text:
    SCHWINGSCHLEGL v. CITY OF MONROE.
    1. Personal Injuries — Sidewalks — Knowledge of Defect— Contributory Negligenoe.
    The fact that the plaintiff in an action for injuries sustained by reason of a defective sidewalk was familiar with the unsafe condition of the walk does not preclude a recovery, if, in passing over the walk, he used such care and caution as a prudent man would ordinarily exercise in view of the danger.
    3. Same — Damages—Pre-existing Conditions — Inorease of Disability.
    Where, in an action for personal injuries, there is evidence that the conditions ascribed by plaintiff to such injuries were due in part to a pre-existing disease, it is the duty of the jury, if they find such theory to be established, to determine to what extent the pain, suffering, and disability were increased by reason of the injury, and to allow a reasonable compensation for such increase of pain, suffering, and disability, and for the expense incurred on account thereof.
    Error to Monroe; Kinne, J.
    Submitted June 17, 1897.
    Decided July 13, 1897.
    Case by Antoine Schwingschlegl against the city of Monroe for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. B. Bragdon and C. A. Golden, for appellant.

      Ira G. Humphrey and Willis Baldwin, for appellee.
   Moore, J.

The plaintiff, a deaf mute, recovered a judgment against defendant for injuries received upon a defective sidewalk. Defendant appeals, and assigns, among others, errors in relation to matters that have been before this court so often it would not be profitable to discuss them. The assignments of error we deem important will be discussed.

The record shows that, in the winter of 1894, plaintiff slipped upon the ice. In March he slipped upon the sidewalk, and sprained his ankle so badly that he had it treated by a doctor. The evidence on the part of the plaintiff indicated that it was nearly, if not quite, well, when he received the injury, June 10th, for which this action is brought. In the winter, prior to the time of the accident, a sewer passing under the sidewalk was torn up. It was afterwards filled as well as could be done in winter weather, and some boards were laid upon the ground to keep people passing over the walk out of the mud. In the spring the earth settled under these boards from two to six inches. The boards were not nailed, but lay flat upon the earth, and sometimes the rain and sun had the effect to warp them so that one of them would roll under the person stepping upon it. There was abundant testimony to go to the jury showing that the municipal authorities had notice of the unsafe condition of the walk. The plaintiff passed over this walk frequently, and had passed over it early in the evening of the same day when the accident occurred. The injury was received about 10 o’clock in the evening. The defendant asked the court to take the case away from the jury for the reason that plaintiff was familiar with the walk, and knew its condition, and in passing over it was guilty of contributory negligence. The court declined to do this, but instructed the jury:

“It appears from the evidence in this case on the part of the plaintiff, and I think from his testimony, that he was familiar with the alleged unsafe condition of this sidewalk. That fact does not necessarily forbid or preclude a recovery for plaintiff, but it imposed upon him the obligation to use that knowledge and act upon that information in passing over that sidewalk. It placed upon him the duty to exercise more than ordinary care to go himself carefully and prudently in view of such recognized danger, and to use such reasonable care and caution as a prudent man would ordinarily exercise in view of such fact, and in view of all the circumstances which surrounded the plaintiff at the time of the alleged accident.”

We think the learned judge correctly stated the law in relation to this feature of the case. Lowell v. Township of Watertown, 58 Mich. 568; Harris v. Township of Clinton, 64 Mich. 447 (8 Am. St. Rep. 842); Dundas v. City of Lansing, 75 Mich. 499 (13 Am. St. Rep. 457); Brezee v. Powers, 80 Mich. 172; Ashman v. Railroad Co., 90 Mich. 567; Corcoran v. City of Detroit, 95 Mich. 84; Dittrich v. City of Detroit, 98 Mich. 245; Germaine v. City of Muskegon, 105 Mich. 213; Whoram v. Township of Argentine, 112 Mich. 20.

It was the claim of the plaintiff that the injuries from which he suffered, and for which he was compelled to go to the hospital for treatment, were received from the fall, June 10, 1894. It was the claim of the defendant that plaintiff’s condition did not result from the fall June 10th, but resulted from tuberculosis and the previous injuries. The defendant asked the court to take the case from the jury, arguing in the court below, as is argued here, that the testimony was undisputed that plaintiff’s condition was the result of tuberculosis. The testimony is in dispute as to what caused the condition of the plaintiff; the testimony of defendant’s witnesses indicating it was caused by tuberculosis and the previous hurt, while the testimony on the part of the plaintiff was that the development of the tuberculosis itself was caused by the injury of June 10th, and would not have resulted in the absence of that injury. The trial judge charged the jury that plaintiff could recover only for the injury of June 10th, and for the results of the injury. He then called the attention of the jury to the evidence in relation to the physical condition of the plaintiff, and the diseased condition called tuberculosis, and instructed the jury, if they found* tuberculosis did not enter into his condition, they might disregard the evidence in relation to it.

“If, however, you find that it has entered into his condition, and does now, and is to a certain extent responsible for his present situation, then I instruct you as follows : Even though you should find that the plaintiff was suffering from a prior injury to the same ankle, and that it had not recovered at the time of the aqcident in question, that would not be a bar to his recovery in this case, but would affect the question of the amount of damages; that is, it would not affect the question of the damages, only it would be then your duty to determine from all the evidence what portion of his pain and suffering and disability was due to the injury in question, and to allow him a reasonable compensation for such increase of his pain and suffering, increased disability, and expense incurred on account thereof, by reason of this accident, and award him such damages as you think, under the evidence in this case, he is entitled to receive, and which would be a just and fair compensation therefor.”

Taking the charge as an entirety, we do not think defendant has any occasion to complain of it.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    BAUDISTEL v. MICHIGAN CENTRAL RAILROAD CO.
    Municipal Corporations — Vacation op Streets — Notice—Jurisdiction.
    Act No. 353, Local Acts 1895, amendatory of the charter of the city of Jackson, which authorizes the vacation of any street or part of street, without application to the court, if all persons interested in the plat, or a “distinct part thereof,” consent thereto, requires the consent of those persons only who have a legal right to compensation on the vacation of the street, and notice to others owning property on the plat is not essential to jurisdiction.
    Appeal from Jackson; Lane, J., presiding.
    Submitted June 18, 1897.
    Decided July 13, 1897.
    Bill by William Baudistel and others to restrain the Michigan Central Railroad Company from obstructing a street. From a decree dismissing the bill on demurrer, complainants appeal.
    Affirmed.

      Richard Price, for .complainánts.

      William IS. Ware and Parkinson & Campbell, for defendant.
   Montgomery, J.

The common council of the city of Jackson assumed to vacate that portion of Park avenue in said city which crossed the tracks of the defendant. This action was taken under the authority of that portion of Act No. 353, Local Acts 1895, which authorizes the vacation of any street or part of street without application to the court, provided all persons interested in the plat, or a distinct part thereof, shall file with the common council their consent to its vacation. The situation of the property, and the relation of the complainants to the subject-matter, may be seen by reference to the case of Baudistel v. Recorder, etc., of City of Jackson, 110 Mich. 357, where a full statement of facts appears. After the determination of that case, the complainants filed a bill in chancery to restrain the defendant from further obstructing that portion of the old street which the council had assumed to vacate. To this bill defendant demurred, and complainants appeal from a decree sustaining the demurrer.

Complainants own no land adjacent to that portion of the highway discontinued, and own none in the same block, nor were the means of ingress and egress to the property of complainants cut off by closing the street. There can be no doubt, therefore, that the legislature might authorize a vacation of that portion of the street without either compensation or notice to complainants. Buhl v. Depot Co., 98 Mich. 596, and cases cited. We think the true construction of the act of 1895 requires consent by those having a legal right to' compensation on the vacation of the street', and that notice to others owning property on the plat is not essential to jurisdiction. Complainants have no such interest as entitles them to maintain this .bill. Reliance is placed upon Horton v. Williams, 99 Mich. 423. The distinction between a street and an alley running through a block, on which the property of complainant abuts, is not only apparent, but was specially pointed out in that case. The present case is ruled by Buhl v. Depot Co. See, also, Kimball v. Homan, 74 Mich. 699.

Decree affirmed.

