text:
    The City of Benton Harbor v. The St. Joseph & Benton Harbor Street Railway Company.

      Mandamus — Impossibility of performance of duty — Street railways —Paving between rails and tracks.

    1. Where in a mandamus case no issue is asked by the relator, the statement of facts contained in the answer must'be taken as true.
    2. Mandamus will not lie to compel a street-railway company to comply with the provisions of an ordinance requiring it to pave the street between its rails and tracks where it appears from its answer that, owing to the financial straits in which it is placed, it is impossible for its officers to borrow or otherwise raise the money to pay for such paving,

      Mandamus.

    Argued October 23, 1894.
    Denied November 7, 1894.
    Eelator applied for mandamus to compel respondent to pave certain streets between its. rails and tracks, etc. The facts are stated in the opinion.

      Charles JV. Sears (Thomas O’Hara, of counsel), for relator.

      W. 0. Hicks {M. L. Howell, of counsel), for respondent.

       See State v. Railway Co., 24 L. R. A. 564, and note, as to compelling the operation of a railroad by mandamus.

   Long, J.

This is an application for mandamus to compel the respondent company to pave between its rails aud tracks, and to pave 12 inches outside its tracks, within a certain district in the city of Benton Harbor.

The respondent corporation was organized under the laws of this State in 1881, and in that year obtained a franchise from the village of Benton Harbor (now a city), and operated a horse railroad up to the year 1892. On April 26, 1889, the common council of-the village of Benton Harbor passed an ordinance authorizing a double track in certain portions of the village, and requiring the respondent company to plank, macadamize, or gravel the space between the tracks and between the rails of each track, and to place guard planks or macadam on the outside of the outer rail of each_track 12 inches in width, and to keep the whole in good repair. This ordinance was accepted by the respondent company, and it claims that it •, was passed with the ■ understanding that electric power might be used, but this fact does not appear in the ordinance. On June 5, 1891, the village of Benton Harbor became incorporated as a city, under that name. On December 12, 1891, the respondent company petitioned the city council to pass an ordinance authorizing and permitting it to substitute and use electricity as the motive power. The council, on that same evening, passed a resolution which provided that the company be granted a franchise to operate its present system by electricity, subject to the terms and conditions of an ordinance to be approved by the city council and accepted -by the company. It is claimed that on December 14, two days afterwards, the respondent company accepted this resolution or ordinance. It is claimed by the respondent company that, in accepting this ordinance, it supposed the terms to be imposed contemplated the setting of poles, the stringing of wires, etc., and never supposed that they contemplated the paving of the streets between the tracks. On December 28, however, the council passed the ordinance, setting forth the terms and conditions upon which electricity might be used as a motive power; and, among the conditions, it was provided that the respondent should repair that portion of the streets and highways included between the rails, and not less than 12 inches outside thereof, and, wherever a double track should be used, that space lying between the tracks; and that, whenever any street in which tracks were laid should be paved by the city, the respondent company should pave its portion thereof as above described, with the same material, etc. On the day this ordinance was passed, the respondent company wrote the council as follows:

“Take notice that the St. Joseph & Benton Harbor Street Railway Company hereby repeats its acceptance of the ordinance granting to the street-railway company consent, permission, and authority to substitute and use electricity as a motive power upon its street railway in the city of Benton Harbor.”

This was signed by the president of the company.

It is contended by the respondent in the present proceeding that this acceptance had relation only to the resolution of December 12, and was sent before the ordinance of December 28 was actually passed, and had no reference to the terms-of that ordinance, requiring the paving to be done; and hence the respondent never accepted the terms of the ordinance, and cannot be compelled to pave between its tracks, etc.

The answer further sets out that in May, 1892, the respondent issued its bonds, secured by mortgage on all its property, for the sum of $150,000, with interest at 6 per cent., payable semi-annually, for the purpose of converting the road into an electric road, and for the payment of its floating debt, but that it was unable to raise sufficient money thereon, and on June 27, 1893, it gave a mortgage upon all its property for $200,000, securing 200 bonds of $1,000 each, bearing interest at 6 per cent, per annum, payable semi-annually, for the purpose of retiring the issue of $150,000 of May, 1892, and the payment of its indebtedness incurred in the extension and improvement of its road; that this mortgage was given to the Illinois Trust & Savings Bank of Chicago, as trustee, and the bonds were issued and sold to Iona fide purchasers, and are held principally in Boston, Mass.; that interest on said bonds for 1893 to the amount of $5,000 is due and unpaid, and that interest for 1894 for the six months ending July 1 is unpaid, and that said company has lost money every year since it began to operate by electricity; that it has no credit, and is unable to borrow a dollar; that within the last six months its officers have endeavored to procure loans on the credit of the company in St. Joseph, Chicago, and Benton Harbor of banks and capitalists having money to loan, and have been absolutely refused. A statement of the receipts and expenditures is set out, showing a deficit for 1892 of $5,516; for 1893, a deficit of $10,760; for the months of January to September, inclusive, of the year 1894, a deficit of $2,846; and also showing a judgment against' the company of $1,725, in addition to taxes now accrued and unpaid, — all of which shows a shortage from January 1, 1892, to October 1, 1894, of over $20,000. Some claimed equitable defenses are also set up in the answer.

No issue is asked by the relator, and the statement of facts contained in the answer must be taken as true.

We shall not discuss or determine in this proceeding the question as to whether the ordinance of December 28, 1891, was ever accepted- by the respondent company, or the claimed equitable defenses. The mandamus must be refused, however, on the second ground set forth in the answer. It appears by the answer that the officers of the company, in the financial straits in which it is placed, cannot procure funds to do the paving; that it is an utter impossibility to do what it is asked to have done; that it cannot pay the current expenses; and it is clear that a writ of mandamus will not issue to compel the performance of an act when it is apparent that the parties against whom it is to be directed have no power to comply therewith. As was said in Silverthorne v. Railroad Co., 33 N. J. Law, 176:

“ Of course, it is obvious that a return which shows a legal impossibility to do what the writ directs must, in the nature of things, as a general rule, be good; and, consequently, a want of funds and an inability to procure them will, for the most part, be a legal answer to the precept of the court requiring cause shown why certain moneys should not be paid.”

This rule was recognized in Railway Co. v. People, 120 Ill. 200. It was said:

“It is an admitted fact that the road is greatly out of repair, * * * but the answer shows that the company has neither the funds, nor the means of raising them, which are required to put the road in a safe condition. Now, while the matter thus set up in the answer-no more exonerates the company from the duties which it owes the public than the inability of one to pay his honest debts would relieve him from his legal liabilities to his creditors, yet it does show a conclusive reason why mandamus is not a proper remedy in the case; for no principle of law is better settled than that the writ should not be granted in any case where it is clear that it would prove unavailing; as where the act sought to be enforced is, from its very nature, physically, impossible, or where, from extrinsic causes, it has become so, or where performance, though not absolutely impossible, is from any cause not within the power of the defendant. But whatever the ground may be, whenever it is apparent that the defendant is unable to perform the act sought to be thus enforced, the writ, as a general rule, will be denied,” — citing People v. Railroad Co., 55 Ill. 95; People v. Lieb, 85 Id. 484; People v. Trustees of Schools, 86 Id. 613; Cristman v. Peck, 90 Id. 150; People v. Hatch, 33 Id. 9.

It was further said in that case:

“ If, as seems to be the case, the defendant is wholly unable to discharge the duties it owes to the public, and which the law has imposed upon it, a proceeding in the nature of a quo warranto is the proper remedy, and not mandamus.”

See, also, People v. Railroad Co., 58 N. Y. 152; People v. Hayt, 66 Id. 606.

It is a general rule that a writ of mandamus will not issue unless it clearly appears that the person to whom it is directed has the absqlute power to execute it. Turnbull v. Giddings, 95 Mich. 314; Corby v. Durfee, 96 Id. 11; City of Port Huron v. Jenkinson, 77 Id. 414; Merrill, Mand. § 76.

We are satisfied, from the return made to the order to show cause, that mandamus is not the proper remedy in the present case. It is shown that it is impossible to borrow or otherwise raise the money to pay for the paving; and it would be futile to make the order, as the parties could not be punished for contempt in disobeying it. The city is not without its remedy, but mandamus is not the proper one.

The writ must be denied.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    Bessie L. Daly v. George S. Hosmer, Circuit Judge of Wayne County.

      Divorce — Cross-bill—Verification—Amendment—Taking testimony.

    1. Where, in a divorce suit, the complainant petitions the court to set aside the decree granted the defendant under his answer in the nature of a cross-bill, on the grounds, among others, that the verification to the answer fails to negative the existence of collusion, as -required by the statute, and that no replication to complainant’s answer to the cross-bill was filed, it is within the discretion of the court to permit an amendment of the verification so as to make it conform to the statute, and the filing of said replication.*

      2. 3 How. Stat. § 6231, which provides that no proofs or testimony shall be taken in any divorce suit until four months after the filing of the petition or bill, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the purpose of perpetuating such testimony, applies only to the petition or original bill, and its object is attained in four months from the filing of the petition or bill, as well where a cross-bill is filed as where it is not.

      Mandamus.

    Argued October 23, 1894.
    Denied November 7, 1894.
    Eelator applied for mandamus to compel the respondent to set aside a' decree for divorce. The facts are stated in the opinion.

