text:
    PIONEER IRON CO. v. CITY OF NEGAUNEE.

    1. Municipal Corporations — Taxing Districts — Legislative Discretion — Review.
    The fixing of city limits and taxing districts is within the legislative discretion, and the determination of the legislature in relation thereto will not be disturbed by the courts.
    2. Taxation — Fraud—Evidence.
    Complainants filed a bill to restrain the collection of certain taxes against their lands, alleging a willful and fraudulent overvaluation of the same by the assessor and board of review. It appeared from the evidence that the lands were located in a mineral belt, near to developed mines, which had a large output, and that the assessment in question was made against them as mineral lands, instead of as wild lands, as had theretofore been the custom. The assessor and the several members of the board, who had some knowledge of mining and mineral lands, testified that they acted honestly and fairly in the discharge of their duties, and used their best judgment in fixing the valuations; and the opinions of other witnesses as to the value of the lands were conflicting. Complainants were heard at length before the board, but offered no affidavits or sworn witnesses. Held, that a finding that the allegations of fraud were not established was warranted.
    3. Same — Board of Review — Finality of Judgment.
    Under Act No. 206, Pub. Acts 1893, § 76, subd. 5, providing that taxes may be held illegal if the supervisor or board of review acted fraudulently, the action of the board, where fraud is alleged, is reviewable in the courts.
    Appeal from Marquette; Stone, J.
    Submitted January 27, 1898.
    Decided March 29, 1898.
    Bill by the Pioneer Iron Company and the Arctic Iron Company against the city of Negaunee and others to restrain the collection of taxes. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Hayden & Young (W. P. Healy, of counsel), for complainants.

      P. A. Bell (Clark & Pearl, of counsel), for defendants.

       Rehearing denied October 3, 1898.

   Moore, J.

The learned judge before whom the case was tried has so clearly stated the questions involved in the written opinion which he filed that I. quote it here:

“The bill of complaint in this case states that the complainants are the owners of the lands described in paragraph 6; that they are situated within the corporate limits of the city of Negaunee; that said lands are for the most part, and always have been, wild and barren, and for many years have been denuded of timber, and lie for the most part at a long distance from any settled or platted portion of said city, and have never been platted; nor have any municipal improvements or charges thereof, such as streets, sewers, lights, police or fire protection, waterworks, or other like improvements, charges, advantages, or benefit, for which money is usually expended in cities, and for which money.is and has been expended in Negaunee, and is now being expended, ever been asked for, contemplated, or proposed for the improvement of or benefit to such lands; nor are such lands in such locality, with reference to the platted or populated portion of said city, that they can receive now, or at any time in the future, any benefit or advantage from the expenditure of money in said city for said purposes.
“That, in the spring of 1896, the assessor of said city, and the common council, acting as a board of review, placed and fixed the valuations of complainants’ lands at the several sums and values for each parcel as they appear in said paragraph 6. The bill then proceeds to state the amount of taxes for the different purposes levied in the city to be $57,827.21, and that the total valuation of all the property in said city, as appears by the tax roll, is $1,500,000, and that the city has prepared and placed in the hands of its treasurer its said tax roll for said year, in and by which it has assessed and levied upon the lands of complainants for all said purposes, as stated in said paragraph 6, $3,858.78, upon a valuation fixed at $99,800; that, after the assessment roll of said city had been completed by its assessor, complainants applied to the assessor and the city recorder and the mayor, and to every person who would be likely to have possession of said assessment roll, for an opportunity to ascertain the valuations placed upon the lands of complainants, but were refused permission to see said assessment roll, and were refused likewise knowledge of valuations so placed thereon, upon complainants’ lands; that such refusal upon the part of said city was willful, fraudulent, and wrongful as against the rights of complainants, and prevented them from making a proper showing before said board of review upon'the valuations placed upon said assessment roll by the assessor.
“That in the month of July, 1896, the said board of review wrongfully refused to give complainants sufficient opportunity to show to said board of review that said assessments so made by the assessor were grossly in excess of the true cash value of said lands, and that they were assessed relatively much higher than other similar lands of like value in said city, though complainants attempted and requested permission so to do, and that complainants were practically deprived of their day in court thereon, before said board of review, without any fault or neglect on the part of complainants.
‘ ‘ That the values so placed upon complainants’ said lands are grossly excessive; that they are greatly in excess of the true cash value of said lands, and are from ten to twenty times greater than values put upon said roll for other lands of like or similar value in said city belonging to other persons, residents of said city, and that they are willfully, fraudulently, and maliciously so unéqually assessed; that said assessor, in placing values upon said lands, acted willfully, fraudulently, and maliciously, with an intention to injure complainants thereby, in placing said values grossly in excess of the actual value of said lands, and grossly in excess of the values upon property of like or similar value in said city, owned by residents thereof, and were so willfully, fraudulently, and maliciously-fixed by said assessor for the purpose of making complainants pay more than their just proportion of taxes legally leviable on property in said city for the year 1896, and that said assessor did not place said lands upon said assessment roll at their true cash value, nor relatively at their true cash value, according to his best judgment and belief, but conspired with others thereabout to injure and defraud complainants; that said board of review, in its conduct thereinbefore set forth, and in finally fixing said values, and in refusing complainants sufficient hearing thereon, and in refusing to reduce said values, as requested by complainants, did not use their best judgment thereon, but acted willfully and fraudulently, and with an intention to require complainants to pay more than their just proportion of the taxes legally leviable in said city, and that said values as so levied and fixed by said assessor and board of review are willfully unequal, fraudulent, and void.
“That the highway, fire-department, city, and special taxes are assessed and levied for purely private purposes in the resident portion of said city, and are purely local; that the incorporation of complainants’ said lands within the limits of said city for the purposes aforesaid was and is a fraud upon complainants’ rights.
‘ ‘ Complainants offer to pay their taxes, assessed upon a proportionate valuation.
“The bill claims that, for the reasons stated, the taxes so levied are fraudulent and void, and constitute an apparent incumbrance and cloud upon complainants’ title; and they ask to have them declared such cloud, and removed, and the collection thereof restrained. The answers deny the substantial allegations of the bill in so far as the over valuations and assessments of complainants’ lands are concerned. The case, being at issue, was heard upon the pleadings, and the testimony taken in open court.
“The right to levy a tax upon .these lands for general city purposes having been sustained in the recent case of Mitchell v. City of Negaunee, 113 Mich. 359, by the Supreme Court, it will not be necessary for this court to spend any time upon that question.
‘ ‘ There was no evidence offered tending to show that the incorporation of complainants’ lands within the city limits was fraudulent, and that subject may also be dismissed from consideration.
“ The complainants complain that they did not have such an opportunity to examine the roll as the law contemplates. It is very clear that the taxpayer, under our statutes, must be allowed, at some time before the assessment roll is fully completed, the opportunity of seeing what assessments have been made against his property, and the privilege of showing that the proposed assessment is, for any cause, illegal or unjust. Woodman v. Auditor General, 52 Mich. 28. This opportunity is given at the meeting of the board of review. Under the charter of Negaunee, this board is composed of the common council. Act No. 288, Local Acts 1895, chap. 8, §§ 2, 3. Its first meetings are on the second Monday of July, and on the day following; and the board is required to proceed to review and examine the roll in accordance with the provisions of the general laws of the State. Turning to the general laws (Act No. 206, Pub. Acts 1893, § 29), we find that at this meeting the assessor is required to submit his roll to the board, and the board shall proceed to examine and review the same; and during that day, and the day following, if necessary, said board, of its own motion, or on sufficient cause being shown by any person, shall add to said roll the names of persons, the value of personal property, and the description and value of real property liable to assessment, omitted from such assessment roll. They shall correct all errors in the names of persons,* in the descriptions of property upon such roll, and in the assessment and valuation of property thereon. The board is required to pass upon each valuation and each interest, and shall enter the valuation of each, as fixed bj^ it, in a separate column. It is evident that it was the intention of the legislature to allow the board, at this first meeting, to perfect the roll by a thorough inspection of it, and for that purpose the board has the right to use and control the roll. This right must, however, be exercised in a reasonable manner; and no taxpayer should be precluded from a reasonable inspection of the roll, even at this meeting, where it can be done without interfering with the work of the board. At the second meeting of the board, it shall, at the request of any person whose property is assessed thereon, or of his agent, and on sufficient cause shown, correct the assessment as to such property, in such manner as, in their judgment, will make the valuation thereof relatively just and equal To that end, said board may examine on oath the person making such application, or any other person, touching the matter. After hearing the evidence in this case upon the subject, I cannot say that the complainants did not have a reasonable opportunity to examine the assessment roll. They were heard at considerable length. Many motions to reduce were made and acted upon. In some instances the motion to reduce prevailed, and in some instances it was lost. The complainants did not see fit to offer any evidence before the board, but contented themselves with arguments and protestations. The last afternoon and evening sessions were devoted to them, and it seems to me that it cannot be said that they did not have their day in court.
“This brings us to the last, and, in my mind, the most important, question in the case: Were the assessments and valuations of the complainants’ lands willfully unjust and fraudulent ? The ascertainment of the value of taxable property is judicial, and requires the judgment of the assessor under his official oath. Wall v. Trumbull, 16 Mich. 236; Woodman v. Auditor General, 52 Mich. 28. The same may be said of the duty of the board of review. The law imposes this duty upon those officers; and if they act in good faith, and exercise their best judgment, mere errors in judgment will not defeat their action. The bill is very plain; and in explicit terms charges these officers not only with unfairness, but with fraud. The burden of proof is on complainants to sustain those charges by a fair preponderance of evidence. Cooley, Tax’n (2d Ed.), 784. It is undoubtedly the law that inequalities in valuation, fixed by design, or effected by resentment, cupidity, or malice, so that'the exercise of proper judgment has been departed from, render an assessment void. Merrill v. Humphrey, 24 Mich. 170. This case was before the Supreme Court upon appeal from a decree overruling a demurrer to the bill; and, no evidence having been taken, the discussion is on the allegations of the bill, which were, of course, taken as true. In Walsh v. King, 74 Mich. 350, a bill was 'filed to cancel taxes. The bill was demurred to, and the demurrer was sustained at the circuit, and an appeal was taken from this decree. It was held that where assessing officers, by agreement with the owners of a certain class of property, assess the same at less than its cash value, a taxpayer whose taxes are thereby increased is entitled to relief in equity, and to such a reduction of his taxes as will make his burden of taxation no greater than if said property had been assessed at its fair cash value. The court said: ‘This is not a case where the assessing officers, in the exercise of their judgment, have made an honest mistake, but the undervaluation of this property was deliberate, and the result of an agreement, which was fraudulent in law, if not in fact. * * * Fraud is ever open to remedy in a court of equity, and there can exist no good reason why relief against fraud in taxation, which in the end deprives a man of his property without due process of law, cannot be granted, ■ as well as against any other fraud.’ To the same effect are the following cases: Solomon v. Township of Oscoda, 77 Mich. 305; Auditor General v. Jenkinson, 90 Mich. 523; Auditor General v. Prescott, 94 Mich. 190. In these cases there was either an intentional undervaluation, overvaluation, or omission of property. There was no exercise of that-judgment by the officers which the law contemplates. There was intentional favoritism, and, as was said by the court in Merrill v. Humphrey, supra, ‘ any intentional favoritism, even though from motives of public interest, if without express authority of law, will render the tax proceedings void.’ .
“The complainants claim to have brought their case within the rules above stated. Have they done so by the evidence? They charge fraud and favoritism, and a scheme on the part of the assessing officers and others to place an unjust and unequal burden upon the complainants. The defendants, upon the other hand, insist that the assessing officers acted in accordance with their best judgment; that for years the property of the complainants had been assessed and valued on the rolls too low, and that complainants had not prior to 1896 borne their just burden of taxation; that, owing to the depression in the iron and general business in the city of Negaunee and vicinity, the value of residence and business property, including the operating mines, had greatly depreciated in value, and that in the assessment of 1896 these facts were all taken into consideration, and while it resulted in raising the valuation of some of the complainants’ lands, and lowering that of others, yet that the officers, assessor and board of review, acted fairly, honestly, and in good faith, and that, the duty having been placed on these officers, and they having acted in the exercise of their judgment, their action is final, and that complainants are without remedy; that, it appearing that these officers have acted in the exercise of the duty laid upon them, the subject is not within the revisory power of the court. They cite, as supporting this doctrine, McDonald v. City of Escanaba, 62 Mich. 555, and Attorney General v. Supervisors of Sanilac Co., 42 Mich. 72.
“I have no doubt that the bill of complaint states such a case as would entitle the complainants to relief, were it supported by the evidence. As stated in Cooley on Taxation (2d Ed.), at page 784: ‘A tax founded on a fraudulent assessment will be enjoined. An assessment is not fraudulent merely because of being excessive, if the assessors have not acted from improper motive; but if it is purposely made too high, through prejudice or a reckless disregard of dffiy, in opposition to what must necessarily be the judgment of all competent persons, or through the adoption of a rule which is designed to operate unequally upon a class, and to violate the constitutional rule of uniformity, the case is a plain one for the equitable remedy by injunction. So is any case in which a tax is rendered unequal or unfair by fraudulent or reckless conduct of officers, or in which the party is deprived by like practices of important rights which the law intends to secure to him; such, for instance, as the right of appeal from an assessment, or to be heard by the board of review before his assessment should be raised. But mere irregularities in the proceedings of tax officers do not make out fraud, or even give evidence of it. And fraud must be alleged and proved; all presumptions are against it.’
‘ ‘ From the evidence in this case it clearly appears that there has been much discussion and agitation in Negaunee upon the subject of the taxation of complainants’ lands and other lands of a like nature. They are located within the mineral belt, and are by many persons believed to be very valuable for mining purposes. Undoubtedly, this discussion and agitation have led the assessor and board of review to raise the valuation of these lands, in the belief that they have not heretofore borne their fair share of taxation. The newspaper and other discussions have been upon both sides of the question, and have, no doubt, at times been extreme. The evidence was conflicting as. to the actual value of this class of property. Actual sales of property similarly situated were shown to have been made for cash where prices were obtained, above the valuation fixed for assessment; notably those testified to by Samuel Mitchell and John Q. Adams. It seems to me that, although the taxing officers may have in some instances erred in judgment, yet that they honestly believed that the lands were really worth what they were assessed at, and that they acted in good faith, in the exercise of their best judgment. They have the right to consult with other citizens in arriving at the value of this property. There is no doubt of the duty of every assessing officer to inform himself, as far as he can, of the value of each parcel assessed. Sawyer-Goodman Co. v. Township of Crystal Falls, 56 Mich. 597
“ It appears that the assessing officers consulted a map or diagram of these lands, with values placed thereon by another person, and that those valuations were generally followed. Yet it is testified to that in every instance the asssesor and board exercised their best judgment, aided, no doubt, by this map and other information. Should the tax be held void for this reason ? "I think not, in view of all the evidence in the case.
“ In this case, if any relief is granted, the court must set aside the entire tax, or, do what is more difficult, fix a basis of taxation, and determine what portion of the tax levied is just. Under the evidence, I do not see my way clear to do either, and must therefore dismiss the bill, with costs to the defendants. Let a decree be prepared accordingly.”

