author: Montgomery, J.

text:
    TEN EYCK v. PONTIAC, OXFORD & PORT AUSTIN RAILROAD CO.
    1. Railroads — Mortgages—Stock and Bonds — Merger.
    One who, as attorney for a railroad company, the promoter of which was H., negotiated a contract with an investment company of which H. was president and chief stockholder, by which the investment company was to construct the railroad, and receive for each mile thereof a certain amount of the stock and mortgage bonds of the railroad, cannot, as a creditor of the railroad, having known all the facts, insist on a merger of the bonds and stock in the hands of H., who acquired them through the investment company.
    2. Same — Foreclosure—Statutes.
    1 How. Stat. § 3351, authorizing railroad companies to execute mortgages with such power contained therein for the sale of the property mortgaged as shall, in the judgment of the board of directors, be found expedient, and providing that such power, and sale in accordance therewith, shall be valid, operates to except railroad mortgages from the general statute relating to the1 foreclosure of real-estate mortgages.

      Á Same — Part-Paid Stock — Assessment—Estoppel.
    A stockholder in a railroad corporation, who participated in the issue of the stock as full-paid when in fact only a small part had been paid, cannot, as a creditor of the corporation, maintain a claim that the stock should be subject to assessment to the extent to which it was unpaid.
    4. Same — Nonresident Defendants — Service by Publication— Personal Decree.
    Such a claim on the part of the creditor is not aided upon appeal from a decree against the railroad company and the stockholders liable to such assessment by the fact that the appeal was taken by the company alone, where such stockholders are nonresidents who were brought in by publication, and who did not appear in the suit.
    5. Same — Priority of Liens.
    A stockholder’s claim against a railroad corporation for services rendered in the construction of the road is not entitled to priority over a mortgage given with the approval of such stockholder prior to the rendition of the services. .

      Appeal from Oakland; Smith, J.
    Submitted April 13, 1897.
    Decided October 1, 1897.
    Creditor’s bill by Junius Ten Eyck against the Pontiac, Oxford & Port Austin Railroad Company, the Farmers’ Loan & Trust Company, and others. From a decree for complainant, the defendant companies appeal.
    Reversed.
    Griffin, Warner, Hunt & Berry (Alfred Bussell, of counsel), for complainant.

      Aug. C. Baldwin (Bussel & Campbell, of counsel), for appellants. • ■
   Montgomery, J.

In 1879, eight persons, of whom complainant was one, organized the Pontiac, Oxford & Port Austin Railroad Company, with a nominal stock of $1,500,000 in $100 shares. Each of the eight persons subscribed for one-eighth of the shares, and paid in one-eighth of the sum of $2,500, which was all the money ever paid in. The eight persons became the directors. Joseph P. Hale was promoter of said railroad, and was president and chief stockholder of the New York, New England & Western Investment Company, an Illinois corporation. The railroad company made a contract with the investment company by which the railroad was to make a mortgage to the Farmers’ Loan & Trust Company of New York, and turn over the mortgage bonds and the stock to build the railroad. In 1882 the railroad company, in accordance with the stipulation to that effect in the above-named contract, made a mortgage to secure 1,500 $1,000, 30-year, 6 per cent, bonds to the Farmers’ Loan & Trust Company of New York, and authorized the trustee to issue all the certificates of stock and all the bonds of the railroad, and to deliver the same to the investment company, as fast as five-mile sections of the railroad should be completed, at the rate of $15,000 a mile of bonds and $15,000 a mile of stock, nominally full-paid. By the contract between the railroad company and the investment company it was provided that the trust company should prepare not only the mortgage bonds, but certificates of the railroad stock, and issue to the investment company $15,000 bonds and $15,000 stock for every mile completed, and that the railroad company should procure $90,000 of subsidy notes and certain rights of way, etc.; and the complainant, as an individual, undertook to do this, and did it, and also performed professional work as an attorney, and for these different sorts of labor recovered a judgment against the railroad company in the Oakland circuit, which judgment was affirmed by this court (Ten Eyck v. Railroad Co., 74 Mich. 226, 16 Am..St. Rep. 633), and now amounts to over $30,000.

Hale made loans to the investment company upon the said stock and bonds as collateral, and, the said company failing and going out of existence, Hale took up the work of construction. Before completion, Hale died, in 1883, and Lucy Ann Hale, his widow, and George W. Debevoise became executors, and finished the work, and, in 1886, 14,985 shares of the stock and all of the bonds came into their ownership and possession. Eight qualifying shares of the stock were held by the original eight directors, and seven shares by their seven successors. The cost of building the road was $1,430,000, or $70,000 less than the amount of the 1,500 $1,000 mortgage bonds received for building, leaving the bonus of 14,985 shares of stock besides in the ownership of the executors, nominally full-paid, but actually paid up only to the extent of $2,500. Complainant, March 6, 1888, took out execution, returnable March 27, 1888, and the same was returned unsatisfied March 28th. Afterwards he levied a pluries execution on all the railroad property, and the levy was duly recorded May 8, 1889. The company having defaulted in payment of interest, the executors called upon the trustee, the Farmers’ Loan & Trust Company, to take possession, and foreclose by advertisement, The trustee did this, and put James Houston in possession as trustee’s agent, and inserted an advertisement of sale for June 15, 1889, in two Philadelphia, two New York, and two Detroit papers.

Complainant filed the creditor’s bill in the present case May 22, 1889, for himself and other creditors, if any, and in aid of execution, and to set aside the mortgage foreclosure, and to assess the stock, setting forth the foregoing, and praying a preliminary and final injunction against the sale, and also prayed the appointment of a receiver, and the sequestration of the stock, and general relief. Application for a preliminary injunction was granted on. condition of filing a bond of $2,000. The complainant decided not to file a bond, and the sale took place. At the time of the sale, which was conducted by Mr. Houston, complainant made a protest, and stated his claim and lien, and forbade the sale. C. H. Stone, son-in-law of Lucy Ann Hale, executrix and defendant, George W. Debevoise, executor and defendant, and Hugh Porter, attorney of the Hale estate, bid the property in, and organized a new company pending this suit, under the general railroad law (article 1, § 2; 1 How. Stat. § 3314), with $1,000,000 capital stock in shares of $100 each, all of which stock was issued to the executors, Mrs. Hale and Debevoise, defendants.

The defendants railroad company and trust company, who are the appellants, answered the bill. The executors, Mrs. Hale and George W. Debevoise (formerly president and superintendent of the railroad and secretary of the investment company), were brought in by publication, and made default. The case was tried in open court, and the relief prayed was granted, and the court decreed that, the bonds and stock being vested in the same persons, to wit, the said executors, the bonds were merged in the stock, in the view of equity, and considered as paid as against the complainant, and that said foreclosure was had in bad faith, and was also void for legal defects, viz., want of publication in the counties through which the railroad passes, not stating amount claimed to be due, nor page of record, nor record in any county except Oakland, nor filing with the proper officer, and that the time of the publication was two days short of the twelve weeks required by law. The court also decreed that the complainant’s claim was founded upon services rendered and property furnished which enhanced .the value of the security, and inured to the benefit of the mortgagees, and was, therefore, entitled to priority of payment. The court also decreed sequestration of the stock, property, things in action, and effects of the railroad company, and appointed James Houston receiver, with bond, and power to proceed against the Pontiac, Oxford & Northern Railroad for possession, or to file bill for same, and sell free from the lien of the mortgage, and with power to assess the stock and collect the amount remaining due in order to pay complainant’s judgment or any other debts. The railroad company and trust company appeal.

