, no one would suppose that it, or the probate of it, is subject to be set aside, as to creditors, by a decree in chancery. The rights of beneficiaries named in the will are simply postponed, in the settlement of the estate, to the rights of creditors. But in this case the deed, as a deed, is an apparent conveyance of the decedent’s entire estate, and no sale of the premises can be made while the deed and the record thereof are in existence. For this reason, I think the proceeding may be treated as a proper one.

In such cases, deeds are not set aside if the administrator is furnished funds with which to pay claims and expenses. The decree appealed from provides that no sale shall be made if funds are so furnished. It was proper, therefore, that claims not admitted should be proved, so that the extent of the provision, necessary to be made to avert a sale by the administrator, might be known. The largest, and only considerable, claim proven is presented by the widow, presented as a demand for more than $1,400, and allowed at $600. It is a contention of the heirs that the provision made for the widow in the deed made by the decedent was intended to be, and in law is, a payment or satisfaction of her claim; that, having herself caused the deed to be recorded after the death of her husband, she is in the position of one accepting the testamentary provision; that the administrator may not include the amount of her demand, as allowed, in the total of the unpaid debts of the estate.

It appears that her husband’s debt to her was incurred soon after their marriage, and before the deed was executed, and was for money; that the husband had then and thereafter no other real estate than that described in the said conveyance. The general rule is:

“ If one, being indebted to another in a sum of money, does by his will give him a sum of money as great as, or greater than, the debt, without taking any notice at all of the debt, this shall nevertheless be in satisfaction of the debt, so that he shall not have both the debt and the legacy.”

See the rule and its exceptions stated, with citation of authorities, in Snell’s Principles of Equity, p. 194 et seq.j 2 Story’s Equity Jurisprudence (13th Ed.), § 1122. The rule was asserted by counsel, and to some extent applied by the court in Rubert v. Rubert, 126 Mich. 589 (85 N. W. 1118).

The question is whether the rule has any application to the facts in this case. There is the further question whether, independent of the rule, it can be said that the deed was made and accepted in satisfaction of the debt. See Lapham v. Lacy, 161 Mich. 176 (125 N. W. 738); McNamara v. Trust Co., 148 Mich. 346 (111 N. W. 1066); same case, 155 Mich. 585 (119 N. W. 1074). The rule has no application, because the testamentary disposition considered is not of a sum of money, not of the same nature as the debt, nor is it certain in its value. And the testimony (that of the wife concerning communications made by her to her husband, and by him to her, being excluded) does not lead to the conclusion that there was any promise to pay the debt by the interest conveyed by the deed, nor an acceptance of such interest as a payment.

I therefore concur in affirming the decree.


author: Brooke, J.

text:
    STURGIS v. STURGIS.
    Divorce — Alimony.
    A decree of divorce, on the ground of extreme cruelty, in favor of defendant husband, is affirmed on a consideration of the facts by an evenly divided court.
    Steers, C. J., andMoALVAY, Brooke, and Stone, JJ., dissenting.
    Appeal from Calhoun; North, J.
    Submitted October 15,1912.
    (Docket No. 65.)
    Decided February 18, 1913.
    Bill by Flora R. Sturgis against Joseph Sturgis for divorce. Defendant filed a cross-bill. From a decree awarding defendant a divorce and adjusting property matters, defendant appeals.
    Affirmed.

      J. M. Hatch & Sons, for complainant.

      Winsor & Miller, for defendant.
   Brooke, J.

(dissenting). The decree of divorce in this case marks the wreck of the fifth matrimonial venture of defendant. His first alliance was severed by death; the last four through the medium of the divorce court. The first wife died in the year 1900, since which time defendant seems to have acquired the habit of marrying women with whom he had, at the time, very little acquaintance, and of whose antecedents he was wholly ignorant. Having learned after marriage in each case that the union proved unsatisfactory, defendant seems to have experienced as little difficulty in legally ridding himself of his wives as he did in acquiring them. While he was engaged in eliminating the fourth, the complainant, a widow of 40, moved to sympathy by a harrowing newspaper account of defendant’s marital misfortunes, wrote a letter to him, and shortly thereafter followed her letter in person. She went to his home and acted as his housekeeper for some weeks prior to his then pending release. This propinquity seems to have been sufficient to engage the attention of defendant, and the expiring flame of connubial bliss was again lighted upon the somewhat battered altar of his heart. This result was doubtless induced, or at least accelerated, by the fact that the complainant represented herself to be a woman of considerable financial substance, and was able, through the possession of a little ready money, to finance the then pending divorce. That divorce was secured by defendant through the payment by him to wife No. 4 of $200, upon condition that she should not appear and contest the granting of a decree to him. In that proceeding, defendant was undoubtedly guilty of a fraud upon the court, and complainant not only had knowledge of that fraud, but actually furnished the money, the payment of which made its perpetration possible.