The other Justices concurred.


text:
    GADD v. STONER.
    1. Wills — Life Estate with Limited Power of Disposal — Ex-ecutory Devise.
    A power of disposal annexed to a devise to testator’s wife of all of his property, to be used “as she may desire and wish for and during the term of her natural life,” will not necessarily defeat a devise in fee to take effect after the death of the wife, if it was the manifest intention of the testator that the power should only be exercised by the wife if required for her proper maintenance and support.
    3. Same — Unauthorized Conveyance — Good Faith.
    In the absence of an express limitation upon the power in the will itself, the law will affix that of good faith, and a conveyance made with the obvious purpose of subverting the intent of the testator will be ineffectual to pass a fee.
    3. Same — Grantee of Life Tenant — Lien for Support.
    The grantee under such a conveyance, who gives back an agreement to support the grantor during her lifetime, may take an estate for the life of the grantor, with a lien upon the land for all services that he may render under his agreement to support, less the value of the use of the land.
    Appeal from Washtenaw; Kinne, J.
    Submitted June 18, 1897.
    Decided July 13, 1897.
    Bill by William Gadd, executor, and others, against Mary E. Stoner and Laura G. Powell, to construe the will of Edward Y. Powell, deceased. From a decree for complainants, defendants appeal.
    Affirmed.

      A. F. & F. M. Freeman (B. M. Thompson, of counsel), for complainants.

      A. J. Saivyer, for defendants.
   Montgomery, J.

On the 14th of March, 1891, Edward Y. Powell, then of the age of 71 years, made his last will and testament, two clauses of which, are in controversy, i. e., the second and fourth. So much of these clauses as bears on the question involved is as follows:

“ Second. I hereby give, devise, and bequeath unto my beloved wife, Laura Gr. Powell, all of my property, both real and personal, and wheresoever situate, to use the same as she may desire and wish for and during her natural life, with full power and authority to grant and convey, in her own name, any part or portion thereof she may elect, desire, or wish, and the title so conveyed by her shall, for the purposes of the same, be perfect and free in the respective grantees or vendee, to all intents and purposes as though it were done by me, and for the purposes of the same shall be considered the absolute title of my said wife; and with full power to sell and buy any other personal property, in the place and stead of any other personal that I may die possessed of, with the avails thereof, that may to her seem necessary, or that she may wish; but any existing personal property or real estate, bought with the avails of other property belonging to me at my death, or other property substituted in its place and stead, and remaining at the death of my said wife, as that of which I may die seised or possessed, or for property bought and placed in its stead, seised or possessed by my said wife in her name, as bought with the avails of my said property, to descend and go, as hereafter expressed, after the death of my said wife, as any and all other property not used by my said wife under the power and authority herein expressed; with the further distinct understanding that any property so remaining at my death, belonging to me, shall be burdened with the care and for the maintenance and support of my said wife, in sickness and in health, for the purposes of maintaining a home, in name and in fact, as we have lived in the past, and according to our station in life, as well as the power and authority hereinbefore granted to my said wife, and at her death to give her a good Christian burial from the property so remaining, as hereinbefore stated.”
“Fourth. After the performance of the bequests hereinbefore stated, and after the death of my said wife, I will, devise, and bequeath all my property, both real and personal, and wheresoever situate, unto the following named persons.”

Then follow specific bequests in detail.

Edward Y. Powell died on the 14th of May, 1893, and his will was admitted to probate on the 31st day of July, 1893. The property of the estate consisted of personal property, inventoried at $723.99, and a farm of 109 acres, inventoried at $4,462. On the 26th of August, 1893, the widow conveyed to Mary E. Stoner, a daughter of deceased, the farm, taking back an agreement for her support during life. The conveyance was of the fee. The complainants, as executor and legatees under the will, file this bill to have the will construed, and to have the effect of this conveyance declared. The circuit court construed the will as charging the estate with the support of Mrs. Powell, and as giving her the right to convey for that purpose, and decreed that, at the election of the defendants, the conveyance might be treated as creating a lien in favor of Mary E. Stoner for all services which she should render for that purpose, less the value of the use of the land. Defendants contended that the will vested in Mrs. Powell an absolute estate, which had been conveyed to Mrs. Stoner.

Defendants invoke the rule that when the fee is bequeathed, or a life estate created, with full and absolute power of alienation, the attempt to create a limited estate in favor of another devisee, by a subsequent clause in the same instrument, fails; and cite, to sustain this contention, 4 Kent, Comm. 270; Dodson v. Sevars, 52 N. J. Eq. 611; McClellan v. Larchar, 45 N. J. Eq. 17; Howard v. Carusi, 109 U. S. 725; Bradley v. Carnes, 94 Tenn. 27 (45 Am. St. Rep. 696); Jones v. Jones, 25 Mich. 401.

This rule is recognized, but it must be understood and applied in connection with such other rules as furnish aid in construing wills, and the cardinal rule is that the real intent and meaning of the testator, as expressed in the will, should be given effect, and that for this purpose all the clauses of the will are to be considered. Bailey v. Bailey, 25 Mich. 185. See, also, Schouler, Wills, §§ 466, 467; Smith v. Bell, 6 Pet. 68; Barnes v. Marshall, 103 Mich. 248. It should also be noted that, in applying the rule contended for by defendants, a marked distinction exists between the case of an express bequest in fee and a case where the will creates a life estate with power to alienate. See this distinction noted in Bradley v. Carnes, supra; Schouler, Wills, § 559. In the latter case the test seems to be whether the will gives an unlimited, or only a modified, power of disposition in the first taker. If the former, it is treated as a conveyance in fee; if the latter, an executory devise may yet be given effect. In Jackson v. Robins, 16 Johns. 588, Chancellor Kent said:

“We may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion.”

See, also, Hinkle’s Appeal, 116 Pa. St. 498; Cory v. Cory, 37 N. J. Eq. 198; Wetter v. Walker, 62 Ga. 142; Rhode Island Hospital Trust Co. v. Commercial Nat. Bank, 14 R. I. 635; Glover v. Reid, 80 Mich. 230.

By the first part of clause 3, which defines the estate bequeathed, i. e., “all of my property, both real and personal, and wheresoever situate, to use the same as she may desire and wish for and during the term of her natural life,” it is altogether clear that but a life estate was created. See Brant v. Iron Co., 93 U. S. 326. This being so, the question is whether the power which follows was intended to be unlimited, or limited to specific purposes. We think it was not unlimited. The testator has manifested an intention of charging his entire estate with the burden of the care of his wife, has given her a power of sale and reinvestment with that end in view, and has just as distinctly manifested the purpose that the residue shall go to certain named legatees. .

It is also contended that, as the will contains a power to sell, and as Mrs. Powell has assumed to make conveyance, the court possesses no power to set aside the sale. In the same connection it is said that there is no limitation on the power of sale. But if the estate vested in her is less than a fee, certainly the limitation of good faith will be affixed by law. It is evident that the intent and purpose of the conveyance made to Mrs. Stoner was to subvei’t the intent of the testator.

We think the learned judge reached the correct conclusion, and his decree will be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    UNION STREET RAILWAY CO. v. SAGINAW CIRCUIT JUDGE.
    1. Street Railways — Forfeiture of Franchise.
    Under 1 How. Stat. § 3548, providing that no street-railway-company shall construct a railway in the streets of any municipality until it shall have accepted in writing the terms and conditions upon which it is permitted to use such streets, a city may properly reserve the right to forfeit the franchise of a company in case of its failure to pay the cost of paving between its tracks.

    2. Same — Insolvency.
    The inability of the company to make such payment affords no legal excuse for its default.
    3. Same — Necessity for Judicial Determination.
    Where the franchise of a street-railway company provides that it may be forfeited by the city for a breach of condition, and the fact of a breach is undisputed, there is no necessity for the city to resort to the courts before proceeding to enforce the forfeiture by removing the tracks from the streets.
    4. Same — Equity—Injunction.
    The circuit judge is justified, however large the interests involved, in refusing a preliminary injunction to restrain a city from enforcing a forfeiture of the franchise of a street-railway company, where it appears that the city is proceeding in exact accordance with the terms of its contract with the company.

      Mandamus by the Union Street-Railway Company to compel Byron A. Snow, circuit judge of Saginaw county, to issue a preliminary injunction restraining the city of Saginaw from removing relator’s tracks from the streets.
    Submitted June 28, 1897.
    Writ denied July 13, 1897.
    The relator either owns or leases the entire street-railroad system of the city of Saginaw, and is, and has been for several years, operating the same. The common council of the city, claiming to act under its charter and contract with the relator, was proceeding by the appropriate resolution to declare the relator’s franchise forfeited, and to take steps to enforce such forfeiture by removing its tracks from the streets. It thereupon filed a bill in chancery in the circuit court for the county of Saginaw, to restrain the city from taking the threatened action. It prayed for a preliminary injunction. The city answered, claiming the right to forfeit the franchise on account of the default of the relator in complying with the terms of its franchise. The court refused the preliminary injunction, and the purpose of this petition is to obtain the writ of mandamus to compel the chancery court to issue a preliminary injunction restraining the city from taking the threatened action until the final hearing of the cause.

