author: Hooker, J. Ostrander, J.

text:
    SWING v. CAMERON.
    1. Corporations — Foreign Insurance Companies — Doing Business Without Permission — Action for Assessment.
    A foreign, mutual fire-insurance company which insures property situated in this State without having obtained authority to do business in this State (§§ 5157, 5162, 2 Comp. Laws), cannot maintain suit in the courts of this State to collect an assessment due on the policy, though the contract of insurance was made in the State of the company’s domicile by correspondence with the insured in another State (§ 10467, 3 Comp. Laws). Ostrander, Grant, and Blair, JJ., dissenting.
    2. Same — Pleading—General Issue — Defenses Available.
    In an action by the receiver of a foreign mutual insurance company to recover an assessment on a policy issued by the company, the defense that the company was not authorized to do business in this State is available under the plea of the general issue without special notice.
    Case made from Antrim; Mayne, J.
    Submitted January 30, 1906.
    (Docket No. 69.)
    Decided July 23, 1906.
    Assumpsit by James B. Swing, trustee, for tbe creditors 'and policy holders of the Union Mutual Fire-Insurance Company of Cincinnati, Ohio (dissolved), against Archibald Cameron, James Cameron, and John Cameron, co-partners as Cameron Brothers, for an assessment. There was judgment for defendants, and plaintiff appeals.
    Affirmed.

      Leavitt & Guile and Patterson A. Beece, for appellant.

      Fitch B. Williams, for appellee.
   Hooker, J.

The questions in this case are two:

1. May an action brought by a receiver or trustee of a ■foreign mutual insurance company, which has never obtained authority to do business in Michigan, upon a policy issued to a resident of this State by said company in. Cincinnati, upon an application sent by mail from Chicago, upon a sawmill situate in this State, to recover an assessment, as provided in its policy, to pay losses, be defeated upon the ground that the plaintiff has no right to prosecute in the courts of this State ?

2. Can such defense be made under a plea of the general issue and without special notice ?

It is contended that this contract of insurance was; valid under the case of Allgeyer v. Louisiana, 165 U. S. 585, being made in Ohio, and, being valid there, is valid everywhere. That case was a prosecution for a penalty against a resident of Louisiana who made a contract for insurance in New York upon property temporarily in Louisiana. The act supposed to be a violation of the law was the mailing to the insurance company of a notice of the shipment of certain cotton, in accordance with the terms of the policy. The court held that sending this notice through the mail, notifying the company of the property to be covered by the policy already delivered, did not constitute a contract made or entered into in Louisiana, and that it was but the performance of an act rendered necessary by the provisions of the contract already made between the parties outside of the State, which contract was to be performed outside of the State and in New York, where the premiums were to be paid and losses, if any, adjusted. The act (Act No. 66, Acts of 1894) alleged to be violated was as follows:

“An act to prevent persons, corporations or firms from dealing with marine insurance companies that have not complied with law.”

The act reads as follows:

“Be it enacted by the general assembly of the State of Louisiana, that any person, firm or corporation who shall fill up, sign or issue in this State any certificate of insurance under an open marine policy, or who in any manner whatever does any act in this State to effect, for himself or for another, insurance on property, then in this State, in any marine insurance company which has not complied in all respects with the laws of this State, shall be subject to a fine of one thousand dollars.”

The court held that the sending of such notice was not within the terms of the statute. Whatever may be thought of the question whether the sending of the notice was not an act effecting insurance upon the 100 bales of cotton, which might not otherwise have been covered by the existing policy, the determination that the contract was valid is not conclusive of the question before us.

If it be conceded that the policy before us was valid between the parties, the question still remains, Must the courts of this State enforce it at the suit of the insurance company, which has defied its authority by insuring property within this State without having complied with the conditions which our statute imposes? The legislature has attempted to restrict the issue of insurance policies upon property in this. State to companies that have, after compliance with conditions imposed, obtained a certificate of authority from the State insurance commissioner, and this applies to domestic as well as foreign companies. See Seamans v. Temple Co., 105 Mich. 404 (28 L. R. A. 430); Swing v. Lumber Co., 140 Mich. 344; 2 Comp. Laws, §§ 5157, 5162; Hartford Fire-Ins. Co. v. Raymond, 70 Mich. 501. If it be said that this statute applies to cases where the contract is made within the State, we reply that the evident intent, as shown by the entire scheme of our insurance laws, was to protect the owners of property in this State from questionable insurance, and whether the law is effective in making contracts made elsewhere invalid or not, and whether or not it can collect a penalty in such a case, there can be no doubt of its right to withhold a certificate from offending companies until the penalties are paid under section 5162. See cases cited in Hartford Fire-Ins. Co. v. Raymond, supra. In dealing with property within its jurisdiction, it has seen fit to provide restrictions upon insurance, and when insurance companies disregard and disobey such laws, relying upon their rights to do such business elsewhere, though in violation of and contrary to the expressed policy of the State, their right to enforce the same here may be denied by the State. 3 Comp. Laws, § 10467, provides:

“(10467) Sec. 2. But when, by the laws of this State, any act is forbidden to be done by any corporation, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into in consideration of such act.”

We have passed upon this section in the case of People's Mut. Ben. Society v. Lester, 105 Mich. 716, and held it applicable to foreign companies. It would be difficult for the legislature to state more plainly than is there stated that if a foreign insurance company sees fit to make contracts upon property in this State, without express authority of law, it must go elsewhere to enforce such contracts. This doctrine is supported by cases elsewhere, and the question was not passed on in the case of Allgeyer v. Louisiana, supra, unless the contrary rule must necessarily follow from the determination of the validity of the contract in that case.

In a case decided in Wisconsin, practically simultaneously with the decision of our own case of Seamans v. Temple Co., supra, a similar decision was made. See Rose v. Kimberly & Clark Co., 89 Wis. 545 (27 L. R. A. 556). Recognizing the propriety of enforcing in Wisconsin a contract made by a Wisconsin company insuring property in Missouri in violation of a Missouri statute (Seamans v. Knapp, etc., Co., 89 Wis. 177 [27 L. R. A. 362]), the court said:

“But it is obvious that that decision does not reach or control this case. The question here presented is whether the courts of this State will enforce a contract plainly and squarely opposed to the public policy and laws of the State.
‘ ‘ Doubtless the general rule of law is that a contract valid where made is valid everywhere, but this rule is not without exception. The provisions of our statutes which prescribe the conditions upon which alone foreign insurance companies may do business within this State are very stringent and sweeping. Sanborn & B. Stat. §§ 1915-1919. They provide, in substance, that no foreign fire-insurance company shall, directly or indirectly, take risks or transact any business of insurance in this State, except upon compliance with certain specified requirements. It is unnecessary to state what these requirements are in detail, but it is sufficient to say that they include, among other things, the filing of verified statements showing investments of capital in certain specified securities, and to certain amounts, or, in lieu thereof, a deposit with the State treasurer of a certain amount of United States bonds, also the payment of certain license fees, and the filing of various documents intended for the benefit and protection of policy holders within the State, and only upon compliance with all these requirements is the commissioner of insurance authorized to issue the license which authorizes the doing of business within this State. The object of this statute is so plain that it cannot be mistaken. It is to protect our citizens against irresponsible and worthless foreign companies of the very kind which we have now before us. The evil to be corrected is, not the writing of a policy by an unlicensed company within this State alone, but the writing of such a policy at all. Bearing in mind the object of the statute and the evil to be corrected, it is very plain that the object will be largely defeated, and the evil will flourish as before, if it be held that companies without license can establish their agencies just outside of the State line and conduct their business by mail.
“ Now, it will be observed that the legislature was not content with providing that no unlicensed company should make a contract of insurance within this State, but provided that no such company should, directly or indirectly, take risks or transact any business of insurance in this State. The writing of a policy of insurance upon property situated within this State would seem pretty clearly to be, in some degree at least, the transaction of insurance business in this State, whether the policy be written just within or just without the State line. In was said in Stanhilber v. Insurance Co., 76 Wis. 285, on page 291:
“ ‘ A contract insuring property in this State necessarily involves the doing of business in this State, and hence is subject to the laws of this State.’
“We regard the remark as entirely correct, and fully as applicable to the present case as to the Stanhilber Case. It is not meant by this that the legislation in question has extraterritorial effect, or that it will invalidate a contract made in Illinois, but simply that, when that contract is a contract insuring property within this State, it is against the policy of our law, and will not be enforced by the courts of Wisconsin unless the conditions prescribed by our laws have been complied with. In no other way can the manifest purpose and intent of the statute be reached. Any different construction would render the law of little effect.
“ These views necessitate reversal of the judgment.”

Again, in Seamans v. Zimmerman, 91 Iowa, 366, after citing and commenting upoD cases where contracts valid, because made out of the State, were enforced, the court said:

“ In none of the cases cited, so far as we have observed, were the statutes construed the same, in legal effect, as that of this State, and in several of the caaes stress was laid upon provisions which are wanting in that statute. The prohibition of section 1144 is directed, not merely to the agents as such, but to the companies themselves. They are forbidden to take any risks in this State, either directly or indirectly. The general assembly intended the prohibition to reach as far as its jurisdiction extends. The power of the legislature of a State to make contracts like those under consideration void is not questioned. It was recognized in Columbia Fire- Ins. Co. v. Kinyon, 37 N. J. Law, 33. Comity does not require the enforcement of a contract valid where made but in violation of the law of the State where it is sought to be enforced. The provision of the statute under consideration was designed to protect the property owners of this State from irresponsible insurance companies, and the contracts in question belong to the class which the general assembly intended to prohibit. To hold that the company may recover the assessments would be to give it all the benefits which it ever expected to derive from the contracts, and would be an evident violation of the spirit and intention of the statute. The contracts are contrary to the policy of this State as expressed in the statute, and the courts of this State will not aid the company to enforce them. Our conclusion finds support in the following authorities: Cincinnati Mut. Health Assurance Co. v. Rosenthal, 55 Ill. 86; American Ins. Co. v. Stoy, 41 Mich. 401; Ætna Insurance Co. v. Harvey, 11 Wis. 394. The certificate of the trial judge does not show where the policies make the assessments in question payable; but we have, for the purposes of this appeal, assumed that the policies are Wisconsin contracts, designed to be performed there.”

