text:
    RASOR v. MOTT.
    1. Wills — Husband and Wire — Election or Wire — Statutes.
    Under section 8935, 3 Comp. Laws (3 Comp. Laws 1915, § 11667), where a devise of a life estate in land which had been the homestead of deceased and was appraised at more than $1,500, is made to the wife of deceased, the wife has the right to accept or reject the provision.
    2. Same — Election or Wire — Dower.
    The wife elected to take her dower rights where, upon her petition as administratrix, the land was sold to pay debts, subject to her dower rights.
    3. Estates op Decedents — Homesteads.
    A widow cannot acquire a homestead in land occupied by decedent as a homestead during his life free from decedent’s debts where there are no minor children of a decedent and his widow.
    Error to Gratiot; Dodds, J., presiding.
    Submitted April 6, 1917.
    (Docket No. 87.)
    Decided May 31, 1917.
    Ejectment by King Rasor and another against Cassius M. Mott. Judgment for defendant. Plaintiffs bring error.
    Affirmed.

      Carl H. McLean (O. L. Smith, of counsel), for appellants.

      O. G. Tuttle, for appellee.
    The cause was tried by the court, findings of fact and conclusions of law were filed, and plaintiffs’ request for certain findings of law was filed and was considered by the court. Judgment for defendant for costs was entered. The findings are:
    “In this action of ejectment the plaintiff seeks to recover possession of the northwest quarter of the northeast quarter of section 36 in township 10 north, range 3 west, in the county of Gratiot, State of Michigan.
    “(1) On the 28th day of May, 1894, Isiah Hatfield died testate, seised of the above-described land, to wit: The northwest quarter of the northeast quarter of section 36 in township 10 north, range 3 west, in said county of Gratiot, leaving him surviving his widow, Polly Hatfield, and his daughter, Tressey Omeida Rasor. The widow was at that time 74 years of age, and .the daughter 33 years of age. The latter was married to one James Rasor, and by him was the mother of the plaintiffs. The said King Rasor was at the time of his grandfather’s (Isiah Hatfield’s) death about 5 years of age, and the said Keoka (Rasor) Bassett was about 14 years of age. The said land was the homestead of the said Isiah Hatfield and his wife at the time of his death.
    “The will was as follows:
    “ ‘The last -will and testament of Isiah Hatfield, of the township of Newark, in the county of Gratiot and State of Michigan:
    “ T, Isiah Hatfield, considering the uncertainty of this mortal life, and being of sound mind and memory, do make, publish .and declare this to be my last will and testament in manner, and form following:
    “ ‘First. I give, devise and bequeath unto my wife, Polly Hatfield, all of my real estate of whatever kind or nature and wherever the same may be, she to have and hold the same during her natural life only; and then at her death the same shall go to and belong to my daughter, Tressey Omeida Rasor, during her natural life, and at her death the same shall go to her heirs, to be equally divided share and share alike (excepting James Rasor, her present husband, if he shall in any event become an heir at law of her, the said Tressey Omeida Rasor, as I do not desire him to take or have anything by this my will).
    “ ‘Second. I give and devise to my wife, Polly Hatfield, all of my personal property absolutely, and in case there should be any of such personal property unsold at her death, I desire my daughter, Tressey Omeida Rasor, to have the same.
    “ ‘Third. Hereby revoking all former wills by me made.
    “ ‘In witness whereof I have hereunto set my hand and seal this 4th day of August, A. D. 1887.
    “ ‘Isiah Hatfield. [H S.]
    “‘The above instrument, consisting of one sheet, was now here subscribed by Isiah Hatfield, the testator, iu the presence of each of us, and was at the same time declared by him to be his last will and testament, and we at his request sign our names hereto as attesting witnesses.
    “ ‘Philip Fritz, Newark, Mich.
    “ ‘Byron H. Sawyer, Ithaca, Mich.’
    “(2) On the 31st day of May, 1894, said Philip Fritz, one of the subscribing witnesses to said will, petitioned the probate court for the county of Gratiot for the probate thereof, and an order of hearing said petition was duly made by said probate court, fixing the 2d day'of July, 1894, as the day of hearing said peti-, tion, and ordering due publication to be made of said order.
    “(3) On the 2d day of July, 1894, proof of publication of said order of May 31st was made and hearing was had, and said will duly admitted to probate, and therein it was ordered, adjudged and decreed:
    “ ‘That said instrument be approved, allowed, established, and have full force and effect as the last will and testament of said deceased, and that the same be recorded as required by law, * * * that the execution of said will be committed, and the administration of the estate of said deceased be granted to said Polly Hatfield, who Is ordered to give bond in the penal sum of ?2,500, with sufficient sureties, as required by the statute in such case made and provided; and upon the same being duly approved and filed that letters testamentary do issue in the premises/
    “And thereupon on the same day, said bond having been filed and approved, letters testamentary, with the will annexed, in the regular form, was issued to said Polly Hatfield, among the provisions of which is the. following:
    “‘And whereas, at a session of said probate court held at Ithaca, in said county, on the 2d day of July, in the year one thousand eight hundred and ninety-four, the last will and testament of said deceased (a copy whereof is hereto annexed) was duly proved, approved and allowed, wherein you are appointed executor thereof, *■ * * whereby the power of committing administration and full disposition of all and singular the goods, chattels, rights, credits, and estate whereof the said deceased died possessed, in the State of Michigan, and also the hearing, examining," and allowing the account of such administration doth appertain unto me, and you have given a bond in the premises which has been duly approved and filed as required by law in that behalf: Now, therefore, trusting in your care and fidelity, I do by these presents, commit unto you, the said Polly Hatfield, full power and authority to administer and faithfully dispose of according to law and the will of the said testator, all and singular the goods, chattels, rights, credits, and estate of said deceased within the State of Michigan which shall at any time come to your possession, or to the possession of any other person for you, and to ask, gather, levy, recover, and receive all the goods, chattels, rights, credits, and estate whatsoever of ^said deceased which to him while he lived and at the time of his death did belong, and to pay and discharge all debts, legacies, and charges chargeable on the same, or such dividends thereon as shall be ordered and decreed by said court, hereby requiring you to make and return to said court, within 30 days, a true and perfect inventory of all the goods, chattels, rights, credits, and real estate of said deceased which shall come to your possession or knowledge, or to the possession of any other person for you, and also to render a just and true account of your administration to said court annually at any time when required by said court, and to perform all orders and decrees of said court by you to be performed in the premises.’
    “In the proceedings thereafter said Polly Hatfield is described by the probate court in orders made, and by herself in papers signed by her, sometimes as executrix, and sometimes as administratrix, and counsel for both parties in introducing testimony and in argument have used the term indiscriminately.
    “(4) On the 2d day of July, 1894, two appraisers were appointed and took the required oath, and on the 10th day of July, 1894, made and filed their report with the probate court and their inventory showecl the appraised value of the personal property to be $283.60, about one-third of which was household furniture, and all said land which was all the real property of said estate to be of the value of $2,000. This land was incumbered by a mortgage of $650, which had been executed by both Isiah Hatfield and his wife, :Polly Hatfield, aforesaid. There were other valid claims against the estate which were afterwards, on ‘October 1, 1894, and on January 2, 1895 (the days fixed for hearing claims), allowed at $990, including said mortgage, and subsequently the further amount of $122, amounting in all to $1,112.
    “(5), On. the 7th day of March, 1895, the administratrix, Polly Hatfield, petitioned the probate court for license to sell said real estate to pay the said debts against the estate, reciting:
    “ ‘That the personal estate of said deceased that had come into her hands amounts to the sum of $233.60, of which a small portion only remains undisposed of.
    ‘“Your petitioner further represents that, as far as can be ascertained by her, and as she is informed and verily believes, the just debts outstanding against said estate amount to the sum of about $1,100, and that the charges and expenses of managing and administering said estate, including future probable charges and expenses, will amount to the sum of $50.
    “ ‘Your petitioner further represents that it is necessary, for the purpose of paying debts, charges, and expenses, to raise the sum of $450 besides the mortgage indebtedness of $650 or thereabouts, by the sale of the following described real estate, or some part thereof, of which the said Isiah Hatfield died seised and possessed. The description, condition, and value of each parcel and of the whole of the real estate of which said deceased died seised and possessed, according to the information and belief of your petitioner, are as follows, viz.: The northwest quarter of the northeast quarter of section thirty-six (36) in township ten (10) north of range three (3) west of Gratiot county, Michigan. Your petitioner further represents that the names and residences of the next of kin and heirs at law of said deceased, and other persons interested in said estate, as your petitioner is informed and believes, are as follows, viz.: Polly Hatfield, widow, age 74, Pompeii, Mich.; Ross King Rasor, grandson, age 6, Ashley, Mich.; Lela Keoka Rasor, granddaughter, age 15, Ashley, Mich.
    “ ‘Wherefore your petitioner prays that she may be authorized, empowered, and licensed to sell the whole of the real estate hereinbefore described, with the hereditaments and appurtenances, or so much and such part thereof as the court shall deem necessary, and most for the benefit of all persons interested, for the purpose of paying the debts, expenses, and charges aforesaid, according to the provisions of the statute in such case made and provided.’

