text:
    NELSON v. STEWART.
    1. Trial — Argument—Appeal and Error — Jury. In an action tried by the court,without a jury, appellant, who neglected to avail himself of his right to present points of law to the court to be found, could not in the Supreme Court complain of the refusal of the trial judge to hear argument after the proofs had been closed.
    2. Same — Evidenoe—Compromise. The objection that evidence of a compromise made between the parties was incompetent under the pleadings, could not be raised for the first time on error.
    3. Same. A finding of the circuit court made on the testimony of one of the defendants tending to establish a contention of plaintiff, that the other defendant knew of and assented to a certain compromise agreement, was sufficiently supported:
    4. Compromise and Settlement — Contracts—Consideration. A contract of settlement between a client and his attorney whom he charged with having taken undue advantage of him and with procuring an unconscionable agreement as to fees, eto., abrogated the prior contract providing for unreasonable compensation, apd was supported by sufficient consideration.

      5. Same — Interest. Defendants should not be charged interest prior to the date of settlement on sums in their hands, to be repaid to the client pursuant to the compromise; interest should run only from the date of the settlement.
    Error to Muskegon; Sullivan, J.
    Submitted November 18, 1912.
    (Docket No. 89.)
    Decided March 20, 1913.
    Assumpsit by Adolph Nelson against Eugene Stewart and John L. Bolen for money had and received. Judgment for plaintiff.
    Defendant Stewart brings error. Reduced and affirmed.

      William 'Carpenter, for appellant.

      Alex. Sutherland, for appellee.
   Kuhn, J.

This case was tried by the court without a jury. After hearing the testimony offered, and amendments to the proposed findings of facts and oonclusions of law having been submitted to the court, the circuit judge made the following findings, which give a history of the transactions which resulted in this litigation:

