text:
    SPRUNGER v. ENSLEY.
    1. Deeds — Wills—Construction.
    Whether an instrument conveying a life estate to grantor’s son, and the remainder to the' latter’s heirs, to take effect at the death of the grantor, was a deed or a will, held, unimportant, after the grantor’s death, where it was reaffirmed in his will, subsequently made, and the parties affected reaffirmed the same by contract in writing after grantor’s death.
    2. Same.

      EelA, that, by the provisions of said instrument, grantor’s son became the owner of a life estate, and at his death the fee vested in the heirs of his body.
    3. Same — Executors and. Administrators — Title to Land — Estoppel.
    Where the executor of an estate attempted to convey land in which the testator, had only a life estate, the fee vesting in the children, some of whom were minors, they would not be estopped, as against the grantees in the executor’s deed, from claiming the land because they had received their distributive share of their father’s estate, since real estate cannot be conveyed by estoppel in this State.

      4. Same — Delivery—Recording Deed — Presumptions.
    The delivery of a deed, in the absence of testimony to the contrary, will be presumed by the recording thereof.
    5. Same — Intention—Delivery.
    In determining whether an instrument is a deed or a will, the manifest intention of the parties making it, as gathered from all the language used in the writing, is controlling, and where it was recorded as a deed, thereby implying delivery, it may well be urged that it operated as a deed.
    6. Same — To Take Effect in Future — Delivery—Validity. •
    A conveyance of land to take effect at a future time is valid, when delivered.
    On delivery of deed to third person or for record by grantor, as a delivery to grantee, see notes in 54 L. R. A. 865; 9 L. R. A. (N. S.) 224; and 38 L. R. A. (N. S.) 941.

      7. Same — Construction—Intention.
    In construing deeds the intention of the parties is the fundamental inquiry.
    Appeal from Newaygo; Barton (Joseph), J..
    Submitted April 21, 1920.
    (Docket No. 52.)
    Decided July 20, 1920.
    Bill by Eli Sprunger and others against William B. Ensley, Jr., and others, to enjoin an action of ejectment and to quiet title to land. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Ellis & Ellis (L. C. Palmer, of counsel), for plaintiffs.

      William J. Branstrom, for defendants.
   Stone, J.

This is an appeal by plaintiffs from a decree dismissing the bill of complaint filed to restrain defendants from prosecuting a pending action in ejectment, and to quiet the title of the plaintiffs in and to the northeast quarter of the northeast quarter of section 12, township 11 north, range 11 west, being in Newaygo county.

On March 10, 1857, Benjamin Ensley acquired title in fee to the lands from the United States. On March 13, 1874, the said Benjamin Ensley, then a widower with 6 children, made an instrument in writing, claimed by the defendants to be a deed, conveying the land above described to his son, William B. Ensley, for life, with the remainder over to the heirs or heir of said William B. Ensley. The said instrument was in part as follows:

“This indenture, made the thirteenth day of March A. D. 1874, between Benjamin Ensley of Ensley, Newaygo county, Michigan, party of the first part, and Nettie Ensley, William B. Ensley, Loraine Ensley, Eliza A. Ensley, Mariah E. Holmes and Benjamin F. Ensley, of the said place, parties of the second part, witnesseth: That the said party of the first part in consideration of natural or parental affection and for a valuable consideration, receipt whereof is hereby acknowledged at or before the ensealing of these presents, hath granted, bargained and sold, aliened, remised, released, conveyed and confirmed and by these presents doth grant, bargain, sell, alien, remise, release, convey and confirm unto said parties of the second part and to their heirs and assigns forever the following real estate, to wit:”

(Here follows a description of certain parcels of land in Montcalm and Newaygo counties not involved in this suit.)

“The aforesaid grant of lands is upon the following conditions and is not to become operative until after the decease of the said party of the first part, and not then until after a complete compliance with the following conditions:
“1st. The said parties of the second part shall purchase and erect or cause the same to be done, a marble monument over my grave, to be worth at least the sum of five hundred dollars, on which said monument shall be properly inscribed the name of my deceased wife, Mary Eliza Ensley, also my own name, together with proper dates to the ages and deaths of the said Mary Eliza Ensley and myself, the said party of the first part, which shall be a condition precedent to the vesting of the fee in the said described lands in the said parties of the second part to this conveyance who shall be equal owners in amount and interest in said described lands. * * *
“The said party of the first part for a like consideration hereby grants and conveys .to the said William B. Ensley, one of the parties of the second part to this conveyance, a life estate, the same to be an estate in fee simple for the heirs of the said William B. Ensley, and in the event of his death without heirs or heir then to vest in all of the said parties of the second part, the same as the aforesaid described parcels of land conveyed to all of said parties of the second part, said land described as follows, to wit: The northeast quarter of the northeast quarter of section number twelve (12), in township eleven (11) north of range number eleven (11) west, Newaygo county, State of Michigan, said grant of land subject to all the conditions of- the aforesaid grant of land to all of said parties of the second part. * * *
“All of the aforesaid grants of land include all and 'singular the hereditaments, tenements and appurtenances thereunto belonging and in anywise appertaining i and the reversion or reversions, remainder and remainders, rents, issues and profits thereof, subject to the aforesaid conditions. To have and to hold all and singular the above mentioned and described premises as the same are herein set forth and described with the said appurtenances unto the said parties of the second part, their heirs and assigns as aforesaid.
“In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written.”

Forty acres were conveyed to each of the other five children named in the instrument. This instrument was witnessed by two witnesses, and on the day of its date the grantor duly acknowledged the same to be his free act and deed before a notary public of Montcalm county, Michigan. The said instrument, with said certificate of acknowledgment, was recorded in the office of the register of deeds of Newaygo county on the 5th day of May, 1874, in liber 18 of deeds, at page 116; and the same was recorded in the office of the register of deeds of Montcálm county on June 1, 1874.

On June 21, 1887, said Benjamin Ensley (having married a second wife by the name of Lucinda) made a last will and testament, in which he referred to the said deed as follows:

“Fourth. I give and devise to my said wife all real estate within the county of Montcalm, in the State of Michigan, of which I may die seised, except the lands heretofore conveyed by me to the children of myself and a former wife, which deed is to become operative after my decease.”

The said Benjamin Ensley died on December 12, 1889, and after his death the said will was admitted to probate and allowed as a last will and testament.

On September 1, 1888, more than a year after making said will, and more than 14 years after the said deed was executed and recorded, the said Benjamin Ensley commenced a suit in the circuit court for the county of Newaygo, in chancery, against his children, the grantees in said instrument, to set aside said deed. The bill of complaint in that case is made a part of, and incorporated in, the bill of complaint in this case.

At the time of the death of said Benjamin Ensley said suit was still pending, and on the 30th day of June, 1890, it was revived in the name of the executor of the estate of Benjamin Ensley, deceased.. On said June 30, 1890, by consent and approval of the parties in interest, there was filed in said chancery suit a certified copy of the last will and testament of Benjamin Ensley and of the probate thereof, and thereupon a decree was entered dismissing said suit.

At the time of the dismissal of said chancery suit, the parties named as defendants therein, being the 6 grantees in said deed, and the executor of the estate of Benjamin Ensley, deceased, and Lucinda Ensley, as widow of said Benjamin Ensley and as guardian of her 4 minor children, enteréd into a certain written contract. It is asserted by‘the defendants that by said contract the owner of the life estate to the premises herein involved attempted to deprive the remaindermen (the defendants here) of their title to the fee of said premises. That contract contained the following provisions:

