author: Long, J.

text:
    GERMAIN v. CENTRAL LUMBER CO.
    1. Logging Contracts — Construction—Pakol Evidence.
    A contract between a logger and a sawyer was evidenced by two papers delivered at tlie same time, tire one, a letter offering to sell the logs for a stated price per M., payments to be made in advance in negotiable paper of specified amounts, upon which letter the sawyer’s acceptance was indorsed; the other, a letter bearing date one day later, offering to buy back the lumber manufactured from the logs at the same price per M. that was paid for them, and to pay a stated amount per M. for the sawing, which likewise contained the sawyer’s written acceptance. The logger agreed to take care of the sawyer's paper whether or not the logs were delivered as agreed Held, that it was competent for the sawyer to show by parol that the transaction was not a purchase and resale, but that it merely provided a security for advances.

      2. Same — Sawyer’s Lien — Release. ■
    The fact that the logger was to take up the sawyer’s notes on or before a certain date “from proceeds of sales of lumber,” that the time for the payment of the saw bill was extended beyond such date, and that shipments of lumber were in fact made from time to time, would not deprive the sawyer of his lien for the saw bill uxion lumber remaining in his possession.
    3. Same — Acceptance oe Note — Payment—Intent.
    Taking a note for a saw bill does not release a lien on the lumber for sawing, unless it is shown to have been accepted in payment of the bill.
    4. Evidence — Custom.
    A sawyer’s lien for his saw bill cannot be affected, while he retains the actual possession of the lumber, by any custom which relates merely to the method of removing lumber from the sawyer’s docks when no lien rights are involved.
    5. Same — Instructions.
    The admission of evidence as to such custom in a case involving a sawyer’s lien is prejudicial error, where the jury are instructed that they may consider “all the evidence in the case ” in determining whether or not the lien had been waived.
    6. Same.
    The exclusion of competent testimony, offered to show the real character of an ambiguous instrument, is prejudicial, although the court afterwards construes the instrument in accordance with the contention of the party offering such testimony, where the testimony might have aided the jury to a better understanding of the matters involved.
    7. Same — Waiver oe’ Lien — Intent.
    Upon an issue whether a sawyer waived his lien-on lumber for a saw bill by receiving notes in payment or by surrendering possession of the lumber, his testimony that he did not intend to waive his lien is inadmissible.
    8. Same — Burden oe Prooe.
    The burden is on the purchaser of lumber in possession of a sawyer to show that his lien for sawing had been terminated.
    Error to Saginaw; Snow, J.
    Submitted January 27, 1898.
    Decided March 15, 1898.
    Replevin by Edward Germain against the Central Lumber Company. From a judgment for plaintiff, defendant brings error.
    Reversed..

      Hanchett & Hanchett, for appellant.

      Weadock & Purcell, for appellee.
   Long, J.

This is an action of replevin for a quantity of lumber which defendant claimed to hold to secure the payment of certain bills for sawing it. Plaintiff contended that defendant had delivered the lumber to him, and had thereby released its lien for the saw bill, which claim was denied by the defendant. It was the contention of the defendant that, while the lumber remained on the dock, it was in its possession, and that the lien for the saw bill remained upon the lumber which was replevied. On the trial, the defendant waived return of the lumber replevied. The questions submitted to the jury were whether the defendant had a lien on this lumber at the time of the commencement of the suit, and whether the testimony tended to show that this lien had been waived and released by the defendant. The jury found in favor of plaintiff, and defendant brings error.

It appears that defendant operated a saw mill on Saginaw river.- In April, 1895, and for some time before that, J. W. Howry & Sons were engaged in lumbering in Saginaw and Canada, and they owned in Canada several million feet of pine saw logs. On April 5, 1895, Howry & Sons wrote defendant as follows :

“We wTill sell to you seven million feet of our Georgian bay logs, marked crescent or scroll, delivered to your mill, for $12 per M. feet, and commence delivering the same during the month of June, 1895, unavoidable delays excepted; you to give us $40,000 of your paper on account this date, and $25,000 more in amounts $5,000 each a few days previous to the maturity of the $25,000 paper given us by A. T. Bliss, same being in exchange for our paper; measurement of logs and lumber to be hereafter mutually agreed upon ; you to keep the lumber fully insured, and loss, if any, payable to us as -our interest may appear.”

The defendant, on the same day; indorsed the letter as follows:

“We hereby accept the above proposition of J. W. Howry & Sons.”

The following receipt was thereupon signed by J. W. Howry & Sons:

“Received of the Central Lumber Company, April 6, 1895, their paper as follows, all dated April 5,1895: Due four months, $5,000; August 20,1895, $5,000; five months, $5,000; sixmonths, $5,000; sevenmonths, $10,000; November 20, 1895, $10,000, — total, $40,000.”

On the same date as giving this receipt, J. W. Howry & Sons also wrote the defendant as follows:

“We hereby agree to buy back from you the lumber manufactured from logs sold you April 5, 1895, at the same price you paid us for logs, viz., $12 per M., and agree to pay you $1.75 per M. for sawing same; terms of saw bill to be six months from completion of each million feet, but notes to be made for each two million feet cut, and time averaged. We will take up your paper given us on account of purchase of logs on or before July 1, 1896, from proceeds of sales of lumber, and agree to keep the lumber insured; you to manufacture the logs in good and workmanlike manner, and subject to our instructions. You will also give renewals of your notes from time to time, but such renewals not to extend beyond July 1, 1896. The paper you give us shall be taken care of by us, whether the seven million feet of logs are delivered to your mill or not. You are to cut up to eight million feet of our logs if we have them.” '

The terms of this writing were also accepted by the defendant in writing. There was also written on the mar-, gin of this writing the following:

‘‘You to saw four million feet of our logs when they arrive. Then we agree to allow yob to saw 30 days on, your own, and after that time you will turn back on our logs, and finish them.”

After these contracts were made, the logs described therein were delivered to defendant’s mill, and by it sawed into lumber during the season of 1895. The saw bills amounted to something over $14,000, and notes were given from time to time for them. These notes were paid or renewed; so that at the time of plaintiff’s purchase from Howry & Sons, as hereinafter stated, there remained several of them outstanding.

On April 23, 1896, Howry & Sons made a written proposition to plaintiff to sell him this lumber, situated at defendant’s mill, estimated at 1,641,000 feet, also to .sell him certain lumber situated at Hargrave & Sons’ ■docks, for $11 per M. for common, and $7 per M. for mill culls. This proposition was accepted. It appears that this lumber, as it was cut by defendant, was piled on its -docks at its mill in the usual manner of piling lumber when sawed for other parties, and the piles were marked “ J. W. Howry & Sons.” Lumber was sawed for other parties, and piled upon the same docks, and designated by marks. The Howry lumber was not all piled in one body on the same part of the dock, but other lumber was piled between portions of the Howry lumber; and the testimony shows that the Howry lumber was so marked by the bookkeeper of defendant, to distinguish it from other lumber.

A short time after the plaintiff purchased from Howry ■& Sons, while the lumber thus remained on the dock, he went to the defendant’s dock, and saw A. J. Linton, who was defendant’s manager, and had active control of the business done at the mill in sawing the lumber, and of the details of the business. Plaintiff testified that he notified Linton that he had bought the balance of the Howry lumber unsold upon defendant’s docks; that Linton expressed satisfaction, as the removal of the lumber would give the company more dock room. Witnesses Corcoran, Alverson, Little, and Holihan all testified, in substance, that Linton pointed out the lumber plaintiff had bought, assisted or was present at marking up to him piles of the Howry lumber that -there was any uncertainty about, saw the lumber shipped away to him, and received inspection bills of shipment as made. Linton denied that he had any knowledge of the plaintiff’s purchase until he -commenced to ship, and denied the testimony of Corcoran, Alverson, Little, and Holihan.

It appeared that, before the sale to plaintiff, Howry -& Sons had sold to Randall & Boyd, February 14, 1896, about 2,000,000 feet of its lumber sawed under the contract of April 5 and 6, 1895; to Thompson, Lamb & Co., in December, 1895, between 1,000,000 and 2,000,000 feet;-, and had made a sale to L. C. Slade, before the sale to Randall & Boyd, in February,' 1896, and to Jackson & Co.,, in 1895. Linton, on cross-examination, after testifying1 as to above sales, said:

‘ ‘ This Howry lumber was sold to Thompson, Lamb & Co., Lewis C. Slade, Randall & Boyd, Thomas Jackson & Co., and Germain; and Germain got what was left of the merchantable lumber, after all the other sales had been made.
UQ. Yes; and the other sales made by the Howrys had been chiefly shipped before Germain commenced shipping ?
“A. Yes, sir.
“Q. There was little, if any, of this Howry lumber on the docks, except some that belonged to Randall & Boyd,, when Germain commenced shipping the lumber ?
“A. There was some of the Thompson, Lamb & Co. lumber on the dock.
“Q. A small portion of that, and a small portion of the Randall & Boyd ?
“A. Yes, sir.
“Q. Now, all of this lumber which was shipped up to' the 15th of July included all these parties’ and included Mr. Germain’s? You hadn’t protested to the shipment made on the 15th ?
“Mr No.
Q. So that the first protest you ever made was on the 15th of July, when Germain sent down to take the balance of this lumber ?
“A. Yes, sir.
“Q. And after you had heard of the suspension of J. W. Howry & Sons ?
“M. Yes; I had heard of it. * * *
“Q. You knew there had been inspection bills of the lumber shipped to Germain furnished you?
“A. Yes.
“Q. You knew it meant it had been sold to Germain?
“M. No, Í did not, — only from hearsay.
“Q. You have been in the lumber business how many years ?
“A. Thirty.
“Q. And did you — your company — receive that inspection bill ?
“A. Yes, sir.
“Q. And that informed you that lumber had been shipped — this Howry lumber — to Germain ?
“A. I knew that Germain was getting that lumber.
“Q. You knew it from the time, at least, that you got this inspection bill ?
“A. Yes, sir; I knew he was getting the lumber.
“Q. And that continued up to July 15th, when you refused to let him have any lumber ?
“A. Yes, sir.
“Q. You said this morning you had heard some rumor before any shipments of this lumber that he had purchased it?
“A. It was common talk. I don’t know how I heard it.
‘ ‘ Q. That Germain had bought the balance of the Howry lumber ?
“A. That he had bought some of the Howry lumber; not the balance, but some of it.
“Q. That came to your knowledge before any of this lumber was shipped ?
“A. I think so.
“Q. So that, with that information, from whatever source you got it, you permitted Mr. Germain’s men to remove the lumber up to'the 16th of July, when you heard that Howry & Sons had suspended payment ?
“A. Yes, sir.
“Q. You never claimed, up to that time, to any one, that •you had any lien for saw bill or anything else, did you? I mean to Germain or any of his men.
“A. No, sir.”

