text:
    FYE v. CHAPIN.
    1. Injury by Dog — Double Damages — Equity Powers — Constitutional Law.
    2 Comp. Laws 1897, § 5593, which provides that, upon the trial of an action for injuries by a dog, “if it shall appear to the satisfaction of the court, by the evidence, that the defendant is justly liable for the damages complained of, * * * the court shall render judgment against such defendant for double the amount of damages proved,” is not unconstitutional conferring chancery powers on the circuit judge; it not being contemplated that the court shall act independently of the jury in determining the amount of damages, but merely that it, having determined through its instrumentalities, which include the jury, the damages suffered, may render judgment for double the amount.
    2. Same — Children—Negligence oe Parents.
    In an action by a child against the keeper of a dog for personal injuries caused by the dog, the negligence of plaintiff’s parents in admitting the dog to their house cannot be imputed to the plaintiff.
    3. Same.
    The keeper of a dog is liable under 2 Comp. Laws 1897, § 5593, for injuries done by it to a child, notwithstanding the dog was taken by servants out of the keeper’s inclosure, and into the child’s presence, in direct disobedience of the keeper’s orders.
    4. Same — Declaration—Averment oe Permanent Injury — Prooe oe Epilepsy.
    In an action for injuries caused by a dog, the declaration, by the first count, averred that plaintiff was injured for life, and her nervous system permanently injured by the shock and fright; that by means thereof she became and was sick, and suffered great bodily pain and mental anguish, and still continues to suffer great pain, and will continue to suffer such pain. The second count alleged that plaintiff, theretofore a sound and healthy person, became and was and is now sick, and permanently injured, and her whole nervous system permanently injured, and her mental faculties ruined, and her health permanently injured, and her blood poisoned and contaminated. Held, to authorize proof of resulting epilepsy.

      5. Personal Injuries — Expert Testimony — Hypothetical Questions.
    Plaintiff in an action for personal injuries, claimed to have resulted in ejiilepsy, was entitled to have experts answer hypothetical questions based on a description of her appearance as shown by her own evidence, notwithstanding evidence for defendant ascribed her condition to indigestion, particularly as there was testimony raising a question of credibility.
    6. Same — Excessive Verdict — Appeal—Remittance of Excess.
    Where, in an action for injuries by a dog, the jury, notwithstanding the evidence on the question of the permanence of the injuries was not clear and cohvincing, resolved every doubt against defendant, and returned a verdict for §10,000, which was doubled by the court in entering judgment, the Supreme Court, on appeal, required one-half of the judgment to be remitted as a condition to affirmance.
    Error to Kalamazoo; Buck; J.
    Submitted June 6, 1899.
    Decided November 14, 1899.
    Case by Ruth I. Eye, an infant, by Henry W. Eye, her next friend, against Charles A. Chapin, for personal injuries. Erom a judgment for plaintiff, defendant brings error.
    Affirmed conditionally.

      N. H Stewart and Edward Bacon, for appellant.

      Gore & Harvey (Frank E. Knappen, of counsel), for appellee.
   Montgomery, J.

The defendant was the owner of a large St. Bernard dog. On the 16th of December, 1897, two servant girls in defendant’s employ called on the mother of the plaintiff, accompanied by the dog. The dog was admitted with them into the house, and, while the two callers and Mr. and Mrs. Eye engaged in conversation, the plaintiff, a child 4 years and 4 months of age, was seated on the floor of the adjoining room, playing with her dolls. She was suddenly assaulted by the dog in a very ferocious manner, and bitten on the face and on the scalp. The scalp was torn loose, resulting in a considerable loss of blood, and, it is claimed, permanent disfigurement. The plaintiff also gave testimony tending to show that extreme nervousness followed the shock and fright, and that in the following April she had spasms, which were epileptic, and also offered medical testimony tending to show that epilepsy is incurable, and that the most probable cause of the attack in April was the attack of the dog; that extreme fright or the injury to the scalp might either result in epilepsy. The defendant’s testimony tended to show that the spasms were traceable to causes entirely distinct from the injury by defendant’s dog. The jury returned a verdict for $10,000, and judgment for double this amount was entered by the court. The defendant brings error, assigning error on no less than 98 rulings of the trial judge. The questions which are of sufficient importance to merit special discussion are not, however, numerous, and, while none have escaped examination, we shall pass over such as are not specially discussed with the statement that we find no error in the rulings of the learned judge in respect to them.

1. The action is based on section 2 of Act No. 161, Laws 1850, being section 5593, 2 Comp. Laws 1897, which reads as follows:

“If any dog shall have killed or assisted in killing, wounding, or worrying any sheep, lamb, swine, cattle, or other domestic animal, or that shall assault or bite or otherwise injure any person while traveling the highway, or out of the inclosure of the owner or keeper of such dog, such owner or keeper shall be liable to the owner of such property or person injured in double the amount of damages sustained, to be recovered in an action of trespass or on the case, and it shall not be necessary, in order to sustain an action, to prove that the owner or keeper knew that such dog was accustomed to do such damage or- mischief ; and upon the trial of any cause mentioned in this section, the plaintiff and defendant may be examined under oath touching the matter at issue, and evidence may be given as in other cases; and if it shall appear to the satisfaction of the court, by the evidence, that the defendant is justly liable for the damages complained of under the provisions of this act, the court shall render judgment against such defendant for double the amount of damages proved, and costs of suit; but in no case shall the plaintiff recover more than five dollars costs.”

It is contended that this act is unconstitutional, in that it confers upon the circuit judge power to act as a chancellor in a suit at law, in so far as he exercises the authority to double the damages. The construction which defendant’s counsel give to the statute is that, before the court shall double the damages, it must appear satisfactorily to the court that the defendant is justly liable for the damages complained of, and that the judge is, by the terms of the statute, to act independently of the jury in determining the amount of damages proved. The statute has been enforced in a number of cases. Swift v. Applebone, 23 Mich. 252; Elliott v. Herz, 29 Mich. 202; Monroe v. Bose, 38 Mich. 347; Trompen v. Verbiage, 54 Mich. 304; Burnham v. Strother, 66 Mich. 519. The questions now suggested have not heretofore been raised by either the court or counsel. This fact does not, of course, conclude the defendant. The presumption is strong, however, that the statute, which has been operated under for nearly half a century, has on various occasions, when it has been enforced, been scrutinized by both court and counsel, and found not open to attack. The statute is inartificially drawn, but we think it open to a construction which is not inconsistent with the proper exercise of the distinct functions which the law casts upon the judge and jury respectively. The liability is declared to be in double the damages sustained. The presumption is that those damages are to be ascertained as in ordinary cases, — if the trial be before a jury, by the jury; and by the court when the jury is dispensed with. While the latter portion of the section is more appropriate to a trial before the court without a jury, we think the word “court” may be construed to mean the court acting through all of its instrumentalities, which includes the jury, and, so construed, the act is operative. It is competent for the legislature to provide for doubling damages in this class of cases. Trompen v. Verhage, 54 Mich. 304; Cummings v. Riley, 52 N. H. 368; Chickering v. Lord, 67 N. H. 555; Fitzgerald v. Dobson, 78 Me. 559; Barrett v. Railroad Co., 3 Allen, 101.

2. The defendant asked the court to charge that, as the plaintiff’s parents had the dog, in their home at the time of the assault, and had knowledge of the nature of the dog, they were guilty of gross negligence directly contributory to the injury that the child received, and that for this reason the plaintiff was not entitled to recover. It is insisted in this court that the negligence of the plaintiff’s parents was the proximate cause of the injury. In the same connection it is insisted that the servant girls, in taking the dog into the presence of plaintiff’s parents, were disobeying instructions, and that the court was in error in refusing to charge that the reckless negligence of defendant’s hired girls in disobedience of his order could not be imputed to him. We think it cannot be said that the plaintiff’s parents were in any sense the keepers of this dog. The defendant was such keeper, and the injuries were inflicted outside the inclosure of defendant. He is liable, therefore, unless the negligence of plaintiff’s parents or defendant’s hired girls relieves him. The negligence of the parents cannot be imputed to this child. Shippy v. Village of Au Sable, 85 Mich. 280; Mullen v. City of Owosso, 100 Mich. 103 (23 L. R. A. 693, 43 Am. St. Rep. 436). At the common law, in an action against the owner of a vicious dog, if the keeper knew of the vicious character, he was liable for auy damage done, without further proof of negligence on his part. The negligence was said to consist, not in the manner of keeping and confining the animal, but in keeping him at all. In some cases it is said that the owner must, at his own peril, keep him safe from doing hurt. See Kelly v. Tilton, 2 Abb. Dec. 495. In some cases the defendant has been held liable notwithstanding the contributory negligence of the plaintiff. Woolf v. Chalker, 31 Conn. 130 (81 Am. Dec. 175). A better rule is, however, stated in Muller v. McKesson, 73 N. Y. 204 (29 Am. Rep. 123), by Chief Justice Church, which is that the owner cannot be relieved from liability by any act of the person injured, unless it be one from which it can be affirmed that he caused the injury himself, with a full knowledge of its probable consequences. If this be the rule as to the negligence of the plaintiff at common law, certainly the negligence of a third person cannot be held to relieve the defendant. The effect of this statute is to extend the common law so as to include all keepers of dogs, and to dispense with proof of the previous knowledge of their vicious character. The contention of defendant’s counsel cannot be sustained.

