text:
    NICHOL v. MURPHY.
    1. Receivers — Resignation—Appointment of Successor — Regularity — Collateral Attack.
    The regularity of the acceptance of the resignation of a receiver of a mutual insurance company and the appointment of his successor by the court having jurisdiction of the receivership proceedings, as affected by want of notice to the stockholders, cannot be questioned by defendant in an action by the receiver to collect an assessment.

      2. Same — Notice—Necessity.
    No notice is required of the acceptance of the resignation of the receiver of a mutual fire-insurance company and the appointment of his successor.
    3. Venue — Change — Receivership Proceedings —Notice to Stockholders.
    The 9,000 policy holders of a mutual insurance company are not entitled to notice of an application to change the venue of receivership proceedings winding up the affairs of the company.
    4. Same — Collateral Attack.
    The question of the validity of an order changing the venue of receivership proceedings to wind up the affairs of a mutual fire-insurance company cannot be raised by defendant in an action by the receiver to collect an assessment.
    5. Receivers — Assessment—Setting Aside — Review of Order.
    The action of the court, in setting aside an assessment by a receiver against the policy holders of a mutual insurance company, is not reviewable on appeal from a judgment against a policy holder based on a subsequent assessment unless it was void.
    6. Same — Discretion of Court.
    It is within the discretion of the court to set aside an assessment by the receiver of a mutual insurance company against the policy holders for irregularities and because excessive, though the assessment was not absolutely void.'
    7. Same — Subsequent Assessment.
    Where an assessment by the receiver against the policy holders of a mutual fire-insurance company has been set aside in the proper exercise of discretion, an order authorizing a substituted receiver to make a new assessment is valid.
    8. Insurance — Mutual Fire Companies — Contracts Limiting Liability of Policy Holders — Statute—Application.
    Section 5187, 2 Comp. Laws, validating contracts between mutual fire-insurance companies and their policy holders, in terms applies only to contracts theretofore made (1885), and has no application to a contract limiting the liability of the policy holder made in 1896.
    9. Same — Receiver—Assessment.
    A limitation in the contract between a policy holder anda mutual fire-insurance company cannot relieve the policy holder from a liability to pay a proportionate share of the losses and expenses of the company for the period during which he was a member, when the pompany’s affairs are being closed up by a receiver.
    10. Same — Cancellation of Policy — Nonpayment of Assessment.
    Where, at the time a policy holder in a mutual fire-insurance company sought to withdraw, and delivered his policy to the local agent for that purpose, there was an assessment due, which he did not pay, his attempt to withdraw was ineffectual, and he remained a member of the company for the term stated in his policy, and was liable for his share of its losses during that term.
    Case made from Ionia; Davis, J.
    Submitted July 9, 1906.
    (Docket No. 115.)
    Decided July 23, 1906.
    Assumpsit by John Nichol, receiver of the Citizens’ Mutual Fire-Insurance Company of Jackson, Michigan, against Edwin A. Murphy for an assessment in winding up the affairs of said company. There was judgment for plaintiff, and defendant appeals.
    Affirmed.

      A. A. Ellis (M. A. Nichols, of counsel), for appellant.

      Nichols & Sheldon, for appellee.
   Hooker, J.

The Citizens’ Mutual Fire-Insurance Company, of Jackson, Mich., was organized on March 21, 1893, under Act No. 82 of the Laws of 1873 of this State, and the acts amendatory thereto. The defendant, Murphy, made a written application for insurance against fire on November 14, 1896, and upon that day a policy was issued to him for the term of three years.

On December 7, 1899, the commissioner of insurance of the State, after making an examination of the affairs of the company, served notice upon its officers, requiring it to discontinue the issuing of policies at the expiration of 60 days, unless it should within that time collect assessments and pay losses and claims outstanding, and on May 22, 1900, he filed a petition in the circuit court for Jackson county for a receiver and to wind up the affairs of the company, and Forrest C. Badgley was appointed receiver, and he took possession of the property of the company. He subsequently obtained an order permitting him to levy an assessment, which he proceeded to do. This assessment was levied in relation to specific periods, 11 in number, and, when made, it was duly confirmed by the court. About $1,000 was collected upon this assessment, none of it paid by the defendant herein. Badgley brought an action against one Wood, in Jackson circuit court, to recover an assessment made against him, and the case was tried, James A. Parkinson acting as counsel for the receiver. Before the cause was decided, the presiding judge died, and Mr. Parkinson was elected his successor. On February 17, 1906, Badgley filed a petition setting up these facts and that it was impracticable for him to wind up the business, and his desire to resign. The commissioner of insurance supplemented this with his petition asking the»appointment of John Nichol as receiver in place of Badgley. Thereupon said Parkinson procured the attendance of Hon. Frank D. M. Davis, judge of the eighth judicial circuit, who heard the application and made an order accepting Badgley’s resignation, and appointing Nichol his successor. Nichol accepted and qualified, and on the same day applied to the court for a change of venue, or transfer of the proceeding to Ionia county, where he resided, upon the ground that the judge of Jackson circuit was disqualified to act as judge in the matter. Thereupon said Davis, while so presiding at the Jackson circuit, made such an order. Subsequently, and on March 22, 1906, Nichol, as receiver, filed a petition alleging irregularities in said assessment theretofore made by Badgley, and that it was grossly excessive in amount, and asking that it be set aside, and authority given him to make a new assessment for 75 per cent, of the amount of said first assessment ; and it was so ordered. Such assessment was made and confirmed, and the receiver was directed to proceed to collect the same. This action was brought to collect the share due from the defendant.

Upon the trial the court found the foregoing facts, and that by virtue of the policy the defendant became a member of the company, and that as such he was assessed and had paid the sum of #2.30, and that he was assessed the further sum of #2.88, which he did not pay; also that about a year after the policy issued, and after the payment of said #2.30, defendant notified one Charles ,P. Locke, a local agent of the company, that he desired to have said policy canceled, and he surrendered the same to said Locke, but it does not appear that the officers of the company, or any of them, were notified of such action at the time, and on November 18, 1899, the company sent defendant an application for renewal of his policy, on receiving which, he wrote the company as follows:

“Ionia, Michigan, October 19th, 1899. “The Citizens’ Mutual Fire-Insurance Company,
“ Jackson, Michigan.
Gentlemen: Your notice of éxpiration of insurance is at hand, and will say I withdrew from your company about two years ago, I think. Your agent, Charles P. Locke, of this city, was so notified and he so understood.
“Respectfully yours,
“E. A. Murphy.”

The following reply was sent him:

“Jackson, Michigan, October 21, 1899. “E. A. Murphy, Attorney,
“Ionia, Michigan.
Dear Sir: In regard to your policy No. 3,552 the situation is this: The policy was issued November 14, 1896, for three years, calling for $1,000, at the gross rate of $1.15, making your gross premium at $11.50. You paid $2.30 that year and an assessment of $2.30 in 1897, and an assessment of $2.88 was levied, due November 14, 1898, which you did not pay. We notified you that this assessment must be paid if you wish to retain the insurance, or if you desire cancellation, the policy must be returned, and the per cent, necessary at the time to relieve you was twenty-five per cent, of the unassessed premium, or $1.72. That liability still remains and trust you will remit at once. Enclosed find copy of two sections of our charter which will show you our authority for making such statement.
“ Yours respectfully,
“The Citizens’ Mutual Fire-Insurance Co.”

The defendant did not pay said sum, and in levying the assessment, the receiver levied the same for the full three years covered by his policy, a total of $32.42.

The court further found that at the time he took his policy it was represented to him, and he understood, that he would only be obliged to pay his equitable annual proportion of the rate necessary to pay the losses and expenses, not exceeding the sum specified in his application, during the life of his policy, to wit, $11.50, and that he paid no part thereof. That the receiver in levying the assessment only charged and assessed against said defendant his pro rata of the losses and expenses of the company, and the costs and expenses of such receivership, allowing a sufficient amount to cover all possible failures to collect, by reason of irresponsible membership and costs of collection.

Counsel for the defendant (who has appealed from a judgment of $32.42 and costs in favor of the receiver) raise the following questions:

“ (1) Could the circuit court for the county of Jackson, in chancery, make an order appointing John Nichol receiver, without notice ?
• “(2) Could the circuit court of Jackson county, in chancery, make an order transferring the proceedings to Ionia county, without notice ?
“ (3) Did the circuit court for Ionia county, in chancery, have the power to set aside the assessment made by Forrest C. Badgley, receiver?
“ (4) Was the said John Nichol authorized to levy an assessment under the orders of the court ?
“(5) Assuming that the court had jurisdiction in the premises, was the assessment legal, valid, and binding upon the defendant, under his contract ?
“ (6) If valid, what should be the amount of the judgment ?”

1. The proceeding in which the receiver was appointed was one between the State, acting for the benefit of the creditors of the company, against the company. A receiver had been appointed after the notice required by law had been given. The property was in the custody of the court, by its representative, the receiver. An emergency arose where it was necessary to change the receiver. It was clearly within the authority of the court having jurisdiction of the case to accept Badgley’s resignation, and to appoint a successor. If a proper notice was not served, as counsel contend, the advantage cannot be taken of it in a collateral proceeding which this is, Howard v. Palmer, Walk. Ch. (Mich.) 391; Thomas v. Wayne Circuit Judges, 97 Mich. 608. See 17 Enc. PL & Prac. p. 753, and cases cited; High on Receivers (3d Ed.), § 39a. There are many authorities which hold that an appointment made ex parte without notice to fill a vacancy is a valid act. See Nicoll v. Boyd, 90 N. Y. 516; Attorney General v. Day, 2 Mad. Chan. 470; Fowler v. Trust Co., 66 Fed. 14; Howarth v. Angle, 162 N. Y. 179 (47 L. R. A. 725); Sanger v. Upton, 91 H. S. 56. Were this a hearing in a direct proceeding to review the proceeding, we should be compelled to say that there is no occasion to disturb the order made.