A similar holding will be found in Swing v. Munson, 191 Pa. 582 (58 L. R. A. 223). In that case this plaintiff was trying to collect assessments in Pennsylvania. Upon the assumption that the contract was made in Ohio the court said:

“ It is argued that the contract was made in the State of Ohio. It being valid there, under the Constitution of the United States, it is enforceable in Pennsylvania. The evidence does not show that the contract was made in Ohio. To our minds, it shows quite the contrary. The attempt by a pretense to shift the place of the contract to Ohio, to evade the prohibitions of our statutes, is so manifest that it would, perhaps, have warranted a peremptory instruction to the jury to find for defendant on the evidence. But that we may meet a more important question, because it affects the interests of all foreign insurance companies that seek to do business in this State, we prefer to assume that the contract was made in Ohio, and is lawful there. It was a contract, however, in direct violation of the laws of this State. It was the indemnification of a citizen of Pennsylvania against loss by fire on property wholly within Pennsylvania. Without regard to where the contract was made, the subject of it was property within this State. It is the attempt of a foreign insurance company to do business in this State in violation of the laws of this State. * * *
“ All these acts were violated by this appellant corporation. It made no pretense of observing the provisions of any of them. Assume that the contract, because made in Ohio, could have been enforced in the courts of that State, it does not follow that the courts of this State will lend their aid to the enforcement of a contract in violation of' its own policy as declared in its laws. If these laws contravene the Constitution of the United States, or that of Pennsylvania, our courts would enforce the contract, because it would then be lawful here, as in Ohio. But if our statute be constitutional, then the contract is directly opposed to our declared law. * * *
“ Our legislature had the constitutional power to enact these statutes. Under them this contract is unlawful in. this State. Shall our courts by enforcing it declare it lawful ? This would be subversive of the very policy our State had adopted. It would, as to results, repeal all the statutes regulating contracts with foreign insurance companies.”

We think the question has been passed upon and is foreclosed in this State, and see no reason for asserting a contrary doctrine.

Is the absence of notice of this defense prohibitive ? In the case of Heffron v. Daly, 133 Mich. 613, we held that it is the duty of the court to take notice of an illegality in a contract, although not pleaded. Richardson v. Buhl, 77 Mich. 632 (6 L. R. A. 457); Oscanyanv. Arms Co., 103 U. S. 261. Although it be conceded that the contract was valid, because made in Ohio, it is so far in contravention of our law as to justify the application of that rule.

, The judgment should be affirmed.

Carpenter, C. J., and McAlvay, Montgomery, and Moore, JJ., concurred with Hooker, J.

Ostrander, J.

(dissenting). It is contended for appellant that this case and Swing v. Lumber Co., 140 Mich. 344 (see, also, Swing v. Munson, 191 Pa. 582 [58 L. R. A. 223]), are to be distinguished by the fact that in this case the evidence fails to show any act of the insurance company within the State of Michigan. The further contention is made that no notice was given by defendants of an intention to prove or to rely upon the fact that the insurance company was not authorized to do business in Michigan. The case made by plaintiff was, in substance, the same as the one made in Swing v. Lumber Co., supra, so far as the nature of the claim and the character and authority of plaintiff are concerned. It appeared, however, and the court found, that the policies of insurance were issued in Ohio upon applications made by citizens of Illinois, who paid the premiums and received the policies. It does not appear that any act in effecting the insurance was done within this State. The policies were made payable to Cameron Bros., who are residents of Michigan, and the property insured was situated in Michigan. Defendants proved, over objection, that the insurance company never complied with the laws of Michigan, and had not authority to do business therein, and offered no testimony in denial of that presented by plaintiff. The trial court found as matter of law that plaintiff could not maintain his action, and that it was the duty of the court sua sponte to notice the fact that the policies were issued by a company not anthorized to do business in this State. As to the last point, appellants rely upon Warner v. Delbridge & Cameron Co., 110 Mich. 590 (34 L. R. A. 701), where it is held that the suggestion that it was not proved that a foreign insurance company had authority to' do business in this State, made for the first time in this court, came too late. In the case at bar the defendants .made the proof, the court received it, and the question is whether we shall reverse the judgment because defendants gave no notice of the intention to introduce the proof. Plaintiff was not surprised by the evidence. The fact is not a disputable one. Upon a new trial, if one was ordered, an amendment of the notice, if required, would be permitted as of course, so that there is involved the question of costs of this appeal only. But I am of opinion that the court was right in admitting the evidence and in giving it effect, if satisfied that upon the facts which were found the courts of this State were closed to the plaintiff. The statutory prohibition is intended, primarily, to make effectual a State policy, and not to afford -to individuals a method of defending suits. Much-that is said in the opinions in Richardson v. Buhl, 77 Mich. 632 (6 L. R. A. 457), and in Heffron v. Daly, 133 Mich. 615, upon the subject, is in point here.

As to the meritorious question: By section 5136, 2 Comp. Laws, it is provided that “ no insurance company, or officer, or agent, or agents of any insurance company, unincorporated or incorporated in any other State, shall transact any business of insurance in this State, unless,” etc. By sections 10466, 10467, 3 Comp. Laws, it is provided that a foreign corporation may prosecute in the courts of this State in the same manner as corporations created under the laws of this State, but that when by the laws of this State an act is forbidden to be done by any corporation without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of or entered into in consideration of such act.

It is contended for the appellant that the facts conclusively'show that the insurance company did not transact “ any business of insurance in this State ” within the proper meaning of section 5136; that, the original contract being valid and binding and entered into without this State, the courts of this State cannot lawfully be closed to the enforcement of a liability arising out of it; that a construction of our statutes which will have the effect of bringing the acts done, in effecting this insurance, within the prohibition of the statute, is forbidden by the Federal Constitution, and if such a construction is required by the terms of the statute, it results in a denial of rights guaranteed by section 1 of the Fourteenth Amendment of the Constitution of the United States. It has been settled by repeated ajudications of the Supreme Court of the United States that foreign corporations do business in a State as a matter of grace and not of right, and the State may prescribe such rules as it may see fit to regulate the privilege granted and to protect its citizens. It seems to be equally well settled that a corporation of any State, lawfully organized, may contract within that State with any person, firm, or corporation, agreeably with the statute requirements of its domicile, in carrying on the business it is organized to do; that, the contracts being personal, the residence of the persons with whom it makes them is not important or controlling as to the lawfulness of the bargain or its enforcement by either party.

The case Allgeyer v. Louisiana, 165 U. S. 578, is decisive of the question. An act of the legislature of Louisiana was entitled: “An act to prevent persons, corporations or firms from dealing with marine insurance companies that have not complied with law,” and provided:

* ‘ Any person, firm or corporation who shall fill up, sign or issue in this State any certificate of insurance under an open marine policy, or who in any manner whatever does any act in this State to effect, for himself or for another, insurance on property, then in this State, in any marine insurance company which has not complied in all respects with the laws of this State, shall be subject to a fine of one thousand dollars, for each offense, which shall be sued for in any competent court by the attorney, general for the use and benefit of the charity hospitals in New Orleans and Shreveport.” Act No. 66, Acts of 1894.

The State sought to recover against the defendants for three violations of the act. Defendants were exporters of cotton from the port of New Orleans to ports in Great Britain, selling cotton in New Orleans to purchasers in said ports. They had made with the Atlantic Mutual Insurance Company of New York a contract for an open policy of marine insurance. It was the custom of business to draw a bill of exchange against the purchaser of cotton, attaching to it the bill of lading and an order on the Atlantic Mutual Insurance Company for a new and sepárate policy of insurance, under the said open policy, which covered cotton in bales purchased and shipped by them, shipments being reported to the company by mail or telegraph. The bill of exchange, with the bill of lading and order for insurance attached, was presented to the insurance company, which issued and delivered to the holder of the bill of lading and the bill of exchange, if it had been negotiated, or to the agent of defendant if not negotiated, a new and separate policy of insurance in accordance with the contract under the open policy. The Atlantic Mutual Insurance Company was a corporation created by the laws of New York, domiciled and carrying on business in that State. It had no agent-in the State of Louisiana, and had not complied with the conditions imposed by the laws of that State for doing business therein. The supreme court of the State of Louisiana gave judgment in favor of the plaintiff as for one violation of the statute, to review which judgment an appeal was taken to the Supreme Court of the United States. The constitution of Louisiana provided (Act 264), also:

“No foreign -corporation shall do any business in this-State without having one or more known places of business, and an authorized agent or agents in the State, upon whom process may be served.”

It was held that the statute in question was, as applied, a violation of the Federal Constitution, and afforded no justification for the judgment awarded against the plaintiffs in error. The case distinguishes Hooper v. California, 155 U. S. 648, in which the conviction of an insurance agent in the State courts was affirmed, from the opinion in which case the following excerpt, indicative of the ground of the decision, is taken:

“ It is said that the right of a citizen to contract for insurance for himself is guaranteed by the Fourteenth. Amendment, and that, therefore, he cannot be deprived by the State of the capacity to so contract through an agent. The Fourteenth Amendment, however, does not guarantee the citizen the right to make within his State, either directly or indirectly, a contract the making whereof is constitutionally forbidden by the State. The proposition, that, because a citizen might make such a contract for himself beyond the confines of his State, therefore he might authorize an agent to violate in his behalf the laws of his State within her own limits, involves a clear non sequitur and ignores the vital distinction between acts done within and acts done beyond a State’s jurisdiction.”