3. Plaintiff’s declaration contains two counts. In the first count, after stating the injury, it is averred:

“And thereby .plaintiff was greatly bruised, cut, torn, and otherwise injured, and plaintiff’s whole nervous system was permanently injured by the shock and fright of said assault; and thereby the plaintiff was otherwise greatly and permanently wounded, and injured, and disfigured for life; and by means whereof plaintiff became and was sick, sore, lame, and disordered, and suffered great bodily pain and mental anguish and torture, and still continues to suffer great pain, and the character of said injuries is such that plaintiff will continue to suffer great pain and inconvenience, and plaintiff was thereby disfigured for life.”

In 'the second count:

“ The plaintiff, theretofore a sound and healthy person, became and was, and now is, sick, sore, lacerated, lame, and permanently disfigured and injured, and her whole nervous system permanently injured, and her mental faculties ruined, and her health permanently injured, and her blood poisoned and contaminated.”

It is contended that these averments are insufficient to authorize proof of resulting epilepsy. The declaration in each count sufficiently avers permanent injuries, and evidence was offered to trace the injuries to the act complained of. The question is concluded by Johnson v. McKee, 27 Mich. 471; Elliott v. Van Buren, 33 Mich. 49 (20 Am. Rep. 668); Keyset v. Railway Co., 66 Mich. 390; Montgomery v. Railway Co., 103 Mich. 46 (39 L. R. A. 387).

4. Error is assigned upon rulings of the circuit judge in admitting and excluding testimony. In some cases the testimony now complained of was received without objection, and in some cases the rulings were discretionary. It is insisted that error was committed in permitting •certain hypothetical questions. The questions are too lengthy to set out at length, but we have examined them, and find the questions fairly stated the case as the plaintiff had the right to contend that it was when the questions were put. Dr. Baldwin, who was called to attend the plaintiff at the time of the injury, and also when she was suffering from spasms in the following April, testified to her condition as he found it on the latter occasion, and stated that he ascribed the attack to indigestion. Defendant’s counsel insist that, as this testimony indicates a cause for the attack, and as it was not considered by the expert witnesses, the testimony given by them should have been wholly excluded from the consideration of the jury; and a request along this line was preferred. The doctor was a witness for the defense. The plaintiff’s witnesses had described the appearance of the plaintiff, and the testimony of the experts was based upon this description. The plaintiff had the right to have the answers stand, and to urge to the jury the claim as made out by her, particularly as there was testimony raising a question of credibility.

5. A motion for a new trial was made before the circuit judge. The same points of law were raised which we have discussed in this opinion. In addition it was contended that the verdict was excessive. The circuit judge held that, while the verdict was a large one, it was not so large as to authorize the court in finding that it was excessive. A most careful reading of the record leads us to a different conclusion. The evidence tending to show that epilepsy will result from the injury is not, to our minds, clear and convincing, although legally admissible. It would appear that the jury resolved every doubt against the defendant, and it is by no means clear that they did not' include in their verdict an award by way of punishment. A new trial will be granted, unless the. plaintiff shall, within 30 days, elect to remit from the judgment $10,000. Defendant will recover costs of this court.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    REILLY v. CONWAY.
    Witnesses — Time of Event — Positive Testimony.
    Where only one of several witnesses who testify concerning the time of an event is definite and positive as to the hour, his testimony is properly treated as establishing the fact.
    Error to Wayne; Hosmer, J.
    Submitted October 3, 1899.
    Decided November 14, 1899.

      Assumpsit by Thomas J. Reilly and Michael Brennan,, executors of the last will and testament of Ann Leonard, deceased, against Mary A. Conway, for money had and received. ' From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellants.

      P. J. M. Hally ( William S. Sheeran, of counsel), for appellee.
   Long, J.

This suit was brought by the plaintiffs, as executors of the will of Ann Leonard, deceased, to recover $1,000 and interest, in the possession of the defendant, which the defendant claims was given to her by Ann Leonard on the day of her death. It appears that, for several years prior to the death of Ann Leonard, the defendant had rendered various services in the. way of caring for her at different times when she was ill, and performing household duties for her at her home. Ann Leonard made a will, by the ninth clause of which defendant was given $500. On January 2, 1896, Thomas J. Reilly, who up to that time had been the legal adviser of Ann Leonard, was called to see her. He arrived at about 11 o’clock in the' morning, and found Mrs. Leonard in bed. He says she told him she wanted $500 for defendant, and $500 for herself and the house; that he told her it would be impossible for him to bring it to her that day; that she then gave him a check for $1,000 on the Wayne County Savings Bank, and that defendant, who was present, stated that she would come down to his office and get it; that defendant did come to his office at pretty nearly half past 1 o’clock in the afternoon; and that he then and there gave her the $1,000, and told her to give it to Mrs. Leonard, and she said she would.

The defendant testified that she had known Mrs. Leonard for about 13 years; that witness Reilly was at the house on January 2d about 11 o’clock; that her mother was present; that Mr. Reilly went into the bedroom and talked with Mrs. Leonard; and that—

“When he came out he handed me a check. I didn’t know what it was, but he had Mrs. Leonard sign her name to it, and when he was leaving the house he said, ‘Mrs. Conway, I will be up at 5 o’clock in the evening.’ I said, ‘ I will not be here, but you can give the money to my mother or Mrs. Leonard; ’ and he said, ‘ I cannot give the money to either one; ’ and I said, ‘ Mr. Reilly, I will be down about 2 o’clock.’ I called at Mr. Reilly’s office that day about half past 1 or 2 o’clock, and had a conversation with him. He handed me the money, and told me not to put it back into the same bank, and said, ‘You can do better with the money than as if Mrs. Leonard had left you the cottage.’ I told him I would take the money up and show it to Mrs. Leonard, I knew she would be pleased when I got it, and Mr. Reilly said, ‘All right.’”

Witness admitted that Mrs. Leonard was dead when she reached the house.

The mother of defendant was called as a witness by the defense, and testified that, during the past five years, Mrs. Leonard had said at various times that she would leave the defendant the price of a home; that, after Mr. Reilly left the house that day, she went into Mrs. Leonard’s bedroom, and Mrs. Leonard told her she had fixed a check for defendant for $1,000, and then said, “I don’t think I have left her enough.” Witness testified further that Mrs. Leonard died about half past 2 o’clock. Defendant called other witnesses, who testified that defendant had for several years been in almost constant attendance upon Mrs. Leonard, who was sick much of the time, and frequently needed as much care and attendance as a child. Mr. Reilly was recalled, and denied that he advised defendant to deposit the money in some other bank, but said that he told her to take it directly to Mrs. Leonard.

The court thereupon charged the jury substantially as follows:

“Now, gentlemen of the jury, if you find in this case that the money was to be returned to Mrs. Leonard; if you find that Mrs. Leonard signed the check, and desired Mr. Reilly to get the check cashed and send the money home, — have the money sent home to her, — then and under those circumstances the plaintiffs in this case would be entitled to recover the sum of $1,000, with interest from the 1st day of February — from the 4th day of February, 1896. I think it is permissible in this case, gentlemen of the jury, for you to find, from all the testimony which has been introduced here, if you so desire to find it (that is, if, applying your judgment, you think that is the fact), * * * that $500 of the $1,000 which she then received she was authorized to hold. And I think, gentlemen, you may draw the inference from the testimony, inasmuch as it is contended on behalf of the defendant that the entire sum was to be given to her, and inasmuch as it is contended on her behalf that there was no delivery by Mr. Reilly to her to be given to Mrs. Leonard, but that Mr. Reilly gave her the money out and out, — I think you are at liberty to find that the money belonged to her, and that there was a delivery on the part of Mr. Reilly.
‘ ‘ Counsel for plaintiffs: So far as the 1500 was concerned ?
“The Court: So far as either. If they believe the testimony of Mrs. Conway as to what took place with Mr. Reilly, they are at liberty to find that the entire sum of $1,000 was intended, on the part of Mrs. Leonard, should be applied directly, through the mediumship of Mr. Reilly; and in that case, of course, gentlemen of the jury, there would be a verdict for the defendant. If, however, gentlemen, you believe that only $500 of that money was to be applied, I think, as suggested by counsel for the plaintiffs, you may find that she is indebted to the plaintiffs in the sum of $500, instead of $1,000, with interest from the 4th day of February, 1896.”

, Plaintiffs asked the court to direct the jury that:

“If Mrs. Leonard directed Mr. Reilly to draw a check for $1,000, to be cashed, and the proceeds to be delivered to her, and Mr. Reilly did so, and sent proceeds by the defendant, to be delivered to Mrs. Leonard, then plaintiffs are entitled to recover.”

Counsel for plaintiffs contend that the court refused this request. We think, however, that this request was substantially given in the part of the charge quoted above. He certainly directed the jury that if they found that Mrs. Leonard signed the check, and desired Mr. Reilly to get it cashed and send the money home to her (Mrs. Leonard), the plaintiffs would be entitled to recover.

One request was made by the plaintiffs which the court refused to give. It was as follows:

“If the jury find that Mrs. Leonard was dead when Reilly paid over the money to defendant, then plaintiffs are entitled to recover.”