      De Forest Paine (G. A. Kent, of counsel), for relator.

      E. L. Beach (Cr. W. Weadock, of counsel), for re- ■ spondent.

       The power of a city to impose conditions when giving consent to a street railway is considered in a note to Galveston, etc., R. Co. v. Galveston, (Tex.) 36 L. R. A. 33.

   Grant, J.

(after stating the facts). The facts are not in dispute. All the material facts alleged in the bill of complaint are admitted in the answer. The rights of the parties can therefore be determined upon bill and answer as effectually as could be done upon a hearing upon proofs.

The city and the relator entered into a mutual contract, evidenced by an ordinance, under which the relator obtained the right to lay its tracks upon and to use the streets under certain conditions. This contract is binding upon both parties, and, when either violates it, it must suffer the consequences agreed upon by. the contract. Section 9 of the ordinance provides for laying, altering, and changing the tracks 'upon the streets, and, in regard to pavements, contains the following provision:

“When any street or avenue in which the track or tracks of said railways are laid shall be ordered paved, repaired, or otherwise permanently improved by the order of the common council, the board of public works shall, upon the completion thereof, make an estimate of the cost of so much pavement or other improvement as shall be included within the limits of said railway track or tracks, and also between the double tracks, and the amount so estimated, except the cost of paving at street intersections, shall be paid by the companies, their successors or assigns, to the city, one-fifth part in one, two, three, four, and five years thereafter, with interest at the same rate as borne by the ‘ Street Improvement Bonds ’ issued by the city for the making of such improvements. The cost of paving all street intersections shall be paid on demand; and the city shall have the right to recover the amount so estimated from said companies; and also the right, in case of default in the payment thereof, or of any judgment obtained therefor, to forfeit, after 30 days’ notice, all rights and privileges of said companies, their successors and assigns.”

Section 10 provides that if the relator—

“Shall willfully and unreasonably neglect to observe and obey such reasonable rules, orders, or regulations as the common council may, under the provisions of this ordinance, make, * * * the common council may, by a vote of two-thirds of the aldermen elect, revoke the privileges and authority hereby granted.”

This section also provides for the service of a 30-day notice upon the relator to comply with its contract, before the city can proceed to forfeit. Under this ordinance, there is now due and unpaid from the relator to the city, for paving, for the years 1895 and 1896, #7,000 or over, and other large amounts still to grow due, and other streets ordered to be paved, for which the relator, under the ordinance, will become obligated to pay other amounts. The reason averred for this failure is that the relator is unable to pay. . It alleges that its directors have advanced $80,-000; that its earnings are not sufficient to meet its charges for running expenses, repairs, and interest.

The sole question, therefore, presented is: Does the insolvent condition of the company furnish a legal excuse for noncompliance with its contract, or, in other words, does the law permit it to use the streets of the city in violation of its contract, without paying the consideration agreed upon, simply because the investment has proved a losing one? If this question be answered against the relator, is it entitled to a preliminary injunction until the hearing ?

It is true that, as alleged, the plant has cost about $500,-000, and that it is mortgaged for $300,000 or more. This, however, does not affect the question. The rights of the parties are not to be determined by the amount involved. There is no doubt about the terms of the contract. Both parties entered into it with a full understanding that the situation now existing might arise, wherein the relator either could not or would not pay the amounts which from time to time it agreed to pay. As a consequence of such neglect or failure, it was solemnly agreed that the city might, through its common council, revoke its franchise, and remove its tracks from the streets. Inability to pay is no excuse. Can one party to a contract be relieved from its performance because he is unable to perform, and the other still be bound ? To so hold would be to introduce a new element in determining contractual rights. The universal rule is that he who fails to perform, from whatever cause, must suffer the consequences which he has agreed to suffer. Corporations form no exception^ to the rule. Inability to pay may serve as an excuse when parties are arraigned for contempt of court for nonpayment, but it bas never been held to furnish an excuse for violating the contract. People v. Gravel-Road Co., 105 Mich. 9.

The case of Shriver v. Bean, 112 Mich. 508, has no application to this case. There the plaintiff, a city officer, was proceeding without the authority of the city, and at a time prohibited by law. In this case the city is proceeding in exact accordance with the terms of its contract, and it requires no citation of authorities to show that, when a party is proceeding in exact accordance with the terms of its contract, courts of equity will not interfere by their restraining process. Counsel for the city concede that, if the contract simply provided for a forfeiture, it would be compelled to proceed in the courts. This rule does not apply where the contact specifically provides that the municipality may declare the forfeiture. ‘ ‘ The distinction between the two cases is that, if the franchise itself provides for forfeiture on breach of certain of its-stipulations, there is no necessity for judicial determination that the breach warrants a forfeiture.” Cros. Electricity, § 160. Here the breach is conceded, and the contact gives the city the option to forfeit. It has exercised this right. There is therefore nothing for a court to adjudicate. The relator’s obligations to the city amount to about $35,000, of which $7,000 is due. It cannot pay. It does not offer to pay. Evidently, there is no expectation that it will be able to pay. It attempts to read into its contract that inability to pay shall relieve it from performance. This would result in making a contract in plain violation of the one made by the parties. This, courts cannot do. When a party confesses that he cannot perform his contract, equity will not inferiere to prevent the other party from enforcing his legal rights.

The contract entered into by these parties is fully sanctioned by the statute. 1 How. Stat. § 3548. This section provides that no street-railway company “shall construct any railway in the streets of any municipality until it shall have accepted in writing the terms and conditions upon which it is permitted to use such streets,” etc. The following authorities fully sustain the city in its proposed action, and the respondent in refusing to issue the writ of injunction: City of Belleville v. Citizens’ Horse-Ry. Co., 152 Ill. 171; Pacific R. Co. v. City of Leavenworth, 1 Dill. 393; People v. Gravel-Road Co., supra; Spokane St. Ry. Co. v. City of Spokane Falls, 46 Fed. 322. It is not claimed on behalf of the city that any of the property of the relator is forfeited to its use. It simply claims the right, under the contract, to order the relator to remove its property, and, upon its refusal, to remove it as an obstruction to the streets. The circuit court did not abuse its discretion in refusing to issue a preliminary injunction. This is not a case requiring a judicial finding, under the rule of Flint, etc., Plank-Road Co. v. Woodhull, 25 Mich. 99 (12 Am. Rep. 233), City of Detroit v. Plank-Road Co., 43 Mich. 144, and Shriver v. Bean, supra.

The writ is denied.

Long, C. J., Montgomery and Moore, JJ., concurred with GrRANT, J.

Hooker, J. I concur in the above. I also think the granting or denial of an injunction a matter of discretion, which is not reviewable.


author: Hooker, J.

text:
    HOFFMAN v. PACK, WOODS & CO.
    1. Appeal — Title—Objection not Raised Below.
    Where an instrument, offered in evidence by plaintiff as a certified copy of a patent from the State, was received without objection, defendant cannot urge on appeal that it was not what was claimed for it.
    2. Same.
    It will be presumed in such case that the patent was regular, though verdict was directed for defendant, if neither the trial judge nor defendant’s counsel pointed out any flaw therein at the trial.
    3. Same — Presumptions—Authentication op Instruments.
    Where the bill of exceptions does not purport to contain all of the testimony, it will not be presumed, for the purpose of sustaining the action of the trial court in directing a verdict for defendant, that there was error in the admission of a bill of sale offered by plaintiff in proof of his title, because such instrument w^as not authenticated by proof of its execution, f and that it was thereafter disregarded by the court for that reason.
    4. Evidence — Board op Supervisors — Record op Proceedings— Certified Transcript.
    A copy of portions of the record of the proceedings of the board of supervisors, purporting to show the action of the board with reference to the equalization and apportionment of taxes, and certified by the county clerk to be a correct copy, and to contain all entries appearing upon the record in relation to that subject, is admissible in evidence to show the invalidity of the tax levy, and may be given the same force as a complete record, where no offer is made to supplement it.
    5. Same — Examination of Record — Witnesses.
    The county clerk may testify, from an examination of the record of the board of supervisors, that the signatures of the chairman and clerk are wanting, and that a certified transcript of a portion of the record comprises all that appears therein upon a particular subject.
    6. Appeal — Tax Cases — Briefs of Counsel.
    Upon the appeal of a case involving the validity of tax deeds covering taxes for several years, the briefs of counsel should carefully collate the statutes and decisions applicable to each point raised, and contain references to the testimony, objections, rulings, and exceptions.
    Error to Iosco; Simpson, J.
    Submitted June 15, 1897.
    Decided July 13, 1897.
    Replevin by Wesley L. Hoffman against Pack, Woods & Company and the Oscoda Boom Company. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Phillips & Jenks, for appellant.

