text:
    MOORE v. PROVOST.
    1. Quieting Title — Pleading—Relief Asked — Title to Other Lands.
    On. a bill to quiet title to a mill site and establish in plaintiff certain flowage rights and easements in other lands, where plaintiff was given substantially the relief prayed for in his bill, he is not legally interested in the disposal of the title to the lands under the mill pond, title to which he disclaimed.
    2. Deeds — Riparian Rights — Description—Waters and Watercourses.
    Deeds conveying to defendants land described as “running to the bank or to a stake on the bank of the river,” held, to justify the conclusion of the chancellor that such descriptions would extend the land conveyed to the thread of the stream.

    3. Pleading — Amendment—Foreign Issues.
    The question as to whose duty it was to maintain a bridge over the race being a question foreign to the purposes of plaintiff’s bill, the chancellor was in error in permitting an amendment to the bill to include said issue.
    4. Same — Amendment—Failure to Amend.
    Where an amendment to a bill, though asked for and granted, was never actually made, the question raised by the amendment will not be considered by the Supreme Court; the general rule being that nothing can be claimed for an amendment which is never actually incorporated into the pleadings.
    Appeal from Shiawassee; Miner, J.
    Submitted February 5, 1919.
    (Docket No. 71.)
    Decided May 29, 1919.
    Bill by J. Martin Moore against T. J. Provost and others to quiet title to land. From the decree rendered, plaintiff appeals.
    Affirmed in part, and reversed in part.

      Hawley & Eldred, for plaintiff.

      Albert L. Chandler and Van R. Pond, for defendants.

      See note in 42 L. R. A. 505.

   Bird, C. J.

Plaintiff filed his bill in the Shiawassee circuit court to quiet title in himself in and to certain mill property situate on the east branch of the Shiawassee river, in the village of Byron. In the bill he claims title in fee to 4.43 acres of land, upon which is located a grist and carding mill, a dam and mill race; he also claims certain fiowage rights and certain easements in other lands on sections 13, 23 and 24, in the township of Burns, in which said mill property is situated. A large number of persons, including the owners of land contiguous to the mill pond, were made parties defendant.

Answers were filed by nearly all of the defendants and the matter went to a hearing. Before the hearing had proceeded very far the parties found their differences so few that the trial court made a decree which was concurred in by counsel, giving to plaintiff substantially the relief prayed for in his bill. The decree quieted plaintiff’s title to the 4.43 acres of land. It established plaintiff’s right to flow certain lands described in the bill and fixed a permanent head of water which he was entitled to maintain. It also fixed the title to lands under the mill pond in the defendants owning premises abutting on the pond on sections 13 and 24 of the township of Burns, and it further provided that their respective premises extended to the thread of the stream of the Shiawassee river. Before the matter was finally disposed of and before the decree was signed counsel for defendant township of Burns asked permission to put in some testimony bearing on the question of whose duty it was to construct the bridge over the mill race. This was objected to by plaintiff’s counsel because it was immaterial and because the pleadings raised no such question. An amendment of the answer of the township, making this question a part of the pleadings, was asked for and granted, after which the court announced that he would admit the testimony. The parties not having their witnesses in court the chancellor announced that he would sign the decree and reserve that question for future proofs. Following this certain corrections were made in the decree and new counsel came into the case. Then a rehearing was asked for. This the court denied except upon two questions:

(1) The question of the ownership of the land under the mill pond.

(2) As to whether the bridge in question shall thereafter be erected, maintained and repaired at the expense of said plaintiff, or of said township of Burns.

Later the parties went to a hearing on these two issues and a large amount of record and oral testimony was taken. This hearing resulted in a decree affirming the former decree as to the title of the land under the mill pond. In addition it placed upon plaintiff the duty of erecting, maintaining and repairing the bridge over the mill race. Upon both of these propositions the plaintiff has appealed.

1. In this court plaintiff’s counsel argue in an extended brief that defendants have no title to the lands under the mill pond. They argue that the title thereto was reserved by plaintiff’s grantors, and, inferentially at least, argue that plaintiff has the title. Counsel for defendants combat this argument at some length in their brief. Counsel for plaintiff then file a reply brief in which they say, in substance, that plaintiff does not now, and never has claimed the title to the land under the mill pond. Plaintiff’s reason for appealing on this question is stated by counsel to be that—

“at some future time plaintiff may,wish to acquire the title to this land covered by the pond. Accordingly, it is of interest to him not to have such title decreed to persons, who neither possess nor are shown to possess any title therein.”

Defendants’ counsel follow with a reply brief in which they proceed to prove that plaintiff’s counsel are in error in stating that plaintiff has never claimed title to the land under the mill pond. We are unable to see the propriety of taking the time of this court with complicated matters over which there is no substantial disagreement. Plaintiff’s attitude appears to be: “I do not claim title to the land under ,the mill pond but the court has decreed title to the same to certain contiguous land holders, and I prefer to have that question left open because I may in the future want to purchase it myself.” Plaintiff’s flowage rights are fixed by the decree and. are alike secure whether the present defendants or others are declared to be the owners thereof. We are unable to see how plaintiff is legally interested in this question inasmuch as he does not claim the title. But aside from this consideration we are disposed to the view that the chancellor reached the right conclusion in holding that certain of the defendants had title to the land under the mill pond. In some of the conveyances to the defendants the tracts are described as “running to the bank or to a stake on the bank of the river.” The holding of this court in Hartz v. Railway, 153 Mich. 337, justifies the conclusion of the chancellor that such a description would extend the land conveyed to the thread of the stream. The- decree as to this question will not be disturbed.

2. .Counsel for plaintiff objected to the testimony offered by the township of Burns, bearing on the question as to whose duty it was tó construct, maintain and repair the bridge over the race, and after-wards they moved to strike the testimony out because incompetent and immaterial to this controversy. Objection was made to the allowance of the amendment for the same reasons. The bill in this case was filed by plaintiff for the specific purpose of having his title quieted to certain mill property, and having certain flowage rights and easements determined. These questions in no way involved the bridge over the race, or whose legal duty it was to construct and maintain it. Whether plaintiff or some other persons owned the premises the respective duties of the township and owners would be the same. So far as the record shows there was no existing controversy over the bridge or its construction or its repair. It was a controversy foreign to the purposes of plaintiff’s bill and the chancellor should not have permitted it to be engrafted onto the controversy by amendment. Defendant, in justification of the amendment, says that the parties were all before the court. It is true the parties were before the court but that does not prove that the bridge question was germane to the controversy raised by the bill. If it were not it ought not to have been litigated in this suit. See Thomas v. Nicolls, 191 Mich. 489.

Another reason, although a technical one, suggests itself why we should not consider this question as properly in the case. The amendment asked for and granted was never actually made. The general rule is that nothing can be claimed for an amendment which is never actually incorporated into the pleadings. Ballou v. Hill, 23 Mich. 60; Harris v. Thomas, 140 Mich. 462; Carroll v. Palmer Manfg. Co., 181 Mich. 280.

It is, therefore, our conclusion upon these two questions that the decree should be affirmed as to the first question, and reversed as to the second one. No costs will be allowed either party.

Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Moore, J. Ostrander, J.

license: Public Domain

text:
    WOOD v. BUTTON.
    1. Foreclosure — Redemption—Statutes.
    The right to redeem from a foreclosure at law is a legal right created by the statute, and can neither be enlarged nor abridged by the courts.
    2. Same.
    Under 3 Comp. Laws 1915, § 14959, a redemption is complete when one haying the right to redeem pays in proper time to a proper person the sum which was bid with interest from the time of the sale at the* rate per cent, borne by the mortgage, and, in case such payment is made to the register of deeds, the sum of one dollar as a fee.
    3. Same — Lien for Taxes Paid.
    Where said amount was paid by the owner to the register of deeds within the proper time, the redemption was complete, and the purchaser at foreclosure sale, who was a stranger to the title, was not thereafter entitled to maintain a bill to create a lien upon said premises to reimburse him for the amount paid after his purchase upon back taxes which were a lien thereon at the time of the foreclosure.

    Moore and Kuhn, JJ., dissenting.
    Appeal from V,an Burén; Des Voignes, J.
    Submitted January 30, 1919.
    (Docket No. 30.)
    Decided May 29, 1919.
    Bill by Alfred Wood against Earl Porter Button and others to set aside a redemption from a mortgage foreclosure, and to enforce a lien for taxes. From a decree for plaintiff, defendants appeal.
    Reversed, and bill dismissed.