“Whereas, on the 13th day of March, 1874, Benjamin -Ensley, now deceased, executed and acknowledged a deed to his six children, therein named, of certain lands in Newaygo and Montcalm counties, in the State of Michigan, to become operative on his decease, upon the erection, by them, of a monument as therein specified, which deed was recorded in the office of the register of deeds of Newaygo county on May 5, 1874, in liber 18 of deeds, at page 116, and in the same office in Montcalm county oh June 1, 1874, in liber 30 of deeds, at page 577, to which deed and record thereof reference is had for greater certainty, and the same is made a part of this agreement so far as may be necessary to its proper construction and execution. And whereas, in July, 1888, the said Benjamin Ensley filed a bill in the circuit court for the county of Newaygo, in chancery, against said grantees as defendants, to set aside said deed, for reasons stated in said bill, to which said bill reference is had for greater certainty; and whereas, such proceedings were thereafter had in said suit as resulted in the appearance of said defendants, except William B. Ensley, and the joining of issues upon their answers .filed to said bill, the same being taken as confessed as to said William B. Ensley, and the trial thereof by the examination of witnesses in open court in January, 1889, since which trial no further steps have been taken therein.
“And whereas, said Benjamin Ensley has departed this life, léaving a last will and testament, in and by which he devised to his second wife, Lucinda Ensley, and to her children, and to said William B. Ensley, all of his property, both real and personal, not disposed of by said deed, which instrument is referred to and recognized in said will as a valid conveyance to become operative at his death; and whereas, an executor has been appointed who has inventoried the lands described in .said deed as a part of the estate of said testator, and has taken possession of and assumed control of said lands, except the homestead of 40 acres which was conveyed to William B. Ensley in said deed and has been occupied by the widow of said testator, and said William B. Ensley since his death; and whereas, soon after the execution of said deed said Benjamin Ensley erected, near the center of the cemetery lot owned by him and in which his first wife was buried, a monument of the same character and description as the one provided for in said deed, and upon which he placed the like inscriptions as are provided for in said deed as far as it was possible to place them prior to his death.” * * *

The instrument then provides for the conveyance by the parties of the first part to Lucinda Ensley of certain lands, not including the premises in question. And the said Lucinda Ensley therein- agreed to convey to the first parties all of the personal interest she then claimed, or could claim in the way of dower and homestead rights, or otherwise, in the six 40 acres of land conveyed by said deed to said first parties in severalty, reference being had to said deed for greater certainty as to description; provided for the expending of a sum of money upon the cemetery lot and the division of the payment thereof. And it was further agreed that the parties to said agreement mutually agreed to quitclaim to each other, all of the interest that they might or could claim as heirs at law of said Benjamin Ensley in the respective 40-acre lots conveyed to each of them in said deed, the intent being to perfect, as far as possible, the title to each of his or her 40 acres of land.

The defendant William B. Ensley, Jr., was born more than 30 days prior to the time of the execution of said contract. He was not a party thereto, although it is claimed by the defendants that he was a remainderman vested with a title to the fee in the lands described. The other defendants, all being children of William B. Ensley, were born subsequent to June 30, 1890, and one of them is still a minor. The said William B. Ensley, Sr., the grantee and son of said Benjamin Ensley, continued in possession of the 40 acres here involved until his death.

On August 13, 1903, the said William B. Ensley, Sr., father of the defendants in this case, died testate; and it is the claim of these defendants that he was the owner of a life estate only, in and to the land involved in this suit, and that he got nothing by the several quitclaim deeds given to him by his brothers and sisters, and other parties to the said contract; and it is the further claim of the defendants that the remaining estate, or the estate in fee, is now in these defendants. '

The will of William B. Ensley, Sr., left a considerable estate of real and personal property, and provided for the appointment of Stephen C. Scott as executor, with full power to sell and convey any or all of his estate, both real and personal, without obtaining license from any court for that purpose; and it also appointed the said Scott guardian of the minor children, being the defendants in this case.

The land in question was inventoried in the estate of William B. Ensley, Sr., deceased, as belonging to his estate.

On May 2, 1907, the said Stephen C. Scott, as executor of the estate of William B. Ensley, Sr., deceased; attempted to sell and convey the lands here involved, by the execution and delivery of a deed of the same to the plaintiffs, or some of them. That deed was signed and executed by Scott as executor of the estate of William B. Ensley, Sr., deceased, and contained the following provision: “By virtue of the authority given in the will of deceased.” The plaintiffs claim title to said land by virtue of said executor’s deed. The defendants claim title thereto by virtue of the deed of Benjamin Ensley, from which we have quoted.

On September 17, 1910, Stephen C. Scott died, and one Charles W. Withey was thereafter appointed administrator de bonis non of the estate of William B. Ensley, Sr., deceased, and as guardian of the three minor children, defendants herein. On or about the '23d day of September, 1912, the probate court of Montcalm county made an order assigning the residue of the estate of William B. Ensley, Sr., deceased, and these defendants received their respective shares of said estate. The records and proofs conclusively show that no petition for license to sell the real estate owned by these defendants, being the children of William B. Ensley, Sr., deceased, was ever filed in the probate court, or any other court having jurisdiction.

At the time the plaintiffs were negotiating with said Scott for the purchase of the land involved they had a copy of the abstract of title to said lands, which showed the true condition of the title of record. The testimony in the case has reference to 160 acres of land, whereas there are only 40 acres here involved. It will be noted, by an examination of the record, that there was no evidence introduced of the testimony, if any .was ever taken, in the chancery case commenced by Benjamin Ensley, and dismissed after his death. The record shows that the bill was an unsworn bill, and the name of Benjamin Ensley was signed thereto by his solicitor. In our opinion this bill has no probative force as evidence in the case; having been dismissed it was as though it had never been filed.

Claim was made by plaintiffs that the defendants, having received their distributive share of the estate of their deceased father, thus having the benefit of the proceeds of the land in question, they are estopped from asserting any claim to the lands here involved. Not only were some of these defendants minors when the estate was distributed, but they would not be estopped from asserting their interest in the land in question and thereby be deprived of the legal title, if any they received by virtue of the deed of Benjamin Ensley, as real estate cannot be conveyed by an estoppel in this State. The doctrine of estoppel has no application here.

It is an important fact that the instrument, set forth herein, was recorded as a deed, and from such recording a delivery will be presumed, in the absence of testimony to the contrary, and there is no contrary testimony in this record. A delivery of a deed will be presumed by the recording thereof. Sessions v. Sherwood, 78 Mich. 234; Fenton v. Miller, 94 Mich. 204; Holmes v. McDonald, 119 Mich. 563; 18 C. J. pp. 207, 208, §§ 110-113.

The learned circuit judge who heard the testimony in this case filed his decision in writing, and after a careful review of the evidence, we find ourselves so much in accord with his views and conclusion that we insert and adopt his opinion as a proper disposal of the case. That decision is as follows:

“The issue here concerns, as I see it, the northeast Quarter of the northeast quarter of section 12, town 11 north, range 11 west, Ensley township, of this county. The testimony in this, case shows a patent was issued by the United States Government to Benjamin Ensley on the 10th day of March, 1857, and recorded in the office of the register of deeds of Newaygo county on the 7th day of April, 1860, liber 4, page 544. By this instrument the title passed from the Government to the deceased, Benjamin Ensley, and remained in him without question, so far as the evidence is concerned, until 1874, at which time he executed an instrument, claimed by one side in this controversy to be at least in part a devise; claimed by the defendants herein to have been a deed. It is not necessary for me in the determination of this case, I do not think, to find specifically whether or not it should be designated and determined by this court to be either a deed or a devise. It would be my duty, however, to bear in the mind the evidence as to the manner in which it was treated by those whom it affected, and whose rights were affected thereby.
“This instrument was recorded in the register of deed’s office of the county of Newaygo. Subsequently, and in 1887, Benjamin Ensley made a will, in which he used language referring to a deed. The testimony in the, case discloses no other deed, and I assume it established by the evidence, where reference was made to a deed, or such instrument, at least which he terms that instrument in his' will to be a deed, that there was no other deed, and therefore it must have been the instrument to which he referred.
“By that deed or instrument, William B. Ensley, now deceased, became the owner of the life estate, no more, no less, of the Ñ. E. quarter of the N, E. quarter of section 12. Subsequently, and in 1888, Benjamin Ensley filed a bill to have set aside and held for naught the instrument which has been referred to here as a deed and will. Subsequently, by stipulation, and after testimony had been taken pro and con, the bill was dismissed, a contract entered into whereby the direct heirs at law, all being enumerated and designated as the heirs of the body of Benjamin Ensley, engaged to carry out as they said by the language of the contract the provisions of that instrument which they termed and designated and treated in that contract as a deed, which language I find in the contract, as follows:
“ ‘Whereas,, on the 13th day of March, 1874, Benjamin Ensley, now deceased, executed and acknowledged a deed to his six children, therein named, of certain lands in Newaygo and Montcalm counties, in the State of Michigan, to become operative on his decease, upon the erection by them of a monument as therein specified,’—
“which deed was recorded in the office of the register of deeds of Newaygo county, May 5, 1874, and referring to the liber and page; referring also to the date of record in Montcalm county and the liber and page thereof. The same was made a part of this agreement so far as may be necessary for its proper construction and execution. It was apparent that the heirs of Benjamin Ensley recognized that instrument as a deed; they relied upon it in what they did subsequently, and, perforce, must abide by the law and be bound by its provisions. Now its provisions created a life estate in William B. Ensley, no more, no less, and the fee in the heirs of his body at his decease. Before his decease, he had four heirs in being, the defendants in this case. No act of William B. Ensley or of the other heirs of Benjamin Ensley could change that fact.
“The evidence here shows that subsequently the executor of William B. Ensley’s estate inventoried the N. E. quarter of the N. E. quarter of section 12 as the property of William B. Ensley in fee; it was treated as his estate by the executor; that a deed was made by the executor conveying to certain of these plaintiffs the title, which, as I see it, is void, and could not bind these defendants.
“There was listed certain personal property and a sale made of it; distribution was made; an order of distribution was made and distribution had thereunder to the heirs of William B. Ensley.
“There was offered in evidence in this case an abstract of title to this land. This, as I see it,' is notice to all who are interested in the title, and relying thereon, of the fee being in these defendants. It is admitted by one of the plaintiffs in this case while on the stand that these abstracts were furnished, and that he took them to his counsel, I think he said in the city of Grand Rapids, to have them examined; they were examined, and he, relying upon the report made, made the purchase. That Mr. Gillig, one of the plaintiffs in this case, was furnished these same abstracts. Ignoring their condition and paying no attention whatsoever to what was contained in the abstracts, he bought .the property, but admitted that these abstracts were furnished him.
“It is the contention of plaintiffs in this case that by reason of the defendants having received their portion of their father’s estate through the administration of the probate court, they are equitably estopped. ‡ H*
“These defendants are not estopped; and they have maintained at all time, in good faith, as admitted by the plaintiff on the stand, Mr. Sprunger, that he received notice from the elder of these defendants of their claim, and that he ignored it and said it was of no account; did not even preserve the letter, and hasn’t it here today. These plaintiffs have been guilty of gross neglect in the examination and ascertainment of what wás brought to their notice, and they are bound thereby, and it is not an equitable estoppel in this case as I see it, and therefore I conclude that plaintiffs herein have not established an equitable right, have not sustained their bill of complaint, and therefore there will be a decree dismissing it.”