The first question presented is whether the bonds secured merged in the stock. It is plain that, if it is to be held that there was a merger, the holding must be based, not upon the intent of the parties, but upon some rule of law by which a merger takes place under the circumstances presented, though the parties do not intend or desire it. From the first Hale and his successors have assumed the relation to the railroad company of stockholders, and the railroad company was treated as a distinct entity, and as such made the construction contract with the construction company, another distinct entity. The bonds were issued in pursuance of the terms of this contract, and were secured by mortgage. Whatever may have been the motive of the parties, it is evident that the purpose was to maintain two corporations, separate and distinct, and that Mr. Hale, as the holder of the bonds, should have the same right as would a stranger to the railroad company. That there may not be circumstances which justify courts in treating the formation of a construction company by the stockholders of a railroad company, and the making of a contract with such construetion company which practically vests the railroad franchise, stock, and property in such company, as a fraud, we by no means intimate. On the contrary, if a creditor of the railroad company, who became such in ignorance of the fact, were before this court, we should hesitate long before denying relief against the manipulators of this scheme. But, as before stated, merger in this case must be based upon some ground other than the intent of the parties to the transaction. It may' be stated as a general rule that merger does not take place when the interest of the mortgagee does not require it, and when there is no intent that there should be a merger, and when there is none in fact by a union in the same person of the title and mortgage interest. Snyder v. Snyder, 6 Mich. 470; Cook v. Foster, 96 Mich. 610; Cooper v. Bigly, 13 Mich. 478. If there be any apparent exception to this rule, it must be when a mortgagee is seeking to avoid merger for the purpose of defeating one who has superior equities, and as to whom it would be a fraud to assert the continued existence of such mortgage. 'Unfortunately, the complainant does not occupy that position to these mortgagees. Complainant testifies that he himself acted for the railroad company in making the contract with the construction company by which it was agreed to give $15,000 per mile in bonds and a like amount in stock for construction; that he in fact negotiated the transaction. By the terms of the agreement, the stock was to be issued as the building of the road progressed. It is the theory of complainant’s bill that this contract was, in effect, a contract by Hale with himself; yet complainant participated in and negotiated the contract which in form recognized the rights of Hale as a stockholder in the two companies as distinct.

It is claimed that the foreclosure was had in bad faith, for the purpose of cutting off the complainant; but, if the lien of the mortgagee was prior to any right of levy of complainant, it is difficult to conceive how a lawful sale impaired his right. A levy and sale by him would, it is true, have enabled him to take the property subject to the mortgage, but foreclosure might have been had at any time.

It is further contended that the foreclosure sale is invalid, for the reason that the statute relating to the foreclosure of mortgages of real property was not followed. 1 How. Stat. § 3351, authorizes the execution of mortgages by railroad companies with such power contained therein for the sale of the property mortgaged or deeded as shall, in the judgment of the board, be found expedient; and such power and sale in accordance therewith shall be valid. The record shows that the power contained in the mortgage was followed. The special provision above quoted operates to except railroad mortgages from the general statute relating to the foreclosure of real-estate mortgages. See Hammock v. Trust Co., 105 U. S. 77.

Should this stock in the hands of the executors of Hale be held subject to assessment for any unpaid portion thereof ? As we have seen, the contract between the railroad company and the construction company was negotiated on behalf of the railroad company (in part, at least) by complainant. In Ten Eyck v. Railroad Co., 74 Mich. 226 (16 Am. St. Rep. 633), the right of this plaintiff to recover was rested, in part, upon the proposition that the stockholders, who were also directors, could not question the regularity of the plaintiff’s employment, for the reason that they could not be heard to complain, as stockholders, of their own action as directors. If the same rule be applied to complainant in this proceeding, it would seem to follow that he, having participated in the issue of the stock of the corporation as full-paid stock, should not now be heard to complain of this action, or to assert that it was a fraud upon creditors. In Arkansas, etc., Canal Co. v. Farmers’ Loan & Trust Co., 13 Colo. 587, it was held that, where all the shareholders of a corporation participate in issuing fictitious stock as full-paid, the corporation cannot thereafter complain.

It is said that, as the shareholders who would be assessed have made default, and have not appealed from the decree, they cannot be heard to complain in this court. Service was had by publication, and they are before the court only to the extent that property interests are involved.

It cannot be held that this is a preferred lien, entitling the complainant to priority over the mortgage. The mortgage was given with the approval of the complainant, and his services were rendered with full knowledge of its execution. When a railway passes into the hands of a receiver, and thereby the receipts, which would, it is to be assumed, have been devoted to the payment of operating expenses, are devoted to the payment of interest on a bonded debt, the courts have, in some instances, preferred claims of creditors whose demands are for operating the road, and which have arisen within six months prior to the receivership; but this is the limit of the rule, and preference in favor of creditors whose claims accrued in construction is not allowed. Porter v. Steel Co., 120 U. S. 671; Jones, Corp. Bonds, § 589. Whatever of seeming hardship there may be in the complainant’s present situation is traceable, as we have seen, to his own assent to the transactions which have culminated in subordinating his claim to that of the bondholders.

The decree will be reversed, and the bill dismissed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    THOMPSON v. CITY OF DETROIT.

      1., Taxes — Street Improvements — Charter Provisions — Invalid Tax.
    Chapter 11, § 37, of the Detroit charter provided that, in cases of street' improvements, the board of assessors should, after correction of the assessment roll, “sign the same, and report it to the common council,” and that the council might then confirm the same. Held, that the council had no authority to confirm an unsigned roll.
    2. Same — Lien Prima Facie Valid — Involuntary Payment.
    The charter further provided that, after confirmation, such assessment should constitute a lien upon the real estate until paid, and should be collected as authorized by law. Plaintiff paid under protest, and after demand, a tax for a street improvement which was invalid because of the assessors’ failure to sign the assessment roll before its confirmation by the common council. Held, that the payment, being necessary to relieve the property from a prima facie valid lien, could be recovered back as involuntary, although no proceedings for a sale of the land had been instituted.
    3. Same — Statutory Protest.
    Section 53 of the tax law of 1893 (Act No. 206), authorizing the payment of taxes under protest, does not apply to assessments for local improvements, but relates to general taxes only.
    Error to Wayne; Hosmer, J.
    Submitted June 17, 1897.
    Decided October 1, 1897.

      Assumpsit by William G. Thompson and another, trustees of the estate of Edmund A. Brush, deceased, against the city of Detroit, to recover taxes paid under protest. Erom a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Arthur Webster, for appellant.

      Henry M. Duffield and Divie B. Duffield, for appellees.
   Long, C. J.

Plaintiffs are the trustees of the Edmund A. Brush estate, and bring this action to recover from the defendant the amount of $1,199.55 paid for taxes under protest. The tax or assessment was upon certain real estate of the Brush estate, for the opening and widening of Randolph street, in the city of Detroit. Plaintiffs recovered in the court below.

There are but two questions involved:

1. The validity of the tax.
2. Whether the payment was voluntary.

There is no dispute of fact. It appears that, at the time the assessment roll was prepared, Theodore Rentz, Fred E. Farnsworth, and William T. Dust were assessors, and caused the roll to be prepared. On July 22, 1892, the roll, without the signatures of the assessors, or any of them, and without any certificate whatever, was transmitted to the common council for confirmation, and on July 26th an order of confirmation was entered on the records of the council. On the same day a certificate was added to the roll, and signed by the assessors. It was held by the court below that the council acted without authority in confirming the roll before a certificate of the assessors was attached; that the certificate subsequently made by the assessors on July 26th was insufficient, because it did not recite the different steps taken by the assessors in making the assessment. This certificate is as follows: “We hereby approve this roll, and certify to its correctness.” This was the only certificate ever attached to the roll; the only writing accompanying the roll as it was transmitted to the council being a letter from Theodore Rentz, president of the board of assessors.