      Thomas J. Cavanaugh, for plaintiff.

      Earl L. Burhans and David Anderson, for defendants.

      See note in 10 L. R. A. (N. S.) 679.

   Moore, J.

(dissenting). January 8, 1908, James P. Button and his wife made a mortgage to the West Michigan Savings Bank in the sum of $2,100 on land located in the township of Bangor, Michigan. In the year 1913, Mr. Button died, leaving a last will and testament by the terms of which he devised to E. Porter Button said land. In 1914 E. Porter Button took possession of the land and was occupying it at the time of the hearing of this case. He did not pay the interest on the mortgage nor the taxes for the years 1913, 1914, 1915, and 1916. The taxes for the years 1913,1914, and 1915 were returned to the county treasurer for collection. In 1916 the West Michigan Savings Bank foreclosed the mortgage by advertisement and it was sold by the under-sheriff on the 11th day of December, 1916. At the sale the land was first bid off by a Mr. Charles for $6,200, but before the sale was closed, he, learning that the buyer would have to assume the taxes, withdrew his bid. The sheriff again offered the land for sale and stated that whoever bought the place had to pay the taxes. The plaintiff bid $5,900 and the property was struck off to him.

December 13, 1916, the plaintiff paid the sheriff $5,900 and received from him the following receipt:

“Sheriff’s Office, Van Burén County, Paw Paw, Mich.
“December 13, 1916.
“Received of Alfred Wood fifty-nine hundred dollars in payment of the James P. Button farm which Was sold Monday, December 11th, 1916. The said Alfred Wood is to pay all back taxes.
“Gladstone R. Beattie, Sheriff.”

On January 4, 1917, the plaintiff paid the taxes for the year 1916, $66.45. February 27, 1917, he paid taxes which had been returned to the county treasurer in the sum of $211.41. On December 14, 1917, E. Porter Button paid to the register of deeds $6,258, which was $5,900 with interest added, and caused the following to be written on the margin of the sheriff’s deed:

“Redeemed December 14th, 1917, at 3:50 p. m., by E.- Porter Button, owner under will of J. P. Button, deceased. Amount paid $6,258.
“Dated December 14, 1917.
“H. W. Shówerman, Register of Deeds.”

In the spring of 1915, E. Porter Button deeded the land by quitclaim to the West Michigan Savings Bank, and on December 14, 1917, the West Michigan Savings Bank deeded the land back to E. Porter Button. This latter deed was recorded January 29, 1918. On the same day that E. Porter Button received this quitclaim from the West Michigan Savings Bank he deeded a portion of the land to Fred Overton.

After December 11, 1917, and before the 14th of December, the register of deeds forwarded the sheriff’s deed to the plaintiff and later he was requested to return it. He came to Paw Paw on January 10th, and there had a talk with the defendant Button’s attorney. The lawyer in behalf of Mr. Button refused to pay the taxes or any part thereof. As a consequence of such refusal the plaintiff filed a bill in the circuit court setting out all the facts which we have narrated, and praying among other things that the memorandum written on the sheriff’s deed indicating a redemption be stricken from the records of the register of deeds; that the said E. Porter Button, if it was found he had a right to redeem, be required by the court to pay the amount bid by the plaintiff for the land, the interest thereon and the taxes advanced by the plaintiff to protect his lien and in the meantime that the fund in possession of the register of deeds be impounded. There was also a general prayer for relief. A hearing was had and a decree was entered in substance requiring the defendant to pay the amount of taxes advanced and declaring that the same remained a lien on the land described in the mortgage. From this decree the defendants appeal. We quote from the brief of counsel for appellants:

“The record presents two questions:
“1. Is the owner of a title under any obligation to pay more than the bid and interest to perfect a redemption?
“2. Can the purchaser on mortgage foreclosure who has paid taxes in addition to his bid recover those taxes by a separate, independent suit against the person who has redeemed or against the land?
“We do not consider that the receipt given by the sheriff, which stated that the purchaser must pay the taxes, added anything of duty or right to any of the parties interested in this transaction. The evidence shows that Mr. Button was not - present at the mortgage sale. * * *
“But suppose he did know it. The sheriff has no authority of law to add conditions not imposed by statute. He might just as well have' embodied in his receipt that the purchaser must keep up insurance on the buildings or put a new roof on the bam. That statement of the receipt added nothing to Wood’s duties nor to his rights.”

Counsel insist that when Mr. Button paid- to the register of deeds $5,900 and interest thereon he paid all the law required him to pay in order to redeem, citing 5 How. Stat. (2d Ed.) § 13938 (3 Comp. Laws 1915, § 14959); Walton v. Hollywood, 47 Mich. 389; Vincent v. Moore, 51 Mich. 618; Wyatt v. Quinby, 65 Minn. 537 (68 N. W. 109); Nopson v. Horton, 20 Minn. 268, and other authorities which can be found in the brief of counsel. The attorney for the plaintiff insists those authorities are not conclusive.

Section 1821, 1 How. Stat. (2d Ed.) [1 Comp. Laws 1915, § 4049], reads in part:

* * * “Any person having a lien on property may, after thirty days from the time the tax is payable, pay the taxes thereon and the same may be added to his lien and recovered with the rate of interest borne by the lien.”

Reference was made to this provision by Chief Justice GRANT in G. F. Sanborn Co. v. Alston, 153 Mich, at p. 463. We quote:

“The owners of the land in dispute not only paid no taxes, but after the notice was served upon them under the statute notifying them that a sale of the lands had been lawfully made, and that Alston had title thereto, and that they were entitled to a reconveyance upon payment of the sums specified in the notice, still paid no attention to the payment of their taxes or exhibited any desire to protect their interests. They made no attempt to pay either the defendant Alston in accordance with the notice, or the subsequent taxes. They were paid by Alston. It was necessary that they should be paid to protect his title the validity of which is not questioned. By a technical defect in the notice the complainant (the grantee of the original owners) is still entitled to a reconveyance from the defendant. Is it equitable that complainant should be relieved from the payment of these subsequent taxes ? Clearly not. Can a court of equity compel complainant to do equity by reimbursing the defendant Alston for these subsequent taxes? It seeks equity and ought to do equity. The law (section 3876, 1 Comp. Laws) provides:
“ ‘Any person having a lien on property may, after thirty days from the time the tax is payable, pay the taxes thereon, and the same may be added to his lien, and recovered with the rate of interest borne by the lien.’
“The name given to the title acquired by the tax purchaser under the provisions of the law is immaterial. "Whether we call the title absolute or conditional, he has a title which it is his right to protect by payment of subsequent taxes, and when the original owner demands a reconveyance from him, he ought in justice and equity to be compelled to pay those taxes which the purchaser has been compelled to pay, or otherwise lose his title or lien. A mortgagee is entitled to pay taxes'and to have an additional lien upon the land therefor, although the mortgage is silent as to the payment of taxes. Sidenburg v. Ely, 90 N. Y. 262 (43 Am. Rep. 163); 2 Jones on Mortgages (6th Ed.), § 1080; 3 Pomeroy on Equity Jurisprudence (3d Ed.), § 1217.
“It is also held that where a party pays the taxes in good faith, claiming title but having none, he is entitled to a reimbursement out of the land. Kemp v. Cossart, 47 Ark. 62 (14 S. W. 465); Goodnow v. Moulton, 51 Iowa, 555 (2 N. W. 395). The payment of the subsequent taxes, amounting to $573.37, inured to the benefit of the original owners. The complainant (representing the original grantors), not the defendant Alston, is demanding ‘the pound of flesh.’ Equity will not give it. Defendant Alston is entitled to be reimbursed for these taxes, with interest from the dates of payment.”

In Hopkins v. Sanders, 172 Mich. 227, the right of a mortgagee to pay taxes to protect his lien was discussed. Justice Steere in speaking for the court said in part:

“It is stated by text-writers supported by numerous authorities, to be a general rule of 'law that if the owner of mortgaged premises fails to pay taxes or assessments imposed thereon, and which it is his duty to' pay, the mortgagee may pay such taxes to protect his lien and add the same to the amount of the mortgage, although the mortgage contains no clause expressly authorizing him to do so (2 Jones on Mortgages (6th Ed.), § 1134; Wiltsie on Mortgage Foreclosure, § 452 [1185]) ; but it is the contention of defendants that in this State, in the absence of statute or an express agreement between the parties, a mortgagee cannot pay taxes to relieve the mortgaged property of a tax lien which occurred prior to the execution of the instrument, and add it to the amount of his mortgage, — citing Pond v. Drake, 50 Mich. 302 (15 N. W. 466), and Macomb v. Prentis, 78 Mich. 255 (44 N. W. 324).
“Section 3876, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 1821), provides:
“ ‘Any person haying a lien on property may after 30 days from the time the tax is payable, pay the taxes thereon, and the same may be added to bis lien and recovered with tbe rate of interest borne by tbe lien.’

