text:
    T. WILCE CO. v. KELLEY SHINGLE CO.
    1. Contracts — Furnish or Manufacture.
    A contract by a mill owner to furnish a certain quantity of lumber of specified kinds and dimensions, and pile the same in his yard, does' not require him to manufacture it in his mill.
    2. Sale of Lumber — Acceptance in Cargo Lots.
    A mill owner with mill capacity of 20,000,000 feet for a season, and yard capacity for 4,000,000 feet, contracted to furnish defendant with various kinds of lumber to the amount of 4,000,000 feet, cross-pile it in the yard for 60 days, and freight same to any port at going rates. Defendant agreed to take the lumber after being piled 60 days, and have the “ deal cleaned up” by November 1st; terms of sale, 60 days from shipping. Held, that defendant was obligated to accept the lumber in vessel lots as soon as sufficient had been piled for 60 days.
    3. Same — Divisible Contract.
    Such contract is divisible, but contains no agreement requiring plaintiff to furnish proportionate quantities of each kind of lumber in each cargo lot.
    4. Same — Change in Contract — Time of Delivery.
    Where under such contract defendant, on account of the dullness of the market, has obtained a waiver of the time of delivery, it cannot insist on the provision requiring plaintiff to have the lumber piled and ready for shipment on September 1st.

      5. New Trial — Consent to Instruction.
    A new trial will not be granted upon an ‘erroneous charge to which both parties consented.
    Error to Grand Traverse; Mayne, J.
    Submitted February 19, 1902.
    (Docket No. 36.)
    Decided April 8, 1902.

      Assumpsit by the T. Wilce Company against the Kelley Shingle Company for the breach of a contract of purchase. From a judgment for plaintiff, defendant brings-error.
    Affirmed.
    Plaintiff, an Illinois corporation, owns and operates a. large lumbering plant at Empire, Mich., with lumber yard, docks, timber supply, and a railroad extending from the mill through its timber land. Defendant, a Michigan corporation, is engaged in the business of buying and selling lumber, with its principal office at Traverse City, Mich. The capacity of plaintiff’s mill was 100,000 feet per day. Its lumber yard, in the vicinity of its mill, has-a capacity of 4,000,000 feet, and 5,000,000 feet could be piled in it, by transferring some of the lumber a half mile. Empire had no railroad connection, and all lumber was shipped by vessel. Plaintiff manufactured and sold lumber for other parties during that season, and had all the work it could do. The parties entered into the following agreement:
    “This contract, made this 30th day of January, 1900, by and between the T. Wilce Co., of Chicago, 111., parties of the first part, and the Kelley Shingle Co., of' Traverse City, Mich., parties of the second part.
    ‘ ‘ Parties of the first part hereby agree to furnish parties of the second part four (4) million feet of hemlock lumber, over rail of boat at Empire, Mich. Parties of the second, part hereby agree to pay for same as follows: One million (1,000,000) feet of one-inch merchantable hemlock at $10.50 per M.; two million two hundred and fifty thousand (2,250,000) feet of two (2) inch merchantable hemlock, 10, 12, 14, and 16 feet, at $10 per M.; four hundred and fifty thousand (450,000) feet of two (2) inch merchantable hemlock, 18 and 20 feet, at $10 per M.; three hundred thousand (300,000) feet of two (2) inch merchantable hemlock, 22 and 24 feet, at $10 per M.; six and eight feet and mill culls at one-half price. Above lumber to be inspected by L. E. Collins & Co., of Empire, Mich. Each party to pay one-half inspection fees. Terms of sale, 60 days net from date of shipping. Parties of the first part agree to cross-pile this lumber sixty (60) days, and also agree to freight same to any port at the going freight rates. Parties of the second part agree to take this lumber after being in pile for sixty (60) days, and to have the deal cleaned up by the first of November, 1900.”
    Plaintiff entered upon the performance of the contract. In May plaintiff notified defendant that two cargoes were ready for shipment. On May 24th defendant wrote plaintiff, asking for a rate of $1.50 per thousand. Plaintiff answered the letter the following day, saying that $1.50 was too low, and offering to carry it for $1.75; again saying to defendant that it had a cargo of one-inch and a cargo of two-inch ready, and wanted to move it, and further saying:
    “If you will let us do [ship] this at once, we will freight it at this rate, but could not guarantee to do so later on at this figure, as we feel freights will be up.”
    To this defendant replied May 29th:
    “Replying to yours of the 25th: We instructed our salesman to dispose of one-half million feet of hemlock from Empire, based on our paying a dollar fifty freight, and we will not have any difficulty in getting this rate from some of the coal boats that are up north, for there is a number of schooners laying around Charlevoix, waiting for loads going east, all of the time, and it has been a snap, as far as rates have been concerned, so far this season. Now, if you cannot see your way clear to carry this stock at this rate, of course, you cannot object to our giving it to some other boat. We understand from Mr. Dailey that this stock is now dry, — that is, a large proportion of the one-inch was cut last ’fall, — and you want to take this into consideration when making the rate. Of course, we would not expect, if you made a rate upon this first load of $1.50 per M., that this would establish a rate for the season in case rates advance, but would be for this load only.
    “Awaiting your reply, we remain.”

      To this letter’, on May 31st, plaintiff replied:
    “Your favor of the 29th received, and contents fully noted. In regard to our freighting the hemlock from Empire at $1.50, will say we would not do it; would want $1.75. If you can get it freighted for that, we have no objections to your doing so. The only thing we want is to get the stock moved at once, so don’t disappoint us in this respect.
    “ We notice you state in your letter that there is only half a million ready at Empire. The writer’s recollection is that thére is a cargo of one-inch and a cargo of two-inch. We would like to move both cargoes as soon as possible, so kindly do so.”
    On June 5th defendant again wrote plaintiff as follows:
    ‘ ‘ Replying to yours of the 31st: We will not experience any difficulty in obtaining tonnage at $1.50 per M. feet on hemlock from Empire to Detroit or Toledo. The only trouble we are experiencing now is to get some one to take the stock. The dictator just returned from those two points, and expected to be able to make a price when there to move at least one-half million,- — -the amount that Mr. Dailey wished us to ship out at once. But it is not a matter of price at the present time. The yards have no use for the stock, and it was impossible to make a price that would induce any one to buy. Now, we are in correspondence with a number of concerns further east, and we hope to be able to close out at least a half a million soon, and we will assure you that we are going to do our best to move this stock, and reasonably prompt. But you fully realize the situation at this time. It is not a matter of price, but there is no demand, and, as long as this condition exists, we cannot hope to move the stock very rapidly. Wé do not expect that this dullness is going to exist all the year. However, we do expect that there is not going to be but a very little trade until about the first of September, for we always look for a dull lumber trade during July and August. It seems to us that on account of there not being a demand for stock this spring, and but very little having been sold, that there certainly will be a good, brisk trade this fall. We are going to take this stock and move it as near according to contract as possible, but you will have to, in return, show some leniency in reference to the time of shipment; for you realize that, when there is no trade, that it is a matter of impossibility to move stocks. Trusting that you will bear with us in this matter, we remain.”
    To this plaintiff replied:
    “We will say, however, that, if it is any object to you for us to hold this lumber for some time, we would do so, but would insist upon same being paid for, as we do not think it is just and right for you to ask us to hold the •stock after it is ready for shipment, without receiving our money.”
    June 22d the defendant claimed that some of the lumber was improperly manufactured, and plaintiff executed an agreement to reimburse defendant for any reduction in price it might have to make in disposing of the lumber to its customers. August 30th the defendant sent two of its members to plaintiff’s mill to examine the lumber. They found that the entire 4,000,000 feet had not been manufactured, and on September 1st defendant wrote plaintiff as follows:
    “ Dear Sirs: In view of the fact that you have made default in manufacturing lumber under contract with us bearing date January 30, 1900, and have not placed all the lumber in cross-pile on September 1st, according to the said contract, by reason of which default we will be unable to move the stock this season according to agreement, we hereby declare said contract void, and refuse to accept any lumber thereunder.”
    This letter was the first intimation to plaintiff that defendant did not intend to accept and ship the lumber. Plaintiff replied September 4th, demanding that defendant commence moving the stock by September 20th, and notifying it that, unless this was done, plaintiff would sell to the best advantage, and charge defendant with the difference. Defendant refused to do so, and this suit was brought to recover damages for breach of the contract by defendant. Plaintiff gave evidence tending to show that it had piled in its yard all the lumber required by the contract, except about 250,000 feet, and defendant claimed that the deficiency was much greater. During the season the price of lumber had materially declined. Plaintiff' sold, before suit was brought, 995,000 feet, on which the difference between the contract price and the market price was $3,136.36. Plaintiff recovered verdict and judgment.

      Pratt & Davis and Patchin & Orotser, for appellant.

      Smurthwaite & Foster and A. F. Bunting, for appellee.
   Grant, J.

(after stating the facts). While there-are 49 assignments of error, the questions upon which the-right of recovery turns are but few, and depend almost entirely upon the construction to be placed upon the contract.

