text:
    William H. Davenport and Beverly P. Davenport v. George W. Stone, Receiver, etc., et al.

      Banks and banking — Rediscount—Authority of cashier — Estoppel.
    1. Where a bank accepts from a debtor a renewal note with the same indorser, and said note is rediscounted for the bank under an arrangement with third parties for the rediscounting of its paper, and the proceeds are received by the bank, the non-surrender by the bank of the old note, and its failure to enter the new note on its books, will not prevent the new note from being regarded as rediscounted paper, or deprive the third parties to protection as bona fide holders of the new note.
    2. Where the directors of a bank intrust its entire management to the cashier, neither the bank nor its receiver can be heard to deny the authority of the cashier to do any of those acts which the bank or its directors might lawfully authorize the cashier to perform.

    S. Plaintiffs, who had a verbal arrangement with a bank to rediscount its paper, at the request of the cashier, to whom the directors had given the entire management of the bank, rediscounted a note in the due course of business, and without any notice or reason to believe that the cashier had not full authority. And it is held that the directors had authority to rediscount the note, and that the exercise by the cashier óf such authority is binding upon them.
    Error to Ingbam. (Person, J.)
    Argued February 1, 1895.
    Decided April 2, 1895.

      Assumpsit. Defendant Stone brings error.
    Affirmed.
    The facts are stated in the opinion.

      M. V. Montgomery, for appellant.

      Smith, Lee & Day, for plaintiffs.

       See Wing v. Commercial and Savings Bank, 103 Mich. 565.

   Grant, J.

This suit is brought against Stone, as the receiver of the bank, upon the following note:

“$1,500. Lansing, Mich., Mar. 1, ’93.
“Ninety days after date, I promise to pay to the order of Orlando F. Barnes fifteen hundred dollars, at the Central Michigan Savings Bank. Value received. Interest at 8 per cent, after maturity.
“John J. Bush."
Indorsed on the back: “Orlando F. Barnes," and “Payment guaranteed. Central Mich. Savings Bank, by Nelson Bradley, Cashier."

The plea was the general issue, with notice that, if the-cashier undertook to guarantee the payment of the note in the name of the bank, such guaranty was without authority of the bank or of its directors, and was therefore unauthorized, illegal, and void. Upon the trial it was. admitted by the parties:

“That for 10 years and upwards, last past, the Central Michigan Savings Bank was a banking corporation organized under the laws of this State; that on April 18, 1893, it became insolvent, and closed its doors; that on the 8th. day of May, 1893, defendant Stone was appointed to be, and ever since has been, receiver for said bank; that during all said time, up to such insolvency, one Nelson Bradley was its cashier; that in 1890 notes and bills of the-bank had been rediscounted through its cashier, Mr. Bradley, amounting to about $40,000, and this sum was-increased so that at the time the note in suit was dis-: counted they amounted to $100,000. The bank had all the time two departments, viz., a savings and a commercial. When plaintiffs commenced rediscounting for the-bank, and ever since, its capital stock was $65,000, and the surplus $68,000. The surplus at the time the note-in question was rediscounted was $100,000. August 11, 1890, John J. Bush presented his note for $1,500, at 90--days, indorsed by defendant Orlando F. Barnes, to the-Central Michigan Savings Bank, for discount. The bank discounted said note, paying the proceeds to Mr. Bush. On November 12, 1890, on maturity of the note above-mentioned, Mr. Bush presented to said bank his note, signed by himself and indorsed by defendant Barnes, for the same amount as the former note, for the purpose of renewing the same for 90 days, paying to said bank the discount on the same. The last-named note was not entered upon the books of the Central Michigan Savings Bank, but Mr. Bradley, the cashier of said bank, indorsed the same as follows: ‘Payment guaranteed. Central Mich. Savings Bank, by Nelson Bradley, Cashier/ — and sent the same by mail to plaintiffs for rediscount, having previously had an understanding with plaintiffs by which plaintiffs had consented to rediscount some paper for the Central Michigan Savings Bank. Plaintiffs received said note by mail, with other notes, and discounted said notes; drawing its draft upon Detroit, payable to the order of Nelson Bradley, cashier, and mailing the same to the Central Michigan Savings Bank, at Lansing, Michigan. The proceeds’ of said Bush note, so discounted by plaintiffs, were used to pay the original note discounted by the Central Michigan Savings Bank August 11, 1890, and until said funds were received by the Central Michigan Savings Bank the said Bush note was carried by it as past due. Plaintiffs acted in entire good faith, supposing that they were rediscounting the paper for the Central Michigan Savings Bank in the ordinary way.”

Mr. Bradley, the cashier, testified that for five years prior to the suspension of the bank he was- its financial manager, and that the financial management of the bank was practically left to him by the board of directors. He testified that, besides himself, the president and one or two directors knew about the rediscount of paper by the bank, and there were six directors. No resolution was passed authorizing this rediscount. Plaintiffs testified that they were not aware who the officers of the bank were, besides Mr. Bradley, nor what amount of paper had been rediscounted, and that they took this note in the usual course of business.

It is claimed that this note was not in fact rediscounted paper. The note was presented to the Central Michigan Savings Bank by Mr. Bush in renewal of his former note. It was indorsed by the same party as the other. Bush paid the discount. It was tendered to and accepted by tbe bank as a renewal, of tbe other note, and in its place. The new note became thereby the property of the bank. • It was sent to plaintiffs, as the note of the bank, for rediscount, under a parol understanding that they would rediscount paper for it. The money was forwarded to the bank, and it got the benefit of it. The acceptance of the new note and the discount constituted a new and binding contract between Bush and the bank. The latter could not maintain suit upon the old note, nor transfer it so as to give it any validity in the hands of the transferee. The facts that it was not surrendered,— the reason for which is wholly unexplained, — and that the new note was not entered upon the books of the bank, do not change the nature of the transaction. To hold that this is not rediscounted paper, and that plaintiffs are not entitled to protection as bona fide holders of such paper, would be a reproach upon our jurisprudence.

The directors intrusted the entire management of the bank to the cashier, Mr. Bradley. Therefore, neither the bank nor its receiver can now be heard to deny the authority of the cashier to do any of those acts which it or its directors might lawfully authorize the cashier to do. The rule is stated by Mr. Morse as follows:

“If the directors have for many years allowed the cashier to do, without interference, all the business of the bank, they are held thereby to have conferred upon him authority to do anything and everything on the corporate behalf which the charter or law does not absolutely prohibit and forbid a cashier to do, and so render illegal under all circumstances.” 1 Morse, Banks, § 165, par. c.

In such case the authority of the cashier will be presumed when the paper is in the hands of a bona fide holder for value, without notice of any defect in his authority. Id. § 165, par. b; Kimball v. Cleveland, 4 Mich. 606; Smith v. Lawson, 18 W. Va. 212, 227. In this last case many authorities are cited. Wild v. Bank, 3 Mason, 505; Houghton v. Bank, 26 Wis. 663, 670. And the indorsement by the cashier for the bank, though wrongful, will bind the bank, and estop it to deny his authority. 1 Morse, Banks, § 158, and par. d; Bird v. Daggett, 97 Mass. 494; Robb v. Bank, 41 Barb. 586; Bank of New York v. Muskingum Branch of Bank of Ohio, 29 N. Y. 619; Monument Nat. Bank v. Globe Works, 101 Mass. 57; Merchants’ Bank v. State Bank, 10 Wall. 604, 644.

It is claimed that the rediscount of paper is, in effect, a sale of the property of the bank, and that the cashier cannot do this except on extraordinary occasions, and when the requirements are such as do not admit of delay. Two authorities are cited to support this proposition. Bank v. Armstrong, 152 U. S. 346, 351. It is there said:

The business of the bank is to ' lend, not to borrow, money; to discount the notes of others, not to get its own notes discounted.”

One Harper was vice-president and general manager of the Fidelity National Bank, who negotiated a note made by one. G-ahr for 8200,000, and indorsed by Harper. Complainant sought to charge the bank, although the money was used by Harper, and the bank received no benefit from the loan. Neither in fact nor in principle is that case similar to the one now before us.