“Section 220 of the charter of the city of Detroit provides:

“ ‘Any person having a lien on property may pay tbe taxes tbereon, and tbe same may be added to bis lien and recovered with tbe rate of interest borne by tbe lien.’
“Under the foregoing statutory provisions, the right to add the item óf $39.Í0 for the city taxes of 1909, accruing subsequent to the date of the mortgage, to the amount of the mortgage cannot be questioned. $ »}» ■ ijS
“It has been generally held that the payment of taxes and assessments by a mortgagee on property covered by his mortgage, to protect his lien and incidentally protect the title of the mortgagor, grows out of a transaction between the parties, which, from its nature, creates an equitable lien. The authorities cited do not foreclose that question in this State.
“In Vaughn v. Nims, 36 Mich. 298, Justice CAMPBELL states, as a general proposition:
“ ‘And there can. be no doubt of tbe propriety of allowing a party to protect bis mortgage interest against taxes.’
* * * “An equitable lien may exist, independent of any express agreement, arising out of general considerations of right and justice, honest dealing, and duty as applied to the subject-matter, the relations of the parties, and the transaction as a whole. We think it was within the power of the court to declare the taxes paid by complainant (on property, in which both were interested, and for the protection of both) an equitable lien, to be added to the amount of the mortgage, and to include the same in the decree for foreclosure.”

In that case the mortgagee was allowed to recover for the taxes which he had paid to protect his lien. The case of Sucker v. Cranmer, 127 Minn. 124 (149 N. W. 16), is much like the instant case. It is interesting, too, because it cites Nopson v. Horton, supra, Walton v. Hollywood, supra, Vincent v. Moore, supra, and other authorities cited by the appellants in' this case. We quote from the opinion:

“The defendants confidently contend that plaintiff has no personal cl-aim against them for the taxes paid and has no redress whatever, since he failed to obtain it under the provisions of said section 8172. The decisions cited by them do not foreclose the question. In Spencer v. Levering, 8 Minn. 461, where the statement is made that there is no personal liability against the mortgagor for failure to pay taxes, it does not appear that any agreement existed in regard thereto. Nor did Martin v. Lennon, 19 Minn. 67 (65 Am. St. Rep. 576), or Nopson v. Horton, 20 Minn. 268, involve any agreement between the litigants in regard to the taxes. Cases from other jurisdictions do not reach the point because of dissimilarity of mortgage stipulations, of statutes and of facts. Those tending to sustain defendants’ position that no express or implied agreement can be spelled out which authorizes a recovery against them are: Johnson v. Payne, 11 Neb. 269 (9 N. W. 81); Kersenbrock v. Muff, 29 Neb. 530 (45 N. W. 778); Walton v. Hollywood, 47 Mich. 385 (11 N. W. 209); Vincent v. Moore, 51 Mich. 618 (17 N. W. 81); Swan v. Emerson, 129 Mass. 289; Semans v. Harvey, 52 Ind. 331; Horrigan v. Wellmuth, 77 Mo. 542; Stone v. Tilley, 100 Tex. 487 (101 S. W. 201, 10 L. R. A. [N. S.] 678, 123 Am. St. Rep. 819, 15 Ann. Cas. 524). However, in Hogg v. Longstreth, 97 Pa. 255, the supreme court of Pennsylvania held that a mortgagee may pay the taxes and sue the mortgagor, whose duty it was to pay them, in assumpsit. In the case at bar it must be observed that defendants stipulated that in case of default in payment of taxes plaintiff, the assignee of the mortgagee, might pay them and charge the amount to the defendants; that the payment was not made until after the foreclosure; that the statute (section 8172) permitted plaintiff to make the payment when it was made and gave a lien on the land therefor; and that the foreclosure never became complete so that the purchaser could be said to have taken the title as it stood at the time of the sale, charged with these taxes. The defendants at all times remained the owners of the mortgaged premises. It has been held that a mortgagee who has paid taxes to protect his interests prior to the foreclosure sale may reimburse himself from the proceeds of the sale, although no mention was made in the foreclosure notice, or the proceedings were so irregular that no claim could be made that the lien given by the statute, or by the usual terms of the mortgage, was enforced in the foreclosure proceeding. Gorham v. Insurance Co., 62 Minn. 327 (64 N. W. 906); Hamel v. Corbin, 69 Minn. 223 (72 N. W. 106). Taxes paid by plaintiff during the year of redemption should, as to these defendants, stand in as good position since the enactment of section 8172, as did the taxes paid by the holder of the mortgage in the two cases last referred to.
“It would seem therefore to follow that at least plaintiff was not a volunteer or intermeddler when he redeemed from the tax certificates held by Hicks & Co. and when he, during the year of redemption, paid the subsequent taxes in order to avoid the imposition of the penalty. The statute gave him the right to make the payment and have a lien therefor. His mortgage executed by defendants permitted him to make the payment and charge the amount to them as owners of the land, and it further authorized him to purchase and hold tax titles upon the land in his own right. Under this situation it would be a gross injustice to permit defendants to profit several hundred dollars from plaintiff’s mistake or inadvertence. Regardless of the right to a personal judgment we think plaintiff is entitled to be subrogated to the position of Hicks & Co. and the State as to these taxes. Taxes are a perpetual lien until paid. Hicks & Co. as holders of the tax certificates held this lien, by virtue of which they had also the right to pay subsequent taxes and acquire a lien therefor. Section 2125 G. S. 1913. We perceive no good reason why defendants should be heard to object to such subrogation. There is ample authority for the proposition that one who has paid taxes to protect his own rights and not as a volunteer or intermeddler, may be subrogated to the rights of the State or of the one who had acquired the State’s rights. Pratt v. Pratt, 96 Ill. 184; Sharp v. Thompson, 100 Ill. 447 (39 Am. Rep. 61); Cockrum v. West, 122 Ind. 372 (23 N. E. 140); John v. Connell, 61 Neb. 267 (85 N. W. 82); Fiacre v. Chapman, 32 N. J. Eq. 463; Title Guarantee & Trust Co. v. Haven, 196 N. Y. 487 (89 N. E. 1082, 1085, 25 L. R. A. [N. S.] 1308, 17 Ann. Cas. 1131). In this State in two cases where subrogation was permitted, there was included in the lien allowed, amounts paid for taxes. Emmert v. Thompson, 49 Minn. 386 (52 N. W. 31, 32 Am. St. Rep. 566), and Elliott v. Tainter, 88 Minn. 377 (93 N. W. 124).
“In our opinion the facts pleaded show that plaintiff, in reference to the payment of taxes and redeeming from the tax certificates of Hicks & Company, did so lawfully, under both contract and statute, to protect his interest in the land; and justice requires that he be substituted to the liens held by Hicks & Co., and the State, notwithstanding these have been canceled.
“ ‘This doctrine (of subrogation) is applied when such lien has been discharged under a mistake of the real situation, to save the party * * * from loss if sucb payment and discharge would otherwise give the owner of the land an unconscionable and inequitable advantage over the person who paid the same.’ Elliott v. Tainter, supra.”

It would be a great injustice if in the instant case the defendant could take over the land without paying the taxes which it was the duty of the owner to pay.

The decree should be affirmed, with costs.

Kuhn, J., concurred with Moore, J.

Ostrander, J.