It is contended by counsel for the defendant that by the contract plaintiff was bound to manufacture the lumber at its mill, while plaintiff insists that it was at liberty to obtain the lumber where it chose, so long as it was of the character and kind specified in the contract. The contract contains no language indicating a contract to-manufacture the lumber at the plaintiff’s mill. Plaintiff’s contract was to furnish to the defendant 4,000,000 feet of' lumber. To “furnish” does not mean to manufacture. It is a fair construction, from the use of the word, that plaintiff desired to guard against many contingencies that might arise if it agreed to manufacture the lumber at its-own mill. The mill might burn, other accidents might happen, or other things occur which would render it impossible for plaintiff to execute the contract. If it contracted to manufacture without guarding against such contingencies, it would be bound by its contract to do so. The contract is too plain to require construction. Plaintiff had the right under it to manufacture or buy the lumber for the defendant. Its contract was to furnish, not to manufacture.

It is next contended that the plaintiff was under-obligation to cross-pile all the lumber in its yard, to do this by Sfeptember 1st, and that defendant was under no-obligation to accept or ship any of the lumber until after-that date, and it was all piled in the yard ready for shipment. We are of the opinion that this construction should not be placed upon the contract, and that the defendant obligated itself to accept and have the lumber shipped in vessel lots as soon as sufficient had been piled for that purpose for 60 days. The capacity of plaintiff’s mill was 100,000 feet per day. The capacity of its yard in the vicinity of its mill was about 4,000,000 feet. But 5,000,-000 could be piled upon its grounds by moving lumber a half a mile. The capacity of the mill for this season would have been over 20,000,000 feet. Defendant knew that plaintiff was manufacturing other lumber in large ■quantities. The letters and conduct of both parties show that the contract was so understood.

It is next urged that if this contract was divisible, and defendant was bound to accept it in cargo lots, each cargo should contain proportionate quantities of each kind of lumber. Counsel cite Crowl v. Goodenberger, 112 Mich. 683 (71 N. W. 485), as sustaining this contention. If this were an indivisible contract, and plaintiff had bound itself to furnish the entire amount before any was shipped, ■that case would apply and be controlling. In that case it was held that the defendant was “bound to tender the whole amount of the lumber, as plaintiff was not bound to accept a part only.” In this case, as above stated, defendant was bound to accept it in parts. Plaintiff would have performed its contract by furnishing the proper quantities of the various kinds before the time fixed for its completion. If defendant had directed the proportions to be furnished for each cargo, a different question would be presented.

It is next contended that it was the duty of the plaintiff to have all the lumber cross-piled and ready for shipment on September 1st, notwithstanding that the defendant had asked not to have the lumber shipped as provided, and had requested plaintiff to consent to delay. We cannot concur in this view. On account of the dullness of the market, and probably the fall in price, defendant asked forbearance on the part of the plaintiff in holding it to shipments as the contract required. This was evidently granted. It undoubtedly changed the obligation of each party to the contract. Defendant obtained a waiver of the time for shipment, which was made definite-by the contract. Under this modification it would have a reasonable time in which to ship. It must follow that the contract was also modified in regard to the time of furnishing. Defendant had delayed shipping for three months, and now seeks to repudiate the contract because on September 1st plaintiff did not have the entire amount on hand to ship. Under plaintiff’s testimony, it could have furnished the balance of the lumber in a very short time, and not have delayed the defendant in the shipment of it, even if it could have shipped the entire amount between September 1st and November 1st, — a matter of considerable doubt under the evidence.

Upon the trial counsel for defendant conceded the-rule of damages applicable to the case to be the difference between the market and the contract price. Thus by the-consent of both parties the case was submitted to the jury upon that theory. Counsel made a motion for a new trial, alleging as an error that this direction did not state the correct rule of law as applicable to the lumber which-plaintiff did not have on hand at the time of the breach of the contract, and which it would have been compelled to obtain by purchase, but that the rule would be the differerence between the contract price and the cost of purchasing and delivering the same in its yard at Empire. The-court refused the motion. We do not think that, where the question was submitted to the jury by the consent of both parties as to the rule of law, the winning party should be put to the expense of a new trial, even if the direction were wrong, upon which we express no opinion. We concur in the conclusion of the court below in refusing a new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    RIGGS v. WHITAKER.
    1. Husband and Wife — Fraudulent Conveyances.
    In a suit by a trustee in bankruptcy against the debtor and his wife to set aside a deed to her as fraudulent, it appeared that, while in debt, he had sold certain lands, and soon after conveyed a large amount of real estate to his wife, which was largely in excess of the value of her interest in the lands sold. At the time she did not consider or pass any judgment upon the value of her interest in the lands sold, though she knew that her husband was largely in debt. Held, that the deed could not be sustained on the ground that it was given as the consideration of her joining in the conveyance of the lands sold.
    2. Same — Evidence.
    In a suit against husband and wife, the testimony of the husband, given in another suit, is incompetent against the wife.
    3. Evidence — Insolvency — Officer’s Eeturn — Invalid JudoMENT.
    An officer’s return of nulla bona to an execution fair on. its face is evidence tending to show the insolvency of the debtor, even if the judgment upon which it was issued might not have proven valid had some one seen fit to attack it.
    Appeal from Wayne;-Donovan, J.
    Submitted February 20, 1902.
    (Docket No. 120.)
    Decided April 8, 1902.
    Bill by Frank J. Riggs, trustee of the estate of George H. Whitaker, bankrupt, against Sarah F. Whitaker and George H. Whitaker, to reach property alleged to have been transferred in fraud of creditors. From a decree for complainant, defendant Sarah F. Whitaker appeals.
    Affirmed.

      M. J. Lehmann (Keena & Lightner and Walter E. Oxtohy, of counsel), for complainant.

      Graves & Hatch, for appellant.
   Montgomery, J.

The bill was filed in this case by-Frank J. Riggs, as trustee in bankruptcy of George H. Whitaker, to reach certain property standing in the name of Sarah F. Whitaker, wife of George H. Whitaker, alleged to have been transferred to her in fraud of creditors, and to reach the proceeds of certain other property which had been conveyed to her, but the title of which has passed out of her hands. The circuit judge granted the relief prayed, and -defendant Sarah F. Whitaker appeals.

The testimony of George H. Whitaker, given on the trial of the case of Luitje against Whitaker, was received in evidence. We think this testimony was incompetent as against Sarah F. Whitaker. See Blanchard v. Moors, 85 Mich. 380 (48 N. W. 542); Whelpley v. Stoughton, 119 Mich. 314 (78 N. W. 137). The case will be determined, therefore, without reference to the testimony given by Mr. Whitaker.

The testimony shows that in 1897’George H. Whitaker was the owner of a terrace of dwelling houses on Second avenue, in Detroit, of the value of about $50,000. This property was covered by three mortgages, — one of $25,000, one of $4,000,"and one of $3,500, making a total of $32,500. Whitaker was also owner of a house and lot on Second 'avenue, in Detroit, valued by witnesses at from $7,000 to $14,000, but probably worth, as near as we can judge, about $10,000. Whitaker effected a sale of the terrace property to P. A. Ducey. The evidence is not quite clear as to what was realized upon this property. The value of the equity, as shown by the record, was about $17,500. But it is certain that Mr. Whitaker received a deed for 12 lots in Wesson & Ingersoll’s addition to Detroit; also a contract to transfer 24 lots in the same location, worth, according to the estimate, $7,200, with $5,000 against them, or $2,200 net. The testimony is not clear, although it is claimed by the defense to show that he received also about $6,000 in money.

There is no doubt upon this record that Mr. Whitaker was indebted in large sums at this time; nor is there any doubt in our minds that he was insolvent. Many technical questions are raised as to the character of the testi- ' mony offered to show the insolvency of Mr. Whitaker. Among others, it was shown that an execution was returned nulla bona, — an execution regular on its face. But it is sought to break the force of this return by raising technical objections to the judgment upon which the execution issued. The evidence of the officer’s return implies, however, an effort on his part to make the amount of the judgment, under a writ valid upon its face; and the value of this evidence is not detracted from by a discovery, made by counsel years afterwards, that, had somebody seen fit to attack the judgment, it might not have proven valid.

Nor is there any doubt that Mrs. Whitaker knew of her husband’s indebtedness. She testified as follows:

“I never gave the debts very much thought at all. I thought it was paying pretty well, and I hated to have him sell it. I never knew anything about Mr. Whitaker’s business at all. When I thought about it, I knew that Mr. Whitaker was dealing with these men, and was largely in debt. ”

It appears that, with this knowledge of her husband’s affairs, Mrs. Whitaker claims that an agreement was made, at the time she joined in the .deed of the terrace to Ducey, that she should receive, in consideration of so joining in the deed, a deed of the house and lot on Second avenue, the equity in which was, say, $5,000, and the 12 lots received by him from Ducey, in Wesson & Ingersoll’s addition to Detroit. Four of these lots were afterwards conveyed to Mr. Gavett in exchange for a cottage. The Gavett cottage, the Second-avenue property, and the remaining lots were deeded to Mrs. Whitaker. She claims that this conveyance was made in consideration of her joining in the deed. She testifies as follows:

Q. What do you understand to be your dower in the property ?
“A. I never gave any attention to it. I don’t know what it means. I supposed that it meant one-third.
Q. You did not have any idea what it meant, or what its value was ?
“A. I didn’t think anything about it. If he sold the terrace, I wanted him to give me a certain amount.
Q. Without any regard to your dower right ? That you have not in mind ?
A. No, I never thought anything about my dower interest.
Q. Now, why, if you were to have these lots about the time that the deal'was made with Ducey, for signing the deed to him, why didn’t you have them ?
“A. I don’t remember whether he did .deed them right to me right away or not. That was his business. I paid no attention to it. I would have to look up when they were deeded to me. But I always trusted Mr. Whitaker. He never deceived me, and, if he said that he would do it, I never had to bother my head about it after that.”