The other case is Lamb v. Cecil, 25 W. Va. 288, which was again before the court in 28 W. Va. 653. In that case, Cecil was a director of the bank, and had a deposit. The bank became hopelessly insolvent, and, with full knowledge of the condition of the bank, the cashier, acting fraudulently with Cecil, turned over to him some discounted paper in payment of his deposit. Such transfer was held void. Both the cashier and Cecil,' a director, occupied positions of trust ■ towards the depositors and stockholders. If that case is construed to hold that a cashier has no presumed authority to turn out the notes and assets of a bank in payment of its debts, it is in direct conflict with the decision of this Court in Kimball v. Cleveland, supra. It is, however, there said:

“I think it is the practice for the cashier of a bank, in pressing emergencies, to rediscount the bills and notes of the bank to raise money to pay depositors and meet •other demands of the bank. But this is only done on •extraordinary occasions, and when the requirements are .such as do not admit of delay. It is customary, wherever it can be done, to consult the directors, and obtain their •consent to make such rediscounts. It is a matter which ■does 'not come within the ordinary duties of the cashier, and is not one of his inherent powers; but, inasmuch as it is a power which is exercised by him under some circumstances, a transfer of such bills and notes, made by him in the usual course of the business of the bank, to a person who has no reason to doubt the propriety •of the transfer, or to question its good faith, will be prima facie valid, and vest a good title in the transferee. The validity of the transfer in such case will be sustained upon the ground that the transferee had a right to presume that the cashier had from the board of directors either an express or implied authority to make the transfer, and not because he had, by virtue -of his office, inherent power to do so.” Lamb v. Cecil, 28 W. Va. 659.

The question now under discussion was not involved in •either of these cases. The question, however, is reduced to the power of the board of directors; for, as already shown, if the board had the power, and the cashier exercised it, under the above facts, his act binds them. We are not •concerned to determine whether such a power is wise or unwise. Much can be said against it. It would, however, be a surprise to the banking interests of the State to find that no such power existed. It has been exercised for many years, and in the course of the business the transferring bank makes itself liable by indorsement. The rediscounting bank must, of course, rely upon the liability of the transferring bank, with whose responsibility it is familiar. The extent of this business will be seen from an examination of the reports of the Commissioner of Banking, under the heading- Notes and Bills Rediscounted.” An examination of the report of 1893 discloses that there were 68 ■State banks and 45 national banks in this State carrying rediscounted paper. The amount of such paper, December 19 of that year, was nearly $1,100,000. There must therefore have been a concensus of opinion among the attorneys for these banks that such power existed. We need not -discuss the subject further. The authorities fully sustain this power. People’s Bank v. National Bank, 101 U. S. 181; Bank v. Wheeler, 21 Ind. 90. See, also, Bank v. Perkins, 29 N. Y. 554; Cooper v. Curtis, 30 Me. 490. Plaintiffs rediscounted this paper in the due course of business, and without any notice or reason to believe that the cashier had not full authority.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Gideon C. Draper v. Byron S. Ashley et al.

      Mortgage — Priorities—Subrogation.
    A first mortgage was foreclosed in chancery without making the second mortgagee a party. The land was bid in by the first mortgagees, one of whom conveyed his interest to his co-mortgagee, and he quitclaimed the land to the mortgagor, who had remained in possession upon an understanding that he should have an opportunity to secure money to redeem. The consideration was $2,500 due upon the first mortgage, $2,250 of which the mortgagor secured by mortgaging the land to a loan association, which supposed from the report of its attorney, who had examined an abstract of the title to the land, that it was securing a first mortgage. And it is held that in equity the making of the deed to the mortgagor and the mortgage to the loan association should be regarded as one transaction, and that the association is entitled to be subrogated to the rights which the first mortgagee had when the loan was made, at which time the second mortgagee had the right to redeem from the foreclosure of the first mortgage, or to foreclose his own mortgage, subject to the lien of the first mortgage.
    Appeal from Jackson.' (Peck, J.)
    Submitted on briefs February 12, 1895.
    Decided April 2, 1895.
    Bill to foreclose a mortgage, and to declare complainant's mortgage a first lien on the property, etc. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Melville Stone, for complainant.

      Henry É. Edwards {Wilson <& Oobb, of counsel), for defendant Peninsular Building & Loan Association No. 2.
   Montgomery, J.

Byron S. Ashley, being the owner of certain premises in the city of Jackson, on the 15th of June, 1886, executed a mortgage for the sum of $2,150 to-Frances J. Wall and William Duifany, which was recorded on the same day. On the 14th of September, 1888, he-executed a second mortgage covering the same premises, to Gideon O. Draper, for the sum of $970, which was recorded on the 27th of September, 1888; On the 19th of February, 1889, Duifany and Wall filed a bill in chancery to foreclose their mortgage, but did not make Draper a-party defendant. The sale was made on the 8th of March, 1892, and the premises were purchased by the mortgagees, Duff any and Wall, for the amount of their mortgage, interest, and costs, — $2,500.37. Wall subsequently quit-claimed to Duifany, and on the 12th of April,'1892, Duffany contracted to sell the premises back to the mortgagor, Byron S. Ashley, who had continued in possession upon an understanding that he should have an opportunity to-secure money to redeem. The contract was for the amount due upon the mortgage, of which Ashley paid down $250, agreeing to pay the balance on or before June 1, 1892. Upon the payment being made, Duffany executed to Ashley a quitclaim deed of the premises on the 6th of June, 1892. On the same day defendant Ashley and his wife executed a mortgage upon said premises to the Peninsular Building & Loan Association No. 2, to secure the sum of $2,250, advanced to them to assist in the purchase of the premises from Duffany. Prior to the execution of this mortgage, however, and before the deed had been made from Duffany to Ashley, Ashley had applied to the loan association for a loan upon the premises, and $500 had been advanced, and a mortgage for that sum had been executed by Duffany:, apparently with the expectation that it would be subsequently taken up when Ashley should effect a loan for the larger sum. Prior to the execution of the deed from Duffany to Ashley, the attorney for the building and loan association, by the direction of the association, investigated the title. This he did by the examination of an abstract of title, and reported as follows:

“I have examined abstract for Ashley loan, and find! the same correct down to April 6, 1892, and to William Duffany. We should have deed from Duffany to Ashley, and our mortgage discharged."

This reference was to the $500 mortgage which had been executed by Duffany to the association. The president of the association testified that, when the loan was made, he understood that Duffany and Wall had acquired a good title to the land under their foreclosure, and that such foreclosure operated to cut off all previous mortgages. The attorney who made the investigation testified that he represented the association both at the time the loan in question was made, and also at the time the loan to Duffany was made; that the examination which he made of the title was from an abstract, which was offered in evidence, and from which, he testifies, it appeared that the Draper mortgage had been entirely cut off; that he made no examination of the files in the register’s office to determine whether all the parties in interest had been made parties to that foreclosure, and he knew of no claim that Draper made upon the property until the time of the commencement of the present suit; that he recommended the loan to the association on the ground that -the Duffany and Wall foreclosure had been regular.

Default having been made by Ashley upon the mortgage executed to the association, proceedings were commenced to foreclose by advertisement. Thereupon Draper filed his present bill of complaint to foreclose- his own mortgage, to restrain the foreclosure of the mortgage of the building and loan association, and to have his mortgage declared a first lien upon the property, and entitled to priority over the mortgage of the building and loan association. The loan association filed an answer in the nature of a cross-bill, asking that its mortgage be declared entitled to priority, and that the property be sold to satisfy the amount due thereon. A decree was granted in accordance with the prayer of the cross-bill, and complainant appeals.

