text:
    PERKINS v. THE GOLDEN GIRL.
    1. Liens — Watercraft—Bill of Complaint — Waiver or Loss of Lien — Failure to State Correct Amount.
    Complainant’s lien against a boat for an engine and materials supplied, was not lost by reason of his failure to state the correct amount due, where it appeared that the error made in the bill of complaint was not intentional or was made in good faith and was not SO' excessive as to be misleading. 3 Comp. Laws, § 10790; (5 How. Stat. [2d Ed.] § 13626).

      2. Same — Maritime Liens — Waiver—Lien for Purchase Price— Conditional Sales — Retention of Title.
    The fact that the complainant, in a suit to enforce a lien against a water craft, retained title to the engine and materials furnished for the boat was not in itself a waiver of his right to the statutory lien in a case in which no steps had been taken to enforce the contract nor any action by complainant which would have a tendency to indicate that he intended to relinquish the statutory claim.
    3. Same — Credit—Materialmen—Waiver.
    Complainants’ contention that the materials for the boat were furnished upon the .credit of the owner of the vessel was not conclusive where complainant provided an engine for the boat and retained title to the engine by express agreement; the lien, being a nonmaritime lien under this statute, attached by operation of law, the materials furnished being of the character included by the terms of the statute.
    4. Same — Personal Property — Attachment of Craft — Statutes.
    Nor could it be said as a defense to complainant’s proceeding to enforce the statutory lien that the engine was not part of the boat.
    5. Same — Federal Act — Maritime Lien — Proceedings in Rem.
    The act of Congress of June 23, 1910, 36 U. S. Stat. 605 did not deprive the State court of jurisdiction to enforce the contract or claim for work and materials furnished in equipping and constructing a boat, before it was registered or put in commission.
    6. Same — Recoupment—Damages—Evidence.
    Where defendant set up a claim for defects in the engine but failed to produce definite evidence of damages, and where her testimony was open to doubt or criticism on the ground that she -had admitted in a letter that it worked properly and made no formal complaint relative to the working condition of the engine which she continued to use down to the date of the hearing and without complying with the conditions of the warranty upon which she relied, her claim of recoupment should be denied.
    7. Same — Decree—Bond—Principal and Surety — Appeal Bond.
    Under 3 Comp. Laws, §§ 10805 and 10827 (5 How. Stat. [2d Ed.] §§ 13651, 13663), a decree on appeal reversing the action of the trial court which denied complainant the right to a lien on a watercraft may be entered in the Supreme Court against the principal and surety upon the appeal bond and the decree he reversed or modified in the appellate court by such order as the case might require.
    Appeal from Kent; Barton, J., presiding.
    Submitted January 12, 1915.
    (Docket No. 74.)
    Decided March 18, 1915.
    Bill by Willis J. Perkins against the boat Golden Girl and other defendants to enforce a statutory lien. From a decree for defendants, complainant appeals.
    Reversed.

      Martin H. Carmody, for appellant.

      Charles E. Ward, for appellees.
   Stone, J.

This proceeding was -brought under chapter 298, 3 Comp. Laws, providing “for the collection of demands against water craft.” The complainant was engaged, at the city of Grand Rapids, in the manufacture of marine engines, and other machinery, doing business as the Grand Rapids Gas Engine & Yacht Company. The action was begun to recover the balance claimed to be due complainant from defendant Elizabeth Eaglesfield, for a certain engine, material, accessories, and equipment furnished by complainant to defendant in and about the original building, fitting, furnishing, and equipping of the boat Golden Girl while in process of construction on the dry dock in the city of Grand Rapids, during the period from September, 1908, to July, 1909, and before said boat had been launched and put in commission, or had been used in or about the waters of the State of Michigan, or had been licensed or enrolled under the Federal statutes. Said boat was above five tons burthen, and was intended to be used in navigating the waters of the State of Michigan. The amount sought to be recovered here is a balance due on said engine, represented by two past-due promissory notes of $878 and $500, respectively, with interest at 6 per cent, per annum from date of delivery of engine, to wit, June 12, 1909, and a balance on an open account for accessories, labor, etc., admitted by defendant Elizabeth Eaglesfield as $42.65, upon which latter sum interest at 5 per cent, per 'annum is claimed from February 14, 1910, when, it is claimed, it became an account stated. The engine in question, a four-cylinder marine engine, was purchased by said defendant from complainant on or about February 8, 1909, at the agreed price of $2,178, according to a written, contract, to be paid as follows: $500 cash on February 16th, and $300 on date of shipment, and notes for balance. On this contract $500 were paid on February 20, 1909; $150 on June 10, 1909; and $150 on June 12, 1909. The two notes above referred to were given for the balance. Later on further materials, equipment, and labor were furnished to be used in the original construction of the boat. Concerning the amount due for these extras, there was some disagreement of the parties. The complaint in the case was sworn to January 26, 1910. It contained a schedule of extras amounting to $242.23, and claimed a balance due of $1,620.23. The bill was filed in the Muskegon circuit court, February 2, 1910. (The case was later transferred to the Kent circuit.) Between the date of swearing to the bill and filing the same, to wit, on January 28, 1910, the defendant Elizabeth Eaglesfield went to complainant’s place of business, and paid complainant’s clerk $100 in cash, and received credits amounting to $88.08 for goods returned on the open account. She then admitted there was still due and unpaid on the account for extras $42.65, leaving in dispute $11.50, which she claimed she did not owe.

The written contract signed by the said defendant Elizabeth Eaglesfield contained the following clauses:

“Title and ownership of all property herein ordered shall remain in the name of the vendor until the full purchase price is paid, and the property herein ordered shall not be removed from boat ‘Eaglesfield’ without the written consent of the vendor, until payment is made in full.
“All property that is hereby ordered, purchased and sold is subject to the following warranty and agreement: That any part shipped as herein ordered, showing defective material or improper workmanship within one year from shipment, will be replaced f. o. b. cars Grand Rapids, Mich., upon receipt by the •manufacturers of the alleged defective part at their shop, charges prepaid, if on examination the fault is found inherent therein. That the engine herein sold if properly run and rightfully managed will develop the H. P. it is rated at. If upon trial said engine fails to operate as stated, the operator following intelligently the printed directions furnished, then written notice stating wherein it so fails is to be given immediately by the vendee to the vendor at their home office and time allowed them to receive the same and remedy the trouble. • This may be done by giving further instructions by letter, or sending operator, the vendors to use their discretion in the matter. The failure to so notify the vendors in case of any trouble, shall be deemed a waiver of all rights of second party under the warranty.
“If expert is sent, and on examination finds the trouble, if any, is caused by improper installation or operation of the machinery, or neglect to properly follow the printed instructions furnished by the vendors, then the second party is to pay the first party all costs incurred by said expert and $4.00 per day wages while expert is absent from their factory.
“It is understood and agreed that the vendors shall not be held responsible for damages' by reason of defects in goods herein ordered, except to the extent of supplying parts to remedy actual inherent faults, if any, therein.
“No understanding or agreement, whether verbal or otherwise, will be recognized or assumed by the vendors unless specified in writing in this contract, and accepted by them.”

Both of said promissory notes contained the following clause:

“It is expressly agreed that the title and ownership of the said property shall remain in the Grand Rapids Gas Engine & Yacht Company until said notes or their renewals, if any, are paid in full.”

It is the claim of complainant that, at the time the complaint was sworn to, the schedule attached thereto stated correctly the amount of indebtedness due him, and that the payment made, and credits received by said defendant were not personally known to complainant or his attorney until after the complaint had been filed. The case was tried in the court below before a jury on June 23, 1914. The complainant called the defendant Elizabeth Eaglesfield as a witness, under the statute, and she was the only witness sworn upon the trial. The promissory notes above mentioned were offered, and received in evidence. Upon the trial some question arose whether the notes should be surrendered and canceled or not. The defendant Elizabeth Eaglesfield gave testimony tending to show that the engine had not worked properly, and that she had been obliged to change it from a kerosene to a gasoline engine, and that she had made complaints to the complainant of defects in the engine. After the boat had been seized under the process of the court, it had been bonded by said defendant under the statute, and she had used it during the seasons of 1910, 1911, 1912, and 1913. The $500 note became due November 1, 1909, and the $878 note became due December 1, 1909. Said defendant had been notified of her past-due indebtedness, and on December 4, 1909, she wrote complainant a letter as follows:

“Dear Mr. Perkins: While on the lake I never saw your letters and never opened them until yesterday with Philip. I see you are very much displeased, but you are not more disappointed than I that it was impossible for me to meet my notes. We had much to contend with this summer — but laying all explanations and excuses aside, Mr. Perkins, I do not want you to feel anxious about what is due you. It will all be paid. Philip and I can and will pay all our obligations — and when we go out this spring all we make I will send you and will send to you right along as we make it. I am not behind on payment, but three and two months.
“You know business exigencies are such one cannot always help that. The engine is intact, the boat is fine, and we are well and I know we are honorable— I shall meet all my obligations and as I know you as all business men need money I want you to feel sure as we are sure you will get all your money and just as soon as we can possibly get it. I have looked over the accounts with Philip, but I cannot come over this morning. Philip will be back in a week or so, just as soon as he can safely leave the boat in the care of some one and then I will come over and look over the accounts — I was terribly imposed upon by the men who moved the boat to the water and also the man who made the tanks and that with the misfortune of the last trip is what rendered it impossible for me to hand you some money.
“I have had my due share of disappointments, and perplexities, many of them, and I am sorry to be the cause of any to you. Had I not felt so certain I could meet my obligations with you, I never should have bought the engine. I hoped much from it and was full of hope in every way.
“Much as I hate the water and hard as it will be for me, I shall go out with him on the boat this spring to make the money to pay for the engine — I can do no more than that, only again to assure you the engine will be entirely paid for just as soon as it is possible.
“Very truly,
“Mrs. E. Eaglesfield.”

