author: Cooley Ch. J. Campbell, J.

text:
    The People ex rel. Joseph Workman v. The Board of Education of Detroit.

      Bight of attending School: City of Detroit. An amendment to the general School Law in 1867, Session laws 1867, vol. 1, p. 42, provided that “all residents of any district shall have an equal right to attend any school therein, provided that this shall not prevent the grading oí schools according to the intellectual progress of the pupils, to he taught in separate places when expedient. ”
    Held, that the provisions of the law of 1867, were of universal application to all the school districts of the state, and that there was no intention on the part of the legislature to make an exception of the city of Detroit.

      City of Detroit; Colored children. The city of Detroit is not entirely exempted from the operation of the General School Laws, hut is subject to such of their provisions as are not inconsistent with the special legislation regulating the city schools.

      Held, further, that under this law colored children were placed on the same footing with white children, and admissible on the same terms to all schools.

      Mandamus: Public Schools: Might of parent tothewrit. In an application for mandamus to compel the admission of a minor child to the public schools, though the proceeding is for the benefit of the child, the father is entitled to assert the right.

      Mandamus: Petition. When the petitioner failed to shew affirmatively, that the child possessed the necessary qualification; but offered to submit lnm to the rules and regulations of the board, and was refused on account of his color: Held, that the board having made this the sole objection, the relator, should this fail, is presumptively entitled to the writ. ' *

      Heard May 5.

      Decided May 12.

      Manclmmis to the Board of Education of the City of Detroit.
    It appeared that in April, 1868, the relator duly and properly applied for the admission of. his child, a mulatto, of more than' one-fourth African blood, into the Duffield Union or Tenth Ward School of the city of Detroit, and was refused.
    That, at the time of said application, there was room for relator’s child in said school; that at the present time there is room for scholars in said school; that the relator is a mulatto, residing and owning property in the city of Detroit, and paying taxes thereon, including a tax for the support of the primary schools of said city; that said city for many years heretofore has constituted one school district, under the direction and regulation of the Board of Education; that the respondents, many years since, established separate public schools for colored children exclusively, but in all other respects the same as the public schools for the white children, and that there are now two of said schools in operation in said city, one in the fourth and one in the seventh ward thereof, and that another is now being prepared in the sixth ward thereof; that relator’s child is not entitled to enter any other grade of school than, that to which these colored schools belong; that out of all the colored children in said city, but thirty-eight live in wards distantly removed from said colored school; that there are now vacant sittings in said colored schools to which the relator’s child can be admitted upon proper application; that after the establishment of said colored schools, respondents made a resolution or by-law, requiring all colored children to attend said colored schools, and prohibiting their admission into the white schools of said city; that the regulation and government of the public schools of said city has been for many years past eminently successful, and the behavior of the scholars therein exceedingly conducive to the advantage and prosperity of said schools; that there is a strong prejudice against the colored people among a large majority of the white population of said city, and among many of the children in said schools, and that a careful consideration of the question has convinced respondents that the abolition of said colored schools, and the indiscriminate union and mingling of colored with white children in all the public schools, would be greatly prejudicial to the best interests of said public schools, and would engender strife and discord among the scholars thereof.

      II. M. & W. E. Gheever,' for relator.
    The Board of Education of the city are a body corporate, created by special statute, and take the place of the Board of School Inspectors under the general law of the state. To them is committed the direction and regulation of the free schools of the city. The act was passed in 1842, and although various amendments have from time to timé been made to it in other particulars, the provisions bearing upon the present case are unchanged. Section one, of the act of 1842, provided that “the city of Detroit shall be considered as one school district, and hereafter all schools organized therein, in pursuance of this act, shall, under the direction and regulations of the board of education, be public and free to all children residing within the limits thereof, between the age of five and seventeen years, inclusive.”— Act of 181$, § 1.

      The act of 1869, now in force, changes this section only-in the admission of scholars up to the age of twenty.— Act of 1869, § 1.

    The only ground upon which the respondents base their refusal to comply with the requirements of section one of the act is to be found, if it exists, in section nine of the old Act of 1842, as amended in 1850 and 1855, and which is section eight of the Act of 1869. This section gave them “full power and authority to make by-laws and ordinances relative to the regulation of schools, and relative to anything that may advance the interests-of education, the good government and prosperity of the free schools in said city, and the welfare of the public concerning the same.” — Act of 18m, p. 1U, § 9; Act of 1869, § 8.

    This seems to give a general discretionary power, it is true, and respondents may claim great latitude in the exercise of their powers under it, still they can do nothing which will conflict with the provisions of the act as a whole; they can do nothing which would be manifestly contrary to the intention of the legislature in the enactment as a whole. This intention clearly was to commit the care and custody of the free schools of the city of Detroit to the respondents, instead of a board of school inspectors (as elsewhere in the state), to be by them carried on as nearly as possible in accordance with the general state law, not to be “regulated” in such a way as to be virtually closed against one class of citizens, while open to others. What then, is the meaning of section nine?
    (The counsel here entered into a critical examination of the several acts of the legislature, together with the constitutional provisions bearing upon the subject.)
    Without section nine, it will not be contended that colored children could be excluded from the nearest school to their homes in the city. Does this section give the respondents the power they claim under it ?
    This section will be claimed by the respondents as in the nature of a general authority to legislate upon this question. But granting this, for the argument, their legislation or regulations upon a subject committed to them, must be in conformity, as far as practicable; with the general legislation of the state upon the same subject matter. — Welch v. Stowell, 2 Doug. SS6.

    The object in making the city “one district,” was to give the control of all the schools to one corporate body.
    By the law of the state, children must attend in the district where they reside. As the city increased, this became inconvenient. A scholar might live across the street from a school-house, and yet be in another district. Hence the necessity of creating one district, and giving the board power to make school “limits” of territory contiguous to the school-house, without regard to ward lines.
    A “regulation” requiring children to go from the tenth ward to the ninth, a distance of over two miles, and pass other schools on their way, becomes virtually a prohibition of the benefits of the school system.
    Again the Duffield school has its grades; the colored school is a primary school only; and the exclusion of, the the colored child from the union school is an absolute pror hibition of an enjoyment of the higher grades of the free schools.
    The power to regulate is not the power to prohibit.— Nagle v. the City of Augusta, 5 Geo. 51fi; Ex Parte Bur-net, SO Ala. lt-61; Roberts v. City of Boston, 5 Cush. 198; Ciarle v. Board of Directors, Moa, 60: People v. Auditor General, 17 Mich. 175.

    Applying the reasoning in said opinions to this case, the power to regulate should not be confounded Avith the power to create or change a system as previously fixed by the legislature, both in the general school laAV of the state, and in the act applicable to this city.
    The primary intention of the act is to give free schools to all children in the city, If the construction, contended for by the respondents, of section eight, be given, does it not, to a certain extent,' prevent the schools being free to all?

      D. B. & II. M. Duffield, for respondents.
    Respondents insist that the relator is not entitled to the mandamus prayed, for the following reasons.
    1. Because it is at this time impossible for the respondents to comply with it on account of the lack of room in the schools. — Regina v. The London & N. W. R. W. Co. 6 Eng. R. & C. Cases, 479.

    2. Because the relator has no such interest in the matter as entitles him to ask for a mandamus.

    The petition should be made by the child excluded, by its next friend. — Stephenson v. Hall, 14 Bari. 222; Sherman v. Charlestown, 8 Cush. 161; Donahoe v. Richards, 38 Maine, 376.

    3. Because the resolution of respondents requiring colored ■ children to attend separate schools, established and maintained exclusively for them, is —

      First — Authorized by statute;

      Second — An exercise of their discretion, with which this court will not interfere; and,

      Third — A reasonable regulation “for the good government and prosperity of the free schools of said city.”

      a. This authority is derived from the Act of February 1869, which in express terms repeals all other acts inconsistent therewith.
    Section one of said act provides:
    “That the city of Detroit shall be considered as one school district, and all schools now organized, and hereafter to be organized therein in pursuance of this act, shall, under the- direction and regulations of the board of education, be public and free to all children residing within the limits thereof, etc.