It is claimed by counsel that there is such a conflict of evidence on the question of whether Mrs. Leonard was dead at the time that the request should have been given, and that, if it was found that Mrs. Leonard was not living at the time of the passing of the money to defendant, the agency of Reilly ceased, and a delivery after that time did not operate as a valid delivery. The testimony on this question is very meager. Mr. Reilly testified that the defendant came down to his office “pretty near half past 1 o’clock in the afternoon, and I gave her the money.” Defendant testified that she called at Reilly’s office about half past 1 or a quarter to 3 o’clock, and had a conversation with him. She says:

“When I went into the office, Mr. Reilly was just coming out of the side room, and he had the money in his hand, and he handed the money, — counted, it out to me.”

This is the only testimony fixing the time when the money was paid to defendant. On the question of the time of the death of Mrs. Leonard, the defendant testified:

“I got back to Mrs. Leonard’s between half past 3 and a quarter .to 3 in the afternoon, and Mrs. Leonard was dead.”

Her mother testified that Mrs. Leonard died about half past 3, and defendant returned to the house about 3 o’clock. Dr. Frank Newman testified that he was at Mrs. Leonard’s house about half past 1, and remained there about 30 minutes, and Mrs. Leonard was living when he left. Mary Moran testified that she was there when Mrs. Leonard died, but that she did not know what time it was. This was all the testimony as to the time when Mrs. Leonard died. Therefore it appears that the only witness who testified definitely to the time was the mother of defendant, who gave it at about half past 3. There was no testimony contradicting this, and it must be taken as a fact established in the case that that was the hour of Mrs. Leonard’s death. It will be seen, also, from the testimony of defendant and Mr. Reilly, that the money was paid to defendant no later than a quarter before 3 o’clock; so .that it is shown that the money was paid over to defendant at least three-quarters of an hour before Mrs. Leonard’s death. The court therefore properly refused the request.

From this record it appears that Mrs. Leonard had in-bended to substantially aid the defendant, either in money or by the purchase of a home; and the jury found from the facts that Mrs. Leonard directed that this $1,000 should be drawn from the bank on that day by Mr. Reilly, and paid over to the defendant.

While some other questions are raised, we do not deem it necessary to discuss them, as we are satisfied from an examination of the record that no error was committed.

The judgment must be affirmed.

The other Justices concurred.


text:
    EKLUND v. TONER.

    1. Trial — Instructions — Theory of Defense — Impounding Cattle. •
    After defendant, in an action for the wrongful impounding of cattle, has expressly disclaimed any contention that the cattle were running at large in the highway when taken, and has stated his defense to be that the cattle were upon his land damage feasant, he cannot complain that the court refused to instruct the jury that, if the cattle were at large in the highway, defendant had the right to impound them.
    2. Cattle — When Running at Large.
    Cattle grazing in the highway, in view of and being watched by the owner, are not running at large, within the meaning of the statute authorizing their impounding in such case.
    Error to Muskegon; Russell, J.
    Submitted October 5, 1899.
    Decided November 14, 1899.
    Trespass de bonis by Ole Eklund against William Toner. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Smith, Nims, Hoyt & Erwin, for appellant.

      Chamberlain & Cross, for appellee.

       Rehearing denied December 21, 1899.

   Long, J.

This action of trespass was commenced in justice’s court to recover damages which the plaintiff claims he sustained by reason of the unlawful taking of certain cattle which belonged to him, and their retention by the defendant for the period of about 18 days. Plaintiff had judgment in the justice’s court, and also in the circuit court upon appeal there. Defendant brings error.

The testimony given on the part of the plaintiff tended to show that the defendant took the cattle from the highway, drove them across his field, and shut them up in his barn. Defendant introduced testimony tending to show that the cattle were in his field, doing damage, and he drove them from there and shut them up in his barn. The court charged the jury that the question in the case for them to determine was whether the defendant drove the cattle from out of the highway and impounded them. He said: “That is the real point — perhaps the turning point — in this case. It is the turning point in the case, because upon any other theory the defendant would be entitled to recover.” Under this charge, we think there are but two questions raised by defendant’s counsel which we need discuss:

1. It is now contended that the defendant had the right to take the cattle out of the highway, as they were running at large contrary to law. The record discloses that, at the time counsel for defendant opened his defense to the jury, the court made the inquiry of him if he claimed that the defendant had the right, under the statute, to take the cattle out of the highway, and he responded: “No, sir; we claim and shall, show that the cattle were trespassing upon his premises, and that he merely went out and drove them into the barn and shut them up.” Yet at the close of the trial counsel asked the court to charge the jury that, if the cattle were running at large on the highway, the defendant had the right, under the statute, to take them into his custody. This the court refused, and error is assigned upon that ruling. This practice is not commendable. From the manner in which this case was tried, it is evident that this request to charge was an afterthought. There was no testimony introduced which tended to show that the cattle were “running at large,’,’ within the meaning of the statute. That term has been' defined many times by the courts under similar statutes, and the rule is well settled that “running at large” means “strolling without restraint or confinement; rambling at will.” 12 Am. & Eng. Enc. Law, 898, and notes; Russell v. Cone, 46 Vt. 604. Such testimony as was introduced tended to show that the cows were on the highway, eating, and irf plain view of the plaintiff and his family, and, as it is claimed, were being watched by them. The only testimony contradicting this was that introduced by defendant, tending to show that the cattle were on his premises,— inside his field. This testimony the jury evidently discarded.

2. Complaint is made of the amount of damages found by the jury. The animals were milch cows, and testimony was given tending to show their value at the time of impounding and at the time when they were received back. We think there was testimony tending to show that the amount awarded was not excessive.

The judgment must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SHIELDS v. EQUITABLE LIFE ASSURANCE SOCIETY.
    Life Insurance — Agent’s Conditional Receipt — Unauthorized Cancellation of Policy. '
    An insurance policy in the ordinary form was issued and delivered to the insured, who held at the time the soliciting agent’s receipt stating that his note, given for the first premium, should be returned to him in case the agent was unable to get back from the state agent certain other notes, then in suit, given for the premium on a former policy. Shortly before the note matured, insured wrote the soliciting agent, who had discounted the note and made payment to the company, inclosing the policy, and asking the return of his note, on the ground that the condition had not been fulfilled. The agent persuaded insured to let the matter rest for the time being, and did nothing further until, insured having fallen sick with what proved to be a fatal illness, during which sickness he was mentally unable to transact business, he then surrendered the policy for cancellation. Held, that the beneficiary had a right to have the policy re-established, as cancellation without authority from the insured was ineffectual; there being nothing to show that it was contemplated that the insurance should not attach until the earlier notes were returned to the insured or the later note was paid by him.
    Appeal from Ingham; Person, J.
    Submitted October 6, 1899.
    Decided November 14, 1899.
    Bill by Nellie E. Shields against the Equitable Life Assurance Society of the United States, impleaded with John C. Day and others, to re-establish a policy of insurance. , Prom a decree for complainant, defendant appeals.
    Affirmed.

      jR. A. Montgomery, for complainant.

      Dickinson, Warren & Warren, for defendant.
   Moore, J.

The statement of facts is taken in the main from the brief of the solicitor for complainant. In the spring of 1890, John C. Shields, the husband of complainant, applied for and took from the defendant insurance company a policy of insurance, — No. 464,145, — (not the policy in suit), through the agent of the company, John Heffron, of Detroit, the insured giving his notes for the premium. Thereafter Mr. Shields learned that his age had been incorrectly stated in the application, conceived his policy void, and sought to have the transaction re-, scinded. A controversy arose, and suit was brought on his notes. After the suit was brought, and while it was pending, in December, 1891, Mr. Shields, while on the train coming from Alpena, met Dr. M. F. Newkirk, of Bay City, who was at that time writing insurance for defendant insurance company. Thereafter Mr. Shields went to Dr. Newkirk’s office, and the subject of life insurance was talked over. Mr. Shields told Dr. Newkirk of his trouble in relation to the policy issued by Mr. Heffron, and finally an agreement was reached, and Mr. Shields made his application for the policy in controversy on December 14, 1891, — a policy of $5,000, payable to his wife, the complainant. He gave to Dr. Newkirk his note for $217.50 for the first year’s premium, payable in 90 days. He took from Dr. Newkirk an agreement as follows:

“Received from John C. Shields his notes for $217.50, premium on policy applied for in Equitable Life Ins. Co. Said notes are to be returned to him unless I succeed in getting notes from John C. Day, formerly given for policy No. 464,145, and now held by said Day, and now in suit by him, without costs to said Shields.
“Bay City, Mich., December 14, 1891.
“M. F. Newkirk.”

The nest day Mr. Newkirk visited Detroit, and attempted to settle the Heffron-Day notes and suit, and failed to do so. The application made to Dr. Newkirk for the policy in suit was forwarded. The policy was issued on December 22, 1891. The note given by Mr. Shields to Dr. Newkirk for the premium was discounted at the hank. The policy was forwarded to Newkirk, and by him sent to Mr. Shields about the last of December, 1891. Mr. Shields’ note matured on March 17, 1892. Shortly before his note became due, he wrote Newkirk, inclosing the policy, and asking the return of his note. After Mr. Shields sent the letter written before the maturity of his note (the letter with which he inclosed his policy, — the one in suit), Dr. Newkirk saw him, and, in the language used by him in a letter giving his version of the matter, “persuaded him to let the matter rest, in hope that I could arrange a certain matter in Detroit, upon which contingency his paying the note seemed to hang.” On March 8, 1892, Mr. Shields was taken sick in Lansing. On the 19th he was removed to Fowlerville, Mich., where he died on the 1st day of May following. His illness was serious. He was mentally unable to transact any business from the first. On the 19th day of March, Mr. McNamara, the law partner of Mr. Shields, received a dispatch as follows:

“Bay City, March 19, 1892. “To James McNamara, Alpena, Mich.:
“ J. C. Shields’ note returned unpaid. I have paid company the amount, and, if you do not pay, I lose all. Will make draft 30 days. Answer.
[Signed] “C. T. Newkirk.”
To that dispatch Mr. McNamara responded:
“March 19, ’92.
“C. T. Newkirk, Bay City:
“Shields is lying ill at Downey House, Lansing.
[Signed] “Jas. McNamara.”