The failure of Wall and Duffany to make the complainant a party to the foreclosure proceedings instituted by them left with the second mortgagee the right to redeem from the first mortgage (2 Jones, Mortg. 1425, 1431; Avery v. Ryerson, 34 Mich. 362); and, had the mortgage to the building and loan association been executed by Wall and Duffany, there would have been little difficulty in saying that the association was subrogated to the rights of the first mortgagees, and was entitled to priority over the complainant. But a question of greater difficulty is presented by reason of the fact that there was a conveyance to Ashley, whose duty it was to pay the complainant’s mortgage. It is clear that, as between Ashley and the complainant, •complainant’s lien would become a first mortgage; and, as .a general rule, one who pays off a prior incumbrance, and takes a new security for the advance, is not entitled to priority over an intervening incumbrance. See Mather v. Jenswold, 72 Iowa, 550; Building & Loan Association v. Scott, 86 Id. 431; Kitchell v. Mudgett, 37 Mich. 81. But we think that in equity the making of the deed from Dufiiany to Ashley and the mortgage to the loan association should be regarded as one transaction. There can be no doubt that the loan association supposed that it was ■obtaining a first security upon this land, and under these ■circumstances we think it is no hardship to hold that the .association is entitled to be subrogated to the rights which Dufiiany had at the time of the loan. At this date, the rights of the complainant were, as above indicated, clearly •defined. This gave him the right to redeem from the foreclosure of DufEany and Wall, or to foreclose his own mortgage, subject to the prior lien of Dufiiany and Wall. No hardship has resulted to him, that the security of the prior mortgage has been in effect transferred to the building And loan association, whereas, if it should be held that the mortgage of the association was subject to the complain.ant’s mortgage, it would be directly against the equities of the parties, as well as against their manifest intention.

The circuit judge was of the opinion that the officers of -thé association had been guilty of no laches in receiving this mortgage supposing it to be a first lien, and we think the facts shown by the record justify that conclusion.

The decree of the court below will be affirmed, with costs.

The other Justices concurred.


author: Hooker,

text:
    Moses R. Taylor v. Charles P. Downey, Survivor, etc.

      Bailment — Hotel-keepers—Liability to regular boarder.

    The day clerk of an hotel gave to a regular boarder the use of a drawer in the office safe, to which there was but one key> which was delivered to the boarder, for the deposit of money which the boarder had drawn from the bank to use in paying off men in his employ. A week or two later the boarder found that the drawer had been forcibly opened, and the-money taken therefrom, by the night clerk of the hotel. And. it is held that the proprietor of the hotel was, at the most, but a bailee for hire, and not liable for the loss of the money if ordinary care and diligence were used in the employment, of the night clerk.

    Error to Ingham. (Person, J.)
    Submitted on brief» February 12, 1895.
    Decided April 2, 1895.
    Case. Plaintiff brings error.
    Affirmed.
    The facts are-stated in the opinion.

      Cahill & Ostrander, for appellant.

      F. 8. Porter (R. A. Montgomery, of counsel), for defendant.

       As to the liability of a bailee for the wrongful appropriation by his servant of the thing bailed, see note to this case as reported in 29 L. R. A. 92.

   Hooker,

The plaintiff was a regular boarder at the-defendant's hotel, where he had lived for some months. Being engaged in building, he drew money from one of the city banks for the purpose of paying his men; and, not wishing to keep it about his person, he requested the-defendant's day clerk to put it in the safe, which was. kept in the office of the hotel, and to give him a receipt for the amount. The clerk answered, “I will give you a drawer in the safe, that has but one key, and you can keep that.” This was accepted, and after the money was •expended the plaintiff returned the key. Two or three weeks later the plaintiff drew $200 from the bank for a •similar purpose, and asked the defendant’s clerk if the •drawer was vacant. He was told that it was not, but that he could have another which had but one key. He took the key, and locked the money in the drawer. A week or two later he found that the drawer had been forcibly opened, and the money taken, by another clerk of the defendant, who had charge of the ofSce nights. It'was ■the practice to leave the safe open, defendant keeping a day and a night clerk. Action being brought against the defendant to recover the amount taken, the circuit judge directed a verdict for the defendant, from which the plaintiff has appealed.

The testimony shows that the night clerk was employed by the defendant upon recommendations from other reputable proprietors of hotels. Defendant had seen him •once before employing him, on an occasion of his visit to his father, who was at the time a boarder at defendant’s hotel.

Counsel for plaintiff admit that the relation between the parties was that of boarding-house keeper and boarder, and that such relation differs from that of inn-keeper and guest. They claim that the defendant was a bailee for hire, and therefore liable for loss of property by the bailor through fault of .the bailee’s servants. It is said that the defendant was in the habit of allowing boarders similar privileges to those enjoyed by transient patrons, but, if this is important, we discover no evidence to that effect. If the defendant was a bailee for hire, he owed the same care and diligence that all mutual benefit bailees are bound to exercise for the preservation of the property, viz., ordinary care, and “for nothing less than ordinary negligence, or the failure to exercise such care and diligence as persons of average prudence bestow upon their own property under like circumstances, is he, while confining himself to the terms of the bailment, legally responsible.” Schouler, Bailm. §§ 15, 316; Millon v. Salisbury, 13 Johns. 211; Collins v. Bennett, 46 N. Y. 490; Chamberlin v. Cobb, 32 Iowa, 161; Story, Bailm. § 398; Smith v. Read, 52 How. Prac. 14, 6 Daly, 33; Lawrence v. Howard, 1 Utah, 142; Johnson v. Reynolds, 3 Kan. 257; Wiser v. Chesley, 58 Mo. 547; Comp v. Bank, 94 Penn. St. 409. Such bailee is in no sense an insurer, as an inn-keeper is sometimes said to be, of the property of his guest; but he may be held liable for negligence upon his own part, or the negligence of a servant, if such negligence amounts to a want of ordinary care. If a liability is to be based upon negligence, in this case, it must be based upon a want of care in the employment of the night, clerk, for it cannot be said that the clerk was negligent. On the contrary, he committed a felony by stealing the property, not only of the plaintiff, but the defendant also. It was done while in charge of the office by virtue of his employment. It was a complete and deliberate departure from his duty, and an entering upon an enterprise of his own, wholly outside of the scope of his employment. It was an illegal act, willfully done, for which the employer cannot be required to respond. See opinion of Patteson, J., in Lyons v. Martin, 8 Adol. & E. 512; Stevens v. Woodward, 50 Law J. C. P. 231; Foster v. Bank, 17 Mass. 479; Bank v. Guilmartin, 88 Ga. 797; Comp v. Bank, 94 Penn. St. 409; Haggerty v. Railroad Co., 59 Mich. 366; Sutherland v. Ingalls, 63 Id. 620; Mechem, Ag, §§ 740, 741. There is nothing to show that the defendant did not use ordinary care and diligence in the employment of the clerk, and we must therefore hold that no recovery can be had upon the ground of negligence. This discussion has been based upon the assumption that the deposit was a bailment for mutual benefit. This was not conceded in the case.

Counsel for the plaintiff argue, further, that the defendant “made it a part of his business to receive and take charge of the property of his boarders, and is liable for its safe-keeping,” and that, while “ there is no direct compensation for this service, * * * the contract for the safe-keeping was accessory to the main contract for board, and the plaintiff is entitled to damages for the-breach of it, the same as a traveler upon a railroad train is for the loss of his baggage.” We think there is a radical difference, the contract of the railroad -company amounting to an undertaking to deliver the baggage as well as the passenger. The cases cited to sustain this point are cases of inn-keeper and guest. 1 Smith, Lead. Cas. (8th ed.) 416; Needles v. Howard, 1 E. D. Smith, 54.

There is not a uniformity of decision upon this question of a boarding-house keeper’s liability to a boarder. In Dansey v. Richardson, 3 El. & Bl. 144, a divided court affirmed the instruction that a boarding-house keeper did not contract to safely keep baggage of a boarder. This was where a servant carelessly left a hall door open, permitting a 'thief to enter and steal the baggage, which was in the hall.

In Holder v. Soulby, 8 C. B. (N. S.) 263, Erle, J., protested against the claim that it was the duty of the keeper of a lodging-house to take care of a lodger’s goods, and said that, where the proprietor had done nothing which amounted to a misfeasance, he knew of no authority or principle upon which he could be held responsible for mere absence of care. In a note to that case it is said that, “even in the case of a common inn, the inn-keeper is not liable as such to persons who reside permanently at. his house as boarders, nor otherwise than for actual negligence;” citing Chamberlain v. Masterson, 26 Ala. 371; Manning v. Wells, 9 Humph. 748.

In Lawrence v. Howard, 1 Utah, 142, it was held that requiring lodgers to lock their rooms and deposit the key at the office was ordinary diligence. Indeed, the court went further, ánd held that only slight care was required, implying that there was no bailment for mutual benefit in that case. The goods were stolen from the room where the proprietor left them after the plaintiffs departure.