On the trial before Judge Rohnert she testified:

‘ ‘ Q. What do you understand to be your dower in the property ?
“A. I gave no attention to it. I did not know what it means. I suppose it means one-third.
Q. You did not have any idea what it meant, and what its value was ?
“ A. I did not think anything about it. If he sold the terrace, I wanted him to give me a certain amount.
Q. And that is all you had in your mind ?
“A. Yes, sir; for myself and children.
Q. Without any regard for your dower right, if you had any in mind ?
“A. No, sir; I never thought anything about my dower interest.”

It is insisted that Mrs. Whitaker had the right to make the best bargain she could, and that, if she actually, made a contract to deed away what interest she had in this, property, in consideration of the conveyance to her of the property involved in this suit, creditors cannot complain. There may be limits within which such a contention could be allowed. But an insolvent debtor must be just before he is generous. In the view we take of this transaction, it was not in the nature of a bargain at all. It is very evident that Mrs. Whitaker never weighed the valu’e of her interest in the terrace property, or sought to consider it. It is evident that she knew of her husband’s indebtedness, if not of his insolvency. As we read the record, both parties doubtless felt that it would be safer to have this property in Mrs. Whitaker’s name, and it was placed there. The transaction operated to defeat creditors of their rights, and they have the right to complain.

It is strenuously insisted that the evidence does not show that Mr. Whitaker did not retain sufficient money to pay his indebtedness. But, without reciting the testimony at length, we think it is perfectly manifest that he was insolvent at the time this transfer occurred, and has remained so until the present date.

It is urged that complainant has been guilty of laches. But we think no such laches is shown as cuts off the right to set aside this transaction.

The decree protected the interests of Mrs. Whitaker to the extent of the improvements she had put upon the property, subrogated her to the rights of the mortgagee in the mortgage she had discharged, and protected her homestead right. We think the decree fully protects all her equitable rights, and should-be affirmed.

Hookee, C. J., Mooee and Geant, JJ., concurred. Long, J., did not sit.


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    FIRST NATIONAL BANK OF COOPERSTOWN v. STATE SAVINGS BANK OF IONIA.
    1. Execution Sale — Unrecorded Deed — Priority.
    A sale of land on execution entitles the purchaser to priority over a vendee whose deed was not recorded until after the notice of levy had been filed, and of whose claims the party in interest had no notice.
    2. Partnership — Title to Lands.
    A person dealing with one member of a partnership has a right to assume that land conveyed to the members of the firm by deed which contains no notice that the grantees are partners is held by them as tenants in common, although it is in fact partnership property.
    3. Note by Firm — Renewal by Surviving -Partner.
    A creditor, of a firm, who accepts in place of the firm obligation the individual note of the surviving partner, which is extended from time to time, thereby loses his right as a partnership creditor.
    Appeal from Montcalm; Davis, J.
    Submitted February. 21, 1902.
    (Docket No. 26.)
    Decided April 8, 1902.
    Bill by the First National Bank of Cooperstown, New York, against the State Savings Bank of Ionia and John Peter Johnson, to remove a cloud from title. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William K. Clute, for complainant.

      George JE. & M. A. Nichols, for defendant bank.
   Montgomery, J.

This case has once been before the court on demurrer to the bill of complaint, and is reported in 123 Mich. 321 (82 N. W. 125), to which reference should be had for an understanding of some of the questions involved. As the case was there presented, we held that, upon the face of the bill, the complainant was entitled to relief, but the case was remanded, with leave to the defendants to answer over. An answer has since been filed, and the case determined upon proofs taken, and the bill dismissed. Complainant appeals.

As the case is now presented, the following facts appear: Prior to October, 1889, Amos Bissell and George N. Bis-sell were general copartners under .the firm name of Amos Bissell & Son. The land which is the subject of this controversy was in fact copartnership property, but was deeded to them as tenants in common by Oscar Demott on November 19, 1869, by a warranty deed, which was of record. In October, 1889, Amos Bissell died. On December 27, 1892, George N. Bissell and Hannah Bissell made a contract with defendant John Peter Johnson to sell him the land for $629.40. On September 26, 1893, George N. Bissell assigned this contract to his wife, Hannah Bissell, as security for the repayment of her notes loaned to him. On November 14, 1893, Hannah Bissell assigned this contract to complainant. On November 23, 1893, George N. Bissell, individually and as survivor of the firm of Amos Bissell & Son, conveyed to one Brooks, as receiver of George N. Bissell individually and of said firm, the land in question. On November 20, 1894, said Brooks, as receiver, executed a deed to Philip H. Potter. These two last-mentioned deeds were recorded April 2, 1895, after the levy of defendant, hereinafter referred to. On March 3, 1898, George N. Bissell, by quitclaim deed, conveyed to complainant. On the same date the heirs of Potter conveyed to complainant. The defendant bank caused a levy to be made on this land on December 19, 1894, and a sale under the execution was made on April 15, 1895.

The first question presented is as to the effect of these conveyances. The statute (3 Comp. Laws, § 9224) provides for the filing of notice of a levy with the register of deeds, and further provides that, upon such notice being filed, “such levy shall be a lien thereon from the time when such notice shall be so deposited; and the lien thus obtained shall, from the filing of such notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.” This statute scarcely requires construction, and it is clear that as to rights claimed by virtue of conveyances from George N. Bissell, directly or indirectly, and not recorded at the time the levy was made, the defendant’s levy is entitled to priority. See Corey v. Smalley, 106 Mich. 257 (64 N. W. 13, 58 Am. St. Rep. 474).

The next question is whether the complainant is entitled to priority over the defendant as a firm creditor. As before stated, the conveyance to the Bissells gave no indication upon the face of the record that the parties were other than tenants in common. There was no notice that the two grantees were copartners, and, under such circumstances, the creditor levying on the land would be justified in assuming that the lands were held by the two parties as tenants in common. See Hammond v. Paxton, 58 Mich. 393 (25 N. W. 321). But the claim is made that the evidence showed that there was actual notice that these were copartnership lands. Unfortunately for this contention, the complainant’s evidence fails upon this branch of the case. Mr. Lemuel Clute was a witness in his lifetime, and the question of notice depended upon his recollection and that of Judge Vernon H. Smith, the president of the defendant bank. Judge Smith does not recollect any conversation in which notice of the copartnership was given to him, nor that he had any knowledge of it prior to the time of the levy and sale under the execution. Mr. Clute’s testimony, while entirely candid, was of a distinctly negative character. He testified:

“ It seems to me that the judge and I must have talked it over on that theory. If he didn’t say that he didn’t recollect it as such, I should feel sure that we did. That is all.”

We think that this testimony is not sufficiently positive to justify us in basing a finding upon it, — certainly not sufficient to justify us in overturning the conclusion of the circuit judge. We find, then, that on the face of the record there was no notice that these lands were copartnership lands. The defendant had the right to assume that the parties were tenants in common. George N. Bissell was the sole heir at law of his father, and the title was fully vested in him, subject only to the rights of creditors •of Amos Bissell, who, as such, should .pursue his property.

But it is claimed that this complainant is entitled to a prior equity by reason of its position as creditor of the firm of Amos Bissell & Son; and, upon the averments as made in the bill of complaint, this court, when the •case was-here before, intimated that such equity existed. But the case presents itself in a very different aspect after the proofs have been introduced. It appears now that Amos Bissell died in 1889; that the complainant then held a claim against Amos Bissell & Son; that, after the death of Amos Bissell, new notes were accepted from time to time, made by George N. Bissell, indorsed by Hannah Bissell and Amos Luther, until 1893, at which time judgments were taken against these parties upon the notes. Can it be said'that these obligations so sued upon were firm debts ? We think not. It was not within the power of the surviving partner to continue to give firm paper after the dissolution of the copartnership by the death of one member. See Matteson v. Nathanson, 38 Mich. 377; Potter v. Tolbert, 113 Mich. 486 (71 N. W. 849). And while it may be a question of fact as to whether it was the intention to discharge the estate, yet, in view of the fact that George N. Bissell was the sole heir of the deceased partner, and was continuing the business in a manner entirely unauthorized by the law relating to the winding up of copartnership affairs, it must, be assumed that the complainant, in continuing to extend this paper from time to time, elected to accept his personal responsibility, rather than that of the estate of the deceased partner. See Childs v. Pellett, 102 Mich. 558 (61 N. W. 54); Smith v. Shelden, 35 Mich. 42 (24 Am. Rep. 529). It must be held, then, that the bank, in. accepting the assignmenc from Hannah. Bissell, received it, not in payment of a debt of the late copartnership, but in payment-of a debt of George N. Bissell, upon which Hannah Bissell was a surety.

The decree dismissing the bill will be affirmed, with costs.

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


text:
    MORRIS v. WAYNE CIRCUIT JUDGE.
    1. Partition of Lands in Chancery — Plage of Sale.
    In partition proceedings in chancery, where the lands are situate in different counties, the court may direct a sale to be-made in the county where the decree is rendered.

      2. Same — Notice of Sale.
    Section 11063, 3 Comp. Laws, requires such notice of a partition sale in chancery proceedings as must be given by sheriffs on execution sales, but does not provide where the sale may take place.

      Mandamus by James Morris to compel Joseph W. Donovan, circuit judge of Wayne county, to order the return of a down payment on a sale in partition proceedings.
    Submitted February 24, 1902.
    (Calendar No. 19,220.)
    Writ denied April 8, 1902.