2. The application to change the venue of the receivership proceedings was made to the court in which the action was pending, a judge of another circuit presiding. The members of the corporation, said to number some 9,000, were not entitled to notice. It would have been impracticable to give it. Moreover, if the defendant in this action has any right to question the order, he should have applied in a direct proceeding. The order cannot be made a shuttlecock in the 9,000 or less actions that must be commenced to collect assessments.

3. The order of the court in setting aside the Badgley assessment is not reviewable in this action unless it was void. We think that it was within the discretion of the court to set aside such assessment for irregularities, and because excessive, although perhaps not a void order. It does not appear that the defendant’s liability was in any way increased by such action.

4. The order authorizing Nichol to make the last assessment must be held to be valid, in view of what we have said upon other points.

5. The contention is made that defendant’s liability is limited to $11.50 by his contract. This is settled against plaintiff’s contention by the case of Russell v. Berry, 51 Mich. 387, as the law stood prior to the enactment of 3 Comp. Laws, § 5187, in 1885. That act in terms applies only to contracts theretofore made, and hence has no application to this case, and need not be further discussed. We have said in other cases that a limitation in the contract could not relieve members from a liability to pay a proportionate share of losses and expenses of a mutual fire-insurance company, for the period during which they were members, when the company’s affairs are being closed up by a receiver. Russell v. Berry, supra; Macklem v. Bacon, 57 Mich. 334; Bacon v. Clyne, 70 Mich. 183; Wardle v. Townsend, 75 Mich. 385 (4 L. R. A. 511); Wardle v. Cummings, 86 Mich. 395; Wardle v. Hudson, 96 Mich. 433; Ionia, etc., Ins. Co. v. Otto, 96 Mich. 558, 97 Mich. 522; Same v. Ionia Circuit Judge, 100 Mich. 606 (33 L. R. A. 481); Detroit, etc., Ins. Co. v. Merrill, 101 Mich. 393; Calkins v. Angell, 133 Mich. 77.

6. The remaining question involves the alleged cancellation. Upon the finding of fact that the plaintiff delivered his policy to the local agent, and asked to with-draw, it is contended that plaintiff was not thereafter liable for assessment for losses and expenses subsequent to that time. As we understand the record, if this was a cancellation, his liability should bejimited to $13.09. If not, the assessment should cover the term of his policy, which would make his liability $32.42. There is no doubt that the plaintiff sought to withdraw from the company, and gave his policy to the local agent, with such request. At that time he had been assessed $2.88, which he did not pay or offer to pay, and when, two years later, he wrote the company, and was advised that a liability remained yet, he did not pay it or respond further. His policy had then expired, and he probably supposed that no further liability remained except for assessments already made, which he did not pay. In that he was mistaken. See Schroeder v. Insurance Co., 87 Mich. 310; American Ins. Co. v. Woodruff, 34 Mich. 6; Buick v. Insurance Co., 103 Mich. 75; Snedicor v. Insurance Co., 106 Mich. 83; Manlove v. Bender, 39 Ind. 371; Burmood v. Insurance Co., 42 Neb. 598.

The judgment is affirmed.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    LAWRENCE v. KIRBY.
    1. Highways — Abandonment—Adverse Possession.
    On a bill to restrain a trespass by a highway officer, evidence examined, and held, to show that the claimed highway had been abandoned, and that complainant had title thereto by adverse possession.
    2. Equity — Jurisdiction — Injunction — Trespass by Highway Officers — Title to Land.
    Equity has jurisdiction to restrain highway officers from trespassing upon the land of a private person under the claim that it is a public highway and to try and quiet his title.
    3. Appeal and Error — Chancery Appeal — Objeotion not Made Below.
    After a chancery case has been heard on its merits without objection to the jurisdiction in chancery, the court will not dismiss the bill on appeal on the ground that the proceeding should have been at law.
    Appeal from Cass; Carr, J.
    Submitted May 2, 1906.
    (Docket No. 162.)
    Decided July 24, 1906.
    Bill by Austin E. Lawrence against George B. Kirby, highway commissioner, to enjoin a trespass, and to quiet title. From a decree for complainant, defendant appeals.
    Affirmed.

      Arthur L. Moulton, for complainant.

      James H. Kinnane, for defendant.
   Hooker, J.

The accompanying plat will serve to explain the situation of the parties at the time the controversy now before us arose. Prior to 1882 a road extended east, between sections 1 and 12, to within 80 rods of the east section line, and from thence north to the county line. In 1882 that portion of the road running north and south was discontinued; proceedings to that end being taken and assented to by the inhabitants of the vicinity. Lawrence, who owned 120 acres north, and 52 and a fraction south, of the east and west road, then built a fence on the section line, in the middle of said east and west road, from the east end thereof to the west side of the 52-acre parcel, and connected it there with a north and south fence, which he built across the road, putting a gate in the south, portion of Said cross-fence, and he has since maintained said fences and gate, except as in 1895 he removed the gate and south half of the cross-fence a short distance to the east to avoid being inconvenienced by a hill at that point. The effect was to throw the north half of that portion of the road so fenced into a cleared field, where it has since been used as improved land. The south half was thrown into a pasture lot;. the 52 acres never having been cleared and plowed. Lawrence died in 1895, and his lands have been divided; the 52-acre parcel becoming the property of A. E. Lawrence, this complainant.

In 1903 the highway commissioner served a notice upon the complainant, notifying him that the gate in question and a fence connecting to the gate across the road were an encroachment upon the highway, and ordering him to remove the same. Thereupon the complainant filed the bill in this cause, alleging the foregoing facts, and upon information and belief that the commissioner threatened to forcibly enter and remove the same, and take possession of a portion of the premises, and to destroy his fences and plow up, and grade the land, under the false claim that it was a public highway. The bill prayed a temporary and permanent injunction and that his title be quieted. The temporary injunction was issued. Defendant answered denying the material averments of the bill but admitting that he caused the notice to be served, and claiming the land to be a lawful highway. The answer contained the further averment that the defendant expected and intended to follow up the service of said notice by taking such further proceedings in furtherance thereof as the law in such case made and provided should point •out, with a view to recovering and freeing from obstruction said highway. .

The proofs in the case show title in the complainant as found by the learned circuit judge. It is within the ¿jurisdiction of equity to restrain highway officers from trespassing upon the lands of a private person under the claim that it is a public highway and to try'and quiet his title. Gamber v. Holben, 5 Mich. 334; Lyle v. Lesia, 64 Mich. 18; Neal v. Gilmore, 141 Mich. 519. If this were not so, the record is not in a condition to permit of a dismissal of the bill, on the ground that the proceeding should have .been at law rather than in chancery; the case having been heard upon the merits, and without objection, and without raising that question. Bennett v. Nichols, 12 Mich. 22.

The decree is affirmed, with costs.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.


author: Grant, J.

text:
    KING v. HARRIGAN.
    1. Garnishment — Disclosure by Garnishee — Trial—Time.
    Under section 10610, 3 Comp. Laws, a garnishee has 10 days-after the filing of his oral examination within which to demand a trial of the cause, and a judgment rendered against him before the expiration of that period is erroneous.
    2. Same — Statutes—Strict Construction.
    Garnishee proceedings are harsh, and the statutes authorizing; them must be strictly followed.
    3. Same — Appeal—Record—Questions Presented.
    Where both the disclosure and the oral examination of a garnishee deny liability, and the record on error merely shows, that judgment was rendered against the garnishee after hearing proofs and argument, it cannot be said that the garnishee by appearing and arguing the case waived his right under the statute to 10 days after the filing of his oral examination within which to demand a trial of the cause.
    Error to Lapeer; Smith, J.
    Submitted June 13, 1906.
    (Docket No. 92.)
    Decided July 24, 1906.
    Garnishment proceedings by Robert King against James Harrigan as garnishee of Richard Burden. There was judgment for plaintiff, and the garnishee brings error.
    Reversed.

      John Loughnane and Geer, Williams & Halpin, for appellant.

      Stickney & Reed, for appellee.
   Grant, J.

This case was before the court on a motion to dismiss the writ of error 142 Mich. 477. A full statement of the case and of the issues involved is there made, and needs no repetition here. On the same day that the oral examination of the garnishee defendant was filed the-court below rendered a judgment against him for the amount of the judgment against the principal defendant. The defendant under the statute (3 Comp. Laws, § 10610) was entitled to 10 days thereafter to demand a trial of the cause. Garnishee proceedings are harsh, and the statutes authorizing them must be strictly followed.

It is urged that the defendant waived this 10-day provision by appearing and arguing the case at the time the •disclosure was filed. What the argument against the entering of the judgment was at that time the record fails to show, and counsel do not agree upon it. Both the disclosure and the oral examination deny liability. The judgment recites that “ the court, having heard the proofs ■offered and the argument of counsel for the respective parties, judgment is rendered,” etc. That is all the record shows. It cannot be construed into a waiver of the right conferred by the statute to demand a trial.

Judgment reversed, and case remanded for further proceedings.

Blair, Montgomery, Ostrander, and Moore, JJ., (concurred.


text:
    HORTON v. IMMEN.
    Brokers — Contract—Sale op Real Estate — Right to Commissions.
    Where a written, contract between a broker and a landowner' agrees upon a certain commission if a sale of the property is consummated to a proposed purchaser by a certain date, otherwise the contract to be null and void, the broker is not entitled to his commission unless the sale is made before the-date specified, and it is immaterial that a sale is eventually made to the proposed purchaser who was introduced by the-broker.
    Error to Kent; Perkins, J.
    Submitted June 13, 1906.
    (Docket No. 106.)
    Decided July 24, 1906.
    Assumpsit by Erastus J. Horton against Frederick Immen for a commission on the sale of real estate. There was judgment for defendant, and plaintiff brings error..
    Affirmed.
    Plaintiff is a real estate broker and seeks to recover a commission upon a contract by which he claims that he was to furnish a purchaser for the defendant’s land, a block in the city of Grand Rapids. He had had a verbal contract by which, if he obtained a purchaser of the property at $58,000, he was to receive a commission of $1,000. The case was tried before the court without a jury, a finding of facts made, and judgment rendered for defendant,.

