text:
    BRIGGS v. BRIGGS.
    Parol Agreement to Convey Land — Specific Performance.
    A parol agreement by parents to convey to their son lands adjoining their own in consideration of his making his home thereon, and working and improving the same, may, if the son fulfills the conditions, be specifically enforced by his wife and children after his decease.
    Appeal from Kent; Grove, J.
    Submitted April 29, 1897.
    Decided June 7, 1897.
    Bill by Melissa M. Briggs and others against Spencer B. Briggs and Sarah A. Briggs for the specific performance of a verbal contract to convey land. From a decree for complainants, defendants- appeal.
    Affirmed.

      Taggart, Knappen & Denison, for complainants.

      Earle & Hyde, for defendants.
   Long, C. J.

This bill of- complaint was filed in April, 1896, asking for the specific performance of a contract. The complainant Melissa M. Briggs is the widow, and Eva May Briggs the infant daughter, of Elias V. Briggs, deceased, and, through him, claim the right to a conveyance of an 80-acre farm in Solon township, Kent county, Mich., the legal title to one-half of which stands in the defendant Sarah A. Briggs, and the legal title to the other half in the defendant Spencer B. Briggs, who were the mother and father of the deceased, Elias V. Briggs. The bill alleges a gift of the premises, and an oral contract for the conveyance thereof, made by the defendants to Elias V. Briggs in his lifetime, followed by many years of possession, improvement, etc. The answer of the defendants denies any gift or contract, but alleges that the occupation by Elias Y. Briggs and wife of the premises in question has been under other and different arrangements. Proofs were taken in open court, and the court found, upon the merits of' the controversy, for the complainants.' A decree for specific performance, in accordance with the prayer of the bill, was entered December 21,1896. From this decree the defendants appeal.

Complainants’ contention is that the defendants, Spencer B. and Sarah A. Briggs, husband and wife, had resided for many years in Solon township, and had considerable property; that their son Elias V. Briggs was married to the complainant, then Melissa Russell, on November 14, 1878; that he was then 21 years of age, and she was of the same age; that they resided until the next spring with the defendants as one family, but they both thought there was not land enough for all, and they planned to go away and start by themselves; that the father and mother objected to this, as they wished their son to remain with them or near them; that accordingly, on April 10, 1879, the defendant Sarah A. Briggs purchased two 40-acre parcels of land in the neighborhood, but not immediately adjacent to each other (another 40 intervening), for a home for her son and his wife; and that she and her husband agreed with them that the son and his wife should move upon the place so purchased, make it their home, and help improve it, pay off an existing incumbrance, remain in the neighborhood, where the father and son could work together, and that it should be their home, and should be conveyed absolutely to the son. Complainants contend that this agreement was carried out by the son and wife, who did move upon the property, and occupied it from that time until the death of Elias, which occurred November 2, 1895, such occupation having thus covered a period of 16)- years; that in 1886, however, it was agreed between all the parties that one of these 40-acre parcels, being the one upon which the dwelling and buildings were not situated, should be exchanged with a third person for a 40 adjacent to the home 40, so that there might be an entire 80-acre farm lying together as one parcel, and that the 40 so received in exchange should be substituted for the other in all respects, and should be conveyed, as it had been agreed the other should be conveyed, to Elias V. Briggs; that, in the making of this exchange, the defendant Spencer B. Briggs took the active part, and caused the deed for this last 40 so received to be made to him, instead of to his wife, so that, during the remainder of the life of Elias, his possession and occupation were of the entire 80 so constituting one farm, the legal title of one 40 standing in Spencer B. Briggs, and of the other 40 in Sarah A. Briggs; that it was continually understood by Elias and Melissa Briggs that the farm was theirs, and that they were entitled to a conveyance of it; that, under this understanding, they occupied and improved the farm, took part in erecting buildings and paying off the incumbrance, paid taxes, and in all respects treated the property as their own, and put into it in this way 16],- years of their labor; and that no trouble arose until after the death of Elias. The widow, after the death of Elias, continued to occupy the farm with her daughter, then nine years old. Her brother, William Russell, resided there with her, and worked the farm, under a lease which had been taken by him from Elias before the death of the latter. December 24, 1895, the defendants served upon the widow and her brother a notice to quit, claiming possession of the premises, and shortly afterwards commenced summary proceedings before a justice for their eviction. The bill in this cause was thereupon filed, the widow and her daughter claiming title through the contract with Elias V. Briggs, William Russell claiming a possessory right under his lease, and the Peninsular Trust Company being joined as administrator of the estate of Elias V. Briggs.

The defendants contend that, when Elias went on the land, he became a tenant of the mother; that the land was fully paid for, she paying for one 40, and the father for the other; that, when Elias went upon the premises, it ■ was agreed between him and defendants that he could have all lie could raise on the land if he would keep the same up in good shape, and pay all taxes thereon, and that, if he failed to do so, defendants were to have one-third of the crops to pay taxes and other expenses; and that the father was to furnish team and tools to work the land.

There was a large number of witnesses sworn in the case, but much of the testimony has no great bearing upon the main contention here. The contract set out in the bill is substantially as before stated. The whole controversy is one of fact. The defendants contend that the complainants’ proofs do not support the contract, and that no such arrangement as claimed was ever made, but that, on the other hand, the arrangement as shown by the testimony is such as defendants contend for. The court below found with the complainants. He had the opportunity to see the witnesses, and judge of their fairness and candor. While this is not conclusive upon us, yet many times such fact has great weight, especially where there is great conflict of evidence. If the contract was entered into as claimed by complainants, it is certainly one which should be enforced.

The defendants had two sons, and no other children. These sons married sisters. At the time Elias' married, he took his wife home to his father’s house. His brother, Charles, and his wife were living there at that time. The talk became general that the defendants would buy a farm for Elias if he would move onto it. It was bought, and Charles’ wife, as well as Melissa, testify that Elias was to have a deed of it. It appears by the testimony of many witnesses that the place was always called Elias’. He moved onto it, and apparently occupied it as his own. It is true that the father did many things there, — paid taxes, helped to put up the buildings and improve the farm; but all these acts are in keeping with the relationship ^between the parties. Charles and his wife lived at home. There were three 80’s of land; and it is apparent to us that it was the intention of the defendants to give Elias this farm of 80 acres, and deed it to him; that he should have the title; and that Elias so understood it when he went into possession. No trouble seems to have arisen until after Elias died. Mr. Russell had gone on there as a tenant. He was the brother of the widow, and it is evident his presence there was distasteful to the defendants, and trouble arose. It would not profit to set out the testimony, as upon the whole case we agree with the court below. This class of contracts has been upheld by this court many times, and the citation of authorities is unnecessary.

The decree below must be affirmed, with costs of both courts.

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


source: Caselaw Access Project

author: Long, C. J. Grant, J.

license: Public Domain

text:
    LEMP v. RAVEN.
    Religious Societies — Schism — Church Property — Right op Possession.
    Where the constitution of a religious society provides that it shall not be altered except by request of two-thirds of the whole society, amendments involving substantial changes, proposed and adopted by the general conference otherwise than in accordance with the constitutional provision, are invalid, and those members, though a minority, who adhere to the original constitution, are entitled to the possession of the real estate belonging to such society. Bear v. Heasley, 98 Mich. 379, followed.
    Appeal from Kent; Grove, J.
    Submitted April 30, 1897.
    Decided June 7, 1897.
    Bill by Adam Lemp and others, trustees of the First Church of Sparta of the United Brethren in Christ, against Wallace J. Raven and others, to recover possession of certain church property. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Taggart, Wolcott & Gtanson (Butterfield & Keeney, of counsel), for complainants.

      Taggart, Knappen & Denison and W. B. Williams, for defendants.
   Long, C. J.

The bill in this case alleges, substantially, that the complainants were duly elected trustees of the church; that a church was erected in Sparta in 1875, and a parsonage in 1880; that the defendants, in November, 1891, by force, broke into the church, removed the lock therefrom, and since such date have so retained the property; that in 1892 the defendants took forcible possession of the parsonage of said church, and have continuously held possession thereof; that such action is illegal and Void.

The case is on all fours with that of Bear v. Heasley, 98 Mich. 279, and must be ruled by it. That case was fully argued in this court, and after the decision a motion for rehearing was made upon briefs covering many pages, by eminent counsel. The rehearing was denied. We are now asked to open up the whole controversy settled there, and make a different ruling. No new facts are shown. The record in this case is like the former one. The court below, not being governed by the rule in Bear v. Heasley, entered a decree in favor of defendants, from which complainants now appeal. We gave the parties to this controversy a full hearing upon oral argument, but are unable to agree with them, or see any reason now for overruling Bear v. Heasley. That case settled the law of this State, whatever the courts of other States may hold.

The decree of the court below must be reversed, and a decree entered here in accordance with the prayer of the bill, with costs of both courts in favor of complainants.

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

Grant, J.