      “The said Tressey Omeida Rasor, daughter of the said Isiah Hatfield, and wife, Polly Hatfield, and mother of plaintiffs, had died previous to*the filing of said petition. On the 7th day of March'an order was made by the probate court fixing the 8th day of April, 1895, as the day of hearing said petition, and ordering that notice be given to the interested parties by publishing a copy of said order for three successive weeks in the Gratiot Journal, a newspaper printed and published in said county, of which publication the proof was filed April 10, 1895. On the said 8th day of April the hearing was adjourned to April 20th. On the 20th day of April James Rasor, father of plaintiffs, appeared with his attorney, E. McCall, to stop the sale because he thought the property belonged to his children, and at their request the hearing was adjourned to the 1st day of May, 1895. The order of the court made on that occasion was as follows:
    ‘“This being tbe time and place assigned by this court for bearing tbe executor of tbe estate of said deceased, praying that she be licensed to sell tbe real estate of said deceased to pay debts, now comes into court James Rasor in person and by bis attorney, E. McCall, and asks that tbe case be adjourned to May 1st next.’
    “(6) On the 1st day of May, 1895, hearing was had upon said petition, and license in the regular form, was granted to the administratrix, Polly Hatfield, to sell said land for the purpose of paying claims against the estate. On the same day the bond of the administratrix with a penalty of $3,000 was filed and approved, and the oath before sale made and filed. The license to sell ordered the sale to be made,—
    “ 'subject to all incumbrance by mortgage or otherwise existing at tbe time of tbe death of said deceased, or at tbe time of said sale, and also subject to tbe right of dower, and the homestead rights of tbe widow of tbe deceased therein.’
    “On the same day notices that said land would be sold on the 13th day of July, 1895, was given by said Polly Hatfield and was published in said Gratiot Journal, and the same was published for six successive weeks, and on the 31st day of May, 1895, three like notices of sale were given by her and posted in the township in which said land is situated. The notices all contained the same provision as the license, to wit:
    “ ‘Subject to all incumbrance by mortgage or otherwise existing at the time of the death of said deceased, or at the time of said sale, and also subject to the right of dower, and the homestead rights of the widow of the deceased therein.’
    “ (8) On the said 13th day of July proof of publication and posting of said notice of sale was filed and sale was made to Edgar W. Martin for the sum of $600. On the 17th day of July the administratrix filed her report of sale, which was in the regular form, reciting the same was made,—
    “‘subject to the mortgage against said land and subject to the dower and homestead rights of the widow of said deceased to Edgar W. Martin, of Pulton, in said county.’
    “After said report was filed and recorded both the original and the record in the office of the register of deeds was changed so as to read as follows:
    ‘“Subject to the rights of the widow of said deceased under the will of said deceased to Edgar W. Martin, of Pulton, in said ■county.’
    “This change was made without the knowledge of the probate judge, and was not made by the administratrix (who could not write) nor her attorney, and it does not appear by whom or how long after filing and record the alteration was made.
    “On the same day the sale was confirmed and the deed ordered by the probate court,- and the deed was executed and delivered to the purchaser by the administratrix, and on the same day placed upon record. Said deed was in words and figures as follows:
    “‘Know all men by these presents that I, Polly Hatfield, as executrix of Isiah Hatfield, deceased, pursuant to an order of the judge of probate for the county of Gratiot and State of Michigan, made at a session of said probate court held at the probate office in the village of Ithaca, in said county and State, on the 1st day of May, one thousand eight hundred and ninety-five, .authorizing, empowering, and licensing me to sell at public auction in conformity to the statute in such case made and provided sufficient of the real estate whereof said Isiah Hatfield died seised, for the purpose as in said order mentioned,' did sell at public auction held at the premises described, in the township of Newark, in the county of Gratiot, and State aforesaid, pursuant to legal notice, all the estate, right, title, and interest of said Isiah Hatfield of and in and to a certain real estate and premises, in said order set forth and hereinafter described, to Edgar W. Martin, he being the highest bidder thereto, which said sale was, by an order made by said judge of probate, on the 17th day of July, in the year one thousand eight hundred and ninety-five, duly confirmed, and I, the said Polly Hatfield, as said executrix, was directed and empowered to execute, acknowledge, and deliver a proper conveyance or conveyances of said real estate so sold, to the purchaser thereof, agreeably to the statute in such case made and provided.
    “ ‘Now, know ye that, in pursuance of the said several orders and proceedings above referred to, and in consideration of the sum of $600 paid to me by the said Edgar W. Martin, the receipt whereof I do hereby acknowledge, I have sold and do hereby grant, sell, and convey unto said Edgar W. Martin, his heirs and assigns, forever, the northwest quarter of the northeast quarter of section number thirty-six (36) in township ten (10) north of range three (3) west, in Gratiot county, Michigan. To have and to hold the above-granted premises with the appurtenances to the said Edgar W. Martin, his heirs and assigns, forever. And I do hereby covenant with said Edgar W. Martin that I will warrant and defend the said granted premises, with the appurtenances, unto the said Edgar W. Martin, his heirs and assigns, forever, against the lawful claims and demands of all persons claiming by, from, or under Isiah Hatfield, but against no other persons, excepting one certain mortgage of $652, and interest since July 25, 1894, at 7 per cent.
    ‘“In testimony whereof I have hereunto set my hand and seal at Ithaca, in the county of Gratiot and State of Michigan, this 17th day of July, A. D. one thousand eight hundred ninety-five.
    her
    “ ‘Polly x Hatfield, [L. S.]
    mark
    “ ‘Executrix of Isiah Hatfield, Deceased.
    “ ‘Signed sealed, and delivered in presence of witnesses to mark:
    “ ‘Kelly S. Seael,
    “‘J. Lee Potts.’

      “The records and files in the office of the probate judge do not show that any bond to pay the mortgage described in the deed was ordered by the probate court or given by the purchaser, Martin, but afterwards, on October 22, 1898, the same was paid and satisfied in full and discharged of record.
    “(9) On the said 17th day of July the said Polly Hatfield executed and delivered to said Edgar W. Martin a quitclaim deed of all her rights to said land for a stated consideration of $500, the same reciting:
    “‘This deed is made for the purpose of transferring to said Martin all the dower and homestead rights and all other title and interests of first party in and to said land.’
    “This deed was placed upon record at the same time as the administratrix’s deed. At the time of said sale the value of said land was from $1,700 to $1,800, and the amount paid by the purchaser besides said mortgage was $600 to her in her official capacity as administratrix and $500 to her personally. Between the day of making said sale and the execution and delivering of said deeds, to wit, July 15, 1895 (no written petition being of record or in the files), the said probate court made the following order:
    “ ‘It appearing that the time limited for creditors to file their claims against said estate has expired, and it further appearing that James Rasor and Polly Hatfield have claims against said estate, and desire to file the same and have them established as legal claims against the estate of said deceased, it is therefore ordered and decreed, with the consent of the administratrix, that said claims he filed in said court, and that the time for hearing same be fixed for Saturday, the 20th day of July, 1895, at 1 o’clock in the afternoon.’
    “On the 20th day of July the claims presented by the said Rasor were disallowed by the probate court.
    “(10) On the 1st day of October, 1895, the administratrix filed her final account, and the same was allowed on the 23d day of November, and the administratrix discharged. On the 26th day of November, 1900, the said Edgar W. Martin and wife executed and delivered a warranty deed to the defendant herein, and the defendant paid therefor a consideration of $1,500. • Said defendant had no notice of any of the alleged defects of the probate proceedings claimed by plaintiffs, excepting such constructive notice as was given by the records. Said Martin and his grantee have been in continuous possession of said land since the said 17th day of July, 1895, and defendant is still in possession, claiming title.
    “(11) At no time during the proceedings to sell said land was any guardian ad litem appointed by the court for either of the plaintiffs. No attempt was made to carry out the provisions of sections 9134, 9135, 9136, and 9137 of the Compiled Laws of 1897 (3 Comp. Laws 1915, §§ 14031-14034). The files and records do not show that the widow, Polly Hatfield, filed any express election in writing not to take under the will of her husband, except as appears by the proceedings in connection with the said sale, but she andher attorney and the probate judge all understood that she was taking under the statute and the proceedings were taken on that theory. The said Polly Hatfield died in March, 1914, before this action was commenced.
    “Conclusions op Law.
    “Counsel for the plaintiffs have filed requests for conclusions of law, 17 in number. They are somewhat involved, being rather disconnected, in some instances several aiming at the- same question from different angles. I have grouped them as best I can and have attempted to consider them in such a, way as to cover, in this finding, the questions raised in the requests.
    “As I gather from the requests and argument, the plaintiffs’ counsel claims that the sale of lands made-by the probate court to pay the debts of the deceased, Isiah Hatfield, in the administration of his estate, and under which defendant, through his immediate grantor, Edgar W. Martin, claims title, was void, and that judgment should be entered for plaintiffs for the following reasons:
    “(1) Because the widow, Polly Hatfield, not having elected not to take under the will, the sale cannot be made subject to her dower and homestead interests. Inasmuch as the said Polly Hatfield within the year granted for her election acted upon and in pursuance of the license to sell, subject to the widow’s dower, and herself gave notice by publication and posting, which notices contained the same clause, acts inconsistent with her asking under the will, and consistent only with the opposite theory, which was acted upon by the probate judge, I conclude that such acts amounted in law to a valid election to take under the statute.
    “(2) Because the plaintiffs, the remaindermen, under the provisions of the will, were minors and no guardian ad litem was appointed to protect their interests. I think that the proceedings were not void' because the guardian ad litem was not appointed, but voidable only at the minor’s election under proper proceedings, and that the omission cannot be taken advantage of in this action of ejectment.
    “(8) Because no proceedings were taken under the statute (Comp. Laws of 1897, §§ 9134-9137, 3 Comp. Laws 1915, §§ 14031-14034), the homestead interest being involved. The defendant’s counsel claims that this is not a case that comes under the requirements of this statute, but, if it is such a case, I think the failure to take action was not such an omission as to render the subsequent proceedings and sale void. As I see it, the question is involved in and controlled by the decision of our Supreme Court in Brown v. Hannah, 152 Mich. 33 (115 N. W. 980), I conclude that it was at most an irregularity that does not form the basis for collateral attack.

      “ (4) Because no bond was demanded by the probate court nor furnished by the purchaser at the probate sale to pay the mortgage then covering the land sold. Even if it would be conclusively held that no bond was filed by the purchaser at the probate sale because the records and files do not show it, I think it would not be controlling in this case, inasmuch as the mortgage was actually paid in full.
    “ (5) Because by the proceedings as taken the entire mortgage incumbrance was thrown on the remainder-men, whereas the homestead and dower interest should have borne a portion even if the sale had been otherwise valid. I do not think the record shows such was the fact, but in any case the proceedings are not subject to collateral attack for that reason, and I conclude the question cannot be litigated in this case.