As a part of the antenuptial arrangement, defendant agreed to deed to complainant 80 acres of his 160-acre farm. This he did a few days after the marriage, which was solemnized but two days after the decree of divorce was signed. As might have been expected from the preliminaries, trouble soon appeared. Complainant rapidly developed a peculiarly aggravated case of jealousy, the symptomatic evidences of which were visited upon defendant in the form of reproaches, criminations, and unreasonable demands. Complainant’s attitude was perhaps not wholly inexcusable, when defendant’s past record for facile accomplishment with the gentler sex is considered. Naturally, however, defendant was unable to attain the viewpoint of complainant, and the result was inevitable. Verbal assault finally ripened into physical violence. But a single instance of the latter is detailed in the record; each party claiming that the other was the aggressor.

The court below found that complainant had failed to make out a case of extreme cruelty against defendant, but was of . opinion that complainant’s conduct, in charging defendant with improper conduct in connection with the family of a neighbor, and strenuously insisting that defendant cease all relations with that family, was such as to warrant a decree in favor of defendant upon the ground of extreme cruelty. The decree likewise provided that complainant should retain the 80 acres deeded to her by defendant, charged, as between herself and her husband, with $800 of the mortgage for $2,200; the balance thereof to be a lien on defendant’s 80 acres.

Both parties filed claims of appeal. Complainant has evidently abandoned her appeal, as her counsel, in his brief, now asks that the decree be affirmed. She is as anxious to be rid of defendant as he is to be rid of her; and the important fact that she is permitted, by the decree, to retain the farm is apparently held by her to compensate for the unimportant fact that the decree of divorce runs in defendant’s favor rather than in her own. Defendant complains only of that portion of the decree which confirms in complainant the title to one-half of his farm. We agree with the learned circuit judge in holding that complainant failed to make out a case for relief; but we are compelled to disagree with him in his determination that defendant, as cross-complainant, under the proofs in this record, has established his right to a decree against his wife upon the ground of extreme cruelty.

In determining whether a case of extreme cruelty is made out, the ways of life, habits of speech, degree of refinement, and history of character, as disclosed by the record, should be carefully considered. Kline v. Kline, 50 Mich. 438 (15 N. W. 541). In Bennett v. Bennett, 24 Mich. 482, this court said:

“Profane, obscene, and insulting language, habitually indulged towards a person of a sensitive nature and refined feelings, may doubtless, in some cases, amount to extreme cruelty, as intimated in Briggs v. Briggs, 20 Mich. 34. But this, as a general rule, would be more readily recognized, when used by the husband to the wife, than by the wife to the husband.
“ In the present case, we see no evidence that complainant was a person of such sensitive nature and refined feelings as would be likely to be affected to the degree of extreme cruelty by any such language as the wife is shown to have used.”

Applying these principles to the case at bar, we are not able to say that the acrimonious accusations of complainant, when applied to defendant, were sufficient to constitute “extreme cruelty” within the true meaning of that statutory term, as defined by this court. While the palpable misconduct of the defendant in securing his divorce from wife No. 4 cannot be considered as a basis for denying him relief in this suit, it serves as an illuminating incident which, together with his past history, demonstrates that he is not a man of such refinement, high character, and blameless life as would be likely to suffer appreciably from the conduct of his wife, even if (in this instance) her strictures upon his conduct were without warrant.

Both the bill of complaint and the cross-bill should be dismissed.

Steere, C. J., and McAlvay and Stone, JJ., concurred with Brooke, J.

Ostrander, J. The printed record contains no evidence that complainant appeals from the decree. But one claim of appeal appears, and that is filed by defendant. In the brief, complainant asks that the decree be affirmed. In defendant’s brief, it is said that the relief desired is a modification of the decree, which will restore to him 80 acres of land which, after the marriage, he conveyed to complainant. It appears, therefore, that neither party attacks the decree for a divorce. This being so, I am of opinion that this court should decline to examine into, modify, or change the decree for divorce. It should be affirmed. Hoff v. Hoff, 48 Mich. 281 (12 N. W. 160).

Without discussing the question (not raised by counsel) of the jurisdiction of the court in a divorce proceeding, upon the prayer of the defendant husband in his cross-bill, to set aside a conveyance of land made by him to his wife after the marriage, we decline to disturb the decree below, which refused the relief. The complainant wife asked for alimony. The court below inquired about the property of the parties, apportioned the mortgage debt upon the lands between them, held a lease of the land in question, to defendant, to be valid, confirmed defendant’s right to certain personal property, returned to defendant, in the form of a credit, the temporary alimony which he had paid to complainant, and refused costs to either party. None of these provisions are complained about, except the one refusing to set aside the conveyance. Assuming that the court had the power to set aside and cancel the conveyance, I am not convinced that it ought to have done so, or that the provisions concerning property should be disturbed.