      Gleason & Lee, for appellant.

      Grove & McDonald, for appellee.
   Grant, J.

(after stating the facts). Counsel for the plaintiff insist that there is no justification for the judgment in the finding of facts. Under the findings the oral arrangement for the payment of $1,000 for a purchaser at $58,000 was voluntarily abandoned. Plaintiff testified,, as stated in the finding of facts, that he told defendant,, “ I will tell you, if you close up a deal with him [the proposed purchaser] for less than $58,000, I will take $500 for my commission.” Thereupon defendant drew up and presented to the plaintiff for his signature the following memorandum, which was duly signed by the plaintiff and retained by the defendant:

“Agreement made between E. J. Horton and Frederick Immen, both of Grand Rapids, Michigan:
“In case a sale of the Loraine building located in Grand Rapids, Michigan, and owned by said Frederick Immen, is consummated by March first, 1905, to M. S. Keeler of Grand Rapids, Mich., for the sum of fifty-eight thousand dollars, E. J. Horton agrees to' take one thousand dollars in full for his commission on the sale. If sale is consummated for any less amount than $58,000, E. J. Horton agrees to take five hundred dollars in full for his commission on said sale. If sale is not consummated by March 1, this agreement is null and void between E. J. Horton and F. Immen.”

Plaintiff was then negotiating with one Keeler to purchase the property. It is the claim of plaintiff that Keeler offered $56,000, and that defendant expressed himself as willing to take that sum, and that they had agreed upon a meeting to arrange for the execution of the papers and terms of payment. Mr. Keeler testified that defendant consented to the terms of payment. Defendant denies such an agreement. Whether they had agreed verbally or not is immaterial. Plaintiff and defendant had made a definite contract. That contract provided for the consummation of a sale. None was consummated. It could not have been consummated until the vendor and vendee, or grantor and grantee, had entered into a valid and binding contract for the sale. Until that was done either party was at liberty to retire from his parol agreement. The contract was not to find a purchaser, but. to consummate a sale.

The judgment is affirmed.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    PEOPLE v. RITCHIE.
    1. Embezzlement — Agency—Contract—Sufficiency.
    A receipt for money given by a stock broker showing that the money is received “ for 10 Moh., ” meaning 10 shares of stock in the Mohawk Mining Co., is a sufficient agreement creating an agency to come within the terms of section 11572, 3 Comp. Laws, defining embezzlement by agents.
    2. Same — StPck Broker’s Clerk — Money of Customer — Liability. ,
    A stock broker’s clerk is not liable for embezzlement, as the agent of the customer of the broker, where he receives the , money of the customer in his employer’s name and turns it over to his employer in the due course of business, and the employer fails to invest it as agreed.
    Exceptions before judgment from Houghton; Streeter, J.
    Submitted June 14, 1906.
    (Docket No. 95.)
    Decided July 24, 1906.
    Gilbert Ritchie was convicted of embezzlement under section 11572, 3 Comp. Laws.
    Reversed.
    Respondent was convicted of a violation of section 11572, 3 Comp. Laws, which reads as follows:

      “ Whenever money, or any goods, wares or' merchandise or other personal property, shall be delivered, committed or intrusted to, or put in charge of, any person or persons as agent or agents with written instructions, or upon any written agreement signed by the party so instructed as agent, or such written instructions shall be delivered, or such written agreement shall be made, at any time after delivery to such agent or agents, of any money or goods, wares, merchandise, or other personal property, which instructions or agreements shall express the appropriation, purpose or use to which such money shall be applied, or the terms, mode or manner of the application or employment of such money, or which shall express or direct the disposition or use to be made by such agent, of any goods, wares, merchandise, or other personal property, so delivered or intrusted to such agent; if the person or persons to whom any such money or goods, wares or merchandise or other personal property shall be so delivered, committed or intrusted, shall purposely and intentionally apply, appropriate, dispose of, or use any such money or goods, wares, merchandise or other personal property in any other way or manner, or for any other purpose, use or intent, than such as shall be expressed in such written instrument or agreement touching the same, the person or persons so doing, shall be deemed guilty of felony, and on conviction thereof before a competent tribunal, shall be subject to a fine not exceeding two thousand dollars, or imprisonment in the State prison for a term not exceeding three years, or by both such fine and imprisonment, in the discretion of the court.”
    He was tried and convicted under a count of the information reading as follows:
    “For that heretofore, to wit, on the 10th day of November, A. D. 1904, at the township of Hancock, in the county aforesaid, there was committed and intrusted to Gilbert Ritchie, late of said township of Hancock, as agent, the said Gilbert Ritchie being then and there the agent of Amalie H. Hansen, by the said Amalie H. Hansen, the sum of $545 in money, of the value of $545, of fhe goods and chattels and property of the said Amalie H. Hansen, which said sum of $545 was so committed,, intrusted, and delivered, and put in charge of the said Gilbert Ritchie, as agent of the said Amalie H. Hansen, .as aforesaid, and that afterwards, on, to wit, on the 10th day of November, A. D. 1904, at the said township of Hancock, the said Gilbert Ritchie did enter into a written 'agreement signed by him the said Gilbert Ritchie, which said written agreement did express the appropriation, purpose, and use to which said sum of money should be applied, and the manner of the application and employment of such money, which said written agreement was in words and figures as follows, to wit:
    ■“‘$545. Hancock, Mich., Nov. 10, 1904.
    “ ‘Received of A. H. Hansen five hundredforty-five&no 100 dollars for 10 Moh.
    “ ‘No. 270. J. A. Fullee Co.,
    “ ‘per R.’

      “Meaning by the words in said written agreement ‘for 10 Moh.’ 10 shares of the capital stock of the Mohawk Mining Co., a corporation organized and existing under the laws of the State of Michigan, and the letter ‘R’ in said written agreement being the signature of the said. Gilbert Ritchie, ,and meaning the said Gilbert Ritchie. And the said Gilbert Ritchie the said sum of 1545, of the money and property of the said Amalie H. Hansen, so delivered, committed and intrusted to the said Gilbert Ritchie, as her agent. as aforesaid, purposely and intentionally did fraudulently and feloniously apply and appropriate' and use in another manner, and for another purpose, use and'intent than such as was expressed in said, written agreement contrary,” etc.

      Burritt & Burritt, for appellant.

      Angus W. Kerr, Prosecuting Attorney (Allen F„ Bees, of counsel), for the people.
   Grant, J.

(after stating the facts). The facts are not in dispute. One J. A. Fuller carried on a brokerage business at Hancock and other places, under the name of J. A. Fuller & Co. Respondent was a clerk and bookkeeper, employed by Fuller at $80 per week. Fuller employed two other persons in the office, named Roberts and Penberthy. Mr. Fuller was in his office most of the time. Miss Hansen had purchased stock through Fuller & Co. twice before. She had no acquaintance with Mr. Ritchieotherwise than on these two occasions and the one in question. Mr. Ritchie had authority to receive orders for his principal for the purchase of stock. Orders as they were received were turned over to Mr. Roberts through whose hands “ all purchases or sales of stock had to go.” Ritchie had no other connection with Fuller & Co. otherwise than as clerk. Miss Hansen asked for Mr. Ritchie when ordering the stock in question, because she had done business with him before. She knew that Fuller & Co. carried on a brokerage business. She went to the office of J. A. Fuller & Co She gave a verbal order through Mr* Ritchie for 10 shares of the stock of the Mohawk MiningCompany. Receiving notice from Fuller & Co. the following day that the stock had been purchased, she went to the office again, saw Mr. Ritchie, paid him the money, and took the receipt above set forth, which, as to the parties thereto, constituted a sufficient agreement under the statute. The money was deposited in the bank, in the due course of business, to the credit of J. A. Fuller & Co. Ritchie made no profit out of the -transaction. The stock was not bought, and all the money in the bank was checked out in the name of J. A. Fuller & Co. Fuller failed. Fuller signed all the checks that were drawn upon the bank in the name of J. A. Fuller & Co. He left blank checks in the office to be filled out by Ritchie and others, as occasion might require. Ritchie made no representations to Miss Hansen that he was acting independently of his employer. Nothing was said or done by either party from which it can be inferred that Miss Hansen understood that she was dealing with Ritchie as her agent rather than with J. A. Fuller & Co. through Mr. Ritchie as Fuller’s agent.

The court instructed the jury that if Gilbert Ritchie was the agent of Miss Hansen, and received the money as her agent, and gave a receipt to her expressing the purpose for which the money should be applied as her agent, and intentionally appropriated the money to- some other purpose, then respondent was guilty. To sustain a conviction under the statute it was essential for the prosecution to prove an agreement made between Miss Hansen and the respondent in his individual capacity. An agent making an agreement in the name of an actual bona fide principal and duly authorized to make such a contract, is not within the statute. The record is barren of any proof showing that Miss Hansen understood that she was dealing with the respondent as a principal. The contract on its face showed that she was dealing with J. A. Fuller & Co., brokers. There is no proof that she believed, or even had a right to believe, that she was dealing with respondent in his individual capacity. The court should have directed a verdict of acquittal. It is unnecessary to'discuss the other questions raised.

