text:
    KEMP v. STRADLEY.

    1. Municipal Corporations — Building and Leasing Wharves— Ends of Streets.
    Under the charter of Sault Ste. Marie, authorizing the city to establish, construct, maintain, and control public wharves-on any lands on the Shore of the St. Mary’s river not the property of any individual, and lease the wharfing, the city may lease the land and authorize the lessee to build a wharf upon the bank of the river at the end of a street.
    2. Same.
    A wharf built at the end of a street, under a charter authorizing the city to construct and lease it in such a manner as to preserve the right of all persons to a free passage over the same with their baggage, is not a part of the highway, but may be used as other wharves, except that it must be open to public-use, as provided in th^ charter.
    . Appeal from Chippewa; Steere, J.
    Submitted December 5, 1902.
    (Docket No. 152.)
    Decided November 9, 1903.
    Bill by George Kemp against John G. Stradley, mayor, Harry A. Harrison, recorder, and the city council, of the city of Sault Ste. Marie, and the Trans-St. Mary’s Traction Company, to restrain the construction of a dock. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Sharpe & Handy, for complainant.

      Oren, Webster & More and George B. Holden, City Attorney, for defendants.

       Rehearing denied March 15, 1904.

   Hooker, C. J.

The complainant, owning lands to the center of the Sault Ste. Marie river on both sides of a city street which extended to the water’s edge, built docks •extending some distance into the stream in front of his entire premises. No dock was bnilt at the end of the street, but the city permitted him to deepen the water at that point by dredging, thereby making the slip formed by his docks navigable for some craft, which came to his docks. Being desirous of establishing ferry service at that point (and it is said to be the only available point for the purpose), it made a contract with a company, whereby it was authorized to build a dock at the end of the street, and, in consideration of an annual rental of $100, the city agreed to lease “all the exclusive riparian rights of the •city at the foot of and abutting on Johnstone street for the period of five years said lease to provide: (1) For the ■construction of a suitable landing, and a two-story pavilion for the accommodation and comfort of passengers; (2) that lessee give and maintain a half-hour service between said dock and Canadian ports; (3) that lessee pay the expense of the construction, etc.; (4) fixing the price of transportation. Thereupon complainant filed the bill in this cause to restrain the execution of the lease and construction'of the dock, and to prevent the lessee from taking exclusive possession of the premises. The cause was heard upon demurrer, which was sustained, and a decree was entered dismissing the bill. The complainant has appealed.

Complainant contends:

1. That the slip is a public highway, and has been used by boats in summer, and by persons for driving upon the ice when crossing the river in winter, for a long period. His counsel say that “it is possible that, if great public necessity demanded it, the city might construct a wharf on this property for the use of the public, but no such necessity is shown here;” and that public necessity demands the retention of the slip in connection with navigation, and that the public would be subjected to great inconvenience by the erection of this dock.

2. That docks built at the ends of streets are extensions ■of the streets, for the free passage of all citizens.

3. That a city council has no authority to lease a portion of a street for a private use.

4. That the lease implies authority to sublet such wharf and pavilion when erected.

That a city may build a dock at the end of a street has been held in many cases. Barney v. Mayor and City of Baltimore, 1 Hughes, 118 (Fed. Cas. No. 1,029); Angell, Highways, § 301; City of Newport v. Taylor’s Ex’rs, 16 B. Mon. 804; Mayor, etc., of New Orleans v. United States, 10 Pet. 717; McMurray v. Mayor, etc., of Baltimore, 54 Md. 103; Gould, Waters, § 106; 2 Smith, Mun. Corp. § 1314; Dillon, Mun. Corp. (4th Ed.) §§ 110, 634 (note); Newark Lime & Cement Manfg. Co. v. Mayor, etc., of Newark, 15 N. J. Eq. 64.

The charter of the city (section 3, chap. 14, Act No. 533, Local Acts 1887) provides:

‘ ‘ The council shall have power to establish, construct, maintain, and control public wharves upon any lands or property belonging to or under the control of the shore or bank of said river within the city, not the property of individuals, to the extent to which the State can grant the same, and the council may lease wharfing and landing-privileges upon any of the public wharves, docks, or landings, but not for a longer time than five years, and in such manner as to preserve the right of all persons to a free-passage over the same with their baggage.”

It is urged that this does not authorize the building of a. wharf by private persons. When considered in connection with the power to lease wharfing and landing privileges, it would be unduly technical to say that the city must itself build the dock in the first instance, if it may build it at all, which this provision of the charter clearly authorizes. Reighard v. Flinn, 189 Pa. St. 355 (42 Atl. 23, 43 L. R. A. 502); City of Corpus Christi v. Central Wharf & Warehouse Co., 8 Tex. Civ. App. 94 (27 S. W. 803); Dugan v. Mayor, etc., of Baltimore, 5 Gill & J., 374.

The complainant’s counsel lay stress on an alleged right, of their client to enter upon any dock that the city may build from his abutting dock, upon the apparent theory that his docks are ¿xtensions of his lot, entitled to the same abuttal privileges upon the dock of the city that the lot proper has upon the highway. We may assume, for the purposes of this case, that this claim is valid, so far as it does not interfere with the city’s right to use the dock for wharf purposes; but any such right is restricted to that extent. A city owning a wharf has a right to use it for the purposes of a wharf as other wharfs may be used, except that, at the end of streets, such wharves must be open to public use, as provided by the charter. This does not mean that wharfage cannot be charged for the use of the dock, or that the dock may not be used for loading and unloading and temporary storage of commodities, in accordance with the custom of using other wharves, and to such extent any general right of access and travel must yield. The city may regulate such wharves, and such regulations may be distinctive regulations, adapted to the use of wharves, rathor than streets. See Dillon, Mun. Corp. (4th Ed.) §§ 109, 110, 575; Horn v. People, 26 Mich. 221; Backus v. City of Detroit, 49 Mich. 110 (13 N. W. 380, 43 Am. Rep. 447); Scott v. Layng, 59 Mich. 43 (26 N. W. 220, 791).

Much stress is laid upon the language of Mr. Justice .Cooley in Backus v. City of Detroit, in which he quotes the language in People v. Lambier, 5 Denio, 9 (47 Am. Dec. 273), where a landed proprietor claimed the riparian rights at the end of a street, and it was held that he could not, by filling up the land in front, obstruct the public right of passage from the land to the water, but that the street was extended by the new-made land to the water. Whatever we may think of the claim that the construction of a dock abutting the end of a street is an extension of the street, Mr. Justice Cooley has not held that the use of such a dock can be hampered by the application of all of the incidents of an ordinary highway. In the case of Horn v. People, supra, written by Mr. Justice Campbell, but concurred in by Mr. Justice Cooley, it was said:

“ The present charter authorizes the city to erect, repair, and regulate public wharves and docks at the ends of streets and on the property of the corporation, and to fix a line beyond which private docks shall not extend, and to lease the wharves and wharfing privileges at the ends of streets on the Detroit rivei*, on such terms as they shall think fit, for not more than three years, subject to a free passage for persons with their baggage. This legislation indicates a clear intent on the part of the legislature not to treat these terminal wharves as highways, even when they belong to the city, but to leave their regulation within the city Control, as far as it could be done without impairing private rights. * * *
“ There is no instance in which the term ‘public wharf ’ has been used in our legislation to indicate anything analogous to a dedication to any public use, like that of highways. Such a public right is unknown to the common law. Wharfage involves exclusive use, for longer or shorter periods, by each vessel, depending on the nature of its business and the extent of its cargo. All that is meant in the charter by a public wharf is a wharf belonging to the city, and to be used like any other wharf property. The term is applied as well to wharves on city property away from streets as to wharves at the end of streets. The city is not compelled to make them, and they have never been chargeable, like pavements, to adjacent property. They are built for purposes of revenue, and have always been used.on that theory, as the law expressly allows them to be used. They are not open to. indiscriminate public use, like highways.”

In Backus v. City of Detroit, supra, it is said:

“It is enough for us to say that the city derives its authority from the dedication of the public way, and that the construction of a wharf which shall give the means of access from the highway by land to the highway by water is not inconsistent with the gift.”

The contention that water between the river bank and the channel is a highway is discussed in Scott v. Layng, supra. The court said:

“ It is difficult to conceive upon what ground the decree was founded in the first place. It undertakes to establish a highway to the channel bank of the river, and treat the water between the land and the channel bank as an upland highway. The record shows a wharf or dock at the end of this avenue; and the point or slip wherein the stationary building stood, and where the floating house is moored, is upon the side of this dock. It was plainly decided by this court in the case of Horn v. People, 26 Mich. 221, that a wharf at the termination of a street in the city of Detroit was not a part of the public highway, and that the city had authority to lease such wharf. If the city has dominion over the wharves at the extremity of streets and in the water, there is nothing to give adjacent landowners any more rights in such wharves than their neighbors hdve, which áre none at all.

We think it unnecessary to go outside of Michigan for ■authority sustaining the right of the defendant city to build and lease wharfing privileges. There are limitations on its power of exclusion of the public, but this lease is an attempt to let “all of the city’s exclusive privileges,” not more, and doubtless would be construed to transfer no more than the city had a right to part with. Authorities are numerous that it cannot barter its police power; and whatever rights the public have it has not attempted to compromise, for it has only agreed to part with its exclusive rights.

We think there is no force in a claim of adverse possession, or the existence of a highway by user, in view of the allegations of the bill.

The decree is affirmed.