      Section eight, gives the said board “full power and authority to make by-laws and ordinances * * * * relative to the regulations of schools, * * * relative to anything whatever that may advance the interests of education,, the good government and prosperity of free schools in said city, and the welfare of the public concerning the same.”
    The resolution of respondents relative to colored schools merely regulates the. admission of children to the several schools.
    There has been no exclusion of relator’s child from the public schools of said city. The return expressly avers that the relator’s child can, at any time, upon proper application, be admitted to the colored schools.
    The meaning of the act clearly is, that all the city schools shall be public and free to all children living in said city, and that the board of education shall regulate the apportionment and distribution of said children among the several schools of the city.
    This power to regulate the system of classification and distribution of the school children must be placed somewhere outside the scholars. The legislature have wisely committed it to respondents, who are citizens of Detroit, and elected by its people, and when it is reasonably exercised by them, we submit their decision must be conclusive.

      b. The regulation of the system of distribution and classification of children is a deliberative and discretionary act. The jurisdiction of the board is a large and populous city, comprehending many conflicting and antagonistic elements. They are the best judges, and are and should be the sole judges of what is the best method of harmonizing and directing these elements so that they will not clash. — 4 Mich. 104-

    They are, also, a deliberative body, and all their actions and resolves are the result of deliberation, and involve an exercise of their discretion.

      There is no specific direction .how the schools shall be organized, or how they shall be tanght, or how many schools there shall be kept, or what shall be the qualifications for admission to the schools. All these matters must be regulated by respondents; and in the regulation thereof they do not act ministerially, but exercise the discretion vested in them by law.
    It is well settled that in such a case a mandamus will not be granted. — Moses on Mandamus, p. 78; Spears v. Cummings, 28 Pick. 227; People v. Auditor General, 8 Mich. J/.27.

      c. The exclusion of the colored children from the white schools, is a reasonable regulation “for the good government and prosperity of the free schools of said city.”
    Under the authority of Day v. Owen cited infra, we think that this question must be left to a jury.
    This regulation is no more unreasonable than one requiring all girls to attend certain schools, and all boys to attend certain others, and this court would not issue a writ commanding respondents to admit a girl to a boy’s school, if respondents should in their judgment separate the sexes.
    Can it be said to be unreasonable for respondents to separate colored from white children in the public schools as long as stated ? Comp. L. p. 950, § 8209, forbids intermarriage between them.
    The fact is averred and admitted that there exists among a large majority of the white population of Detroit a strong prejudice, or animosity, against colored people, which is largely transmitted to the children in the schools, and that this feeling would engender quarrels and contention if colored children were admitted to the white schools.
    Whether the association together of black and white children in the same schools would not equally foster and engender this prejudice may well be doubted, and as said by Chief Justice Shaw, in Roberts v. Boston, cited infra, is a fair and proper question for the board of education to consider and decide, having in view the best interests of both classes of children placed under their charge.
    The following authorities are analogous. They are actions against carriers for refusing to transport colored persons in the same apartments of their conveyances which the Avhites use. They hold that the carrier is bound to carry a colored person, but that they have authority to regulate their accommodation, and if they afford them equal accommodations Avith the whites, then it is a question for the jury whether the regulation is reasonable. — Bay v. Owen, 6 Mich. 620; Jacobs vl Atlantic Wav. Co. cited from W. T. World, of March 11, 1869; Pennsylvania case referred to in above case, of Jacobs v. A. W. Co.

    The only authority directly bearing upon this question which Ave have been able to find, is — Roberts v. Boston, 5 Gush. 198.

      We submit that both upon principle and authority the mandamus should be denied.
   Cooley Ch. J.

Under the general laAV of the state, entitled “Of primary schools,” the several toAvnships are divided by the township boards of school inspectors into districts, each of which is a corporation, Avith officers chosen by its members, and Avith large powers in the establishment and control of schools, the management and disposition of school moneys, and the levying and collection of taxes. These districts generally have a single school house only, and they need only the simple machinery prescribed by the general law for the proper performance of their corporate functions. For the larger towns of the state, it has been deemed necessary to make special regulations; and general and special laAvs have been passed under Avhich most of the cities and large villages of the state have been made union school districts, with larger boards for the management of their affairs, larger powers of taxation, and peculiar powers in the grading of the one school, or the several schools which they may establish. In so far as the laws creating these districts establish special regulations for them, or confer special or enlarged powers, they are removed from the control of the general primary school law; but in all other particulars that law still controls, and as school districts they make their reports and receive their primary school moneys under it.

The city 'of Detroit is one of the towns provided for by special legislation. By an act “relative to free schools in tbe city of Detroit,” passed in 1842, (S. L. 1842, p. 112) it was provided that “the city of Detroit shall be considered as one school district,” and the control of all schools organized therein was put under the direction and regulations of the board of education therein provided for. Previous to this act, there had been within the city the anomaly of a district within a district; the former including only the colored population; but this was inconsistent with the free school act and was therefore repealed by implication. The free school act has been modified subsequently, and in the present year has been revised throughout; but the city is still declared to be one school district, in the same language we have quoted from the original act.

Such being the division of the state into school districts, the legislature of 1867 passed an act amendatory of {¡the primary school law, one section of vfhich is as follows: “All residents of any district shall have an equal right to attend any school therein: Provided that this shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places when deemed expedient.” (S. L. 1867, vol. 1, p. 43.)

It cannot be seriously urged that with this provision in force, the school board of any district which is subject to it may make regulations which would exclude any resident of the district from any of its schools, because of race’ or color, or religious belief, or personal peculiarities. It is too plain for- argument that an equal right to all the schools, irrespective of all such distinctions, was meant to be established.

Does this provision apply to the city of Detroit ? That city, as we have seen, is expressly declared to be “one school district,” and is, therefore, within the words of the act of 1867. That the legislature seriously intended their declaration of equal right in the schools to be partial in its operation, is hardly probable. But they may, nevertheless, have failed to make it universal, if they have incorporated it in a law from the.operation of which some portion of the state is exempted by other laws.

The declaration is incorporated in the general primary school law. I am not aware that there is any organized portion of the state that does not come under some of the provisions of that law. The specially created union school districts are subject to it, except so far as the special legislation creating or governing them is inconsistent. The declaration in the Detroit free school act that the city shall constitute one school district, is idle for any other purpose than to connect the city with the primary school system which the general law establishes, and to give its citizens the advantages, and to require of its officers the performance of such duties as are essential to the harmonious working of the general system within the city. That was undoubtedly its purpose. It is not true, therefore, that the primary school law has no application in the city of Detroit, or that we can say of any of its provisions respecting districts that Detroit is exempt from them, unless we are able to see how those provisions are inconsistent with the free school act, or with any other special legislation that may have established peculiar regulations for that city.

Many things in the free school act clearly refer to the general law, and require its aid to give them effect. The primary school money and district library money are ax>portioned under it, and are only received by tlie city in its capacity of a school district. The free school act provides for reports, but it is the general law which prescribes to what office they shall be sent, and gives the state superintendent a supervisory and directory power in respect to them. The free school act empowers the city board of education to make by-laws and ordinances relative to the taking of a census of children, but this is controlled by the general law which provides that children in almshouses, prisons or asylums, not otherwise residents of the district, and not attending the school, shall not be included in such census, nor shall Indian children be included, unless they attend the school, or their parents are liable to pay taxes in the district. — (S. L. 1867, vol. 1, p. 43.) The penalty which the general law imposes on any one who shall wilfully disturb any district or union school, (Ibid.) will protect the schools in Detroit, as well as those in the country. At every point the general law is complementary to the special legislation, and is necessary to give it complete operation. Even the tax which may be levied by the city board for school purposes, is graduated by the number of children within the district, as shown by the report made under the general law. And as all other portions of that law not inconsistent with the free school act, apply to the city of Detroit, so must the section establishing equality of right in the schools apply also, unless it can be shown to be inconsistent. No inconsistency was pointed out on the argument, nor was any reason suggested as likely to have influenced the legislature to make that city an exception.

It is true that the board of education are vested with large poivers to make rules and regulations respecting the schools, and the attendance of pupils therein, but this fact alone is not sufficient to show a legislative intention that they shall be exempted from general regulations like that in question. A general statute regarding graded and high schools empowers the trustees “to classify and grade the scholars in such district, and cause them to be taught in such schools or departments as they may deem expedient; to establish in said district a high school, when ordered by' a vote of the district at any annual meeting, and to determine the qualifications for admission to such schools,” “and to make such rules and regulations as they may think needful for the government of the schools,” (Sess. L. 1869, p. 447.) No broader powers than these are conferred upon the Detroit board to make rules and regulations respecting attendance upon schools; and any rule of construction which will confirm to that board the power they claim, will give ft also to every board of trustees of a graded or union school district under this law. Yet if we were to look outside the act of 1867 for the occasion of its passage, we should probably find that occasion to exist only in the city of Detroit and in some two or three of the union or graded districts where distinctions based upon color were kept up, which were unknown in the other portions of the state. We might perhaps take notice of the fact that immediately preceding the passage oí that act, an application was made to this court for a mandamus to compel the trustees of one of the union school districts, embracing the city of Jackson, to admit a colored pupil to the same school with white children, notwithstanding they had established a colored school within the district.