Conviction reversed, and new trial ordered.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    PEOPLE v. TOLLEFSON.
    1. Criminal Law — Trial—Forgery—Order of Proof — Discretion of Court.
    On a prosecution for forging a check, there is no abuse of discretion in receiving the check in evidence before the people have proved that it was forged.
    2. Forgery — Trial—Evidence—Check—Nonpayment and Protest.
    On a prosecution for forging a check, it is not error to admit evidence of nonpayment and protest of the check, though such circumstances, in themselves, are not evidence of forgery.
    3. Criminal Law — Evidence—Admissions.
    Where testimony relating to conversations with accused after his arrest, claimed to amount to admissions, was stricken out by the court as not establishing a confession or admission, and this court is not clear that the ruling striking out the testimony was correct, it cannot be said that it was prejudicial to receive the testimony.
    4. Same — Handwriting—Basis of Comparison — Harmless Error.
    WJiere, in a prosecution for forgery, the admission of a hotel register as a basis for comparison of handwriting was not objected to, and the question of its incompetency is first raised in this court, and the evidence leaves no doubt of respondent’s guilt, the admission of the evidence will not be considered harmful.

      Error to Ottawa; Padgham, J.
    Submitted June 14, 1906.
    (Docket No. 102.)
    Decided July 24, 1906.
    Wiley H. Tollefson was convicted of forgery, and sentenced to imprisonment for not less than five years in the branch of the State prison at Marquette.
    Affirmed.
    Respondent was convicted of the forgery of a check for $15, dated Detroit, Mich., May 31, 1904, upon the People’s Savings Bgnk of Detroit, purported to be drawn by “C. E. Farnsworth & Co., C. E. F.,” and indorsed, “ W. H. Tollefson.” Respondent introduced no testimony in his own behalf, and the case was submitted to the jury upon the people’s evidence. The evidence showed that the respondent presented this check to the assistant cashier of the National Bank of Grand Haven for payment; that he represented to said cashier that he was the representative of the Cudahy Packing Company and was selling beef extract to druggists, that C. E. Farnsworth & Co. were the Michigan agents of said Cudahy Packing Company, that he got his regular salary from that company, but that his expense money came from the Michigan agents at Detroit, C. E. Farnsworth & Co., the drawers of the check, and that the check was drawn for that purpose; that the bank cashed the check, forwarded it for collection, and that it was returned protested; that the body of the check and the signature thereto were in the same handwriting as the respondent’s indorsement upon the back; that no such firm as C. E. Farnsworth & Co. could be found or was known in the city of Detroit; that respondent was not employed by the Cudahy Packing Company in selling beef extracts to the drug trade, and had no distributing agent in Detroit or anywhere in Michigan by the name of C. E. Farnsworth & Co., and that said company did not pay the traveling expenses of its agents in that manner; and that no such firm as C. E. Farnsworth & Co. had a deposit in the People’s Savings Bank.

      Walter I. Lillie, for appellant.

      Daniel F. Pagelsen, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). 1. It is urged that it was error to admit the check in evidence before the people had proved the forgery. The order of proof is in the discretion of the circuit judge. There was no abuse of discretion, and it is impossible to find that the admission of the check at the time was prejudicial to the respondent.

%. It was not error to admit proof of nonpayment and protest. While of itself it was not evidence of forgery, it was competent to show as one of the circumstances of the transaction that the check was presented, and not paid.

3. The people introduced evidence of a conversation had with the - respondent after his arrest, which was claimed by the prosecution to be an admission of guilt. The court promptly struck the testimony out on the motion of the respondent, saying to the jury that the conversation “ could not by any legal rule of evidence establish a confession or admission.” It is not clear that the ruling was correct, and that the statements made by the respondent did not imply guilt. There was not, under the circumstances, any prejudicial error.

4. Error is assigned upon the introduction -of the hotel register containing the signature of the respondent, where he had registered on the day of the commission of the crime. The assistant cashier of the bank testified without objection that he had examined the defendant’s signature upon the hotel register, had compared it with the signature upon the check, and that in his opinion they were in the same handwriting. The witness was fully cross-examined as to the reasons for his opinion. The hotel register was before the witness and the attorneys. After the testimony of the witness was • concluded the prosecuting attorney offered the register in evidencé. No objection was made that it was incompetent for the purpose of com-, parison of the handwriting within First Nat. Bank of Houghton v. Robert, 41 Mich. 711, and other similar .cases. That objection is made in this court for the first time and is the only question argued. The expert witness having testified without objection to the comparison, we think the introduction of the register was harmless error, particularly in view of the fact that the evidence leaves no possible doubt of the respondent’s guilt.

Conviction affirmed.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


author:
McAlvay, J.
      Ostrander, J.

text:
    WILLIAMS v. SECRETARY OF STATE.
    1. State Senate — Senatorial Districts — Apportionment—Constitutional Provisions — County as Unit.
    The provision of section 2, article 4, of the Constitution, that “ no county shall be divided in the formation of senate districts, except such county shall be equitably entitled to two or more senators,” indicates, not that the county is made the basis of apportionment, but that portions of different counties must not be included in the same district, and that when a county is' entitled to two or more senators the obligation is upon the legislature to make such apportionment within the county according to population upon the basis of the last enumeration of the State.

      :2. Same — Duty of Apportionment — Where Vested — Supreme Court — Jurisdiction.
    The duty of dividing the State and the counties thereof into senatorial' districts is reposed by the Constitution in the legislature and the court only assumes to determine whether in a given case the legislature has exercised a constitutional discretion.

      3. Same — Validity oe Apportionment — Inequality.
    A senatorial apportionment act, according to which certain districts have more than double the population of others, cannot be sustained.
    4. Same — Apportionment Aot — Duration.
    Each apportionment act remains in force until it is supplanted. by a subsequent valid act. Ostrander, J., dissenting.
    5. Same — Invalidity oe Subsequent Aot — Eeeeot.
    Where the last senatorial apportionment act is invalid because of disparity in the population of the districts, and the same objection exists as to previous acts, the “election must be called according to the last act which was valid when enacted, notwithstanding changes in the population have produced equal if not greater inequalities than those in the acts held invalid. Ostrander, J., dissenting.
    Mandamus by Stephen D. Williams to compel George A. Prescott, secretary of State, to give the notices of election of State senators under the provisions of Act No. 264, Pub. Acts 1895.
    Submitted June 11, 1906.
    (Calendar No. 21,777.)
    Writ granted July 24, 1906.

      Jeffries & Williams (Edward Cahill, of counsel), for relator.

      John E. Bird, Attorney General (Charles W. McGill, of counsel), for respondent.
   McAlvay, J.

Relator, a resident and elector in Wayne county, applies for a writ of mandamus against respondent, secretary of State, to compel him to give notice of the election of senators required by section 3606, 1 Comp. Laws, under Act No. 264, Pub. Acts 1895, claiming that Act No. 245 of the Public Acts of 1905, entitled “An act to divide the State of Michigan into thirty-two senatorial districts,” being the act under which respondent proposes to give said notices, and also Act No. 189 of the Public Acts of 1901, are unconstitutional and void; that the limitation upon the power delegated by the Constitution of the State to the legislature has been disregarded in the apportionment made by the acts in question.

All of the questions involved- in this application were before this court and passed upon in the case of Giddings v. Secretary of State, 93 Mich. 1 (16 L. R. A. 403). Questions of jurisdiction and the right of the private citizen to apply in his own name for the relief prayed are admitted as settled by that case. The only question upon which an issue is made by the attorney general is whether the apportionment of 1905 is equitable; it being insisted that the intention of the framers of the Constitution was to make the county primarily the basis for representation in the State senate, and that the apportionment of Wayne county of which relator complains is not inequitable, but gives that county a substantial advantage.

The constitutional provisions relative to senatorial apportionments are familiar. The State is divided into 33 senatorial districts, each of which shall choose one senator. No county shall be divided, except it shall be equitably entitled to two or more senators. An enumeration of the inhabitants of the State for the year 1854 and every tenth year thereafter is required, and at the first session after each State enumeration, and the first session after each enumeration by the authority of the United States, the legislature must rearrange the senatorial districts according to the number of inhabitants. The provision (art. 4, § 3) that “ no county shall be divided in the formation of senate districts, except such county shall be equitably entitled to two or more senators,” indicates, not that the county is made the basis of apportionment, but that portions of different counties must not he included in the same district, and that when a county is entitled to two or more senators the obligation is upon the legislature to make such apportionment within the county according to population upon the basis of the last enumeration of the State. The figures given in support of this argument for respondent show that the division of Wayne county into 5 districts would make each district larger than each of 14 other districts as apportioned. This court cannot determine the apportionment, or direct the number of districts into which a county may be divided. That duty is reposed by the Constitution in the legislature. This court assumes to determine whether in this case the legislature has exercised a constitutional discretion.

In his petition relator has tabulated by districts the apportionment made under the act of 1905, and in a comparison of the population in the different districts as constituted by said act challenges the attention of the court to the fact that in making such apportionment the legislature has wholly ignored the provisions of the Constitution.

The State enumeration of 1904 shows a total population of 2,530,016, giving 79,063 as a unit or basis to be considered in arriving at a constitutional apportionment of senate districts. To determine whether “an honest and fair discretion was exercised by the legislature in apportioning the districts so as to preserve as nearly as may be an equality of representation,” it is only necessary to make a comparison of the population in different districts: First, 116,033; fifteenth, 52,731; fourth, 108,434; eleventh, 55,637; ninth, 102,725; nineteenth, 55,744. In the Gfiddings Case, supra, the disparity between districts was no greater than in the instances illustrated. In that case the court said:

‘ ‘ The unconstitutionality of the act is clear. * * * The State cannot be divided into senatorial districts with mathematical exactness, nor does the Constitution require it. It requires the exercise on the part of the legislature of an honest and fair discretion in apportioning the districts so as to preserve as nearly as may be the equality of representation. This constitutional discretion was not exercised. * * * The facts themselves demonstrate this beyond controversy, and no language can make the demonstration plainer.”

The Gfiddings Case controls this case. The statute in question must be held invalid.