It was the view of the circuit judge that whether said instrument was a deed or a will was unimpbrtant, from the fact that in any view of the case the title to the property in fee passed to the defendants herein. If this instrument were to be termed a devise, it may be said that the disposition of the property involved was reaffirmed in the subsequent will of Benjamin Ensley, to which we have referred; and it might be further claimed that all of the parties interested in the estate of Benjamin Ensley reaffirmed the terms of said instrument by the contract of June 30, 1890.

In determining whether the instrument is a deed or a will, the manifest intention of the parties making it, as gathered from'all the language used in the writing, is controlling. It may be well urged here that, upon this record, and the fact that this instrument was recorded as a deed, thereby implying delivery, the same operated as a deed.

The supreme court of Arkansas, in Sutton v. Sutton (Ark.), 216 S. W. 1052, as recently as December, 1919, held that an instrument in the form of a warranty deed, headed “warranty deed” and referred to in the body of the instrument and in acknowledgment as a “deed” conveying land to grantee, “and unto his heirs and assigns forever,” was a deed and not a will, notwithstanding the habendum clause making the deed inoperative prior to the grantor’s death. It was held that such clause did not defeat the passing of title, but merely reserved possession to the grantors during their lifetime.

That a conveyance of land to take effect at a future time is valid when delivered, see the following cases: Jones v. Caird, 153 Wis. 384 (141 N. W. 228, Ann. Cas. 1914A, 88); Sharp v. Hall, 86 Ala. 110 (5 South. 497); Phillips v. Lumber Co., 94 Ky. 445 (22 S. W. 652); Wall v. Wall, 30 Miss. 91.

Also to the effect that in construing deeds the intention of the parties is the fundamental inquiry. Bassett v. Budlong, 77 Mich. 338.

It will be noted that at the time of the execution and recording of the deed from Benjamin Ensley to his son, William B. Ensley, the defendants were not in being. It was provided, however, that in case the said William B. Ensley died without heirs or heir, that the fee should go to his brothers and sisters named in the deed as grantees of other descriptions of land.

There being no question that the defendants are the children and heirs of the body of William B. Ensley, Sr., we think the decree of the court below should be affirmed, and the same is affirmed, with costs to the defendants.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    BENO v. KLOKA.
    1. Negligence — Contributory Negligence — Infants—Evidence — Trial — Instructions.
    In an action for personal injuries to a boy 5 years and 11 months of age, where the testimony as to the manner in which he was crossing the street at the time he was struck by defendants’ automobile was in dispute, it was error for the court to instruct the jury that “he suddenly darted across the street.”
    2. Same — Evidence—Instructions.
    Whether the driver was guilty of negligence in not using due caution, and ii not having seen plaintiff before the collision, was a question of fact for the consideration of the jury, under proper instructions as to her duty to exercise reasonable care.
    3. Infants — Contributory Negligence — Capacity—Presumptions.
    An infant of 5 years and 11 months is not chargeable with contributory negligence in being struck by an automobile while crossing a street; the conclusive presumption of incapacity applying, not so much because the child is lacking in knowledge as because it is lacking in judgment and discretion.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted April 15, 1920.
    (Docket No. 82.)
    Decided July 20, 1920.
    Case by William Beno, an infant,' by his next friend, against Anthony J. Kloka and another for personal injuries. Judgment for defendants. Plaintiff brings •error.
    Reversed.

      H. G. Lyle and Hugh C. Chedester, for appellant.

      Kerr & Lacey, for appellees.
   Stone, J.

This case has been brought here by the plaintiff on writ of error, to review a verdict and judgment for the defendants rendered in the Wayne circuit court. The action was for damages for personal injuries sustained by the infant plaintiff when hit by an automobile owned by defendant Kloka, and, with his knowledge and permission, being then driven by the defendant Olscewski, on St. Aubin avenue, Detroit, at about 10 o’clock in the forenoon of April 15, 1916. The plaintiff was at the. time 5 years and 11 months of age. St. Aubin avenue runs north and south. In the block where plaintiff was injured, St. Aubin was crossed at the north side of the block by Maple street, and by Sherman street on the south side thereof. The plaintiff lived at the corner of St. Aubin and Sherman streets and upon the west side ■of St. Aubin avenue. He had been sent by his mother to a meat market on the opposite side of the avenue near Maple street to make a purchase, and at the time of the injury complained of, was returning home.

There was upon the trial no dispute as to the ownership of the automobile that hit the plaintiff, that it was being driven with the owner’s consent, and that the driver failed to blow the horn or give other warning of her approach. The negligence complained of' was failure to give warning, and a rate of speed exceeding 10 miles an hour. There was no evidence on the part of the plaintiff that the rate of speed exceeded 10 miles an hour. The defendant Olscewski (having married before the trial and then bearing’ the name of Cosgrove) testified that she “was not going very much more than 10 miles an hour, because I had thrown out my clutch and had my brake half down.”

Both of the other witnesses for defendants testified that the rate of speed did not exceed 10 miles an hour. The plaintiff and the defendants presented different claims as to the manner of the injury; that of the plaintiff was that the boy, at the time the automobile approached, was standing in the middle of St. Aubin avenue, watching a truck go by, northwardly, and thus had his back to the automobile coming southerly ; that he was then in a place of danger, and that it was the duty of the driver of the automobile to keep such lookout as to see him in such place of danger, and to warn him of her approach, by horn or otherwise, and that her failure to do so constituted negligence, and was the proximate cause of the injury.

Mrs. Viola Long, the only eyewitness sworn on behalf of the plaintiff, testified as follows:

“I went into the meat shop as he came out. He had meat in his arms. When I went in the door, why, I seen William stop about the middle of the street, and there was a truck coming, and he had to hurry pretty fast to get to the middle of the street before the truck came. He stood there with his face to the truck, until the truck had passed him, and when the truck passed I stood on the steps and watched the child until he started to go home, after the truck had passed him. Then he turned his back to the machine that was coming around the corner; it came from the west and came east on Maple, and then he turned right around on St. Aubin to go south, so when he started to. go home, he, instead - of turning his face towards the machine as. he came around, he turned his back, and he went kitty-corner across the street.
“Q. What happened then?
“A. Well, she came around the corner, and she didn’t blow any horn; she didn’t give no sign of any kind for the child to hear her; the. car didn’t make any noise because I didn’t hear it myself. And then the boy didn’t look back to see anything; when he didn’t hear anything, and she struck him right across the hip. * * * When he came out of the store and started home, he went right straight into the street, from the store door. Then this truck was coming, and he walked out in the middle of the street. He was going directly towards home, in an angling direction. The truck was going north. He stepped out and the truck passed him. Then he turned around to go across, turned his face towards home, and away from the automobile.”