“ (1) That prior to January 25,1908, the estate of John Nelson was pending in the probate court of the county of Cook and State of Illinois, and that the plaintiff claimed to be the son and sole heir at law of said John Nelson, deceased, and was so described in the petition for letters of administration filed in said court, and signed and sworn to by Sophie Erickson, administratrix of said estate.
“ (2) That a question arose as to a former marriage of John Nelson, deceased, and the claim was raised that Adolph Nelson was an illegitimate child, and therefore not entitled to any share in the estate of said John Nelson, deceased; that the plaintiff had some talk with the firm of Bolen & Stewart, lawyers, who are the defendants in this cause, for the purpose of employing them to protect his interest in said estate.
“ (3) That on the 25th day of January, A. D. 1908, an agreement was made between said Adolph Nelson, plaintiff, and John L. Bolen and Eugene Stewart, which was in the words and figures following, to wit:
“ ‘This memorandum of agreement, made and entered into this 25th day of January, A. D. 1908, by and between Adolph Nelson, party of the first part, and John L. Bolen and Eugene Stewart, co-partners as Bolen & Stewart, parties of the second part, witnesseth: That whereas the said Adolph Nelson is the sole heir at law of John Nelson, who died in the city of Chicago, State of Illinois, about September, 1906, and whose estate is in the process of administration in the probate court of Cook county, Illinois, the administratrix of said estate being Sophie N. Erickson, the sister of said deceased ; and whereas certain proceedings have been had in the probate court in the matter of the estate of said Adolph Nelson, a minor, who is now of the age of twenty-one years and over, having become of legal age on August 25, 1907; and whereas the said Adolph Nelson as such sole heir at law of John Nelson, deceased, is the owner in fee simple of the following described real estate, situated in the county of Cook and State of Illinois, to wit, lot four (4) in block three (3) in James Couch’s subdivision of the north half of the south half of the northwest quarter of section thirteen (13), township thirty-nine (39) north, range thirteen (13) east, of the third principal meridian, also lot sixty-four (64) in Edson Keith’s resubdivision of lots one (1) to twenty-four (24) in block three (3) and all of block four (4) in Reed’s subdivision of the east three-quarters of the south quarter of the northeast quarter of section thirteen (13), township thirty-nine (39) north, range thirteen (13) east of the third principal meridian, and is also the sole and exclusive owner and entitled to a large sum of money, to wit, twenty-five thousand dollars ($25,000.00), which is supposed to be on deposit in the Prairie State Bank of Chicago, Illinois, in the name of said Sophie N. Erickson, administratrix, and is also the owner of and entitled to a certain principal note for two thousand dollars ($2,000.00) and interest notes accompanying the same, together with the trust deed securing said note, all executed by Thomas and Bolette E. Peterson, secured upon certain real estate in Cook county, Illinois, all of the foregoing real and personal property and money being part of the property left by said John Nelson at the time of his death; and whereas questions have been raised by persons claiming to be entitled to raise such questions, that the said Adolph Nelson is not entitled to any distributive share, or any share or part of the property left by his father, John Nelson, and have claimed that the said John Nelson, having been married twice and no divorce having been affirmatively shown from the first wife, that the said Adolph Nelson is not a legitimate son of the said John Nelson, and therefore not entitled to inherit from him; and whereas the said Adolph Nelson is desirous of asserting his rights in and to said property, money, assets and estate, and having no means of engaging counsel to do so and being desirous of employing the parties of the second part as his attorneys and counselors to conduct such litigation, and to take such steps and measures in the premises as to them may seem best or proper, and being desirous of having his said attorneys represent him in said estate or any other proceeding which may be instituted or pending at any time hereafter, and whereas it has been agreed between the party of the first part and the parties of the second" part hereto that the parties of the second part shall act as the attorneys and counsel for the party of the first part in such litigation, estates, proceedings, and in all matters pertaining to said property, money, assets and estate, and the interests of the party of the first part therein, and thereto, and that the parties of the second part shall receive therefor one-half or fifty per cent. (50%) of said property, money, assets and estate, and of the proceeds and avails thereof, or so much thereof as may be recovered or obtained, which said party of the first part is now entitled to or interested in or which he may acquire, become entitled to or become interested in: Now, therefore, for and in consideration of the sum of one dollar in hand paid by the parties of the second part to the party of the first part, the receipt whereof is hereby acknowledged, and in further consideration of the services heretofore rendered and to be rendered by the parties of the second part in said matters, the party of the first part, for himself, his heirs, executors, administrators and assigns, does hereby assign, grant, bargain, sell and convey to the party of the second part, their heirs, executors, administrators and assigns, an undivided one-half or fifty per cent. (50%) of the following property, money, assets and estate, to wit: Lot four (4) in block three (3) of James Couch’s subdivision of the north half of the south half of the northwest quarter of section thirteen (13), township thirty-nine (39) north, range thirteen (13) east, of the third principal meridian; also lot sixty-four (64) in Edson Keith’s resubdivision of lots one (1) to twenty-four (24), inclusive, in block three (3) and all of block four (4) in Reed’s subdivision of the east three-quarters of the south quarter of the northwest quarter of section thirteen (13), township thirty-nine (39) north, range thirteen (13) east of the third principal meridian, all in Cook county, Illinois; and the certain sum of twenty-five thousand dollars ($25,000.00) aforesaid, and the certain principal note, for two thousand dollars ($2,000.00) and interest notes accompanying the same, together with the trust deed securing said notes executed by Thomas and Bolette E. Peterson, aforesaid, and any and all interest in said estate of John Nelson, and all the assets therein referred to. It is further agreed that in the event the parties of the second part shall incur or become liable for any costs, expenses or charges, that the same shall be reimbursed and paid to said parties of the second part out of any property, money or assets which may be recovered or obtained hereunder. In the event that nothing is received through said estate by the said Adolph Nelson, then it is understood and agreed that the parties of the second part are to receive nothing for their services. In testimony whereof the parties hereto have hereunto set their hands and seals the day and year first above written.
“ Adolph Nelson. [Seal.]
“ John L. Bolen. [Seal.]
“Eugene Stewart. [Seal.]
‘“State op Illinois, )
. “ ‘ County op Cook, j bb':
‘“I, Alma C. Larson, a notary public in and for and residing in the said oounty in the State aforesaid, do hereby certify that Adolph Nelson, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act for the uses and purposes therein set forth.
“ ‘ Given under my hand and notarial seal this 25th day of January, A. D. 1908.
“ ‘Alma C. Larson, Notary Public. [Seal.]’
“ (4) That before making this agreement the defendants had made some investigations as to the law and as to the amount of said estate, and whether or not there was liable to be a contest to determine if said Adolph Nelson, the plaintiff, was the legal heir of said estate, and had talked with the attorney for the administratrix and for said estate, and defendants came to the conclusion that there was not likely to be a contest as to plaintiff’s rights as heir.
“ (5) That it was represented by said defendants to the said Adolph Nelson that there would be a contest over the question of his heirship to his father’s estate; that the said Adolph Nelson informed the defendants that he had no means with which to employ lawyers. There were some further negotiations between plaintiff and defendants, the whole resulting in the contract between these parties, dated January 25, 1908.
“(6) That there was in fact no contest and not very much work done on the part of defendants to establish the rights of plaintiff and to collect said estate for him; that the heirship of plaintiff was established as a matter of course, and the proceeds of the estate of John Nelson, deceased, which plaintiff inherited, were awarded to him on February 20, 1908; that plaintiff first talked to defendants about January, 1908.
“ (7) That prior to the awarding of said estate to plaintiff he had turned over to defendants, as security for their services, real estate valued at four thousand dollars ($4,-000.00), and shortly after the settlement of the estate in the probate court he left in their custody a note for two thousand dollars ($2,000.00) and interest, secured by a trust deed executed by Thomas and Bolette E. Peterson.
“ (8) That at about the time of the settlement of said estate, February 20, 1908, defendants represented to plaintiff that all contest over the question of heirship would be withdrawn, provided plaintiff would turn over to Sophie Erickson, the administratrix, and who also was the supposed contestant, the Peterson note for two thousand dollars ($2,000.00) and the real estate of the value of four thousand dollars ($4,000.00) then held by defendants as security for their fees, which plaintiff consented to; that at or about the same time defendants, in part settlement between them and plaintiff, gave plaintiff eight thousand dollars ($8,000.00) in a certified check and retained seven thousand dollars ($7,000.00) to pay them for their services ; and that about that time plaintiff assigned the Peterson note to defendants, defendants at such time having the title to said real estate.
“ (9) After the settlement of said estate and at the solicitation of defendants, plaintiff turned over to them the ■certified check for eight thousand dollars ($8,000.00), being a part of his share of said estate, and received stock in the Northwestern Mortgage &; Trust Company of the face value of seven thousand dollars ($7,000.00) and one thousand dollars ($1,000.00) in cash.
(10) That during the month of April, 1908, plaintiff ascertained that the said Sophie Erickson had not received said real estate nor the Peterson note, and that she had not and never did intend to make any claim against the estate of John Nelson, as heir at law, and thereupon plaintiff went to defendants and demanded that they turn over to him the real estate valued at four thousand dollars ($4,000.00) and the Peterson note of two thousand dollars ($2,000.00). This the defendants did. Plaintiff also employed J. M. Kuh, an attorney, and through said attorney made a demand on the defendants to pay him back the money they received from him for the stock in the Northwestern Mortgage & Trust Company; said plaintiff claiming said stock was of no value. Plaintiff also claimed that the said defendants overreached him and took advantage of his inexperience, ignorance, and youth in making the contract of January 25, 1908, between plaintiff and defendants, and for that reason said contract was unconscionable and void.
“ (11) That the said J. M. Kuh, on behalf of the plaintiff, threatened the said defendants with proceedings in court to set aside said contract of January 25, 1908, upon the grounds that defendants had overreached plaintiff, and to compel defendants to pay back to the plaintiff all sums retained by them, except a reasonable fee for their services, and to repay plaintiff the seven thousand dollars ($7,000.00) paid for the stock in the Northwestern Mortgage & Trust Company.
“(12) The defendants entered into negotiations with plaintiff, and as a result of those negotiations defendants accepted the sum of eleven hundred and fifty dollars ($1,-150.00) in full payment for their services, and agreed to repay him the seven thousand dollars ($7,000.00) received by them for the stock in the Northwestern Mortgage & Trust Company and the balance of the cash that they had retained over and above the sum of eleven hundred and fifty dollars ($1,150.00), and in consideration thereof plaintiff forebore instituting legal proceedings.
“(13) Thereupon and from time to time between the 18th day of July, 1908, and the 24th of July, 1909, the defendants, in part performance of the aforesaid agreement, paid to J. M. Kuh, attorney for plaintiff, sixty-eight hundred dollars ($6,800.00).
“ (14) That on the 24th day of July, 1909, the defendants dissolved partnership by a written agreement, wherein it was agreed, among other things, that there was an indebtedness owing by the firm of Bolen & Stewart to Adolph Nelson in the sum of about seven thousand dollars ($7,000.00); and that as part of the partnership agreement between said John L. Bolen and Eugene Stewart the said John L. Bolen was to pay said indebtedness.
“ (15) That from the said 24th day of July, 1909, until the 21st day of February, 1911, the said John L. Bolen, on behalf of the firm of Bolen & Stewart, in continuance of the performance of said agreement, paid to O. Gh Kneeht, attorney for plaintiff, eleven hundred dollars ($1,100.00) and turned over to plaintiff an equity in a piece of real estate at an agreed value of seventeen hundred and two dollars ($1,702.00).
“ (16) That the title to the real estate conveyed to Nelson at the valuation of seventeen hundred and two dollars ($1,702.00) was held for the defendants by W. J. Young, and the deed was made at the request of Bolen, who asked Stewart to get a conveyance of the same made to him, and the defendant Stewart secured the conveyance and gave the deed to Bolen.
“ (17) That plaintiff tendered defendants, in open court, the certificates of stock in the Northwestern Mortgage & Trust Company for the face value of seven thousand dollars (7,000.00), duly 'assigned in blank, and said tender was thereupon accepted by John L. Bolen.
“ (18) That there is now due the said plaintiff from the defendants forty hundred ninety-three and dollars ($4,093.16); and that the interest thereon at five per cent. (5%) to date amounts to the sum of fourteen hundred twenty-four and x% dollars ($1,424.68).
“ (19) That the plaintiff is a young man of little experience and less than the average ability and that the defendants are astute lawyers, and plaintiff was not fairly dealt with by them in their first agreement.
“ (20) That this suit was commenced by attaching the interest of the defendants in certain real estate in the county of Muskegon; the said defendants being nonresidents of the State of Michigan for more than three months prior to the commencement of said suit. Defendants after-wards appeared in person in said court.”