{concurring). I agree with my brother, the Chief Justice, that the issues in this case are identical with those in Bear v. Heasley, 98 Mich. 279, and that the decree in this case cannot be sustained without overruling that case. While I find no occasion to modify my views of this unfortunate church controversy as expressed in that case, I concur in the opinion that the question is stare clecisis, and should not be overruled unless the justices concurring in the majority opinion should so decide. For this reason' I concur in the reversal of the case.


author: Grant, J.

text:
    PERKINS v. TOWNSHIP OF DELAWARE.
    1. Bridges — Plan oe Construction — Negligence.
    A township is not negligent in constructing a bridge 20 feet long with one end a foot higher than the other, to conform to the formation of the adjacent land.
    2. ' Same.
    The construction of a bridge 16 feet wide, 1 inch lower on one side than on the other, is not negligence.
    3. Same — Evidence.
    In an action against a township for damages alleged to have been sustained by reason of its negligence in permitting the supports of a bridge to become rotten, so that one side was lower than the other, the testimony of the highway commissioner that an actual measurement showed an incline of one inch, if unimpeached, must prevail as against the testimony of witnesses who confessedly rely upon estimates in placing the incline at several inches.
    4. Same — Side Railings — When Required — Question eor Jury.
    Whether the failure to maintain side .railings on a bridge 20 feet long and 16 feet wide, one end of which was 1 foot lower and one side 1 inch lower than 'the other, constituted negligence, is a question for the jury.
    5. Same — Contributory Negligence.
    Whether the owner of a horse, in permitting it to be driven unshod when the roads were slippery because of recent rains, was guilty of contributory negligence, precluding a recovery for damages resulting from its inability to keep its footing upon an inclined highway and bridge, which was unprotected by barriers, was a question for the jury, as was also the question of the negligence of the driver in not alighting before attempting to drive up the incline.
    Error to Sanilac; Beach, J.
    Submitted April 30, 1897.
    Decided June 7, 1897.
    Case by Henry P. Perkins against the township of Delaware for damages alleged to have been sustained by reason of a defective bridge. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The negligence charged in this case is the construction of a bridge across a ravine, with the north end thereof 1 foot lower than the south end, thus creating an incline of about 1 foot in 20; in permitting the supports to the bridge to become rotten, so that the east side was lower than the west side; and in failing to provide railings for the sides. The declaration alleges that, “while said horse and buggy were on said bridge, said horse, by reason of said incline as aforesaid, unavoidably slipped, and in his struggles to recover himself, and without fault of the driver, backed off and over the bridge on the east side into the ravine, a distance of 10 feet.” The horse was killed, and the buggy injured. Plaintiff recovered verdict and judgment.

      William H. Burgess and H. O. Babcock, for appellant.

      John F. Murphy (W. T. Bope, of counsel), for appellee.
   Grant, J.

(after stating the facts). The defendant requested the court to direct a verdict for it. The case was left to the jury upon the theory that there was evidence to sustain the three grounds of negligence alleged. There was a steep hill at the south end of the bridge,' and that end was constructed higher than the other, to conform to the formation of the land. There was no negligence in this method of construction, and the court should have eliminated it from the consideration of the jury.

Plaintiff’s son, 14 years of age, was driving. His mother was riding with him. The evidence on the part of the plaintiff that the bridge sagged on the east side is as follows: Plaintiff’s son testified that the bridge at the northeast corner “sagged down a little;” another witness, that he observed that the east side was eight inches lower than the west side; another estimated that it was from four to six inches lower. Several witnesses on the part of the defendant testified that they could not observe any sag, and that there was no depression which could be observed with the eye. The highway commissioner made a measurement, and testified that at the north end there was an incline to the east of one inch. There is nothing in the record to impeach this actual measurement, and it must stand as true. The practice of permitting juries to base their verdicts upon guesses or estimates of distances or conditions which are susceptible of actual measurement is to be condemned. It is the duty of the plaintiff who seeks to recover damages for negligence to place before the jury the actual conditions when it is within his power to do so. The construction of a bridge 16 feet wide, 1 inch lower upon one side than upon the other, is not negligence. This charge of negligence should have been eliminated from the consideration of the jury.

Only the charge as to railings remains. Under the decisions of this court, it was a question for the jury to determine whether the failure to maintain railings was negligence. Shaw v. Township of Saline, ante, 342, and authorities there cited.

It is difficult to ascertain from the testimony precisely how the accident occurred. Mrs. Perkins testified that the horse slipped about in the middle of the bridge; that her son struck the horse with the whip,, “but he still slipped, and the heft of the buggy dragged him over the bridge.” She further testified that the boy jumped before the horse and buggy went over, and that the hind part of the rig went over first. On cross-examination she testified that when the boy struck the horse “he started ahead quick, tried to get his feet, and got ahead, but we were too close, and we went over.” The son testified, “When we got on the bridge, and got about to the center, the horse started to slip, and I hit him with the whip, and he slipped more and more, and the bridge was on an incline, and the buggy pulled the horse over the bridge.” He also testified that when he hit the horse the second time “his front feet were off the bridge, going up the hill; his hind feet were yet on the bridge; then he slipped, and went to one side.” Another witness for the plaintiff testified that he saw where the horse slipped in the middle of the bridge, and where he tried to walk up the hill, probably four or five feet from the bridge. It had been raining the night before, and plaintiff’s horse was unshod. There were several steep hills in the road, the soil of which was clay. They had been made slippery by the rain. The hill which they had passed a short distance before coming to the hill and bridge where the accident occurred was so slippery that the horse could not pull the load up, and Mrs. Perkins got out and walked. One Joseph Mabie, a witness for the plaintiff, testified that the' hill was so slippery he did not consider it safe to ride up in his buggy, and that he got out and walked up. Plaintiff himself testified: “I knew these hills were there, and if I had stopped to think I would have known that they would be slippery a morning like that. But I didn’t think anything about it.” There was some clay upon the bridge according to several of the witnesses, evidently washed upon it from the hill by the rain, or carried on by horses and carriages. For this condition of the road the defendant is not responsible. Rolf v. City of Greenville, 102 Mich. 544. We think that it was a question for the jury to determine whether the plaintiff was guilty of contributory negligence in permitting his unshod horse to be driven over the road, and whether the driver was negligent in attempting to drive over the bridge and up the hill with the occupants in the buggy.

Reversed, and new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    WYNKOOP v. GRAND TRAVERSE CIRCUIT JUDGE.
    1. Taxes — Sale of Delinquent Lands — Affidavit of Publication — Effect of Failure to Sion.
    The affidavit of publication of the auditor general’s petition for the sale of lands delinquent for taxes, and of the order of hearing thereon, required by Act No. 206, Pub. Acts 1893, § 66, to be filed in the office of the county clerk before any final order is made, is valid if properly sworn to before a notary, whose attestation appears thereon, though not signed by the affiant. ;
    2. Same — Omissions—How Cured.
    The affidavit is not rendered invalid by the omission to state that the newspaper in which the publication was made is “circulated” in the county where the delinquent lands are situated, if that fact clearly appears from the petition and order themselves, and from, the certificate of the auditor general designating such paper for making the publication.

      Mandamus by Mary A. Wynkoop to compel Roscoe L. Corbett, circuit judge of Grand Traverse county, to set aside a decree for the sale of land for delinquent taxes.
    Submitted May 4, 1897.
    Writ denied June 7, 1897.

      Underwood & Umlor, for relator.

      Tioeddle & Cross, for respondent.
   Moore, J.

The relator asks for a writ of mandamus to compel the judge of the Grand Traverse circuit court to set aside a decree entered October 13, 1894, for sale of lands delinquent for taxes of 1892. The return of the circuit judge shows that on the 18th of August, 1894, the auditor general filed a petition, pursuant to Act No. 20C, Pub. Acts 1893, for the sale of lands delinquent for taxes of said year and previous years. Upon the filing of said petition, an order was made by the circuit judge substantially in the form prescribed by said act, and said order, petition, and list of lands delinquent for taxes were duly published in the Grand Traverse Herald, said paper having been duly designated by the auditor general. At the time of the hearing, there was filed with the clerk of the court a paper reading as follows:

“Thomas T. Bates, publisher of the Grand Traverse Herald, a weekly newspaper printed and published in Traverse City, Grand Traverse county, Mich., being duly sworn, says that the notice, a copy of which is hereto annexed, has been published in said Grand Traverse Herald once in each week for four (five publications) successive weeks, commencing August 30, 1894, and ending September 27, 1894. ---.
“Sworn and subscribed the 29th day of September, 1894, before me.
“Mabel Bates,
“Notary Public in and for Grand Traverse County.’.’

Attached to this paper was a copy of the petition of the auditor general and the order of the circuit judge. It is now claimed that this affidavit did not confer jurisdiction upon the court to render a decree in the tax proceedings— First, because it is not signed; second, because it does not state that the Grand Traverse Herald is a paper circulated in the county of Grand Traverse, where the lands are situated; third, because it does not state that the order of the court and the petition of the auditor general were ever published as the law requires.

With reference to the objection to the affidavit that it is not signed, it is said, “The better practice requires that an affidavit should be signed by the affiant, in order to more readily identify him; but, in the absence of some positive statute or rule of court, this is generally not necessary.” 1 Enc. Pl. & Prac. 315, and many cases cited. The effect of a lack of signature has been discussed in a number of cases before this court, and it has been held that, if properly sworn to, an affidavit is valid, though not signed by the affiant. People, ex rel. Dickinson, v. Simondson, 25 Mich. 113; Merrick v. Mayhue, 40 Mich. 196; Bloomingdale v. Chittenden, 75 Mich. 305. The provision of the statute in relation to the proof of the publication of the order and petition is as follows: “Proof of the publication of the order and petition herein required shall be filed in the office of the county clerk before any final order is made.” The statute also provides that “any person familiar with the facts may make an affidavit as to the publication required.” Act No. 206, Pub. Acts 1893, § 66. We do not think the failure to sign the affidavit made it void.

The return of the circuit judge shows that on the 10th of July, 1894, a certificate of designation of the newspaper in which the order of the circuit judge and the petition of the auditor general were to be published was duly filed in the office of the county clerk of said county by the auditor general, which certificate is in the words and figures following:

“The Circuit Court for the County of Grand Traverse, in Chancery.
“In the Matter of the Petition of the State of Michigan for the Sale of Certain Lands for the Taxes Assessed Thereon for the Year 1892 and Previous Years.
“I hereby certify that on the 20th day of June I designated the Grand Traverse Herald, published at Traverse City, in said county of Grand Traverse, a newspaper published and circulated in said county of Grand Traverse, as the newspaper in which the order and petition in the above-entitled cause are to be published, together with the descriptions of lands assessed in said year and years (and which said lands are delinquent for the taxes of said year or years), and that such designation was accepted by the publisher of said Grand Traverse Herald on the 21st day of June, 1894.
“Stanley W. Turner,
“Auditor General.
“Dated at Lansing, June 23, 1894.”