The charter of the city of Detroit provides for the appointment by the common council of a board of assessors, consisting of three persons. In cases of street improvements, the board is to make out a list of lots or parcels of real estate constituting a local assessment district, with names of the owners, and the length of the lot fronting directly on the improvement, and assess the cost and expenses of the work chargeable upon the property, etc. When the assessment roll is completed, the board is to give notice, by at least five publications in the city paper, that such roll is completed, and will remain in its office 12 days from the first publication of such notice, for the inspection of all concerned. It is further provided that:

“At the expiration of said 12 days, said board shall, after any needful revision and correction of such roll, sign the same, and report it to the common council. Said council may then confirm the same, or may, when it shall deem necessary, refer the same back to said board for further revision or corrections. And when the same shall be corrected to the satisfaction of said council, it shall by resolution confirm the same. After such confirmation, such assessment shall constitute a lien until paid upon said lots or parcels of real estate, and shall be collected in such manner as may be authorized by law.” Chapter 11, § 3?, Charter of 1893.

Whether or not, the board of assessors made the proper roll does not appear from the record before us. It does appear that the roll had not been signed as provided by the charter at the time it was placed in the hands of the common council. This was a necessary prerequisite to a proper and legal assessment roll. The council had no method of judging what had been done by the assessors, except by this certificate. That body was to examine the roll made and signed by the assessors, and, if found correct, approve it; and, when so approved, the taxes were to become a lien. This roll, therefore, had no effect as an assessment roll, and the court below was correct in so holding. Warren v. City of Grand Haven, 30 Mich. 24.

Under the charter of the city, the’ assessment for such street openings becomes a lien upon the land after the expiration of 30 days from the time of the confirmation of the roll by the common council, or at least it becomes a lien when the roll is placed in the hands of the receiver of taxes. The contention of counsel for the plaintiffs is that, this assessment having become a lien at the time it was paid, the payment cannot be said to be voluntary. The •court was of this opinion, and found in' favor of plaintiffs. The claim of counsel for defendant is that the coercion or duress which will render a payment of taxes involuntary must, in general, consist of some actual or threatened exercise of power possessed or believed to be possessed by the.party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief, except by making payment, and that no such fact exists in the present case.

Judge Cooley, in his work on Taxation (page 805), lays down the rule as follows:

“(1) The tax must have been illegal and void, and not merely irregular; (2) it must have been paid under compulsion, or the legal equivalent; (3) it must have been paid over by the collecting officer, and have been received to the use of the municipality.”

Judge Cooley adds :

“Where the statute gives an action, it may not be necessary that all these conditions should concur, since the statute may dispense with one or more of them.”

Section 53, Act No. 206, Pub. Acts 1893, provides, as to the payment of general taxes under protest, that:

‘ ‘ He may pay any tax, whether levied on personal or real property, under protest to the treasurer, specifying at the time in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may within 30 days, and not afterwards, sue the township for the amount paid, and recover, if the tax is shown to be illegal for the reason specified in such protest.”

But that act has reference to the assessment and collection of the general taxes, and not to special assessments, as in the present case. In fact, the protest does not recite the grounds upon which is based the claim that the tax is illegal; so that the question must be determined upon general principles, instead of any reliance upon the statute.

The plaintiffs put in evidence the files in the case of Ling v. City of Detroit, from which it appeared that Ling, who had been assessed for the same improvement, had filed a bill in the Wayne circuit court, in chancery, and a decree had been made in the case holding the assessment wholly void. That decree has never been appealed from, so far as shown by this record.- It also appears in the present case that the assessment is void. The city, therefore, has in its possession the moneys paid by plaintiffs, which should be repaid, unless by the strict rules of law no recovery can be permitted.

Can one relieve his land from the lien of a tax or assessment against it by making payment before any attempt to make sale? It appears that on August 9, 1892, a notice was sent by the receiver of taxes to the plaintiffs, stating that the assessment had been made upon the property, and, if not paid on or before September 9th, 5 per cent, would be added, and thereafter such tax would bear 10 per cent, per annum until paid. The assessment was paid September 9th. While the tax was not paid under threat of levy upon personal property, yet we think that, it having been made for the purpose of relieving the real estate of the lien which had attached by virtue of the provisions of the charter, it was equivalent to a payment under compulsion. Prima facie, it was a valid lien upon the land. Counsel for defendant cites the case of Union Ins. Co. v. City of Allegheny, 101 Pa. St. 250, holding that, even after the land has been advertised for sale, the payment of the tax must be held to be voluntary, because the plaintiff has a remedy by injunction to prevent the sale. This is not the rule in this State. It was held in Nickodemus v. City of East Saginaw, 25 Mich. 458, that the authorities do not compel the remedy by injunction. In Atwell v. Zeluff, 26 Mich. 118, the action was brought against Zeluff, who was supervisor, the cause of action being the issue by Zeluff of a tax warrant for the collection of ditch taxes against the plaintiff. There was nothing in the record showing that any levy was threatened, but a demand of payment was made. It was said:

“In regard to the payment made without levy on his goods, it was objected that the payment, being without protest, was voluntary. This question was somewhat discussed, but not actually decided, in First Nat. Bank v. Watkins, 21 Mich. 483. Where an officer demands a sum of money under a warrant directing him to enforce it, the party of whom he demands it may fairly assume that, if he seeks to act under the process at all, he will make it effectual. The demand itself is equivalent to a service of the writ on the person. Any payment is to be regarded as involuntary which is made under a claim involving the use of force as an alternative, as the party of whom it is demanded cannot be compelled or expected to await actual force, and cannot be held to expect that an officer will desist after once making demand.”

In the present case a demand was not only made for the payment, but the plaintiffs, in making payment, did so under protest. By this protest the receiver of taxes must have understood that the taxes were regarded as illegal, and that suit would be instituted to compel the refunding of them. In Whitney v. City of Port Huron, 88 Mich. 270 (26 Am. St. Rep. 291), it appeared that a special assessment had been laid upon plaintiff’s real property, and the city treasurer had advertised it for sale. It was said:

“She had the right to presume that he would proceed with the sale. The fact that the sale would have conveyed no title to the purchaser, on account of the illegality of the tax, or that she could have removed the cloud upon her title caused by such sale by legal proceedings, had no bearing upon her right to pay the tax under protest, and thereby stop the sale. Nor was it any the less an involuntary payment, under the law. * * * If the citizen’s property is threatened with seizure under a tax warrant, or his real estate is advertised for sale to collect delinquent taxes, he is, equally in both cases, entitled to free his property by a payment of the tax under protest, and such payment will not be considered voluntary.”

