text:
    BEECHER v. FERRIS.
    1. Adverse Possession — Evidence.
    Where, in an action of ejectment for a strip of land which plaintiff claimed by adverse possession, a surveyor testified that he was employed by plaintiff’s grantor, 17 years before, to make a survey of the ground, and that the latter then claimed title up to the fence on the west side of his premises, it was proper to show, by way of characterizing his claim, that the original boundary, as located by the surveyor at the time, was east of the strip in controversy, and that he so indicated the line by a surveyor’s mark, which was yet visible.
    2. Same. '
    Evidence that the defendant had used the strip of land in question, lying east of his fence, for a pathway during part of the time for which plaintiff claimed to have been in adverse possession, was admissible in the former’s favor.
    8. Same — Facts Essential to Claim.
    A claim of adverse possession cannot rest upon the acts of the opposite party, but the acts relied upon must be those of the person, or of the representatives of the person, claiming title by virtue thereof; and such possession must have been actual, continued, visible, notorious, distinct, and hostile.
    Error to Wayne; Frazer, J.
    Submitted June 17, 1896.
    Decided July 31, 1896.
    Ejectment by George L. Beecher against Alfred Ferris and Osman B. Canney. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Henry M. Cheever, for appellant.

      John Galloway and Henry M. Dubois, for appellees.
   Moore, J.

Plaintiff owned lot 5. Defendant Ferris owned lot 6. Canney was a tenant under Ferris. Suit in ejectment to secure a piece of land, 2 feet by 16 feet, was commenced September 26, 1894, by the plaintiff, who claimed the land in question by adverse possession under color of title. The annexed plat will indicate the situation of the premises.

The case was tried by jury, who found a verdict in favor of defendants. The assignments of error relate to the admission of testimony, and the charge of the court as to what constitutes adverse possession.

The plaintiff offered a deed conveying lot 5 to his father; his counsel stating it was offered to show color of title, and that plaintiff’s claim was by adverse possession. The deposition of Mr. Robinson, the surveyor, was offered in evidence, in which he testified to making-surveys in January or February, 1878, and that the Ferris fence was there then, and that lot 5 was inclosed, and that Beecher claimed to own it. He further testified that he went down there with the attorney for plaintiff, to see how far Ferris had put his barn over on the line, and that it was over two feet; that he did not know how long the barn had been there; that it was six years since he had been down there. On the cross-examination he was allowed to testify that he made a survey of the west side of lot 5.

Cross-examination by Mr.- Galloway:

Q. The survey that you made, Mr. Robinson, in 1878, was that not the line between the Woodbridge and Log-non farms ? (Objected to, because it is immaterial where the line as surveyed was. The plaintiff claims, not by the survey, but by adverse possession of over 15 years, and therefore it is immaterial.)
“Mr. Galloway: My object in asking the question was to ascertain which line he made the survey of in 1878. (Court overruled the objection, and plaintiff’s counsel excepted.)
“A. The line between the Lognon and Woodbridge farms, and also the line of lot 5, west of it.
Q. You made a survey of both sides of the lot?
Yes.
“ Q. In making your survey of the west line of lot 5, —that is, the west side of Beecher’s lot, — did you drive in stakes, or make any marks upon the fence, in 1878 ?
“A. If there are fences, we make marks, but, if no fences, we drive stakes.
“ Q. If there is a mark upon the fence on the north side of Abbott street, made by you in establishing the line between lots 5 and 6, would that be the mark you made at the time of the survey in 1878 ?
“A. I do not know, because we made so many surveys. If there was one mark, we wouldn’t put another.
Q. In that survey of 1878, did you undertake to locate the old original line between lots 5 and 6 ?
“A. I guess they were their proper width, just as recorded.
‘ ‘ Q. That was the location of it by measurement from the east line of lot 5 ?
“A. Yes.
“Q. He had more inclosed there, according to the survey, I think, than he was entitled to ?
“A. There was a surplus.
“Q. You are aware that Beecher’s lot 5 was originally 100 feet?
“A. 100 and 80-100. They were that all along.
“Q. That was on the line of Howard street?
“A. All along.
“Q. You reckoned from the east line of lot 5 as it originally was, and measured 100 and 80-100 to the line on the west side ?
“A. That would be the proper distance; yes, sir.
“Q. How far can you say, with reference to Ferris’ fence, — how near to that measure?
“A. It must have been about two feet east of it.
“Q. That, then, would be establishing the old original survey ?
“A. According to the old record.
“Q. If the surveyor’s marks which appear now upon the fence bounding the north line of Abbott street, — if that mark was made-by you in 1878, that will indicate the old line, will it ?
“A. That will indicate the line of that lot according to the old survey.
“Q. And when you were down there, five or six years ago, you saw this barn, didn’t you ?
“A. Yes.
“Q. And did you recognize that that barn did not extend over the old line as you established it ?
“A. I should think it was about the right spot.
“Q. In making your survey of that lot you found there was a surplus ?
“A. I did.
‘ ‘ Q. And it had been taken by those on the Woodbridge farm?
“A. No, they hadn’t taken it. They had merely moved their fences over in different places.
“Q. So that the change that was made on lot 5 would be the surplus that belonged to the Lognon farm ?
“A. They moved their fences over as far as they could on the Woodbridge line.
“Q. Do you remember now the width of that strip ?
“A. Five or six feet some places; two feet other places. ”

This is assigned as error, but we cannot so regard it. In view of his examination in chief, we think it proper cross-examination. On the redirect examination he testified there was a surplus in the Lognon and Woodbridge farms, and that, in giving.Mr. Beecher his right width, he found the barn 25 inches over the line.

The plaintiff was sworn as a witness, and gave testimony tending to show that lot 5 was inclosed as long ago as 18,76, and that his father claimed to own all that was inclosed, and used it; that the barn had been moved over within four or five years; that his father built the fences alongside the street between the two side fences, and claimed all the land inclosed by the four fences; that, before the barn was moved over, the Ferris fence was built from the street to the alley, and connected with the alley fence. It was admitted that Ferris built the fence about 20 years before the trial of this cause, which was held in December, 1895. Defendant Ferris gave testimony tending to show that he had owned the property 20 years before commencement of suit; that his lot was commons when he purchased it; that the commons extended to Baker street; that the house had been built over 15 years; that, after erecting the house, he had a fence built to inclose the property; that at that time there were no stakes or posts to indicate the lines of his property; that his barn was built 5 or 6 years ago; that he built it 2 feet beyond the fence, because his surveyor told him that was his east line. He testified that he never had any arrangement with the Beechers as to the east line of his property; that at the time he built his fence there were no fences on the street or alley; that at that time Beecher’s property was a commons, and that lot 5 has never been ploughed. He did not know when the fences on Abbott street were put up, but it was several years after he built his fences. He further testified that he used the land east of his fence as a pathway to get to the rear of his lot from the street; that he never knew from Mr. Beecher, or any one representing him, that it was claimed he was encroaching on him after he built the barn, until the commencement of the suit. On the cross-examination he testified that he built the fence from the street to the alley, and when he built the barn he tore away 16 feet of it; that when he built the fence he did not know where the line was, and that he walked on the land east of his fence as a convenience, and not because he knew where the line was. There was testimony offered tending to show that the alley on the north side of lot 5 was opened in 1878 or 1880.

The defendants were allowed to show where Mr. Robinson, the surveyor, put his mark on the fence, on the north line of Abbott street, in 1878, about two feet east of the west line of lot 5, and this is assigned as error. We do not think this was error. What was done at that time by Mr. Robinson was done by him for Mr. Beecher, and would serve to characterize the claim at that time of Mr. Beecher. It was not a very important act, perhaps, but it was one of the acts of one of the parties, and it bore upon the question of the manner of holding. What is said of the admission of this testimony will also apply to the admission of the testimony of the use, by the defendant Ferris, of some of the land east of the fence as a pathway. A great deal more testimony was offered on the part of defendants, but the portions already stated will indicate the issues involved.