This act was a re-enactment of the senatorial apportionment law of 1901, and as the validity of this act is also questioned an examination of the apportionment for that year has been necessary. We find that the objections made to the act of 1901 are sustained by the facts, and that such gross inequalities exist that the same may be said of it as has been said of the act of 1905.

Petitioner prays that respondent may be required to give election notices under the law of 1895. The validity of this law is therefore directly involved. After the Giddings Case was decided the legislature convened in special session and enacted the law of 1892. (Act No 1, Pub. Acts 1892). Its validity has never been questioned. In 1895 this law was re-enacted. As was said in Giddings v. Secretary of State, supra:

‘ ‘ Each apportionment act remains in force until it is supplanted by a subsequent valid act.”

And as we hold the acts of 1901 and 1905, respectively, invalid, the law of 1895 is the act under which the notice must be given, unless the legislature, duly convened by the executive, enacts another valid act apportioning the senatorial districts of the State. While this court realizes the fact that,' with the present population, equal, if not greater, inequalities may exist under the statute of 1895, yet, as this is the only valid act extant under which the court can direct respondent to act, the situation cannot be remedied by judicial action, and to deny to relator- and the people of the State the relief to which they are so clearly entitled would create a situation the ultimate result of which might be most disastrous.

This court has no right or inclination to assume the powers of a co-ordinate branch of the State government. It is called upon in this case to determine the constitutionality of an act of the legislature. Its right to do so cannot be questioned, and it cannot refuse to exercise it.

The contention that a constitutional statute of apportionment in the absence of a succeeding one constitutionally enacted is by limitation constitutionally dead, cannot be successfully defended. We all agree that the statute under consideration is unconstitutional; -then, if the above contention is correct, the logical result would be that the writ should issue to the secretary of State, commanding him not to issue the notices of election under this statute, and advising him that there is no valid law in existence under which such notices may be given. According to this construction the inaction of the legislature puts an end to the government established by the Constitution. This demonstrates its unsoundness. It is impossible to believe that the people who adopted the Constitution intended — and their intent determines its construction — any such result. They intended to establish a government that would continue until they chose to change it. They did not intend that the action or inaction of any of their officers — who in a legal sense are their servants — should destroy such government.

The proposition as laid down in the Giddings Case, supra, and which we most heartily indorse, that each valid apportionment, remains in force until it is supplanted by a subsequent valid act, is the law of this State. It is conservative, and preservative of existing government.

Such construction invited no clash between co-ordinate branches of the State government. It left the executive and the legislature free to exercise their constitutional authority if they saw fit, and, if they took no action, it preserved the machinery by which the legislature could be perpetuated. .

A writ of mandamus will be issued commanding and requiring respondent, as secretary of State, in giving the notices relative to the election of senators required by section 3606, 1 Comp. Laws, to comply with the provisions of the senatorial apportionment act of 1895, unless the executive of the State, before the time expires for giving such notices, shall convene the legislature in special session to make a new senatorial apportionment. No costs are allowed.

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

Ostrander, J.

(dissenting). It is matter of some difficulty, which a trial will demonstrate, to equitably divide the territory of the State into senatorial districts according to a unit of representation obtained by dividing the population by the number of senators. It is possible to arrange the districts so that the inequality will be very much less than it will be under the act the constitutionality of which is challenged. I agree with Mr. Justice McAlvay that the act in question should be held to be void, and agree that the power and duty of this court in the premises was to that extent correctly asserted in the case of Giddings v. Secretary of State, 93 Mich. 1 (16 L. R. A. 402). I do not agree to the proposition that, having determined the act to be void, the court should proceed further and direct the respondent to issue election notices under another apportionment act, the life of which long ago expired, under which the electors will bó worse represented than they will be if the present act is followed. In so far as the case referred to supports such action by the court, it should not, in my opinion, be followed. I am not satisfied with the argument that the act of 1895 provided for an equitable apportionment, was therefore, when passed, constitutional, and, being at the time of its passage constitutional, remains so until superseded by another constitutional apportionment. The argument would be good if applied to legislation which continued until superseded. Senatorial apportionment acts do not continue. It is of the essence of the constitutional theory of representation that they shall not continue. Enumerations of inhabitants are periodical and regular. The Constitution requires a rearrangement of senate districts at the first session of the legislature after each stated enumeration of inhabitants. To be constitutional, the acts of the legislature must be periodically successive, and also, in each of them, the arrangement of senate districts must be an equitable one. The act in question is unconstitutional, because it has not provided for an equitable rearrangement of senate districts. For the same reason, the act of 1895, if now enacted by the legislature, would be unconstitutional. The act of 1895 is also constitutionally dead. It requires the exercise of legislative, and not of judicial, power to revive it. The argument and conclusion of the majority of the justices would lead to this: That if, 40 years ago, an apportionment act had been passed which, according to the then last census equitably arranged senatorial districts, and no valid act had since been passed, it would be the constitutional duty of the present secretary of State to-issue his election notices according to that act; or, if no apportionment had been made at all for 40 years, the last act would remain the constitutional act. I know of no reason which supports the declaration of the court in the case at bar, which would not also support the declaration that the early act in the supposed case was now unconstitutional, or, in the present case, that the act of 1895 is now unconstitutional. It is said that if this court holds the act of 1905 to be void, and does not point out some other act in accordance with which the respondent shall issue election notices, chaos will result. Chaos is effectually provided against in our Constitution, and best when neither department of government assumes any of the powers of another. There are other departments of government, the duties of which will be presumably performed. There is at present no arrangement of senate districts which conforms with constitutional requirements. The duty to make such arrangement lies with the legislature, and with no other department of government. The occasion is an extraordinary one. Constitutional relief is easy and speedy. A writ should issue, commanding the respondent not to issue election notices according-to the senatorial apportionment act of 1905, and advising him that there is no apportionment act according to which such notices may be lawfully issued.


author: Moore, J.

text:
    ROCKWITH, ex rel. KERNS, v. STATE ROAD BRIDGE CO.
    Bridges — Bridge Companies — Navigable Waters — Authority of Supervisors — Franchise—Renewal—Reorganization of Company.
    Where a bridge company, the corporate existence of which was limited to 30 years by section 10, art. 15, of the Constitution, obtained permission of the board of supervisors of the proper county to build and maintain a toll bridge across a navigable stream, such franchise expired with the franchise of the corporation, and the act of the corporation in reorganizing under Act No. 328, Pub. Acts 1905, before the expiration of its charter, could not, without further action of the board of supervisors, operate to renew the franchise to maintain the bridge another 30 years.
    Appeal from Saginaw; Gage (William G.), J.
    Submitted June 5, 1906.
    (Docket No. 81.)
    Decided August 4, 1906.
    Quo warranto proceedings by Frank A. Bockwith, prosecuting attorney, on the relation of Joseph W. Kerns and others, against the State Boad Bridge Company and others to test the right of said company to maintain, its franchise and privilege of collecting tolls on its bridge over the Tittabawassee river. From a decree for complainant, defendants appeal.
    Affirmed.

      F. A. Bockwith (F. E. Emerick and L. T. Durand, of counsel), in pro. per.

      De Vere Hall ( W. F. Paine, of counsel), for defendants.
   Moore, J.

This js a proceeding brought to have the defendants enjoined from unlawfully collecting toll from people having occasion to pass over a bridge across the Tittabawassee river. The court below granted a writ of injunction. The proceeding is brought here by appeal.

It is the claim of the relator that on the 17th day of December, 1875, a corporation known as the State Road Bridge Company was organized for a period of 80 years and for the purpose of constructing and maintaining a bridge over the Tittabawassee river, and that the life of said corporation closed December 17, 1905. It is the further claim that the board of supervisors on the 18th of January, 1876, undertook to authorize by resolution said bridge company to build a bridge across said river, and said company afterwards erected said bridge, but that said board was without authority to pass such resolution for several reasons, but principally because no petition had been presented to the board of supervisors as required by law. It is further claimed that defendants Paine, Bouldin, and Paine are now acting as'the State Road Bridge Company. It is also claimed that said bridge is out of repair and for more than a year has not been reasonably safe and fit for public travel; that the planks are old, decayed, and worn, and the abutments are unsafe; that said bridge is part of the public highway; that the public authorities have attempted to take possession of said bridge and are kept by defendants from doing so by threatening to use force; that said defendants, by reason of the premises, are now and have been continuously for a period of six months past maintaining a public nuisance on said highway. The defendants demurred to the petition.of relators.

The claim of the complainant, then, is, first, that defendants were never legally authorized to build the bridge and collect the tolls; second, that, conceding it was authorized, its authority ceased December 17, 1905, when its charter expired; third, that, under its charter, it was bound to keep said bridge in repair and reasonably safe and fit for travel, and- that, instead of doing so, it has allowed it to become so out of repair that it is unsafe and a public nuisance.

The defendants claim that the defendant company was organized as stated by complainant; that the board of supervisors, having authority, conferred upon it a franchise without limitation as to time to build and maintain the bridge and collect tolls. It is further claimed that, though the life of the defendant corporation was in the first instance but 30 years (we quote from brief of counsel)—

“On October 24, 1905, respondent corporation, proceeding under Act No. 328, Pub. Acts 1905, took the necessary steps and thereupon renewed its corporate life for a further period of 30 years from December 16, 1905.”

By the action taken respondent corporation claims “ it is vested for a further term of 30 years with all the authority possessed under its original articles of incorporation, and empowered to continue the collection of tolls the same as though its corporate life had not originally been limited to 30 years.”

It is -conceded the board of supervisors has taken no action since 1876 in relation to this company. The important question is: Have the defendants the right to exact toll subsequent to December 17, 1905 ? It is the claim of defendants that, as the franchise given to it by the board of supervisors was without limitation, when it was reorganized for a term of 30 years it had the same authority to collect tolls that it had in the first instance, citing Detroit Citizens’ Street-Railway Co. v. City of Detroit, 64 Fed. 628, Louisville Trust Co. v. City of Cincinnati, 76 Fed. 296, and other cases.