      C. J. Reilly, for relator.

      Philip 1. YanZile, for respondent.

       non-collusion clause in verification to bill for divorce.
      For cases construing 3 How. Stat. § 6333, which provides that the oath or affirmation administered to the complainant in swearing to a bill for divorce shall recite that he or she does solemnly swear that there is no collusion, understanding, or agreement whatever between complainant and defendant in relation to said application for divorce, see:
      1. Ayres v. Circuit Judge, 90 Mich. 380, holding that said statutory requirement is mandatory, and the absence of said non-collusion clause cannot be waived by any act of the defendant.
      3. Harrison v. Harrison, 94 Mich, 559, holding that an answer in the nature of a cross-bill must be verified in order to authorize a decree for the defendant, but, if not, it may be amended, where the proof shows an absence of collusion.
      3. Holcomb v. Holcomb, 100 Mich. 421, holding that, where the jurat states that “there is no agreement or understanding” between the parties in relation to the application for divorce, the defendant should not be permitted to object for the first time in the Supreme Court that the oath is not in strict conformity with the statute, she having appeared, answered, contested the case, and filed a petition to set aside the decree appealed from. **34******11
      4. Tackaberry v. Tackaberry, 101 Mich. 102, holding:
      a — That, where the original bill is properly verified under the statute, an objection that an amendment.or a supplemental bill, filed by stipulation of the parties, is not so verified, is without force.
      6 — That an objection, made for the first time on-appeal, that the answer to a cross-bill is not sworn to, comes too late.

   Hooker, J.

The relator filed a bill for divorce on September 9, 1893. The defendant filed an answer in the nature of a cross-bill on December 26, 1893, said answer being verified; but said verification did not contain the averment negativing collusion, as required by 3 How. Stat. § 6232. On January 17, 1894, complainant filed an answer to the answer in the nature of a cross-bill. Proofs were’ taken in open court, beginning on March 14, 1894, and ending March 21, 1894. Both parties appeared by counsel, and both introduced testimony. TJpon the 21st day of March a decree was made, granting a divorce to the defendant, and denying it to the complainant. On June 29, 1894, relator caused a petition to be filed in said cause, asking that the decree be set aside for the following reasons, viz.:

1. That the cause was not- at issue when heard, because no replication to complainant's answer to defendant's cross-bill had been filed. ,
2. That defendant's answer in the nature of a cross-bill was not properly verified.
3. That the testimony was prematurely and unlawfully taken, because it was taken within the period of four months after the defendant's answer in the nature of a cross-bill was filed.
4. That a decree was rendered in favor of the defendant within four months after his cross-bill was filed.

The court denied the prayer of this petition, and made an order that defendant be permitted to verify his answer, and to file a replication nunc pro tunc. TJpon complying with said order, defendant was granted a new decree, in all substantial respects like the first one.'

It was a proper exercise of the court’s discretion to permit the amendment of the verification and the filing of a replication after decree. Had the questions arisen upon-the hearing, the power to do so would probably not have been questioned; but the questions were not raised then, and, when they were raised, were no more meritorious than they Avould have been upon the hearing. There is no legal impediment, for courts may permit amendments to the pleadings or proceedings after judgment. Hpw. Stat. chap. 264, and notes.

3 How. Stat. § 6231, provides that—

“No divorce shall be granted unless the party exhibiting the petition or bill of complaint therefor shall have resided in this State one year immediately preceding the time of exhibiting such petition or bill, or unless the marriage was solemnized in this State, and the complainant shall have resided in this State from the time of such marriage to the time of exhibiting the petition or bill, and, when the cause for divorce occurred out of this State, no divorce shall be granted unless the complainant or defendant shall have resided within this State two years next preceding the filing of the petition or bill; and no proofs or testimony shall be taken in any cause until four months after the filing of such petition or bill for divorce, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the purpose of perpetuating such testimony.”

It is contended that 'this section applies to proofs taken in support of the defendant’s answer, because it is in the nature of a cross-bill, and contains a prayer for divorce. This construction requires‘an enlargement of the language used in the statute, which, strictly construed, applies only to the petition or original bill for divorce, which are the only instruments provided for the commencement of divorce proceedings. We are of the opinion that this provision of the statute was to prevent hasty divorces, and that the object is attained in four months from the filing of the petition or bill, as well where a crossbill is filed as where it is not.

The proofs being seasonably taken, there was perhaps no necessity for the making of a second decree, which apparently was only made for prudential reasons.

The mandamus will be denied.

The other Justices concurred.


author: Montgomery, J. Per Curiam.

text:
    The Attorney General, ex rel. James A. Scott, v. Charles Glaser.
    [See post, 405.]

      Elections — Return of inspectors — Ballots—Marking.
    1. Under the election law of 1891, the hoard of election inspectors are required, immediately on closing the polls, to proceed to canvass the votes, and, after the count of the tickets or ballots has been completed, immediately and publicly to declare the result. And it is held that the neglect of the board to complete the canvass on the night of the election, and the dating of their report on the next day, ought not to result in the disfranchisement of the voters.
    2. -Under the election law of 1891, any mark upon a ballot, other than one appropriate and necessary to designate the intention of the voter, must be regarded as a distinguishing mark.
    3. The only instance in which an unnecessary mark is recognized as possible is in section 34, where it is provided that, if the elector votes for more than one person for the same office, such ballot shall not be counted for those persons, but shall be, as to them, null and void.
    Information in the nature of quo warranto to determine the title to the office of comptroller of West Bay City.
    Argued June 29, 1894.
    Judgment of ouster entered November 7, 1894.
    Proceedings stayed pending .rehearing, and judgment re-entered January 8, 1895.
    (See post, 405.)
    The'facts are stated in the opinion.

      Adolphus A. Ellis, Attorney General (Hatch <& Cooley and T. A. E. & J. C. Weadock, of counsel), for relator.

      Q. H. Francis {Pratt, Van Kleeck & Gilbert, of counsel), for respondent.
   Montgomery, J.

This is a contest over the office of comptroller of West Bay City. A recount was had under the provisions of Act No. 208, Laws of 1887. Upon the recount as made by the common council, the respondent received a majority of 9. There were cast for the relator 1,169 votes which were undisputed, and for the respondent 1,147 votes which were undisputed. There were counted for the respondent an additional 40 votes whieh it is claimed by the relator should not have been counted, and there were counted for the relator 9' additional votes which it is claimed by the respondent should not have been counted for him.

The respondent contends that the votes of the First ward should not have been counted for either candidate, as the certificate of the inspectors of election bears date the 4th day of April. Section 36 of Act No. 190, Laws of 1891, provides that “ immediately on closing the polls the board shall proceed to canvass the votes;” and section 38 provides that, “after the count of the tickets or ballots has been completed, the result shall be immediately publicly declared.” The board did not in fact complete the canvass on the night of the election, but the return bears date the next day. We do not think the delay in canvassing the vote should result in disfranchisement of the voters. It would be a dangerous rule to establish that the board of election inspectors could thwart the will of the voters by a neglect to perform the duty imposed upon them by statute, and it should not be so held except where the plain provisions of the statute require it. See McCrary, Elect. §§ 190, 193, 247, and cases cited.

It becomes -necessary, therefore, to determine whether the ballots which were counted on the recount by the common council should have been canvassed. It is claimed by the relator that the 40 ballots which the respondent claims should have been counted for him, and which were in fact counted by the common council, bear distinguishing marks, within the meaning of the law, and should have been excluded.

Act No. 190, Laws of 1891, was in force when the election in question was held, and the material provisions of that act were as follows:

Any elector may mark or stamp a cross in the space below the party name printed at the head of the ballot. If marked thus, such ballot shall be counted for all the nominees of such party whose names appear on the ballot in that column. If the voter shall have erased some name in the column, or marked a X before the name of a candidate in some other column for the same office, or written in a name under the name of any candidate, the name of such candidate shall not be counted as voted for by such ballot, but, if the name of the candidate shall have been erased, such vote shall be counted for the candidate whose name in another column shall have been marked or whose name shall be written under the name erased.” Section 26.

Section 36 contains the provision that—

“ Any ballot which shall bear any distinguishing mark or mutilation shall be void, and shall not be counted, and any ballot or part of a ballot from which it is impossible to determine the elector’s choice of candidates shall be void as to the candidate or candidates thereby affected.”

T-hese provisions have never been before the Court for construction. Statutes containing similar provisions have been adopted in various states of the Union, and have generally been construed as involving a radical departure from the former method of voting, and, generally, a strict compliance with the requirements of such statutes has been, required before the vote should be counted.

In Ehode Island the statute provides that the elector “shall prepare his ballot by marking in the appropriate margin or place a cross (X) opposite the name of the candidate of his choice for each office to be filled,” and also that each ballot “ shall be so printed as to give to each voter a clear opportunity to designate, by a cross mark (X) in a sufficient margin at the right of the name of each candidate, his choice of candidates.” Pub. Laws E. I. 1889, chap. 731, §§ 6, 18. This act was construed by the supreme court, and it was held — First, that, as the statute did not require a square to be printed on the ballot, a designation by a cross at the right of the name of the candidate was sufficient; second, that no other mark than ■a cross was a sufficient designation of the voter’s intent under the statute. The court said:

“If another mark be used,-there is nothing to certify its meaning. It might be conjectured that it was used inadvertently instead of a cross, but, in our opinion, such a conjecture would not justify the counting of it. The statute declares, cNo voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him.’ If marks other than crosses were counted, they might be used both .to answer the purpose of crosses and to identify the ballots.”

It was further held that the cross, to be effectual as a vote, must be placed at the right óf a name printed on the ballot, and that a cross placed elsewhere was not a compliance with the statute. In re Vote Marks, 17 E. I. 812.

The statute of Indiana provided that the voter should “ indicate the candidates for whom he desires to vote by stamping the square immediately preceding their names: * * * Provided, however, that if he shall desire to vote for all candidates of one party, * * * and none other, he may place the stamp" .on the square preceding the title under which the candidates of such party * * * are printed, and the vote shall then be counted for all the candidates under that title, unless the name of ■one or more candidates under another title shall also be stamped, in which case the names of the candidates so stamped shall be counted.” Laws Ind. 1889, chap. 87, § 45. The court held that, in order that the elector may have his ballot counted at all, he must touch some one of the squares with the stamp; that his choice can be indicated in no other manner; that the elector cannot stamp his ballot elsewhere, and leave the election board to guess at his intention. After the election was held which was under consideration in that case, the law was amended so that “a stamp placed upon a ballot which does not touch a square thereon is declared to be a distinguishing mark, and the ballot is not counted.” Laws Ind. 1891, chap. 94, § 9. The court say that “ this amendment was intended to make certain that which prior to its passage was left, in some measure, to construction, but it only makes certain that which was intended by the legislature when it passed the original section.” Parvin v. Wimberg, 130 Ind. 561. See, also, Sego v. Stoddard, 136 Ind. 297.

