text:
    ABBOTT v. GRUNER.
    Deeds — Agreement to Reconvey.
    If an absolute conveyance be made and accepted in payment of an existing debt, and not merely as security for it, an agreement by the grantee to reconvey the land to the grantor upon receiving a certain sum within a specified time does not create a mortgage, but a conditional sale; and the grantee holds the premises subject only to the right of the grantor to demand a reconveyance according to the terms of the agree; ment.
    Appeal from Bay; Maxwell, J.
    Submitted June 6, 1899.
    Decided September 12, 1899.
    Bill by Fred M. Abbott against Leonhard G-runer and Caroline P. Ellis, executors of the last will and testament of Joseph.J. Ellis, deceased, to have a deed declared to be a mortgage. From a decree for complainant, defendants appeal.
    Reversed.

      Merrie H. Abbott and Charles S. Abbott (B. M. Thompson, of counsel), for complainant.

      F. L. Snodgrass (Noah W. Cheever, of counsel.), for defendants.
   Long, J.

This bill was filed to have an absolute deed declared to be an equitable mortgage. The bill called for an answer under oath. Defendants filed a sworn answer, denying all the material allegations in the bill, and claiming the benefit of a cross-bill.

It appears that Austin Abbott and wife, on July 6, 1886, gave a mortgage to Joseph J. Ellis, for $3,500, on lots 9, 10, and 12, and a part of lot 11, of R. H. Weideman & Co.’s First addition to the village of West Branch. The mortgage was to be paid, $1,000 in three years, $1,000 in four years, and $1,500 in five years, with interest at 10 per cent, per annum. The part of lot 11 mortgaged was thereafter sold, and 'on July 6, 1888, the mortgage had been paid down to $3,000. From this time to November 11, 1891, no payments had been made. In 1886, after this mortgage was given, Joseph J. Ellis died testate, and the defendants, Gruner and Ellis, were appointed executors of his will. Gruner had the principal charge of the business, and sole charge of the matters connected with this mortgage. Ellis, in his lifetime; had been in the banking business, in partnership with one M. H. French, at West Branch. After the decease of Ellis, Mr. Gruner employed French to collect interest and principal of mortgages in that part of the State, Gruner living at Ann Arbor. In November, 1891, defendants, as executors of Ellis, commenced proceedings in chancery for the foreclosure of this mortgage, and a decree was entered on October 19, 1892, by which there was found to be due upon it $4,626.47, and, no appeal being taken, the decree became absolute. The sale of the premises was advertised under the decree for January 7, 1893. On the day the sale was to take place, Judge Sharpe, who was solicitor for the defendants here in the foreclosure proceedings, entered into an agreement with Austin Abbott and wife, by which they (the Abbotts) were to make an absolute deed of the mortgaged premises to the estate of Ellis, to take the place of the commissioner’s deed on foreclosure of the premises. The deed was made, and delivered to Judge Sharpe, as attorney for the executors, and was placed by him in the possession of the register of deeds of that county, with written directions from Judge Sharpe not to place the same upon record for 60 days unless some other paper should be offered for record to the register which might affect the title to the premises, and in such event this deed was to be placed upon record.

It is contended by defendants that subsequently it was agreed that, in case the Abbotts paid to the executors $4,224.30 within the 60 days from the date of the deed, then said executors should reconvey the premises to the Abbotts. Defendants also claim that it was also agreed that this deed should not be received as a mortgage security, but should be an absolute deed, to take the place of the commissioner’s deed on foreclosure, and that the Abbotts. should have the right to repurchase the premises by paying within 60 days the amount agreed upon, to wit, $4,224.30. The Abbotts not having paid the money stipulated to .be paid, the deed was placed upon record on April 10, 1893, and, as soon as recorded, was taken by Mr. French, and mailed to defendant Gruner. It is also contended by the defendants that, from that time up to the time of filing this bill, neither Austin Abbott, Mary J. Abbott, nor their grantees ever made any claim that the deed was a mortgage, or that it was intended by the parties to be treated as security; that, from the time of the execution of the deed up to the time of filing the bill in this cause, Austin Abbott ánd his wife have occupied portions of these premises as tenants under said executors, under verbal or written leases, and have paid rent therefor ; that during all that time the defendants have been in full and complete possession of the premises, have made repairs thereon, paid the taxes on the lands, and leased and received the rents therefor.

The complainant claim sthat, shortly before the premises were to be sold under the foreclosure, Mr. Abbott began negotiations for a new loan, and that, the day before the sale was to be made, he received a promise of a loan from a Detroit bank, but, not having time to perfect it, that Austin Abbott and his son Charles went to French and Sharpe, disclosed the fact of their intention to make the new loan, and asked a little further time in which to redeem; that at this time a message was sent to defendant Gruner, and the answer came back to French as follows: “January 6, 1893. Adjourn Abbott sale for 30 days. Publish usual adjournment notice. Inform Abbott. L. Gruner;” that the receipt of this telegram was kept from the Abbotts, and they were led to believe that, owing to the expense of advertising, the 'only way in which further leniency could be'obtained was by the execution of the deed in question, subject, however, to the right of the Abbotts to make a loan on the property and pay off the indebtedness, upon which the deed was to be returned; that the deed was not to be recorded, but handed to the register of deeds with the written instructions from Judge Sharpe, and if the loan was made, and the money paid over, the deed was to be returned without recording; that in the meantime the Abbotts were to remain in possession, and, if they could not redeem within the time, they were to surrender to the estate the rents and profits of the premises, the same to be applied upon the mortgage indebtedness; and that it was distinctly understood that the estate did not want the premises under the deed, but that the Abbotts might redeem at any time they could by paying off the indebtedness.

It appears that on March 14,1893, — that is, two months and seven days after the deed in question was given,— the Abbotts conveyed the premises by deed to Henry K. Abbott. It is claimed by complainant that, shortly after this deed was made, Henry K: Abbott, accompanied by his brother (Austin Abbott) and Mr. French, went to Detroit, to see what could be done about raising the money to pay off the amount due the estate. They failed to secure it. It is also claimed that several subsequent attempts were made to raise the money for that purpose, but, owing to hard times, they were unable to obtain it. On February 21,1898, Henry K. Abbott deeded the premises to Fred M. Abbott, the complainant here.

The case was heard below on pleadings and proofs, and a decree was made finding the conveyance was a mortgage, and referring the cause to a commissioner for an accounting. Defendants appeal.

It is contended:

1. That the executors had no power or authority to authorize or make the agreement claimed by complainant.
2. That the executors never made the agreement claimed.
3. That the agreement actually made by Judge Sharpe was that the deed should be absolute, and that the Abbotts should have the right to repurchase the premises within 60 days upon payment of the sum agreed upon.
4. That the allegations of complainant’s bill, and the proofs, show that, since the execution of the deed, Austin and Mary J. Abbott have been tenants of the premises under the defendant executors, and that neither they nor their grantees can dispute their landlords’ title.

Mrs. Mary J. Abbott was called as a witness for the complainant. She testified that she understood, when the deed was given, that they had a right to redeem from it, and that at that time her husband was negotiating for a loan in Detroit; that, if he failed to get this loan, the estate was to collect the rents and profits; that she did not have any talk with Judge Sharpe about it, nor with Mr. Gruner, the executor. She was asked:

“ Did you understand it from Mr. French?
“A. I don’t remember; it seems as though— I think that was the way I understood it, from Mr. French and Mr. Abbott.
“The Court: You say you think you did have a talk with Mr. French?
“A. I don’t remember exactly as to that. I left that to my agent and Mr. Abbott, and I talked of it before this mortgage was given, and I understood from him, and also from my other agents, that this mortgage was given as security for the old mortgage.”

On her cross-examination her attention was called to certain leases made by the Ellis estate to Austin Abbott and others, which were made in June, 1893, December, 1894, and November, 1897. She was asked:

“Were you not in possession of this property under these three leases from the time the leases were made up to the present time ?
' “A. I presume so.
“Q. And you have paid rent?
“A. Yes.
“Q. Under these leases?
“A. Yes.
“Q. From the time they were executed up to the present time ?
“A. Yes.”

Mrs. Abbott’s attention being again called by her counsel to the understanding about the deed, she was asked:

“When this mortgage deed was presented to you for your execution, do you remember whether, as a matter of fact, it was Mr. French or Mr. Abbott that explained to you that you could redeem under this ?
“A. It was Mr. Abbott. * * *
“Q. Mr. Abbott told you this, then, in Mr. French’s presence, did he not ?
“A. I think so, as I remember.”

On cross-examination she was asked:

“ Did he tell you that in Mr. French’s presence ?
“A. I think he did.
Q. What did Mr. French say, if anything ?
“A. I don’t remember.
“ (J. That is your answer, is it, — that you don’t remember ?
“A. I don’t remember.”

Judge Sharpe was called as a witness for complainant, and was examined and cross-examined at great length as to what was said and done at the time the deed was given. He was asked by counsel for complainant:

Q. And he was going to get that loan with the idea of redeeming the property ?
“A. It is perhaps a play upon words whether you say ‘redeem’ or ‘purchase back.’ My understanding is that he was to have the option of purchasing it back at a reduced amount, instead of a redemption. * * * You seek to make me say he had a right to redeem. I did not so understand it. * * *
Q. At the same time you still were willing Mr. Abbott should have the right to redeem the property ?
“A. Well, no. I might just explain it further that my recollection is that Mr. Abbott’s claim was that, if we went on to the sale, and the deed was recorded, made by the commissioner after foreclosure, that that would prejudice his right in borrowing money upon the property in case he desired to purchase it back, and that in that way the deed came to be given, instead of us procuring a deed through the foreclosure sale.”