Thereafter, and on March 24th, McNamara wired Dr. C. T. Newkirk as follows:

“Dr. C. T. Newkirk, Bay City:
“Was Shields’ note for life insurance, and is it paid ?
[Signed] “Jas. McNamara.”

The answer was:

“Bay City, March 24, 1892.’ “Jas. McNamara, Alpena:
“Shields’ note was for life insurance, and was paid.
[Signed] “Dr. C. T. Newkirk.”

It is claimed, and it is doubtless true, that Dr. Newkirk meant to be understood that the note was given for life insurance, and that it had been paid by Dr. Newkirk. On March 21st Dr. Newkirk drew his draft on Mr. Shields for $219.27. The draft was received at the Alpena National Bank on the 23d day of March, 1892. Mr. Shields’ note accompanied it. They held the draft about 10 days, and it was then returned by the Alpena bank to the Second National Bank of Bay City. On April 12th Dr. Newkirk attached the draft to the note, and sent it to Lansing. The draft was received at the Lansing State Savings Bank on the 12th of April. Mr. Shields was then in Fowlerville, sick; and on April 22, 1892, the draft was returned to the Bay City bank. Four days after Mr. Shields’ death, Mr. McNamara telegraphed Mr. Newkirk as follows:

“On 23d March I telegraphed you if J. C. Shields’ note for life insurance was paid. You answered on the 24th March it was. I then had money to pay it. If note for $219.27 has not been paid, send to Alpena National Bank, and I will pay it at once. Please answer.
[Signed] “Jas. McNamara.”

Dr. M. F. Newkirk, May 6th, by letter, answered this dispatch at length, and, among other things, said:

“I presume the policy has been canceled. I have written Mr. Day [who was state manager for Michigan of the company], and as soon as I get a reply I will forward it to you.”

On the 9th day of December, 1892, thereafter, M. Y. Montgomery, in behalf of the complainant, filed the proofs of death, which had been prepared in the November preceding, and at the same time demanded the return of the policy. The company informed Mr. Montgomery the policy had been destroyed, and denied any liability.

The company claims the policy was canceled before the death of Mr. Shields.' The proof upon that point is not very satisfactory. The officers who had personal knowledge of when it was canceled were not sworn. It is somewhat significant that, only eight days before the death of Mr. Shields, the note, was in the’Lansing bank for collection, and it was retained by Dr. Newkirk until the time this case was tried. The doctor says the retention was an inadvertence. Dr. Newkirk did not himself undertake to cancel the policy, but returned it to the state manager, Mr. Day, in Detroit, who says his attention was called to the policy by a clerk in his office. He says the policy was in his desk for several days, when he took it to New York, and handed it to the auditor, with the usual statement, and a request that it should be canceled. He thinks this was from' the 15th to the 20th of April, but says he could not fix the date without examining the register of the hotel where he stopped. The record does not disclose this was done. As will appear later, it perhaps is not material when this policy was destroyed. If its destruction was unauthorized, its provisions would remain in force. The circuit judge held that the policy had been delivered to Mr. Shields with the purpose of giving it effect, and would remain in force until Mr. Shields should exercise his option to have it canceled. He held that it never had been canceled at the request of Mr. Shields. Dr. Newkirk having persuaded, Mr. Shields to withdraw his request for cancellation, and this being the condition of affairs when Mr. Shields died, he held that the prayer of the complainant should be granted. From this decree defendant appealed the case to this court.

The solicitors say the court below did not have the advantage of a proper presentation of the case, and erred in his conclusion that the policy was delivered to take immediate effect. Counsel say:

“The contract between the parties was a conditional one. Shields did not stipulate to pay the note and accept the policy in any event, but obligated himself to pay and take the insurance provided the so-called ‘ Heffron notes ’ were delivered to him. The company was not bound until the insured was bound.
“The notes, the receipt, and the policy to be issued evidenced the contract between the parties.
“The note was never paid. The condition upon which the note was executed and delivered, as evidenced by the writing, was never fulfilled; nor was the condition upon which the note was delivered, and upon which its validity depended, ever waived by Shields. ”

They insist the contract was a conditional one, and no liability ever grew out of it.

“ The parties in fact agreed that the policy should not be binding upon the company unless the premium note was paid at maturity, or the Heffron notes returned to Shields before the maturity of the new note, and the note thus become a valid and unconditional obligation of the applicant.”

They cite Baker v. Insurance Co., 43 N. Y. 286; American Ins. Co. v. Stoy, 41 Mich. 385; Faunce v. Assurance Co., 101 Mass. 279; Benton v. Martin, 52 N. Y. 570; Ware v. Allen, 128 U. S. 595; Harnickell v. Insurance Co., 111 N. Y. 390 (2 L. R. A. 150), — relying especially upon the'last-named case.

We do not think the contention of the solicitors as to the effect of the contract between the insurance company and Mr. Shields is tenable. The authorities cited by counsel held that, in the respective cases decided, the contract made was a conditional one, and, the conditions not having been met, the liability did not attach. As we interpret this record, so far as the contract between the insurance company and Mr. Shields was concerned, it was not a conditional one. Mr. Shields made his application, in which he agreed to pay a certain premium. The company accepted his application, and recited in the policy that it had received the premium, and the policy was delivered to Mr. Shields. The testimony of the agent and of the state manager is that no credit was extended by the company to Mr. Shields, but the premium was in fact paid to the company by tbe state manager, who in turn was paid by •Mr. Newkirk; the latter of whom had discounted the note at the bank before maturity, and obtained the money upon it. This made a complete contract, and it is too late now, after Mr. Shields is dead, to say the contract was a conditional one. 1 Joyce, Ins. § 86, and the many cases there cited. The record does not disclose that the company had any knowledge whatever of the arrangement made between Dr. Newkirk' and Mr. Shields. There is nothing in the receipt given by Dr. Newkirk indicating the policy should not attach while Mr. Newkirk was trying to get the notes from Mr. Day. Nor is there anything to indicate the policy should not be in force until the note of Mr. Shields was paid. The record discloses very clearly this was not the belief or intention of either Dr. Newkirk or Mr. Shields, and we do not think it was the effect of the agreement. Mr. Shields could not have interposed this defense to an action upon the note if it had been sued by the bank; and though, perhaps, it would have been a defense had he been sued by Dr. Newkirk, it was a defense he could waive. There is no statement in the receipt as to when the Day notes were to be returned. Mr. Shields, because the notes were not returned, asked to have the policy canceled, but he was persuaded not to insist upon it, and he yielded to the persuasion. The record is very clear that after this he never requested the policy should be canceled, and he was never advised by the agent that he intended to have the policy canceled. See Dove v. Insurance Co., 98 Mich. 122. The agent, who had caused the premium to be paid to the company, insisted until long after Mr. Shields’ fatal illness began, and until a few days of his death, upon the payment of the note, which had been given to him, and which had never belonged to, or been in the possession of, the company.

The decree is affirmed, with costs.

The other Justices concurred.


author: Grant, C. J.

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    SIMONS v. VAN BENTHUYSEN.
    Insane Persons — Indigency—After-Acquired Property — Expense of Maintenance — Action to Recover — Jurisdiction.
    The circuit court has jurisdiction to render judgment against one committed to an asylum as an indigent insane person for the amount expended by the county for her maintenance, where, after commitment, she comes into possession of property sufficient to reimburse the county.
    Error to Calhoun; Smith, J.
    Submitted October 25, 1899.
    Decided November 14, 1899.

      Assumpsit by William S. Simons, James K. O’Hara, and Augustus O. Hyde, superintendents of the poor for Calhoun county, against Merilla Van Benthuysen, an insane person, to recover moneys paid for her maintenance in an asylum as a county charge. From a judgment for defendant, plaintiffs bring error.
    Reversed.
    This case was tried before the court without a jury, and the following finding was made:
    “Facts.
    “1. The defendant, Merilla Van Benthuysen, is an insane person, committed to the asylum for the insane, Kalamazoo, Michigan, by an order of the judge of probate for Calhoun county, on the 18th day of September, 1895, as an indigent, and at the expense of Calhoun county.
    “2. The order of the said judge of probate as to her commitment and indigeney still remains of force, and not set aside and held for naught.
    “3. Thomas Shipp, of Eckford, is the general guardian of the defendant, appointed by the probate court of Calhoun county, and is also her guardian ad litem in this suit.
    “4. At the time of the commitment of the defendant in this case to the asylum, she was a married woman. Her husband and herself owned jointly, as husband and wife, 20 acres of land in Eckford, Calhoun county, which is of the value of about $700. Her husband died July 16,1897, and, as his survivor, she became the owner of the said 20 acres.
    “5. The superintendents of the poor of Calhoun county, in the years 1895, 1896,1897, expended the sum of $323.29 for the support and maintenance of the said defendant at the asylum of insane at Kalamazoo, Michigan, and none of the said $323.29 has ever been paid to the superintendents of the poor of Calhoun county, or to Calhoun county.
    “6. That defendant has no children, and no one dependent upon her.
    “7. This suit was commenced by declaration on the 20th day of February, 1899.
    “Law.
    “The court has no jurisdiction of the cause. The probate court has' exclusive jurisdiction to pass upon the claim. ”

      Jesse M. Hatch, Prosecuting Attorney, for appellants.

