text:
    CARVETH v. WINEGAR.
    1. Mortgages — -Deed Absolute — Evidence.
    In a suit to declare a warranty deed a mortgage, evidence of the circumstances surrounding the transaction, the conversation at the time, and the value of the land, is admissible.
    2. Same.
    A deed absolute in form, accompanied by a.contract to return ■ to the vendor one-half of the proceeds of the land if sold within a year, after deducting the amount of an outstanding mortgage, the vendor’s debt to the vendee, and the value of certain property deeded by the vendee to the vendor, held, under the evidence, to amount to a mortgage.

      3. Same — Innocent Purchaser.
    The existence of an innocent purchaser, who has made improvements, will not prevent the court from declaring a deed absolute in form to be a mortgage, if the purchaser can be fully protected on the accounting.
    Appeal from Ionia; Davis, J.
    Submitted January 15, 1903.
    (Docket No. 43.)
    Decided April 21, 1903.
    Bill by Thomas Carveth and Marietta Carveth against Clarendon C. Winegar and George Winegar to declare a conveyance absolute in form to be a mortgage, and for an accounting. From a decree for complainants, defendants appeal.
    Affirmed.
    The purpose of this bill is to have a deed absolute upon its face declared a mortgage, and that the complainants may be allowed to redeem therefrom. The deed was executed January 18, 1897, by complainants, who are husband and wife, to the defendant Clarendon C. Wine-gar. It was executed at the house of defendant Clarendon. Mr. Winegar and Mr. Carveth then went to the house of Mr. Winegar’s attorney, and a contract was drawn up, the material part of which is* as follows:
    “It is agreed by said Winegar and said Carveth that in the event of the sale of said farm at any time before the 1st day of April, A. D. 1898, for a sum greater than the mortgage and accrued interest now on said premises, and the interest thereon from this date to date of said sale if made, taxes, and expenses attendant upon said sale; also the expense of any permanent improvement made by or through first party on said premises, and, further, the reasonable expense of putting in crops that may not be harvested at time of sale added to the other items heretofore mentioned; or, further, if said Winegar in the meantime shall have leased said premises, the expense of buying off said leaseholder shall be added, — then said Winegar, after deducting' from the amount of money and securities, if any, received from said sale, shall and hereby agrees to pay to said Carveth one-half of what remains after deducting the several items above set forth.

      “It is expressly understood and agreed by the parties hereto that these presents are to be construed and understood as a separate and distinct transaction, and independent from the sale of said lands by Carveth aforesaid to Winegar aforesaid, and in no way to affect the conveyance by warranty deed herein referred to.
    “It is mutually agreed that the crops grown on said premises, after deducting expense incident to raising and marketing them, or the value thereof, shall be deducted from the items of expense heretofore mentioned.
    “It is further mutually agreed that said Winegar shall deduct from the proceeds of the sale of said farm the sum of four hundred dollars for the value of one certain house and lot this day deeded by Winegar to said Carveth, together with interest on said $400.”
    The land was a farm of 160 acres. In 1893 it was mortgaged to one Anderson for $5,000. Mr. Carveth desired to take up this mortgage, which drew 7 per cent., and replace it by another at 6 per cent. Mr. Winegar wrote to his sister and brother-in-law in New York, March 22, 1893, that he had an opportunity to loan $4,000 on “one of the best farms in this part of the country. It is a farm of 160 acres, and would sell for $8,000 under the hammer.” The loan was secured, the mortgage given, and Mr. Wine-gar took a second mortgage for $500 to help make up the amount necessary to pay the Anderson mortgage. This second mortgage was afterwards paid. Mr. Carveth paid the interest for 1894 and 1895. He was an old man, the crops for 1896 and 1897 were poor, and he was unable to meet the interest. Mr. Winegar paid the interest due in 1896, and took a chattel mortgage on a large amount of personal property to secure him. Efforts were made by both parties to sell the farm. It is claimed by the defendants that the price fixed by Mr. Carveth was too high, and that for that reason a sale was not made. Complainants charge that Mr. Winegar did not act in good faith, or make proper efforts to secure a sale. On the 8th day of February, 1898, in consideration of the sum of $100 to him paid by Winegar, Carveth released his interest in the contract, and signed a relinquishment thereof, which is indorsed on said contract. Defendant George is the son of Clarendon, and purchased one-half of this farm from his father for $3,000, and is now in possession thereof, claiming to have made considerable improvements in reliance upon the validity of the title obtained by the deed from complainants to his father.
    Outside of the terms of the deed and the contract, the testimony is in direct conflict. The testimony of the complainants, if true, makes the transaction a mortgage. The testimony of defendants, if true, makes the transaction an absolute sale, in trust, however, to be sold within the time fixed by the contract. Mr. Winegar testified:
    “I told him [Mr. Carveth] I had a house and lot in Lowell I would give him for the place, — that is, and take security, what there was against the place, — and he could deed the place to me; I would take his place. And then I told him, in the course of a year, whatever I would sell the place for over and above what I had in it and expenses, I would give him one-half, and we would make as good a sale as we could.”
    The total amount due on the mortgage, together with interest paid by defendant Winegar, at the time the deed was executed, was about $4,700.
    The court rendered a decree for the complainants, and an accounting to ascertain the amount due.

      John Nichol (Allen B. Morse, of counsel), for complainants.

      S. P. Hicks and B. A. Hawley, for defendants.
   Grant, J.

(after stating the facts). We think there was ample testimony to sustain the conclusion reached by the circuit judge, and we see no reason for overruling that conclusion. The question is one entirely of fact. The circumstances under which the deed and contract were made, the conversation at the time, and the value of the land were competent evidence, under the.decisions, to show that the transaction was intended by the parties to be a mortgage. If the title passed to Mr. Winegar, under his own testimony, as well as under the contract, he took the property in trust to sell for the purpose of paying up his own debt and that of the mortgage to his brother-in-law, and to pay one-half of the surplus to Mr. Carveth.

This case comes within the rule that “in all doubtful cases the law will construe the contract to be a mortgage, because such a construction will be most apt to attain the ends of justice and prevent fraud and oppression.” Edrington v. Harper, 3 J. J. Marsh. 354 (20 Am. Dec. 145). In a case somewhat similar in its facts, the court held that r

‘ ‘ The form of the instruments employed is immaterial. That the mortgagor knowingly surrendered, and never intended to reclaim, is of no consequence. If there is vice in the transaction, the law, while it will secure to the mortgagee his debt, with interest, will compel him to give back that which he has taken with unclean hands. ” Villa v. Rodriguez, 12 Wall. 323.

We think the case comes clearly within the rule of Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689). See, also, Stephens v. Allen, 11 Or. 188 (3 Pac. 168); Russell v. Southard, 12 How. 139; Wharf v. Howell, 5 Bin. 499; Strong v. Stewart, 4 Johns. Ch. 167; 1 Jones, Mortg. § 271. It is unimportant to state the details of the evidence. The facts in Sowles v. Wilcox, supra, are fully stated, and the facts in this case are sufficiently similar to those in that case to justify the holding that that case rules this.

It is urged that defendant George has made improvements upon this land in. good faith in reliance upon his title. If so, he is entitled to compensation therefor, and his rights can be fully protected upon the accounting.