      Walter Barlow, for relator.

      Lucius H. Collins, for respondent.
   Montgomery, J.

The sole question presented in this case is whether, in a proceeding for a partition of lands, the circuit court in chancery having jurisdiction of the subject may, where the lands in question are situated in different counties, direct a sale of all the land in the county where the court sits. The statutes hearing upon this subject are 3 Comp. Laws, §§ 11014, 11045, 11063, and 11068. Section 11014 provides, among other things, that:

‘ ‘ In case such lands are situated in different counties, the suit may be instituted in the circuit court for any one of the counties in which any part of such lands may be situated, and such court shall "have complete jurisdiction in the premises, as fully and effectually as if the whole of such lands were situated in the county in which the suit is instituted.”

Section 11045 provides that:

“ If the commissioner to whom reference shall be made * * * shall report to the court that all the lands or tenements of which division and partition is sought are so situated, or that any district, tract, lot, or portion thereof is so situated, that a partition and division thereof amongst the persons interested therein cannot be made without great prejudice to the owners, and if the court shall be satisfied that such report is just and correct, the court may thereupon make an order that the commissioner sell the premises so situated at public • auction to the highest bidder. ”

Section 11068 provides that “ such conveyances, so executed, shall be recorded in the pounty where the premises are situated.”

It will be seen that there is no express provision as to where these lands shall be sold; but the provisions quoted would seem, by clear implication, to authorize the sale in the county where the proceeding is launched; and this is not against the policy of the law, for in foreclosure cases, where lands are situated in different counties, the sale takes place in the county where the decree is rendered. 1 Comp. Laws, § 522.

It is insisted by relator, however, that section 11063 requires the sale to be had in the same manner as is required by law on sales of real estate by sheriffs on execution. This section reads as follows:

“ The master shall give notice of any sale to be made by him for the same time and in the same manner as is required by law on sales of real estate by sheriffs on execution.”

This section cannot be construed as providing a place where the sale may take place, or as affecting in any way the manner of sale. It distinctly relates to the subject of notice, and requires such notice as is required to be given by sheriffs on execution sales.

We think the statute as a whole, and by clear implication, authorizes the sale that was made in this case, and the writ will be denied, with costs.

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


author: Per Curiam.

text:
    LONG v. IONIA PROBATE JUDGE.
    Drain Assessment — Appeal by Township.
    Under section 2 of chapter 5, Act No. 272, Pub. Acts 1899, providing that a township, when it conceives itself aggrieved by the assessment made by the drain commissioner, may appeal within 10 days, and that the supervisor of any town ship desiring to appeal may make the application for appeal, the supervisor is the proper person to determine whether the township conceives itself aggrieved and desires to appeal.

      Certiorari to Ionia; Davis, J.
    Submitted March 18, 1902.
    (Calendar No. 19,178.)
    Decided April 8, 1902.

      Mandamus by Isaiah Long, supervisor of the township of Campbell, to compel William O. Webster, judge of probate for the county of Ionia, to entertain an appeal from an assessment by the drain commissioner. From an order denying the writ, relator brings certiorari.

    Reversed.

      R. A. Hawley, for relator.

      William O. Webster, in pro. per.

   Per Curiam.

During the summer of 1901 a county-drain was established. Proceedings were taken for the purpose of apportioning assessments and letting contracts. September 3, 1901, the relator, as supervisor for his township, filed an application with the respondent for the purpose of having said assessment reviewed. The respondent was of the opinion that, until the township of which relator was supervisor had authorized the supervisor to take •action, the supervisor could not take the appeal, and de■clined to grant the appeal. The sole question in this matter is, Can the supervisor of the township take the appeal provided for in section 2 of chapter 5 of Act No. 272 of the Public Acts of 1899, without the authority of the people of the township at a township meeting, and without the authority of the township board?

The statute now in force provides as follows:

“Any township or townships assessed a per cent, for benefits for the construction of any drain, that may conceive itself or themselves aggrieved by the assessment made by the county drain commissioner, may, within ten days after the date of review provided for in section 1 of this chapter, appeal therefrom as hereinafter provided. The supervisor of any township desiring to take such appeal shall make application to the probate court of the proper county for the appointment of a board of review.”

The difficulty in determining the question rests solely in deciding who is the proper person or body to pass upon the question whether the township conceives itself aggrieved by the assessment made by the county drain commissioner, and upon the question whether the township desires to appeal therefrom.

Prior to the amendment of 1899 the statute read:

‘ ‘ Any township assessed a per cent, for benefits for the construction of any drain, which may conceive itself aggrieved by the assessment made by the county drain commissioner, may, within fifteen days after the day of review, as provided in section 1 of this chapter, appeal therefrom as hereinafter provided. The township board of any township desiring'to take such appeal shall pass a resolution to that effect, authorizing the supervisor, or, in his absence or inability to act, some other member of said board, to make application to the probate court of the proper county for the appointment of a board of review.” 2 Comp. Laws, § 4353.

It would hardly be claimed that, under the statute as it then existed, a special election must be held before the appeal could be taken. We think it very significant that the legislature, by the amendment of 1899, should limit the time for taking the appeal from 15 days to 10 days, and, instead of requiring the appeal to be made by the township board, conferred that power upon the supervisor. In this connection it is well to call attention to the language of section 1, chapter 4, as to who shall appear for the township' upon the review of the assessment by the county drain commissioner: “ On such review the supervisor or commissioner of highways of any township may appear on behalf of such township.” Section 2336, 1 Comp. Laws, also provides:

“The supervisor of each township shall be the agent for his township for the transaction of all legal business, by whom suits may be brought and defended, and upon whom all process against the township shall be served.”

Taking all of these provisions of the statute into consideration, the changes made in the law by the amendment of 1899, and the fact that the 10-days time in which an appeal can be taken is not sufficient time in which to hold an election,- we conclude the supervisor is by the statute made the agent of the township for the purpose named in the statute, and is authorized to take the appeal on the-part of the township.

The judge of probate is instructed to entertain the appeal.

Long, J., did not sit.


text:
    EMMER v. BOSTOCK.
    Jurors Excused — Compensation.
    Section. 11239, 3 Comp. Laws, fixing the pay of jurors at two dollars for each day’s attendance “upon any term of the circuit court, or before any court of record, on the trial of a cause,” entitles a juror to two dollars pay for the time actually in attendance, and not for any period during which he is excused.

      Certiorari to Kent; Perkins, J.
    Submitted March 26, 1902.
    (Calendar No. 19,263.)
    Decided April 8, 1902.

      Mandamus by Fred W. Emmer and others to compel George D. Bostock, clerk of the superior court of Grand Rapids, to draw orders in payment for relators’ services as .jurors. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Rodgers & Rodgers, for relators.

      Ward & Broten, for respondent. ■
   Montgomery, J.

This is certiorari to review a mandamus proceeding instituted in the circuit court for the county of Kent on petition of the relators, who are jurors summoned in the superior court for the September term, to compel a certification by the respondent of their attendance as jurors for the period covering the time between their first appearance and their final discharge. The question presented is whether they are entitled to compensation for the full period, although they were from time to time excused from attendance upon court for stated periods, or whether their compensation is limited to the days of actual attendance upon the court. The statute (3 Comp. Laws, § 11229) reads as follows:

“Each grand and petit juror, and each talesman, shall be entitled to receive two dollars for each day’s attendance, and one dollar for each half day, upon any term of the circuit court, or before any court of record, on the trial of a cause, and ten cents for each mile traveled in going and returning by the nearest traveled route, to be paid out of the county treasury of the county, on the certificate or order of the clerk or judge of such court.”

We think it very clear that this statute was intended to-limit the compensation to the days of actual attendance. It is the contention of the relators that the statute provides for two classes of payments, — one for attendance upon any term of the circuit court; and the other, attendance before any court of record on the trial of a cause. Assuming this to be true, the compensation is limited to each day’s attendance. If it be said that the juror is entitled to attendance for the entire term, the compensation could not be cut off, except >by an actual adjournment of the court without day. The jury could not be excused, and the-court continue in session for the disposition of non jury cases. We think, in actual practice, no such interpretation has ever been given to the statute. The only other permissible construction is that the juror is entitled to pay for the time actually in attendance upon the court, and that for any period during which he is excused from attendance-definitely he is not entitled to pay. A similar statute has been given this construction by the supreme court of California. See Jacobs v. Elliott, 104 Cal. 318 (37 Pac. 942); Mason v. Culbert, 108 Cal. 247 (41 Pac. 464).

The order directing a mandamus to issue will be reversed,, but, as the case appears to have been presented to determine a doubtful question of practice, no costs will be-awarded to either party.