Upon the close of the testimony, plaintiff’s counsel asked the court to direct a verdict for the plaintiff upon the grounds:

1. That by the contract of April 6,1895, between the defendant and J. W. Howry & Sons, it was not contemplated that the defendant should retain a lien for the saw bill, because by its terms it was contemplated that the lumber should be sold by Howry & Sons, and the proceeds applied upon the payment of certain notes described therein.
2. That, by the terms of the contract, it was contemplated that the saw bill should be paid by Howry & Sons giving their promissory notes for it, which they did, thus paying and discharging any lien on the lumber for saw bill.
3. That the notes given for the saw bill and the renewal thereof extended the period of the payment of the saw bill beyond the time when it was contemplated that the lumber should be sold and delivered by Howry & Sons.
4. That the terms of this contract are inconsistent with' defendant’s having any lien upon the lumber sawed by it for saw bill.

This request the court denied, and permitted the case to go to the jury. Plaintiff now contends that the court should have directed verdict in his favor. His theory is that the letter of April 5, 1895, and the acceptance, together with the letter of April 6th and the written assent to its terms, constitute a complete contract, clear and free from ambiguity, and that it is not competent to vary its terms by parol evidence; that, by the terms of the letter and acceptance of April 6th, it was clearly provided that the defendant was selling the lumber to be manufactured from the logs purchased from Howry & Sons under the contract of April 5th, and that the price was to be $12 and $1.75 for saw bill, or $13.75 per M.; that if this, then, was the lumber of the defendant, it could have no lien upon it for its own bill, but that, if the whole transaction was what the trial court held it to be,— an arrangement to secure the defendant for certain advances made to Howry & Sons, — this fact would not aid the defendant, for, by the terms of the agreement, Howry & Sons were to take up the paper given on account of the purchase on or before July 1, 1896, from proceeds of sales of lumber, and keep the lumber insured; that the term of the saw bill was to be six months, and defendant’s notes to be renewed until July 1, 1896; that it is therefore clear that it was within the contemplation of the parties, by their own contract, that Howry & Sons were to sell this lumber, and from the proceeds pay the purchase-price notes; that the lumber could be sold at any time, especially after it was marked with Howry & Sons’ name, on defendant’s docks; that all these arrangements make it clear that the court should have directed the verdict in favor of plaintiff. It is therefore contended that—

1. When the terms of the contract from which the alleged lien springs are inconsistent with the intention of retaining a lien, no lien attaches.
2. When the party claiming a lien has accepted promissory notes for the amount claimed, payable at a time in the future beyond the time at which the owner can remove the property, the lien is lost, and, when once lost, is lost forever.

The attention of the court below. was called to these claims by requests to charge, and the court stated:

“I think it was simply security for advancements. At the first reading, it would appear that it was a sale of the logs, and agreement afterwards made to purchase back the lumber to be manufactured from the logs ; but taking that with the other ingredients, and considering it as one obligation,- — one contract, — delivered at the same time, it is different, and I will take a different view of it. As I remember the proofs in regard to those two papers, there was no dispute but that these two papers were delivered at the same time.”

The defendant called its mandger, Mr. Linton, with Whom Howry & Sons made the contract, and he testified substantially that there was no agreement between the defendant and Howry & Sons that their notes given on the saw bill should be received in payment of the bill.

Counsel for plaintiff cite, in support of their above contention, Au Sable River Boom Co. v. Sanborn, 36 Mich. 358. In that case, however, it was found by the court that, from the terms of the contract, the owners of the logs had a right to remove them at any time, subject to the payment only of any sum then due, and that no understanding could be implied that the logs on hand should be retained as security for the payment at a future time of a sum not presently payable; that the owners of the logs therefore must have had a right to remove them after the acceptances were given, and consequently no lien attached. There the acceptances were taken at the request of the owners of the logs, and for their accommodation, and discounted by the plaintiff. The court found specially in that case that the usual custom of the plaintiff was to require payment for the running, etc., of logs, on delivery of the same to the owner; and in taking these acceptances, payable at a future time, the transaction was found not to be one in which the acceptances were taken as payment, the court saying: “The taking of acceptances, according to the well-settled doctrine in this State, was not payment of the demand, in the absence of evidence of an agreement that they should be received in payment;” citing Gardner v. Gorham, 1 Doug. (Mich.) 507, and Hotchin v. Secor, 8 Mich. 494. The court further said: “There is no evidence of' such an agreement here. It does appear, however, that the acceptances taken were payable at a future day, and we understand from the finding that they covered the whole amount then due.” It will appear at once in that case that the owners had the right to take the logs from the boom at any time, and that no understanding could be implied that it was the intention that the plaintiff should hold them as security for the payment at a future time of a sum not presently payable.

In the present case, the court below was correct in the interpretation given by him of the arrangement between the parties. The logs were turned over to the defendant as security for advances. It is true that, by the terms of the contract, Howry & Sons were to take up these notes before July 1, 1896, from proceeds of sales of lumber. They did take up certain of them from time to time as sales were made. The saw-bill notes amounted to just $14,000. The sawing amounted to something over that. But it cannot be said that Howry & Sons had the right to demand and receive the lumber at any time without payment of the saw bill, unless the notes were received by defendant as payment. Whether they were so received was a question of fact for the jury, under all the circumstances of the case. The mere taking of the notes was not evidence of this, and there is no agreement shown that the notes were to be so treated. Craddock v. Dwight, 85 Mich. 587. In Hughes v. Tanner, 96 Mich. 113, it was held that, in the absence of a reservation in a sawing contract of the right to ship the lumber before payment of the saw bill, the shipment of a portion of the lumber without protest will not prevent the contractor from claiming .a lien upon the remainder for the whole saw bill. The court was not in error in refusing to instruct the verdict for the plaintiff.

The defendant contends that the court erred in admitting the following testimony of the witness Corcoran:

“Q. Do you know the custom as to the delivery of lumber on saw-mill docks along the Saginaw river in July, 1896, during that season ?
“A. I do; yes.
l‘Q. State what it was.
“A. Well, any customer we do business for would ■direct its shipment. We would go to the dock with our lighter or vessel or cars, and load it on. Then, when we got through, we would send an inspection bill to the purchaser, one to the seller, and, if sawed at a custom mill, one to the custom mill, showing the total amount of lumber shipped. * * *
“Q. Tell u's what the custom was in reference to the delivery of lumber from the saw-mill dock, after the purchase, to the purchaser.
“A. When directed by the purchaser to remove the lumber, either the shipper or some one in his employ .is sent to the dock with his vessel or lighter or car; and if the lumber was plainly marked up, and we knew exactly the number of piles that went, and there was no question about it, we would direct him to go to such a place, and take such lumber. If there were any link in the chain lacking that we might be in doubt about as to where to place the lumber and place it right, we would ask them — -ask the mill men, or some one in charge there- — to show us the lumber, to put them right. I don’t remember that we have ever dealt with the Central Lumber Company in the delivery of lumber in that manner outside of the Germain case. Lumber is not loaded any -differently from their dock than from any other dock on the river. * * * In this case I sent an inspection bill to the Howrys, and one to Mr. Germain, showing the inspection of the lumber; the better lumber in one lot, and the mill culls in another. We sent to the Central Lumber Company an inspection bill showing the total amount. * * * The purpose of sending an inspection bill to the saw mill, the seller, and the purchaser, is to give the saw mill the record of the amount sawed, and to the seller and purchaser the amount of property shipped.”

Defendant’s counsel contend that the lumber remained under defendant’s charge, and in its actual possession, until it was removed from the dock onto lighters for shipment, and that there is no evidence of any acts showing a parting with the actual possession of the lumber by defendant, except as the lumber, which was from time to time loaded on the scows for shipment, was loaded and taken away; but that as to the lumber not so loaded, and which was replevied, it remained in the possession of the-defendant precisely in the same condition as when first piled on the docks. It is also contended that there is no' evidence in the case tending to show any agreement between the defendant and the plaintiff that any other act than the shipment of the lumber should be or constitute a change of possession of it. Thei’efore it is claimed that the custom which the court permitted plaintiff to inquire into by the testimony above set forth was wholly immaterial and incompetent to show any delivery by defendant to plaintiff of the lumber which was replevied,, or any parting with the possession by defendant, whereby it abandoned or released its lien; and that such testimony was misleading to the jury, as, under the charge, they were directed to consider it. The court charged the jury that—

“The question of delivery is one of fact, and it is mostly governed by the intention of the parties; and if, from all the evidence in the case, you find, from the conduct of the parties, as described by the witnesses, that it was the intention of the defendant company to deliver the lumber to Mr. Germain, then this conduct would amount to a delivery, and the defendant thereby waived all lien upon the lumber, and the plaintiff is entitled to recover.”