Upon these facts the court reached the following conclusions of law:

“(a) That the sale of the stock in the Northwestern Mortgage & Trust Company by defendants to the plaintiff for seven thousand dollars ($7,000.00) was a legal fraud upon the plaintiff.
“(6) That in making the contract of January 25, 1908, defendants took advantage of the youth, inexperience, and simple-mindedness of plaintiff and overreached and defrauded him; and that said contract was unconscionable, null and void.
“ (c) That the contract made by plaintiff with defendants to pay them eleven hundred and fifty dollars ($1,-150.00) in full settlement for their claim of services, and the defendants to repay plaintiff the balance of cash retained by them and the seven thousand dollars ($7,000.00) received by them for the stock in the Northwestern Mortgage & Trust Company, was a valid and subsisting contract and based upon an adequate consideration.
“(d) That the plaintiff should recover a judgment against the defendants in the sum of five thousand five hundred seventeen and dollars ($5,517.84), together with costs to be taxed.”

Counsel for appellant request a reversal of this case upon 56 assignments of error, many of which arise from rulings of the court on the admission of testimony. We have examined them all, and shall discuss such as we consider of sufficient importance to merit it.

Complaint is made of the action of the trial judge in refusing to listen to argument of counsel at the close of the hearing, and it is insisted that no opportunity was afforded him to present to the court his views with reference to the legal questions involved in the case. Circuit Court Rule 26a provides:

“ When cases are tried by the court without a jury, either party may, if he sees fit, at any time before judgment, present such points of law as may be deemed material, in the same manner in which such points are presented upon requests to charge in jury trials, and the court in its findings shall pass specially on all such points, as in charging a jury, as near as may be. Whenever such points are presented, and also whenever the court is requested in writing before judgment, the facts as well as the law, shall be embodied in the finding.”

This gave appellant an opportunity to raise any questions of law he might consider involved in the trial, and the court was obliged to pass upon them. This rule amply safeguarded the rights of the defendant, and he cannot now complain if he failed to resort to the means provided.

When it became apparent to the defendants that they were going to have trouble with the plaintiff, and after having been harassed by an attorney representing him, it appears that on or about July 8, 1908, they agreed to accept $1,150 in full payment of their services rendered in the matter, and to return to plaintiff all other moneys and properties received by them, and did from that time begin to make payments in accordance with said agreement. It is now urged by defendant Stewart that the evidence with reference to this agreement is inadmissible under the pleadings; that it was without consideration; and that it was made by Bolen alone, against his protest, of which fact plaintiff had knowledge. When the evidence bearing upon this transaction was offered, no objection was made that it was not proper under the pleadings. If such objection had been made, an amendment might have been allowed. Having failed to state this ground of the objection to the trial court, it cannot be urged here.