One feature of this case was very recently decided by the court in Mitchell v. City of Negaunee, 113 Mich. 359, where it was held that the fixing of city limits and taxing districts is within the legislative discretion, and the determination of the legislature in relation thereto will not he disturbed by the courts. It is now urged by counsel that this point was not involved in the case. In this, counsel are in error. The question was discussed very fully in the briefs and in the oral arguments of the attorneys. An examination of the opinion will also show that it was not overlooked by the court; and, as to that feature of this case, the case of Mitchell v. City of Negaunee is controlling.

An examination of the record shows that most of the land described in complainants’ bill of complaint, prior to 1896, was assessed as wild land, and not as mineral land. On the roll for 1896 nearly all of these lands were assessed much higher than they had been assessed before, and in some instances many times higher. It is the claim of the assessor that prior to 1896 the lands had not been assessed at anywhere near their value, and that for 1896 they were assessed for what he honestly believed to be their cash value. He testified that he used his best judgment in fixing the valuation, after looking at the lands, considering their situation to other lands, and talking with other persons, and after using such means of getting knowledge as were available to him. The board of review was in session four days, the full time fixed by the charter. The last day its session was extended to nearly 11 o’clock in the evening, to allow the representatives of the complainants to be heard. A good share of the day was given to them. They made arguments and representations to the board, but offered no affidavits or sworn witnesses. The members of the board of review testify that, in the discharge of their duty as a board of review, they acted honestly and fairly, using their best judgment in fixing values, and that they were not actuated by any improper motives in what they did. In the trial of the chancery case, testimony was introduced varying greatly in relation to values. It was the judgment of some of the witnesses for the defendants that a portion of these lands exceeded in value the amount assessed upon the lands. Others of them thought the lands were assessed much too high. In previous years the lands had been assessed upon the basis of their value as wild lands, and for their value as it appeared on the surface- They are held by the complainants as mineral lands. They are in the iron formation, near to developed mines, which have a'large output. Men differed in judgment in relation to their value. The assessor was a man who had lived in that vicinity a great many years, and had some knowledge of mining and mineral lands. These lands were near to where the members of the board of review lived. A number of these men had some knowledge of mining and mining lands. The witnesses testified in open court. The trial judge had an opportunity to judge of their intelligence, opportunities of knowledge, and of their truthfulness. His conclusion is that complainants have not established any fraud or conspiracy upon the part of the assessing officer or the board of review. The testimony is not so overwhelming or conclusive the other way that we are led to say he erred in arriving at that conclusion.

It is urged by the defendants that the duty of reviewing the assessment is reposed in the board of review; that their action is final; and that the court will not substitute its judgment for the action of the board of review, —citing Attorney General v. Supervisors of Sanilac Co., 42 Mich. 72; McDonald v. City of Escanaba, 62 Mich. 555; Tallmadge v. Supervisors of Rensselaer Co., 21 Barb. 611; Smith v. Board of Supervisors, 30 Iowa, 531. Whatever the law may have been prior to 1893, this contention cannot now be sustained, as subdivision 5, § 76, Act No. 206, Pub. Acts 1893, expressly provides that the taxes may be held to be illegal if the supervisor or board of review acted fraudulently. Before a court would be justified in holding a tax to be illegal because the supervisor or board of review has acted fraudulently, that fact should be clearly established by the evidence. We think this has not been done.

Decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    MULLREED v. THUMB.
    1. Deeds — Construction—Intent.
    A deed, purporting to convey lands specifically described recited, immediately after the description, that the express intent of the instrument was to convey all of the grantor’s right, title, and interest in the premises “by reason of her being an heir at law of J., * * * now deceased.” It after-wards developed that the parties were mistaken in supposing that the grantor had an interest as heir of J., but that she, was entitled, as heir of B., to an interest considerably larger. Held, that the court would not subvert the clear intent of the parties by giving the deed effect as a conveyance of the entire ■ interest derived through E.

      2. Same — Reformation—Equity.
    Whether equity would so reform the deed that it should convey an interest equal to that supposed to be owned by the grantor at the time of its execution, — quaere.
    Appeal from Wayne; Hosmer, J.
    Submitted January 25, 1898.
    Decided March 29, 1898.
    Bill by George Mullreed against Anna Clark-Thumb, impleaded with Thomas P. Clark and John F. Clark, for a partition of real estate. From a decree for complainant, defendant appeals.
    Reversed.

      Walter Barlow, for complainant.

      A. F. & F. M. Freeman (B. M. Thompson, of counsel), for defendant.
   Montgomery, J.

The bill in this case was filed for partition of 100 acres of land situated in the township of Van Burén, Wayne county, Mich. The land was formerly owned by Thomas Phillips, deceased, who devised it, by the terms of his last will, to his wife, and after her death to James Phillips, his son, upon condition that said James Phillips pay to testator’s two daughters, Mary and Jane Phillips, $1,000 each, within three months after testator’s death. This money was paid by James Phillips within the time specified in the will. The will contained the further provision that, in case of death of James Phillips without heirs (meaning issue), the real estate should go to testator’s two daughters, Mary and Jane Phillips, but, in case of death of Mary or Jane without heirs (meaning issue), then their share should go to'“the other sister.” The testator’s wife died prior to his death. Thomas Phillips, the testator, died July 1, 1877; and his will was duly probated in the Wayne probate court on August 6, 1877. Mary Phillips died June 12, 1887, without issue. Jane Phillips died February 23, 1890, without issue. Elizabeth Clark, a daughter of said testator, died July 30, 1892, leaving Thomas P. Clark and John F. Clark, sons, and Jennie Clark-Mullreed and Anna Clark, daughters, her only children and heirs at law, her surviving. James Phillips died September 1?, 1893, without issue. By a decision of this court made July 21, 1896, construing the will of said Thomas Phillips, it was held that inasmuch as James Phillips, Mary Phillips, and Jane Phillips died without issue, the title to said real estate went to Elizabeth Clark, under the meaning of the words “the other sister,” contained in said will, and that her heirs and their assigns were now the owners of said land. See Mullreed v. Clark, 110 Mich. 229, 232.

Prior to the controversy over the meaning of the terms of the last will of said Thomas Phillips, deceased, Anna Clark and Jennie Clark-Mullreed exchanged real estate under the arrangement shown by their respective deeds, and the contract under which the deeds were executed. These deeds were made June 14, 1894. The deed from Anna Clark (now Anna Clark-Thumb) conveyed to Jane Mullreed (also known by the name of Jennie Clark-Mull-reed) the grantor’s interest in ‘ All those certain pieces or parcels of land situate in the township of Van Burén, Wayne county, Michigan, described as follows, to wit: The east half (-J-) of the northeast quarter (-(;) of section thirty (30), and also the west part of the southwest fractional quarter Q:) of section twenty (20), town three (3) south, of range eight (8) east, containing one hundred (100) acres of land, be the same more or less,”- — -the lands described in the bill in this cause. The deed from Jane Mullreed to Anna Clark conveyed the S. i of the W. of the W. \ of the N. W. {- of section 19, township of Bridge-water, Washtenaw county, Mich., —24 acres of land, more or less. The deed from Anna Clark conveyed abbut 25 acres of land, hers being a one-quarter interest in the 100 acres in question; and the deed from Jane Mullreed conveyed about 24 acres.

Jennie Clark-Mullreed died April 4, 1895, leaving a last will, in which George Mullreed, her husband, the complainant herein, is named as her sole legatee. Her said will has been duly probated in the Wayne probate court, and her estate closed, and the residue assigned to George Mullreed by the order of that court.

The deed from Anna Clark (now Anna Clark-Thumb) to Jennie Clark-Mullreed conveyed lands described as follows :

“The east half of the northeast quarter of section number thirty (30), containing eighty (80) acres of land, more or less, and the west, part of the southwest fractional quarter of section number twenty (20), containing twenty (20) acres of land, more or less, and all in the township of Van Burén, Wayne county, Michigan, and containing in all one hundred (100) acres of land, more or less. The express intent of this instrument being to convey unto said Jane Mullreed all the right, title, and interest of Anna Clark' in and to the above premises by reason of her being an heir at law of James Phillips, who in his lifetime was possessed of said above-described premises, and said James Phillips being now deceased.”

These deeds were not delivered at their date to the respective grantees, but were deposited with A. F. Freeman under an agreement executed by the parties contemporaneously with the execution of the deeds, which agreement recited that Mrs. Mullreed had filed a claim against the estate of James Phillips, which had been allowed before commissioners on claims; that Anna Clark claimed a right to contest the claim, and also a right to prefer a claim against the estate; that both were heirs of James Phillips, — and stated that “said Jennie Clark-Mullreed makes deed and conveyance of certain land she owns in Manchester, running to Anna Clark, to be delivered to her in case no appeal is taken from the allowance of the claim before commissioners;” “that said Anna Clark agrees to make no appeal from said claim as allowed, and executes a quitclaim deed and a bill of sale, also attached hereto, running to said Mullreed, conveying her interest and title in the real and personal estate of said James Phillips.”

Jennie Clark-Mullreed died April 4, 1895, leaving a last will, in which complainant is named as sole legatee. It would appear that both Mrs. Mullreed and Miss Clark supposed, at the date of these conveyances, that they were heirs of James Phillips, and that, as such, Miss Clark held a one-twelfth interest in the lands described in the deed to Mrs. Mullreed. It turns out that Miss Clark had no interest at all in these lands as heir to James Phillips, but that she did have a one-fourth interest as heir to her mother, Elizabeth Clark, who took under the will of Thomas Phillips. The sole question in controversy is, What passed by this deed ? Complainant contends that whatever interest Miss Clark had at the time passed. Defendant, on the other hand, insists that the deed, at the most, conveyed no greater interest than that which the parties supposed Miss Clark to possess as heir to James Phillips. Complainant contends that the description was complete without the clause declaring the intent, and invokes the rule that a deed is to be construed most strongly against the grantor, and that when a definite description is followed by other clauses of limitation, either in the habendum or otherwise, the limitations are to be disregarded. Defendant’s counsel concede that, if this limitation appeared in the habendum, it would be insufficient to limit the grant, but contend that the expression of intent should be treated as a part of the description.

The general rule is that the intention of the parties to an instrument is to be ascertained from a reading of the entire instrument.. It is true, there are other rules to be observed in ascertaining the intent from the instrument, among which is the rule that the deed is to be taken most strongly against the grantor. Another rule is that a repugnancy between different clauses of the deed must be resolved in favor of the first. This latter rule is usually invoked when there has been an attempt to limit the granting clause by the habendum, or when there is an attempt to except something specifically granted. This rule should be acted on only as a last resort, and generally the first inquiry is, What was the intention of the parties, as expressed by the instrument ? Bassett v. Budlong, 77 Mich. 338 (18 Am. St. Rep. 404). It is true that courts have in some cases subordinated this rule of construction to that which gives preference to the first expression of the grantor, and have done so in some cases at the expense of sacrificing the intent of the parties as plainly expressed. With due deference, we think this was the effect of the decision in Green Bay, etc., Canal Co. v. Hewett, 55 Wis. 96 (42 Am. Rep. 701). This court has, however, not so applied this latter rule as to subvert the intent of the parties, when plainly expressed. Bassett v. Budlong supra; Plummer v. Gould, 92 Mich. 1 (31 Am. St. Rep. 567); Powers v. Hibbard, 114 Mich. 533; Bates v. Foster, 59 Me. 157 (8 Am. Rep. 406). We think the limitation immediately following the description makes clear the intent to limit the estate conveyed to such estate as comes to the grantor as heir of James Phillips. As to whether the deed should be treated as conveying nothing, or whether it should be reformed to correct the mistake under which the parties seem to have been laboring, we cannot determine on this, issue. nAs to whether equity may afford relief in such a case, see Renard v. Clink, 91 Mich. 1 (30 Am. St. Rep. 458). If complainant so elects, the case may be remanded, with leave to amend bis bill and take further proofs upon this subject; otherwise decree will be entered here in accordance with defendant’s contention. Defendant will recover costs of this court.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. MARTIN.
    1. Trial — Instructions—Requests not Supported by Evidence.
    Where it appeared from the undisputed testimony of the prosecutrix, upon a trial for larceny, that the money alleged to have been feloniously converted by respondent was intrusted to her by the prosecutrix for the purpose of purchasing a bicycle for the prosecutrix, there was no error in a refusal to instruct the jury as to what should be their verdict in case they should find that the prosecutrix, at the time of the delivery of the money, intended to pass the title to the same.
    2. Larceny — What Constitutes — Intent.
    One who obtains money from another upon the representation that he will procure certain property therewith for the latter, intending at the time to convert the money, and actually converting it, to his own use, is guilty of larceny.
    3. New Trial — Misconduct of Jury — Hearsay.
    An application for a new trial in a criminal case, based solely upon the affidavit of counsel that a newspaper article relating to the case was read by the jury after the cause had been submitted to them, and that he had been informed by some of the jurors that such article influenced them in arriving at their verdict, is properly denied.
    Exceptions before judgment from superior court of Grand Rapids; Burlingame, J.
    Submitted January 28, 1898.
    Decided March 29, 1898.
    Isma Martin was convicted of larceny.
    Affirmed.