The supreme court of Louisiana held that the act of writing within that State the letter of notification to the insurance company in New York was an act done to effect insurance on property then in the State and was therefore prohibited by the statute. It is said in the opinion of the Supreme Court of the United States:

“ It was a valid contract, made outside of the State, to be performed outside of the State, although the subject was property temporarily within the State. As the contract was valid in the place where made and where it was to be performed, the party to the contract upon whom is devolved the right or duty to send the notification in order that the insurance provided for by the contract may attach to the property specified in the shipment mentioned in the notice, must have the liberty to do that act and to give that notification within the limits of the State, any prohibition of the State statute to the contrary notwithstanding. The giving of the notice is a mere collateral matter. It is not the contract itself, but is an act performed pursuant to a valid contract which the State had no right or jurisdiction to prevent its citizens from making outside the limits of the State.
“The Atlantic Mutual Insurance Company of New York has done no business of insurance within the State of Louisiana, and has not subjected itself to any provisions of the statute in question. It had the' right to enter into a contract in New York with citizens of Louisiana for the purpose of insuring the property of its citizens, even if that property were in the State of Louisiana, and cor-relatively the citizens of Louisiana had the right without the State of entering into contract with an insurance company for the same purpose. Any act of the State legislature which should prevent the entering into such a contract, or the mailing within the State of Louisiana of such a notification as is mentioned in this case, is an improper and illegal interference with the conduct of the citizen, although residing in Louisiana, in his right to contract and to carry out the terms of a contract validly entered into outside and beyond the jurisdiction of the State.”

See, also, Lamb v. Bowser, 7 Biss. (U. S.) 315; Marine Ins. Co. v. Railway Co., 41 Fed. 643; Com. v. Biddle, 139 Pa. 605 (11 L. R. A. 561); Swing v. Hill, 165 Ind. 411; Swing v. Storage Co. (Ind. App.), 76 N. E. 1117; Swing v. Brister (Miss.), 40 So. 146.

There is language used in the opinion in Seamans v. Temple Co., 105 Mich. 400 (28 L. R. A. 430), which, if controlling here, will require us to hold that the issuing of the policy was an act forbidden to be done without express authority of our law. That case did not call for a determination of the question; it being expressly found that the insurance company had agents in the State and was in fact, through its agents, and without compliance with the statute, doing businsss in this State. So, in People’s Mut. Ben. Society v. Lester, 105 Mich. 716, it was found, expressly, that defendant was an agent of the plaintiff, doing business for it in this State. In both of those cases the right of the plaintiff to maintain its action is expressly denied. But, if the acts of the insurance company in the case at bar can be held violative of the statute only by giving the statute a construction opposed to the Federal Constitution, it must be determined that there was no violation of the statute, and that the issuing of the policies was not prohibited by the statute and was not an act forbidden to be done without express authority of law. It follows that the provisions of section 10467, 3 Comp. Laws, have no application. See Clay Fire & Marine Ins. Co. v. Manufacturing Co., 31 Mich. 346, 354.

It remains to consider whether for any other reasons plaintiff should be denied the right to maintain his action. The general policy of the State in this regard is declared in section 10466, 3 Comp. Laws, already referred to. There is nothing vicious, immoral, or criminal in the nature of the contracts of insurance which were made. It cannot reasonably be said that evidences of State policy may be created by giving to a statute a construction which nullifies the Federal Constitution. The case, as presented, is one in which plaintiff is seeking to enforce, in the courts of this State, obligations arising out of contracts which were valid, and the making of which was not prohibited by the laws of this State. I am of opinion that no good objection has been made.

The case was tried by the court without a jury, and findings of fact and of law were made. The court gave judgment for defendants, for the reason that in his opinion plaintiff was prohibited the use of the courts of the State. Appellant asks that the judgment be reversed, and one entered here in his favor. This may be done if the facts found will sustain such a judgment. It is stated in the finding of facts that there is no evidence upon certain material points, “excepting such inference as may be, drawn from entries upon the books of the insurance company.” These entries are set out, but the inference is not drawn. The court does not, by inference or otherwise, find an ultimate fact essential to a recovery by the plaintiff. For this reason, we are obliged to order & new trial.

Judgment should be reversed, and a new trial granted.

Grant and Blair, JJ., concurred with Ostrander, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    SCHREMMS v. PERE MARQUETTE RAILROAD CO.
    Railroads — Injuries at Crossings — Contributory Negligence —Presumptions.
    Where a traveler on the highway is killed at a 'railroad crossing by a locomotive running backwards at a high rate of speed and displaying no light except a red signal not intended to cast light ahead, and there is evidence that the statutory signals were not sounded, but no eyewitnesses to the killing, there is no presumption that deceased failed to stop, look, and listen, and was therefore guilty of contributory negligence.
    Error to Saginaw; Beach, J.
    Submitted February 14, 1906.
    (Docket No. 163.)
    Decided July 23, 1906.
    Case by Michael Schremms, Jr., administrator of the estate of Michael Schremms, deceased, against the Pere Marquette Railroad Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      F. W. Stevens (John O. Weadoek, of counsel), for appellant.

      Eugene Wilber and Fred L. Eaton, for appellee.
   Moore, J.

The plaintiff recovered a judgment in the court below. The defendant brings the case here by writ of error.

The claim of defendant, as stated by its counsel in their brief, is:

“ There is no testimony in this case as to the conduct of the plaintiff’s intestate as he approached the crossing, and in so far as establishing freedom from contributory negligence is concerned, the plaintiff rested his case entirely on the presumption that his intestate did stop, look, and listen before going upon the track of the defendant. The trial ■court left it to the jury to say whether or not this presumption had been overcome by the evidence. This was error. The undisputed testimony shows that if plaintiff’s intestate stopped, looked, and listened, he must have seen or heard the approaching engine, and raises the conclusive presumption that he did not stop, look, and listen, or that if .he did, he did not heed what he saw or heard.
“ One who is struck by a moving train which could be ■seen or heard from the point he occupied when it became his duty to stop, look, and listen, must be conclusively ■presumed to have disregarded that duty, or having performed it, to have gone negligently into obvious danger. [Citing Kwiotkowski v. Railway Co., 70 Mich. 549, and many other cases.]
“ Had he stopped and listened for the train as it was his •duty to do, he would have heard it, and avoided the danger. The presumption, therefore, is that he either did not do his duty in these regards, or that he ventured blindly into an obvious peril. The judge should have directed a verdict for the defendant, on the ground that plaintiff had failed to show that his intestate was free from contributory negligence.”

There is not very much dispute about the law, but the difficulty comes in applying it to a given case, therefore it is important to recall the case made by the testimony of the plaintiff.

Plaintiff’s intestate was instantly killed by the tender attached to one of defendant’s locomotives, as he was driving across a highway crossing, a short distance north of Saginaw, on the evening of November 14, 1904. There was no eyewitness of the accident. The highway at that point runs north and south, and the railroad track, which is elevated somewhat above the level of the surrounding country, runs northeast and southwest. Plaintiff’s intestate approached the crossing from the south, and the loco.motive with which he collided approached from the southwest. In the daytime the traveler approaching the crossing from the south could for nearly all of the time see a locomotive approaching from the southwest - for a half mile before he reached the crossing. The objects that -would tend to obstruct his vision at any time were some small buildings, the telegraph poles, and some trees. Plaintiff’s intestate was familiar with the crossing, having traveled over it almost daily for many years. He had a gentle team and was a good driver. The tender which struck him was moving backwards from Saginaw toward Bay City, at the time of the accident. There was a red light hanging on the tender, which was in front, as the locomotive with the tender attached was running backward . There were also two small white classification lights on the sides of the smoke stack. The headlight was in its usual place on the head end of the engine.

Plaintiff introduced evidence tending to show that defendant’s engine approached this crossing running at a rate of 25 or 30 miles an hour, and that the locomotive whistle was not sounded before the engine reached the crossing, and that the bell was not ringing. It was the claim of defendant that the crossing signals were given. The highway near the crossing had been recently graveled, and a wagon in motion over it would make considerable noise. It was very dark at the time of the accident, and there was some wind from the northeast. The locomotive left Saginaw some time after 5:45 p. m., ahead of a passenger train which was to leave a little later. The fireman testified, among other things:

“As we approached the crossing, I looked ahead. I was on the side from which Mr. Schremms approached the crossing. It was dark that night, and I did not see Mr. Schremms, nor did I see the wagon or team. When we got to the crossing I heard a noise and the dirt flew up by the windows and I hollered over to the engineer that I thought we had torn up the crossing.”

The engine was then stopped, and the fireman went back to warn the expected passenger train. Neither the fireman nor engineer knew they had struck a team and wagon until after the engine was stopped.

On the cross-examination the fireman testified:

“I did not see Mr. Schremms or his team. I thought we had struck the crossing and torn it up as we went across. I had no idea that we had struck a double team.
‘ ‘ Q. How far were you from this red light hung on the rear of the tender ?
“A. About 13 or 14 feet.
Q. That light would shine out on the track, wouldn’t it, what light there was P
“ A. Well, it wouldn’t show the rails or anything like that.
Q. Well, I mean the light that would be thrown forward would be thrown towards this team, wouldn’t it ?
“A. Yes, sir.
Q. Tell me why when you were looking right there at that crossing you couldn’t see that team ?
“ A. There wouldn’t be enough reflection to see a team, with a red lamp.
Q. You couldn’t see a double team by that light 13 feet away, that is true, is it ?
“A. Yes, sir.
Q. It couldn’t have been a very brilliant light, could it?
“A. Well, I don’t think you could see anything with a red lamp anyway. * * * The classification lights were white lights on each side of the smoke stack. , They would not throw any light in the rear of the tender. They didn’t help to discover the team on the track. The classification lights are placed so that they show only a little light on each side — about 3 inches in diameter. They are not intended to throw any light to the rear. It is usual when we are running an engine and tender to have a red light in the rear. If we had cars we would have had 3 or 4 red lights on the back end of the caboose. We never run trains in the night-time without having red lights on the rear. If we had a headlight placed on the rear of the tender it would have shown a bigger light, and would light up the track quite a distance ahead of us. We had not been in the habit of running this engine over the track at this hour of the day before. I don’t know whether the engine had ever been down there before that time or not.”