The mortgage was foreclosed by advertisement and the premises were bid in, not by the mortgagee, but by a third person, a stranger to the title. The bid was considerably in excess of the mortgage debt. Afterwards, during the period of redemption, the purchaser paid taxes theretofore and thereafter levied upon the mortgaged premises. The owner of the land — by inheritance — in proper time paid the amount bid and interest to redeem from the sale, and the record in the office of the register of deeds was made to show the fact. Later, he sold a part of the land, giving a warranty deed therefor, to defendant Overton. The purchaser at the foreclosure sale filed the bill in this cause, setting up these and other facts • — which other facts do not affect or change the issue presented — asking, among other things, that it may be decreed—

“that the plaintiff is the holder of the said lands and the title thereto or a lien thereon in trust and that the said E. Porter Button be required to pay the amount of principal paid by this plaintiff to the sheriff of Van Burén county on the 11th day of December, 1916, the interest thereon to the date of the decree, the taxes advanced and paid by this plaintiff to free the lands from the liens created thereby and interest thereon as well as all costs and. charges which this plaintiff is put to in this suit and that the same be paid-at a short day to be fixed by the court in such decree and that in default thereof, that he be forever barred from asserting any claim to said lands or any portion thereof.
“(5) That the fund now in the hands of the register of deeds, be impounded by this court to be used to reimburse the said Fred J. Overton, if in equity and justice it shall be found that he paid over any mon.ey to the said E. Porter Button for the land so deeded to him to aid the said E. Porter Button in attempting to redeem said land, and to be used for such other purpose to protect the rights and interests of innocent parties involved in this litigation and agreeable to the facts, and circumstances as they develop on the hearing of said cause.”

The decree entered reads, in part, as. follows:

“That the said Alfred Wood be and he is hereby granted a lien, and a lien is hereby created on the land above described for said sums, together with the interest thereon and the costs of this proceeding and that in default of the payment thereof the said premises above described or so much thereof as may be sufficient to raise the amount so as aforesaid decreed to be due the said plaintiff with interest thereon as aforesaid and the costs in this case, and the costs and expenses of sale, may be sold at public auction.” ■

The sums so referred to are $66.45 and $211.41, and interest thereon from February 27, 1917, to the date of payment. It is further decreed:

“That after the payment aforesaid the redemption of said land by the said E. Porter Button, be in all things confirmed the same as though the said E. Porter Button had paid to the register of deeds the taxes aforesaid, with interest thereon up to the time of said redemption.”

The bill was not demurred to, but was answered, affirmative relief for defendants being asked for.

In my opinion, the case presented is not one to be determined upon some notion of general equities. The parties have a right to stand upon the law. Carlisle v. Dunlap, 203 Mich. 602. The right to redeem from a foreclosure at law is a legal right, is created- by the statute, and can neither be enlarged nor abridged by courts. A redemption is complete when one having the right to redeem pays in proper time, to a proper person,—

“the sum which was bid * * * with interest from the time of the sale at the rate per cent, borne by the mortgage, * * * and in case such payment is made to the register of deeds, the sum of one dollar as á fee.” * * * 3 Comp. Laws 1915, § 14959.

Such a redemption was made in this case. The power of sale contained in the mortgage is exhausted, the mortgage debt is paid, the mortgage lien discharged, the sheriff’s deed canceled, and the mortgagee and the bidder at the sale have no further interest in the property. In what right, then, and by what authority may a court declare a lien upon the land for taxes paid by the bidder after he purchased the land and before redemption? It seems to be considered that upon the authority of decided cases the question may be somehow answered favorably to plaintiff. Various cases are referred to and voluminously quoted from without pointing out the principle relied upon to sustain the decree, unless it is pointed out in the last paragraph, where it is said,—

“It would be a great injustice if in the instant case the defendant could take over the land without paying the taxes which it was the duty of the owner to pay.”

No regard is paid to the rights of defendant Over-ton, who purchased a part of the land after the redemption was made.

In my opinion, no case is cited which sustains the decree. No question is presented of the right of a mortgagee, by agreement with the mortgagor, or by1 ■virtue of a statute, to add to the sum due on the mortgage before foreclosure the taxes he has been obliged to pay. Decisions affirming that right are not in point here. This is not a case like G. F. Sanborn Co. v. Alston, 153 Mich. 456, in which a plaintiff seeking equitable relief is granted it upon condition that he do equity. It is not a case like Hopkins v. Sanders, 172 Mich. 227, in which the taxes paid are sought to be added to the amount of the decree in a chancery foreclosure. In Sucker v. Cranmer, 127 Minn. 124 (149 N. W. 16), the question presented is stated in the opinion to be:

“Has a mortgagee, who at the foreclosure sale bid in the property for the full amount of the debt then due, but while the year of redemption ran, disbursed money in payment of taxes and in redemption from tax sales, no remedy if he has failed to file and furnish an affidavit in accordance with section 8172, G. S. 1913, when "redemption is made by the mortgagor, as owner, without reimbursement for such tax payments, the mortgage containing a provision that the mortgagee may pay delinquent taxes and charge the amount to the mortgagor or the then owner, or at his option secure tax title to the property?”

No right of the mortgagee is involved in the case at bar and the owner, who redeemed it, is not the mortgagor. And in Wyatt v. Quinby, 65 Minn. 537 (68 N. W. 109), the question,—

“Can a mortgagee after a foreclosure of his mortgage by advertisement, and a sale of the mortgaged premises, pay taxes due thereon at the date of the sale, and reimburse himself for the amount so paid, from the proceeds of the sale of the premises?”

■ — was answered in the negative. In Gorham v. Insurance Co., 62 Minn. 327 (64 N. W. 906), the Minnesota court held, with reference to the Minnesota statute,—

“The statute and the mortgage secure to the mortgagee the right to pay the taxes at any time before the mortgage debt is extinguished, and when he does so pay the amount thereof is a part of the mortgage debt, — an additional lien on the premises, — ‘collectible with, as a part of and in the same manner as the amount secured by the original lien.’ ”

We need not seek light from other jurisdictions. In Vincent v. Moore, 51 Mich. 618, the bill was filed to enforce payment of a sum of money paid by complainants to redeem lands of defendant from a tax sale, upon which land, at the time of the redemption the complainants had a mortgage. The land was sold in foreclosure proceedings, bid in for the amount of the mortgage debt, and defendant redeemed from the sale. In part, this court said:

“What complainants were compelled .to pay for the protection of their mortgage did not constitute a separate and independent lien on the land; it could become a lien only in connection with and because of the mortgage, and could not exist independent of it. When therefore complainants’ took proceedings which resulted in a satisfaction of the mortgage, any lien which may have existed before for the taxes paid was necessarily discharged, whether the amount paid was claimed in those proceedings or not. All that complainants could claim by virtue of the mortgage they were bound to claim in those proceedings, and they could not at pleasure split up their demand and make the parts the subjects of separate suits.”

In Walton v. Hollywood, 47 Mich. 385, what is determined is fairly stated in the syllabus. The reasoning employed is convincing and not to be easily answered. The head notes are:

“If, before foreclosure, a mortgagee pays taxes and insurance which the mortgager ought to have paid the sum paid may be included in the amount for which he forecloses, even though the insurance was taken for the full period allowed for redemption.
“Where a purchaser on foreclosure, by way of keeping good his lien during the period of redemption, pays taxes and insurance which, under the mortgage, the mortgager himself was bound to pay, he cannot, when farther instalments fall due, again resort to the power of sale for the purpose of securing re-payment. The power is exhausted by the original foreclosure, and redemption may be had on paying the amount bid at the sale, with interest.”

These and other cases to a like effect I regard as sustaining the conclusion that the decree appealed from is wrong and should be reversed and one entered here dismissing the bill, with costs to appellants.

Bird, C. J., and Steere, Brooke, Fellows, and Stone, JJ., concurred with Ostrander, J.


author: Moore, J.

text:
    PEOPLE v. SMOLKIEWICZ.
    1. Criminal Law — Evidence—Sufficiency.
    In a prosecution under an information charging the taking of indecent liberties with a female child under the age of 14 years, without committing or intending to commit the crime of rape, the testimony of both the girl and her father that she was 13 years of age, held, sufficient to sustain a finding that she was under the age of 14 years.
    2. Same — Information — Taking Indecent Liberties — Rape— Statutes — Miscarriage of Justice.
    In view of Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, § 14565), a conviction under said information will he sustained, although the evidence was sufficient to show that the greater offense of rape had been committed.
    Error to the recorder’s court of Detroit; Wilkins, J.
    Submitted January 16, 1919.
    (Docket No. 112.)
    Decided May 29, 1919.
    Adam Smolkiewicz was convicted of taking indecent liberties with a female child, and sentenced to imprisonment for not less than 2 y% nor more than 5 years in the State prison at Jackson.
    Affirmed.

      Arthur A. Kosdnski, for appellant.