Carpenter, Grant, and Montgomery, JJ., concurred. Moore, J., did not sit.


source: Caselaw Access Project

author: Hooker, C. J. Montgomery, J.

license: Public Domain

text:
    PEOPLE v. DETROIT UNITED RAILWAY.
    1. Municipal Corporations — Street Railways — Regulations.
    It is within the power of a city to pass an ordinance requiring a street-railway company to use reasonable safeguards • against danger.
    2. Municipal Ordinances — Regulations—Presumption op Validity.
    An ordinance which provides safeguards against danger to the public will ordinarily be presumed to be valid.
    3. Same — Street Railways — Discretion op Council.
    Where a street-railway ordinance can fairly be said to tend towards better and safer conditions, the discretion of the council in enacting it will not be interfered with.
    4. Same — Validity—Reasonableness.
    A mere preponderance of oral testimony showing that an ordinance requiring street cars to be equipped with air or electric brakes is unreasonable will not justify the court in holding the ordinance invalid. Per Hooker, C. J., Moore, Carpenter, and Grant, JJ.
    5. Same — Decision op Jury — Judicial Notice.
    The validity of an ordinance cannot be made to depend upon what a jury may consider, from the oral evidence in each case, to be reasonable, where the facts establishing its reasonableness are such that the court will take judicial notice of them.
    6. Street Railways — Regulations—Air Brakes.
    Where a common council, in granting a street-railway company an ordinance, reserved the right to make such further regulations as might be deemed necessary to protect the interests of the public, an ordinance subsequently enacted, requiring the cars to be equipped with air or electric brakes, is valid. Per Hooker, O. J., Moore, Carpenter, and Grant, JJ.
    7. Same — Police Power.
    The enforcement of an ordinance requiring a street railway to equip its cars with air or electric brakes at a large outlay of money does not take property without due process of law, as it is a proper exercise of the police power.

      8. Same.
    An. ordinance requiring a street railway to equip its cars with air or electric brakes, but not designating which shall be used, is not invalid because electric brakes are ineffective.
    9. Municipal Ordinances — Reasonableness—Validity—Finding oe Facts.
    Where the reasonableness and validity of a municipal ordinance depends upon facts to be deduced from the evidence, a judgment sustaining the validity of the ordinance, rendered on a trial before the court without a jury, will not be reversed, in the absence of a special finding of facts which would show it to be unreasonable. Per Montgomery, J.

      Certiorari to recorder’s court of Detroit; Phelan, J.
    Submitted April 23, 1903.
    (Docket No. 37.)
    Decided November 9, 1903.
    The Detroit United Railway was convicted of violating an ordinance requiring the use of certain brakes on its cars.
    Affirmed.

      Brennan, Donnelly & Van De Mark, Charles D. Joslyn, and Henry L. Lyster (John J. Speed, of counsel), for appellant.

      Timothy E. Tarsney, P. J. M. Hally, and Charles E. Love, for the people.
   Hooker, C. J.

The defendant is a street-railway company, and was convicted and fined in the recorder’s court of the city of Detroit for the violation of an ordinance of said city. The cause is here upon certiorari.

There is no doubt of the violation of the ordinance. The cause being tried without a jury, the court determined the question of the reasonableness of said ordinance, which appears to have turned upon questions of fact. Counsel for the defendant say in their brief that “there can be but one question for this court to decide; i. e., is it a reasonable regulation to require the defendant company to equip its cars with air or electric brakes?” The railroad was constructed under the statutes existing at different times, when different sections were built; the present status of the company being the outcome of various purchases or consolidations, or both. All of said statutes required the consent of the city authorities, and this was given in the various instances. The following reservation of power is contained in such consent, and is applicable to the present case:

“It is hereby reserved to the common council of the city of Detroit the right to make such further rules, orders, or regulations as may from time to time be deemed necessary to protect the interest, safety, welfare, or accommodation of the public in relation to said railways.”

In the same connection should be read sections 6425 and 6447 of the Compiled Laws, viz.:

“All companies or corporations formed for such purposes shall have the exclusive right to use and operate any street railways constructed, owned, or held by them: Provided, that no such company or corporation shall be authorized to construct a railway under this act through the streets of any town or city without the consent of the municipal authorities of such town or city, and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe: Provided, further, that after such consent shall have been given, and accepted by the company or corporation to which the same is granted, such authorities shall make no regulations or conditions whereby the rights or franchises so granted shall be destroyed or unreasonably impaired, or such company or corporation be deprived of the right of constructing, maintaining, and operating such railway in the street in such consent or grant named, pursuant to the terms thereof.”
“After any city, village, or township shall have consented, as in this act provided, to the construction and maintenance of any street railways therein, or granted any rights and privileges to any such company, and such consent and grant have been accepted by the company, such township, city, or village shall not revoke such consent, nor deprive the company of the rights and privileges so conferred.”

The ordinance provides as follows:

“ Section 1. On and after May 1, 1902, no street car or cars shall be operated or run on any street, avenue, or highway in the city of Detroit, unless the same be equipped with air or electric brakes.”

Section 2 provides that no street-railway company nor any officers thereof “shall run or operate, or permit to be run or operated, any car upon or in any street or avenue in said city, unless the same is equipped with air brakes or electric brakes.” Section 3 provides the penalty.

Counsel for the defense introduced testimony tending to show that it had several hundred cars in the city, and that it would cost $350,000 to equip them with the prescribed brakes; that many of such cars were single-truck cars; that it was replacing those as rapidly as it could consistently with double-truck cars; that, while said brakes would be useful upon large suburban cars, which make few stops, they are not well adapted to use upon cars which make frequent stops, such as cars run upon city lines exclusively, or to small, single-truck cars; that all cars are equipped with sufficient hand brakes, and that they cannot be safely dispensed with; that they are more certain in their action than the brakes prescribed, and consequently safer; that their average efficiency is greater, and that no city is known to have all of its railroad cars equipped with air or electric brakes; that such brakes are in an experimental stage; that they have been repeatedly tried and discarded in cities; and that, if used, they increase the danger of accident, both by reason of the uncertainty of their action when an attempt is made to use them, and the uncertainty in the minds of motormen which brake had better be used in cases of emergency. There was testimony offered in opposition.

The object of this ordinance is to compel the equipment of street cars with the means of stopping with certainty and expedition. We may take judicial notice that this is desirable, for we are judicially cognizant of the fact that the use of street cars is necessarily attended by imminent danger to citizens who are upon the highway, as well as passengers. It is contended that this ordinance is invalid —First, because it can be said not to provide for brakes which will tend to lessen danger; second, because its enforcement will require an outlay large in comparison with the benefits which would result from the use of such brakes as are required by it. A large amount of testimony was taken upon both these questions, and this was passed upon by the trial judge, who has held the ordinance valid.

It is past controversy that the city may regulate the conduct of defendant’s business to the extent of requiring reasonable safeguards against danger. Nellis, Street Surface Railroads, pp. 206, 208, 219; City of Kalamazoo v. Traction Co., 126 Mich. 525 (85 N. W. 1067); City of Detroit v. Railway Co., 184 U. S. 368 (22 Sup. Ct. 410); Lake Shore, etc., R. Co. v. Ohio, 173 U. S. 285 (19 Sup. Ct. 465); Chicago & Alton R. Co. v. City of Carlinville, 200 Ill. 314 (65 N. E. 730, 60 L. R. A. 391); and other cases cited in briefs of counsel. Many regulations are permissible, although in all or most instances they involve some limitation on the liberty or burden upon the property of individuals. Sanitary regulations are common, including the abolition of slaughter-houses and other noxious places, and restrictions upon burial. Protection against fire and danger from explosions, the use of highways and speed of vehicles, the regulation of occupations, buildings, etc., are among the many instances where municipal action is upheld. An ordinance which, on its face, shows that such end was in contemplation, will ordinarily be presumed to be valid. See 21 Am. & Eng. Enc. Law (2d Ed.), p. 978, and cases cited; Booth, St.-Ry. Law, § 224; Cooley, Const. Lim. (6th Ed.) p. 241, note; Nellis, Street Surface Railroads, 215; Chicago & Alton R. Co. v. City of Carlinville, supra. Not only will the burden of proof be upon one who attacks its validity, but the discretion of the council will not be interfered with upon light grounds, or where the regulation can fairly be said to tend toward a better and safer condition.

The ordinance in question punishes the operation of a car not equipped with air or electric brakes. This ordinance is in harmony with the statute (2 Comp. Laws, § 6280) which for many years has required the equipment of steam passenger cars with air brakes. Before we should say that a similar requirement as to street cars is unreasonable, and therefore invalid, it should be made to appear cleai’ly either that there is no necessity for a more efficient brake than a hand brake upon street cars, or that neither an air nor an electric brake would be such; and if, as is contended, and apparently conceded, the hand brake is not to be dispensed with, it would be necessary to show that a car equipped with both would not be safer than with the hand brake alone.

Counsel urge that the uncontradicted evidence shows that this ordinance is unreasonable. We think not, and, if it might be said that a preponderance of the oral testimony supports that view, we think that would be insufficient to justify us in nullifying the ordinance. We may také judicial notice that atmospheric or vacuum brakes are in general use on passenger trains, that they are common upon freight cars and trains, and that they are rarely ineffective. The record shows that they are in use on electric cars of the larger type, both on suburban lines and on city roads. If they were not, it is patent that they could be; and, while counsel contend that they could not be applied to small cars, it has not been satisfactorily proven. It is not improbable that the exact device used on large cars might not be adapted to use on a small one [especially where but one set of trucks is used) without some modification ; but that is not shown to be mechanically difficult, and every one knows that such problems are being solved daily in the realm of mechanics. Moreover, there is proof that one or more small cars have been equipped and successfully run with them. The validity of an ordinance cannot be made to depend upon what a trial judge, a justice of the peace, or a jury may conclude from the testimony and opinions of such witnesses as may happen to be brought into court in the first case that arises, where, asín this case, its provisions, when viewed in the light of facts of which the courts may take judicial notice, are reasonable, and clearly within the discretion of the council, either by virtue of a reserved power resting in contract, or the police power.