On the redirect examination he testified:

“ The engine we had was a large engine called a consolidated engine. I have had occasion to see red lamps frequently. They are not used for the purpose of throwing light to see by, but for the purpose of being seen. On a train we would also have more than one red light at the rear. The regulation is three red lights and sometimes they have four; one on each side of the caboose and the deck light in the cupola of the caboose.”

The testimony of the engineer did not differ materially from that of the fireman.

Counsel in their brief say it is a.matter of common knowledge that a red light is always a warning of danger. It might also be added that it is a matter of common knowledge, that red lights are displayed at the rear of trains. This is also shown by the testimony of the fireman and engineer. In the direction from which the train was approaching the deceased, there was a red switch light leading to a siding which ended before it reached the highway. At this point the railroad track made a decided curve, so that when the deceased was 40 to 60 feet away from the track, the locomotive and tender, instead of coming toward him at an angle, were coming directly toward him, making it difficult to tell whether the train was coming or going. The situation, then, was that Mr. Schremms was approaching a highway crossing with which he was perfectly familiar, when it was very dark, at a time when a passenger train might be expected soon to go north. For nearly all the time he could have seen a well lighted passenger train, or a freight train equipped with a headlight for a long distance. He knew that. If he looked he did not see a passenger train nor did he see an approaching train with a headlight. If he saw any light at all it was a red light, which, so far as it conveyed any information at all in relation to the proximity of a train, would indicate that he was looking at the rear of a train instead of an approaching one; or that what he saw was the switch light leading to the siding before mentioned, of which he had knowledge. But it is said had he stopped and listened he would have heard, and the testimony of Mrs. Lawrence is cited to sustain that claim. Her house is about eight rods south of the crossing. She.was listening for the train upon which she expected her husband to come.

“I was waiting to hear the whistle, when I heard a "train rushing by at a terrible speed. I thought to myself Is that the train ? I didn’t hear it whistle.’ I rushed to the kitchen window and pushed up the curtain as the engine went by. * * *
Q. Now, you heard the bell ringing ?
‘A. I heard the bell after I put the curtain up once or twice. * * *
“ I could see or tell by the noise that it was an engine. I saw just a faint light as it passed. It had just passed "the house when I saw it. I just had an instant to look at it, but in that instant I saw this light. As I looked at it I thought it had just crossed the highway. It had crossed over the culvert.”

This indicates clearly that this witness heard no whistle. That when she first heard the noise of the train, it was rushing past the house; that she at once pushed up the curtain, and that it was not until after this she heard the bell, and simultaneous with this the tender and engine crossed the highway. Giving this testimony its fullest effect there is nothing in it indicating the engine could be heard or that the bell was rung in time to be of any use whatever to the deceased.

There were othef witnesses in a position to hear, who heard neither bell nor whistle. The testimony we have already quoted shows it was so dark the engineer and fireman did not know they had struck this team until after the engine was stopped. How then could they know when to whistle for the crossing ? Certainly not from seeing the approach to it, though it is quite possible the switch light might have aided them. But even if the 'deceased had heard the noise and knew it to be an engine, upon seeing the red light, which indicated the rear of it was toward him, he might naturally suppose it had been putting cars on siding^, and was on its way back to the city.

The precaution Mr. Schremms was bound by the law to take was the cafe that an ordinarily prudent man would have exercised under like circumstances. It cannot be said from the evidence in this case that he did not do so. He is not here to give his version of the transaction. In the absence of testimony to show otherwise the presumption is he was in the exercise of due care. See Mynning v. Railroad Co., 64 Mich. 93.

In Staal v. Railroad Co., 57 Mich. 239, Justice Campbell, speaking for the court, said:

“In the absence of any knowledge of what was passing in his mind, we cannot hold him conclusively at fault unless there is no sensible explanation to the contrary reasonably possible. But he had a right to suppose that defendant would not violate any legal duty, and he could not be bound to suppose it would fail to take reasonable measures to prevent mischief. ”

It cannot be said in this case that, because Mr. Schremms was killed, the presumption that he looked and listened is overcome. If the train had been running with a headlight where it belonged, where the traveler on the highway could- have seen it, and he was then killed, a very different question would be presented. As bearing upon the degree of care required, see, also, Guggenheim v. Railroad Co., 66 Mich. 150. It was not error for the judge to refuse to direct a verdict for defendant. The testimony of the engineer and fireman as to the manner of running this train upon a dark night, without proper equipment to indicate its proximity to one traveling upon the highway, indicates such a reckless disregard of the rights of the traveler upon the highway as to merit the severest censure.

Judgment is affirmed.

McAlvay, Grant, Blair, and Montgomery, JJ., concurred.


author: Grant, J.

text:
    GETCHELL v. DUSENBUBY.
    1. Fraud — Deceit—Misrepresentations—Matters of Opinion.
    Bepresentations made to induce the purchase of stock in a corporation which are mere matters of opinion are not actionable though false.

      2. Same — Conspiracy—Corporations—Increase op Stock — Sale by Directors.
    Where the stockholders and directors of a corporation vote to increase its capital stock in good faith, it becomes their duty to promote the sale of such stock by all legitimate means, and that they act in concert in the matter of promoting the sale is no evidence of a conspiracy.
    3. Statute op Frauds — Bepresentations—Credit op Corporation-Liability op Officers.
    Bepresentations as to the credit and ability of a bona fide corporation, made by its officers in a good faith attempt to sell its stock, out of which sales they make no personal profit,' are representations concerning the credit of another, and are not actionable unless in writing (§ 9518, 3 Comp. Laws).
    4. Fraud — Bepresentations—Corporations—Purchase of Stock —Evidence.
    A purchaser of stock in a corporation cannot recover against the directors for fraud in inducing the purchase, where he became a director soon after purchasing his stock and participated as such in the transactions of the corporation, and there is no evidence that such transactions were not the cause of the failure of the corporation.
    5. Statute of Frauds — Bepresentations—Credit of Corporation — Liability of Agent Selling Stock.
    An agent selling the stock of a corporation on commission and making false representations in regard to its credit and ability is not protected by the statute (§ 9518, 3 Comp. Laws) providing that representations concerning the credit of another shall not be actionable unless in writing.
    Error to Isabella; Chittenden, J., presiding.
    Submitted January 31, 1906.
    (Docket No. 114.)
    Decided July 23, 1906.

      Case by Albert T. Getchell against George A. Dusenbury, Albert W. Bahlke, and others, for fraud. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed as to defendant Bahlke, and affirmed as to the other defendants.
    The declaration in this case alleges that the defendants were officers, directors, stockholders, agents, and employés of the Mt. Pleasant Body Works, a corporation situated at Mt. Pleasant, and engaged in the manufacture of a, “plugless buggy” box; that by virtue of their relations to the corporation they were acquainted with its financial condition and had the necessary knowledge and information to enable them to make a full, true, and correct statement of its affairs and conditions; that defendants Dusenbury, Dains, Lewis, and Taylor were personally responsible for some of the debts of the corporation, and interested in securing money to pay its debts; that its capital stock was $12,000, fully paid in; that it was in debt on Februruary 17, 1903, the date alleged in the declaration on which defendant paid a subscription of $1,250 to the increased capital stock of the company; that defendant Bahlke, as the agent of the defendants, falsely and fraudulently represented to the public in general and to the plaintiff in particular that the business of the corporation was flourishing and prosperous and past its experimental stage, was upon a paying basis and paying good dividends, was out of debt, and had a large number of orders on hand; that all the company lacked was an increase in its. capital stock furnishing more money to enable it to earn large dividends; that these false and fraudulent representations were made in pursuance of a fraudulent conspiracy entered into by the defendants to defraud the public generally and the plaintiff in particular. The declaration also, alleges that “ the defendants Dusenbury, Dains, Lewis, and Taylor were personally liable and responsible for the debts of said corporation, and interested personally in securing the money to be obtained by the fraudulent conspiracy.” The declaration is based upon conspiracy. After stating the above facts and some others, the declaration proceeds:
    ' “And while the said corporation and its affairs was in the condition aforesaid, and on, to wit, the date aforesaid, at the city of Mt. Pleasant, in the county of Isabella, and State of Michigan, the said defendants Dusenbury, Taylor, Dains, and Lewis, being four of the directors of said corporation, and the said defendant Lathrop being one of the stockholders thereof, and all of the said defendants having full knowledge of the condition of said corporation and its affairs as aforesaid, * * * did fraudulently, secretly, and deceitfully conspire together, among themselves and with the other defendant Albert W. Bahlke, who was then and there possessed of full knowledge of the said affairs also, and the said Albert W. Bahlke did then and there fraudulently, secretly, and deceitfully conspire with the other defendants named, all to form and make among and between themselves an unlawful confederacy and conspiracy to defraud the plaintiff herein, in manner and form as follows.”
    Then follows a description of the means resorted to and the effect thereof. At the conclusion of the plaintiff’s case the court directed a verdict for the defendants upon the ground that the evidence failed to establish a conspiracy or fraud on the part of any of the defendants except Mr. Bahlke.
    Plaintiff testified that Bahlke came to him with a proposition to buy some stock; that Bahlke said to him:
    “ ‘If you understood this thing you would take stock, because it is one of the finest bodies made, and this body is bound to be a money-maker. There is no question about it. We are making money now. We have got beyond the experimental stage and we are making money. We know just exactly what we are making on a body.’ And he took out his paper and had his figures to show up just what was the cost for each part of the body, and he says, ‘We get so much.’ I don’t remember just the figures now, but it made a good fair profit on a body, I think. ‘ Well,’ I says, ‘ can you sell them for that ?’ He says: ‘Yes, there’s no question about it. We have got orders ahead to run Us a year, and we will have no trouble in selling them,’ I says: ‘What is there about this body that makes it so much better than others ? ’ He went on to show me the best he could about the patent, and told me about it, and said he wanted me to go down to the factory and see the body. ‘ Well,’ I says, ‘do you own the patent ? ’ He says, ‘ Yes, we own the patent, and we own the factory.’ ”
    He further testified that Bahlke told him who the directors and some of the stockholders were, and said: “You know them all. You are acquainted with all these men. They are representative business men here. They would not be in it if there was no money in it ” — and told him to see them. Plaintiff went to the factory, examined it, and thought it the best buggy box he ever saw. Among the names of the officers and stockholders so stated to him by Bahlke were the defendants. Plaintiff further testified that he talked with each one of them separately, and told them what Bahlke had said; that each stated that what Bahlke said was true. After considering the matter plaintiff 'signed a subscription blank on January 15, 1903, and subsequently, on February 17th, gave his check for the amount. The evidence discloses that defedants Dains, Lewis, Taylor, and another director, Johnson, were indorsers on the paper of the company to the amount of $1,000 at the time it was voted to increase the capital stock. The paper had not been paid when this, suit was commenced. On April 14, 1903, defendants Dains, Lewis, Taylor, and Lathrop indorsed the company’s paper for $2,000, and on March 10, 1903, they indorsed another note for $294.84. These notes were unpaid when suit was commenced. Defendant Lewis subscribed and paid for new stock to the amount of $350, defendant Dusenbury to the amount of $200, defendant Dains to the amount of $150, defendant Lathrop to the amount of $500, and Bahlke $100. The relatives and business associates of some of the defendants subscribed and paid for new stock to the amount of $1,000. After the new stock was voted and sold, $700 was paid upon notes upon which some of the defendants were indorsers. These notes were not in existence at the time it was voted to increase the capital stock. One was a note for $200, dated November 29, 1902, due in 60 days; one for $200, dated December 8, 1902, due in 90 days; and a third for $200, dated December 8, 1903, due in 90 days. These were subsequently paid, and another $100 indorsed upon a note for $900, due in 90 days, and dated December 13, 1902. All the money subscribed was legitimately used in paying the debts of "the company.