      Alex. J. Groesbeck, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Van H. Ring, Assistant Prosecuting Attorney, for the people.
   Moore, J.

The charge of the court was in part as follows:

“The Court: Gentlemen of the jury, it is charged in the information that the respondent Adam Smolkiewicz, on the 14th day of April, 1918, in the city of Detroit, in this county, he being a male person over the age of 14 years, to-wit: of the age of 42 years, did unlawfully take indecent and improper liberties with the person of one Martha Loch, without committing or intending to commit the crime of rape, said Martha Loch being then and there a female child under the age of 14 years, to-wit: of the age of 13 years, contrary to the form and force and effect of the statute in that case made and provided, and against the peace and dignity of the people of the State of Michigan.
“The crime charged is what is commonly known as taking indecent liberties with a female child under the age of 14 years, without committing rape, and without the intent to commit rape. If there was a rape of this child or if there was an intent to commit rape, then, gentlemen, your verdict should be not guilty under this charge, because this charge under this statute is that he took indecent liberties without committing rape, and without the intent to commit rape. * * * or if he took any indecent liberties with her person, such as inserting his finger in her private parts, or doing anything with her which you, as men of common sense, would call indecent liberties, then, if satisfied beyond a reasonable doubt of such facts, and if also satisfied that there was no rape, and no intent to commit rape, you should find the defendant guilty.”

The respondent was convicted and the case is brought here by writ of error; we quote from the brief:

“There are only two. distinct propositions to be considered:

“First. The evidence in the case is inconsistent with the charge of which respondent was found guilty.
“Second. The evidence was not sufficient to prove that the prosecutrix was under the age of fourteen years.”

The second proposition may be disposed of by saying that the testimony of both the girl and her father is sufficient to warrant the jury in finding the girl was under the age of 14 years.

The first proposition of counsel is based upon the theory that the testimony shows that a greater offense was committed than the one charged in the information. That the testimony if believed shows that what was done constituted rape and that for that reason respondent should be discharged, counsel citing People v. Partridge, 86 Mich. 243, and People v. Rivers, 147 Mich. 643.

Counsel for the people urge that the question involved was one of fact, and that under the testimony of the father as to what respondent said to him and under the charge of the court, that the verdict may be sustained. The trouble with this contention is that the testimony of the father sustains the testimony of the daughter which is to the effect that the greater offense had been committed. It is unadvisable to put upon the printed page this testimony. The respondent was not sworn and did not produce any witnesses in his behalf. The testimony of the girl as given before the magistrate was introduced in evidence by the respondent and in view of what it contained it is difficult to understand why the information did not contain a count charging the greater offense. If the law now stood as it did when the opinions were handed down in the cases cited by counsel for respondent this court would have no alternative but to discharge the respondent, but by Act No. 89 of the Public Acts of 1915 (3 Comp. Laws 1915, § 14565) it was provided :

“No judgment or verdict shall be set aside or reversed, or a new trial be granted by any court of this State in any case, civil or criminal, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”

We think this statute.was passed to prevent such a miscarriage of justice as would occur if this respondent upon this record should be discharged.

The judgment is affirmed.

Bird, C. J., and Steers, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.

      Continued from Vol. 205.


text:
    PEOPLE v. PARMALEE.
    1. Criminal Law — Information — Rape — Evidence —Admissibility.
    In a prosecution under an information charging, in the first count, the commission of the crime of rape, and in the second the taking of indecent liberties with a female .child under the age of 14 years, without committing or intending to commit the crime of rape, the testimony of the prosecuting witness as to what occurred at the time it is claimed the offense was committed, was admissible.
    2. Same — Trial—Instructions—Elements of Offense — Statutes.
    It was reversible error for the court, in instructing the jury as to the offense charged in the second count, to omit to add the words of the statute, “without committing or intending to commit the crime of rape.”
    3. Same — Evidence—Sufficiency.
    Although the testimony given by the people's witnesses is difficult to harmonize, it cannot be said, as a matter of law, that there was no testimony that would justify a conviction under the second count.
    Error to superior court of Grand Rapids; Dun-ham, J.
    Submitted January 17, 1919.
    (Docket No. 121.)
    Decided May 29, 1919.

      Grant Parmalee was convicted of taking indecent liberties with a female child, and sentenced to imprisonment for not less than 8 nor more than 10 years in the State prison at Jackson.
    Reversed.

      Ellis & Ellis, for appellant.

      Cornelius Hoffius, Prosecuting Attorney, and Bartel J. Jonkman, Assistant Prosecuting Attorney (Fred P. Geib, of counsel), for the people.
   Moore, J.

Respondent was convicted of taking indecent liberties with a female child of the age of 11 years, under an information containing two counts. The first count is that respondent—

“in and upon one Gladys Driscoll a female child under the age of 16 years, to wit, of the age of 11 years, feloniously did make an assault, and her the said Gladys Driscoll then and there feloniously did unlawfully and carnally know and abuse, against the form of the statute in such case made and provided.” * * *

The second count charged respondent with—

“being then and there a male person over the age of 14 years, to wit, of the age of 50 years, did then and there in and upon one Gladys Driscoll, a female child under the age of 14 years, to wit, of the age of 11 years, make and assault, and her the said Gladys Driscoll then and there did beat, bruise, wound and ill-treat, and did then and there take indecent and improper liberties with the person of said female child, Gladys Driscoll, * * * without committing or attempting to commit the crime of rape.”

The defense was an alibi, respondent denying the truth of all the testimony offered by the people. The case is here by writ of error.

Respondent claims there is reversible error in the record for three reasons:

(1) That the court erred in permitting the witness Gladys Driscoll to answer the question “then what did Grant Parmalee do?”
(2) The judge of the superior court erroneously permitted the jury to find the respondent guilty as a felonious assaulter under a charge which led the jury to believe that if the defendant took indecent liberties with Gladys Driscoll he would be guilty, under the statute, without regard to what he intended to do and whether he. actually committed rape on her or not, the judge having neglected to indicate what it was essential to prove to establish the offense as defined by the statute.
(3) The finding and verdict in this case is contrary to the evidence and the weight of the evidence. Under the evidence in this case, if the people’s witnesses are believed, the defendant was guilty of rape or an assault with intent to commit rape and the court erroneously submitted to the jury the question of an indecent assault.

1. The testimony objected to was the version of the witness of what occurred, when it is claimed the respondent committed the offense with which he was charged, and we think it was competent.

2. Did the court err in failing to define sufficiently the offense charged in the second count of the information. The oral charge was quite long and fully covered most of the questions involved. The court read to the jury the two counts in the information and properly instructed them as to what the people must show to sustain a conviction under the first count. We now quote from the charge:

“If you find neither of these offenses to have been committed, then you will pass to the second count in this information: Did respondent take indecent and improper liberties with this child? Did he put his hands upon her and his private organ upon her as she claims? If you find that he did, beyond a reasonable doubt, then you will find respondent guilty of taking indecent and improper liberties with this girl. If you do not find either one of these three offenses committed, then you will determine whether or not respondent is guilty of an assault and battery” etc.

Undoubtedly it was an oversight on his part that the trial judge omitted to add to what we have quoted the words of the statute: “Without committing or intending to commit the crime of rape.” In view of the verdict which was brought in by the jury we are constrained to say this was reversible error.

3. It is claimed that the testimony of the people showed that the offense of rape or an assault with intent to commit rape was committed and that now the respondent should be discharged, citing People v. Rivers, 147 Mich. 643, and other cases. In this connection it may be well to quote from the brief of counsel:

“We do not want this court to believe for a single minute that we think the evidence in this case was sufficient to show that this man was guilty of any offense. It seems plain to us and has all of the time that when these three girls first told that there was nothing wrong between them and the defendant they told the truth. * * * The record is full of absolute inconsistencies.”

It is difficult to harmonize all of the statements made by the people’s witnesses, and it is more than probable that the jury believed some of them and disbelieved some of them. We cannot say as a matter of law that there was no testimony that would justify a conviction under the second count of the information.

For the reason stated the judgment is reversed, and a new trial ordered.

Bird, C. J., and Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.


author:
Fellows, J.
      Ostrander, J.

text:
    MERCHANTS’ NATIONAL BANK v. FEDERAL STATE BANK.
    1. Banks and Banking — Forgery—Payment of Forged Check— Notice — Prejudice.
    As to the defense of delay in notifying the bank after discovery of forgery of payee’s indorsement, and the effect of said delay upon the bank’s opportunity to protect itself, this case is controlled by Houseman-Spitzley Corp. v. American State Bank, 205 Mich. 268.