We do not feel called upon to say much about the claim that this ordinance should be held invalid upon the ground that it will require a large outlay, or that it takes property without due process of law. It is too well settled that the State or city may enforce regulations clearly looking to the safety of the public, and reasonably adapted to such end, to make it necessary. All property is held subject to the exercise of the police power. See Village of Carthage v. Frederick, 122 N. Y. 268 (25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490); Attorney General v. Jochim, 99 Mich. 371 (58 N. W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606). In Cooley, Const. Lim. (6th Ed.) p. 708, it is said:

“All contracts and al'l rights, it is declared, are subject to this [police] power; and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity.”

See cases cited in note to last authority.

It has been urged that the proof shows that a light car can be as effectively handled and controlled by hand as by power brakes, and there is proof to that effect, and also that electric or air brakes are less reliable than hand brakes on such cars. This point is covered by what has been said. If the air brake or electric brake is more liable to get out of repair, and there is difficulty in stopping the car at a given point, it is not shown that proper supervision would not assure effective brakes at all times, and that the employment of skilled or experienced motormen would not overcome the latter difficulty. But, if not, the evidence, as well as common experience, shows that a power brake is quicker in its action; and in emergencies, where human life is involved in delay, expeditious stopping of a car should not yield to possible inconvenience in the matter of stopping places.

It is also said that the ordinance is invalid even if air brakes can be said to be effective, because it does not designate between air and electric brakes, which last are said to be clearly shown to be ineffective. We think there is no force in this point. It is not to be presumed that any one will use the latter under such circumstances. Defendant certainly is not required to.

The conviction is affirmed.

Moore, Carpenter, and Grant, JJ., concurred with Hooker, C. J.

Montgomery, J.

(concurring). It is the contention of defendant that the ordinance in question is unreasonable, and that for this reason it should not be enforced. That there is a limitation upon the power of a municipal legislative body, which the courts have the right to enforce, and that an ordinance which is unreasonable in its terms is beyond the power of such legislative body to enact, is well settled. There can be no doubt, either, that where, upon the face of the ordinance, it is shown to be unreasonable, the question which the courts have to determine becomes purely a question of law. But that is not this case. In the present case the contention is that the ordinance is unreasonable, as shown by the testimony of the facts and circumstances; in other words, that, although the court would not be able to say on the face of the ordinance that it is unreasonable, yet because of the existence of certain facts, which it is claimed the testimony establishes in the case, the court should hold that the ordinance is unreasonable. These facts are not facts of which the court can take judicial notice, but are facts claimed to be proven in the case; and the question is, Who is to determine these facts ? It may be conceded that the authorities are not agreed upon the question, and it becomes necessary to look somewhat to the reason of the rule.

The rule is stated in 1 Dillon, Mun. Corp. (4th Ed.) § 327, as follows:

“Whether an ordinance be reasonable and consistent with the law or not is a question for the court, and not the jury, and evidence to the latter on this subject is inadmissible. But in determining this ^question the court will have regard to all the circumstances of the particular city or corporation, the object sought to be attained, and the necessity which exists for the ordinance.”

This statement of the law is strictly accurate if it be limited to cases in which the question depends upon facts of which the court may take judicial cognizance. But there are cases which go further, and hold that, where the question of reasonableness depends upon facts, while it may be competent for the court to take testimony as to these facts, and to take them into consideration in determining the validity of the ordinance, the question is in no case a question for the jury; in other words, that it is to be determined as a question of law, and not as a question of fact. One of the strongest cases supporting this view is that of Illinois Central R. Co. v. Whittemore, 43 Ill. 420 (92 Am. Dec. 138). In that case it was said:

“It was proper to admit testimony, as was done; but, either with or without this testimony, it was for the court to say whether the regulation was reasonable, and therefore obligatory upon the passengers. The necessity of holding this to be a question of law, and therefore within the province of the court to settle, is apparent from the consideration that it is only by so holding that fixed and permanent regulations can be established. If this question is to be left to juries, one rule would be applied, by ■them today and another tomorrow. In one trial a railway would be held liable, and in another, presenting the same question, not liable. Neither the companies nor passengers would know their rights or their obligations.”

The reason assigned in this opinion appears to be the one upon which the rule rests so far as it has been adopted, viz., the idea that when, in a particular case, an ordinance is determined to be unreasonable, that determination will control in all future cases that may arise under the ordinance, whether the question arises between the same parties or mot. If the reason of the rule fails, the rule should fail. It is certainly anomalous to hold that A. may be concluded in a proceeding between B. and C., to which A. is not a party, when that judgment rests upon a determination by some one of a question of fact. The whole realm of adjudicated cases may be searched in vain for another instance of this character. The very reason upon which the rule rests refutes the rule. So far from its being true that, in a proceeding depending upon a question of fact, future litigants should be finally concluded, the exact reverse is true, and an ordinance which may be declared, upon a certain state of facts proven to the court or jury, to be invalid in a proceeding depending between A. and B. in which there may be involved a trifling amount, cannot be held to conclude C., who may have vested rights to the amount of thousands or millions of dollars. To illustrate : Suppose in an action between third parties it had been determined that the original franchise granted to this defendant was invalid as wholly unreasonable; can the vested rights of this corporation be said to have been ■divested in a proceeding to which it was not a party ? Such a proposition shocks the sense of justice, and fortunately we are not without authorities which have a direct bearing upon this question.

In the case of Pennsylvania R. Co. v. Mayor, etc., of Jersey City, 47 N J. Law, 286, a proceeding was commenced for the purpose of having an ordinance of the city declared invalid as unreasonable, and it was said:

“This proceeding in error seeks the abolition of this ordinance in toto, and, as a whole, it is plainly not open to the imputation of unreasonableness. Its scope is to put upon a proper footing the use of railroad trains within the municipal bounds, and there is no pretense that it presses unduly upon any of such companies, except that it harasses the plaintiff in error in passing its numerous trains across three certain streets near its terminal depot. But, conceding this allegation to be true, that the business of' the plaintiff in error at this particular locality is by that ordinance unreasonably embarrassed and burthened, such a vice in the by-law would not render it generally, but only specially, inefficacious; that is, the court would not vacate the entire ordinance, but merely refuse to put it in effect in that part of it that was thus unreasonable.”

And a somewhat analogous question has arisen in the federal courts. As is well understood, the federal courts have held that, under the fourteenth amendment, a statute of a State regulating freight or passenger charges may, if' it be unreasonable in its terms, be held unconstitutional and void in its application to a particular case. But the Federal Supreme Court has held, as we shall see, that the determination of this question in a particular, case does not conclude the question for all time as between parties standing in a different relation to the public authorities. This is well illustrated in the case of Smyth v. Ames, 169 U. S. 466 (18 Sup. Ct. 418). That was a casein chancery, and the question of the reasonableness of the statute as. applied to the complainant was determined upon a full review of all the facts of the case. It was held that the statute, as applied to then conditions, was unreasonable. But it is significant that in the very case the court fully approve of the provision in the decree of the circuit court that the defendants, members of the board of transportation, might, “when the circumstances have changed so. that the rates fixed in the said act of 1893 [Acts Neb. 1893, p. 164, chap. 24] shall yield to the said companies reasonable compensation for the services aforesaid,” apply to the-court by bill or otherwise, as they might be advised, for a further order in that behalf. If, then, it is possible that, as between the same parties who have litigated the reasonableness of a statute (or ordinance), the question may again be opened as a question of fact, how much more-may it .be said that, as between strangers to that litigation, the judgment depending upon a question of fact has. not concluded them.

In the case of Brooklyn Crosstown R. Co. v. City of Brooklyn, 37 Hun, 416, it was said:

“The validity of every ordinance or by-law of a corporation which is not passed in strict compliance with statutory delegation of power depends upon its reasonableness, * * * and hence that point [the reasonableness of the ordinance] was a proper subject for judicial examination as a question of fact.”

If, then, there is involved in the case a question of fact, how shall that question be determined ? As I have endeavored to show, the reason assigned by some of the authorities why it should not be a question for the jury is a wholly insufficient one. Worse than that, it is a false reason, which leads to erroneous and unjust results. We are not wanting, however, in authority which sustains the rule which I have foreshadowed. In Clason v. City of Milwaukee, 30 Wis. 316, it was said:

“It is impossible for the court to determine whether or not the ordinance is reasonable and proper, in view of the object sought to be accomplished, without some evidence upon the subject. And we cannot see that it is a violation of any principle to submit these questions of fact to a jury as in other cases.”

This case was followed by the case of City of Austin v. Cemetery Ass’n, 87 Tex. 330 (28 S. W. 528, 47 Am. St. Rep. 114), in which it was held that it is incumbent upon a party who alleges the invalidity of an ordinance as unreasonable to aver and prove the facts which make it so; that, if the facts be controverted, they must be determined by the jury; but that whether the facts relied upon show the ordinance to be unreasonable or not is a question for the court.

So, in State v. Boardman, 93 Me. 73 (44 Atl. 118, 46 L. R. A. 750), it was said:

“ It is true that the question of the reasonableness of a by-law is for the determination of the court, and this conclusion does not take away from the court the determination of the question. Certain facts will have to be passed upon by the jury. But the standard upon the question of the reasonableness or otherwise of the by-law is established: by the court.”

In Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 (12 Sup. Ct. 400), the question of the reasonableness of a statute fixing the maximum rate at two cents, per mile was involved. It was said:

“If the validity of such a law in its application to a particular company depends upon a question of fact as to itséffect upon the earnings, may not the court properly leave-that question to the jury, and decline to assume that the effect is as claimed ? There can be but one answer to these questions. ”

The invalidity of the ordinance in the present case-depended upon the ability of the defendant to establish certain facts. This it undertook to do. The case was-tried without a jury. The trial judge, however, stood in-the position of a jury. He found as a fact that the ordinance was not unreasonable. It was then within the-province of the defendant’s counsel to call for a more specific finding of facts. This they failed to do. Doubtless better-practice would have' been to have had a specific finding upon the particular facts which are claimed to show the invalidity of the ordinance. But the record is not so made up. In my view, unless we are able to say that the-, testimony all tends in one direction, and that is to show the unreasonableness of the ordinance, the plaintiff in certiorari has not put itself in position to review the-decision of the trial judge. As I do not find the testimony-all one way, I think the judgment should be affirmed.


author: Montgomery, J.

text:
    BROWN v. BOWERMAN.
    Boundaries — Agreement and Acquiescence.
    Where adjoining landowners agree upon a boundary line, and acquiesce in its establishment, so that their relative rights have become changed, the agreement will be binding upon them, although the line was not established according to the old boundary.
    Error to Van Burén; Carr, J.
    Submitted June 10, 1903.
    (Docket No. 72.)
    Decided November 9, 1903.
    Ejectment by Charles A. Brown against Samuel R. Bowerman. From a judgment for plaintiff, defendant brings error.
    Reversed.
    This is an action of ejectment, brought to recover the following described lands, to wit:
    “Commencing 4.64 chains south of the south half quarter post on the north and south quarter line of section twenty-one, town one south, range seventeen west; thence south to a point twenty-three rods thirteen and one-half feet south of said half quarter post; thence west to Lake Michigan; thence northeasterly along Lake Michigan to a point west of the place of beginning; thence east to the place of beginning, — being the lands indicated on Exhibit A annexed, as lying between the point designated by ‘Line Claimed by Brown’ on the south and ‘ Fence Line ’ on the north.”
    Originally, George and Lucinda Rouse owned all the land on section 21, South Haven township, shown by Exhibit A to be south of the eighth line, supposed to be 34 acres. A number of years ago George and Lucinda Rouse had some domestic difficulty, and separated, and George .set off to Lucinda what he supposed to be 7 acres bounded on the north by the eighth line, and made a conveyance whereby the title became vested in her. The testimony tended to show that he built a s®rt of fence along the south thereof, extending from figure “1” east, Exhibit A, as shown by annexed plat. In 1888 George Bouse died. October 17, 1888, Lucinda Bouse, his widow, and all of
    EXHIBIT “A"

    ill Notch in woods as appears on map offered ar.PtA'NWFr.
    the other heirs, joined in a deed whereby they conveyed to Josephine Bouse the south 27 acres of the southeast fractional quarter of the southwest fractional quarter of section 21, town 1 south, range 17 west. This land, by proper legal conveyance, came into the possession and ■ownership of Fred Bennett, and then to the defendant, Samuel R. Bowerman. August 12, 1890, Lucinda Rouse and all the other heirs of George Rouse joined in a conveyance conveying to William S. Bradley 7 acres of land from and off the north end of the fractional southeast quarter of the southwest quarter of section 21, town 1 south, range 17 west, bounded on the north by Charles Champion, on the west by lake, on the south by Josephine Rouse, on the east by Lake Shore road, being 7 acres of land, more or less.
    In 1896 plaintiff began negotiations with Mr. Bradley to purchase the land last above described, at which time the old fence line which it was claimed existed between the north 7 acres and the south 27 acres was obliterated, and the fence row plowed up, and nothing was left whereby the division line as originally agreed upon between George and Lucinda Rouse could be designated. Brown and Bradley struck upon a bargain, but, before making the deed, Bradley, at the request of Brown, caused a survey to be made, in order that the description of the land which was to be deeded to him might be made more certain, and in order that the division line between the so-called 7 acres and the so-called 27 acres might be determined. George C\ Monroe, a surveyor, was called, and the whole 34 acres formerly owned by the Rouses was surveyed, and it was found that there was in said piece 33.36 acres, instead of 34 -acres. At the time of this survey, Bennett was the owner of the so-called 27 acres, Bradley the owner of the so-called 7 acres, and the defendant, Bowerman, mortgagee under foreclosure. All agreed to abide by the division made by the surveyor, and each thereafter acquiesced in such division. The division line, as established by Monroe, and as agreed upon by Bradley, Bennett, and Bowerman, and as acquiesced in by them and each of them, is indicated at a point marked “ Fence Line ” on Exhibit A. The land in dispute is south of this line. By this division there were 6.87 acres of land in the so-called 7-acre parcel, and 26.49 acres in the so-called 27-acre piece. The amount of land lying between the eighth line and the line marked on Exhibit Aas “ Line Claimed by Brown ” is 8.505 acres; the amount lying south thereof being 24.83 acres.
    After the survey was made and the division line agreed upon, Bradley made a warranty deed, and conveyed to plaintiff all that certain piece or parcel of land in the township of South Haven, Van Burén county, Mich., bounded and described as commencing at the south half quarter post on the north and south quarter line of section 21, town 1 south, range 17 west; thence south on the quarter line 4.64 chains; thence west to Lake Michigan low-water mai’k, 15.42 chains; thence south [north] easterly along the shore of Lake Michigan to the half quarter line, about 19 rods; thence east on the half quarter line 14.27 chains to the place of beginning, — containing 6.87 acres. Afterwards the plaintiff procured a quitclaim deed from the Rouses, and also a quitclaim deed from Bradley, and it is under these quitclaim deeds that plaintiff claims to have acquired rights to the premises in dispute. Upon special questions submitted, the jury found “that a division line was agreed upon by Bennett, Bradley, and Bowerman defining and fixing the boundary line between the so-called 7 acres and the so-called 27 acres,” and that such boundary line was acquiesced in by them and each of them thereafter, but returned a general verdict for the plaintiff. A motion was then made that the verdict be set aside, and that judgment be entered for the defendant.

      H. T. Cook and T. J. Cavanaugh, for appellant.

      Wicksall & Cogshall, for appellee.
   Montgomery, J.

{after stating the facts). The first error discussed is in the refusal of the court to set aside the general verdict of the jury, and in the same connection may be discussed the refusal of the court to grant a request of the defendant. The request was as follows •.

“ Although there may have been an agreed line between the former proprietors of the lands in controversy, yet, if the monuments had been removed or been lost, it was competent for the parties who owned the lands to have a survey, and agree upon a boundary line; and such an agreement would re-establish the boundary line, and would be binding upon the owners who made it or agreed to it, although not established according to the old boundary line.”

If this request correctly stated the law, or if the request should have been given with the modification that such re-established boundary line would be binding if acquiesced in and acted upon by the parties, then it follows that the circuit judge was in error in refusing to set aside the verdict and enter judgment for the defendant.

We think, where the parties agree to the establishment of a boundary line, and acquiesce in its establishment, so that the relative rights of the parties have become changed, it is well settled that the parties are bound by such action at law as well as in equity. Manistee Manfg. Co. v. Cogswell, 103 Mich., at page 605 (61 N. W. 884), and cases cited. We do not overlook the contention of plaintiff’s counsel that there was no evidence justifying the submission of this question to the jury. We do not, however, agree with this contention, and think there was testimony from which the jury might have drawn the inference that all parties concerned in this line agreed upon the survey by Monroe, and that both parties thereafter acquiesced in it, and that defendant’s grantors changed the character of their occupancy in reliance upon such agreement.

The judgment should be reversed, and the cause remanded, with direction to the circuit judge to enter judgment upon the verdict for defendant. Appellant will recover costs of this court.

The other Justices concurred.


text:
    VINCENT v. CRANE.
    1. Landlord and Tenant — Covenants—Subletting.
    A covenant in a farm lease against subletting is not broken by permitting one who works on the farm for the tenant to occupy a house on the premises.
    2. Same — Default—Re-entry.
    An agreement by a tenant in a farming lease upon shares and under seal, that he would notsell any of the produce without the consent of the lessor, is a covenant, within the meaning of a provision giving the lessor a right of re-entry in case default should be made in any of the covenants.
    3. Same — Repairs to Buildings and Fences.
    An instruction that a tenant would be required to keep the buildings and fences in such reasonable repair as ordinarily prudent farmers do was error, where he had covenanted to keep them in such repair and condition as when taken.
    Error to Gratiot; Stone, J.
    Submitted July 13, 1903.
    (Docket No. 125.)
    Decided November 9, 1903.
    Summary proceedings by Dresser B. Vincent against Obid F. Crane to recover the possession of a farm. From a judgment for defendant, plaintiff brings error.
    Reversed.

      John T. Mathews and Julius B. Kirby, for appellant.

      Searl & Monfort and A. McCall, for appellee.
   Montgomery, J.