The charge of the court was as follows:

“This is an action of ejectment, brought by the plaintiff, Mr. Beecher, against the defendant Mr. Ferris to recover a strip of land 2 feet wide by 16 feet long, which is covered by a portion of the barn of said defendant. In order to maintain this action, it is necessary, under the declaration in this case and the pleadings in this issue, for the plaintiff to establish his right to this piece of land by what is known as ‘adverse possession.’ This adverse possession must be such possession as the law will recognize to be adverse. It must continue for the period of 15 years. This 15 years -must run from the time the adverse possession first began to the time that the barn in this case was built. This possession must be an actual possession; it must be continued; it must be continuous and unbroken for the period of 15 years; it must be visible, such as persons can see and recognize as being the possession of the plaintiff in this case, Mr. Beecher; it must be notorious, distinct, and hostile. So, before the plaintiff recovers in this case, -all the elements which constitute adverse possession must' be proven satisfactorily to you. It is conceded that the defendant is in the actual possession of this property, so that the question as to where the lines are cuts no figure in this controversy at all, because he is entitled, under the declaration, to a verdict at your hands, unless the plaintiff shall have established what I have defined to you to he adverse possession satisfactorily. You have heard the evidence in relation to the time at which this fence was erected. The building of this fence is one act .upon the part of the defendant. But the acts of the defendant are not what constitute adverse possession; it is the acts of the plaintiff; so that the acts of Mr. Beecher must be such as to come within the definition of ad verse possession in order to be able to maintain this suit. So he must have done some acts for 15 years previous to the building' of this barn, kept these acts up continuously during this 15 years, so as to satisfy you that the possession has been actual, continued, visible, notorious, distinct, and hostile. If any one of the elements fails in this, which is called ‘adverse possession,’ then the plaintiff cannot recover; but if he has maintained such possession by acts- on his part that will amount to what I have stated to you to be adverse possession, then the plaintiff can recover, and not otherwise. I have endeavored to make this as clear as I can in a few words. Plaintiff seeks to recover by adverse possession. I have defined to you what adverse possession is. All these elements that enter into the subject of adverse possession must be done by the acts, conduct, and behavior of Mr. Beecher or his representatives (that is, by Luther Beecher or his son), and not by the acts of the other man (that is, Mr. Ferris). So that, if you find that for 15 years this possession has been of that character, the plaintiff will recover; if you do not so find, then you will find a verdict for the defendant.”

It is the claim of plaintiff’s counsel that the trial judge practically told the jury that, because Mr. Beecher did not build the Ferris fence, he could not claim by adverse possession, and he insists that the charge was prejudicial to Mr. Beecher’s legal rights, and calls our attention to a great many authorities, all of which we have examined with care. We cannot agree with counsel in the conclusion he reaches. It was a disputed question as to whether the north 16 feet of the fence had been erected 15 years before it was torn away, and the barn put where it now is. The character of Mr. Beecher’s occupation of. the premises was also a disputed question, as was the time when the alley was opened. In view of this testimony, we can see nothing wrong in the charge. We think the charge of the court was a correct statement of the law of adverse possession. Yelverton v. Steele, 40 Mich. 538; Sparrow v. Hovey, 44 Mich. 63.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    CITY OF GRAND RAPIDS v. NORMAN.
    1. Ordinances — Conflicting Provisions — Hawkers and Peddlers.
    An objection that a city ordinance providing for licensing hawkers and peddlers, which purported to be amendatory of an ordinance that had previously been repealed, had rendered the law so uncertain as to make it impossible for peddlers to determine their exact rights, is not available to one convicted of violating a subsequent ordinance which covered the entire subject, and which operated to repeal all prior ordinances.
    O. Same — Reasonableness.
    An ordinance vesting in the common council the right to impose a license fee of not to exceed §15 per day for hawking and peddling will not be held void as unreasonable, where a uniform fee of §30 a year has been fixed by the council thereunder.

      Certiorari to superior court of Grand Rapids; Burlingame, J.
    Submitted June 18, 1896.
    Decided July 31, 1896.
    Jacob Norman was convicted of peddling without a license, contrary to the provisions of a city ordinance, and sentenced to pay a fine of $2 and costs of prosecution, and, in default, to be confined in the county jail until such fine and costs should be paid, not exceeding 10 days.
    Judgment affirmed.
    Defendant was convicted of hawking and peddling without having obtained a license under the provisions of an ordinance passed by the common council of the city of Grand Rapids June 26, 1893, entitled “An ordinance to revise an ordinance of the city of Grand Rapids entitled ‘An ordinance relative to hucksters peddling and hawking in the city of Grand Rapids,’ passed May 11, 1891, as from time to time heretofore amended.”

      Wesselius & Corbitt, for appellant.

      Henry J. Felker and Harvey Joslin, for appellee.

       The limit of the amount of license fees is the subject of an extensive note to State, ex rel. Toi, v. French, (Mont.) 30 L. R. A. 415,

   Grant, J.

(after stating the facts). Two objections are raised against the ordinance.

It appears that an ordinance covering this subject was passed May 27, 1872, and had from time to time been amended. The ordinance of 1891 upon the same subject expressly repealed the ordinance of 1872. On April 24, 1893, the common council passed an ordinance to amend section 1 of the ordinance of 1872. Why this was done does not appear, but probably from some confusion in the then council as to what ordinance was in force, and in ignorance of the fact that the ordinance of 1872 had been repealed. However this may be, the ordinance of June 26,1893, under which defendant was convicted, covered the entire subject, and operated to repeal the ordinance of April 24, 1893. The position of defendant’s counsel is that these various ordinances “rendered the law upon the subject of hawking and peddling uncertain to such an extent that it was not possible for persons engaging in said business to determine their exact rights, either as to the duties prescribed or the penalties inflicted for violations thereof.” No such difficulty arises if it be held that .the ordinance of June 26, 1893, is in force. We are of the opinion that it is, and that it repealed all other ordinances upon the same subject.

It is urged that the ordinance is unreasonable, and amounts to the sflppression of a legitimate business. The entire power over the regulation of this business is by the charter vested in the common council, not only to regulate, but suppress. Whether the power to suppress is constitutional is not before us. The action of the common council under the ordinance does not amount to suppression. The council are vested with the right to fix the license, in no case to exceed $15 per day. During the year 1895 it was fixed at $30 per year. The ordinance is not unreasonable, nor can it be considered a tax. City of Grand Rapids v. Brandy, 105 Mich. 670, and authorities there cited.

The conviction is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    KNAPP ELECTRICAL WORKS v. MECOSTA ELECTRIC CO.
    Mechanic’s Lien — Pleadings—Allegation oe Ownership.
    A bill to enforce a lien under section 1 of the mechanic’s lien law (Act No. 199, Pub. Acts 1893) is fatally defective if it fails to allege either that the defendant was the owner of the land against which the lien is sought to be enforced, or that he was possessed of an interest therein.
    Appeal from Mecosta; Palmer, J.
    Submitted June 18, 1896.
    Decided July 31, 1896.
    Bill by the Knapp Electrical Works against the Mecosta Electric Company, William E. Donley, and others, to enforce a mechanic’s lien. Prom a decree dismissing the bill, complainant appeals.
    Affirmed.

      George P. Stone, for complainant.

      C. 3. Thrall and L. G. Palmer, for defendant Donley.
   Moore, J.

The complainant’s bill in this case is filed for the purpose of enforcing the lien of a material man upon an electric lighting plant in the city of Big Bapids. The bill is taken by default as against all the defendants except defendant Donley, who defends on the ground that, at the time of the filing of the bill, he owned the plant, and was in full possession of the same, under a title from the Mecosta Electric Company, acquired by the foreclosure of a chattel mortgage executed to him by the Mecosta Electric Company, which title he claims is paramount and prior to complainant’s lien or claim. The case was tried upon pleadings and proofs taken in open court. The defendant introduced no proofs, but rested on the claim that the pleadings, together with complainant’s proofs, were not sufficient upon which to base any decree for complainant. Upon the completion of complainant’s proof, the defendant moved to dismiss complainant’s bill, for the reason that it had failed to make out its case by its pleadings and proofs. The motion was granted, and a decree entered dismissing the bill.

A great many questions are raised upon the part of the complainant, but, in our view of the case, it will not be necessary to consider many of them. The bill of complaint fails to allege that, at the time the machinery was sold for which it seeks to establish a lien, the Mecosta Electric Company, to whom it is alleged the goods were sold, owned any title or interest in the real estate against which a lien is sought to be enforced, or that it has owned any title or interest in said property since said machinery was sold. Neither did the complainant offer any proof of any title, leasehold, or other interest in said real estate, or of the franchise of the Mecosta Electric Company. The circuit judge regarded these defects as fatal.