In Maine the statute provides that the voter “ shall prepare his ballot by marking in the appropriate margin or place a cross (X) as follows: He may place such mark opposite the name of a party or political designation,. * * * or he may place such mark opposite the name-of the individual candidates of his choice for each office-to be filled.” Laws Me. 1891, chap. 102, § 24. The-court say of this statute that—

“Its distinguishing feature is its careful provision for a. secret ballot. The leading purpose of it was to give the elector an opportunity to cast his vote in such a manner that no other person would know for what candidate he voted, and thus to protect him against all improper influences, and enable him to enjoy absolute freedom from restraint and entire independence in the expression of his-choice.”

It was held that the ballot could not be counted when-the cross was placed to the left, or midway above or below the name of the party or candidate, and not in the appropriate blank space at the right, or where, the ballot mark was a straight line instead of a cross. It was said:

“If it be conceded that the intention of the voter may be correctly inferred ■ from the mark actually made by him in each of these instances, it is still a fatal objection to the ballot that such an irregular and unauthorized mode of marking it might readily be, and probably would be, agreed upon with the voter as a distinguishing mark to identify the ballot cast by him, whenever identification was desired. Such a palpable disregard of the plain requirements of the act strikes at the root of the secret-ballot system.” Curran v. Clayton, 86 Me. 42.

These cases support what we believe to be the true rule, that any mark upon a ballot, other than one appropriate and necessary under the law to designate the intention of the voter, must be regarded as a distinguishing mark. Any other rule would result in endless confusion, and would make the local inspectors judges of the voter’s intention, and lead to bitter controversies. It was the evident purpose of the Legislature to provide against the necessity for this by laying down rules for the guidance of the voter, and providing a simple^ method of registering the vote; and while, in some instances, a rigid adherence to the prescribed method- may result in throwing out honest ballots, we have not been able to find any safe middle ground to occupy. Either the question of the voter’s intent must be held a'question of fact in all cases, to be determined by the inspectors on an examination of the ballot, or it must be held that such marks, and such only, as can, under the law, be properly placed upon the ballot, and as are necessary to be there placed to register the voter’s intent, are permissible. The only instance in which an unnecessary mark is recognized as possible is in section 34, where it is provided that, if the elector votes for more than one person .for the same office, such ballot shall not be counted for those persons, but shall be, as to them, null and void. This implies that a mark may be made in such á manner as hot to indicate whom the voter intended to vote for. This might well have occurred under the law of 1891, through an unsuccessful attempt to vote for a candidate on the opposing ticket, as, under section 26, it was not only necessary to mark the name of such candidate with a cross, but also to erase the name of the candidate on the voter’s own ticket. By the law of 1893 the Legislature has wisely dispensed with the necessity for the erasure of the name. See Laws of 1893, Act No. 202, p. 329.

Applying the rule of construction which we think should obtain in this case, there can be no doubt that the relator was elected. A large number of the defective ballots had a cross under the party name of the Republican and also of the Citizens’ ticket. The tickets were, it is true, identical; but a single mark constituted a vote, and the second mark was wholly unnecessary and inappropriate to register the voter’s intent, — as much so as would have been any mark placed under the Democratic ticket. Such mark might have been an agreed means for identification of the ballot, and must be held to have been a distinguishing mark.

There were also a number of tickets in which the names of the candidates as they appeared on both tickets, both being identical, were marked. These are subject to the same considerations.

As above stated, the law provides that, where the elector desires to vote a straight ticket, it shall only be necessary to mark a cross under the party name. In such cases there are no conditions under which the voter is required to erase names on another party ticket, or place any mark on such tickets, unless he desires to vote for some candidate whose name appears thereon, in which case he is required to place a cross in the square opposite the name of such candidate. There are a number of ballots counted for respondent in which the voter has, after marking one party ticket, erased by a cross or straight mark the names •on the opposing ticket. As these marks of erasure are not only wholly unnecessary, but under the law inappropriate to express any intent, they must be treated as distinguishing marks.

There are numerous other tickets which it is not necessary to designate specially. A large number contain, not only the necessary cross under the party name, but from one to a dozen .other crosses. Others contain particular devices. In one instance, a name is written on a portion of a ticket which does not purport to be the name of a candidate for any office. These tickets fall so cleaidy within the rule that it is unnecessary to particularize further.

We think judgment should be entered for the relator.

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

Upon respondent’s application for a rehearing, the following opinion granting the same was filed November 13, 1894:

Per Curiam.

A rehearing has been asked in this case. We held in our former opinion that the section of the act of 1891 providing that ballots bearing distinguishing marks should not be counted should be construed to exclude all ballots which bear marks not appropriate and necessary to express the voter’s intention. It is now said that the interpretation placed upon the decision is such as to exclude a large number of ballots cast at the recent election upon which there appears an erasure of the name of the candidate on one party ticket and a cross before the name of an opposing candidate.

No such question is involved in -the present case, as it arose under the act of 1891, which provided for striking off the name on the party ticket as well as the making of the cross in the square before the name of the opposing candidate. The ballots under consideration are ballots in which the name erased was one appearing on the opposing ballot.

But an examination of the opinion leads us to think that some of the language employed may have been misleading, and, as the public are naturally deeply interested in the subject-matter, we think it proper to state that it was not in the mind of the Court that ballots having a ñame erased under the party ticket and the name of an op'posing candidate marked by a cross should not be counted, but that, in our opinion, such tickets are not legally objectionable, and should be counted. Act No. 2.02, Laws of 1893, § 26, it is true, provides that where only one candidate is to be elected to an office, and the elector desires to vote for a candidate not on his party ticket, he should make a cross in the circle under the name of his party, and also make a cross in the square before the name of the candidate for whom he wishes to vote on the other ticket, and “in such case it'shall not be necessary to strike off the name of the candidate on the party ticket;” but section 17 of the act requires that the booths shall be provided with erasers, and section 26 clearly implies that such erasers may be used to erase the name of the candidate on the party ticket, for it is provided:

“A ticket marked with a cross in the circle under a party name will be deemed a vote for each of the candidates named in such party column whose name is not erased, except those candidates where a cross is placed in the square before the name of some opposing candidate.”

The erasure of the name is recognized as appropriate to express the voter’s intent not to vote for sucb candidate, and we do not think that when such an erasure is made on the party ticket, and the voter in addition places a cross before the ñame of the opposing candidate, either mark should constitute a distinguishing mark. Taken as a whole, we think it was intended 'by the act of 1893 that such an erasure should be treated as permissible, though not necessary.

The motion for rehearing presents other questions, the gravity of which ■ induces us to grant a rehearing on the whole case.


author: Montgomery, J. Hooker, J. McGrath, 0. J.

text:
    The Attorney General, ex rel. James A. Scott, v. Charles Glaser.
    [See ante, 396.]

      Statutes — Practical construction — Elections—Marking ballots.

    1. The interpretation, placed upon a statute by the different departments of the State having a duty to perform thereunder, while not absolutely binding upon the judicial department, is, in a doubtful case, to be given weight; citing Westbrook v. Miller, 56 Mich. 151.
    .2. The election law of 1891 provides:
    a — That “any elector- may-mark of stamp a cross in the space below the party name printed at the head of the ballot. If marked thus, such ballot shall be counted for all the nominees of such party whose names appear on the ballot in that column. If the voter shall have erased some name in the column, or marked a X before the name of a candidate in some other column for the same office, or written in a name under the name of any candidate,.the name of such candidate shall not be counted as voted for by such ballot, but, if the name of the candidate shall have been erased, such vote shall be counted for the candidate whose name in another column shall have been marked or whose name shall be written under the name erased.”
    1) — That “any ballot which shall bear any distinguishing mark or mutilation shall be void, and shall not be counted, and any ballot or part of a ballot from which it is impossible to determine the elector’s choice of candidates shall be void as to the candidate or candidates thereby affected.”
    And it is held that ballots marked as follows should be counted:
    a — Where the name of a candidate appears on two tickets, and a cross is placed in the square opposite his name on each ticket.
    b — Where the names of the candidates on one ticket appear on another ticket, and a cross appears in. the square under the heading of both of said tickets, or under the party name of one ticket and opposite a portion or all of the names on the other.
    c — Where a cross appears opposite the names of the candidates on one ticket, or in the square under the party name of such ticket, and the names of the candidates on" the opposing tickets are erased, either by horizontal lines or by a cross extending over all of said names.
    d — Where two tickets are identical, and crosses are placed opposite all the names on each, and a line drawn through each name on the opposing ticket and through one of'the names on the duplicate ticket.
    e — Where a cross appears in the square under the party name of a ticket, and the name of a candidate thereon is erased, and the surname of the candidate for the same 'office on the opposing ticket is written in. ■
    / — Where a cross appears in the square at the head of a ticket, and the name of one of the candidates on said ticket is partially erased, and another name written thereon with a lead pencil.
    And it is held that ballots marked as follows should not be counted:
    a — Where more than a single cross appears under the party name of one of the tickets.
    b — Where a cross appears in the square under the party name of a ticket, and two marks similar to commas appear in the square under the party name of another ticket.
    c — Where a cross, with a half circle drawn around it, appears under the party name of a ticket, and a figure 9 appears in the square under the heading of another ticket.
    d — Where a cross appears in the body of the ticket outside of any square thereon.

      e — Where a cross appears under the party name on a ticket, and a horizontal line is drawn through the square under the party name of each of the other tickets.
    f — Where a cross appears under the party name on a ticket, and also opposite the name of a candidate on another ticket, and a line is drawn under the name of the- candidate for the same office on the first-named ticket.
    g — Where the ballot has no cross upon it, but a blot appears in the center thereof.
    h — Where a ballot has no cross upon it, but a straight line is drawn through the square under the party name on one o£ the tickets.
    i — Where a cross appears at the right of the square under the party name of one of the tickets, and a large circle is drawn around said square.
    Behearing, upon application of' the respondent, of case reported in 102 Mich. 396.
    Argued November 20, 1894.
    Former opinion reversed in part January 8, 1895, and judgment of ouster entered.
    The facts are stated in the several opinions.