On the 22d' of September, 1900, plaintiff leased to the defendant his farm of 200 acres for the term of two years, with the privilege. of three years, from the 1st of April, 1901, under a written lease, which contained the provision that, “in case any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the party of the first part” to enter and repossess himself. The lease then proceeds as follows:

“And the said party of the second part does hereby hire the said premises for the term of two years as above mentioned, and does covenant and promise to pay to the said party of the first part, his representatives and assigns, for rent of said premises for said term, one-half of all produce raised on farm. It is hereby agreed that all live stock on said farm is to be fed out of the undivided feed on said farm; that each party is to furnish one-half of all seed to be planted or sown on said farm in its season, and, in case each does not so furnish, the other can so furnish, and take the pay for same, at market price, out of the other’s share at time of harvest; that all stock bought or put on said farm is to be fed in common on said farm, and each said party to pay one-half for said stock, and when said stock is sold, which shall not be later than the expiration of this lease, each shall receive one-half of the money arising from said sale. In case either of said parties furnishes more means than the other in the purchase of stock to be placed on said farm, the party so doing shall receive 7 per cent, interest from the time said money or means is advanced over and above his said share on sale of said stock, and said party so furnishing shall take out said interest and principal so furnished before the division of the sale money from any or all of said stock; each of said parties to furnish one-half and receive one-half in relation to all stock in case of sale of any or all of any partnership stock on farm. No sale is to be made unless upon the mutual consent of each party. Said second party to have his firewood from said premises, but in so doing said second party is to cut no standing live timber.
“Said party of the second part further covenants that he will not assign nor transfer this lease, or sublet said premises, or any part thereof, without the written assent of said party of the first part. And also that said party of the second part will, at his own expense, during the continuance of this lease, keep the said premises, and every part thereof, in as good repair, and at the expiration of the term yield and deliver up the same in like condition, as when taken, reasonable use and wear thereof and damage by the elements excepted.”

This proceeding was instituted on the 2d of April, 1902, to recover possession of the land, the plaintiff claiming that defendant had violated the covenants of his lease, in that (1) he had sublet a portion of the premises; (2) he had sold stock and produce of the farm without consulting the landlord, and contrary to his wishes; (3) he had cut standing live timber, contrary to the covenants of the lease; and (4) he had failed to keep his covenant to keep the premises in as good repair as when taken, reasonable wear and use thereof and damage by the elements excepted. The case was tried on appeal in the circuit court, and defendant recovered, and the case is brought here for review on error.

The court below held that there was no evidence of a subletting. The facts as to this are not in dispute. It appears that the defendant employed one Stenick to perform labor for him on the farm, and gave him possession of a house on the premises. The court held that this was not a subletting within the meaning of the terms of the lease. We think the court correctly ruled this question. There was no subletting. The relation of landlord and tenant was not created between Crane and Stenick. It is a case of the occupation of a house by a servant, which occupancy was connected with the service, and required by the employer for the necessary and better performance of the service. Kerrains v. People, 60 N. Y. 221 (19 Am. Rep. 158), Haywood v. Miller, 3 Hill, 90; Chatard v. O’Donovan, 80 Ind. 20 (41 Am. Rep. 782).

The circuit judge withdrew from the jury any consideration of the question as to whether the defendant had sold stock and produce from the farm without the consent of the plaintiff, and based his ruling upon the view that the provision in the contract that no sale should be made unless upon the mutual consent of each party was not a covenant, and therefore that, if this provision of the contract was violated, the provision giving the fight of reentry in case default should be made in any of the covenants of the lease did not become operative. We think this ruling of the court was error. This is an agreement under seal. The rule is well settled that no particular form of words is necessary to the creation of a covenant in a deed. It is enough that it constitutes an agreement under seal, intended to bind the parties. See 8 Am. & Eng. Enc. Law (2d Ed.), p. 55, and cases cited in notes. We think this agreement was clearly intended to bind both parties, and amounted to a mutual covenant. The case is not one in which it is necessary to find the engagement to be a condition. It does not stand by itself. It is enough to say that it is a covenant, and then the other provision of the lease authorizes the re-entry.

Upon the subject of keeping the premises in repair, the court charged the jury as follows:

“Now, gentlemen, in regard to the covenant to keep the premises in repair, we must keep in mind the character •of the premises, and their condition, and all of the surroundings. We cannot, perhaps, lose sight of the fact, or any fact that has a direct bearing upon what would be reasonable and usual. A different rule would prevail with a farm than with simply a dwelling house upon a village lot in this: That we must keep in view the size of the farm, the amount of fences upon the farm, the condition of the fences when the tenant took possession of the farm to work, and the character of the buildings, and the use to which they were subjected necessarily, reasonably; and, keeping in view all of these facts, you are to determine from the evidence in this case, Did the defendant keep these premises in reasonable repair during the continuance of his lease? If a fence blew down, or got down in any manner, it might not be the duty of the defendant to put it up immediately the next morning, or, if a window light was broken out of the harn, to immediately place it in; but he would be required to keep the fences and the buildings in such reasonable repair as ordinarily prudent farmers do, — that is, to use the same diligence that ordinarily prudent farmers use in keeping their buildings in repair.”

We think it quite possible that the jury may have been misled by this instruction. It is undoubtedly true that the defendant would have a reasonable time after any injury to the premises, such as is suggested in the charge, to put the same in repair; but the test made by the contract is not that they shall be kept in such reasonable repair as ordinarily prudent farmers use, but that they shall be kept in such repair and condition as when taken.

The question as to the breach of the covenant against cutting live timber was fairly submitted to the jury.

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

The other Justices concurred.


author: Hooker, C. J.

text:
    WOOD v. KAUFMAN.
    1. Conditional Sales — Rescission—Recovery op Payments— Common Counts.
    Payments made upon a contract for the conditional sale of goods may be recovered under the common count for money had and received, where the seller, without demanding payment of the balance of the purchase price, terminates the contract by selling the goods to another.
    .2. Witnesses — Agents—Constitutional Law.
    Act No. 289, Pub. Acts 1901, providing that no person who may have acted as agent in making or continuing a' contract with a person since deceased shall be a competent witness, in a suit involving the contract, as to matters occurring prior to the death of the deceased, against his legal representatives ■or heirs, is constitutional.
    Error to Marquette; Stone, J.
    Submitted October 7, 1903.
    (Docket No. 246.)
    Decided November 9, 1903.

      Assumpsit by James O. Wood, administrator de bonis non of the estate of Joseph Pope, deceased, against George Kaufman and Fred Kaufman, for money had and received. From a judgment against defendant George Kaufman, he brings error.
    Affirmed.

      James H. Clancy, for appellant.

      James C. Wood, in pro. per.

   Hooker, C. J.

This cause was tried by the court without a jury, resulted in a judgment for the plaintiff against George Kaufman, and is here upon a finding of fact and law by writ of error taken by the defendant George Kaufman. In substance, the finding shows that the defendant sold to the plaintiff’s intestate, Pope, a horse, buggy, and harness for $350, $175 of which was paid to his son (who made the sale) at the time of purchase; that such sale was a conditional one, the title to remain in defendant George Kaufman, and the property to be kept in defendant’s barn, until paid for. Pope died, and after his death the property remained in Kaufman’s possession, and was finally sold by him. There was no' evidence of a forfeiture clause in the contract. The action was brought to recover the money paid; i. e., $175. The court held that the defendant terminated the contract by selling the property without demand of payment, and gave judgment for the plaintiff as stated, basing his conclusion upon the cases of Preston v. Whitney, 23 Mich. 260, and Ryan v. Wayson, 108 Mich. 522 (66 N. W. 370). A motion for new trial on the ground that the judgment was contrary to the law and the evidence was denied.

Defendant’s counsel claims that the plaintiff was not entitled to recover upon a declaration consisting of the common counts, and that the statute (Act No. 239, Pub. Acts 1901) under which the testimony of Fred Kaufman, agent of defendant George Kaufman, was excluded, is unconstitutional.

It is said that the court erred in his finding of fact in relation to a conversation between Kaufman and Thomas, where it was found that the former is said to have stated that the horse did not belong to Pope, and refused to let Thomas have him. We need not investigate the accuracy of this statement in the opinion. There was evidence tending to show such claim and refusal to deliver the horse to the representatives of deceased, and the subsequent conversion of the property, and the finding of fact is supported by the proof in the case.

We think a count for money had and received was a sufficient declaration (Davis v. Strobridge, 44 Mich. 157 [6 N. W. 205]), and that the statute in question is not unconstitutional, while the cases cited support the conclusion of law.

The judgment is affirmed.

The other Justices concurred.


text:
    KUPKOFSKI v. JOHN S. SPIEGEL CO.
    Master and Servant — Personal Injuries — Assumption oe Risk , — Ironing Machine.
    A servant who, from experience with a certain ironing machine, understood its method of working and motions, which were open to observation, assumed the risk of having her hand drawn under a roller by a slight jerky motion, due to a loose belt.
    Error to Wayne; Hosmer, J.
    Submitted October 7, 1903.
    (Docket No. 6.)
    Decided November 9, 1903.
    Case by Annie Kupkofski, by next friend, against the John S. Spiegel Company, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Moore & Moore (S. W. Burroughs, of counsel), for appellant.

      John J. Jackson (Alfred Lucking, of counsel), for appellee.
   Montgomery, J.

The plaintiff sues to recover damages for personal injuries received while operating an ironer in the laundry department of defendant’s factory. On the trial the circuit judge directed a verdict for defendant, and plaintiff brings error.