      McKnight & McAllister, for appellant.

      Fred A. Maynard, Attorney General, and Frank A. llodgers, Prosecuting Attorney (Rodgers, McDonald & Corwin, of counsel), for the people.
   Moore, J.

The respondent was convicted in the superior court of Grand Rapids of the offense of larceny of property belonging to Gertrude Anderson. There are many assignments of error, but the important question in the case is whether the facts shown by the testimony constitute the offense of larceny. The respondent offered no testimony. The jury, in order to convict, must have believed the testimony offered by the people, which was to the following effect: In the early part of 1897 the respondent came to Grand Rapids as a solicitor for a life-insurance company of which S. P. Angus was the Detroit manager. She made the acquaintance of Miss Earle, one •of the examining physicians of the life-insurance company, and through her made the acquaintance of Miss Anderson, who was keeping house, with one servant, in Grand Rapids. She solicited Miss Anderson to become insured, but Miss Anderson did not consent. About the middle of February an arrangement was'made that Miss Martin was to board with Miss Anderson, and she did so from then until the 15th of April, when Miss Martin left Grand Rapids.

Miss Anderson had a bicycle. About the 1st of March there was talk between them about purchasing a bicycle, and Miss Martin said she was going to have a new wheel, and should buy it • very cheap, through a friend of hers, and, if Miss Anderson wanted one, she could get one for her, and she thought she could sell the old wheel to a lady she knew in Detroit. Miss Anderson at this time was employed in the office of the United States engineer, where there were a number of persons employed. A little later Miss Martin suggested to Miss Anderson that she thought she could get wheels for her associates in the office, considering them also as friends, at the same price. Miss Anderson decided to take a wheel, and then told her associates what Miss Martin proposed. Miss Martin came to the office March 13th, and arranged to take the orders for wheels for Miss Anderson and.several of her associates. Miss Martin sat down at Miss Anderson’s desk, and wrote what she said was a letter to the friend through whom she was to get the wheels, E. J. Moran. Miss Anderson was to have a high-grade Cleveland wheel at a cost of $38, which amount she paid in cash to Miss Martin. Mr. Schauroth gave her an indorsed government check for $100 and $14 in money. Capt. Townsend gave her a check for $38. Mr. Wallace gave her $18, and Miss Martin offered to loan him $20 to make up his $38.

Miss Martin folded up what had been delivered to her, and folded up the letter, and put them all in an envelope, and asked Miss Anderson to go with her to the express office to buy the money order, which Miss Martin said she wanted to get off that night. This was between half past 4 and 5 o’clock. On the way to the express office Miss Martin said she must first go to the office of Dr. King to get the $20 she was to let Mr. Wallace have. The two went to the office, and Miss Martin went in, and, after being gone for awhile, returned, and reported that Dr. King was not in, and she would have to see him later. She then said she must go to the U. B. A. Home on business, and Miss Anderson walked up there with her. They then came down town. It was nearly 6 o’clock, and, fearing the money-order department of the express office would be closed later, they went to the express office, and arranged that the checks which had been given Miss Martin should be received and cashed by the express company, and a money order, be issued to Miss Martin later, when she had collected the $20 of Dr. King. It was then so late that Miss Anderson went home, and left Miss Martin to finish the business. Miss Martin returned to the express office, and bought an order for $50, and one for $43, in favor óf S. F. Angus, Detroit, and one for $28 in favor of Mrs. F. B. Martin, Detroit, and no other orders on that day or on the 14th, 15th, or 16th of March were issued to Isma Martin, and none were issued in favor of E. J. Moran. About 7 o’clock or after, Miss Martin returned to the residence of Miss Anderson, and held up a piece of paper some distance from her, 'and said, “Here is the receipt for that money.” After this the women talked about the wheels, which did not come. About a week before Easter, Miss Martin showed Miss Anderson a letter, which she said was from her friend through whom she was getting the wheels, saying if they would wait until Easter Monday the wheels would have the late improvements. The nest Thursday after Miss Martin showed this letter, she left the house, saying she was going to Detroit, and would return the following Monday. She did not return, and Miss Anderson did not see her again until she saw her in court after her arrest. Miss Anderson never received any wheel. She testified that she never consented that Miss Martin should use the money she gave her for any other purpose than to purchase for her a bicycle.

It is the position of the people that from the foregoing facts, and the necessary and reasonable inferences to be drawn from them, the jury were warranted in finding the respondent guilty of larceny. The position of respondent is stated in a request to charge reading as follows:

“If you find from the evidence in the case that the money was delivered by Gertrude Anderson to respondent, intending at the time of the delivery to pass the title to the same, no matter how fraudulent the transaction on the part of the respondent turned out to be, you must acquit the respondent of the offense charged.”

In support of this proposition counsel cite 2 Archb. Cr.. PI. 372; 1 Whart. Cr. Law, §§ 964, 965; 2 East, P. C. 668; Boss v. People, 5 Hill, 294; 2 Bish. Cr. Law, § 808; Hildebrand v. People, 56 N. Y. 396 (15 Am. Rep. 435); People v. McDonald, 43 N. Y. 61; Zink v. People, 77 N. Y. 126 (33 Am. Rep. 589).

While it is conceded by the people that Miss Anderson consented to part with the possession of her money, they contend that her consent was fraudulently obtained, and that she did not intend to part with the title of her property to Miss Martin, but that it was delivered to her for a special purpose, and for that reason the offense is larceny; citing People v. Shaw, 57 Mich. 403 (58 Am. Rep. 372); Stinson v. People, 43 Ill. 397; Welsh v. People, 17 Ill. 339; Murphy v. People, 104 Ill. 533; Com. v. Barry, 124 Mass. 325; People v. Abbott, 53 Cal. 284 (31 Am. Rep. 59).

It is sometimes difficult to determine in a given case whether the offense is larceny or whether it is a case of false pretenses. We think the rule to be gathered from the authorities may be stated to he; In larceny, the owner of the thing stolen has no intention to part with his property therein; in false pretenses, the owner does intend to part with his property in the thing, but this intention is the result of fraudulent contrivances. If the owner did not part with his property in the thing, but simply delivered the possession, the ownership remaining unchanged, for the purpose of having the person to whom the property was delivered use it for a certain special and particular purpose, for the owner, the title would not pass, and its felonious conversion would be larceny. A distinction is made between a bare charge for special use of the thing, and a general bailment; and it is not larceny if the owner intends to part with the property and deliver the possession absolutely, although he has been induced to part with the goods by fraudulent means. If, by trick or artifice, the owner of property is induced to part with the possession to one who receives the property with felonious intent, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but right of property also, the offense of the party obtaining the thing will not be larceny, but that of obtaining the goods by false pretenses. As was said in Loomis v. People, 67 N. Y. 329 (23 Am. Rep. 123):

“There is, to'be sure, a narrow margin between a case of larceny and one where the property has been obtained by false pretenses. The distinction is a very nice one, but still very important. The character of the crime depends upon the intention of the parties, and that intention determines the nature of the offense. In the former case, where, by fraud, conspiracy, or artifice, the possession is obtained with a felonious design, and the title still remains in the owner, larceny is established; while in the latter, where title, as well as possession, is absolutely parted with, the crime is false pretenses. It will be observed that the intention of the owner to part with his property is the gist and essence of the offense of larceny, and the vital point upon which the crime hinges and is to be determined.”

In this case the respondent made the acquaintance of the prosecutor, and pretended he had a check he wanted cashed. The prosecutor went with him to a saloon, where they met a confederate of respondent, and dice were thrown. The respondent asked the prosecutor to lend him $90, saying he was sure to win, and that, if he did not, he had the check, which he would get cashed and pay him back. The money was loaned, the dice were thrown, respondent lost, and the prosecutor insisted upon having his money back. The check was then put up and lost, and the confederates went away carrying the money with them. The court said the respondent was properly convicted.

In Stinson v. People, 43 Ill. 397, it is said: “If the owner parts with the possession voluntarily, but does not part with the title, expecting and intending the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back, and make the taking and conversion a larceny, if the goods were obtained with that intent;” and the conviction of larceny was held to be proper. This was a case where the prosecutor had been induced to wager his money with one of the respondents, and had delivered it to a third person, who was selected as a stake-holder, the other confederate depositing what was represented as a package containing a like amount of money, but which was in fact waste paper.