    2. Same — Forgery—Liability of Indorsing Bank.
    Where the payees’ indorsements upon certain checks were forged and the proceeds placed to the forger’s credit by defendant bank, which indorsed the checks and they were paid by plaintiff bank through clearing house, and the maker of the checks suffered no loss, the forger having reimbursed the payees, plaintiff bank; not being liable to the maker, was not entitled to recover the amount of said checks in an action against defendant bank. Ostrander, J., dissenting.
    Error to Wayne; Mandell, J.
    Submitted January 23, 1919.
    (Docket No. 104.)
    Decided May 29, 1919.
    Assumpsit by the Merchants’ National Bank against the Federal State Bank for the amount of certain forged checks. From the judgment rendered, both parties bring error.
    Affirmed.

      Goodenough, Voorhies & Long, for plaintiff.

      Ralph L. Aldrich, for defendant.

      The question .of loss or prejudice to bank resulting from negligent failure on part of depositor or correspondent bank to give prompt notice of forgery, as a condition of its right to charge forged checks to latter’s account, see note in 20 L. R. A. (N. S.) 79.

   Fellows, J.

This case concerns the forgeries of one Stephen I. Kux, an employee of Houseman-Spitzley Corporation, one of whose forgeries was involved in the case of Houseman-Spitzley Corporation v. American State Bank, 205 Mich. 268. A reference to that case will disclose the relations and transactions of the parties. The instant case involves the following checks drawn by Houseman-Spitzley Corporation: (1) a check for $1,000 payable to Thomas H. Conway; (2) a check for $500 payable to H. E. Funke; (3) a check for $1,493 payable to Russ J. Cristy; (4) a cheek for $700 payable to Anton Kaier; (5) a check for $918.01 payable to Carrie Esterling; (6) a check for $782.34 payable to E. A. Barron. Upon each of these checks Kux forged the name of the payee and deposited them with defendant, receiving credit therefor in his account. Defendant in turn indorsed them and they were paid through the clearing house by plaintiff (in case of one check by plaintiff’s assignor), and charged to the account of Houseman-Spitzley Corporation. Upon learning of the forgeries Houseman-Spitzley Corporation promptly notified its bank, the plaintiff here. This seems to have been on August 1st. The vice-president required more proof before taking action. A confession was obtained from Kux August 2d. This was taken by a stenographer before an assistant prosecuting attorney, the transcript of which was delivered to Mr. Spitzley of the Houseman-Spitzley Corporation on Saturday, August 4th. On Monday, August 6th, notice of the forgeries was given to defendant by the plaintiff. As to the checks (1) to and including (4) the defendant here interposed the same defense as in the other case, that it was relieved of liability by failure to more promptly give notice of the forgeries. The trial judge declined to follow defendant’s counsel, but entertained the view that as matter of law the notice was given within a reasonable time. He therefore directed a verdict for the amount of these four checks. Defendant here assigns error on this direction and the refusal of the court to direct a verdict for it. In the other case we held that defendant was not relieved from liability by the delay unless it was to its prejudice, and that upon the facts it had not shown prejudice. As to the four checks now under consideration, the facts on this record are the same as those in the other case, except that the delay in giving notice was less here than there. The instant case upon this question is controlled by the opinion in the other case, which fully considers and discusses the law applicable to the state of facts here under consideration. Defendant’s assignments of error are overruled.

As to the other two checks a different situation is presented. While Kux forged the names of the payees, on the checks to Carrie Esterling and E. A. Barron and deposited them in his account, he gave his own check, which was subsequently cashed, to these parties for an amount greater in each instance than the-amount of the checks appropriated, and the deal with each of these parties was an actual deal, a purchase-from them of an interest in property; therefore, Houseman-Spitzley Corporation paid, although- by circuity, for the interest in the lands which it purchased from Carrie Esterling and E. A. Barron, and was not damaged by the transaction. If the Houseman-Spitzley Corporation was not damaged by these forged indorsements it could not call upon its own bank to make good losses it had not suffered by these particular transactions, nor recover for damages which had not been occasioned by these particular forgeries. If it could not recover from its bank, plaintiff here, it is obvious that plaintiff cannot recover from defendant. The trial judge entertained this view and directed a verdict for the defendant as to these two checks. Plaintiff assigns error upon this direction and the refusal to direct a verdict in its favor. Its assignments of error are also overruled.

The judgment must be affirmed.

Bird, C. J., ánd Moore, Steere, Brooke, Kuhn,. and Stone, JJ., concurred with Fellows, J.

Ostrander, J.

(dissenting). Plaintiff paid a forged check which defendant had indorsed and plaintiff sued the indorser. I am not able to see what HousemanSpitzley has to do with the matter. True it was Houseman-Spitzley’s check and has been charged by plaintiff to its account, but how does the fact that Houseman-Spitzley got — indirectly — something of value change the situation?

I am of opinion that the judgment should be reversed and a new trial granted.


author: Steere, J.

text:
    PEOPLE v. WOODS.
    1. Criminal Law — Character Witness — Negative Testimony— Admissibility.
    The testimony of a character witness, in a criminal prosecution, that the reputation of defendant was good was admissible, although he admitted, on cross-examination, that he had never heard anything said about defendant’s reputation, one way or another.
    2. Same — Good Character — Presumption—Instructions.
    It was error for the court below to refuse defendant’s requested instruction that in a criminal prosecution the accused is presumed to be of good character.

    3. Same.
    Where defendant’s character evidence was negative, it was error for the court below to belittle it by stating to the jury that it was not “much evidence of character or reputation.’’

    4. Same — General Rule — Conspiracy—Evidence—Admissibility.
    -It is the general rule that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in tbe prosecution of tbe common enterprise, or while it is still in progress, is evidence against all tbe parties to it.
    5. Same — Arson—Conspiracy—Evidence.
    In a prosecution for arson, a conspiracy to burn tbe building in question having been prima facie proven, a conversation between witness and one of tbe conspirators in connection with work being done to further tbe conspiracy, was admissible.
    6. Same— Evidence — Testimony of Co-Conspirator — Admissibility.
    In such prosecution, testimony of one of tbe conspirators implicating bis co-conspirators, was admissible.
    Exceptions, before judgment from Bay; Houghton, J.
    Submitted April 17, 1919.
    (Docket No. 111.)
    Decided May 29, 1919.
    Frank Woods was convicted of arson under section 15289, 3 Comp. Laws 1915.
    Reversed.

      Cowmans & Gaffney, for appellant.

      William A. Collins, Prosecuting Attorney, for the people.

      On presumption as to good character of accused in criminal case, see note in 46 L. R. A. (N. S.) 342.

      As to proof of character by negative evidence, see note in 22 L. R. A. (N. S.) 666; 2 L. R. A. (N. S.) 553.

   Steere, J.

On the night of February 2, 1915, a barn located on south Henry street in Bay City in which defendant ran a livery business was, with its contents, destroyed by fire. The fire was charged to have been of incendiary origin. Defendant was subsequently arrested, tried and convicted of having feloniously caused and procured the same to be burned for the purpose and with intent to injure and defraud the insurers of the contents of said barn in violation of section 15289, 3 Comp. Laws 1915. His conviction was thereupon appealed to this court for review on a bill of exceptions settled before sentence, containing some 40 assignments of error.

Defendant had been a resident of Bay City for many years. He had followed peddling fruits and vegetables in Bay City and at times dealt in horses. In the spring of 1914 he entered into negotiations with one Henry LaFrance, an undertaker, by which he rented from him the bam which was burned, for an indefinite period at $10 a month, he to fix it up to suit himself. During the summer he bought of LaFrance a quantity of old livery stock for which he testified that he paid $3,150 and started a livery business. At the time of the fire his stock was covered by an aggregate insurance of $4,600 placed in seven different companies. They refused to recognize liability and protracted litigation followed which resulted eventually in his recovering a total of $4,393.91 insurance.