At the time of the accident plaintiff was 17 years of age, and was a bright, intelligent girl. She had been working in the defendant’s laundry one year. During this time she had operated several machines which work in the same manner as the one on which she was injured, and for about two weeks immediately prior to the accident she had been working upon this particular machine, and had occasionally run it before. The machine was known as a “Stone bosom ironer.” It consisted of a large hollow roller, which was heated by a gas jet inside. This roller runs very slowly, making 24 revolutions per minute. It has no motion to and fro, but simply revolves on its axis, rolling inward from the front. Below this roller is a movable table or board about as large as a shirt bosom, on which the shirt is placed, and fastened at the neck-band and at each shoulder. When this has been done, the table is set in motion by the operator, who steps on a treadle. The table then moves at the rate of 16 times per minute under and close to the roller the full length of the shirt bosom. The movement of the table is at all times under the instantaneous control of the operator, who can, by pressing on the treadle with the toe or heel, cause the table to move forward, stop, or come back, either the entire distance or one, two, three, or six inches, as desired, within the fraction of a second. When the table with the shirt upon it has passed under the roller to its full length, it is the duty of the operator to press on the heel of the treadle, and cause it to return to the front of the machine. If this is not done, the hot roller on top of the shirt will scorch and burn the bosom; and, in order to avo.id any failure on the part of the operator in this particular portion of her duty, an automatic reversing apparatus is attached to the machine, whereby the table is returned to the front, even if the treadle is not operated. The power to move the table is communicated from the general power shaft directly above by means of a belt about eight or nine feet long, and thence through a set of gear wheels to the table, and is controlled, as above stated, by the foot treadle. The entire machine is so simple in its construction and operation that plaintiff herself testified that, under Mr. Lake’s instructions, she learned to operate it in 15 or 20 minutes, and in a day or so could iron a shirt on it very nicely. She had operated it steadily two weeks prior to the accident, and occasionally before that. She knew perfectly well that if her hand got under the roller it would be hurt.

The declaration charges negligence in two particulars: First, in defendant’s failure to instruct plaintiff how to •operate the machine properly; and, second, in allowing the machine to become out of repair, whereby it worked in a jerky, spasmodic manner, dangerous to the operator. At the trial it was shown that plaintiff was instructed as to the operation of the machine. The sole remaining claim was that the machine was out of repair, in that (1) the belt connecting it with the power shaft was loose, and (2) the automatic reversing apparatus was out of order, and that, on account of either one or both of these circumstances, the action became jerky and spasmodic. Plaintiff’s counsel claim that she was holding the shirt on the table with her right hand, her fingers being six inches away from the roller, when the machine stopped suddenly, and started with such a quick jerk, and the table moved so rapidly, that the table and her hand were jerked under the roller, six inches distant, so quickly that she had not time to take away her hand. The only defects alleged to have existed in the machine were the loose belt and the automatic reverse appliance.

The evidence shows conclusively that the alleged defect in the automatic reversing apparatus had nothing to do with causing the injury to plaintiff, and could not have had. The belt was loose, and the result was that, when the friction became unusual, the machine would slow down, and, as the belt moved again to perform its office, the machine would start up at its usual speed, but at no speed greater than normal. To this extent there was a jerky motion, but the condition was one open to observation, and known to plaintiff. Furthermore, the plaintiff’s hand could not have been carried towards the roller with any greater rapidity because of this condition than under normal conditions. The plaintiff assumed the risk, which was open to observation, and, had she exercised proper care, could not have received the injuries.

Judgment affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    KERSEY v. PHŒNIX INSURANCE CO.
    1. Fire Insurance — Arbitration—Disagreement.
    Where an insurance company, with knowledge of the amount claimed for a loss by fire, demanded an arbitration, and. both parties entered into an agreement therefor, it cannot be said that there was not such a disagreement as would justify an arbitration, within a clause in the policy providing therefor in the event of a disagreement as to the amount of loss.
    2. Same — Award—Condition Precedent to Suit.
    Where an insurance policy requires that, when properly demanded, thé amount of loss shall be determined by arbitration before suit shall be brought, the necessity of the award is not obviated by a provision that it shall be only prima facie evidence.
    3. Same — Bad Faith in Selection of Umpire.
    Bad faith, which will defeat an insurance company’s right to insist on an arbitration, will not be inferred from the agreement of its arbitrator to the selection of an incompetent person to act as umpire, where the insured’s arbitrator proposed the umpire, and the company’s arbitrator acquiesced without knowing of the disqualification.
    4 Same — Failure to Agree.
    An insurance company will not be held responsible for the failure to select an umpire, where there is no evidence that the men proposed for umpire by its arbitrator were not fair and competent men, or that there was not a valid, bona fide obj ection to the men proposed by the arbitrator for the insured.
    Error to Labe; McAlvay, J.
    Submitted October 8, 1903.
    (Docket No. 23.)
    Decided November 9, 1903.

      Assumpsit by Albert Kersey against the Phoenix Insurance Company of Hartford, Connecticut, on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Charles A. Withey (J. E. Bichardson, of counsel), for appellant.

      Bussell C. Ostrander, for appellee.
   Carpenter, J.

February 14, 1902, certain personal property belonging to plaintiff was burned. This suit is brought to recover on an insurance policy covering said property, issued to plaintiff by defendant. A verdict was directed for defendant on the ground that arbitration proceedings were pending and undetermined when suit was commenced. The sole question for our consideration re-’ lates to the correctness of this ruling. The facts are these: The policy — which was a Michigan standard policy — contained these provisions:

“ In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall b e prima facie evidence of the amount of such loss. * * *
“The loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss, herein required, have been received by this company, including an award by appraisers when appraisal has been required. * * *
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. ”

After considerable correspondence between the parties (plaintiff’s attorney acting for his client in conducting said correspondence), articles of arbitration were signed on the 26th of August, 1902. In those articles it was stated that:

“ W. E. Williams and John Rowson shall appraise the sound value and the loss upon the property damaged or destroyed by fire: * * * Provided, the said appraisers shall first select a competent and disinterested umpire, who shall act with them in the matters of difference only. The award of any two of them, made in writing, and in accordance with this agreement, shall be prima facie evidence of the amount of such sound value and loss.”

. It appears that Williams was the selection • of plaintiff and Rowson of defendant. Williams and Rowson met on August 27th, and appointed one A. J. Auer umpire. Auer at once refused to act, on the ground that he had property destroyed in the same fire that occasioned plaintiff’s loss. Thereupon Williams and Rowson again met, either on August 27th or 28th. In this conference they failed to agree upon a third man, and Rowson returned to his home in Grand Rapids. Williams saw Rowson two or three days later in Grand Rapids, and “spoke to him about agreeing about a third arbitrator, or giving the matter up.” Rowson wanted to wait a few days longer. On the 8th of September Williams withdrew as arbitrator. On that same day — namely, September 8th — plaintiff wrote defendant that Mr. Williams declined to act longer as arbitrator “for the present, and under the present arrangement and association. * * * I do not think you acted in good faith in regard to the arbitration. Unless you take further steps to proceed with the arbitration immediately, I shall commence suit as soon as I can get to it. * * * Of course, we are open to offer of settlement, if reasonable, at any time.” Defendant answered this letter on September 9th, insisting that the arbitration arrangement be carried out, and suggesting that it would prejudice no one if plaintiff made an offer of compromise. Plaintiff answered this letter September 10th, offering to take 75 percent, of his claim in settlement, adding:

“You will please note, however, that if in the interim you desire to go on with the arbitration or proceedings for an award as to the amount of loss, we are willing to meet you at any time, and, if necessary, select a new arbitrator. We do not decline to arbitrate, but we do claim that we are not obliged to dally along indefinitely in this kind of a way.”

Defendant replied September 12th by a reference to its letter of the 9th. It again insisted upon the arbitration, and declined to accept the offer of compromise. September 17th defendant formally requested plaintiff to name another arbitrator in place of Mr. Williams, calling his attention to the provisions of the policy respecting the * award. No answer was made to'this, but on the 30th of September plaintiff commenced this suit.

Several reasons are urged why this suit could be commenced notwithstanding the pendency of the arbitration proceedings.

It is said that there was no disagreement as to the amount of the loss, and therefore that defendant had no right to an award by appraisers. We cannot agree with this contention. It appears that defendant knew the amount claimed by plaintiff. Its demand for the arbitration, with this knowledge, indicated- its dissatisfaction with and unwillingness to pay that amount. The fact that both parties entered into the arbitration, too, is conclusive proof, in our judgment, that such a disagreement existed as justified the arbitration. If plaintiff had desired to continue negotiation to fix the amount without resorting to arbitration, the time to have indicated that desire was before assenting to the arbitration. We ’cannot agree with plaintiff’s counsel that the arbitration entered upon was a common-law arbitration, and therefore no bar to the suit. The language of the arbitration agreement clearly indicates that it was the arbitration referred to in the insurance policy.

It is insisted that, as the award would only be prima facie evidence, it is not a condition precedent to the right to maintain this suit. In Chippewa Lumber Co. v. Phenix Insurance Co., 80 Mich. 116 (44 N. W. 1055), this court decided that an agreement requiring the submission of the amount of the loss to arbitration as a condition precedent to the bringing of the suit was valid and enforceable. That case differs from the case at bar in this: That the award of the arbitrators there fixed the amount of liability. Here it only affords prima facie evidence of that amount. We are referred to no authority which distinguishes that case from the one at bar. It is the manifest intention of the contract to make the arbitration, when properly demanded, a condition precedent to the bringing of suit. The fact that the award is only prima facie evidence lessens, but does not destroy, its value as evidence. This does not make the award a mere idle ceremony. It is still of value, and furnishes convincing testimony. We cannot, because its force as testimony is not conclusive, disregard the plain provisions of the policy, and decide that it is not a condition precedent.

It is insisted by plaintiff that it may be inferred that defendant was acting in bad faith in the arbitration proceedings; and it has been held that if either party acted in bad faith, so as to defeat the real object of the arbitration, it absolved the other party from compliance therewith. Uhrig v. Insurance Co., 101 N. Y. 362 (4 N. E. 745); Hickerson & Co. v. Insurance Cos., 96 Tenn., at page 206 (33 S. W. 1041, 32 L. R. A. 172). Can that inference be drawn ? Plaintiff contends that it can be drawn frorp the fact that defendant’s arbitrator agreed to the selection of Mr. Auer, an incompetent person, to act as umpire. We cannot agree with this contention. Plaintiff’s arbitrator proposed Mr. Auer as an umpire, and defendant’s arbitrator acquiesced. It is claimed that Mr. Auer was incompetent to act, because he had sustained a loss by the same fire that destroyed plaintiff’s property. If this rendered Mr. Auer an incompetent arbitrator, — a point which we do not decide, — there is no evidence from which it can be inferred that the defendant’s arbitrator knew of the disqualification.