The mother of the plaintiff testified that he was a bright, intelligent boy, — “a good smart little fellow”; that he had been instructed by her to “be careful when he saw an automobile,” and that he was acquainted with the neighborhood.

The claim of the defendants was that the plaintiff ran suddenly across the street, in front of the automobile, and that the accident was unavoidable. On behalf of the defendants the. two men in charge of the truck and the'defendant driver of the automobile testified. The substance of the testimony of the two men was that just as they crossed Sherman street they saw the plaintiff standing on the east curb, about 60 feet ahead; that the -truck was going about five miles an hour; that plaintiff “ran across, ran right on the bias, and ran right in front of the lady’s automobile.” The said defendant driver of the automobile testified as follows:

' “First saw the truck just anead of me, on the opposite side; first saw the boy when he struck my car; he came from across the street; ran directly from the street across into my car; bumper on the left side struck him; he fell under the car; wheels did not touch him; I stopped, was then almost at a standstill; didn’t go over a car length.”

The case was submitted to the jury in a lengthy charge, and they returned a verdict for the defendants, and a judgment was entered accordingly. A motion for a new trial was denied. No exceptions were filed to the denial, and hence the only assignments of error that can be considered are those relating to the charge of the court. The first two assignments of error are too general to merit attention. There were no requests to charge.

The third assignment of error complains of the following portion of the charge:

“There is no question but that this child stood at or near the curb on St. Aubin avenue, and that he suddenly darted across the street. * * * Should the driver of the machine have anticipated, that is, using that degree of care and caution that an ordinarily prudent person would have exercised under the circumstances, would she have anticipated that this child would run across the street in front of her vehicle.”

The first part of the charge here complained of was reiterated in the following language:

“Now there can be no doubt that in this case that this child did rush across that street without judging of the circumstances.”

We are of the opinion that under the evidence it became a question of fact as to the manner in which the plaintiff crossed the street, and that the court should not have charged that “he suddenly darted across the street.” Whether the driver was guilty of negligence in not using due caution, and in not having seen the plaintiff before the collision, was a question of fact for the consideration of the jury, under proper instructions as to her duty to exercise reasonable care.' What we have here said is applicable to the fourth assignment of error. The remaining assignments of error relate to that part of the charge dealing with the subject of contributory negligence. We quote that part of the charge, and the parts objected to are contained in parentheses:

“I now come to a question that is one of more or less delicacy, and that is the question of contributory negligence. If a man is going to cross a place of danger, and all our streets today by reason of the peculiar traffic thereon are places of danger, that man is expected to behave and conduct himself as an ordinarily prudent person would under the circumstances. Now, the rule is different when we come to children. Children of this age, or the age that this child is shown to have been at the time of the injury, are not expected in law or in common sense — the law and common sense are exactly the same in most instances— to have prudence, to have appreciation of dangers, and therefore, the rule is very different. Now, our higher court has determined in certain cases where children "of tender years have been injured that they are not chargeable with any prudence whatsoever, that they are expected, because of their very tender years, to act from impulse rather than act always in the exercise of common sense and thought, or as the result of prudent and careful thought. So very delicate children are excused in all cases from the exercise of prudence and care. Now, other cases that we have determined that in any case children are expected to exercise that degree of care and prudence and thoughtfulness that children of that particular age would be expected to have and to exercise. Now, this case that is before us is a case that is just about halfway between. (I cannot charge you, I believe, in this case, that this child was not chargeable with the duty of exercising prudence and diligence), nor can I charge you that it was expected to exercise prudence and care. (Now, there can be no doubt that in this case this child did rush across that street without judging of the circumstances;) if it had, it would have looked both ways; it would have seen the danger and perhaps have prevented it, but if the child was of such tender years that it would not be expected to exercise judgment and care, then it is not chargeable with the duty of exercising care in what it did. I charge and instruct you as a matter of law that you should consider all the testimony concerning this child, the question of whether it had intelligence, the question of how much intelligence the proofs here show that- it had, and then charge that child with the duty of exercising the amount of care and diligence and prudence that a child of its years and its understanding would be expected under the circumstances to exercise. And if you find that it was not expected to exercise any, then you cannot charge it with contributory negligence, but you can charge it merely with the duty of exercising the amount of care that a child of such tender years would under the circumstances be expected to exercise. Now, that is a broad subject, therefore, that I am leaving as a disputed matter of fact to you. (You will have to determine in the case, not as a matter of law, but as a matter of fact, whether this child was chargeable with any act of contributory negligence.)”

We are of the opinion that it was reversible error for the trial court to submit to the jury in any way the question of contributory negligence of the plaintiff. He was 5 years and 11 months of age. We think the instant case is governed by the rule stated by this court in Johnson v. City of Bay City, 164 Mich. 251 (Ann. Cas. 1912B, 866), and in Love v. Railroad Co., 170 Mich. 1.

In the Johnson Case, Justice Brooke; speaking for. the court, said:

“At the time of the injury plaintiff was five years and four months old. We are of opinion that an infant of this extremely tender age cannot be charged with contributory negligence. There comes a time in the life of every child, when the doing of an act which results in injury to itself may be said to be negligence, as a matter of law, and there is a period between that time and extreme youth when the question of whether or not the child had sufficient intelligence to appreciate the dangerous consequences liable to flow from its act, becomes one for the jury. We believe, however, that all reasonable minds would agree that an infant, but little more than five years of age, could not have sufficient intelligence to be charged with negligence, either as a' matter of law or as a matter of fact. It may be difficult, perhaps impossible, to point out the exact age at which the question becomes one for the jury, but it is, we think, clear that it has not arrived at five years and four months.” See cases cited.

In the Love Case, deceased, at the time of the injury, was five years and five months of age, and we held that a child of such tender years, could not be charged with contributory negligence.

In an exhaustive annotation on the subject of contributory negligence of children in L. R. A. 1917F, at p. 57, it is said:

“In cases of injury to children between five and six years of age, the correct rule would seem to be that the doctrine of conclusive presumption of inca-' pacity should apply. This is true, not so much because the child is lacking in knowledge as because it is lacking in judgment and discretion.” .

For these errors in the charge, the judgment of the ■circuit court is reversed and a new trial granted, with costs to the appellant.

Moore, C. J., and Steere, Brooke, Fellows, and Bird, JJ., concurred. Clark and Sharpe, JJ., did not sit.


author: Sharpe, J.

text:
      In re BUHL’S ESTATE. WALKER v. BUHL.
    1. Trusts — Duty op Trustee.
    When, a trust fund passes into the hands of a trustee it comes impressed with the double duty, to so invest it that it can be turned over at the expiration of the trust period without loss, and to secure an income therefrom.
    2. Same — Good Faith.
    A trustee must act honestly and faithfully in what he believes to be the best interest of the cestui que trust.

    3. Same — Authority op Trustee as to Investments.
    A trustee has not unlimited authority to invest as an ordinarily prudent man would invest his own, but he must take such risks only as an ordinarily prudent man would take who is trustee of the money of others; the entire-element of speculation must be removed.
    4. Same — Investment in Private Corporation — Liability op-Trustee por Loss.
    A reasonable investment by a trustee in dividend-paying-stocks and interest-bearing bonds of a private business. corporation may be permitted when the corporation has. acquired, by reason of the amount of its property and. the prudent management of its affairs for a considerable period of time, such a reputation for permanence and stability as to command universal confidence, and so that careful and intelligent persons, familiar with such corporations and the manner in which their business should be conducted, commonly invest their own money in them as a permanent investment, and not for the primary purpose of securing a, considerable income therefrom.
    5. Same.

      Held, under the circumstances of this case, that the trustee was relieved from liability for loss occasioned by the investment of trust funds in the preferred stock of a private corporation.
    Error to Wayne; Codd (George P.), J.
    Submitted April 28, 1920.

      For authorities dealing with the question of personal liability of a trustee for losses to trust estate for investments, see comprehensive notes in 44 L. R. A. (N. S.) 873.

      (Docket No. 10.)
    Decided July 20, 1920.
    Bryant Walker presented Ms final account as surviving trustee under the will of Frederick Buhl, deceased. The account was disallowed in part, and he appealed to the circuit court. Judgment, on a directed verdict, allowing the account in full. Hazel Buhl and Harry C. Buhl, beneficiaries, bring error.
    Affirmed.

      Stevenson, Carpenter, Butzel & Backus, for appellants.