      John T. Mathews, for appellant.

      Charles T. Bussell, F. McNamara, and I. A. Fancher, for appellees.
   Grant, J.

(after stating the facts). Those representations which were made by Bahlke or by any other of the defendants, which were mere matters of opinion, are immaterial. Plaintiff testified to the statement of the defendants as above set forth, and gave some evidence tending to show that they were not true, and might have been inown by defendants to be untrue, and that he relied upon them in making his subscription.

There is no evidence that the directors and stockholders of the defendant did not act in entire good faith in deciding to increase the capital stock of the company and in employing Mr. Bahlke to sell it. His commission was reasonable. After the stockholders had voted the increase, it was the duty of the defendant directors to act "together and to promote the sale of the stock in all legitimate ways. That they did act together for that purpose is no evidence of a conspiracy. The record is not very satisfactory as to what occurred on October 10th at the meeting of the stockholders to determine whether there should be an increase of the capital stock. One Johnson, then a director, a witness for plaintiff, who voted for the increase, testified:

“ It is a fact that the directors laid the whole condition, of the company before the stockholders on the 10th of October.”

He also testified:

“I don’t remember of any statement of the condition of the company being read at the meeting of the stockholders.”

Even if the declaration were sufficiently broad to include the charge of fraud aside from conspiracy, the case as to the directors would clearly come within the statute of frauds (3 Comp. Laws, § 9518), providing that:

“No action shall be brought to charge any person, upon or by reason of any favorable representation or assurance, made concerning the character, conduct, credit,, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person, thereunto by him lawfully authorized.”

The defendant directors were not acting in their own behalf. They were not selling their own stock. They made no profit by the transaction. They were not floating a spurious corporation. They were in good faith carrying out the direction of the stockholders of a bona fide corporation. They could not be held guilty of fraud upon the charge that they profited by the transaction, because they did not. The defendants were representing.the good faith and credit of another and not themselves, and therefore are within the statute. Bush v. Sprague, 51 Mich. 41; Hubbard v. Long, 105 Mich. 442, 449; Hess v. Culver, 77 Mich. 602 (6 L. R. A. 498).

It is unnecessary to enter into the history of this corporation subsequent to the increase of its capital stock, and the cause of its final failure. _ Plaintiff was made a director soon after he subscribed, and participated in all the subsequent transactions. As the circuit judge said, there was no evidence to show that the transactions, subsequent to the time of plaintiff’s subscription, in which he participated, were not the cause of the failure of the corporation.

Defendant Bahlke occupies a different position in the transaction than do the other defendants. He was the only one who was directly to profit by the transaction by receiving a commission. It is said in Hess v. Culver, supra:

“ That statute cannot apply to conspiracies or frauds where the representation is made to enable the party making it to profit by it.”

I think that under the authorities the statute does not cover the representation made by Bahlke. See Krause v. Cook, 144 Mich. 365.

It follows that the judgment must be reversed as to defendant Bahlke, and a new trial ordered, and affirmed as to the other defendants.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Blair, J.

text:
    RIX v. SMITH.
    1. Boundaries — Highways—Agreement or Parties.
    Where the owners of lands adjacent to a highway have acquiesced for many years in a change in the highway lines, have located the lines of buildings with reference to such change, and the last grantor of a lot has conveyed to another with an oral declaration recognizing such new boundary, the description in such conveyance, as against subsequent grantees, must be construed with regard to such boundary.
    2. Same — Evidence—Declarations or Grantor — Admissibility.
    Declarations of a grantor contemporaneous with the making of a deed, and made for the purpose of settling the boundary of the land conveyed, are admissible in evidence as against the grantor and those claiming under him.

      8. Same — Highways—Change of Boundaries — Agreement of Parties — Effect—Question for Jury.
    Where lot owners, by building back from the line of a street, as shown on the plat, and occupying the space by sidewalk, apparently widen the street to that extent, the question whether the land conveyed by a deed of a certain number of feet of the lot should include or exclude the strip apparently abandoned to the street is for the jury, though there is no evidence of acceptance of the strip by the public authorities.
    4. Evidence — Parol Evidence Varying Writings — Deeds.
    Where the description in a deed calls for a certain number of feet in the depth of a lot, and not for a particular fraction of the lot, testimony that shows that the street in front of the lot is wider than the plat indicates, and that the grantee’s land extends a corresponding distance farther from the street, does not vary the description in the deed by parol, but simply locates the boundaries of the land upon the ground.
    5. Same — Declarations—Grantors—Grantee’s Title.
    Declarations of a grantor with respect to his grantee’s title, made after the execution of the deed, and after the grantor had parted with his entire interest in the premises, are inadmissible.
    6. Ejectment — Evidence—Issues—Scope.
    Testimony showing the feeble condition of plaintiff’s grantor at the time of executing the deed on which plaintiff relies, and other circumstances tending to impeach the fairness of plaintiff’s methods in procuring the deed, are not admissible in ejectment, but can only be considered in some equitable proceeding to vacate or reform the deed.
    7. Witnesses — Competency—Transactions With Person Since Deceased.
    Where plaintiff and defendant in ejectment both claim under the same grantor, who is dead, the dispute being as to the location of the boundary between their respective holdings, defendant cannot testify as to the grantor’s acts and conversation at the time of measuring off his land. (Section 10212, 3 Comp. Laws.)
    Error to Van Burén; Carr, J.
    Submitted February 13, 1906.
    (Docket No. 141.)
    Decided July 23, 1906.
    Ejectment by Jennie Rix against Eugene H. Smith. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Eugene W. Lawton, for appellant.

      L. A. Tabor, for appellee.
   Blair, J.

This is an action of ejectment to recover a strip of land 33 feet long by 10 feet wide. The rights of the respective parties to this strip of land depend upon the location of the west line of “lot 1 in block 3 of Dodge’s addition to the village of Lawton.” Plaintiff and defendant derive their title through a common grantor, Jannette M. Morrill. Defendant’s deed was executed April 18, 1899, and plaintiff’s on December 15, 1900. Jannette Morrill was the widow of, and derived her title to lot 1 through, Charles Morrill. Lot 1 is bounded on the west by Main street, which is described in the plat referred to in defendant’s deed as being 66 feet wide. In 1867 or 1868 Mr. Morrill constructed the defendant’s building and a drug store adjoining it on the north. The west line of these buildings, as well as of the other buildings in this vicinity, was located 10 feet east of the east line of Main street as platted. The same situation prevailed upon the opposite side of the street. Mr. Charles D. Lawton, who made the survey for Mr. Morrill, and who had made an earlier survey of Main street, testified:

“ I located the brick stores on the west side of Main street across from lot 1. These stores are now in the same place as they were at the time I made the survey. * * *
Q. I would ask you where the front of these stores are in relation to the lots ?
“A. On the line of the lots.
“Q. How far back west from the old line of the highway ?
“ A. Ten feet. * * * The distance from the front of the stores on the west side of Main street to the edge of the walk on the east side of the street is 76 feet. The width of the sidewalk at the front of the stores is 10 feet.
“Mr. Tabor: It is admitted that the walks on both sides of Main street are 10 feet.
“Mr. Lawton: Between the land in controversy. * * *
Q. What is the distance at the present time between the edges of the sidewalk ?
“A. Sixty-six feet, and the sidewalks are each 10 feet wide. * * * Going south on Main street, south of Third street, Main street from fence to fence across originally, it was 66 feet. It has been widened. I live on Main street, south of Third street, and in front of my house Main street is 66 feet wide, and with the walk makes 86 feet. * * * This is along the block of Dodge’s addition further south. * * *
“ Q. You say that Mr. Morrill built these two buildings that stand on the north part of lot one, the Smith and Showers Buildings, do you ?
“A. Yes, he did.
“ Q. Now, you say at that time you stuck stakes 10 feet from the front of the lot ?
“A. I did.
Q. That 10 feet is sidewalk, isn’t it ?
“A. Yes, sir.”