The decree will be affirmed; complainant and appellee to recover from defendant her costs of this appeal.

Moore, Kuhn, and Bird, JJ., concurred with Ostrander, J.


author: Steere, C. J.

text:
    McNAMARA v. KENT CIRCUIT JUDGE.
    1. Appeal and Error — Settlement op Record — Extension op Time.
    Where relator’s bill came on to be heard on an answer of one, defendant containing a plea in abatement, and a demurrer of another, and was dismissed because complainant’s testimony showed that she was not entitled to any relief in equity, and for other legal objections based on the averments of the bill, she could not dismiss the suit as to the demurring defendant, more than ninety days after the order was entered, without his consent; nor was she entitled to have a record of the testimony settled as to the other defendant where no extension of time was secured, although notice of settlement was served before the expiration of the statutory period, the return of the circuit court showing that the record was not presented to him for settlement because complainant’s counsel conceded that he would have to procure an extension of the time.
    2. Mandamus — Answer—Conolusiveness.
    The relator in mandamus may not question the correctness of statements contained in the respondent’s return in a proceeding heard on petition and answer.
    Mandamus by Mary McNamara against John S. McDonald, judge of the circuit court for the county of Kent, to compel respondent to settle a record of the testimony taken in a suit in which relator was complainant and James McNamara and others were defendants.
    Submitted January 7, 1913.
    (Calendar No. 25,374.)
    Writ denied February 18, 1913.

      Mary McNamara, in pro. per.

      Thos. P. Bradfield, for respondent.
   Steere, C. J.

This case is presented on the hearing of an order to show cause why this court should not award a mandamus to compel the Kent county circuit judge to sign a “proposed bill of exceptions,” or case for settlement on appeal, and the amendments thereto, tendered to him in a chancery suit theretofore heard between said Mary McNamara, as complainant, and James McNamara, Margaret McNamara, and Francis W. Balcomb, defendants.

In said chancery suit defendant Margaret McNamara filed an answer to complainant’s bill, containing pleas in abatement, and defendant Balcomb demurred to said bill. A hearing being had thereon, defendants’ contentions were sustained, and the bill of complaint was dismissed.

The facts on which Margaret McNamara’s pleas were based not all appearing in the bill of complaint, testimony was heard as to such facts, and numerous court records and files were introduced in evidence. At this hearing the complainant was also sworn and testified.

In his return to the order to show cause herein, respondent states that, “ in addition to all legal reasons why the bill would have been dismissed, she did not relate a story which, even if true, would entitle her to any relief whatever upon her bill;” that he then so stated, and deprecated any proceedings prolonging the protracted litigation involving the matters in relation to which her bill was filed. Respondent further returns that the order dismissing complainant’s bill was filed on May 3, 1912; that on August 2,1912, complainant filed a motion to dismiss the bill of complaint as to defendant Balcomb, who resides in Chicago, 111.; that said motion was noticed for August 5, 1912, and was not a valid notice under the rule; that said motion to dismiss was heard August 10, 1912, at which time a letter from said Balcomb was presented to the court, objecting to the bill being dismissed as to him, and giving his reasons therefor; that in the opinion of the court the motion to dismiss was not made in good faith or legal form; that it was not filed until 91 days after entry of final decree, and was denied.

What story complainant related, when giving her testimony at the hearing on the pleas and demurrer, we are not advised; but it would seem strange if there was anything to relate which she had not already told upon the subject-matter of this prolonged litigation over the estate of Mary McNamara, deceased, which has already been before this court on four separate occasions in the cases of In re McNamara's Estate, 148 Mich. 346 (111 N. W. 1066), Id., 155 Mich. 585 (119 N. W. 1074), Michigan Trust Co. v. McNamara, 165 Mich. 200 (130 N. W. 653, 37 L. R. A. [N. S.] 986), and In re McNamara's Estate, 167 Mich. 406 (132 N. W. 1078).

Mary McNamara, deceased, a resident of Grand Rapids, Mich., and a distant relative of relator, died in February, 1904. She left an estate having an appraised valuation of $55,050. She had been a widow many years, and some time after the death of her husband, relator, a young woman recently from Ireland, where she had been engaged in teaching on a salary of $30 a year and her board, went to live with deceased in 1885, and continued with her until the time of her death. During her lifetime the deceased, Mary McNamara, deeded to relator two houses and lots, valued at $6,000, the deed to take effect at the time of the death of said Mary McNamara, the elder. After her death relator filed a claim in the probate court of Kent county against the estate of said deceased, claiming the sum of $30,000 due to her for personal services and attention, and assistance in caring for deceased’s business during the years relator lived with her.