      Walker & Spalding, for appellee.
   Sharpe, J.

Frederick Buhl, of Detroit, by his last will and testament appointed Charles A. Kent and Robert Hosie executors and trustees. Bryant Walker was therein named tq fill any vacancy, and acted after the death of Mr. Hosie. Mr. Kent is now also deceased, and Mr. Walker is acting as surviving trustee. The will contained the following provision:

“The remaining property given to said trustees they shall hold in trust for said three children, Frederica, Grace and Harry, giving to each an equal share in the net income during their respective lives. The trustees shall also give to each child the net income of the property specifically set apart to Mm or her. They shall have power to sell and convey-said last named property only to re-invest the proceeds and then only with the consent in writing of the child for whose benefit such property is appropriated. The other property they may sell and convey in their discretion, for the purpose of paying debts of my estate, or for the purpose of re-investment.
“They shall have full charge of all the real estate hereby conveyed with all powers necessary to protect it and make it as productive as possible. They shall pay all taxes and assessments. They shall keep the buildings, insured; they may repair and rebuild when necessary; they may lease at their discretion and collect all rents or other income; they shall have like control over the personal property conveyed.
“Said net income shall be paid to each child in monthly or quarterly payments.”

Mr. Walker’s account, filed March 5, 1918, showed that investments theretofore made in the preferred stock of the Farrand Organ Company, a Michigan corporation, had resulted in a loss, owing to the failure of that company. Such investments had been made by Mr. Kent,, $5,000 in 1903, and $1,120 in 1910. The probate court charged the trustee with these sums and interest thereon after the date to which dividends had been paid. On appeal to the circuit court, the trial judge directed a verdict in favor of the trustee, holding as a matter of law that he was not chargeable therewith. The beneficiaries under the trust fund appeal.

In the brief for appellants it is said:

“The only question involved is whether trustees holding a fund to invest for the benefit of a cestui que trust have a right to invest the trust fund in stock of a private corporation.”

Counsel agree that this precise question has never been determined by this court, though both claim that expressions in some of our decisions are at least suggestive of the opinion of the court on the question presented. In Re Grammel's Estate, 120 Mich. 487, in considering the duty of a guardian in handling the funds of his ward, Mr. Justice Hooker said:

“A guardian is required to use care and diligence in handling the property of his ward. * * * Ordinarily it is the duty of guardians to invest funds with a view to their safety and increase. In so doing they are bound to the observance of fidelity, and such diligence as men of ordinary intelligence observe in managing affairs of their own.”

In Michigan Home Missionary Society v. Corning, 164 Mich. 395, Chief Justice Ostrander said:

“It is general doctrine, accepted everywhere, that a trustee must show the utmost good faith. He must exercise in the execution of the trust the degree of care and diligence which a man of ordinary prudence would exercise in the management of his own affairs. In respect to the investment of trust funds, in the absence of express, directions from the settlor and of statute directions, courts have not infrequently been called upon to determine whether particular investments evidenced the exercise by the trustee of ordinary prudence. However conflicting in some respects the decisions may appear to be, in one respect they are reasonably uniform. It is a generally accepted rule that it is not prudent to invest trust funds in unsecured notes of an individual or of a partnership. We have found no decision which announces a contrary rule where the trust contemplated an investment of a permanent nature. This rule condemns the defendant trustees, and, if applied, obliges them to account to the cestui que trust for the fund. * * *
“It may be added, in conclusion, that we are not prepared to hold that there is authority, statute or other, for substituting, in the first instance, the discretion and prudence of a court for that of a trustee ¿harged by the terms of a will with a proper investment of funds.”

Mr. Justice Bird, in a concurring opinion holding the trustee liable, said:

“I concur in the conclusion reached in this case by Mr. Justice Ostrander, but I am of the opinion that the delinquency which should charge the trustees personally with the payment of the trust fund is their undue renewals and extension of the note, and their failure to collect it at the proper time.”

In Houghteling v. Stockbridge, 136 Mich. 544, 554, when referring to investments made by an executor, it is said:

“It will scarcely be claimed that he should have invested the trust funds of the estate in his hands in a purchase of this stock.” (That of a private corporation.)

In some jurisdictions, the discretion to be exercised by a trustee is regulated by statute or by decisions of the court and confined within strict limits. The early English cases seem to have been decided on the. test of the good faith of the trustee, it being said by Lord Hardwicke, in Knight v. Earl of Plymouth, 1 Dick. 120: s. c. 3 Atk. 480, “if there is no mala fides, nothing wilful in the conduct of the trustee, the court will always favor him.”

In later years, due, as some of the text-book writers suggest, to the increase of government securities, these courts disapproved of investments in other than such securities or mortgages on real estate. By act of parliament (22 and 23 Viet. chap. 35, and 24 Viet, chap. 38), trustees were authorized to invest in stock in the bank of England or of Ireland, or upon mortgage on freehold or copyhold estates, as well as in the public funds. Lewin on Trusts (7th Ed.), pp. 282, 283, 287.

The exercise of good faith and sound, judgment seems to have been the test in New York in the early days, but that court, in King v. Talbot, 40 N. Y. 76, in an exhaustive opinion written by Judge Woodruff, while asserting that the “inquiry, therefore, is * * * Has the administration of the trust created * * * been governed by fidelity, diligence and prudence?” and adding that “the just and true rule is, that the trustee is bound to employ such diligence and such prudence in the care and management as, in general, prudent men of discretion and intelligence in such matters employ in their own like affairs,” holds that:

“'This necessarily excludes all speculation, all investments for an uncertain and doubtful rise in the market, and, of course, everything that does not take into view the nature and object of the trust, and the consequences of a mistake in the selection of the investment to be made.”

He further says it is not “within any just idea of prudence to place the principal of the fund in a condition in which it is necessarily exposed to the hazard of loss or gain, according to the success or failure of the enterprise in which it is embarked.” While conceding that men of the highest prudence do invest their personal funds in the stocks of private corporations, he suggests that this is done in the hope of profitable returns and, while they may lawfully so invest their private funds “at hazard; in the affairs of a trust they may not.” He concludes that an investment in the stock of certain railroads and a canal company was not permitted by the terms of the trust.

We have referred to and quoted from this case at length because it may well be said to have established what is known as the New York rule, which has been substantially followed by courts of last resort in several States. Hemphill’s Appeal, 18 Pa. St. 308: Pray’s Appeal, 34 Pa. St. 100; Robertson v. Robertson, 130 Ky. 293 (113 S. W. 138); White v. Sherman, 168 Ill. 589 (48 N. E. 128); In re Allis’ Estate, 123 Wis. 223 (101 N. W. 365); Simmons v. Oliver, 74 Wis. 633 (43 N. W. 561); Tucker v. Tucker, 33 N. J. Eq. 235.

The supreme court of Massachusetts had occasion to pass on the question at an early day in the case of Harvard College v. Amory, 9 Pick. 446, and therein stated what is spoken of as the Massachusetts rule. In that case, an investment of a trust fund in stock of an insurance company was held to be a proper exercise of discretion by a trustee. At pages 460, 461, the court said:

“If the public funds are resorted to, what becomes of the capital when the credit of the government shall be so much impaired as it was at the close of the last war?
“Investments on mortgage of real estate are not always safe. Its value fluctuates more, perhaps, than the capital of insurance stock.
“Again, the title to real estate, after the most careful investigation, may be involved, and ultimately fail, and so the capital which was originally supposed to be as firm as the earth itself, will be dissolved.
“All that can be required of a trustee to invest, is, that he shall conduct himself faithfully and exercise a sound discretion. He is to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested.”

Since that decision, investments of trust funds in dividend-paying stocks and interest-bearing bonds of corporations other than municipal have been approved in the following cases: Lovell v. Minot, 20 Pick. 116; Brown v. French, 125 Mass. 410; Dickinson’s Case, 152 Mass. 184 (25 N. E. 99, 9 L. R. A. 279); Kimball v. Whitney, 233 Mass. 321 (123 N. E. 665).

In commenting on the rule laid down in Harvard College v. Amory, the court in the last named case said:

“Good faith and. sound discretion, as these terms ought to be understood by reasonable men of good judgment, were thus made the standard by which the conduct of trustees is to be measured. That is a comprehensive principle. It is wide in its scope. It is not limited to a particular time or a special neighborhood. It is general and inclusive, so that while remaining itself fixed, it may continue to be a safe guide under new financial institutions and business customs, changed commercial methods and practices, altered monetary usages and investment combinations. It avoids, the inflexibility of definite classifications of securities, it disregards the optimism of the promoter, and eschews the exuberance of the speculator. It holds fast to common sense and depends on practical experience. It is susceptible of being adapted to whatever conditions may arise in the evolution of society and the progress of civilization.”