      “(6) Because the sale was made subject to the life estate of the widow contrary to the order of the court. The same was not made contrary to the order of the court and I therefore conclude that this request is without force.
    “(7) Because the facts in the case do not bring it within the provisions of the statute. 3 Comp. Laws, § 9129 (3 Comp. Laws 1915, § 14024). I think that the facts bring the sale within the provisions of the statute (section 9129, of the Compiled Laws of 1897), and that as all the requirements of that statute have been substantially complied with ejectment will not lie.
    “(8) That the plaintiff Keoka is not precluded from joining in this action because more than 5 years had elapsed between the time she was 21 years of age and the time of commencing this action. The plaintiff Keoka Bassett became 21 years of age in 1901. Inasmuch as Polly Hatfield did not take under the will, she had no title to the land in question. She had no life estate except her dower, and the plaintiff Keoka Bassett could have taken proper proceedings to set aside the sale at any time previous to 1906. I conclude that the statute of limitation could be invoked after that time.
    “It appears that at the time of the death of Isiah Hatfield the personal estate was worth $233.60, one-third, of which was household furniture. It was therefore. within the allowance to the widow, whether she took under the will or under the statute, and could not be considered as a part of the assets of the estate nor liable to be used to pay debts of .deceased. A year later, at the time of the proceedings to sell, this had all been used by the widow ‘except a small portion.’
    “The land in question, which was all the real estate, was appraised at $2,000, but at the time of the probate sale it was worth $1,700 to $1,800, and the mortgage thereon was $650. The other debts against the estate amounted to $487.00 besides the expenses of administration. The purchaser at the probate sale paid $1,750, including the mortgage and the $500 he paid the widow. Later he sold it to defendant for $1,500. It is not denied but that the $1,100 cash paid by the purchaser, plus the mortgage, was the full value of the land. The actual wrong to the plaintiffs, if any, consisted in allowing Polly Hatfield as ‘widow’ to appropriate too much, and Polly Hatfield as ‘administratrix’ too little, of the proceeds of said sale. Whatever wrong was done could have been, and perhaps can still be, corrected in appropriate proceedings, but the rule is a wise one that will not allow such sales to be attacked collaterally in ejectment, where a recovery by plaintiffs as herein claimed would give them the estate clear of the debts to which it was subject.”
    Exceptions to the findings were filed, one of them being that the facts found do not support the judgment, and the assignments of error, 20 in number, are based upon the said exceptions. No finding of fact is disputed.
    Appellants state the question presented in these words:
    “Briefly, the question in this case is the legal effect of an attempted sale of homestead lands, worth less than $1,500, made subject to homestead interests, and made contrary to all the provisions of the Amendment Act of 1887, where the widow did not comply with the statute in electing to claim a homestead (not to' take under the will), and sold said so-called homestead interest, not as trust property, as required by the statute, but as her individual property. The only persons interested whose interests were sold were minors, for whom guardians ad litem, were not appointed, the lands also being sold subject to a mortgage, without requiring a bond from the purchaser as required by section 9109, 3 Comp. Laws (3 Comp. Laws 1915, § 14019); all proceedings and acts being matters of public record. It was the contention of the plaintiffs at the trial that for each of these causes, and particularly when considered collectively, the executrix and widow’s sales were void.”
   Ostrander, J.

(after stating the facts). I am of opinion that the court below reached the right conclusion, and that the judgment should be affirmed. There was a devise to the wife of a life estate in land, which, land had been the homestead of the deceased and was appraised at more than $1,500. She had the right to accept or to reject this provision made for her. 3 Comp. Laws, § 8935 (3 Comp. Laws 1915, § 11667). It is a fair conclusion from what she did that she elected to be endowed of the land. It was, upon her petition, sold, subject to her dower right. How she acquired a homestead right in the land I do not understand. There were no minor children of deceased and herself. There was a child, a daughter, mother of the plaintiffs. In such a case the Constitution seems not to have secured to the widow a homestead in lands of her deceased husband. But I am not troubled by the fact that the land was sold subject to her dower and hómestead right or that her quitclaim deed purported to be executed and intended “for the purpose of transferring * * * all the dower, and homestead rights and all other title and interests of first party in and to said land,” because the enumeration of these rights may be said to .merely indicate a purpose to cover any and all possible rights, and not a purpose to assert that all enumerated rights existed. No one sought to save a homestead, to define or value a homestead. The land was sold to pay debts. The debts existed and all rights created by the will were subject to be defeated by a sale of the land for their payment. Probably the widow received too much, proportionally, for herself, and too little for the estate. But the sale, upon this record, was not void. This is enough to defeat plaintiffs.

' Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PEOPLE v. SMITH.
    Criminal Law — Larceny—Evidence—Sufficiency.
    Evidence held, sufficient to sustain a conviction of both defendants, in a criminal prosecution against two women jointly for stealing money from the person of the prosecuting witness, who was with another man at the time of the commission of the crime who was engaged in conversation by one of defendants, while the other woman, during a conversation with the prosecuting witness, picked the latter’s pocket.
    Error to recorder’s court of Detroit; Connolly, J.
    Submitted April 13, 1917.
    (Docket No. 164.)
    Decided May 31, 1917.
    Nellie Smith and Mabel Garson were convicted of stealing and sentenced to imprisonment from six to. nine months in the Detroit house of correction.
    Affirmed.

      Thomas J. Mahon and Thomas L. Dalton, for appellants.

      Charles H. Jasnowski, Prosecuting Attorney, for the people.
   Ostrander, J.

Respondents are jointly informed against, charged with stealing money from the person of one William Harris, June 8,1916. They were tried together, the trial beginning October 14, 1916, and were found guilty. The record of the judgment is not before us. It is recited in the printed record that they “were sentenced from six to nine months in the Detroit House of Correction,” but when they were sentenced is not apparent. Another recital is to the effect that on January 19, 1917, “the court denied motion for new trial, and denied motion to admit to bail.” It may be assumed, perhaps, that judgment had been then pronounced, and that the respondents were in confinement. The court gave no reasons for refusing a new trial, no exceptions were taken to the action of the court, and no exception is relied upon or argued in the brief for respondents, for whom the contention is made by counsel:

“We, therefore, respectfully submit to this court that, there being no evidence in the record to connect Mabel Garson with the offense charged, she should be discharged, and that in view of the failure of Nellie Smith to have testimony of the witnesses to the alibi produced a new trial should be granted.”

It is not claimed that any newly-discovered evidence was, upon the motion for a new trial, brought to the attention of the court, but some affidavits were used upon the motion, and it is to these that the foregoing statement of respondents’ contention refers.

In o'utline, the testimony for the people tended to prove that Harris, the complaining witness, and a friend, walking on the evening of June 8th at or near the corner of Hastings and Clinton streets in Detroit, were, or Harris was, accosted by one of the respondents, who were in company. She (both say it was Nellie Smith) expressed a desire to speak to Harris, and they (Harris'and Smith) went into “a sort of doorway,” when, after talking “a half minute,” some one said, “Beat it.” The women ran one way; Harris and his companion the other way. “I got about a half a block, and I felt around for my money, and I saw it was lost.” This from Harris. Later, that evening, he found $5 on the ground at the doorway. In all $60 was taken from his person. No one of the party except Nellie Smith could have taken the money from his person, and if Mabel Garson may be rightfully found guilty, it is because the testimony shows the women to have been in company, and in agreement in the adventure; Garson engaging Harris’ friend in conversation, running away when the party broke up, the two women being found together, later in the evening, when they were arrested. Whether they had agreed to commit a crime, and each contributed something towards its commission, was a question submitted to the jury, which was instructed to acquit one, or both, unless satisfied, beyond a reasonable doubt, of guilt. The recorder must have been satisfied, as I am from an examination of the record, that if the testimony of the men is believed, necessary inferences involve both women in the commission of the offense. The men are white men; the respondents are black. They were not acquaintances. The men were accosted; they stopped; Harris was invited into the doorway; his pocket was picked there; an -alarm was made by one of the women; all fled. In a few minutes, when the men returned to the scene, the women were not to be seen. They were later on arrested, on the street, in company. Each of them testified, and respondent Garson denied a personal acquaintance with Nellie Smith; said she had just met her when they were arrested, and that she was not, that night, “anywhere near or in the vicinity of Clinton and Hastings” street.

Reversible error is not made out.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Moore, J.

text:
    CANEDY v. TURNER.
    1. Cancellation of Instruments — Deeds—Evidence—Undue Influence — Competency.
    On a bill for tbe cancellation of a deed made by plaintiff to his niece and her busband under an agreement whereby plaintiff was to receive care and support in defendants’ home for life, and tbe deed was to be delivered to defendants by a third person, in whose possession it was, upon plaintiff’s death, and plaintiff’s wife died before execution of tbe deed, and be bad no children, was of advanced age at tbe time ef tbe execution of tbe deed, and tbe execution of tbe deed was in accordance with tbe desires of bis wife, evidence held, insufficient to show undue influence and incompetency to make tbe deed.
    2. Same — Equity.
    On a bill to set aside a deed on tbe ground of incompetency of plaintiff, where it appeared that the premises deeded comprised all tbe property of plaintiff, and was deeded under an arrangement whereby be was to live with defendants, bis niece and ber busband, and be supported during tbe remainder of bis life, and tbe deed, which was in tbe bands of a third person, was to be delivered to defendants upon plaintiff’s death, and tbe evidence failed to show incompetency of plaintiff, but defendants expressed in open court a willingness to submit to a decree for tbe payment of a fixed annual sum to plaintiff fpr life, in case be did not care to live with them, and tbe land conveyed was worth from $6,000 to $7,000 and rented for $250 per year, a decree that tbe defendants pay $300 per year to plaintiff for life, pay all taxes and keep tbe premises in repair, and that tbe fulfillment of tbe terms of tbe decree should be a lien on tbe property, in case tbe plaintiff did not desire to live with defendants and elected to abide by tbe decree, was proper.
    Appeal from Eaton; North, J., presiding.
    Submitted April 11, 1917.
    (Docket No. 151.)
    Decided May 31, 1917.

      Bill by Alexander M. Canedy against Kenney C. Turner and another to set aside a deed. From a decree dismissing the bill, plaintiff appeals.
    Decree entered for. defendants.

      Gardner & Hood, for plaintiff.

      C. A. Shepard and W. D. Grommon, for defendants.
   Moore, J.

This bill of complaint was filed August 29, 1916, to set aside a warranty deed made January 15, 1915, by the plaintiff to the defendants. The case was heard in open court. From a decree dismissing the bill of complaint the case is brought to this court by appeal.