      Adolphus A. Ellis, Attorney General (Hatch & Cooley and T. A. E. & J. C. Weadock, of counsel), for relator.

      G. H. Francis (Pratt, Van Kleeck & Gilbert, of counsel),, for respondent.
   Montgomery, J.

A rehearing has been had in this case, and, after full consideration, we feel constrained to-modify in substantial respects the original opinion. In the-former opinion the Court held, in substance, that any mark upon a ballot not appropriate and necessary to express, the voter’s intention should be regarded as a distinguishing mark; and, applying this rule, it was held that when the name of the candidate appeared on two tickets, and a cross was placed in an appropriate place on each ticket, or opposite the name of the candidate on each ticket, neither vote should be counted. This conclusion was reached with some hesitancy, and in view of the practical difficulty of applying any other general rale. But it is now earnestly pressed upon our attention that this construction runs counter to the practical construction which has been given by the law department of the State and by the election inspectors, and we feel impressed that sufficient consideration was not given to this fact in reaching the conclusion above stated.

It appears that on the 24th of February, 1892, the Attorney General prepared a letter of instruction to inspectors of election and electors, in which it was stated that where ballots were used on which two tickets appeared with the name of a candidate for a place on each ticket, and a cross was placed in an appropriate place on each ticket, the ballot should be counted for such candidate. Attorney General’s Beport for 1892, pp. 183, 188-190. The question was again presented in October, 1892, when the Attorney General gave a similar opinion, which is found at page 135 of the report of the Attorney General .for 1893. In this opinion it was said:

u The fact that the voter has indicated in more than one way that he desires to vote for any candidate on the ballot is no reason why he should lose his vote or the candidate be deprived of the credit.”

It would appear, therefore, that at three different elections the voters have acted with this opinion of the Attorney General before them; and, if we adhere to the construction which we have given to the statute, the result is that many electors must have lost their votes, although they have followed implicitly the instructions of the legal department of the State. This certainly is a result to be deprecated, and one which should only be reached if forced upon us. It is evident that the statute is not entirely clear, as there is no express declaration as to what constitutes distinguishing marks; and the determination of that question depends upon the construction which is to be placed upon the various provisions of the statute quoted in the former opinion.

It has become a rule of law that the interpretation placed upon a statute by the different departments of the State having a duty to perform under the statute, while not absolutely binding upon the judicial department, is to be given weight in a doubtful case. In Westbrook v. Miller, 56 Mich. 151, it was said:-

When, in the performance of executive duties, it becomes necessary for the executive department to construe a statute, great deference is always due to its judgment, and the obligation is increased by the lapse of considerable time before its acts are called in question,” — citing numerous cases, among which are Malonny v. Mahar, 1 Mich. 26; Britton v. Ferry, 14 Id. 53; Continental Improvement Co. v. Phelps, 47 Id. 299.

See, also, Baker v. Police Commissioners, 62 Mich. 327; People v. Hurst, 41 Id. 328; People v. May, 3 Id. 598; Johnson v. Ballou, 28 Id. 379; Pease v. Peck, 18 How. 595.

We think, in view of this practical construction, it should be held that the class of ballots above referred to are not illegal. While it may be said that the placing of the cross opposite the name of the candidate on each of the two tickets was unnecessary, neither, by itself, was inappropriate to express the voter’s intent, and we feel constrained to hold that the rule which was laid down in cur first opinion was too rigid.

There were cast for the respondent certain tickets which had a cross under the party name of the Republican ticket, and also of bhe Citizens’ ticket, both tickets being identical. These we hold should have been counted. In the record they are illustrated by Exhibit 2.

In the same opinion of the Attorney General first quoted, a ticket was presented in which the voter had placed opposite the names of the individual candidates on one ticket a cross? and had erased the names of the candidates on opposing tickets, and the opinion was expressed that this was a valid vote for the candidates opposite whose names the cross was placed. The same considerations which lead us to hold that the votes first mentioned should be counted induce us to hold that these should likewise be counted. The erasure of the names upon the opposing ticket, while unnecessary, may have been made for the purpose of making more clear the intention of the voter. Tickets of this class are illustrated by Exhibit 15.

This case is presented on demurrer to respondent's rejoinder to relator's replication. There are 40 votes in dispute which were counted for respondent, and 9 votes which were counted for relator which are in dispute. In determining what votes should be counted or rejected, we are to be guided by the rejoinder of respondent, which the demurrer admits to be true, and for convenience we will tabulate them by precincts:

To be counted. To be rejected.

1st ward. 2 tickets: Corresponding to Exhibit 2. 1 ticket: Exhibit 3.

2 d ward, 1st dist. 2 tickets: 1 Exhibit 2; 1 Exhibit H. 3 tickets: Exhibits E, P, and G.

2d ward, 2d dist. 6 tickets: 2 Exhibit 2; Exhibits I, J, K, and 8. 1 ticket: Exhibit 7.

3d ward. 1 ticket: Exhibit L. 2 tickets: Exhibits 9 and 2ST.

4th ward, 1st dist. 5 tickets: 4 Exhibit 2; 1 Exhibit S. 4 tickets: 2 Exhibit 12; Exhibits 11 and 13.

4th ward, 2d dist. 2 tickets: Exhibit 2. 3 tickets: Exhibits T, TJ, and V.

5th ward. 2 tickets: Exhibit 2.

6th ward. 3 tickets: Exhibit 15. 3 tickets: Exhibits 16,17, and AA.

To be counted, 23. To be rejected, 17.

There are a number of these ballots which haye under the heading more than a single cross. ' These crosses were not appropriate to express the voter’s intent, and the ballots are excluded.

Exhibit 8 has a cross in the square under the Republican ticket, and two marks similar to commas in the square under the Democratic ticket.' These marks could not have been used to express the voter’s intent, and the ballot should be excluded.

One ticket (Exhibit 8) has a cross in the appropriate place under the Republican ticket, and- on the ward ticket the name of the candidate for alderman is erased, and the word “Hayes,’’ the surname of the candidate on the opposing ticket, written in. This ticket, we think, should be counted, as it is evident that the purpose was to express an intent to vote for Hayes, although the voter failed to write his full name.

Exhibit 17 has a cross under the heading “Republican Ticket,’’ with a half circle round it, and a figure 9 written in the square under the head “Citizens’ Ticket.’’ This should not have been counted, as the figure used certainly could not have been appropriate to express any intent of the voter, or so intended.

Of the tickets counted for the relator, Exhibits B, W, and X should have been excluded, on account of multiplicity of crosses.

• Exhibit M contained a cross under the head of the “Democratic Ticket,’’ and a cross opposite the name of Charles G-laser, on the Republican ticket, with a line drawn underneath the name of James A. Scott, without erasing the name. This ballot was counted for Scott, but should not have been counted for either, as the voter’s intent could not be ascertained.

Exhibit 0 was counted for the relator. The ticket had no cross upon it, but a blot in the center of the ticket. This should not háve been counted.

Exhibit P had no cross upon it, but a straight line underneath the Democratic ticket. This should not have been counted, as the intent of the voter was not expressed in the manner provided by statute.

Exhibit Z should have been excluded, as it had a cross under the Democratic ticket, outside the square, and the square was inclosed in a large circle, which could not have been used to express the voter’s intent.

Of the nine votes counted for relator which are in contest, one (Exhibit C) was, we think, under the averments of respondent’s rejoinder, properly counted for him. It is alleged of this ballot that it “was marked with a cross in the square at the head of the Democratic ticket, and one of the names of the ward officers was partially erased, and the name Walter L. Portt written thereon with a lead pencil.” This was plainly an attempt to vote for Walter L. Portt for the office designated, and it should not be treated as a distinguishing mark.

It is also apparent from the averments in respondent’s rejoinder that one ballot which was counted for respondent (Exhibit N) should have been counted for relator. This ballot was one cast in the Third ward, which is described in respondent’s rejoinder as follows:

“The ticket was marked with a cross in the square at the head of the Republican ticket, and the name of Charles Glaser erased, and James A. Scott written in the Republican ticket, which ballot was also counted for respondent.”

Deducting from the vote of the relator 8 votes, shown by respondent’s rejoinder to have been improperly counted for him, and adding the vote in the Third ward just referred to, which was counted for respondent, and which has been deducted from his vote, shows the relator to have -received 1,171 votes. Deducting the 17 votes from respondent’s vote, he is shown to have received 1,170. The relator was elected by a majority of 1 vote, and judgment should be entered for him.

Long and Grant, JJ., concurred with Montgomery, J.

Hooker, J.

I concur in the opinion of my Brother Montgomery, except as to Exhibit L, which I think bears a distinguishing mark, and should have been rejected.

McGrath, 0. J.

In this case.the official ballot was as found on page 414.

Exhibit H (Se’cond ward, First district) had a cross in the space at the left of each name on both the Republican and -Citizens’ tickets, and a line was drawn horizontally through each name on the Democratic ticket, and also through the name of Alex Zagelmeyer, on the Republican ticket. Exhibit S (Fourth ward, First district) had a cross in the space at the head of the Republican ticket, and a cross in the spaces to the left of the first two names on the Citizens’ ticket. I .think that both of these tickets should have been rejected. If allowed to use the spaces and the horizontal lines in the manner here made use of, there is no reason why these very lines and spaces may not be used to identify the ballot, and there is no end to the combinations which may be made for that purpose. I think that all marks upon the ballot should be such as to repel any inference that the marks-were intended as distinguishing marks.