The case of Jeffords v. Crump, 12 Phila. 500, holds that “an inn-keeper is not liable for goods of a boarder, stolen from the inn, unless there be proof of gross negligence;” thus implying, as did Lawrence v. Howard, that it was a case of depositum. See, also, Neal v. Wilcox, 4 Jones (N. C.), 146.

The case of Smith v. Read, 6 Daly, 33, is perhaps as strong a case in support of the plaintiffs contention as any, and this goes no further than to hold that ordinary care is due. See, also, Calye’s Case, 8 Coke, 32a; Bac. Abr. “Inns and Inn-keepers,” C (5); Vance v. Throckmorton, 5 Bush, 41; Woollen Co. v. Proctor, 7 Cush. 424; Hancock v. Rand, 94 N. Y. 1; Bish. Non-cont. Law, § 1171; Johnson v. Reynolds, 3 Kan. 257; Car Co. v. Lowe, 6 L. R. A. 809, and note; Shoecraft v. Bailey, 25 Iowa, 553.

It is probable that this is the limit of the rule, viz., that boarding-house keepers are liable, as bailees for mutual benefit, for the preservation of goods brought upon the premises by boarders. The nature of the liability is mot changed by a deposit in the safe, though the degree cf care may be increased over that required where the boarder retains the custody of valuables; but the keeper cf the house is still a bailee for mutual benefit, and still ewes the duty of ordinary care, which varies in degree as the responsibility is thrown upon him or is assumed by the owner.

In this case it is contended by counsel for the defendant that this was a mere deposit; that the plaintiff drew his money from the bank where he usually kept it, and, for his own convenience, chose to make the safe his bank, which should not be said to have been contemplated by either party as a part of, or accessory to, their contract for board. It may be that there is room for such a distinction, but it is unnecessary to determine the question. The most that plaintiffs counsel can claim is that the defendant was a bailee for hire. If that be conceded, ordinary care was required. There is no proof that it was lacking.

We must therefore affirm the judgment of the circuit court.

The other Justices concurred.


author: Hooker, J.

text:
    William F. Fratcher v. Sarah Smith.

      Landlord and tenant — Subletting—Statute of frauds — Notice to • quit — Summary proceedings — Evidence.
    1. The owner of a written lease of a building having three years to run verbally sublet a portion of the leased premises at a monthly rental. And it is held that the sublessee acquired an interest in land, within the meaning of How. Stat. § 6179, which prohibits the creation by parol of any estate or interest in lands, other than leases for a term not exceeding one year.
    2. An oral notice given April 5, requiring the sublessee to quit on or before May 6, being the day after the expiration of one year from the date of the subletting, was sufficient, even if the agreement was for the unexpired term of the original lease.

      3. Summary proceedings to recover possession of the portion of the premises covered by the sublease, instituted on May 6, were not premature, the year having fully expired.

      4. While the admission of testimony as to the value of certain. furniture which the sublessee claimed to have purchased from the owner of the lease at more than its real value as a consideration for a subletting for three years, which she claimed was the agreement, but which he denied, claiming it was for but one year, might not have been error, it was proper to-exclude it.
    Error to Wayne. (Brevoort, J.)
    Submitted on briefs February 13, 1895.
    Decided April 2, 1895.
    Summary proceedings to recover the possession of leased premises. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Atkinson & Atkinson, for appellant.

      John PL. Powell, for complainant.
   Hooker, J.

One Latulip owned a lease of a building in Detroit for five years. At the expiration of the second year, viz., on May 5, 1891, he made a parol agreement by which he sold to the defendant certain furniture in the second and third stories, and let' her said stories at a rental of $35 a month. The parties disagree about the length of time that the defendant was to have the premises, she claiming that she was to have them for the unexpired period, and Latulip testifying that it was for a year. She took possession May 6, 1891. On April 5, 1892, the complainant, who had purchased Latulip’s lease, gave her an oral notice to quit on or before the 6th of May, 1892, and instituted these proceedings to recover the possession upon her failure to vacate.

Complainant’s contention is that the lease was for one year, and that no notice was necessary, and that, if the arrangement was for three years, it was void under the statute of frauds, and the notice of April 5, of one month, was sufficient, rent being payable at monthly intervals. The defendant's counsel claim that the lease for five years was a chattel interest; that Latulip did not lease the premises, but assigned his chattel interest, which he could lawfully do by parol. No authority is cited in support of this proposition except How. Stat. § 5521, which states that estates in land for years are chattels real, and the cases of Buhl v. Kenyon, 11 Mich. 249, and Grover v. Fox, 36 Id. 453, which hold that such estates are to be sold upon execution under the rules pertaining to the sale of chattels on execution, and not under laws providing for sales of real estate upon execution. These cases are not, in our opinion, antagonistic to How. Stat. § 6179, which provides:

No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed .by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.''

The defendant certainly acquired an interest in land, and it matters not whether it was by assignment or otherwise. It clearly was not by assignment, however, as it covered but a portion of the premises, and a different rent, was reserved. It was obviously a case of subletting. An oral notice to quit was sufficient. Com. Dig. tit. Estates by Grant,'' G 11, note p; Roe v. Pierce, 2 Camp. 96; Bird v. Defonvielle, 2 Car. & K. 415; 2 Tayl. Landl. & Ten. § 482, and cases cited. See How. Stat. § 5774. The court instructed the jury that, if the renting was for one year, no notice was necessary, but, if the arrangement was for three years, it was within the statute of frauds, and defendant could not be dispossessed unless a notice was served a month before the expiration of the year. He left both questions to the jury.

It is asserted that proceedings were prematurely begun, but the evidence shows a leasing on May 5, and the proceedings were commenced May 6. The year had fully expired, and the complaint was seasonably made.

Error is assigned upon the exclusion of testimony concerning the value of the furniture, upon the claim that a large price was given in consideration of a lease for. three years. The conversation was admissible, and was not excluded, but the private reasons of defendant for her action were immaterial; and, while the admission of proof of the value of the furniture might not have been error, we think it was proper to exclude it.

The judgment will be affirmed.

The other Justices concurred.


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    Sarah McArthur v. George J. Robinson et al.

      Mortgage — Deed absolute in form — Parol evidence — Accounting.
    1. It is competent, in a suit to declare a deed absolute in form to be a mortgage, to show by parol testimony that the deed was in fact made as security for a loan; citing McMillan v. Bissell, 63 Mich. 69.
    2. The proof in such a case should be clear and convincing, and sufficient to overcome the presumption that the instrument in question truly represents the transaction in its entirety; but, in weighing the testimony, the fact that there was a considerable inadequacy of consideration, as well as the fact that the original application was for a loan, are deemed of weight and importance in determining the main question,

      3. While it is true that such a deed is in equity a mortgage, a deed is required to revest the title in the grantor.
    4. In a suit to declare a deed absolute in form to be a mortgage, with leave to redeem, it appeared that, before the execution of the deed, the grantor had sold on contract a portion of the lands described in the deed, and that the defendant, who secured the making of the deed, had induced the holder of the legal title to the contracted lands, which he held in trust for the vendor, to convey the lands to the vendee, who paid the defendant the ambunt due on the contract. And it is held that the money thus received was a trust fund; that, when the deed sought to be declared a mortgage was given, this money had taken the place of the contracted land, which was included in said deed; and that it is not inequitable that the defendant should be held to apply this fund towards the extinguishment of the debt secured by said deed.
    5. Where, on an appeal in a suit brought to declare a deed absolute in form to be a mortgage, it appears that, while the complainant has established her claim, the record is not sufficiently full to justify the entry of a decree without an accounting as to the amount due the grantee, the case will be remanded for such an accounting.
    Appeal from Bay. (Cobb, J.)
    Argued February 13, 1895.
    Decided April 2, 1895.
    Bill to declare a deed to be a mortgage, and for leave to redeem. Complainant appeals.
    Decree reversed, and record remanded for an accounting.
    The facts are stated in the opinion.

      Frank Emerick, for complainant.

      T. A. E. & J. G. Weadock and James E. Duffy, for defendants Bobinson.
   Montgomery, J.

The bill in this case is filed to have a deed of certain lands in the county of Alpena, executed by David D. Oliver and wife to Alfred E. Hawes, and bearing date the 16th day of June, 1879, declared to be a mortgage, given as security for the repayment of a loan of $150, with interest, and for leave to redeem. Complainant has succeeded to the rights of Oliver.