Although Stewart testified that Bolen, in making the agreement, acted without any authority from him, and insisted that he was entitled to what the original contract with Nelson provided they should have, Bolen testified as follows:

“A. Well, it was agreed that we should have $1,150 credit for fees, and that the balance should be paid in cash by Bolen & Stewart to Mr. Nelson. Now, these negotiations lasted for some time. I imagine it was probably somewhere the 10th or 15th of May when Mr. Kuh first came into the matter, and the first payment that was made was July 18th, I think, 1908. I had lots of conversations with Mr. Eugene Stewart relative to the settlement of the matter. I told Mr. Stewart the same day that I first saw Kuh that his disposition was that he would not permit us more than $1,000 on that case. That was as high as he would go. Then I had, perhaps, one or two other talks with Kuh, and I was not able to do any better with him. And then Mr. Stewart had a talk with Kuh, and I think — in fact, I know — that Mr. Wilson went to see Mr. Kuh in our behalf; and it was after Mr. Wilson had seen Kuh that he agreed to increase the allowance to $1,150. After that I saw Kuh myself, and Kuh told me that they would allow us $1,150 for fees in the matter, and this I reported to Mr. Stewart, and after a good deal of negotiations he told me to go ahead and close it up on that basis. The last conversation occurred just a day or two prior to the time the first payment was made. I made payments on that; the firm of Bolen & Stewart made payments. My recollection is the first payment was July 18,1909. It was $2,000. It was paid by cashier’s check on the American Trust & Savings Bank. I haven’t the check. A receipt was given for it. The receipt was given to Bolen & Stewart, as all the receipts were. This is the receipt.”

While there is conflict in the testimony, we think that the trial judge was fully justified in accepting the testimony of Bolen as against that of Stewart. Moreover, findings of fact of the judge should not be overturned if there is evidence to support them. Cragin v. Gardner, 64 Mich. 399 (31 N. W. 206); Lamoreaux v. Creveling, 103 Mich. 501 (61 N. W. 783); Hindman v. Friedrich, 163 Mich. 655 (128 N. W. 1086); Holcomb v. Sayers, 173 Mich. 238 (138 N. W. 1043); Darling Milling Co. v. Chapman, 131 Mich. 684 (92 N. W. 352).

There is no merit in the contention that the agreement was without sufficient consideration. The consideration was the services rendered by Bolen & Stewart. It was agreed that the original contract should be set aside and be of no effect, and in lieu of the provision contained therein for services they were to accept the sum of $1,150.

Considerable discussion is had concerning the findings of the court with reference to the contract of January 25, 1908, and with the action of the court in holding it void.

It is urged that the plaintiff should have proceeded in a court of equity to have the rights of the parties determined. It appears from the testimony, and the court so found, that the parties made the new agreement already referred to and agreed to waive their rights under this contract, so that, so far as their rights thereunder were concerned, it was of no force and effect.

In determining the amount due the plaintiff, a computation of interest made by the witness Knecht was received in evidence. From this computation it appears that the court allowed interest on $13,820.16 at 5 per cent, from February 20, 1908, to July 18, 1908, when the first payment of $2,000 was made by the defendants to Mr. Kuh, the attorney for plaintiff, which interest amounted to $284.09, and interest was also computed on this amount. We think the defendants should not be compelled to pay interest on any sums in their possession previous to the agreement made on or about the time this payment of $2,-000 was made; and that it was improper for the judge to include it in the amount he found to be due.

The judgment will be reversed and a new trial ordered, unless the plaintiff, within '20 days, remits this amount and the interest thereon included in the judgment, in which event it will be affirmed at the reduced amount.

Steers, O. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, Jj., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    MAHAR v. GRAND RAPIDS TERMINAL RAILWAY CO.
    1. Easements — Railroads—Conditions.
    Under a written instrument granting to a railroad corporation a strip of land 50 feet in width for a right of way for a railroad, as expressed in the granting clause, conditioned upon the construction and completion of the railroad within three years from the execution thereof, the land to revert to the grantors, their heirs, successors, or assigns, at their option, if the condition was violated, defendant did not obtain the fee of the land subject to a condition subsequent, but an easement; so that the grantors conveying the premises from which the easement was reserved, by a deed that excepted the previously granted right of way, transferred to the purchaser of their interest the right to enforce the condition upon failure of the grantee to complete the road within the period named.

      2. Estoppel — Easements—Failure to Object.
    Complainant, who testified that he protested against the work of constructing defendant’s railroad right of way when defendant commenced, after breach of the condition in the grant of easement, was not estopped from enforcing his right of entry, where negotiations at once were commenced for settlement, and the parties later stipulated to submit the controversy to the court in chancery for determination.
    Appeal from Kent; Brown, J.
    Submitted November 15, 1912.
    (Docket No. 41.)
    Decided March 20, 1913.
    Bill by William Mahar against the Grand Rapids Terminal Railway Company for the removal of a cloud on complainant’s title to land and for other relief. From a decree for complainant, defendant appeals.
    Affirmed.

      Frank W. Hine, for complainant.

      Clapperton, Owen & Hatten, for defendant.
   Kuhn, J.

Clara O. Russell and Etta C. Boltwood were the owners in fee simple of certain real estate in the city of Grand Rapids, which is involved in this controversy, which property is located just west of Canal street, south of Mason street, and extending west to the center of Grand river.