On cross-examination, witness stated:

“Q. Didn’t you understand that this deed conveyed the absolute estate in fee to the estate of Ellis ?
“A. I did.
“Q. In case the Abbotts should pay the amount that you figured up — What do you understand that you were to do after that, in case they should succeed in borrowing that money, and should pay it, — what were you to do?
“A. I do not recollect whether the arrangement was that the deed was to be recorded, and one made back by the executors, or whether that deed was to be delivered back to them; but, what was to be done, they were to get the title back that was conveyed by the deed. * * *
“Q. Was it then the intention to reconvey it upon the amount stated ?
“A. I so understood it.
“Q. Do you call it a reconveyance when you return a man’s deed to him ?
“A. That would be the effect of it. * * * I don’t know whether it was spoken of as to whether a conveyance should be made by the executors or the deed handed back.”

The witness further testified that all the authority he had to make this arrangement was from Mr. French. Mr. French was called as a witness, and testified that he had no authority to make the arrangement to keep the deed from record; that all he undertook to do was to help the Abbotts out, and, in case they got the loan, he was to go to Ann Arbor, and ask the Ellis estate to deed the property; that he never understood that there was any arrangement except to get the property back in case the Abbotts raised the money; that he left the matter with J udge Sharpe, who told him that he had taken an absolute deed to the property, and had left the memorandum with the register of deeds to withhold the recording of the deed to see if they could make a loan.

We are satisfied from the evidence in the case that it was the understanding between the parties that the conveyanee was to operate ass an absolute conveyance, with the option to Mr. Abbott to repurchase. It is stated in Tilden v. Streeter, 45 Mich. 540, that:

‘ ‘ The great current of authority is distinct in holding that the party thus seeking to 'modify the operation of the instrument, and prove himself entitled, against the terms of his own deed, to an equity of redemption, is not only bound to make out-that the transaction was in truth and justice nothing more than the giving of security, but is required to do so by a force of evidence sufficient to command the unhesitating assent of every reasonable mind.”

That principle was quoted with approval in Etheridge v. Wisner, 86 Mich. 173.

There is no positive testimony in the case that such an arrangement as claimed by complainant was made, but, on the contrary, it is shown very conclusively by the testimony of Judge Sharpe and Mr. French that all the arrangement amounted to was that the Abbotts should have the privilege of repurchase. It appears that, soon after the time elapsed in which the deed was withheld from record, the Abbotts took leases of the premises from the estate, and paid rent therefor. Three of these leases were in writing, and Mrs. Abbott confesses that the parties occupied under them, and paid rent. The transaction was closed in March, 1893. From that time forward, the defendants have been in possession, claiming absolute title, making large improvements upon the property, with the knowledge of the Abbotts, and not until about the time this bill was filed, in 1898, did they claim any interest in the premises. The rule is well stated in Jones on Mortgages, at section 265, as follows:

“If an absolute conveyance be made and accepted in payment of an existing debt, and not merely as security for it, an agreement by the grantee to reconvey the land to the grantor upon receiving a certain sum within a specified time does not create a mortgage, but a conditional sale; and the grantee holds the premises subject only to the right of the grantor to demand a reconveyance according to the terms of the agreement.”

Some stress is laid upoij the f$ct that Judge Sharpe, after the deed in controversy was made, drew the deed from Austin Abbott and wife to Henry K. Abbott for the purpose of conveying title to Henry K. Under the arrangement made, we think this fact has but little weight, if any, in determining the character of. ‘the first deed. Judge Sharpe and Mr. French were evidently desirous that the Abbotts should have the fullest opportunity to repurchase the land. They had taken this deed in place and stead of the commissioner’s deed, so that the land should not be incumbered by that deed, and had withheld from the record the deed given by the Abbotts, so that they might more readily make a loan upon the land, and then, as Mr. French says, he should go to Ann Arbor, and induce the executors to let the Abbotts have the land back; in other words, they both evidently did what they could to assist the Abbotts in making the repurchase.

Upon the whole record we are satisfied that the complainant has not made out the case stated by his bill. We need not discuss the want of power and authority in Judge Sharpe or Mr. French to make the arrangement claimed. The court below was in error in finding that the conveyance was a mortgage. The decree must be reversed, and a decree entered here dismissing complainant’s bill, with ■ costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    FIRST STATE SAVINGS BANK OF BRECKENRIDGE v. WEBSTER.
    Bills and Notes — Filling Blanks — Liability of Maker.
    The maker of a note, who carelessly leaves room for an alteration to be made without defacing the note or exciting the suspicion of a careful man, will be liable upon it to a bona fide holder without notice, when the opportunity he has afforded has been embraced. So held, where the date line of a note payable “one year after January 1, 1898, after date, with interest from date thereof,” was left blank, upon the understanding that the note would bear interest only from January 1, 1898, and the blank was subsequently filled so that the note bore date October 16, 1896; the maker being held liable to a bona fide holder for interest from the date so inserted.
    Error to Gratiot; Daboll, J.
    Submitted June 8, 1899.
    Decided September 12, 1899.

      Assumpsit by the First State Savings Bank of Breckénridge against Charles E. Webster and others upon cer. tain promissory notes. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      John T. Mathews, for appellants.

      George P. Stone, for appellee.
   Moore, J.

The defendants appeal from a judgment rendered in favor of the plaintiff. The case was tried before the circuit judge, who, at the request of the parties, made findings of fact and conclusions of law. We cannot do better, to show what is involved in the case, than to reproduce the substance of these findings and conclusions:

“1. On the 2d day of October, 1896, the defendants purchased of McLaughlin Bros, a horse, at the agreed price of $2,600, and entered into the following written and printed agreement with the said McLaughlin Bros.:
‘“Ithaca, Mich., Oct. 2, 1896.
“‘Name of stallion, Ophir, lVfi.
‘McLaughlin Bros, agree to sell the above-named stallion, for §2,600, to the other undersigned subscribers, who, wishing to improve their stock, agree to pay McLaughlin Bros. §100 for each share in said stallion. Capital stock, $2,600. No. of shares, 26. Payments to be made in cash, or one-third in one year, one-third in two years, and one-third in three years after January 1st, 1898 secured by joint and several notes, with interest.’
“This contract was signed by McLaughlin Bros, and all of the defendants in the transaction of the sale of the horse. William McLaughlin claimed himself a member of the firm of McLaughlin Bros., and Mr. McLaughlin, at the time he procured’ the signatures of the defendants to the aforesaid contract, represented to them that by its terms interest was not to commence upon the purchase price of the horse until January 1, 1898. It was understood by the defendants that interest did not commence to run until January 1, 1898. The defendants had the opportunity to read the contract before they signed the same, but it was read over to them by McLaughlin, with the interlineation, ‘after January 1st, 1898,’ after the last printed word, ‘interest,’ and so explained by him to all persons to whom it was presented for signatures.
“2. Afterwards, and on the 16th day of October, 1896, the defendants executed to the said McLaughlin Bros, three negotiable promissory notes, in words and figures as follows:
“‘§866.00. -,189—
“ ‘ One year after January 1st, 1898, after date, for value received, we jointly and severally promise to pay to McLaughlin Bros, or order eight hundred and sixty-six dollars, at the Ithaca Savings Bank, with interest at 6 per cent., payable annually, from date thereof.’
“ — The other notes being precisely the same as the one here shown, except they were given for $867 each, and were payable in two and three years, respectively, from January 1, 1898. The signatures of each of the defendants appear upon each of the notes.
“3. At the time the notes were executed and delivered, the date line was left in blank, nothing being therein except the figures “189-,’ as printed therein; and the fact that the notes contained no date in the place where the date usually appears in the notes was noticed by the defendants, and their attention called to it, before they executed the notes, but it was explained to them that the date already in (January 1, 1898) was the date of the notes, and that it was a complete note without any other date, and, at the time of the transaction of the giving of the notes, William McLaughlin informed the defendants that the notes, as drawn, did not commence to dráw interest until January 1, 1898. Some of the defendants informed Mr. McLaughlin that they desired to obtain counsel upon the notes before signing them, and thereupon took them to an attorney-at-law at Ithaca, Michigan, and afterwards the defendants executed them as drawn.
“ 4. The notes in question were on the 16th or 17th day of October, 1896, taken into the office of the Ithaca Savings Bank by William McLaughlin, and at that time the date line in the note was filled in with the date, ‘ Ithaca, Mich., October 16,1896.’ .
“5. Afterwards, and on or about the 11th day of November, 1896, the plaintiff purchased the notes of McLaughlin Bros., and, in the transaction of such purchase, McLaughlin Bros, sent the notes to the Ithaca Savings Bank, with the instruction to deliver them upon the payment of a certain amount of money; and in this transaction one James B. Crawford, who was at the time president and a member of the board of directors of the plaintiff bank, negotiated the purchase for the plaintiff, under instructions by telephone from the plaintiff to the effect that he was authorized to purchase the notes in question at not exceeding $2,300. * * * Pursuant to such instructions, James B. Crawford bid $2,230 for the notes, and the bid was accepted; and the plaintiff sent a draft to James B. Crawford, who paid for the notes, and sent them to the plaintiff.
“6. At the time of the negotiation and purchase of the notes by plaintiff, James B. Crawford knew that the notes were given for the purchase price of the horse, and the fact that it was a joint-stock arrangement, and notes were to he given for the purchase price. He had no knowledge that the notes contained no date at the time they were executed, or that they had been subsequently dated, and had no knowledge of any fraud or deception connected with the transaction of the sale of the horse or taking of the notes.
“conclusions oe law.
“1. The date of the notes, while not necessary to their validity, was necessary to their free and unobstructed circulation as negotiable paper.
“ 2. The execution of the notes, leaving the date line in blank, gave implied legal authority to'any holder to insert in the blank so left unfilled the true date of their execution.
“3. The evidence of what was said between the parties at the time of the execution of the notes is incompetent to contradict or modify in any manner their terms.
“4. By their terms, the notes draw interest from their date, October 16, 1896, at 6 per cent, per annum, payable annually.
“5. The plaintiff is a bona fide holder of the notes, for a valuable consideration, before maturity, without notice of any defense to them. ”