If that application was not the immediate occasion of the legislation in question, it is at least highly probable, that it presented one of the cases which made new legislation appear important; and if the act was not intended to reach the districts which are empowered to make their own regulations, then we shall witness the remarkable spectacle of a law which assumes to prohibit what the legislature evidently regard as an unjust discrimination, but which is so framed as to reach only those portions of the state where the distinction does not exi/st, and to exclude from its operation those portions where the legislature is notified that it prevails.

In one particular the section in question is undoubtedly modified in its operation within the city of Detroit, and within every other school district of the state which lawfully establishes more than one school for pupils of the same grade. The fixing of school limits in such case, and the establishment of regulations which shall require children residing within those limits to attend the schools therein, are within the contemplation of the statutes, creating or authorizing the creation of the districts, and are therefore, lawful and proper. But we do not discover that there is anything in any of those statutes — and we include particularly in this statement, the Detroit free school act — that overrules or modifies the requirement of the general law, that the right to attend the schools shall be possessed equally and impartially by all classes of residents.

The conclusion is inevitable, that the legislature designed the impartial rule they established to be of universal application.

It remains to be seen whether there are any formal objections to the writ prayed for. It was suggested by the respondents, that the father, as such, could not apply for a mandamus on behalf of his infant child, but that the child should apply by guardian ad litem. The father is the natural guardian of the child, charged with his nurture and education, and having a personal duty to perform in respect thereto. Although the proceeding is for the benefit of the child, the duty of placing him in school is the parent’s, and the father is entitled on his own behalf to appeal to the courts for the removal of any unlawful impediments. It was also urged, that the application for the writ did not show affirmatively, that the child possessed the necessary qualifications for admission to the school. It shows, however, that the father applied for his admission, and offered to submit him to all the rules, examinations and regulations of the board with regard thereto, and ivas refused because of the child’s color. The board having made this the sole objection, the relator, if this fails, is presumptively entitled to the writ. We think, under the statute, the objection is not valid.

As the statute of 1867 is found to be applicable to the case, it does not become important to consider what ivould otherwise have been the law.

Christiancy and Graves J J. concurred.

Campbell, J.

The claim of the relator in this case is, that the Board of Education of Detroit cannot lawfully maintain the separate schools for colored children, which have ever since its organization been maintained, and are now kept up in the city, and require them to attend there.

If there is any ground of complaint, the relator is the proper person to bring the case before the court. No one can be more interested than the father of a child in obtaining his school privileges.

The question involved is purely one of law, and cannot properly be allowed to become involved in any complications of policy. If the board of education have the control over the arrangement and classification of the schools, which they have heretofore exercised, their action cannot be judicially revised. If they have exceeded their powers, the excess can be restrained, and the writ applied for is the proper process.

The counsel for relator did not claim upon the argument, that the law of 1867 was applicable . to city schools, and we have not, therefore, had the benefit of any lull dis-mission upon the relation which the city system bears to the general legislation, concerning schools in the ordinary districts, so far as it is affected by this statute.

It seems to me that section 28 of the statute of 1867 is foreign to the inquiry. It is inserted in the middle of that part of the primary school law which relates entirely to the organization of the ordinary districts, and the powers and duties of their officers. The fact that it purports to be an amendment of a section that has not been in existence since 1859, might perhaps bear upon its validity; but it is inserted where it naturally belongs, and while going far enough to prevent discrimination in attendance in the general districts, it was needed tor other purposes as well, in those districts. As to them, it covered ground upon which there was no clear legislation; while as to the Detroit schools, the whole subject had been either provided for by legislation, or expressly put in the control of the board. The application to this court for a mandamus to admit a colored child to a school in an interior city, had disclosed to the legislature the remarkable fact, that the rights of attendance on district schools had been left almost entirely to depend upon implications which, while possibly within reasonably plain bounds in many respects, had nevertheless given rise to honest doubts and difficulties. In Detroit tlTe school ages were within narrower limits than the census ages, and on the other hand, the schools were all absolutely free to those within those ages, and the classification and arrangement were left entirely to the board, who were bound to do what they could for every one. The absence of some positive provision raised other difficulties than those relating to colored children, and to age and residence. There was one clause giving non-resident tax-payers, who had no schools at home, the right to send their children into districts where they were taxed, which, has tended to make some confusion in-the popular mind, touching the relative rights of others.

-The arguments which have been urged in this case in this court, as well as propounded elsewhere, upon the rights of tax-payers in the schools, might very well have contributed to the propriety of making some more explicit declaration, for no rule of exclusion could be more odious ,and none less likely to be sanctioned, than one which should operate against those, who, from poverty, were most in need of public aid, and in whose training and elevation the community are interested as future voters and citizens. There was for many reasons a necessity for some legislation to prevent these doubts, and confer absolute .rights on all children. There was no such necessity in Detroit, for provision had been already made for all children, and the board of education had been entrusted with plenary legislative power, in contriving means and regulations so far as their funds would permit, for best arranging how this should be made effectual. They could do all that the legislature could do in making by-laws and ordinances concerning “ anything whatever that may advance the interests of education, the good government and prosperity of the free schools in said city, and the welfare of the public concerning the same.”

Upon every usual rule of construction, this 28th section should not be made applicable to any special system where there had been already legislation covering the ground, even if the Detroit school law had in some other respects been dependent on the primary school law. But there is not, so far as I have been able to discover, a single provision of that law from beginning to end, relating to schools and their regrdations, which has any such applicability. Even in regard to the school census, the board makes its own by-laws, and deals with none but county and State officers. This census has nothing to do with the regulation of schools, and is not based on attendance, or used in them at all, as a guide to determine who are admissible. It is made to facilitate the distribution of school moneys derived from the state under the constitution, and of library penalties which belong to towns and cities, except where smaller districts have been allowed for library purposes. These provisions are in no way connected with the management of district school matters, and would be quite as appropriate in any other part of the statutes. But as before stated, the Detroit school law puts the board in direct communication with the county authorities, and regulates their rights and doings very differently from those in the other districts. The suggestion that they are connected with the primary school law by the provisions of section 31, as amended, concerning tbe punishment of disturbances in public schools, does not appear to me to sustain the connection. That section was originally confined to district meetings, and the amendment was only passed in the same statute with section 28, in 1867. If the Detroit schools were not previously organized under the primary school law, neither of these sections could have any tendency to bring them under it. They must both be regarded as applying to schools under the statute of which they are amendments, and can have no wider scope. The Detroit schools could certainly exist without a provision which was not thought of for more than thirty years after the whole State system had been flourishing, and the board of education has power to pass ordinances on the same subject, and the Recorder’s Court has jurisdiction to punish their violation. School Charter, Secs. 8 and 9. The offence was also a misdemeanor at common law, according to the best authorities. — 1 Bish. C. L. § 982.

If it should be suggested that it cannot be presumed different provisions would be permitted among different children in different places, it cannot be denied that these differences have been expressly created by law. Until 1869, the school ages were different in and out of the city.. When the census was on the basis of a range of ages from four to eighteen, the city schools were confined by law to the ages between five and seventeen. Since the change was made, in the state at large, to the term between five and twenty, the old city rule remained unchanged until the present year, when it was made to correspond. The origin of the Detroit school system was had under the very discrimination of color which is now complained of. When the charter was revised and consolidated during the past winter, if the rule giving control to the board had been deemed improper, it would have been rescinded. No one can read the charter, in comparison with the general laws, without seeing that the legislature deemed it wiser to leave a very broad discretion in the board, over the various complications and difficulties incident to a heterogeneous city population, than to require such action as might not be easily undone, should the schools suffer from it. They have given the board a power of local legislation on many school matters entirely exempt from the control of the civil government of the city, and have made them substantially independent of the council in pecuniary matters: one of the last things in which such bodies are usually entrusted with discretionary powers. It cannot be claimed, that the legislature could not make or authorize any regulation they should see fit, in regard to the management of different scholars, and it would be impossible to employ language delegating a larger discretion than they have given to this board.