Exhibit 7 (Second ward, Second district) has a cross in the space at the head of the Republican ticket, and another cross in the same column, at the head of the ward ticket, where no square is provided. Exhibit L (Third ward) has a cross at the head of the Citizens’ ticket, and a line is drawn from the upper left-hand corner to the lower right-hand corner of the Democratic ticket, and an■other line from the upper right-hand corner to the lower left-hand corner, forming a cross over the whole ticket. Exhibit P, instead of a cross in the space at the head of the ticket, has a line drawn horizontally across through the space, and extending three-eighths of an inch beyond the space on either side. In my opinion, these ballots should be treated alike. The intent is none the more manifest in the one case than the other. In Exhibit L the voter put a cross where he should have put lines by making use of the stamp provided therefor. In Exhibit P the voter put a line where he should have placed a ■cross, evidently making use of the line stamp, instead of the cross stamp. While it is true that in Exhibit L the voter has, in the manner pointed out by the statute, signified his intent by the usual cross placed in the proper place, he has placed upon his ballot marks which are inappropriate, and the only reason that the ballot is counted is that the mark so placed is thought to be indicative of a legitimate intent. Exhibit P, on the other hand, is rejected, simply because the intent to vote the ticket is not expressed in the statutory mode, although the mark is made at the point designated by the statute. These differences of opinion are liable to arise unless the rule is adhered to that whatever marks are placed upon the ballot must be those designated by the statute, and made where the statute indicates that they should be made. I think, therefore, that Exhibit L should have been rejected.

As these changes would not affect the result, I concur in the judgment of ouster.


author: Montgomery, J. Montgomery, J.

text:
    The Attorney General, ex rel. Michael S. Griffin v. Reuben C. Tasker.

      Elections — Marking ballots.

    This case is ruled by Attorney General v. Glaser, ante, 405.
    Information in the nature of quo warranto to determine the title to the office of treasurer of West Bay City.
    Argued June 29, 1894, and opinion filed November 7, 1894.
    Reargued November 20, 1894.
    Judgment entered for respondent January 8,'1895.
    The facts are stated in the cases cited in the opinions.

      Adolphus A. Bilis, Attorney General {Hatch & Cooley and T. A. B & J. C. 'Weadock, of counsel), for relator.

      G. H. Francis {Pratt, Van Kleeck <& Gilbert, of counsel), for respondent.
   Montgomery, J.

This case depends upon the same-state of facts as was considered in the case of Attorney General v. Glaser, ante, 396. The relator is entitled to-recover.

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

On rehearing the following opinion was filed January-8, 1895:

Montgomery, J.

This case was heard with the case of Attorney General v. Glaser, ante, 405, and depends upon the same state of facts, except that the respondent in the present case was shown, on the recount of votes had under Act No. 208, Laws of 1887, to have had a majority of 15:, and á re-examination of the votes upon the basis of tbe opinion in Attorney General v. Glaser shows that the respondent, Tasker, was duly elected by a majority of not less than eight. We consider it unnecessary to recapitulate the votes.

Judgment will be entered for respondent.

The other Justices concurred.


author: McGrath, C. J.

text:
    Wesley L. Hoffman v. The City of Port Huron.

      Surveys — Boundaries—Location of highway — Evidence,
    1. The reason for the rule that, as between the record of the survey of a highway, and a highway actually located upon the ground by fence lines, or by being graded and traveled or otherwise definitely fixed, the latter must prevail as the boundary of lands described as being so limited, does not exist unless the line of the road was actually located and definitely fixed, in which case the road itself becomes the controlling monument.
    2. Streets that have been opened and acquiesced in by the parties interested, or by the public authorities, become permanent boundaries, and form new starting points for later surveys; citing Twogood v. Hoyt, 42 Mich. 609; Van Den Brooks v. Correan, 48 Id. 283; Atwood v. Canrike, 86 Id. 99, 103.
    8. For the purpose of identification and certainty, resort may be had to a conveyance referred to in the instrument containing the uncertain description; citing Daily v. Litchfield, 10 Mich. 29; Cronin v. Core, 38 Id. 381; Fahey v. Marsh, 40 Id. 236.
    4. Where the description in a deed calls for land owned and. occupied, the actual line of occupation is a material call to be • considered in locating the boundaries.
    5. Old -fences have always been regarded as strong and trustworthy evidences in ascertaining and fixing boundaries; citing Diehl v. Zanger, 39 Mich. 601; Twogood v,. Hoyt, 42 Id. 609;,
      Wilmarth v. Woodcock, 66 Id. 381; Beaubien v. Kellogg, 69 Id. 333.
    6. Where two surveyors disagree materially as to the courses, quantity becomes a material consideration; citing Winans v. Cheney, 55 Oal. 567; Sanson v. Township of Bed Bock, 57 N. W. Rep. 11.
    7. A supposed boundary line, long acquiesced in, is better evidence of where the real line should be than a survey made after the original monuments have disappeared; citing Stewart v. Carleton, 31 Mich. 370; Diehl v. Zanger, 39 Id. 601.
    Error to St. Clair. (Canfield, J.)
    Argued January 2, 1894.
    Decided November 7, 1894.
    Ejectment. Plaintiff brings error.
    Eeversed.
    The facts are stated in the opinion.

      A. R. Avery and H. W. Stevens (Avery Bros. & Walsh and Stevens & Merriam, of counsel), for appellant.

      O’Brien 'J. Atkinson and Frank Whipple, for defendant.
   McGrath, C. J.

This is ejectment to recover the possession of a tract of land lying on the west shore of Lake Huron, in fractional section 36, town 7 N., of range 17 E.,' and known as “Fishery No. 1.” Both parties derive title from a common source. The following diagram (a copy of that portion of the government survey) gives fractional section 36 and surroundings. (See diagram 1, page 419.)

The McNeil tract, referred to in the deeds hereinafter named, comprises private claims Nos. 344 and 357. In October, 1838, a plat was filed in the office of the register of deeds, of St. Clair county, upon which the easterly portion of the McNeil tract, excepting the land between Lake street and the water, was laid out into lots and blocks. This plat shows a street along the lake shore, and eight other streets between Lake street and Fourth street, which latter street bounds the plat on the west'. The south line of the plat was Michigan avenue, and twelve other streets intervened between that avenue and Walnut street, which was the northern boundary of the plat.- The north-easterly portion of this plat is inserted. (See next page.)

Diagram 1.

Diagram 2.

On October 14, 1841, John McNeil and others filed a petition in the circuit' court for the county of St. Clair, alleging their proprietorship to all of the lands covered by the plat, and that no part had been sold except one lot upon the highway; and, further, that at that time all .of the village north of Superior street was a wilderness, and not needed for village purposes, as it was then a forest; and asking that the streets and public places north of such Superior street might be vacated. Upon this application the court made an order vacating the plat; and upon December.30, 1841, a second plat was filed, showing all the lands north of Superior street and east of Fourth street, laid out into what have since been known as “ Out-lots of the McNeil Tract.”

Diagram 3.

(A) On the 19th of July, 1840, Charles Butler conveyed to Robert T. Holland “part of fractional section 26, * * * bounded as follows: Commencing 50 links north, 36 degrees west, from a stake standing on the line of the ‘McNeil Tract/ so called, and being the southeast corner of that part of said fractional section which lies west of the Lake road; and running thence north, 26 degrees west, along the west line of said road, 4 chains and 50 links, to a stake; thence south, 80 degrees west, 6 chains and 67 links, to a stake; thence south, 26 degrees east, 4 chains and 50 links, to a stake; thence north, 80 degrees east, 6 chains and 67 links, to a stake, being the place of beginning, — and containing three acres of land.”

(B) On the 1st day of February, 1841, Charles Butler deeded to Joseph D. Beers “the south -part of fractional section 28, * * * lying west of the Lake road, excepting and reserving from the same three acres, heretofore sold to Robert T. Holland, off the south-east corner of said fractional section 26, lying on the west side of the said Lake road, and also reserving all of said section lying east of the said Lake road; said south part of said frac■tional section 26 containing, over and above the reservation herein mentioned, 50 acres of land-.” This deed conveys Other lands, including parcels in the McNeil tract, and locates said pieces of land by reference to “ a map of the subdivision of said McNeil tract.”

(0) On the last-named date, Charles Butler deeded to William Bard, Thomas Suffern, and James McBride, “the following lots, in the village of Fort Gratiot, according to the field map, viz.: Lots 7 and 8 in block 55, lots 28 and 29 in block 60, also lots numbers 22 and 23 in block 19, the second last lot being the north-east corner of lot 21 of the McNeil tract, as subdivided; * * * also Fishery No. 1 on the lake shore, beginning at the north line of the Lighthouse Reserve on the lake, extending northerly 120 rods north of the north line of the 'McNeil Tract/ so called, including the land lying between the Lake road and the lake.”

(D) On September 2, 1871, Beers, by executor, conveyed to John M. Hoffman “ the south part of fractional section 26, * * * lying west of the Lake road (except three acres sold to Robert T. Holland), and containing 50 acres, be the same more or less.”

(E) On June 3, 1873, Hoffman' conveyed to Howe the last-named parcel, by like description.

(F) On June 9, 1873, Howe conveyed to Esther Dorwood a portion of fractional section 26, describing, tbe same as follows: Commencing at a stake standing in the south part of fractional section 26, to.wn 7 north, of range 17 east; running thence easterly, at right angles with the Lake Shore road; thence south, on a line parallel with the road, 10 rods; thence westerly, at right angles with the road, 8 rods; thence northerly, at right angles with the last line, 10 rods, to the place of beginning,— containing half an acre of land, said land including the house now occupied by the party of the second part.”

(C) On November 24, 1876, Howe reconveyed to Hoffman the south part of fractional section 26, * * * containing in all 53 acres, more or less, excepting three acres sold to Kobert T. Holland, .2 acres to Mrs. Hall, one-half an acre to Mrs. Dorwood, and Fishery No. 1 on the lake shore.”