She also wrote Mr. Honne, complainant’s foreman, the following letter on February 14, 1910, viz.:

“La Bue Lumber Company, Incorporated.
“Indianapolis, Ind., February 14, 1910.
“Grand Bapids Gas Engine & Yacht Co.,
“Grand Bapids, Mich.
“Mr. Honne, Foreman.
“Dear Sir:
“Beached Indianapolis Saturday night and can now pay my running account in full — $42.65, providing it will be accepted as payment in full of my account. I inclose you the list which you made at the time we looked over the accounts, January 28th, when I paid $100.00. The last $10.00 is for' the lever on the engine. It seemed to me rather a good price for this extra lever, since I was entitled anyway to a lever. The settlement does not include the claim on repair of the governor, but I do not feel that the damage to the governor was at all my fault, and also since I was at the expense of taking it off, and taking it to you, and putting it on, I thought in consideration of my paying this now, Mr. Perkins would look upon the account as I do.
“I address this to you because you settled up the account with me, and I inclose you the figures which you made, so as to verify my balance. I will then owe only what is due on the engine and as my notes bear interest from the time of delivery of the engine, will you please inquire and tell me at what date you claim that interest began to run?
“Please give me as early an answer as possible.
“Very truly,
“Mrs.- E. Eaglesfield.”

These letters are very significant when considered in connection with her claim that the engine did not come up to the warranty. She never made any complaint in writing.

After complainant rested, the said defendant also rested, without offering any evidence:

Said defendant then claimed that complainant was not entitled to the relief sought for the following reasons:

(1) That complainant had lost his right of action, because in his complaint he had claimed a greater amount than was actually due when the action was commenced and the boat attached. (2) That complainant, both in his contract with defendant, and in the notes' given by defendant, retained title to the engine and materials in question, and for that reason waived his right to the lien as provided by the statute in relation to water craft. (3) That in this case the credit had been given to the individual, and not the vessel, and therefore no lien attached.

The trial court, after argument, decided as follows:

“It is contended by the defendant in this case that this engine and accessories were not sold to the defendant with any understanding in relation to where it was to be used, and that it was not furnished in such á sense as would make the statute in relation to water craft apply. Be that as it may, I can imagine no case where the acts and conduct of the plaintiff would make it more apparent, nor could I imagine the case where the facts or circumstances would amount to a waiver, if this is not. And therefore the court holds that the plaintiff in this case is not entitled to a lien.”

Whereupon .the jury were discharged, and a judgment was entered for the defendant. The complainant has appealed.

After the appeal was perfected, the testimony of the complainant and of Peter Honne was taken on behalf of complainant, and that of Elizabeth Eagles-field was taken in her own behalf, under the provisions of section 10826, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13662). Such testimony has been certified to this court, and has been considered by us, in pursuance of the provisions of section 10825, 3 Comp. Laws (5 How. Stat. [2d Ed.] §13661), without considering the objections taken to the last testimony of Mrs. Eaglesfield.

Before passing to the consideration of the questions urged by defendant, as reasons why the complainant is not entitled to prevail, we notice the position of complainant relating to the surrender and cancellation of the notes offered in evidence. Under the statute, the hearing in this court is de novo upon the transcript and depositions, and further testimony taken as provided by the section above referred to.

Counsel upon both sides have discussed at length what the claim of complainant and his counsel was in the court below. We think that the position of complainant in the court below was not inconsistent with his position here, and we are disposed to take him at his word in what he states in his reply brief, viz.:

“However, in order that there may be no possible ground for mistake, I shall again state appellant’s position. Appellant believes that he was, by the statute, given a lien on the boat Golden Girl, for the engine, accessories, and labor furnished in the building, fitting, and equipping of it, that he has never done anything to waive that lien, that in this proceeding he is seeking to enforce that lien, and that, in the acceptance of the bond furnished by appellee for the restitution of the boat, the boat was forthwith discharged from all liens, and that he must henceforth look to and rely upon the bond. Appellant did not believe, and did not contend, and does not now contend, that he still retains title to the engine and accessories. He does not claim title through or by virtue of the contract or notes. He has delivered up, and does now here deliver up, the notes and contract for cancellation.”

It will be so considered, without further discussion.

1. Upon the first point urged by counsel for defendant, he relies upon the case of Gibbs v. Hanchette, 90 Mich. 657 (51 N. W. 691). It was there held that mechanics who, with knowledge of the status of the account, or with information thereof at their disposal, seek to secure a lien under Act No. 216, Laws of 1885, cannot be excused for a failure to file “a just and true statement of account of the demand due them, over and above all legal set-off,” as required by section 2 of the act.

The statute we are here considering (section 10790, 3 Comp. Laws, 5 How. Stat. [2d Ed.] §13626), requires the complaint to state “the - amount due over and above all payments and discounts, as near as may be, which shall be verified by affidavit in the same manner as bills in chancery.” Without holding that there is any essential difference in the two statutes, it should be noted that in the Gibbs Case this court said:

“The authorities very generally hold that where there is an honest mistake of fact, made in the honest belief of its correctness, courts will not for that reason hold that the lien is lost. But where claimants place upon record a statement which they know is not correct, the authorities are very uniform that the lien is lost.”

We are of the opinion that the facts in the instant case clearly distinguish it from the Gibbs Case, and that the instant case is ruled by the following cases: McMonegal v. Wilson, 103 Mich. 264 (61 N. W. 495); Lamont v. Le Fevre, 96 Mich. 175 (55 N. W. 687); Scheibner v. Cohnen, 108 Mich. 165 (65 N. W. 760); Hulburt v. Just, 126 Mich. 337 (85 N. W. 872); Mc-Allister v. Des Rochers, 132 Mich. 381 (93 N. W. 887).

We think there was no evidence of bad faith, and the circumstance of delay in filing complaint explains the error as an honest one.

2. Was complainant’s right to a lien waived by the fact that, in the contract and notes, title to the engine and materials was retained? The record discloses that the contract and notes used were the printed forms generally used by complainant in his business. There is no evidence that any claim was ever made by virtue of the provisions, and no proceeding of any kind was ever instituted to recover any part of the property other than the instant suit, under the water craft statute. It is uncontradicted that complainant has taken no step since the making of the papers to indicate a waiver of a lien. This- court has held that the giving of a note is not a waiver of the lien under this statute. Sarmiento v. The Catherine C., 110 Mich. 120-125 (67 N. W. 1085), and cases cited; Delaney Forge & Iron Co. v. The Winnebago, 142 Mich. 84-91 (105 N. W. 527, 113 Am. St. Rep. 566); 26 Cyc. p. 792.

We have held in cases of mechanics’ liens that the retention of title is not inconsistent with the existence of the statutory lien. Warner Elevator Manfg. Co. v. Building & Loan Ass’n, 127 Mich. 323 (86 N. W. 828, 89 Am. St. Rep. 473), and cases cited. It was there said:

“But the authorities forbid the assumption that a reservation of title is inconsistent with the existence of a statutory lien, holding that there may be cumulative remedies, and consequently that absolute inseparability is not a condition to the existence of the statutory lien.”

See, also, Kirkwood v. Hoxie, 95 Mich. 62, 66 (54 N. W. 720, 35 Am. St. Rep. 549).