After protracted litigation in the probate, circuit, and this court, relator recovered the sum of $11,240, in addition to the real estate deeded to her. On the trial of the cause in which she recovered that amount, it was her contention that deceased had entered into an agreement with her that if claimant would remain with deceased and care for her, look after her personally, and attend to the household duties and business matters, she would pay claimant well and liberally for her services out of decedent’s estate remaining at the time of her death, and that the same would be sufficient to keep claimant well during the balance of her life. That issue being submitted by a special question to the jury which heard the case, they answered in the negative, and found that no such agreement was entered into. The question of the actual value of her services while with deceased was, however, submitted to the jury by the court; and they fixed the same at $17,240, deducting therefrom, by direction of the court, the value of the real estate which had been deeded to her, appraised by agreement at $6,000. In affirming that case this court said:

“The case made by the record shows that a young woman was taken into a comfortable home of a distant relative, where she was treated as a member of the family, and, in return for her services, was furnished a home, including her board and clothing, and for her services at the end of 18 years, in addition to the home which had been furnished her, she finds herself in possession of a fortune of $17,242. If any one has just occasion to complain of the result of this litigation, it is not the claimant.” [155 Mich. 592 (119 N. W. 1076.)]

After the last-mentioned case was disposed of in this court, relator refused to accept the judgment, and other litigation followed. The money was finally paid to the register of the court by the administrator of the estate of deceased.

The heirs of Mary McNamara, deceased, as adjudicated by the various courts before whom the litigation was brought, are Thomas McMahon, Arthur McNamara, and James McNamara.- Arthur McNamara has since died, and Margaret McNamara is his executrix and the beneficiary under his will. James McNamara, named as defendant in the chancery suit in question, is the father of relator. Francis W. Balcomb, named also as a defendant in said suit, was formerly one of James McNamara’s attorneys, and had foreclosed a mortgage against James McNamara’s interest in the estate of said Mary McNamara, deceased, and purchased the same at foreclosure sale in the United States district court. The said James McNamara, who was made one of the defendants, and who is represented by counsel in a stipulation filed in the case, never formally appeared; nor has he been in any way defaulted for nonappearance or otherwise.

It is relator’s claim that her “bill of exceptions” was complete and ready for settlement, and duly noticed for settlement on the solicitors of Margaret McNamara, at the time relator’s counsel appeared before respondent on August 10, 1912, at the hearing of the motion to dismiss as against defendant Balcomb, the settling of said bill having been set for the same time as the argument of said motion; and that it was relator’s right to have said bill settled as to defendant Margaret McNamara, irrespective of what disposition was made of said motion to dismiss.

Relator was the only complainant in said chancery suit. Of the three defendants one had not formally entered his appearance, pleaded, or been defaulted. A final decree had been entered in favor of the other two. Notice of settlement of the bill had, at most, been legally served only upon one. She could not dismiss her suit as to defendant Balcomb after a deeree in his favor had become absolute, without his consent; but beyond that respondent returns as to the proceedings had before him on August 10, 1912, and the proposed case claimed to have been presented to him for settlement, as follows:

“That when the motion and petition to dismiss as to Francis W. Balcomb came on to be heard on August 10, 1912, it was admitted and understood, both by the court and by the attorney for Mary McNamara, that, unless the motion to dismiss as to Francis W. Balcomb was granted, the bill of exceptions was not properly before the court for settlement and signature, first, because the 90 days given by the statute and rule had expired; second, because the proposed transcript had not been served upon defendant Balcomb as required by the rule; and, third, because no notice of the proposed settlement had ever been served upon_defendant Francis W. Balcomb under the rule. That therefore, when this respondent indicated that the motion to dismiss as to defendant Francis W. Balcomb was denied, the attorney for Mary McNamara stated that he had the bill of exceptions there, but that he supposed he would have to get further time in order to get the same regularly before the court to be settled and signed. I stated that I did not like to rule upon a motion before it was made, but that he knew what my feeling about this case was; that I felt that I would not be justified, under the circumstances, in doing anything which would permit or enable the petitioner to continue this ill-advised litigation. No motion for an extension of time to settle the case on appeal was ever made, and the bill of exceptions or transcript was therefore never presented to me for settlement and signature for the three reasons I have stated, which were understood and agreed upon by counsel for both parties. In answer to paragraph 6 of the petition, this respondent says that he never refused to sign the proposed bill of exceptions for the reasons stated in the last paragraph, and that the same was never presented to him for settlement and signature.”

Though relator seeks to question the correctness of certain statements appearing in this portion of the return, the rule is too well settled to be open to debate that, where the proceedings are heard on petition and answer, as is the case here, respondent’s answer is conclusive, and must be taken as true. 2 Stevens’ Michigan Practice, § 467, and cases there cited. Being so taken, it follows that relator’s petition must be denied, with costs.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.