(H) On February 6, 1877, Hoffman conveyed to the defendant the south part of fractional section 26, * * * excepting three acres owned by Holland, two acres owned by Mrs.- Hall, and half an acre owned by Mrs. Dorwood, and Fishery No. 1.”

The plaintiff derives his- title to Fishery No. 1 by deed dated April 25, 1882, from Thomas Suffern, by executors, to Wesley L. Hoffman, which deed purports to convey the entire title; a deed dated February 3, 1875, from the administrators of the estate of William Bard to John M. Hoffman, conveying an undivided one-third of Fishery No. 1; a deed hearing date April 25, 1882, from John. M. Hoffman to Wesley L. Hoffman; and a deed dated September 16, 1882, from Bobert T. Holland to Wesley L. Hoffman. These deeds of the Fishery contain a similar description to that above given in the deed from Butler to Bard and others (C).

Defendant insists that so much of Fishery No. 1 as was east of the premises conveyed has ceased to exist; that the action of the waters of Lake Huron for a long series of years has had the effect to wear away the banks of 'the shore; that, at the point in question, it has so far encroached upon and worn away the land that the whole of that part •of said fishery has been washed away, and that the place where it was is now covered by the waters of the lake, and that the water line now reaches to its lands. The plaintiff claims, on the contrary, that the fishery has not been washed away, but that it substantially remains; that the action of the water has not been such as materially to wear away the land; and that, though it may be worn away to some extent temporarily by storms, it generally makes on again to the beach, and, at least, a considerable part of the land, constituting the fishery remains.

The disputed fact in the case is the location of the Lake road referred to in these several deeds. At a very eaily date, Robert T. Holland built a house upon the thiee ■acres conveyed to him by Butler (A), and inclosed said parcel by a fence. Many years ago, a street was opened ■on the line between fractional section No. 26 and the McNeil tract; and in 1816 Huron avenue was extended in ■a north-westerly direction beyond the north line of fractional section No. 26, connecting with the lake shore at a point north of said fractional section. The. extension ■ was called the “New Lake Road,” and the old road was abandoned. The land conveyed as aforesaid to defendant was used by it for cemetery purposes. In 1883 a surveyor was- employed by the cemetery board to locate the east line of said property. The surveyor was paid for his services by the cemetery board and plaintiff jointly. A survey was then made, the line fixed, and the cemetery authorities built a post and wire fence upon the line so fixed. The line as then fixed is the one for which plaintiff contends. In 1889 the cemetery authorities took down this fence, and constructed one to the water’s edge. So far as the record discloses, this was the first time that the defendant asserted the right to possession of any land east •of the line of the fence so constructed as aforesaid.

No traces of any highway upon the surface of the disputed territory now remain. It appears that, for many years after the conveyances from Butler (A and B), there were trees and vegetation for some distance east of the Holland inclosure, and of the line fixed by the surveyor aforesaid; but violent storms have washed away the surface, and undermined many of the trees, so that much of the area between said fence line and the water’s edge is a sandy beach, hut the water’s edge is .still from 150 to 250 feet east of said fence line and east of the Holland inclosure. There was some evidence tending to show that the water’s edge had been at times nearer to this line, and that, owing to the action of the cemetery authorities, the land had made on again; but it appears that, when the fence line was determined as aforesaid, there was land east •of said line, and it does not appear that at any time the water line reached or passed such fence line. In the construction of the wire fence aforesaid, trees were made use ■of along the line to which to attach the wires.

Plaintiff introduced the township record of a highway along the shore, dated December 11, 1837, surveyed by me, Nathan Ward, district surveyor, and Elijah Burch and Alexander Ashley, commissioners of highways.” This .survey gives courses, distances, and a large number of monuments. It commences on the north line of the town•ship, and ends at a post one chain from the west bank of Lake Huron,” a point which is south of fractional section 26. The surveyor who located the fence line for the ■cemetery authorities in 1883 was called for plaintiff, and locates the starting point on the north line of the township, and admits his inability to find any of the intermediate monuments or finger posts except one, or to find the “post one chain from the west bank,” but claims to have followed, the courses given in the highway survey aforesaid, and that such courses and distances brought him to the line of the road immediately in front of the fence inclosing the Holland tract, and upon the line of Lake street, as it appears upon the plats (2 and 3) above given. He found the stake upon the north line of the McNeil tract referred to in the deed (A) from Butler to Holland, and also the stake at the north-west corner of the Holland parcel, which is also referred to in that conveyance, and testifies that-the line of the road as retraced according to the survey made in 1837 conformed to these stakes. He also locates the Dorwood half acre as fronting on the line so traced by him. He further finds that the Holland inclosure does not contain quite three acres, and that, in order to give Holland the full three acres within his inclosure, it would be necessary to extend the north and south lines nearly a rod. His retracing gives to that part of fractional section 26 lying west of the line run by him 96.9 acres of land.

The defendant introduced a survey of the highway made in 1843, and a subsequent survey made in 1854. The courses and distances given, so far as section 26 is concerned, are substantially the same as are given in the survey made in 1837. The defendant called its city engineer, who testifies that, by following the courses and distances indicated in the several surveys, he came out at a point opposite the Holland inclosure, 40 rods east of the meander line. Upon cross-examination the witness says:

Q. And, at a point of the boundary of section 15, your road of 1837 crosses the meander line, does it not?
A. Yes, sir.
Q. According to the government survey, it crosses the meander line into Lake Huron in section 15?
“A. Yes, sir.
“ Q. And your line of 1837 crosses the meander line at that point into Lake Huron?
“A. Yes, sir.
Q. And your survey of 1843 also crosses the meander line at the same point into Lake Huron, does it not?
“A. I will not say that it passes into Lake Huron; it passes the meander line.
“Q. The meander line indicates what there?
“A. It indicates a line somewhere near the border of-Lake Huron.
“ Q. The margin of Lake Huron?
“A. Not necessarily close.
1 “ Q. Within what distance would you say it was?
“A. Probably within 3 or 4 rods; possibly more at points.
“ Q. At that point it crosses what is here indicated as the meander line?
“A. Yes, sir.
“ Q. And it joins the other road very closely down here, at section 26, — the two roads come together?
“A. They are said to come together.
“ Q. Near the north part of fractional section 26?
“A. Yes, sir.
“ Q. And the survey brings them up together at that point?
“A. They are said to. ,
“ Q. And, from that where you cross that meander line, how much further did you survey that line of 1843?
“A. I surveyed it down to near the south line of 15.
“ Q. Or a mile and a half above Holland’s?
“A, Yes, sir.
Q. Did you survey it any further?
“A. No, sir.
Q. Then, from there down it is a joint line?
“A. From there it is a line completed from the notes.
“ Q. From the time it crosses these two surveys, the one of 1837 and the one of 1843, they never get west of the meander line, do they, again?
“A. No, sir; not according to the way they plat.
“ Q. And they never get within anywhere near it at the south end?
“A. No, sir.
“ Q. Now, according to the field notes, they come out just about as they should on the plat; that is, they join just about as they should?
“ A. They join just about as they should according to the notes.
“ Q. That is just about as they should join?
“A. Yes, sir.
“ Q. Now, as a matter of fact, Mr. Rogers, if this survey was ever run on that line as you run it, they must have run either in the water from the time they passed section 15, or else the meander line is not correctly laid down on that map, is not that so?
“A. That is true, I guess.
“ Q. So that either, as a matter of fact, these two surveyors who surveyed these roads, the one in 1837 and the other in 1843, ran that road into the water from the time they passed section 15. down to the end, or else they have both made a mistake, or else the government has made a mistake?
“A. Yes; I think that can be answered in the affirmative.
“ Q. Or else you have made one?
“A. Yes; put that in too, if you want to.
'' Q. Now, the two must have made practically the same mistake, must they not, — substantially the same mistake?
'' A. It seems to me, the way their notes plat. * * *
“ Q. Now, at this point, I don't remember how many rods you said you were out there in the lake.
“A. I said over 40 rods.
'' Q. How many chains would that be?
“A. 10 chains.
“ Q. Beyond the meander line?
“A. Yes, sir.
" Q. So that, if the road was ever run out into the lake at that point, that meander line was set 10 chains west of the road?
“A. If the road was ever there, the meander line was 10 chains west. * * *
'' Q. Why do you estimate, Mr. Rogers, that there was ever any land out there, beyond the meander line, upon which to run a road?
“A. I never said there was, that I know of.
'' Q. You made a map in which you located a road out there?
“A. I didn't locate a road. I located some minutes of a survey that was placed in my hands. * * *
“ Q. At that point, .then, you knew the fact that the center of the road, what was called the 'Lake Road' there, was at that point when you made the survey up here in section 4?
A. I knew about it according to that plat.
Q. Then, if that plat was correct, you had two definite points of certainty when you made the survey?
A. Not in those minutes. It doesnT say anything about that. It simply gives courses and distances from one point.
“ Q. If that Lake road was correct on the plat at that point—
“A. If it was?
“ Q. If it was correct at that point, and this quarter post up at that point was correct, you had two points of certainty, had you not?
“A. Yes; if that was correct.
Q. So that you knew, when you were surveying here, when you crossed this line and ran out into the lake, you knew that you were there out of the way, that you were making a mistake, or. somebody else had made a mistake, did you not?
‘‘A. Certainly, I did.”