Counsel for defendants contends for the following propositions:

• ‘ ‘ (1) By the exact wording of the notes, there is nothing due of interest, because the note reads, interest payable annually from date ‘thereof,’ not ‘hereof.’ The word ‘thereof’ refers, in point of time, to a date other than the day at which the thing is being done. In other words, the word ‘thereof,’ defined, means ‘of that,’ ‘of it,’ ‘from that,” which, by the phraseology of the note, refers to January 1, 1898.
“(2) We insist that as the note had no date, except January 1, 1898, when signed, and it being understood by all parties to the transaction that that was the date of the note, and that'no other date was needed or should be added to make it a complete instrument, and it being found that the date October 16, 1896, was subsequently added without the consent of the makers, and plaintiff having failed to show affirmatively that it was a purchaser for value, without notice, etc., it cannot-recover.
“(3) We insist that if the words ‘date thereof’ are construed to refer, in the printed form of the notes, to October 16, 1896, that then the addition of that date without the consent of the makers increases the obligation of the makers, and makes the paper false, forged, and counterfeit, and therefore void in the hands of anybody.”

We do not think any of these propositions can be sustained. According to the finding of the circuit judge, which finding is sustained by abundant testimony, the notes were not dated when signed. It must be remembered these notes were made in October, 1896, and were bought, by plaintiff in November of that year. Suppose they had read, “ Ninety days after date, for value received, we jointly and severally promise to pay;” would it be said the notes bore a date ? If that question must be answered in the negative, how can it be said that notes made in October, 1896, reading, “ One year after January 1st, 1898, after date, for value received, we jointly and severally promise to pay,” are notes dated January !, 1898 ? t We think the words, “one year after January 1st, 1898,” indicate, not the date of the note, but the date when payment is to be made, and that it would be so regarded by any bank to whom they should be presented for negotiation, especially as the blank preceding these words had been filled with a prior date. The rule in relation to filling in blanks like the one in question is stated in 2 Daniel, Neg. Inst. (4th Ed.) § 1405, as follows:

“There is a general principle.which pervades the universal law merchant respecting alterations, which, when they are material, will, as we have seen, vitiate the bill or note, even in the hands of a bona fide holder without notice, — a principle necessary to the protection of the innocent and prudent from the negligence and fraud of others. That is that when the drawer of the bill or the maker of the note has himself, by careless execution of the instrument, left room for any alteration to be made, either by insertion or erasure, without defacing it or exciting the suspicions of a careful man, he will be liable upon it to any bona fide holder without notice, when the opportunity which he has afforded has been embraced, and the instrument filled up with a larger amount, or different terms, than those which it bore at the time he signed it. The true principle applicable to such cases is that the party who puts his paper in circulation invites the public to receive it. of any one having it in possession with apparent title, and he is estopped to urge an actual defect in that which, through his act, ostensibly has none. ‘ It is the duty of the maker of the note to guard, not only himself, but the public, against frauds and alterations, by refusing to sign negotiable paper made in such a form as to admit of fraudulent practices upon them with ease, and without ready detection.’ The inspection of the paper itself furnishes the only criterion by which a stranger to whom it is offered can test its character, and, when the inspection reveals nothing to arouse the suspicidns of a prudent man, he will not be permitted to suffer when there has been an actual alteration.”

This section is quoted with approval in the recent case of Weidman v. Symes, 120 Mich. 657, where there is a discussion of the authorities.

The defendants had every opportunity to know, and did know, how the notes read, when they were signed by them. It was their duty to see that the date line was so filled in that an unsuspecting bona fide purchaser should not be deceived when the note was presented to him for negotiation. Failing to do this duty, they cannot complain, now that the note is in the hands of a bona fide holder. The circuit judge properly disposed of the case.

Judgment is affirmed.

The other Justices concurred.


text:
    TEXARKANA NATIONAL BANK v. STILLWELL & CO
    1. Bills and Notes — Action on Acceptance — Evidence.
    In an action on an acceptance of a time draft, payable to the order of the bank that discounted it, evidence as to what defendant, the drawee, who, after such acceptance, without authority from the payee, paid the amount of the draft to the drawer, was told by the drawer’s attorney concerning the ownership of the draft, is incompetent, in the absence of testimony indicating that the attorney was authorized to speak for the plaintiff.
    2. Same — Banks and Banking — Drafts — Crediting Drawer — Bona Fide Holder.
    A bank which, after a draft payable to its order had been accepted by the drawee, credited the amount to the drawer’s account, which fund the drawer exhausted, became a bona fide holder for value, entitled to sue thereon after an unauthorized payment to the drawer.
    Error to Wayne; Frazer, J.
    Submitted June 8, 1899.
    Decided September 12, 1899.

      Assumpsit by the Texarkana National Bank against Stillwell & Company, a corporation, upon an accepted time draft. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Griffin, Clark & Bussell, for appellant.

      Trevor & Trevor, for appellee.
   Moore, J.

This case was commenced in justice’s court. It was appealed to the circuit court, and tried by a jury. From a judgment in favor of defendant, the plaintiff has appealed.

One Whittaker, living in Texas, was a lumberman. He sold and shipped to Stillwell & Co. a quantity of lumber. Some dispute arose about its quality. Whittaker was notified that Stillwell & Co. held the lumber subject to his order. Mr. Whittaker inquired for how much he. could draw upon Stillwell & Co. They replied for $175 in full. He then sent them the following paper:

“Texarkana, Texas, June 14, 1897.
‘! Ninety days after date, pay to the order of Texarkana National Bank $175 (one hundred and seventy-five 00-100 dollars), value received, and charge to account of
“Willis Whittaker.
“ To Stillwell & Co., Detroit, Mich.”

Across the face of the draft is written by Stillwell & Co.:

“Accepted June 19. Payable at First National Bank, Detroit, Mich.
“Stillwell & Co.”

According to the testimony of the cashier of the bank, the bank discounted this acceptance the day it was drawn, and became the owner of it. that day, and has been the owner of it from that time until the taking of his testimony. He also testified that from the time of its acceptance it had never been under the control of Mr. Whittaker, or any person except the plaintiff and its correspondents. He said the payment for the draft was made by crediting Mr. Whittaker, who was then owing the bank, the amount of the proceeds thereof on his account. Some time after this, Mr. Whittaker failed in business, and was owing the bank upwards of $1,900, some of which was secured and some not. The draft was forwarded to the bank in Detroit for collection, who notified Stillwell & Co. they had it, but it was allowed to go to protest, and was returned to Texas. It was again Returned to the bank in Detroit, and Stillwell & Co. were again notified they had it for collection. Stillwell & Co. did not pay it, and it was sued.

Upon the trial, over plaintiff’s objection, defendant was allowed to present testimony as' to what an attorney-said to them, who called upon them before the draft was due, saying he represented Whittaker, who claimed there was still a balance due him. There was no testimony indicating that this attorney was authorized to speak for the plaintiff, and it was error to allow proof to be made of what he said.

Defendant was also allowed to offer in evidence the following correspondence:

“Texarkana, Ark., Sept. 21, 1897.
“ Stillwell & Co.,
‘ ‘ Detroit, Mich.
‘ ‘ Gentlemen: I had acceptance which you allowed to go to protest returned yesterday, and will be greatly obliged if you will pay it, as I do not want to give you trouble in regard to the matter, but will have to have bank place it in the hands of an attorney if you do not pay it.
“ Yours truly,
“Willis Whittaker.”
“ October 2, 1897.
“Me. Willis Whittakee,
“Texarkana, Ark.
“Dear Sir: Inclosed we hand you check for $176.79 to cover draft made on us for this amount. The same is paid with the understanding, as it was when accepted, that it covers all demands you have against us. We regret that there should be any misunderstanding in regard to this settlement. We certainly endeavored to make it plain when we replied to your message asking us the amount you could draw for.' We are having much trouble to dispose of the stock. You could not sell us more of it at any price.
“ Yours truly,
“Stillwell & Co.”
“Texaekana, Aek., Oct. 4, 1897.
‘ Stillwell & Co.,
“ Detroit, Mich.
“Your letter of the 2d received, with stated inclosure, for which please accept thanks.
“Yours truly,
“Willis Whittakee.”

Defendant was also allowed to offer a copy of an assignment made by Whittaker to Heinsen, trustee, in which the plaintiff was said to be a secured creditor for $2,150. The check sent by Stillwell & Co. was also introduced in evidence, and it showed upon the back of it that it had passed through plaintiff bank. The court was asked to direct a verdict in favor of the plaintiff for the amount of its claim, but declined to do so. The judge submitted the question to the jury as to whether the plaintiff was a bona fide holder of the acceptance or not. The jury must have found it was not, or they could not have rendered the verdict they did. It is said by defendant that, where bona fides is attempted to be shown, mala fides may also be shown; citing Carrier v. Cameron, 31 Mich. 373 (18 Am. Rep. 192). The rule is as stated, but, where the attempt is made to show mala fides, it must be done by competent testimony. The plaintiff was not bound by any act of Mr. Whittaker, or any statement made by him or his attorney, after it became the owner of the draft. In the absence of any showing that these statements were authorized by plaintiff, all this testimony was incompetent, and should have been excluded.