We cannot avoid seeing, and counsel very frankly admitted, that the force of the relator’s claim depends much, if not entirely, upon the effect to be given to a changed condition of public affairs, and whatever corresponding change that condition may have wrought upon public opinion concerning the treatment of colored persons. How far the regulations complained of arose out of any less favorable opinion is not very clear. It is claimed that the rule now enforced is founded on very different considerations, and that the original act of 1841, which first required the separation, was meant to be beneficial, and not invidio'us. And I have no doubt such was the fact, although the supposed necessity arose from the state of public sentiment. But whether the policy was, or is, one worthy to be maintained now, is only to be determined by the board, or by the legislature. Public opinion cannot have the force of law, until it is expressed in the forms of law. Courts may or may not appreciate it, but they cannot determine the law by what that opinion is, or by what they suppose it to be. And that the law, which is in this regard unchanged, did originally allow — if it did not require— separate colored schools to be maintained, has never been seriously doubted. In 1841, when the city contained several districts, the inspectors of the city were required to organize a district having no metes and bounds, but composed of all the colored children in the city, within the school ages, and schools were to be kept up separately for their benefit in the city at large. In 1842 the city was made a single district for all purposes; the inspectors were incorporated into a single board, succeeding to the property and liabilities of all the former districts, and given plenary power over the entire management of the schools. The powers given were the same as mentioned in the now existing laws, which are substantial re-enactments. The policy indicated by the legislature of 1841 has been adhered to, and three colored schools have been erected, and are now maintained, in no respect, as the return shows, differing from, or inferior to the other schools. If the law of 1867 repealed any of the former provisions, it might be said that the re-enactment of 1869 restored it; for that is the last enactment. But if the law of 1867 was, as I conceive it to have been, entirely inapplicable, then it had no force one way or the other, and the board of education must act on their own judgment and responsibility in determining- how long they should adhere to their present policy; and any change must depend upon their decision.

I think there is no case made for relief.


source: Caselaw Access Project

author: Graves J.

license: Public Domain

text:
    Joseph Porritt v. Elizabeth Porritt.

      Divorce: Desertion: Separation. The separation required to constitute the offense under the law respecting divorce, must be, and continue to be, tor the period named, a voluntary breaking off of matrimonial cohabitation by one party against the will of the other, and under circumstances which the law does not consider sufficient to justify it.
    Where for more than one year of the three and a half years of separation of the parties, the defendant was awaiting trial upon a charge made against her by the now complainant of an attempt to take his life by poison; and when during the whole period of separation, except ten days, a suit for divorce on complaint of the now defendant was pending upon charges of cruelty and habitual drunkenness of the now complainant, and in which the circuit court made a decree divorcing the parties which this court reversed, but upon grounds in no wise impugn the good faith of that application :
    Held, that this separation of the present defendant from her husband under such circumstances, affords no ground for a divorce.

      Heard May 6th.

      Decided May 12th.
    Appeal in Chancery, from Wayne Circuit.
    The bill in this cause was filed by complainant below, to obtain a divorce from defendant on the ground of desertion. >
    The case was heard on the pleadings and proofs, and the bill was dismissed.
    The facts are stated in the opinion.

      Ward é Palmer, for complainant.
    The complainant seeks a divorce on the ground of desertion by the defendant. She left the complainant on the 24th day of August, 1864, and on the 27th day of the same month commenced proceedings for a divorce from the bonds of matrimony. This court held that she left the defendant without justifiable cause, and denied the prayer of his bill. — 16 Mich. p. llfi.

    Her desertion continued from the time she left the complainant till the 28th day of October, 1867, when he filed the bill in this suit.
    The defendant, in her answer, alleges the same matters in defense of her desertion, that she set forth in her bill as grounds for a divorce, and adds to the same, that before she left the complainant, he accused her of attempting to poison him, and afterwards prosecuted her on the charge, and that on the trial of the same she was acquitted.
    All the other matters set forth in the answer, even if this, which might have been litigated, could be excepted out, except the prosecution on the charge of poisoning, were passed upon in the previous suit, and found against her, and cannot now be again controverted by her, or made available in her defense in this cause.
    The position then in which the defendant stands is this: She left the complainant for none of the causes for which a divorce may be granted, and by that act was guilty of desertion. — Butler v. Butler, 1 Parsons, Penn. 829; Grove’s Appeal, 1 Wright, 443, 447; Cattison v. Cattison, 10 Harris, Pa. 275; Hshbaclc v. Eshbaclc, 11 Id. 843; Vanleer v. Vanleer, 1 Id. 211; Bishop) on Marriage and Divorce, vol. 1, %569 — 799.
    And nothing occurred subsequently to break the continuity of the desertion.

      E. C. Hinsdale, for defendant.
    The complainant in his bill of complaint alleges that the defendant, his wife, has deserted him, and asks a divorce solely on this ground.
    This desertion is denied by the answer, but'this admits that a separation took place between the parties on the twenty-fourth day of August, A. D. 1864, and that the parties have not since lived together.
    The evidence further shows that on the 27th day of August, A. D., 1864, the present defendant filed her bill of complaint againt the present complainant for a divorce on other grounds; that the prayer of said bill was granted by the Circuit Court for the county of Wayne, in Chancery, but on appeal the decree of said Circuit Court was reversed, and said bill was dismissed October 21, 1867.

      The bill ill this case was filed on the 28th day of Oc-‘ ober, A. D. 1867, or just one week after the former suit ended.
    1. Upon the above state of facts, we insist that the present bill cannot be maintained.
    Desertion, as used in divorce law, is “the voluntary separation of one of the married parties from the other, or he voluntary refusal to renew a suspended cohabitation, without justification, either by the consent or wrongful conduct of the other.” — 1 Bishop on Marriage and Divorce, § 776.

    It involves the ceasing to cohabit, the intent to desert, and the want of justification.
    In this case there was no “intent to desert.” This cannot be inferred from the mere fact of separation. — Hid. § 78D

    The defendant left the complainant under the belief that she had a good ground for a divorce from him, and immediately after the separation, she, in entire good faith, filed her bill for the purpose of obtaining a divorce. During the-time of the pendency of that suit, cohabitation between the parties would have been highly improper, and therefore that time can form no part of the statutory period. — 1 Bishop on Marriage and Divorce, §§ 801, 802; Marsh v. Marsh, 11/. ■ N. J. (1 Me Garter,) 815; Doyle v. Doyle, 26 Mis. 51fi.

      2. The complainant’s cruel conduct towards the defendant subsequent to the commencement of the former suit, effectually prevented any reconciliation between them, and was of itself a good cause for her remaining separated from her husband.
    In September, 1864, he instituted criminal proceedings against her, in which he accused her of attempting to poison him. On this charge she was ' tried in September, 1865, and acquitted.

      During the pendency of this criminal suit, her separation from him was justifiable, and, from his conduct, his consent to such separation may be inferred. The year which elapsed between the commencement and end of this suit cannot, therefore, form a part of the statutory period.
    After the acquittal of the defendant upon the criminal charge, the complainant cruelly persisted in his accusation of her criminality at different times and in the presence of different persons.
    These accusations are acts of cruelty which would justify the defendant in separating from the complainant, even if there had been no suit for divorce pending.-Gillinwater v. Gil■linwater, 28 Mis. 60; Marker v. Marker, 11 N. J. 266; Hardin v. Hardin, 17 Ala. 250; Rntlidge, v. Rutlidge, 55 Sneed, (Tenn.) 55; Kimball v. Kimball, 18 N. H. 22J¡,

    The decree of the Circuit 'Court dismissing the complainant’s bill should be affirmed.
   Graves J.

This is a bill filed by the husband against the wife for a divorce, on the ground of desertion.

The suit was commenced on the 28th day of October, 1867, and it is alleged by the bill that the defendant deserted complainant on the 24th day of August,' 1864, and has ever since lived separate and apart from him, and refused to live with him. The defendant by her answer admits that she separated from complainant on the 24th of August, 1864, and has ever since lived apart from him; but she denies the desertion stated in the bill. She insists that he was habitually drunk, and often very violent and abusive to her, and that his language and behavior, was so offensive and cruel, as to cause her to leave him at the time mentioned. She also alleges that shortly after she left the complainant, he caused her to be arrested on a false charge made by him that she had attempted to take his life by means of poison, and that she was subsequently tried upon said charge in the Circuit Court and acquitted.

In the sense of our law respecting divorce, desertion implies a voluntary breaking off of matrimonial cohabitation by one party against the will of the other for the full period of two years, and under circumstances which the law does not consider sufficient to justify it. The separation required to constitute the offence, must continue to be marked by the characteristics here indicated for the whole statutory period, and not merely for the hour, day or week when the breach occurs, or for any other space of time less than two years.