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    SPENCER v. TERRY’S ESTATE.
    1. Wills — Testamentary 'Capacity — Evidence.
    On a will contest, evidence of testator’s mental condition both before and after the time when the will was executed is admissible to show a want of testamentary capacity, notwithstanding all of the testimony of those present at its execution tends strongly to show that testator was then competent.
    2. Same.
    On a will contest, the attorney who drew the will was asked on cross-examination, “And you did not suggest to testatrix tha* she was giving all her household belongings and pictures to the library association ? ” Held, that the question was not improper.
    3. Same — Trial—Objections to Testimony.
    On further cross-examination the witness was asked, “You state to this jury you allowed her to will her personal belongings to the library association, without saying a word to her ? ” The question being objected to as argumentative, witness offered to state his reasons for having said nothing; whereupon the court remarked that the question was “ somewhat argumentative,” and that witness had better give his reasons. Held, that, no objection having been made that the question improperly suggested that testatrix was under witness’ control, and the court having recognized the force of the only objection that was urged, and permitted witness to pursue the course he desired, there was no error.
    4. Same.
    An objection to testimony that testatrix was in the habit of using morphine, on the ground that such habit “ would have no effect whatever upon the question of mental capacity,” did not entitle proponent to urge on appeal that the testimony was improperly admitted because there was no proof that morphine would make one incompetent to make a will, or that testatrix was under-its influence at the time the will was executed.
    5. Same — instructions—Credibility of Witnesses.
    An instruction that, if the attorney who drew the will had testified truthfully, the will must stand, was properly modified by adding that the jury should take his testimony, and “all the testimony in the case which they believed to be credible,” and then say whether the attorney had testified truthfully and reliably; there being testimony legitimately tending to show that testatrix was mentally incompetent at the time of the execution of the will.
    6. Same — Exclusion oe Relatives — Natural Justice.
    Testatrix was 70 years of age when the will was executed. Her sole heirs consisted of two sisters and a brother, who lived some distance away, and between whom and herself there had been some bitter feeling. Held, that the fact that she bequeathed the bulk of her property to a public library had no tendency to show a lack of testamentary capacity, and that it was error to instruct the jury that it might be considered in determining that question in case they should regard such action as contrary to natural justice.
    7. Same — Curing Error.
    Error in so instructing was not cured by a subsequent instruction that testatrix had the right to dispose of her property as she saw fit, and that it was not in itself an indication of mental incapacity for her to leave the bulk of her property to a charitable or public institution, to the exclusion of her relatives.
    8. Same — Special Questions.
    Proponent requested the submission to the jury of a special question as to whether, when testatrix handed her lawyer a memorandum of her will, she knew what she was doing. In submitting the question the court said that he supposed it meant, “Was she mentally competent ?” Held, that, as proponent had no right to submit a question not calling for an answer which would control the main issue, he could not complain of the construction placed upon the question by the court.
    Error to Berrien; Coolidge, J.
    Submitted February 17,1903.
    (Docket No. 83.)
    Decided April 21, 1903.
    George F. Sonner presented for probate tbe last .will and testament of Melissa E. Terry, deceased. The will was allowed in tbe probate court, and Charles A. Spencer and others appealed to the circuit. From a judgment for contestants, proponent brings error.
    Reversed.

      Cady & Andrews and I. W. Riford, for appellant.

      Gore & Harvey, for appellees.
   Carpenter, J.

Proponent asks this court to reverse a verdict and judgment denying probate to an instrument purporting to be the last will of Melissa E. Terry, deceased. The material facts are stated in the opinion rendered when this case was before the court on a former occasion. See Spencer v. Terry’s Estate, 127 Mich. 420 (86 N. W. 998).

While the proponent produced witnesses who were present when the will was made, and whose testimony tended very strongly to prove testamentary capacity at that time, the witnesses produced by contestants testified to observations made before and after said will was made. Many of proponent’s objections relate to the admissibility and sufficiency of this testimony of contestants. Complaint is made that many of contestants’ witnesses were permitted to express an opinion adverse to testatrix’s testamentary capacity without having testified to facts and circumstances warranting that opinion. It is sufficient to say that each of those witnesses whose testimony was admitted in evidence against the objection and exception of proponent, under the rule applied by this court in Prentis v. Bates, 88 Mich. 567, and 93 Mich. 234 (50 N. W. 637, 53 N. W. 153, 17 L. R. A. 494), did testify to facts and circumstances warranting the expression of the opinion complained of.

It is also contended that testatrix’s lack of capacity to execute the will on February 17, 1899, could not be established by evidence of h^er condition before or after that time. Proponent makes this claim because in the case of Lange v. Wiegand, 125 Mich. 647 (85 N. W. 109), this court said, speaking of the condition of a testator failing rapidly from a stroke of paralysis, several hours after he had made his will:

‘(What his condition was at that time could not be weighed against the testimony of witnesses, who stood unimpeached, as to the condition when the will was made. ”

It was not meant by this expression to cast any doubt upon the rule, settled alike by reason and authority, that testatrix’s lack of capacity to execute a will at a particular time may be proved by her condition before and after that time, if that prior or subsequent condition may be presumed to exist at the time the will was made. See Harring v. Allen, 25 Mich. 505, and Haines v. Hayden, 95 Mich. 332 (54 N. W. 911, 35 Am. St. Rep. 566). The quotation relied upon in the opinion in Lange v. Wiegand was a statement warranted by the facts in that case, and was not intended to apply to another and different case. To apply that principle to this case, it is necessary for proponent’s counsel to maintain — and they do maintain — that the facts testified to by Mr. Plummer, who drew the will and witnessed its execution, not only establish the competency of the testatrix to make the will, but that they cannot be discredited by the testimony of witnesses who saw the testatrix before and after that time. We cannot agree with this contention. Contestants’ witnesses testify to facts and circumstances, and opinions properly based thereon, which justify the jury in finding that testatrix lacked capacity to make the will in question during a period commencing some time before it was made, and continuing to her death. If it is true that it is a necessary inference from Mr. Plummer’s testimony that testatrix possessed testamentary capacity when the will was made, it must be and is true that the jury might discredit that testimony, if they were convinced by the testimony of contestants that she did not possess testamentary capacity at that time. We think, therefore, as above indicated, and as indicated in the former opinion in this case, that there was sufficient evidence of lack of mental capacity to support the verdict in this case.

On the cross-examination of Mr. Plummer, he was asked r

‘ ‘And you did not suggest to her, when you were discussing with her the last clause of that will, that she was giving all her household belongings and pictures to the library association ? ” Complaint is made that the court did not sustain proponent’s objection to this question, that it made no difference “whether he suggested it or not.” We think this question was not improper, and that the ruling of the court was correct. Mr. Plummer was then asked: . ‘ ‘ You state to this jury you allowed her to will her personal belongings — 'pictures, silver, household treasures — to the library association, without saying a word to her ? ” After the witness had answered, “I do,” proponent’s counsel objected to the question as argumentative. Witness thereupon said, “If you want to know the reason, I can tell you the reason,” and the court thereupon said: “It is somewhat argumentative. I think we had better have his reasons.” The only objection which we think could properly have been made to this question was that it improperly suggested that testatrix was under the control of the witness, or that he was> under an obligation to control ‘her. That objection was not urged when the testimony was admitted, and, the court having recognized the force of the only objection that was urged, and permitted witness to pursue the course he desired, we must hold there was no error.

Complaint is made that the court did not strike from the record the testimony of witnesses to the effect that testatrix was in the habit of using morphine. The particular testimony referred to related to testatrix’s habit in 1891. " The testimony was introduced against proponent’s objection that it was too remote from the date of the execution of the will, and that the habit of using morphine “would have no effect.whatever upon the question of mental capacity.” It was admitted, notwithstanding this objection, upon the statement of contestants that they were going to show that testatrix continued to use it, and that they had already introduced testimony to that effect. Proponent’s counsel, in their brief, urge that the testimony should have been stricken out, because “there was no proof, nor any attempt to prove, that morphine will make a person incompetent to make a will,” and because “contestants produced no proof to show testatrix to have been under the influence of morphine at the time she executed the will.” Neither of these objections was made at the time the testimony was introduced, nor, so far as the court can learn from an examination of the record and briefs, at any time thereafter. We must decline, for these reasons, to determine their validity.