The Massachusetts rule has been followed in Scoville v. Brock, 81 Vt. 405 (70 Atl. 1014); Gilbert v. Kolb, 85 Md. 627 (37 Atl. 423); Kimball v. Reding, 31 N. H. 352 (64 Am. Dec. 333); French v. Currier, 47 N. H. 88; Smyth v. Burns, 25 Miss. 422.

A consideration of these decisions, arid the reasoning of the judges on which they are based, leads us to hesitate about laying down any definite rule as to the class of securities in which trustees may legally invest. We are unwilling to say that such investments can only be made in Government, State, or municipal bonds or loans on real estate mortgages, nor do we hold that an investment in these under all circumstances would relieve the trustee from liability in the event of loss. Neither do we say as a matter of law that investment in stocks and bonds of other corporations is always to be permitted. The variety of investments now open to the public, many of them seemingly permanent and safe, and in which so many careful and prudent men invest their own money, renders it unwise to attempt to define the securities in which such investments can be made.

When such a fund passes into thé hands of a trustee, it comes impressed with a double duty, first, to so invest it that it can be turned over at the expiration of the'trust period without loss, and, second, to secure an income therefrom. He must act honestly and faithfully and in what he believes to be the best interest of the cestui que trust. He must exercise a sound discretion. He is bound to proceed with diligence in investigating the nature of the proposed investment and to use such care in deciding as, in general, prudent men of intelligence and integrity in such matters employ in their own affairs when making a permanent investment in which the primary object is the preservation of the fund and the secondary one that of obtaining an income therefrom. He must not permit himself to take the hazard of an investment with the hope, of largely increasing the fund as he might, perhaps, do in the prudent management of his own estate. The entire element of speculation must be removed. He must at all times remember that he is handling a trust fund, the care of which has been entrusted to him in reliance on his integrity, fidelity and sound business judgment.

A reasonable investment in dividend-paying stocks ■and interest-bearing bonds of a private business cor- j ■'poration may be permitted when the corporation has I acquired, by reason of the amount of its property and/ the prudent management of its affairs for a consider-/ able period of time, such a reputation for permanence and stability as to command universal confidence, and so that careful and intelligent persons, familiar with such corporations and-the manner in which their business should be conducted, commonly invest their own money in them as a permanent investment, and not for the primary purpose of securing a considerable income therefrom. A trustee has not unlimited authority to invest as an ordinarily prudent man would invest his own; he must take such risks only as an ordinarily prudent man would take who is a trustee of the money of others. In making such an invest- t ment, he always assumes the risk of a searching scru- ! tiny in a court of equity as to the diligence employed and sound judgment exercised by him in the transaction. He must always bear in mind that the primary I object of the creation of the trust is not, ordinarily, accumulation but the preservation and perpetuity of ] the fund until the time for its distribution arrives, I and he must make no investment by which this object may be at all likely to be defeated.

We therefore hold that an investment by a trustee in the preferred stock of a private corporation may be made under such circumstances as will relieve him from liability in case of loss.

The judgment appealed from is affirmed, with costs to the trustee payable out of the trust estate.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


author: Brooke, J.

text:
    L. A. THOMPSON SCENIC RAILWAY CO. v. McCABE.
    1. Public Records — Filing Paper With City Clerk — Municipal Corporations.
    The mere filing of a hook entitled “Building Code” with the city clerk hy the common council of the city of Detroit would not give it the character of a “public record.”
    2. Municipal Corporations — Ordinance—Re-enactment — Validity — Detroit Charter — Building Code.
    In the passage of an ordinance by the common council of the city of Detroit, mere reference .therein to the articles contained in a book entitled “Building Code,” and filed with the city clerk, thereby adopting same as part of the ordinance, was not a compliance with the provisions of sections 17 and 20, chap. 1, tit. 3, of its charter, and section 3003, 1 Comp. Laws 1915, requiring re-enactment and publication in full of all ordinances adopted, amended, or re-enacted.
    3. Same — City Charter — Limitations.
    While the legislature of the State functions under broad constitutional limitations, the common council of a city must act strictly within the powers granted to it in its charter.

      4. Same — Ordinances—Penal—Publication—Validity.
    Ail ordinance having the effect of a penal statute must be published according to law, and the question of expense in connection therewith may not be considered.
    5. Same — Compliance With Charter Provisions.
    The attempt of the common council of the city of Detroit to re-enact a building code ordinance within five months of the taking effect of a previous one was in violation of section 10, chap. 16, tit. 4, of the city charter, prohibiting the altering, amending or repealing of such ordinance within the period of one year after the date of its enactment, and thereafter within periods of two years each, unless upon recommendation or requirement of national or State authority, or upon initiatory or referendum provisions of the charter.
    Certiorari to Wayne; Hunt (Ormond F.), J.
    Submitted April 6, 1920.
    (Calendar No. 29,071.)
    Decided July 20, 1920.
    Mandamus by L. A. Thompson Scenic Railway Company to compel John C. McCabe, commissioner of buildings and safety engineering of the city of Detroit, to issue a building permit. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Walter Barlow (Clarence E. Wilcox and Paul T. Dwyer, of counsel), for appellant.

      Crandell & Tinkham, for appellee.
   Brooke, J.

Certiorari to mandamus. The facts and legal conclusions based thereon are clearly stated by the learned circuit judge who heard the case, in an opinion which follows:

“Plaintiff has filed in this court petition for a peremptory writ of mandamus to compel the defendant, who is the commissioner of buildings and safety engineering of the city of Detroit, to issue a permit to plaintiff to build a ‘roller coaster or gravity ride/ of wooden construction, sixty-five feet high, on certain lands of plaintiff within the fire limits in the city of Detroit.
“The defendant has declined to issue such permit, basing his reasons for refusal in that the specifications of the proposed structure are in violation of the building code of the city of Detroit claimed to have been adopted by the common council on July 22, 1919, section 350 of which, among other things, provides:
“ ‘No roller coaster, scenic railway, or other riding, sliding or rolling device, shall be hereafter erected of a greater height from the ground than fifty-five (55) feet, to the highest point, nor shall any such device be built, rebuilt or enlarged within districts No. 1 and 2 unless constructed of fireproof material.’
“It is conceded that plaintiff’s lands, on which it desires to build, are located in district No. 2. Counsel for plaintiff and defendant have respectively filed extensive, printed briefs and made oral arguments in support thereof.
“Plaintiff claims right to relief upon two general grounds:
“1. That the new building code, so-called, was never legally adopted;
“2. That the new building code, so-called, referred to in the petition, even though legally adopted, does not prevent plaintiff from procuring a building permit and erecting its roller coaster as stated in its application.
“If the new building code was not legally adopted, it will.be unnecessary to co.nsider the second ground; and to this our attention will first be given. It is claimed by plaintiff that the new code was not enacted and published according to the provisions of the charter.
“Section 17, chapter 1, title 3, among other things, provides:
“ ‘No ordinance shall be revised, altered or amended by reference to its title only, but the section or sections of the ordinance altered or amended shall be re-enacted and published at length.’
“Section 20 of said chapter, among other things, provides :
‘“All ordinances shall- he published immediately after their approval for three successive days in a daily newspaper printed in the English language in the city.’