It is claimed plaintiff was incompetent and unduly influenced when he made the deed. The trial judge expressed himself as thoroughly satisfied that the preponderance of the testimony as to each of these questions is decidedly against the plaintiff’s claim.

Some question is made about the effect of the pleadings, but the turning and decisive point in the case is one of fact, namely, Was the deed executed and delivered when plaintiff was competent to do so? It is somewhat significant that plaintiff himself filed the bill of complaint and was also a witness in his own behalf. Upon the trial no one questioned his competency to do each of these things. When the deed was drawn plaintiff was past 77 years of age. His wife died shortly before that. They had no children. The defendant Della Turner' is the plaintiff’s niece, being a daughter of a sister of his deceased wife. His testimony on cross-examination discloses that before her death his wife desired in case of her death that the husband should have the defendants move upon the farm and take, care of plaintiff, and that plaintiff and his wife had talked two years or more before her death that defendants should have the farm.

Shortly after the death of his wife the plaintiff alone visited the president of the Michigan State Bank at Eaton Rapids, whom he had known for 50 years, and had the warranty deed, which is the subject of controversy here, executed and put in a private box plaintiff had in the bank. A little later the defendants left a little farm they had in Hillsdale county,, and moved into the house occupied by the plaintiff and commenced caring for him. This was done at the request of plaintiff, and upon his assurance that he had deeded the property to them. Later defendants learned where the deed was and talked over with the plaintiff whether what was done was a sufficient delivery of the deed. Following this talk all of the parties visited the banker, who had drawn the deed. It was taken from the private box and an indorsement was made on the envelope containing the deed as follows:

“Deed of Alexander M. Canedy to Kenney C. Turner and Della Turner, this paper not to be delivered to either party until all are present and only to Mr. and Mrs. Turner, after the decease of Mr. Canedy.
“A. M. Canedy.
“K. C. Turner.
“Mrs. Della Turner.”

And the banker testified:

“That as soon as that memorandum was drawn and the deed was put in the envelope that I took it and put it in the package where we keep papers of that kind,, wills,” etc.

In 1916, after plaintiff had made a visit to a brother, he became dissatisfied and this proceeding was begun.

Without going into the details of the testimony, it may be said that no one can read this record without reaching the conclusion that the deed was made without such undue influence as should affect its validity, and when the plaintiff was entirely competent to make it. See Latham v. Udell, 38 Mich. 238; Spencer v. Terry’s Estate, 127 Mich. 420 (86 N. W. 998); Hayman v. Wakeham, 133 Mich. 363 (94 N. W. 1062); Terry v. Terry, 170 Mich. 330 (136 N. W. 448); Reagan v. Murray, 176 Mich. 231 (142 N. W. 545), and Demerse v. Mitchell, 187 Mich. 683 (154 N. W. 22).

The trial judge expressed himself at the conclusion of the trial in part as follows:

“From the foregoing it follows that, if -this case was to be disposed of on its merits, the court would have no alternative but to grant to the defendants a decree dismissing the plaintiff’s bill of complaint with costs to be taxed by the defendant. Defendants offer in open court to submit to a decree whereby a fixed amount might be ordered paid annually by them to the plaintiff, so long as the plaintiff sees fit to make his home elsewhere than with the defendants. Unfortunate cases of this character seem to have been worked out along this line, for example, see Wilson v. Wilson, 160 Mich. 555 (125 N. W. 385). The facts in this case in a large measure are strikingly similar to the facts as reported in the above cause. The plaintiff, however, is a man of practically no other property than that involved in this suit. He seems to be an exceptionally well-preserved man for one of his years, and while the proofs show his expectancy to be one of less than five years, still it would not be at all surprising if he lived longer. The property which he conveyed to these defendants consists of a farm of about 79 acres. The proof as to valuation varies from $75 to $100 an acre; and its rental value is shown by the proof to be at least $250 per year. Under these conditions it would be' no more than fair to this plaintiff, in case he elects not to return to the home of the defendants, to grant him a decree which shall provide that the defendants shall pay him the sum of $300 per year; the same to be payable at equal quarterly installments, to be computed from the time that the plaintiff ceased living with the defendants. In case the plaintiff elects to take a decree of this character, it shall be done without costs to either party, and the fulfillment of the terms of the decree may be made a lien upon the land involved. It should also be provided that the defendants are to pay the taxes and to keep the premises in repair.”

The plaintiff did not elect to take such a decree, but such proceedings were had as we have already stated.

In response to an inquiry directed to counsel during the argument in this court, of this case, it was stated that defendants recognize their duty to care for the plaintiff, and that their house is open to him. They indicated, a willingness to have the court make some provision for him in case he thinks he cannot come back to them.

We are satisfied with the suggestions made by the trial court in the words we have quoted, and a decree may be made in this court accordingly. The defendants will recover their costs in this court.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


text:
    WHEELER v. WHEELER.
    Divorce — Extreme Cruelty — Evidence—Sueetciency.
    Evidence held, sufficient to sustain a decree in plaintiff's favor, on a bill by a husband for a divorce on the ground of extreme cruelty.
    Appeal from Wayne; Codd, J.
    Submitted April 5, 1917.
    (Docket No. 49.)
    Decided May 31, 1917.
    Bill by James D. Wheeler against Martha Wheeler for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Louis J. Colombo, for complainant.

      Harold McIntyre, for defendant.
   Moore, J.

From a decree of divorce in favor of the plaintiff the case is brought here by appeal. The important question is: Does the record show plaintiff is entitled to a decree of divorce? There are three children living, the youngest of whom is more than 14 years of age. No property rights are involved as they have been adjusted. The bill was filed upon the ground of extreme cruelty. The defendant put in an answer in the nature of a cross-bill in which is the following averment:

“This defendant further alleges that said complainant has grown cold toward her; that his treatment of her has become cold and distant; that he frequently comes home in an intoxicated condition, and that on different occasions he has laid violent hands upon her person, pulling and yanking her violently around by the arm, and has on said occasions threatened to do her severe bodily harm. This defendant further alleges that she has good reasons to believe, and alleges the fact to be, that he is paying undue attentions to other females in the city of Detroit, and that he is having improper and indecent relations with them, all of which facts this defendant is ready and willing to prove upon the trial of this cause.”

She prayed for a divorce. Before a decision was rendered the defendant withdrew her request for a decree under the cross-bill. After hearing all the testimony, the judge withheld a decision for some months, in the hope that because of the children the parties might become reconciled. Later, after some supplementary testimony, he granted the decree from which an appeal is taken.

In support of the averments of her cross-bill the defendant produced as a witness her brother, a young man 26 years old. The judge expressed himself as follows:

“It is my belief that the complainant in this case is a respectable citizen of this community. There has been an attempt on the part of the defendant to blacken his character. It is stated that on two or three occasions he was under the influence of liquor, and I am satisfied from the uncontradicted testimony that this habit, if it was ever a habit, has been eradicated, and that he is not addicted to the use of intoxicating liquors, and cannot come under the name of á person so addicted to the use of intoxicating liquors as to warrant a divorce being granted for that cause.
“The testimony of the witness Williamson, from his appearance upon the stand, is utterly unreliable. The man is a self-confessed libertine, and it is my judgment that he has deliberately perjured himself in the testimony that he gave with regard to occurrences in these houses of assignation and ill-fame. I believe the testimony of the plaintiff in this respect. As I stated, I come to these conclusions from the appearance of these witnesses upon the stand — from the appearance of the complainant. I also consider the appearance of Williamson upon the stand. He appears, and under his testimony I believe him to be, a man of no character; he is a man who confessedly would consent to be supported by a white woman of the lowest character for a considerable time. He is a libertine, and has been for years, and was at the time he says that he saw this complainant in houses of ill-fame. Such testimony is unworthy of belief in the hands of any court. I do not know whether it is possible for a criminal charge to be made against Williamson, but I think it should be, because I am myself becoming thoroughly disgusted with the reckless swearing given by these men. This man Williamson should be taught a lesson, that he cannot perpetrate such perjury and give such testimony as this again. The fact that he has never told this until he came into this court — if this was true, it might be corroborated. His appearance, his manner, his own concession as to his character, prevents the court from believing what he said.”

The plaintiff in the most positive terms denied the testimony of Mr. Williamson, and testified that the only times he had visited sporting houses was when he was called there in pursuit of his business of delivering coal, and calling for and delivering trunks as an expressman. Plaintiff testified in part:

"She got after me one night; said she put in an application for a divorce. ■ She tried to aggravate me. * * * She kept quarreling and nagging me. * * * She denied that there was any mortgage, and refused to let me go ahead on this business deal. She was nagging me right along after that. * * * She took all the papers in my office, receipts and deeds of the place; deeds of the place in Virginia and insurance papers. * * * After I came from my vacation last summer she would not cook for me. I would get my own breakfast. * * * Sometimes I would go home and get my own supper. She would come in at 10, 11, and 12 o’clock. This happened for six months before I filed my bill. * * * Nagging, nagging, nagging. She called me a dirty, nasty nigger, nothing but a dirty liar and a fool.”

He testified that she threatened to poison him, and that he was afraid that she would do so, and that she insisted upon sleeping with her feet to his face, and that for a long time before they separated defendant refused to have wifely relations with him. The last statement she denies. Defendant also denied that she had ever threatened to poison plaintiff, but testified in part:

"I remember we had some trouble when we came to mortgage the house. * * * I am talking about the mortgage on 336 Champlain street. I read it and asked him for the papers. * * * I took it to Lawyer Kelly. * * * I started my divorce several years ago against him, because 'he had this notice sent to me, that the property was to be turned in for a mortgage. Mr. Hartenstein sent it. Mr. Wheeler could have kept the payments up in the mortgage, and I filed my bill for divorce because they sent him that notice.
“The Court: Was that the only reason?
“A. That was the only reason.
“The Court: That is the only reason you started that bill for divorce?
“A. Yes.”