In his charge to the jury the court made a brief statement of the substance of Mr. Plummer’s testimony in a manner not complained of by proponent, and then stated:

“Now, gentlemen, if Mr. Plummer, in the statement of facts which I have briefly summed up, has testified truthfully and reliably, then this will must stand. Now, you may take the testimony of Mr. Plummer and Mrs. Gurd, and take all the testimony in the case which you believe to be credible, and then say whether Mr. Plummer has testified truthfully and reliably in the case.”

Complaint is made of the last sentence of this charge, as “erroneous, unjust, and uncalled-for.” The preceding sentence was in accord with proponent’s position in the court below and in this court. Yet it could not possibly be given, under the correct rule, as indicated in this opin-. ion, unless it was coupled with the sentence complained of, or some similar sentence. Under these circumstances it was proper for the court to give the charge complained of.

The court charged the jury at the request of contestants :

“The deceased left surviving her, as next of kin, a brother and two sisters; and if you find that the sixth clause of the will, bequeathing the larger portion of the estate to the public library, is contrary to natural justice, this may be taken into consideration by you in determining the competency of the testatrix to make it.”

In the case of Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566), this court held that it was not error to charge the jury that they “may consider the nature and character of the will, and, if it be contrary to natural justice, this, with the other facts of the case, may be considered by the jury in the determination of the question whether or not the testator was of sound mind.” The facts which justified that charge clearly appear in the opinion of the court, which approves it, and which we quote:

“The testator’s daughter Rose was about 12 years of age when her mother died. The evidence for contestants showed that she assumed the mother’s place in the household; did most of the work; she and her little sister milked the Cows, and brought w’ater from the lake, several hundred feet away; that she was faithful, obedient, and uncomplaining; that her lot was a hard one; that she did work which no father, possessed of the property which her father had, ought to permit a daughter to do. * * * Either from an unfortunate marriage or from other causes, the mind of his daughter Archange had become unbalanced, and after she left her husband her father took her to an asylum for care and treatment. The common sense of mankind condemns, as contrary to natural justice, a will which practically disinherits such children, and leaves the bulk of a large fortune to two'who have done no more than they to deserve it, and are better able to meet the vicissitudes and struggles of life; and courts and juries have the right to take that fact into consideration in determining the competency of the testator to make the will.”

In McGinnis v. Kempsey, 27 Mich. 363, it was held that the following charge was not erroneous:

“If a party makes a will contrary to natural justice, this, with other facts, may be considered. But the mere fact that a will is not exactly according to what our own conceptions of justice would be, is not, of itself,' sufficient to invalidate a will, for the reason that sane men are known to disagree in this respect. By ‘ natural justice’ we mean that which is founded in equity, in honesty and right. Natural justice requires that the parent shall cafe for his children. By bringing them into the world, the parent engages to provide for them. Natural justice requires that the child, who has been protected in the weakness of his infancy, should protect and support that parent in the infirmity of his age. There are other relations in the history of every individual out of which obligations grow, but which are so varied, and embrace so wide a range, that human tribunals cannot and do not attempt to enforce them. And wherever the question is presented as to whether a natural obligation has been created, it can only be by inquiring what honor or conscience dictates. But in determining a case like this — what conscience dictates — we are not to consider alone the fact that this person or that person is a blood relation of the testator. Even under the civil law, where a parent was not allowed to disinherit his child without giving his reasons therefor, —and the law recognized 14 reasons, either one of which was deemed sufficient to absolve the parent from what, without such reason, would be deemed an obligation founded on natural justice, — in short, the conduct of the child towards the parent was to be considered in determining the question as to whether natural justice required the parent to confer any portion of his property upon the child. Did the child refuse to aid the father, and to give him his services, and did he refuse to reverence his authority, natural justice did not require the father to treat the child, in disposing of his property, any different from strangers.”

These quotations prove that neither the case of Rivard v. Rivard nor McGinnis v. Kempsey is an authority for the giving of the charge now under consideration. It sufficiently appears from these cases that the circumstances must be extraordinary to justify the inference of testamentary incapacity merely because an heir is disinherited. Even when a child was disinherited (and the relation of parent and child is much closer than that between brothers and sisters) this court has never gone further (and that in a very exceptional case) than to say that this circumstance may be considered with the other fads in the case in determining testamentary capacity. The charge under consideration contains no such qualification. We think this charge clearly authorized the jury to find lack of testamentary capacity from the fact that testatrix bequeathed the bulk of her' property to a public library, to the exclusion of her next of kin, provided they believed such bequest to be contrary to natural justice. It is true that the court gave the following requests of proponent:

“You are instructed that the testatrix had the right to dispose of her property as she saw fit, and it is in itself not an indication of mental incapacity to leave the bulk of her property to a charitable or public institution, to the partial or total exclusion of her relatives.”
‘ ‘ A testatrix may dispose of her property as she pleases, and'it is not an indication of mental incapacity that she distributes it partially among her relatives, and leaves the balance to some one else.”

The most favorable construction for contestants to be placed on these requests of proponent is to assume that the bequest to the charitabl'e institution, to the exclusion of the next of kin, under no circumstances affords evidence of lack of testamentary capacity. Assuming this construction to be correct, it follows that these instructions, given at the instance of proponent, are inconsistent with the charge under consideration. As the court cannot say which of two inconsistent instructions the jury followed, the giving of proponent’s requests would not cure the error, if error there was, in giving the request of contestants under consideration. The fact that testatrix bequeathed the bulk of her property to the public library, rather than to her brother and sisters, afforded no evidence -whatever of her lack of testamentary capacity. She was 70 years of age, living in the city of Benton Harbor, Berrien county, Mich. Her two sisters lived in Chicago, Ill., and her brother in Benton, Mich. There had been litigation, which tended to embitter them, and their relations were not intimate at the time the will was made. Testatrix’s disregard of their claims was certainly not, under these circumstances, contrary to natural justice, and afforded no evidence of a lack of testamentary capacity.

Proponent submitted to the jury the following special question: “When Mrs. Terry, on February 17, 1899, handed to Mr. Plummer a memorandum of her will, written in her own handwriting, and directed him how to dispose of the balance of her property, did she know what she was doing ? ” Complaint is made because, in submitting this question to the jury, the court said, “ ‘Did she know what she was doing ?’ I suppose that means, ‘Was she mentally competent?”’ While proponent’s counsel had insisted, just before this comment was made, upon their privilege to submit such questions as they desired, they made no objection and took no exception to the remark of the court. Nor do we think that the remark was improper. Proponent had no right to submit a question not calling for an answer which would control the main issue. Balch v. Railroad Co., 78 Mich. 654 (44 N. W. 151); Crane v. Reeder, 25 Mich. 304; Cousins v. Railway Co., 96 Mich., at page 389 (56 N. W. 14). Unless their question received the construction placed upon it by the court, it should not have been submitted. They cannot complain, therefore, of that construction.

For the error pointed out, the judgment will be reversed, and a new trial granted.

The other Justices concurred.


text:
    BERRIEN SPRINGS WATER-POWER CO. v. BERRIEN CIRCUIT JUDGE.
    1. Constitutional Law — Eminent Domain — Water Power.
    It is beyond the power of the legislature to authorize the condemnation of land for the purpose of creating a water power which, when erected, may be used for public or private purposes at the option of the proprietor. So held where the corporation claiming such right was organized to sell and supply water and water power for mining, milling, manufacturing, domestic, municipal, and agricultural purposes, and to furnish people in the vicinity with electricity.
    2. Same — Private Uses.
    Land can be taken, under the power of eminent domain, for a legitimate public purpose, even though a private purpose will be thereby incidentally subserved; but in such case the taking must be limited to the public necessity.
    S. Same — Navigable Waters — Dams—Public Necessity.
    The fact that the construction of a dam will result in improving the navigability of a stream does not establish the public necessity for taking lands that will be flooded as the result'of such project, but the question of necessity must be determined by a jury, as in other cases.
    4. Same.
    3 Comp. Laws, § 6814, subd. 6, purporting to authorize corporations organized under the act of which it is a part to condemn land for the construction of a navigable waterway, with appurtenant water power, which may be used for private purposes, but containing nothing to indicate that the public necessity for the waterway shall limit the exercise pf such right, is unconstitutional.