It is also claimed that plaintiff did not make a prima facie case; that giving Mr. Whittaker credit on his account was not sufficient to make the bank a holder for value, — citing Drovers’ National Bank v. Blue, 110 Mich. 31 (64 Am. St. Rep. 327). The case just cited is not in point in this case. The note in that case was not given to the Drovers’ National Bank, but to the Chicago Supply Company, who transferred it to the bank. It was claimed the note was given without consideration, and the court, in the opinion, says:

“The testimony shows that no money or valuable thing passed at the time of the purchase. A mere credit was given by the bank for the note, — -a promise to pay, in other words; and there is nothing to show that this credit was ever drawn upon, or that the account of which it became a part was exhausted, before the maturity of the note, or before notice of the fraud.”

In this case the draft, when drawn and accepted, was payable to the order of the plaintiff bank, who credited the amount of the proceeds thereof to Mr. Whittaker in his account with the bank, which fund was exhausted-by Mr. Whittaker. It was given for a valuable consideration. ' There was no fraud in its inception. Its acceptance by the defendant when the plaintiff was named in the draft as payee made the defendant the debtor of the plaintiff. If the defendant saw fit to pay the draft to the drawer thereof without the draft being in his possession, and without learning he was authorized by the payee to receive payment, it did so at its peril. There is no testimony in the case which would warrant the inference that plaintiff was not a bona fide holder of the draft, and a verdict should have been directed in its favor.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    ALPENA LOAN & BUILDING ASSOCIATION v. DENISON.
    Auditing of Accounts — Loan Association Officers — Failure to Discover Shortage.
    A member of a committee of a building and loan association to which quarterly statements of the secretary were referred, which were considered at meetings of the committee by taking the cash book, adding up the various items, and, if the items tallied with the reports, certifying them to be correct, is not liable to the association, where there was no item on the face of the books not accounted for or included in the reports, and there is no showing that the committee did not exercise ordinary skill and diligence, although the secretary, by keeping a set of private books which were never submitted • to the committee, was enabled to embezzle large sums of the association’s funds.
    Erfor to Alpena; Kelley, J.
    Submitted June 9, 1899.
    Decided September 12, 1899.
    Case by tbe Alpena Loan & Building Associatiou against William E. Denison j-for the alleged negligent performance of his duties as auditor of plaintiff corporation. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The declaration in this cause avers, substantially, that plaintiff was organized as a building and loan corporation under the statutes of this State, and had carried on the business of a building and loan association at Alpena, this State, for six years and upwards prior to the commencement of suit; that defendant, on or about December. 1889, became a shareholder and member of the corporation by duly subscribing to plaintiff’s charter and by-laws and taking shares therein; that, among other things contained in said by-laws up to March, 1897, was the following:
    “At the last stated meeting of the board of directors held in each quarter they shall appoint three auditors from the members of the association, not officers thereof, whose duty it shall be to audit the accounts of the different officers, assess the value of shares, and report the same to the stockholders at the first stated meeting following.”
    It avers that defendant, at various times during said time, was duly appointed one of the auditors, and accepted the duties imposed thereby, thus acting as such for the first time from December 10, 1889, to March 10, 1890, during which time the secretary of the plaintiff embezzled $330.42 of the plaintiff’s funds, and that, during the whole time above stated that defendant so acted as said auditor, said secretary embezzled $3,100, and after-wards embezzled of the plaintiff $19,570, which said embezzlements plaintiff first discovered in May, 1897; that defendant and his associate auditors fraudulently and negligently failed to report to plaintiff any of said embezzlements or losses, but, on the contrary, reported the value of said plaintiff’s shares as if none of such embezzlements or losses had taken place, and deceived plaintiff thereby, and thus induced it to retain said secretary in its employ, and to pay many withdrawals according to said false reports. Plaintiff alleges that it was the duty of the defendant, while thus acting as one of its auditors, to have thoroughly examined all of plaintiff’s books and accounts kept by said secretary, and to have reported their true condition; but that defendant willfully and negligently neglected his said duty, and deceitfully and negligently reported that said secretary’s accounts were being kept honestly and fairly, and that none of said funds were embezzled, to plaintiff’s damage, etc. Another count is added, which it is unnecessary to state, as the gist of plaintiff’s elaim is stated above.
    The defendant gave notice under the plea of the general issue that, if any loss was sustained by the plaintiff through the embezzlement of its secretary, the same was settled, compromised, and condoned by the plaintiff through its authorized officers; that, if any loss occurred through such embezzlement, it was brought about through the carelessness and negligence of the officers and hoard of directors of the association by their failure to require of its secretary the bonds required by the statute under which the plaintiff was organized; and that, if any withdrawals were paid by plaintiff based upon the value of shares as shown by reports, said losses occurred through the action of the board of directors in violating their statutory duty in paying withdrawing stockholders notin accordance with statutory and by-law contracts existing between withdrawing stockholders and the plaintiff association.
    The cause came on for trial before a jury, and at the close of the testimony the court directed a verdict in favor of defendant. Plaintiff brings error.

      J. D. Turnbull, for appellant.

      L. G. Dafoe, for appellee.
   Long, J.

(after stating the facts). After a careful reading of the record, we are satisfied that the court very properly directed the verdict in favor of defendant. The association had nine directors. The by-laws provide that it is the duty of the secretary to receive all moneys paid in, and deposit the same in bank, to the credit of the treasurer, weekly, or as often as the amount reaches $500; that he shall make to the board of directors, at the first meeting in each quarter, a statement of the financial affairs of the association and the business of the preceding quarter, and publish an annual statement in March of each year; that the treasurer shall keep a correct account of moneys received and paid out, and, at the first meeting in each quarter, render to the board a full statement of the business of his office; that stated meetings of the board shall be held on the second Tuesday of each month; that the board of directors may demand for inspection at any time, from any officer, all books, papers, etc.; that the board shall submit to the stockholders, at each annual meeting, a general statement of the business of the preceding year, and a report of the financial condition. This statement must be sworn to by the president and secretary. Defendant contends that he was never appointed auditor of the association, but that at various times he was appointed on committees with others, to which committees the quarterly statements of the secretary were referred. The evidence conclusively establishes this contention. It appears that, when the committee met, these quarterly reports were examined. The committee took the cash book, containing the receipts and disbursements, and added up the various items, and, if the items tallied with the reports, the committee certified them to be correct. All the reports were audited in the same way. It appeared that in 1896 — being after the time charged in the declara-, tion — the plaintiff association discovered that the secretary had kept a separate set of books, called ‘ ‘ blotters.” These ‘‘ blotters ” were never submitted to the committee. The shortages were covered up and concealed by the secretary, and never came to the attention of the defendant and his associates on the committee. There was no item appearing on the face of the books presented to the committee that was not accounted for or included in the reports. The defendant was bound to exercise only ordinary skill in the examination of such books and papers as were submitted to him. There is no showing that he did not exercise skill and diligence in all that was submitted for his examination. There is no doubt but that the secretary embezzled a large amount of the funds of the association. He did it, apparently, by his peculiar system of bookkeeping; that is, by keeping a private set of books. His books exhibited to the committee were apparently all right, and it was from • these that the committee verified the quarterly reports submitted to it.

The judgment must be affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    HARRIS v. GATES.
    Married Women — Promissory Notes — Consideration.
    A note executed by a married woman for the surrender of a note of the same amount against her husband, and to prevent the payee therein from attempting to collect the same by attacking a transfer to her by her husband of all his property on the claim that such transfer was voluntary and in fraud pf creditors, is supported by a sufficient consideration to. make it binding on her separate estate. Whelpley v. Stoughton, 112 Mich. 594, followed.
    Error to Shiawassee; Smith, J.
    Submitted June 9, 1899.
    Decided September 12, 1899.

      Assumpsit by Isabelle Harris against Helen M. Gates on a promissory note. From a judgment for defendant on.verdict directed by the court, plaintiff brings error.
    Beversed.

      Almond G. Shepard and Edwin H. Lyon, for appellant.

      Selden S. Miner, for appellee.
   Per Curiam.

Suit upon a promissory note executed by a wife. This case is ruled by Whelpley v. Stoughton, 112 Mich. 594. Any statement of facts or law is unnecessary.

Judgment reversed, and new trial ordered.


author: Hooker, J.

text:
    MURDOCH v. WALLS.
    1. Creditor’s Bill — Fraudulent Transfer of Firm Assets — Death of Partner — Parties.
    A firm creditor, after the death of one of the partners, may maintain a creditor’s bill to reach firm assets fraudulently transferred by the deceased to his wife, and traced by complainant into the hands of the wife’s executor.
    2. Same — Administrator as Complainant.
    Whether the deceased partner’s administrator would, by virtue o{ his interest in having the partnership property applied to the relief of his estate from partnership obligations, be entitled to maintain such a bill, — qucere.
    Appeal from Houghton; Haire, J., presiding.
    Submitted June 9, 1899.
    Decided September 12, 1899.
    Creditor’s bill by Thomas Murdoch against William Walls, William H. Hosking, Jr., and John H. Rice. From an order overruling a demurrer to the bill, defendant Rice’appeals.
    Affirmed.

      Dunstan & Hanchette, for complainant.

      Chadbourne & Bees, for appellant.
   Hooker, J.