We have already called attention to- the averment in the cross-bill and the testimony in support thereof. An opinion written by Justice Stone reads in part as follows:

“The trial court had the advantage of having seen and heard the_ witnesses testify. In some matters charged there is a sharp conflict in the testimony, which cannot be harmonized. As was said by Justice Moore'in Donaldson v. Donaldson, 134 Mich. 291 (96 N. W. 449):
“ ‘There are many aids possessed by tbe judge who bears tbe oral testimony, in deciding wbo of tbe witnesses are truthful, that do not get upon tbe printed page.’
“While it is the duty of this court to exercise its independent judgment in such cases, yet where our conclusion accords with that of the circuit judge, and in view of the presumption favoring his conclusion on a question of fact, where he has had the opportunity above referred to, which is denied us upon appeal, we think that we should treat the complainant’s case as made out by the proofs in this case.” Vollrath v. Vollrath, 163 Mich. 303 (128 N. W. 190).

In a case where the charge was extreme cruelty the court said:

“There was an abundance of testimony to the effect that defendant continually called complainant opprobrious names and accused him with improperly associating with other women, and that for a number of years she refused to cohabit with him because she had. not liked him from the time of her marriage. This testimony, if believed, justified the decree of divorce. * * * It is true the defendant denied the testimony offered by the complainant, but the judge heard and saw the witnesses. See Donaldson v. Donaldson, 134 Mich. 291 (96 N. W. 449). An examination of the record satisfies us he did not err in his conelusions.” Waldhorn v. Waldhorn, 165 Mich. 134 (130 N. W. 199).

See, also, Horning v. Horning, 162 Mich. 133 (127 N. W. 275); McCue v. McCue, 191 Mich. 1 (157 N. W. 369), and Cole v. Cole, 193 Mich. 655 (160 N. W. 419).

In the case before us the testimony was contradictory, but the fact that defendant previously commenced a divorce proceeding simply because she had received notice of the foreclosure of a mortgage, and the further fact that she charged plaintiff in her cross-bill with improper relations with other women, and in support thereof offered the testimony of her brother, which is so improbable that, after a careful reading of it, we think the trial judge properly characterized it. She also charged him with personal violence, when her testimony showed that the only act, which plaintiff denied, which could be so considered, occurred a long time before the parties separated. All these facts are illuminating in considering the probabilities of the contradictory testimony.

The record warrants the decree rendered in the court below, and it is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


text:
    McVICKER v. KNEELAND.
    Taxation — Quieting Titee — Adverse Possession.
    A mortgage and tax deeds of prior date are cut off and a suit to quiet title lies without the payment by grantees of the grantee under a tax deed from the auditor general of outlawed claims, where such grantee and grantees remained in possession and exercised acts of ownership over the premises for a period of 20 years.
    Appeal from Gratiot; Searl, J.
    Submitted April 10, 1917.
    (Docket No. 116.)
    Decided May 31, 1917.
    Bill by George McVicker and another against Frank G. Kneeland and others to remove a cloud upon the title to land. From a decree for plaintiffs, defendants appeal.
    Affirmed.
    O. G. Tuttle, for plaintiffs.

      Charles H. Chase (Edwin H. Lyon, of counsel), for defendants.
   Moore, J.

The bill of complaint in this case was filed in March, 1915, for the purpose of removing a cloud upon title to a piece of real estate. From a decree in favor of the plaintiffs the case is brought here by appeal.

It is averred in the bill of complaint that the plaintiffs are the owners in fee and in possession of certain lands, to which they acquired title on the 12th day of May, 1914, by warranty deed from Frederick W. Hooper and his wife; that Frederick W. Hooper purchased said land on the 2d day of August, 1893, from Bert Woodward and wife, who were the owners of valid tax titles against them for the years 1888 and 1889 and who conveyed them to Mr. Hooper by warranty deed, and said Hooper took immediate possession of the land, and remained in the open, continuous, exclusive, hostile, uninterrupted, and adverse possession of the same for more than 20 years; that the land was assessed to Mr. Hooper each year from 1893 to 1914, both inclusive, and he paid all taxes assessed against them amounting to $587.58, exclusive of interest thereon.

Defendants claim liens for taxes assessed against said land, based on mesne conveyances from the purchaser of tax titles of said land for the years 1865 to 1886, inclusive, except for the year 1875.

On the 24th day of February, 1887, Nelson B. Jones and James B. Porter, claiming to have an interest in said land by reason of the said tax sales, made a mortgage covering said land and other lands, to one Aaron J. Rayner, guardian, and by assignment the mortgage was transferred to defendants Aaron J. Rayner, Augusta Rayner, and Iva E. Bond, in whose names the record title now stands.

On the 20th day of March, 1899, Nelson B. Jones and wife and Eunice J. Porter, Will H. Porter, and Edgar S. Porter executed and delivered to Frank G. Kneeland a deed of said land, and on the 22d day of November, 1899, Nathan Church and wife and Clarence Church executed and delivered a deed of said land to said Kneeland, which deeds he caused to be recorded.

Defendants filed an answer in which it is said, among other things:

“And while these defendants admit that their claim is one which they would not be able to enforce by any suit for possession, they aver that it is one which is a lien and a cloud on the title of said lands which they have a right to retain in statu quo until such time as complainants or their successors in possession do equity by paying the lawful tax liens held by these defendants with the lawful interest thereon. And these defendants further aver that any decree made by this court to quiet title and remove clouds should be made on the express condition' that said complainants do equity by paying said tax liens with the said interest thereon.”

The trial judge said upon the hearing:

“The only question in this case is whether the holder of an outlawed tax title has the right to insist that complainant may not have a decree quieting his title without payment of the tax.”

The contention of appellant is stated by counsel as follows: We quote from the brief:

“And upon the trial of said case said defendants admitted that they were not contending that they had such title that they could come into court by suit in ejectment and acquire title, or that they could disturb possession of complainants, but merely asserted that when complainants come into court and1 ask for a decree quieting title, they ought to pay the taxes and accrued interest thereon, or, in other words, ‘if they have the title cleared up, they must do equity.’ ”

A great many authorities are cited, but we do not think they support the contention of counsel.

When Mr. Woodward acquired his tax deeds from the auditor general for the taxes of 1888 and 1889, he and his grantees have been in possession and exercised acts of ownership over the premises for the time shown by this record, the mortgage and tax deeds of prior date were cut off. See section 11965, 4 How. Stat. (2d Ed.), and the many foot notes (3 Comp. Laws 1915, § 12302); Cleland v. Casgrain, 92 Mich. 139 (52 N. W. 460); Schneider v. City of Detroit, 135 Mich. 570 (98 N. W. 258); Pence v. Miller, 140 Mich. 205 (103 N. W. 582); Flint Land Co. v. Fochtman, 140 Mich. 341 (103 N. W. 813); Carmell v. Parr, 161 Mich. 429 (126 N. W. 835). See, also, section 1842, 1 How. Stat. (2d Ed.), 1 Comp. Laws 1915, § 4070, and section 14119, 5 How. Stat. (2d Ed.) 3 Comp. Laws 1915, § 12311.

The decree of the court below is affirmed, with costs to the plaintiffs.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


author: Mooee, J.

text:
    PEOPLE v. CALLIARI.
    1. Intoxicating Liquors — Criminal Law — Evidence.
    In a criminal prosecution for keeping, storing, and possessing intoxicating liquor in other than the residence of defendant, where the evidence disclosed that defendant was professedly engaged in the sale of nonintoxicating liquors in one room of a building, the remainder of which was the residence of his mother, but he had once been engaged in the sale of intoxicating liquors in such room, and liquor was found under the floor of his mother’s room, which defendant claimed belonged to his mother, although it had originally belonged to him while in the saloon business, because he had transferred it to her in satisfaction of a debt, and defendant further claimed that he handled only nonintoxicating liquor, evidence that persons were seen drinking beer in other rooms of the building was competent.

    2. Same — Evidence—Directed Verdict.
    Under the state of the evidence, the court did not err in refusing to direct a verdict in favor of accused.

      3. New Trial — Absence of Witnesses — Criminal Law.
    A motion for a new trial, on the ground of the absence of witnesses who would deny the testimony of a witness for the prosecution that such absent witnesses were drinking beer in the residence of defendant’s mother, was properly denied where no request was made during the trial for time and no effort was made to procure their attendance, and it was not claimed that they were not in the county or not within reach at the time, and it did not appear that either or all of these witnesses would, if put under oath, deny the testimony of the witness for the prosecution.
    Exceptions before judgment from Iron; Flannigan, J.
    Submitted April 12, 1917.
    (Docket No. 155.)
    Decided May 31, 1917.
    Dolfo Calliari was convicted of violating the local option law.
    Affirmed.

      A. F. Dixon, for appellant.'

      August J. Waffen, Prosecuting Attorney, for the people.

        On the question of inference of intent to sell intoxicating liquor from possession, see note in 39 L. R. A. (N. S.) 534.

   Mooee, J.

This ease is here on exceptions before sentence. Respondent was arrested for keeping, storing, and possessing, on and between May 1, 1915, and August 12, 1915, intoxicating liquors in other than his private residence, and was convicted at the September, 1915, term of the circuit court for Iron county. A new trial was applied for and denied.

Respondent assigns the following errors.

“(1) In admitting under the objection of the said respondent the testimony of witness M. J. Monahan.

“(2) In not directing the verdict of acquittal upon motion of the respondent; and

“(3) In denying the motion of the said respondent for a new trial in said cause.”