The court also charged:

“In considering the question of whether or not the defendant has a lien upon the lumber in question, you are1 at liberty to take into consideration all the evidence tending to show that no claim of lien was made upon said lumber by said defendant company up to the time when it was made known that Howry & Sons had suspended payment.”

It is contended that by these instructions the jury understood that they were to take into account the custom which was testified to by witness Corcoran, which custom was in fact nothing but a method of removing lumber from the dock by inspectors when they were sent for it; that the lien of the saw bill is preserved by retaining the actual possession of the lumber, and a parting with such possession is a termination of the lien; that custom has nothing to do with the facts which constitute an actual possession, and such custom as the witness was inquired of and testified to had no bearing upon that point.

It appears that there was no evidence of any act showing a parting with the actual possession of the lumber by the defendant, except that some lumber was from time to time loaded for shipment and taken away. The custom testified to was nothing in fact but a method of removing lumber from the docks by inspectors when they were sent for lumber. The lien of the saw bill is preserved by retaining the actual possession of the lumber sawed, and the custom of shippers could not destroy the right of the sawyer to such possession; nor is it any evidence of an intent to deliver all the lumber, and thus waive or terminate the lien. It had no bearing upon the facts which constitute the lien. It has been repeatedly held that custom cannot change a definite contract. Lamb v. Henderson, 63 Mich. 302, and cases there cited. Under the charge of the court, the jury were directed to take into consideration all the evidence in the case in determining the intention of the defendant to deliver the lumber, and if, from such evidence and the conduct of the parties, they found it was the intention of defendant to deliver it to plaintiff, the lien was waived, and plaintiff entitled to recover, etc. The jury may well have understood that this included the custom testified to by Mr. Corcoran. We think the testimony may have misled the jury.

Testimony was offered by the defendant to show the actual purpose and character of the contract between defendant and Howry & Sons; that is, to show that the actual title to the logs remained in Howry & Sons, and that defendant only had a lien. This the court refused to receive. We think the contract not so plain in its terms that it was not susceptible of explanation by parol evidence ; not for the purpose of contradicting or varying its terms, but to show what the understanding was as to the lien which defendant claimed, and that it was but a mere security for advancements made by defendant. The court, it is true, • did charge the jury that it stood as security for these advancements. But the testimony offered by defendant was competent to show that the logs were held as such security (Seligman v. Ten Eyck’s Estate, 74 Mich. 525); and such testimony might have aided the jury in a better understanding of the matters involved.

Claim is also made that the court erred in refusing to permit the witness Linton to answer several questions put to him by defendant’s counsel. He was asked: “Q. Have you at any time done or said anything by which you waived or intended to waive or release the saw-bill lien upon the lumber replevied ? A. No, sir.” After this answer was given, it was objected to as incompetent, etc. The court said: “The question as to whether he had done anything to release any lien would be calling for a conclusion, but the facts — -what was said and done— would be competent.” Witness was then asked: “ Have you at any time intended to waive or release the lien of the saw bill on this lumber ? ” “ State whether, so far as you know or intended, the lien has been kept on the lumber which was replevied. ” “ Have you ever given your assent to the release or waiver of the lumber to either Mr. Ger-main or the Howrys ? ” These questions were objected to as incompetent, and objections sustained. It appears that, in the earlier part of Mr. Linton’s examination, he was asked: “ What consent did you at any time give to the removal from the dock of the lumber that was replevied ? A. None whatever.” It is contended by counsel for plaintiff that this last question stated and answered was substantially an answer to the other questions, and for that reason no error was committed, even if the questions were proper. The contention of plaintiff’s counsel further is that this testimony was not admissible under the facts in the case — First, because it was in contradiction of, and varied the terms of, the contract of April 5 and 6, 1895; second, because the question was one to be determined by the jury, and the witness could not upon this fact declare his opinion or conclusion that he had a different intent than what his actions and conduct indicated, or that he had a different intent from that which would be the natural, reasonable, and only inference from his acts and declarations.

The first point made against the introduction of this evidence has no force. The contract was open to parol evidence to determine whether it was made for the purposé of securing the advances. But, upon the other ground, we think the court was not in error in refusing to ■ permit the witness to testify to his.intention in reference to the waiver of the lien. The defendant had a lien for saw bill, and unless something had been done by Mr. Linton, as manager of the defendant company, to waive it, the defendant had the right to its enforcement. If the notes for the saw bill were given and received as payment, it was a waiver of the lien. If Mr. Linton surrendered possession of all the lumber to the plaintiff, and agreed that he might remove it, Mr. Linton at that time knowing that plaintiff claimed to have purchased it from the Howrys, that would be a waiver of the lien. These were questions for the determination of the jury. The intention of Mr. Linton was not the controlling feature of the case, as suggested by the court in its charge. There were two questions for the jury: First, whether the notes for the saw bill were received as payment for the sawing; second, whether there was sue a surrender of the lumber by Linton, and taking possession of it by the plaintiff, as amounted to a delivery of the whole lumber purchased by plaintiff. Th ere are cases in which the intent is an important element in the transaction, some of which are cited by counsel for defendant. We think the present case comes within the rule of McKinnon v. Gates, 102 Mich. 621, in which it was held that neither party was entitled to testify to his understanding.

We think that the court was also in error in charging the jury that they might go back of the time of the sawing of the logs to find something to show an abandonment of the lien.

The defendant substantially asked the court to charge the jury to find the verdict in its favor by its requests numbered 4, 6, 7, 9, and-10, and now insists that the same ' should have been given. We think not. The question was one for the determination of the jury under all the circumstances. Notes had been taken for the saw bills, and there are some other circumstances which the jury might consider.

The court charged the jury that the plaintiff made a prima facie case by showing that he bought the lumber of Howry & Sons, and that he made a demand upon defendant for its possession before bringing suit. In this the court was in error. The defendant was in possession of the logs for the purpose of sawing them into lumber. When the lumber was manufactured, the defendant had a lien upon it for the saw bill. The burden was upon the plaintiff to show that this lien had been terminated.

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

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    MICHIGAN BEEF & PROVISION CO. v. COLL.
    1. Husband and Wife — Witnesses—Estates by Entirety.
    A husband has no such separable interest in lands held by himself and wife as tenants by the entirety that his testimony may be received “as against his portion” of the estate, over the wife’s objection, in a proceeding to subject the lands to the claims of his creditors.
    2. Same — Rights of Judgment Creditors.
    A husband’s undivided interest in lands held by himself and wife by entireties may be subjected to a judgment against him, where moneys were applied by him to the purchase of the lands after the debt had been incurred, notwithstanding the lands were contracted for prior to such indebtedness; and, in the absence of a contrary showing, it will be presumed that one-half of the payments made upon the contract were made by the husband.”
    Cross-appeals from Wayne; Haire, J., presiding.
    Submitted January 27, 1898.
    Decided March 15, 1898.
    Judgment creditor’s bill by the Michigan Beef & Provision Company against John Coll and wife and the Wayne County Savings Bank. From a decree subjecting an undivided one-half interest in certain lands to the payment of complainant’s judgment, both parties appeal.
    Affirmed.

      O. E. Angstmcm, for complainant.

      Peter E. Park, for defendants.
   Hooker, J.

A judgment was rendered in January, 1896, for $857.60, including costs, in favor of the complainant, upon an account which commenced in May, 1893, against John Coll. Execution was returned unsatisfied, and the bill in this cause was filed to reach certain real estate in Detroit, held by Coll and his wife as joint tenants under a conveyance dated July 10, 1895, made in pursuance of certain land contracts dated in 1887 and 1891, respectively. To prove the case, the complainant called as a witness John Coll. His wife objected to his testifying against her. The circuit judge expressed the opinion that the objection was good as to her estate, but that the testimony should be received “against the husband’s portion ” of the estate. The difficulty is that the husband has no portion in such an estate that is separable from that of the wife. It is but one estate, and it is impossible to carve anything out of it during the joint lives, without affecting the interest of the wife. Vinton v. Beamer, 55 Mich. 559; Speier v. Opfer, 73 Mich. 39 (2 L. R. A. 345). See Chandler v. Cheney, 37 Ind. 391, 396. In Newlove v. Callaghan, 86 Mich. 297, 301, this court did not consider the testimony of the husband, taken under objection, and thus was not called upon to determine whether it was admissible or not. The case of Blanchard v. Moors, 85 Mich. 383, seems to be decisive of the question, if we are right in saying that her interest is necessarily affected by the testimony, of which we are convinced.

It is necessary, therefore, for the complainant to establish its case by other evidence. This consists of the two contracts with payments indorsed, the deed, and the judgment, with execution returned unsatisfied. From these we find the lands were contracted before the debt was made, but that large payments were made after-wards. It is not shown who made them, or from whence the money came. In the case of Newlove v. Callaghan, supra, it is said that it is proper to presume that the husband made one-half of the payments, where no showing is made to the contrary. We may properly infer that all of Coil’s property is in this land, and that considerable was paid upon the contracts which he should have paid to his creditor, suit being then pending. This was not justified by the fact that he had outstanding contracts, and we think should be no more beyond reach than as though the entire title had passed to the wife, as said in Newlove v. Callaghan.