We shall not undertake an analysis of all these cases, but an examination of them will show they are distinguishable. In Detroit Citizens’ Street-Railway Co. v. Detroit, supra, as shown by the opinion, the grant was to the grantees named and “their successors or assigns.” In Louisville Trust Co. v. Cincinnati, supra, as appears by the opinion, there is no limit to the duration of the corporation. In the case at bar when the defendant corporation came into existence its life could not be'longer than 30 years, because of section 10, art. 15, of the Constitution of 1850, and it was not in the power of the legislature to extend its life. Attorney General, ex rel. Mason, v. Perkins, 73 Mich. 303.

At the time the defendant corporation came into existence the following constitutional provisions existed:

“The board of supervisors of each organized county may provide for laying out highways, constructing bridges, and organizing townships, under such restrictions and. limitations as shall be prescribed by law.” Article 10, § 11.
“No navigable stream in this State shall be either bridged or dammed without authority from the board of supervisors of the proper county under the provisions of law. No such law shall prejudice the right of individuals to the free navigation of such streams or preclude the State from the further improvement of the navigation of such streams.” Article 18, § 4.

The situation, then, was that a corporation came into being, the life of which was limited, not only by its articles of association, but by the Constitution of the State, to 30 years. This corporation, then, applied to the only body, the board of supervisors, that could give it a franchise to bridge a navigable stream and to collect toll. An attempt was made to grant to it, not to its successors or assigns, the franchise it asked. Conceding that the action of the board of supervisors was regular, we think it very clear the board of supervisors did not intend to grant, and the grantees did not suppose they were getting, a franchise for a longer period of time than the life of the corporation. See Wyandotte Electric Light Co. v. City of Wyandotte, 124 Mich. 43; Turnpike Co. v. Illinois, 96 U. S. 63. Is it possible, then, that by the act of one of the parties in reorganizing (and we express no opinion as to whether that reorganization was valid), and without consulting the board of supervisors, a franchise which in the first instance was, because of the limitation of the life of the grantee and the then existing provisions of the law limited to 30 years* given validity for another 30 years ? We think the answer to this question must be in the negative.

We have exámined the other contentions of counsel. We do not deem it necessary to discuss them.

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

Carpenter, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.


author:
      McAlvay, J. Hooker, J.
      Ostrander, J.

text:
    BARBOUR v. PATTERSON.
    Lis Pendens — Costs—Execution—Mortgages — Lien — Priority —Partition.
    Where complainant in partition files a lis pendens at the time of filing his bill, it operates to make his execution levy on the interest of the defendants for costs superior to the lien of defendants’ solicitor under a mortgage given after commencement of suit to secure payment of his fees (§§ 8980, 11080, 3 Comp. Laws), though the sheriff by his notice levies upon and sells only the interest of the defendants in the premises at the time of the levy. Ostrander and Moore, JJ., dissenting.
    Appeal from Calhoun; Hopkins, J.
    Submitted October 12, 1905.
    (Docket No. 39.)
    Decided September 20, 1906.
    Bill by Levi L. Barbour against John C. Patterson to remove a cloud from the title to land. From a decree for complainant, defendant appeals.
    Affirmed.

      George O. Tackels, for complainant.

      Edwin J. Dennison (John C. Patterson, of counsel), for defendant.
   McAlvay, J.

This case grows out of certain proceedings upon an execution issued out of this court in the case of Hooper v. McAllister, 115 Mich. 174. That was a case for the partition of a certain farm in Calhoun county in which complainant, Hooper, claimed an undivided five-sixths interest. From a decree granting him but a one-half interest, he appealed to this court from the circuit court .for Calhoun county, and his title to an undivided five-sixths interest was established.. He was granted costs of both courts, which were taxed in this court, and an execution issued, and was levied March 19, 1898, upon all of the interest of defendants in said land. Partition of the property was ordered and the case was referred by this court to the circuit court commissioner of Calhoun county to take proofs and report thereon. It was remanded to the circuit court for the enforcement of the decree. Hooper at the commencement of that suit, May 19, 1894, filed a notice lis pendens. The defendant in the suit at bar was solicitor for the defendants in the Hooper Case in the circuit court and in this court. The Hooper Case proceeded in Calhoun circuit to a final determination by partition of the lands according to the decree of this court. The one-sixth interest of the defendants, Alice, Orlando B., and Earl McAllister, was set apart to them by a definite description containing 37£ acres. Under said execution levy the sheriff, November 2,1900, to satisfy the same, sold and deeded all the right, title, and interest said defendants had in said 37£ acres March 19, 1898, for the sum of $273.42. The premises so sold were not redeemed. While the Hooper Case was pending, and before partition, on December 30, 1897, the defendants McAllister gave their solicitor, John C. Patterson, a mortgage on their undivided one-sixth of the entire premises to secure a note given to him for professional services in the sum of $400. This mortgage was duly recorded December 31, 1897. Complainant, Barbour, in the suit at bar acquired his title to such land so sold on execution by quitclaim deed from Hooper and wife. He filed his bill in this suit against defendant, Patterson, claiming that said mortgage was a cloud upon his title, and asked that the same be set aside and canceled.

The question to determine in the case at bar is whether, as between the parties to this suit, the notice lis pendens filed in the Hooper Case operated to make his execution levy for costs in that case a lien upon these premises superior to the lien of Mr. Patterson, the mortgagee, who had actual and constructive notice, not only of the lis pen-dens, but also of all proceedings in that suit. The costs taxed in this court, for which the execution issued under which the sale was made, were the usual taxed costs in chancery cases, and the levy of the execution was made subsequent to the recording of defendant Patterson’s mortgage in question. It is not claimed by the complainant that defendant’s mortgage was given in fraud of the rights of the judgment creditors. The question discussed at length by defendant as to the necessity of filing a bill in aid of execution within one year after the levy is therefore not before the court. The sole question to be determined is which of the liens has priority. On the confirmation of the partition by the circuit court in the Hooper Case, the costs made subsequent to the decree of this court enforcing the same were all paid by the receiver, who in the meantime had been appointed to care for the property, and a small balance in his hands was paid to the parties according to their respective interests. The rights of the parties in the Hooper Case were settled and determined in this court upon the decree then entered. The subsequent proceedings were taken in execution of that decree. Shepherd v. Bice, 38 Mich. 557, and cases cited. Costs in that decree were not apportioned among defendants, but were allowed complainant for both courts and taxed in the usual manner. The McAllisters’ interest taken together was declared to be a one-sixth interest, and on the partition under the decree was set apart to them as such one-sixth, in which partition they have acquiesced. The circuit court could not under the partition statute change this decree for costs made by this court. It had no jurisdiction to ascertain and determine or apportion the same. Where there is a sale of lands in cases of partition, it is clear that the statute contemplates a payment of the costs out of the proceeds of the sale, including solicitor’s fees in addition to other fees and charges allowed by the statute, and—

“Where the premises are not sold but are partitioned, then such reasonable charges are to be apportioned among the parties in proportion to the respective interests in the estate partitioned.” Greusel v. Smith, 85 Mich. 574.

It would appear from this case that ordinary taxable costs are included. Section 11080, 3 Comp. Laws, provides :

“ When a decree confirming the partition made by any commissioners shall be entered as provided in this chapter, the court shall adjudge and decree that each of the parties concerned therein, other than the complainants, pay to the complainants a proportion of the costs and charges of the proceedings to be ascertained by the court according to the respective rights of the parties, * * * and upon such decree execution may issue as in other cases, and may be levied upon the property of the parties respectively' charged with such costs, and upon any share or part of the premises allotted on any such division to any owner unknown or not named,” etc.

Complainant’s priority of lien rests, then, upon the proposition that the lis pendens filed at the time the Hooper Case was commenced was notice to defendant of all of Hooper’s rights and interests and also of the ordinary and usual costs incurred incident "to establishing the same. In this State a notice lis pendens duly filed and recorded, and the original papers filed in the cause “shall be notice to all persons, of the liens, rights and interests acquired by or involved in such proceedings, and all subsequent owners or incumbrancers shall take subject to such liens, rights, or interests.” Section 8980, 3 Comp. Laws.

Costs are incident to every proceeding or suit at law and in chancery. They are sometimes fixed by statute or rule, and sometimes are in the discretion of the court. This statute also includes all levies and attachment liens. No one has ever questioned but that the costs in attachment cases would be considered as part of the judgment to be realized from the land and by the notice protected as against a subsequent incumbrancer. To hold that costs in a chancery case are not included and protected by a notice lis pendens under the statute above quoted would be a strained construction. This defendant had not only constructive notice of this lis pendens, but actual notice. He was an .active participant in all the proceedings as solicitor for defendants.

There are two questions in the case:

1. Did complainant’s grantor by his lis pendens acquire a lien, right, or interest in these premises for his costs ?

2. Has that lien, right, or interest been lost ?

It must be conceded that the lis pendens was notice ot complainant’s liens, rights, and interests involved in the proceedings and incidentally all ordinary and usual costs. Up to the time of the levy of execution for costs under the decree of this court there can be no question but that such lien continued. No question is raised as to the regularity of the proceedings, or the right of this court to allow complainant his costs upon the favorable outcome of his appeal. Defendant does not seriously contend but that such costs would necessarily be included within the protection ■of the lis pendens. The contention is that because complainant, under execution from this court by what has been called “adversary” proceedings, levied upon the interest of the defendants in the lands involved in the partition suit, and proceeded to sell the same, all right under and by virtue of the lis pendens is lost to him, and that this becomes a direct and original proceeding on his part, and he now occupies no better position than any other creditor of the defendants in that suit.