In Peninsular General Electric Co. v. Norris, 100 Mich. 496 (59 N. W. 151), it was held that the fact that an electric company retained the title to an electric lighting plant, which it placed in a building, until it was paid for, would not deprive it of its statutory lien, or prevent the enforcement of the same— citing and quoting from Case Manfg. Co. v. Smith (C. C.), 40 Fed. 339, as follows:

_ “Instead of being inconsistent, it was merely additional security to that provided by the statute. It certainly does not establish, as matter of law, that, in thus retaining title to the machinery, complainant has waived its statutory lien upon the lot of ground or premises on which the machinery was placed.”

The above language it seems to us is as appropriate here as in the case of a mechanic’s lien. See, also, Fuller v. Byrne, 102 Mich. 461 (60 N. W. 980); Pettyplace v. Manufacturing Co., 103 Mich. 155 (61 N. W. 266) ; Presque Isle Sash, etc., Co. v. Reichel, 179 Mich. 466 (146 N. W. 231). See, also, the case of D. B. Steelman (D. C.), 48 Fed. 580, where the party furnishing materials, took cash in part payment and notes secured by mortgage on one-half of the vessel. It was held that the mere fact of taking a mortgage did not operate as a waiver of the maritime lien, and authorities are cited. The Theodore Perry, Fed. Cas. No. 13,879; The Hilarity, Fed. Cas. No. 6,480.

In 26 Cyc. p. 791, it is said:

“A lien once vested may be lost in various ways. * * * But the burden is on the party asserting such a waiver to prove it, as this would be a matter of defense.”

The lien in water craft is intended for the same purpose as the lien of mechanics, to protect persons furnishing labor or materials. We are of opinion that retaining title, as in this case, was not a waiver of the lien.

3. It is urged, however, that here the credit was given to the individual and not to the vessel, and hence no lien attached. We are of opinion that this proposition was answered by this court in Delaney Forge & Iron Co. v. The Winnebago, supra. At page 91, 142 Mich, (at page 530 of 105 N. W., 113 Am. St. Rep. 566), Justice McAlvay, speaking for the court, said:

_ “The distinction between maritime and nonmaritime liens must not be overlooked in this case. It cannot with accuracy be said that materials, furnished, as in this case, where a statute of the State gives a nonmaritime lien, are furnished upon the credit of the vessel. Such language is only exact where reference is had to a maritime lien. The statutory lien attaches by operation of law, where the materials furnished are within the provisions of the statute. The lien attaches as an incident to the contract, and, unless such lien is waived, the provisions of the statute may be invoked for its enforcement.”

It clearly appears in this case that complainant was to furnish, and did furnish, defendant with the marine engine in question to be used in this particular boat. Its name was afterwards changed from the “Eaglesfield” to the “Golden Girl;” of this there is no question.

It is also contended that complainant did not furnish materials for this vessel within the meaning of the statute; that he contracted to furnish one of his completed engines for a stated sum; that the engine when installed was not a part of the boat. We think that the case of Globe Iron Works v. The Steamer, 100 Mich. 583 (59 N. W. 247, 43 Am. St. Rep. 464), is a complete answer to this claim. We quote:

“This is a proceeding to enforce a lien under the water craft law of this State. * * * The claim is for one boiler and attachments, one smokestack and umbrella with attachments, furnished and used in the building, fitting, furnishing, and equipping of the steamer ‘John B. Ketchum 2nd.’ ”

The lien was enforced.

It should be stated that, during the trial below, the claim of Wm. Brummeler’s Sons Company, intervening complainants, was adjusted and their claim dismissed. We are aware of the act of Congress of June 23, 1910 (36 U. S. Stat. 605), entitled “An act relating to liens on vessels for repairs, supplies, or other necessaries.” By section 5 of that act it is provided:

“That this act shall supersede the provisions of all State statutes conferring liens on vessels in so far as the same purport to create rights of action to be enforced by proceedings in rem against vessels for repairs, supplies, and other necessaries.”

We do not understand that that act deprives the State court of jurisdiction to enforce a contract, for claim, on account of work done, or materials furnished, in or about the building, fitting, furnishing, or equipping of a boat during its construction, as in this case. Such claims and contracts are nonmaritime.

Upon the merits of the case, we are of opinion that the complainant has sustained the burden of proof. The defendant Elizabeth Eaglesfield, while complaining of defects in the engine, has not given us any basis upon which to estimate her damages. She gave no definite amount as to damages suffered, and she continued to use the engine down to the time of trial without complying with the conditions of the warranty.

We think the complainant has established his lien for the amount of the notes and the account of $42.65, and interest as above stated.

For the errors pointed out, the judgment of the court below must be reversed. By section 10827, 3 Comp. Laws (5 How. Stat. [2d Ed.] §13663), it is provided that this court shall hear and determine the appeal, and shall have power to reverse, affirm, or modify the judgment or decree below, and to make such other order as shall be just. The record shows that the boat has been discharged by a statutory bond in the penal sum of $2,000, with Margaret M. Parsons as surety. Section 10815, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13651), provides that in case judgment or decree passes for complainant, in such case, the same shall be rendered and entered against the principal and surety in the bond.

Judgment will be entered in the court below for complainant for the amount of such notes and account above indicated against said defendant Elizabeth Eaglesfield and said surety, with, eosts to be taxed, upon filing a certified copy of the order of this court as indicated by section 10828, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13664).

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    ANTOSZEWSKI v. CITY PLUMBING CO.
    1. Equity — Amendment—Rescission of Contract — Discretion to Permit Amendment.
    It was within the discretion of the trial court upon the hearing to permit the amendment of complainant’s hill so as to set up the alleged claim that defendant corporation had no property, or assets, in a suit to rescind a conveyance to the defendants on the ground of fraud, in the absence of any claim of surprise or request for continuance by the defendant.
    2. Same — Prayer of Bill — Multifariousness.
    A bill of complaint in equity is not necessarily multifarious because it contains an alternative prayer where it seeks for an injunction against a corporation to prohibit it from disposing of certain assets received from complainant and also to set aside a conveyance of the homestead by complainant and his wife to the defendant on the ground of fraud.
    3. Same — Parties—Decree.
    ■ Where all the parties were before the court and the subject matter of the suit was properly presented by the pleading and a decree could be entered adjusting the entire controversy as to all the parties in interest, though one defendant .who had a small interest suffered the hill to he taken as confessed against him and was not represented by counsel, appellant’s claim that the decree could not apply with equal force to all the defendants was unwarranted.
    4. Same — Pleading—-Hearing—Demurrer.
    Where complainant amended his bill of complaint so as to meet the objections of defendants’ counsel in part, and the trial court, without overruling the demurrer of defendants’ counsel made orally to the proposed amendments, proceeded to dispose of the case on the proofs, and solicitors for the defendants raised the objection that the decree in the case had been prematurely entered because the demurrers had not been disposed of, and where the court thereafter treated the final decree as vacated, overruling the oral demurrer and restoring the decree as of a later date, giving counsel for defendants leave to file answers to the amended bill, no application being made to open up the case and take further testimony, and defendants admitting that they had no further proof, the decree entered was justified.
    5. Same — -Decree—Return oe Consideration — Rescission.
    It was proper for the court to enter a decree, in a suit to set aside the transfer of property to the defendants on the ground of fraud, that complainants should be entitled to a reconveyance as to the wife of defendant, who had paid nothing towards the property received and who was not a real party in interest to the transaction. But the final order should be modified so as to require the return to defendant of a sum of money which had been received by the complainant for the property and to restore personal property in the form of shares of stock in a corporation formed pursuant to an arrangement made between the parties.
    Appeal from Wayne; Hally, J.
    Submitted January 20, 1915.
    (Docket No. 17.)
    Decided March 18, 1915.
    Bill by Anton Antoszewski against the City- Plumbing Company and others to cancel certain conveyances made to the defendants. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Arthur A. Koscinski and Harry J. Dingeman, for complainant.

      Sloman & Sloman, for defendants.
   Stone, J.

In September, 1911, the complainant was, and had been for some time, engaged in the business of shoe repairing, and owned the premises involved in this suit, known as 1278 Rivard street, in the city of Detroit, which he, with his family, occupied as a homestead. The property was incumbered by a mortgage of $1,200. The homestead was all the property which complainant owned, and he claims that he was ignorant of business affairs and uneducated. Having occasion to employ a plumber to do some work in his house, he called in the defendant Frank B. Kuczynski, a countryman of his, with whom he had no previous acquaintance. The said defendant informed complainant that he was looking around with a view of buying some property. A few days later, when the work was completed, said defendant called on the complainant and was informed that complainant would sell his homestead to him if he wanted to buy. A price was stated, and then said defendant asked complainant what he thought of the idea of going into partnership with him in the plumbing business.