The complainant’s bill alleges:

1. That he is one of the surviving partners of a copartnership that consisted of Reid (deceased), Fischer, and himself.
2. That William Walls is survivor of himself and Isaiah C. Watson, deceased, formerly copartners.
3. That on July 16, 1889, Reid, Murdoch & Fischer recovered against Watson & Walls a judgment for upwards of $5,500, and that the same is now due and payable, execution having been duly issued, and returned unsatisfied.
4. That, at the time said j udgment was rendered, Watson & Walls were in the mercantile business, and that divers persons were indebted to them in large amounts; that Watson collected a large amount of money from said debtors, and invested it, with his own earnings, in the purchase of stock, in the name of his wife, Martha D. Watson.
5. That Martha D. Watson died about September 25, 1891, leaving a will, in which she bequeathed all of her property to John H. Rice.
6. That John H. Rice and James B. Sturgis were apnointed executors of Martha D. Watson’s estatq, and filed an inventory containing a list of copper stocks, and no other property.
?. That on July 22, 1887, Watson & Walls sold to Hos-king their stock of goods, and received notes as follows: One for $2,000, payable in 30 days, and one for $2,145.14, due in 90 days, both payable to Isaiah Watson; and that these were indorsed by Isaiah Watson to Martha Watson or order, and afterwards by her to other persons.
8. That, after the death of Martha Watson, her executors obtained a judgment upon said notes for $6,442.17, which is unsatisfied and undischarged.
9. That Isaiah Watson paid all the money that was paid for the stocks mentioned out of funds which belonged legally and equitably to the firm of Watson & Walls, and out of moneys received by him in compensation for services, and profits made by him, since the date of said judgment (against them), for the benefit of his wife, Martha Watson, in fraud of complainant, and without consideration.
10. That he indorsed the notes mentioned to her without consideration, and in fraud of complainant.
11. That Martha Watson had no property of any kind • during her lifetime, except such as she had received without consideration from her husband.
12. That all of such transfers were merely colorable, and made with the design of placing said property beyond the reach of complainant.
13. That said Rice and William H. Hosking, Jr., have in their possession or control property which belonged to Isaiah Watson up to the time of his death, or in which he was in some way beneficially interested.
14. That Sturgis is dead, and Rice survives as executor.

The bill prays, among other things, that Rice be decreed to pay over and deliver to complainant sufficient of the money, stocks, judgment, etc., to pay complainant, and for a receiver. Defendant Rice demurred to the bill, and, his demurrer being overruled, he has appealed.

It is contended by his counsel that the bill shows upon its face that it is an attempt to reach only the property of Isaiah Watson, and that the proper method should be for the administrator of Isaiah Watson to institute the proceeding, for and on belfalf of all of the creditors of said Isaiah Watson, to reach this property. Upon the other hand, it is asserted that the bill alleges that property belonging to the firm of Watson & Walls is in the hands of the defendants, and that, as a creditor of said firm, complainant is entitled to have it applied to his claim, to the exclusion of the creditors of Watson.

The allegations of the bill show an ability5" to trace the notes received for the firm property, and perhaps other items, to Rice; and if, as stated, it is in fraud of the partnership creditors, we see no reason why equity may not require their application to complainant’s debt. As contended by counsel for the defendant, the death of a party precludes the subsequent filing of a bill in behalf of his creditors to reach property fraudulently conveyed by him, and upon which such creditors have no lien; but such is not the case. The complainant professes to be able to trace, not Watson’s property, but Watson & Walls’ property, into the hands of the executor of a third person. If he is able to do this, we think a court of equity, and not the probate court, is the proper tribunal to restore it to the creditors of' the partnership, which could hardly be done by the probate court in any proceeding that might be taken in the estate of Martha Watson. Whether an administrator of the estate of Isaiah Watson might file a bill to reach such property, we need not decide, as we are satisfied that it is not the exclusive remedy. The administrator of Isaiah Watson, if there be one, has no right to the possession of the partnership property as against Walls, nor has he any right to adjust the partnership affairs. It may be that his estate is interested in seeing partnership property applied to the relief of his estate from partnership obligations by payment of such debts, and he might, perhaps, institute proceedings to require such application. But these questions are not .here. We think that the complainant has the right to bring such a suit.

The decree is affirmed, with costs, and case remanded, with leave to answer under the rules and practice of the court.

The other Justices concurred.


text:
    ERMELING v. BARGH.
    Attachment Bond — Liability of Sureties — Identification of Obligee.
    Sureties on an attachment bond executed to E. & Co. may be held liable thereon to E., upon proof that E. individually did business in that name, and that the damages sustained accrued to him individually; the express obligation of the sureties being in no way enlarged by such identification of the obligee.
    Case made from Gogebic; Haire, J.
    Submitted June 22, 1899.
    Decided September 12, 1899.

      Assumpsit by L. R. Ermeling against Joseph S. Bargh, principal, and John D. Barry and H. E. Eos, sureties, on an attachment bond. Plaintiff had judgment, and defendants assign error.
    Affirmed.

      Buck & Waples, for appellants.

      George O. Foster and T. H. Bushnell, for appellee.
   Long, J.

June 25, 1895, Joseph S. Bargh commenced suit by attachment in justice’s court against L. R. Ermeling & Co., styling in the affidavit for the writ the said L. R. Ermeling & Co. as a foreign corporation. A bond in the penal sum of $200 was executed by Bargh, with defendants Eox and Barry as sureties thereon. The bond was executed to L. R. Ermeling & Co., its certain attorneys, etc., and was conditioned in the usual form to pay to said L. R. Ermeling & Co. all damages and costs it might sustain by reason of the issuing of the writ, if Bargh failed to recover judgment in said suit. The writ of attachment commanded the officer to attach the goods, chattels, etc., of L. R. Ermeling & Co. The defendant appeared specially on the return day of the writ in justice’s court, and moved to quash the writ, and all proceedings thereunder, for the reason that the court acquired no jurisdiction of the defendant or the subject-matter. This motion was denied by the justice. The defendant made no further appearance in that court, but, upon judgment being rendered in favor of plaintiff, took a special appeal to the circuit court, where the special appeal was sustained, and judgment entered in favor of defendant. ’ This judgment was sustained in this court. (Bargh v. L. R. Ermeling & Co., 110 Mich. 164). The present action is upon the bond against the principal and sureties to recover damages. The action was commenced in the name of L. R. Ermeling individually. The court below found that L. R. Ermeling & Co. expended $150 as attorney’s fees in the original suit, and that such amount was reasonable for the services performed; that Ermeling was also entitled to recover his taxed costs in that suit of $33 in the circuit and $36.85 in the supreme court. The court also found that at all the timeg stated in the pleadings and proceedings in that action the plaintiff here was carrying on business as an individual under the name of L. R. Ermeling & Co., and that said L. R. Ermeling & Co. was neither a partnership nor a corporation, but was and is the plaintiff in this action. Judgment was entered in favor of plaintiff on the bond in the sum of $200 and costs. Defendants appeal.

The only objection made here is that, the original suit having been brought against L. R. Ermeling & Co. as a foreign corporation, the plaintiff could not maintain this action without an assignment of the bond to himself from the corporation. The return to the writ of attachment shows that the officer executing the writ seized and attached the goods and chattels of L. R. Ermeling & Co. The objection of defendants’ counsel cannot be sustained under the findings of fact made by the court below. The court found as a fact that L. R. Ermeling was doing business as L. R. Ermeling & Co.; that this was not a corporation or a partnership. It appears, therefore, that L. R. Ermeling individually was the’ real defendant in the attachment proceedings. The mere fact that Bargh, as plaintiff in that suit, styled it as a foreign corporation in the affidavit and other proceedings in that suit cannot be held to estop the plaintiff from setting up that he was doing business under the name of L. R. Ermeling & Co., and that he was the party named in the proceedings, and that the damages suffered were suffered by him individually. While it is true that a surety can insist that he shall not be bound beyond the terms of his obligations, nevertheless he cannot escape the obligations he does assume. The defendants signed this bond upon which the writ issued, and the goods of Mr. Ermeling were taken. It was proper in the proceedings to identify the plaintiff here as doing business as L. R. Ermeling & Co., and show that it was his goods that were taken, and that the damages sustained were damages accruing to him as representing L. R. Ermeling & Co. This in no degree enlarged the express obligations of" the sureties on the bond. Wile v. Koch, 54 Ohio St. 608.

The judgment must be affirmed.

The other Justices concurred.


text:
    PIKE v. PIKE.
    Statute of Frauds —Parol Agreement Relating to Land — Part Performance.
    A parol agreement by parents to deed their farm to their son if he would surrender his lease of a farm on which he was living, and come to live with them, is taken out of the statute of frauds by his accepting the offer, surrendering his lease, and moving onto the farm with the parents.
    Appeal from Kalamazoo; Buck, J.
    Submitted June 22, 1899.
    Decided September 12, 1899.
    ■ Bill by William D. Pike against Jefferson Pike for the specific performance of a contract to convey real estate. Prom a decree for complainant, defendant appeals.
    Affirmed.

      Jesse JR. Gropsey and Boudeman & Adams, for complainant.

      Alfred S. Frost, for defendant.
   Moore, J.