      O. E. M’Cutcheon and O. 1Í. Henry {M. J. Connine and George L. Alexander, of counsel), for appellees.
   Hooker, J.

The plaintiff brought replevin for a large quantity of logs which were cut and placed in the Au Sable river by one Rasmuson and sold to the defendants. It is not claimed that these logs, or the land from which they were cut, were ever in the possession of the plaintiff or his assignor; but he attempted to prove title to the logs by showing that they were wrongfully cut and removed from the land of his brother, John M. Hoffman, and assigned to him by said brother by a written bill of sale. To substantiate his claim, it was necessary to show title to the land in his assignor. If he failed in showing this, it is clear that he was not entitled to a verdict. 'The court directed a verdict upon the ground that the plaintiff had failed to show title to the land. The evidence of plaintiff’s title consisted of the following:

1. A certified copy of patent from the State of Michigan to William Sanborn of the premises, dated December 20, 1872.

2. Proceedings of the probate court, showing that Kate Sanborn Jenks was by said court declared to be the sole heir of William Sanborn, dated July 15, 1895.

3. A quitclaim deed dated October 22, 1880, from Kate Sanborn Jenks to Frank Hoffman.

4. A deed dated April 18, 1892, from Frank Hoffman to John M. Hoffman.

5. A bill of sale from John M. Hoffman to Wesley L. Hoffman, the plaintiff, reading as follows:

“Port Huron, Mich., July 16, 1894.
“For a valuable consideration to me paid, the receipt whereof is hereby acknowledged, I hereby sell, assign, and transfer to Wesley L. Hoffman all logs, trees, and timber cut and removed from the south half of southwest quarter of section 36, town 27 north, of range 2 west, in the State of Michigan, and authorize him to recover the same by suit or otherwise. And I further assign and transfer to him all rights of action arising from the cutting and removing of said timber, and I further authorize the bringing of whatever suit or suits he shall deem necessary to enforce the rights hereby transferred, in his own name.
“John M. Hoffman.”

Counsel for the defendants say that the certified copy of a patent from the State proves nothing; that, if the patent issued, there is no provision of the law for the certification of a copy; and that under the case of Bradley v. Silsbee, 33 Mich. 328, a copy, though certified by the secretary of state, would prove nothing. What is meant by “a patent from the State” is not doubtful, and, when counsel permitted the reception of this copy without objection, they precluded themselves from afterwards denying that it was what was claimed for it, viz., a copy of the patent. It is urged that the court may have found such patent inadequate to convey title; but the bill of exceptions says this patent was of the land in question to William Sanborn, and, we think, justifies the presumption that it was regular, in view of the fact that neither counsel nor the trial court mentioned any flaw in it upon the trial. The point is without merit.

Counsel for defendants say that there is nothing to show that the bill of sale was authenticated by proof of its execution, and nothing in the record shows that it was. It is said to have been admitted over the defendants’ objection, and that we may find that the court disregarded it. In other words, we may presume error in the admission of the instrument (which is not shown, for counsel for the defendants themselves say in their brief that all of the testimony is not in the bill) in order to avoid error in his decision of the case. We think this would be more ingenious than just, and that we should not conclude that the judge lulled the plaintiff into security by receiving this evidence, merely to disregard it, thereby denying him the opportunity of reviewing its admissibility and effect, as well as the benefit of it.

We think it unnecessary to discuss the necessity for proving the execution of the deed, especially where it is received without the statement of a grotind for the objection made to its introduction; and we should not be inclined to presume that a man who held a patent for land from the State had no title, because the federal grant to the State was not proved, where counsel have barely raised, but not discussed nor cited authority upon, the question.

It is claimed that the plaintiff failed to make out his own title through Mrs. Jenks; but, as the evidence is not all here, we cannot say that there was not proof of the death of William Sanborn, and the identity of Mrs. Jenks as his heir; and, while the judge might have found that these were the weak spots in his claim, he did not, for his charge, directing a verdict, followed immediately his statement that he was “not satisfied that there is such a defect in the proceedings as to destroy these tax titles.” It thus appears that he found that the defendants’ tax titles*cut off the alleged title of the plaintiff. If he was right in this, we need not consider the plaintiff’s title. If wrong, the judgment must be reversed, unless we can say that the plaintiff failed to show a prima facie title, which manifestly we cannot, as all of the evidence is not before us. We may therefore eliminate all questions regarding the plaintiff’s prima facie case, and assume that it was established, which leaves only the validity of the tax titles, and the questions arising on the introduction of evidence in relation to them.

The defendants sought to prove their title by introducing tax deeds covering the years from 1875 to 1889, inclusive. Upon rebuttal the plaintiff offered what purported to be transcripts of certain portions of the record of the proceedings of the board of supervisors and township boards, — among others, what purported to be a record of the reports of committees on equalization and apportionment, and the adoption of the reports, for the years 1879,1880,1884, 1885, and 1886. To this document was appended the certificate of the county clerk that this exhibit contained copies of all entries in the journal relating to such matters, and that the same were correct copies. He also testified that the record was not signed by the chairman or clerk. It does not appear to be denied that these documents show fatal defects, but they were excluded on the ground that they were not properly certified, in that it was not competent for the clerk to certify that a part of the records comprised all upon a particular subject (as that involves his judgment), and that the record was not, i. e., did not purport to hav-e appended the signatures of the clerk and chairman. The court’s opinion seems to have been that the judgment of the clerk as to whether the transcript comprised all upon the subject, and whether the record was signed, was incompetent. The clerk was sworn, and testified to an examination of the record of which he was the custodian, and the accuracy of the copy certified. The court directed a verdict for the defendants upon the ground that the plaintiff had failed to show that the defendants’ tax deeds, or .some of them, were invalid. In response to a motion by the defendants’ counsel to “direct a verdict upon the whole record for the defendants,” the court said:

“I think the statute says that a certified copy shall be evidence of the proceedings. There are some proceedings that you have to file all the papers to show jurisdiction. Now, I have been looking over this testimony, testifying to the record of the township clerks, and the only doubt arises in my mind whether a person can go to the county clerk or township clerk, and take his word for it that this is the record, and all of it, and come in and swear that it is all of it, — whether that is proper evidence.
“Mr. Jenlcs: In this case the witnesses have not taken the word of anybody. They swear from an inspection of the records.
“rlhe Court: You say there are the records, and all of them; you say that all you know about that is what you were told by one who was not under oath; in other words, whether Mr. A. can go to the township clerk, and say that is the record, and all the record, and he can look it over, and come in and swear in this court that this is the record, and all of the record. The clerk will not be liable for anything that he said, and the man can say that he was mistaken, and he would not be guilty of perjury. I think the testimony you gave in regard to the township records should be stricken out. I shall strike it out. (Exception taken.) I shall strike out all the testimony given in regard to the records of the township clerks of the various townships of Crawford county in this case. (Exception taken.)

Again, in discussing the certified copies, he said:

“Now, I have admitted these records, and they are in here for what they are worth. Of course, it is rather a blind way to ascertain how the records do stand. You rely upon the testimony of the clerk and the copies he has produced, and you rely upon the facts upon which the board acted in which certain matters were shown,- — that they did not sign the record.
“Mr. Jenlcs: We make additional objections besides those.
The Court: I haven’t any proofs here but what they did sign the records at the board meeting some time. I don’t know as that would make a bad record, where the chairman and clerk omitted to sign on certain days. I do not know as it would be necessary for them to sign every day, if at the end of the session they signed the journal. I am not satisfied that there is such a defect in the proceedings as to destroy these tax titles. If the whole records were here, we could have a better idea than we now have. I do not know that I ought to admit any of these records, but I have done it. I never had any such proofs presented to me before.
“Mr. Jenks: I would prefer that your honor rule them out, and have the question presented squarely on that point.
“The Court: I think I shall hold that you have not shown title in the lands in question, — such a title as would entitle you to recover. Now, then, on the other side, you waive the return of the property.
“Mr. Alexander: Yes; and we ask judgment for its value, $1,360.62, with interest from October 2, 1894, $1,447.86.
“The Court (addressing plaintiff’s counsel): I do not think you have defeated the tax title.”