The complainant claims that he stated he was ignorant of such business, and that such a partnership would be impossible, to which the defendant replied that it could be made possible. A few days later said defendant and his wife visited complainant’s home, and further efforts were made to induce complainant to enter into the proposed partnership. The said defendant told complainant that he would take the latter into partnership if the complainant would first pay him the sum of $1,500, which sum the defendant stated he needed at that time. Complainant replied that he had no money, and said defendant offered to take complainant’s interest in the homestead in lieu of the $1,500 in cash, and complainant claims that he was induced by the said defendant to enter into the proposed partnership, and that, before the articles were drawn up, the complainant asked said defendant how much the latter was- worth. Said defendant thereupon made out a statement of all his assets which he was to turn into the partnership to represent his three-fourths interest therein. In this statement said defendant represented that the property which he was turning over to the partnership was worth the sum of $5,535.32, less $300 for unpaid materials. Complainant claims that said defendant also agreed to take an inventory of his stock, and that he showed complainant the material he had at that time, and also took him out to a few places in the city and showed him work which he had started. Complainant, claiming that he was very ignorant of the value of such stock, inquired of said defendant whether what was shown him was worth nearly $6,000, and said defendant assured complainant that such was the fact, and that a close inventory would prove it to be worth even more.

On the 22d day of February, 1911, an agreement of copartnership was drawn and signed by the said parties. Under the firm name of Kuczynski & Antoszewski, the business to be carried on was that of plumbing in the city of Detroit, term to be one year, and such further period as the partners might agree upon. The capital of said firm was stated to be $5,500, of which sum defendant was to contribute three-fourths and complainant one-fourth in cash or property, and the partners were to share in the profits and losses in the same proportion. Among other things, the articles provided that each of said partners should be permitted to draw from the fund of the firm a salary, said defendant to receive $4 a day for the first year, and complainant $2 a day, after which time both partners were to receive the same amount.

Said complainant and wife conveyed to said defendant and his wife the said homestead, and in return for this the said defendant executed a bill of sale of an undivided one-fourth of his assets to the complainant.

It is the claim of the complainant that the valuation placed on his homestead was $2,900; that complainant was to put into the business an interest in that property which would represent the sum of $1,500; the $1,200 mortgage to be assumed by the said defendant, and the difference of $200 was to be paid by said defendant to complainant in cash. Of this amount the complainant claims that he received $150 from said defendant. It is the further contention of the complainant that an understanding was had between him and the said defendant at that time, by which the complainant and his family were to occupy the second floor of the premises conveyed to said defendant and wife, as long as the complainant should stay in the business with said defendant, and that he was not to pay any rent for the period so stated. The complainant continued to live there, in pursuance of this understanding, without paying rent until some time after this suit was commenced, when unsuccessful attempts were made to eject complainant therefrom, and later said defendant threw complainant’s household goods out of the house during complainant’s absence.

Complainant claims that, notwithstanding repeated requests, he was never able to obtain. an inventory from the said defendant as promised. It is the further claim of complainant that during the existence of the partnership the said defendant continually urged the complainant to incorporate their business. This was finally agreed to. On December 12, 1911, articles of incorporation were drawn up with the said defendant and Josephine Kuczynski, his wife, and complainant, as corporators. All three subscribed the articles of incorporation, and the same were put in evidence. The name assumed by the corporation was “City Plumbing Company.” It provided for a capital stock of $15,000, but that only $8,000 were subscribed; the shares being of the par value of $100. Article 7 of said articles reads as follows:

“The amount of said stock actually paid in at the date hereof is the sum of eight thousand ($8,000) dollars, of which amount two thousand six hundred and ten ($2,610) dollars has been paid in cash, and five thousand three hundred and ninety ($5,390) dollars has been paid in other property, an itemized description of which, with the valuation at which the item is taken, is as follows, viz.: Crooks, cast iron pipes and fittings now at shop, at 1278 Rivard street, $50; 400 feet of lead pipe, $80; 400 feet of soil pipe, $200; soil pipe fittings at 1278 Rivard street, $60; small pipe fittings, plumber’s materials and plumbing tools, all in shop at 1278 Rivard street, $2,050; plumbing materials and tools in store at 1278 Rivard street, $850; one Buick car, runabout, model 1910, numbered 663, $1,055; credits for work done and money outstanding, secured and unsecured, belonging to Frank Kuczynski and Anthony Antoszewski, $1,045. Said outstanding accounts are owned by Frank Kuczynski and Anthony Antoszewski, doing business under the firm name of the City Plumbing Company, a copartnership to which the corporation succeeds.”

The said three parties subscribed the articles of incorporation; and all three made oath that the property described in article 7, which was taken in payment of stock, was worth the sum of $5,390.

Complainant received 20 shares of stock for his one-fourth interest in the partnership. The said defendant, Frank B. Kuczynski, received 59 shares, and his wife, Josephine Kuczynski, received one share. Soon after the articles were drawn up, a meeting of the stockholders was had, at which Josephine Kuczynski was made secretary and treasurer, and the complainant was made vice president, and the control of the financial end of the business was placed in the hands of said defendant, Frank B. Kuczynski, exclusively. A few weeks after the corporation was organized, two shares of the capital stock were sold, one to defendant Pieprzak and one to defendant Brakoniecki. At a meeting of the stockholders, held on February 12, 1912, the complainant and two last-named defendants insisted upon an inventory being taken of the assets of the corporation. Kuczynski opposed this move, but finally gave his consent, and two experienced plumbers were to take inventory of the assets of the corporation. It is the claim of complainant that next day, however, said defendant withdrew his consent after a quarrel and altercation with the stockholders. Complainant, becoming suspicious that the property, especially the $2,610 in cash, mentioned in the articles, had not been paid over to the corporation, employed two experienced men in the plumbing business to make a detailed inventory of the assets of the concern. It is claimed that the said defendant prevented such inventory, but that said parties were able to make a fair estimate," and found that not only the $2,610 were not paid in, but the entire stock was worth not to exceed $500.

On March 7, 1912, the original bill of complaint in this case was filed, setting up these grievances at great length, and praying, among other things, that an accounting be taken between the said Frank B. Kuczynski and the defendant the City Plumbing Company of all and singular the moneys and expenditures of the said City Plumbing Company, and of the amount received by the said defendant Frank B. Kuczynski, for and on account of the said City Plumbing Company; that on such accounting the said defendant Frank B. Kuczynski be required to pay over to the said City Plumbing Company all money which he had wrongfully or otherwise converted to his own use of its property; and especially that he be further decreed to account for the sum of $2,610 aforesaid, and that a receiver be appointed to take charge of the company; and that if, in the judgment of the court, it was found impracticable to further carry on the business of said plumbing company as a corporation, with profit or success, then in that case that the said corporation be wound up by a sale of the business, good will, and property of said corporation, and the avails thereof, after paying all its lawful indebtedness, be distributed among the shareholders as their interests might appear.

The bill prayed for a very broad injunction. A preliminary injunction was finally issued restraining the officers of the corporation from disposing of the property belonging thereto, except in the usual and ordinary course of business.

A separate answer was filed' by the City Plumbing Company, and a joint and several answer by the defendants Frank B. and Josephine Kuczynski and defendant Pieprzak; the bill having been taken as confessed as against defendant Chester Brakoniecki. These answers, in short, denied all fraud and dishonest conduct on the part of the defendants, and it may be said that they denied every material allegation of the bill of complaint. These answers denied that the complainant was entitled to any relief, and prayed the advantage of a demurrer to the bill of complaint.

Upon the issue framed in this manner, the case was brought to a hearing in the month of January, 1913. The complainant was examined at great length, as well as the said defendant Frank B- Kuczynski, who was called by the complainant, and numerous other witnesses were examined.