      Mandamus by the Berrien Springs Water-Power Company to compel Willis B. Perkins, circuit judge, presiding in Berrien county, to vacate an order dismissing a petition to condemn certain land.
    Submitted February 17, 1903.
    (Docket No. 209.)
    Writ denied April 21, 1903.

      Fred A. Baker (O’Hara & O’Hara and Fred P. Del-afield, of counsel), for relator.

      M. L. Hotuell and G. M. Valentine (Benton Hanchett, of counsel), for respondent.
   Carpenter, J.

In Valentine v. Berrien Springs Water-Power Co., 128 Mich. 280 (87 N. W. 370), this court held that relator had a right to proceed to erect a dam across St. Joseph river. To carry out this project, relator filed a petition to condemn certain lands in pursuance of authority contained in the act under which it is incorporated. Respondent dismissed said petition on the ground that that part of the act which authorized relator to condemn lands was unconstitutional. This court is now asked to issue a mandamus compelling the vacation of such order. While other questions are raised in this case, they will receive no attention, because, in our opinion, the decision of respondent was correct.

Relator was incorporated under Act No. 202 of the Public Acts of 1887, the same being found in 2 Comp. Laws, §§ 6806-6822, inclusive. Section 1 of said act (2 Comp. Laws, § 6806) reads as follows:

“Any number of persons, not less than five, may form themselves into a corporation for the purpose of damming any stream, and of excavating and constructing, maintaining, repairing, and improving any canal already existing, or which they may wish to excavate and construct, with water power appurtenant thereto, and may own, lease, use, and control the same for the purpose of accumulating, storing, conducting, selling, furnishing, and supplying, upon an agreed rental, water and water power for mining, milling, manufacturing, domestic, municipal, and agricultural purposes, and for purposes of navigation.”

Section 9 (2 Comp. Laws, § 6814), subd. 6, reads as follows:

“ In any case where the company is unable to agree with the owners of land needed for or in the work of constructing a navigable waterway, as herein provided, or cannot agree with any highway commissioner, or other authority, as to the crossing or changing of roads, streets, or streams, then and in all such cases the same laws providing for the incorporation of railroad companies, and providing for the condemnation of lands to the public use in certain cases, shall govern and be the rule of action or procedure so far as practicable; and any company undertaking to construct a navigable waterway, with or withput water power appurtenant thereto, and intending to do a transportation business upon such waterway, shall have the same rights and privileges for procuring right of way, needed lands, or real estate of any kind, or of crossing streams and highways, as the laws of Michigan allow railroad companies.”

Section 11 (2 Comp. Laws, § 6816) reads as follows:

“ Such company may furnish water to other persons or companies for mining, manufacturing, milling, domestic, municipal, or agricultural purposes, on such rent as shall be agreed upon by and between it and those desiring to obtain it, or it may use the same for such purposes itself in any class of manufacturing purposes. It is authorized to bring suit to enforce the payment of such rent in any proper court of the county where its principal office is located.”

- Relator’s articles of incorporation, as amended, specify its business and objects as follows':

• ' “1. To construct and maintain a dam across the St. Joseph river, at or near the village of Berrien Springs, in said county of Berrien, and raise the water in said river from the village of Berrien Springs to the village of Buchanan, and thereby make said river between said villages a navigable waterway.
“2. To excavate, construct, and maintain canals and channels through the bars and shoals in said river, and thereby further improve the navigability of said river.
“3. To construct, maintain, and operate water power appurtenant to said dam and waterway, and to own, lease, use, and control the same for the purposes of accumulating, storing, conducting, selling, furnishing, and supplying,‘upon an agreed rental, water and water power for mining, milling, manufacturing, domestic, municipal, and agricultural purposes, and for purposes of navigation; and also to produce and supply the village of Berrien Springs and the inhabitants thereof, and the inhabitants of said townships of Oronoko, Berrien, and Buchanan and the vicinity thereof, with electricity for lighting, heating, and motive purposes, for which the same is or may become of practical use; and to acquire, hold, lease, and convey lands or water power, as may be necessary or convenient for the purposes.above specified.
“4. To do a transportation business upon such waterway.”

In its petition for condemnation, relator alleges that it requires the lands proposed to be condemned “for the purposes of its incorporation, and that the taking thereof is necessary for the public use and benefit.”

Relator is, then, by these proceedings, seeking to condemn land which will be overflowed as a result of its damming St. Joseph river, a navigable waterway. Relator’s project is to make the stream navigable — or, to be more accurate, to improve its navigability — for the double purpose of carrying on a transportation business and to obtain a water power. This water power relator will own, lease, use, and control for the purposes heretofore indicated in the law and in its articles of incorporation. While some of these purposes may be public, it is clear that many of them are private. See Ryerson v. Brown, 35 Mich. 333 (24 Am. Rep. 564). After the water power is erected,, though it may be used for a public purpose, relator has the option to use it entirely for private purposes. Says the supreme court of Wisconsin in a similar case:

“And it is equally certain that if the power be alternative and optional, either for a public or for a private use, — to construct a dam, to be used, when constructed, either for the purpose of waterworks or for the purpose of leasing the water power for manufacturing purposes, in the discretion of the city, — it cannot be upheld. It seems too' plain for discussion that if the legislature grant an equivocal power, subject to the election of the grantee, for either one or other of two purposes, the one lawful and the other unlawful, the power cannot be upheld upon the chance of its being lawfully applied.” Attorney General v. City of Eau Claire, 37 Wis., at page 437.

It results from this reasoning, which meets our approval, that we are bound to regard said water power as private in its character, and to hold, therefore, that, under our Constitution, land cannot be taken for the purpose of creating it.

If relator has the power of condemnation in this case, it obtains the same by subdivision 6 of section 9, heretofore quoted, and by that part of said subdivision which reads as follows:

“And any company undertaking to construct a navigablewaterway, with or without water power appurtenant thereto, and intending to do a transportation business upon such waterway, shall have the same rights and privileges for procuring right of way, needed lands, or real estate of any kind, or of crossing streams and highways, as the laws of Michigan allow railroad companies.”

Assuming, but without deciding, that this language is broad enough to authorize condemnation in cases where it is sought to improve the navigability of a stream already navigable, 'the question arises whether the statute is constitutional, when the land is taken, as in this case, where the improvement of the navigability,is intended to secure water power to be used for private purposes, as well as to enable the carrying on of a transportation business.

Land cannot be taken, under the exercise of the power of eminent domain, unless, after it is taken, it will be devoted to the use of the public, independent of the will of the corporation taking it. Ryerson v. Brown, 35 Mich. 333 (24 Am. Rep. 564); Board of Health v. Van Hoesen, 87 Mich. 533 (49 N. W. 894, 14 L. R. A. 114). It follows from the above principle, as well as from general reasoning, that, where the corporation intends to devote said land both to public and private uses, only so much can be taken as is necessary to the public use. See Cooley, Const. Lim. (6th Ed.) 664. In this case relator proposes to improve the navigability, of a stream for the double purpose of carrying on a transportation business, which we may admit to be public, and for the purpose of furnishing water power, which it may own, lease, and use for private purposes. The statute authorizes a company constructing a navigable waterway, with water power appurtenant, to take the “needed lands or real estate.” This obviously, in form at least, grants relator the right— .and by its1 petition we are bound to say it asserts the right —to take such land as is needed in its work of constructing “a navigable waterway, with water power appurtenant thereto.” Though, under the law, no more land may be taken than will improve the navigability of the stream, ¡so much will be taken as is necessary to make a navigable waterway, with private water power appurtenant thereto. The taking is not limited to what is required by the public necessities in the improvement of the navigability of the .stream, and the law contains no provision by which the taking can be limited to such public necessities. While many public advantages may result from improving the •navigability of the stream, the only one indicated in the statute is the transportation business to be carried on. Inasmuch as the statute is silent as to the character of such transportation business, it is clear that its demands and necessities in no way limit the taking of the land. It is equally clear that the necessity of other public uses (not specified in the statute) of the improved navigability of said stream does not limit such taking.