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

The other Justices concurred.


text:
    PEOPLE v. ABBOTT.
    1. Manslaughter — Undesigned Killing as Result of Unlawful Act — Abortion.
    A person who, while doing or attempting to do an unlawful act dangerous to human life, undesignedly kills another, is guilty of manslaughter at least, even though the act attempted was not unlawful at the common law. So held where the death of a woman pregnant, but not with a quick child, resulted from an attempt to procure a miscarriage by means of instruments, made punishable as a misdemeanor by 2 How. Stat. § 9108.
    2. Same — Information and Proof — Variance—Immaterial Allegation.
    An information for manslaughter, which clearly apprises the respondent that he is charged with causing the death of a pregnant woman through an unlawful attempt to procure a miscarriage, but alleges that the act was committed “with force and arms,” will support a conviction under proof that the deceased consented to the attempt; the question of consent being immaterial.
    3. Same — Evidence—Hearsay.
    The testimony of a physician summoned to attend a woman upon whom a criminal operation had been attempted, that he understood that certain money paid to him was paid on behalf of respondent, charged with manslaughter in causing the death of the woman by means of such attempt, is hearsay, and inadmissible.
    4. Same — Hostile Witness.
    The fact that such witness is adverse to the prosecution does not justify the introduction of such evidence.

      5. Same.
    Upon a prosecution for manslaughter in causing the death of a pregnant woman by procuring a miscarriage by means of instruments, statements made in the absence of respondent, by the midwife who was alleged to have performed the operation, that she was in the habit of performing them for the purpose of abortion and miscarriage, and describing the methods adopted, are inadmissible.
    Error to Hillsdale; Lane, J.
    Submitted January 28, 1898.
    Decided March 15, 1898.
    Remus M. Abbott was convicted of manslaughter.
    Reversed.

      Noah P. Loveridge and Corvis M. Barre, for appellant.

      Fred A. Maynard, Attorney General, W. H. Frankhauser, Prosecuting Attorney, and Guy M. Chester, ex-Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of manslaughter, as an accessory before the fact, in causing the death of Viola Stevens through the use of an instrument in an attempt to cause a miscarriage.

To understand the points raised, reference should be had to the statutes relating to the subject. 2 How. Stat. § 9106, provides that the willful killing of an unborn quick child, by any injury to the mother which would be murder if it resulted in the mother’s death, shall be manslaughter. Section 9107 makes an attempt to destroy an unborn quick child through medicine administered to, or instruments used upon, the mother, manslaughter when followed by the death of the child or mother, unless necessary to preserve the life of the mother, or so advised by two physicians. Section 9108 punishes as a misdemeanor the willful employment of drugs, etc., or instruments upon a pregnant woman, with intent to procure a miscarriage, subject to the exceptions mentioned in the preceding section. See 2 How. Stat. § 8438; People v. Olmstead, 30 Mich. 431. The information contained separate counts for murder and manslaughter, and also a count upon the last-mentioned section, viz., 9108. In his charge to the jury the learned circuit judge said that the defendant could not be convicted of murder, and that he could not be convicted of statutory manslaughter under section 9107, because Viola Stevens was not shown to have been pregnant with a quick child, in the sense that such term is used in the law. He instructed them that the defendant might be convicted of a misdemeanor, under section 9108, or that he might be found guilty of manslaughter, upon the theory that death to the mother resulted from the act, which was made unlawful and punishable by section 9108, under the well-established rule that “if a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act intended or attempted were a felony, the killing is murder; if unlawful, — malum in se, — but not amounting to a felony, the killing is manslaughter; if lawful, — that is, not being malum in se, — homicide by misadventure merely.” See People v. Scott, 6 Mich. 293.

The defendant’s counsel take the position that under these statutes there can be no conviction of the offense of murder where death is caused by any of the acts therein made punishable; that there can be no conviction of manslaughter in such cases except when the woman was, at the time of the commission of the act, pregnant with a quick child, as provided in sections 9106, 9107; and that it necessarily follows — the judge having determined and instructed the jury that Viola Stevens was not shown to have been pregnant with a quick child — that the defendant could be convicted, if at all, only of the misdemeanor created by section 9108. This contention rests upon the proposition that such act was not unlawful at the common law, it being no offense to attempt to produce an abortion upon a woman pregnant, but not with a quick child, with her consent, and upon the theory that the legislature has, by section 9107, shown an intention to reduce the offense from murder to manslaughter in cases where a woman pregnant with quick child comes to her death in this way, and upon the fact of its failure to provide in section 9108 additional punishment where the woman upon whom a miscarriage is sought to be produced dies in consequence thereof, from which it is said that it must be inferred that the intention was to make the penalty prescribed by that section the limit in all cases.

We think this theory should not prevail. If we could say that the law recognizes the lawfulness of attempts to produce miscarriages, there would be more force in the contention that a fatal result to the mother would be excusable homicide, though we do not mean to intimate such an opinion; but the legislature have been to the trouble to make the mere attempt to cause a miscarriage punishable by a year’s imprisonment, and we cannot believe that they intended that the death of the mother should be treated as a misadventure. It is more reasonable to believe that they left that subject to be governed by existing rules of law. Upon this theory it was reasonable for the circuit judge to say that the defendant could not be convicted of murder, because that would have been the extent of the offense had the child been quick; and it is not to be supposed that the law would be more severe in a case where the child had not quickened than where it had, even if, under existing rules, the passing of section 9108 would otherwise have made such offense murder. See Com. v. Railing, 113 Pa. St. 37. Without deciding this question, however, —it being unnecessary, — we must determine whether the conviction of manslaughter can be upheld. It may be, unless it can be said (1) that at common law a conviction could not be based on accidental killing through an unlawful act less than a felony, or (2) that it cannot be based on an act made unlawful by statute.

Mr. Bishop asserts that “if the act be both wrongful and in its nature dangerous to life, even if it be a misdemeanor, yet, if the element of danger concurs with the element of the unlawfulness of the act, the accidental causing of death thereby is murder.” 2 Bish. Cr. Law, § 691. See Tiff. Cr. Law, 815. Counsel contend that this is not a dangerous act, basing the contention upon the evidence of physicians, which is said to show that not more than 1 per cent, of cases are fatal to the woman, where the child has not quickened. We doubt if the effect of this statute is to depend upon the opinions of witnesses upon the question of the degree of danger. But, however that may be, the act was a misdemeanor, and accompanied by some danger to life, and we shall find much authority for holding that an indictment for manslaughter will lie in such a case.

“If a man happen to kill another in the execution of a malicious and deliberate purpose to do him a personal hurt by wounding qr beating him, or in the willful commission of any unlawful act which necessarily tends to raise tumults and quarrels, and consequently cannot but be attended with the danger of personal hurt to some one or other, — as by committing a riot, robbing a park, etc., — he shall be adjudged guilty of murder.” 1 Hawk. P. C. (Curw. Ed.) p. 86, § 10.

Again, Bishop says:

“And if the act were not directly dangerous, yet done with the motive of committing a misdemeanor, the offense would be manslaughter; but if, still not being dangerous, the motive were merely the commission of a civil trespass, the unintended death would not be indictable under all circumstances, though under some it would be manslaughter. To lay down, as to this, an exact rule, sustained by authorities, seems impossible. But, to illustrate, when a man discharges a gun at another’s fowls, in mere wanton sport, he commits, if he accidentally kills a human being, the offense of manslaughter, while his intended act is only, a civil trespass; and the same is the result when the firing of the gun which produces death is with intent simply to frighten another, or when one carelessly discharges the contents of firearms into the street. And where a lad in a frolic, without meaning harm to any one, took the trap-stick out of the forepart of a cart, in consequence of which it was upset, and the carman, who was in it, putting in a sack of potatoes, was thrown backward on some stones and killed, the lad was held to be guilty of manslaughter. Where one covers another with straw, and sets fire to it, if the intent is to do a serious bodily harm, and death follows, the offense is murder; if merely to frighten, it is manslaughter. (Errington’s Case, 2 Lewin, Crown Cas. 217.) * * * Giving one physic in sport, if it kills him, is manslaughter.” 2 Bish. Cr. Law, § 692, note 4; Id. § 693.

See People v. Scott, 6 Mich. 292.

Thus it appears that the unlawful act need not always be criminal, and, where the act done is not of dangerous tendency, the offense, when death accidentally follows, may be manslaughter. 2 Bish. Cr. Law, §§ 670, 694. Again, Mr. Bishop says:

“Though the intent of the wrong-doer is not to take human life, and the thing which he does is not of the dangerous sort contemplated in the last few paragraphs, still, by accident, it may result in death. And if it does, and if the thing intended was malum in se and indictable, whether as felony or misdemeanor, a discussion in our first volume shows that a felonious homicide is committed.” Id. § 694.

See, also, 1 Bish. Cr. Law, §§ 323-336.

In Com. v. Parker, 9 Metc. (Mass.) 265, it was said:

“The use of violence upon a woman, with an intent to procure her miscarriage without her consent, is an assault highly aggravated by such wicked purpose, and would be indictable at common law. So where, upon a similar attempt by drugs or instruments, the death of the mother ensues, the party making such an attempt, with or without the consent of the woman, is guilty of the murder of the mother, on the ground that it is an act done without lawful purpose, dangerous to life, and that the consent of the woman cannot take away the imputation of malice, any more than in case of a duel, where, in like manner, there is the consent of the parties.”