      Herbert E. Winsor, for appellee.
   Grant, C. J.

(after stating the facts). The sole question presented is whether the superintendents of the poor can maintain a suit at law in the circuit court to recover the amount paid by the county for the support of indigent insane persons, or whether the probate coui’t has exclusive jurisdiction over such claims. We find no decision deciding the question. That plaintiffs might have presented a claim in the probate court is conceded. This was the course pursued in State v. Dunbar, 99 Mich. 99. Plaintiffs insist that the circuit court, being a court of general jurisdiction, has cognizance of such claims, and that they have a right to obtain a judgment to prevent the running of the statute of limitations. The statute (3 How. Stat. § 1930cZl) makes every insane person supported in the asylum personally liable for his maintenance therein; and when he has come into possession of property sufficient to reimburse the county or the State, and to maintain him thereafter in the asylum, such estate or the income thereof must be applied to his support.^ There is no express provision of the statute conferring exclusive jurisdiction upon the probate court. Certainly the income from this land should be applied either in payment of the expenses incurred by the county before she came into possession of the estate, or to her support thereafter, or to both. Had she died before suit brought, the claim would be a valid one against her estate, to be presented and proved in the probate court.

The question whether she is still indigent, in whole or in part, is not before us. An indigent insane person may have an estate in expectancy, into the possession of which she may not come for many years. There may be no general guardian, and no estate in prcesenti to be controlled and managed. It is urged that the courts should not permit this land to be sold, and thus leave the defendant without any means of support in case she should be restored to reason. That question is not before us. What method should be taken to enforce the judgihent, we need not now determine. We think the circuit court had jurisdiction, and should have rendered judgment for the plaintiffs.

Judgment reversed, and entered in this court for the plaintiffs, with costs of both courts.

The other Justices concurred.


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    PEOPLE v. RIEDE.
    Criminal Law — Alibi—Impeachment of Witness.
    Upon a prosecution for robbery, committed about 10 o’clock at night, respondent’s sister testified that she was at home after 9 o’clock on the evening in question, and that she knew that respondent was there from that time until a quarter to 11 o’clock, when she went to bed. Without any foundation being laid for her impeachment, another witness was allowed to testify that she had told him that respondent was at home “all the evening.” Held, that, though it was immaterial whether or not respondent was at home before 9 o’clock or after a quarter to 11 o’clock, it was prejudicial to permit a witness whose testimony was so material to respondent to be discredited before the jury by an unauthorized impeachment, and that, in the absence of an instruction to disregard the impeaching testimony, its reception was reversible error.
    Error to Calhoun; Smith, J.
    Submitted October 26, 1899.
    Decided November 14, 1899.
    Joseph Riede was convicted of robbery, and sentenced to imprisonment in the state house of correction at Ionia for 10 years.
    Reversed.

      Mains & Cavanagh, for appellant.

      Horace M. Oren, Attorney General, and Jesse M. Hatch, Prosecuting Attorney, for the people.
   Grant, C. J.

Respondent was convicted of robbery from the person, being armed with a dangerous weapon. His co-respondent was one Cotie. The crime was committed about 10 o’clock at night. The defense was an alibi,' — that the respondents were at the house of Mr. Riede’s father at the time. Johanna Riede, sister of respondent, testified that she left the house after supper on the day the crime was committed, and returned about 9 o’clock; that respondent and Cotie also went down town after supper, and when she returned they were in the kitchen, playing cards; that she went to bed about a quarter to 11 o’clock, and they were still there playing cards. She was asked no questions about a conversation with one Joseph Shoup. For the purpose of impeaching her testimony, Mr. Shoup was called, and testified that he asked her what time Joe was home, and that she replied “he was home all. the evening, playing cards.” Counsel for the people concede the rule in regard to impeaching testimony of this character to be that the witness must first be interrogated as to the time, place, and the conversation. This rule was not complied with. The only reason .now urged to avoid the error is that it was immaterial, and did not prejudice the respondent. Her testimony was very material, for, if true, the respondent was not guilty. It was important for him that the rule in regard to impeachment be observed. It is true that the impeachment was upon an immateral matter, for it was of no consequence whether he was at home before 9 o’clock, or whether she so stated. But the jury were not instructed to disregard Mr. Shoup’s testimony, and may have thought it very material. They may possibly have found that she testified falsely on this point, and therefore have disregarded her testimony entirely. We cannot, therefore, say that it was error without prejudice.

For this error the conviction must be reversed, and a new trial ordered. We find no other error.

The other Justices concurred.


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    WETHERBEE v. MICHIGAN CENTRAL RAILROAD CO.
    Municipal Corporations — Contract with Railroad — Overhead Crossing — Ultra Vires.
    A city, pursuant to a vote of the electors, entered into a contract for the payment of a sum of money to a railroad company for erecting a bridge to carry over the tracks a street that had formerly been crossed at grade. The company agreed to maintain the masonry and foundations, but turned the superstructure and approaches over to the city, which took possession, and thereafter made certain repairs, resulting in an accident by which plaintiff was injured. It did not appear that the company was under any legal obligation to change the grade crossing to an overhead crossing. Held, that, even if the contract of the city was ultra vires, the company was not liable for the injuries.
    Error to Wayne; Carpenter, J.
    Submitted October 24, 1899.
    Decided November 14, 1899.
    Case by Edson Wetherbee against the Michigan Central Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Lehman Bros, and F. J. Riggs, for appellant.

      Henry Russel (Lawrence & Butterfield, of counsel), for appellee.
   Moore, J.

The tracks of the defendant extend along the valley of the Huron river, which divides Ann Arbor into upper and lower town. The street from lower town branches into two streets leading into the upper town about where the railroad track crosses the streets. ' The railroad track was laid in 1838, and until about 1886 crossed the streets at grade. The streets between the lower and upper town had a great deal of traffic upon them, and from the railroad track to the upper town the grade of the streets for a long distance was very considerable. The railroad company was about to build a new station, and to make very considerable changes in its yard. It was desirable, not only for the railroad company, but for the public, that these important streets, instead of crossing the railroad tracks at grade, and at the foot of a long, steep hill, should be carried over the railroads, thus avoiding in part the grade and the dangers incident to a grade crossing. To accomplish this purpose, it was necessary to carry the streets over the railroad tracks upqn a bridge. The common council entered into negotiations with the railroad company for the purpose of bringing about this result. It submitted the question of raising $5,000 for the purpose of building this bridge to the taxpayers, who voted, at an election, authority to raise that sum to build the bridge. The city then entered into a contract with the railroad company, by which, among other things, it was to construct a bridge over its tracks, connecting Pontiac and Broadway streets, with approaches of a grade not exceeding 6 feet in 100. The railroad company agreed to maintain the masonry and foundations of said bridge at its own expense, and, when completed, “ to deliver the said bridge and its approaches, with sidewalks and fences, as aforesaid, into the possession of said city, free of all liens.” The city paid to the company the $5,000 which it agreed to pay. The railroad company performed its part of .the contract, including the building of the bridge, which it put into possession of the city, and over which the city afterwards exercised, by its proper officers, control.

In March, 1895, the plaintiff was injured because of alleged defects in the planking of the bridge, and sued the defendant to recover damages. The circuit judge directed a verdict in favor of the defendant for reasons he stated as follows:

“This bridge upon which the plaintiff was injured was erected under an agreement between the city of Ann Arbor and the railroad company. That agreement, without undertaking to read it to you, contained these significant provisions: That the railroad company, after it was built, would maintain the foundations and masonry, and it would turn the possession of the bridge and the approaches over to the city of Ann Arbor. Now, looking at the agreement alone, clearly its proper legal construction would imply that, after the bridge was built and turned over to the city, the burden of maintaining the superstructure would be upon the city, and not upon the railroad company. I do not think that proposition can be seriously controverted. But it is insisted that legal effect cannot be given to that agreement, because it is contended that the law placed upon the railroad company the legal obligation of maintaining this superstructure, and therefore the city of Ann Arbor could not relieve the railroad company from that obligation, and itself assume it. In support of this contention, plaintiff’s counsel call my attention to two cases, one in the State of Massachusetts and one in the State of Iowa. In those cases it was decided that, where a railroad company built a bridge over a highway crossing, a municipality had no right to enter into an agreement relieving it (the railroad company) from the obligation to keep the bridge in repair. Now, at first blush it seems as though those cases control this case, and the strong way in which they were presented made me question what I otherwise supposed was settled law; but reflection and study and comparison of those cases with this has led me to the conclusion that they have no application here. In those cases there was a clear legal obligation on the part of the railroad company to build that bridge. It had to build it in order to put the highway in the condition which the law required it to be put in by the railroad company, and there followed a legal obligation to maintain that bridge; so that there was no reason and no consideration for the municipality agreeing to take that burden upon itself. Now, is there, in this case, any such obligation ? It appears that, for a good many years before this bridge was built, there was a grade crossing at this point. The railroad company was under no legal obligation to change that grade crossing into an overhead crossing. It is argued that it might have been made to assume that obligation if proper action had been taken before the commissioner of railroads. That is possible. It is possible that the circumstances are such that, if they had all been presented to the railroad commissioner, he would have said that public convenience and public safety at that point demanded such a change to be made. But he did not say that. The case was not presented to him, and, until he did say so, there was no legal obligation upon the railroad to make that change. The city of Ann Arbor chose, instead of that, to enter into an agreement whereby that change should be made. In other words, the railroad company never was placed in a position where there was any legal obligation resting upon it to build this bridge, and, consequently, no legal obligation to afterwards maintain it. So that I am clearly of the opinion that the Massachusetts case and the Iowa case do not control this case, and furnish no precedent for its decision.”