On December 11, 1901, the said Clara C. Russell and Etta C. Boltwood conveyed, by an instrument in writing, to Marshall F. Buttars, trustee, of Ludington, Mich., a right of way 50 feet in width across the said real estate. This instrument provided:

_ “ That the said parties of the first part, for and in consideration of the future construction, continued maintenance and operation of a first-class, standard-gauge steam railroad (over which shall be transported passengers and freight) within the time, limits and conditions hereinafter to be defined, and for the expected benefits to be derived therefrom by the parties of the first part, their heirs, successors or assigns, and for other good, and sufficient consideration that may come to the parties of the first part, their heirs, successors or assigns by reason of the construction, maintenance and operation of said railroad by the party of the second part, his successors, or assigns, which benefits and considerations are hereby fully acknowledged as being ample and sufficient, have granted, bargained, sold and conveyed and by these presents do grant, bargain, sell, convey and quitclaim unto the party of the second part, his successors or assigns, for a right of way for a railroad forever, upon the following conditions: That the construction of said railroad shall be on, along and within the limits of this grant as hereinafter defined; that it shall be constructed across and over the pieces or descriptions of property as hereinafter described, and no deviation therefrom shall be made by the party of the second part, his successors or assigns, without first obtaining the consent and approval in writing of the parties of the first part, their heirs, successors or assigns; (that the construction of said railroad shall be fully completed and be in operation for the transportation of passengers and freight on or before three years from the date of this instrument), and when so completed, shall have full and direct connection with one or more of the steam railroads now in operation in, to and from the city of Grand Rapids, located south of what is known as the Sixth street bridge in said city, in default thereof this grant shall be void, and the said right of way herein conveyed shall revert to, and the title thereto revest in, the parties of the first part, their heirs, successors or assigns ; that this grant or conveyance of a right of way for a railroad shall at the option of the parties of the first part, their heirs, successors or assigns, be null and void and the title thereto revest to the parties of the first part, their heirs, successors or assigns, if the party of the second part shall fail in process of construction, within the limits of the city of Grand Rapids, of the roadbed for the railroad herein contemplated before the expiration of two years from the date of this instrument. The parties of the first part reserve to themselves, their heirs, successors and assigns, within the limits of this grant, the right of sewage and drainage under the tracks of the party of the second part, or those holding from and under him, his successors or assigns; said right of sewage and drainage, if made use of, to be at the cost of the parties of the first part, their heirs, successors or assigns, without damage or loss to the rights of business of the party of the second part, his successors or assigns. It is further provided and conditioned that if, after the construction of said railroad, the party of the second part, or his successors or assigns, shall at any time in the future cease to maintain and operate said railroad for the transportation of passengers and freight, for a continuous period of one year, then, in such case, this grant and conveyance shall be void and the premises herein described shall revert to and revest in the parties of the first part, their successors or assigns, the same as if this conveyance had not been made. The hereinafter-described premises, embracing both land and water, are granted and conveyed to be used solely for a right of way for a railroad and its usual requirements.”

On November 1, 1902, said Clara C. Russell and Etta C. Boltwood sold the land described in the bill of complaint to the complainant on contract, and later, on May 6, 1904, gave him a warranty deed of said property. Both the contract and the deed, in the description of the land, excepted therefrom the right of way, as follows:

“Excepting the conditional right of way heretofore granted to the Ludington Railroad Company.”

After the execution of the contract, and in the summer of 1903, the complainant filled in his lot and removed a large building 50x100 feet in size, thereon, which he thereafter occupied as a factory. In the latter part of 1903, or early in 1904, the defendant, having become the assignee of the rights of Mr. Buttars, caused a preliminary survey to be made of the proposed railroad, and later, in the fall of 1904, completed a flood wall along the river. Nothing further was done by the defendant towards building said railroad until May 5,1905, when the grading for the same was commenced, and grading was commenced on the property of the complainant in August, 1905. It is undisputed that the road was not completed nor freight or passenger trains run in 1905. It is the claim of the complainant that when the defendant company started to grade for the railroad he protested against it and thereafter consulted his attorney; that negotiations were entered upon with representatives of the railroad company looking to the possible settlement of the controversy, but no settlement was arrived at, and a stipulation was entered into by the parties to submit the whole matter to the Kent circuit court, in chancery.

The complainant occupied the building on the premises for a rug and carpet manufactory, and the right of way occupied by the defendant runs within seven feet of the rear of complainant’s building. It is the claim of the complainant that the right of way prevents him from having access to his building in the rear with teams and rigs, and cuts off his access to the river and the use of the river bank. The dirt, soot, and sparks emitted from the locomotives of the defendant are also claimed to have done damage to his business of cleaning and manufacturing carpets and rugs. It is also claimed by complainant that he intended to build a barn and storage warehouse on the land in the rear of the building now occupied by the railroad, but that he has been deprived of this right by the defendant; and that he has been obliged to go to the expense of renting barn room elsewhere, and has lost the advantages and profits he could have had from a storage warehouse in connection with his business.

The first question, and, as it seems to us, the all-important one in this litigation, is to determine the legal effect of the instrument of December 11,1901. It is claimed by the defendant that it was a conveyance in fee with a condition subsequent. Complainant insists that it simply created an easement, and that the fee remained in the grantors, subject to the easement granted therein. A careful study of the instrument itself satisfies us that it was the intention of the grantors simply to grant a right of way across the premises in question, and not to convey the fee to the land. This intention, we think, can be gathered from the express language of the instrument itself; in the granting clause this language being used, “ for a right of way for a railroad.” Again:

5‘This grant shall be void and the said right of way herein conveyed shall revert to and the title thereto revest in the parties of the first part.”

Again:

“ This grant or conveyance of a right of way for a railroad shall at the option of the parties of the first part, their heirs, successors, or assigns, be null and void and the title thereto revest to the parties of the first part, their heirs, successors or assigns.”