The case of People v. Shaw, 57 Mich. 403, is an instructive one. Shaw and Jones were confederates-Shaw claimed to be an agent for a tea house, and explained the method of selling tea by means of cards. While he was doing this, Jones came up, and pretended to be a stranger, and took part in the transaction, which resulted in Brown letting Shaw have $80, which Shaw bet with Jones. The card was drawn, and Shaw lost, and he at once delivered the money to Jones. Justice Campbell, in writing the opinion, made use of the following language: “ There is some rather attenuated discrimination to be found in the books between such cheats as induce a person to give temporary custody of his property to another, who keeps or disposes of it, and those whereby he is induced to part with it out and out. We do not think it profitable to draw overnice metaphysical distinctions to save thieves from punishment. If rogues conspire to get away a man’s money by such tricks as those which were played here, it is not going beyond the settled rules of law to hold that the fraud will supply the place of trespass in the taking, and so make the conversion felonious;” and sustained the conviction of respondents for larceny.

Applying these rules of law to this case, what is the result ? It must be borne in mind that Miss Anderson was not buying of Miss Martin a bicycle for $38, but was intrusting to her, as her friend and agent, $38 to be used for a special purpose. She did not intend, when she gave Miss Martin the possession of the property, to also give her the title to it, so that it might be said the money belonged to Miss Martin. She parted with the possession so the money might be devoted to a specific purpose for the benefit of Miss Anderson. If, at the time she obtained the property, the respondent obtained it by false representations, intending at the time to convert it to her own use, and with the intent to deprive Miss Anderson of her property, she was guilty of larceny.

Error is alleged upon the conduct of the judge during the trial and remarks of the prosecuting attorney during ■his argument to the jury. Error is also assigned upon the admission of evidence and to the charge of the court. It is not necessary to refer to these assignments further than to say we do not deem any of them well taken.

A motion for a new trial was made, based upon the affidavit of counsel that during the deliberations of the jury, after the case had been submitted to them, they obtained and read a Grand Rapids paper containing an article in relation to the trial which was prejudicial to the respondent, and that counsel had been informed by some of the jurors that the article influenced jurors in arriving at their verdict. This motion was overruled, and it is said that this is error. It does not very clearly appear how counsel knew that the jurors had the paper mentioned. It does appear, however, that all he knew about what effect the reading of the paper had upon the verdict was what he was told by some of the jurors. This was hearsay, and incompetent. The court did not err in refusing to grant a new trial upon the showing made.

Conviction is affirmed, and case remanded for further proceedings therein.

The other Justices concurred.


author: Long, J.

text:
    POTTER v. RANLETT.
    1. Contracts — Rescission—Executors—Power of Sale.
    One who contracts to purchase land from executors, expecting to receive a deed at once, is justified in rescinding the contract on learning that the executors have no power to sell under the will, even though they offer to indemnify him against loss if he will allow the contract to stand, and accept a deed when they can procure one.

      2. Same — Decree—Collateral Attack.
    The executors cannot in such case defeat the vendee’s right to a rescission by showing that a decree has been rendered by the judge-of another circuit, in a proceeding to which the vendee was not a party, instituted after they had received notice of the vendee’s intention to rescind, whereby their right to sell the lands in question is sustained; for while such decree, though erroneous, would not be subject to collateral attack, it could not control the relations of parties whose status was properly to be determined with reference to a time prior to the institution of the proceedings wherein the decree was rendered.

    3. Wills — Trust—Power oe Sale.
    A devise to executors in trust, to pay the income annually to the testator’s daughters, and to the survivor of them, for life, the trust estate, after the death of said daughters, to go to their children in equal proportions, does not confer a power of sale upon the executors.

      Appeal from Cass; Coolidge, J.
    Submitted January 25, 1898.
    Decided March 29, 1898.
    Bill by Willard M. Potter against David D. Ranlett, Albert Tuttle, and Oliver C. Townsend to rescind a contract for the' purchase of land. Prom a decree for complainant, defendants appeal.
    Affirmed.

      Sowell & Carr, for complainant.

      Lemuel Glide, for defendants.

       Upon an application for a rehearing, the court entered a supplemental decree, wherein, among other things, it was stated: “It seems to this court that complainant, in agreeing to purchase the land in question, did so expecting to get a deed for the same within a few days after he paid the §10,000 on the purchase money and executed the mortgage of §20,000 to secure the balance, and that, under the circumstances of the case, when the question of doubt arose as to the right of the trustees to sell him the land, he was not bound to wait until the question was settled, but had a right to insist upon having the money he had paid on the contract returned to him, together with his notes and mortgage. * * * This decree is made without prejudice in any respect to the decree made in the circuit court for Ionia county, in chancery.”

   Long, J.

There is little or no controversy over the facts in this case. It appears that J ames R. Langdon, of Berlin, county of Washington, in the State of Vermont,, died September 20, 1895, testate, at the age of 82 years, leaving an estate valued at $2,320,757.20. He owned real estate in Vermont, New York, Illinois, and Michigan; that in Michigan being valued at $39,600. The land in controversy in this suit consists of 2,040 acres of woodland, valued at $30,000, situated in Crystal township, Montcalm county, Mich. It is all contiguous.

Langdon’s will was' probated in the probate court at Montpelier, Vt., October 24, 1895. It was also probated in Michigan on January 10, 1896, in the probate court of the county of Ionia. The two defendants David D. Ranlett and Albert Tuttle are the executors and trustees named in the will, and both reside in Vermont. The other defendant, Oliver C. Townsend, is a banker at Hubbardston, Mich., and was agent of the deceased in his lifetime, and was continued as agent by the executors after his death. The complainant, Willard M. Potter, then a resident of Petoskey, on February 25, 1896, after negotiations with the agent by letter and otherwise, purchased from defendant Townsend, as agent of the executors, the aforesaid 2,040 acres in Montcalm county, for the sum of $30,000, and made his first payment of $10,000 in cash, and took a receipt therefor. This receipt is the only writing in relation to the contract, except certain letters.

By the terms of the agreement, the remaining $20,000 was to be paid in two equal annual payments, with interest at 6 per cent., and a deed was to be executed by the executors in a few days after the first payment. By the understanding, complainant was given the right of immediate possession of the land, and the right to place his mills thereon, and operate them in cutting and removing the timber. In keeping with this understanding and agreement, the complainant did, on or about March 1, 1896, commence cutting and hauling timber, he having in the meantime moved his sawmill from Petoskey to the land, and his family to the city of Grand Rapids. Shortly after the cutting of the timber commenced, defendant Townsend informed complainant that the executors were withholding the deed until the $20,000 was properly secured. Thereupon complainant, on or about March 18, 1896, secured the payment of the $20,000 by personal security (two notes), and by a mortgage signed by himself and wife, covering 238 acres of land in Cass county, together with the land in question, and delivered the same to Townsend, who received it as agent, with the express understanding that Townsend was to hold the same in trust for complainant, and was hot to deliver it to the executors, and was not to have the mortgage recorded until the deed was executed by the executors, and delivered to and accepted by him. In violation of this understanding, Townsend caused the mortgage to be recorded in the register’s office of Cáss county, Mich., on the 28th day of March following.

Townsend had informed complainant, and complainant believed, that the executors had the power to deed under the will; and complainant did not learn that the power of the executors to execute a deed was questioned until about May 27, 1896, and he did not know until May 29, 1896, that the mortgage was recorded. He at once visited the probate court of Ionia county, and for the first time read the will of the said Langdon, and the paragraph in the will bearing upon the executors’ power, as follows:

All the residue and remainder of my estate, of every kind and description, including the real estate not herein otherwise disposed of, I give and grant to the said David D. Ranlett and Albert Tuttle, upon trust, for the following uses and purposes, that is to say: Upon trust that the said Ranlett and Tuttle,' and their successors in said trust, duly appointed, shall and do pay the income and interest arising from all of said property and estate so placed in trust, and each and every year, to my said daughters, Lucy R. and Lizzie W., for their sole use and benefit, and upon their, separate receipts, in equal proportions and shares, for and during the period of their and each of their natural lives; and, upon the decease of either of them, the survivor to have the said income and interest; and, upon the decease of both said daughters, said trust funds, property, and estate is to be paid over by said trustees to the children of my said daughters, in equal shares and proportions, and so to their respective heirs.”

Complainant immediately took counsel as to the power of the executors to make a deed under the above paragraph, and was advised that they had no such power. He also advised with Townsend, the agent, on the question, and notified him that he would not stand longer by the contract; and upon June 15, 1896, complainant quit cutting timber on the land, and on June 22d caused his mills to shut down, having then cut all that was hauled in, and moved his mills away, and gave notice to the defendants of his intention to revoke the contract, and demanded of defendant Townsend the repayment of the $10,000, less the stumpage value of the timber cut, his notes and the mortgage, and also that the mortgage be discharged; whereupon the defendants offered to indemnify him if he would stand by the bargain, and accept a deed when they could procure one. But he refused to accept the indemnity and to stand longer by the contract, and filed his bill in this case, in the Cass county circuit court, in chancery, on the 30th day of June, 1896.