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


author: Grant, J.

text:
    MORELAND v. COMMON COUNCIL OF DETROIT.
    1. Commissioner op Public! Works — Contracts por Improvements.
    The charter of the city of Detroit (Act No. 415, Local Acts 1901) imposes upon the commissioner of public works the duty of making plans, drawings, and specifications for, and the supervision of the construction of, public buildings; and a contract with architects for such work, made by the city controller upon the authorization of the common council, is illegal.
    2. Same — Injunction—Parties.
    The commissioner of public works of Detroit may bring suit to restrain threatened encroachments upon the duties of his department.
    Appeal from Wayne; Donovan, J.
    Submitted April 8, 1902.
    (Docket No. 46.)
    Decided April 11, 1902.
    Bill by DeWitt EL Moreland, commissioner of public works of the city of Detroit, against the common council of said city, Francis A. Blades, city controller, and William G-. Malcomson and William E. Higginbotham, to restrain the performance of a public contract. From a decree for complainant, defendants appeal.
    Affirmed.
    The defendant the common council of the city of Detroit, contemplating certain alterations in and additions to the city hall, on November 5, 1901, by resolution, authorized the defendant the city controller to make a contract on behalf of the city with defendants Malcomson & Higginbotham, architects, for “preliminary sketches, general drawings, details and architectural specifications, and supervision of construction.” The compensation to be allowed for such work was 5 per cent, of the value of the work involved, to be apportioned as follows: One per cent, for preliminary sketches, 2'¿ per cent, for general drawings and specifications, and 1-J per cent, for supervision of construction. A contract was duly drawn in accordance with such resolution, and signed by the city of Detroit by the controller, and by the defendants. Complainant, the commissioner of public works, filed the bill of complaint in this cause to enjoin defendants from executing this contract on the ground that it is illegal and void. The defendants demurred to the bill, and the demurrer was overruled.

      iTred A. Baker, for complainant.

      Timothy E. Tarsney, for defendants common council and controller.

      John J. Speed, for defendants Malcomson and Higginbotham.
   Grant, J.

(after stating the facts). The commissioner of public works, by the act of the legislature of 3901 (Act No. 415, Local Acts), is clothed with the power, among other things, to “supervise the construction, repairing, and alterations of all public buildings.” The act further provides that all moneys for such repairs, etc., shall be expended under his supervision, and under contract and specifications prepared by him and approved by the common council. He is also vested with all duties and functions theretofore vested in and exercised by the former board of public works. He is also to certify all bills, accounts, and claims, and transmit them to the city controller, who in turn submits them to the common council for allowance. Whenever peculiar skill is required in any such work, the common council is empowered to authorize the commissioner to employ a competent person to superintend the same, at a compensation not exceeding a sum to be stated in said resolution. Charter of 1893, p. 163, § 10. The charter also provides that, before proceeding with any public improvement, the common council shall refer the matter to the commissioner, who shall forthwith, proceed to examine and report on the same, giving detailed estimates of cost.

A similar question was presented in Butler v. City of Detroit, 43 Mich. 552 (5 N. W. 1078). The validity of the ■act establishing the board of public works was sustained, and the purpose of the act is there well stated at page 555. We also held in Mills v. City of Detroit, 95 Mich. 422 (54 N. W. 897), that the provision of the act requiring the ■common council to procure from the board of public works an estimate of the cost of any proposed improvement was mandatory, and that proceedings without such estimate were void. Making plans, drawings, specifications, and supervision of construction are necessary parts of such work. The act clearly imposes the duty of such work upon the commissioner. The resolution and contract are not only clear encroachments upon the authority of the commissioner, but virtually ignore his authority. The obvious purpose of the law is to compel the common council, at the beginning, to obtain from a responsible executive officer — the commissioner — plans, specifications, and estimates. For this purpose the council may authorize him to obtain the services of competent architects and builders. This is no encroachment upon the legislative power of the common council. It was not the design of the. law to permit the common council, under a plea of preliminary work, to incur the expense of plans, specifications, and supervision of construction.

The complainant was the proper párty to launch the suit. He is intrusted with the performance of the duties of his ■department, and ma,y maintain a suit in equity to restrain threatened encroachments. There is, in fact, no other remedy, and it is doujbtful if any other person could maintain such a suit.

The decree is affirmed, with costs.

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


text:
    ELLIS v. BALLOU.
    This case is ruled by Ellis v. Ballou, 129 Mich. 303.
    Error to4 Ionia; Davis, J.
    Submitted October 22, 1901.
    (Docket No. 62.)
    Decided April 22, 1902.

      Assumpsit by Wilbur D. Ellis and Milo M. Belding,. executors of the last will and testament of John Ellis, deceased, against Willis D. Ballou and Anna A. Bidwell, copartners as W. D. Ballou & Co., on promissory notes. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      TV. K. Qlute, for appellants.

      A. A. Ellis and E. M. Davis, for appellees.
   Per Curiam.

This suit is the companion of Ellis v. Ballou, decided January 28th last, and reported in 129 Mich. 303 (88 N. W. 898). The suit is based upon two promissory notes, given and held under precisely the same circumstances as were the notes in the other suit. Both counsel make their arguments in that case the arguments in this. The appellants in their brief ask for the same ruling in this case as in the other. That case, therefore, is controlling, and further discussion is unnecessary.

The judgment is affirmed.


author: Moore, J.

text:
    CROUSE v. MICHELL.
    1. Landlord and Tenant — Covenant Not to Assign — Mortgage of Lease.
    A covenant in a lease not to assign without the consent of the lessor is not broken by an assignment of the lease as security for a debt.
    2. Estate for Years — Sale on Execution.
    The common-law rule that leases of land should be sold on execution in the same manner as personal property was changed by statute in 1879, 3 Comp. Laws, §§ 9226-9231, directing the same proceedings as in case of sales of real estate.
    3. Lease for Years — Recording.
    A lease of lands for more than three years is a conveyance of such an interest in real estate that a mortgage of the lease should be recorded in the office of the register of deeds, and not ás a chattel mortgage.
    4. Assignments of Lease — Priority.
    As between two unrecorded assignments of a lease, the one first executed has priority.
    Appeal from Wayne; Waite, J.
    Submitted November 13, 1901.
    (Docket No. 48.)
    Decided April 22, 1902.
    Bill by Henry P. Crouse and Edward D. Brandegee, copartners as Crouse & Brandegee, against Carl H. Michell, Edward H. Parker, administrator of the estate of Thomas A. Parker, deceased, Albert Ives, Sr., Albert Ives, Jr., and Butler Ives, copartners as A. Ives & Sons, Henry A. Harmon, trustee in bankruptcy of said firm, and the Macdonald Clothing Company, to foreclose a lien upon a leasehold interest. From a decree for complainants, all of the defendants except Michell appeal.
    Affirmed.

      Stevenson & Butzelj for complainants.

      Walker & Spalding, for appellants.
   Moore, J.

This is a bill filed by the assignees of a lease to have it sold in satisfaction of the lessee’s indebtedness to them secured by the assignment. The circuit judge granted a decree according to the prayer of the bill of complaint. The case is brought here by appeal.

The terms of the lease as to assignments and transfers of the lessee’s interest without the consent of the lessor will be referred to later. The complainants’ assignment was not consented to by the lessor. The main question in the case is on the validity of this transfer, without consent, against a subsequent transfer, made with the lessor’s consent. The defendants are the personal representative of Mr. Parker, the lessor; Mr. Michell, the lessee; the members of the firm, of A. Ives & Sons, bankers, to whom the assignment with consent was made by Mr. Michell; Mr. Harmon, the trustee in bankruptcy of Ives & Sons; and the Macdonald Clothing Company, who hold from Ives & Sons a sublease for substantially the unexpired term of the lease. The lease is of a store building at the corner of State street and Woodward avenue, Detroit, and was made by Mr. Parker, party of the first part, to Mr. Michell, party of the second part, for a term of 15 years, commencing February 1, 1895. The material provisions of the lease are as follows: “ That all understandings or agreements made between the said above parties are to be void unless in writing; that the party of the second part will not assign nor transfer this lease, or sublet said premises, or any part thereof, without the written consent of said party of the first part. ” In an earlier part of the lease it is “provided that, in case any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part, his certain attorney, heirs, representatives, and assigns, to re-enter and repossess the said premises, and the said party of the second part, and each and every other occupant, to remove and put out.”

On August 2, 1897, Mr. Michell/who was engaged in both the clothing and grocery business, organized a corporation to conduct the clothing business, under the name of 'the C. H. Michell Company, in which he held nearly all the stock. This company carried on this business in the premises covered by the lease from its organization until October, 1899, when it suspended business, and its stock was sold out and removed. Mr. Michell also organized a corporation under the name of the Michell Table-Supply Company, to carry on the grocery business, in which he held nearly all the stock. This company occupied a portion of the premises in question from October, 1897, until shortly before the building was sublet by the defendants Ives to the Macdonald Clothing Company, in March, 1900. There was no written agreement between Michell and either of these corporations regarding their occupation of the Parker premises, except it was understood at the time of the organization of the Clothing Com■pany that it was to occupy and stay'in that store. During the business existence of the Clothing Company, the rent of the premises was paid to Parker by its checks. Mr. Parker receipted for this rent in each case to Mr. Michell individually. He knew that the two corporations were in occupancy. It does not appear that he knew anything of the terms on which they occupied. He also knew that large sums of money were expended by these two companies to fit the premises for their business.

The complainants sold large quantities of merchandise to C. H. Michell and to the C. H. Michell Company. On the 2d of August, 1897, Michell, or the C. H. Michell Company, was indebted to the complainants in the sum of $20,000, or thereabouts, and the Michell interests desired to make arrangeménts for an extension of time for the payment of the $20,000 for three years, and also to provide for the purchase on credit of additional goods from the complainants, and to secure them the payment of the debt then due, and also to secure them the payment of such future indebtedness as should accrue from time to time by the further sale of goods to the C. H. Michell Company. On the 2d day of August, 1897, C. H. Michell delivered to the complainants, through Elliott G. Stevenson, -a power of attorney. It provided that Stevenson could and should execute an assignment of the lease in question to Crouse & Brandegee whenever desired by them, “as security for the payment of any indebtedness owing by the said Carl H. Michell or the said C. H. Michell Company to said Crouse & Brandegee,” and Stevenson was given all the power and authority that Michell had himself in the premises. The power conferred upon Stevenson, to use the language of the assignment itself, “is conferred for the purpose of authorizing and empowering him to execute an assignment of the lease, * * * together with all rights and interests of the said Michell under the same, to be held and used by the said Crouse & Brandegee as security for the payment of any sum of money that said C. H. Michell shall owe to the said Crouse & Brandegee. ” On the same day the original lease was delivered by Michell to the complainants herein, through their attorney and agent, Elliott G. Stevenson, and this original lease, from that day to this, has never been out of the control and possession of the complainants.