The bill alleges that, in receiving the deed, Alfred E. Hawes acted as the agent and attorney of defendant George J. Eobinson, and sets out somewhat in detail the previous relations existing between Oliver and George J. Eobinson, which it is unnecessary to set forth at large in this opinion. It is sufficient to say that, at the time of the execution of this deed, certain litigation was pending in the United States circuit court for the Eastern district of Michigan, in which Oliver was complainant and George J. Eobinson was one of the defendants, but in which, by an agreement between the counsel representing each, their interests were identical. In this suit there were other defendants against- whom a decree was sought, and who were seeking a discharge in bankruptcy. As, by the agreement between the counsel of Eobinson and Oliver, Eobinson was to share in the avails of any decree which should be obtained, he, as well as Oliver, was interested in preventing the discharge in bankruptcy of his co-defendants.

This being the state of facts, on the 19th of May, 1879, Oliver, who then resided at Detroit, wrote to defendant George J. Eobinson, at Alpena, desiring the assistance of Eobinson in raising money to contest the application for the discharge in bankruptcy of Cunningham, Haines, and Eanney, defendants in the suit in the federal court. It appears that Eobinson was away from home at the time, -but on h^'s return, on the 29th of May, he answered the letter, saying, in effect, that he deemed it of the greatest importance to prevent the discharge of Cunningham, but without suggesting any means of raising money. Two days later, Eobinson wrote to Alfred E. Hawes, who was then his attorney in the litigation in the federal court, as follows:

“Oliver writes me in relation to Cunningham’s discharge. I concur with him on the importance of holding Cunningham tied until the suit at Detroit is adjusted. It is certainly most important. He wants me to go to Syracuse, .and he wants money. .Now, he has certain equitable rights in a large- amount of lands in this county and adjoining •counties. They have been stripped of timber and eaten up with tax claims; yet, if one had them straightened up in title, he could likely get a few hundred dollars out of -them, and if Oliver would quitclaim them to you for $100 ■or $200, to be used in paying our expenses and fighting •Cunningham’s discharge, it would be best to do it, rather than let Cunningham get off, and, if you can’t raise the money for him, I would do it myself, through friends. I write you a letter so you can show it to him, and you had better drop him a line — postal card — to 419 7th street.”

Inclosed was a letter which was intended to be shown to Oliver, and which read as follows:

“May 31, 1879.
“Friend Hawes: Mr. Oliver writes me in relation to ■Cunningham’s discharge. It is very important that it be ■defeated until Oliver takes judgment. Mr. Oliver seems in doubt as to his ability to raise funds to oppose it. You know I have had so much delay and so little returns, or I might be able to stand this much. Some time ago you said, you could let me have a little, and I did not then need it. Can’t you do it for Mr. O.? I presume he can secure you, as he has an equitable interest in lands, and, although the title is badly mixed with adverse ■claims and tax titles, yet I have no doubt a little could be realized from them by swapping titles, clearing off ■clouds, — enough, probably, to pay what he wants, and pay for the actual trouble and expense. I will hand you a list ■of them, and you can talk the matter over with him.
“Bespectfully yours, George J. Bobinson.”

On the 7th of June, Hawes wrote to Bobinson, saying •that Oliver did not want to quitclaim his interest in the lands, but would mortgage them; and on the 8th of June Hawes wrote another letter to Bobinson, in which he-says:

“ Oliver was just in. He will take $400 for the first group, $1,500 for the middle group, or $300 for the bottom group, if sold separately, but will not sell them all for less than $2,500.”

To this, defendant Robinson replied, under date of June 12:

“Friend Hawes: Yours of the 8th is at hand. I am not in need of lands or of lawsuits, and don't want to-buy any of Oliver's, as you may well imagine, or to advise you to do so, but I do want to assist him in opposing Cunningham's discharge, for the interest of all concerned. If you can loan Oliver what he wants on such terms as you may be mutually benefited, I will say to you this: I will pay you $150 for Mr. and Mrs. Oliver's quitclaim deed to the following lands: Lots 1, 4, and 5, and the south-west quarter of the north-east quarter, section 21, town 31, 8 east; south-east quarter of section 25, 31, 6; lots 3 and 4, and the north half of the north-east quarter, section 32, 32, 7; south-east of the north-west and the north-east of the south-west, section 28; south-west of the north-east and the south-east quarter and the east half of the south-west quarter of section 29, — all in town 32 north, range 7 east. The proposition to take these lands off your hands to stand for 60 days, and no longer. While this is-a long list of lands, it is doubtful whether the interest named will bring anything, but, as I am not seeking to buy, it is unnecessary to discuss this point. If the above proposition enables you to deal with Oliver, it will accomplish all I seek to do, and I take it to be for your advantage to facilitate his plans. This is as far as I can possibly go in the matter, and at present I have no funds-at my command; but if you trade, and must have the money sooner than 60 days, I will try and get around sooner.
“Respectfully yours, George J. Robinson.”

The lists which were referred to in Hawes' letter of June-8 to Robinson appear to have been lost, and it does not very clearly appear whether the lands mentioned in the-letter of June 12, being the lands in controversy in this-case, are the same as those mentioned in the bottom group-referred to in the letter of Mr. Hawes, although defendants' counsel appear to assume that they were substantially identical. Oliver, however, testifies that the list contained. in the letter of June 12 was taken from the three first-mentioned groups, and was not identical with either.

The testimony of Oliver tends to show that after the receipt of this letter of June 12, and on the 16th of June, a conveyance of the lands in question was prepared, upon an agreement that Hawes should loan to him (Oliver) $150, and accept a quitclaim deed as collateral for the loan, and that it was agreed that, when the $150 with interest should be paid, the land was to be re-deeded to Oliver. He also testified that he understood at the time that Hawes represented Eobinson in the transaction. His testimony is supported by the testimony of Charles F. Burton, an attorney, who testifies that at about that time he had some conversation with Mr. Eobinson, not with especial reference to any particular description of land, but with reference to the business for which he (Eobinson) was giving Mr. Oliver money, and for which the deed was given, and that Mr. Eobinson proposed to advance to Mr. Oliver money for that purpose, provided he could have some security for the money, and that, in order to give him security for the repayment of the money, Mr. Oliver made this deed of the land to Mr. Hawes; that Mr. Hawes was acting for Mr. Eobinson; and that the deed was given to secure that payment. Mr. Burton accompanied Mr. Oliver to the office of Mr. Hawes, and, as the deed had not been acknowledged by Mrs. Oliver, a receipt was given for an advance of $50, which receipt read as follows:

“Eeceived of A. E. Hawes $50, as part payment of the purchase price of the within-described parcels of land, balance to be $100.
“Detroit, June 16, 1879.
“David D. Oliver.”

George J. Eobinson and Hawes both deny the statements ofi Oliver and Burton, and both testify that the deed was an absolute deed.

On the 16th of June, Eobinson wrote Hawes as follows:

“Friend Halves: Yonr telegram is at hand, and draft will be honored. I presume you fully understand that I am to deal with you for the lands, per agreement, and that, if the amount of draft is not repaid on specified time, you will deed me the lands. I don’t want anything that could be construed into a mortgage, as the property, viewed in all its contingencies and valuations, would not warrant a loan on mortgage and its drawbacks in the way of foreclosure, etc., etc. I take it the parties do not understand they are dealing with me at all. I am straining myself a good deal just now, and, except for the pressing necessity of the matter, would be glad to have nothing to do with it.’’

To this Mr. Hawes replied, by letter of June 18:

“ Friend George: Yours of the 16th at hand, and noted. You need not be apprehensive about the future in the Oliver deal. I made with him an out and out sale and purchase of the lands. He wanted me to loan him the money at 60 days, and that he would pay for use of it $50 at that time, but this I refused to do. So, said he, ‘ I must have the money, and you may have the lands for the $150.’ You are in no way known in the matter, and have nothing to do with it unless you choose to take the lands off my hands at the price agreed upon.
Yours truly, A. E. Hawes.’’

It will be seen that there is an irreconcilable conflict in the testimony, but, as bearing upon the question of what the understanding of Oliver was, we think the letter of Eobinson of June 12, which was the last one before the time of the execution of the contract, and which was intended to measure Hawes’ authority, is very significant. In' this letter the proposition was not for Hawes to purchase from Oliver, but Eobinson says:

“If you can loan Oliver what he wants on such terms as you may be mutually benefited, I will say to you this: I will pay you $150 for Mr. and Mrs. Oliver’s quitclaim deed to the following lands,’’ etc.