When it was fully learned that the executors, as trustees, had- no power to deed under the will, they, on June 24, 1896, commenced proceedings in' the circuit court for the county of Ionia, in chancery, making the devisees and legatees in the will parties defendant, two of whom were minors and one insane, and praying for a construction of the will, and asking that a decree be granted empowering the executors to sell the lands of the estate in Michigan, at public or private sale. The complainant was not made a party to this bill.

The bill in the present case was filed for the purpose of obtaining the cancellation and discharge of the mortgage above referred to, covering the 238 acres of land in Cass county, and also for the purpose of relieving the complainant from the obligation of the contract to purchase the land. To the bill of complaint, defendant Townsend answered, August 13, 1896. He admits his agency. He admits the receipt of the $10,000, and the fact that he forwarded it to the executors. He admits the demand on him by the complainant for the mortgage and notes, and the notice of the repudiation of the contract by complainant. He admits the delay in the making of the deed. He admits the executors’ inability to make the deed. The joint and several answer of the other two defendants, Ranlett and Tuttle, was not put in until December 29, 1896. They admit the agency of Townsend, and his authority to contract for the sale of the land. They also admit the receipt of the $10,000, and the fact that complainant’s possession of the land, and his right to cut and remove timber, were with their full knowledge and consent. They allege that they filed a bill as complainants in the circuit court of Ionia, in chancery, submitting the question of their power as trustees, by virtue of said will, to the opinion and direction of said court; and their answer contains a copy of the decree of the Ionia circuit court, in chancery, which bears date September 15, 1896. This answer concludes with prayer for benefit of cross-bill, under Chancery Rule No. 11. To the cross-bill feature of this' answer, complainant filed his answer January 1, 1897, denying, among other things, the power of the circuit court of Ionia, in chancery, to give the two defendants Ranlett and Tuttle, as trustees, the power to make and execute a good and sufficient deed to said land, and denying the jurisdiction of the court and the relevancy of its proceeding to the present case..

The decree of the Ionia circuit court, in chancery, was rendered September 15, 1896. On November 18,1896, the defendants tendered to complainant a warranty deed of the premises covered by the contract, with covenants in due form. This deed was afterwards tendered in open court at the trial, but both offers were refused by complainant. On January 14, 1897, the defendants presented to the circuit court of Cass county, in chancery, in this case, a petition praying for the appointment of a .receiver to take possession of the land, and look after it, and to protect it from the cutting of wood and timber by trespassers ; and, on the 21st of January, an order was made by that court appointing Ethard P. Clark such receiver. On the 13th of April, the. receiver petitioned the court to sell the down timber and wood. The prayer of this petition was granted, and on June 9th the receiver reported to the court that he had made a public sale of all the down timber, including all that had been cut by complainant, and not hauled away, and that he realized from such public sale the sum of $750. The decree gives this sum to the executors.

The court below found that the decree of the circuit court of Ionia county, in chancery, was not binding on the complainant in this case, he not being made a party; that it would not furnish him a clear protection; and the decree declares that the contract shall be of no effect, and that the mortgage and notes be canceled and delivered up to the complainant' by the defendants. The court also found that the complainant removed, from the land, timber to the value of $1,646.09, which he should account for; that the defendants Ranlett and Tuttle were indebted to him in the sum of $10,808.30, that amount being the first payment, and interest thereon at 6 per cent, from February 26, 1896, to June 30, 1897, the date of the decree; and that from this amount should be deducted the $1,646.09; and that the balance, $9,162.21, should be paid by the defendants to the complainant in 90 days. The complainant was given a lien on the land in Montcalm county for the same, together with his costs, to be taxed, and a solicitor’s fee of $100.

The defendants contend:

1. That the executors had power under the will to make the deed.
2. That, when the right to convey was questioned, it became the duty of the trustees to take the advice of the court of chancery of Ionia county as to such power.
3. That the decree of the Ionia court is conclusive that the executors had such power.
4. That the interests of the unborn children of the two daughters were virtually represented by the executors.
5. That time was not of the essence of the contract, and that, therefore, the executors had a reasonable time in which to make and deliver the deed.

Whether the court below was correct or not in his views upon the various questions raised, we need not consider, as we are satisfied that the conclusion reached was correct. This property was apparently purchased by the complainant principally for the valuable timber thereon. At a large expense, he had removed his mill to the land, and commenced the manufacture of this timber into lumber, when he was advised that the executors had no power under the will to make the deed which his contract called for. He was then confronted with the question whether he should go on, with his work, and take the further chances that, in the end, he might not only lose the land, but also be compelled to pay the residuary legatees under the will whatever damages they might suffer by reason of the removal of the timber. The fact that the circuit court, in chancery, of Ionia county, thereafter decreed that the executors had power to make the deed, has no bearing upon the question here involved, as the complainant was not made a party to that proceeding ; the real question being the status of the parties at the time complainant filed his- bill. In order to fix such status, we must determine whether the will empowered the executors to make the deed. It is true that the complainant could not capriciously refuse to accept a deed, and it may be that the deed was tendered in time, if the executors, at the time of making the contract, had the power to make such deed

The provisions of the will under which the executors claimed to have power to deed have been set forth. This clause gives to the executors the property, upon trust to pay the income and interest arising each year to the two daughters for the period of their and each of their natural lives, and to the survivor of them. Upon the decease of both, the “said' trust funds, property, and estate is to be paid over by said trustees to the children of my said daughters, in equal shares and proportions, and so to their respective heirs.” The language is clear and unmistakable, and the intent is plain that the executors shall hold this residue and remainder of the estate (the property in controversy being included within those terms) during the lives of both daughters and the survivor of them, and then pay it over to their children or their respective heirs. It is too plain for argument that no power of sale is- included in this provision. The executors only hold the estate to collect the income, and pay it over. The will itself provides where the estate after the death of the daughters shall vest.

When complainant had been advised that the executors wanted more time, and he learned of the will, he made an examination of it, and then for the first time discovered this want of power, and at once filed his bill to set aside the contract. Any other course would have been but an experiment, and might have cost him serious loss. He could not say that a court would give construction to the will permitting the executors to make sale of the property, but had good reasons to believe that such construction would not be given.

It is not to be understood by what we have said that, if the court of chancery in Ionia county had jurisdiction of all the parties and the subject-matter, we hold the decree is not now valid and effectual, and does not give the executors power to make a conveyance of the premises. It was not appealed from, and, in a collateral proceeding, undoubtedly could not be attacked except for want of jurisdiction.

Counsel for defendants contends that the court below was in error in the amount of damages. We have carefully examined that question, and find no necessity for discussing it, as we are satisfied, not only with the method of computation, but also with the amount found.

The decree of the court below must be affirmed, with costs in favor of complainant.

The other Justices concurred.

       This item was disallowed by the Supreme Court on the application for rehearing.


text:
    GRATTAN v. VILLAGE OF WILLIAMSTON.
    1. Personal Injuries — Trial—Declaration—Amendment.
    A declaration in an action for personal injuries caused by a defective sidewalk, alleging that the place of the injury was at a point about 364 feet west of a given street, may on the trial be amended to correspond with the proof that the place was in fact about 364 feet west of such street, where it is evident that the defendant was not misled.
    3. Same — Due Care — Evidence—Harmless Error.
    Error in permitting plaintiff in an action for personal injuries to state that, at the time, he was endeavoring to exercise care and caution, is harmless to defendant, where plaintiff had already testified fully as to what he did at the time of the accident, and the trial judge directed the jury that, in determining whether plaintiff exercised due care and caution, they must take into consideration the entire circumstances.
    3. Same — Sidewalks—Knowledge of Defect.
    The fact that a person injured by a defective sidewalk had knowledge of the defect may be taken into account by the jury in -determining whether he used due care, but it is not conclusive against his right to recover. Graves v. City of Battle Creek, 95 Mich. 271, followed.
    4. Same — Notice—Instructions to Repair.
    A resolution of the common council of a village, requiring a new sidewalk to be built at a place at which plaintiff was subsequently injured, is admissible to show knowledge on the part of the village authorities of the defective condition of the old walk.
    5. Same.
    Proof that the authorities of a village had knowledge that a sidewalk on which plaintiff was injured was defective for its entire length is sufficient, without showing that they had notice of the particular defect which caused the injury.
    6. Same — Damages—Instructions.
    An instruction, in an action for personal injuries, that the jury might consider plaintiff’s infirmities if resulting from the injury’s having caused his “rheumatism to centralize,” could not have misled the jury into believing that they might award damages for an aggravation of an existing disease, which was not alleged, where, in other parts of the charge, they were told that plaintiff could not recover such damages, as he had denied the existence of rheumatism before the injury.
    Error to Ingham; Person, J.
    Submitted February 1, 1898.
    Decided March 29, 1898.
    Case by Alexander C. Grattan against the village of "Williamston for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      W. F. Cairns and Howard Wiest, for appellant.

      Smith & Hood, for appellee.
   Montgomery, J.

The plaintiff recovered a judgment of $500 for injuries received by stepping into a hole in a defective sidewalk. The defendant brings error.