Thereupon a verdict was directed for the defendants.

The court refused to consider the certified copies because they did not contain all of the record of the day or session of the board. He declined to consider the testimony of witnesses as to contents of the record because they could not know the genuineness of the records. We think that those parts of the record of the board of supervisors that were certified or proved by sworn copy were admissible. They certainly showed something about an attempted equalization and apportionment, and, if they included all that the board did in the matter, it would show some or all the tax levies invalid. If these records seemed to show completed action by the board, the court would have been justified in treating it as a complete record and acting upon it, especially as no effort was made to supplement it. Again, the clerk testified that there was nothing further to be found on the subject; and this, instead of being contradicted by other experts, is met by the technical objection that the full record is necessary to prove the negative, because it involves the judgment of the clerk. We cannot believe that it is necessary to produce the records of the board for the entire session, including everything from each roll-call to the lists of claims pre. sented and allowed, to show that the board attempted tó equalize the rolls, or that the officers failed to sign the record. It is no uncommon thing to call witnesses to prove the aggregate of certain items in books, or to relieve the court from tedious examinations to ascertain whether items are entered therein by showing by one who has examined that they are not. This court held in Maxwell v. Paine, 53 Mich. 30, that it was competent to thus prove that the proceedings of a common council failed to show certain action, just as in this case the clerk testified that the signatures were wanting, and that nothing in relation to equalization, beyond what was in the transcript, was to be found in the records. We think the court erred in striking out this proof, or, what was equivalent, disregarding it.

The condition of the record and briefs forbids a more extended examination of the other questions in this case. Innumerable points are raised, and very few references to the record or to authorities are made. There is a vast amount of detail in examining the validity of tax deeds covering taxes for a dozen years, and briefs should carefully collate the statutes and decisions applicable to each point raised, and contain references to the testimony, objections, rulings, and exceptions.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    JENISON v. CONKLIN.
    L Taxes — Report of Sale — Sufficiency.
    Section 66 of the tax law of 1889 (3 How. Stat. § 1170g5), requiring the county treasurer to make and file with the clerk of the court a report of his sale of lands for delinquent taxes, “therein referring to the tax record for the particulars thereof,” was sufficiently complied with by the filing of a report, properly addressed and signed, stating that the treasurer, on the 1st day of May, 1893, at the annual sale, “ offered for sale all delinquent taxes for the year 1890, and which do not appear on the State list, and referring to the tax record for the particulars thereof.”
    2. Sajie — State Tax Lands — Void Sale.
    A sale of land for delinquent taxes under the tax law of 1889 was not invalidated by the failure of the purchaser to buy at the same time the State’s interest in the land under a sale for a previous year, as required by section 62 of the act ( 3 How. Stat. § lllOpl), where such prior sale to the State was void.
    Error to Ottawa; Padgham, J.
    Submitted June 18, 1897.
    Decided July 13, 1897.
    Ejectment by Luman Jenison against John Conklin and wife. Prom a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Charles E. Soule (George A. Farr, of counsel), for appellant.

      C. O. Smedley (John W. Powers, of counsel), for appellees.
   Grant, J.

This is an action of ejectment. Plaintiff showed title from the government, and two tax deeds, and rested. Defendants introduced two tax deeds subsequent to those of the plaintiff. Defendants were in possession. One of their deeds was for the delinquent taxes of 1889; the other, for 1890. The court held the deed for the taxes of 1890 valid, and directed a verdict for the defendants. Both parties concede that the deed for the taxes of 1889 is absolutely void.

It is contended by the plaintiff that the deed for the taxes of 1890 is void because no report of sale was made by the county treasurer, as required by law; and he cites Jenkinson v. Auditor General, 104 Mich. 34; Millard v. Truax, 99 Mich. 157. The record in the county treasurer’s office shows a sale duly made on May 1, 1893, in pursuance of which, July 12, 1894, a deed was made to defendant John Conklin by the auditor general. On May 15th the county treasurer made the following report:

“To the County Clerk of the County of Ottawa:
“Sir: I herewith wish to report to you that on the 1st day of May, 1893, at the annual sale, I offered for sale all delinquent taxes for the year 1890, and which do not appear on the State list, and referring to the tax record for the particulars thereof.
“Henry Pelgrim,
■ “County Treasurer.”
Upon this report was the following indorsement:
“No. 1,771. Report of Tax Sales of 1890 Tax.
“Received and filed May 15, 1893.
“George D. Turner, Clerk.”

The statute (Act No. 195, Pub. Acts 1889, § 66) requires the county treasurer to “make and file with the clerk of the court a report of such sale, therein referring to such tax record for the particulars thereof.” We think this report was.a sufficient compliance with the law.

This land was held by the State under the sale the previous year for the taxes of 1889. When defendant bid it in for the taxes of 1890, he was informed by the county treasurer that he must also buy the State’s interest in said land, and that that sale would take place May 20th. Defendant appeared at that time, and paid the treasurer the amount due the State. The report of that sale was made May 24th. The court held that no title passed to the State for the taxes of 1889 under the void decree, and that, therefore, this latter sale did not affect defendant’s title under his purchase May 1st. We think his holding correct. A sale absolutely void conveys no title, and any proceedings under it were likewise void, and had no tendency to impeach the defendant’s title.

Judgment affirmed.

The other Justices concurred.


text:
    SHELEY v. BROOKS.
    1. Evidence — Agreement Reduced to Writing — Preliminary Negotiations.
    Evidence of oral negotiations preliminary to the execution of a written agreement cannot be considered by the jury as independent evidence of the agreement.
    2. Same — Fraud and Mistake — Burden of Proof.
    It will be presumed that a written agreement bearing the genuine signatures of the parties in interest embodied the terms of the preliminary oral negotiations, and the. burden is upon an executor to show by affirmative proof that it was otherwise, and that the signature of his decedent was obtained thereto by fraud or mistake.
    3. Estates of Decedents — Settlement—Contracts—Consideration.
    An agreement by residuary legatees that the proceeds of an insurance policy not otherwise disposed of by the will should be paid to their mother, who was the testator’s widow, made after a complete settlement fixing the rights of all the parties to such estate, without affecting their rights to the policy, is void for want of consideration in the absence of fraud or mistake in making the settlement, but is supported by a sufficient consideration if made by way of adjustment of fraud or mistake in the settlement.

      ' 4. Same — Order for Payment — Conditions—How Construed.
    An order by residuary legatees authorizing persons appointed trustees of the testator’s estate to pay to their mother the amount of an insurance policy belonging to the estate after all the debts of such estate had been paid, “provided she survived the payment of such debts,” entitled the mother’s executor to the payment of such proceeds, where she lived 15 months after the order was given, and the trustees during such time had sufficient funds to pay all debts, and the will provided that they should be paid at once.
    Error to Wayne; Aldrich, J., presiding.
    Submitted February 9, 1897.
    Decided July 16, 1897.

      Assumpsit by George A. Sheley, executor of the last will and testament of Ann E. Sheley, deceased, against Emma S. Brooks and Elizabeth S. Clark, to recover the amount of an insurance policy alleged to have been assigned to decedent. From a judgment for plaintiff, defendants bring error.
    Reversed.

      David W. Brooks and Julian G. Dickinson (Otto Kirchner, of counsel), for appellants.

      Gorliss, Andrus & Leete (II. H. Hatch, of counsel), for appellee.
   Montgomery, J.