It is also claimed by plaintiff that the failure of the two arbitrators to agree upon a competent and disinterested umpire was entirely due to the unreasonable conduct of Rowson, defendant’s arbitrator, and that this warranted an inference of bad faith. The evidence shows this, and only this: That defendant’s arbitrator declined to accept as -umpire any of the dozen or fifteen business men of Reed City suggested by plaintiff’s arbitrator, and that most of the persons proposed by him lived out of town, and were for that reason rejected by plaintiff’s arbitrator, and that an umpire willing to act was never selected. There was no evidence that the men proposed as umpire by defendant’s arbitrator were not fair and competent men; nor was there any evidence that there was not a valid, bona fide objection to those proposed by plaintiff’s arbitrator. We cannot, therefore, hold defendant responsible for the failure to select an umpire. We agree with the trial judge that:

‘ ‘ The conduct of the arbitrator of the company, or the conduct of the company at the time of the arbitration, or the delay of the arbitrators to agree, between the 27th day of August and the 8th day of September, under the circumstances of this case, upon another umpire, was not such conduct as would warrant the plaintiff in withdrawing from that arbitration, abandoning it, and claiming that the company had waived its rights under that contract for an arbitration, and had abandoned the arbitration.”

It follows, therefore, that the judgment of the court below should be affirmed.

The other Justices concurred.


author: Montgomery, J. Montgomery, J.

text:
    WALSH v. ROBINSON.
    1. Mortgages — Foreclosure in Chancery — Parties — Redemption.
    The owner of a first mortgage foreclosed in chancery, making the holders of subsequent mortgages parties, but omitted the' owner of the land. The second mortgagee bought the interest of the foreclosure purchaser. The owner of the land tendered the amount due on the first mortgage, and demanded a release of the land, claiming that, as he was not made a party to the foreclosure proceedings, his equity of redemption was not barred, but was relieved from the lien of the subsequent-mortgages. Held, that, as to the owner of the land, the junior mortgages had not been discharged.
    2. Same.
    Whether the liens of such mortgages passed to the purchaser at the foreclosure sale, or were still enforceable in the hands of the original mortgagees, — quaere.
    3. Same — Foreclosure by Trustee — Mortgage Held in Individual Capacity.
    One who, as trustee, forecloses in chancery two senior mortgages while holding three junior mortgages in his individual capacity, will be bound individually by the decree.
    4. Same — Decree—Taxes.
    The owner of the land cannot complain because a decree on the foreclosure of a mortgage by a trustee included the taxes paid by the complainant to protect his interest under subsequent mortgages held by him in his individual capacity.
    5. Same — Liability for Deficiency.
    A deficiency decree against a mortgagor is unauthorized on a second foreclosure, taken for the purpose of bringing in additional parties, where the former sale brought the full amount of the mortgage debt.
    Appeal from Wayne; Hosmer, J.
    Submitted October 9, 1903.
    (Docket No. 27.)
    Decided November 9, 1903.
    Motion for rehearing denied April 19, 1904.

      Bill by John H. Walsh,- trustee, against Charles W. Robinson, Carman G. Paul, and Sheridan J. Colby to foreclose certain mortgages. From a decree for complainant, defendants Robinson and Colby appeal.
    Modified.

      Shaw, Warren, Cady & Oakes, for complainant.

      Levi J. Fick, for defendant Robinson.

      Jasper C. Gates, for defendant Colby.

      Sheridan J. Colby, in pro. per., on motion for rehearing.

       A second application for rehearing was denied December 14, 1904; no opinion being filed.

   Montgomery, J.

March 22, 1892, defendants Robinson and Paul executed a mortgage in the sum of 115,000, collateral to a note of like date, covering a large amount of property in Detroit. Under the terms of the mortgage, portions of the property covered were released from time to time until there remained incumbered by the mortgage lots 74 to 93, both inclusive, of Tait’s Subdivision. This mortgage finally came into the hands of the State Savings Bank of Detroit. A second mortgage, covering lots 74 to 93, above described, was executed by Carman G. Paul on the 12th of December, 1893, to Mary A. Coquillard, to secure the payment of a note of $1,200. There were three subsequent mortgages executed by a purchaser from Paul, named Nicholas E. Manuel, and payable to John H. Walsh. The savings bank mortgage was paid down from time to time, but, the balance remaining unpaid, foreclosure proceedings were commenced, and a commissioner’s deed was made to the bank on the 13th of June, 1900. At the time this foreclosure proceeding was taken, the defendant Colby was the owner of the equity of redemption, subject to the savings bank mortgage, the Coquillard mortgage, and the three Walsh mortgages. After the foreclosure was had, and before the time for redemption expired, the bank agreed with Mrs. Coquillard, the holder of the second mortgage, that, in case no redemption was made, the bank would accept $2,093.15 for the property. Mrs. Coquillard, through complainant, as trustee, bought of the bank its interest, and took a transfer of title. Colby, contending that the foreclosure of the bank had cut off all the subsequent mortgages, but had not defeated his title for the reason that he was not made a party, tendered to complainant the amount due on the savings bank mortgage, and demanded a release of the title. This tender was refused, and the complainant brings this bill to foreclose as against the defendant Colby the savings bank mortgage and the Coquillard mortgage. A deficiency decree was asked against defendant Robinson. A decree passed in favor of the complainant for the foreclosure of the two mortgages, and defendant Robinson appeals from so much of the decree as fixes a personal liability upon him, and the defendant Colby appeals generally from the decree.

The position taken by the defendant Colby is this That, as he was not made a party to the first foreclosure proceeding, that proceeding was ineffectual to bar his equity of redemption, but that, as the subsequent mortgagees were made parties, the proceeding is valid as to them, and bars their mortgages; that it results that the defendant Colby, although not a party to that proceeding, may profit by it to the extent of being relieved from all the mortgages except the first, and can discharge his property of all the liens by a tender of the amount due on the first mortgage. We have not adopted the language of counsel in stating the proposition. Nevertheless we think we have accurately defined the result of his contention. The proposition needs only to be stated to show its inequity. Yet, if the rigid rules of law require that this result should follow from the acts of complainant and his grantor, our only duty is to apply the rules.

A large number of cases are cited by counsel for defendant to the proposition that the first foreclosure proceeding is binding upon all the parties to that litigation. But in none of the cases cited by defendant was the question presented in the aspect which it bears here, in most of those cases, as well as in others in which this subject has been treated, the question arose out of the failure of the senior incumbrancer to make the junior incumbrancer a party. The courts have in such cases uniformly held that the foreclosure operated to cut off the equity of redemption if the owner of that interest was a party, but that the proceeding was not effectual to defeat the rights of the junior mortgagee. In different jurisdictions different remedies are applied. In England the rule seems to be that the junior incumbrancer has only the right to redeem on paying the prior incumbrance; but in some of the States it is held that he may demand a resale of the property. Stewart v. Johnson, 30 Ohio St. 24. It is also in some instances stated generally that the failure to make the owner of the equity of redemption a party to the bill of foreclosure renders the proceeding void. 2 Jones, Mort. § 1406; Watts v. Julian, 122 Ind. 124 (23 N. E. 698).

But if we assume, for the purposes of this decision, that the decree is to be given full force as against the subsequent lienholders, and is not binding upon the defendant Colby, what follows? Were these liens discharged for the benefit of the defendant, so that he may discharge his obligations and release his property upon payment of the first mortgage only ? Or should it be held that so much of the interest in this property as was not represented by the first mortgage was held in two rights, the one of which vested in the junior mortgagees, the other in the defendant as the owner of the remnant of the equity of redemption, which latter right was subordinate to all prior liens ? If, then, a decree passes binding upon the junior mortgagees in favor of the senior mortgagee, what passes by the sale ? The only answer is that the interest of the junior mortgagees would pass. The defendant is in no position to complain that the title in this property which is superior to his own has been merged in the purchaser at the foreclosure sale, nor can he assert that as to him the junior mortgage has been discharged. When he asserts that the decree binds the interest of the junior incumbrancer, he plants himself on ground from which the equity of complainant can be plainly discerned.

Reliance appears to have been placed by both parties in the court below and in this court upon, the case of Baker v. Pierson, 6 Mich. 522. We think that case clearly rules this case in favor of complainant. The facts were that one Lewis Ives, being the owner of certain land, executed two mortgages, — one to David Moore for $5,000, and one to George F. Turner for $3,000. A purchaser from Ives executed three subsequent mortgages, the last of which — that is, the fifth mortgage — was executed to Pierson. Moore foreclosed the first mortgage on the property, but failed to make Pierson a party. Upon foreclosure at a sale which was absolute, Baker, who was the administratqr of the estate of Turner, the second mortgagee, bid in the property, paying a trifle more than the amount of the Moore decree; and Pierson in that case, as did Colby in this, sought to redeem by paying simply the purchase price paid at the sale, and without paying the incumbrance held by the Turner estate. There were three opinions in the case, but every judge agreed that this could not be done, and held the property subject to a lien as against Pierson for the amount of the Moore mortgage and the full amount of the Turner mortgage.

Manning, J., speaking of Pierson’s rights, said:

“Such mortgagee is not bound by the foreclosure, and his rights are neither greater nor less in consequence of it; and he may file his bill to foreclose his mortgage as if nothing had been done, except he would have to make the purchaser a party, who, in such case, would be the only necessary party, if complainant should state in his bill the previous foreclosure, and treat the purchaser as the assignee of .the several interests of the parties to it in the land.”