The defendant supplemented this testimony by that of a number of witnesses, none of whom had resided upon the road, or at or near the land in question, but who had occasionally, at intervals between 1836 and 1860, traveled along this shore. The testimony of these witnesses, however, does not tend to show any authoritative location of a highway, nor does it ‘ tend to locate any particular or definite way by user. The witnesses disagree as to the distance from the Holland house to the fence, as to the distance from the fence to the road, and from the road to the water. No other definite monumedt is referred to. A majority of them fix the distance from the house to the fence at from 5 to 6 rods. Certain of them insist that the road was near the fence, and two of them state that the Holland fence was the west boundary of the highway; others state that it was from 25 to 30 feet from the fence; and others vary the distance from 4 to 10 rods. The distance from the road to the water is given by some at 4 rods, by others at 6, by others at 8, again at 10, and by some as high as 20 to 25 rods. All agree that there was no road cut out, having any definite or uniform width, and that travelers drove anywhere between the road and the lake. One witness says:

“ There were quite a number of tracks parallel with each other every two or three rods. Have seen as many as half a dozen parallel tracks. Everybody made a road for themselves.”

Another says:

“ There were numerous traveled tracks.”

Another:

“There were half a dozen roads. When it got packed with heavy sand, we would shift again, and so on.”

Another says:

“ Some places the roads were 3 rods apart; some places, not over 2 rods. Farmers jogged in, I suppose, to get the best road.”

Another says:

“There was no cut-out road, except cut out to take a sled through. They took out a few trees to let a sled through, and kept as close to the water as they could, so as to have as slight a cut as they could. It was what you would call a ‘bush road.'” <■

Another says:

“It was never more than a mere wagon track through the timber. There were no regular dimensions, or anything like that.”

Another says:

• “It was supposed to be a road, but they run anywhere between the road and the beach. In very dry weather they would go just as close to the water as they could get, — right on the border of the lake. The road as traveled wasn't straight; it zigzagged around.”

Several of these witnesses say they “think,” or that they “ should say/’ or that, their “judgment is,” that Holland’s'fence had been moved, or that it must have been moved, to the west. No witness testifies to the fact of removal, but they judge from alleged changed appearances at times years apart. Eansom Holland, whose father lived in the house upon this inclosure from about the time of the purchase of the three-acre tract until 1886, and who himself has lived upon the tract since his birth, in 1841, testifies that the fence is now where it has always been. A number of these witnesses give the course of the road in the vicinity of the Holland tract as north-easterly, but the government meanders make fractional sections 26, 23, 22, 15, 10, 9, and 4. Section 23 contains less than 12 acres. The north line of 22 is less than 54 chains, and the north line of 15 is 22 chains, and the course of the meander line is nearly direct from the south line of 26 to the starting point in 4.

• The survey commences on the north line of the township, and locates its southern terminus at a point south of the land in question. There was no east and west road at such terminus, and the presumption is that it closed with an existing highway. This survey was made in December, 1837, and the plat (diagram 2) showing the course of the highway from the north line of the McNeil tract southerly, beyond the terminus of the recorded survey, to the Lighthouse Eeserve, was recorded in October, 1838.

As between the record of a highway, being a survey thereof by the proper authorities, or a dedication thereof to the public, and such a use of the margin along the shore of the lake, which margin is from 10 to 30 rods in width, as is indicated by the testimony of the defendant’s witnesses, which use includes the use of the way described in the survey or defined in the plat, the former must prevail, because the most certain. There is no room in the present case for the application of the rule that, as between the record of the survey of a highway, and a highway actually located upon the ground by fence lines, or by being graded and traveled or otherwise definitely fixed, the latter must prevail, and the presumption must be in such case that the description in the deed, bounding the land by such highway, referred to the highway as' it actually existed upon the ground at the time of the conveyance. The reason for that rule does not exist unless the line of the road was actually located and definitely fixed, in which case the ,road itself becomes the controlling monument. Streets that have been opened and acquiesced in by the parties interested, or by the public authorities, become permanent boundaries, and form new starting points for later surveys. Twogood v. Hoyt, 42 Mich. 609; Van Den Brooks v. Correon, 48 Id. 283. In Atwood v. Canrike, 86 Id. 99, 103, it is said that—

“Without proof that the line of the road, as shown by the record, had been opened or used at the time the deed was made, or proof that no road called a 1State road5 had been opened or used, * * * the record would not be material.55

In the present case there is no proof that, at the.time when Butler conveyed these parcels of land, a highway had been cut out or graded or worked or its location definitely fixed by authoritative action, and, as respects use or travel, the testimony clearly tends to show that the use was not confined to any line within a strip of land from 10 to 30 rods in width. Testimony of that character is admissible only as a dernier resort. Kilgannon v. Jenkinson, 57 Mich. 325. See; also, Lyle v. Lesia, 64 Mich. 16.

The Holland tract is described in the deed from Butler to Holland (A) by metes and bounds, the courses and distances are given, and four stakes are expressly referred to. The deed from Butler to Beers (B) excepts three acres, “ heretofore sold to Holland, off the south-east corner of said fractional section 26, lying west of the Lake road.”' The Dorwood tract is described in the deed from Howe toDorwood (F) byv metes and bounds, courses and distances. These deeds refer not alone to the Lake road as a boundary, but to these parcels as located on such Lake road,, and stakes on the highway are frequently referred to as monuments. The Holland parcel is referred to as occupying the south-east corner of the tract included in the general description. As is said in Willey v. Snyder, 34 Mich. 60, written descriptions of property are to be interpreted in the light of the facts known to and in the minds of the parties at the time.

Descriptions do not identify of themselves; they only furnish the means of identification. They give us certain marks or characteristics, — perhaps historical, data or incidents, — by the aid of which we may single out the thing intended from all others; not by the description alone, but by that explained and applied. Even lands are not identified by description until we place ourselves in the position of the parties by whom the description has been prepared, and read it with the knowledge of the subject-matter which they had at the time.”

The conveyances through which defendant derives its title furnish the means of identification. The boundaries of neither of these excepted tracts are defined in the deeds in which the exceptions are made. Eesort to the deeds conveying the excepted parcels is absolutely essential. It is well settled that, for the purposes of identification and certainty, resort may be had to a conveyance referred to in the. instrument containing the uncertain description. Daily v. Litchfield, 10 Mich. 29; Cronin v. Gore, 38 Id. 381; Fahey v. Marsh, 40 Id. 236; McAfee v. Arline, 83 Ga. 645; Weeks v. Martin, 10 N. Y. Sup. 656; Cannon v. Emmans, 44 Minn. 294.

The deed to Dorwood (F) expressly referred to the land as occupied by the grantee, and it was held in Fahey v. Marsh and Cronin v. Gore that, where the description in a deed calls for land “owned and occupied,” the actual line. of occupation is a material call to be considered in locating the boundaries. Neither Holland nor Mrs. Dorwood could be heard to say that the conveyances to them embraced land east of the monuments referred to in their deeds. The highway to which their grantors referred was made manifest and certain by monuments, courses, and distances given in the conveyances. The result of defendant’s contention would be to permit it to take lands lying between the highway defined in the Holland and Dorwood deeds and the highway sought to be established, and to cut off both tracts from the highway.

The surveyor who fixed the line in 1883 found two of the stakes referred to in the deed from Butler to Holland (A), — one of them at the south-east, and the other at the north-west, corner of that tract. In addition, the surveyor testified that Holland’s fence took substantially the course named in the deed (A), and that it made allowance for a highway along the east line of the inclosure. Old fences have always been regarded as strong and trustworthy evidences in ascertaining and fixing boundaries. Diehl v. Zanger, 39 Mich. 601; Twogood v. Hoyt, 42 Id. 609; Wilmarth v. Woodcock, 66 Id. 331; Beaubien v. Kellogg, 69 Id. 333. It was also shown that the area in the Holland inclosure was within one-tenth of an acre of the quantity named in the Holland deed (A), and that the line contended for by plaintiff gave to that part of the fractional section substantially the quantity of land named in the conveyances thereof. In February, 1841, Butler conveyed to John McNeil “the north fractional part of section 26, * * * containing 44 acres of land, reserving the land between the ro'ad and the lake for fishing.” The deed from Butler to Beers gives the quantity thereby conveyed at 50 acres, and the quantity conveyed to Holland is stated at three acres, making the total acreage given in that part of the section lying west of» the road 97 acres. Paldi, who made the survey for the cemetery board, and whom plaintiff called, computes the acreage west of the line fixed by him at 96.9 acres. The starting point of the surveyed highway is found. The post at the southern terminus is lost. All the intermediate finger posts, except a rill,” are gone. Two surveyors disagree materially as to the courses. In such case, quantity becomes a material consideration. Winans v. Cheney, 55 Cal. 567; Hanson v. Township of Red Rock, 57 N. W. Rep. 11.

Again, the recorded maps or plats (2 and 3) show a street or roadway to the east of the lots, and a margin between the street and the lake, extending from the north line of the McNeil tract southerly to the Lighthouse Reserve, which street is a continuation of the way indicated by description in the Holland deed (A). The survey of the highway was made in December, 1837. Plat 2 was recorded in October, 1838. Plat 3 was recorded in December, 1841, and locates the street on the same lines as does the second plat. The deed to Holland (A) is dated July 19, 1840.. The deed from Butler to Beers (B) and the deed from Butler to Bard and others (C) are dated in February, 1841. The deed from Howe to Mrs. Dorwood (F) is dated June 9, 1873.- The deed from Hoffman to defendant is dated February 6,-1877. What constituted Fishery No. 1, excepted in the last-named conveyance, is made certain by reference to other conveyances. The highway survey antedates the plats; the first plat antedates the deed to Holland; and both plats antedate the deeds of the parcels the boundary line between which is in dispute, as both deeds in terms refer to the second plat. These facts respecting the plats and the determination of the boundary lines of the Holland and Dorwood tracts were not disputed, and the jury should have been instructed that the description in the deeds referred to a highway so located, and that they would not be justified in finding that reference was intended to a highway from 50 to 70 rods east of that line so fixed, or to any other highway than that specifically indicated. There is no evidence in this record tending to show that, when the conveyances A, B, and C were made, there was any other road actually located upon the ground or cut out, or to which travel was confined, or that had such a character as a highway that it might be treated or adopted as a boundary line, and held to control a recorded survey or plat. Much less could a shifting way be allowed to control a boundary line definitely fixed by monuments referred to in the conveyances. Nor do we think that the use of said highway subsequent to that time, including, as it did, travel up to the line fixed, was such as to locate definitely any other highway line which can be held to control the recorded highway survey. If it be true that, in the resurveys alleged to have been authoritatively made in 1843 and 1854, the line through section 26 was not changed, that fact would negative any intention on the part of the authorities to recognize any change in the course or location of the road; and the further fact that as late as 1873, at the time of the conveyance to Esther Dorwood, the line as then fixed conformed to thatJ referred to when A, B, and C were made, would indicate clearly that there was no recognized change in the location of the highway.