It appears that the separation in this case had continued for a little more than three years and two months, when the husband filed his bill, and the evidence makes a strong impression upon our minds that at no time during the whole period, the complainant was averse to the separation. But the record also discloses, that from the fore part of September, 1864, until the 30th of September, 1865, when she was tried and acquitted, the defendant was under a legal charge preferred by complainant of an attempt to take his life by poison, and was for that period of over a year awaiting trial. During that time, she could not have been required with justice to cohabit with her husband, and her refusal to do so was justified by the circumstances.

It would be a strange and most dangerous perversion of the statute which makes the crime of desertion a ground of divorce, to adjudge a wife held for trial for a year or two at the instance of the husband for an indictable offense, to have been guilty of desertion while thus held, though innocent of the other offense. A doctrine of that kind would convert the separation caused by the charge preferred by the husband into a crime in her against the matrimonial rights of the husband, and to be followed by a divorce based upon it.

The law is not so inconsistent as to pay off in that manner the wrongful accusation and enforced separation with the deeper injury of a divorce grounded upon it.

There is, however, another circumstance connected with this case, which requires to be considered.

It is shown that the present defendant on the 27th of August, 1864, being three days only after the separation occurred, filed her bill in the court below against the present complainant for a divorce, on the alleged ground of cruelty and habitual drunkenness on the part of the husband, and that, notwithstanding an earnest defense by the latter, the wife obtained a decree on the 10th of January, 1867, but which was reversed in this court on the 28th of October, 1867, upon reasons which admitted the habitual drunkenness of the present complainant. — 16 Mich. R. 140. The pendency of that suit from its -institution, until the reversal of the decree in this court, embraced the whole period of the separation relied on in this bill, except about ten days. It is also seen that the decree of the Circuit Court divorcing the present defendant was actually standing unreversed for more than nine months of that time.

There is no ground for contending that the former bill was not filed in good faith; and any supposition that it lacked the elements of a real case worthy of judicial investigation, is repelled by the opinion expressed by this court, and the circumstance that the court below thought the case as made by the wife, sufficiently meritorious to justify a decree as prayed by the bill.

Some of the proceedings incident, or belonging to divorce cases, mark the sense of the law on the subject of cohabitation during the suit. Where the circumstances of the wife demand it, the court is authorized to require the husband, according to his ability, to support the wife separately while the suit is going on, and we cannot suppose that this would be so, if the separation were deemed by the law to be wrongful.

Then it is well settled, that collusion of the parties will be fatal to the suit, and uninterrupted cohabitation would usually be a sign of [collusion, when it did not tend to show conjugal forgiveness, which, if shown in time and proper form, would be equally fatal to the case.

But apart from considerations of this description, we are of opinion that it was eminently wise and proper for the parties to keep separate during the pendency of the former suit, and that it would have been wholly incompatible with any just conception of the nature of that suit,' and an offense against social propriety, if not a sufficient and deserved answer to the application, for the wife to have voluntarily cohabited with her husband, after having stated a case to establish its impropriety, and on which she asked the court to set its .seal of approbation by a decree.

Without pausing to dilate upon the manifest impropriety of holding that a failure or refusal to cohabit during the nine months, when the decree of divorce made by the Circuit Court was standing, should be deemed nine months of desertion, we are satisfied that the separation of these parties during the pendency of the first suit was a proper and justifiable separation, and not in any just sense imputable to the wife, as a continued voluntary breach of matrimonial cohabitation against the will of the husband; and we are also satisfied, that, independently of this consideration, the complainant has failed to show an intentional separation of the defendant from him, and against his will, for the term of two years as claimed by the bill. As we think the decree of the court below, dismissing the bill, was correct, it must be affirmed, with costs. •

The other Justices concurred.


author: Ohristiancy J.

text:
    The Great Western Railway Co. v. Walter H. Hawkins et al.

      Common carriers: Suitable cars: Declaration: Subordinate 'officers. Where the contract of a railroad company to transportjcertain horses, was silent as to the fitness of the cars to be furnished: held, in an action for damages, that the company were responsible under their common law liability, though limiting the common law liability in some particulars, for injuries resulting from defective cars.
    The obligations of the carrier to furnish suitable cars, fit for a particular purpose, is absolute, without reference to the fitness or fidelity of agents or officers, subordinate or otherwise, unless plaintiff, with notice of the defect, assented to their use.

      Heard May 5.

      Decided May 12.
    Error to Wayne Circuit.
    This was au action brought to recover damages of the Great Western Railway Co. for alleged injuries to certain horses while being transported Qver their road.
    The following is a copy of the declaration:
    “Eor that the said defendant, before and at the time of the delivery of the goods and chattels to said defendant as hereinafter next mentioned, was, and from thence hitherto hath been and now is, a common carrier of goods and chattels for hire, to-wit: from Paris, in the province of Canada, to the city of Detroit, in the United States of America, and as such common carrier the said plaintiffs, on or about the oth day of May, A. D. 1865, at Paris, aforesaid, caused to be delivered to said defendant, and the said defendant then and there accepted, and received of and from the said plaintiff certain goods and chattels of said plaintiffs, to-wit: nineteen horses of great value, to-wit: of the value of $4,000, to be safely and securely carried and conveyed by the said defendant, from Paris, aforesaid, to Detroit, aforesaid, and there, to-wit: at Detroit, aforesaid, safely and securely to be delivered to said plaintiffs, for certain reasonable reward paid to said defendant in that behalf; and it then “and there became and was the duty of said defendant to take due and proper care of said goods and chattels, and in and about the carriage and conveyance of the same, and the delivery thereof as aforesaid; yet the said defendant, not regarding its duty in that behalf, but contriving and intending to injure said plaintiffs, afterwards, to-wit: on the day and year last aforesaid, and while said goods and chattels were in its possession, and under its control, took so little and such bad and imjoroper care of said goods and chattels, and so carelessly and negligently behaved and conducted itself in and about the carriage and conveyance of the same, and delivery thereof as aforesaid, that said horses, by means of such carelessness and negligence, and bad and improper care, were greatly gored, lacerated, bruised, and otherwise injured and damaged, to-wit: on the day and year aforesaid, and while in the custody of defendant, as aforesaid.
    And whereas, also, afterwards, to-wit: on the day and year aforesaid, from Paris to Detroit, aforesaid,- the said defendant, as such common carrier as aforesaid, for certain hire and reasonable reward, thereafter to be paid to said defendant, had the care and custody of certain horses of said plaintiffs of great value, to-wit: of the value of $4,000, yet the said defendant so negligently, carelessly, and improperly behaved and conducted itself in taking care of said horses, that by reason of the carelessness and improper con.duct of said defendant in that behalf, the sgid horses then and there became and were greatly hurt, wounded, and otherwise injured, by means of which said premises, as set forth in first and last counts, said plaintiffs have suffered damages to a large amount, to-wit: to the amount of $1,000, and therefore they bring suit, etc.”
    Defendant pleaded the general issue.
    At the close of the plaintiff’s testimony, the defendant introduced a shipping bill, partly written and partly printed, signed by plaintiffs, and which was read in evidence, for the purpose of showing a special contract.