In March, 1898, Mr. Stevenson, under this power of attorney, assigned and conveyed to the complainants the lease, and all Michell’s rights and privileges thereunder, to secure the indebtedness contemplated by the power of attorney. This was not recorded, nor was it filed as a chattel mortgage. On October 10, 1898, Mr. Stevenson notified Mr. Michell of the assignment. On. October 16, 1899, after the rights claimed by and under Ives & Sons in the lease had accrued, if they had any thereunder, and their assignment had been delivered to them, and they had taken possession under it, Mr. Stevenson gave written notice to Mr. Parker and to Ives & Sons that an assignment of the lease had been made by Michell to the complainants in March, 1898. On October 27, 1899, Mr. Parker, by letter, replied to Mr. Stevenson’s notice, saying that he had no previous knowledge of the transfer to Crouse & Brandegee; that, under the terms of the lease, it could not be assigned without his written consent; that he had not consented to this assignment; and, further, “I do not now consent to it, and will in no way recognize it.” It is not claimed that Mr. Parker had any previous notice or knowledge of the complainants’ interests.'

The defendants Ives & Sons were the bankers for the Table-Supply Company from its organization, and loaned it money from time to time. On August 9, 1899, this indebtedness amounted to $46,201.77, represented by five interest-bearing demand notes, indorsed by C. H. Michell, .aggregating $20,000, and by an overdraft for the remainder made up .of advances previously made from time to time. None of this indebtedness was contracted before December, 1898. On August-7, 1899, Mr. Don M. Dickinson, who was counsel for the Table-Supply Company, after examining statements of their condition, which they furnished, and at their request, asked Ives & Sons to make them further advances, representing that this would,, in his judgment, enable the company to pull through, and that the Parker lease, which the Iveses knew to be valuable, would be assigned to secure the existing debt and future advances. To this proposition Ives & Sons agreed, and upon the strength of it forebore on the existing debt, and made further advances from time to time, the amount on October 14, 1899, being $6,416.01. On September 23d, in pursuance of this verbal understanding, a written permission was obtained from Mr. Parker, allowing Mr. Michell to sublet the premises for the unexpired period of the lease to Ives & Sons, and allowing Ives & Sons to sublet them to “such person or persons, firm, or corporation as they may elect; said premises to be occupied, however, by said Ives & Sons or their subtenants subject to and in accordance with all the requirements ” of the original lease. It further stated that it should not be construed as a general waiver of the provisions of the lease relating to assignment and subletting, but to give permission to sublet only to the persons and in the manner in the permission provided.

On October 11, 1899, Mr. Michell executed to Ives & Sons an assignment of all bis right, title, and interest in the lease to secure the advances made in pursuance of the agreement of August 9th with Mr. Dickinson, and all notes indorsed by him and discounted by Ives & Sons for the benefit of the Table-Supply Company, and such further advances as might be thereafter made. This assignment and Mr. Parker’s assent were delivered to Ives & Sons on October 14th. On October 16th they took possession of the leased premises, suffering the Table-Supply Company to continue therein until shortly before the-transfer to the Macdonald Clothing Company. It is claimed that up to this time Ives & Sons had no notice of the transfer to the complainants, or that they had any claim on the lease. On the day following their taking-possession they received notice from Mr. Stevenson, as already stated. At the time when Ives & Sons took possession there was some rent in arrears to Parker. This, under the terms of his consent, it was necessary for them to pay. They paid it, and further rent accruing up to the time of the transfer to the Macdonald Clothing-Company; in all, $7,850.73. In March, 1900, Ives &■ Sons sublet the premises to the Macdonald Clothing Company for substantially the remaining term of the lease, the-Clothing Company paying therefor the sum of $31,700, and undertaking to carry out the lessee’s obligations under the lease and the conditions of the Parker consent.

It is claimed by complainants that the value of the lease-over and above the rental it called for was $38,497.76. The defendants claim this amount is simply the present worth of the difference between the rental named in the lease and the rental offered by Mr. Stevenson, payable in monthly installments, for the unexpired term of the lease, on a 5 per cent, basis; and that the amount realized from the lease by Ives & Sons, after deducting the amount of the rent which they had paid, was $23,849.27, which was-$2,566.74 less than the amount of their demand paper, plus the advances between August 9th and October 14th.

The complainants claim: That the pledge or assignment of the lease as security in good faith .was not in violation of the covenant not to assign or sublet. That, even if the pledge were a violation of the covenant, Mr. Parker has waived the same by his conduct after knowledge of the breach on the part of Michell. That, as between complainants and the Iveses, the complainants are entitled to piority, because their assignment was first in point of time, and neither of the conveyances has ever been recorded; because the Iveses were informed of the prior assignment to these complainants; because the Iveses did not change their position any between the time of getting the actual assignment of the lease, on October 14th, and the receipt of written notice of the complainants’ assignment, on October 17th; because an oral pledge of a leasehold interest of 15 years’ duration is, under statute in this State, void, and no rights can be acquired ás against a prior assignee of such leasehold interest by one who relies upon a verbal assurance of future assignment.

The defendants contend that the assignment to complainants is invalid as a violation of the terms of the lease, and cannot be enforced; that there has been no waiver of the provisions of the lease by the lessor; that the covenant of the lease against assignments and transfers without the lessor’s consent is a continuing covenant, and that a court of equity will not enforce an assignment made without consent in violation of the covenant; that the Ives assignment was taken without notice of complainants’ claim, and for value; that as the complainants’ assignment, being security upon a chattel real, was not filed as a chattel mortgage, it must, even if otherwise valid, be postponed to the Ives assignment.

The first question demanding attention is whether the assignment or pledge of the lease in question as security in good faith was a violation of the clause against assignment. The case of Riggs v. Pursell, 66 N. Y. 199, is in point. The following language is contained in the opinion:

“The lease contained a covenant on the part of the lessee that he would not, during the term, assign, transfer, or set over the lease, or any of the ter-m thereby created; and the purchasers claim that this .covenant was violated, and the lease forfeited, by the giving of the mortgage, which was foreclosed. Their objection is based upon the giving of the mortgage; not that there was a forfeiture by the sale under -the mortgage. * * * The giving of the mortgage was not a violation of the covenant. A mortgage, in this State, of land, is not a transfer of the legal title or the possession, but a mere security. * * * It has been held in several cases in England that such a covenant is not violated by a delivery of the lease as a security for money loaned, and yet such a delivery operates as an equitable mortgage of the term created by the lease. 1 Taylor, Landl. & T. (2d Ed.) § 406; 2 Platt, Leases, 258; Pitt v. Hogg, 4 Dowl. & R. 226; Goodbehere v. Bevan, 3 Maule & S. 353. In Pitt v. Hogg there was a covenant ‘not to let, set, assign, transfer, set over, or otherwise part with the premises demised in the lease’ of a coffee house. The lessee deposited the lease with a bi’ewer as security for beer supplied to the house, and it was held that the covenant was not violated. Abbott, C. J., said: ‘ I am clearly of opinion that the effect of the covenant is only to restrain the lessee from completely alienating the legal interest in the premises to the prejudice of the landlord, without his consent in writing.’ In Goodbehere v. Bevan there was a similar covenant, and the lessee deposited his 'lease as a security for money borrowed, and became bankrupt, and the lease was sold under the direction of the chancellor to pay that debt, and it was held that the lease was not forfeited. It is, therefore, clear that this lease was not forfeited by the giving of the mortgage, which did not transfer the title to the premises or the lease. Neither was it forfeited by the sale under the decree. This was a judicial sale in a hostile proceeding, a sale in invitum, and such sales are held not to violate this covenant. An assignment, either by the lessee or his executor, which is not voluntary, but caused by operation of law, is not a breach of the covenant not to assign. Where a lessee who had so covenanted gave a warrant of attorney to confess a judgment, on which the lease was taken in execution and sold, it was considered no breach of the covenant, all the proceedings being in good faith. Mitchinson v. Carter, 8 Term R. 57. See, also, Jackson v. Corliss, 7 Johns. 531; Jackson v. Silvernail, 15 Johns. 278; Smith v. Putnam, 3 Pick. 221. Such covenants are restraints which courts do not faVor. They are construed with the utmost jealousy, and very easy modes have always been countenanced for defeating them. Church v. Brown, 15 Ves. 265; Crusoe v. Bugby, 2 W. Bl. 766; 1 Taylor, Landl. & T. (2d Ed.) §§ 402, 403; 2 Platt, Leases, 250. This covenant, therefore, furnishes no ground for the relief of the purchasers.”