It is essential to the creation of any lien, under section 1, Act No. 199, Pub. Acts 1893, that the contract be made with “the owner, part owner, or lessee of any interest in real estate.” A bill of complaint to enforce an alleged lien under that section, which fails to allege that the defendant was either owner, part owner, or lessee of the land upon which the lien is sought to be enforced, or to set out that the defendant had any interest therein whatever, is fatally defective. Clark v. Raymond, 27 Mich. 456; Willard v. Magoon, 30 Mich. 273; Wagar v. Briscoe, 38 Mich. 587; Peninsular General Electric Co. v. Norris, 100 Mich. 502.

We think the bill was properly dismissed. The decree is affirmed, with costs of both courts.

The other Justices concurred.


author: Montgomery, J.

text:
    FULLER v. KANE.
    1. Contracts — Construction.
    It will be presumed, in the absence of anything indicating a contrary intent, that the parties to a contract, in assuming obligations thereunder, did not have in contemplation any change in the existing laws which should affect their rights and duties.
    3. Mortgages — Duty to Pay Taxes — Change in Law.
    Hence, a stipulation in a mortgage that the mortgagor shall pay all such taxes and assessments as shall, by any lawful authority, be levied upon the mortgaged premises, does not impose upon him the obligation of paying taxes which, by virtue of subsequent legislation, are assessed against the mortgagee’s interest in the land.
    Error to "Wayne; Hosmer, J.
    Submitted June 12, 1896.
    Decided July 31, 1896.

      Assumpsit by Mary E. Fuller, trasteé, against Edward E. Kane, on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Gray & Gray, for appellant.

      Echoarcl E. Kane, in pro. per.

   Montgomery, J.

Prior to 1891, mortgages were assessed against the mortgagee, and the real estate was assessed against the owner. By the act of 1891, the legislature provided for the assessment of moi’tgages as an interest in lands, and relieved the mortgagor from taxation upon so much of his property as the mortgagee’s interest represented. Prior to the enactment of this law, in October, 1889, the defendant executed a mortgage, with a condition to “pay and discharge, or cause to be paid, within the time prescribed by law, all such taxes and assessments as shall by any lawful authority, while the money secured by these presents remains unpaid, be levied and imposed upon said premises above described and it was also agreed that “ should any default be made in the payment of the taxes and assessments,as above provided, or any part thereof, then in such case it shall be lawful for the party of the second part, her heirs or assigns, * * * to pay and discharge such taxes and assessments, and the money thus paid shall be a lien on said premises, added to the amount secured by these presents, and shall be payable on demand, with interest at five and one-half per cent, per annum.”

The sole question presented in this case is whether the stipulations above quoted imposed upon the mortgagor the duty of paying taxes assessed under a law subsequently passed, providing for an assessment against the mortgagee’s interest. The learned circuit judge was of the opinion that this undertaking was not to be so construed, and in that opinion I concur. As was said by Pollock, C. B., in Mayor, etc., of Berwick v. Oswald, 3 El. & Bl. 678:

“Every contract (which does not expressly provide to the contrary) must be considered as made with reference to the existing state of the law, and if, by the intervention of the legislature, a change is made in the law which in any degree affects the contract, such contract, made without some clear and distinct reference to the prospect and possibility of a change, does not hold with reference to the state of things as altered by the new law.”

This opinion is cited with approval in End. Interp. Stat. § 461, where it is said:

“The intervention of the legislature in altering the situation of the contracting parties is analogous to a convulsion of nature, against which they no doubt may provide, but, if they do not provide, it is generally to be considered as excepted out of the contract.”

In this case we think there is nothing in the language of the contract which evidences a purpose to extend the obligation of the mortgagor so as to make it include the duty of paying taxes which by subsequent legislation it is made the duty of the mortgagee to pay. The case cited above is instructive, and, while the opinion of Baron Pollock is a minority opinion, the conclusion of the majority appears to be based upon the view that language is employed in the contract under consideration which could not be operative if limited to conditions existing under the law in force at the time it was entered into, so that the principle announced by Baron Pollock seems not to have been controverted. We are cited to the case of Hammond v. Lovell, 136 Mass. 184, as sustaining the contention of plaintiff. In that case it is implied in the opinion that, prior to the enactment of the statute making the change in the manner of assessing taxes, the mortgagee, if in possession, was liable to be assessed upon the land, and that in that State the legal title to the mortgaged property is vested in the mortgagee. This would distinguish the cases, as, if such be the state of the law in Massachusetts, the undertaking to pay all taxes and assessments on the premises might, under the prior existing law, have imposed the obligation of paying the mortgagee’s taxes. However this may be, we are fully convinced that this provision should not be given the broad construction contended for, under the statutes of this State, and that the judgment should be affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    LUMLEY v. HAGGERTY.
    1. Adverse Possession — Life Tenant and Remainderman.
    The possession of a life tenant cannot be adverse to the remainderman.

    3. Same — Oooupanoy of Homestead by Widow.
    Under 2 How. Stat. § 5744, providing that a widow entitled to dower in the lands of which her husband died seised may continue to occupy the same with the children or other heirs, so long as the heirs or others interested do not object, without having the dower assigned, the peaceable occupancy of the homestead by the widow and minor children, after the renunciation of a life estate granted to her under the will, not followed by an assignment of her dower, is not adverse to the remainderman.
    Error to Wayne; Frazer, J.
    Submitted June 19, 1896.
    Decided July 31, 1896.
    Ejectment by Clara Lumley against Henry H. Haggerty and others. From a judgment for defendants on verdict, directed by the court, plaintiff brings error.
    Affirmed.

      Edgar Weeks (John Atkinson, of counsel), for appellant.

      Charles K. Latham, for appellees.

       The authorities as to adverse possession against remaindermen and owners of future estates are found in an extensive note to Gindrat v. Western Railway of Alabama, (Ala.) 19 L. R. A. 839.

   Long, C. J.

In 1853, Hugh Haggerty was the owner of about 400 acres of land in the township of Springwells, Wayne county, this State. On September 31st of that year he made a will, by which he gave to his wife, Fannie, a life estate in all the lands of which he should die seised, with, the remainder over to his son Henry Haggerty. On the day before the will was executed, he had executed deeds of most of his real estate to his children. His wife did not join in these deeds. He died the same day the will was executed. Within a year after the death of Hugh, his wife filed in the probate court a written declination to take under the will, containing a request that her dower might be assigned to her in the lands of her deceased husband. An order was made requiring the parties interested in the estate to appear upon the hearing of the petition to assign the widow’s .dower, but no further proceedings were ever taken in that matter. The deeds made by Hugh did not cover the homestead, and after his death the widow continued to live there with the minor children, and occupied the homestead up to the time of her death. This homestead covers the 33 acres now in controversy here. The widow, Fannie Haggerty, made her will on January 6, 1872, devising to her daughter, the plaintiff in this case, the residue of her estate after the payment of her debts and funeral charges. She died June 7, 1893. It appears that Henry Haggerty surveyed the homestead in the year 1880, and made an equal division of it to his four children, one of whom has since died. The other three are defendants in this case, Robert Hooten being made a party by reason of his tenancy under one of the children of Henry.

This action is in ejectment. The plaintiff claims through the will of her mother; the defendants, through deeds from their father. Plaintiff’s contention on the trial was that, Fannie Haggerty having filed her declination to take under the will of her husband, her life estate terminated, and, her dower not having been assigned she had no possessory rights in the property, but that Henry, having the estate in remainder tinder the will, had a right of entry immediately thereafter. It was further contended by the plaintiff that Henry never asserted any rights in the property thereafter, but, on the contrary, acquiesced in the rights which the widow claimed; that the widow thereafter exerciséd acts of ownership over the land, claimed title, and that it was thereafter called and recognized as hers; that roads and ditches were opened through the land, and the damages awarded to her, and for the opening of the ditches the widow paid the expenses; that she had paid the taxes, and had cut and sold wood off the premises without objection from Henry. It is also claimed that a settlement was had between the widow and Henry at or about the time she declined to take under the will, but just what settlement was made, if any, is not shown by this record. Defendants contended on the trial that the declination filed by the widow was defective in several particulars, and that the fact that she never carried her proceedings forward for the assignment of her dower is evidence that she abandoned them, and therefore claimed as a life tenant under the will; that this fact is shown by two leases which were made by her, some time before her death, to the husbands of two of her daughters, to continue for and during her own natural life. At the close of the testimony the court below directed the verdict in favor of the defendants.