In the present case the land had not been advertised for sale, but under the charter the city had the right to make the sale for the collection of the assessment, and presumably would have done so, had the tax not been paid. As was held in First Nat. Bank v. Watkins, supra, and Atwell v. Zeluff, supra, the party making payment may assume that .he officer will execute the process on which he makes the demand. The case of Whitney v. City of Port Huron, supra, was rightly decided; and I can see no good reason for holding that the plaintiffs cannot recover in this case, under the rule there stated. There was a cloud upon the title to the land, demand had been made for the payment of the tax, and the presumption is that the land would be advertised and sold if the tax was not paid. Plaintiffs paid under, protest. They were not bound to wait until actual advertisement and sale before payment. There is a dictum in City of Detroit v. Martin, 34 Mich. 170 (22 Am. Rep. 512), to the effect that, where the sale of the real estate assessed would not constitute a cloud upon the title, payment made to relieve it of the tax would be voluntary. But that question was not there involved. In the case of Weston v. Luce Co., 102 Mich. 533, the subject was again referred to. It was said, “Whether this rule should extend to cases of payment to relieve land from a lien for taxes need not be discussed, as that question is not involved.”

The present case cannot be distinguished in principle from Whitney v. City of Port Huron, supra. We think the court below was not in error in holding that the plaintiffs should recover. That judgment will be affirmed.

The other Justices concurred.


text:
    PALMER v. PALMER.
    1. Equity Pleading — Specific Performance —Amendments on Appeal.
    The fact that the complainant in a bill for the specific performance of a contract for the conveyance of land failed to aver a willingness to pay a mortgage upon the land, to which payment he was bound by the contract sought to be enforced, will not control the decision upon an appeal from a decree of the circuit judge wholly denying to the complainant the relief to which, but for the omission, he would have been entitled, since an amendment may be allowed in the Supreme Court to remedy the defect.
    2. Same — Modification of Decree — Costs.
    Where complainant in a bill for specific performance was permitted in the Supreme Court to amend his pleading by supplying an averment of willingness to fulfill the conditions of the contract, for the want of which averment the bill was dismissed by the circuit judge, and was granted conditionally the relief sought, he was allowed costs of the appellate court, but not of the court below.
    Appeal from St. Clair; Vance, J.
    Submitted June 18, 1897.
    Decided October 1, 1897.
    Bill by Miles W. Palmer against James Palmer, administrator of the estate of John Palmer, deceased, and others, for the specific performance of a land contract. Prom a decree for defendants, complainant appeals.
    Modified.

      Atkinson & Wolcott, for complainant.

      Henry P Penney, for defendants.
   Montgomery, J.

This is a bill for specific performance. On the 12th day of July, 1881, complainant was living at the home of his father, John Palmer, and on that day a bond for a deed was made, running to complainant. The property was misdescribed in this instrument, and both by the testimony of the facts appearing at the time and by evidence of subsequent dealings it appears that the contract did not express in full the agreement between the parties. The real agreement was that complainant should remain at home during his father’s lifetime, and work the farm, consisting of the land in question and another 40 acres. And while the testimony is not very explicit as to what should be done with the proceeds of the crops from the 40 in question, we incline to agree with the circuit judge that it was not intended that these should go to the father. It was agreed, however, that the complainant should pay off a mortgage of $400, covering the entire 80, and running to Caroline Ferguson. The 40 intended to be described was the S. W. £ of the S. W. i of section 22, township 7 N., of range 14 E. By a subsequent agreement, the deceased and his wife joined in a mortgage of $850, covering the entire 80 acres, and running to one Brabb, the complainant assenting thereto, and agreeing to pay so much of the same as was used to pay off the Ferguson mortgage; i. e., $400. After the death of John Palmer, which occurred in January, 189.1, defendant James was appointed administrator. A claim was allowed in favor of defendant Joseph, together with one or two other small claims, and proceedings were taken to sell the land. Pending the sale an appeal was taken by complainant from the allowance of Joseph’s claim, but the sale took place, and defendant Popple well became purchaser. We are satisfied that defendant Popplewell had knowledge of complainant’s equities.

The complainant, after the contract was made, built a barn on the property, and continued to live at home during his father’s lifetime with the exception of one year, and we are not satisfied that either the decedent or the complainant understood that the contract was forfeited by this absence. Complainant’s brothers were left in charge of the farm, and complainant did not wholly relinquish his charge of it. The crop apparently went to the support of the family. Prom time to time complainant paid his interest on the Brabb mortgage, and made some effort to have the mortgage divided, so that he could pay his portion; but this the mortgagee refused to do. The matter ran along, and the mortgage was not paid, but has, since the death of John Palmer, been foreclosed, evidently in the interests of Mrs. Palmer, and the property bid in by Popplewell:

We are satisfied that complainant has substantially performed his contract with the exception of paying off his portion of the mortgage, and that it would be manifestly inequitable to deny him relief wholly, unless there is some insuperable objection to it. This case is incumbered with a history of other transactions between complainant and his mother, which need not be discussed, as they do not affect complainant’s right to the 40 in question. Complainant did not, by his bill, offer to pay the mortgage. Should this wholly preclude relief ? We think not. The court has power to permit an amendment at the hearing. Butler v. Railroad Co., 85 Mich. 246 (24 Am. St. Rep. 84). As a condition to relief, the complainant will be required to refund to defendant the amount paid by him of the original sum secured by the Ferguson mortgage, and, as the bill contained no offer to do this, we think the complainant should not recover costs in the court below.

Decree will be entered in this court for specific performance on payment into court of the amount due on the mortgage, with interest at 8 per cent., less costs of this court, which complainant will be allowed to offset against defendant’s claim.

The other Justices concurred.


author: Grant, J.

text:
    WHALEN v. MICHIGAN CENTRAL RAILROAD CO.

    1. Railroad Companies — Negligence of Fellow-Servant.
    The failure of the brakeman or conductor of a passenger train equipped with air brakes, in the use ©f which they have been properly instructed, to pull the automatic cord by which the brakes are operated in response to the engineer’s signal, is, as to the engineer, the negligence of a fellow-servant, for which the railroad company is not liable.
    2. Same — Conduct of Employes — Oral Instructions.
    It is not essential, in order to relieve the company from liability in such case, that the instructions as to the use of-the automatic cord should have been embodied in the company’s printed rules; it is sufficient if the negligent employés were informed of their duties by oral instruction.
    3. Same — Rules and Regulations — Sufficiency.
    In an action against a railroad company by a locomotive engineer for injuries sustained in a collision, it was error to submit to the jury the question whether the rules adopted by the defendant for the control and management of its trains were reasonably sufficient for the protection of employés, where there was no evidence of carelessness in the formulation of the rules, nor of prior accident attending their operation, nor of more effective regulations adopted by other roads.
    4. Same — Injury to Employé — Unaccountable Accident — Assumption of Risk.
    Plaintiff, a locomotive engineer in the employ of defendant, was in charge of a west-bound special of 11 coaches. Thirty minutes in advance was another special. While the first train was standing on the tracks at the J. depot, the second crashed into the rear of it, and plaintiff was injured. It appeared that the semaphore east of the J. depot indicated that the tracks at the station were occupied, and that plaintiff, upon seeing the signal, attempted by means of the air brakes to stop his train, but that the brakes, for some unexpected and unaccountable reason, failed to work. Plaintiff was an experienced engineer; was familiar with the rules and regulations of the company; knew that they required him to approach the station at J. upon the presumption that the track would be occupied; knew the location of the semaphore, and its use; and knew that the air brakes were ordinarily sufficient to stop the train. Neither he nor any one else had made complaint. Held, that he assumed the risk.
    5. Same — Location op Semaphore — Ordinary Care.
    The semaphore in question had been placed by men of experience in railroading, and was visible for more than half a mile. Its warning would have been effective to prevent the accident had it not been for the unexpected failure of the air brakes. Plaintiff testified that, if it had been located about a mile farther east, he could have stopped his train without the brakes in time to avoid the collision. Held, that it was error to submit to the jury, upon this evidence, the question of defendant’s negligence in locating the signal; it not being bound to guard against the possibility of unusual accident.
    6. Same — Track Rules.
    Failure of the railroad company to notify the engineer that the* advance train stood on the track at the station would not render it liable to him for the injury, in view of a rule of the company requiring him to act on the supposition that another train would be met, or that the main track would be occupied at the station.
    7. Same — Speed op Trains.
    One of the rules adopted by the railroad company for the guidance of engineers read as follows: “All passenger trains will use four minutes between east switch at J. Junction and J.” The preceding rule stated that signals had been erected east and west of J., and east and west of J. Junction, and directed that all trains should come to a full stop when a red signal was displayed, and not proceed until the signal had been changed. The succeeding rule declared that all trains approaching J. and J. Junction must be under full control, so as to be able to stop in case the track should from any cause be occupied, and that a sharp lookout must be kept for signals in approaching ■ such points. Held, that the rule as to time indicated the minimum, not the maximum, time which should be used between J. and J. Junction.
    Error to Washtenaw; Kinne, J.
    Submitted June 18, 1897.
    Decided October 1, 1897.