Juan McKeyes testified:

“I live at Lawton. My business is banking. I have lived in that vicinity for 40 years. I know what is known as Main street in the village of Lawton. It is 86 feet wide from store to store. They have been that way ever since they were built.
Q. Did you ever know of any building being built inside of that 86 feet ?
“A. I think not.
“ Q. Then the line of the street for more than 40 years has been right where it is now ?
“A. I think so. Very near that time, it has been just as it is now.
‘ ‘ Q. During that entire time, the street has been used and occupied by the public, and 86 feet wide ?
“A. Yes, sir. * * * I knew Jannette Morrill in
her lifetime about 25 years previous to her death. * * *
“ Q. Well, now, at the time she sold to Smith, do you know whether she was present on the lot that she sold to Smith?
“A. Yes, she was.
Q. Did she tell what was the front of the lot or west ■end of the lot was ?
A. I don’t know as she told, she directed the measurement.
Q. How many feet back ?
‘‘A. I think 75 feet back.
‘ ‘ Q. Did she tell how far back to measure ?
“A. Yes, sir. * * *
Q. Did she tell where that came to, any particular point ?
“A. We determined the point by measuring 75 feet.
Q. Where did that come as to the alley?
“A. Well, it came about to it, I think. I don’t know as I could tell exactly where the alley was. There is a load through there, but it is hard to tell just where the .alley would be, but this came to the west edge of it I should say. * * *
Q. So that the land that was conveyed to Smith extended from the front of the store to the alley ?
“ A. Yes, sir; that alley has been there 25 or 30 years ■or longer.”

Defendant testified:

Q. At the time you bought this land you may state whether or not it was measured by any one ?
A. Measured by Mr. McKeyes and myself.
Q. Well, was Mrs. Morrill present ?
A. She was.
Q. At the time you were measuring the land for the purpose of purchasing you may state if Mrs. Morrill made any statement as to where the west line was.
“ A. I asked Mrs. Morrill where the west line was, and she said it commenced on the west end of the building.
Q. Did she direct you where to commence measuring .from ?
“A. She did.
“Q. Where?
“A. The west end of the building.
Q. How far back did you measure ?
A. 75 feet. (To which questions and answers put to the defendant Smith, in regard to measurements, counsel for plaintiff objected, as contradicting defendant’s deed, and an attempt to establish a deed by parol).
The Court: Overruled pro forma. (To which ruling counsel for plaintiff excepted, and such exception was duly allowed.)
Q. What was said about the alley?
“A. I asked Mrs. Morrill whether the alley was laid out, and she said there was no laid-out alley.
Q. What was said about the point where your land, terminated, 75 feet terminated ?
A. She said the 75 feet terminated at the west edge of the alley ?
Q. West side of the alley ?
“A. Yes, sir.
“ Q. Did you measure it ?
“A. We did.
Q. State how near the alley it came.
“A. Just to the edge of the alley.”

Charles Showers testified:

“ I am the owner of the north part of lot one. I occupy that as a drug store. I own the building. I knew Gene Smith, the defendant. I was acquainted with Jannette Morrill in her lifetime. I know this alley. I expect it has been in constant use a good many years. I used it 16 years myself. I was draying, and I used it for hauling goods to the stores.
Q. You may state if you was present, in 1897, at the time the measurements was made between Mrs. Morrill, Mr. McKeyes, and Mr. Smith.
“A. I was there, yes, sir.
Q. Did you hear anything said by Mrs. Morrill as to where the west line of the lot was ?
“A. I heard her say where to commence to measure. At the front of the building, and told Mr. Smith to measure back 75 feet.
Q. Do you know where it come to ?
“A. He said that it went to the alley.
Q. You were there and saw them put the tape down ?
“A. I was. Mr. McKeyes was at the front of the building and Eugene Smith out at the back and they measured off 75 feet and stuck a little stake.
“ Q. Mrs. Morrill went back ?
“A. Yes; she and Mr. McKeyes. This was in 1897. They commenced at the west end of the building. Mr. Smith went right out the east door 75 feet and stuck a stake. * * * I have measured my building and it is 75 feet from the front end. I have lived in Lawton 43 years. There are two trees in front of my building, and one in front of Smith’s. * * *
Q. You have measured your building ?
“A. Yes, sir.
Q. And your building is right beside that ?
“A. Yes, sir.
Q. How long is your building from the front end?
“A. 75 feet.”

The court submitted to the jury for their determination •the location of the west line of lot 1, instructing them that if they found that such line was the west line of the sidewalk, their verdict should be for the plaintiff, but if they found that such line was the west front of the buildings, their verdict should be for the defendant. The jury found for the defendant, and plaintiff has brought the record to this court for review on writ of error.

Plaintiff’s counsel have grouped the assignments of error as follows:

“1. The court should have directed a verdict for the plaintiff. The plaintiff has the legal title to the 10 feet by 22 in dispute. There are no disputed facts in this case.
“2. It was error to permit the defendant to contradict his deed and establish title to the land in dispute by parol.
“ 3. The object of all registry laws is to protect title to land. That plaintiff had a right to rely on the record of the deeds, and that she is a bona fide purchaser.
“ 4. That it was error to permit the jury to pass upon anything in this case, as all the facts are undisputed; that it was error to let the jury change the west boundary of lot one, as its location is not disputed and is permanently located.
“ 5. Prejudicial errors in conducting the trial.”

We think the court did not err in submitting to the jury, as a question of fact, the true boundaries of the land described in defendant’s deed. While, according to the plat, which was expressly referred to in the deed, the lines of trees at the outer edges of the sidewalks marked the east and west boundaries of Main street, the owners of the lands adjacent to the street had apparently widened the street by 10 feet on each side. It is true that there is no evidence that the public authorities had constructed or repaired the sidewalks, or had done anything in the way of accepting this 10 feet covered by the sidewalk, but this is not conclusive of defendant’s rights. Where the owners of lands adjacent to a highway have acquiesced for many years in a change in the highway lines, have located the lines of buildings with reference to such change, and the last grantor of a lot has conveyed to another with an oral declaration recognizing such new boundary, the description in such conveyance, as against subsequent grantees, must be construed with regard to such boundary. The jury were at liberty to find, in this case, that the declarations of the grantor were contemporaneous with the making of the deed, and were made for the purpose of settling the street boundary. They were therefore admissible. Purkiss v. Benson, 28 Mich. 538; Reidinger v. Mining Co., 39 Mich. 30; Twogood v. Hoyt, 42 Mich. 609; Hoffman v. City of Port Huron, 102 Mich. 417; Moran v. Lezotte, 54 Mich. 83; White v. Peabody, 106 Mich. 144. As said in Twogood v. Hoyt, supra:

‘ ‘ Where streets * * * have, by the parties interested or by the public authorities, been opened, used, and acquiesced in, they thereby become permanent boundaries, and form new starting points in subsequent surveys of the premises.”

In this case, ;for over a generation this street had been openly, visibly, and notoriously 86 feet wide. The lot line of the west side of the street is conceded to be 43 feet from the center, and the circumstances disclosed by the testimony are quite convincing that the owners of the lands on the east side intended the same location for the line of their lots. The lot in question is 132 feet deep, and the description in defendant’s deed calls for 75 feet of this depth, and not for a specified fraction of the lot. There is therefore no varying of the description in the deed by parol, but simply a locating upon the ground of the east line of the street defined in the plat as the boundary of these lots. This distinguishes the case from De Long v. Baldwin, 111 Mich. 466, relied upon by plaintiff. This holding disposes of the first four groups of the assignment of errors.

Certain of the objections to the admission of testimony made by plaintiff’s counsel should have been sustained. The testimony of May Giddens to a conversation with Mrs. Morrill relative to plaintiff’s title after her deed to plaintiff, and when she had parted with her entire title to the premises in question, was incompetent, and the court •erred in receiving it.

The court also erred in admitting testimony of the feeble, diseased condition of Mrs. Morrill, and other circumstances tending to impeach the fairness of the plaintiff’s methods in procuring her deed. Such testimony was not competent in a suit at law, but could only be considered in some equitable proceeding to vacate or reform the deed.

The court also erred in permitting the defendant to testify to Mrs. Morrill’s acts and conversation at the time of measuring off his land. Such testimony was incompetent under the statute (3 Comp. Laws, § 10212), Mrs. Morrill being then dead.

We do not think it necessary to consider the other errors alleged, since they will not be likely to arise upon another trial.

The judgment is reversed, and a new trial granted.

McAlvay, Grant, Montgomery, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    MICKS v. MASON.
    1. Municipal Corporations — Ordinances — Fire Limits —Nuisances — Abatement.
    A municipality, possessing delegated authority to fix fire limits and to direct the manner of constructing buildings within such district with respect to protection against fire, may, by ordinance, provide that any building not constructed in accordance with the terms of the ordinance shall be deemed a nuisance, and authorize its abatement as such without a judicial determination that it is a nuisance.
    2. Judgment — Res Adjudioata — Matters Concluded.
    An acquittal by a jury in justice’s court, on a prosecution for violation of a city ordinance establishing fire limits, is not conclusive against the city in a subsequent bill for an injunction to restrain the city officers from removing the building in question as a nuisance because erected in violation of the ordinance.
    Appeal from Delta; Stone, J.
    Submitted April 4, 1906.
    (Docket No. 8.)
    Decided July 28, 1906.
    Bill by William J. Micks against Charles D. Mason, mayor, and Neis J. Gormsen and others, members of the common council of the city of Gladstone, to restrain the destruction of a building erected in violation of an ordinance establishing fire limits. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Oummiskey & Yelland, for complainant.

      O. B. Empson, for defendants.
   Montgomery, J.

The defendant Mason is mayor of the city of Gladstone. The other defendants are members of the common council. An ordinance of the city prohibits the construction within certain fire limits of buildings, not complying with certain specifications, as follows:

‘ ‘ The outside and party walls of all buildings hereafter to be erected within said limits shall be built of stone or brick or other fireproof material, and when brick or stone is used the first-floor walls shall be not less than one foot thick; second story not less than eight inches thick. The roofs of all such buildings shall be composed of metal, slate, gravel, or other fireproof material. The gutters of all such buildings shall be made of metal. The cornice shall be made of metal, brick or stone and securely fastened. All division walls shall be of stone or brick and shall extend at least one foot above the sheathing of the roof, and in nó case shall the sheathing of the roof extend across any division or end walls, and all openings in division walls shall be protected by tight iron doors.”