Defendant has appealed from a decree in chancery requiring the specific performance of a contract which the complainant claims was made between himself and his mother, now deceased, and the defendant, who is complainant’s father. It is the claim of the complainant that he was the only son living of his parents; that he was working a farm about miles from them, for which he had a lease for a term of years; that his only living sister, who was childless, and her husband, were living with his father and mother upon 40 acres of land, the title of which was in the mother. His claim is that, upon the death of his sister, his father and mother were anxious he should surrender his leased farm, and come to live upon the farm owned by his mother, who agreed, if he would do so, she would deed the farm, subject to a life estate in herself and husband, to him. He avers he accepted the offer, surrendered his lease, and moved upon the farm, and, with his wife, cared for his mother as long as she lived, and was ready to care for his father as long as he lived. He further claimed that his mother sent his father to a conveyancer to have a deed drawn to carry out the agreement; that, instead of having such a deed drawn, the father had it drawn to himself; that the mother demurred to executing such a deed, but was informed a deed directly to the son would be invalid, but that the father could execute such a deed, which would be a valid deed, and would do so; that the mother, believing this statement to be true, signed the deed which was presented to her, and the husband afterwards caused a deed to the son to be executed, reserving to himself a life estate. He alleges that after the death of the mother, and for the purpose of avoiding the agreement made between the son and the mother and between all three of the parties, the defendant caused the deed to the son to be destroyed, and asserted his right and intention to sell the farm, and do what he pleased with the proceeds. The defendant denies that the agreement was as stated by the complainant, and, while he admits he made a deed to the son, he avers that it was because he was his only child, and he desired him to have the land after his death, but the son and his wife had so ill-treated him he had changed his mind. He asserts that, while the title to the land was in the wife, she made a deed of it to him, because he furnished the money which bought it, and that it equitably belonged to him before his wife deeded it to him; that in deeding it to him she simply carried out what she before had agreed to - do. The testimony was taken in open court. The circuit judge found that the proof of complainant sustained the allegations of his bill, and made a decree in his favor. It would not profit any one to put into this opinion any considerable portion of the testimony. It is sufficient to say of it that we think the circuit judge came to a proper conclusion as to the effect -of it.

It is claimed on. the part of the defendant that this was a contract in relation to real estate, and, because not in writing, signed by the parties to be charged, is void. This contention would be true if the contract were an executory one, but, as it has been substantially executed on the part of the complainant, it is taken out of the terms of the statute, and is such a contract as this court has repeatedly enforced. See Twiss v. George, 33 Mich. 253; Lamb v. Hinman, 46 Mich. 112; Fairfield v. Barbour, 51 Mich. 57; Welch v. Whelpley, 62 Mich. 15 (4 Am. St. Rep. 810); Taft v. Taft, 73 Mich. 502; Putnam v. Tinkler, 83 Mich. 628; Russell v. Russell, 94 Mich. 122; In re Williams' Estate, 106 Mich. 502; Kent Furniture Manfg. Co. v. Long, 111 Mich. 389; Briggs v. Briggs, 113 Mich. 371.

It is said it would be inequitable and unjust to require specific performance of the contract. We cannot agree with the solicitor in this claim. As before stated, the proofs fully sustain the case as set out in complainant’s bill of complaint, and the equities are with him.

Decree is affirmed, with costs.

The other Justices concurred.


text:
    SEYMOUR v. ROOD.
    Bill to Quiet Title — When Lies — Ejectment.
    A bill to quiet title will not lie against a party in possession, claiming ownership; ejectment being the only proper remedy in such case.
    Appeal from Mecosta; Edwards, J.
    Submitted June 22, 1899.
    Decided September 12, 1899.
    Bill to quiet title by Frances E. Seymour against Dear-born Rood and Laura Rood. From a decree for complainant, defendants appeal.
    Reversed.

      Edwin H. Lyon, for complainant.

      Frank Dumon, for defendants.
   Long, J.

This bill was filed to quiet title to certain lands in Mecosta county. Complainant claims title through the foreclosure of a mortgage by James F. Moore and wife to the Michigan Mortgage Company, and assigned by said company to the complainant. Defendant Dearborn Rood claims title under tax deeds for the years 1891, 1892, and 1893. The other defendant is the wife of Dearborn Rood. The case was heard in the court below upon pleadings and proofs taken in open court, and a decree entered in favor of complainant.

It is charged in the bill that defendants pretend to be in possession of said premises, and claim to own them. The answer admits that the defendants are in possession, claiming title. The proofs show that defendants went into possession in the spring of 1895, and that they are still in possession, claiming title. Under these circumstances, the complainant cannot maintain her bill to quiet title. The statute, prior to the amendment of 1887, provided that:

“Any person having the actual possession and legal ox-equitable title to lands may institute a suit in chancery against any other person setting up a claim thereto in opposition to the title claimed by the complainant,” etc. 2 How. Stat. § 6626.

By the amendment of 1887 it is provided:

“Any person claiming the legal or equitable title to lands, whether in possession or not, may institute a suit in chancery against any other person, notin possession, setting up a claim thereto in opposition to the title claimed by the complainant,” etc. Act No. 260, Pub. Acts 1887; being section 6626, 3 How. Stat.

Defendants being in possession, the complainant ,'has mistaken her remedy. A court of chancery is not the proper forum in which to try titles to lands. Where a party holding a legal title seeks to enforce it as against a person in possession claiming title under an invalid title, or one which the party claiming claims to be such, the only proper remedy is ejectment. 2 How. Stat. § 6626, was desigxxed to enlarge the powers of equity in regard to quieting titles by allowing a decree in favor of a party in possession without the necessity of repeated trials at law. King v. Carpenter, 37 Mich. 365. Under the amendment of 1887, even, a bill in equity cannot be maintained to quiet title against a defendant in possession, but it px-ovides only for such procedure when the party against whom the relief is sought is not in possession.

The decree below must be reversed, and a decree entered here in favor of defendants, with costs of both courts, but without prejudice to bringing a suit at law.

The other Justices concurred.


text:
    KISSANE v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    1. Street Railways —Fares —Township and Village Franchises.
    A street-railway company operating upon a country highway under franchises from the several townships through which it passes, each permitting it to charge only a certain sum for the conveyance of passengers through the township, cannot charge a passenger who has -paid the fare for a particular township an additional fare for riding through a village lying wholly within such township, although the franchise from the village provides that no person “shall be carried for any distance for less than” the additional sum sought to be exacted.
    2. Same — Reduced-Rate Tickets.
    One holding a street-railway ticket good from I. to D. is entitled to carriage upon presentation of the ticket, although he has paid his fare to I. from a point farther out on the line, from which point the regular, through fare exceeds the sum of the fare paid and the price of the ticket.
    Error to Wayne; Donovan, J.
    Submitted June 22, 1899.
    Decided September 12, 1899.

      Assumpsit by Thomas Kissane against the Detroit, Ypsilanti & Ann Arbor Railway to recover excess fare paid under protest. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Gutcheon & Stellwagen, for appellant.

      Jasper G. Gates, for appellee.
   Long, J.

The defendant owns and operates a line of street railway between the cities of Ann Arbor and Detroit. This line passes through the townships of Canton, Nankin, Dearborn, the village of Wayne, and other townships and villages not material to this case. The agreement or franchise from the township of Canton, so far as is material to the case, is as follows:

“The rate of fare for any distance on the line of said railway within the said township of Canton shall not exceed five cents, but the rate of fare for any distance on the line of said railway outside of said township shall not exceed two cents per mile.”

On April 10,.1899, plaintiff boarded one of defendant’s cars at a point in the township of Canton, with the intention of going through to Detroit. He did not communicate this intention to defendant’s conductor. The through fare from this point to Detroit was 35 cents. Plaintiff offered defendant’s conductor 10 cents, as a fare to Inkster, which is an unincorporated village on the line between the townships of Nankin and Dearborn. To reach Inkster from where plaintiff boarded the car, he had to cross a portion of the township of Canton and the whole of the township of Nankin, also through the village of Wayne, which is situate wholly within the territory of the township of Nankin. Defendant’s conductor refused to accept the 10 cents offered, and demanded 15 cents. Plaintiff paid the 5 cents under protest. The agreement or franchise from the township of Nankin, as regards fare, is almost identical with that of the township of Canton. The provisions of the franchise from the village of Wayne are that fare shall not exceed 1% cents per mile, provided that no passenger shall be carried any distance for less than 5 cents. On arriving at Inkster, plaintiff tendered defendant’s conductor a ticket. This ticket is issued pursuant to the franchise granted to defendant by the township of Dear-born, which, so far as relates to this ticket, is as follows:

“ It is further provided that said grantee shall charge not to exceed the following rates: * * * Prom any point in said township west of St. Joseph’s Retreat to Woodward avenue, in said city [Detroit], * * * strip of five such tickets for sixty-five cents, good either way.”

Defendant’s conductor refused to accept this, because plaintiff was a through passenger, and did not get on the car at Inkster. The conductor demanded a cash fare of 20 cents, which plaintiff paid, to prevent being put off the car. This suit was brought to recover the 5 cents which plaintiff claims is an overcharge for his fare to Inkster, and 7 cents, the excess of his cash fare over the ticket from Inkster to Detroit.

The case was tried before the court without a jury. The court found:

1. That the plaintiff was entitled to ride from the point where he boarded said car, in the township of Canton, to the village of Inkster, for the sum of 10 cents, and that the additional sum of 5 cents was wrongfully exacted, and that he was entitled to recover the same.
2. That the ticket tendered at Inkster entitled the plaintiff to ride from Inkster to the city hall in Detroit, and that, therefore, the 20 cents demanded and paid was illegally and wrongfully exacted, and the plaintiff was entitled to recover the difference between 13 cents, which he had paid for his ticket, and the 20 cents exacted, or 7 cents for that part of the route, making 12 cents in all, with his costs of suit, not exceeding $25,.