Alanson Sheley died, at the age of 84, on November 7, 1892, testate, leaving a large estate valued at upwards of $600,000. This estate consisted of real estate in the city of Detroit, Port Huron, and other parts of the State, bank stock, stock in other corporations, and notes. Plaintiff is the son of Alanson Sheley, and the two defendants are his daughters. The will of Mr. Sheley gave to his widow, Ann E. Sheley, less than she would have been entitled to under the statutes of descent and distribution. The plaintiff was remembered in the will, but the property bequeathed to him was much less than that given to each of the daughters, and he was not given the power of disposition of a portion of that which was bequeathed to him. The two defendants were made residuary legatees. After the death of Mr. Sheley, the family was called together, and the will read. Plaintiff was disappointed and dissatisfied, and his mother, Ann E. Sheley, it would appear, was also displeased. Following upon this, certain negotiations were had between the parties, tending to an adjustment of any differences. Mrs. Sheley made a claim to $2,000 of bank stock which had not been formally transferred to her in the lifetime of her husband, and also claimed to be entitled to the insurance on the life of one Horace Hallock, which had been assigned to Mr. Sheley during his lifetime, the policy having matured by the death of Horace Hallock, very shortly after the decease of Mr. Sheley. It appears that on the 14th of November, 1892, the parties entered into a written agreement, providing that Frederick J. Stevens, Lorenzo E. Clark, and Alanson Sheley Brooks should act as trustees of the estate, the parties contemplating that the will of Mr. Sheley should not be probated except necessity should arise therefor. This agreement recited the provisions of the ¿will of Alanson Sheley, and recited the purpose of the parties to effect the distribution of the property and estate of the deceased in accordance with his intention expressed in his will, and then provided that the property be vested in the trustees for the purposes defined, and further provided that the trustees should pay to George A. Sheley the sum of $10,000 out of the residuary estate bequeathed to the defendants in this case, for the purpose of paying indebtedness owing by George, upon vouchers being produced and audited by J. G. Dickinson as attorney for the parties, and, after full settlement of all his indebtedness, the balance to be paid to him direct. This agreement made no reference to the Hallock insurance, but on its face purported to contain the whole agreement between the parties relating to the estate of Mr. Sheley. On the 11th of January, 1893, the two defendants executed and delivered to their mother the following written instrument:

“Detroit, Mich., January 11, 1893.
“To L. E. Clark and A. S. Brooks, Trustees of the Estate of Alanson Sheley, Deceased.
Gentlemen: We, as the residuary legatees in said estate, hereby authorize you to pay to our mother, Ann E. Sheley, the amount ($5,032.37) which will be collected by you from the insurance policy upon the life of Horace Hallock, now deceased, belonging to said estate, after all the debts of said estate shall have been paid, provided she survives the payment of such debts. We authorize you to make this payment because we understand from our mother that she would like to have it done, and that this provision for her, in addition to those already made for her, will be satisfactory to her in all respects and in accordance with her wish.
“Yours very truly,
“Elizabeth S. Clark.
“Emma S. Brooks.”

It will be seen, therefore, that, so far as the written engagements of the parties show, there was first a complete adjustment of the rights of the parties under the will in and to the estate of Alanson Sheley, followed some weeks later by the order above quoted. Defendants assert that this order was given at the request of their mother, without consideration. The plaintiff presents another theory.

This action is brought to recover the amount of the Hallock insurance. There is no claim but that the insurance policy in the hands of Alanson Sheley was his property,'or that it did not constitute a part of his estate. But the plaintiff presented two theories below, both of which were given to the jury, and under either of which a recovery may have been had. The first theory was that it was agreed unconditionally between Ann E. Sheley arid her two daughters, the defendants, that the proceeds of the Hallock policy, when collected, should be paid by defendants to Ann E. Sheley. The second theory was that the written instrument of January 11th was an agreement to the like effect, upon a consideration. The testimony offered to establish the first of these two theories was that of plaintiff himself, who gave testimony tending to show that at the time .the trust agreement above referred to was executed, or shortly before, another agreement was executed between the same parties, in which it was provided in terms that the Hallock insurance should be paid to Mrs. Sheley. His testimony shows that the last agreement signed was the one above referred to, in which no such undertaking occurred. But the witness further testified that this paper did not contain all the matters and agreements; that he discovered this when he signed the last paper; that these papers were to be simply duplicates; and in another place he testifies that he signed the three copies under the impression that he was signing three copies of the original. On the part of the defense it appears that, in the first draft of the agreement between the parties, there was a provision that the Hallock insurance should be paid to Mrs. Sheley. But the testimony of the defense is very positive that but one agreement was actually signed; that this provision was eliminated before the agreement was signed by any of the parties; and that there was never an agreement consummated by _ which the defendants undertook to pay or cause to be paid to Mrs. Sheley the Hallock insurance, prior to the written order of January 11, 1893.

Under this state of facts, the jury were instructed as follows:

“Plaintiff claims that there is evidence in the case tending to show that after the death of Alanson Sheley, and prior to the making of the order of January 11, 1893, a contract was entered into between Ann E. Sheley and the defendants, whereby, in consideration of Ann E. Sheley foregoing her statutory rights, as widow of Alanson Sheley, to dower rights in his lands, and as distributee of his personal property, and in consideration of her accepting the provisions of the will, they consented and agreed, without qualification and unconditionally, to pay to the said Ann E. Sheley the proceeds of the Hallock insurance policy, or its equiv&lent in amount; and the jury are instructed to consider all the evidence in the case bearing upon this claim, and to decide whether it is true. I will say further as to this written agreement: If you find that that agreement, as introduced here in evidence, was signed without any fraud or mistake, then that would be binding, and that would be conclusive as to the agreement of the parties, no matter what former talks they had had, and that any former talks should not be considered by you, only in determining the question as to whether this agreement was signed and understood by all the parties, and signed without fraud or mistake, and embraced the contract of the parties. ”

We think this instruction is faulty in several respects. Under the evidence adduced, whatever agreement the parties entered into was in fact reduced to writing. It is true, there is testimony tending to show that the three purported duplicates did not correspond, and this was a question for the jury. But, under the instruction, the jury were at liberty to consider the preliminary oral negotiations as independent evidence of such an agreement. This was error. Further, the latter part of the instruction would imply that the burden of proof rested upon the defendants to show that the instrument introduced in evidence was signed without any fraud or mistake, or, in other words, that it embodied the oral agreement between the parties. This is manifestly prejudicial error. There is no dispute that the agreement had the genuine signature of Ann E. Sheley, and the burden was upon the plaintiff to overcome this testimony by affirmative proof of fraud or mistake; and, while we are not prepared to say that there was no evidence upon this point, the jury should have been properly instructed as to the presumption, and the burden left with the plaintiff, where it belongs. And the question obviously was, what was the written agreement between the parties? Unless there was an agreement reduced to writing, and signed by the parties, embodying this proposition, there was no evidence of any fraud or mistake; and while the previous negotiations might be admissible, as bearing upon this issue, they could not be treated as independent evidence, sufficient to sustain the claim of a valid, binding agreement, for, admittedly, the agreement between the parties was reduced to writing, and was either the instrument produced and introduced in evidence, or some other, which was signed by the parties, and is not produced.

The circuit judge further instructed the jury that if the jury should find that the paper bearing date January 11, 1893, was intended as a compromise and adjustment of matters pertaining to the will of Alanson Sheley, such an agreement would be sustained on grounds less than would be required between strangers, for the reason that the law favors family settlements; and, further, that the waiver by Ann E. Sheley of her rights under the statute of distribution, to the estate of her deceased husband, and her consent to accept the provisions of the will, was sufficient consideration for the agreement on the part of defendants to give her such interest in the estate as they agreed to give her. This is undoubtedly correct as an abstract proposition, provided that in the first instance there was such an agreement between the parties; that is, if the claim of plaintiff is maintained that the actual written agreement between the parties was not the one which was produced by the defendants, but was another, containing this agreement to pay Mrs. Sheley the Halloclc insurance, there was undoubtedly in the adjustment of the estate a sufficient consideration to support it. But, in the absence of fraud or mistake, that adjustment completed the settlement of the family relations, and fixed the rights of all the parties in the estate of Alanson Sheley. Therefore, in the absence of fraud or mistake, there was no consideration to support the agreement of January 11, 1893. We think, also, that the reverse of this proposition is true,— that, if fraud or mistake was shown, an adjustment of this fraud or mistake would afford a sufficient consideration for the engagement of January 11th.

In submitting the first proposition of the plaintiff, namely, that, if there was a contract absolutely to pay the Hallock insurance to Mrs. Sheley, the plaintiff could recover, the court statpd that this should be qualified by the statement that if Ann E. Sheley accepted the writing of January 11, 1893, as a modification of the original contract, then, and in that case, the agreement of January 11th would fix the rights of the parties. While, in view of the construction which we feel impelled to give this instrument, this is not very important, yet we think it conclusively appears that the agreement of January 11th was intended as a modification of the original contract, and from thence on became the contract between the parties, as it covered the whole subject of the Hallock insurance, was accepted and received by Mrs. Sheley, and never repudiated. See Seligman v. Ten Eyck's Estate, 49 Mich. 104.