The attached diagram is helpful:

In disposing of the motion for a new'trial the trial judge expressed himself in part as follows:

"Previous to May 1, 1915, the respondent conducted a saloon for the sale of intoxicating liquors at retail, in the barroom shown on the diagram. From May 1, 1915, down to the time of the trial the barroom was occupied by the respondent for the sale, as he claims, of nonintoxicating liquors. In the building which is owned by her, Mary Calliari, the mother of the respondent, conducted a boarding house. August 12, 1915, Charles McFarland, marshal of the village of Iron River, and a deputy sheriff, armed with a search warrant, and accompanied by others, who appeared as witnesses, made a search of the building in question for intoxicating liquors. On entering room No. 4 on the diagram, which is called Mrs. Calliari’s bedroom, they found a trunk resting on a rug, which in turn rested on the floor. On removing the trunk and the rug, they found in the floor directly under the spot where the trunk stood a trapdoor, which was countersunk and did not raise readily. One of the jaws of a pair of ice tongs found in the room was put in a place between the trap door and the floor and the trap door was pried up. The jaws of the ice tongs fitted into the place in such a way as to indicate it had been often used in raising the trapdoor. Beneath the trapdoor was found a hole or opening in the soil, which, according to the testimony of a witness, was prepared in April, 1915, which would be shortly before the local option law took effect. In this hole or opening were found two barrels and a number of bottles of different kinds of liquor, all of which it was conceded were intoxicating. On one of the barrels or boxes, was the defendant’s tag. It was further admitted that the liquor belonged to the respondent when he was lawfully engaged in the sale of intoxicating liquor, but it was claimed by him, and he and his mother testified, that upon being forced out of the saloon business by the adoption of local option he transferred the ownership of the liquors to his mother in cancellation of an indebtedness due her for rent of the saloon, and that at the time of the discovery of the liquor it was owned by the mother. * * *
“That the liquor belonged to the respondent before he closed out his licensed saloon; that when discovered his tag was on at least one of the barrels or boxes; and that the liquor was secreted in the manner mentioned — were conceded facts. If, as they had a right to do, the jury believed the testimony of the witnesses for the people, they found the existence of the additional facts, that when the liquor was discovered, Mrs. Calliari disclaimed ownership thereof, and that on June 20th, June 29th, and August 4th, which was bút six days before the liquor was discovered in the hole under the floor, rooms marked on the diagram as Nos. 1, 2, and 5, were used for the sale and consumption of intoxicating beer, and that such beer, on at least one of these occasions, was served to the guests by the respondent. It further appeared that the respondent received by railroad from outside shipments of liquor by the half barrel in July and by the gallon in August.
“Mrs. Calliari claimed she intended the liquor for her sole use as a medicine. When the quantity and variety of it is considered, the jury may well have thought that claim extravagant, and that if the liquor was honestly hers, she would have claimed it instead of denying its ownership when it was first discovered. * * *
“The respondent was at pains to give the impression that there was no intoxicating liquor kept in his so-called temperance saloon or elsewhere on the premises, except in the secret cave under the bed. If the jury found that intoxicating beer was served by the respondent to the witness Monahan and others a few days previous to the discovery of the liquor, they had the right to infer it came from the hole under the floor; and if the respondent handled it, and sold from it, and dealt with a part of it as his own, a few days before the trapdoor was opened, the jury would have the right to infer he owned it when it was discovered; there being no claim of a change of ownership between July 29th and August 12th.
“The jury was also entitled to take into account the appearance and manner of the witnesses. If the members of the jury were impressed, as was the trial judge, by the demeanor of these witnesses, they had no occasion to look further for justification of the verdict.
“Monahan testified that he saw Mike Dooley, Emil Bruso, and A. Michaelson in the Calliari rooms drinking beer. The respondent claims that since the trial he has discovered these persons, or some of them, would, if sworn, contradict the testimony of Monahan. Two of these persons were deputy sheriffs of Iron county, and the third a well-known blacksmith. During the progress of the trial no request was made for time and no effort whatever was put forth to procure their attendance. It is not claimed they were not in the county or not within reach at the time. Furthermore it does not appear from the affidavits filed in support of the motion for a new trial that either or all of these witnesses would, if put under oath, deny the testimony of Monahan.
“The motion for a new trial will be denied.”

The testimony of Mr. Monahan was clearly competent. The respondent was insisting that the only intoxicating liquors on the premises were owned and controlled by his mother, and that the only liquor he handled was nonintoxicating. These contentions were contradicted by the testimony of Mr. Monahan. An examination of the record satisfies us the judge was quite right in declining to direct a verdict or to grant a new trial. See People v. Wheeler, 185 Mich. 164 (151 N. W. 710); People v. Lester, 195 Mich. 477 (162 N. W. 72).

The conviction is affirmed, and the case is remanded for judgment.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.


text:
    RENNIE v. STELTER.
    1. Partnership — Names—Assumed Name — Fictitious Name— Statutes.
    Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354, et seq.), relating to tbe filing of certificates of copartnership, and providing that any copartnership that has filed the certificate required by Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), relating to the filing of certificates by those doing business under an assumed name shall not be required to file tbe certificate therein required, did not repeal the 1907 act.
    2. Same — Statutes.
    A certificate filed in compliance with Act No. 101, Pub. Acts 1907, is a compliance with the essential provisions of Act No. 164, Pub. Acts 1913.
    Error to Wayne; Withey, J., presiding.
    Submitted April 3, 1917.
    (Docket No. 6.)
    Decided May 31, 1917.
    Assumpsit by Stanley M. Rennie and others, co-partners as the Rennie Coal & Supply Company, against Julius Stelter and another, doing business as J. Stelter & Son, for goods sold and delivered. Judgment for defendants. Plaintiffs bring error.
    Reversed.

      Albert E. Sherman, for appellants.

      Charles A. Lorenzo, for appellees.
   Mooee, J.

This cause was commenced on the 20th day of November, 1915, before a justice of the peace in Detroit. From a judgment in favor of the plaintiffs, the case was appealed to the circuit court, where a verdict was directed for the defendants. The case is in this court by writ of error.

June 17,1914, a certificate was filed with the county clerk reading as follows:

“Certificate — Conducting Business Under an Assumed Name.
“State of Michigan, County of Wayne — ss.:
“We, the undersigned, Stanley Mitchell Rennie, do hereby certify, in pursuance of Act No. 101 of the Public Acts of the State of Michigan, 1907, Stanley Mitchell Rennie and (1) Clayton William Rennie, William Simpson Rennie (2) now (intended) conduct and transact business in the village of Oakwood, Michigan, under the name and style of Rennie Coal & Supply Co.
“Business address, Navarre P. O., Oakwood, Michigan.
“And we do further certify that the true and full name of the persons (2) who now (who intend to) conduct and transact the same together with the post office addresses of said persons, are as follows, viz.:
Name. Residence Address. City, Town.
Stanley Mitchell Rennie. Oakwood. Michigan.
Clayton William Rennie. “ “
William Simpson Rennie. “ ”
“In witness whereof we have this 17th day of June, A. D. 1914, made and signed this certificate.
“Stanley M. Rennie.
[Back of Certificate.]
“State of Michigan, County of Wayne — ss.:
“On this 17th day of June in the year one thousand nine hundred and fourteen, before me, the subscriber, personally appeared Stanley Mitchell Rennie, to me personally known to be the same person described in and who executed the foregoing instrument, and he has acknowledged to me that he executed the same.
“Geo. Humbert,
“County Clerk's Office, Detroit, Michigan.
“My commission expires Jan. 19, 1917.”

This suit was brought to recover for building materials furnished defendants between July 5, 1915, and September 80, 1915.

The circuit judge very early in the case raised the question whether plaintiffs had filed the proper certificate to entitle them to sue, and in response to an inquiry from the judge counsel for defendant moved to dismiss the case. The judge granted the motion, for the reason that plaintiff had not filed a certificate under Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 6354-6359). It is to be regretted that no testimony was taken, as it might be helpful to know more about the manner of conducting the business, the personnel of those who conducted it, and what knowledge defendants possessed of those things. It is clear that plaintiffs endeavored to comply with the provisions of the statute. They did comply with the provisions of Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, §§ 6349-6353), and if the names of Stanley Mitchell Rennie, Clayton William Rennie, and William' Simpson Rennie were attached to the certificate by their authority, there was a compliance with the essential provisions of the act of 1913. The last-named act contains the following:

“Provided, That any copartnership that has filed the certificate required by Act No. 101 of the Public Acts of 1907, shall not be required to file the certificate herein provided for.”

The later act does not repeal the act of 1907. In construing the last-named act, Justice Steere, speaking for the court in Sauer v. Construction Co., 179 Mich. 618 (146 N. W. 422), said:

“It is urged upon these undisputed facts plaintiffs are barred from recovery, under Cashin v. Pliter, 168 Mich. 386 (134 N.W. 482, Am. & Eng. Ann. Cas. 1913C, 697). As pointed out in that case, the manifest object of said Act No. 101 is to protect the public against imposition and fraud, greater opportunity for which is afforded to parties who, choosing not to do business in their own names, conceal their identity and avoid legal responsibility by dealing with the public under a false and fictitious name, which furnishes no clue to who the real and responsible parties are. Such was the name assumed by plaintiffs in the Cashin Case; no name of any one connected with the concern being even suggested, but a fanciful, pretended, and fictitious name assumed. Construing this statute with the evil sought to be corrected in mind, the courts have inclined to the view that a firm name, which gives the true names, or surnames, of its members, is not assumed or fictitious, within the meaning of such a statute, even though the baptismal name of each member may not be stated. Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418), and cases there cited. In the case before us the identity of C. A. Sauer, the head of the firm, is directly pointed out by the firm name; both members of the firm are named Sauer; a certificate then filed under the statute gave their names in full. It is true that it also gave the name of a brother, who, when this contract was made, had retired from the firm, and who by reason of that certificate might possibly be yet held responsible, but the firm business as an entirety was continued as before, with no new members, with the same head, in the same name, and occupying the same offices. Under the circumstances shown, we do not find that plaintiffs are barred from their right of action, under this objection.”

If we apply this reasoning to the instant case, we will find that what was done accomplished the purpose of the statute. See, also, Missaukee Farm & Investment Co. v. Ferris, 193 Mich. 286 (159 N. W. 490), and the cases cited therein. We think, upon this record, the court erred in directing a verdict for the defendants.

The case is reversed, and a new trial ordered, with costs to the plaintiffs.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


text:
    HOLTQUIST v. O'CONNELL.
    1. Intoxicating Liquors — Civil-Damage Act — Trial — Instructions.
    In an action by a wife under tbe civil-damage act (section 20, Act No. 313, Pub. Acts 1887, 2 Comp. Laws 1915, §‘7050), against saloonkeepers to recover for tbe death of ber busband claimed to be due to burns received by falling into a bot pond while intoxicated by liquor bought from such saloonkeepers, held, that tbe charge, when considered as a whole, was not misleading on tbe ground that it permitted a recovery although deceased was not intoxicated when he fell into the pond.
    2. Trial — Coercion—Jury—Conduct oe Court.
    Where, after a jury had been out some time, they returned without reaching a verdict and the court admonished them to reach a verdict if their consciences would 'permit, and they were advised of the expense to the county and to the litigants in trying the case, such action of the court was not an attempt to coerce a verdict, amounting to reversible error.