The instrument further provides that no deviation shall be made by the party of the second part without first obtaining the consent and approval, in writing, of the parties of the first part, and also reserves to the parties of the first part the right of sewage and drainage across the premises. The language in the instrument brings it within the rule laid down in the case of Pinkum v. City of Eau Claire, 81 Wis. 307 (51 N. W. 552), in which the court said:

“The deed set forth in the complaint undoubtedly granted to the city an easement over the lands described in the deed for the purposes set forth therein. It was an easement in gross, because it does not appear to be appurtenant to any estate in the land, and it was upon condition. Whether the condition was precedent or subsequent is not necessary to be decided upon this appeal, and is not decided. The easement was also in perpetuity.
“ That an easement may be created in fee is well settled. The fee of land may be in one person, and the fee of an easement upon such land in another. 2 Bl. Com. chap. 7, pp. 106, 107; Story v. Railroad Co., 90 N. Y. 122, 158 [43 Am. Rep. 146]; Child v. Chappel, 9 N. Y. 255; Nellis v. Munson, 108 N. Y. 453 (15 N. E. 739). Technically, an easement in fee must be appurtenant to land; and consequently, the easement here created, being in gross, is not strictly an easement in fee, but, being granted to the city, ‘ its successors and assigns,’ it is capable of assignment, and is therefore undoubtedly in perpetuity, through not technically in fee. Poull v. Mockley, 33 Wis. 482. The difference is purely technical, and does not affect any substantial right in this case. Therefore, when this deed was executed and delivered, the fee of the land remained in the grantors, Mead and Bolles, subject to the conditional easement in perpetuity created by the deed. Being the owners in fee of the land, they could, of course, convey it to another; and their grantee would stand in their shoes. Why, then, cannot such grantee bring an action against one claiming an easement on condition to take advantage of condition broken or enforce its performance ? It is said that he cannot because of the long-settlecj) common-law principle that a condition in a deed can only be reserved to the grantor or his heirs, and not to a stranger. This rule applies to land conveyed upon condition subsequent, and the reason of the rule is that the estate is not defeated, though the condition be broken, until entry by the grantor or his heirs, and there is nothing to assign, save a mere right of entry, which at common law is not assignable. Nicoll v. Railroad Co., 12 Barb. [N. Y.] 460; Id., 12 N. Y. 121; 1 Greenl. Cruise, tit. 13, chap. 1, § 15.
“No such rule can apply here, because the reason does not exist. In this case the plaintiff does not claim as the assignee of a mere right of action or right of entry on land, but he claims as owner in fee of land burdened with an easement granted upon condition, which condition is alleged to have been broken. It would be a singular rule of law which would forever prevent the owner in fee of lands from questioning the right of another to maintain an easement upon his land, when there existed a violation of the express condition upon which the easement was granted. No such rule exists.”

See, also, Reichenbach v. Railway Co., 10 Wash. 357 (38 Pac. 1126).

Numerous authorities are cited in support of the proposition that the right to take advantage of the breach is neither assignable nor severable, and the leading case of Nicoll v. Railroad Co., 12 N. Y. 121, is relied upon. In this line of cases, however, the court in each instance held the conveyance to be a granting of the fee in the land, with a condition subsequent; but, as outlined in the decision quoted, supra, the rule in case of an easement is different, as the title to the land has never been divested, and the owner of the land, whoever he may be, can take advantage of the breach. It is further contended by the defendant that the language used in the conveyance to complainant, “ excepting the conditional right of way heretofore granted to the Ludington Railroad Company,” created an exception of the land described in the conveyance of the right of way, and that the complainant never purchased the land upon which the right of way is situated. If such had been the intention of the parties, it would have been easy to so have expressed themselves in the deed. As this court said in the case of Bolio v. Marvin, 130 Mich. 82 (89 N. W. 563):

“ There was not the sligntest occasion to include this land in the deed, unless some interest was intended to be vested in the grantee.”

The case of Reynolds v. Gaertner, 117 Mich. 532 (76 N. W. 3), is called to our attention, but in that case the exception expressly provided for the exemption of a certain specified amount of land; the following language being used, “except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad.”

In the instant case the language used in this conveyance, it seems to us, is very significant, and clearly indicates that the grantors did not claim to except or reserve a fee in the land. We think the rule is well established in Michigan that the assignee or grantee has been held to be the proper person to enforce the forfeiture of an easement, and is entitled to all the rights his or her grantor might be, or have been, entitled to. In this connection the language in the instrument of December 11, 1901, is significant:

“The grant shall be void and said right of way shall revert to, and the title thereto revest in, the parties of the first part, their heirs, successors or assigns.”

French v. Lumber Co., 135 Mich. 424 (97 N. W. 961); Williams v. Flood, 63 Mich. 487 (30 N. W. 93); Gamble v. Gates, 92 Mich. 510, 514 (52 N. W. 941); Monroe v. Bowen, 26 Mich. 523; Johnson v. Moore, 28 Mich. 3; Haskell v. Ayres, 32 Mich. 93; Macomber v. Railroad Co., 108 Mich. 491 (66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713); City of Detroit v. Railroad Co., 33 Mich. 173, 314, 315.

It is urged that the principle of equitable estoppel should be applied, because complainant waited until expensive improvements, which were a great benefit to his property, were made; and that he stood by without objection and allowed defendant to expend large sums on the right of way.

Complainant testified that some time in 1905, when the construction was begun, he protested to the men in charge of the work, and that he ordered them off his property, and that when’they failed to do so he placed the matter in the hands of his attorney, and that no further steps were taken, because immediately negotiations were entered upon with a view of leading to a settlement. Thése negotiations could amount, at the most, only to a parol license to the defendant to build its road. We do not think that it can be said, under these circumstances, that complainant has estopped himself from asserting his rights. Wood v. Railroad Co., 90 Mich. 334 (51 N. W. 363).

To hold that the complainant, in this case, is estopped from asserting his alleged rights would, in view of the fact that the instrument of date December 11, 1901, simply granted an easement, operate as a transfer of the title to real estate; and title cannot be obtained in that way. Nowlin Lumber Co. v. Wilson, 119 Mich. 406 (78 N. W. 338); Minneapolis, etc., R. Co. v. Marble, 113 Mich. 4, 10 (70 N. W. 319); Harlow v. Railroad Co., 41 Mich. 336 (3 N. W. 48); Nims v. Sherman, 43 Mich. 45, 53 (4 N. W. 434); Stevens v. City of Muskegon, 111 Mich. 73, 83 (69 N. W. 337); Petit v. Railroad Co., 119 Mich. 493, 493 (78 N. W. 554, 75 Am. St. Rep. 417); Stewart v. McLaughlin's Estate, 136 Mich. 1, 5 (85 N. W. 366, 87 N. W. 218); Moore v. Pear, 129 Mich. 513, 515 (89 N. W. 347).