Respecting the line of the highway north of the Dorwood tract, the parties must be held to have referred to a highway which was a continuation of the highway as defined south of that point. In view of the existence of the survey when the conveyance to Holland was made, the short time that elapsed between the date of the survey and that conveyance, the plats locating the situs of the highway, and the fact that no road had been actually cut ■out or otherwise definitely located upon the ground, it must, we think, be presumed that the road referred to was the surveyed road, and that the line of said road as indicated by the plats and stakes was the surveyed line, as understood by the parties to the conveyances in which the road is referred to as a boundary. That line was fixed at a time when no dispute had arisen. Up to the time of the conveyance to Mrs. Dorwood, and up to the time that the fence was erected, in 1883, the line thus indicated seems to have been unquestioned. Although the travel had been of a fugitive character during the entire period, and resurveys had been made by the authorities, yet no change had been made in the survey of the line in question. While these circumstances may not, as a matter of law, be conclusive as to the correctness of the location of the line of the highway, yet they are trustworthy •evidences to be considered by the jury, and tend to corroborate Paldi's resurvey.

Mr. Rogers, in his survey, seems to have started out with the assumption that the magnetic declination named in the survey of 1837 was the correct one; and although it carried him across the meander line, and out into the lake, at a point nearly three miles north of the southern terminus of the survey, and kept him there until, when he reached 26, he was 40 rods-east of the meander line, and from 50 to 70 rods east of the line fixed, by description and plat and stakes, at or shortly after the time that the survey was made, and although 'the plats extended such highway beyond the southern terminus of the surveyed highway, he made no effort to reconsider the assumption with which he started out, or to harmonize his resurvey with conditions which seem to have existed for over 50 years. As contended for by plaintiff, we think that the presumption is that the highway as surveyed was within the government meander lines. In any event, the boundary line as indicated by the courses given in the Holland deed, the stakes referred to in that deed and in the Dorwood deed, the fences inclosing the Holland and Dorwood tracts, and the line of the highway as fixed by the plats, is the boundary that must control, and this upon the principle that a supposed boundary line, long acquiesced in, is better evidence of where the real line should be than a survey made after the original monuments have disappeared. Stewart v. Carleton, 31 Mich. 270; Diehl v. Zanger, 39 Id. 601.

With reference to the line north of the Dorwood tract, as already intimated, the parties must be held to have referred to a highway which was a continuation of the highway as defined south of that point; and the location of the lines extended must be determined by following from that point, northerly, the courses given in the recorded survey within the limits of the section.

Plaintiff also made the claim of title by adverse possession, and complains of the instruction that if Holland's possession was not in hostility to, but in recognition of, Suffern's title, and he held under Suffern, as a tenant or by his permission, then such possession would not be a sufficient one upon which to found an independent title. This instruction was erroneous. Defendant does not claim through Suffern. Holland's possession, as tenant of Suffern, was the possession of the latter; and plaintiff, having acquired that title, could tack possession under it.

The judgment muát be reversed, and a new trial ordered.

The other Justices concurred.

       Suffern was claimed to be the survivor of the grantees named in the deed C, which created an estate in joint tenancy.


author: 'Grant, J.

text:
    Frank Kraft v. John Kraft, Joseph Kraft, Augusta Kraft, and Anthony Kraft.

      Estates of deceased persons — Homestead — Exemption — Equity practice — Lien—Contribution.
    1. Under section 3, art. 16, of the Constitution, the homestead of a family, after the death of the owner .thereof, is exempt from the payment of his debts during the minority of his children, and neither the' probate nor chancery court has power to decree its sale to pay debts allowed against the estate of said owner.
    2. Prior to the issuance of letters of administration, an heir at law of the decedent, who was also a general creditor of the estate, paid the balance due on a contract for the purchase of the homestead occupied by the decedent at the time of his-death, and the same -was conveyed to all of the heirs, some of whom were minors. Said heir then filed a claim against the estate, made up of the money so paid, and moneys claimed to have been loaned to the decedent to pay upon the contract and for other purposes. The claim was allowed, after which the claimant filed a bill to declare the same a lien upon the homestead, and for its sale to satisfy said lien. The bill failed to show that there was no personal property belonging to the estate, or that the rents were insufficient to take care of complainant’s claim. And it is held that the complainant, having voluntarily submitted his claim to the jurisdiction of the probate court, and having rested content with such jurisdiction . until after the time for appeal had,'expired, has elected his remedy, and will not be allowed to put either the estate or • the other heirs to an expensive suit in chancery to enforce the claim for the moneys paid on the contract.
    Appeal 'from Wayne. (Donovan, J.)
    Submitted on briefs June 29, 1894.
    Decided November 20, 1894.
    Bill to declare and enforce a lien on the homestead of a deceased person. Defendants appeal.
    Decree reversed, and bill dismissed.
    The facts are stated in the opinion.

      William B. Jackson, for complainant.

      jBowen, Douglas & Whiting, for defendants.
   'Grant, J.

The bill of complaint contains the follow-hug allegations:

“ 1. That the complainant and defendants, together with one Anna Eland, are the sole heirs at' law of one John Kraft, who died intestate in the city of Detroit, on March 5, 1890, in possession of a certain city lot described in the bill, and concerning which the litigation is taking place, which said lot the said John Kraft held under a purchase contract, and occupied with said heirs as his homestead, and on which contract there remained to be paid of the purchase money $144.32 at the time of the decease of said John Kraft; that 15 days after the death of the said John Kraft, and prior to the emanation of letters of administration, the complainant spontaneously paid said arrearage to the vendor, who immediately deeded the lot to all of said heirs, and of whom three were minors, the youngest being ■only 12’years of age.
“2. That on June 25, 1890, administration of the estate was committed to one Ralph Phelps, who took possession -of the lot, the same being abandoned by the family.
“3/ That on decedent’s death he was indebted to complainant for money loaned to pay on said contract, ‘ and for other purposes,’ in the sum of $560; that complainant filed his «claim against said estate with the commissioners on claims, who duly allowed him, against said estate, $711.44.
“4. That complainant has acquired by purchase of one «of the adult heirs, viz., Anna Eland, her share and interest, and now holds one-third as ‘joint .tenant’ with the other heirs.
“5. That the premises are out of repair, and do not yield a sufficient rent to pay the taxes; that those for 1891 ■are due and unpaid, and that no money is in the hands •of the administrator wherewith to pay the same; that a .sewer tax of $24.63 rests-upon the lot, and, unless paid, the lot will be sold for it, and the complainant’s interest -sacrificed.”

The prayer of the bill is that—

“ The money so advanced by your orator to pay said Freud •upon said land contract may be decreed to be a lien thereon, ■and the money so due your orator from said John Kraft, •deceased, may also be decreed a lien upon said premises, and the same may be decreed to be sold to pay the same.”

The answer of John and Joseph, who are of age, admits the heirship; that their father died possessed of the land, and that it was held by him under a contract from Freud; that the premises were occupied by their father as a homestead; that the premises are out of repair; that the taxes of 1891 are due and unpaid, and also a special tax for a sewer. They aver ignorance of the terms of the contract, and of any payments made by complainant, and of any allowance of complainant’s claim against the estate, except as they are informed by the bill of complaint. They deny that the homestead has been abandoned. The infant defendants answered, submitting their rights and interests to ; the court. Eeplication was filed and proofs taken in open •court, and decree entered for complainant giving him a lien upon the land for his entire claim allowed against the estate.

Complainant presented his claim against the estate in two items, — one for $711, and one for $35. The basis of each claim is the same, viz.: “For money paid to and for said deceased.” An administrator was duly appointed, who is in possession of all the assets of the estate, including these premises, which he has rented, and complainant is collecting the rents for him. The bill is silent as to the amount of the assets in the hands of the administrator, and the proof upon this point is equally silent.

The bill alleges that the premises constituted the homestead of the deceased’s family at the time of his death. Under the Constitution (article 16, § 8), the homestead is ■exempt from the payment of all his debts during the minority of his children. It follows that the premises cannot be sold by the decree of either the probate or •chancery court to pay debts allowed against the estate. When the minors become of age, the premises will be subject to sale to pay such debts.

The complainant’s claim is the only one allowed against the estate. If there were no homestead, the probate court could, upon petition, order the property sold. After payment of the small amount due upon the contract, complainant included this amount in his claim against the estate. It was not put down as a separate item, nor was any claim of lien or preferment filed with it. He voluntarily included this item with others as money paid for the deceased without specification. Upon the hearing in the court below, complainant refused the offer of the defendants to allow the bill to be considered as a bill for contribution (which, in fact, it was not) as to the $144.32, provided that amount be remitted from the total amount allowed, and they be allowed to take an appeal from the allowance of the balance'of the claim.

• The complainant is not, in our judgment, in position to invoke a court of equity to give him a lien upon the premises. He has voluntarily submitted his claim to the jurisdiction of the probate court. It is allowed and stands as a valid claim. He does not show that there is no personal property, nor that the rents are insufficient to take care of his claim. His claim was allowed in February, 1891, and he rested content with the jurisdiction of that court until March, 1893, after the time for appeal ’had expired, when he filed this bill. He has therefore elected his remedy, and will not be allowed to put either the estate or the defendants to an expensive suit in chancery to enforce a claim which amounts to a trifle over $100.

Decree reversed, and bill dismissed, with costs of both courts.

The other Justices concurred.