Upon the hearing, and after testimony had been taken for a day or two, the complainant desired to amend the bill of complaint, and counsel for the defendants, referring to such motion of complainant, said:

“I want to make a motion that they file their amendment now, whatever amendment they are going to file. It does not occur to me that it is in the interest of justice in this case to allow these men to fish for what they will put in their amended bill in this case. We don’t know at present just what they are going to put in their amended bill. They have asked to amend in one particular. It occurs to me, after reading the bill over again last night, that they will have to amend all their allegations in order to reach the remedy they desire here. We ought to know at some reasonable time in this case what we are going to defend, and what relief they are going to ask; what allegations they are going to set up.
“The Court: I don’t think there is anything unreasonable in that request.
“Complainant’s Counsel: We cannot sit down and do it right now. You said you anticipated this move.
“Defendant’s Counsel: I anticipated that that was the relief that you would have to ask for eventually, if you asked for any; that you could not ask for the relief that you have asked for, under the law. * * *
“The Court: Isn’t it possible — without couching it in the language of allegation, isn’t it possible to say now what propositions you intend to cover by your amendment?
“Complainant’s Counsel: I think so.
“The Court: I think you better do that. Then at the first opportunity prepare the amendment. There has one opportunity gone by now.
“Complainant’s Counsel: This really comes by way of supplement rather than by way of amendment. We are prepared to show, by way of supplement, that since the filing of this bill of complaint the assets of the corporation have been depleted to such an extent, through the actions of Frank Kuczynski, that the relief originally prayed for in the bill of complaint would avail us nothing, and for that reason we ask leave to amend the prayer of the bill, and ask that conveyance of the property by Antoszewski to Kuczynski be set aside. I think outside of that our bill is sufficiently full to warrant the court in granting that prayer for relief, if he finds that the facts are sustained. A question was raised here yesterday that we allege in our bill that the value of the premises was about $2,700. The testimony shows it was $2,900. If there is any question about that, I will ask leave to change that from $2,700 to $2,900.
“The Court: All right. You may proceed. * * *
“Defendant’s Counsel: I desire to demur to the amendment. Of course, I want to take an objection to the amendment as granted, and I want to demur to the amendment, that there is no allegation in the present bill to sustain the new prayer that they now seek to inject into their supplemental bill.
“The Court: All right.
“Defendant’s Counsel: And that the bill as presented now would make the matter multifarious.
“The Court: That is one of the grounds of your demurrer ?
“Defendant’s Counsel: Yes.”

The examination of the witnesses proceeded with the pleadings standing in this condition — witnesses having been called by both parties — until the testimony finally •closed, at which time defendants’ counsel said:

“That is all we have to offer, your honor. I desire to make a motion. I filed a brief, your honor. * * * I desire now to make a motion that this bill be dismissed for legal reasons. He does not set up in the bill that this man has ever made a petition to the board of directors to have his wrongs redressed, or to have this suit brought, nor has he testified to it in his testimony here.”

Whereupon counsel proceeded with his argument, citing certain authorities. The record shows the following :

“(After the amendments Mr. Stowers states that .he thinks the amended bill should be filed. The court states that he believes the amended bill ought to be filed. Mr. Stowers asks for five days to file an answer or demurrer. The court says he does not think this is an unreasonable request.)”

The testimony here closed.

From the record we understand that the case was here submitted. It appears that on January 29, 1913, what is termed an “Amended and Supplemental Bill of Complaint” was filed. The stating portion of the bill varies only slightly from the original bill. It does, however, contain an averment that, upon complainant discovering the fraud perpetrated upon him, he tendered back to the said plumbing company and said defendant Frank B. Kuczynski the said shares of stock and said sum of $150, and demanded his property back. Testimony to this effect had already been given upon the hearing. The prayer of this so-called amended and supplemental bill, in addition to the prayer of the 'original bill, contained the following:

“Or that the deed by which your orator conveyed to the said defendants Frank B. Kuczynski and Josephine Kuczynski, his wife, the said premises herein described and located at 1278 Rivard street, Detroit, Mich., be declared null and void, and the said conveyance set aside, and that the defendants Frank B._Kuczynski and Josephine Kuczynski may be required to reconvey the said premises to your orator, and that said defendants Frank B. Kuczynski and Josephine Kuczynski may be restrained by an injunction of this court from selling, assigning, disposing of, or in any manner incumbering said premises known as 1278 Rivard street, in the city of Detroit, Mich., until the further order of this court.”

On February 3, 1913, the individual demurrer of Frank B. Kuczynski was filed, and on the same day the joint demurrer of the City Plumbing Company, Frank B. Kuczynski, and Josephine Kuczynski to the amended supplemental bill of .complaint was filed. The demurrers were alike in effect, and were substantially as follows:

(1) That the amended supplemental bill as it now stands is multifarious. (2) That the averments and prayers are incongruous one with the other. (3) That the court, in this case, can enter no decree that will apply with equal force to all the defendants. (4) That the amended or supplemental bill seeks a new relief not prayed for in the original bill, and states no new matter that has arisen since the original bill was filed.

With the record in this condition, the court, on the 26th day of May, 1913, filed a lengthy opinion reviewing the testimony in the case, and reaching the conclusion that the complainant was entitled to have the premises reconveyed to him, subject to the claim of defendant Kuczynski for certain repairs and improvements made upon the property. In the course of this opinion the court reviewed the history of the said Frank B. Kuczynski in a severe manner, finding that he had been guilty of fraud in his dealings with the complainant, among other things, saying:

“In the bill as originally .filed the complainant asked that the defendant Frank Kuczynski be compelled to pay into the treasury of the corporation the cash which the articles of incorporation stated had been paid in. Subsequently he concluded this would bring him small relief, because of the worthless condition of the company’s affairs, and has filed a supplemental or amended bill, and has prayed that the court restore to him his property on Rivard street, Detroit, Mich.
“Defendant asserts that four distinct issues arise out of the case: (1) Can the complainant maintain this case? (2) Is he entitled to file an amended or supplemental bill? (3) The amended or supplemental bill is objectionable for multifariousness. (4) The complainant, in failing to promptly rescind his contract, when he discovered what he terms fraud, does not come to a court of equity with clean hands.
“As to the proposition 1: The jurisdiction of a chancery court in a matter of this nature is expressly conferred by section 9757, 3 Comp. Laws, and the cases cited which explain those sections.
“As to 2: The purpose of the complainants in the original bill does not differ from the purpose expressed and desired in the amended or supplemental bill. He desired to possess himself of the money taken from him, either in the shape of cash, property, or shares of stock made valuable by the cash behind them. The dispute between the complainant and the defendant Frank Kuczynski is fully presented by this proceeding, and there is and should be no good reason for denying such amendment or amendments as will permit and justify a full investigation into all of the facts surrounding this transaction and a prayer for such relief as the present situation makes practical.
“As to No. 3: As already pointed out, the purpose of the original and amended bill is the same. In framing these, of necessity there comes an alternative .proposition. That is, if the court should find that the defendant Frank Kuczynski has so conducted the business of the corporation that a payment into its treasury of $1,500 or the sum stated in the articles would not result in granting any practical relief to the complainant, it then decree the return to him by the defendant of the property which the defendant is now possessed of.
“The defendant’s purpose, as expressed by his former bookkeeper, would be accomplished in this case, and no relief of any practical character would come to complainant, and, in my judgment, the proper measure of justice will not be accomplished, unless the defendant Frank. Kuczynski is deprived of some of his cunningly obtained property. This was a purpose of the original bill; it remains one of the amended instrument; and the objection of multifariousness is not well taken.
“As to 4: It is true that the complainant might have acted more promptly, but he was in the position of one who was hoping for the best, and his first attempts to accomplish something are the efforts rather of a misguided man than of one acting in bad faith. As the defendant has, in the estimation of the court, placed improvements on the property, which are worth not to exceed $500, this amount should be taken into consideration, as should also the condition of the taxes and mortgage, complainant will have a decree ' with costs.”

On November 8, 1913, the court made its final decree in the case, ordering that the conveyance from complainant to the said defendants be set aside and declared null and void, as against said complainant, his heirs and assigns; that complainant pay to the defendants $559.81, being the amount of improvements, taxes, and interest upon the mortgage laid out and expended by said defendants upon the said premises, for which amount said defendants were to have a lien upon the property; and that, upon the payment of the same by the complainant, defendants Frank B. Kuczynski and Josephine Kuczynski, his wife, do convey to the complainant the premises, describing them.

The case rested in this condition until the month of January, 1914, when new counsel for the defendants came into the case and moved the court to set aside the decree rendered for the following reasons, to wit:

(a) Because said decree was prematurely made. (5) Because no order was made or entered in the case disposing of the defendants’ demurrer to the amended bill of complaint, (c) Because no issue under the amended bill of complaint had been framed for the hearing thereon. (d) Because no hearing was had on the new and antagonistic issue raised by the amended bill of complaint:
“This motion will be based upon the files, records, and proceedings of said cause in said court and upon the hearing of the case upon the original bill of complaint, answers thereto, and proofs taken in open court on the hearing thereon.”