      On the hack of which, there was printed words and figures as follows, to-wit:
    1. “The owner of the within mentioned animals undertakes all risk of loss, injury, damage, and other contingencies, in loading, unloading, conveyance, and otherwise, whether arising from the negligence, default, or misconduct, gross, or culpable, or otherwise, on the part of the railway company’s servants, agents, or officers.
    2. The railway company do not undertake to forward the animals by any particular train, or at any specified hour; neither are they responsible for the delivery of the animals within any certain time, or for any portic- • ular market.
    3. "When free passes are given to persons in charge of 1 animals, or to their owners, or to the consignees named on the way bills, or either of them, it is only on the express condition that the railway company are not responsible for any negligence, default or misconduct, gross, culpable, or otherwise, on the part of the company or their servants, or of any other person or persons whomsoever, causing, or tending to cause, the death, injury, or detention of persons with such free passes, or of such animals, and that whether such passes are used in traveling by any regular passenger train, or by any other train whatever.”
    The above was signed by the owner as follows: “I agree to the above conditions.”
    Passes were also delivered to plaintiffs below, with conditions endorsed similar to the above.
    Counsel for the defendant then offered evidence tending to show an examination of the cars before the shipping of said horses, and proper care on part of defendants, both in the shipping and transporting of said stock.
    Counsel for defendant then rested his case.
    Counsel for plaintiffs then gave evidence tending to show that the examination of the cars was on a previous occasion, that the shipping bill and passes were not signed until after the horses were loaded in the cars.
    Counsel for plaintiffs then asked the court to instruct the jury:
    1. That the defendant, having undertaken to transport horses over its road, Avas bound to furnish suitable and proper carriages for that purpose, and are liable if the cars, provided were unlit for the purposes to Avhich applied.
    2. That if the injury to the animals occurred through defective carriages, the defendant is not exempted from liability by the terms of the alleged contract.
    Which instructions were given.
    The counsel for the defendant then asked and requested the court to charge and instruct the jury:
    1. That the declaration was against the defendant on its common law liability as a carrier.
    Which charge Avas given.
    2. That it Avas proven and not disputed that in this case there Avas a special contract for the transportation of the horses, the plaintiff cannot recover upon the present declaration.
    3. That the defendant could, by contract, exempt itself from all negligence upon the part of its agents and servants, and such contract is valid, unless it is shown that the company itself was negligent, by proving knoAvledge of the use of defective cars, or shoAving the employment of unfit or unsuitable agents.
    4. If the company had no notice of the use of defective cars, and did employ suitable and competent agents, Avhose duty it Avas to examine and see that the cars for such freight Avere in sound and suitable condition, the defendant is not, under the contract in eAddence, liable for injuries resulting from the negligence of such agents or servants.”
    * And which three last requests Avere refused.
    The jury rendered a verdict for plaintiff.

      Gray & Moran, and E. W. Meddaugh, for plaintiff in error:
    This case was before this court in 17 Mich. p. 68.

    The court then held that the special contract between the parties did not exonerate the company from furnishing safe and suitable cars, &c.
    The case has been again tried, and a verdict was given in favor of the plaintiffs below.
    New questions are now presented, which were not raised upon the previous hearing.
    1. The declaration was general against the campany as common carriers. There was no allegation that the company-failed in the duty of furnishing safe and proper carriages. Under the decision of this court, it might be their duty to do so, but for a recovery there should be a special count. Shaw v. Railroad, 18 Queen’s Bench, 852; IS Iredell, 518; Kimball v. Rut. & Bur. R. R. Co. 21 Vt. 247; Austin v. Manchester R. R. Co. 5 Eng. L. & Eg. 829; Bissell v. K. Y. Cent. R. R. Co. 25 N. Y. 44*; 4 Selden, 875; 21 N. Y 281, 222; Shaw v. T. & North Midland R. R. Co. 66 Common Law, Slffi.

    2. While the special contract might not excuse negligence on the part of the company, or its chief officers, it might Avell protect thenr from the negligence of subordinate agents, if the company, by its chief officers, had no knowledge of the use of defective cars, and employed proper agents, &c.

      Moore & Griffin, for defendants in error.
    1. We claim that both questions now presented were indirectly, if not directly passed upon by this court, in the former decision of this cause. — Hawhins v. Great Western R. W. Co. 17 Mich, 57.

    The case of Shaw v. The York & North Midland Railway Co. was cited by counsel, and alluded to in the opinion of the court, but this court did not adopt the decision so far as the question of pleading is concerned.

      If this declaration is similar to the one in that case, and that case be law, the position of counsel for plaintiff in error is well taken.
    But we say: That the contract, unless alleged or proven, by plaintiff, is matter of defence.
    The evidence went only to one point, the insufficiency of the carriages.
    The contract was entirely immaterial; it did not affect the negligence proven.
    There was no objection to the introduction of .the evidence tending to prove the defect in cars.
    Is there any sound reason why such evidence as to negligence should not be applied to the second count, charging negligence in taking care of the horses, while in care and custody of the plaintiff.
    2. Defective carriages involve the negligence of the principal, and not of the agent merely.
    There is an implied warranty that a carrier undertaking to furnish vehicles for a certain purpose will provide suitable ones. — Lyons v. Molls, 5 Last, 1¡%8; M’Manus v. The Lancashire <& Yorkshire Railway Go. ^ Ilurl. & Nor. 827.

   Ohristiancy J.

The first point raised by the plaintiff in error (the question of the sufficiency of the declaration to warrant a recovery on the ground of the defectiveness of the cars furnished by the company, without declaring specially upon the contract, &c.) was involved, and must be considered as decided in this case when before us, upon the same declaration, in 17 Mich. 57: For though the point was not raised, and could not, as the case was then presented, have been assigned for error — the case having been brought here by the plaintiffs below, to reverse the judgment for a charge adverse to them — yet if the objection now taken be well founded in law, the plaintiffs in that case could not legally have been injured by the charge, since they could not have recovered under their declaration, whatever the charge upon the points to which' it related might have been; and the judgment should not, therefore, have been reversed.

The company in this case must be regarded as common carriers, and liable as such, except so far as that liability was qualified by the special contract. The contract was silent as to the fitness of the cars to be furnished by the company. As properly held in. the case when formerly before us, the contract did not exempt the company from the duty or obligation to furnish suitable cars; but the common law liability as to this point, and to this extent, remained substantially the same as if no special contract had been made. The reception of the property for transportation, whether under the special contract, or as carriers of such property generally, created the same liabilities in this respect, and the company must be considered as common carriers in reference to this particular duty, for the breach of which alone the recovery was had.

2. The evidence in the case tends to show that the injury to the horses occurred in the course of their transportation, and in consequence of the cars being unfit for the purpose. The wrong or negligence, therefore, in this respect, may properly enough be alleged as a breach of the duty to carry safely. We are aware, there are some cases of this kind, which have required a more special mode of pleading; as under the modern system of pleading in England, which requires more precision in stating the exact nature of the breach of duty, than under the former common law rules. But we see no beneficial purpose to be subserved by a more specific form of declaration.

We think the declaration is sufficient to admit the proof of the negligence or breach of duty which the evidence tended to prove.

The second point raised by the plaintiff in error is, “that while the special contract might not excuse negligence on the part of the company or its chief officers, it might well protect them from the negligence of subordinate agents of the company if its chief officers had no knowledge of the use of defective cars, and employed proper agents,” &c.

We must regard this point also, as fully and correctly settled in the case as formerly decided, and no longer opeir to controversy. The obligation of the company to furnish suitable cars under or notwithstanding this contract, was then held to be absolute on reception of the property, without reference to the fitness or fidelity of agents or officers, subordinate or otherwise, unless some showing was made, that the plaintiffs, with proper opportunities of observation, and with notice of their actual condition, assented to the use of the cars on which their horses were shipped. We see no reason to doubt the correctness of this decision, and think it fully covers the point now raised.

There is no error in the record. The judgment of the Circuit Court must be affirmed, with costs.

The other Justices concurred.


author: Grates, J.

text:
    William Case v. John G. Erwin.

      Action for breach of covenant against incumbrances: Wifes premises; Notice of husband's contract: Implied consent: Notice to purchaser of existing eguities. On the 15th of September, 1854, Ralph Eley became patentee of a quarter section of land, embracing the premises in question, and on the 2d of October, 1855, united with his wife, Mary Eley, in a conveyance of the quarter to one Armenius Bley, who, on the next day, conveyed to said Mary Eley. The deed to Armenins Bley was recorded some thirteen days after its execution, but his deed to Mary Eley was not recorded till the 21si of November, 1859. Shortly after the deed to Mary Eley, and before December, 1855, Ralph Eley established his residence on the quarter,-occupied it, erected buildings on it, and deported himself as the owner of the land, tinder these circumstances, and while this state of things continued, Ralph Eley in June, 1856, entered into a written agreement with defendant and one Catlin, providing that they should erect a steam saw-mill on the land, and that on its completion the former should convey the same to them.
    The mill was erected according to the agreement, Mary Eley being fully aware of the existence of the agreement, of its provisions, and of such performance by defendant and Catlin, and neither suggesting any claims on her part or intimating any objection to what was going on or proposed. Shortly after the completion of the mill, and when by the terms of the agreement for its erection, defendant and Catlin had become entitled to a conveyance, Ralph Eley and Catlin fixed upon an arrangement which was never consummated, whereby the former was to have Catlin’s half of the premises, and before this arrangement fell through, as it subsequently did, Mary Eley and her husband Ralph, conveyed the other undivided half to defendant and afterwards, and on the 25th of July, 1857, they mortgaged their interest in the property to one Goodrich, and stated in the mortgage that the mill was owned by the the mortgagors and “ Catlin and Erwin.” About July, I860, by a decree in chancery against Ralph and Mary Eley designed to enforce the equitable rights of Catlin and Erwin under their contract for the erection of the mill, it was adjudged that the property in question belonged to the latter, and about the same time Erwin acquired Catlin’s interest. On the 14th of January, 1861, Erwin conveyed the mill premises to tlié plaintiff in this suit, by deed containing the usual covenant of warranty and against incumbrances.
    The Goodrich mortgage was foreclosed against Ralph and Mary Eley alone, and on May 24, 1861, the title resulting from the foreclosure became vested in one Jennings. Case having entered under his deed from Erwin held exclusive possession until September, 1861, when Jennings claiming under the mortgage title, went in without process, and claimed an undivided half of the premises. Case requested Erwin to protect him against this claim of Jennings which was refused, whereupon he purchased the Jennings claim and instituted this suit on the covenant in the deed against incumbrances.