      Case by William Whalen against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff, a locomotive engineer in the employ of the defendant, left Detroit for Chicago on the morning of October 13, 1893, in charge of a special passenger train of 11 coaches. Thirty minutes in advance of this was another special train, of about the same number. The first train had stopped at the Jackson depot 20 minutes for breakfast. The second train crashed into the rear of the other, killing and injuring many passengers. Plaintiff, finding himself unable to stop his train by the application of the air brakes, jumped through the window of the cab, and was injured. This is an action of tort to recover damages for the injuries then received. The negligent acts charged are:
    1. The negligent and careless construction of the angle cock which constitutes a part of the air-brake system.
    2. Negligence in permitting it to get out of repair.
    3. The negligent and careless construction of the conductor’s valve, cords, and devices forming part of the system of air brakes.
    4. Negligence in permitting them to get out of repair.
    5. The employment of incompetent conductor, baggageman, and brakemen.
    6. Negligence in locating and painting its semaphore placed to the east of the Jackson depot.
    7. Negligence in permitting its track to become obstructed with the engine and cars in front cf said depot.
    8. Failure to provide and enforce reasonable and suitable rules fpr the governance of its servants in the use of said brakes.
    9. Failure to give plaintiff proper and sufficient notice and warning that the track was so occupied and obstructed.
    Plaintiff recovered a verdict and judgment.
    The instructions given to plaintiff were to run to Jackson regardless of all freight trains. The train made only one stop (at Ypsilanti for water) between Detroit and Jackson. It was supplied with air brakes, which are controlled by the engineer. Each car was also supplied with an apparatus known as the “conductor’s valve,” which is operated by the pulling of a cord which opens the yalve ■and allows the air to escape, thus setting the brakes. If the engineer whistles for brakes, it is the duty of the conductor and other trainmen- to pull this cord so as to set the brakes. If the air is shut off from the engine, it prevents the setting of the brakes back of the shut-off. By pulling the conductor’s cord the brakes can be set. Rule 77 of the •defendant company requires that each engineer must test the air brake at least one mile before reaching the regular stops, and, in case the machinery does not hold, must at once signal for brakes. Plaintiff testified that he made this test at Wayne, Ypsilanti, Ann Arbor, Dexter, and Jackson Junction, which is about a mile and a half east of Jackson, and that these tests were all satisfactory. After passing Jackson Junction he made another, which was not satisfactory. He at once whistled for brakes. About the same time his fireman discovered that the semaphore was against them, which notified them that the track ahead was occupied, and that they must stop. This semaphore was operated by electricity from Jackson station; was a thin iron plate, about 2 feet long and 10 inches wide, set upon a pole about 30 feet high, with a round hole in •each end of the plate. The conductor heard the whistle for brakes, and immediately pulled the automatic cord in •one of the cars, but said it had no effect on the train. He then went to the platform to look ahead. He testified that he was then about 15 car lengths from the semaphore. The engineer again- whistled for brakes. The •conductor then went into another car and pulled the cord, but testified that he got no effect. Meanwhile the engineer reversed his engine and let sand upon the rails, but did not succeed in stopping the train. The semaphore was located 925 feet east of the east end of the depot, and was 470 feet east of the rear of the advance train. Prom the semaphore to Elm avenue is 3,512 feet. It was in the vicinity of this avenue that the plaintiff discovered that for some reason the air brakes did not work, that the semaphore was turned against him, and whistled for brakes.
    The following rules were adopted for the guidance of engineers:

      “Rule 10. All trains approaching stations where semaphores are in use must be under full control, so as to be able to stop before reaching the semaphore if the arm should be extended, or a red light shown.

      “Rule 11. When the semaphore arm is extended by day, or red light shown at night, all trains will come to a full stop, and not proceed until arm has been lowered or white light shown, except under protection of flag, as follows : In case any train shall have been stopped by semaphore, such train may and should proceed beyond the semaphore under protection of flag. In such cases a flagman must be sent in advance of such train in a sufficient distance to protect it against any train or obstruction upon main track, or any train or engine working upon main track under protection of semaphore. The conductors of all trains stopped by semaphore must at once take measures to protect the rear of their trains as per rule 46.”