And, speaking of the rights of the purchaser at the foreclosure sale, the learned justice says:

‘ ‘ Having acquired the rights of all, he stands in their place, and may use the rights so acquired' to protect his interest in the land, and for his benefit, in the same way and to the same extent they could be used by such parties .had no foreclosure taken place.”

justice Christiancy held in that case that the administrator stood in all respects substantially in the position of a second mortgagee who has purchased in a prior mortgage to protect his own, and no subsequent incumbrancer could redeem the prior mortgage without redeeming the second, of which, under such circumstances, it forms substantially a part. In the result of this holding Chief Justice Martin distinctly concurs at page 546. It is true that some of the language used by him would seem to lend support to defendant’s contention; but the authoritative utterances in the case support the complainant’s position.

This view of the case renders it unnecessary to discuss the question of the tender.

It is next claimed that the holder of the intervening mortgages, Walsh, is not a party to this suit in his individual capacity, and therefore not bound by the decree. If the view of Justice Manning in Baker v. Pierson be adopted, while the complainant might have asked for a greater measure of relief than his bill prays, the subsequent liens having vested in complainant’s cestui que trust by- the purchase, those who were formerly holders of such liens would not be necessary parties. But, 'further than this, we think it is not true that complainant, Walsh, who brings this proceeding as trustee, would not be bound by the decree in his individual capacity. It is not as though he were an involuntary party. He himself is an actor in this case, asserting that, in his representative capacity as trustee, he is entitled to foreclose the liens on this property, and to a sale of the property to satisfy them, —a position wholly inconsistent with any individual claim which he might assert under the former liens. The question is ruled in principle by Baker v. Railroad Co., 91 Mich. 298 (51 N. W. 897, 16 L. R. A. 154, 30 Am. St. Rep. 471).

One other question raised by defendant Colby is that before Walsh became trustee, and while holding the Manuel mortgages, he individually paid taxes for the purpose of protecting his interest in the Manuel mortgages, amounting to $133.32, which were'included in this decree. As we have already indicated, there passed by the sale, and are now vested in the complainant, the interests of all lien-holders subsequent to the savings bank mortgage. As was held by Justice Manning in the Baker-Pierson Case, instead of asking for the payment of the savings bank and Coquillard mortgage liens, the complainant might have asked that all five mortgages be paid to him. Not having done so, it was not for the court to say that more should be allowed him than he demanded. As these taxes were but a part of the lien of the Manuel mortgages, certainly the defendant is not in a position to complain of their allowance.

This discussion disposes of all points made by defendant Colby, and as to him the decree will be affirmed, with costs. In the court below no appearance was entered by the defendant Robinson, and a conditional deficiency decree was entered against him. He has thought best to appeal to this court, and the decree will be modified by striking out that provision; but, as the point was not made in the court below, no costs will be awarded.

The other Justices concurred.

ON MOTION FOR REHEARING.

Montgomery, J.

Petition for rehearing. Defendant Colby owns the equity of redemption in the property in controversy. When he acquired such ownership, there were five mortgages upon said property. The first mortgage was foreclosed, and the title purchased by the mortgagee. To these foreclosure proceedings the junior mortgagees were parties, but the defendant Colby was not. After the first mortgagee had acquired his title under said foreclosure sale, he conveyed the same to the holder of the second mortgage, who brought this suit against defendant Colby to foreclose both the first and second mortgages. It is the claim of the defendant Colby that, though he is not bound by the foreclosure proceedings, because not made a party, he has nevertheless a right,to insist that those proceedings did cut off the lien on his equity of all the mortgages except the first. We decided that this claim was not well founded, and, after careful re-examination of the case on this petition for a rehearing, we are satisfied with the correctness of that decision.

In deciding the case we indicated that, as against the owner of the equity of redemption, defendant Colby, there passed to the purchaser at the foreclosure sale the interests of all the lienholders subsequent to the first mortgage. It was unnecessary to make this statement, and subsequent examination has cast doubt upon its correctness. This question was discussed in Baker v. Pierson, 6 Mich. 522. In that case there were five mortgages on the land in question. The first mortgagee foreclosed, bringing in as defendants to the foreclosure proceedings the owner of the equity of redemption and the holders of all the mortgages except the fifth. The holder of the second mortgage purchased at the foreclosure sale, and then brought this suit against Pierson, the holder of the fifth mortgage, for the purpose of foreclosing the first and second mortgages. Defendent Pierson claimed the right to redeem by paying the amount paid at the foreclosure sale. The question, “Upon what terms can Pierson be allowed to redeem? What sums must he pay, and to whom ? ” was reserved for the opinion of this court. Chief Justice Martin, Justice Manning, and Justice Christiancv participated in that decision. Each wrote an opinion advancing radically different views. It was the opinion of Justice Manning that the purchaser at the foreclosure sale acquired the liens of the mortgagees defendants in the first suit; that he had a right to insist that defendant Pierson pay the aggregate amount of all the mortgages prior to his own; but that, as he only asked for the payment of the first and second mortgages, he was only-entitled to that relief. Chief Justice Martin, while agreeing with Justice Manning as to the terms upon which redemption should be had in that case, was of the opinion that the effect of the former foreclosure proceedings ended, even as to defendant Pierson, the liens of the third and fourth mortgages. In other words, Chief Justice Martin contended for the doctrine insisted upon by defendant Colby in this suit. Justice Christiancy did not agree with Justice Manning that the liens of the subsequent mortgages had passed to the purchaser. He says:

“Did the purchaser, by this sale, acquire the liens of the subsequent mortgages in the land ? I think not. A mortgage is but a security for a debt. Independent of the debt, the lien can have no existence in equity. The debt is the principal-, the lien the accessory, which can no more exist without the debt than the shadow without the substance. Nor can it be a subject of separate ownership by one, while the debt is owned by another, unless, perhaps, as a mere naked trust for the benefit of the holder of the debt. -
“ If the purchaser at the foreclosure sale became entitled to the debts secured by these subsequent mortgages, then he may have obtained the liens of these mortgages, which were collateral to the debts, and he would be entitled to an assignment of any notes or bonds secured by the mortgages, and to enforce them for his own benefit against the makers. But certainly no one will claim any such effect from the sale. All must admit that the sale left these debts in the hands of the subsequent mortgagees, with the same right to resort to the personal liability of the mortgagor as they had before. As between them and the purchaser, their debts have been separated from the liens; in other wordp, as against him, while that sale remains in force, they have lost their liens upon the land. But he has not acquired them. He has acquired nothing more by the purchase than if there had been no subsequent liens. Such, then, I think, was the effect of the decree and sale as between the purchaser and subsequent mortgagees who were parties to that suit.”

This reasoning is approved by Chief Justice Martin in the following language:

‘ ‘ He [the purchaser] does not acquire the liens of the incumbrancers who were parties, for he does not acquire their debts, and a lien separated from the debt is extinguished ; nor can he be regarded as holding their liens as a trustee, for that would render his purchase valueless, as the beneficiaries might compel him, if he were their trustee, to enforce such liens for their benefit.”

But Justice Christiancy did not agree with Chief Justice Martin that the foreclosure proceedings destroyed, as to defendant Pierson, the mortgage liens prior to his own, held by parties to that suit. He says:

‘ ‘ What was the effect, as between the purchaser and those parties on one side, and Pierson, the fifth mortgagee, who was not a party, on the other ? Precisely nothing. As he is not to be prejudiced by the decree or sale, and his right to redeem, and all his claim to relief by cross-bill, are, and must be, founded upon the invalidity of those proceedings as against him, it must be equally clear that he can claim no benefit from those proceedings. He cannot bind others by the proceedings in a suit by which he refuses to be bound. He cannot claim under and repudiate these proceedings at the same time. To claim an advantage from the sale is to ratify the sale. He cannot affirm it as to those incidents which might operate in his favor, and repudiate it as to those which operate to his prejudice. He must repudiate the whole, or affirm and submit to the whole. He cannot be permitted to reap any advantage from the effect of that suit upon the parties to it holding the subsequent mortgages without putting himself on equal terms with those parties, and consenting to be bound by the decree and sale. As to Pierson, the prior mortgage to Moore is still unforeclosed, and that mortgage, and all the junior mortgages prior to his own, remain precisely as if no foreclosure or sale had ever taken place.”

Nor do we think it can be said that the views of Justice Christiancy are not in harmony with the decision made in Baker v. Pierson. That decision compelled defendant Pierson to pay all that complainant asked. According to the views of Justice Christiancy, he was bound to pay more. We think, as stated by Justice Manning, it was “not for the court to say he shall pay more than Baker [complainant] asks.” If the court had adopted Justice Christiancy’s views, we think that case would have been disposed of precisely as it was. It will thus be seen that two of the justices who participated in Baker v. Pierson distinctly repudiated the view in our former opinion, and their argument against that view is.very forcible. We therefore avail ourselves of this opportunity to correct so much of said opinion as placed our decision upon the ground that the liens on the equity of redemption subsequent to the first mortgage passed to the purchaser at the foreclosure sale. It is sufficient to say that the owner of the equity of redemption, not being a party to the first foreclosure proceedings, was not bound thereby, and cannot claim that the liens of the mortgages were thereby extinguished. Whether those liens passed to the purchaser, or whether they are enforceable in the hands of the original mortgagees, it is unnecessary to determine in this case.

We do not deem it necessary to discuss the other contentions made in the petition for a rehearing. Except as herein stated, we are satisfied with the reasoning of our former opinion, and the petition will therefore be denied.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., did not sit.