1. The plaintiff, in his declaration, alleged that he was injured on the sidewalk of the defendant, on the north side of Grand River street, at a place or point about 264 feet west of Putnam street. On the trial, the evidence of the plaintiff disclosed that the place where the injury occurred was in fact about 364 feet west of Putnam street. Motion to strike out the testimony was denied, and, at the close of the testimony, the court permitted the plaintiff, by an amendment, to state the correct location in his declaration. This is assigned as error. It is evident to us from the testimony offered by the defendant that the real issue was understood from the first. The president of the village testifies that he was familiar with the walk in front of the Bowerman and Fleming place, in 1893, and that, after he heard of the injury to plaintiff, he went up there, to examine it. The walk in front of the Bower-man and Fleming place corresponds in distance from Putnam street to the averment in the amended declaration. It is evident, therefore, that the defendant was not misled. There was no suggestion of surprise, and we think the amendment was warranted.

2. Plaintiff’s counsel was permitted to ask him whether, at the time, he was endeavoring to exercise care and caution. We think this question might well have been omitted, as the jury should draw the inference from what was done by the plaintiff whether he was in the exercise of due care and caution; but we are convinced from this record that the defendant suffered no harm from this question being put and answered. The witness had already, upon cross-examination, testified fully as to what he did do in passing over the walk; and the circuit judge, in his charge to the jury, directed them, in substance, that, in determining whether plaintiff was exercising due care and caution, they must take into consideration the entire circumstances, — what, he knew about the Walk, what he had known about it, the time of night, the character of the night, and the manner in which he was walking,— and see whether he did exercise due care and caution. This instruction practically excluded all other considerations than those relating to what the plaintiff actually did, and we think the jury could not have mistaken the issue.

3. It is also claimed that, as the plaintiff had knowledge of the defect in the sidewalk, this knowledge was evidence of contributory negligence. This is undoubtedly true, and, as stated before, the circuit judge directed the jury to take into account the knowledge which the plaintiff had of the condition of the walk, in determining the question of whether he used due care. This was all defendant was entitled to. Graves v. City of Battle Creek, 95 Mich. 271 (19 L. R. A. 641, 35 Am. St. Rep. 561).

4. The court permitted the plaintiff to introduce in evidence a resolution of the common council introduced in May, previous to the time of the injury to plaintiff, requiring a sidewalk to be built from Horton’s store, a short distance east of the place of the accident, to the property of C. W. Carr, a point west of the place of the accident. This was received for the purpose of showing knowledge on the part of the authorities of the condition of the walk, plaintiff’s counsel at the time disclaiming that it was offered to show what this condition was. We think it was entirely competent for the purpose offered. It is not to be assumed that the council would have ordered the construction of a new walk without previously having informed itself as to the condition of the existing walk.

5. Some criticism is made of the charge of the court upon the effect of the testimony that the entire walk in front of the Fleming place was in bad condition. The court charged the jury as follows:

“ If the sidewalk generally was in bad shape otherwise than the particular plank, or plank and a half, if the ends of the boards were loose, and if it was in such shape that plank were liable to get out, because not nailed, and because the stringers were rotten, and that such a defect as the removal of a plank might be expected, then I charge you that if the removal of such a plank would cause a dangerous place, would render the sidewalk unfit for travel, I charge you that the general condition was a thing that the village should have had notice of, and repaired it5 and if they did not know that this particular plank and a half were gone, if they knew that the sidewalk was so defective, and had,been in the same general bad condition, and that an accident was expected and likely to happen, that would be notice that required them to go on, and fix and take care of it.”

We think there was no error in this instruction. See Edwards v. Village of Three Rivers, 102 Mich. 153, and cases cited.

6. Error is assigned upon the instruction of the court upon the subject of damages. The declaration did not aver an aggravation of an existing disease. The defendant excepts to that portion of the charge reading as follows:

‘ ‘ If the accident, however, in case one occurred, caused the rheumatism to centralize,. and become located in the hip, and thereby resulted in precipitating and bringing about such infirmities and disabilities as the plaintiff claims, you may then consider such infirmities and disabilities as a direct result of the accident, and take them into consideration in fixing damages, if you find him entitled to recover.”

We need not determine whether this instruction, standing alone, would be open to objection, as we think the charge of the court, taken as a whole, could not have been understood as justifying a recovery for an aggravation of an existing disease. The remainder of the charge on this subject, which preceded that, above quoted, was as follows

“The plaintiff, Mr. Grattan, claims that the condition of his limb and hip, whatever that is, comes directly from the accident which he claims took place on the sidewalk. He says he had not suffered with rheumatism at that point before the accident, or from rheumatism at all, and claims that, if rheumatism has since set in, such rheumatism itself is a direct consequence of the injury. In short, he claims that the entire trouble with his limb and hip originated in and comes from the accident. He does not admit that the trouble comes from some disease, — for instance, rheumatism existing before the accident, — and that the accident simply aggravated the disease. So, you could not give him damages for such an aggravation; you could not give him damages for a thing the existence of which he denies. You give him damages, if at all, according to his own theory and claim, and not according to some theory, not only not claimed by him, but denied by him. Therefore, in case he is entitled to recover, you will determine whether the trouble to his hip and limb was caused by and originated in the accident. The burden of proof is upon him in that as in other matters. If such trouble did so originate, you will give him just damages therefor; and you will give him such damages even if rheumatism has since set in, as a result of the accident itself, and aggravated the trouble. If the hip and limb trouble did not originate in the accident, as mentioned, but in some other and earlier cause, you will not give damages therefor; not if it was even aggravated by the subsequent accident.”

A careful examination of the record in this case convinces us that no error was committed to the prejudice of the defendant, and the judgment will be affirmed.

The other Justices concurred.


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    GRIFFIN v. McKNIGHT.
    1. Agency — Husband and Wife — Evidence.
    Evidence that plaintiff’s husband had general authority front her to act as her agent in purchasing contracts; that he had purchased several for her like the one in suit; that he was authorized to check her money out of the bank, signing her name to the checks, by himself, as agent; that, when the contract in suit was purchased, payment was made by giving such a check, together with certificates of deposit made to plaintiff, and indorsed in her name, by her husband as agent; and that he had authority to and did receive payments, upon the contracts,. — is sufficient to go to the jury on the question of the husband’s authority to accept a mortgage as payment of the contract in suit.
    2. Appeal — Denial of New Trial — Review.
    Alleged error in refusing a new trial will not be considered on appeal, where the record does not show why the trial judge refused the motion, and there is nothing to indicate that he was requested to give his reasons.
    Error to Kent; Grove, J.
    Submitted February 1, 1898.
    Decided March 29, 1898.

      Assumpsit by Gertrude T. Griffin against William F. McKnight upon a contract of guaranty. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      D. K. Corbitt, for appellant.

      McKnight & McAllister {J. B. Judkins, of counsel), for appellee.
   Moore, J.

In October, 1894, Mrs. Flanagan bought a piano of Mrs. Weeden, and agreed to pay therefor $375, — $50 down, and the balance at intervals stated in a written contract made by Mrs. Flanagan to Mrs. Weeden. This contract retained the title in Mrs. Weeden until the payments for the instrument were made in full. The payment of this contract was guaranteed by the defendant. The defendant, acting for Mrs. Weeden, negotiated a sale of this contract, through M. F. Griffin, acting as her agent, to Gertrude T. Griffin, the plaintiff. The plaintiff claimed that ihe amount due on the contract was not paid, and sued defendant in justice’s court. The pleadings are not returned with the record, and there is very little testimony about what occurred in justice’s court. Plaintiff recovered a judgment. Defendant appealed. In the circuit court there was a trial by jury, which resulted in a verdict for defendant, from which judgment plaintiff appeals.

It is the claim of the plaintiff that she was entitled to a verdict for the amount due upon the contract of $246. It was the claim of defendant that plaintiff did business for quite a period of time, in the nature of loaning money and purchasing contracts, and that she had purchased a number of contracts like this one, and that the business was done in her name by her agent, M. F. Griffin, her husband, and that he had general authority to do her business of this nature; that he was authorized to check her money' out of the bank, signing her name to the checks, by himself, as agent; and that, when this contract was purchased, payment was made for it by giving two certificates of deposit made to Mrs. Griffin, the indorsement being signed with her name, by M. F. Griffin, agent, and by giving one check signed M. F. Griffin, agent. It was also claimed that Mr. Griffin had authority to and did receive pay on these contracts for her. It was the claim of the defendant that, after this contract was bought by Mrs. Griffin, an arrangement was made with Mrs. Flanagan, through the husband of Mrs. Griffin, by which Mrs. Flanagan was to give a note secured by a mortgage on a lot and on the piano, which was to be received as a payment for the piano contract, and that the note and mortgage were executed by Mrs. Flanagan in Mr. McKnight’s office, to be delivered by him to Mr. Griffin, as the agent for Mrs. Griffin, in exchange for the piano contract, and that they were so delivered, and that the contract was surrendered to Mr. McKnight for Mrs. Flanagan. It is stated by defendant that, after this was done, Mr. Griffin came to the office of Mr. McKnight, and said he wanted to use the piano contract in making a computation of interest with Mrs. Weeden, and would return it in 20 minutes. At this time the note and mortgage made by Mrs. Flanagan were left in the office of defendant. It is the latter’s claim that Mr. Griffin did not return the papers as agreed.