Thereupon, upon the hearing of said motion on February 13, 1914, the court made and entered the following order:

“The defendants’ motion to set aside the decree heretofore rendered in this case as having been prematurely made and entered and for other reasons cited in said motion, having come on to be heard, and after hearing the arguments of the solicitors for the respective parties, and it appearing to the court from the files and records that the amended bill of complaint was filed on January 29, 1913, and the defendants’ demurrer thereto was filed on February 3, 1913, after the testimony was closed and the cause submitted, and that no order was entered in said cause overruling said demurrer and granting the defendants leave to answer same according to the rules and practices of said court, and that said decree was prematurely entered, it is therefore ordered that the demurrer of said defendants to said amended bill, which the court has considered as a joint and several demurrer, be and is hereby overruled, and that said defendants respectively are granted leave on or before February 26, 1914, to file their several answers to said amended bill of complaint, adding thereto, if they desire, a demurrer clause therein, incorporating substantially the several grounds of demurrer incorporated in the demurrer heretofore mentioned, which is likewise overruled, and this court being satisfied as indicated in his opinion filed in said cause ‘that the purpose of complainant in the original bill does not differ from the purpose expressed and desired in the amended or supplemental bill,’ and that no other or further proof should be allowed to be taken or hearing had upon the amended bill, and that the requests of the defendants therefore be denied.
“It is further ordered that the decree heretofore entered in said cause on November 8, 1913, stand as and for the decree of this court as made and entered on February 28, 1914, in place of November 8, 1913, without further hearing, to all intents and purposes as if the same had been first entered on said February 28, 1914.”

The defendants have appealed.

As we have already stated, the amended or supplemental bill in its averments, except in the particulars pointed out, was substantially the same as the original bill. It is urged by appellants that the court should not have permitted the amendment to be made. We are of opinion that the action of the court in that regard was within its discretion. The matter of the amended bill did not seem to be any surprise to defendants’ counsel, for we find one of them stating: “I anticipated that that was the relief that you would have to ask for eventually, if you asked for any.” We think that, under the liberal rule of amendments in this State, the court did not abuse its discretion in that regard. Brown v. King, 172 Mich. 355 (137 N. W. 729); City Bank & Trust Co. v. Hurd, 179 Mich. 454 (146 N. W. 299). Many earlier cases might be cited.

We do not think that the bill of complaint, as amended, was multifarious. The fact that the prayer had been amended would not render it so. Often a bill may have a double aspect, and an alternative prayer, without being multifarious. Many of our cases might be cited upon this subject. Wales v. Newbould, 9 Mich. 45; Cornwell Manfg. Co. v. Swift, 89 Mich. 503, 519 (50 N. W. 1001); Cleland v. Casgrain, 92 Mich. 139-147 (52 N. W. 460); Densmore v. Savage, 110 Mich. 27 (67 N. W. 1103); Eberle v. Heaton, 124 Mich. 205 (82 N. W. 820).

We do not understand the claim that no decree could be made applying with equal force to all defendants. All of the defendants (except one who had a small interest, against whom the bill was taken as confessed) were before the court, represented by counsel. We agree with the trial court that the equities were with the complainant, and we see no legal objection to the decree which was entered upon the merits of the case.

As this court said in Bigelow v. Sheehan, 150 Mich. 507, at page 515 (114 N. W. 389), at page 392:

“When all the parties and the subject-matter of the suit are all before a court of equity, and the proofs show that a decree can be entered doing exact justice to all, technicalities in pleadings are to be overlooked.”

The court below seemed to agree with counsel for defendants that the decree had been prematurely-entered, because the demurrers had not been disposed of. The decree was treated as vacated; the demurrers were then disposed of by the court, and we think rightfully, and the decree restored as of February 28, 1914. In order to perfect the record, the court gave counsel for defendants leave to file answers to the amended or supplemental bill of complaint on or before February 26, 1914. We understand that this was done to complete the record. The subject-matter of these answers had been substantially covered by the previous answers and demurrers in the case. The record does not show that any application was made to the court to open up the case for the purpose of taking more testimony, nor does the court’s attention appear to have been called to any such claim, and we find no such claim in the record. On the contrary, we find counsel for defendants announcing at the close of the testimony: “That is all we have to offer, your honor.”

In pursuance of the order of the court, the defendants appear to have filed the answer of Frank B. Kuczynski to the amended bill of complaint on February 27, 1914, and the answer of the defendant the said Plumbing Company, and the answer of Josephine Kuczynski on March 24, 1914. While the proceedings in the case were somewhat irregular, and out of the usual course, a careful consideration of the record leads.us to the conclusion that substantial justice was done by the decree entered in the case, with the one exception which we shall hereafter mention.

It is urged, among other things, that there was no evidence tending to show that the defendant Josephine Kuczynski was in any manner a party to the alleged fraud,' and that, she having taken title jointly with her husband, the court should not have set aside such conveyance as to her. It should be borne in mind that she was represented by counsel at all times during the hearing of the case and the taking of testimony. The transaction was really one between the complainant and her husband. There is no evidence that she put any money or property into these premises. Under the evidence in the case, we think the court was justified in the conclusion which it reached in that regard. We think, however, that the decree below should be modified by requiring the complainant to pay to the said defendant Frank B. Kuczynski the sum of $150 and the interest thereon, which complainant admits he received and has never returned. This amount should be added to the $559.81 specified in the decree; and we think the decree should also provide that the complainant shall assign and deliver or tender to the said Frank B. Kuczynski the certificate for the 20 shares of stock which he received for his partnership interest in the corporation.

With these modifications the decree of the circuit court will be affirmed. No costs awarded to either party in this court.

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    L. STARKS CO. v. EPPINK.
    1. Creditors’ Suits — Bile in Aid of Execution — Real Property —Debtor and Creditor — Burden of Proof — Evidence.
    In a suit by judgment creditors to set aside a conveyance of real property from a judgment debtor to ber daughter executed after judgment was obtained against ber and not paid for in full at the time of tbe execution of tbe papers, evidence considered and held, to be insufficient to sustain the burden of proof resting upon tbe defendant, under 3 Comp. Laws, § 10203 (5 How. Stat. [2d Ed.] § 12864).
    2. Same — Notice — Judgment — Constructive Notice — Duty to Inquire.
    Tbe purchaser from a judgment debtor is chargeable with such knowledge of tbe facts as would put an ordinarily prudent person on inquiry with tbe duty of investigating tbe situation of tbe grantor, and, in tbe event of failure so to do, is chargeable with bad faith, and it is not necessary, to defeat tbe transfer, to establish by actual proof tbe existence of an intent on tbe part of tbe grantee to participate in the fraudulent purpose.
    3. Same — Bona Fide Purchaser — Fraud.
    If tbe purchaser is not a creditor it is enough that be knows sufficient of tbe facts to put a prudent man upon inquirj as to tbe motive for tbe transfer.
    4. Same — Execution—Return—Setting Aside Return of Officer.
    An unauthorized return of tbe sheriff of an execution placed in bis bands for levy upon property of tbe defendant in tbe judgment prior to tbe filing of a bill in aid of execution was a mere irregularity which defendant waived by express agreement on tbe part of counsel in ber presence in open court that tbe return might be treated as not having been made.
    5. Same — Judgment—Affidavit of Pubucation.
    Tbe complainant’s case was not defeated by failure to file a printer’s affidavit prior to tbe entry of an order pro confesso to show tbe publication of statutory notice of appearance as against one of tbe defendants, upon complainant’s filing an affidavit made by its solicitor who knew the facts that the publication had been made pursuant to the order of the court.
    Appeal from. Missaukee; Lamb, J.
    Submitted January 14, 1915.
    (Docket No. 90.)
    Decided March 18, 1915.
    Bill by the L. Starks Company, a foreign corporation, against Tannette Eppink and Sena Taylor in aid of execution. From a judgment for defendants, complainant appeals.
    Reversed.

      Hall & Gillard, for complainant.

      Gaffney, Miltner & Millington, for defendants.
   Stone, J.

This is a bill in aid of execution. Prior to April 8, 1912, the L. Starks Company had commenced in the circuit court of Missaukee county, in chancery, a case for an accounting against John B. Eppink and Tannette Eppink, as defendants, and on said day the circuit judge, after a hearing of the case, filed findings of fact and conclusions of law, and ordered that a decree be drawn in favor of complainant against both of the defendants. At that time the defendant Tannette Eppink was the owner in fee simple of 220 acres of land in Missaukee county worth on an average $10 an acre. She was also the owner in fee simple of lots 12, 13, and 14 of the village of Lucas, worth $200, and also the owner of lot No. 1 of the village of Lucas, which was her homestead, and which she testified was worth $1,500.

On the 13th day of June, 1912, a warranty deed, dated the 25th day of May, 1912, was recorded in the office of the register of deeds of said county. By this deed the defendant Tannette Eppink purported to convey to Sena Taylor, her daughter and codefendant, for the express consideration of $2,000, the 220 acres of land, and said lots 12, 13, and 14 of the village of Lucas. This was all the property that Mrs. Eppink owned, except her homestead lot, above referred to.