It was claimed by the prosecution that much of the property covered by this insurance was old, out of date and of small value, and that Woods’ livery business proved unprofitable; that he and LaFrance, who occupied a building close to the livery barn and was on' intimate terms with Woods, planned to bum this bam to get the insurance, and induced a hack driver named" McCauley, who worked in Woods’ stable then but had previously been employed by LaFrance, to assist in carrying out the project; that for this unlawful purpose the three entered into a conspiracy by which La-France and McCauley undertook, for a consideration from Woods and with his co-operation, to burn the barn by a contrivance combining a candle, bottle, gasoline and some ether which would ignite the hay in the loft at an agreed favorable time of the night when Woods was at home, which was accomplished as planned; that differences arose between McCauley and Woods in connection* with or following the latter’s litigation with the insurance companies, resulting in disclosures by McCauley which led to his own arrest in the spring of 1917, upon a charge of burning this stock. To this he pleaded guilty and turned State’s evidence, disclosing the nature and circumstances of the conspiracy pursuant to which the fire was set and the insured property burned, as claimed by the prosecution. Certain details of his confession incriminating Woods are also claimed by the prosecution to be verified by otherwise proven facts and circumstances, the particulars of which need not be gone into as they were matters for the jury in any aspect of the case. The defense was denial of any participation or previous knowledge, alibi, good character and that the fire was purely accidental and its cause unknown.

Defendant’s many assignments of error group in substance to the proposition that there was prejudicial error in admitting the testimony of a witness named Sullivan as to a conversation with McCauley and in the reception of certain portions of McCauley’s testimony; in permitting certain assertions in the prosecutor’s closing argument; in refusing certain of defendant’s requests to charge; in the charge as given; in striking out the testimony of a character witness of defendant’s named Cook and the remarks of the court upon that subject.

Defendant had lived in Bay City on the west side for over 30 years and called as character witnesses several business men of the city who had known him for different periods ranging from 10 or 12 to 25 years. One of them was Charles Cook, cashier of the People’s Commercial Savings Bank of Bay City, who stated he had known defendant 25 years, on the west side of the river, and had himself lived on the west side for 45 years. He was then asked and answered the following questions:

“Q. Have you, during that time and up to the present time, been familiar with Mr. Woods, to the extent of knowing whether or not he has a good reputation over there?
“A. I have. * * *
“Q. State whether or not you know his reputation.
“A. I do.
“Q. State to the jury what that reputation has been during the time you have known him.
“Mr. H. Good or bad?
“A. It has been good.”

On cross-examination he admitted he had never heard anything said about his reputation one way or another. On motion of the prosecution the court then struck out all of Cook’s testimony. As to this witness the facts, and course pursued are closely analogous to those touching the same question in Sinclair v. State, 87 Miss. 330 (39 South. 522, 2 L. R. A. [N. S.] 533, 112 Am. St. Rep. 446), a manslaughter case in which a character witness called for defendant testified in direct examination that he knew the accused’s general reputation in that community “for peace or violence,” and that it was. good. Having answered on cross-examination that he had “never heard it discussed at all,” the court, on the State’s motion, excluded the testimony. The supreme court of that State in reviewing the case said: “This was fatal error,” followed by a discussion of the reasons, citing several decisions of that court and 1 Wigmore on Evidence, § 55 et seq. There, as here, character testimony of other witnesses was before the jury. In the instant case, without reinstating the testimony of Cook, the court ruled differently as to character witnesses later called. One of these, named Howard, a clothing merchant who had known defendant 15 years, testified on direct examination that he was familiar with his reputation “around the west side” where the witness knew him, and that it was good. On cross-examination he was put through the usual course of inquiry as to his source of knowledge against which he sought to fortify by asserting he “never heard any one say his reputation was bad,” but on being asked by the court if he ever heard “anybody say anything, one way or the other,” he answered, “No, sir, I never did.” The court offered the reflection, “I don’t think it is much proof of reputation,” but ruled, “we will let it stand.” The testimony of other character witnesses of defendant which was allowed to stand, while assuredly adequate as affirmative testimony on direct examination, yielded on cross-examination to similar modifying answers. Of course neither party is in a position or has occasion to complain of this testimony, which was admitted; but if it was admissible, that of Cook certainly was. He was an old and apparently prominent citizen who testified to a familiar acquaintance with defendant in the locality where he resided for “about 25 years,” a longer time than any of the other witnesses. Admitting this falls short of affirmative evidence and conceding all that is said as to its force by the prosecution or trial judge, who stated to the jury in his charge that “it isn’t much evidence of character or reputation,” it nevertheless falls within that class recognized in certain jurisdictions and by various text writers as “Negative evidence of character,” and as such admissible. In 1 Wharton on Criminal Evidence (10th Ed.), p. 240, the author states with many modifying citations:

“The great weight of authority now is, that character can be established by negative testimony, so that one who has never heard the reputation of the defendant assailed, but who has been in a position where he probably would have heard it if it had been a subject of comment, may testify to the good character of such person, upon the very wise and logical theory that, if a person’s reputation is never a subject of discussion in the .community, it is more likely to be good than where it is the subject of discussion and comment. So that the best evidence of good reputation is where the witness testifies that he has never heard it discussed, questioned, nor talked about. The more unsullied and exalted the character is, the less likely it is ever to be called in question.”
“It is a well-established rule that the testimony of a witness to the effect that he has never heard anything against the character or reputation of a certain person, or that he has never heard the matter discussed, is admissible to prove the good character of such person, provided the witness has been in such a position that it is likely he would have heard anything that was said concerning the person’s character or reputation. Indeed, negative evidence is the most cogent evidence of a man’s good character and reputation, because a man’s character is not talked about till there is some fault to be found with it. It is the best evidence of his character that he is not talked about at all.” 10 R. C. L. p. 954.
“Affirmative testimony of express oral comments of the neighbors, friends and acquaintances of the accused, upon the reputation of the accused is not always required. Evidence that the character of the accused had never been denied or doubted, or even discussed or spoken of among his acquaintances, though negative in form, is always admissible and often of the highest value.” Underhill on Criminal Evidence (2d Ed.), p. 147.
“Testimony of a witness that he has been acquainted with the accused for some time and under such circumstances that he would be likely to hear what was said about him and that he has never heard any one speak against his character is admissible.” 12 Cyc. p. 416.

The foregoing quotations are well fortified by the numerous citations accompanying them. That the authorities are not entirely in harmony is apparent. Jurisdictions may be found which yet adhere to the more technical and narrow rule that good character of the accused in a criminal case can only be shown by affirmative proof of general reputation, but it is now universally recognized that proof of good character in some form is admissible and a valuable right of the accused, which may be of vital importance to him, and which he is entitled as a matter of' right to lay before the jury as a part of his defense. His right to make such proof when under a charge of arson extends to proof of his general reputation. State v. Emery, 59 Vt. 84 (7 Atl. 129). While no criminal case appears to have arisen in this State where the question of negative evidence of character was directly involved, its propriety and admissibility where the purpose is to sustain character was discussed and recognized as logically right in the civil case of Lenox v. Fuller, 39 Mich. 268. The issue directly involved there was the reputation of the party under inquiry for truth and veracity, but the reasoning and rule as stated are of general application. It was there said:

“Where, however, the witness is not called to impair but *to support credit, the ground is different. Not to have been talked about at all in regard to integrity is. not to have been talked against, and it is not objectionable to show that the veracity of the witness has not been questioned.
“The fact that a person’s truthfulness has never been the subject of controversy is according to general observation and experience, very cogent evidence to prove him worthy of credit, and where those who would be likely to know if it had been the subject of criticism testify they have no knowledge that it has been, the evidence is proper as conducive to the effect that such person could not have, borne the' bad reputation imputed. People v. Davis, 21 Wend. (N. Y.) 309; Gandolfo v. The State, 11 Ohio St. 114; State v. Lee, 22 Minn. 407 (21 Am. Rep. 769).”

This case is cited in Re Thayer’s Estate, 188 Mich. 261, and the rule applied in a character inquiry as to chastity. The testimony of witness Cook was clearly admissible. The accused in a criminal case is presumed to be of good character and defendant requested the court to so instruct the jury. This was not done, but the jury was told that the testimony defendant, had been allowed to introduce on that subject was not “much evidence of character or reputation.” The right to introduce any competent evidence of his good character and have it impartially submitted to the jury is a substantial right of perhaps vital importance to the accused — how important was for the jury to determine — as this court early recognized and plainly stated in People v. Garbutt, 17 Mich. 26 (97 Am. Dec. 162). This combination of adverse rulings upon that subject and invasion of the province of the jury by belitting the character of testimony submitted to it deprived defendant of a substantial right pertaining to a fair and impartial trial, and was upon the face of this record as a conclusion of law presumptively prejudicial error indicating a miscarriage of justice in that particular which entitles defendant to a new trial.