In this case it was held necessary to aver and prove that the woman was quick with child, and the indictment was held bad. The following language is significant:

“There being no averment, in the first count in this indictment, that the woman was quick with child, or any equivalent averment, and the judge who tried the case having instructed the jury that it was not necessary to prove such averment in the third count, the court are all of the opinion that, although the acts set forth are, in a high degree, offensive to good morals and injurious to society, yet they are not punishable at common law, and that this indictment cannot be sustained.” Id. 268.

From this and the foregoing authorities we may infer that, had the act been a misdemeanor at the common law, it would have supported an indictment for manslaughter. We are not advised of any authority which limits the application of this rule to acts which were misdemeanors at common law, nor do we see any good reason for so limiting it. In Yundt v. People, 65 Ill. 374, it was held that manslaughter would lie in a case closely analogous to the one before us.

• A further contention is that, granting that the act was indictable, the information would not support a conviction under the proof, in that it alleged that the act was committed with force and violence, while the evidence showed that it was done with the consent of Viola Stevens. It is urged that this was a fatal variance. We are cited to the case of People v. Olmstead, 30 Mich. 438, in support of this claim. In that case the information is very brief, and consists of the single statement that respondent, on a day and year and at a place named, “one Mary A. Bowers feloniously, willfully, and wickedly did kill and slay, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Michigan.” There was nothing there to indicate the fact of consent, or even the nature of the act. As the court said: “He might, perhaps, be fairly assumed bound to prepare himself to meet a charge of manslaughter by direct violence or assault. ” Moreover, that was a statutory charge of manslaughter under section 9107, 2 How. Stat. The information in this case was more specific. It clearly apprised the defendant of the nature of the offense, unless it was necessary to allege Viola Stevens’ consent, and to omit the allegation that the act was committed “with force and arms in and upon one Viola Stevens, in the peace of the people of the State of Michigan then and there being, ” etc. In our opinion, this was not a fatal variazice, especially as it was not necessary to allege or prove the assent of Viola Stevens to the act, and as the offense was the same whether she assented or not.

We are constrained to say that we think the testimony of Dr. Niblack, wherein he stated that he understood that certain money paid hizn by Mr. Shepard was paid upon behalf of Mr. Abbott, was hearsay, and inadmissible. The prosecuting officer urges that this was an adverse witzzess, but we think that does not justify the introductiozz of hearsay evidence. We think also that the statements of Mrs. Saunders, who is said to have performed this operation, that she was in the habit of performing them for the purpose of abortion and miscarriage, and her description to the witness of the method adopted, were inadmissible. It was competent to show the character of the act by proving that Mrs. Saunders was engaged in the business of committizzg abortions. As in the case of People v. Seaman, 107 Mich. 348, it was competent to show that others were operated upon for such a purpose by her, as it tended to establish the design with which the operation was performed. This might have been proved by persons cognizant of the fact; but the statements of Mrs. Saunders that she had done these things were .but hearsay, though it would have been different had Mrs. Saunders been on trial. In that case they would have had the force of admissions. Here they have not. They were not made in the presence of the defezidant, nor do they appear to have been brought to his knowledge, and acted upon.

The judgment is reversed, and a new trial ordered. ’

The other Justices concurred.


text:
    WHEELER v. DIME SAVINGS BANK.
    1. Mutual Benefit Societies — Receiver for Foreign Corporation — Local Assets — Rights of Members.
    A member of an insolvent mutual benefit society incorporated in another State will not be allowed, through garnishment proceedings instituted after the appointment of a receiver in such State, though before the appointment of an ancillary receiver in this State, tq subject property of the society within this State to a judgment upon a membership certificate maturing after the commencement of insolvency proceedings, though before a receiver was actually appointed.
    2. Same — Res Judicata.
    The fact that the member was allowed to prosecute to judgment his claim upon the certificate does not render res judicata the question of his right to satisfy his judgment out of the local assets of the society.
    Error to Wayne; McMahon, J., presiding.
    Submitted February 1, 1898.
    Decided March 15, 1898.
    Garnishment proceedings by David W. Wheeler against the Dime Savings Bank, as garnishee of the Supreme Sitting of the Order of the Iron Hall.. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Washington I. Robinson (George Gartner, of counsel), for appellant.

      O. E. Warner, for appellee.
   Hooker, J.

The Supreme Sitting of the Iron Hall was a'mutual benefit association, organized under the laws of Indiana. For a more complete understanding of its nature, objects, powers, and methods, reference is made to the eases, of Baldwin v. Wayne Circuit Judge, 101 Mich. 119 (25 L. R. A. 739), 432; Cohen v. Order of Iron Hall, 105 Mich. 283; Wheeler v. Order of Iron Hall, 110 Mich. 437. The plaintiff became a member of this society, and received a relief-fund certificate in August, 1885, maturing in seven years. In July, 1892, the society became insolvent, and on August 23, 1892, the superior court of Marion county, Ind., appointed a receiver, who qualified upon the same day, upon a bill filed in July, praying for a receiver, and the closing of the affairs of the corporation, and distribution of assets. On August 27,1892, the plaintiff, a resident of Michigan, began an action upon his certificate, and garnishment proceedings against the Dime Savings Bank. The action against the principal debtor resulted in a judgment on March 4, 1896, which was affirmed in this court. Proceedings were then taken to obtain a judgment against the garnishee, the disclosure having shown that it had a deposit to the credit of the local branch of the Iron Hall. This was contested by the receiver, and the plaintiff appeals from a judgment in favor of the garnishee defendant.

We now return to the proceedings to distribute the assets of the society. A month or so after the commencement of the plaintiff’s actions, a receiver was appointed by the Wayne circuit court, in proceedings ancillary to those in Indiana. Those proceedings were before this court twice; first in Baldwin v. Wayne Circuit Judge, 101 Mich. 119 (25 L. R. A. 739), where it was held that the fund in the possession of the local branch was the property of the Supreme Sitting of the Order of the Iron Hall, and that it was proper to direct the ancillary receiver to turn over the funds in his possession to the receiver when it was made certain that the members from thist State would share proportionately with members elsewhere. That decision recognized the right of the plaintiff to try the question of his alleged superior right to the fund garnished in the garnishment proceeding. In another proceeding an attempt was made to compel the circuit court to enjoin the prosecution of similar garnishment proceedings, but this was denied upon the ground that the discretion of the circuit judge should not be interfered with. It was also said that the plaintiff in that case had a right to try the question of a lien by virtue of his garnishment proceedings in that case. -Id. 432. The circuit court, having become satisfied that members in Michigan would be permitted to receive their proportionate share of the assets, made an order that the Michigan receiver-turn over the fund in his possession to the Indiana officer.

The exact question before us is whether, after the appointment of the Indiana receiver, and before he had succeeded in acquiring possession of funds in Michigan, — to which we have held that he was entitled, under the rule of comity, — the plaintiff could, by superior diligence, obtain an advantage over his fellow members, whose interests in the concern in common with his own were represented by the receiver, or whether he was obliged to content himself with the opportunity of sharing pro rata through the distribution to be expected from the Indiana proceedings. That it would be inequitable to allow him to appropriate the funds to the exclusion of others holding matured certificates is obvious. It may be that there are plain debts sufficient to absorb the entire fund. It may be that the only way in which he could obtain payment from the receiver would be through an assessment of the members. Were this a suit in equity, it would be easily disposed of by relegating him to the Indiana tribunal by the application of the maxim that “he who seeks equity must do equity.” But in a court of law a legal reason is required for depriving him of the lien of the garnishment which he obtained before the ancillary receiver was appointed. This must rest on one of two grounds: (1) That the law of Michigan recognizes the right of the Indiana receiver to the property, from the date and by virtue of his appointment ; (2) that the relation of the plaintiff to the corporation .and the other members is such as to deprive him of the legal right to satisfaction of his debt from the assets after the appointment of the Indiana receiver. In a sense, perhaps, the latter is included in the former proposition.

Passing a discussion of the former, we will examine the latter. We have shown the inequity of the plaintiff’s position. Wherever such a claim has been asserted in equity, it has been denied, so far as we have been able to ascertain, upon the ground that the member has contracted with reference to the law of the State which created the corporation of which he became a member, and must therefore submit to the jurisdiction and judgments of its courts in case of the insolvency of the corporation. It would seem that this would be a defense at law as well .as in equity, and it appears to be so held. See the following cases, cited by counsel: Weingartner v. Insurance Co., 32 Fed. 314; Fry v. Insurance Co., 31 Fed. 199; Taylor v. Life Association, 13 Fed. 493; Rundel v. Life Association, 10 Fed. 720. The last case cited goes so far as to hold that the effect is to make the receiver’s powers over property co-extensive with those of an assignee in bankruptcy, or a receiver of a national bank, springing from the territorial effect of a national law. This would support the first proposition. See, also, Davis v. Life Association, 11 Fed. 781; Bockover v. Life Association, 77 Va. 85. It may be said that these cases are distinguishable, inasmuch as the plaintiff’s policy matured before the Indiana receiver was appointed; but we think his rights depend upon his status when the Indiana proceeding was begun, which was before his policy became due.

But it is claimed that this question might have been and was raised by way of defense to the original action, and that it is therefore res adjudicata. If it be conceded that he secured a judgment to which he was not entitled, it does not follow that he is entitled to have it satisfied from property which, under his own contract, cannot be subjected to it. The decision of this question was not necessarily involved in the principal case, though it is true that, had his action been defeated upon the ground herein stated, or, for that matter, upon any other, it would have ended these proceedings.