“Section 3003, 1 Comp. Laws 1915, provides:

“ ‘Within one week after the passage of any ordinance the same shall be published in some newspaper printed and circulated within the city, and the clerk shall immediately after such publication enter upon the record of ordinances, in a blank space to he left for such purpose under the recorded ordinance, a certificate stating in what newspaper and of what date such publication was made, and sign the same officially, and such certificate shall be prima) faicie evidence that legal publication of such ordinance has been made.’
“Paragraphs 7 and 8 of defendant’s amended answer sets forth at length the proceeding had relative to the adoption and publication of the new building code, and the closing sentence of paragraph 8 is as follows:
“ ‘And to have published said building code (Exhibit A) in connection with said ordinance 660-A would have cost said city in excess of §8,000 printers’ fees and would have served no useful or necessary purpose whatsoever.’
“It is- claimed by defendant that the new building code was printed in the form of a book and filed with the city clerk, and that the ordinance, by its provisions, might make reference thereto and save the cost of publication.
“Section 1 of the ordinance, among other things, provides:
“ ‘That the building code of the city of Detroit, including the State housing code, approved by the commissioner of buildings and safety engineering on July 1, 1919, and in the custody of the city clerk, he adopted and approved to regulate the construction of buildings; to define the character of materials to be used therein; to regulate the use and occupancy of buildings and signs within the city of Detroit, and incorporate the housing code of the State of Michigan under the following articles:
“ ‘Article I — Administration.
“'Article II — Bureau of Buildings.
“‘Article III — Bureau of Safety Engineering,’ etc., etc., down to aüd including Article XXXVII — Garages.
“An inspection of the ordinance as passed, appearing in paragraph 7 of the amended answer, discloses that each and all of Articles I to XXXVII inclusive are barren of all provisions whatsoever.
“In the case of Power’s Appeal, 29 Mich. 504, at 509, Mr. Justice Campbell uses the following language:
“ ‘There is only one. way in which a common council can act, and that is by written resolution.'
“In behalf of the defense they have cited cases tending to show that an ordinance may be passed referring to existing laws, ordinances and public records, and_ some cases hold that reference can be made in addition to maps and books which are a part of the public records.
_ “Giving full probative force to the various cases cited by defendant, we are constrained to hold, and do hereby find and determine that the new building code, so-called, was not enacted and published as required by law, and this being so the other contentions made upon the argument are immaterial to the determination of. the matter before the court. As the court understands it, this leaves the old building code in force, and it was conceded upon the argument that the specifications of the proposed structure violated none of those provisions. Accordingly plaintiff is entitled to the writ of mandamus as prayed.
“The effect of this, decision being of great public interest, the formal issuance of the writ will be withheld. for a reasonable time to permit the corporation counsel to present an application to the Supreme Court for a stay until the matter herein can be reviewed by the Supreme Court.”

The so-called “building code” is a book, consisting of 504 sections covering 156 pages. It provides in Its last section a penalty in the sum of $25 for a violation of any of its provisions, “each day constituting a separate offense.”

It is the contention of the appellant that the book entitled “building code” became a public record when it was filed with the city clerk and therefore that it was competent for the common council, by means of ordinance No. 660-A, to “adopt and approve” thereof by reference simply to its several articles. We are of the opinion that the mere filing of the book with the city clerk cannot give it the character of a “public record” within the meaning of the cases cited and relied upon by the defendant.

Section 17, chapter 1, title 3, of the city charter, provides:

“All matters of legislation shall be presented,- considered, and enacted by the council in the form of ordinances. The style of all ordinances shall be Tt is hereby ordained by the people of the city of Detroit.’ ”

The charter itself (chapter 1, section 19) provides:

“All ordinances, resolutions, or proceedings receiving the approval of the mayor or having become operative without such approval as herein provided, shall be deposited in the office of the clerk of the city, and he shall safely keep the same.”

It is not contended that when the book in question was filed with the city clerk it had been enacted into legislation or ordained by the common council, nor had it received the approval of the maydr or become operative without such approval. It, therefore, was entirely lacking in those characteristics necessary to entitle it to be filed as a “public record.” Section 17 of chapter 1, title 3, is a clear limitation upon the powers of the common council and was enacted for the protection of the people who are charged with knowledge of the local laws.

We have examined the cases of City of Napa v. Easterly, 76 Cal. 222 (18 Pac. 253); Croker v. Camden Board of Excise Com’rs, 73 N. J. Law, 461 (63 Atl. 901); Southern Operating Co. v. City of Chattanooga, 128 Tenn. 196 (159 S. W. 1091, Ann. Cas. 1914D, 720); and Baumgartner v. Hasty, 100 Ind. 575, cited and relied upon by the defendant. The distinction between the eases, cited and the one under consideration is that the matter incorporated by reference in those cases was either a matter of public record or a statute, while in the case at bar the so-called “building code” was, in a legal sense, a fugitive paper “in the custody of the city clerk.”

Reliance is placed by the defendant upon Act No. 174 of the Public Acts of 1917, by means of which, it is said, the State legislature adopted the “boiler code of the American Society of Mechanical Engineers” by reference only. The propriety of this method of legislation has never been questioned, so far as we are advised; but, assuming its entire constitutionality, it should be borne in mind that the legislature of the State functions under broad constitutional limitations whereas the common council of the city of Detroit must act strictly within the powers granted to it in the charter. City of Kalamazoo v. Titus, 208 Mich. 252; Cooley’s Constitutional Limitations (7th Ed.), pp. 163 et seq.

The ordinance No. 600-A was published as passed, containing a reference to the so-called “building code” by title. This publication, in our opinion, was not sufficient to comply with the provisions of section 20, chapter 1, title 3. See, also, section 3003, 1 Comp. Laws 1915.

An ordinance having the effect of a penal statute must be published according to law. The citizen who is held accountable for any violation of its provisions is entitled to such notice of its enactment as the law requires and the question of expense in connection with such publication may not be considered.

The foregoing conclusions result in an affirmance of the judgment of the court below.

A further question, however, is discussed in the briefs of counsel. The charter (section 10, chapter 16, title 4) provides:

“No code or ordinance under which the department (of buildings and safety engineering) operates, or any clause thereof, shall be changed, amended, altered or repealed within a period of one year from the date of its enactment, and thereafter within periods of two years each, unless upon the recommendation or requirement of some competent National or State authority, or in accordance with the initiatory or referendary provisions of this charter.”

The so-called “old building code” was created by an ordinance effective on March 1, 1919. The ordinance under discussion (No. 660-A) was passed on July 22, .1919 — about five months later. The provision of the charter here under consideration would seem to have been infringed by the attempted passage of ordinance No. 660-A. The reasons for such limitation upon the power of the council are obvious; it was, doubtless, considered by the. framers that the stability of the rules relative to the character of improvements and the use to which real estate might be put should he maintained for periods of at least two years.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Moore, C. J. Fellows, J.

text:
    BOOMER v. SHEWITZ.
    Mechanics’ Liens — Enforcement of Lien — Statutory Periou.
    Where proceedings for the enforcement of two mechanics! liens on the same building were commenced within a year after the filing of the last lien, and it is conceded that both claims might have been included therein, the action of the court below in overruling a demurrer to such part as referred to the first lien because not begun within a year of the filing thereof, in compliance with 3 Comp. Laws 1915, § 14804, is sustained by a divided court.
    Appeal from Wayne; Mandell (Henry A.), J.
    Submitted April 20, 1920.
    (Docket No. 102.)
    Decided July 20, 1920.
    Bill by Isaac-E. Boomer against Anna Shewitz and. others to enforce a mechanic’s lien. Fred C. Wolf and another were admitted as parties defendant and filed a cross-bill to establish mechanics’ liens against defendant Shewitz. From an order overruling a demurrer to the cross-bill, defendant appeals.
    Affirmed by a divided court.

      L. C. Stanley, for cross-plaintiffs.

      Friedman & Meyers, for defendant Shewitz.
   Moore, C. J.

On May 16, 1911, Isaac E. Boomer instituted this suit in chancery against Anna Shewitz and others as defendants. On March 9, 1912, the cross-plaintiffs, Wolf and Dei, were admitted as party defendants therein. On April 5, 1912, they filed their answer and also a cross-bill of complaint to foreclose two mechanics’ liens which they had filed against property owned by Anna Shewitz. The first lien was for $640.50 and was filed in the office of register of deeds on February 1st. It was for material furnished to William R. Greig, a subcontractor under Earl J. Vickery, who had the principal contract for the erection of a building with the cross-defendant Anna Shewitz. The last material furnished under it was on December 19, 1910. The second lien was for $268.50, was filed on April 11,. 1911, and was for labor and material furnished to William R. Greig, who it is stated had a contract with the cross-defendant Anna Shewitz. The last of such material and labor was furnished on February 11, 1911. A demurrer was filed by Anna Shewitz, on June 7, 1912, to such parts of the cross-bill as referred to the first lien. After the same was brought on for hearing the cross-plaintiffs made application to file an amended cross-bill which was granted and an amended cross-bill was filed March 7, 1918.' The amendments were as follows :