We find no reversible error in rulings on the testimony of McCauley and Sullivan. Before the testimony complained of was offered a conspiracy had been prima facie proven. McCauley 'was one of the conspirators. His testimony implicating his co-conspirators was competent. The rule in such cases was early stated by this court as follows:

“The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it.” People v. Pitcher, 15 Mich. 396.

At the time of McCauley’s conversation with Sullivan the conspiracy was in progress. It took place in connection with work being done to further the conspiracy, while some of the old livery stock was being moved from LaFrance’s place into the barn proposed to be burned, which had attracted Sullivan’s attention. We discover scant merit in most of the remaining assignments of error, and it is not to be anticipated that any which seem' questionable will confront the -court on a retrial.

The verdict must be set aside for the reasons stated and a new trial awarded.

Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    ROSSELLO v. TRELLA.
    Contracts — Partnership—Certificate—Fictitious Names.
    Where a contract to erect a building was signed by partners in their individual names, with no partnership name stated nor reference made to a partnership, said 'contract was not void, although no certificate of copartnership had been filed with the county clerk as required by Act No. 164. Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seg.).

    Appeal from Wayne; Dingeman, J.
    Submitted April 29, 1919.
    (Docket No. 6.)
    Decided May 29, 1919.
    Bill by Peter R. Rossello and another, copartners as Rossello & Rapp, against Joseph C. Trella and another" to foreclose a mechanic’s lien. From a decree dismissing the bill, plaintiffs appeal.
    Reversed.

      Joseph T. Schiappacasse .(Harvey B. M. Wilds, of counsel), for plaintiffs.

      Anthony Maiullo, for defendants.
   Steere, J.

On September 8, 1915, plaintiffs filed their bill of complaint in the circuit court of Wayne county in chancery to foreclose a statutory lien to collect a claimed balance due them for labor and material furnished in constructing for defendants a described store and flat building in Detroit, under a written agreement between the parties. The contract is dated July 7, 1914, and provides for completion of the building by December 28, 1914, at a stated price of $6,400, with $50 extra for moving a certain column, payments aggregating $4,500 to be made at certain stages as the work progressed and the balance on completion of the building. Plaintiffs allege in their bill that the last “labor and materials was furnished the 6th day of March, A. D. 1915”; that they furnished extra labor and material according to certain alterations in the plans ordered by defendants to the amount of $572 and claim a lien for balance due amounting to $1,950.39. Defendants answered issuably in denial and asked affirmative relief as by cross-bill for failure to complete the building within the specified time, and failure to construct it according to plans and specifications, and further ask the benefit of a demurrer as to said bill because plaintiffs were copartners and had .not filed with the clerk of Wayne county a certificate in relation thereto as required by Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.).

When the suit came on for hearing the latter objection was early urged for the defense and after briefly supplementing the pleadings and exhibits by certain undisputed facts counsel by consent submitted the question to the court on defendants’ motion, in the nature of a demurrer, that plaintiffs’ bill “be dismissed because the certificate of partnership was not filed as required in the above act.” After hearing counsel the court granted defendants’ motion and dismissed the bill of complaint.

It was conceded by counsel for both parties that “plaintiffs were copartners but did not file a certificate to that effect in accordance with Act No. 164 of the Public Acts of 1913, until after the contract was executed, but prior to the filing of the lien, however.” They in fact filed such certificate on April 29, 1915, and their claim of lien on May 4, 1915, commencing suit on September 3, 1915.

Counsel for defendants contended and the trial court apparently held that the case was controlled by Maurer v. Greening Nursery Co., 199 Mich. 522.

It appears that plaintiffs in their work as contracting partners were doing business under the firm name of Rossello & Rapp at times, and perhaps generally, although the contract which they entered into in this case does not so disclose. In that respect there is a marked difference between the Maurer contract and the one under consideration here. The carefully prepared contract in that case shows the firm of “Maurer Brothers” contracted as such, were so named in the commencement of the instrument and stated as “ (hereinafter designated the contractor).” The contract was signed “Maurer Brothers” per a member of the firm. In the instant case the contract of July 7, 1914, is personally signed by the individual plaintiffs — “Peter R. Rossello. Phil B. Rapp.” No firm name is used and no mention is made of any firm or partnership anywhere in the instrument, their separate names being set out in the introductory clause where they are designated as the party of the second part, with just how exact an understanding by the scrivener of the varied meaning of such designation is not clear for further on in the body of the instrument is the rather singular but express provision that the work is to be-“done in a good, sufficient and workmanlike manner, to the entire satisfaction of said party of the second part,” — rendered innocuous, however, by a subsequent provision giving the superintending architect “full power to reject all material and workmanship not in full accordance with the spirit and meaning of the plans,” etc.

In 1907 the legislature passed Act No. 101 (2 Comp. Laws 1915, § 6349 et seq.) “to regulate the carrying on of business under an assumed or fictitious name,”' prohibiting so doing unless a certificate is filed with the county clerk setting forth the name under which such business is owned or conducted and the true name or names of the person or persons owning and conducting the same with postoffice address, etc., violation. ¡of the act being made a criminal offense punishable by fine and imprisonment. Construing it as an act directed particularly against the opportunity for fraud and imposition furnished to persons disposed to conceal their identity and avoiding responsibility under assumed or fictitious names, in the transaction of business, this court held that contracts made in violation of the act were invalid (Cashin v. Pliter, 168 Mich. 386 [Ann. Cas. 1913C, 697]); but held that partnerships openly using the true names or surnames of their members in their firm name in such manner as to fairly advise of the parties owning or conducting the business, and not mislead, were not to be regarded as operating under false, assumed or fictitious names within the meaning of the act. Axe v. Tolbert, 179 Mich. 556; Sauer v. Construction Co., 179 Mich. 618; Cross v. Leonard, 181 Mich. 24; Zemon v. Trim, 181 Mich. 130. Under that act as construed partnerships honestly adopting in their business firm names which were not a disguise and fairly indicated who owned and operated the business were safeguarded, and the act, as the court construed its intent, only reached in full force those operating under cover of actually obscuring false, assumed or fictitious names. Under that act a contract by and in the name of the firm of “Maurer Brothers,” or “Rossello & Rapp,” would be valid, though no certificate of partnership had been filed. But without repealing Act No. 101, Pub. Acts 1907, the legislature passed Act No. 164, Pub. Acts 1913, imposing on all partnerships the duty of filing such certificates, whatever names they did business under and without any exception or saving clause, making violation of the act a criminal offense punishable by fine and imprisonment in like manner as provided in Act No. 101, in effect nullifying decisions construing the former act as excluding partnerships not doing business under what must be regarded as strictly assumed or fictitious names. It was the opinion of a majority of the court in Maurer v. Greening Nursery Co., supra, that such was the unavoidable result of this piece of - legislation, whatever else its purposé, and if not deemed desirable it was the province of the legislature, not the courts, to change or repeal the law.

The controlling reason which impelled the decision in the Maurer Case was that the firm of Maurer Brothers, a copartnership, as such and in its firm name, with no mention of the individual members composing it, entered into a contract in writing during the period it was in default and criminally liable to fine and imprisonment for failure to file the required certificate, rendering the contract absolutely void. In the instant case the written contract between the parties is in their individual names, personally signed by plaintiffs with their names set out in full in the body of the instrument, with no partnership name stated nor reference made to a partnership.

The stipulation that plaintiffs were partners, before quoted, if referred to the date of the agreement is not a stipulation that they contracted as such with defendants, nor does it serve to change the character of the written instrument by which they were obligated as individuals and not as a firm or copartnership. The written contract on its face and as it reads does not violate Act No. 164 and is not shown to be invalid. Defendants’ contention was in the trial court, and is here, that the contract entered into between plaintiffs and defendants is void because in violation of the statute, and as plaintiffs must necessarily rely entirely upon their contract to sustain their suit the bill should be dismissed. This the court did, on defendants’ motion in the nature of a demurrer. With this we are unable to agree for the reasons stated. The decree, or final order, dismissing plaintiffs’ bill will be reversed and set aside and, as other questions which may be involved touching the merits and validity of plaintiffs’ lien have not been gone into or passed upon by the trial court, the case will be remanded for such further proceedings as may be appropriate, and not incompatible with this opinion. Plaintiffs will recover costs of this court.

Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.