Under the partition statute above quoted, the circuit court, upon a final disposition of the case, could have decreed costs such' as these to complainant therein and against defendants “according to the respective rights of the parties.” Greusel v. Smith, supra. The fact that these costs were decreed by the appellate court cannot affect in any way complainant’s right to collect the same. We think that the fallacy of appellant’s reasoning lies- in the fact that the execution proceedings are divorced by argument from the case in which the costs were decreed. It is a proceeding to collect costs duly decreed in the case in which such costs were protected by a valid lis pendens. The fact that the sheriff by his notice levied upon and sold the interest of defendants in the premises at the time of the levy is the only irregularity which tends to impeach complainant’s claim. This undoubtedly was done by the sheriff in following the usual form of blank used on levy of execution. It, however, was not misleading to this defendant. The notice apprised him of the case in which the costs arose, in the taxation of which he participated as solicitor of record, and the levy was upon the interest of defendants in the land involved, and upon which pendente lite, with full notice of all the proceedings, he had taken his mortgage.

We therefore hold that his rights under his mortgage were subject to the rights of complainant acquired under the execution levy and sale in the Hooper Case.

The decree of the circuit court is affirmed, with costs.

Carpenter, C. J., and Grant and Blair, JJ., concurred with McAlvay, J.

Hooker, J.

Whatever view may be taken of the authority of the court under 3 Comp. Laws, § 11080, to apportion the costs of the entire proceeding among the parties, according to their proportionate interests upon decree confirming partition, there may be manifest injustice in compelling a successful or indifferent and disinterested party to contribute to an unsuccessful one a share of the expense of litigating a title, to determine the shares, and it is the general rule that the court need not, and in some States cannot lawfully, charge such costs to the fund or impose portions upon parties not responsible for the unwarranted contest. See Coles v. Coles, 13 N. J. Eq. 368; McMullen v. Doughty, (N. J. Eq.) 61 Atl. 265; Knapp on Partition, pp. 342, 343. Such appears to have been the English rule. See cases cited in 21 Am. & Eng. Enc. Law*(2d Ed.), p. 1175, note 5. While in the United States the matter is largely discretionary, implying, perhaps, that the costs subject to apportionment may include those incurred in determining the extent of the respective shares as well as the expenses of making the partition. See 21 Am. & Eng. Enc. Law (2d Ed.), pp. 1177, 1178, and notes; 6 Current Law, p. 903. In the present case the preliminary decree made by this court included a determination that the complainant should recover his costs of both courts, to be taxed against all defendants and that execution therefor issue from this court, and the cause was remanded for further proceedings, to carry out the decree made here. This decree left no discretion in the circuit court as to the costs covered by it, and plainly indicates that the defendant should be charged with such costs. It was an ordinary decree for costs, with an award of execution, which we understand to have been issued and levied upon £he one-sixth interest of McAllister, which was afterwards bid in at the execution sale by complainant, and he thereby acquired a title to the same, unless Patterson’s mortgage has priority. This mortgage was given to counsel before the rendition of the frjst decree to secure his fees in the partition case. We may eliminate all questions pertaining to the lis pendens for counsel had personal knowledge of the nature of the proceedings, and is chargeable with notice of any lien which had attached under the law, by reason of the institution of the partition proceedings.

The only remaining questions are whether a lien does attach in favor of a complainant in partition proceedings upon the shares of other parties for his costs, and, if so, whether there is any reason for saying that it does not apply to thé decree of this court. We are not aware of any case that holds that the right to collect costs from the premises or fund is limited to the expense of the partition proper, as contradistinguished from the preliminary decree determining the respective interests. See Coles v. Coles, 13 N. J. Eq. 366; Woglom v. Kant, (N. J. Eq.) 61 Atl. 9; 4 Current Law, p. 902. These authorities are cited as indicative of the propriety of settling such questions in partition proceedings, and as showing no distinction, as to costs, incurred in the different phases of the proceeding.

Our statute (section 11080) makes none, providing in a general way, that, upon the final decree, the court shall apportion the costs, and that they shall be chargeable upon and enforceable against the respective shares. I think that this statute creates a lien from the beginning of the suit that cannot be avoided by a subsequent conveyance or mortgage. It may' be said that the terms of the statute have not been complied with, because the final decree has not apportioned costs. Our understanding is that the costs of the partition proper were paid, and there was no qccasion to refer to them in the decree. They are not in controversy here, and therefore it is unimportant. As to the costs which are involved here, the disposition of them made by this court precluded action by the circuit judge. The lien is imposed by the statute, not by the decree, and we think the law should be construed to cover all costs awarded in the case. There is nothing uncommon in statutes declaring judgments and decrees to constitute liens upon real estate, and there is manifest propriety in such a rule in partition cases. It follows that the decree of this court was the prior lien, and I therefore concur with my Brother McAlvay that the decree of the circuit court should be affirmed, with costs.

Montgomery, J., concurred with Hooker, J.

Ostrander, J.

(dissenting). Complainant’s grantor, owner of a personal judgment for costs against defendant’s mortgagors, took out execution to collect the same and caused it to be levied upon all the title and interest of the execution debtors in premises in which said debtors owned an undivided share or interest in fee simple. At the date of the judgment there was a valid mortgage upon the same interest, executed December 30, 1897, and after the beginning of the suit in which the judgment for costs was recovered by the execution debtors, to the defendant here, which mortgage was duly recorded. Later, in October, 1899, the said premises were partitioned and land in severalty was set off to said execution debtors in lieu of the said undivided share and interest. Thereafter, in November, 1899, the sheriff sold to the execution creditor the premises so set off, to satisfy said execution, for about one-' third of the actual value of the same. The purchaser conveyed the interest so acquired by quitclaim deed to the complainant in, this suit, who filed his bill to cancel said mortgage, asserting that it and the record of it constituted a wrongful cloud upon his title. The proceeding in which the judgment for costs was secured was a proceeding to partition lands, but there was also involved a dispute as to the size or extent of the undivided interest of the complainant in the said premises.. It was upon the determination of that contested question that the judgment for costs in favor of said complainant and against said defendants was recovered.

It is claimed that because the mortgage in question was given pendente lite the said judgment for costs and the execution lien were prior in effect to the lien of .the mortgage. Independent of.all other considerations, sale having been of the apparent interest of the execution debtors, the execution creditor should be held to have acquired only the equity of redemption in the premises. Messmore v. Huggard, 46 Mich. 558. But upon no theory of the case has complainant the right to have the execution levy treated as a lien superior to that created by the mortgage. A lis pendens was recorded when the bill in the partition proceedings was filed. This added nothing to the notice which the mortgagee, the defendant here, who was solicitor for defendants in the partition suit, was chargeable with. Baker v. Pierson, 5 Mich. 456. The purpose of recording notice of the pendency of a suit is to make the filing of the bill constructive notice to a purchaser of real estate of the claims thereto and therein asserted in the bill. The bill in question here asserted no interest in an undivided one-sixth of the premises, but admitted, and notified intending purchasers and incumbrancers of the fact, that the defendants owned an undivided one-sixth interest in fee simple. Such intending purchasers and incumbrancers, the bill praying for partition, were further notified by the statute that the entire premises might be ordered to be sold, or that said undivided interest might be set off in severalty, and, in either case, that a proportion of the mutual costs and charges of effecting said partition might become a first charge upon said interest. 3 Comp. Laws, § 11020. The statute, however, requires these costs and charges to be determined and apportioned by the court (section 11080), and does not contemplate that such costs and charges shall include adversary costs allowed to .and taxed in favor of a party who is contesting with another, or with others, the size or extent of his own undivided interest. This was the construction put upon the statute by this court in awarding the costs (Hooper v. McAllister, 115 Mich. 174), and was the construction adopted by complainant’s grantor, as is evidenced by what he did. A judgment for costs, like any other personal judgment, becomes a lien upon real property only by virtue of the contract which is being enforced by express statute provisions, or by levy of execution.* Executions to collect such judgments run first against the personal estate of the debtor. It is true that costs are, as a rule, usual incidents of litigation, and that notice of the pendency of a suit in chancery involves an understanding that one or other of the parties thereto may recover a judgment therein for his costs. There is, however, no reasonable support for the doctrine that one may not take a conveyance from the defendant in such a suit of premises which, he is informed by the bill of complaint, belong to the defendant, and to which no claim is asserted, except at the peril of paying a judgment for costs in favor of complainant, thereafter to be rendered. The statute does not, in terms, postpone the title of the purchaser pendente lite to the payment of costs awarded as in adversary proceedings in the pending suit. 1 Comp. Laws, §.441, 3 Comp.' Laws, § 8980. It does, in terms, postpone all incumbrances to the payment of a proportional share of the cost of the partition, in view of all of which and of the general rule that money judgments become liens upon real estate by levy only the court should not determine that a lien is, in effect, created by notice of the pendency of the suit for the costs which may be awarded to complainant.

The decree should be reversed, with costs of both courts, and the bill of complaint dismissed.

Moore, J., concurred with Ostrander, J.


author: McAlvay, J.

text:
    MILLER v. VILLAGE OF BIRMINGHAM.
    1. Municipal Corporations —Personal Injuries — Notice of Claim — Sufficiency.
    A notice of claim for injury on a defective sidewalk belonging to a village, which in nowise describes the injury received, is insufficient under section 2775,1 Comp. Laws.
    2. Same — Waiver of Notice.
    Where a defective notice of claim for injury on a defective sidewalk is filed with the proper officer of a village on the last day within which such notice may be filed, no subsequent action of the council can amount to a waiver of the defects in the notice, the claim being in tort.
    8. Courts — Stare Decisis.
    Decisions are not binding as precedents on propositions which, though involved, were not considered.
    Error to Oakland; Smith, J.
    Submitted March 1, 1906.
    (Docket No. 86.)
    Decided September 20, 1906.
    Case by Arabella A. Miller against the village of Birmingham for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Albert P. Jacobs, for appellant.