Counsel for plaintiff contend that the question should have been submitted to the jury to determine the character of the possession of the widow for the 40 years she lived on the homestead after the death of her husband, — ■ whether she was there by the consent of the children, claiming as a life tenant, or claiming to hold adversely to Henry. If the defendants’ 'first contention be correct, —that the declination made by the widow was ineffectual to end her life estate,' — that would end the case; for, being in as life tenant, her possession could not be treated as adverse to the remainderman. But, if this contention be not sustained, we are of the opinion that there is nothing appearing upon the record showing, or tending to show, that the widow was holding adversely to Henry. % How. Stat. § 5744, provides that—

“When a widow is entitled to dower in the lands of which her husband died seised, she may continue to occupy the same with the children or other heirs of the deceased, or may receive one-third part of the rents, issues, and profits thereof, so long as the heirs or others interested do not object, without having the dower assigned.”

There is nothing in the record, that we are able to discover, showing, or tending to show, that any of the heirs, or others interested, during all the time the widow occupied the homestead, ever made objection to such occupancy by her. It was the homestead of her husband and herself and family. At his death she continued in possession with the minor children, the youngest of whom was nine years of age. Others were minors. Even after the declination to take under the will, the widow, made no change in her surroundings, kept the family at the homestead until they married, and from that time forward no one seems to have made complaint. Such holding by her, under the circumstances here shown, cannot be construed as adverse to Henry, who was given the remainder by the will. Her right to occupy the premises continued until her dower was assigned, or some steps were taken to partition the estate. Zoellner v. Zoellner, 53 Mich. 620, 627; Rea v. Rea, 63 Mich. 263; Kitchell v. Mudgett, 37 Mich. 81; Benedict v. Beurmann, 90 Mich. 396. The continuance of the widow upon the homestead after her disclaimer under the will was not an ouster of Henry, but, under the statute above quoted, was a legal entry, and, so long as Henry and the other heirs made no objection, her continuance in possession was not adverse. Hall v. Mathias, 4 Watts & S. 331; Cook v. Nicholas, 2 Watts & S. 27.

We think the court below very properly directed the verdict in favor of defendants. The judgment must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    WHITELEY v. WHITELEY.
    Ejectment — Claim op Title — What Constitutes.
    Where a defendant in an action of ejectment employed counsel to make a defense under a plea sufficient to support a claim of title, and refused to sign a paper disclaiming title, asserting, on the contrary, that he claimed an interest in the premises in question under a will probated before suit, and failed at the trial to put in any testimony after plaintiff had made a prima facie case, a finding that he made such a claim of title as to authorize the commencement of suit under 2 How. Stat. § 7791, was justified.
    Error to Ingham; Person, J.
    Submitted June 18, 1896.
    Decided July 31, 1896.
    Ejectment by Nellie M. Whiteley against James Whiteley and others. From a judgment for plaintiff on verdict directed by the court, defendants James, Walter, and Harry Whiteley bring error.
    Affirmed.

      Smith & Lee, for appellants.

      M. V. & JR. A. Montgomery, for appellee.
   Hooker, J.

This is an action of ejectment. Plaintiff recovered, and defendants James, Walter, and Harry Whiteley bring error. Numerous questions are presented in the case, but we think there is none calling for discussion, except the one relating to the defendants’ claim to the property in question, hereinafter referred to. It will suffice to say that we think the plaintiff made a prima facie showing of title, and that the objections which are urged to her proof of title are without merit.

At the close of the testimony, counsel for the appealing defendants made the claim that no proof showing that these defendants claimed title to the premises before suit brought was introduced. The statute (2 How. Stat. § 7791) authorizes the bringing of the action of ejectment in certain cases against a person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit, and all persons claiming any title to the premises adverse to that claimed by the plaintiff may in all cases be made defendants. There was no testimony in this case of any specific claim actually asserted by the appellants, or either of them, prior to the commencement of suit, unless the probating of the will hereinafter referred to be taken as such an assertion. The action was commenced in January, 1894. The case was not tried until June, 1895. For the purpose of showing that defendants Walter, Harry, and James Whiteley claimed an interest in the property at the commencement of suit, plaintiff called witnesses to show that on the 3d day of June, 1895, these defendants were visited, and a paper presented to each of them, reading as follows: “The Circuit Court for the County of Ingham. Nellie M. Whiteley v. James Whiteley et al. Ejectment. I did not when this suit was begun, never have since, and do not now, make any claim to the land in dispute herein, of any kind, adverse to the said plaintiff,” — and they were each requested to sign this paper. Each refused; and the witness who presented it testified that, as to Mr. James Whiteley, he (James Whiteley) said he could not sign the paper; that he had an interest in that property, through his mother’s will. The two other defendants stated that they made a claim through their grandmother’s will, they being sons of James Whiteley. This will was admitted to probate in November, 1893, and James Whiteley was appointed executor. It purports to devise certain interests, as follows: '

“All the real estate of which I may die seised or possessed, and all rights, claims, or interests' in real estate owned by me at the time of my death, I give, devise, and bequeath unto my son James Whiteley and my grandsons William A. Whiteley, Walter J. Whiteley, and Harry Whiteley, sons of said James Whiteley, in equal proportions, share and share alike.”

The specific property in controversy is not named in the ■will, so that whether the probating of the will, or its recording, would amount to an assertion or a claim of title, in and of itself, would depend upon whether the property was in fact the property of the testatrix. It is contended by the plaintiff that, inasmuch as the statement of each of the defendants was that he claimed under the will of Elizabeth Whiteley, the fair inference is that such claim was made at least as early as the probate of the will. To sustain the holding of the circuit judge, we must be able to say that this is not only a proper, but the most probable, inference to be drawn from the testimony. Pelky v. Palmer, 109 Mich. 561. We must view it in the light of the surrounding circumstances. Unless the deed from Elizabeth Whiteley to plaintiff’s father was valid, the defendant James and his three sons, Walter, Harry, and William Whiteley, became the owners, in equal shares, under the will of Elizabeth Whiteley. This will was probated before the action was commenced, and William Whiteley made a lease of the premises, or at least a portion of them, to defendants Eulton and Peters. James Whiteley was an uncle, and Harry and Walter were cousins, of Nellie Whiteley, the plaintiff. When the action was commenced, if not before, they were apprised of the plaintiff’s claim; and, if they made no claim to ownership, the natural thing for reasonable and just men to do was to inform her that they made no claim to the premises. Instead of this, they went to the expense of employing counsel to make a defense to the action, under a plea which was sufficient to support a claim of title. In addition, each refused' to admit that he did not claim title, but asserted that he did claim interests under the will,- a few days before the case was tried; and upon the trial neither of them took the stand and testified that he was not claiming title when the action was begun, which .might easily have been done had it been true. We think the most natural and rational inference to be drawn from these facts is that they were claiming title when the action was commenced.

The judgment is therefore affirmed.

The other Justices concurred.


text:
    MATHEWS v. GARMAN.
    Liquor Bond — Liability of Sureties.
    The liability of the sureties upon a liquor bond does not extend to the acts and conduct of a firm succeeding that whose members were principals in the bond, although one of such principals is a member of the new firm.
    Error to Muskegon; Russell, J.
    Submitted June 30, 1896.
    Decided July 31, 1896.
    Case by Charlotte D. Mathews against Samuel Garman and Christen Sinkback, saloonists, and the sureties on their bond, under the civil-damage act. Erom a judgment for the sureties on verdict directed by the court, plaintiff brings error.
    Affirmed.

      F. W. Cook, for appellant.

      C hamberlain & Cross, for appellees.
   Montgomery, J.