This brings us to a consideration of the question as to the rights of the parties under the agreement of January 11th, assuming that there was a consideration for it. This instrument should be construed, we think, in conneétion with the trust agreement. As before stated, the trust agreement recited the execution of the will, and then provided that the purpose was to carry into effect the disposition of the estate in accordance with the testator’s manifest intention, as expressed in the will. The will directed that any debts unsettled at the time of the death of the testator should be at once paid. The trust agreement directed the trustees to take possession, complete an inventory, ascertain and make a complete schedule of the debts and liabilities of the deceased, recover and collect all demands due and owing the deceased, and receive all income and rentals arising out of the present investments and leases belonging to the estate, and to pay the lawful indebtedness and funeral expenses of said deceased. Then followed a provision to pay and carry out the bequests mentioned in the will, and other provisions. The defendants contend that the agreement of January 11th, in the nature of an order, if on sufficient consideration, amounts to an equitable assignment of the amount of the Hallock insurance, subject to the conditions named in the order, and that these conditions were that the debts should all be paid during the lifetime of Mrs. Sheley, as a condition precedent to any right to assert a claim under the agreement, and that without regard to whether the time consumed was reasonable or unreasonable; that the delay, if any, was the delay of the trustees, and not the defendants; and that they are not responsible for it. Assuming that this agreement was made upon a sufficient consideration, we think it should be construed in the light of the situation as it then presented itself to the parties. The trustees had entered upon their trust on the 14th of November, 1892, to execute a will which provided that the debts should be at once paid. We think the parties did not contemplate that the payment of these debts might be postponed indefinitely by the trustees. I'Ve think, rather, that this provision was inserted to express the intention of the parties that the claim was subject to the debts of the estate, and that it should not be demanded until the trustees should, acting under the terms of the will, have reasonable opportunity to make payment, and to demonstrate this fact. It appears by the record that Mrs. Sheley lived until the 2d of February, 1894, nearly 15 months after the appointment of these trustees. It further appears that within this time bank stock amounting to §75,000, or thereabouts, was transferred to the residuary legatees,-and an interest of at least §42,000 in a copai’tnership of which Alanson Sheley was a member in his lifetime was taken by them; and it is beyond question that there were ample assets to pay the debts. This being so, we think the subsequent delay of the trustees could not defeat the right of Mrs. Sheley to demand payment of this claim, and particularly as property and funds sufficient to discharge the indebtedness have found their way into the hands of the defendants. See Calkins v. Smith’s Estate, 41 Mich. 409.

We think the case could properly be presented to the jury upon the theory that if the written agreement produced by the defendants was not the agreement which the parties signed as a binding agreement, but there was another binding written agreement, and Mrs. Sheley was induced to sign the paper in question by fraud or mistake, then there was a sufficient consideration in th'e adjustment between the parties to support the agreement of January 11, 1893, which must be held to be the only existing agreement between the parties relating to the Hallock insurance. In the absence of such satisfactory-proof of mistake or fraud as would support the claim indicated, this agreement was without consideration. If upon consideration, the construction of the instrument should be in accordance with the views herein expressed.

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

Hooker and Moore, JJ., concurred with Montgomery, J. Long, C. J., and Grant, J., concurred in the result.


author: Grant, J. Montgomery, J.

text:
    AVERILL v. JACKSON CITY BANK.
    Administrator’s Sale — Collateral Attack — Irregular Notice —Effect of Confirmation.
    An administrator’s sale, duly confirmed by the probate court, will not be set aside in a collateral proceeding because the notices of sale, instead of being posted in three public places in the ward in which the property was situated, as provided by 2 How. Stat. § 6040, were posted in three public places just outside of the ward. Montgomery, J., dissenting.
    Error to Jackson; Lane, J., presiding.
    Submitted February 10, 1897.
    Decided July 16, 1897.
    Ejectment by Nathan K. Averill against the Jackson City Bank. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Melville McGee, for appellant.

      Wilson & Cobb, for appellee.
   Grant, J.

The sole objection made to the sale in this case is that the notice was not posted in three public places in the ward where the property was located. The defendant is a good-faith purchaser, and has spent a large sum of money in improving the property. The notice was posted in three of the most public places in the city,— one being at the courthouse in the Fourth ward, and just across the street from the First ward, in which the property was located; one at the post-office, also in the Fourth ward, being less than one block from the First ward; and the other at the Hibbard House, in the Fifth ward, and directly across the street from the First ward. The notice was also published in a newspaper in strict compliance with the law. The sale in every other respect was valid. Plaintiff’s guardian was served with notice of the proceedings. The sale was open and notorious. Many bidders were present, and plaintiff’s guardian appeared to protect his interests. The property was sold at its full value. Plkintiff received the benefit thereof, and now seeks to avoid the' sale on account of a defect which in no wise prejudiced him or the estate. The claim is unconscionable, and defendant’s title should not be set aside unless the strict rules of law demand it. 2 How. Stat. § 60?4, provides that—

“No action for the recovery of any estate sold by an executor or administrator under the provisions of this chapter shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within five years next after the sale. ”

This and other statutes show it to be the policy of the law to protect these sales from attack when they have been fair. It is a wise policy; otherwise estates would be sacrificed, for parties would not buy at full value if it were known that years afterwards their title was likely to be attacked, and held void.

Plaintiff seeks to have this sale declared absolutely void because it appears that the administrator did not give “notice of the time and place of sale as in this chapter prescribed.” Technically, this notice was not posted in the places required by law, but was posted in places more likely to secure a good sale. In Schadle v. Wasey, 70 Mich. 414, the notice was not published in the newspaper which the law required, but the court refused to hold the sale void for this reason. That case settled the law of this State that, when these sales are confirmed by the court, they will not be set aside for defective notice in a collateral proceeding. In order to hold this sale void, we must overrule that decision.

In Osman v. Traphagen, 23 Mich. 88, the court, speaking of an administrator’s sale, say:

“It was a judicial sale, and was confirmed. In order to confirm it, the judge of probate was required to find that it was legally and fairly made. ■ The court had jurisdiction to inquire whether the sale made by the administrator alone was legal. It was the duty of the court to make that inquiry.”

In Perkins v. Fairfield, 11 Mass. 227, the sale was granted upon an erroneous and unfounded certificate of the judge of probate, and no bond was given as the statute required. The sale was sustained, the court holding that the purchaser had a right to rely upon the order of the court as an authority emanating from a competent jurisdiction, and that it was too late to say that the neglect to file a bond was fatal to the title.

In Heirs of Ludlow v. Johnson, 3 Ohio, 561, it appears that the land was sold by the administrator contrary to law, because the real estate could not be sold until it was ascertained that there would be a failure of personal assets. In a collateral attack the court refused to allow this to be interposed as a defense. In the opinion the court say:

“When a sale has been made, and its validity is questioned, this court will go no further back than to inquire whether it was ordered by competent authority. So far as the interests of the purchaser are concerned, we consider such orders equally available as judgments. The former can be no more impeached collaterally, because there was an .abundance of personal estate to have satisfied all debts, than the latter can by showing that the evidence under which they were recovered was insufficient.”

See, also, Stall v. Macalester, 9 Ohio, 19.

In Florentine v. Barton, 2 Wall. 216, the court say: “The purchaser under such a sale is not bound to look further back than the order of the court, or to inquire as to its mistakes.”

In Satcher v. Satcher, 41 Ala. 26, the statute provided that “no order for the sale of any land belonging to any estate shall be made when there are minors or persons of unsound mind interested in such estate, unless the probate court shall have taken proof by deposition, as in chancery cases, showing the necessity of such sale,” etc. It was claimed that every sale made without compliance with that statute was wholly void. The court held otherwise. See, also, Eliason v. Bronnenberg, 147 Ind. 248.

In Palmer v. Oakley, 2 Doug. (Mich.) 433, 496 (47 Am. Dec. 41), it was objected that the notice of the guardian was insufficient, as it was given before the bond was executed. The court in that case said:

“All that a purchaser at a judicial sale is bound to look to with a view to his protection is to see that the court by whom the sale was authorized was empowered to make the decree. If the court had the power, the failure of the guardian, as in this case, to fulfill certain directions which the law imposed on her, should not and cannot prejudice the rights acquired by such purchaser.”

At that time the present statute was in existence. Rev. Stat. 1846, p. 314.

If, in our judgment, the former decisions of this court upon this subject were wrong, I do not think it wise for us to overrule them, especially in a case where the effect would be to defeat, rather than to secure, justice. The effect of this decision would be to unsettle many titles based upon sales made under the orders and judgments of the probate court. The language of this court in Palmer v. Oakley, supra, is applicable here:

“If such a rule were to obtain, but few purchasers would be found at judicial sales; for but few would incur the hazard of purchasing and paying their money, when the purchase so made may, at the distance of 10 or 15 years, be held void, in consequence of a noncompliance by a guardian with the requisitions of the statute. Such a rule would also operate injuriously on the ward, as upon every sale made the purchaser would take into the account the hazard he incurs. The best interests of infants require that no unnecessary obstacles should be thrown in the way of obtaining the best possible price for their estates when sold.”