On the 31st day of July, 1912, a final decree was made in the case above referred to. As far as that decree is material to the issue of the present case, it provided as follows:

“That the defendant John B. Eppink was acting in a fiduciary capacity with the above-named complainant, L. Starks Company, and that while so acting in said capacity, the defendant John B. Eppink misappropriated $1,202.10 of the money belonging to complainant; that of this sum the defendant Tannette Eppink received the amount of $510.63, leaving the balance owing by the defendant John Eppink to the complainant by reason of such misappropriation by acting in the fiduciary capacity aforesaid $691.57.” ‡ ‡ ‡
“That the defendant Tannette Eppink is indebted to the complainant in the sum of $510.63, together with interest thereon from August 1, 1910, at 5 per cent, per annum, being the amount of the money misappropriated by the defendant, John Eppink, as aforesaid, which was used for the benefit of the defendant, Tannette Eppink.”

Oh the 1st day of October, 1912, an execution was issued on said decree and delivered to the sheriff of said county. This execution was returnable November 30, 1912.

On the ,15th day of October, 1912, the sheriff of said county made levy upon the 220 acres of land above referred to as belonging to Tannette Eppink, lots Nos. 12, 13, and 14, and also lot No. 1 of the village of Lucas. A certificate of levy to this effect was signed by the said sheriff, and filed by him in the office of the register of deeds for said county on the 15th day of October, 1912, at 9 o’clock in the forenoon. He did not indorse the levy on the execution. It appears, and is undisputed, that at the time this levy was made the sheriff was instructed by the solicitors for the complainant not to return said execution until they directed him so to do.

On December 15, 1913, the bill in the instant case was filed, together with a notice of Us pendens. An order of publication as to the defendant Sena Taylor was signed the 24th day of May, 1913, and filed on May 26, 1913. It appears that the order was duly published, the first publication being on June 5, 1913, and the last publication on July 17, 1913. The proof of publication made by the printer was received by the solicitors for complainant about the 18th of July, 1913. Through' an oversight this proof of publication was not filed in the case, but was placed in the office files of the solicitors for the complainant. The solicitors for the complainant were not aware that this proof of publication had not been filed until the 1st day of July, 1914, and they were first made aware of that fact by the findings of the court in this case. It appears, however, that, on November 15, 1913, an affidavit of nonappearance of the defendant Sena Taylor was made by one of the solicitors for complainant, and an order pro eonfesso as to the defendant Sena Taylor was filed. That affidavit contains the following language:

“That, although the order herein made by this court that the defendant Sena Taylor should cause her appearance to be entered in this cause within four months from the date thereof has been duly published, as directed by the said order, as appears by the affidavit. of Charles R. Burleson on file, and although more than four months have elapsed since the said order was made, this deponent nor the firm of Hall & Gillard, solicitors for said complainant, have not received any notice that an appearance has been entered in this cause by or on behalf of said defendant, Sena Taylor, nor has the appearance of said Sena Taylor been entered therein, as appears by the records and files in this court, or the knowledge or belief of this deponent.”

The order pro eonfesso recites the following:

“On filing due proof of publication of notice of the order requiring the defendant Sena Taylor to appear and answer the bill of complaint filed in this cause within four months from the date of such order, and the time limited in said order for the entering of such appearance having expired, and having filed due proof that said defendant Sena Taylor has not appeared in said cause,” the order pro eonfesso as to her was entered.

This cause was heard in the court below on the 20th day of May, 1914. Upon the hearing it first came to the knowledge of complainant’s solicitors that on the 30th day of November, 1912, the said sheriff returned and filed the execution which had been issued as hereinbefore stated, with the following return thereon:

“By virtue of the within execution, I have levied and collected $170.84, part of the damages in the case within mentioned, and I can find no goods or chattels whereon to levy the remainder thereof.”

On its coming to the attention of the solicitors of the complainant that this execution had been returned, the following occurred upon the trial:

“Mr. Hall: This execution appears in the files. It should not be in the files. I directed the sheriff to hold that execution, and this is the first time that I knew it was in the files. It was filed November 30, 1912. (Mr. Hall' shows execution to Mr. Gaffney.)
“Mr. Gaffney: There was $170 paid. * * *
“Mr. Hall: That was the $160, and the interest thereon. * * * That execution should not be returned. I didn’t know it was returned before.
“The Court: Was there any levy made under it?
“Mr. Hall: Yes, sir; there was, and I have a certified copy made on October 15, 1912, and I do not know why the officer returned that against my instructions. There is no question but what a returned execution is not the basis of a bill in aid of execution, although it is up to Mr. Gaffney what he wants to do; whether he wants to consider that not returned and let us go on and try out the matter; or whether we will have an adjournment and make a petition that, that return be stricken from the files. I don’t know what we can do if the sheriff does not obey instructions. I think we have a right to have that return stricken from the files. He made his levy, but he has not indorsed the levy on there at all. As I understand it, this man is not sheriff of Missaukee county at this time.
“The Court: No; he is not. According to the files that execution had been returned prior to the beginning of this suit, and you folks would be presumed to have knowledge of it, and technically that is the situation.
“Mr. Hall: That is true, your honor. The bill was not filed until February, 1913. I was not up until October, and at that time the levy was made, and then we had to wait until after the return day; then there has been some talk all along of settling it up.
“The Court: At the time you filed your bill the files in the register in chancery’s office showed that this execution had been returned?
“Mr. Hall: That is true.
“Mr. Gaffney: I will consult with my clients a moment.
“(At this point Mr. Gaffney withdrew into the judge’s private room for a time, and after emerging from the judge’s room Mr. Gaffney said:)
“Mr. Gaffney: Your honor, after consulting with Mrs. Taylor, Mrs. Eppink, and John Eppink, we have decided to waive, and do waive, any question that might arise. I might say now that the return of the sheriff to the execution be declared no return, and that the execution be deemed to be in his hands awaiting the result of the trial.
“Mr. Hall: Very well; I thank you.
“Mr. Hall: We offer this certified copy of the deed in evidence.
“Mr. Gaffney: No objection.
“The Court: It will be received and marked Exhibit B.
“(Certified copy of the levy and execution received in like manner, without objection.)
“Mr. Hall: Your honor, with the findings and the decree of the court in the original case, the admission in the answer to the second paragraph of the bill of complaint that previous to the rendition of the judgment, and at the time the indebtedness occurred, Mrs. Eppink was the owner of the property mentioned in that deed, the execution as amended, the deed from Mrs. Eppink to Mrs. Taylor and the levy and execution, we rest. There is no question about the amount of $510.63 being still due and unpaid.
“Mr. Gaffney: Oh, no, sir.”'

Tannette Eppink, one of the defendants, was then sworn in her own behalf. She testified, upon direct examination, that on the 25th day of May, 1912, she was the owner of the property above described, and that on that day she conveyed the same away, with the exception of the homestead, to Mrs. Taylor, her daughter, and that she was paid the consideration mentioned in the deed. Upon cross-examination she testified that she was a witness in the original case against herself and her son. She testified that she did not know that the company was asking for a judgment against her, and claimed that she did not ascertain that a judgment had been rendered against her until about half a year after that; that she was surprised when she heard there was such a judgment against her; that Mrs. Taylor made a payment of $500 in June; that she had used the money, but could not tell for what purpose; that she received the remainder of $1,500 from her daughter in Chicago between Christmas and New Year. She testified that the property which she conveyed to Mrs. Taylor was all the property that she owned, except the house and lot where she lived in the village, which latter was worth $1,500. She could not specify what she had done with the last money which she received from Mrs. Taylor, only it was gone.

“Q. Is it all gone?
“A. I think it is; I may have some of it.
“Q. Well, if you have it, where is it?
“A. Is it necessary to tell that?
“Q. Yes.
“A. I couldn’t tell you where it is.”

Mrs. Sena Taylor was sworn as a witness in her own behalf, and testified that she was the daughter of the last-named witness, Mrs. Eppink; was married and lived in Chicago; that the deed to her was in her husband’s safe in Chicago. She further testified that she was not at the home of her mother on the 25th of May, but had been previous to that time; that she did not come prepared to pay for the land at that time; that she paid her mother the consideration mentioned in the deed in two installments; that she paid the first installment of $500 in June at her mother’s home, and the balance of $1,500 at her own home when her mother was there between Christmas and New Year, and at that time took receipts from her mother; that she did not have the receipts with her, but they were at home with the deed; that she did not receive the deed when she was in Michigan and made the $500 payment, but left it with her brother, John, whether for recording or not she was not able to state, but she presumed it would be recorded, but didn’t remember what was said regarding the deed.

John Eppink swore that he knew of the making of the deed; that it was left with him with instructions to have it recorded; that he neglected to send it to Mrs. Taylor, and that he never delivered it to anybody. He testified that he did not know what his mother did with the money, only that she had given him some money since that time.