The fact should not be lost sight of that, before the suggestion came to Hawes that Robinson did not want a mortgage, the transaction had been substantially closed. A portion of the money had been advanced, and the quitclaim deed prepared, and whatever agreement was made between the parties had been perfected.

As further proof bearing upon the accuracy of the recollection of Hawes and Robinson, Hawes testifies that the -deed was intended to convey to him in his own right, and not otherwise, the title to these lands; that the deed was not executed and delivered to him either as an agent, attorney, or trustee of George J. Robinson or any other person; that he conducted the negotiations on his own account for the purchase of these lands for $150 cash; and that he afterwards resold the same to Robinson at a profit to himself. The whole correspondence tends to negative this statement, and the statement is, moreover, in conflict with the sworn statement of George J. Robin-son in another -proceeding, which will be. hereafter referred to. But Robinson also testifies in this proceeding as -strongly as does Hawes; his attention being called to the testimony of Hawes, above quoted, and this question being put: '

And he swears here that he- afterwards did sell them to you at an advance or profit to himself. Is that the fact?
“ A. Well, I think that I allowed him some little commission in the matter. I think I did.
“ Q. Did you give him more than $150 for them?
“ A. I think I gave him a trifle more than that. I -don’t remember just.
Q. Don’t you recollect how m*uch?
“A. No; I do not. I may have given him a ten-dollar note.
Q. That would have been liberal enough?
“A. Yes, sir.
“ Q. The money that he paid for them he got from you, .didn’t he?
“A. No.
“ Q. It was his money?
“A. I don’t know where he got the money.
“ Q. It was not your money?
“A. It was not my money.
“ Q. You just bought them of him?
“A. Yes, sir. * * *
“ Q. But, at any rate, it was an out and out sale to him as an individual, as you claim?
“ A. Yes, sir.
“ Q. And not as your attorney?
“A. Not as my attorney.
“ Q. Nor agent?
“A. Nor agent.
“ Q. Nor trustee?
“ A. Nor trustee.
“ Q. Is it not a fact that he took that deed to himself simply because he was your attorney and agent, and was on the ground, and you absent from the city?
“A. No, sir.
“ Q. It is not so?
A. No, sir.”

It appears that in the deed which Hawes subsequently made to Mrs. Robinson, at the request of the defendant George J. Robinson, two descriptions of the land included in the deed from Oliver to Hawes were omitted, and a bill was filed .in the circuit court for the county of Alpena, against Hawes, to compel him to convey the omitted descriptions. In that bill George J. Robinson avers (and it is a sworn bill) that he purchased the lands in question of D. D. Oliver;—

That in said year 1879, and for some time prior thereto, Alfred E. Hawes was the general attorney of this complainant, and had charge of the general and legal business of complainant at the city of Detroit; that at the time of the execution of the deed of said lands, to wit, June 16, 1879, the complainant was absent from the city of Detroit, where said deed, was executed, and that said deed was executed by the said David D. Oliver to the said Alfred E. Hawes as the attorney and agent of complainant, and solely for that reason, he (said Hawes) having no interest whatever in said lands and. purchase, and that said conveyance was made to him (said Hawes) solely as the agent and attorney ■of complainant, and to be subsequently, on demand, deeded -to this complainant.”

If this sworn bill of Robinson’s states the truth, it is •charitable to assume that the recollection of Hawes and Robinson has since .grown somewhat dim; and, if their recollection is in fault in this important particular, it is not impossible that it may be in fault in other respects.

The record shows that Oliver made other loans of defendant Robinson, and gave security on other lands, and some time after this transaction he wrote Robinson as follows:

. “ What will you take to deed me the lands that I deeded to Mr. Hawes, and what interest you have in town 29 north, of range 8 east, and I give a mortgage on the land reconveyed, and a mortgage on section 12, town 29 north, R. 8 E., for the payment of $1,000 a year for two years, and balance when suit is decided by Supreme Court?”

The defendants strenuously insist that this note is inconsistent with the claim which Oliver now makes, — that the deed to Hawes was simply made as security. We think, however, it is subject to explanation, and Oliver testifies that he would not know how else to express the transaction. While it is true that the instrument was a mortgage in equity, it was a deed in form, and it would require a deed to revest the title in Oliver. The latter did not ask of Robinson what he would take 'to sell the lands to him (Oliver), but what he would take to deed -the lands. As this was the form of conveyance which would be requisite, it might mean no more than the word ■“release” would have meant if the transaction had been ■evidenced by a mortgage in the usual form.

We think, on the whole record, that the complainant has sustained her. case by a preponderance of the testimony. It is settled that it is competent to show by parol ■that a deed absolute in form was in fact made as security for. a loan. McMillan v. Bissell, 63 Mich. 69, 70. It is. true that in this class of cases the proof ought to be clear and convincing, and sufficient to overcome the presumption that the instrument in question truly represents the transaction in its entirety; but, in weighing the testimony in such cases, the fact that there was a considerable inadequacy of consideration, which fact appears in this case, as well as the fact that the original application was for a loan, which appears beyond question to have been the fact here,, are deemed of weight and importance in determining the' main question. See Jones, Mortg. §§ 266, 329.

We are asked to determine that the full amount of the-loan has been repaid. It appears that a portion of the lands involved in this suit had been contracted by Oliver to one Brackinreed in 1866, and that there remained due-upon the contract $480. Subsequently the legal title was-vested in one Cunningham, but it was held in trust for Oliver. Robinson, being cognizant of this, went to Cunningham with a deed running to Brackinreed. Cunningham executed the- deed, and Robinson collected the money. This occurred in 1874, and before the loan made through Hawes to Oliver, and for which the conveyance here involved is a security. This conveyance was made by Cunningham with the expectation of holding the money in trust for Oliver, instead of the land. But Robinson, upon collecting the money from Brackinreed, kept it, and never paid it over to Cunningham, but testifies that he applied it on an indebtedness of Cunningham to him. There can be no doubt that this was a trust fund, and that Robinson knew that it was a trust fund, and that at the time of the giving of this security it had taken the place of the-land, which was included in the deed as a portion of the very security which Oliver executed for the advance of $150. It certainly is not inequitable that Robinson should be held to apply the fund which represented the land, and which, without the knowledge of Oliver, had found its way into his hands, towards the extinguishment of this liability.

But we think the record is not sufficiently full to justify the entry of a decree without an accounting. The case-will be remanded, and an accounting had. The defendants will be charged with the amount received from Brackinreed, the amount received on a sale of the S. W. £ of the N. E. £ of section 29, township 32 N., range 7 E., and with interest on these sums, and will be credited with the $150 secured by the deed, and with whatever-sums they have paid for taxes upon the lands in question,, with interest. If there shall remain a balance due the-defendants, the complainant will be required to make payment of the same,- as a condition to redemption, within 60 days from the date of the final decree. The reference-for accounting should be made to a circuit court commissioner of the county of Alpena.

As, in the view we take of this case, the defense is-wholly unconscionable, the complainant will recover costs, of both courts.

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


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    Orin B. Mosher v. Sally Mosher.

      Deed — Delivery—Cancellation.
    In a suit to establish a lost deed, and set aside a deed subsequently executed to the defendant, the bill charged that the first deed was executed on the sale of the land upon a valuable consideration paid by the grantee, subject to a life estate reserved to the grantor, and was delivered to a third person,subject to the condition that it should not be recorded until after the grantor’s death. And it is held that, while the evidence justifies a finding that the deed was executed and delivered as claimed, the allegation that it was upon a consideration actually paid by the grantee is not sustained; that the deed was subject to recall by the grantor; that the fair inference from the testimony is that the deed was by him recalled and destroyed; that he had the right to do this, and, the complainant having failed to establish the title alleged in his bill, the relief prayed for therein must be denied.
    Appeal from Hillsdale. (Lane, J.)
    Submitted on briefs February 14, 1895.
    Decided April 2, 1895.
    Bill to establish a lost deed, and to set aside a subsequent deed as a cloud upon complainant’s title. Defendant appeals.
    Decree reversed, and bill dismissed.
    The facts are stated in the opinion.