This is an action brought against the principals and sureties on a bond given under the liquor statute. In the spring of 1894 the defendants Garman and Sinkback formed a copartnership for the purpose of carrying on the saloon business in the city of Muskegon. The bond in question was made out in due form, with the other defendants as sureties, and filed with the county treasurer on May 4, 1894, and the tax was duly paid. It appears by the record that, on or about the 4th of June of the same year, the defendant Sinkback sold out his interest in the business to one Grossman, and, from that time on, Garman and Grossman continued the business. No further tax was paid to the county, and no new bond was given. A United States government tax was paid, however, and a receipt taken in the name of the new firm. It is in evidence that the sureties knew of the sale from Sinkback to Grossman, and that the business was being carried on by the new firm. It does not appear as to whether they knew that the new firm had not paid a tax and given* a bond, as required by law. Upon this showing, the circuit judge held that the sureties were not liable on the bond.

The rule that the contract of a surety is not to be extended beyond the scope of his undertaking, and that he has the right to stand upon the precise, terms of his contract, is well recognized; and it is held that an undertaking by a surety to answer for the defaults .of a copartnership continues only so long as the partnership continues. Brandt, Sur. §§ 99, 100 (2d Ed. §§ 119, 120); White Sewing Machine Co. v. Hines, 61 Mich. 423. In the present case it may well be said that the fact that the bondsmen were willing to become sureties for the good conduct of Garman and Sinkback does not necessarily indicate that they were willing to warrant the good conduct of Garman and Grossman. The consideration for their undertaking may have been their confidence in the business ability and pecuniary responsibility of Sinkback; and unless there is something peculiar in the nature of their undertaking, which extends its scope, it seems clear that the liability of the sureties cannot be successfully affirmed.

We are cited to the case of Abbott v. Morrissette, 46 Minn. 10. That action was brought upon a bond given pursuant to the statute, for the use of all persons who might do work or furnish materials pursuant to a contract for the construction of a building. The condition of the bond was that “M. & B. shall pay all just claims for all work done and to be done, and all materials furnished and to be furnished, pursuant to said contract, and in the execution of the work therein provided for.” After the work was entered into, B. withdrew from his relation as copartner, but M. went on and completed the performance of the contract. Plaintiffs, without' knowing this fact, furnished material which was used in completing the contract, and in the execution of the work therein provided for. The sureties were held liable, on the ground that the obligation of the principal obligors and of the sureties was not limited to debts contracted by such principal obligors, the original contractors. The court said: “The bond, by its terms, embraces the undertaking that the contractors, M. & B., should pay for labor and material furnished pursuant to the contract with the oioner, and in the execution of the work therein provided for.” To the same effect is Freeman v. Berkey, 45 Minn. 438, also, cited by counsel, and Kaufmann v. Cooper, 46 Neb. 644. These cases are distinguishable from the present. There the undertaking of the sureties was to protect those furnishing material to be used in completing a particular work, and it was held that this obligation rested upon them without regard to the question of whether the primary liability rested upon the principals or not. In the present case the undertaking is that the principals of these sureties shall not do certain acts, and shall conduct their business in a certain manner; and we think it would be an extension of their undertaking to hold them as guarantors of the good conduct of another and distinct firm. We do not wish to be understood as holding that in case of a mere sham sale, or an attempt to evade the law by a pretended sale which is a mere cover, the liability of the sureties may not continue; but we think there is no showing of such a state of- facts here, and' the circuit judgé was right in directing a verdict for the sureties.

Judgment affirmed.

The other Justices concurred.


author: Hooker, J. Montgomery, J.

text:
    BROOKE v. STRUTHERS.
    1. Mortgages — Principal and Agent — Authority to Collect.
    The discharge of a mortgage is not effected by the execution of a renewal mortgage to one authorized to collect the former, and the transfer of the new mortgage by him to a third person in satisfaction of a pre-existing indebtedness.
    2. Same — Security for Negotiable Paper — Payment.
    A mortgagor in a mortgage securing negotiable paper is not justified in dealing with the mortgagee upon the assumption that he is still the owner of the securities, unless he produces them.
    3. Same — Nonnegotiable Paper — Assignment.
    Payments made to a mortgagee, either in money or negotiable paper, without notice that the mortgage has been assigned, are good as against the assignee, unless the mortgage was given to secure negotiable paper, which was transferred for value before maturity; but the giving of nonnegotiable paper to the mortgagee under such circumstances will not operate as a payment. Per Hooker and Grant, JJ.
    4 Same — Rights of Assignee.
    An assignee of a renewal mortgage securing nonnegotiable paper acquires no valid claim against the mortgagor, where, without the latter’s knowledge, the original mortgage had been previously transferred to a third person, in whose hands it is still outstanding.

      5. Same — Recording Laws — Bona Bide Purchaser.
    Nor can lie claim any right under the recording laws superior to the holder of the prior mortgage by reason of the failure of the latter to record his assignment, — at least where the sole consideration for the transfer of the renewal mortgage was the satisfaction of a pre-existing debt, since that fact does not entitle him to be regarded as a bona fide purchaser for value.
    •6. Same — Construction oe Instruments.
    The terms of a note may be modified and controlled by an accompanying mortgage.

    7. Same — Negotiability—Time oe Payment.
    A provision in a mortgage securing a promissory note, and referred to therein, that the failure of the mortgagor to pay any tax or assessment upon the mortgaged premises for 30 days after it is payable shall render the whole debt, principal and interest, immediately due at the option of the mortgagee, does not destroy the negotiability of the note. Hooker and Grant, JJ., dissenting.
    '8. Same — Uncertainty as to Amount.
    But a provision in the mortgage requiring the mortgagor to pay all taxes that may be levied upon the lands “or upon this mortgage ” does have that effect, where the interest of a mortgagee in lands was taxable as such under the law in force at the time of the execution of the mortgage, since the amount payable to or on behalf of the mortgagee is thereby rendered uncertain.
    Appeal from Charlevoix; Corbett, J.
    Submitted October 24, 1895.
    Decided July 31, 1896.
    Bill by Fannie I. Brooke against Andrew R. Struthers, Franklin L. Knapp, and others, to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Harlow P. Davoch, for complainant.

      Lyon & Booling, for defendants.

       With this case as reported in 35 L. R. A. 536, is a note reviewing the decisions on the negotiability of a note secured by mortgage as affected by provisions in the mortgage.

   Hooker, J.

The complainant filed a bill to foreclose a real-estate mortgage given by Struthers to the Michigan Mortgage Company to secure a writing which reads as follows:

“$1,100.00.
a, 706.
“St. Johns, Mich., April 1, 1890.
“For value received, April 1, 1893, I promise to pay the Michigan Mortgage Company, Limited, or bearer, eleven hundred dollars, with interest at seven per cent, per annum, payable semi-annually, which said interest is represented by six coupon notes, one payable at the maturity of each installment of interest, and when paid shall be a voucher for the payment of said installments of interest respectively; all payable at the office of the Michigan Mortgage Company, Limited, St. Johns, Michigan, with exchange on New York.
“It is expressly agreed that, if the interest should be unpaid and in arrears for the space of 30 days, then, from and after the lapse of the said 30 days, the whole of said principal sum, with all interest unpaid, may, at the option of the holder hereof, become and be due and payable immediately thereafter.
“This note is of even date with a certain real-estate mortgage made by the maker hereof to said payee and collateral hereto.
“Andrew R. Struthers.”

These were assigned by instrument in writing to the complainant in the following language:

“The Michigan Mortgage Company, Limited, does hereby sell, assign, and transfer unto Fannie I. Brooke all its right, title, and interest in and to a certain mortgage (and note accompanying),” etc.

After the mortgage became due, the Michigan Mortgage Company accepted a new mortgage upon the premises, to take the place of the first; Struthers having no notice of the complainant’s ownership, and having made such adjustment in good faith. Under such circumstances the mortgagor would be protected if he had paid the mortgage, unless the mortgage were given to secure negotiable paper, which was negotiated before due. 2 How. Stat. § 5687, provides:

“The recording of an assignment of a mortgage shall not, in itself, be deemed notice of such assignment to the mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee.”

See, also, Jones, Mortg. §§ 479, 791; Jones v. Smith, 22 Mich. 363, and cases cited.