In our opinion, the judgment of the learned circuit judge should be affirmed,” and it is therefore so ordered *

The other Justices concurred.


author: Grant, O. J.

text:
    WOOD v. LENTZ.
    1. Intoxicating Liquors — Sales to Husband — Civil Damages.
    It is not essential to the liability of a saloon keeper under the civil-damage act for injuries sustained by a wife by reason of the sale of intoxicating liquors to her husband, whereby he became an habitual drunkard, that such sales should have been made when the husband was intoxicated, or after he had become in the habit of getting intoxicated.
    2. Same — Continuing Cause of Action.
    The declaration in such case may properly allege the cause of action as a continuing one.
    3. Same — Witnesses—Husband and Wife.
    A husband is incompetent, under 3 How. Stat, § 7546, to testify against his wife without her permission, even where she is suing for damages resulting from the sale of liquor to him.
    Error to Mecosta; Palmer, J.
    Submitted February 1, 1898.
    Decided March 15, 1898.
    Case by Nettie Wood against Joseph Lentz under the civil-damage act. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John T. Clark, for appellant.

      Frank Dumon, for appellee.
   Grant, O. J.

Plaintiff recovered verdict and judgment for $375 against the defendant for damages alleged to have been suffered by her by the furnishing of intoxicating liquors to her husband by defendant, under Act No. 313, Pub. Acts 1887.

1. The plea was the general issue. Defendant objected to any testimony under the declaration, claiming that it did not state a cause of action. The declaration alleges sales to her husband on May 1, 1895, and on divers other days between that day and the commencement of the suit, May 15, 1896, in consequence of which he became an habitual drunkard, etc. It was not necessary to allege that the sales were made to him while he was intoxicated or.an habitual drunkard. The statute makes the saloon keeper liable for all damages which result to the wife by reason of his intoxication, and any one “ causing or contributing to” the intoxication is liable. 3 How. Stat. § 2283e3.

2. The declaration is not bad for duplicity. This is a civil, not a criminal, action, and People v. Hamilton, 101 Mich. 87, has no application. It was proper to allege the cause of action as a continuing one. The liability is not based upon a single act, but upon continuous ones.

3. The court committed no error in refusing to permit the plaintiff’s husband to testify against her without her permission. 3 How. Stat. § 7546.

4. It is urged that the court should have directed a verdict for defendant because there was no evidence of any sales or furnishing of liquor to her husband, within the time alleged, with the knowledge or consent of defendant. We have examined the record, and find plenty of testimony to sustain the verdict. It is unnecessary to set it forth. The entire question of liability was left to the jury, under full and correct instructions.

Judgment affirmed.

The other Justices concurred.


text:
    ROSE v. LOCKERBY.
    1. Evidence — Mortgages — Amount Due — Statements oe Deceased Mortgagor.
    Statements made by a deceased mortgagor, in his own interest, as to payments claimed to have been made by him upon the mortgage, are not admissible to prove such payments, though all the parties who knew the facts are dead.
    2. Same — Taxation—Assessment—Custom.
    The fact that a mortgage was assessed for taxation for the exact amount of the principal has no tendency to show that no interest was due at the time of the assessment, especially where it appears from the testimony of the local officers that all mortgages were customarily so assessed.
    3. Same — Ambiguous Indorsement — Presumptions.
    No presumption arises that a memorandum on the back of a mortgage owned by a decedent, “No. 131. January 2. Quincy. §4,719.50,” — was made by the deceased in the year the mortgage matured, to represent the amount due at that time.
    Appeal from Branch; Yaple, J.
    Submitted February 1, 1898.
    Decided March 15, 1898.
    • Bill by Lester E. Rose, administrator of the estate of Augustus S. Glessner, deceased, against Cornelia Lockerby and others, to foreclose a mortgagé. From a decree for complainant, defendants appeal.
    Affirmed.

      Loveridge & Loveridge, for complainant.

      Lockerby & Lockerby, for defendants.
   Long, J.

William Lockerby and wife, on January 2, 1886, executed and delivered to Augustus S. Glessner their promissory note in the sum of $3,916, due in. 10 years from date, with interest at 7 per cent, per annum, payable annually, and, on the same date, to secure payment of this note, they executed and delivered to said Glessner a real-estate mortgage in like amount, and payable at the same time. It is conceded by all parties that the note and mortgage are a valid and existing claim. The only question involved in the case is as to the amount unpaid on the same. William Lockerby died October 19, 1895, leaving surviving him a widow and three children, who are all of age, and who, together with the executor, William H. Lockerby, are all defendants in this suit. Augustus S. Glessner, the mortgagee, died March 19, 1896, and the bill in this cause is filed by his administrator to foreclose the mortgage. The case was brought on regularly for hearing upon proofs taken in open court, and a decree was made in favor of the complainant on March 1, 1897, for $6,589.86 and costs. From this decree the defendants appeal.

The complainant offered in evidence the note and mortgage, and proved by a circuit court commissioner, who had made a computation of the note and mortgage, that there was due upon them at that date, December 16, 1896, after deducting all indorsements that appeared upon the note and mortgage, the sum of $7,681.59. Complainant then rested. The proofs offered by the defendants were, in substance, as follows: Gilbert Corless, a farm hand who lived on the Lockerby farm from 1887 to 1891, testified that he drew from 20 to 30 cords of wood to Glessner each year; that he probably drew in all 100 cords, worth on fl,n average $3.50 per cord; that he did not know just how much he drew, and could only estimate it; and did not know whether or not Mr. Glessner applied this on the mortgage, or paid cash for a part of it. He further testified, under objection, as to some statements Mr. Lockerby, the mortgagor, made to him as to payments of interest on the mortgage in 1890 and 1891. Mrs. Cornelia Lockerby, the widow, testified, also under objection, as to some statements Mr. Lockerby had made to her as to his having paid interest on the mortgage. Fred Moore testified that he helped draw about 30 cords of 4-foot wood in the winter of 1887-88, worth $4 a cord, and that he knew of wood being drawn other winters, but did not know how much was drawn, and could only estimate it.

Defendants offered in evidence, also under objection, the assessment and tax rolls for 1892 and 1893 for the township of Quincy, from which it appeared that in the assessments of the mortgaged premises Mr. Glessner’s mortgage interest was assessed separately at $3,916, being the exact principal of the mortgage. The treasurer, J. D. Mosher, the witness through whom the rolls were offered, testified that it was the custom to assess mortgages for the amount of the principal as it appeared on the records; that he did not know the assessment was made in this case from any statements made either by Mr. Lockerby or Mr. Glessner; all he knew about it was as it appeared on the rolls. Edson Blackman testified that he was supervisor of Quincy in 1893, and that he assessed the mortgage interest of Mr. Glessner that year at $3,900; that he got the amount of the mortgage from Mr. Lockerby; that Mr. Lockerby gave in the mortgage to him at $3,900; that he could not swear whether it was interest or principal. The only other evidence' offered by the defendants was a notice of a mortgage sale of the premises, dated January 7, 1896, under which Mr. Glessner, as mortgagee, was proceeding to foreclose said mortgage at the time of his death, and in which he stated that there was due and unpaid on the mortgage at that date $6,100. The complainant then called Mr. Charles Howe, Mr. Glessner’s attorney, who testified that Mr. Glessner had talked with him in reference to his foreclosure of this mortgage, and had told him the whole transaction connected with the mortgage ; that there was more due upon it than he had put in the notice of sale; that it was a large mortgage on the piece of land, that he would get the place anyway, and that he did not think there was any use of putting any more in the notice.

This is practically all the evidence in the case.

It is admitted by counsel for the defendants that ordinarily the testimony of what Mr. Lockerby said as to payments upon the mortgage would not be considered as the best evidence, but it is claimed that in this case great latitude should be given, as the only parties who could testify to the facts are dead. The statements, however, of Mr. Lockerby as to the payments made upon the mortgage are wholly incompetent, and cannot be considered. They are statements in his own interest.

The fact that the mortgage was assessed in 1892 and 1893 for the face value can have no weight in determining the amount due, especially under the admission of witness that it was usual to assess mortgages for their face value; and this mortgage was so assessed.

The notice of the mortgage foreclosure made in the lifetime of Mr. Glessner, stating the amount due January 7, 1896, to be $6,100, was taken by the court to be the true amount at that time, upon which, computed with interest, it was found by the decree that only $6,589.86 was due, although the commissioner found $7,681.59 due, deducting all indorsements upon the note. Certainly, the defendants have no reason to complain of the action of the court; and the complainant, not having appealed, cannot now complain.

The mortgage, as printed in the record, shows a memorandum on the back of it as follows: “No. 131. January 2. Quincy. $4,719.50,” — but upon the hearing below, so far as this record is concerned, the attention of the court or counsel was not called to that memorandum, and no proofs were offered in reference to it. Counsel now claim that the memorandum is in the handwriting of Mr. Glessner, and that it must be presumed it was made in the year 1896, which would be the year the mortgage became due. We cannot assume that it was Mr. Glessner’s handwriting, or that it was made in 1896, and intended to represent the amount due at that time. Even if the presumption arises that it was made by Mr. Glessner, yet it might have been made in some year prior to 1896, and as well have represented the amount due in a former year.

Upon the whole record, we are satisfied the court below has not erred in the amount due on the mortgage. The decree must be affirmed, with costs.