Is the statute, which authorizes the taking of such land as is needed in the work of improving a navigable waterway with water power appurtenant thereto, a valid, constitutional enactment? It may easily happen — indeed, it is quite probable — that the appurtenant water power may require a higher dam, and, consequently, a taking of more property, than is demanded by the transportation business-to be carried on, or by any other public necessity for said navigable waterway. If the fact that the taking results-in improving the navigability of a stream proves said taking to be a public necessity, the statute is constitutional, notwithstanding the fact that one of the purposes of improving the navigability of the stream is to obtain a water power; for land can be taken, under the power of eminent domain, for a legitimate public purpose, even though a private purpose will be thereby incidentally sub-served. Toledo, etc., R. Co. v. East Saginaw, etc., R. Co., 72 Mich., at page 227 (40 N. W. 436); South Chicago R. Co. v. Dix, 109 Ill., at page 243. But it cannot be said, nor is it true, that, because the taking results in improving the navigability of a stream, its public necessity is thereby proved. Under the Constitution of Michigan,, art. 18, § 2, the necessity for the taking, as well as the compensation for the property, must be determined by a jury, or by commissioners appointed by a court of record. This constitutional tribunal, and not the legislature, must determine whether public necessities require this improvement in the navigability of St. Joseph river. Powers' Appeal, 29 Mich., at page 510. It cannot be said, as a matter of law, that public necessity requires improvements to be made in a navigable river, any more than it can be said, as a matter of law, that public necessity requires a railroad to be built. See Mansfield, etc., R. Co. v. Clark, 23 Mich. 524.

The fact that, under this law, land cannot be taken until the public necessity therefor has been determined by the tribunal to whose determination that matter is by the Constitution submitted, does not answer the objections to its constitutionality. The question submitted to that tribunal will be substantially as follows: Does public necessity require that the land specified in relator’s petition shall be taken to so improve the navigability of St. Joseph river that relator can operate thereon a transportation business and can obtain thereby' the water power it desires ? The question of public necessity thus submitted is not confined to the public necessity requiring the improvement of the navigability of the river, but extends ’ also to the necessity requiring the construction of a water power, which, as has already been shown, this court is bound to declare private in its character. The constitutional tribunal for' condemning land cannot find that public necessity requires a taking for private purposes. Ryerson v. Brown, 35 Mich. 333 (24 Am. Rep. 564). Yet by the act under consideration that tribunal is authorized to make such a finding, and, by making it, take property for a private purpose.

The act is, therefore, unconstitutional, and relator’s prayer for a mandamus must be denied.

The other Justices concurred.


author: Hooker, C. J.

text:
      In re STEGENGA.
    1. Criminal Law — Disorderly Persons — Vagrancy—Complaint —Sufficiency.
    A complaint alleging that defendant was found loitering about in common barrooms, and wandering about the streets, by day and by night, without any lawful means of support, and without being able to give a satisfactory account of himself, for a period of two weeks, in violation of a city ordinance relating to disorderly persons, did not purport to charge defendant with vagrancy, and was therefore not objectionable for failure to allege such offense.
    2. Same — Ordinances—Authority of City Council.
    A charter provision authorizing the common council to provide by ordinance for the punishment of “disorderly persons of all kinds ” should be construed in its ordinary sense, and not as limiting the authority of the council to legislate with reference to such conduct as would be regarded as disorderly under the general statute (2 Comp. Laws, § 5923) or the common law.
    3. Same — Common-Law Offense.

      It seems that one shown to have been loitering about the streets of a city and in barrooms in idleness for two weeks, without apparent habitation, and without any means of support, giving no satisfactory explanation of his conduct, would be punishable as a disorderly person at common law.
    4. Same — Ordinances—Reasonableness—Personal Liberty.
    A. city* ordinance declaring that any person found loitering in any barroom, or wandering about the streets, without any lawful means of support, or without being able to give a satisfactory account of himself, shall be deemed a disorderly person, and punishable as such, is not void as an unreasonable abridgment of the^right of personal liberty.

      Habeas corpus proceedings by William Stegenga to obtain his release from the Kent county jail.
    Submitted April 7, 1903.
    (Calendar No. 19,889.)
    Writ dismissed April 21, 1903.

      H. Everett Moorman, for petitioner.

      S. W. Barker, Assistant City Attorney of Grand Rapids, for respondent.
   Hooker, C. J.

The defendant was charged with being a disorderly person, within the provisions of an ordinance of the city of Grand Rapids, and, upon a trial by jury in the superior court of that city, was convicted and sentenced. He is before this court on habeas corpus. The return shows that he is detained by the sheriff of Kent county under the command of a- commitment from said court, reciting that he was “convicted of having been found loitering about in common barrooms, and wandering about the streets, by day and by night, without any lawful means of support, and without being able to give any satisfactory account of himself, at the city of Grand Rapids, for the period of two weeks.” Copies of the complaint, judgment, and commitment are attached to the return.

Section 10 of title 3 of the charter" of Grand Rapids provides that:

“The common council shall have power, within said city, to enact, make, continue, establish, modify, amend, and repeal such ordinances, by-laws, and regulations as it deems desirable within said city, for the following purposes : (1) To prevent vice and immorality, to preserve public peace and good order, and to prevent and quell riots, disturbances, and disorderly assemblages; * * * (£0) to provide for the punishment of vagrants, and all persons drunk or disorderly on the streets or public places of the city; * * * (34) to punish common prostitutes, and disorderly persons of all kinds.”

The ordinance in question is as follows:

"An Ordinance to Amend Section 1 of an Ordinance Entitled ‘An Ordinance Relative to Disorderly Persons in the City of Grand Rapids.'
“The common council of the city of Grand Rapids do ordain as follows:
“Section 1. That section 1 of ‘An Ordinance Relative to Disorderly Persons in the City of Grand Rapids,' as amended October 28, 1901, be and the same is hereby amended to read as follows:
“ Section 1. Any person who shall have actually abandoned his wife, child, or children, or either, or who neglects or refuses to provide for his family, wife, child, or children; all persons who shall make any improper noise, disturbance, or riot, or shall be engaged in any illegal or improper diversion, or shall use any indecent, insulting, or immoral language, or shall be guilty of any indecent or immoral conduct or behavior in anyplace in the city of Grand Rapids; all tipplers, drunkards, and common prostitutes; all persons who shall collect in crowd? and bodies for unlawful and mischievous purposes in any place in said city, to the annoyance or inconvenience of citizens, or others, and all persons found in a state of intoxication in any place whatever in said city; any person who shall willfully assault another in said city, or be engaged in or aid or abet in any fight, quarrel, or other disturbance in said city; any person who shall make any indecent exposure of his or her person in any street, lane, alley, or elsewhere in said city; all persons that collect or stand in crowds in front of or about any church or place of worship in said city, during service, or the gathering or the departing of the congregation, or that collect or stand in crowds or loiter about or obstruct free and uninterrupted passage on any sidewalk in said city, or in any hall, stairway, vestibule, or passage-way leading to any store, office, court-room, or public hall or building in said city; all persons that stand, loiter, or stroll about in any place in said city, awaiting or seeking an opportunity to obtain money or other valuable thing from others by trick or fraud, or to aid or assist therein; all persons that shall engage in any fraudulent scheme, device, or trick to-obtain, money or other valuable thing in any place in said city, or aid or abet, or in any manner be concerned, therein; all ropers, steerers, or cappers, so-called, for any gambling room or house, or for any gambling game, trick, or device, or who shall engage in any such practice in any public streets in said city; all persons found loitering about in any hotel, block, common barroom, dram-shop, gambling house, or disorderly house, or wandering about the streets, either by night or day, without any lawful means of support, or without being able to give a satisfactory account of himself or herself; and all persons that show, sell, or offer for sale or exhibit any indecent or obscene picture,, drawing, engraving, book, or pamphlet in said city, — shall be deemed disorderly persons, and, upon conviction thereof, shall be punished as provided in section 7 of this ordinance.”