From this action of the trial judge the plaintiff appeals, contending:

1. That the contract between the city and the railroad company was ultra vires, and therefore void.

2. That the railroad company could not, by contract, escape its liability to respond in damages for injuries received at street crossings.

3. That, even though the city was liable, the railroad company was also liable.

The counsel cite many authorities, but rely chiefly upon Dygert v. Schenck, 23 Wend. 446 (35 Am. Dec. 575); Kelly v. Railroad Co., (Sup.) 9 N. Y. Supp. 90; Tierney v. City of Troy, 41 Hun, 120; Gates v. Railroad Co., 150 Pa. St. 50 (16 L. R. A. 554); City of Newton v. Railway Co., 66 Iowa, 422; Rouse v. City of Somerville, 130 Mass. 361. We do not think any of these cases is conclusive in favor of the contention of counsel. All of these cases, except the first one, were cases where the law imposed upon the railroad company the duty to keep the crossing or the bridge in repair. In most of the cases the duty was imposed by the statute. In the case of Dygert v. Schenck, supra, the following language is used:

“Had the town agents actually taken the bridge under their care, and repaired it for a long time, there might have been a question for the jury whether they had not made it a town bridge.”

So far as this case has any bearing upon the controversy, it is in favor of the position of the defendant.

The ease at bar is not the case of an injury at such a crossing as the railroad company was under legal obligation to maintain. For many years it maintained its tracks across the streets at grade. No action was taken by which it could legally be compelled to keep anything but a grade crossing in repair. Because of the public benefit to accrue therefrom, the common council made an arrangement by which the streets should be extended over the tracks of the railroad at its expense. So far as the superstructure was concerned, the bridge was to be under the control of the city, to be maintained at its expense.

It is not necessary for us to inquire, in this proceeding, whether the city exceeded its authority in making this arrangement or not. It in fact caused the bridge, to be built. It took control of it, and, through its street commissioner, caused the pieces of plank to be nailed on the bridge which the declaration averred, and the testimony offered by the plaintiff tended to show, caused the accident.

The circuit judge was right in his disposition of the case. Judgment- is affirmed.

The other Justices concurred.


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    HENRY v. HENRY.
    1. Trial — Instructions—Court’s Opinion of Merits.
    For the trial judge to give an instruction which, standing alone, might be taken as an indication of his opinion of the merits of the controversy, but which, in connection with the testimony and the remainder of the charge, is not calculated to be so understood by the jury, does not warrant a reversal.
    2. Adverse Possession — Farm—Timber Land — Extent of Occupancy.
    It is not essential to adverse possession of farm land that the entire farm, including timber lands, be cleared and cultivated, but it is sufficient if it is all held as one farm, and such use is made of the whole as farmers are accustomed to make of land of the character of that in question.
    Error to Sanilac; Beach, J.
    Submitted October 25, 1899.
    Decided November 14, 1899.
    Ejectment by Ida M. Henry against John Henry and others. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      C. F. Gates, for appellant.

      J. S. Crandell, for appellees.
   Moore, J.

The plaintiff is the owner of the record title to the S. W. i of section 3Ó. The defendant John Henry is the owner of the record title to the W. £ of the S. E. ^ of said section. As we understand the record, the other defendants are tenants of John Henry. This action was commenced April 15, 189?. The dispute arises over the line between these two descriptions of land. It is the claim of the plaintiff -that defendants withhold from her a strip of land the entire length of defendants’ farm, 12 rods wide, which plaintiff owns. To recover that strip of land,, she has brought this action in ejectment. The case was tried by a jury, who rendered a verdict in favor of the defendants. From the judgment entered upon said verdict, the plaintiff brings the case here by writ of error.

It is claimed by plaintiff that, though section 30 purports to he a full section, the government surveyors made a mistake in running the section lines east and west, and, instead of making them a milé long, as they should have done, made them nearly 24 rods less than a mile. It is her claim the south quarter post of the section, instead of being 160 rods west of the southeast corner of the section, should be but a trifle more than 148 rods west of the southeast corner. It is the claim of the defendant Henry that, when the land was surveyed, the quarter posts of said section were placed a half mile west of the east line of said section. This claim was controverted by the plaintiff, who contended they had either never been set or had been lost. It was also the claim of the defendant Henry that as early as in 1880 he cleared his land as far west as the quarter post, and made a log and brush fence upon the quarter line between his land and that of the plaintiff, which fence remained until destroyed by fire, in 1881; and that another fence was built upon the same line, which was destroyed by fire a little later, but was rebuilt. He contends that, for more than 15 years before the commencement of the suit, his clearing extended back about 80 rods to the quarter line, with a fence between his lands and the land of the plaintiff; and, as to the north portion of his farm, he claims it was timber land used in connection with the rest of his farm, he cutting timber therefrom according to his needs, and using it for pasture. He also contends that the father of the plaintiff used the land west of the fence as a farm, each claiming to be the owner of all the land occupied by each. He also claims that the father of plaintiff, from whom she derived title, who died shortly before this suit was brought, occupied only up to the quarter post and the fence before described, and acquiesced in the occupancy of the defendant, as before stated. These claims of the d efendant were dis puted by the plaintiff, and the parties offered testimony tending to show the truth of their respective claims.

The plaintiff now says there was no testimony to show defendant Henry had been in possession, up to what he claims was the quarter line, for 15 years, and the court should not have submitted that question to the jury. We cannot agree with the counsel. While it was a controverted question, there is a good deal of testimony tending to show the claim of defendant to be true, and it was a proper question for the jury. Whitford v. Crooks, 54 Mich. 261; McCall v. Wells, 55 Mich. 171.

Most of the questions argued have been settled by repeated decisions of this court growing out of disputes about boundary lines, and it is not necessary to go over them again here. The plaintiff strenuously insists that the court prejudiced her case by indicating his opinion of the merits of the controversy by that portion of his charge reading as follows:

“Now, gentlemen of the jury, you may take this case under these instructions, and determine these questions as to who is entitled to the land in question, — whether Mr. Henry is to be disturbed in his possession, and is to surrender 12 acres of land on the east side of the line, or not.”

Standing alone, this language would form some basis for the claim of counsel, but it must be taken in connection with the testimony and the rest of the charge. The testimony all showed that, as to the front portion of the farms, there had been a fence between the two farms for some years,- — -how long was a matter of dispute, — -which was spokén of by the witnesses as the line between them. It was the claim of the plaintiff that she was entitled to 12 acres east of that line. As before stated, this claim was disputed by defendants. After stating the respective claims, and the law applicable thereto, at length and fairly, the court used the following language:

“Now, gentlemen of the jury, you may take this case under these instructions, and determine these questions as to who is entitled to the land in question, — whether Mr. Henry is to be disturbed in his possession, and is to surrender 12 acres of land on the east side of the line, or not. If you find that he is, then there is another question to be determined, and that is, under the testimony here, as to the improvements which have been made: First. To what extent have the improvements and buildings increased the present value of the land over what would have been the value if it was left alone ? Second. What would be the present value of the land- — -the premises— without the buildings and the improvements, and any waste, if any, which has been committed; that is, what would be the value of the land today if no improvements were made or buildings erected, and the land had remained without waste and without any improvements? Now, those two questions, if you shall find for the plaintiff, are to be answered in your verdict: First. To what extent have the improvements increased the value of the land ? Second. What would be the present value of the land without'improvements ? ”

It is very evident the court had no thought of indicating to the jury his impression of the merits of the case. The counsel evidently had no such thought at that time, for the record does not disclose that they indicated to the court his language might mislead the jury, and requested him to correct it. When taken in connection with the rest of the charge and the evidence in the case, it is clear the jury were not misled by it.

Counsel for plaintiff asked the court to charge “that adverse possession, so far as the boundary is concerned, does not extend beyond the ground actually occhpied.” The judge told the jury that it appeared from the evidence the clearing is not extended the whole length of the half mile between the parties, and that occupancy need not be to the extent that the ground is actually cleared and cultivated, but it would be sufficient if it is within one description, and has been occupied for any purposes connected with ordinary farm usage. Counsel says this was error. In Murray v. Hudson, 65 Mich., at page 674, it is said:

“If Bryce entered upon this land under his deed from Kitten, and used it thereafter as a wood lot appurtenant to his farm in the usual and ordinary way, and exercised such acts of ownership over it as were necessary to enjoy such usual and ordinary use of a wood lot, such acts, being continued and uninterrupted, would amount to actual possession, and such possession, being under color of title and a claim of right, and exclusive, held so openly and notoriously that the community understood and recognized his claim of ownership, would be adverse.”