The other Justices concurred.


text:
    SUNDERLIN v. MECOSTA COUNTY SAVINGS BANK.
    1. Banks — Insolvency—Collections—Trust Fund.
    Where a bank receives for collection a check drawn upon it by a depositor, and, after charging the same to his account, pending payment to the owner, passes into insolvency, the amount of the check does not constitute a trust fund in the hands of the receiver.
    2. Same — Drafts—Equitable Assignment — Preferences.
    The giving and receipt of a draft, drawn by a bank upon its correspondent, in the ordinary form, in favor of one from whom it has received certain paper for collection, does not constitute an equitable assignment pro tanto of an indebtedness owing by the correspondent, so as to entitle the payee, in the event of the drawer’s becoming insolvent before presentation of the draft, to priority over general creditors.
    Appeal from Mecosta; McMahon, J., presiding.
    Submitted February 1, 1898.
    Decided March 15, 1898.
    Eugene A. Sunderlin, as acting commissioner of the state banking department, filed a bill for, and obtained, the appointment of a receiver for the Mecosta County Savings Bank. The petition of the Fourth National Bank of Grand Rapids, for the allowance of its claim as preferred, was denied, and petitioner appeals.
    Affirmed.

      Fletcher & Wanty, for petitioner.

      M. Brown, for the receiver.
   Hooker, J.

On October 23, 1896, the Fourth National Bank of Grand Rapids sent by mail to the Mecosta County Savings Bank, for collection, a number of items, consisting of checks drawn by various persons upon the latter bank, amounting to $3,197.17. No money was received by the Mecosta Bank upon the checks, but they were charged upon the books of the bank against the several and respective drawers. On October 27, 1896, the Mecosta Bank sent to the Grand Rapids bank a draft for $3,194 upon its correspondent in New York, the Hanover National Bank, which, on October 28th, it forwarded to the Hanover National Bank. On receipt of this draft, the Hanover National Bank refused payment, on the ground that the Mecosta Bank had made an assignment for the benefit of creditors, and on October 30th returned the draft. At this1 time the Mecosta Bank had a credit of $4,638.82 with the Hanover Bank, which sum has since been paid to the receiver of the Mecosta Bank. The petitioner, the Fourth National Bank, asks that the receiver be directed to pay its claim, on the ground that it is a preferred creditor, and, has appealed from an order denying the prayer in its petition. -The claim is based upon two propositions: First, that there was a trust fund, arising from the collection of the checks, which came to the hands of the receiver; second, that the receipt of the draft amounted to an equitable assignment of the fund in the Hanover Bank, to that amount.

There is not entire harmony in the authorities upon this subject. Where there are circumstances of a special nature indicating an intention to make money received upon a collection a special deposit, such money has sometimes been held to be a trust fund, and the trust attaches to any actual fund into which the money received can be traced; and there have been cases which seem to go so far as to hold that this extends to all of the property of the bank, although it be evident that the actual fund into which the money was traced has been exhausted, and notwithstanding the fact that what remains could not, by reason of its different nature, by any possibility, include it. Again, other cases hold that it is not necessary to show that there was an actual receipt of money at all, but that it is sufficient if, through -a charge against a depositor, the bank takes credit for the amount, where the depositor has a credit equal to his check, a fact, by the way, which does not appear in this case. Such a case is McLeod v. Evans, 66 Wis. 401.

The question has arisen in this State several times. It was held in Sherwood v. Central Michigan Savings Bank, 103 Mich. 109, that a sum received by a bank upon a mortgage left for collection, with explicit directions not to credit the account of the creditor, who lived in the city, with the amount, when received, but to send it to him, was a trust fund; and that, when money so ' received by the bank was mingled with the other cash of' the hank, it would be presumed that it was not paid out, so long as such amount remained in the fund. In Sherwood v. Milford State Bank, 94 Mich. 78, it was held that, where the collection was not made in money, but a check was given, which was charged against the account of the drawer, and no money was received by the bank, no trust fund was created. The question was again discussed in Wallace v. Stone, 107 Mich. 190, and there the case turned on a question of fact, viz., whether the debtor actually paid the money upon the collection, after drawing it from the bank, whose certificate of deposit she held, or merely turned in the certificate in payment of the collection. A majority of the court thought the actual payment of money established. The minority, being of a different opinion, found it necessary to discuss the question involved in this case, and adhered to the doctrine applied in Sherwood v. Milford State Bank. As this opinion contains our views of the subject, with authorities, it is unnecessary to repeat them here. The following cases, cited by counsel, support our own decisions: People v. Merchants & Mechanics’ Bank, 78 N. Y. 269; City Bank of Hopkinsville v. Blackmore, 21 C. C. A. 514, 75 Fed. 771; Nonotuck Silk Co. v. Flanders, 87 Wis. 237, overruling McLeod v. Evans. There is nothing to show that any tangible thing was received by the bank upon these checks, and consequently there is no such fund in the hands of the receiver. The doctrine contended for would practically be to permit the establishment of a lien upon all of the property of the bank through a mere matter of bookkeeping.

Counsel rely upon the case of Fourth Street Bank v. Yardley, 165 U. S. 634, upon their second point. An examination of that case will show that it is exceptional, and that “a check drawn in the ordinary form-does not, as between the maker and payee, constitute an equitable assignment pro tanto of an indebtedness owing by the bank upon which the check has been drawn, and that the mere giving and receipt of the check does not entitle the holder to priority over general creditors.” Such is the case before us. There is nothing to show anything in the nature of an agreement that this check, drawn generally, should be paid out of a particular fund, or any representation regarding such fund upon which the petitioner relied, as in the case cited. Second Nat. Bank v. Williams, 13 Mich. 282; Grammel v. Carmer, 55 Mich. 201; Brennan v. Merchants & Manufacturers’ Nat. Bank, 62 Mich. 343; McIntyre v. Merchants’ Bank, 115 Mich. 255.

The order of the learned circuit judge is affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    FOSTER v. KENT CIRCUIT JUDGE.
    1. Garnishment — Statutory Rights — Chancery Order.
    An order of the chancery court permitting the complainant in a suit pending therein to commence an action at law for the same cause of action, and to sue out a writ of garnishment in aid thereof, but restraining all proceedings in the law court, after service of process, until the further order of the court, is unauthorized, as tying up the defendant’s funds without giving him the rights conferred by the garnishee statutes.
    2. Same — Appearance—Estoppel.
    Defendant’s appearance in the suit at law will not estop him from contesting the validity of such order.

      Mandamus by John J. Foster and Henry N. Anderson to compel William E. Grove, circuit judge of Kent county, to vacate an order permitting the complainants in a suit in chancery wherein relators are defendants to institute certain proceedings upon the law side of the court.
    Submitted February 1, 1898.
    Writ granted March 15, 1898.

      Fitz Gerald & Barry {Francis A. Stace, of counsel), for relators.
    Grane, Norris & Stevens, for respondent.
   Moore, J.

In 1896, Delos A. Blodgett and Delos F. Diggins filed a bill for an accounting in the circuit court in chancery, in Kent county, against the relators, to which bill the relators demurred, and a little later commenced a suit in the Montcalm circuit court upon the same causes of action set forth in the bill of complaint in the chancery proceedings. This action at law was enjoined by the circuit judge in chancery, upon the petition of the complainants, after which a hearing was had upon the demurrer filed in the chancery case, and the demurrer was overruled. It was the claim of the defendants in the chancery proceeding that the matters therein sought to he litigated should be litigated in a court of law, and not in chancery. An appeal was taken to the Supreme Court, and the judgment of the court below in overruling the demurrer was sustained. A reference to the case as reported in 114 Mich. 688 (Blodgett v. Foster), makes it unnecessary to make a further statement here of what was involved in that proceeding. In December, 1897, upon the petition of the complainants, an order was made in the chancery case allowing the complainants to commence an action at law in the circuit court for the county of Kent, against the defendants, for the same causes of action embraced in the chancery case, and also authorizing them to proceed by writ of garnishment against the Kent County Savings Bank, and ordering that, after the service of said writ of garnishment, the complainants and defendants should proceed no further in said action at law and said writ of garnishment until the further order of the court. The court was asked to vacate this order, which it declined to do. This is a proceeding to compel said order to be vacated.

A great many questions are raised and argued in the long and able briefs of counsel, which, in our view of the case, need not be discussed here. Garnishment proceedings are statutory. In Kennedy v. McLellan, 76 Mich. 598, it was said: “It has been held so- many times in this State that garnishee proceedings must follow the statutes strictly, and cannot be extended beyond the plain letter of them, that it is unnecessary to cite the numerous decisions so holding.” See Iron Cliffs Co. v. Lahais, 52 Mich. 394; Weimeister v. Manville, 44 Mich. 408; Ford v. Detroit Dry-Dock Co., 50 Mich. 358. It is important, then, to refer to the statutes in relation to garnishments. 3 How. Stat. § 8058, provides when the writ may issue, and that the garnishee defendant shall make a disclosure in not less than 14 days. 2 How. Stat. 8 8063, provides for enlarging the time in which to make a disclosure, hut does not allow it to be enlarged, except by assent, beyond the day previous to the first day of the term at which the suit against the principal debtor may be properly returned noticed for trial. Other sections of the statute provide in detail for the method in which the proceeding is to be conducted. Section 8100 provides that a failure to recover judgment against the principal defendant shall be deemed a discontinuance of the garnishment proceedings; section 8105, that the giving of a bond operates as a discontinuance of the garnishee proceedings. Section 8106 provides that, if the principal defendant does not appear in the cause within the time fixed by the statute and rules of court, the plaintiff shall proceed to perfect his judgment as soon as he is entitled to under the rules and practice of the court; and, if he does not do so, upon motion, or in the discretion of the court, the garnishee proceedings shall be discontinued.