      F. A. Lyon, for complainant.

      James 8. Galloway (B. A. Waits, of counsel), for defendant.
   Montgomery, J.

The bill in this case is filed for the purpose of establishing an alleged lost deed, claimed to have been made in his lifetime by Oliver E. Mosher and Mary Mosher, his wife, to Alva L. Mosher and Eva Mosher, husband and wife, Alva L. Mosher being a son of Oliver E. Mosher. The bill also asks that a deed subsequently executed by Oliver E. Mosher to the defendant, who became the wife of Oliver E. Mosher after the decease of his former wife, Mary, be set aside as a cloud upon the complainant’s title. Complainant derives title by conveyance from Alva L. Mosher and Eva Mosher. The circuit judge decreed the relief prayed in the bill, and the defendant appeals.

The bill alleges that on the 17th of December, 1884, Oliver E. Mosher and Mary, his wife, .sold and conveyed the premises described to Alva L. Mosher and Eva Mosher, his wife, it being expressly understood and agreed that said Oliver E. Mosher and Mary Mosher should have the use, rents, issues, and profits of the real estate conveyed, being a house and lot, during the natural life of either, and that the deed of conveyance was not to be placed upon record in the office of the register of deeds until after the death of Oliver E. Mosher and Mary Mosher, and to that end the conveyance was executed and acknowledged for a valuable consideration, to wit, the sum of $1,500, then and there paid by said Alva L. Mosher, and the deed was delivered to one Robert "Weir, the same being a complete and absolute delivery of said deed of conveyance, with the agreement, however, that the same would not be placed of record until after the death of Oliver E. and Mary Mosher, and was then to be placed upon record in the office of the register of deeds.

There is no absolute evidence by any witness of the execution of this deed. One Walter R. Branch was sworn as a witness for . the defendant, after the complainant had rested, and testified to the execution of a deed from Oliver E. Mosher to the defendant, and, on cross-examination, testified that he had an impression that there was a former deed, but could not swear absolutely about it, and his impression was that the former deed ran to the younger son, Alva; and in answer to the question, “And you got that impression from either Mr. Weir or Mr. Mosher, didn’t you?” he answered, “No, sir; I think I drew the deed, as I remember it; I couldn’t swear to it;” and repeated that it was his impression that there was such a deed, but he could not swear to it, and, according to his recollection, the deed was to be left at the bank. The witness was unable to state what the conditions were upon which the deed was to be recorded. He seems to have gathered the impression that the deed was drawn and deposited, and that Oliver E. Mosher retained the right te cancel it if he saw fit. But his recollection is too indistinct to make for or against this theory.

The complainant called two witnesses who gave testimony of admissions or statements made by Oliver E. Mosher in his lifetime to the effect that he had deeded this land to Alva Mosher, reserving a life estate, and that the deed was deposited with Mr. Weir, to be recorded npon his decease. The first witness who testifies upon this subject is one Mr. Walworth, and he testifies that Mr. Mosher said: “I shan’t live but a year or two, and Alva will be all right at my death.” He said that at his death Alva would have the Hillsdale property; that he had deeded the property to Alva and Eva; he had placed the deed in Robert Weir’s hands, to be recorded at his death. This conversation took place in December, 1889, and the deed is alleged in the bill of complaint to have been made the 17th of December, 1884. Isaac Baker, who is' a brother of the first Mrs. Mosher, testified more fully. He testified that, in 1884, Oliver E. Mosher was indebted to one Eliza Miller in the sum of $750, or thereabouts, and that Oliver stated that he wanted Alva to assume this debt, and that he would give him and his wife a deed of the house and lot where he lived, reserving it to live in while he lived, and that he afterwards told the witness that the deed was deposited with Robert Weir, and was left there to be recorded at his death or his wife’s, and that he told him also that Alva did assume the debt, — that he gave his, Alva’s note, and took up his, Oliver’s. This is the only consideration shown for the deed.

Complainant called as a witness Mary E. Brown, the sister of Eliza Miller, who has since deceased, and she gave a very different color to the transaction relating to the taking up of the note running to Eliza Miller. In answer to the question, “Now, how did he pay the note?” she testifies: “Well, he put it in this way: He said he came to pay the note, and wanted to know if she wanted the money; that is, he wanted to know if she wanted the money, to bring it to the bank. It seems that it was in the bank when he came to pay it, and he was going to have her go down to the bank to pay it. And in the conversation he said that Alva Mosher wanted the money, if she wanted him to have it, and he had brought a note from Alva, and that would exchange his note and give to him, and give her Alva's note;'' and that this transaction was consummated. The precise date of this conversation is not fixed by this witness, but she testifies that her recollection is that it was after the death of the first Mrs. Mosher. The testimony shows that she died in March or May, 1886. In this recollection of the date, the witness is corroborated by the testimony of Solomon D. Mosher, a brother of the deceased, who testified that in August, 1886, Alva Mosher spoke to Oliver, his father, in the presence of the witness, and said, “Are you going to return that money?''referring to the money owing to Eliza Miller, and Oliver replied that he expected to; and that Alva then said: “I shall want to hire it, if you ain't going to hire it any longer. Q. Now, at that very time, wasn't he going to pay this note? Wasn't Oliver Mosher going to pay this note? A. No; not just then. He said he was going to pay it, and Alva said, if he did, he didn't know but he would like to hire it.” This testimony is wholly inconsistent with the claim that the consideration for this deed two years previous was furnished by Alva Mosher assuming the payment of this note to Eliza Miller.

While there is sufficient testimony in the case to justify a finding that a deed was executed and deposited with Weir, yet we are convinced that the allegation in the bill that it was upon a consideration actually paid by Alva Mosher is not sustained, and that such deed was subject to recall by Oliver E. Mosher, and the fair inference from the testimony is that it was recalled after his marriage to defendant, and destroyed. This he had a right to do. Taft v. Taft, 59 Mich. 185. As the complainant has failed to establish the title alleged in the bill, no relief can be granted him in this proceeding.

The decree of the court below will be reversed, and the bill dismissed, with costs.

The other Justices concurred.


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    Charles W. Waldron v. Julian A. Palmer.

      Justices of the peace — Jurisdiction of person — Waiver—Docket entries — Parol evidence — Adjournment—Pleading— Variance — Amendment.
    1. The presence of the parties to a suit in justice’s court, and their consent to an adjournment, without pleading, cures any defects in the service or return of service of the'summons by which the suit was commenced.

      2. An entry upon the docket of the justice as to such appearance and consent, being facts occurring in his presence, cannot be contradicted in an action upon the judgment rendered in the case.
    3. Where, in a suit upon a justice’s judgment, a question of variance between the declaration and the proof as to the date of the original summons arises, and the circuit judge decides that such variance does not exist, the appellate court, if, upon inspection, disagreeing with him, will treat his determination as an amendment, it being apparent that the case proceeded upon the theory that the date was correctly pleaded.
    4. The failure of a justice of the peace to enter upon his docket the place to which a case is adjourned, pursuant to How. Stat. § 7053, voids a judgment rendered on the adjourned day, it not appearing that the defendant knew where to attend, and the docket entries showing that he was not then present.
    Error to Hillsdale. (Lane, J.)
    Submitted on briefs February 14, 1895.
    Decided April 2, 1895.

      Assumpsit. Defendant brings error.
    Beversed.
    The facts are stated in the opinion.

      Arthur L. Guernsey (Timothy■ E. Dibell, of counsel), for appellant.

      F. A. Lyon, for plaintiff.
   Hooker, J.

Plaintiff recovered in an action upon a justice’s judgment, and the defendant appealed. A number of questions are raised upon the transcript of the justice’s docket.

The docket reads:

“1887, June 7. Summons issued returnable June 17, 1887, at 9 a. m., at my office in Hillsdale city.
“June 17. Summons returned personally served on June 9, 1887, by Walter St. John, Const.; fees, 12.35. Suit called. Parties appear, and adjourn by consent to July 2, 1887, at 9 a. m., without pleading.
“July 2. Suit called at 9 a. m. Plaintiff appeared. Defendant did not appear, and after a delay of one hour, and defendant not yet appearing, plaintiff goes to trial, and declares,” etc.