      “Rule 78. Engineers of trains moved by special order, and of all special, extra, and working trains, will approach stations with extreme caution, upon the supposition that another train will be met, or that- the main track will be occupied, and will carefully appro.ach stations at which they ought to meet or pass trains, and, on approaching those at which the train is to stop, shut off steam early enough so that, by the application of brakes to train, the speed will be reduced, and train under full control until brought to a full stop. No train will run over any portion of the road at a greater rate of speed than the order calls for.”
    “ Rule 188. Electric signals have been erected east and west of Jackson Junction, east and west of Jackson passenger station on main line, west of Jackson Junction on air line, west and north of Jackson and Saginaw and Grand Rapids branches at Cooper, Mechanic, and north of Ganson street. When the main tracks are obstructed between the signals, a red board will be shown by day, and a red light by night. When the tracks are clear, nothing will be shown by day, but a white light will be shown by night. All trains will come to a full stop when a red board or red light is displayed, and not proceed until the signal has been changed.”
    “ühíZe 185. All trains approaching West Detroit, Junction Yard, South Yard, Ypsilanti, Dexter, Jackson Junction, Jackson, Niles, New Buffalo, Michigan Central Yard, Michigan City, Lake, and Kensington must be under full control, so as to be able to stop in case the main track should from any cause be occupied. A sharp lookout must be kept for signals in approaching above points.”
    A part of rule 134 reads as follows:
    “All passenger trains will use four minutes between east switch at Jackson Junction and Jackson.”
    The court eliminated from the consideration of the jury most of the grounds of negligence alleged in the declaration, by instructing them that there was no evidence to support them. The theory upon which the case was left to the jury is shown in the following excerpt from the charge:
    ‘ ‘ For the purpose of this case, it may be conceded that the failure of the air brak.es to perform their work was the cause of this accident, and that the cause of such failure rests in doubt and obscurity; but nevertheless there is presented to you by the evidence this more important question, whether or not the contingency and possibility of such failure of the air brakes to work did not, in the exercise of ordinary care and prudence, demand of the railroad company the use and exercise of other and further precautions than were taken in this case, in view of the fact that such an emergency might at any moment arise, and in this case did actually exist. * * * If the jury shall find from the evidence in this case that, notwithstanding the displacement of the angle cock upon the plaintiff’s engine, if the defendant had placed its semaphore in such a position as to give the plaintiff reasonable notice of the danger, or if the defendant had informed him at Grass Lake that the train would be on the main track when he arrived at Jackson, he would have been able to have prevented the accident, then the defendant was negligent. It was the duty of the defendant to formulate and promulgate such rules and regulations for the management and control of its trains, which, if properly observed, would afford reasonable protection to the plaintiff; and whether or not the defendant in this case has been guilty of negligence is a question for the jury. * * * If the jury believe from the evidence in this case that by the exercise of reasonable diligence the defendant would have known that the angle cock upon its engine was liable to get turned and out of place, or that the machinery called the ‘ air brakes ’ might become out of repair, and unserviceable in the stopping of its train, then it was the duty of the defendant to have so placed its semaphore and located its signals, or to have formulated and enforced such rules for the management of its business, as to have enabled the plaintiff, after having received notice of the danger, to have stopped his train, even though the air brakes were out of repair and unserviceable, before reaching the point of danger.”
    Plaintiff had been in the employ of the defendant for 18 years, during 7 of which he had been a locomotive engineer. His principal runs had been on the Middle Division, extending between Jackson and Michigan City, on both the Main and Air Lines. His counsel urge that there is testimony tending to show that he was not familiar with the yard at Jackson, and the location of the semaphore. The conclusive testimony is otherwise. He acknowledged on cross-examination that he knew it was there, and that he knew what it was for. The system of signals is as follows:
    “At each telegraph station along the line there was located what is called an ‘order board;’ being a metal disk with two holes through it, giving it the appearance of a pair of spectacles, suspended in front of the telegraph office. When this was displayed at right angles with the track, no train was allowed to pass it until it was turned to a position parallel with the tracks. The order board was operated by the man in charge of the telegraph station, but under the direction, always, of the train dispatcher. When a train passed Ypsilanti, for example, the order board was displayed, behind it, at the danger position, allowing no trains to pass in the same direction until the preceding train had passed Geddes, the next station west of Ypsilanti. The order board would then be taken in by order of- the dispatcher, and the following train allowed to procéed to Geddes, and so on. At division points, like Jackson, where a large number of trains came in from different directions, semaphores were in use. Arriving at Jackson, the conductor had orders to report to the dispatcher that his train was there, and the semaphore up behind him. The order board would then be taken in at Grass Lake, the next station east of Jackson, and following trains permitted to proceed to the semaphore at Jackson. This system of operating the telegraph signals was not communicated to the engineers. The rules of the company informed the engineers that they should never pass an order board nor a semaphore when they stood at the danger position, and it was considered wise by the operating officers not to inform the engineers further as to the use of the telegraph signals. This semaphore east of the depot at Jackson was so constructed that, if anything happened to the electrical apparatus by which it was operated, it would fall automatically to the danger position, and hold all trains.”
    The force of the collision was such that the tender was thrown across the track, and the baggage car lay at right angles with it, tipped at an angle of about 45 degrees. An examination after the accident disclosed the fact that the angle cock at the rear end of the tender was turned so as to cut off communication between the engine and the cars, and prevent the passage of air from the pump to the auxiliaries under the cars. When or by what means this angle cock was turned is unknown. Plaintiff testified that, as the train approached the yard at Jackson, it was running about 40 to 45 miles an hour; that, by applying the test east of Jackson Junction, he had reduced the speed to 25 miles an hour; that he had shut off steam east of the junction; that if he had known of the condition of things, and the semaphore had been located far enough east so that he could have seen it when opposite Mr. Casnir’s office, he could have stopped his train without the brakes in time to avoid the.collision; and that the semaphore would then have been “very near'half a mile ” farther east. By actual measurement, it would have been 4,647 feet farther east, and 5,572 feet east of the east end of the depot. A careful and minute inspection of the pipes and valves was made immediately after the accident by experienced men. The hose on the engine and tender was split open in order to ascertain if there was any obstruction in it. No. obstruction was found, and the engineer’s brake valve was in perfect order. The brakes on the train were all set tight, and had to be released before the cars could be moved. Eight cars of the train were continued on the journey to Chicago, and the brakes upon them worked perfectly. "We have, then, this singular situation: Machinery is in perfect working order about three minutes before an accident, and found in perfect condition immediately after.

      JohnF. Lawrence (James A. Parkinson, of counsel), for appellant.

      A. J. Sawyer and Richard Price, for appellee.

       Rehearing denied January 25, 1898.

   Grant, J.

(after stating the facts). There is nothing in the record to indicate that the trainmen were not properly instructed in the use of the automatic conductor’s cord when the engineer whistled for brakes. The law does not require that all the minute instructions in regard to the running of trains shall be printed for the use of its employés. If the trainmen whose duty it was to pull this cord in case of emergency were properly instructed orally as to its use, this was sufficient. Every employe who was examined upon this point testified that he was instructed in its use. If, therefore, the brakeman or conductor failed to perform this duty when plaintiff whistled for brakes, this was the negligence of a fellow-servant, for which defendant is not liable. The risk of such negligence is one which he assumed. As is well stated in the brief of defendant: “It might as well be •said that the defendant should print a rule telling a brakeman how to turn a hand brake, or how to couple two cars together. It is part of their training, and need not be printed in any rule.”

Plaintiff has failed to show that the printed rules and regulations adopted by the defendant for the management of its trains were not reasonably sufficient. They were adopted by men skilled and experienced in railroading, and after years of experience. They had proved sufficient prior to this accident. The defendant had for several months been running special trains under this system to and from the Columbian Exposition at Chicago, and it had proved effective, not an accident having occurred before. And now, when an accident has occurred in a manner wholly unaccountable, a jury is permitted to speculate and find culpable negligence upon the theory that the defendant might have avoided the accident by the adoption and publication of some other rules. There is no conflict of evidence, and therefore no question for the jury. Bailey, Mast. Liab. 75. There is no evidence that any other railroad has adopted other regulations found to be more effective. Slater v. Jewett, 85 N. Y. 61. In that case the court say of the rules adopted, “They had been in operation several years before .the disaster, and no accident had ever taken place in the use of them.”

Plaintiff was an experienced engineer; was entirely familiar with the rules and regulations of the company, and with the signals adopted for his own protection, and the protection of passengers and the property of the defendant. He knew the location of the semaphore at Jackson, the method and purpose of its use, that he was liable to find it turned against him, that he should approach it upon the supposition that it would be so turned, and that the track at Jackson station would be occupied. He also knew that the air brake under his control was sufficient to stop the train, and that, if this failed, the automatic or conductor’s valve was usually sufficient for the purpose. Neither he nor any one else made complaint. He therefore assumed the risk of the unexpected, unusual, unexplained, and unaccountable failure of the air brakes to work. Illinois Cent. R. Co. v. Neer, 26 Ill. App. 356.