      Held, 1st, that Mrs. Eley, as the holder of the legal title, was not at liberty to assert any right against the equitable claim of Catlin and Erwin to a conveyance, and that both herself and husband were bound, on the completion of the mill* and at the time of the Goodrich mortgage, to convey the premises pursuant to the mill contract,
    2nd. That whatever interest Ralph Eley and wife still possessed was subject to the equities of Catlin and Erwin, and that this interest when conveyed by the mortgage was equally subject to such equities.
    3rd. That the mortgage bore upon its face enough to indicate that Catlin and Erwin had some rights in or to the property, and also to indicate that whatever was conveyed by it, and whether subordinate or not to those rights, was to be ascertained by inquiry: that Goodrich, the mortgagee, was therefore chargeable with notice of the equities of Catlin and Erwin and bound by them, and that Jennings who held only under the mortgage was in the like position.

      Held, further, that the establishment of the legal title in Catlin and Erwin by the decree in chancery on the foot of their equitable right ensured to them as against the mortgage as of the time when they became entitled to a conveyance under their contract; and the mortgage asan incumbrance, and subject to their equities, was altogether cut off.

      Heard May 5th.

      Decided May 12th.

    Case Made from Wayne Circuit.
    Tbis action was brought to recover damages for a breach of a covenant against incumbrances contained in a deed given by defendant to plaintiff.

      Judgment was given for the defendant.
    The facts are stated in the opinion.

      Ward c§ Palmer, .for plaintiffs.
    Courts of equity do not compel persons to perform contracts to which they are not parties, and especially women, to convey their lands to carry out the agreements of their husbands.— Weed v. Terry, 2 Doug. Mich. 844; Story’s Eq. Juris. § 782.

    But if the agreement with Catlin and Erwin were such, that a court of equity would compel a specific performance of it, it does not follow that Goodrich would have been affected by it.
    His mortgage was first recorded, and must have preference over their claim, unless they can show that he had such knowledge of it, as to make it fraudulent for him to accept a mortgage on it as against their claim. — Greenleaf’s Cruise on Real Prop. B. 4 P- 458-9; Goodfrey v. Disbroto, Walker, Ch. Mich. 260; Boggs v. Yarnum, 6 Watts and Serg. 489; Meehan v. Griffin, 8 Pick. 149; Jackson v. Yalkenburgh, 8 Cow. 260; Jackson v. Elston, 12 Johns. 462; Lawrence v. Tucker, 7 Greenl. 196; Dey v. Dunham, 2 Johns. Ch. 182; JYorcross v. Widgery, 2 Mass. 609; Jackson v. Given, 8 Johns. 187; Fork v. Burch, 6 Barb. Sup. Ct. 60; 4 Kent’s Comm. p. 171-2; Willard’s Eq. Jur. 251-2-8--608.

    It is not insisted that Goodrich had any notice of Catlin & Erwin’s claim, unless the phraseology of his mortgage was such notice, or sufficient to put him on inquiry.
    The mortgage describes the parcel of land in these words: “Their interest in a steam saw mill and the appurtenances, situate, &c. and the piece or parcel of land on wl^ich the same stands, and described, etc. * * the aforesaid mill being owned by said party of the first part, and Catlin & Erwin, of Detroit.”

      Catlin & Erwin had taken from Kalph and Mary- E. Eley conveyances of an undivided half of the premises, and put them on record, and had thus defined and given notice of their claim in the land, and • at purchaser was not bound to inquire further. — Bloomer v. Henderson, 8 Mich. Plummer v. Robertson, 6 Serg. & Rawle, 179.

    The conveyance to Goodrich was in effect a quit claim and release, which our statute provides “shall be sufficient to pass all the estate which the grantor could lawfully convey by a deed of bargain and sale.”
    It will not be disputed that under a deed of bargain and sale, a good faith purchaser would have taken an undivided half of the mill premises; and the effect of this conveyance, under the provision of our statute, must be the same. — 2 Comp. L. § 2722; McConnell v. Reed, 4 Scam. (III.) 117.

    At common law, a quit claim and release only operated on any interest the grantor might actually have in the pre- • mises released, at the time of the conveyance, and such a •view of the law might, perhaps, justify the decision in about the only cause holding a doctrine adverse to the position we have taken. — Adams v. Caddy, 18 Pick. 468.

    At best. Gatlin & Erwin were only entitled to a mortgage on the premises, and if it was allowed to take precedence of the mortgage executed to Goodrich, Goodrich’s mortgage would still have been an incumbrance , on the land, and the purchaser under it could have held the land and redeemed it from Catlin & Erwin’s claim, or until his claim was divested by the foreclosure and sale under the mortgage, to which they would have been entitled, and under such a state of facts, the plaintiff would still be entitled to his damages.

      S. T. Douglass, é S. D. Miller, for defendants.
    This action is brought by Case against Irwin, to recover dannges for breach, of a covenant against incumbran ces contained in a conveyance by Irwin to Case, of about fifteen acres of land, with a saw mill thereon, situated in Gratiot county. The conveyance was executed January 14, 1861.
    The only question in the case is, whether, when this conveyance was executed, a certain mortgage, executed by Ralph and Mary Bley to one Goodrich, in July, 1857, was a valid incumbrance upon an undivided half of the premises.
    The mortgage conveyed certain land specifically described, “and also their interest” (the interest of the grantors) “in a steam saw mill and appurtenances, situated in the town and county aforesaid, and the piece or parcel of land on which it stood, and described as follows,” etc. “the aforesaid mill being owned by the said party of the first part, and Catlin & Irwin of Detroit.”
    1. As the mortgage purported to convey only the interest of the mortgagors without stating what that interest was, the mortgagee took only such legal title as the grantors had, subject to all subsisting equities in favor of third persons. — Farrar v. Patton, 20 Mis. 81; Brotan v. Jackson, 8 Wheat. lift; Adams v. Cuddy, 18 Pick. Ifi8; Sweet v. Brown, 12 Mete. 176; McConnell v. Reed, 5 III. Ill; Mills v. Shepard, 80 Conn. 98.

    2. As against the mortgagors, Catlin & Irwin were the equitable owners of the entire mill property when the mortgage was executed. They had become entitled to a conveyance of it as against Ralph Bley by building the mill in pursuance of the contract of purchase of June, 1856. And Mary Eley, in whom thel egal title appears to have been vested, by allowing her husband to deal with the property as his own, and by standing by, and with full knowledge of what was being done, suifering Catlin & Irwin to build the mill upon it without objection, is estopped from controverting their rights under the agreement of June, 1856. —Dimn v. Oudney, IS Mich. 289.

    3. Goodrich was chargeable with notice of all the rights of Catlin & Irwin. The mortgage on its face showed'that C. & I. had some interest in the property, without describing the extent of it. Me was bound -to inquire what that interest was.
   Grates, J.

This is an action to recover damages upon the covenant against incumbrances, contained in a deed given by the defendant to the plaintiff.

The material facts are as follows:

On the 15th of September, 1854, Ealph Eley became patentee of the north half of the north-east' quarter of section three, town eleven north, range three west, in Gratiot county. On the 2d of October, 1855, the patentee and Mary Eley his wife, united in a >warranty deed of the same land to Armenius Eley, which deed was recorded on the 15th of the same month, and on the 3d of said month, the last named grantee, Armenius Eley, ponveyed the premises to the before mentioned Mary E. Eley; but this grant re_ mained unrecorded until the 21st of November, 1859.

Shortly after these conveyances in the fall of 1855, which had for their object the vesting of the title in Mrs. Eley and prior to December, 1855, her husband, the said Ealph Eley, took up his residence on said land, having erected thereon several buildings shortly before.