The defendant produced a number of witnesses, ’ who' testified to the manner in which Mrs. Griffin’s business was done, its nature, extent, and character, and that it was actually conducted by M. F. Griffin in the name of the plaintiff. The defendant was sworn as a witness, and testified to the agency of the husband, and swore to the defense interposed by him, as outlined above. The plaintiff claimed that the facts sworn to did not show that Mr. Griffin was authorized to act for his wife. No witnesses were produced by the plaintiff except one, whose testimony was confined solely to a computation of the amount'due on the contract. The plaintiff requested the judge to direct the jury that there was no evidence showing that Mr. Griffin was authorized to make the agreement sworn to by Mr. McKnight. The court declined to do this, but submitted the question to the jury. It is not claimed that the learned judge did not charge the jury correctly as to the law of agency, but that he erred in submitting the case to the jury at all. We think that there was testimony tending to show authority upon the part of Mr. Griffin to act as he did in relation to this contract, and that- it was for the jury to decide whether, by a preponderance of proof, the agency was shown. Compton v. Blair, 27 Mich. 397. See 1 Jac. & C. Dig. 727.

A motion was made for a new trial, which was overruled. The record does not show the reasons why the trial judge refused the application for a new trial, and there is nothing to indicate that he was requested to give his reasons. Because of that, we do not feel called upon to review his action. McRae v. Lumber Co., 102 Mich. 488.

Judgment is affirmed.

The other Justices concurred.


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    DOWLING v. KNIGHTS TEMPLARS & MASONS’ LIFE INDEMNITY CO.

    1. Mutual Benefit Societies — Notice of Assessment — Forfeiture for Nonpayment.
    Where the constitution of a mutual benefit company provides that any member may make a deposit in advance for the payment of assessments, which money shall not be used by the company for any other purpose, and that, when an assessment is made, a notice shall be sent to members, stating “the amount due from the member to whom the notice is sent,” a notice to a member, wherein no credit is given for an advanced deposit which has been made, is invalid, and nonpayment of the assessment does not forfeit the policy.
    2. Same — Application for Reinstatement — Waiver.
    One whose certificate of membership in a mutual benefit company has been canceled for nonpayment of an assessment, of which he received no valid notice, does not waive the defects in the notice by subsequently offering to pay the assessment, at the same time insisting that he was not in fault.
    Error to Muskegon; Russell, J.
    Submitted February 1, 1898.
    Decided March 29, 1898.

      Assumpsit by Annie W. Dowling against the Knights ' Templars & Masons’ Life Indemnity Company on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Bunker & Carpenter, for appellant.

      Smith, Nims, Hoyt & Erwin (Clark Varnum, of counsel), for appellee.

       Rehearing denied May 24, 1898.

   Montgomery, J.

The defendant is a mutual benefit company, furnishing its members life insurance on the assessment plan. The plaintiff recovered on a policy issued to her late husband, George E. Dowling. The defense interposed at the trial was that the policy of Mr. Dowling was forfeited by his failure to pay an assessment claimed to have been made November 1, 1895. It appears that a notice of a double assessment was mailed to Mr. Dowling on that date, and that the amount demanded was not paid within the time fixed by the notice, — i. e., 10 days; that on the 12th of November an additional notice was sent, stating that unless the amount of $15, the amount due on the assessment, together with 50 cents as charges for the notice, should be paid within 10 days from date, the policy of Mr. Dowling would be canceled. The payment was not made within the 10 days fixed by this notice. An offer was made to pay later, but after considerable correspondence the offer was declined.

It is claimed by the plaintiff that the attempt to forfeit the policy was ineffectual for the reasons:

1. That no assessment was in fact made, no entry of an assessment on the books being recorded against the holders of the several policies.
2. That the assessment was attempted by the general manager under authority delegated to him by the board of directors, and that this was an authority which could not be delegated.
3. That there is no authority in the charter for a double assessment.
4. That the claim made in the notice was in any view too large, as Mr. Dowling had on deposit 20 cents, being a balance of money deposited by him to pay assessments, which was not credited on the assessment in question.

In the view which we take of the last question, it will become unnecessary for us to follow the very able arguments of counsel on the other points made. The constitution of defendant provides that any member may make a deposit in advance for the payment of assessments, which money shall be used for no other purpose by the company. The -deceased had at various times acted under this provision, and at the time of the assessment in question there was in the hands of the company 20 cents (possibly $2.20; the proofs are not clear as to the amount) unused. The article providing for a notice of assessment provides that the notice shall contain a statement of “the amount due from the member to whom the notice is sent.” This precise question has been decided by the supreme court of Illinois in United States Mut. Acc. Ass’n v. Mueller, 151 Ill. 254. It appears that a custom similar to that pursued by the deceased in this case had been followed by the assured, who at the date of notiee had $1 on deposit. The notice omitted all mention of this credit, and stated the amount due to be $3. It was held that the notice was invalid, as not stating the correct amount due. To the same general effect is Eddy v. Insurance Co., 65 N. H. 27 (23 Am. St. Rep. 17). The authorities are uniform that forfeitures are not favored, and that substantial provisions for the benefit of the assured must be complied with. Nibl. Acc. Ins. & Ben. Soc. 527. The deceased had the right to stand on the terms of his policy and the constitution.

Defendant’s counsel contend that deceased waived the defects in the notice by attempting to be reinstated; citing Hansen v. Supreme Lodge Knights of Honor, 140 Ill. 301. In that case the assured acknowledged, in a formal application to be reinstated, that he had been suspended for nonpayment of the assessment in question. In the present case the correspondence shows that Mr. Dowling was insisting that he was not in fault. We think that there was no waiver of his right to insist that, before his policy should be forfeited, the company should proceed according to the terms of the policy.

Judgment will be affirmed.

The other Justices concurred.


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    DROVERS’ NATIONAL BANK v. POTVIN.
    1. Promissory Notes — Fraudulent Inception — Good-faith Purchaser.
    The mere fact that a bank had represented in writing that a certain company was, in its opinion, reliable, has, of itself, no tendency to show that it was not a good-faith purchaser of a note fraudulently obtained by an agent of such company from one to whom the recommendation was exhibited.
    3. Same — Evidence—Prima Facie Case.
    The testimony of the cashier of a bank that he had purchased, as agent for the bank, for value and before maturity, from the payee, a note which the latter had fraudulently obtained; that he had no notice of the fraud; and that the bank had no committee or agent in the matter except himself, — -is a sufficient prima facie showing of the bank’s good faith.
    8. Same — Undisputed Testimony — Direction of Verdict.
    The direction of a verdict for the plaintiff in an action on . a note purchased by it is proper where the only question is as to the good faith of the purchase, and there is prima facie evidence of good faith, which is undisputed.
    Error to Alpena; Kelley, J.
    Submitted February 2, 1898.
    Decided March 29, 1898.

      Assumpsit by the Drovers’ National Bank against Oliver Potvin on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      J. D. Turnbull and James McNamara, for appellam.

      Joseph H. Cobb, for appellee.
   Montgomery, J.

The plaintiff recovered, by direction of the court, a verdict of $101, being the amount of principal and interest of a note of $85, made by defendant May 31, 1894, due December 1, 1894, payable to the Chicago Supply Company, and indorsed without recourse by the Chicago Supply Company, by G. M. Maibe, treasurer. It was conceded at the trial by plaintiff’s counsel that the note was obtained of the defendant by means of a fraud practiced upon him by the agent of the payee.

The only question for determination is whether the testimony offered by the plaintiff shows it to be a good-faith purchaser. The plaintiff offered the testimony of its cashier, taken by deposition. He testified that the note in suit was purchased before maturity at the price of $72.50, and that the bank had no notice that the maker had any defense, or that there had been a fraud perpetrated upon him by the payee. It appeared upon the cross-examination of this witness that, before the note in suit was procured of the maker, one Burton, a liveryman at Alpena, had been requested by an agent of the Chicago Supply Company to accompany him through the country and assist in procuring orders for goods. He telegraphed the plaintiff, asking if the Chicago Supply Company was a reliable firm, and whether contracts made by the company or its representative could be relied on. Plaintiff replied, “They do business with us, and we consider them responsible and reliable in every way.” Defendant offered to show that these representations were exhibited to parties with whom the agent of the supply company dealt.

It was claimed that this testimony connected the plaintiff with the fraud, or, at least, tended to show that it was not a good-faith purchaser. There is, however, no evidence to show that the plaintiff or its officers knew that the supply company was engaged in a fraudulent business. On the contrary, the cashier testified that the supply company was considered a reliable and honorable concern. This testimony was not disputed, except by the fact that a fraud was perpetrated upon the defendant. We think that the circuit judge was right in holding that the fact in itself did not tend to contradict the positive testimony of the plaintiff’s witness.

It is also claimed that, as all the bank officers were not called, there was failure to show want of notice of the fraudulent character of the original transaction; but the cashier testified that the bank had no committee or agent to transact business on this loan except himself, and, while he could not know, except by hearsay, that the other officers or agents of the bank were uninformed as to the fraud, the fact that he, who acted for the bank, had no knowledge of any infirmity in the security, was sufficient prima facie. Rosemond v. Graham, 54 Minn. 323 (40 Am. St. Rep. 336).

When the testimony of bona fides is thus undisputed, it is proper for the court to direct the .verdict. Borden v. Clark, 26 Mich. 410.

Judgment affirmed.

The other Justices concurred.