In this case it was the claim of defendant Henry that, when he took possession of the land, it came within the description of his deed, that he occupied all of it as one farm, and the timber land was occupied as any farmer would occupy his timber land. The case comes within Murray v. Hudson, supra. See, also, Sparrow v. Hovey, 44 Mich. 64; Curtis v. Campbell, 54 Mich. 340; Cook v. Clinton, 64 Mich. 309 (8 Am. St. Rep. 816); Sauers v. Giddings, 90 Mich. 50.

Judgment is affirmed.

The other Justices concurred.


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    FRANCIS v. FRANCIS.
    Specific Performance — Alienation of Homestead — Wife’s Signature.
    Complainant, at the solicitation of his parents, agreed to remain at home and provide for them, in consideration of which his father promised that whatever he should die possessed of should go to the son. Subsequently the parents joined in a deed of the homestead, to be held for the son in escrow, and delivered to him at his father’s death. After the death of the father, complainant discovered a clause in the deed, of which he claimed to have been ignorant theretofore, declaring that title should not pass to him until the mother’s death. Subsequently, a controversy having arisen over the possession of the premises, he filed a bill against his mother for specific performance. Held, that, inasmuch as the deed itself expressly reserved the title until the mother’s death, there was no alienation of the homestead, signed by her, upon which complainant’s right thereto could be predicated as against her, and that any parol agreement or understanding was void under article 16, § 3, of the Constitution.
    Appeal from Ionia; Davis, J.
    Submitted October 27, 1899.
    Decided November 14, 1899.
    Bill by Fred L. Francis against Phebe L. Francis and others for the specific performance of an agreement for the conveyance of land. From an order overruling her demurrer to the bill, defendant Phebe L. Francis appeals.
    Reversed.

      R. A. & W. E. Hawley, for complainant.

      Ohaddock & Scully, for appellant.
   Moore, J.

Complainant filed a bill in chancery in which he averred, in substance, that he is the son of Ephraim and Phebe L. Francis; that Ephraim Francis was the owner of a lot in Portland, which he occupied with his wife as a homestead, which was of the value of |500. He avers he had planned to go from home to work, and that, yielding to the solicitations of his parents, and relying upon, a promise of his father that whatever the father had at the time of his death in the way of property should belong to the complainant, he abandoned his plan of going away, and remained at home, working in the shop of his father and supporting his parents. He avers his father afterwards died, and that he paid the expenses of his illness, funeral, and burial. He avers that in 1888 his father and mother made him a deed of the said lot, which was delivered to his mother in escrow, to be delivered to the complainant upon the death of his father; that his mother afterwards delivered the deed, which complainant had recorded. • Many things are stated in the bill which it is not necessary to mention here. It is averred that the deed contained a clause reading as follows: “It being hereby expressly understood that the title from the said first parties does not pass in the above-described property to the said second party until the death of both the said Phebe L. Francis and Ephraim Francis,” — of which complainant had no knowledge until June, 1898. He avers that it was represented to him, after he discovered the clause in the deed, that his mother had a life lease in said premises, and, supposing this was true, he consented to lease the premises of her if she would join with him in a new mortgage upon the premises. The bill avers that the lease was made under a mutual mistake of law and fact, and that a fair interpretation of the deed is that complainant was to furnish his mother with a home on the premises, which he is now, and always has been, willing to do. The bill avers that the mother of complainant insists that the relation between her and the complainant is that of landlord and tenant, and has commenced summary proceedings to obtain possession of the premises. It prays for specific performance of the agreement between complainant and Ephraim Francis, that the lease may be canceled, and for other relief, which it is not necessary to mention further. The defendant Phebe L. Francis demurred to the bill. From a decree overruling the demurrer, she has appealed.

We think the demurrer should have been sustained. Under the provisions of section 2, art. 16, of the Constitution, the homestead of Mrs. Francis could not be alienated except by her signature to the paper creating the alienation. It has been held over and over again that any conveyance of the homestead without the signature of the wife is void. See the many cases cited in note, page 122, 1 Comp. Laws 1897. The only deed Mrs. Francis signed provided that the title to the premises should not pass until the death of both of the grantors. The bill of complaint shows that Mrs. Francis is yet living. Any parol agreement she may have made in relation to the land is void. By the terms of the deed, the title has not yet passed to the complainant, and it is not competent for the court to decree it to pass. With this construction of the deed, the other allegations of the bill do not afford reasons for the interference of a court of equity.

The decree is reversed. The demurrer to the bill of complaint is sustained.

The other Justices concurred.


author: Hooker, J.

text:
    HALL v. MANN.
    Taxation — Purchase op State Lands — Nonpayment op Current Taxes.
    Ad. applicant to purchase state tax land, who deposits with the auditor general a sum sufficient to pay all taxes constituting a lien thereon, but without advising him of an unpaid current tax, is not entitled to a deed of the land as against a subsequent applicant who pays the current tax, and tenders to the auditor an amount sufficient to cover all demands against the land.
    Appeal from Muskegon; Russell, J.
    Submitted October 24, 1899.
    Decided November 14, 1899.
    Petition by Alice A. Hall against M. E. Mann and George F. Brown to set aside a tax deed. From a decree for petitioner, defendants appeal.
    Affirmed.

      Brown & Adams, for petitioner.

      Black & Brown, for defendants.
   Hooker, J.

The premises in controversy in this proceeding belonged to Alice A. Hall, and were bid in for the State for taxes in 1893. On February 17, 1897, the defendants filed the following application with the auditor general:

“ Lansing, Mich., Feb. 17,1897.
“Hon. Auditor General.
Sir: Application is hereby made to purchase on the following list of lands of M. E. Mann and Geo. F. Brown, of Flint, Mich. Amount handed you herewith, $5.00.
[Signed] “M. E. Mann and George F. Brown,
“Flint, Mich.”

It contained a description of the land in dispute, and no other, and five dollars accompanied it. On March 23d the auditor general received the following communication, inclosing $33.63:

“Lansing, Mich., March 23, 1897.
“Hon. Auditor General.
“Sir: Referring to serial No. 7,260, we herewith inclose $33.63 to complete purchase.
[Signed] “M. E. Mann,
“Olio.”

On May 19, 1897, M. O. Kelley wrote a letter to the auditor general on behalf of Mrs. Hall, saying that he had discovered that the property was sold for the taxes of 1896, and that it was a mistake, because he had paid the taxes, except drain taxes, which had been set aside by the court. He inclosed tax receipt,'and asked that the sale be canceled. He also stated that he found that the N. E. ^ of S. W. £ (being the N. \ of the premises in dispute) had been sold for 1893 for $7.38, which he supposed was paid, and he applied for a deed for Alice A. Hall, with the promise to send amount necessary to be paid when informed of it. Evidently the auditor informed him that there was an earlier application, as Kelley’s next letter, written on May 26, 1897, asked for the name of such applicant, and stated that Mrs. Hall was the owner of the land, and asked if there was any way in which she could save her title. On July 6, 1897, the auditor general issued a deed to the defendants, and with it the auditor general returned $15.73. Mrs. Hall had paid these taxes for 1896 on May 25, 1897, to the county treasurer, the amount being $13.09. She subsequently made application to purchase the title, and for a deed of the land, offering to pay all taxes and charges, interest and costs, required, and accompanied the application by a tender of a sufficient sum to cover the demands against the land, and .asked that a certificate of error be given her. This was refused, and a petition was filed in the circuit court asking that the auditor general be required to issue a certificate of error, and for other relief. See Hall v. Mann, 118 Mich. 201. After the filing of said petition, and on December 17, 1898, the defendants returned to the auditor general the $15 which they had received from him, and ■applied for a receipt for the taxes of 1896. The circuit court declared defendants’ deed null and void, and directed the auditor general to issue a certificate of error annulling the deed, and, upon receiving the money tendered, to issue a deed to the petitioner, Mrs. Hall.

It is agreed that the only question in the case is whether the defendants were entitled to a deed under their application and deposits of February 17 and March 23, 1897. Their counsel rely upon the cases of Eldridge v. Richmond, 120 Mich. 586, and Wilkin v. Keith, 121 Mich. 66. The former holds that a proper application and deposit entitle the applicant to a deed as upon a complete purchase, and that the auditor general has no right to refuse it. The latter case is said to show that the defendants were purchasers. A reference to the various cases including and following Hughes v. Jordan, 118 Mich. 27, will show much controversy over the question there decided. It has been insisted that the rule worked hardship upon persons who desired to purchase lands from the State, who, if they paid all claimed by the auditor general, might find later that some other person had anticipated them in the payment of current taxes, thus invalidating their purchase; or, if they took time to pay the tax to the local authorities, they might be too late to buy the land from the State. It is said that we held in Wilkin v. Keith that it was competent to pay all to the auditor general, and this is true. The position of the defendants in this case is that, by sending with their application a sum large enough to cover all taxes that might be a lien, they became purchasers, notwithstanding the fact that neither the auditor general nor themselves knew that there was a current tax unpaid, and notwithstanding the fact that the auditor general returned, and they accepted, a portion of their money, after it became evident that there was no tax returned. It is probable that neither party considered the current tax, the case of Hughes v. Jordan not having been decided at the time of these occurrences. But. it makes no difference. The case of Wilkin v. Keith is not authority justifying the practice of depositing a gross sum large enough to surely cover all taxes, and leaving the auditor general to ascertain whether there is an unreturned tax outstanding. There is no exigency that requires it. Wilkin v. Keith clearly shows what a would-be purchaser may do if he wishes to be safe, and, if he cannot take time to take the necessary steps, he must take the chances of losing his purchase. Wilkin v. Keith holds that a purchaser should know whether or not he wants to pay a current tax not returned, and, if so, should inform the auditor general of the' fact and the amount, as the following brief quotation shows:

“A man desiring to purchase state tax lands can ascertain the amount of current taxes due before making his application to purchase, and either by producing a statement that shall be satisfactory evidence to the auditor general of the amount of such taxes, or by conveying to the auditor general information that such tax remains unpaid if he cannot procure an official statement that the auditor will recognize, and paying him the amount in addition to the other amounts necessary, as shown by the auditor’s records, can secure his legal rights as a would-be purchaser, without being subjected to any risks whatever.”