I think it is clearly shown from this certificate, taken in connection with the order of the circuit judge, the petition of the auditor general, and the affidavit of the publisher of the Grand Traverse Herald, that the Grand Traverse Herald is a paper published and circulated in the county of Grand Traverse, where said lands are situated. Dexter v. Cranston, 41 Mich. 448; Muirhead v. Sands, 111 Mich. 487.

The circuit judge was of the opinion that the relator had failed to show any such irregularity in the proceedings as would authorize him to set aside the decree rendered by him in October, 1894. We think he was right in his conclusions.

The writ is denied.

The other Justices concurred.


text:
    HOME SAVINGS BANK v. WAYNE CIRCUIT JUDGE.
    1. Estates of Decedents — Appeal from Disallowance of Claim: —Notice—How Given.
    Notice of appeal by a creditor of a decedent’s estate from the disallowance of his claim by the commissioners need not, under 2 How. Stat. § 5910, providing for notice of such appeal in such manner as the probate judge shall direct, be served on other creditors of the estate, unless the probate judge so directs.
    2. Same — Bond on Appeal — Obligees.
    The bond required by 2 How. Stat. § 5908, to be given to the “adverse party” on an appeal from the disallowance by the commissioners of a claim against a decedent’s estate, properly runs to the administrator, and not to other creditors who contest the claim.

      Mandamus by tbe Home Savings Bank and tbe Preston National Bank of Detroit to compel Willard M. Lillibridge, circuit judge of Wayne county, to permit the relators to intervene in a certain cause for the purpose of moving to set aside the judgment therein.
    Submitted May 18, 1897.
    Writ denied June 7, 1897.

      George W. Radford and Julian G. Dickinson, for relators.

      Sidney T. Miller, for respondent.
   Moore, J.

March 10, 1897, a judgment for $9,260 was rendered in favor of Augustus P. Thompson, as executor of the estate of Matilda C. Thompson, against the estate of J. Huff Jones. Soon thereafter the relators moved to set aside said judgment, for reasons therein stated. On the hearing of the motion, by consent of counsel and the court, it was treated as a motion for leave to intervene for the purpose of making a motion to set aside said judgment, and the motion was denied. The relators now ask that a mandamus issue to compel the circuit judge to grant said motion.

The record shows that the relators are creditors of the estate of J. Huff Jones in a large amount, and that the estate is probably insolvent; that Mrs. Thompson, in her lifetime, presented a claim against said estate to the commissioners on claims. Before the claim was acted upon, she died, and Mr. Thompson was appointed her executor. Upon the hearing, the claim was disallowed by the commissioners. October 22, 1895, Mr. Thompson appealed from the action of the commissioners to the circuit court. The judge of probate directed him to give a bond to the executors, and to give them notice of the appeal, which he did. The claim of Mrs. Thompson was contested by the relators, and their attorneys had knowledge that the appeal had been taken, though no notice of appeal had been served upon them; but at no time before making this motion did they ask to be allowed to intervene or to take charge of the litigation. They ask now to be allowed tc do so for the following reasons:

1. Because they were never notified of the appeal, or of the trial of said cause.
2. Because the judgment was rendered upon a stipulation made by the attorneys for the claimant and the attorneys for the estate, without notice to the relators, and without giving them an opportunity to contest the claim.
3. Because the bond and notice were not given to the adverse parties.
4. Because said judgment, appeal, and proceedings were collusive and a fraud upon the creditors.

As to the first of these reasons, I think the record shows clearly that, while the probate judge did not require notice of the appeal to be served upon the relators, they, in fact, had notice that an appeal had been taken.

As to the second reason, the return of the judge shows that the judgment was not based upon a stipulation of counsel, but upon proofs taken in court; it appearing from the books of Mr. Jones, as shown by an expert (agreed upon by all tbe parties in interest as a proper person to examine the books), who examined them, that Mr. Jones was indebted to the claimant for money that had been intrusted to him to invest from time to time, which amount, with interest added, was the amount for which judgment was rendered..

As to the third reason, the bond and notice of appeal were given as directed by the probate judge. 2 How. Stat. §§ 5908, 5910. They were given to the proper parties. Daniels v. Stevens, 60 Mich. 219.

As to the claim that the proceedings were collusive and a fraud upon the creditors, there are but two things that tend in the slightest to show that this is true. One of these is that the claim of Mrs. Thompson was disallowed before the commissioners, and the other is the affidavit of Mr. Pitts that-“he believes that the said claim is invalid, and that it can be defeated, and that it should be.” The record shows that Mr. Post, one of the commissioners on claims, stated that the reason why the commissioners rejected the claim was because it was not made to appear affirmatively before the commissioners that Mrs. Thompson had not received any of the money that was shown by the books to be due her. This proof was supplied before Judge Lillibridge. The affidavit of Mr. Pitts does not undertake to show what are the facts in relation to the dealings between Mrs. Thompson and Mr. Jones: It gives simply the conclusion of the affiant, and could not be treated as a basis for granting a new trial in a case. The circuit judge returns that there was nothing in the showing made before him which gave him any reason to think the judgment was procured by collusion, or, if it was vacated and the relators were allowed to intervene, that any different result would be reached in a new trial. From a careful inspection of all the papers filed, we think he was fully justified in his conclusion.

The application for mandamus is denied.

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


author: Per Curiam.

text:
    ATTORNEY GENERAL v. COMMON COUNCIL OF DETROIT.
    1. Taxes — Exemptions—Telephone Companies.
    The property of telephone companies organized under Act No. 129, Pub. Acts 1883 (3 How. Stat. chap. 102a), is exempt from local taxation, it being declared by section 8 of the act that such companies shall be subject to taxation in accordance with Act No. 168, Pub. Acts 1881 (1 How. Stat. § 1237 et seq. ), which provides for a general tax, the rate of which is to be determined by a state board, “in lieu of all other taxes, state and local.”
    2. Same — Musical Societies.
    The real estate of musical societies incorported under Act No. 128, Sess. Laws 1857 (1 How. Stat. chap. 149 ), is by section 8 of the act expressly made subject to taxation the same as other real estate, and hence it does not come within subdivision 4 of section 7, Act No. 206, Pub. Acts 1893, providing that such real estate as shall be owned and occupied by library, ^enevolent, charitable, educational, and scientific institutions shall be exempt while occupied solely for the purposes for which they were incorporated.
    3. Same — Benevolent and Educational Associations — What Constitute.
    It is not enough, in order to render an association exempt from taxation under the last-mentioned provision, that one of its direct or indirect purposes or results is benevolence, charity, education, or the promotion of science, but it must be organized chiefly, if not solely, for one or more of these objects.

      Mandamus by Fred A. Maynard, Attorney General, to compel the common council of the city of Detroit, sitting as a board of review, to place the property of certain corporations upon the assessment rolls for taxation.
    Submitted June 1, 1897.
    Writ granted June 7, 1897.

      James H. Poimd and Alfred J. Murphy, for relator.

      Charles D. Joslyn and H. H. Hatch, for respondent.
   Per Curiam.

The board of assessors of the city of Detroit assessed the property, real and personal, of the Masonic Temple Association, at the sum of #169,000, of the Harmonie Society at #47,700, of the Arbeiter Society at the sum of #13,340, and of the Detroit Telephone Company at the sum of #250,000. The common council, sitting as a board of review, held that the property of the Masonic Temple Association and that of the Harmonie Society were exempt from taxation under subdivision 4 of section 7, Act No. 206, Pub. Acts 1893, which reads as follows:

“Such real estate as shall be owned and occupied by library, benevolent, charitable, educational, and scientific institutions incorporated under the laws of this State, with the buildings and other property thereon, while occupied by them solely for the purposes for which they were incorporated: Provided, that such exemption shall not apply to fraternal or secret societies, but all charitable homes of such societies shall be exempt.”

They reduced the valuation of the property of the Arbeiter Society two-thirds, and of the Detroit Telephone Company to #25,000. The object of this suit is to determine the validity of this action of the council.

The property of the Detroit Telephone Company is by law exempt from local taxation. By the act of incorporation (section 8 of Act No. 129, Pub. Acts 1883; 3 How. Stat. § 3718Ti), telephone companies are made subject to taxation in accordance with Act No. 168, Pub. Acts 1881. By this act these companies are required to make a report annually to the auditor general, and the auditor general, state treasurer, and commissioner of the land office are constituted a board to determine the rate of tax to be levied, “which tax shall be in lieu of all other taxes, state and local, and ghall be payable to the state treasurer.” It follows that the action of the council in assessing this property for local taxation is void.

The' real ■ estate of the Harmonie Society is not exempt from taxation. 1 How. Stat. § 4471, especially provides that the real estate of such associations is subject to be taxed as other real estate.

The property of the Masonic Temple Association, the Harmonie Society, and the Arbeiter Society is not exempt from taxation. They do not come within subdivision 4 of section 7 of Act No. 206, above quoted. It is not enough, in order to exempt such associations from taxation, that one of the direct or indirect purposes or results is benevolence, charity, education, or the promotion of science. They must be organized chiefly, if not solely, for one or more of these objects.

The writ of mandamus will issue in accordance Avith this opinion.


author: Hooker, J. Long, C. J.

text:
    JACKSON v. LEECH’S ESTATE.

    1. Executors and Administrators — Final Account — Amendment in Circuit Court
    An executor’s final account, as presented for settlement in probate court, may, in furtherance of justice, be amended in the circuit court on appeal by adding omitted items.
    2. Same — Charges—Tombstone.
    The price paid for a suitable tombstone for a decedent is a proper charge in the executor’s final account.