Defendant equipped the train with all the tools, machinery, and appliances which experience and skill had shown to be essential to safety. It had employed competent men, and properly instructed them in the use of these appliances, which had proved almost universally sufficient. They proved sufficient in this case until within three to five minutes of the failure of the braking apparatus to work. It is conceded by the plaintiff in his testimony, and by his counsel in their briefs, that, if the apparatus had operated, the train would have been stopped, and the accident avoided. No similar failure of the air brakes to work is shown. One witness testified that he had once known of an angle cock being turned, but under what circumstances, and whether it was turned before the train started, or when in' motion, does not appear. This was no warning to defendant that the entire system of air brakes was likely to fail at any time. Robinson v. Wright & Co., 94 Mich. 283. So well has the system worked that Mr. Mathews, the rear brakeman, a witness for plaintiff, testified that during his employment by the defendant he had never been signaled for brakes by the engineer. He had been so employed for nearly seven months before the accident, and how much longer does not appear. If the turning of the angle cock prevented the operation of the brakes by the engineer from his engine, it is wholly unexplained how it became so turned. Various theories are advanced, which it is unnecessary to mention. There is no tangible evidence to support any theory. All we know is that the angle cock was found turned after the accident, and that it could not, according to the testimony, have been turned from three to five minutes before. No one advances any theory as to why the conductor’s valve failed to work and set the brakes. But the jury were left to infer negligence because, in their opinion and that of some of the witnesses, the semaphore should have been placed farther east, so as to guard against any possible failure of the brakes to work. It is easy to see how an accident might have been prevented, but the possibility of guarding against it is not culpable negligence. Schroeder v. Car Co., 56 Mich. 132; Redmond v. Lumber Co., 96 Mich. 545; Werbowlsky v. Railway Co., 86 Mich. 236 (24 Am. St. Rep. 120); Sjogren v. Hall, 53 Mich. 274. In Schroeder v. Car Co. this court said:

“When an injury has happened, it may be easy to point out, as it is now in this case, how some particular precaution would have given protection. But the fact of injury, and the possibility of guarding against it, do not necessarily make out a case of culpable negligence. Very few acts in life are done with such care to prevent accidents as would have been possible, and the law only requires of any one that degree of care and prudence which persons who are reasonably careful ordinarily observe. To require more would put everybody under restraints in the management of his business and in his dealings with others which would be more hurtful in the embarrassments they would cause than beneficial in the protection they could give against injuries.”

Yet the learned circuit judge left it to the jury to decide whether it was not the duty of the defendant to guard against the possibility of accident by placing this semaphore at such a distance farther east as they might think would have enabled plaintiff to stop the train without the brakes. No complaint had ever been made of the location of this semaphore. It could be seen, and was in this instance, according to the testimony of plaintiff and. the fireman, seen by them, for more 'than half a mile. As already stated, this was the year of the Columbian Exposition at Chicago. - The defendant had been engaged in running many trains daily, and up to this time the semaphore had proved sufficient. It would in this instance have done so but for the unaccountable failure of a piece of machinery to operate. The semaphore had been placed by men of experience in railroading, who located it according to their best judgment. We see no justice in a rule which would permit a jury to find that it was not properly located. The instructions, if adopted, would abrogate the well-established rule stated by Mr. Bailey, as follows:

“It must be kept in mind that ordinary care, as to safety of appliances and premises, does not require that every possible contingency must be anticipated and guarded against, but only such contingencies as are likely to occur. A master is not bound to change his machinery in order to apply every new invention or supposed improvement in appliances, and he may even have in use a machine or appliance shown to be less safe than another in general use, without being liable to his servant for the consequences of the use of it. If the servant thinks proper to operate such a machine, it is at his own risk. All that he can require is that he shall not be deceived as to the degree of danger that he incurs.” Bailey, Mast. Liab. 18.

It is stated in plaintiff’s brief that he was notified at Grass Lake that the train ahead had left Jackson station. We find nothing in the record to justify this statement. Probably it is based upon the fact that he was not stopped at Grass Lake, but the signal there notified him to proceed. It did not, however, notify him that the train in advance had left the station. He proceeded with knowledge of rule 73, and that there was another signal which he might find against him at the junction, and he knew it was his duty to watch for it and heed it. If he acted upon the belief that the track was clear to the station, and ran his train accordingly, it may account for the accident. It is also urged in this connection that the defendant might have avoided the accident by notifying plaintiff that the advance train stood upon the track at the station. The reply to this is that his duty in the management of his train was the same a,s it would have been if he had had actual knowledge. Rule 73 told him that he must act “upon the supposition that another train will be met, or that the main track will be occupied.” Enright v. Railway Co., 93 Mich. 409.

It is claimed that the part of rule 134 above quoted required plaintiff to run from the east switch at Jackson Junction to Jackson within four minutes, — that is, that the time must not exceed four minutes, — and that this would require a speed of from 22 to 25 miles per hour. This rule must be construed in connection with the other rules, and, when all are considered, it is apparent that this is not a rule intended to hasten the movement of trains, but rather to delay them at this point, where there are many tracks, and many trains going and coming over the various divisions of the road. It is intended as a minimum limit of time, and leaves engineers to exercise their own judgment above it under the other rules.

Under this record, the court should have directed a verdict for the defendant.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    MANLEY v. KALAMAZOO CIRCUIT JUDGE.
    Equity Practice — Rehearings — Mandamus.
    Decree was entered against relator, without proofs, upon consent of his counsel. Subsequently he filed a petition with the circuit judge for a rehearing, asking that the decree be set aside, and that he be permitted to defend upon the merits. The petition, which was defective in that it was not accompanied by the certificate of counsel, as required by Chancery Rule No. 25, to the effect that they believed the decree erroneous in the particulars mentioned in the petition, was denied. Relator, although the lapse of time had not been such as to prevent the filing of a new petition, made application for mandamus to compel the circuit judge to set aside the decree and permit him to enter his defense. Held, that the peremptory writ should be denied, but without prejudice to the right to present the question anew, upon proper showing, to the circuit judge.

      Mandamus by Charles H. Manley, administrator of the estate of Elijah W. Morgan, deceased, to compel George M. Buck, circuit judge of Kalamazoo county, to set aside a decree.
    Submitted July 13, 1897.
    Writ denied without prejudice October 1, 1897.

      E. M. Irish (J. E. Lawrence, of counsel), for relator.

      N. H. Stewart, for respondent.
   Per Curiam.

Lucy C. Eames, individually and as administratrix of the estate of Lovett Eames, deceased, filed a bill against the relator, as administrator of the estate of Elijah W. Morgan, deceased, Otis C. Johnson, executor and trustee of the estate of Lucy W. S. Morgan, deceased, and Lucy D. S. Parker, individually and as executrix of the estate of Franklin Parker, deceased. The bill sets out that relator’s intestate, Elijah W. Morgan, was permitted by complainant to handle the assets of the estate of Lovett Eames, and claimed there was a large sum of money due from his estate to the estate of Eames. The defendants Johnson and Parker appeared, and demurred to the bill. "While these demurrers were pending, the relator caused his appearance to be entered by D. O. French, as solicitor. A few days later the solicitors of complainant entered an order dismissing the bill as to defendants Johnson and Parker, and almost immediately, without answer or other pleading from relator, a decree was entered against him amounting to $145,485.37. The decree was entered without proofs, and upon the consent of Mr. French.

Subsequently a petition was filed by the relator to vacate this decree and permit a defense to be made; setting up that the relator expected that the defendants Johnson and Parker would make the principal defense in the case, and that, while he employed Mr. French as' solicitor, he did not instruct him to make a particular defense to the case. It does not appear, except from the fact of the general employment of Mr. French, that he was authorized to consent to this decree; and we are strongly impressed with the view that, upon the practice being conformed to, an opportunity should be afforded the relator to enter into a defense on the merits. But attention is challenged to the fact that the.requirements of Chancery Rule No. 25 were not met in the application that was made to the circuit judge. There was no certificate of counsel such as is required by -that rule upon application for rehearing-; and while under the authority of Barnes v. Kent Circuit Judge, 97 Mich. 212, the lapse of time has not been such as to prevent a new application, we think the proper course is to deny the present application, without prejudice, and permit the question to be presented anew, upon proper showing, to the circuit judge.


text:
    WOLCOTT v. WOLCOTT.