“Second: That after furnishing .said material, and before the end of the year 1910, these cross-complainants refused to furnish further brick for the completion of said building, for the reason that the said owner did not appear to have money with which to pay for the same to the said Vickery, and the said Vickery had not paid for the same and had made no provisions for securing the payment of the same, and thereupon, and before filing the statement of lien next mentioned, the said owner in the presence of her husband and agent, Jacob Shewitz * * * requested these cross-complainants to proceed and deliver the remainder of the brick necessary for its completion, and assured them that they would have as security a lien, and asked them to put on a lien for the brick already furnished as above stated and for the remainder which they should thereafter furnish. These cross-complainants relied upon such assurance and invitation to file a lien on the premises both in filing the lien for the brick above mentioned, and for that which they afterwards furnished for the building as hereinafter stated. * * *
“Sixth: That on the first day of February, 1911, the said owner, Anna Shewitz, had made a contract with one William R. Greig to furnish certain other brick, the same being necessary to said building, being 37,000 brick at $6.25 per thousand, making $231; and these cross-complainants did furnish the said 37,000 brick. The first of said bricks was furnished on the first day of February, 1911, and the last of same was furnished on the 11th day of February, 1911. * * * That the brick furnished as aforesaid in this paragraph were part of the same building and were necessary to the completion of the same building as that mentioned in paragraph second of this amended cross-bill; * * * that these cross-complainants in both cases had the contract to supply all the brick for the said building, with the knowledge and consent of the owner, and all brick claimed for, and all the brick for which they claim liens were supplied with the intention of building and completing one and the same building, both on the part of the said owner and these cross-complainants.” t
“4th: That the proceedings to enforce the liens of these cross-complainants for the matters above stated be consolidated and treated as one proceeding for the amount of the total of the two claims, and taken within one year before the joinder of these cross-complainants by intervention in this cause.”

The cross-defendant Anna Shewitz demurred to these amendments on the ground principally that the original cross-bill of complaint was filed more than one year after the filing of the lien of February 1, 1911. The hearing on the second demurrer was brought up in November, 1913, but the final determination thereof, for some reason not explained, was not made until February, 1920, when the same was overruled. The cross-defendant Anna Shewitz has appealed the case to this court.

We quote from the brief of appellant’s counsel:

“In the sixth paragraph of their amended cross-bill, cross-plaintiffs make the claim that the two lots of brick, set forth in the two separate liens, were in reality one furnishing of brick and capable of being made the basis of only one notice of lien; that both lots of brick having gone into the same building and cross-plaintiffs, having the contract to supply all the brick for the building, with the knowledge of the owner, should not be prevented from foreclosing their first claim of lien, even though the bill of complaint to foreclose it was not filed until the expiration of one year after the filing of the lien. If cross-plaintiffs’ position in this respect is sound, then every lienor who files a bill to foreclose more than a year after the filing of his lien, could practically nullify the statute by claiming the benefit of other bills of foreclosure filed in time, on the theory that the material for labor which is the basis of his lien went into the same building, as the labor or material of the other lien claimants who had filed their bills seasonably.”

We also quote from the reply brief of counsel:

“If cross-plaintiffs had seen fit to incorporate their two claims into one lien this suit would not be before this court. They asserted that the furnishing of the brick could have been the basis of one lien. Yet they deliberately saw fit to break up their account into two liens. There is no reason why both claims could not have been the subject matter of one lien. Upon the theory set forth in their brief cross-plaintiffs did not have to file the first lien, but having done so, could have filed their second lien for the entire amount and have released the first one at the same time. Having voluntarily chosen the plan of having two liens, it was their duty to comply with the statutes relating to the foreclosure thereof, and for this they had ample time.”

—and say:

“There can be no question from the foregoing that a lien claimant must file an original, intervening or cross-bill within one year after the lien is filed by him in the office of the register of deeds. This clearly was not done by the cross-plaintiffs herein with reference to the lien filed by them on February 1, 1911.”

Counsel quote sections 14804 and 14805, 3 Comp. Laws 1915, citing Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18; Dittmer v. Bath, 117 Mich. 571, and Casserly v. Wayne Circuit Judge, 124 Mich. 157, 161.

Again we quote:

“We think that the foregoing establishes conclusively that the cross-bill of complaint of the cross-plaintiffs filed April 5, 1912, was filed too late to foreclose the mechanics' lien filed February 1, 1911, and that the court erred in overruling the demurrer of the cross-defendant with relation thereto.”

By demurring to the averments contained in the amendments the appellant admits the truth of the averments so far as they are well pleaded. A reference to the cases cited by appellant will show them unlike the case stated in the amended bill of complaint. Here we have a case stated to the effect that the articles furnished were all part of one transaction, all put into a building for the benefit of appellant, that liens were filed within the period fixed by the statute, and the cross-bill was filed within less than a year of the time when the last lien was filed.

In Smalley v. Terra Cotta Co., 113 Mich. 141, it was said:

“It may be difficult to harmonize all of the language in these decisions. It seems to me, however, that the rule is correctly stated in 2 Jones Liens, § 1554, where it is said:
“ ‘The rule of construction applicable to questions arising under these liens may be strict at one stage of the proceedings and liberal at another. Mechanics’ liens are in derogation of the common law, depending for their existence wholly upon statutes, and therefore upon the question whether a lien attaches at all, a strict construction is proper.’
“Section 1556 of the same author reads:
“ ‘But after the lien has once attached, a liberal construction should be put upon the statute, for the purpose of fulfilling its objects. The statute is highly remedial in its nature, and should receive a practical and reasonable construction to effect its objects.’ ”

In that case it was also held that where the original answer was filed in time that an amended answer might be filed after the limitation period where if was done to properly state the cause of action which was not sufficiently stated originally. See, also, Burman v. Ewald, 192 Mich. 293.

In Smalley v. Gearing, 121 Mich. 190, it was held in substance that under the provision requiring a material man to file his statement of lien within 60 days from the date on which the last of the material was furnished, the 60 days begins to run from the date when the material was furnished to the owner, or delivered at the building, and not when it was previously delivered to the contractor at his own place of business.

In Union Trust Co. v. Casserly, 127 Mich. 183, Chief Justice Montgomery, speaking for the court, said:

“It is contended that the testimony shows that the contract was for the delivery of a specific amount of material, and that the delivery of other items was under separate contracts, and that therefore a lien should have been filed within 60 days after the furnishing of each item. 3 Comp. Laws, § 10714. We think this too narrow a construction of the statute. The correct rule is stated in Phil. Mech. Liens, § 229, as follows:
“ ‘Where work or material is done or furnished all going to the same general purpose, as the building of a house or any of its parts, though such work be done or ordered at different times, yet if the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct, matters of settlement, the whole account must be treated as a unit, or as being but a single contract.’

“See, also, Jones v. Swan, 21 Iowa, 181; Hofer’s Appeal, 116 Pa. St. 360 (9 Atl. 441); St. Paul, etc., Brick Co. v. Stout, 45 Minn. 327 (47 N. W. 974); Page v. Bettes, 17 Mo. App. 366.

“It is urged that the statement of the affidavit as to the time when the first item and the last item were furnished is erroneous. It is not claimed that the last item was furnished more than 60 days prior to the filing of notice of lien. The error did not prejudice the defendant in any way. See Phil. Mech. Liens, § 359.”

An instructive case is Miller v. Batchelder, 117 Mass. 179. See Nichols v. Culver, 51 Conn. 177, and Shaw v. Fjellman, 72 Minn. 465 (75 N. W. 705).

Treating the averments of the amended cross-bill as true, as we must under the demurrer, we think the. decree of the lower court must be affirmed, with costs. The appellant is given the usual time in which to answer.

Steere, Brooke, and Bird, JJ., concurred with Moore, C. J.

Fellows, J.

I find no difficulty in agreeing to the proposition that under the facts stated in the cross-bill, and which are admitted by the demurrer, the appellees had a right at the time they filed their second lien to include in it the items of both liens and. had they done so that they could have maintained their cross-bill for the full amount. They chose not to do so but filed two separate and distinct liens, their first one for $640.50 on February 1, 1911, their second one for $268.50 on April 11, 1911. They filed their answer and cross-bill April 5, 1912, more than a year after the filing of their first lien. Section 14804, 3 Comp. Laws 1915, provides:

“The several liens herein provided for shall continue for one year after such statement or account is filed in the office of the register of deeds, and no longer unless proceedings are begun to enforce the same as hereinafter provided.” ■* * *

It is obvious that appellees could not maintain a bill or a cross-bill to foreclosé their first lien alone. Such a bill would be barred by the limitation of the statute. The fact that they filed another lien for other items furnished, and for an amount not included in the first lien, does not in my judgment toll the statute. Their first lien had expired and was not revived by filing another one for items- subsequently furnished. For this reason I am constrained to dissent from the opinion of the Chief Justice. I think the demurrer should be sustained.

Stone, Clark, and Sharpe, JJ., concurred with Fellows, J.