    3. Same — Attorney’s Fees — When Allowed.
    Under 2 How. Stat. § 5958, providing that an executor or administrator shall be allowed “all necessary expenses in the care, management, and settlement of the estate, and for his services such fees as the law provides, together with all extra expenses,” reasonable attorney’s fees for services actually and necessarily rendered by counsel in the settlement of the estate, although yet unpaid by the executor, are properly allowed to him in his final account. Hooker and Grant, JJ., dissenting.
    •Error to "Wayne; Simpson, J., presiding.
    Submitted November 13, 1896.
    Decided June 28, 1897.
    Abram Jackson appealed from an order of the probate court charging him with a large sum in addition to the items of indebtedness shown in his final account as executor of the last will and testament of Rachel M. Leech, deceased. In the circuit court he was allowed to add certain items of credit, and from the judgment thereafter rendered the estate brings error.
    Affirmed.

      Thomas S. Jerome, for appellant.

      Roivland M. Connor {John D. Conely and C. K. Latham, of-counsel), for appellee.

       Rehearing denied November 23, 1897.

       The liability of a decedent’s estate for funeral expenses is considered at length in a note to Fogg v. Holbrook, (Me.) 33 L. R. A. 660.

   Hooker, J.

{dissenting). This case is an appeal from, the allowance of certain items in an executor’s account. The disputed items consist of a debit of $1,000 cash received upon an insurance policy, which he had failed to include in the inventory, and five credits, as follows:

Attorney fees to John D. Conely_________________ $400
Paid for tombstone.............................. 250
Paid E. W. Leech for services.................... 300
Paid expenses of E. W. Leech.................... 50
Paid repairing sidewalk and cleaning snow....... 20

None of these items - appeared in the account as filed in probate court, which account was filed by Jackson upon a citation, after his removal as executor, and the appointment of the Union Trust Company administrator with the will annexed, at the instance of one Burrows, a creditor. Upon the hearing the probate court surcharged the executor with a large sum additional to the items stated in his account, which sum was made up of the life-insurance money received, with interest, and a claim for devastavit, in that he, in confederacy with Mr. Leech, the husband of the testatrix, had desti-oyed the value of her holding of stock in a lumber company, and made an order fixing his indebtedness to the estate at the sum of $4,000, from which order Jackson, the executor, appealed to the circuit court.

Upon the trial in the circuit court it was claimed that the executor was an uneducated man, a resident of Canada, and that the business of the estate was carried on through Mr. Leech, and that the money received upon the insurance policy was inadvertently omitted from the inventory under a misunderstanding between the executor and his counsel who prepared the inventory, and that in fact this money was all used in payment of expenses of the estate which were not included among the credits stated in the account, and application was made for leave to amend the account by adding the items mentioned, which was granted, and the case proceeded upon the theory that it was amended. It is said that this amendment is unlawful, it being contended that the circuit court could not pass upon items not considered by the probate court; and counsel cites Patrick v. Howard, 47 Mich. 40, and Dayton v. Dakin’s Estate, 103 Mich. 65, in support of this contention. These were cases of claims of creditors, and are distinguishable from this case, which falls under the well-settled rule that in cases of .accounting by administrators and executors it is proper for the circuit court to allow amendments and additions to the account presented for settlement in furtherance of justice, in support of which counsel for the executor cite Brown v. Forsche, 43 Mich. 501; Loomis v. Armstrong, 49 Mich. 527, 63 Mich. 366. We are of the opinion that the amendment was properly allowed. -

A suitable tombstone was a proper charge. See Pistorius’ Appeal, 53 Mich. 350. The other items were proper ones, provided they were for services rendered to the estate under circumstances showing them to have been necessary, and the charges reasonable. No charge was made for the services of the executor, and there was evidence that Leech performed the labor appertaining to the office. It was just that the executor should be paid for the labor performed, and the same may be said of counsel fees and. expenses. We gather from the record that the jury passed upon these questions and that the court approved their verdict, and it is not usual for us to review disputed questions of fact, if there is evidence supporting the conclusion reached. It should, however, appear that the services were rendered, that they were necessary, and that the charges were reasonable. It seems, however, to be the general rule that services such as these are rendered for the executor, and that it is only through the medium of his account that the estate can be charged for them, and not then until he has paid them. Such is the practice in New York under their statute, as shown by cases cited in the appellant’s brief. See Shields v. Sullivan, 3 Dem. 299; In re Bailey's Estate, 47 Hun, 477; Seaman v. Whitehead, 78 N. Y. 309. In Austin v. Munro, 47 N. Y. 360, executors made a contract for services in vindicating and asserting their claim to property in their representative capacity, and for the benefit of the estate they represented, and it was held not to bind the estate. It was there said:

“The principle is that an executor may disburse and use the funds of the estate for the purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. ”

The same rule prevails in Alabama. Pearson v. Darrington, 32 Ala. 263; Bates v. Vary, 40 Ala. 441. Seer also, 3 Williams, Ex’rs, 425, 494, 495; 2 Williams, Ex’rs, 193-195; Schouler, Ex’rs & Adm’rs, § 544.

The propriety of this rule is made apparent by the account filed in this case, which consists of numerous items alleged to have been disbursed for the estate, such as railroad fare, repairs, taxes, interest, hardware, hotel bills, cleaning sidewalk, painting, etc. All of these were for services or expenses alleged to have been rendered or incurred for the benefit of the estate, and, for aught that we can say, were proper charges if they were paid, but, if not paid, they should not be made a part of the account. The law requires executors and administrators to file accounts periodically, and when order'ed by the court. These accounts are supposed to show what the officer has received from and disbursed for the estate, and it would be anomalous for items to be allowed to the executor before he had paid them, even if they were strictly charges against the estate, such as claims allowed by commissioners, or, amounts of legacies allowed. In this case those who furnished hardware, paint, and labor for the executor had a charge against him for it, not against the estate, which, when paid by him, whether from his own or estate funds, he might have asked to have allowed if a reasonable and proper expenditure. Attorney fees are upon the same footing. As well might the various little items of labor for painting, cleaning walks, etc., be allowed to him before payment, upon the theory that he had incurred an obligation, as for counsel fees to be so allowed. ■ The temptations afforded by fiduciary relations should not be increased by a relaxation of the rule requiring actual disbursements of estate funds before giving credit for such disbursements. In Bates v. Vary, 40 Ala. 441, the court say: “A trustee is not entitled to a credit on a settlement for such services, or the value of them, unless he shows payment.” In Re Heather's Estate, 15 Abb. N. C. 197, it is said: “In no event could such allowance be made- until the administrator had paid his counsel, and applied for reimbursement. ” Similar language will be found in the case of Shields v. Sullivan, 3 Dem. 300. In Re Bailey, 47 Hun, 477, it was said:

“For payment so made a claim may be made for reimbursement out of the funds of the estate; but the rule is well settled that in no event can an allowance be made by the surrogate for a claim presented by an executor until he has actually paid his counsel, and has applied for reimbursement. Shields v. Sullivan, 3 Dem. 296. In this case Brisbin, the executor, was credited in his decree with $200, value of services of George B. Lawrence, an attorney, and with $150 for services of O. A. Waldron, his attorney in another action; the undisputed evidence being that no money-had been paid to them; not a dollar of the funds of the estate had been applied in making such payment. True, he had given his notes for the amount, but the surrogate finds as a fact that he was insolvent, so that the giving of the notes was a mere matter of form, and the conclusion is almost irresistible that the attorneys, having abandoned all hope of compensation, accepted the notes so as to reduce the amount of the executor’s liability for moneys received to the devisees under the will. It seems to be clear that the claim of the executor did not come within the rule justifying the surrogate in giving the credit as provided in the decree.”

That the obligation is due from the executor to the attorney, and not from the estate, is held in many cases. Tucker v. Grace, 61 Ark. 410; Pike v. Thomas, 62 Ark. 223; Long v. Rodman, 58 Ind. 61. In the last-mentioned case the court said:

“In the 149th section of the act providing for the settlement of decedents’ estates, etc., approved June 17, 1852, it is provided that the proper court may allow to an executor or administrator reasonable attorney’s fees, where he employs an attorney in the management of such estate. 2 Rev. Stat. 1876, p. 546. Under a fair and reasonable construction of this provision, it seems to us that an executor or administrator may employ an attorney in the management of his decedent’s estate; that, in the absence of any special agreement to the contrary, such executor or administrator will be personally liable to such attorney for his reasonable fees; that on the payment of such reasonable attorney’s fees such executor or administrator shall be allowed therefor by the proper court; and that, in the absence of any special contract by the attorney that he will look to the decedent’s estate for his pay, as his reasonable fees are made a proper charge against such estate, such attorney may, as he may elect, enforce the collection of his reasonable fees from such executor or administrator, in his personal capacity, or he may present his claim therefor to the proper court for allowance as a proper charge against such estate. The contracts of an executor or administrator cannot be regarded as in any sense the contracts of the decedent. They are necessarily the personal contracts of the executor or administrator, and he must be held personally liable therefor, when he does not stipulate for exemption from such liability.”

This clearly implies that the administrator can have such charges allowed as disbursements, on payment. This rule is not based on statute, but, as shown in the New York cases, exists notwithstanding the statute authorizes the allowance of counsel fees. In 2 Williams, Ex’rs, p. 195, it is said: “But no allowance can be made for such fees until they have been actually paid.”

The case of Hoke v. Hoke, 12 W. Va. 427, is supposed to support the allowance in this case, but that may well be doubted. It does not appear that the item was not paid, and it is not improbable that the only allusion to the subject sprang from the caution of the court in its recognition of the very rule which has been discussed. According to the headnote of that case, it was held that the executor was justified by the circumstances in employing counsel, and that reasonable charges for services might be allowed by the probate court to the executor, if he had paid them, and, if not, they might be allowed to counsel, and payment directed by the estate. It will be noticed in this case that the lower court required that such allowance be based on an itemized statement of actual expenses and charges for services rendered. Id. 455. • .