The complainant undertook to build a building within the fire limits the outer wall of which consisted of wooden studding with a covering of sheet iron. The officers of the city served notice upon complainant that he was violating the ordinance, but he persisted in constructing the building planned. The defendants threatened to raze the building, and thereupon this bill was filed to restrain such action.

The bill avers, amongst other things, that the complainant was arrested for violating the ordinance by constructing the building in question and, on a trial in justice’s court, acquitted. It was also averred that the building as constructed complied with the ordinance. The circuit judge was of the opinion that the building did not comply with the requirements of the ordinance, but also held that it could not be abated as a nuisance in advance of a judicial determination that it was a nuisance, and granted an injunction prohibiting its destruction. In reaching this conclusion the circuit judge relied largely upon the case of the Village of St. Johns v. McFarlan, 33 Mich. 72, which contains language which may be said to support the ruling of the circuit judge. It was said:

“The erection of a wooden building within the limits of a city or village is not in and of itself a nuisance. Neither does the fact that the erection of such is prohibited by ordinance make it a nuisance.”

This language must be construed with reference to the case in hand, and, in our opinion, the case cited is one which should be considered a precedent only for cases which present the same features. In that case the village sought to interfere by injunction. The point decided was-that the ordinance itself should provide the remedy, and that the fact that the remedy was not adequate which had been provided in that case could not give the court of equity power to interfere. There was no provision in the ordinance involved in that case "authorizing its enforcement by destruction of the building, nor was there a declaration that a building constructed in defiance of its terms should be deemed a nuisance. Both of these provisions appear in the ordinance here in question.

The question here is whether a municipality in pursuance to delegated authority to fix fire limits and to direct the manner of constructing buildings within such' district with respect to protection against fire may, by ordinance, provide that a building not so constructed shall be deemed a nuisance and authorize its abatement as such. Such, right was not negatived by Village of St. Johns v. Mc-Farlan, supra, and has never (been denied by this court. The question has often arisen in other jurisdictions, and, so-far as our examination enlightens us, the authority toábate new buildings constructed in violation of existing ordinances has been affirmed whenever the question has arisen. Not in all cases has the right to abate been rested on the ground that a building not constructed in compliance with the ordinance is a nuisance per se, but in. some it has been deemed sufficient to say that the building so erected was erected in defiance of law; but, whatever the reasoning adopted, the right has been affirmed. See Hine v. City of New Haven, 40 Conn. 478; Baumgartner v. Hasty, 100 Ind. 575; First Nat. Bank of Mt. Vernon v. Sarlls, 129 Ind. 201 (13 L. R. A. 481); Com. v. McDonald, 16 Serg. & R. (Pa.) 390; Inhabitants of Arundel v. McCulloch, 10 Mass. 70; Klingler v. Bickel, 117 Pa. 336 (distinguishing Fields v. Stok ley, 99. Pa. 306, cited by the circuit judge); Ford v. Thralkill, 81 Ga. 169; McKibbin v. Fort Smith, 35 Ark. 352; Eichenlaub v. City of St. Joseph, 113 Mo. 395 (18 L. R. A. 590); Freund on Police Power, § 528. Quite different considerations arise, either if the ordinance does not authorize the destruction of the building, or if the building be one in existence when the ordinance is passed, or if the building is attacked as a nuisance because of its particular use.

Since the case was submitted we have invited briefs on the question as to whether the acquittal of complainant on the trial in justice’s court is res adjudicata of the question here involved. Upon the coming in of these briefs it is made to appear that the situation of the building has been much changed since the trial of the justice’s court case, the same having been enlarged. Assuming, however, that the question is properly here, we do not think the decision in the criminal case was res adjudicata. The authorities are not agreed. The case of Coffey v. U. S., 116 U. S. 136, supports complainant’s contention. The court, however, failed to cite the earlier case of Biker v. Hooper, 35 Vt. 157, or to answer satisfactorily its reasoning. The latter case was distinctly rested upon the consideration that the proof required in a civil case is only proof by a preponderance of evidence, and in a criminal case proof beyond a reasonable doubt is required. It was held that a civil action between the same parties was not res adjudicata in a criminal proceeding. The reason for the conclusion of the court in Coffey v. U. 8. is not stated. The holding in that case is entitled to great weight because of the eminence of the court pronouncing the judgment, but on full consideration wé are convinced that reason and the weight of authority favor the other rule. A similar conclusion to that reached in the Vermont case, where the converse of the proposition was presented, was reached in People v. Rohrs, 19 Hun (N. Y.), 150. The rule also has the support of Judge Van Fleet in his valuble work on Former Adjudication (section 188). In Peo ple v. White Lead Works, 82 Mich. 471 (9 L. R. A. 722), which was a prosecution for maintaining a nuisance, it was assumed that the judgment was not res adjudicata. It was said:

“ While no other conclusion than affirmation of the judgment (of conviction) is possible under this record, we deem it proper to say that we shall not consider the result now reached as binding upon us in another proceeding where the evidence and the facts may be fully presented.”

The decree is reversed, with costs of both courts, and the bill dismissed.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.


text:
    DORRIS v. RICE.
    Animals — Breeding Contract — Right to Offspring.
    Where plaintiff paid, for the use of a stallion pursuant to an agreement with the owner of a mare that he should have a half interest in the colt when old enough to wean, he was entitled to recover his interest as against defendant, who bought the mare before the colt was dropped, with full notice of plaintiff’s rights.
    Error to Calhoun; Hopkins, J.
    Submitted April 10, 1906.
    (Docket No. 32.)
    Decided July 23, 1906.
    Trover by J. Dwight Dorris against Morton D. .Rice. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Winsor & Miller, for appellant.

      Marc A. Merrifield (John G. Patterson, of counsel), for appellee.
   Moore, J.

The plaintiff recovered a judgment of $21.80. The case is brought here by writ of error.

The court charged the jury in part as follows:

“This case is what is known in law as an action in trover and is brought by the plaintiff, J. Dwight Dorris, to recover from the defendant the value of an undivided one-half interest in a certain colt foaled of a mare owned by the defendant, and brought under an alleged agreement made between the plaintiff and Freeman Palmer, who was at that time the owner of the mare, and by the terms ■of which agreement the plaintiff was to pay for the services of the horse, and was to have a half interest in the colt at the time it was old enough to be weaned.
“You are instructed that this was á proper and legal contract to have been made by the parties, and in case you find such a contract to have been made, it would be binding upon the plaintiff and Mr. Palmer, the parties to such agreement. You are further instructed that the defendant would be bound by this agreement between the plaintiff and Mr. Palmer, provided he knew of the agreement under which the mare was bred, or provided he had such notice relative to the agreement as would put a reasonably careful man upon inquiry as to the terms of such ■contract. If he knew of such contract or had notice such ns would have put him on inquiry regarding such contract •or agreement relative to the breeding of the mare, then be is bound by it, and under the proofs in this case you should find a verdict for the plaintiff.
“ If the defendant did not know of the alleged agreement and didn’t have notice regarding such agreement which should have put him upon inquiry regarding such .agreement, you should then find for the defendant. ”

There are a good many assignments of error, most of which relate to a proposition stated by counsel as follows:

“There was no sale and could have been no sale of the ■colt or any interest in the same at this time, before the mare was bred, as there was no colt in existence to be the subject of sale. The mare had not been bred, and it was uncertain that when bred she would be put in foal.
“ ‘It is essential to the validity of every executed contract of sale that there should be a thing or subject-matter to be contracted for.’ Bates v. Smith, 83 Mich. 347, 350.”

There is language used in the case cited which tends to support the contention of counsel for appellant. An examination of the case, however, will show it was not necessary to the decision. In that case, unlike the one at bar, it was shown that defendant was a bona fide purchaser of the maré without notice of the agreement it was claimed was made, when she was bred. In the case at bar the proofs disclosed, and the jury found, defendant knew about the agreement when he purchased the mare about five weeks before the colt was dropped. The original parties to the,agreement never questioned it. On the contrary, when Mr. Palmer sold the mare to the defendant’s grantors, he expressly reserved a one-half interest in the colt, so the arrangement made between him and the plaintiff should be carried out.

The record shows that when the mare was bred defendant Rice had her upon an agreement to keep her' for her use. After Mr. Palmer sold her Mr. Rice continued to keep her for her new owners, under a like agreement. When she was sold to Mr. Rice, one of the grantors says, no reservation was made because Mr. Rice, who had possession of her all the time, assured him she was¡ not with foal, and so he did not deem it necessary to make the reservation. It must be borne in mind that defendant purchased the mare only five weeks before the colt was dropped, and, according to the findings of the jury,, which is supported by the evidence, with full knowledge of the agreement. This makes a very different case from Bates v. Smith, supra. See Dickey v. Waldo, 97 Mich. 255 (23 L. R. A. 449), in which Bates v. Smith is criticised, and the many cases cited therein; Story on Sales, §• 185; Hull v. Hull, 48 Conn. 250; Fonville v. Casey, 1 Murph. (N. C.) 389; McCarty v. Blevins, 5 Yerg. (Tenn.) 195.

Error is assigned upon the admission of testimony from a witness as to the value of the colt, when it is said the. witness was not competent to express an opinion. This testimony was cumulative, and even if the witness was not competent to express an opinion, it is evident from the amount of the verdict that his testimony did no harm. The other assignments of error have been examined. We deem it unnecessary to discuss them.

Judgment is affirmed.

Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


text:
    PUTNEY v. VINTON.
    1. Ejectment — Equitable Defenses — Relief to Defendant.
    In ejectment by a widow for her nnassigned dower, a mortgage discharged of record cannot be restored to defeat her claim, though it is inequitable that she should recover.
    2. Dower — Bab—Adverse Possession.
    Where a husband, at the time of his death, had lost his title to-land by adverse possession, his nonresident 'widow’s dower right therein is also extinguished, since the statute (§ 8988, 3 Comp. Laws) only gives a nonresident widow dower in the lands of which her husband dies seised.
    3. Same — Nonresident Widows.
    Section 8938, 3 Comp. Laws, giving a nonresident widow dower in lands of which her husband dies “seised” gives her dower in lands of which he has the legal right to possession, as well as those of which he has actual possession; there being no> legal distinction between the language of that section and section 8918, conferring dower on resident widows.
    Case made from Oakland; Smith, J.
    Submitted April 10, 1906.
    (Docket No. 42.)
    Decided July 23, 1906.
    Ejectment by Clara Putney against Henry Vimon and others. There was judgment for defendants on a verdict directed by the court, and plaintiff appeals.
    Reversed.

      Graves, Hatch & Wasey, for appellant.

      George O. Kinsman, for appellees.
   Moore, J.

This is an action of ejectment brought September 8, 1905, by a widow for her unassigned right of dower in the undivided half of certain property in Oxford, Oakland county, Mich. At some time prior to February 21, 1877, Nelson Green was the owner in fee simple of a hotel building and grounds in Oxford, known as the “Commercial Hotel Property,” and he had conveyed the property to James R. Sutherland by a deed recorded on that date. Sutherland gave Green a purchase-money mortgage for $8,700 on the property, payable in 10 annual installments from date, and this mortgage was recorded December 27, 1876. Sutherland sold off two pieces from the property and secured a release of the mortgage, so far as it affected these pieces, and paid $500 on the principal of the mortgage. Kile and wife, on May 2, 1878, conveyed the property by a warranty deed to Daniel Rams-dell and Frank J. Putney. The consideration was $4,000. The conveyance was made subject to the mortgage, although the grantees did not assume it. Daniel Ramsdell was the father-in-law of Frank J. Putney. Clara Putney, the plaintiff, was his daughter, and is the widow of Putney. Ramsdell and Putney took possession of the hotel early in 1878. In March, 1879, Frank J. Putney and the plaintiff moved to Conneaut, Ohio, leaving Ramsdell in possession of the property. While he was in possession in the winter of 1882 and 1883 the hotel burned. It was insured, and the policy was assigned by Ramsdell to one of his creditors. The check for the loss was made payable to Ramsdell and the creditor jointly. The insurance covered also the personal property in the hotel, but whether it covered more than RamsdelPs undivided half of the building does not' appear. Later defendant Vinton entered into negotiations for the purchase of the property with Mr. Silas T. Fenn, who was an attorney at law and acted for Green, the mortgagee, the latter being a nonresident. Fenn procured a quitclaim deed from Rams-dell and wife, to defendant Vinton, covering all the property, for the expressed consideration of $40 which deed ' was dated July 9, 1883, and recorded July 23, 1883. On January 28, 1884, Vinton and wife executed and deliv-. ered to. Green a quitclaim of the same property for the expressed consideration of $100. December 22, 1883, Green, the mortgagee, executed a complete discharge of the mortgage. March 1, 1884, Green and wife executed and delivered to Vinton a warranty deed for the expressed consideration of $1,000, which deed and the discharge of the mortgage were both, at the same time, delivered by Fenn, as attorney for Green, to Vinton. No other consideration was paid to Green for the deed and the. discharge of the mortgage, and this deed and the discharge of the mortgage were duly recorded.on April 12, 1884. Vinton paid only $700 for the deed and discharge. Mr. Vinton never examined the records or employed any one to do so, and knew nothing of the outstanding Putney title, the business having been done entirely through Green’s attorney. There was never any foreclosure of the Green mortgage. Vinton, after his deed from Green, cleared off a little patch of the rubbish and piled wood and stone on the property from time to time. ' He also permitted people to use it for picnic purposes, it being vacant ground. He also paid all the taxes on the property. In 1891 Vinton sold the portion of the property in dispute in this case to Joseph Powell, who thereupon commenced and completed the erection of an opera house on the property. After-wards Powell deeded back to Vinton, and the latter, in the spring of 1905, deeded to defendants Samuel C. Ax-ford and Elizabeth Axford. Later Samuel C. Axford deeded to his wife, the defendant Elizabeth Axford. At the commencement of this suit the Axfords were in possession. After Frank J. Putney and wife left Oxford, they never returned again. Plaintiff claims they paid no further attention to the property, supposing it still to be in possession of their father and mother, and not wishing for family reasons to require a settlement during the lifetime of the latter. Frank J. Putney died'in Cleveland, Ohio, on May 6, 1897. Daniel Ramsdell died at Clifford, Lapeer county, Mich., on September 4, 1899. Plaintiff never released her dower right, and claims she knew nothing about the various deeds aforesaid, or that any one was in possession of the property claiming adversely and never had any notice of such claims, except such notice as the law may presume from the above facts, until she received a request to execute a deed in the spring of 1905.

The defendants, under the provisions of sections 10995 and' 10996, 3 Comp. Laws, filed a claim in writing for compensation for buildings and improvements erected by them or their grantors, and asked a finding of the increased value of the property by reason of such improvements. Plaintiff thereupon filed a request under the same statute for a finding of what would have been the value of the property, if no such improvements had been made. On the trial defendants presented to the court three reasons why plaintiff’s right to recover on the face of the title should be denied:

1. Defendants claimed that the title of Frank J. Putney had become extinguished by adverse possession at the time of his death in 1897.

2. That the Green mortgage must be taken into consideration, in this case to so reduce plaintiff’s dower right as to utterly destroy it.

3. That plaintiff, being a nonresident, was only dowered of property of which her husband died seised, under section 8938, 3 Comp. Laws, and that Frank J. Putney did not die seised of the property in question in this case.

The trial court was of the opinion that the second reason was controlling, and, as the mortgage was three or four times larger than the value of the property, that there was no dower right left to the widow under Snyder v. Snyder, 6 Mich. 470, and directed a verdict in favor of defendants. If the trial judge was right in this, then the other defenses become immaterial; if wrong, the others demand ■attention. We think the case of Snyder v. Snyder is distinguishable from this case. In that case the mortgagee became the owner of the equity of redemption. His mortgage was not discharged of record. The only way it was discharged, if at all, was by merger. Here the mortgagee became the purchaser of the equity of redemption owned by Ramsdell, but did not become the owner of the equity of redemption owned by Putney. In this case he also discharged his mortgage of record. It is clear he was paid nothing for doing this, and it is probable it was done by the advice of Mr. Penn, supposing it was the way to give Mr. Yinton a good title. It is just as ■inequitable that the widow should profit by this transaction, if the fact is, as we suppose above, as it was in the case of Snyder v. Snyder, but the mortgage which was discharged cannot be restored in an action of ejectment. This can be done only on the chancery side of the court. Buell v. Irwin, 24 Mich. 145; Ryder v. Flanders, 30 Mich. 336; Harrett v. Kinney, 44 Mich. 457; Geiges v. Greiner, 68 Mich. 153; Gates v. Sutherland, 76 Mich. 231; Michigan Land & Iron Co. v. Thoney, 89 Mich. 226; Paldi v. Paldi, 95 Mich. 410; Moran v. Moran, 106 Mich. 8; Retan v. Sherwood, 120 Mich. 496; Nowlen v. Hall, 128 Mich. 274; Porter v. Osmun, 135 Mich. 361.

We now turn to the first contention of counsel for defendants that plaintiff’s husband at the time of his death had lost his title by adverse possession and therefore ■plaintiff’s dower right was also extinguished. It is •claimed by counsel for plaintiff that—

“ ‘ It is a principle universally admitted, that the husband .cannot deprive her [the wife] of it [her dower right], and that she can only be divested by authority of the State, or by or in consequence •of her own voluntary act.’ Greiner v. Klein, 28 Mich. 12, 17.
“ Accordingly it has always been held that adverse possession against the husband, however long continued during his lifetime, does not affect the wife’s right of dower, because she had no authority or power to prevent, the husband’s laches.” Citing a great many cases.

Counsel further say:

“ But does this principle apply where the wife is a nonresident and therefore under the peculiar language of our statute is only dowered of lands of which the husband dies seised? Section 8938, 3 Comp. Laws; Pratt v. Tefft, 14 Mich. 191; Ligare v. Semple, 32 Mich. 438. In the cases last cited the husband was disseised by his deed, and we confess we cannot well distinguish them from a. case where the husband was disseised by adverse possession sufficiently long continued. In one case, the wife loses her dower right by the deed of her husband over which she had no control, and in the other case she loses her dower right by his laches over.which she equally had no control.”

In the cases cited the husband had, by deed, conveyed his interest in the land, but the important points of the decisions are in construing the statute to mean that unless the husband died seised of the land the widow had no right of dower. If his title had been ended because some one had acquired it by adverse possession, he was just as much deprived of his seisin in the land as though he had. deeded it. We think the cases are alike in principle. But it is said there is no testimony of an adverse holding for so long a time as to ripen into title. We think there was some testimony bearing upon that question, and there may be more upon another trial. Inasmuch as the trial judge held with plaintiff in that respect, we have doubtless said all we need to upon that subject.

We now come to the third question. Is counsel right in saying that because plaintiff and her husband were nonresidents at the time of his death she is entitled to dower only in lands of which he was in the possession ? Counsel argue that, as by the terms of section 8918, 3 Comp. Laws, a resident widow is entitled to dower in all lands where her husband was seised of an estate of inheritance,” while a widow who is an alien is, by the terms of section 89'38, entitled to dower in all lands “ lying in this State of which her husband died seised,” indicates that the legislature intended to indicate a distinction, and that the latter section should be so construed as to mean that the seisin of the husband should be actual, that is, in this case, possession by himself, his tenant or his agent. We think the word as used here broad enough to mean one who is in actual possession, and also one who has the legal right to possession. See Lull v. Davis, 1 Mich., at page 81.

Judgment is reversed, and new trial ordered.

Carpenter, C. J., and MoAlvay, Grant, and Blair, JJ., concurred.