It is contended that the complaint fails to charge a punishable act, and that the ordinance is void, and beyond the authority of the common council to enact. It is urged r First, that it attempts to charge vagrancy, and nothing else, and that the allegations of the complaint fail to conform to the settled definition of vagrancy; reliance being had upon Sarah Way’s Case, 41 Mich. 301 (1 N. W. 1021). Second, that, if it be contended that defendant was proceeded against as an alleged disorderly person, the conviction was void, for the reason that the complaint does not charge misconduct within the statutory or common-law meaning of the term “disorderly.”

We may pass the first question with the remark that the complaint does not purport to charge vagrancy, and the prosecution makes no claim that the petitioner was convicted of vagrancy.

We have seen that the charter, gives the authority to the council to provide by ordinance for the punishment of all persons who shall be disorderly on the streets or public places, and, under subdivision 34, “to punish disorderly persons of all kinds.” Acting under these provisions, the ordinance in question was made. It provides that one chargeable with the conduct stated in the complaint shall be considered disorderly. / Petitioner’s counsel says that this was beyond the power of the council, for the reason that the common law did not make such act a crime, nor does our statute. In other words, the claim rests upon the proposition that the council may- not make an offense of that which would not be so under existing rules of law.

There is no lack of authority to the effect that a council cannot, by ordinance, make an offense, when such action would be inconsistent with (i. e., opposed to or in contravention of) a settled law or policy of the State, unless the authority is clearly conferred. 1 Dill. Mun. Corp. §§ 89, 319, 329. It is, however, equally certain that the condition of society in cities is such as to call for more stringent regulations than those usually provided for the State at large, and there are really but two questions here: (1) Whether, in granting the charter powers hereinbefore mentioned, the legislature used the term “disorderly” in the sense of its statutory or legal definition; and, if not, then (2) whether the ordinance is reasonable, and does not transgress the constitutional rights of personal liberty.

What is meant by the term'“ disorderly persons of all kinds ? ” We have a statute (2 Comp. Laws, § 5923) which enumerates many acts thereby made to constitute disorderly conduct, and the actors disorderly persons, subject to punishment under its provisions; and, while the punishment prescribed thereby is confined to the classes mentioned therein, it does not follow that no other acts are disorderly, or that the actors are not disorderly persons, in the ordinary -sense of the term. This statute is not a limitation upon the legislature either to declare other acts disorderly, or to authorize municipal authorities to punish such acts within reasonable bounds, which is a common practice. The case of City of Grand Rapids v. Williams, 112 Mich. 247 (70 N. W. 547, 36 L. R. A. 137, 67 Am. St. Rep. 396), sustained such action under the charter in question, holding that one who peeks into the windows of the occupied house of another is punishable under this ordinance. This conviction is inconsistent .with petitioner’s contention. It is true that it is said in that case that the act is one punishable “asan immoral act,” authorized by the first subdivision quoted from the charter, which permits the passing of ordinances ‘ ‘ to prevent vice and immorality,” and not under the power to punish “disorderly persons of all kinds,” found in another subdivision; but we have no statute that makes such an act disorderly, or even punishable, any more than we have in the present case. It was said that this was an immoral act; but the ordinance explicitly declared that all persons guilty of immoral conduct should be considered disorderly persons. This ordinance, like the statute; does not attempt to punish all disorderly persons, but only such as it designates, and it calls such as violate its provisions disorderly persons. We think it clear that, when the charter mentions “disorderly persons of all kinds,” it shows a legislative intent to do more than to permit the city to provide for the punishment of those already liable under the provisions of the general law. Interpreting this language in its ordinary sense, under the statute (1 Comp. Laws, § 50), makes the provision effective, while to follow the suggestion of petitioner’s counsel would be to emasculate it and make it comparatively worthless. Again, it is significant that, while subdivision 20 of the charter confers the power to punish disorderly persons, thereby clearly covering all persons coming within the statute and common law, subdivision 34 emphasizes the power, and enlarges upon the term used in subdivision 20, by including all kinds of disorderly persons.

Counsel has cited some of our- own cases, which he relies.upon as supporting his contention, and these should be considered.

The Case of Sarah Way, 41 Mich. 301 (1 N. W. 1021), arose under a city ordinance. This was a charge of vagrancy. It was held that, under the charter of Detroit, vagrancy meant such cases of vagabondage as come fairly within the common-law meaning of the word, and the opinion states that ‘ ‘ vagrancy is distinguished expressly from disorderly conduct generally” by the charter, Act No. 136, Laws 1861, chap. 13, § 12. This language serves the double purpose of explaining why the term “vagrancy” was held to be restricted in that case) and of showing that vagrancy may ordinarily be considered disorderly conduct, but not where a contrary intent is manifest. We may reasonably infer that but for this the result might have been different in the Sarah Way Case, and that she might otherwise have been punishable as a disorderly.

The Case of Sarah Jones Jordan, 90 Mich. 3 (50 N. W. 1087), did not arise under an ordinance. She was charged with being a disorderly person for reasons given. It was held that the case alleged did not come within the definition of the existing statute.

In our opinion, neither of these cases militates against the validity of this ordinance or charge, unless we are to say that the provision of this ordinance is an unreasonable or unwarranted abridgment of liberty. The following are distinctively cases of that kind: In re Frazee, 63 Mich. 401 (30 N. W. 72, 6 Am. St. Rep. 310); City of Grand Rapids v. Newton, 111 Mich. 48 (69 N. W. 84, 35 L. R. A. 226, 66 Am. St. Rep. 387).

The case of Pinkerton v. Verberg, 78 Mich. 573 (44 N. W. 579, 7 L. R. A. 507, 18 Am. St. Rep. 473), does not involve the validity of an ordinance, but rather the legality of the act of the officer in assuming it to have been violated.

But it is not certain that this man was not a disorderly person, punishable at common law. For two weeks he loitered about the streets and barrooms, in idleness, without apparent habitation, and without any means of support, according to the charge. Yet he lived, and the inference is not unreasonable that he was supported in idleness by others in some way. He loitered about barrooms (i. e., tippling places), and gave no satisfactory explanation of his conduct. Blackstone says (4 Bl. Com. 169) that all idle persons are punishable; while the statute 17 Geo. II, chap. 5, provided that idlers and disorderly persons, rogues and vagabonds, and incorrigible rogues should be punishable, — idlers and disorderly persons by a month’s imprisonment, and the other classes by more severe penalties. And, if it be said that this statute is no part of our common law, idle persons were punishable under ancient statutes, which in their turn merely declared the common law in that respect. See 4 Bl. Com. 169. The uniformity of the practice of authorizing and passing and enforcing ordinances for the punishment of mendicants, idlers, and vagabonds is a circumstance that indicates the general recognition that such persons may be treated as lawbreakers, and punished in accordance with the general law of the land.

But little need be said on the other branch of the case, for the foregoing discussion shows that it is not an invasion of constitutional right to punish conduct in fact disorderly, and dangerous to and destructive of good order.

It does not follow that this ordinance would justify the conviction of all arrested under it, or that each of its provisions, standing by itself, would 'constitute an offense. We do not say tha,t they would or would not. In this case, however, we are satisfied that the acts charged, and ■of which the petitioner was convicted, constitute an offense under this ordinance, and the petition will be dismissed, and the petitioner remanded to -the custody of the- respondent.