Any - such payment need not necessarily have been made in money. If it were negotiable paper that could be enforced against him, or property which had come to the hands of a bona tide holder for value, the same would be true. But a new promise, unperformed, would not relieve the mortgagor, so long as it remained in the hands of the mortgagee, and was not of negotiable character. But if the mortgage were given to secure negotiable paper, and was itself negotiable because so given, then the mortgagor would pay at his peril if he did not require the production of the obligations. Jones, Mortg. § 956. Hence, if this paper was negotiable, and was assigned for value before maturity, and the mortgage company had no authority to take a new mortgage to itself in satisfaction, the complainant’s claim as against the defendant Struthers would not be affected. Markey v. Corey, 108 Mich. 184.

Again, Knapp claims equities as against the complainant, as assignee of the second mortgage, which, as to its provisions, was exactly like the first. If he has acquired rights against Struthers, it is for the reason that the note is negotiable, because, if it is not, he took it subject to all equities existing between Struthers and the mortgage company, on the principle that the assignee of a chose in action takes it subject to equities existing between the parties. The principle is elementary, and does not -require the citation of authorities. That it applies in cases of mortgages where unaccompanied by negotiable paper, see Jones, Mortg. § 842, and cases cited; Reeves v. Scully, Walk. Ch. 248; Russell v. Waite, Id. 31; Nichols v. Lee, 10 Mich. 526 (82 Am. Dec. 57). That he has a prior claim to the complainant unless his mortgage was valid as against Struthers may not be contended, but, should it be, the same question — i. e., negotiability — is involved. His connection with the matter is as follows: He had done business for many years with the Michigan Mortgage Company, and, becoming dissatisfied with it, a correspondence began October 9, 1890, in relation to his securities which he had procured from the company. This continued until March 21, 1892, when he threatened to employ an attorney, and use force in settling up his matters, which he seems to have expected the mortgage company to attend to. This appears to have been adjusted, and on March 15, 1893, he sent the mortgage company $1,750 to purchase a mortgage of a Mr. Brown, about which there had apparently been correspondence. On March 29, 1893, the mortgage company wrote to Knapp, stating that the Brown mortgage was sold before the draft came, and stating, “Inclosed we hand you our draft, $1,750.” This letter described another loan for $1,800, apologized for keeping the draft 10 days after purchasing it for him, and adds: “If this meets your approval, please return the draft to us by return mail, since the loan will commence to draw interest April 1st, and send us another draft for the other $50.” On March 30th Knapp wrote, saying that he had just sent Walker $15.75 in coupons, and would inclose the balance of $50, needed to make the $1,800. This was acknowledged April 3d, with the promise to report, and on April 29th Knapp wrote again, having heard nothing, and asked the return of the money if a safe investment could not be made. On May 1st the company wrote, saying that the $1,800 loan had fallen thrdugh, and that they “had sent out papers for two loans, one of which — Struthers, $1,100” — they would forward as soon as papers were returned from register’s office. On May 1th the Struthers mortgage was sent. On May 8th Knapp asked them for information about tbe true situation and value of Struthers’ property. This was given. Correspondence continued about the remainder of the $1,800. Knapp kept the Struthers mortgage.

Struthers, as against the company, had a right to have the first mortgage discharged. That was the only consideration for the second mortgage. As long as the company held it, the existence of the first mortgage in the hands of the complainant was a complete defense against it, and, unless the note was negotiable, Knapp took it subject to these equities, and had no greater right .to enforce the mortgage against Struthers than the company had, in the absence of an estoppel.

The complainant had asked the company to collect the mortgage, and to let her know when they needed a discharge. The correspondence shows that it was expected that the company would collect the money, and, had payment been made to them by Struthers, we should think, upon this record, that it amounted to a payment to her. On April 21, 1893, complainant wrote the company as follows:

“Detboit, April 21, 1893.
“E. E. White, Esq.,
“St. Johns, Mich.'
Dear Sir: Your favor of the 20th inst. at hand, and noted. We understand from what you say regarding Struthers that he does not expect to pay, for we gave 60 days’ notice, and, if he expected to, would have done so by this time. If he wants to renew, can you not place the security with some one else, and get the money for us in that way ? We have figured on using this money, and it will inconvenience us if arrangements are not made shortly.”

To this she received the following:

“ Apbil 22, 1893.
“ Howabd Bbooke, Esq.,
“59 Buhl Block, Detroit, Mich.
Dear Sir: Replying to yours of 21st, I acknowledge receipt of the circulars inclosed therein. In reference to Struthers, would say that I see I did not make myself clear to you. We have already sent renewal papers to Mr. Struthers to take up your loan, having placed it with other parties, it being exceedingly choice; and as soon as the papers are in we will remit to you for same. We think it will be a matter of no great delay. We notified him when you notified us, that the same must be adjusted at once.
“Respectfully,
“The Michigan Mortgage Company,. Limited,
“By E. E. White, Treas.”

After repeated solicitations, she received the interest due at the maturity of the mortgage, but nothing more. It is contended that she authorized the company to take the course it did, and that Knapp is therefore protected against her claim. W e think this is not deducible from the record. It did not need authority from Mrs. Brooke to authorize Struthers to give, or the company to take, a new mortgage for any purpose of their own; and under our view of the facts, if such mortgage had produced the money, and it had come to the hands of the mortgage company as the result of the giving of the mortgage and its purchase by Knapp, we should consider the complainant bound by it, and Struthers discharged, for, the reason that we think that the mortgage company was authorized to collect the obligation. But such was not the fact. The company received the money on March 15th, which was a month before the mortgage assigned to Knapp was acknowledged, and a month and six days before the letter suggesting a loan as a means of. getting her money was written by Mrs. Brooke. It was thenceforth Knapp’s debtor. The money was not sent to buy this mortgage, and we find nothing to satisfy us that it was in the hands of the company at the time the mortgage was given or assigned. On the contrary, we are convinced that the mortgage was sent him because of his importunity, and that the money had been otherwise disposed of, or it would have been sent to complainant to satisfy her, thereby adjusting the whole matter.

We will next consider the effect of the recording act. At the time that Knapp received his mortgage, the complainant’s assignment had not been recorded. Knapp had a right to suppose that the mortgage was still owned by the mortgage company, and, if he can be considered a bona fide purchaser for value, he is within the protection of the recording act (2 How. Stat. § 5683). Any such claim would, of necessity, be based upon the failure of the complainant to record her assignment under 2 How. Stat. § 5683. As he received it upon a pre-existing debt, he was not a bona fide purchaser within this act, under the case of Schloss v. Feltus, 103 Mich. 525, unless he was the purchaser of negotiable paper. Hence the conclusion that, whatever view may be taken of the .case, the question of negotiability must govern the case.

We may deduce the following propositions from what has gone before: Struthers’ defense of payment by giving the second mortgage was complete, unless (1) the first .note and mortgage were negotiable; (2) Knapp had not a valid claim against him for any reason. Knapp has not a valid claim against Struthers unless the second note was negotiable, for the reason that the note and mortgage were invalid in the hands of his assignor. Knapp has not a valid claim against the complainant unless the second note was negotiable, for the reason that his preexisting debt due from the mortgage company is not a sufficient consideration to constitute him a bona fide purchaser for value.

We will next consider the question of negotiability. A mortgage, executed simultaneously with a note, is a part of the contract, and they are to be construed together. Jones, Mortg. § 71; Daniel, Neg. Inst. § 156. This is but the recognition of a rule of general application that applies to all contemporaneous writings. And where a note is secured by a mortgage, and there is a provision in the mortgage not contained in the note, it will control. Daniel, Neg. Inst. § 835. The case of Goodenow v. Curtis, 33 Mich. 505, is a case depending upon this principle. A defense of fraudulent alteration of a promissory note by the insertion of the words “or bearer ” was interposed. Ordinarily such alteration would invalidate the instrument, but it was held that it did not, because it did not change the effect of the note in any material particular, inasmuch as by the terms of the mortgage, to which the note referred, certain conditions which might excuse payment, or change and fix the time of maturity, took away any negotiable character the note might otherwise possess. See, also, Humphrey v. Beckwith, 48 Mich. 151; Elmore v. Hoffman, 6 Wis. 71; Norton v. Kearney, 10 Wis. 443; Goodwin v. Nickerson, 51 Cal. 169; McCroskey v. Ladd, 96 Cal. 455. In Waples v. Jones, 62 Mo. 440, it was held that a note and a deed of trust securing it must be read together. See, also, Brownlee v. Arnold, 60 Mo. 79; Missouri Pacific R. Co. v. Atkison, 17 Mo. App. 494. In the case of Noell v. Gaines, 68 Mo. 649, this doctrine was applied, where the reference to the deed of trust, contained in the note, was, “This note is secured by deed of trust, stamped according to law.” On the other hand, there are cases where the contemporaneous Avriting is invoked to make the note certain, and therefore negotiable. Elliott v. Deason, 64 Ga. 67. See, also, Muzzy v. Knight, 8 Kan. 456; Meyer v. Graeber, 19 Kan. 165; Dobbins v. Parker, 46 Iowa, 357; Winchell v. Coney, 54 Conn. 24; Parks’ Ex’r v. Cooke, 3 Bush, 173; Hill v. Huntress, 43 N. H. 480; Rogers v. Broadnax, 24 Tex. 538; Wheeler & Wilson Manfg. Co. v. Howard, 28 Fed. 741.