Counsel for defendant asked the court to find:

“ 1. That, under the undisputed testimony, the defendant is entitled to charge and collect from a passenger boarding its cars in the township of Canton, with the intention of going to Detroit, the regular fare, 35 cents.
‘ ‘ 2. That the defendant has the right to charge and collect from passengers boarding its cars in the township of Canton to go to Inkster 5 cents for the township of Canton, 5 cents for the township of Nankin, and 5 cents for the village of Wayne.
“3. That passengers who board defendant’s cars in the township of Canton to go to Detroit do not have the right to pay fare to the line between Canton and Nankin, then 5 cents to the line between Nankin and Dearborn, and then offer a 13-eent ticket to Detroit.
‘ ‘4. That passengers who board defendant’s cars with the intention of going to points beyond the limits of the municipality within which they first take the cars do not have the right to pay local fares fixed by other municipalities through whose limits they may chance to pass.
“ 5. That a passenger who boards defendant’s cars for the purpose of a continuous ride t© any point is governed during his whole trip by the franchise granted by the municipality within whose limits he boarded the car.”

The court refused each of those findings.

It is contended by counsel for defendant that the township of Canton gave the defendant the right to pass through its limits, and, as a local fare within its limits, fixed a maximum of 5 cents; if, however, the passenger wished to go beyond the limits of the township, the defendant had the right to charge not to exceed 2 cents per mile; that the first applied to local, the second to through, passengers. It. is also said that, when plaintiff boarded the car in Canton to go to Detroit, he selected the provision of the Canton franchise which was most to his advantage, and attempted to ignore that part which was of advantage to the defendant; that he was on defendant’s car under the Canton franchise, and by virtue of that franchise defendant agreed to convey him to Detroit, not first to Nankin, then to Inkster, and then to the city of Detroit; that plaintiff must take the contract as an entirety, or not at all; that, if defendant can charge through rates, plaintiff cannot avail himself of the 13-cent ticket from Inkster to Detroit. It is conceded by counsel that they are unable to find any adjudicated case directly in point.

We cannot agree with counsel in their contention. The Canton franchise fixed the maximum fare at 5 cents. This entitled the plaintiff to the right to be carried through that township for 5 cents, though he may have intended at the .time of taking passage to go beyond the limits of the township. This limit of fare in the franchise cannot be held to apply to local passengers alone, but must apply to all who desire passage, even if going beyond the limits of the township. The defendant had no right to make such a discrimination. The plaintiff offered the conductor 10 cents as fare to Inkster, a small unincorporated village in the township of Nankin. The township of Nankin adjoins the township of Canton on the east, and to reach Inkster the plaintiff had to pass through a part of Canton and a part of Nankin townships. The franchise in Nan-kin limited the maximum fare to 5 cents, so that, under the franchises of the two townships, the maximum fare was 10 cents. It cannot be said that because, at the time plaintiff entered upon the passage, he was in Canton township, and intended to go to Detroit, the defendant could ignore the limit which the township of Nankin placed upon the rate of fare. Defendant is bound by the franchise in Nankin as well as in Canton, and cannot increase the rate of fare in those townships beyond the limit fixed in each. The defendant did not, in fact, attempt to stand on the Canton franchise. It chose to deal with plaintiff as a passenger from Canton to Inkster, and exacted from him 5 cents under the Canton franchise, 5 cents under the Nankin franchise, and 5 cents under the village of Wayne franchise (a village situate wholly within the township of Nankin), or 15 cents in all for the passage to Inkster. The statute under which the defendant was organized provides that:

“ Any company organized under the provisions of 'this act may construct, use, maintain, and own a street railway for the transportation of passengers in and along the streets and highways of any township, upon such terms and conditions as may be agreed upon by the company and the township board of the township; which agreement, and the acceptance by the company of the terms thereof, shall be recorded by the township clerk in the records of the township.” Section 13, Act No. 12, Pub. Acts 1893.

Street railways are bound by such agreements, and the defendant could not release itself from its obligation to comply with this agreement in the township of Nankin and other towns through which it passed because the passenger intended to take a through passage to some other „ place.

The Nankin franchise was granted April 16, 1895. It purported to authorize the defendant to construct and operate its railway along the “ Chicago Road,” so called, through, the township, and provided that “the rate of fare for any distance on the line of said railway within the said township of Nankin shall not exceed five cents.” The village of Wayne forms a part of said township, and for all township purposes the village is represented on the township board by the township officers. Under the terms of the franchise, any person has the right to ride on defendant’s cars from any point in the village to the township line in either direction, or from any point in the township to any other point therein, though he might pass through the village of Wayne, for a 5-cent fare. But defendant claims that on December 7, 1897, it obtained a franchise from the village of Wayne which entitles it to charge an extra 5-cent fare within the village limits. The clause in the village franchise under which this right is claimed reads:

“The said grantee corporation, its successors and assigns, shall be entitled to charge at the rate of one and one-half cents per mile, except as hereinafter provided, for the carriage of any single passenger for one continuous trip over said railway on Michigan avenue between any two points on its line between the city of Detroit and the city of Ann Arbor: Provided, however, that no passenger shall be carried for a less fare than five cents for any distance.”

This is not the grant of a right to charge 5 cents extra for riding through the village of Wayne. The object of this proviso was to enable the defendant to exact 5 cents for any short trip which would otherwise amount to less than that sum at 1£ cents per mile. This is not in conflict with the franchise granted by the township of Nankin.

In reference to the ticket which the plaintiff tendered to the conductor .for the trip from' Inkster to Detroit, it appears that the franchise agreed to by defendant with the township of Dearborn contained the following:

“ Said grantee shall charge not to exceed the following rates, to wit: * * * From any point in said township west of St. Joseph’s Retreat to Woodward avenue, in said city [Detroit], or any intervening point west of Woodward avenue in said city, single cash fares of twenty cents, good either way; two tickets for thirty-five cents, good either way; strip of five such tickets for sixty-five cents, good either way; * * * and all such tickets shall be kept for sale by said company upon each and every car operated by said company.”

The village of Inkster is situated in the town of Nankin, on the line between Nankin and Dearborn. The ticket produced by the plaintiff was one of a strip of five tickets, and had printed on the back thereof the words and figures following:

“Detroit, Ypsilanti & Ann Arbor Railway.
“Good for one fare between Inkster and F. & P. M. crossing. ' F. A. Hinchman, Sec’y.”
Also, the following:
“On account of D., Y. & A. A. Ry. Detroit Citizens’ Street Ry.
“Good for one fare bet. F. & P. M. crossing and city hall. F. A. Hinchman, Sec’y.”

The Dearborn franchise not only limits the fare to one of these tickets from Inkster to Woodward avenue, but the plaintiff produced the ticket, indorsed by the secretary of the defendant company, which entitled him to the passage. The ticket itself was a contract binding upon defendant to accept it for one fare from Inkster to the city hall, Detroit, as it was unrestricted and unlimited.

No other questions need be discussed. The judgment must be affirmed.

The other Justices concurred.


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    PEAKE v. BRADLEY.
    Courts — Jurisdiction—Amount in Controversy — Insolvent Insurance Company — Lien for Assessments — Enforcement.
    1 How. Stat. § 4358, provides that assessments made by a mutual . fire-insurance company upon its members shall be a lien on the property insured. 3 How. Stat. § 6613, provides that circuit courts in chancery shall dismiss every suit concerning property, except suits between partners, suits for the enforcement of mechanics’ liens, suits for the foreclosure of mechanics’ liens, and suits for the foreclosure of mortgages, where the matter in dispute does not exceed $100, with costs to the defendant. Held, that the court properly dismissed a bill by a receiver of an insolvent mutual fire-insurance company to declare a lien on insured property, where' the amount, inclusive of costs, was less than $100.
    Appeal from Ionia; Davis, J.
    Submitted June 22, 1899.
    Decided September 12, 1899.
    Bill by J. Warren Peake, receiver of the Ionia, Eaton & Barry Farmers’ Mutual Fire Insurance Company, against Robert D. Bradley and wife, to declare a lien upon real estate. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      McGarry & Nichols, for complainant.

      E. A. Hawley, for defendants.
   Hooker, J.

The complainant is receiver of a mutual fire-insurance company, and as such receiver made an assessment upon its members, among whom were the defendants,-who, as husband and wife, had joined in taking out two policies of insurance upon property owned by them. A judgment was obtained by him against them, and execution was issued, and returned unsatisfied. Another execution was issued, and levied upon the lands in question, upon which the property insured was situate. The bill of complaint alleges the foregoing facts, and states further that the complainant claims a lien upon said premises under 1 How. Stat. § 4258. The judgment was for $16.52, with costs, taxed at $21.75; and the descriptions indicate that there were 42 acres of the land. The bill alleges that the complainant is without remedy except in equity, and prays that a lien be declared, and the defendants decreed to pay the judgment and costs, and that in default thereof the premises be sold, etc. The defendants demurred upon several grounds.

Section 6613, 2 How. Stat., provides that:

“ Such courts shall dismiss every suit concerning property, excepting suits between copartners, and suits for the enforcement of mechanics’ liens, suits for the foreclosure of mechanics’ liens, and suits for the foreclosure of mortgages, where the matter in dispute shall not exceed one hundred dollars, with costs to the defendant.”