    3. New Trial — Newly-Discovered Evidence.
    A new trial, in an action by a wife under the civil-damage act to recover for the death of her husband due to falling into a hot pond while intoxicated by liquor purchased from defendants, on the ground of newly-discovered evidence consisting of alleged contradictory statements made in proofs of claim for insurance on the life of her husband, is properly denied, where they were made by a physician, are not in fact inconsistent, and it does not appear that plaintiff had knowledge of the statements nor that by due diligence defendant could not have procured the testimony in time for the trial.
    ’Error to Mackinac; Shepherd, J.
    Submitted April 13, 1917.
    (Docket No. 112.)
    Decided May 31, 1917.
    Case by Matilda Holtquist against Daniel O’Connell and another under the civil damage act for the unlawful sale of intoxicating liquors to plaintiff’s husband. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      C. W. Bunion, M. H. Baxter, and A. F. Bunting, for appellants.

      Brown & Brown (Henry Hoffman, of counsel), for appellee.

      The question of coercion of disagreeing jury by court is discussed in a note in 16 L. R. A. 643.

   Moore, J.

It is the claim of the plaintiff that her husband, while in a state of intoxication caused by drinking liquor obtained at the saloon of defendant O’Connell, after he had been forbidden to sell to Mr. Holtquist, fell into a hot pond and suffered such severe burns that he died some days later. This case was brought to recover her damages. From a judgment in her favor for $2,000, the case is brought here by writ of error.

The important errors argued are:

(1) In the charge of the court to the jury;

(2) That the trial judge coerced the verdict; and

(3) That the court erred in refusing to grant a new trial.

1. Did the court err in his charge? Counsel say intoxication is a prerequisite to recovery under the provisions of section 20 of the so-called civil damage act (Act No. 313, Pub. Acts 1887 [2 Comp. Laws 1915, § 7050]), and that the charge permitted a recovery though Mr. Holtquist was not intoxicated when he fell into the hot pond. Among other authorities cited.is the case of West v. Leiphart & Co., 169 Mich. 354 (135 N. W. 246).

We quote from the brief of counsel:

“The defendants requested the court to charge the jury. They are as follows:

‘“(1) A person is intoxicated when it is apparent that he is under the influence of liquor, or when his manner is unusual or abnormal and his inebriated condition is reflected in his walk or conversation, when his ordinary judgment and common sense are disturbed, or his usual will power is temporarily suspended; when these or similar symptoms result from the use of liquors and are manifest, then a person is intoxicated within the meaning of the statute.
‘“(2) If you find that Peter Holtquist was not intoxicated on December 17, 1914, within the definition above given, but, on the contrary, was suffering from pains and scalds instead of intoxication, then your verdict must be no cause of action so far as any damages for the death of Peter Holtquist is concerned.’

“The court gave request No. 1, but gave request No. 2 with the following modification:

'The Court: Do you object to that, Mr. Brown?
'Mr. Brown: Yes, your honor; I do.
“ ‘The Court: Unless you find, I will insert here, unless you find that the sale of liquor that afternoon whether or not he was intoxicated, was a contributing cause towards his accident. In that case, the defendants would be liable whether he was intoxicated or not, if what drinks he did have contributed to that result.’

“The court was requested to charge the jury, by request No. 5, as follows:

‘“(5) If you find that plaintiff’s husband was intoxicated when he came to his death, and that O’Connell or his servants furnished liquor which contributed to that intoxication, still you must find a verdict of no cause of action unless Peter Holtquist was a man in the habit of becoming intoxicated, and I charge you that a man is in habit of becoming intoxicated when it is his usual or ordinary conduct to become intoxicated as above defined, whenever and wherever opportunity affords and he no longer has the will power to withstand the temptation.’

. “The court started to read this- request, and had read a part of it, when the following occurred:

‘“The Court: If you find that plaintiff’s husband was intoxicated when he came to his death, and that O’Connell or his servants furnished liquor which contributed to that intoxication, still you must find a verdict of no cause of action. I think I will strike that out. Erase that.
‘Mr. Dunton: Which request was that?
“ ‘The Court: The fifth.
‘Mr. Baxter: It explains it further on in the charge there, if the court please.
‘The Court: I refuse the fifth.
‘Mr. Hoffman: That may be correct so far as exemplary damages -are concerned, but not actual damages.
“‘The Court: Well, I will modify that. If you will find that, plaintiff’s husband was intoxicated at the time he came to his death, and that Mr. O’Connell furnished liquor which contributed to that intoxication, still you must find a verdict of no cause of action unless Peter Holtquist was a man in the habit of becoming intoxicated; and I charge you that a man is in the habit of being intoxicated when it is his usual or ordinary conduct to become intoxicated whenever and wherever opportunity affords and he no longer has the will power to withstand the temptation.
“ ‘Mr. Hoffman: We withdraw our objection.
‘The Court: You withdraw your objection to No. 5 as read?
“ ‘Mr. Hoffman: Yes, your honor.
“ ‘The Court: But I will modify it to this extent: Aside from the intoxication, if the sale of liquor that afternoon contributed to the accident, then the. defendant is liable and the plaintiff is entitled to recover. (Addressing Mr. Brown:) That is your claim, isn’t it?
‘Mr. Brown: Yes that is our claim.’

“Later on in the charge the following occurred:

‘Mr. Hoffman: Now there is just one other point I am not entirely clear about in your charge. Now it is incumbent upon the plaintiff to prove that the defendant sold liquor to the deceased on the day in. question while he was intoxicated, or he must be a man in the habit of becoming intoxicated, whether he knew that or not, in order to make him liable.
‘The Court: That is conceded by the plaintiff to be the law, is it?
“ ‘Mr. off man: Yes, we concede that to be the law.
‘The Court: I will, modify my charge somewhat, as given, gentlemen, at the suggestion of the plaintiff’s attorney. I withdraw the statement which I made that the defendants would be liable if the mere sale of liquor contributed to the result. The plaintiff concedes that it is not the law. (I supposed they claimed it was, and nothing had been said to the contrary upon the other side.) That is withdrawn. It is now conceded that the defendants are not liable unless there was an illegal sale of liquor. Unless whisky — or not whisky, necessarily — but unless intoxicating liquor was sold to Mr. Holtquist at O’Connell’s place that afternoon when he was intoxicated, or when he was in the habit of becoming intoxicated, it is conceded that the defendants are not liable for the injury which occurred there that afternoon.’ ”

These extracts from the charge should be read in connection with what preceded and followed them. The charge is too long to quote in its entirety, but the judge said to the jury:

“It is the claim here that Mr. Holtquist met his death, because of the liquor that he had bought at the defendant’s place of business in Engadine.
“It is also claimed that the plaintiff was injured in her means of support because of the fact that he was sold liquor at defendant’s place.
“It is also claimed that he was in the habit of becoming intoxicated, and that the liquor that he purchased there was purchased under a violation of the law, under a disregard of plaintiff’s right as a wife, and that therefore she is entitled to, not only for the actual money loss that she has sustained, but because of the feelings of sorrow and indignation she has suffered because of the wrongdoing of the defendant.
“So you see there are several elements going to make up the claim of the plaintiff, which I will define more in detail when I come to read a portion of my charge.
“The defendant says that on the day in question no liquor was sold to Mr. Holtquist, and that therefore the sale of liquor could not have contributed in any degree to the unfortunate circumstances that occurred on the 17th day of December, 1914.
“The defendant says, and has introduced testimony in the line of his defense, that Mr. Holtquist was not a person addicted to the drinking of liquor; that he did not furnish liquor to, and that no liquor was ever sold him when he was in an intoxicated condition.
“So you see that you have a very sharp conflict of testimony in this case. The allegations made upon the part of the plaintiff are strenuously denied upon the part of the defendant; so it devolves upon you to decide the several questions of fact here presented. Did Mr. O’Connell, by himself or by his clerk or agent, sell whisky to Mr. Holtquist upon the day in question? Did the drinking of Mr. Holtquist of that liquor sold to him in Mr. O’Connell’s saloon contribute to the accident that occurred there that evening, which resulted in his death. * . * *
“The plaintiff must prove each and every element in her case by a preponderance of the evidence, that is, that evidence which outweighs or is more convincing; and, if she fails to do so on any one or more material elements in the case, then your verdict must be no cause of action. I also charge you that the accident itself is no evidence of intoxication.”

After the jury had been out for a time and were recalled, the judge said to them:

“If there were illegal sales of liquor which contributed to the death of that man in the hot pond, and those sales were made by the defendant, then she would be entitled to recover her loss of support. If they were made by the defendant and the defendant knew that Mr. Holtquist was in the habit of becoming intoxicated, then she would be entitled to damages to her feelings also; but, if there were no illegal sales, or if the sales that were illegally made did not contribute to the death of Mr. Holtquist — were not the cause of his becoming scalded — why then she is not entitled to recover.”

The evidence was in dispute, the issue was clear-, cut. When the charge is taken as an entirety, we think it clear the jury was not misled.

2. Did the trial judge coerce the verdict? This claim is based upon the following:

“The jury had been out for a time when they returned into court and the following occurred:

“The Court: Is there a prospect of your agreeing soon?
“Foreman: There is not. I don’t think we will agree at all. One of the jurors is quite flat-footed about his position.
“The Court: I cannot listen to any discussion. I hope, gentlemen, you will use every endeavor that your conscience will permit to agree on a verdict. It is difficult for twelve men to become of one mind, but it usually can be done. Of course, you must bear in mind that you owe it to your conscience not to decide contrary to what you think the facts were. That comes first; that is the important thing — the most important thing. But remember that we are all human, and our first impressions are not always the correct ones. Listen patiently to each other’s arguments and views. Perhaps, there, may be more in the other fellow’s views than you think for. Of course, I have no idea of how you stand. I do not wish to know, only I will ask you to take into consideration the expense to the county and the expense to the litigants trying the case — trying a case like this — and see if you cannot conscientiously and fairly bring your minds together and agree upon a verdict. Don’t have such a pride in your own opinion that you will do a wrong in order to say that you have made the other fellow come to you, or the other fellows, as the case may be. Just be fair and candid and listen to and weigh the other fellow’s arguments. Just ask yourselves the question, each one of you: Am I giving as much weight to the arguments of the other side as I ought to do? Put yourselves, in an unprejudiced attitude and try to arrive at a verdict,”

It is said this amounted to coercion, and counsel cite the case of Snowden v. Railway Co., 194 Mich. 87 (160 N.W.414).