At our request counsel have furnished us additional briefs upon this question of the negotiability of the note and mortgage in question, but we do not find much — ■ if, indeed, there can be said to be any — authority controverting the proposition that the terms of a note may be modified and controlled by the accompanying mortgage. Several cases are cited to the proposition that “when a note secured by mortgage is transferred to a bona fide holder for value before maturity, and a bill is filed to foreclose the mortgage, no other or further defenses are allowed against the mortgage than would be allowed were the action brought in a court of law upon the note. ” But this proposition does not militate against the contention that the mortgage and note are to be construed together, for a court of law would be bound to notice and apply the rule, and equity might do the same. We have been unable to find any case which holds or implies that the negotiability of a note will not be taken away by provisions which affect the certainties requisite to negotiable paper, contained in a contemporaneous mortgage to which the note refers. We do find cases which hold that a mortgage partakes of the negotiable character of the note so long as the provisions of the mortgage are not inconsistent with negotiability. These may, and probably do, go so far as to imply that provisions contained in the mortgage providing for the method and expense of foreclosure should not affect the negotiable character of the instruments, though that is, in our opinion, an innovation on the rule that distinguishes between a negotiable note and a contract, although the latter may contain the requisites of a negotiable note. Johnson v. Carpenter, 7 Minn. 176; Baily v. Smith, 14 Ohio St. 396 (84 Am. Dec. 385).

The importance of this question is great, in view of the prevalence of the practice of issuing coupon bonds secured by mortgages upon railroad and other corporate property, which sometimes contain stipulations and undertakings which, under the rule stated, would make such bonds and coupons nonnegotiable, where they contain reference to the mortgage. But we think this does not justify a disregard of the rule, nor are they exceptions to it. In the case of McClelland v. Railroad Co., 110 N. Y. 469 (1 L. R. A. 299), this doctrine was applied to coupons clipped from bonds and sold. The coupon was in the following language, viz.:

“On the first day of [blank month and year] the Elizabeth City & Norfolk Railroad Company will pay to the bearer, at its financial agency in the city of New York, thirty dollars in gold ($30), being six months’ interest then due upon its first mortgage bonds.
“No.-
W. G. Dominick,
“Treasurer.”

The bond referred to a deed of trust as security. The court said:

“In determining the character of the coupons in respect to their negotiability, the court is required, we think, to examine each of the securities simultaneously executed by the defendant, viz., the mortgage, the bonds, and coupons, for the purpose of discovering the intent and meaning of the contract thereby made. The reference in the coupons to the mortgage and bonds, and in the bonds to the terms and conditions of the mortgage, clearly, we think, charges the holders of both coupons and bonds with notice of the provisions contained in each of such instruments. * * * If, however, these coupons contained notice to the holders of any facts or circumstances showing that the time of their payment was subject to a contingency over which the holder had no control, and which might postpone their payment indefinitely, then they could not be said to be bona fide holders thereof, as the negotiability of the paper would be thereby destroyed. It is undoubtedly the general rule that the bonds of railroad, manufacturing, municipal, and other like corporations, payable to bearer, issued for the purpose of securing loans of money, are, in this country, deemed negotiable, and coupons thereto attached partake of the same character. Ror. R. R. 250; Evertson v. Bank, 66 N. Y. 14 (23 Am. Rep. 9.); Thomson v. Lee Co., 3 Wall. 327; Commissioners of Knox Co. v. Aspinwall, 21 How. 539. But when such instruments contain special stipulations, and their payment is subject to contingencies not within the control of their holders, they are, by established rules, deprived of the character of negotiable instruments, and become exposed to any defense existing thereto as between the original parties to the instrument. It is essential by such rules that such paper should provide for the unconditional payment to a. person, or order, or bearer, of a certain sum of money at a.time capable of exact ascertainment. 3 Rev. Stat. (7th Ed.) p. 2243; Daniel, Neg. Inst. §§ 27, 104; Evertson v. Bank, supra; Frank v. Wessels, 64 N. Y. 155; Dinsmore v. Duncan, 57 N. Y. 580 (15 Am. Rep. 534). It would seem, therefore, if these coupons were subject to the condition that the time of their payment could be changed, altered, and postponed from time to time at the option of a majority of the holders of the series of bpnds simultaneously issued therewith, it would 'deprive them of one of the essential characteristics of negotiable paper.”

A similar holding will be found in McClure v. Tp. of Oxford, 94 U. S. 429; also in City of Kenosha v. Lamson, 9 Wall. 478,—both citedin the New York case. See, also, Clark v. Iowa City, 20 Wall. 583.

These cases would seem to dispose of any claim that paper secured by mortgages may be treated as primary and the mortgages ancillary in any such sense as to deprive the latter of effect in the construction of the former. Clearly, they constitute one contract. All must be read together, and construed together, to ascertain the nature of the agreement, upon which negotiability depends.

If we are right in the foregoing, the negotiability of the note depends in part upon what the mortgage contains, at least so far as to affect all who have notice of the provisions of the mortgage. Unless we are to admit that the note, being upon its face negotiable, must be so considered regardless of the provisions of the contemporaneous mortgage, to which it refers, we must fix the character of the note by the whole contract. Suppose that A. gives B. his note, negotiable in form, for $1,000, due in a year, but accompanies it with a contract by which B. is to take $500 if paid within a month, or to allow two years if the maker shall deliver to him 10 cords of wood. If this appeared upon the face of the note, all agree that the note would not be negotiable. The contract must be construed with the note. It limits and qualifies it, and it renders uncertain the amount to be paid and the time when it is due. By what process of reasoning can it still be said that the note is negotiable? If it is, then a contract written upon one paper is a radically different thing in effect from the same contract written upon two pieces of paper. This would be none the less true if the provision were incorporated in a mortgage or other simultaneous writing, given as security.

Conceding, then, that a mortgage given as security for a negotiable note, which refers to it, may partake of the negotiable character of the latter, the rule should be limited by the proposition that when the terms of the mortgage so affect the note a,s to render it uncertain in amount, or in time of payment, or ingraft upon it conditions as to the payment of the amount, it takes away the negotiable character of the note, and leaves its owner or purchaser in the same position as the owner or purchaser of any other chose in action. No good reason is suggested for a contrary rule. If a negotiable note is “a courier without luggage” that passes from hand to hand, and choses in action, which are burdened with uncertainties and conditions, are not, why should the courier who carries his luggage in a trunk be held to be not excluded from the negotiable class because he has no hand baggage? If it be said that the general usage justifies it, we should at least be able to find cases in the books which support such general usage. Yet it is confidently believed that such cannot be found where the language of the mortgage goes beyond provisions for the collection of the security, and undertakes to increase, diminish, or place conditions upon the obligations of the parties, thereby rendering the instrument uncertain. Dilley v. Van Wie, 6 Wis. 209. In Chick v. Willetts, 2 Kan. 384, a mortgage was held to extend time of payment two years. See, also, Round v. Donnel, 5 Kan. 54, and Dobbins v. Parker, 46 Iowa, 358.