The practical effect of the order of the court is to tie up the funds belonging to the defendants, without giving to them the safeguards provided by the statute. . Their hands are tied. They cannot proceed in the action at law in the manner provided by the statute. In effect, rights are conferred upon the complainants in the chancery case which would be denied to them in their capacity as plaintiffs on the law side of the court. The property of defendants is placed beyond their control, and the provisions of the statute are stayed until the further order of the court. This was unauthorized.

The suit at law was commenced by summons, and a general appearance was entered by defendants before they had knowledge of the order made in the chancery cause. As soon as they learned of the order in the chancery proceeding, they moved to vacate it. It is now said that, having appeared in the case, they cannot make this motion. We do not see how the entry,of the appearance of the defendants in the law case will justify the making of an order not authorized by the statute. The order made in the chancery case should be vacated.

The writ will issue as prayed, except that portion of it relating to the Montcalm county suit. The injunction as to that will stand until the further order of the court.

The other Justices concurred.


text:
    CROSKERY v. BUSCH.
    1. Taxes — Void Sale — Lien of State — Rights of Purchaser.
    A purchaser at a void tax sale does not, in the absence of statute, acquire the lien of the State by his purchase.
    3. Same — Payment of Subsequent Taxes.
    Taxes subsequently paid by the holder of a void tax title are voluntary payments, and cannot be recovered from the owner of the land.
    3. Same — Compensation for Improvements — Dispossession.
    The dispossession of a claimant under a void tax deed need not be by suit, in order to entitle him to compensation for improvements under section 104 of the tax law of 1893 (Act No. 206, Pub. Acts 1893).
    4 Same — Sufficiency of Evidence.
    Evidence that such a claimant cleared several acres of the premises, which were theretofore unimproved, built a brush fence around the clearing, and raised one or more crops thereon, establishes a possession sufficient to entitle him to the benefit of said section, where he was afterwards excluded from the land by the act of the original owner.
    Appeal from Gladwin; Sbarpe, J.
    Submitted February 1, 1898.
    Decided March 15, 1898.
    Bill by Robert Croskery and James Croskery, Jr., against William C. Busch and Jane A. Busch to enforce a lien upon land for taxes and improvements. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      Campbell & Foster, for complainants.

      F. L. Prindle, for defendants.
   Hooker, J.

The complainants claim to have taken possession under a purchase of State tax lands, sold for the taxes of 1889. Upon being dispossessed, they filed the bill in this suit to recover under section 104 of Act No. 206 of the Public Acts of 1893 for improvements made upon the premises, and to recover the amount paid as purchase price of said lands, and for taxes subsequently becoming a charge thereon. Three questions require consideration, — the first relating to the purchase price; second,, other taxes paid; and, third, the right to receive compensation for improvements.

The complainants’ claim is based upon the proposition that they acquired the lien of the State by their purchase, notwithstanding the invalidity of the title, which is due to the failure of the treasurer to make and file a report of sale. Millard v. Truax, 99 Mich. 157; Jenkinson v. Auditor General, 104 Mich. 34. Counsel cite the cases of Hoffman v. Harrington, 33 Mich. 392, Nims v. Sherman, 43 Mich. 45, and Morse v. Byam, 55 Mich. 594, which hold that the purchaser at an irregular foreclosure sale acquires all of the rights of the mortgagee. They say that, under the tax law, the State has a lien for the taxes upon the land, and, if the proceedings are irregular, the State may take neio proceedings to sell the land (citing Humphrey v. Auditor General, 70 Mich. 292), and urge that, as this right accrues to the State when it has not seasonably enforced collection, it is transferred to the purchaser of the land from the State after purchase, if it turns out that the State had not acquired a title.

We have been to some trouble to collect and examine the cases which permit the purchaser to recover the tax from the owner where his title fails. Some of them are cases where, on a bill to quiet title, payment of the taxes was made a condition of relief. Such a case is Jenkinson v. Auditor General, supra. Such holding rests upon the maxim that “he who seeks equity must do equity,” and is not necessarily conclusive in a case where a suit is brought to declare and enforce a lien, as in this case. While in a number of States the purchaser at an irregular sale is permitted to recover the amount paid, where the sale is declared illegal, an examination shows that in nearly, if not quite, all of them, statutes are the foundation for the relief. This will be found true in Nebraska, Arkansas, Mississippi, Indiana, and Kansas. Peet v. O'Brien, 5 Neb. 360; Bryant v. Estabrook, 16 Neb. 222; Hunt v. Curry, 37 Ark. 104; Cogburn v. Hunt, 56 Miss. 724; Flinn v. Parsons, 60 Ind. 573; Stephenson v. Martin, 84 Ind. 160; Fairbanks v. Williams, 24 Kan. 19; Russell v. Hudson, 28 Kan. 100; rn v. Hoppin, 25 Kan. 708. Not only are the above cases based upon statutes, but some of them indicate that a statute is essential to recovery. In the Mississippi case cited, it is said: “Unless, therefore, there is some provision of statute law upon which the relief prayed can be granted, it is inadmissible, under the- general principles underlying the law relative to taxation,” — citing Blackw. Tax Titles (4th Ed.), 446, 493 (star p.); Cooley, Tax’n, 242; Burroughs, Tax’n, 366. And see Cooley, Tax’n (2d Ed.), ,546. Again, in Cogburn v. Hunt, 57 Miss. 681, the remedy was refused where the statute had provided another. Again, in Stephenson v. Martin, 84 Ind. 161, it is ¡said: “Theremedy * * * is wholly statutory.” See, also, People v. Henckler, 137 Ill. 580, and Finegan v. Mayor, etc., of New York, (Sup.) 38 N. Y. Supp. 358, cited by counsel.

The State of Iowa furnishes many cases pertaining to the subject, and the inference may be drawn from some of the later ones that the right of recovery is not statu. tory; but we find, by looking at the earlier cases, that statutes existed giving the purchaser at irregular sales a right to recover the valid taxes. Claussen v. Rayburn, 14 Iowa, 136; Byington v. Woods, 13 Iowa, 17; Corbin v. Hill, 21 Iowa, 70; Everett v. Beebe, 37 Iowa, 452; Light v. West, 42 Iowa, 142; Besore v. Dosh, 43 Iowa, 211; Sexton v. Henderson, 45 Iowa, 160; Thompson v. Savage, 47 Iowa, 524. The last case cited indicates that all of these cases were based on statutes, as it not only mentions the statute then in force, but earlier ones, and goes so far as to apply the rule in a case where no levy of taxes had been made, and where, as said in the opinion, “the county and State had no claim for taxes for that year.”

As against this apparent uniformity, we are cited to no case which sustains the proposition of the complainants; and in our own case of Humphrey v. Auditor General, 70 Mich. 292, 296, where taxes assessed, but not seasonably collected through sale, were sought to be collected by sale under a statute authorizing a sale, it was said: “The taxes assessed were allowed to become a lien against complainants’ lands, and they have so continued ever since; but, for the want of proper legislation, their collection could not be enforced until the law of 1887 took effect.” Thus, it seems that this lien in the hands of the State could not be enforced in equity, and a statute was necessary to enable' the State to enforce its existing lien. Could an assignee of the State be in any better position in this respect ? This is but a recognition of the doctrine that taxes are not matters of contract, and that only statutory measures are to be resorted to for their collection. Cooley, Tax’n (1st Ed.), 300; Id. (2d Ed.) 15, 16; Eyke v. Lange, 104 Mich. 26.

It is manifest that the subsequent payment of taxes was voluntary, and cannot be recovered.

Many of the States have provided by statute that the purchaser shall acquire the lien of the State, and may -enforce it if title fails. These are statutory provisions in the furtherance of justice, and it is to be regretted that they have been dropped from our statutes. They are to be found in the tax laws of 1869 and 1885 (1 How. Stat. § 1167; 3 How. Stat. § 1169^7), but counsel for the complainants concede that they are not to be found in later tax laws. It is contended that this right exists under these laws by necessary implication from the fact that chancery is given jurisdiction to adjudicate upon the validity of taxes before sale, and the further provision, in section 70 of the tax law of 1893 (Act No. 206), that “the practice with reference to setting aside such sale shall be the same, so far as applicable, as in a sale in equity on the foreclosure of mortgages.” We think this inference is not warranted. The provision last cited should be held to apply only to the procedure in the suit brought by the auditor general, where, in that proceeding, the sale is attacked.

The remaining question relates to compensation for the improvements. Section 104 of the tax law of 1893 provides :

“If any person dispossessed of lands purchased in pursuance of the provisions of this act shall have made improvements thereon, he shall be entitled to recover what such improvements are worth, and shall have a lien on such lands therefor, and may enforce the same by bill in equity where no other provision is made by law.”

The evidence shows that the land purchased by the complainants was an unimproved 40-acre parcel, adjoining the defendants’ improved farm, which was occupied by a tenant. The complainants cleared a few acres, and surrounded it with a brush fence, and raised one or more crops there. The tenant was aware of this, and one of the defendants saw them dragging there, as he passed by upon the cars, and is said to have remarked that complainants could clear up his land for him if they wanted to. Subsequently he caused an emyloyé of the complainants to be prosecuted for trespass, the result being a conviction. We are of the opinion that the circuit court was right in its conclusion that the complainants had possession of a part, at least, of this parcel, and that they were dispossessed, and that they occupied and improved the same under the tax deed, in good faith. The evidence as to the value of the improvements is not as clear as we could wish, but, such as it is, it supports the conclusion of the learned circuit judge.

We are constrained to modify the decree by striking out the amount allowed for taxes and purchase price of said lands. As to the allowance of $125 for improvements, the decree of the circuit court is affirmed. The complainants are entitled to the costs in the circuit court. Neither party will be allowed costs of this court.

The other Justices concurred.