It appeared that a Mr. Shreve, an investigator for the William J. Burns National Detective Agency, had been over from Chicago in the fall of 1912, and had an interview with Tannette Eppink, with reference to the purchase of a part of the property which had been conveyed to Mrs. Taylor. He testified in rebuttal that Mrs. Eppink admitted that she owned one 40 of the property which adjoined that of a Mrs. Boerts, and .that she also owned 80 acres on the other side. When asked if she wanted to sell the property, she said that she didn’t know, and then spoke about her son having trouble with L. Starks Company; that she said in reality she owned the property, but that her son had got into trouble with the Starks people and they were trying to get the land away from her, but to save it she had deeded it to her daughter, Sena Taylor, who lived in Chicago; that the property was really hers, but she would have to get a deed from Mrs. Taylor; and that she had turned her property over to Sena Taylor to keep L. Starks Company from doing her out of it.

It appeared that this deed was given to, or taken by, Mr. Shreve when he was at Mrs. Eppink’s. He further testified that he had a talk with Mrs. Taylor in Chicago, in which she said that she thought it would be best for them to sell a part or all of the property, and that she was willing to do whatever her mother desired her to do in the case, and that this was repeated a number of times.

There is much more of the testimony of this witness from which it appears that a deed with the name of the grantee in blank had been sent by Mrs. Taylor from Chicago to Mrs. Eppink in contemplation of a sale of the property. Much of the testimony of the man Shreve was denied by Mrs. Taylor and her mother. Mrs. Taylor admitted that he had called upon her in Chicago and had claimed that he wanted to buy, especially the property adjoining Mrs. Boerts. She denied, however, that she had ever talked to Mr. Shreve about the complainant. She was unable to state how many acres she got by the purchase, or how much land was embraced in any of the descriptions mentioned in the deed. When asked how many acres she got by the deed, she answered: “I couldn’t tell; I got all that my mother had anyway.” She stated, when asked what the property was worth, that she did not know anything about the value of the land. John B. Eppink testified, upon cross-examination, that some of it was worth $20 or $25 an acre, but that on an average perhaps $10 an acre, and that the three lots were worth about $200.

By authority of section 10203, 3 Comp. Laws (section 12864, 5 How. Stat. [2d Ed.]), after the complainant had made its prima facie case, the burden was then cast upon the defendants to show that the transaction was in all respects bona fide.

Was this property conveyed for the purpose of hindering, delaying, or defrauding this complainant? That such was the purpose of Tannette Eppink, we thiiik, is established beyond question,' and was so found by the trial court. It is a tax upon one’s credulity to believe that Mrs. Eppink did not know at the time she conveyed away this property that the trial court had made a finding against her in the sum already stated. She had been a party and witness in what appeared to have been a contested suit. She had been represented by at least two counsel upon that hearing. That every member of the family, including Mrs. Taylor, who had recently visited her mother, knew the result of that suit, is, in our opinion, beyond question.

The only question remaining upon the merits is: Did the daughter, Mrs. Taylor, know of this condition, and did she, in the receiving of this conveyance, know the purpose which the mother had in deeding the property away? There are many earmarks about the testimony in the case that lead an unbiased mind to believe that the whole transaction was a scheme to place this property in the hands of the daughter, and away from this complainant’s execution. The facts that the deed was made in the absence of Mrs. Taylor; that no money was paid until, as found by the circuit judge, on the 19th of June following, when $500 was paid; that the final payment of $1,500, if ever actually made, was made 60 days and upwards after the notice of the levy of execution had been duly filed — are all very significant. The fact that no satisfactory explanation is made as to what was done by Mrs. Eppink with the money leads one to criticise very closely this “family affair,” and the testimony of these defendants.

There is no claim that Mrs. Taylor was a creditor, or that her mother was in any way indebted to her. The rule of law has been repeatedly stated by this court to be as follows:

“Such a knowledge of facts as will put an ordinarily prudent man on inquiry will affect the good faith of one who takes a transfer of property from an embarrassed owner. Actual participation in the fraudulent intent of the latter is not necessary to defeat the transfer.” Hough v. Dickinson, 58 Mich. 89 (24 N. W. 809).

In Bedford v. Penny, 58 Mich. 424-428 (25 N. W. 381), this court held that actual participation by a purchaser in the fraudulent intent with which one makes a sale to defraud his creditors is not a necessary condition to its avoidance; if the purchaser is not a creditor, it is enough that he knows what would put a prudent man upon inquiry as to the motive of the sale. See, also, Jordan v. White, 38 Mich. 253; Allen v. Stingel, 95 Mich. 195 (54 N. W. 880); Gumberg v. Treusch, 110 Mich. 451 (68 N. W. 236).

In Gordon v. Alexander, 122 Mich. 107 (80 N. W. 978), this court said the following request to charge should have been given:

“The plaintiff was not a creditor of McDonald, but a purchaser; and, if he had knowledge of facts sufficient to put an ordinarily prudent man on inquiry, such knowledge on the part of Gordon would be sufficient to avoid the sale, without any active participation in the fraud by him.”

See, also, Lyon v. Clark, 129 Mich. 381 (88 N. W. 1046).

We have examined with care the decisions of this court under the section above quoted (section 10203, 3 Comp. Laws, section 12864, 5 How. Stat. [2d Ed.]).

That the burden is cast upon the defendant to show the bona fides of the transaction in all respects has been repeatedly held by this court since the adoption of the foregoing statute. Smead v. Rogers, 120 Mich. 441 (79 N. W. 638); Preston National Bank v. Leonard, 122 Mich. 381 (81 N. W. 264; Ullman v. Thomas, 126 Mich. 61 (85 N. W. 245); Gruner v. Brooks, 126 Mich. 465 (85 N. W. 1085); Wilcox v. Hammond, 128 Mich. 516 (87 N. W. 636); Crane v. Waldron, 133 Mich. 73 (94 N. W. 593); Shepard v. Schrutt, 163 Mich. 485 (128 N. W. 772).

We have frequently said that in cases of this nature family transactions should be carefully scrutinized. In our opinion, the defendants have not sustained the burden of proof cast upon them by the statute. They have failed to show that the transaction was in all respects bona fide.

The trial court reached a different conclusion, but, this being a chancery case, it becomes our duty to examine the whole evidence. It does appear by the findings of the court below, and in that respect we agree with the court, that the $170.84 indorsed on the execution was intended to apply on said judgment against John Eppink; that said amount was for certain potatoes, in the warehouse, which had been disposed of by that defendant in execution. The trial court dismissed the bill of complaint, and the complainant has appealed.

The trial court criticised the testimony of the witness Shreve as “too pat to be credible.” The same may be said of the testimony of Sena Taylor as to the transactions between her and her mother. The fact that she carefully took receipts from her mother for the two payments is, to say the least, unusual. The consideration was mentioned in the deed, and the acknowledgment therein of the receipt thereof was certainly a sufficient receipt for the payment. With the merits of the case in this condition, it is necessary for us to speak of the failure to indorse the levy upon the execution, and the sufficiency of the filing of the notice of levy. We need only refer in this connection to Vroman v. Thompson, 51 Mich. 452-456 (16 N. W. 808), and Shepard v. Schrutt, supra.

In view of the admission made by defendants’ counsel in open court (to say nothing about the application to set aside the return of the officer upon the execution), we think it should be held that that irregularity was waived in open court by counsel in the presence of the defendants, and that they are estopped thereby. We are also of the opinion that the irregularity in not filing the printer’s affidavit when the order pro confesso was entered was not fatal to the proceeding. The affidavit of the solicitor for complainant was, at least, some evidence of the publication. The affidavit of the printer does not exclude other proof, such as the affidavit of some other person who knows the fact. Matthews v. Supervisors, 48 Mich. 587 (12 N. W. 863).

We have examined with much care the sections of the statute to which our attention is called by defendants’ counsel in their brief, to wit, sections 9533 and 9537, 3 Comp. Laws (sections 11417, 11421, 4 How. Stat. [2d Ed.]), as well as the authorities cited by counsel.

The evidence in the case is such that we cannot hold that Mrs. Taylor was a bona fide purchaser. At most, she paid but $500 upon this purchase before she had notice by the filing of the levy. The effect of such notice was to put her upon inquiry, before she made her claimed final payment. Matson v. Melchor, 42 Mich. 477 (4 N. W. 200). See section 9224, 3 Comp.. Laws (section 11386, 4 How. Stat. [2d Ed.]).

The decree of the circuit court will be reversed, and one entered in this court in favor of the complainant-in accordance with the prayer of its bill, with costs of both courts to the complainant against both defendants.

Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.