The same question was involved in Croft v. Lumley, 6 H. L. Cas. 672. In that case 10 different opinions were written, all reaching the same result. We quote from Baron Watson:

“In answer to the second question, I am of opinion that the special case does not disclose any breach of the covenant not to charge or incumber the theater, or any part thereof. The covenant in question is: [His lordship read it. ] In order to support this breach, the case states that Lumley granted several warrants of attorney to several persons for debts due and owing from him, and more especially one to Hughes, in the defeasance to which it was expressed to be a collateral security for a debt, and with a provision that the expense of registering the judgment should be borne by Lumley.
“The nature and effect of a warrant of attorney are well known. Warrants of attorney are generally given where the party, having no defense to an action for debt, authorizes, an attorney to confess judgment in order to save expense. The warrant of attorney is no charge on the land. The judgment signed in pursuance of the warrant of attorney may affect a leasehold interest like this in two ways: First, by means of an execution, by which the lease might be taken and sold under a writ of fieri facias; and, secondly, by registering the judgment in the proper office, and, when registered, the judgment would become an equitable charge under Stat. 1 & 2 Viet, chap. 110, § 13; and by registering a memorial thereof at the Middlesex registry the judgment would obtain priority over any charges or judgments subsequently registered at that registry.
“I think that this covenant applies only to charges and incumbrances directly or immediately made by the lessee, as the covenant is not that the lessee shall not do any act whereby the lease should be sold or incumbered. It by no means follows that the person for whose benefit the warrant of attorney is given may ever enter up judgment thereon, or, if judgment be entered up, that he may register the same so as to charge the lease. It could not be argued that contracting a debt which the defendant was unable to pay, although that might produce a judgment, and a charge on the lease, could be a charging or incumbering within the meaning of the covenant. Such breach is to be without the will or consent of the lessor; and it could hardly be said that the consent to enter up judgment or register is a consent contemplated by the covenant. ' I think, therefore, the case as to this breach falls within the principle of Mitchinson v. Carter, and that-no breach of that covenant has been occasioned by the facts stated in the special case.”

See, also, 18 Am. & Eng. Enc. Law (2d Ed.), p. 661.

There are authorities the other way, but we think the weight of authority is as stated in Riggs v. Pursell. Having reached this conclusion, it is not necessary to discuss the question of waiver. This brings us to the next question: Which of these mortgages has priority ? It is claimed by defendants the question is determined by the rule applicable to chattel mortgages. It is said the leasehold interest is a chattel real (section 8787, 3 Comp. Laws), and, when sold on execution, must be sold as personal estate (Buhl v. Kenyon, 11 Mich. 249 [83 Am. Dec. 738]), and can only be seized on execution as a chattel interest (Grover v. Fox, 36 Mich. 459); that, as the assignment was not filed with the city clerk, it is void as to defendants, — citing section 9523, 3 Comp. Laws. On the other hand, it is claimed that, as this lease ran for more than three years, it created an interest in real estate, and brings it under the recording laws applicable to real estate.

The case of Buhl v. Kenyon was decided in 1863. The case of Grover v. Fox was decided in 1877. In 1879 an act was passed prescribing the manner of selling leasehold interests in lands on execution. 3 Comp. Laws, §§ 9226-9231. It provides that the manner of levy and notice of sale shall be the same as in case of levy on real estate. It also provides, if sale is made, if the unexpired term of the lease exceeds three years, the same kind of a conveyance shall be executed as in case of a sale of real estate, and also gives a year within which to redeem. Section 9511, 3 Comp. Laws, reads:

“ Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing.”

Section 8994, chap. 241, 3 Comp. Laws, reads:

“The term ‘conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity, except wills, leases for a term not exceediug three years, and executory contracts for the sale or purchase of lands.”

Section 8988 of the same chapter reads as follows:

“Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.”

Taking all these provisions of law and construing them together, we think it clear that this lease, which had eight or ten years to run, was such a conveyance of an interest in lands as to make the real-estate recording laws applicable to it.

As before stated, neither of the assignments has ever been recorded, unless the filing of the lis pendens at the time of. the commencement of this suit may be regarded as a recording of the assignment. This, then, being the situation, the general rule that, as between two unrecorded conveyances, the one first made has priority, applies. It is stated in 1 Jones, Mortg. § 60?, as follows: “As between several unrecorded mortgages or other conveyances, that of prior execution takes precedence.” In 20 Am. & Eng. Enc. Law (1st Ed.), p. 592, it is said:

“ With Conveyance First Recorded. Recordation is required for the protection of subsequent purchasers only. To require a subsequent conveyance of title to be recorded in order that a prior purchaser of the same property may be able to obtain information of its existence would not be in furtherance of the general design of these statutes, which was to protect purchasers from being undone by prior secret conveyances, by making the means of obtaining information thereof available to that end. And so it is not necessary to his full protection, in the absence of statutory provisions so requiring, that the subsequent purchaser record the instrument under which he claims before the recordation of the conveyance of the prior purchaser. But, although such requirement may not be in full accord with the general design of the recording provisions, from a desire to secure a prompt record of conveyances, and to afford a means for the ready determination of certain questions of priority which would otherwise arise, the protection of the recording acts is limited in most of the States to a purchaser whose deed or conveyance is first duly recorded. This requirement must be complied with in order to support the claim of the subsequent purchaser to the protection afforded by the recording acts,” — citing many cases.

■ The decree of the court below is affirmed, with costs.

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


author: Mooke, J.

text:
    WINSLOW v. PUTNAM.
    1. Husband and Wife — Wife as Preferred Creditor.
    A husband who is in good faith a debtor to his wife may prefer her to other creditors, but, if he is insolvent, the transaction should be closely scrutinized.
    2. Fraudulent Conveyances — Consideration.
    A husband gave to his wife a piece of land, chiefly valuable for pasture, upon which he paid the taxes and made improvements, and used the proceeds, in common with the rest of his farm, for the support of the family. It was claimed that he agreed to pay her rent, which was allowed to accumulate for 20 years, when he conveyed to her 80 acres of his farm, upon which the buildings were situated, in payment of the rent. He. also conveyed at the same time to his son 40 acres for alleged wages which had been allowed to accumulate. The transaction left nothing for his creditors. Held, upon a review of the whole evidence, that the debts were not bone, fide, and that the deeds were made for the purpose of defeating creditors.
    Appeal from Ingham; Wisner, J., presiding.
    Submitted April 8, 1902.
    (Docket No. 2.)
    Decided April 22, 1902.
    Bill by N. Ira Winslow, administrator of the estate of Harriet M. Williams, deceased, against Daniel Putnam, Elizabeth Putnam, and Ernest Putnam, in aid of execution. From a decree dismissing the bill, complainant appeals.
    Reversed.

      E. D. Lewis (Smith & Hood and William T. Webb, of counsel), for complainant.
    ' Charles E. Hammond, for defendants.
   Mooke, J.

Harriet M. Williams filed her bill in this cause in aid of execution, making Daniel Putnam, Elizabeth Putnam, his wife, and Ernest Putnam, his son, defendants. Since the commencement of this suit Mrs. Williams has died. On the 20th day of May, 1898, she obtained a decree against Daniel Putnam for a deficiency in a mortgage foreclosure suit for $915.80. An execution was levied on an 80-acre parcel formerly owned by Mr. Putnam, now owned by Elizabeth Putnam, and a 40-acre parcel formerly owned by. Daniel Putnam, now owned by Ernest Putnam. The circuit judge dismissed the bill. The case is brought here by appeal.

Daniel Putnam, in 1875, resided with his family on afarm of 120 acres, being the lands in question. In October of that year he purchased and paid with his own money for another 40-acre parcel, called the “Bigelow Forty,” the conveyance being taken in the name of his wife. In 1882 he bought 40 acres of land of Mrs. Williams for $2,300. He paid $500 down, and gave a mortgage back for $1,800. Himself and family moved upon the Williams 40, upon which there was an orchard and good buildings. At one time the debt against the Williams 40 had been reduced to $1,700, but at the time of the foreclosure it was upwards of $2,400. In October, 1895, he deeded to his wife 80 acres of the old homestead, making her, with the 40 acres of land he gave her in 1875, the owner of 120 acres of land. In Februai’y, 1897, he deeded to Ernest 40 acres of land, leaving title in himself to only the Williams 40, from which he had removed a good deal of timber, some of which went into the construction of a house on the old homestead. He also permitted the farm to run down so that it was not worth as much as the debt against it. Some time prior to May, 1898, a new house had been built on the west 40 acres of the old farm, and in May, 1898, Mr. Putnam and his family left the Williams farm, and moved into the new house. Afterwards the mortgage was foreclosed upon the Williams 40, and it is to enforce the collection of the deficiency on that sale this suit is brought.

Mr. Putnam admits in his answer he has no property liable to levy and sale on execution. Mrs. Putnam and her son both claim to be bona fide purchasers of the land conveyed to them. Mrs. Putnam says that, in the spring of 1876, her husband promised to pay her $100 a year rent, less the taxes, for thé use of the 40 acres he gave to her the year before; that, not having paid this rent, in the spring of 1877 he agreed to pay the interest upon the rent at 6 per cent, until it was paid, and under that arrangement he used the 40 acres without making any payments to her until 1895, when the rent, with interest thereon, amounted to $2,800, and to satisfy that debt he conveyed to her the 80 acres of land. In his sworn answer Ernest Putnam claimed that, in the purchase of the 40 acres deeded to him, he assumed a. mortgage of $230 that was on the land, gave his note for $170, and “that at said time the said Daniel Putnam was indebted to this defendant in the sum of $300 for moneys theretofore loaned him by this defendant, this defendant having earned and received said money from his own labor and services in the neighborhood of Wheatfield, which indebtedness was thereupon canceled, and said sum credited upon the purchase price of said lands.” Upon the trial he testified that the $300 was made up as follows: Money loaned to his father in 1894, $100; pressing 20 tons of hay, $30; labor performed in 1893, $27; labor performed in 1895, $61, — which, with the interest figured on those items, he claims amounted to $300 at the time the deed was made. The note he gave was, at the time of the trial, in the possession of his mother.