While the title was in this state, and while Ealph Eley was in the actual possession of the premises, and conducting himself as the owner, the defendant and one Catlin in June, 1856, entered into a written contract with Ealph Eley, which provided that defendant and Catlin should, erect a steam saw mill on the land, and that when completed, Ealph Eley should convey the same to them.

It becomes necessary at this point to notice a question made on the argument as to the meaning of a passage in the case as settled.

The passage is as follows: “ A mill was erected according to the terms of said contract, at an expense of about $6,000, with the full knowledge of said Mary, who made no objection.”

It was urged on the part of the plaintiff, that the fact expressed by this statement was that Mrs. Eley in the first instance knew that defendant and Catlin were building the mill, but that it did not shew that she knew the terms on which they were building it.

The counsel for the defendant controverted this view, and insisted that this paragraph in the case, meant that Mrs. Eley had knowledge that the mill was built, and also had knowledge that it was done according to the terms of the contract made with her husband. We are satisfied that this position of the counsel for defendant is correct. It would be a forced construction of this language to confine the reference of Mrs. Eley’s knowledge to the putting up of the mill. If we were to reject any antecedent, it would be quite as reasonable to exclude that which specifies the erection of the mill, as that which alludes to the terms of the contract. But we think we ought to apply what is said of her knowledge to all the preceding branches of the passage to which according to common understanding, is would naturally apply; and if we read the paragraph in question in this manner, we shall find it ascertained that she knew of the existence of the contract, and of its provisions, and of the erection of the mill under, and in accordance therewith.

It appears, therefore, by the record, that at this time, Ralph ivas in possession of the land, and acting as the owner. That the mill having been built under the contract with him, with the knowledge of Mrs. Bley, who held the legal but unrecorded title, while her husband was in possession, and by her allowed to deal with the property, 'and appear to the world, as the owner, and when, according to the contract between the husband and Erwin and Catlin, the latter had become entitled to a conveyance, an arrangement was fixed upon between Catlin and Ralph Eley, whereby the latter was to have half of the mill premises, being about fifteen acres, upon certain terms stated between them.

This arrangement was never consummated, but on the 30th of September, 1856, and before it was given up or rejected, Ralph Eley and his wife Mary conveyed to defendant Erwin an undivided half of the property by deed, recorded October 13, 1856; and on the 30th of the December following, the defendant conveyed to Catlin an undivided half of the undivided half which had been conveyed to him, and such deed was recorded January 6th, 1857.

Under these circumstances, and while the parties were in this position, Ralph Eley and wife, on the 25th of July, 1857, executed to Goodrich their mortgage on several parcels of land definitely and specifically described, and likewise included in the mortgage what the plaintiff claims to have been an undivided half of the mill property. It was described as the interest of Ralph Eley and Mary E. Eley, in a steam saw-mill and appurtenances, and the piece or parcel of land on which it stood, and as being owned by the mortgagors, and Erwin and Catlin of Detroit.

In July, 1860, or shortly after that time, Erwin and Catlin became vested with whatever title or right Ralph and Mary E. Eley had to the property, through a decree of the Court of Chancery, and it would seem that Erwin acquired the interest of Catlin in the premises about the same period.

The Goodrich mortgage was foreclosed against Ralph and Mary E. Eley, and the title resulting from that foreclosure became vested in one Jennings on the 24th of May, 1861; but on the 14th of January preceding, the defendant conveyed the mill premises to plaintiff by deed containing the usual covenant of warranty and against incumbrances.

Under this conveyance the plaintiff entered the premises and held exclusive possession thereof until September, 1861, when Jennings, claiming under the mortgage title, went in without process, and claimed an undivided half under the title arising from the mortgage. The plaintiff requested the defendant to protect the premises against this claim of Jennings, but he refused to do so on the ground that the mortgage title was not an incumbrance as against the title he had conveyed to plaintiff. The latter thereupon purchased the Jennings claim of title under the mortgage and commenced this suit, and the court below held that the claim under the mortgage constituted no inciimbrance against the title conveyed by defendant to plaintiff, and accordingly awarded judgment to the former.

At the time the Goodrich mortgage was made, Erwin and Catlin had performed the contract made with Ralph Eley, for building the mill, and by the terms of that contract were entitled to a conveyance, and the only ground for a refusal to convey which could have been set up was that Mrs. Eley held the legal title instead of her husband, and was not a party to the contract. Her deed was unrecorded. Her husband was in possession and with her knowledge, and, so far as appears, without her dissent, managing and disposing of the property as owner. He contracted for the erection of valuable buildings upon the property and agreed that upon their completion they should be conveyed to the parties with whom he contracted. Mrs. Eley allowed Erwin aud Catlin to go on and expend their money in making the improvements contracted for by the husband, in reliance upon these appearances, which must inevitably have led them, as prudent and careful men, to believe that her husband was acting for himself in respect to property interests of his own, and which he could control and bind. It does not appear that she gave any warning whatever to Erwin and Catlin or either of them, or to any one else, of any claim of her own, or that she in any manner intimated that her husband’s dealings were 'unauthorized; but it does appear that she afterwards joined with her husband in deeding one-half of the premises to defendant, a transaction which can only be explained in view of all the facts and particularly the unfinished arrangement for vesting half of the property in Ralph and leaving the other half for defendant and Catlin, by supposing that the deed to defendant was intended as a compliance with that part of the old agreement for building the mill, as proposed to be modified by the new unfinished arrangement, which left but half of the property to be conveyed for the benefit of Erwin and Catlin. This explanation, if sound, would warrant the inference that the giving of that deed was an act by Mrs. Eley in part performance of the contract made by her husband, and conclusive of her knowledge of that contract.

Such had been her course, and such the circumstances that she could not have withheld a conveyance, under the contract without a violation of the plainest equity. According to the fact stated in the case she had seen Erwin and Catlin expend their money in valuable erections on her land, when she knew that they were doing so upon such representations of her husband as must operate as a gross fraud upon them if she should be allowed to retract the corroboration of the truth of such representations, which was involved in her acquiescence in his conduct, with full knowledge of the facts.

If Mrs. Eley had been unmarried there can be no question but that she would have been bound by her acquiescence in what took place. And under our statute which allows married women to contract, sell, transfer, mortgage and convey their separate property in the same manner and with the like effect as if unmarried/’ I think the result must be the same. To hold otherwise would contradict the purpose of this statute, and impose or retain a disability, which, in general, could have no other effect than to cover fraud and injustice.

It is not improper to say that it does not appear that Mrs. Eley ever refused to join in conveying to defendant and Catlin, on the ground that she was not bound to convey; or, indeed, on any ground. '

In view of the circumstances, we are of opinion that at the time the Goodrich mortgage was given, Mrs. Eley and her husband were in equity bound to convey to Erwin and Catlin; and that as against the former, the latter were the equitable owners of the whole mill property.

The mortgage purported on its face to convey an indefinite interest in the premises, not exceeding that possessed by the mortgagor, and did not profess to transfer the whole or any particular portion of the premises in question, or any specific undivided interest. It assumed to grant several other parcels of land, and those were definitely particularized and described, but in describing the subject of the mortgage in the mill premises, the parties carefully avoided the use of expressions which would denote a purpose to grant anything beyond the actual interest of the mortgagors. If it had been the purpose of the parties to make the mortgage in terms include a specific parcel of the mill premises, or any definite undivided interest, there could have been no difficulty in finding terms which would have plainly identified the portion or interest on the face of the instrument. It cannot be claimed, therefore, that the description found in the instrument should be read as specifying a definite or ascertained interest, such as an undivided half or the like; but it must be taken as meaning to convey the right which the mortgagor had, and subject to all existing equities. There was enough upon the face of the instrument to inform Goodrich that Erwin and Catlin had some interest} and that the right or title of the mortgagors, or the extent of it, was to be ascertained by inquiry, since the instrument did not purport to state it. The' mortgagee was under these circumstances bound to make inquiries of Erwin and Oatlim and was chargeable with notice of all the facts to which such inquiries must have led. As he was chargeable with notice of the equities of Erwin and Gatlin, his right became subject to those equities, and Jennings, who succeeded to the rights of Goodrich, could be in no better position than Goodrich himself.

When Erwin and Catlin succeeded in perfecting their title through the decree in Chancery, it enured to them as against the mortgage, as of the time when they became completely entitled to a conveyance, and the mortgage, as affecting the mill property, was cut off altogether. The judgment below should be affirmed, with costs.

The other Justices concurred.