It is plain that adjudicated cases in this and other States hold that mortgages are negotiable when not in contravention of the characteristics of negotiable paper which they secure; and it may be that this is true in cases where they contain provisions' that could not be incorporated in the note itself without destroying its negotiability; e. g., provisions for foreclosing and realizing upon the security, including ■ the application of a portion of the fund to the expenses of foreclosure. May we legitimately go further, and say that provisions intended to increase the value of or preserve the security may be included, and, if so, to what extent, without fastening upon the agreement the elements of a contract, as contradistinguished from a promissory note ? A familiar instance would be the provision that the mortgagee may pay taxes or procure insurance, and charge the cost to the mortgagor; or, to go further, a provision that he might keep the premises in repair, or build a levee, and add the amount to the debt. All of these provisions may be proper and valid if the parties choose to agree upon them, but they constitute additional agreements to the promise to pay the debt, calling for the payment of additional sums of money, and they are usually conditional, and most always uncertain in amount; and we are not aware of any such urgent necessity that such instruments be considered negotiable as to justify the disregard of plain and generally recognized principles for its accomplishment, when all agree that the same provisions, if in the note itself, would make it nonnegotiable in any court in the land, except where statutes Intervene. We have been unable to find any case which holds that such undertakings do or do not render the note nonnegotiable, except as the general principles discussed appear to lead to the conclusion that they do.

In the present case the mortgages bind the mortgagor to pay all taxes and assessments upon the premises. Now, if this might be said to be a provision to protect the security, and therefore not affecting the note, yet when it provides, in addition, that when the mortgagor shall leave any tax or assessment, valid or invalid, unpaid for 30 days, such taxes and assessments, whether- previously paid by the mortgagee or not, and the whole amount of the principal and interest, shall become due and payable immediately, it injects into the obligation a contract, as much as though the maturity and amount of the obligation were to depend upon the performance of an undertaking to clear a portion of the premises mortgaged, or to open a mine, sink a well, or perform any other act or service agreed upon, calculated to enhance or maintain the value of the security. See Windsor Savings Bank v. McMahon, 38 Fed. 283 (3 L. R. A. 192); Siegel v. Bank, 131 Ill. 569 (7 L. R. A. 537); Hegeler v. Comstock, 1 S. D. 138 (8 L. R. A. 393); Wright v. Traver, 73 Mich. 493 (3 L. R. A. 50).

The question was expressly reserved in the case of Littlefield v. Hodge, 6 Mich. 326. Mr. Justice Campbell says:

“It was urged that the note in question here, although payable to order, and without contingency, on a day certain,, was not negotiable, because it purported to be according to the condition of a mortgage. But, as the terms' of the mortgage correspond with those expressed in the note, there is nothing to affect its negotiability. Whatever might be the effect of a repugnancy (upon which we express no opinion), nothing short of that could impair the negotiable character of the security.”

Our own decisions will be found to require certainty in negotiable paper. The question has arisen in various ways, and this court has invariably recognized this requirement. In Brooks v. Hargreaves, 21 Mich. 254, it was held that anote was not negotiable when the criterion of time of payment depended upon the volition of a third party; Mr. Justice Campbell saying that “ that must be payable at a time which must, certainly arrive in the future, upon the happening of some event or the completion of some period not depending on the future volition of any one.” See, also, Smith v. Van Blarcom, 45 Mich. 373; Lamb v. Story, Id. 488.

In Cayuga Co. Nat. Bank v. Burdy, 56 Mich. 7, Mr. Justice Champlin said:

“ The modern tendency to interpolate into such instruments engagements and stipulations not recognized by the law-merchant, affecting the certainty as to the amount due and payable thereon, or the time of maturity, or super-adding duties to be performed by the maker, or additional obligations other than the payment of a sum certain at maturity, should be discountenanced, and held to destroy their negotiability, and deprive them of the character of promissory notes, and they should be relegated to the domain of ordinary contracts. Otherwise it is difficult to see where the line of distinction is to be drawn, and it may be apprehended that in a feiu years, as one clause after another is ingrafted onto the original terms of such instruments, any contract payable to order, no matter hoto uncertain or cumbersome its provisions may be, ivill be held to be negotiable paper, and the holder entitled to all the benefits and protection of bona fide holders of commercial paper.”

In Altman v. Rittershofer, 68 Mich. 290 (13 Am. St. Rep. 341), Mr. Justice Long mentions with approval the language of Mr. Justice Champlin just quoted, and adds:

“We see no good reason to depart from this principle. We think the certainty requisite to .the negotiability of the instrument must continue until the obligation is discharged, and that any provision which before that time removes such certainty prevents the instrument being negotiable at all.”

In Wright v. Traver, 73 Mich. 495, Mr. Justice Morse again quotes the language of Mr. Justice Champlin as the guiding principle. This was a case where the note contained a contract that, if the note was not paid at maturity, the property for which it was given should belong . to the payee.

In the case of First Nat. Bank v. Carson, 60 Mich. 434, the note provided:

“It is expressly understood, and I hereby agree, that the above-mentioned piano shall Temain the property of L. & N. Phenix until fully paid for, and that they or their authorized agent or attorney may take possession of the same at any time, and for that purpose may enter upon whatever premises it may be on at any time hereafter, sell at public or private sale, and apply the proceeds, after deducting all their expenses in taking possession of and selling the same, towards the payment of this note. I further agree that, in case of any removal from the county of Sanilac, or the sale or removal of the above-mentioned property, then this note shall become due.”

It was said by Mr. Justice Sherwood :

“I do not think the contract is a negotiable promissory note. A promissory note must be certain as to the sum to be paid and the time of payment. In this case the sum is sufficiently certain, but the time of payment is not. It is made dependent, until the contract matures, upon the fact of whether the defendant shall sell or remove the property for which the contract was made. Such a degree of uncertainty is not allowable in a promissory note.”

This case is similar to the one before us. The fatal stipulation was a provision in relation to the security. Its breach made the note due at once. The only difference is that in that case the stipulation was upon the face of the note; in this it is in the mortgage, which is to be construed with the note, and to which the note expressly points the purchaser for information. By reason of this provision, which renders the note uncertain in time of payment, and which ingrafted upon it as a part of it, and to which it was subject, certain contract obligations, the note was rendered nonnegotiable, unless, as already said, the holders of these notes are to enjoy immunity because of some peculiar sanctity arising from the fact that the mortgage, and not the note, contains the stipulation.

Having concluded that these notes are nonnegotiable, it follows that Struthers is liable to the complainant, and is not liable upon the mortgage held by Knapp, for the reason that he took it subject to equities. It would seem to follow that the mortgage received by Knapp, being void as against Struthers, would be void as against complainant. But, if it could be said otherwise, yet Knapp must fail, for the reason that he has not paid value for it, inasmuch as it was nonnegotiable paper. It being determined that Knapp’s mortgage is invalid as against both Struthers and the complainant, there is no reason why complainant should not be entitled to a decree of foreclosure against Struthers, with costs of both courts, and we think it should be so ordered.

Grant, J., concurred with Hooker, J.

Montgomery, J.

I agree with, the conclusions reached by Mr. Justice Hooker, first, that, as between the defendant Struthers and complainant, the giving of a new mortgage to the Michigan Mortgage Company, Limited, did not discharge the obligation to complainant; and I concur in the result which he has reached in his opinion, and in holding that the mortgage of complainant is a subsisting lien upon the mortgaged premises. I also concur in holding that the note which was given to the Michigan Mortgage Company, Limited, secured by the mortgage assigned to defendant Knapp, was nonnegotiable, for the reason that at the time the note and mortgage were executed — April 1, 1893 — the law of 1891 was in- force, and the mortgage which was assigned contained the provision that the mortgagor should “pay any and all taxes that may be levied upon the lands herein conveyed, or upon this mortgage, in' addition to the payment of interest herein stipulated for.” This provision was in addition to an undertaking to “pay all taxes and assessments of whatever nature which may be levied upon said premises above described as soon and as often as the same may become due and payable.” In view of the fact that under the law as it then existed the mortgagee was liable to pay the tax upon the mortgage, or upon his interest as mortgagee in the property, these provisions indicate a purpose by the mortgagor to undertake to relieve the mortgagee of the obligation, and to that extent render the amount payable to or on- behalf of the mortgagee uncertain, and the note nonnegotiable. My views as to the negotiability of the earlier mortgage to complainant are sufficiently expressed in the case of Wilson v. Campbell, infra.

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