The other Justices concurred.


author: Montgomery, J.

text:
    FRINK v. HUGHES.
    1. Deeds — Building Restrictions — Dwelling House.
    A provision in a deed that nothing but a dwelling house shall be built on the premises conveyed excludes the erection of a photograph gallery.
    2. Same — Injunction.
    Such a provision, contained in a deed given by the proprietor of a plat, is enforceable in equity at the suit of another grantee from the same grantor, although other lots in the plat have been conveyed free from such restriction; it appearing that the owners of the latter have thus far observed the restriction, so that there has been no departure from the general scheme.
    3. Same — Decree—Modification.
    In such case, a provision in the injunctive decree, giving defendant the right to apply for a modification as the conditions may change, sufficiently protects his rights.
    Appeal from Wayne; Rohnert, J.
    Submitted October. 15, 1903.
    (Docket No. 66.)
    Decided April 28, 1903.
    Bill by John H. Frink and Annie Z. Frink against J. Wesley Hughes to enjoin the violation of a building restriction in a deed. From a decree for complainants, defendant appeals.
    Affirmed.

      T. T. Leete, Jr., for complainants.

      Buell, Culver & Shepherd (Frank F. Robson, of counsel), for defendant.
   Montgomery, J.

Joseph R. McLaughlin, Bela Hubbard, and John E. King platted a portion of lots 4 and 5 of quarter section 44, Ten Thousand Acre tract, of Wayne county. The property is bounded by Woodward avenue upon the west, Holbrook avenue upon the north, Alger avenue upon the south, and is crossed by John R. street and Brush street, running north and south. King avenue runs easterly from Woodward avenue through Substantially the center of the plat. The complainants purchased lot 40 of this subdivision by contract in 1896, which was after-wards fulfilled by deed, which contained a provision that nothing but a two-story dwelling house and the necessary outbuildings should be erected upon this lot, and that such dwelling house should be set not less than 20 feet -from the front line of the lot. The defendant, Hughes, is the owner of lots 37 and 38. His title deeds contain a restriction providing that nothing but a two-story dwelling house costing not less than $3,000, set on a brick or stone foundation, shall be erected on the lots, and that the dwelling house shall be set not less than 20 feet from the front line of the lots, — a provision very similar in terms to that contained in complainants’ deed. There is one intervening lot, — lot 39, — which is subject to similar restrictions. Lot 36, to the east of defendant’s lots, also is held under similar restrictions. The evidence shows that portions of this plat were conveyed by deeds not containing restrictive clauses such as those inserted in the deeds of the present parties, but it is fairly to be inferred that the general plan of confining the use of the property to residential purposes was understood by all purchasers.

January 11, 1902, defendant, Hughes, commenced the erection on the southeast corner of lot 37 of a photograph gallery or studio. The defendant had been engaged in the business of commercial photography, consisting of making photographs for sale, and had his studio near the business center. The present building was started with the view of carrying on that business therein. The circuit judge decreed that the defendant be restrained from further proceeding to construct the building in question, and that he be restrained from carrying on the business, but provided that, on application of either party, this decree might be modified when, in the opinion of the court, circumstances and conditions had so changed that equity and justice should require such modification. From this decree defendant appeals.

In the case of Watrous v. Allen, 57 Mich. 362 (24 N. W. 104, 58 Am. Rep. 363), this court laid down the rule that a deed containing restrictive clauses such as that here considered could be enforced. In Whitney v. Railway Co., 11 Gray, 359 (71 Am. Dec. 715), it was said of such provisions:

“The purpose of inserting them in the deed is manifest. It was to prevent such a use of the premises by the grantee and those claiming under him ás might diminish the value of the residue of the land belonging to the grantor, or impair its eligibility as sites for private residences. * * * Nor can there be any doubt that, in whatever form such a restraint is placed on real estate by the terms of a grant, whether it is in the technical form of a condition or covenant, or of a reservation or exception in the deed, or by words which give to the acceptance of the deed by the grantee the force and effect of a parol agreement, it is binding as between the grantor and the immediate grantee, and can be enforced against him by suitable process, both in law and equity.”

It is also conceded that such provisions inure to the benefit of the grantee of the original grantor. But it is contended in the present case, first, that the structure in .question does not come within the restriction. We think it very clear that this building is not such a building as is contemplated by the clause in question, and is clearly not a dwelling house, and falls within the restrictive clause of the deed. It is contended, also, that the complainants have been guilty of such laches as bars them from the right to bring this action. We do not so find the fact.

The principal question discussed on the argument, and the one which has given us the greatest difficulty, is as to the effect of the fact that McLaughlin and his associates granted title to some of the lots on this plat and in the neighborhood of the lot in question by title deeds not containing restrictive clauses. The defendant contends that these restrictive clauses are only available because the original plan was a plan to exclude everything but residences from these lots, and that, as the grantors have made title to lots without inserting these restrictive provisions, the scheme has failed, and that purchasers have the right to disregard their covenants. If this be true, it must be because equity relieves the defendant from the performance of a plain duty which he assumed at the time of accepting this grant. Why should equity grant such relief from this contract ? The complainants stand bound by their contract equally with the defendant, and bought in view of the purpose of excluding everything but residences on this property. It would certainly be inequitable to bar them of a right of enforcing this agreement on the part of the defendant by any act of his grantor, and, unless the defendant has some superior equity to be relieved of his contract, the court should hesitate to relieve him.

In a class of cases we have held that, where the grantor has subsequently made grants to others without restriction, and under such grants the purposes of the original restriction have been frustrated as a matter of fact at the time the bill is filed, no relief will be granted. This question has been raised in this State in construing provisions restricting parties from selling intoxicating liquor on premises. Chippewa Lumber Co. v. Tremper, 75 Mich. 36 (42 N. W. 532, 4 L. R. A. 373, 13 Am. St. Rep. 420); Jenks v. Pawlowski, 98 Mich. 110 (56 N. W. 1105, 22 L. R. A. 863, 39 Am. St. Rep. 522). In both these cases not only had there been a subsequent grant without restriction, but the grantees had engaged in the sale of intoxicating liquors, so that the purpose of excluding that business from the community was frustrated. Such is not the case here, however. Although some of these lands have passed out of the original grantor by conveyances not containing the restrictive clause, yet they have passed into the hands of parties who have thus far observed the original purpose. There has been in fact no substantial departure from the original scheme as to the entire plat. The defendant has not, therefore, had his property subjected to any diminution in value because of the departure from such scheme. More than this, as to such restrictions as are contained in this deed, it does not necessarily follow that, because the restrictive covenant is not inserted in deeds of all the property on this entire plat, therefore this restrictive clause is of no effect. As was said in Clark v. Martin, 49 Pa. St. 298, in referring to such a question as this:

“It was objected at the argument that this remedy applies only as a means of compelling an observance of the terms involved in a general plan of lots, and this element actually exists in about half of the cases just cited; yet they are not decided on that consideration. It is not because a plan is deranged that the court interferes, but because rights are invaded, or about to be; and this fact may exist in a plan of two lots as well as in one of two hundred. The plan often furnishes the proof of the terms on which sales were made, but the fact of the alleged terms is as effective when proved by a single deed as when proved by a plan.”

We find it unnecessary to determine whether, if the failure of restriction had in fact resulted in the building up of business blocks on other portions of King avenue, this would have relieved the defendant of his obligation. We think the decree of the court below has sufficiently protected the defendant when, by its terms, it has left it open to him to bring to the attention of the court any changed conditions in the property which may take place at a later day. , •

The decree will be affirmed, w’ith costs.