So, also, is the language in Osman v. Traphagen, supra:

“If in these judicial sales the validity of the title, even in the hands of bona fide purchasers, should be made to depend on facts like these, and when, too, the facts are called-out in collateral proceedings, it would lead to the moát alarming consequences. The announcement of such a rule would fill the State with dismay. Titles now considered good everywhere would be subjected to scrutiny and doubt and depreciation, and sales required to be made hereafter by representatives and public officers under judicial process and orders would be shunned as pitfalls and snares. ”

I think the judgment should be affirmed.

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

Montgomery, J.

(dissenting). This is an action of ejectment to recover the undivided one-third part of a portion of lot 7, block 1 N., range 1 E., in the city of Jackson. Both parties claim title through the former owner, Benjamin G. Mosher, who died intestate June 27, 1874, leaving a widow and three heirs, Amanda M. Bronson, Alice J. Byrne, and the plaintiff, a grandson. An administrator was appointed on the 29th of July, 1874. On the 29th of September, 1877, license was granted to borrow money, and $5,000 was borrowed on the security of a mortgage upon the property in question, due in five years. On June 23, 1883, the administrator filed a peti-2 tion in probate court, praying leave to sell the real estate belonging to the estate, for the purpose of paying the debts. This petition sets forth that the debts of the estate are the mortgage in question of $5,000; another mortgage of $1,000 on the same property; a claim of Timothy Hoyle of $3,000, and interest for about four years, for a deficiency on a decree on foreclosure of a mortgage given by deceased in his lifetime; a mortgage on another piece of property belonging to the estate; a judgment against the'administrator in his representative capacity, in favor of Perry Averill, of $500 and interest; and a claim allowed by commissioners in favor of Perry Averill of $77.80, from which an appeal was allowed to the circuit court to claimant, he claiming to be entitled to $250.54. On the filing of this petition the probate court made an order of hearing, appointing the 16th day of July then next as the time for hearing on said petition, and directing that notice of the pending hearing should be given by serving a copy personally upon all the heirs at law or other persons interested in the estate to be found in the county. Service was made upon all concerned except the plaintiff, who was served by delivering a copy to Perry Averill, his guardian and father. On July 17, 1883, an adjourned day for hearing, a license, pursuant to the prayer of the petition, was granted. The license recites that due notice of the hearing of said petition has been given to all persons interested, as directed by the court. The license directed the administrator to give notice of the time and place of holding the sale by posting the notice in three of the most public places in the city of Jackson, and publishing the same in a newspaper in Jackson county for six weeks successively next before the sale. A bond was required and furnished, and the oath before sale was duly taken. The notice was posted in three of the most public places in the city of Jackson, but none of them were posted in the First ward of the city, in which the property in question was located. The sale was made as advertised, and the property struck off to the defendant for $18,000, which the court finds was a fair price for the property. On the-7th of September a report of sale was filed, and the court made an order confirming the sale. A deed of the premises was ordered by the court, and executed and delivered. The purchase by the bank was made in good faith, without notice of any defect or irregularity in the proceedings. Immediately following such sale, the bank took possession of the property, and has since spent upwards of $15,000 in improvements thereon.

The contentions made in the court below and in this court were that, by delay in settling the estate, the probate court lost jurisdiction to make the order of sale; that there was not such a showing of indebtedness as to authorize the sale; that the service of process upon the guardian was not sufficient to confer upon the court jurisdiction; that the notices of sale were not posted as required by the statute. The court ruled against the first and second contentions of the plaintiff; held, as to the third, that, the court having jurisdiction of the estate, a purchaser is protected, whether the jurisdiction was properly or improperly exercised, or whether the license was granted upon a sufficient or insufficient petition. As' to the fourth contention, namely, the failure to post notices of sale, the court held that this was foreclosed by the order of confirmation.

In support of the contention that the court had, by lapse of time, lost jurisdiction of the estate, and had not power to order a sale, counsel relies upon Hoffman v. Beard, 32 Mich. 218. This case has been, in effect, overruled, as was said by this court in Re Beniteau, 88 Mich. 152. See, also, Peckham v. Hoag, 92 Mich. 423.

This case must turn upon the construction to be given to section 6076, 2 How. Stat-., which provides that the sale shall not be void on account of any irregularity in the proceedings, provided it shall appear that the sale was licensed by the probate court having jurisdiction; that a bond, which was approved by the judge of probate, was given, in case a bond was required; that the officer took the oath prescribed in the chapter; that he gave notice of the time and place of sale as in the chapter prescribed; and that the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who purchased them in good faith. These various clauses have been before the court for construction on different occasions. As to the first clause, it has been held that it is sufficiently complied with if the sale is ordered by the probate court having jurisdiction of the estate. Howard v. Moore, 2 Mich. 226; Woods v. Monroe, 17 Mich. 238; Dexter v. Cranston, 41 Mich. 448; Blanchard v. De Graff, 60 Mich. 107. See, also, Gary, Prob. Law, § 539; Reynolds v. Schmidt, 20 Wis. 394. The second provision, requiring a bond in case a bond is required, has been construed to mean in case a bond is required by the probate court. Norman v. Olney, 64 Mich. 553.

The question which presents the greatest difficulty arises out of the failure to give the notice required by the statute. Section 6040, 2 How. Stat., provides that, when a sale is ordered, notice of the time and place of holding the same shall be posted up in three of the most public places in the township or ward in which the land is situated, and shall be published in a newspaper, etc. This was not complied with, and, unless the order confirming the sale shall be held to have cured the error, it follows that the defendant acquired no title. It is undoubtedly true, in a sense, that the probate court is a court of general jurisdiction; but the proceeding for the sale of lands by an executor or administrator is statutory, and it cannot be doubted that it would he competent for the legislature to fix the limit of the presumptions that are to arise from an adjudication of the court, or to limit the conclusiveness of the holding of the court upon any question. 12 Am. & Eng. Enc. Law, 268,. 26 9. Public policy requires, undoubtedly, that sales by administrators shall be upheld where good faith is shown, and that irregularities which have not affected the interests of the parties concerned disastrously shall not operate to defeat title. But when the statute was enacted this was a legislative question, and, if the fair construction of the provisions of this statute leads to the conclusion that the defect in question is not obviated by the curative provisions, much as we may regret the necessity of so holding, we are bound to follow the statute.

It is to be noted that the curative section was deemed by the legislature necessary, and this is declarative of the understanding as to the nature of the proceedings, and as to the force which the legislature intended should be given to the adjudication and determination of the court. It is also to be noticed that in this curative section it is provided that there must be a concurrence of all the conditions named before the attack upon the sale for irregularity in the proceedings is precluded. This includes not only notice of the time and place of sale as in this chapter prescribed, but also the confirmation of the court. It seems illogical to hold that the confirmation of the court may cure the error of a failure to give the notice of the time and place as prescribed, when the requirement of such a notice is coupled with the confirmation in the curative provisions. In Cahill v. Bassett, 66 Mich. 407, the question whether the confirmation of sale would cure such a defect was raised, but not decided. The opinion of Mr. Justice Champlin implies that the confirmation would not cure such a defect, and this was concurred in by Mr. Justice Morse. But in the later case of Schaale v. Wasey, 70 Mich. 420, in an opinion by Mr. Justice Morse, concurred in by his associates, it appeared that the notice was published in a newspaper mainly published in the German language. The court said:

“We do not think such a publication as the one in this case a proper one under our laws; but we are not prepared to say that it vitiates a good-faith sale, legally made in all other respects, especially when such sale is attacked collaterally, and there is no evidence showing a want of bidders at such sale, or any inadequacy of price in the sale. ”

It is difficult to understand how this holding could have been made unless upon the ground that the confirmation of the sale cures the defect. This view finds support in Osman v. Traphagen, 23 Mich. 80; Van Fleet, Coll. Attack, § 787, and cases cited. Nevertheless, I think the court lost sight of the real purpose and intent of the legislature in the enactment of the curative provisions of the statute, and that the holding should be overruled. I think the sale in the present case cannot be sustained. How far the defendant might be made whole by subrogation or other equitable remedy cannot, of course, be determined on this record.

Judgment should be reversed, judgment for plaintiff entered here on the findings, and the case remanded for further proceedings under the statute.