The decree of the circuit court is affirmed, with costs.

The other Justices concurred.


text:
    BERRY v. ADAMS.
    Witnesses —Matters Within Knowledge or Decedent — Assignors.
    One entitled to have property devised to her, who yields her claim, and consents to its being devised to her children, is am assignor, within 3 Comp. Laws 1897, § 10212, prohibiting am assignor of a cause of action from testifying to matters, equally within the knowledge of a deceased defendant, and,, in an action by the children, cannot testify to promises made by the deceased to her to leave it to them.
    Appeal from Genesee; Wisner, J.
    Submitted October 27, 1899.
    Decided November 14, 1899.
    Bill by Henriette Berry and another, infants, against Edwin M. Adams and Alexander W. Davis, as administrator with the will annexed of the estate of Hannah Harris, deceased, to establish a trust in property devised to defendant Adams. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      A. E. Gibson (M. J. Lehmann, of counsel), for complainants.

      Henry O. Van Atta {Bollin H. Person, of counsel), for defendant Adams.'
   Hooker, J.

In 1868, Bose Marsh was left an orphan, at the age of 14, by the death of her father; her mother having died when she was 2 years old. After her mother’s death, she lived with her aunt Mrs. Griswold until 1863. From that time she lived with another aunt, Hannah Harris, and Mrs. Griswold, until 1866, after which she lived with Hannah Harris. After her father’s death, her aunt Hannah Harris obtained from her stepmother $300 in settlement of her claims against the estate of her father, being appointed guardian of Rose Marsh for the purpose. The money was used to pay a mortgage upon the home of Hannah Harris, where she and Rose resided. The complainants are children of Rose Marsh. It is claimed on their behalf that, by agreement between Hannah Harris and the child Rose Marsh, this money was to be used to pay off the mortgage, that they were to live upon the premises together, and that Rose Marsh was to have the property at the death of her aunt. It is said that, acting under this agreement, they occupied the premises together; that Hannah worked out as a domestic, and Rose as a school teacher; and that in 1873, by their mutual efforts, they succeeded in rebuilding the house. Rose Marsh became of age in 1875, and married John Berry in 1877. Complainants are children of this marriage. It is alleged further that John Berry was not a good manager, and that on Christmas night, 1888, a new arrangement was made. Mrs. Berry is the only witness who testified to this arrangement, and she said:

“ On Christmas night we got to talking over matters in general, and she -inquired into my husband’s affairs and into the condition of our affairs. My husband was running the store that had formerly been my uncle’s; and she was inquiring whether we had got it paid for, how much we owed on it, etc. I says, ‘ No, we have a mortgage on it to a certain amount.’ She rather inferred that my husband would not be able to pay for it. She did not admire his financiering at all. She says, ‘It will be the same with my place if I leave it to you entirely.’ She had always referred to the place, when speaking of it, as ‘mine.’ She says: ‘ It will be the same. Your husband will not be able to keep it long. It will be gone and squandered. And I think, if you are willing, it will be better for me and you and all concerned to make my will in favor of your children. It will be your home just the same. You can do just as you like. I think it will be the better plan if you are willing.’ Consequently, I thought, if it would please her,— I knew she did not like my husband very well, — I thought maybe it would please her, and make less hard feeling between them. I says: ‘I don’t care. If it would please you any better, do so. ’ She says, ‘I will.’ We talked about it some time. That was the lengthy part of the conversation. It was understood then and there that she was to do it.
‘ ‘ Mr. Person: You are telling what she said, are you not? ■
“A. I am.
“Q. Tell all that was said ?
“A. As near as I can remember.
“Q. All you remember ?
“JL Yes, sir.
“Q. That is what you meant when you said it was understood ?
“A. I had understood that it was to be in the children’s name — my two children’s name — in her will in place of my own, as she had always agreed to will everything she had to me, and, instead of willing it to me, she was to will it to my two children. That was in 1888. She died in 1894, July 1st.”

On cross-examination she said:

Q. Will you state the language used by each of you as near as you can?
“A. As near as I can— I can’t give the exact conversation. It was something after this manner: ‘Your husband will use it up. You will not have any home for yourself, and you won’t be any better off than you are now. Consequently, I think it better to fix that so that he cannot use it; and, if I make my will to the children, your husband will be Unable to dispose of it. If this is agreeable to you, Rose, and you don’t care, we had better have that arrangement made, and I will have my will made in favor of your children in place of you.’ I answered after this manner: ‘If it will please you, aunt, I don’t care. It will do my children more good than it will me.’ That is the substance of it.”

A witness named Davis testified that he drew such a will in 1892 or 1893, and that Hannah Harris destroyed it later, and made a will devising the homestead to the defendant Adams, and some personal property to Mrs. Berry.

The bill seeks to establish a trust in favor of the children , of Rose Marsh Berry under the contract and arrangement mentioned. It was dismissed by the circuit court, and the complainants have appealed.

It is manifest that the testimony of Rose Marsh Berry is indispensable to the complainants, for without it their case is not proved. Her testimony was taken under the objection that it was incompetent, under the statute, as being in relation to matters equally within the knowledge of the deceased. "Wkre Rose Marsh Berry seeking to enforce the original contract in her own name, there can be no doubt that the objection to her testimony would be good. It is also true that, if the complainants were assignees of her rights under that contract, the objection would be good, because the statute prohibits testimony by assignors. See 3 Comp. Laws 1897, § 10212. Counsel for the complainants make an ingenious argument in support of the claim that Rose Marsh Berry is not an assignor to the complainants. It is true, nevertheless, that, previous to the talk on Christmas night, Rose Marsh Berry, if any one, had a right to have this property devised to her; and the claim here is that the complainants have acquired these rights. She did not sell them to complainants, but she claims that, upon request of Hannah Harris, she consented that the property should be devised to them instead of to herself. To all intents and purposes it was a gift to them of her claim, if it was anything, and, in effect, an assignment to them of her rights. She was, therefore, prohibited from testifying by the statute, as she would have been had she attempted to enforce the alleged contract upon her own behalf.

The decree is affirmed.

The other Justices concurred.


text:
    BECK v. FINN.
    1. Taxation — Purchase oe State Lands — Writ oe Assistance
    A purchaser of state tax land may maintain an application for a writ of assistance to put him in possession of the premises and cannot be compelled to resort to an action at law.
    2. Appeal — Objections Not Made Below.
    An objection not made below will not be considered on appeal
    Appeal from Bay; Maxwell, J.
    Submitted October 24, 1899.
    Decided November 14, 1899.
    Petition by Louis Beck against Maggie Finn for a writ of assistance. From an order dismissing the petition, petitioner appeals.
    Reversed.

      Albert McClatchey, for petitioner.

      Sinionson, Gillett & Courtright, for respondent.
   Moore, J.

At the annual tax sale held in Bay county in December, 1894, a parcel of land in Bay City, Mich., described as “ Lot 4 of block 114, plat of Lower Saginaw,” was bid off to the State for the taxes assessed thereon for the year 1892. The land was not redeemed. On the 18th of September, 1897, the petitioner, Louis Beck, purchased the land from the State, and on November 6, 1897, a deed conveying the same to him was issued by the auditor general. On January 18, 1898, he claims a notice in compliance with the provisions of section 140 of the tax law (Act No. 229, Pub. Acts 1897) was served on the respondent, Maggie Finn, the grantee under the last recorded deed of the land. On the 24th of April, 1899, the petitioner made application to the circuit court for the county of Bay, in chancery, for a writ of assistance to put him in possession of the land. The respondent was represented by counsel, but the petition filed in the cause was not answered. The court made an order denying the application for a writ of assistance, giving as his reason therefor that he thought the question involved should be submitted to and disposed of by a jury. From this order the petitioner appeals.

It is now claimed by respondent that, even though the circuit judge gave a wrong reason for his disposition of the case, his decision ought to stand, because the petitioner made no sufficient showing to entitle him to the relief for which he prayed. To this argument petitioner replies that the circuit judge had adopted the following rule of practice: “ That the petition and answer and other pleadings in tax cases, the facts set forth and sworn to and not denied .by either party, are to be taken as admitted as true.” He says no answer was made to his petition, and no opportunity was given to put in the testimony he was prepared to offer.

The circuit judge was in error in supposing that cases of this character should be tried only in an action at law (Ball v. Ridge Copper Co., 118 Mich. 7); and there is nothing to indicate any question was raised before him that petitioner was not entitled to relief because he had not, by proof, made a case. The petitioner should be allowed to introduce such competent testimony as he desires in the case.

The decree is reversed, and the case remanded for further proceedings.

The other Justices concurred.