      Q-eorge A. Safford, for appellee.
   McAlvay, J.

Plaintiff recovered in a suit for personal injuries received from a fall caused by a defective sidewalk. The injury occurred while she was walking upon a sidewalk along a street of defendant village, which sidewalk she claims defendant negligently allowed to remain out of repair. A loose plank tripped her and caused her to fall, which, she claims, severely and permanently injured her left arm. Within the 60 days provided by law she filed a notice of her claim with the proper officer. It was referred to -the committee on claims which afterwards reported to the council without any recommendation, and at a later regular meeting the claim was rejected. She recovered a judgment for $1,000. Defendant asks this court to set aside said judgment on account of errors committed upon the trial, which was had before a jury.

It is insisted that the notice of the claim against defendant on account of this injury was defective in that it did not conform to the provisions of the statute. As to what such notice shall contain, section 2775, 1 Comp. Laws, provides:

“ Which notice shall set forth substantially * * * the extent of such injury as far as the same has become known. * * *”

The notice as to the injury, which was given defendant, states as follows:

“Was tripped and thrown violently on said sidewalk by reason of said sidewalk being then and there out of repair and not in a condition reasonably safe for travel whereby the undersigned sustained personal injuries, and for which she intends to hold said village of Birmingham responsible in the amount of $5,000.”

We do not think that this notice substantially sets forth the extent of such injury as far as it had become known. Nor does the affidavit required by law, which accompanied the notice, if it can be considered as part of it, in stating “ that she has suffered continually since the injury referred to in the within claim and verily believes she will henceforth continue to suffer great pain and inconvenience as the direct result of said injury,” make the notice sufficient. The notice should be sufficiently-specific to give the municipality information as to what the injury comr plained of was.

By assignments of error, based upon the refusal of requests to charge, defendant raises the question as to whether the court ought not to have held this notice defective; that no proper claim had been presented to the village council within the statutory period, and instructed a verdict for the defendant.

The accident occurred December 10, 1900. The notice of the claim was filed February 8, 1901, being the sixtieth day after the accident. It was referred to the committee on claims February 11, 1901. After a meeting with the committee and discussing matters of settlement with plaintiff, a report was made and the claim finally rejected April 8, 1901. It is claimed that this action of the council amounted to a waiver of the defects in the notice. The question, then, is whether the limitation within which a claim as required by the statute must be presented, having expired, any action of the council afterwards taken could operate as a waiver or estoppel.

In Holtham v. City of Detroit, 136 Mich. 17, this court said:

“An action of tort, once barred by the statute of limitations, cannot, like an action arising out of contract, be revived by either an express or implied agreement,” — citing Renackowsky v. Board of Water Com’rs of Detroit, 122 Mich. 613; Van Auken v. City of Adrian, 135 Mich. 534.

In Holtham v. City of Detroit, supra, it was recognized that defendant might be estopped from setting up the statute of limitations by conduct before the claim is barred. Plaintiff relies upon some of the cases cited by the court in support of this last proposition. All of these cases but one can be distinguished from the case at bar.

In Griswold v. City of Ludington, 116 Mich. 401, the claim was filed on the fifty-ninth day, and it does not appear that any action was taken by the council before the expiration of the 60 days. The bearing of this fact upon the case was not discussed. The case is therefore not binding authority upon the question under discussion. Atwood v. Mayor, etc., of Sault Ste. Marie, 141 Mich. 295; Moinet v. Burnham, Stoepel & Co., 143 Mich. 489.

This case must be ruled by Holtham v. City of Detroit, supra. The right of action having expired before defendant took any steps in the matter, whatever may have-been done later could not revive it. A verdict should have been directed for defendant as requested. It will not be necessary to consider other errors assigned.

The judgment of the circuit court is reversed, and a new trial granted.

Carpenter, C. J., and Blair, Ostrander, and Moore, JJ., concurred.


text:
    RUPPERT v. PATRONS’ MUTUAL FIRE-INSURANCE CO.
    Equity —Jurisdiction — Adequate Remedy at Law — Fire Insurance Policy — Mistake.
    A bill by the insured in a fire-insurance policy setting up that in consequence of his imperfect understanding of English he gave the wrong answer to the question of the insurer’s agent with respect to incumbrances upon the property, that the company refuses to pay a loss upon the policy because of said misrepresentation, that the incumbrance in nowise contributed to the loss, and praying that the loss may be determined and decreed to complainant, states a contract of insurance enforceable in an action at law and states no case for the equity side of the court.
    Appeal from Monroe; Lockwood, J.
    Submitted April 10, 1906.
    (Docket No. 35.)
    Decided September 20, 1906.
    Bill by Fred Ruppert against the Patrons’ Mutual Fire-Insurance Company, Limited, of Monroe county, to enforce a policy of insurance. From a decree for complainant, defendant appeals.
    Eeversed, and bill dismissed.

      C. A. Golden, for complainant.

      Willis Baldwin and John J. Kiley, for defendant.
   McAlvay, J.

Complainant on January 19, 1905, was in the occupancy and possession of certain farm lands in Monroe county, together with the buildings thereon and personal property used in connection therewith. On that date a local director of defendant company, a Michigan corporation, solicited insurance in said company of the buildings and personal property. An application, among other things, contained the following:

“ I do hereby make true answers to the following questions as the facts now are. * * * In whom is the title to the property both real and personal ? Fred Ruppert. * * * Is any of it incumbered ? If so what' is the amount of the incumbrance? No. * * * And the undersigned states and warrants for the purpose of obtaining such insurance, the representations and statements ^herein to be the truth and agrees that this application’together with the policy of said company, its articles of association and by-laws are a part of the contract of insurance with said company, and that no statements, agreements or representations shall be of any effect not contained in said writings. * * * I accept this insurance subject to the articles of association and rules and by-laws of said company now in force or that may hereafter be in force.”

Upon this application and the payment of the required amount of money, a policy of insurance was issued January 24, 1905, to complainant upon the dwelling house and contents, the barns and contents, including live stock and so forth, granary and contents, toolhouse and contents, and poultry house, specifying the amount of insurance placed on each item, the total being $1,700, against loss or damage by fire or lightning, during the term of five years from January 19, 1905, “ as specified in the articles of association and by-laws printed hereon, and which are signed by the assured and which are together with the application a part of this policy and agreement.” At the time the policy issued complainant’s mother had a life estate in the premises and complainant had mortgaged the premises for $1,300, all of which was unknown to defendant company. On January 29, 1905, a part of this property so insured was destroyed by 'fire. Soon after the fire complainant made out a statement of his loss, and furnished the same to the company. The loss was adjusted by the officers of the company February 4,1905, at $347.38. On February 24th defendant notified complainant that the claim would not be paid. March 13th complainant received notice that the arbitration committee would meet March 16th, and to be present if he desired to appear in regard to his claim. He appeared with his attorney and was examined as to his loss. On March 31st he received notice from the arbitration committee that because of fraud and false representations as to incumbrances on the property defendant was not liable to him for any loss under the policy. This is the firstmotice he had that defendant refused to pay on that account. Afterwards complainant filed his bill of complaint in this cause, setting up the facts hereinbefore stated, alleging that he answered “No” to the question which was asked by the agent who took the application for insurance relative to any incumbr&nce. on his property; that he is a German, understanding the English language imperfectly, and did not understand the meaning of the word “incumbrance,” and thought when the question was asked by the agent that he was inquiring whether his sister (an heir at law of his deceased father) had any interest in the property. He says he knew the meaning of the word “ mortgage,” and if asked whether there was any mortgage upon the property he would have understood and answered that there was, and alleges that it was through mistake, and his ignorance of the English language, and because he was not asked if there was any mortgage upon the premises that the application states incorrectly that there was no incumbrance upon the property; further, that the existence of the mortgage upon said property in no manner contributed to the destruction thereof; that defendant was in no manner injured or defrauded because of the existence of said mortgage; and that under the statute of this State defendant is not relieved from its liability for the loss so sustained by him because of said mortgage. The prayer of the bill asks that the loss sustained by him by reason of the destruction of the property insured be ascertained and determined, and the percentage to which he- is entitled by the terms of the policy be decreed by the court to be paid by defendant, and also for general relief. Defendant answered the bill of complaint, and coupled with its answer a demurrer in due form as required by rule, duly certified by the solicitors, for the following reasons:

1. Because complainant has not made or stated such a case as entitles him to relief.

2. Because complainant has a complete and adequate remedy at law.

3. Because the bill of complaint attempts to set up a new contract to the terms of which defendant never agreed and upon which relief depends.

A replication was filed and by stipulation proofs were taken in open court. The court in his opinion found the facts as claimed by complainant, and that he was entitled to the amount of the loss as adjusted, with interest, and granted a decree in his favor for that amount, with costs.

Defendant appeals from this decree, and urges upon this court that the demurrer should have been sustained. It will be necessary to consider but one of the grounds of demurrer, namely, that a court of equity has no jurisdiction of the case because complainant has an adequate remedy at law. We do not find that the bill of complaint alleges sufficient to bring the case within equity jurisdiction. The allegations constitute a contract of insurance enforceable at law. No fraud, deceit, or misrepresentation is charged, nor does the bill seek for an accounting, or a reformation of the contract. The allegations relative to the mistake in answering a question in the application by reason of ignorance of the English terms used, together with the other allegations as to the acts and conduct of the officers of the defendant, show that these are questions of fact to be tried out on the law side of the court before a jury, in an action upon the insurance contract. An ex-animation of the proofs taken upon these matters, which were the only disputed questions in the case, makes this the more apparent. The demurrer should have been sustained.

For the reasons given, the decree of the circuit court is reversed and set aside, and the bill of complaint dismissed without prejudice, with costs of both courts to defendant.

Carpenter, C. J., and -Grant, Blair, and Moore, JJ., concurred.