The opinion in the case cited had not been handed down when the instant case was tried. The trial judge in the instant case emphasized the fact that the verdict must have the approval of the conscience of the juror. For the reason stated in Snowden v. Railway Co., supra, we decline to reverse the case because of that part of the charge we have quoted.

3. Did the court err in refusing to grant a new trial? Much stress is laid upon the proposition that because of new evidence the motion of defendant should have been granted. It is claimed that plaintiff obtained a sum of money because of a policy of insurance held by her husband, and that in the proofs of her claim statements are made that are inconsistent with her present claim. The trial judge was of the opinion that the showing made was not of that positive, direct and effective character that would warrant the court in believing it would influence a jury in the rendition of their verdict. The so-called inconsistent statements were made by a doctor. An examination of them do not show they are inconsistent with the claim made in the case before us. It is not shown that plaintiff had knowledge of the statements, _nor that by due diligence defendant could not have procured the testimony in time for the trial.

The other assignments of error have been examined, but do not call for discussion.

The judgment is affirmed, with costs to the plaintiff.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


author: Steere, J.

text:
    LEE & CADY v. FARR.
    Chattel Mortgages — Exemptions — Recording — Possession oe Goods.
    Where a debtor’s exemptions remain absolutely his, entirely independent of his indebtedness, and a free subject for barter and sale, donation or hypothecation by him, they are not excepted from Act No. 163, Pub. Acts 1915 (3 Comp. Laws 1915, § 11988), providing that every mortgage of goods which is not accompanied by immediate delivery and actual and continued change of possession of such goods shall be void as to creditors of, and subsequent purchasers from, the mortgagor, or mortgagees in good faith unless the mortgage or true copy thereof be filed.
    Error to Wayne; North, J., presiding.
    Submitted April 9, 1917.
    (Docket No. 103.)
    Decided May 31, 1917.
    Case in justice’s court by Lee & Cady, a corporation, against Frederick J. Farr for refusal to deliver certain property claimed as exempt under a chattel mortgage. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Henry B. Graves, for appellant.

      Wurzer & Wurzer, for appellee.
   Steere, J.

Plaintiff is a Michigan corporation engaged in the wholesale cigar and tobacco business in Detroit, Mich., and a creditor of the retail cigar and tobacco firm of McCree & Heald, formerly doing business at 92 Woodward avenue in said city. Defendant Farr is the trustee under a trust chattel mortgage given by McCree & Heald on their stock of merchandise and fixtures for the benefit of their general creditors. ■ This controversy is over their exemptions in said stock.

On August 26, 1916, the members of said firm, Arthur W. McCree and Walter L. Heald, executed and delivered to plaintiff, “for a valuable consideration to us in hand paid, and as security for any sum that we now owe or may hereafter owe to Lee & Cady,” an assignment of their exemption interest in their stock of merchandise at 92 Woodward avenue, stated to be “so far as and only to the extent that said property now belonging to us, or which may hereafter belong to us, is or shall be exempt from levy and sale on execution against us,” etc. This instrument, which is claimed and conceded to be in effect a chattel mortgage, was not supported by an affidavit of good faith, as required by Act No. 163, Pub. Acts 1915 (3 Comp. Laws 1915, § 11988), to entitle it to be made of public record, and was never filed with the city clerk or other proper official. McCree & Heald were then, and continued to be, indebted to plaintiff in an amount exceeding $500 not otherwise secured.

A trust mortgage for the benefit of all their creditors, including plaintiff, was executed and delivered by the members of the firm to defendant Farr on November 14, 1916. It covered their stock of merchandise, fixtures, etc., at 92 Woodward avenue, with all bills receivable and evidences of indebtedness to said firm, all other personal property of whatsoever nature belonging to them, and their interest in certain real estate held by them under a land contract. Its stated purpose and provisions were to devote the property covered by the mortgage to payment of the indebtedness of the firm, without preference or priority to any creditor. Amongst other things it provided and was “agreed that said first parties waive any and all exemptions to any portion of said property, for the purpose of applying the proceeds thereof to completing full payment of their debts, and hereby instruct said trustee to dispose of and distribute the proceeds of any exempt property included in this instrument.” This mortgage was accompanied by an affidavit of good faith, stating the consideration therefor “was actual and adequate,” and was filed on the day it was delivered with both the city clerk of Detroit and register of deeds of Wayne county. Shortly thereafter defendant took possession as trustee under the terms of the mortgage, inventoried the personal property described therein, located at 92 Woodward avenue, and placed the same in storage, when plaintiff, on November 17,1916, demanded possession of said stock of merchandise, “for the purpose of selecting and retaining therefrom the property we select as exempt to Arthur W. McCree and Walter L. Heald, doing business as McCree & Heald,” etc., claiming such right under an assignment of exemptions of August 26,1916, stating in conclusion that the demand was made only for an opportunity to select exempt property from said stock. Their right to the same being denied, this action was brought.

On trial of the case before a jury in the circuit court of Wayne county, the controlling facts were undisputed, and both parties by their counsel moved for a directed verdict; each claiming as a matter of law under the conceded facts a paramount lien upon, and a right to possession of, the exemptions in question. Recognizing the instrument upon which plaintiff relied as in legal effect a chattel mortgage, the trial court held that defendant’s chattel mortgage, although given later upon the same assets, was a prior lien under Act No. 163, Pub. Acts 1915 (3 Comp. Laws 1915, § 11988), because promptly filed in the city clerk’s office and possession taken under it, while plaintiff’s remained unrecorded, and was not accompanied by an immediate delivery, or followed by any change of possession of the things mortgaged, and directed a verdict for defendant.

It is urged in behalf of plaintiff that any disposition a debtor may make of his exemptions is not a fraud upon the rights of his creditors; that defendant Farr as trustee for the creditors, is in no more advantageous position to question plaintiff’s instrument than an individual creditor would be; that his trust mortgage was given for a naked, pre-existing indebtedness to the general creditors, without any valid consideration ; and that, so far as creditors are concerned, said Act No. 163 has no application to a chattel mortgage on exempt property.

Counsel cite abundant authority to sustain the proposition that under our exemption law the owner of exempt property may do with it as he likes, and his creditors are powerless to interfere. He may voluntarily mortgage, convey, sell, or give it away, and they cannot be heard to complain of any disposition he may make of it. It may be conceded that defendant is in no better position to question plaintiff’s instrument than would an individual creditor be, in like position and with, like security; but we are impressed that in plaintiff’s contention the importance of the latter qualification is not given due weight. Defendant in his vicarious capacity, and, indirectly, those for whom he acts, are more than mere creditors. They are mortgagees also. He, as trustee for them, is the grantee in a mortgage of this exempt property, given by the owners with their statutory affidavit attached, setting forth* that the consideration therefor “was actual and adequate and that the same was given in good faith.” This instrument was made of public record, by filing it with the proper officer as the law provides. To knowingly make a false statement in such affidavit, which is a prerequisite to filing, is declared by the statute to constitute the crime of perjury. No affidavit of good faith is shown to have ever been a part of or made in reference to plaintiff’s unified instrument. While creditors were powerless to interfere or dictate as to the disposition of this exempt property, the owners, in the exercise of their right to dispose of it as they pleased, might, if so inclined, give, sell, or mortgage it to any or all of their creditors.

Both parties, to this action are, or represent, creditors, and both were given mortgages on this exempt property by the owners, to plaintiff for its sole benefit, and to defendant for the benefit of all the grantors’ creditors, including plaintiff, and in both cases, it may fairly be inferred, chiefly to secure existing indebtedness. Plaintiff’s instrument recites that it was for a “valuable consideration,” and as security for any sum the grantors “now owe or may hereafter owe.” There is nothing to indicate that their indebtedness to plaintiff was thereafter increased. The same grantors made statutory affidavit that the consideration for defendant’s instrument was “actual and adequate,” given in good faith. Act No. 163, Pub. Acts 1915 (3 Comp. Laws 1915, § 11988), provides:

“Every mortgage or conveyance intended to operate as a mortgage of goods and chattels, which shall hereafter be made, which shall not be accompanied by an immediate delivery and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against creditors of the mortgagor, and as against subsequent purchasers or mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed,” etc.

In accepting the mortgage made to him and the trust it imposed, which he did in writing, defendant obligated himself to services and responsibilities for and in the interest of his grantors, as well as their creditors. As detailed in the instrument, the varied duties imposed upon him called for the assumption of responsibility, exercise of his business judgment, and expenditure of his time. We do not think it can fairly be said, against the affidavit of the grantors and the provisions of the instrument, that it was without valuable consideration. In such case, “good faith,” as used in statutes relative to priority in recording or filing chattel mortgages, has been construed as meaning “without notice.” Riederer v. Pfaff, 61 Fed. 872. • It is not shown nor claimed that defendant had any actual notice of plaintiff’s unfiled instrument, which was intended to operate as a mortgage, was not accompanied by an immediate delivery, nor followed by an actual and continued change of possession of the things mortgaged. Defendant not only represented creditors of the mortgagors, but was also a subsequent mortgagee in good faith under the disclosed circumstances surrounding these transactions.

So long as a debtor’s exemptions remain absolutely his, entirely independent of his indebtedness, and a free subject of barter and sale, donation, or hypothecation by him, we see no reason why they should be excepted from the provisions of said Act No. 163 above quoted, and discover no principle of law or rule of construction implying such to have been the legislative intent.

The judgment is therefore affirmed.

Kuhn, C. J., and Stone, Osteandee, Bird, Mooee, Beooke, and Fellows, JJ., concurred.