It would seem clear, therefore, that whether the charges for counsel fees were reasonable and proper charges as against the estate or not, the court should not have allowed them to the executor, because he had not paid them. Upon payment of said fees it would seem to be a proper subject for another account. The executor should be given an opportunity of making himself whole if he is indebted for such items as are reasonable, and have not been paid, if he acts seasonably. .

Another question arises over interest upon the amount collected upon the insurance policy. If, as contended, the executor attempted to embezzle this fund, he is chargeable with interest, subject to an offset by way of interest upon payments for the estate advanced by him or from such fund; otherwise interest should not be allowed upon such fund.

As it clearly appears that neither the counsel fees nor the item for the services of Leech had been paid, the court should not have allowed them. The order of the circuit court should be reversed, and a new trial ordered.

Grant, J., concurred with Hooker, J.

Long, C. J.

It is said by my Brother Hooker that, as the counsel fees had not been paid, the court should not have allowed that item. I cannot agree with that contention. 2 How. Stat. § 5958, provides: “The executor or administrator shall be allowed all necessary expenses in the care, management, and settlement of the estate, and for his services such fees as the law provides, together with all extra expenses,” etc. The charge for an attorney or counsel must, of course, be for necessary services actually rendered, and the liability therefor incurred by the executor. There is no question raised but that the services of the attorney here were rendered to the estate, and were necessary in the settlement thereof, and that the charge is reasonable. The only ground upon which this item of the account is eliminated by my Brother Hooker is that the executor had not in fact paid it. I am aware that in some jurisdictions this is held to be necessary under the provisions of the statute, but our statute cannot be given that construction. Such a one would, in many instances, work great hardship and loss to estates. Suppose the assets of the estate were not immediately available, and it was threatened with litigation; must the executor advance the money from his own funds? I think not. The statute should be so construed that the executor or administrator may safely procure the aid of legal advisers, and thus bind the estate for the payment’ of what may be found reasonable. In Hoke v. Hoke, 12 W. Va. 491, the claim was that the court erred in. allowing fees to counsel of appellant as executor, and it was held that it was proper and prudent for the executor to employ counsel, and that it was to the interest of the estate that he should do’ so, and the allowance was affirmed. The case should not be reversed upon this ground.

The judgment should be affirmed.

Montgomery and Moore, JJ., concurred with Long, C. J.


author: Montgomery, J. Grant, J.

text:
    ENO v. ALLEN.
    Evidence — Hearsay.
    In an action for malicious prosecution in procuring plaintiff’s arrest upon a criminal charge, evidence of a statement made by the prosecuting attorney subsequent to the arrest, that he had told the defendant to withhold the warrant until the suspected person could be identified, is not substantive proof that the defendant was so instructed.
    Error to Monroe; Kinne, J.
    Submitted April 14, 1897.
    Decided June 28, 1897.
    Case by Adna Eno against Horace H. Allen for malicious prosecution. From a judgment for plaintiff, defendant brings error.
    Reversed.

      G. M. Landon, for appellant.

      John E. Bird and John O. Zabel, for appellee.
   Montgomery, J.

This action is for malicious prosecution. Plaintiff showed that his arrest was under a warrant issued on a complaint made by defendant charging him (plaintiff) with the larceny of a quantity of clover seed, and further showed that he was discharged from this arrest. Defendant did not, upon this trial, contend that plaintiff was guilty of the offense of larceny, but showed the fact that the clover seed that the plaintiff was charged with having stolen was stolen from defendant, and gave evidence tending to show a combination of circumstances which pointed to the plaintiff as the perpetrator of the offense. The mistake was a mistake of identity.

The larceny occurred some weeks before the institution of the prosecution, and the public authorities, including the prosecuting attorney and sheriff, had been endeavoring to discover the offender. The prosecuting attorney,, it would seem, had sent word to the defendant to come to Monroe to make complaint. Defendant went to Monroe, and had a short talk with the prosecuting attorney, who was at the time engaged in the trial of a case, and stated that he told him all that he could in the time that he had, and kept nothing back which he thought was pertinent;. that he did not know the man, and did not wish him arrested if he was not the man wanted; that he told the prosecuting attorney what lie had been told, and the s.uspicious circumstances; that the prosecuting attorney directed the defendant to go with the sheriff, and take out a warrant, stating that he would send a man to identify with the sheriff before making the arrest, and, if they did not identify plaintiff, he (plaintiff) was not to know that the sheriff had a warrant. This testimony was corroborated by the prosecuting attorney. Defendant testified on the cross-examination that he did not tell the prosecuting attorney all the facts, as he did not have time. The plaintiff also introduced testimony tending to show that the prosecuting attorney, some time after the arrest, stated to the witness that he had directed the defendant to make complaint; that he had tío time to talk with defendant at the time, and told defendant that he might make complaint, but to investigate it further before serving the warrant. This testimony was disputed by the prosecuting attorney.

The question naturally presented by this testimony was whether the prosecuting attorney was responsible for the prosecution or whether the defendant instituted it. As to the controlling question in determining this fact, see Smith v. Austin, 49 Mich. 286. Whether the .defendant’s requests presented this theory we need not inquire, as the court, in one material portion of the instruction, fell into serious error. The instruction given was as follows:

“ It is claimed on the part of the plaintiff that, when the prosecuting attorney directed Mr. Allen to make the complaint, lie instructed him not to have the warrant served until he (Mr. Allen) had made further investigation. This is controverted and disputed by Mr. Allen and Mr. Lockwood, the prosecuting attorney. If, however, the contention of the plaintiff in this respect is correct, it imposed upon Mr. Allen the duty to further investigate the identity of the plaintiff, and, if he failed to do so, then the authority of the prosecuting attorney would be no protection to him; but if Mr. Allen, acting through the sheriff and the other parties, did make further investigation before the service of the warrant, and if such investigation would have satisfied an ordinarily prudent man of the identity and guilt of the plaintiff,, then, even though a mistake was made, the defendant would be fully protected and justified.”

There was n'o proof whatever that the prosecuting attorney told defendant not to serve the warrant until the plaintiff was identified, except the alleged admission made long after the complaint was made. This was not substantive proof of the fact.

Judgment will be reversed, and a new trial ordered.

Long, C. J., and Hooker, J., concurred with Montgomery, J.

Grant, J.

I concur in the reversal of this case, but I think that the court should have directed a verdict for the defendant. The record contains no evidence of bad faith or malice on the part of the defendant, nor does it show that he withheld any material fact from the knowledge of the prosecuting attorney. The only statement I find in the record from which the inference could be drawn that he did withhold material facts is found in defendant’s cross-examination, which is given in narrative form. He testified: “Our conversation lasted probably five minutes, and do not think I told him all I knew. I did not tell him anything I did not know.” The officer and the prosecuting attorney had been active in their efforts to discover the thief who stole the clover seed. The defendant went to see the prosecuting attorney at the latter’s request. The prosecuting attorney then directed, defendant to make a complaint against plaintiff, and directed the officer not to serve it until he was satisfied from investigation of the identity of the plaintiff. After that defendant had nothing to do with the proceeding. If there is fault chargeable to any one, it is to the prosecuting attorney and sheriff, rather than to the defendant.

Moore, J., concurred with Grant, J.


author: Montgomery, J.

text:
    BAILEY v. HOLDEN.
    1. Witnesses — Competency—Matters Within Knowledge of Decedent.
    Under 3 How. Stat. § 7545, one who flies a bill to quiet title against the assigns of a deceased, person, through whom he also claims by a prior conveyance, is incompetent to testify to matters which, if true, were equally within the knowledge of the deceased.
    2. Equity — Evidence—Presumption on Appeal.
    No presumption in favor of the correctness of the determination of the circuit judge on disputed questions of fact in a chancery case can attach upon appeal, when it appears that such decision was based in part upon inadmissible testimony.
    Appeal from Barry; Smith, J.
    Submitted April 14, 1897.
    Decided June 28, 1897.
    Bill by Frank Bailey against John Holden and others to remove a cloud from title. From a decree for complainant, defendants appeal.
    Reversed.

      Barrell & Potter, W. S. Powers, and Philip T. Col-grove, for complainant.

      Alonzo D. Cadwallader (Alfred J. Mills, of counsel), for defendants.
   Montgomery, J.

The original bill was filed by the complainant to remove a clond from the title to lands claimed to be owned by him. "The bill alleges that the complainant acquired his title through a conveyance made on the 21st of November, 1893, to him by his wife, Mary; that he went into actual possession of the land, and has remained in possession ever since; and that on the 10th of November, 1894, his wife, Mary, died intestate, and without issue. The bill avers that the defendant John Holden, on the day of the death of complainant’s wife, caused a conveyance of the premises in question from Mary Bailey to defendants Carrie F. Holden, Frank H. Holden, Pearl Q. Holden, and Bernice N. Holden, purporting -to have been executed on the 29th of October, 1894, to be placed of record. The defendant John Holden is a brother of Mary Bailey, deceased, and the other defendants are his minor children. Defendants, by their answer and cross-bill, aver that the conveyance under which complainant claims was procured by means of influence which complainant had over his wife, and was executed with the express understanding that it was to operate and be considered as a will of Mary Bailey, and to take effect only at her death, and that she reserved the full power of revocation.

The case turned below, and must turn here, upon the determination of the question as to whether the conveyance was made as an absolute conveyance, or with the purpose that it be delivered and take effect after the death •of Mary Bailey; and this is mainly a question of fact. Three persons besides the deceased were present when the deed to complainant was signed. They were complainant himself, an attorney named Lowden, who had driven out to the residence of deceased and complainant for the purpose of taking the acknowledgment of the deed, and who had in advance prepared the deed for execution, and a domestic, Miss Hazel.

'A preliminary question is made as to whether complainant is a competent witness to testify to facts equally within the knowledge of his deceased wife. The statute (section 7545, 3 How. Stat.) provides that—

“When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person.”