There is, of course, no longer any question in this State of the right of the husband, who is in good faith a debtor to his wife, to perfer her to other creditors (Leppig v. Bretzel, 48 Mich. 321 [12 N. W. 199]); but, where a conveyance is made by an insolvent husband to his wife, the transaction, because of the relationship of the parties, should be closely scrutinized. This is not a case where the wife had money of her own which she had permitted her husband to use upon his promise to pay her. Her claim is based upon the use of property bought with his money and given to her, the proceeds of which were mingled with the other proceeds of the farm, and from which her wants were supplied. No charge was entered upon, any book, made against her husband, of this claim for rent. No writing was given by him to her. Nearly all of the debt, if it ever existed, was outlawed. He was apparently a prosperous farmer, and it was because he was supposed to be solvent, and upon his promise to pay, that Mrs. Williams allowed the interest to accumulate.

In Ball v. Phenicie, 94 Mich. 355 (53 N. W. 1114), Justice Montgomery, speaking for the court, said:

“The theory of the defense was that David L. Phenicie became indebted to his wife for moneys advanced and loaned by her from time to time, and, as is usual in such cases, the aggregate amount claimed to be due is the various sums originally advanced by the wife to the husband, together with interest, without any deduction whatever on any account. Such a course of dealing is so against common experience as to call for a very careful scrutiny of the testimony by the court. It is not the common course for a lady possessed of considerable means to continue in possession of an estate for a long term of years without applying or appropriating one dollar of it to any purpose whatever; and, while it is the duty of the court to protect the property rights of married women, even as against the creditors of the husband, it is no injustice to the parties in a case like the present to apply, in construing the testimony, such fair presumptions as the common experience of mankind suggests.”

See, also, Case Manfg. Co. v. Perkins, 106 Mich. 349 (64 N. W. 201).

If the claim of the two defendants is to be believed, we find a husband donating to his wife a piece of land, chiefly valuable for the pasture, upon which he pays taxes and makes the improvements, the proceeds of which he uses, in common with the proceeds of the rest of the farm, for the support of the son and wife; also immediately making an arrangement to pay what is shown by the weight of testimony to be a very, high rent. The rent is allowed to accumulate, though there is no reason shown why the husband might not have paid it, until, with interest, it equals in amount the value of the 80 acres upon which are' the buildings. At the same time this rent is allowed to accumulate the husband and father did not pay the son for services rendered by him upon the farm, and we find the son taking over the title to 40 acres of the farm. As the result of the transaction the title to 160 acres of land, bought and paid for by the husband, is no longer in him, but is still in the family, while only $100 in money has changed hands, while nothing is left for the creditors of the husband. Without attempting to recite the testimony and to further analyze it, we must content ourselves with saying we are fully impressed with the conviction that the conveyances, instead of being made to satisfy existing bona fide debts, were made for the express purpose of defeating creditors. The relief prayed for in the bill of complaint should have been granted.

The decree is reversed, and one will be entered here in accordance with this opinion, with costs of both courts.

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


text:
    TOWNSHIP OF GROSSE POINTE v. DETROIT & LAKE ST. CLAIR RAILWAY.
    1. Street Railways — License from Township — Mandamus.
    The conditions in the agreement or franchise a street railway obtains from a township by virtue of 2 Comp. Laws, § 6446, are as binding upon the company as if imposed by the statute, and mandamus is the proper remedy to compel compliance therewith.
    2. Same — Sale—Obligations of Grantee.
    A company which purchases a street-railway property takes the road subject to all the obligations resting upon its grantor. 2 Comp. Laws, § 6448.

      3. Same — Obligations of Grantor,.
    A street-railway company which has sold all its property to another railway company cannot be compelled to comply with the conditions of its franchise.

      Certiorari to Wayne; Donovan, J.
    Submitted December 12, 1901.
    (Docket No. 178.)
    Decided April 22, 1902.

      Mandamus by the township of Grosse Pointe against the Detroit & Lake St. Clair Railway, impleaded with the Rapid Railway Company and the Detroit, Lake Shore & Mt. Clemens Railway, to compel a compliance with the conditions of a franchise granted the last-mentioned road. Prom an order granting the writ, respondent brings certiorari.

    Affirmed.

      James TI. Pound, for relator.

      Gray & Gray and L. S. Trowbridge, Jr., for respondent.
   Montgomery, J.

This is certiorari to review a peremptory writ of mandamus issued by the circuit court on petition of the.township of Grosse Pointe, requiring the Detroit, Lake Shore & Mt. Clemens Railway and the Detroit & Lake St. Clair Railway, two Michigan corporations, to comply with certain conditions of a franchise granted by the relator to the Detroit, Lake Shore & Mt. Clemens Railway, its successors and assigns, and accepted by said railway. By virtue of 2 Comp. Laws, § 6448, the Detroit & Lake St. Clair Railway had purchased the railroad, franchise rights, and other property of the Detroit, Lake Shore & Mt. Clemens Railway, and was operating said railroad. The writ commands both respondents to maintain certain electric lights during the hours of darkness, while actually engaged in running cars, and to run a car over said line daily, except Sundays, at such an hour that passengers thereon may make convenient connection at the terminus of said railway, in Grosse Pointe Farms, with a car on the Citizens’ line, reaching Woodward avenue, in Detroit, at 7 o’clock a. m., local time. The Detroit & Lake St. Clair Railway contends that the writ of mandamus should not have issued against it — First, upon the ground that the franchise or license of a town board is a mere contract, and “does not rise to the dignity of a statute,” and therefore that the duty to perform the acts required by the writ is not a duty imposed by law, but a mere contractual obligation; and, second, upon the ground that it is not shown to have accepted the conditions of the franchise.

In City of Lansing v. Lansing City Electric Ry. Co., 109 Mich., at page 127 (66 N. W., at page 951), it was held that mandamus is the proper remedy to compel a street-railway company to comply with a city ordinance requiring it to pave between its tracks. It is sought to distinguish that case from the present on the ground that the ordinance in that case had the force of law, while it is contended that in the present case the agreement between the township authorities and the railway company is a mere contract, which will not he enforced by mandamus. We see no reason for this distinction. The statute (2 Comp. Laws, § 6446) provides, as to cities and villages:

“Any street-railway corporation organized under the provisions of this act may, with the consent of the corporate authorities of any city or village, given in and by an ordinance or ordinances duly enacted for that purpose, and under such rules, regulations, and conditions as in and by such ordinance or ordinances shall be prescribed, construct, use, maintain, and own a street railway for the transportation of passengers in and upon the lines of such streets and ways in said city or village as shall be designated and granted from time to time for that purpose in the ordinance or ordinances granting such consent; but no such railway company shall construct any railway in the streets of any city or village until the company shall have accepted in writing the terms and conditions upon which they are permitted to use said streets.”

As to townships, the provision is as follows:

“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.”

In effect, these two provisions are not dissimilar. In either case the company derives its authority to occupy the street or highway from the statute. The only limitation is that it first obtain the consent of the local authorities ; and in either case, when the consent is obtained, the conditions are as binding as though imposed in the statute.

As to the contention that the purchasing company is not liable to be proceeded against in the same manner as its grantor was, we think it unsound. The only rights derived are by purchase, it is true, but it seems clear that such a purchasing company takes the road subject to all the obligations resting upon its grantor. See 2 Comp. Laws, § 6448.

The writ of mandamus was properly directed to the Detroit & Lake St. Clair Railway. As to the Detroit, Lake Shore & Mt. Clemens Railway, we think the situation is different. This company sold out to its co-respondent, and is not in position to comply with the requirements of the writ. The order as to this company is reversed, and, as to the Detroit & Lake St. Clair Railway, affirmed. No costs will be awarded to either party.

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


text:
    SEVENTH DAY CHURCH OF GOD v. CONFERENCE OF CHURCH OF GOD.
    In this case the question is one of fact, involving no legal principle of importance.
    Appeal from Van Burén; Carr, J.
    Submitted December 13,1901.
    (Docket No. 181.)
    Decided April 22, 1902.
    Bill by the Seventh Day Church of God against the Conference of the Church of God‘and fractional school district No. 2, Bangor and Arlington, to quiet title. From a decree for complainant, defendant conference appeals.
    Affirmed.

      Thomas J. Cavanaugh, for complainant.

      R. M. Chase and David Anderson, for appellant.
   Per Curiam.

The bill in this case was filed to set aside a deed made by the defendant school district to the defendant the Conference of the Church of God; the complainant claiming title to the premises by virtue of a contract entered into between certain trustees and the defendant school district. The entire property is worth about $250.

The question is one of fact. It involves no legal principle or question of interest or benefit to the profession. The learned circuit judge filed a written opinion, holding that the complainant is entitled to the specific performance of the contract between it and the defendant school district, and that the deed made by the defendant school district to the defendant the Conference of the Church of God is void. We are of the opinion that he reached the correct, equitable, and just conclusion.

The decree is affirmed, with costs.

Long, J., did not sit.