Hooker, C. J.s Moore and Grant, JJ., concurred.


author: Carpenter, J. Hooker, C. J.

text:
    NEW ERA ASSOCIATION v. MACTAVISH.
    1. Life Insurance — Stipulations—Construction—Evidence.
    A stipulation in an application for a life policy that, if the-applicant’s statements were untrue in any particular that-would have led to his rejection if correctly stated, the policy should be void, is for the construction of the court, and the company’s officers cannot be permitted to testify that the-application would have been rejected if certain facts had been truthfully stated therein.
    2. Same — Material Misrepresentations.
    Under the stipulation, it would require a material misrepresentation to avoid the policy.
    3. Same — Expert Testimony.
    It is not competent for the medical director and secretary of a life-insurance company to testify that, in their opinion, the facts misstated in an application for a policy were material to the risk.
    4. Same — Family History.
    An applicant for insurance stated in his application that the cause of a sister’s death was kidney inflammation, whereas it in fact was chronic pneumonia. Held, not prima facie a material misrepresentation.
    5. Same — Evidence—Presumptions.
    Where, in a suit to cancel a life policy, there was testimony tending to show that insured would have been an acceptable risk in ordinary companies, notwithstanding a sister had consumption (he being over 40 years of age, and not living in her family), it could not be presumed that a statement by insured in his application that his sister enjoyed good health was a material misrepresentation.
    Appeal from Kent; Perkins, J.
    Submitted November 19, 1902.
    (Docket No. 109.)
    Decided April 28, 1903.
    Bill by the New Era Association against Maggie Mactavish to set aside a contract of life insurance and enjoin an action for its collection. From a decree for defendant, complainant appeals.
    Affirmed.

      Knappen, Kleinhans & Knappen, for complainant.

      Lee K. Joslyn, for defendant..
   Carpenter, J.

Janúáry 6, 1898, complainant insured the life of Duncan A. Mactavish. Defendant was the wife of said Mactavish, and the beneficiary in said contract of insurance. In June, 1898, it was discovered that said Mactavish had tuberculosis, and he died from this disease on the 17th of the following November.

At the time he was insured, Duncan A. Mactavish was a physician in active practice in West Bay City. He was one month less than 43 years of age, 5 feet 10$ inches in height, and weighed 178 pounds. He had never been attended by a physician, nor apparently been unable to attend to his active work. His weight had, however, diminished about 10 pounds during the preceding year, and about 40 pounds during the preceding six or seven years. To. procure this insurance, Dr. Mactavish made an application in which, among other things, he stated that he was in good health and of sound body, that the health of his living sisters was good, and that the cause of the death of a deceased sister was kidney inflammation.

After the death of Dr. Mactavish, defendant commenced a suit at law in the circuit court for the county of Bay to recover on said contract of insurance. Thereupon complainant commenced this suit in the circuit court for the county of Kent, in chancery, to set aside the contract of insurance on the ground that it was procured by fraud, and obtained an injunction restraining the prosecution of said suit at law. Complainant’s right to resort to chancery for relief, and to enjoin the pending suit at law, was determined by this court in Mactavish v. Kent Circuit Judge, 122 Mich. 242 (80 N. W. 1086). The hearing in the lower court resulted in a dismissal of the bill of complaint, and a decree in favor of defendant on her answer in the nature of a cross-bill for the amount stipulated in the insurance contract. From that decree complainant appeals. It contends that the insured obtained the contract of insurance by fraud, in these particulars

1. Instead of being in good health and sound body, as represented, he was afflicted with diabetes and tuberculosis.
2. Instead of having good health, as represented, his sister Jane Mcllvenna was afflicted with tuberculosis.
3. Instead of dying from kidney inflammation, as represented, his sister Kate. Manson died from chronic pneumonia.

We will examine each of these questions separately.

1. Did the insured have diabetes and consumption on January 6, 1898, when he represented his health to be good and his body to be sound ? There is testimony tending to prove complainant’s contention. On the other hand, there is more convincing testimony to the contrary. We are convinced that he did not have diabetes January 6, 1898, and that he subsequently contracted the tuberculosis which occasioned his death the following November. To-discuss this testimony in detail, and to give reasons for our conclusion, would serve no useful purpose:

2. We can discuss the second and third claims of fraud' together. While we do not think the testimony warrants the claim that Dr. Mactavish acted in bad faith in representing the condition of the health of one sister or the cause of the death of another; it does warrant the claim that the representations were in fact untrue. Assuming, without deciding, that Dr. Mactavish was responsible for unintentional false statements, the question arises whether such false statements avoid the policy.

Dr. Mactavish agreed “that, if these statements are-untrue in any particular which would have led to my rejection had it been stated in accordance with the facts, whether intentionally or otherwise, then this contract shall be null and void.” The only evidence that Dr. Mactavish would have been rejected, had he correctly stated the condition of Mrs. Mcllvenna’s health and th© true cause of Mrs. Manson’s death, is the testimony of Dr. Ruffe, complainant’s-medical director, and Dr. Webster, its secretary, to the-bald proposition that, if these facts had been truthfully stated, the contract in question would not have been made. This testimony was taken subject to defendant’s objection that the same was incompetent and irrelevant.

We think this objection must be sustained and the testimony disregarded. There is no pretense that Dr. Mactavish knew, or had any reason to know, the practice of complainant’s officers. If the construction of this language depends on the practice of the insurance company which uses it, then it follows that, if used by two or more companies, it will have a different meaning if the companies differ in their methods. To adopt the theory of complainant is to permit one of the parties to a contract to determine its construction. ‘ ‘ The insurer cannot be permitted to testify that he would not have taken the risk had he known the facts.” 2 May, Ins. § 580. The language under consideration must be construed by the court. In our judgment, it is susceptible of but one construction: Any material misrepresentation avoids the contract.

Were the misstatements under consideration material ? It is assumed in the briefs that the testimony of Drs. Ruffe and Webster, above referred to, maybe regarded as their opinion that these misstatements were material; and an attempt to justify their testimony is made by citation of authorities holding it competent for an expert witness to state his opinion of what is material. The authorities touching this question are most carefully collected and analyzed by Judge Taft in Penn. Mut. Life-Ins. Co. v. Mechanics’ Sav. Bank, 19 C. C. A. 286, 72 Fed. 413, 38 L. R. A. 33. We agree with his conclusion: “The great weight of authority in this country, however, is against the view that an insurance expert may be asked his own opinion whether the undisclosed or misrepresented facts were material to the risk; ” and that “ the proper form in which the question might have been put to a duly qualified witness was, ‘ Are you able to say, from your knowledge of the practice and usage among life-insurance companies generally, that information of this fact would have enhanced the premium, or would have led to a rejection of the risk ? ’ ” Tested by this principle, there was no evidence tending to prove the misrepresentations under consideration material. Without such evidence, we cannot, under the authorities, find that the misrepresentation of the cause of Mrs. Manson’s death was material. The chronic pneumonia of which she died furnished no evidence of hereditary disease. The defendant introduced testimony tending to prove that Dr. Mactavish — being over 40 years of age, and not living in her family- — would have been an acceptable risk, according to the rules and practice of ordinary insurance companies, notwithstanding the fact that his sister Mrs. Mcllvenna had consumption. We are referred to no authority which authorizes us to disregard this testimony, and assume of our own knowledge that this misrepresentation was material. We do not believe that we can make any such assumption. We are bound, therefore, to decide that the misrepresentation of the condition of Mrs. Mcllvenna’s health was immaterial, and did not avoid the contract.

It results from this reasoning that the decree of the court below must be affirmed, with costs. •

Moore, Grant, and Montgomery, JJ., concurred with Carpenter, J.

Hooker, C. J.

(dissenting). I am unable to avoid • the conviction that the preponderance of the evidence in this cause establishes the fact that the insured was suffering from an incurable disease when his application for membership was made. I am of the opinion, therefore, that the complainant is entitled to a decree.