Defendants are the assigns of Mary Bailey. They claim under a deed executed by her in due form, to defeat which it is necessary to show that she had parted with title prior to the date of the deed to defendants, and the testimony which complainant offered was for the purpose of establishing this fact. In Ripley v. Seligman, 88 Mich. 177, at page 189, Mr. Justice Champlin said:

“The word ‘assigns’ is used here in its legal sense, and signifies a person to whom any property or right is transferred by a deceased person in his lifetime. The statute is broad enough to cover successive transfers, or where the controversy depends upon the acts or dealings with the property of the deceased in his lifetime; and any one who is called upon to prosecute or defend some interest which is affected by the act or agreement of the deceased party through whom he claims may invoke the protection of the statute to shield his interest from the testimony of the opposite party to matters which, if true, were equally within the knowledge of the deceased person through whom he claims.”

In Schuffert v. Grote, 88 Mich. 650 (26 Am. St. Rep. 316), a son filed a bill to set aside a deed executed by, his father, since deceased, to the defendant, and confirm the title to the land in the complainant .under a prior deed executed to complainant by the father. It was held that the testimony of the complainant as to the execution of the first deed, and as to what took place between his. father and himself, was excluded by the statute. The case is on all fours with the present. In Lloyd v. Hollenback, 98 Mich. 203, a daughter of her deceased father filed a bill alleging an agreement to give complainant certain property in consideration of a life support, and to set aside a deed executed by her father in his lifetime to defendant. The statute was held to exclude her testimony. See, also, Connolly v. Keating, 102 Mich. 1.

Complainant cites, to sustain the admissibility of the testimony, the case of Latourette v. McKeon, 104 Mich. 156. In that case the action was brought against the maker of a note by one claiming to be the assignee of the deceased payee. No representative of' such deceased payee was prosecutor or defendant in the suit. But in the case of Hillman v. Schwenk, 68 Mich. 297, cited in Latourette v. McKeon, it was said:

“If the executor had indemnified the defendants, or had taken upon himself the defense of the suit, the statute excluding the plaintiff from testifying to matters which were equally within the knowledge of the deceased would have applied. ”

So, in the case of Brown v. Bell, 58 Mich. 58, and Schofield v. Walker, Id. 96, it was held that the testimony of the proponent of a will is not excluded, for the reason that there is no “opposite party” representing the estate of the deceased. If the case of Lautenshlager v. Lautenshlager, 80 Mich. 285, is to be deemed a misapplication of the doctrine of Brown v. Bell, the distinction has since been made in the later cases above referred to, and the rule firmly established. We think the testimony of the complainant was not competent.

The testimony of the witness Lowden we find far from satisfactory. It was given at a time when he was in jail awaiting a sentence for the crime of forgery. He testified that complainant came to him with a request, either verbal or in writing, that he prepare a deed, and take it out to the residence, seven or eight miles from town, for execution; that such a deed was drafted by his clerk; that he went to Mrs. Bailey’s farm, remained over night, and in the morning the deed was executed, with suspicious formality; that one dollar, a nominal consideration, was in fact paid; that the deed was delivered to complainant; and that after delivery Mrs. Bailey for the first time stated that she wished to have the deed withheld from record, as her brother John would be angry if he knew of the conveyance. The force of the testimony of this witness is very much weakened by the fact that subsequently he admits that he received pay from John Holden for going out to see Mrs. Bailey in regard to canceling the deed, and by the fact that he took the deed along with him at the time, — conduct hardly consistent with his present testimony that the deed was delivered beyond recall, and that he was simply withholding it from record until the decease of Mrs. Bailey. The fact that it was to-be withheld from record is significant, and the claim that the reason for withholding it was to avoid difficulty with her brother John Holden is inconsistent with the alleged course of the parties thereafter. Mrs. Bailey, it appears, made no secret of the fact that this deed had been made by her. Complainant himself produces a number of witnesses to testify to statements made by her to them to the effect that she had made such a deed. These statements, it is claimed, corroborate the contention of complainant, but we think they are of little weight in that direction. There can be no doubt that Mrs. Bailey, at the time of the execution of this deed, intended that at her death Mr. Bailey should receive her property. But the question of supreme importance is whether she intended, at the time, that the deed was delivered beyond recall.

The other witness to the deed was Miss Hazel. She testified that the deed was delivered to Mr. Lowden by Mary Bailey, conditionally; that she told him to take the deed, keep it until she called for it, and, if she called for it before her death, he was to deliver it up; if not, it was to be put on record after she died. It is true that there are some inconsistencies in the testimony of this witness, and we are compelled to rest our conclusions upon evidence which is not altogether satisfactory. But, having in view the relationship of the parties, and the fact that Mary Bailey was the wife of the complainant, and to-some extent under his control, we think the assertion of such a claim as that which he has put forth should be closely scrutinized, and that, upon the whole, the evidence preponderates in favor of the defendants. "We should hesitate, in a case so close upon its facts, to overturn the decision of the circuit judge, were it not for the fact that the court rested his conclusion in part upon the testimony of the complainant himself, which, we have seen, is inadmissible. This devolves upon us the duty of considering the testimony without the aid of the presumption arising from the circuit judge’s determination, which course has been pursued, with the result above stated. The case is very similar in its facts to Schuffert v. Grote, 88 Mich. 650 (26 Am. St. Rep. 316).

The decree of the court below will be reversed, and the relief prayed in the cross-bill granted, with costs of both courts to defendants.

The other Justices concurred.


text:
    LANDIS v. SMITH.
    . Deeds — Setting Aside — Fraud—Evidence.
    Evidence that the grantor in a deed of property worth about §1,500, for a specified consideration of §1,800, was old and of . weak memory, and that the grantee actually paid only §5 down, and failed to secure the balance by mortgage on the property as had been contemplated, and that the grantor was induced to convey by fear as to the outcome of a suit brought against the grantee, who was his tenant, by a third person, to oust him from possession, — justifies the setting aside of the deed.
    Appeal from Kent; Grove, J.
    Submitted April 16, 1897.
    Decided June 28, 1897.

      Bill by John Landis against Amanda C. Smith to set aside a deed alleged to have been procured by fraud and undue influence. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Dwight Goss, for complainant.

      Charles A. Watt, for defendant.
   Grant, J.

Complainant filed a bill to set aside a deed made by himself to defendant, claiming that at the time of executing the deed he was in poor health, and did not realize the force and effect of the instrument he signed, or the intent and purpose for which the same was executed, and that the same was not his free act and deed. The bill further avers that defendant represented that, if complainant did not give the deed, one John R. Watts, who was occupying the land and cultivating it, would cheat complainant out of it. The answer denies the allegations in the bill, admits that the consideration named in the deed was 11,800, but denies that there was no consideration given for the deed, denies that it was obtained by fraud and undue influence, and that it was an unconscionable bargain, but, on the contrary, avers that there was a good and valuable consideration for the same. The circuit judge dismissed the bill on the ground that there was no evidence of undue influence or persuasion, that the complainant voluntarily made the deed, although the circuit judge stated that the complainant impressed him as a man whose memory of past events was. very weak indeed.

The case is peculiar, in that it rests so largely upon the testimony of complainant, who has shown himself to be a man of weak memory; but the following facts are gleaned from other testimony: The land in question is worth $1,500. Complainant regarded it as worth $1,800. There had been talk between complainant and defendant of complainant’s deeding the land to her, some time before the deed was made. Complainant called upon one Thomas, a conveyancer, and wanted a deed of the land .and a mortgage back prepared. This Thomas promised to do when the weather cleared up, and it was warm ■enough, agreeing to come to complainant’s residence to ■do so. It does appear in the testimony that there was a ■disagreement between Watts, who occupied the house on the premises, and the defendant and her husband, who also occupied a house on the same 40; and we have no ■doubt that this was one of the incentives for the complainant’s making the deed. Taking it as established that the complainant was mentally weak, the testimony of defendant is significant. She testified as follows:

“Q. Do you remember when this deed was given to you by Mr. Landis, — the 40 acres of land there where you live ? Do you remember when you got the deed ?
“A. Yes, sir.
“Q. Whereabouts— Who drew it?
“A. Mr. Palmer.
“Q. How did you come to go there to have the deed drawn ?
“A. Why, he wanted to go.
“Q. Did you ever talk with him personally about his giving you a deed of that place ?
“A. No, sir; I did not.
“Q. When was the first time he ever spoke to you about making out a deed to you for that 40 acres ?
“A. Well, I think it was — oh, maybe four or five weeks before the deed was made.
‘ ‘ Q. What was said at that time by him to you ?
“A. Well, he said he thought he better deed it to me.
“Q. Were you having some trouble with Mr. Watts at that time ?
“A. Mr. Watts served papers on me to move away from there.
“Q. You live on the same 40 acres that he lives on there ?
“A. Yes, sir.
“Q. Two houses on the 40, are there?
“A. Yes, sir.
“Q. Mr. Watts was trying to put you off the place?
“A. Yes.
11Q. Did he talk more than once to you about giving you the deed?
“A. Why, yes. He came up there frequently, and said we had better go and have it made out.
“Q. What did you tell him?
UA. Why, I told him I would go at any time, and he said at any time that I was ready we would go. * * *
“Q. What did he say to you ?
“A. He said we ought to go there and have it done, and have the deed made.
“Q. What did you tell him ?
“A. I told him we would go this afternoon if he wanted to go, and he said he was ready to go at any time that I was. * * *
“Q. Was there anything said— Who did the talking at Mr. Palmer’s when the deed was drawn ?
“A. He did the talking.
“Q. Was anything said there about your giving a mortgage back?
“A. No, sir.
“Q. Did he ever ask you for a mortgage?
“A. He talked about it one day after he had been up to Mr. Thomas’.
‘ ‘ Q. What did he say ?
“A. He said that Mr. Thomas advised him to have a mortgage back.
‘ ‘ Q. How did he come to give you a deed, or make the deed to you? What did he say? Tell the court the words that he used, as near as you can. What reason did he give for wanting to give you the deed ?
“A. Well, when Mr. Watts served papers on me I saw him down in the road. I went down the road, and I met him. I stopped, and talked with him, but I didn’t say anything about this case. I didn’t know as he knew anything about it. And he says, ‘Mr. John Watts is trying to make you trouble, isn’t he?’ And I said, ‘It looks that way.’ He said, ‘ I don’t see how he can.’ He says, ‘ He has no right to,’ and he said that he didn’t see why George Thomas should make out the papers for him, or what he did it for; and he said he would‘have to look into it a little; and I told him he need not worry about it; and that was all there was said then.
“Q. State any other conversation that you had Vith him after that, or that he had with you, in regard to making the deed.
“A. Well, just when he told me that he thought he had better deed it to me — •
‘ ‘ Q. What did you tell him ?
“A. I didn’t say anything at that time. He said, ,£I guess I better deed the place to you.’ * * *
“Q. Was there anything said about selling the place, or just giving you a deed of it?
“A. Yes, he.talked of selling it to us.
“Q. What did you tell him then ?
“A. He asked me if I wanted to buy it, and I told him I would like to buy it wéll enough if I could.
£ £ Q. What did you telT him about the pay ?
“A. But I told him that of course I didn’t know. We couldn’t pay very much down. Well, he said that whatever I could pay it would be all right.
“Q. Since the deed was made, has he ever asked you for any money on this place ?
“A. No, sir.
“Q. Did he talk with you when you went over to, Mr. Palmer’s ? Did you talk the matter over in regard to the conditions on which he would let you have the place ?
“A. There was nothing said, only he said, £I guess I don’t want any mortgage.’- * * *
. “Q. And Mr. Palmer testified that you paid him some money there at that time ?
“A. I did.
“Q. How much did you pay him?
“A. I paid him five dollars.
“Q. How did you come to pay him five dollars?
“A. That was all I had, and he said whatever I could pay would be all right. That was all I had at that time. * * *
“Q. You say you paid him five dollars at that time?
“A. I did.
“Q. How did it come that the consideration named in the deed was $1,800?
“Mr. Wigent: The deed is the best evidence.
“A. Well, that was what he wanted for the place.
“Q. And $1,800 was put in at his suggestion?
“A. Yes, sir.
“Q. Well, as a matter of fact, is this five dollars all the money you have ever paid on that $1,800 for that place ?
“A. That is all the money I ever paid; yes. * * *
“Q. What did you say to him when he asked you to deed it back before the suit was commenced?
“A. Well, I asked him the reason, and he said— Well, he said he thought that and the 80 would make a good farm. Well, I says, ‘You had it long enough; you ought to have thought about that before.’ * * *
“Q. You testified that he spoke about a mortgage after he came back from Thomas’, and before he made the deed?
“A. When he came back from Thomas’ — that was before the deed was made out — he said that Mr. Thomas advised him to have a mortgage, and he asked me if that was all right.
“Q. And what did you tell him ?
“A. I told him yes.
“Q. Did he say anything about a mortgage when you went to Palmer’s ?
“A. Yes. When we were going he said, ‘I guess I don’t want any mortgage.’ * * *
“Q. How did he come to name $1,800 as the consideration for this deed ? Do you remember about that ?
“A. Well, he thought that it was worth that.
“Q. Is the 40 actually worth $1,800 now?
“A. Well, I don’t know; that is what he thought.
“Q. What is your judgment about it?
“A. Of course, I don’t know. That is what he thought he wanted for it.”

It further appeared from the testimony of this witness that after the making of the deed she had given a mortgage upon the property of $300.

It is very clear from the testimony of this witness that neither party, in the negotiations for this property, had expected that the land was to be deeded to defendant as a gift; and yet, as the transaction was closed, that is substantially what had been accomplished. The inference that the complainant did not fully understand the nature of the transaction, and that defendant took advantage of his condition, is irresistible. There is no doubt that he was moved by his fear of the results in the proceedings which Watts was about to institute, and, whatever else may be said, it is perfectly certain that no such program as the defendant herself testifies was in contemplation of the parties was carried out. We think, under the former rulings of this court, the decree should have been for complainant. See Stuy vesant v. Wilcox, 92 Mich. 228; Smith v. Cuddy, 96 Mich. 562; Churchill v. Scott, 65 Mich. 485; McDaniel v. McCoy, 68 Mich. 332. See, also, Allore v. Jewell, 94 U. S. 506. We think the circuit judge did not give due weight to the evidence, which establishes the fact, to our satisfaction, that the previous negotiations of the parties all involved a proposition to convey the land and take a mortgage back.

The decree will be reversed, and a decree entered in this court setting aside the deed.

The other Justices concurred


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    BUBLITZ v. TROMBLEY.
    Replevin — Distrained Beasts — Sufficiency of Bond — Construction of Statute.
    2 How. Stat. § 8374, which provides that, in replevin for beasts distrained, the failure of plaintiff to give the proper bond within, the time limited for that purpose shall he deemed a discontinuance by him of his suit, is to be construed with the general statute (section 7771) relative to the amendment of defective bonds, and, so construed, affords no authority for the circuit judge to dismiss a suit summarily, upon his own motion, because the bond filed has but one surety.
    Error to Bay; Maxwell, J.
    Submitted April 28, 1897.
    Decided June 28, 1897.
    Replevin by Prank Bublitz against Andrew Trombley for distrained cattle. From an order discontinuing the suit because of a defect in the bond, plaintiff brings error.
    Reversed.

      John E. Kinnane, for appellant.

      Lyon & Pierce, for appellee.
   Montgomery, J.

This is an action of replevin for beasts distrained. Affidavit for replevin was made on June 14, 1895, and the writ issued the same day. The cattle named in the writ were appraised, the bond was made, and delivered to the sheriff, with but one surety. The bond was accepted and approved by the sheriff, and filed with his return on July 2, 1895. Notice of retainer was regularly served by defendant, and plaintiff’s declaration was filed in due time. Defendant filed a plea of the general issue, and gave notice of special matter of defense. No exception was taken to the replevin bond, or to any of the proceedings in the cause. The case was noticed for trial by both parties, and was regularly brought to trial March 17, 1896. After entering upon the trial, the court' discharged the jury, and rendered judgment of discontinuance against the plaintiff, on the ground that there was but one surety on the replevin bond, and that that fact worked a discontinuance of the case under the statute.

The court based its ruling on section 8374, 2 How. Stat., which reads as follows:

“The writ shall be served, and the property shall be appraised, and, before delivery thereof to the plaintiff, a bond shall be given in like manner and with the same effect as in other cases of replevin; but such property shall not be removed by the officer until such bond shall be given; and if such bond be not given within the time limited for that purpose, the property shall be relinquished by the sheriff, and such failure shall be deemed a discontinuance of the suit by the plaintiff.”

We think this course was unwarranted. In Bloomingdale v. Chittenden, 75 Mich. 307, an attempt was made to file an amended bond, which the statute requires shall be filed forthwith. On motion to dismiss for a defective bond, the court said:

“The bond is required for the protection of the defendant; and although the statute is peremptory that, unless the new bond is filed forthwith, the writ shall be dismissed on motion, and the property returned to defendant, it may be waived by the defendant, and must be regarded in this case as having been waived by going to trial before the justice upon the merits, and again in the circuit, without objection on this ground.”

The learned circuit judge was evidently of the view that under section 8374 no waiver of a sufficient bond could occur. But we think it clear that under sections 7770 and 7771 an amendment to the bond might have "been permitted. While it is true that the language of the statute is that the failure to give such a bond shall be ■deemed a discontinuance of the suit by the plaintiff, this is to be construed in connection with section 7771, and, so construed, it is enough to say 'that it shall be deemed a ■discontinuance of the suit at the election of defendant, and provided the plaintiff is not prepared, upon being given an opportunity, to give a néw bond, and provided further that the defendant has not waived the giving of a hond.

We do not intimate that the defendant may not yet move for a new bond, but the record does not indicate that the defendant either moved for a new bond or for the order discontinuing the case. The action appears to have been taken by the circuit judge upon his own motion, and no opportunity appears to have been afforded to move for leave to file an amended bond.

We think the order of discontinuance should be set aside, and the cause remanded for further proceedings. The plaintiff will recover costs of this court.

The other Justices concurred.


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    MATTHEWS v. FORSLUND.
    Justices of the Peace — Attachment—Substituted Service.
    Substituted service of a justice’s writ of attachment, made on the sixth day before the return day of the writ, is valid, where-the officer’s return shows that he retained the writ in his-hands, and made proper effort to obtain personal service, during the full time within which such service might lawfully be made; and it seems, further, that substituted service-upon a prior date would be good under such circumstancesBargh v. Ermeling, 110 Mich. 164, distinguished.
    Error to Gogebic; Haire, J.
    Submitted April 28,1897-
    Decided June 28, 1897.
    Attachment proceedings by John B. Matthews and others against Mathilda Forslund, wherein the Gogebic Hardwood Manufacturing Company was summoned as garnishee. Plaintiffs had judgment in justice’s court, and defendant removed the case to the circuit on certiorari, where the justice’s judgment was sustainedDefenda-nt brings error.
    Affirmed.

      Buck & Waples, for appellant.

      John D. Barry (Julius J. Patek, of counsel), for appellees.
   Montgomery, J.