The presence of the parties and their consent to adjourn the suit, without pleading, cured any real or imaginary defects in what preceded it. It Vas a fact that occurred in the presence of the justice, and his statement of the fact officially cannot be contradicted collaterally. The case, of Facey v. Fuller, 13 Mich. 527, is conclusive of this question, and the fact that defendant did not choose to plead cannot lessen the credit to be given to the justice’s entry. If it could, two false entries would be conclusive, while one would not. This disposes of several assignments •of error, which will not be further mentioned.

An alleged variance between the declaration and proof in the trial at the circuit is relied upon. It was in relation to the date of the summons issued by the justice. The judge appears to have decided that the declaration •did not vary from the proof. Had he determined otherwise, he would, doubtless, have permitted an amendment; and if, upon inspection, we should disagree with him as to which year of the date was printed over the other, we should feel bound to treat his determination as equivalent to an amendment, as the case evidently proceeded upon the theory that the date was correctly pleaded.

It is contended that the docket did not state the place to which the case was adjourned. The summons was returnable at the justice's office in Hillsdale city. How. Stat. § 7053, provides that every justice shall keep a docket, in which he shall enter “every adjournment, stating at whose motion, and to what time and place.” The jurisdiction of the justice must affirmatively appear. If the adjournment was unauthorized, — e. g., if beyond the jurisdiction of the justice as to time or place, — the right to proceed with the case was lost. The same would be true if no place were named, for a justice may hold court at any appointed place within his township. The entry •does not show that he adjourned to any particular place; and, while it is probable that the parties understood that the adjournment was to the same place, it is as probable that nothing was said ibout the place, it being tacitly understood. In Wisconsin the failure to enter the time •and place of adjournment renders the judgment void. Roberts v. Warren, 3 Wis. 736; Brown v. Kellogg, 17 Id. 475; Crandall v. Bacon, 20 Id. 639; Grace v. Mitchell, 31 Id. 533; Brahmstead v. Ward, 44 Id. 591. The question arose in our own State in Whelpley v. Nash, 46 Mich. 26. On certiorari the circuit court refused to reverse the case for what it termed a “ clerical error.” But in that case the mistake was evidently clerical, for the defendant appeared and answered at the time to which the case was. .adjourned. This was a clear waiver. Again, it is significant that the Court cited the statute, How. Stat. § 7044, which it said “forbids reversals for such causes.” The .statute referred to is as follows:

“ The court shall proceed to give judgment in the cause ■as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the proceedings before the justice, which did not affect the merits; and may affirm or reverse the judgment, in whole or in part, and execution shall issue thereon, as upon other ..judgments rendered in the circuit or district court.”

Instead of treating the judgment as void, the defendant chose to review it upon certiorari, and it appeared that .he was relying upon a technical omission. That is not so in this case, for there is nothing to show whether the defendant knew where to attend, and it appears from the ■transcript that he was not present. The transcript should show jurisdiction. Mudge v. Yaples, 58 Mich. 307; Weaver v. Lammon, 62 Id. 366; Toliver v. Brownell, 94 Id. 577; Holmes v. Cole, 95 Id. 273.

The judgment must be reversed, with costs of all courts. No new trial will be directed.

The other Justices concurred.


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    Charles F. Campau v. The City of Detroit.
    Highways— User — Dedication—Instructions to jury.

    1. User of land as a highway for the statutory period conclusively establishes the dedication of the land for that purpose.
    2. The rights of the public in a highway which has become such by user are not affected by the listing of the land for taxation to the former owner, and the payment by him of the taxes so assessed.
    8. It is not error to refuse to instruct the jury as requested where the instruction asked for is not applicable to the evidence in the case.
    Error to Wayne. (Frazer, J.)
    Argued February 15, 1895.
    Decided April 2, 1895.
    Ejectment. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Edwin F. Gonely and Orla B. Taylor, for appellant.

      G. D. Joslyn, for defendant.
   Hooker, J.

The west line of a tract of land known as ‘‘ Private Claim 78’’ constitutes the center line of what is now known as “ Vinewood Avenue," in the city of Detroit. In 1846 the plaintiff’s mother, being the owner of said private claim, conveyed it by deed to one Keed, by a description which excluded the strip in controversy, being 15 feet in width off from the west side of said tract, which strip said deed described as a lane or road. The plaintiff testified that at a later date she gave' this strip of land to-him, but did not deed it to him until November 6, 1875. This land was not then within the city of Detroit. It would seem that the public were at the time using it for a highway, for not only is there testimony that there was a turnpike there which was worked for the width of 30 or 35 feet, but plaintiffs brief also indicates it by the statement that the plaintiff [after receiving the deed from his mother] immediately fenced it in; thus undertaking to dispute the right of the public in that 15 feet.” It is also indicated by the fact that proceedings for encroachment were commenced against the plaintiff by the authorities of the township of Springwells. These came to nothing, for some reason not given, and a proceeding thereupon instituted to condemn the land met a similar fate, though it does not appear that either proceeding settled the rights of the public or the plaintiff in the strip of land. The fence was soon removed, probably by trespassers, and the land was used as before by the public. In 1890 plaintiff brought this action of ejectment. The jury returned a verdict for the defendant, and the case seems to have turned on the question of user since 1876.

There was evidence that the strip had been assessed to the plaintiff, who had paid taxes upon it, continuously since he had received the deed from his mother, the land being at that time assessed by his direction. About 1885 the city came into control of this highway, and has laid sewers, graded and otherwise improved it.

The plaintiff claims that the court should have directed a verdict in his favor; that, if user for the statutory period was shown, it was under circumstances which negative the implication of a dedication, upon which he asserts that all highways by user in this State must rest. He relies upon the controversy in 1876, the continuous payment of taxes, the fact that the land was a common, and the crookedness of the traveled track to overcome any presumption of dedication that might otherwise arise from uninterrupted user. It is said in his behalf that the Constitution (article 18, § 2) prohibits the taking of private property without 'condemnation and compensation, except where it is voluntarily dedicated. The question is therefore raised whether user for the statutory period conclusively establishes dedication, or whether it is a circumstance tending to show dedication which may be disproved.

We consider the statute one of repose, and the effect of user of land as a highway by the public is not dependent upon extrinsic evidence which might tend to show that, while the user implied a dedication, in fact none was made. The question is sufficiently discussed in the following cases: Bumpus v. Miller, 4 Mich. 159; City of Detroit v. Railroad Co., 23 Id. 173; Ellsworth v. Grand Rapids, 27 Id. 255; Nye v. Clark, 55 Id. 603; Coleman v. Railroad Co., 64 Id. 164; Kruger v. Le Blanc, 70 Id. 76; Adams v. Iron Cliffs Co., 78 Id. 283.

The rights of the public in a highway are not affected by the listing of the premises for' taxation, or payment of taxes when assessed. It is not within the province of assessing or collecting officers thus to admit away the rights ■of the public.

In Ellsworth v. Grand Rapids, 27 Mich. 256, it is- said that—

“To require under this statute proof of an intention to ’dedicate, as a necessary element to establish a road by user, would be not only to import into the statute an element of which no intimation is found there, but completely to nullify the statute itself, and to defeat its manifest purpose, which was, so far as its prospective provisions are concerned, to bar the right of the owner to dispute the rightfulness of the public user after the prescribed period in all cases where the user for that period had been uninterrupted and undisturbed, whatever the actual intention ■of the owner might be. The statute, in all such cases, is a fair notice to the owner that, if he means to dispute the rightfulness" of the public user, he must assert his right within the prescribed period in some way calculated •to interfere with, disturb, or interrupt such use by the public, or by the institution of a suit for the’judicial determination of the right. The mere making and recording -of a plat upon, paper, ignoring the existence of the road, was not an act in any way calculated to interfere with or disturb the use of the way by the public. It offered no •obstacle to travel, and neither persons traveling the road, nor the public authorities having charge of it, were bound to notice it."

Error is assigned upon the failure of the court to give plaintiff’s fourteenth request, as follows:

It appears from the evidence that directly west of the property in question was a strip of land which was used as a public highway. The mere fact that the public, while driving along the street, sometimes got over onto plaintiff’s property, would not constitute it a public highway.’’

We think that there was no occasion to submit that -question to the jury, in view of the testimony.

The judgment will be affirmed.

Long, Grant, and Montgomery, JJ„ concurred. Mc-■Grath, O. J., did not sit.