This is such a suit. It is not, as the complainant contends, a case where the jurisdiction is to depend upon the value of the land, as in the cases of Fuller v. City of Grand Rapids, 40 Mich. 395; Huyck v. Bailey, 100 Mich. 223; for it is not a bill filed to prevent a threatened injury to property worth more than $100. On the contrary, it seeks to impose a lien upon it of less than $100, and, as it is neither a mechanic’s lien nor a mortgage, it is within the prohibition of the statute, unless made an exception to such statute by 1 How. Stat. § 4263. The last-mentioned section authorizes the receiver to sue for assessments in the circuit court in actions of assumpsit or debt, but we find nothing to indicate a design to permit the company, if solvent, or the receiver, if it is insolvent, to file bills to enforce such liens in violation of section 6613, if, indeed, such liens could be enforced by proceedings in chancery in any case,' — a question upon which we intimate no opinion.

The learned circuit judge sustained the demurrer, and in so doing committed no error. His order is affirmed, with costs.

The other Justices concurred.


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    UMPHREY v. EMERY.
    Bail in Givil Action — Surrender oe Principal — Satisfaction.
    Where the sureties on a bail bond in a civil action surrender their principal in conformity with the statute providing for such surrender (3 Comp. Laws 1897, §§ 10047-10049),.they are entitled to their discharge as a matter of right, although an execution against the property of the principal is at the time outstanding, precluding the obligee, under 3 Comp. Laws 1897, § 10305, from obtaining a body execution except by order of the court.
    Error to Berrien; Coolidge, J.
    Submitted June 22, 1899.
    Decided September 12, 1899.
    Debt by Philip Umphrey against Harry B. Emery and others upon a bail bond. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error,
    Affirmed.

      O’Hara & O’Hara, for appellant.

      Valentine & Ellsworth and Gore & Harvey, for appellees.
   Hooker, J.

The plaintiff commenced an action for malicious prosecution, by capias, against Henderson, who was arrested, and gave bail to the sheriff, and, subsequently, to the action, defendants being sureties, in the sum of $500. Upon a trial, the plaintiff recovered a judgment for $250 and costs, which.were taxed at $65. The judgment was entered December 3, 1897, and costs were taxed December 8, 1897, and on the same day a fieri facias, returnable December 29, 1897, was placed in the hands of the sheriff.. On December 8, 1897, the defendants produced Henderson before a circuit court commissioner of the county, and caused Henderson to surrender himself in exoneration of his bail, and he was committed to the custody of the sheriff, who received him. On December 16, 1897, counsel for the plaintiff was served with an order to show cause why the bail should not be exonerated, and such order was made on December 20,1897. On December 30, 1897, the fieri facias was returned, and an execution against the body of the defendant, returnable January 20, 1898, was immediately issued and placed in the hands of the sheriff, who on January 21, 1898, returned it non est inventus. Thereupon this action was brought upon the bail piece. Upon the trial the foregoing facts appeared, and it was shown, further, that, after the surrender of Henderson, he remained with the sheriff until about the 20th of December; that the sheriff offered to turn him over to plaintiff’s counsel, and was told that he could not take him until after the expiration of the 20 days mentioned in the fieri facias, and that he would take him immediately upon the return of the writ unsatisfied. On December 20th the sheriff set Henderson at liberty, and he went awa3n Counsel for the plaintiff requested the court to direct a verdict for the plaintiff for $315 and interest from December 8th. This was refused, and a verdict in favor of the defendants was directed.

The surrender and exoneration of bail was made in strict conformity to the statute, which provides for the discharge of the bail upon surrender. 3 Comp. Laws 1897, §§ 10047-10049. “Bail may wholly discharge themselves of their responsibility by rendering their principal, and this may be done either before or after judgment.” Grah. Prac. 436. Again, the author says (page 436): .“Bail above may, as a matter of right, at any time pending the suit or before the return of the ca. sa. against their principal, surrender him in their discharge, and may plead this surrender in any action against them,” • — citing the case of Brownelow v. Forbes, 2 Johns. 104.

Counsel for the plaintiff assert that under the statute (3 Comp. Laws 1897, § 10305) the plaintiff was not entitled to an execution against the body until the return of the fieri facias, and that the bail had no right to demand it. Under the statute it is a matter of indifference to the bail what course the plaintiff shall pursue. The right is given to surrender the defendant to the sheriff, who is authorized to keep him until duly discharged, and when this is done, and the order exonerating bail duly made, the question of what disposition shall be made of the defendant is between the plaintiff and sheriff. If the sheriff discharges him improperly, he is liable to the plaintiff. Counsel seem to contend that they are embarrassed by having the defendant imprisoned before they are ready to take out an execution against the bodjq which they appear to concede might have been done before the return of the fi. fa. by obtaining an order of court, under section 10305; but we cannot see that the embarrassment is greater, than as though the surrender had been made before judgment. The statute, however, gives the bail the right to a discharge upon certain conditions, and, those having been performed, they need not concern themselves with the wishes or convenience of the plaintiff.

We find no error, and the judgment is affirmed.

The other Justices concurred.


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    PEOPLE v. GILMAN.
    1. Conspiracy to Defraud — Materializing Seanoe.
    Persons agreeing together to attempt to deceive the general public by conducting “materializing seances,” and masquerading as spirits of the dead, may be charged with conspiracy to defraud any individual who pays money to witness the proceedings.
    2. Same — Failure to Deceive.
    It is not, requisite to the completion of the offense that the person paying the money should actually have been deceived.
    3. Same — Obvious Fraud.
    A conspiracy to defraud by false pretenses is none the less a crime because the means employed are not calculated to deceive persons of ordinary intelligence.
    Error to recorder’s court of Detroit; Chapin, J.
    Submitted June 22, 1899.
    Decided September 12, 1899.
    E. Medford Gilman was convicted of conspiracy to defraud, and sentenced to imprisonment in the Detroit house of correction for two years.
    Judgment affirmed.

      E. J. Jeffries, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of the offense of conspiring with others to cheat and defraud one Edwin H. Sadler of the sum of one dollar. The proof showed that the defendant professed to be a materializing medium, and gave “materializing seances,” in which he was assisted by others mentioned in the proof. Sadler was a detective, and attended with another detective. Before the proceeding began, defendant said that the usual collection of one dollar would be taken up, and Sadler, among others, paid a dollar. During the proceedings Sadler succeeded in exposing the defendant as an impostor.

Counsel for the defendant says that there are two grounds of error relied on:

1. The information does not meet the theory of the evidence, because it is obvious that any conspiracy to defraud that may have existed was not to defraud Sadler, but the general public, and should have been so charged.
2. That no crime was committed, because it was an obvious humbug, which could not, in the nature of things, deceive any rational being.

It is apparent that the conspiracy to cheat was not specially aimed at Sadler when the scheme was concocted, but at such persons as might be induced to attend the meetings. It may be that no particular persons were in view, and, had no one attended the meeting, no one could have been named as an intended victim, although the offense of conspiracy would have been complete. An indictment in such case might charge a conspiracy to cheat “ the citizens or inhabitants of the State and others,” as in the case of Clary v. Com., 4 Pa. St. 210; or “such persons as should become purchasers” (Com. v. Judd, 2 Mass. 329 [3 Am. Dec. 54]). But where the conspiracy has been carried out, and money has been obtained from some person in consequence of it, the overt act has shown and made certain what was uncertain before, viz., the person whom it was the conspirators’ intention to defraud. See People v. Arnold, 46 Mich. 273.

Counsel cites the case of U. S. v. Fay, 83 Fed. 839 (46 Cent. Law J. 251), in support of the second point. In that case Howard paid the defendant $50 upon the pretense that, through supernatural power of mental vision possessed by him, he could and would find, and inform him, Howard, of hidden treasures upon his farm. The defendant was arrested upon the charge of using the United States mail for “ a scheme to defraud.” Upon motion the court quashed the indictment, upon the ground that—

“ Such a scheme manifestly must involve something in the nature of a plausible device, — some such device as in itself is reasonably adapted to deceive persons of ordinary comprehension and prudence. A manifest hoax and humbug, like a proposition to take a person on a flying trip to the moon, to fit out a traveler for a submarine voyage to China, or any other scheme' which belies the known and generally recognized laws of nature, cannot, in the nature of things, deceive any rational being. * * * There is a marked distinction between a case of this kind, involving, as it does, a physical impossibility, and' one related to religious, moral, or ethical tenets. A scheme to defraud, planting itself upon, and seeking to take advantage of, such tenets, entertained as they are by large numbers of people, has ’been held to be within the contemplation of the federal statutes, and with this class of cases I have no fault to find. * * * Because there is no scheme set out in the indictment reasonably adapted to deceivé persons of ordinary prudence, I am of the opinion there is no scheme to defraud, within the meaning of the statute in question.”

We are not disposed to criticise this construction of a statute that is not before us, but we ¿re of the opinion that it should not be said, as a matter of law, that a citizen is not a rational being, even if he be entrapped by cheats and false pretenses which would not deceive persons of ordinary intelligence! The law is more necessary to the protection of the unwary and simple-minded, who are not looking for duplicity and deceit, than shrewder persons. Designing persons do not ply their nefarious vocations among the latter class, but seek for victims among those whose credulity makes them more easily deceived. We cannot agree with counsel in considering those who believe in the theories of spiritualism to be idiots, and, if we could, we should hesitate to say that one who conspired to cheat them would not be guilty of a crime.

It is said that the information charges a conspiracy to defraud one who could not be defrauded, because he knew the representations to be false. The conspiracy is complete when it is formed, and the guilt or innocence of the conspirators does not depend upon the success of the enterprise. They carried out tbeir scheme, and obtained money from Sadler and others, which shows that he was an object of the conspiracy, though not necessarily a victim of it.

We find no error, and the judgment is affirmed.

The other Justices concurred.