    Husband and Wife — Extreme Cruelty — Separate Maintenance-Statutes.
    A husband who makes to his wife indecent and criminal proposals, is filthy in his habits about the house, inconsiderate of her tastes and enjoyment, neglectful of her in sickness, vile in his insinuations as to her relatives and friends, of • ungovernable temper, penurious, and unreasonable, and who-finally, upon her leaving home for a temporary visit to her son, sends out printed notices that she has left his bed and board, and forbidding all persons to extend credit to her on his account, is guilty of extreme cruelty, entitling her to a decree for separate maintenance upon petition filed under Act No. 243, Pub. Acts 1889, which provides that such a decree shall not be made unless, on the hearing, such a state of facts shall appear as would entitle the wife to a decree of divorce upon the grounds specified in the petition.
    Appeal from Jackson; Peck, J.
    Submitted February 10, 1897.
    Decided October 5, 1897.
    Petition by H. Annette Wolcott against Henry Levant Wolcott for separate maintenance. From a decree dismissing the petition, petitioner appeals.
    Reversed.

      Wilson & Cobb, for petitioner.

      Charles E. Snow (T. E. Barkworth, of counsel), for defendant.

       Rehearing denied November 28, 1897.

   Long, C. J.

This is a petition for separate maintenance. It is brought under Act No. 243, Pub. Acts 1889, which provides substantially that no decree shall be made in favor of the petitioner unless, on the hearing, such a state of facts shall appear as would entitle her, from her husband’s wrongful acts, to a decree of divorce upon the grounds specified in the petition, or unless such a state of facts set out in the petition shal\ be proved as shall make it appear that the respondent has deserted the petitioner, with intent to leave her without adequate means of support, without good and sufficient cause, etc. The ground upon which the petition is based is that the husband has been guilty of extreme cruelty towards the petitioner, etc. On the hearing, the court below denied the relief asked, and petitioner appeals.

The parties were married in the year-1861. There are two children, issue of this marriage, both boys, who have now reached man’s estate. The acts of cruelty set out in the petition are substantially that, very soon after the marriage, the defendant proposed to petitioner that she assist him in bringing about criminal intimacy with a young girl of 14 years of age, and upon' another occasion made the same proposition in reference to other girls; that he at other times made suggestions to the petitioner that she have criminal relations with an acquaintance of his, and, if she would, he could have such relations with the wife of this acquaintance; that later he made the same proposition in relation to the hired man, saying he could get the work done cheaper; that, upon her refusal to comply with his requests in this regard, he became angry and morose.

The bill further sets out that some 13 years ago petitioner was suffering from a uterine tumor; that an operation became necessary, and he sent her to stay with her mother while being so treated and cared for, though he knew the mother was old and feeble, and unfit to assume such care; that he was filthy in his habits about the house, and constantly annoyed her with such habits; that seven years ago she joined the church, when he became angry, and said the ministers were immoral, and that, when they called on the sisters, it was for immoral purposes; that he was angry with her for attending church, and, when she returned on one occasion, she found he had scattered ashes over the carpets and furniture, to annoy and vex her; that, during all the years they had lived together, he had done but little towards buying her clothing, although abundantly able to do so; that he was a close and penurious man, and of ungovernable temper, and would not speak to her for many weeks at a time; that he was cross, ugly, morose, and violent when their children interfered in her behalf, at one time biting the finger of one of the boys for interfering in her behalf; that these acts of cruelty continued from year to year; that in 1890 she went with him to Colorado, to settle the younger son there or in New Mexico in business; that, in the spring following, he came home, leaving her there without money for two years, where she kept house for her son, who was in poor circumstances; that, when she did return, her son paid the expenses of the journey; that the defendant acted cold and distant towards her, as if she were not welcome, after her return; that it had been understood that both petitioner and defendant were to take back to New Mexico a grandchild that had been left in their care; that, when the. time came to take the child back, he refused to go, but made no objection to petitioner’s going until the day before starting, when he told her, if she went, she could not come back; that she told him she was coming back, when she started; that, the next day after her arrival in New Mexico, she found that printed notices signed by the defendant had been received by various parties there, saying:

“My wife, Annette H. Wolcott, having left my bed and board without just provocation, I forbid all persons trusting or harboring her on my account. I will pay no bills of her contracting.”

The petition further sets up that, during all the time they had lived together, she had never become indebted on nis account, except for one pair of shoes, for which he refused to pay, and has never paid; that he objected to her visiting her sister, saying she was a woman of bad character, and, when she did visit her sister, he would say they had been off together for immoral purposes.

These are the general charges of cruel treatment. The petition avers that defendant is a man of considerable means, and worth, at least, $15,000. The defendant answered, and the answer contains a general denial of the matters set up in the petition. The proofs were taken in open court.

We have read the record with much care and some interest, as the charges contained in the petition, if substantiated, will entitle the petitioner to the relief asked. The fact that the testimony was taken in open court, where that court had the opportunity to see the witnesses, and Judge of their fairness, has great weight in determining the rights of the parties. Yet, giving this fact all the weight that is usual in such cases, we are not able to agree with the learned circuit judge. While the petitioner is not supported by other witnesses in relation to the immoral propositions made to her by the defendant (some of which, by their very nature, could be known only to her), except by her sister’s testimony in relation to one occasion when defendant made indecent proposals to her, yet the whole story is told in such a manner, bearing the evidences of veracity, that one is impressed with the truth of it. The defendant, when questioned on the trial in relation to these charges, contented himself with a simple denial, and in one instance shielded himself behind the statement, “ I do not remember.”

But, whatever may be said of these charges, the testimony of the petitioner is fully corroborated by the two sons and others, showing a long series of years of systematic cruelty by the husband, and long-suffering on the part of the wife, through his hard, selfish, and unbending will. Through all the years of their married life, of whatever the petitioner took pleasure in, it seemed the purpose of the defendant to deprive her. Her tastes and enjoyments were never considered. His judgment was to be paramount in all things, though they related to her individually. While he did not do personal violence to her, and gave her the actual necessities of life, yet it is about all that it can be said he refrained from in making her life miserable. That she should have endured tjbds. treatment this length of time is but one of the many instances of the endurance of women of sensitive and refined temperament, who suffer marital wrongs in silence, rather than expose their trouble to a criticising public. It was the proverbial “last straw” — the publishing of the notices, in which the defendant himself took the initial step — that convinced her of the uselessness of protecting him further, or of her own martyrdom. He does not pretend but that she was a faithful wife to him, a good housekeeper, and careful in her expenditures; and, from the sons’ fidelity to her, she must have been a good mother. Nothing, apparently, was needed on her part to meet his requirements, except to make her individuality a nullity. That she could not absolutely do, and hence his displeasure. We are satisfied that the petitioner should not be compelled to live in the same house with defendant, and is entitled to her separate maintenance.

The defendant is shown to be possessed of a farm of 170 acres, worth, according to his own estimation, $35 per acre; a house and two lots in Hanover; and personal property, moneys, and security amounting to several thousand dollars. In view of this, we think defendant should pay petitioner, for her support and maintenance separate and apart from him, the sum of $200 within 60 days from this date, and the sum of $200 per annum from that time, payable quarter-yearly, during her lifetime, or until the further order of the court, the same to be made a lien upon the farm and the home at Hanover. .

A decree will be entered in accordance with these views. Petitioner will recover her costs of both courts.

The other Justices concurred.