This case was commenced in justice’s court by attachment. The case was removed to the circuit court upon certiorari, the sole ground of error alleged being that the service upon the garnishee defendant of the writ of attachment issued out of justice’s court was made upon a day when valid service could have been made upon the principal defendant. It appears that the writ was served upon the last day that service could have been made upon the principal defendant. The statute (section 6841, 3 How. Stat.) provides that, if the defendant cannot be found in the county, the officer shall leave a copy of the attachment and inventory at the last place of residence of the defendant. The only provision of the statute as to the time of service is that contained in section 6840, which fixes the time of service as at least six days before thé return of the writ. It was accordingly held in Tunningly v. Butcher, 106 Mich. 35, that substituted service, made less than six days before the return day of the writ, was insufficient. It would necessarily follow from this holding that a substituted service made upon thq last day permitted by the statute is good. The case of Bargh v. Ermeling, 110 Mich. 164, is clearly distinguishable, as in that case it did not appear by the return that any effort was made to make service upon the principal defendant. Speaking for myself, I can see no reason why a substituted service made at any time after the writ comes to the hands of the officer should not he held good, provided the officer retains the writ in his hands, and makes return of proper search for the defendant during the life of the writ.

Other questions are discussed in the brief of counsel, but we have repeatedly held that, when a party resorts to certiorari, he must make his allegations of error specific, and is confined to the precise points raised. Farrah v. Bursley, 100 Mich. 552.

The judgment will be affirmed.

The other Justices concurred.


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    LOCKWOOD v. NOBLE.
    1. Recording Laws — Lis Pendens — Notice.
    A Us pendens, under 2 How. Stat. § 6619, is effectual from, the date of filing as notice of the claims made in the bill, irrespective of whether service upon all of the defendants therein is at the time complete.
    2. Same — Negotiable Paper — Mortgage Security.
    A purchaser of a note secured by a mortgage on land to which the mortgagor had no title at the túne, which fact would have been disclosed by an examination of the records, is entitled to no benefit under the mortgage.
    3. Bills and Notes — Bona Fide Holder.
    The dishonor of one of several notes secured by a mortgage puts a subsequent purchaser of the other notes upon inquiry, and he takes them subject to all the equities.
    4. Bankruptcy — Title or Assignee.
    An assignee in bankruptcy can convey only such title as his assignor had at the time he was adjudged a bankrupt.
    Appeal from Huron; Beach, J.
    Submitted June 8, 1897.
    Decided June 28, 1897.
    Bill by Frederick St. John Lockwood against Orange Noble and Charles E. Thompson to remove a cloud from title. From a decree for complainant, defendant Noble appeals.
    Affirmed.
    The object of this suit is to remove a cloud from title, caused by a decree and sale of the lands described therein on-the foreclosure of a mortgage. Complainant and defendant Noble derived title from Thomas S. Donohue, who was the owner in fee of the lands, May 29, 1867. On that day Donohue made a contract with Ayres, Learned & Wiswall for the sale of these lands for $3,000; a warranty deed to be given within 30 days. $2,400 was paid at the time the contract was executed, and the balanee was to be paid by a 90-day draft. July 1, 1867, Donohue executed a warranty deed of this and other lands to W. F. Clark, Jr., and Henry A. Howe; taking back a mortgage to secure the purchase price, for the sum of #27,000. Howe and Clark, Jr., had full knowledge of the ■contract to Ayres, Learned & Wiswall. The deed and mortgage were recorded August 9, 1867. On December 16th of that year, Howe and Clark, Jr., conveyed an undivided one-third interest in said lands to W. F. Clark, Sr. February 8, 1868, Ayres, Learned & Wiswall filed a bill of complaint in the circuit court in chancery, alleging the above facts, and praying for a decree annulling and. setting aside the deed to Howe and Clark, Jr., and from them to Clark, Sr. Donohue, Howe, and both the Clarks were made parties defendant. Upon filing the bill, a notice of Us pendens was duly filed and recorded in the office of the register of deeds. Personal service was had upon Donohue, Howe, and Clark, Jr. Clark, Sr., was a nonresident, and as to him an order of publication was ■obtained. Proofs were taken, and decree entered declaring the deed to Howe and Clark, Jr., and the one by them to Clark, Sr., to be fraudulent and void, and of no effect against the complainants, and declaring the title absolutely in them. A reference was made to determine the amount due the defendants or Donohue. It appeared that Donohue had no title to 240 acres of the land described in the contract, which was worth #3 per acre. At this time Clark, Sr., appeared, and Howe, Clark, Jr., and Clark, Sr., acknowledged and delivered to complainants a written acknowledgment of full satisfaction, stipulating that the decree should stand against them. Complainant, Lockwood, has succeeded by proper conveyances to all the title and interest of Ayres, Learned & Wiswall. It is conceded that complainant and his grantors have paid all the taxes from the year 1867 to the present time, and have exercised all the acts of ownership and possession which have been exercised by any one.
    On August 27,1868, Donohue assigned the mortgage to one C. A. Davidson, which assignment was recorded on the same day. One Mason in some way acquired an interest in the mortgage with Davidson. September 22, 1869, Davidson and Mason filed their bill to foreclose, but did not make Ayres, Learned & Wiswall parties thereto. Decree was duly entered, and September 22, 1871, the lands were sold to defendant Noble at from $10 to $15 for each 40 acres. November 1, 1869, Howe, Clark, Jr., and Clark, Sr., were adjudged bankrupts by the district court of the United States at Detroit. No notice of these bankruptcy proceedings was ever served upon Ayres, Learned & Wiswall, or their representatives or assigns: August 15, 1871, under an order of the United States court, these lands, with others, amounting in all to 7,500 acres, were sold at private sale by the assignee in bankruptcy to defendant Noble for $50.
    Defendant Noble was a party to the foreclosure proceedings by Davidson and Mason. In his answer he set up the sale of the land by Donohue to Ayres, Learned & Wiswall, the bill filed by them to enforce their claim, and also that Ayres, Learned & Wiswall had a good title. Defendant Thompson has no interest, except as the assignee of certain creditors of defendant Noble, and has only such rights as Noble shall be found to have. Noble claims title by virtue of his deed from the assignee in bankruptcy, and the commissioner’s deed upon the foreclosure sale. The court held that Noble was not a purchaser in good faith; that the notice of lis pendens was valid as to Davidson and Mason, the assignees of the mortgage; and that complainant had a perfect title to the land.

      William T. Bope, for complainant.

      Horace Gr. Snover (Elbridge E. Bacon, of counsel), for defendant Noble.
   Grant, J.

(after stating the facts). The Equities. The equities are all with the complainant. The defendant has none. The proceedings in the suit by Ayres, Learned & Wiswall to set aside the conveyances to Howe et al. were regular as to all the defendants except Clark, Sr.; and, if there was any irregularity as to him, it was cured by his subsequent appearance and stipulation. Noble purchased with full knowledge of all the facts. He knew, and alleged in his answer to the foreclosure bill, that the title of Ayres, Learned & Wiswall was valid, and that the attempted conveyance by Donohue, and the mortgage back to him, were a fraud. He paid substantially nothing, either for the title conveyed by the assignee in bankruptcy or upon the foreclosure sale. He paid only $53 in all for lands which are worth many times that amount. From the time of his alleged purchase to the commencement of this suit, — a period of many years,— he did not attempt to exercise any act of ownership or possession over these lands, while complainant and his grantors were exercising open and notorious acts of ownership. If, therefore, Noble has any standing in a court of either law or equity, it is because courts are powerless to prevent the accomplishment of a gross wrong. This brings us to a discussion and determination of the defenses relied upon.

It is urged that the lis pendens did not take effect from the date of its record, but from the date of the completion of the service upon all the defendants; that service was not complete as to Clark, Sr., and therefore the record of the notice was of no validity as to subsequent purchasers and mortgagees. The question is not open to discussion in this State. The statute says, “To render the filing of a bill constructive notice,” etc., “it shall be the duty of the complainant to file for record,” etc. 2 How. Stat. § 6619. The filing of this notice was notice to the whole world of the claim made in the bill, and took effect from the date of filing. Alterauge v. Christiansen, 48 Mich. 60; Heim v. Ellis, 49 Mich. 241. It was therefore the duty of Davidson and Mason to examine the record. Had they done so, the notice of lis pendens would have informed them that the mortgagors’ title was in dispute, and that, if the allegations' in the bill were true, they had no title to mortgage.

It is next urged that Davidson and Mason were bona fide purchasers of these notes, and are to be protected because the notes are negotiable. There are two answers to this contention which demonstrate its fallacy: (1) The law does not permit a party to execute a negotiable promissory note and a mortgage collateral thereto upon land to which he has no title, and make the security good in the hands of a purchaser of the negotiable paper before due, when the mortgagor had no title at the time in the land, and an examination of the record would have disclosed that fact; and (2), when Davidson and Mason purchased their notes, others were past due, there being six notes all told. Some had been paid, but one was dishonored and unpaid. Davidson and Mason therefore were not good-faith holders, but took subject to all the equities in the case. Abele v. McGuigan, 78 Mich. 415.

The assignee iii bankruptcy took only the title which his assignors had at the time they were adjudged bankrupt, and could convey only such title as his assignors had. This is a doctrine so sound and reasonable that it hardly needs the citation of authorities. We cite a few: Goss v. Coffin, 66 Me. 432 (22 Am. Rep. 585); Hardin v. Osborne, 94 Ill. 571; Ex parte Dalby, 1 Low. 431; Ex parte Rockford, etc., R. Co., Id. 345. It follows that the assignee, having nothing to convey, conveyed nothing.

It is insisted that $600 was unpaid upon the contract given by Donohue to Ayres, Learned & Wiswall, and that the defendant is entitled to this amount and interest. It is established that Donohue had no title to 240 acres, and that it was worth $3 per acre. Howe, Clark, Jr., and Clark, Sr., recognized the injustice of compelling Ayres, Learned & Wiswall to pay the balance of the purchase price for this reason, and therefore, by stipulation, consented to a decree to that effect. There is no equity in requiring complainant to pay this amount.

The decree of the court below was eminently just, and is affirmed, with costs.

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