The judge, in his decree, provided—

“ That said defendant, within 30 days of the date of this decree, may commence proceedings under the statute to condemn said property now occupied by it and described in the fifth paragraph of this decree, and in default thereof that complainant, within 10 days of the expiration of said 30-day period, shall execute, acknowledge, and deliver to said defendant a deed of said premises described in the fifth paragraph of this decree, upon the payment to complainant by defendant the sum of eight hundred and fifty dollars ($850), which sum is hereby adjudged and decreed tb be the value of said property, together with such other damages as complainant has sustained by reason of the acts and possession of defendant, as aforesaid, and also pay the costs of this suit to be taxed.”

The stipulation by which this cause was brought into court provided that the court should determine the value of the premises and damages, past, present, or prospective, suffered by the complainant. An examination of the record satisfies us that the court was justified in fixing the amount of damages that he did, and his determination with reference thereto will not be disturbed.

The decree is affirmed, with costs.

Steers, C. J., and Moore,' McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


text:
    ARNOLD v. BRECHTEL.
    1. Amendment — Appeal and Error — Pleading.
    The allowance, at the trial, of an amendment to plaintiff’s declaration in ejectment, so as to relinquish claim to part of the land described in the pleading, was discretionary with the trial court and not reviewable.

      2. Parties — Husband and Wife — Ejectment.
    Where plaintiff’s declaration in ejectment originally covered lands owned by the entirety by defendant and his wife, and plaintiff by amending it, included only land claimed by him that defendant had invaded or trespassed upon, defendant’s wife, who had not so far as shown claimed title to the land, was not a necessary party to the action. 3 Comp. Laws, § Í0950 (5 How. Stat. [2d Ed.] § 13150).
    3. Deeds — Judicial Sale — Estates of Incompetents — Guardian and Ward.
    Since the sale of land of an incompetent under guardianship is not open to collateral attack for irregularities in the proceedings, if the license to sell was granted and the guardian executed and acknowledged a deed in legal form conveying the premises (3 Comp. Laws, § 9165,4How. Stat. [2dEd.] § 11315), a sale of premises, incorrectly described in petition, notice and license to sell as being in the adjacent town and range was not void where the guardian’s deed contained a correct description of the land to be conveyed.
    4. Alteration of Instruments — Deeds—Evidence.
    Interlineations made in a guardian’s deed of property sold under an order of the court, unexplained, are presumed to have been inserted befere execution: it is for the party attacking the instrument to show its invalidity.
    5. Boundaries — Meander Line — Desoription.
    In a fractional section divided into lots, premises bounded on one side by a creek or stream are not affected by the fact, as shown by the original government survey, that the meander lines of the creek run over the land at one side of the true bed of the stream: they are not intended as boundaries but rather to determine the quantity of land in the parcel.
    6. Evidence — Ejectment.
    Evidence of an original patent from the government may be dispensed with if plaintiff in ejectment shows a conveyance from parties who have been in possession for 20 years and upwards, using the ground for pasture, cutting the timber and building cabins thereon.
    Error to Bay; Collins, J.
    Submitted November 11, 1912.
    (Docket No. 39.)
    Decided March 20, 1913.
    Ejectment by John C. Arnold against John J. Brechtel. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Hall, De Foe & Henry (Gilbert W. Hand, of counsel), for appellant.

      Gooley & Hewitt, for appellee.
   Kuhn, J.

This is an action in ejectment which was tried before the court, without a jury, who made written findings of fact and of law as follows:

“Findings of Fact.
“(1) The government survey, as entered in the plat book, shows that section 8, town 13 north, range 5 east, is a fractional section due to the convergence of the Souwesconning creek, and the Saginaw river. The lots in said section, upon the westerly side of the said Souwesconning creek, are numbered 1, 2, 3, 4, and those of the easterly side, lying between the said creek and Saginaw river, are numbered 5, 6, 7, and 8.
“Plaintiff, John C. Arnold, claims title to a portion of lot 1. Plaintiff’s chain of title begins with the original location of said land, the government plat book, for which location no patent was ever issued.
“Plaintiff’s immediate title was derived from a purchase of, and the payment for, the land described in last paragraph of ‘Conclusions of Law,’ and from a deed duly executed by Eliza M. Hawgood, guardian of John Bourn, an imbecile, and is as follows:
“ ‘Know all men by these presents, that I, Eliza M. Hawgood, guardian of the estate of John Bourn, an imbecile, pursuant to an order of the judge of probate for the county of Bay, and State of Michigan, made at a session of said probate court, held at the probate office in the city of Bay City, in said county and State, on the fifteenth day of February, A. D. 1907, authorizing, empowering, and licensing me, the said guardian, to sell and dispose of, in conformity to the statute in such case made and provided, so muoh of the real estate, whereof the said John Bourn is seised for the purpose, as in said order mentioned, did sell and dispose of, at private sale, all of the estates, right, title and interest of said John Bourn in and to certain real estate and premises, in said order set forth and hereafter described, to John C. Arnold, of Frankenlust township, Bay county, Michigan, which said sale was, by an order made by the said judge of probate, on the first day of March, A. D. 1907, duly approved and confirmed, and I, the said guardian, was directed and empowered to execute and deliver a proper conveyance of said real estate, so sold and disposed of at private sale, to John C. Arnold, the purchaser thereof, agreeable to the statute in such case made and provided. Now, therefore, know ye, that I, Eliza M. Hawgood, guardian of said estate, by virtue and in pursuance of the said several orders and decrees above referred to, and in consideration of the sum of seven hundred and fifty (§750.00) dollars, paid to me, the said guardian, by the said John C. Arnold, the receipt whereof is hereby acknowledged, I have sold and disposed of, and do hereby grant, sell and convey unto the said John C. Arnold, his heirs and assigns, forever, all the estate, right, title, and interest of the said John Bourn, in and to the following described lands, situated in the township of Frankenlust, county of Bay, and State of Michigan, to wit: A piece of land in lot one (1) fractional section eight (8), town thirteen north, of range 5 east, commencing at a point on the north line of said lot one (1), fifty-three and one-third (53J-) rods west from the meander or government stake at the northeast corner of said lot, running thence due south sixty rods (60), thence east to the channel of Saginaw river; thence south along the channel of said river eighteen and 28-100 (18 28-100) rods, thence due west on the south line of said lot to a point fifty-seven and 58-100 (57.58) rods east of the southwest corner of said lot; thence due north seventy-eight and 28-100 (78.28) rods to the north line of said lot, thence east to the point or place of beginning, excepting the right of way of the Grand Trunk Railroad Company, containing sixteen (16) acres, more or less. Together with all and singular and tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining.
“ ‘ In witness whereof, I have hereunto set my hand and seal the 1st day of March, A. D. 1907. Eliza M. Hawgood, [L. S.]
“ ‘ Guardian of the Estate of John Bourn, an Imbecile.
“ ‘ In presence of
“ ‘ Sheldon Park,
“ ‘Emma Johnson.
“ ‘ State of Ohio, ) .
. “ ‘ County of Cuyahoga, yss- *
“ ‘ On the first day of March, A. D. one thousand nine hundred and seven, before me, a notary public in and for said county, personally came the above named Eliza M. Hawgood, guardian, known to me to be the person who executed the foregoing instrument, and acknowledged the same to be her free act and deed, as guardian, as in said instrument described. Sheldon Park,
“ ‘ Notary Public, Cuyahoga Co.,
“ ‘ State of Ohio.
“ ‘ [Notarial Seal, Cuyahoga County, Ohio.]
“ ‘ Commission expires-.’
“ The description of the premises in the deed has been partly erased and interlined; but there was no evidence introduced in the case to show by whom or when the alteration and interlineation was made.
“ Immediately following the words ‘thence east5 in the description, the alteration was made to read ‘ to the channel of the Saginaw river,5 instead of the words originally ‘ to a point due south of the northeast corner of said lot;5 and, after the words ‘due south,5 the words ‘along the channel of said river5 were inserted. This alteration and interlineation was made before the delivery of the deed to plaintiff.
“(2) Said deed from Eliza M. Hawgood, guardian of John Bourn, to plaintiff described and located land therein mentioned in range 5 east, while the petition and orders of hearing in the probate court, and the proceedings following them, describe the land as being in range 4 east. I find, however, that the defendant bought and paid for the land hereinafter described in range 5 east. The writing of the range ‘ 45 instead of ‘ 55 was a clerical error, and the land actually described in the deed was intended to be conveyed, and that the plaintiff, from the time of the delivery of said deed to him, was the equitable and legal owner of the land in said deed, intended to be conveyed, being the land hereinafter described.
“(3) The description in the aforesaid deed bounding the property by the Saginaw river is erroneous, as that would include portions of land lying in lots 6 and 7, to which grantor had no title. The Souwesconning creek is often erroneously called the Saginaw river. An order of the court was made during the progress of the trial that no land east of the Souwesconning creek was involved in the controversy.
“(4) Plaintiff entered into possession of all the lands mentioned in said instrument of transfer lying west of the center line of the channel of said Souwesconning creek immediately after receiving his deed from Eliza M. Haw-good, guardian. Some time in November, 1907, while plaintiff was enjoying peaceable possession of the land described in his aforesaid deed, and claiming title thereto up to the center line of the channel of Souwesconning creek, defendant, John J. Brechtel, crossed to the west side of the creek and set a line of posts along what he (Brechtel) conceived to be the east meandered line of said creek, as established by the government survey and plat book, and took possession of a strip of land between the said fence posts and creek, and has occupied the same, claming it as a part of the aforesaid lots 6 and 7. That this action of said defendant was based upon the right given him by a deed hereinafter referred to from the Sage Land & Improvement Company; and, at the time he did the acts in this paragraph mentioned, he had no legal or equitable right in and to the land upon which he placed said line of fence posts, and such action was wholly without right and authority.
(5) Lots 5 and 6 lie on the easterly side of the center line of the channel of the Souwesconning creek, and between it and the Saginaw river, and, at the time of the commencement of this suit, were owned jointly by the defendant, John J. Brechtel, and his wife, who is not a party to this suit. Their ownership is derived from a deed given by the Sage Land & Improvement Company, describing the land conveyed by lot numbers and not by metes and bounds. No part of said lots 5 and 6 projects or lies west of the center of the channel of said Souwesconning creek, and said deed did not give defendant, John J. Brechtel, any right to go upon any part of the land west of the center of said channel.
“ (6) Calvin G. Thornwaite, a civil engineer and surveyor, made a survey of certain portions of section 8, town 13 north, range 5 east, in the fall of 1907, for the purpose of locating the government meandered lines of Souwesconning creek. He found the government stake at the northeast comer of the section to be seven rods from the west bank of the creek; and, taking the distances every 40 rods, he located the west meander line as being west of the creek at a varying distance of 7 to 36 rods; and at the south line of the section the meander line intersects the bank of the creek. The east meander line lies its entire length in the creek. I find that the meandered lines, as established by the government plats and field notes, do not coincide with the banks of Souwesconning creek; that the west meander line of the stream is run along the west side of the stream on dry land at distances 7 to 36 rods from the west bank of the stream at low water mark.
“(7) The owners of lots 1, 2, 3, and 4 in said section have for more than 20 years claimed title up to the center line of the channel of said Souwesconning creek; and plaintiff’s predecessors and grantors in title occupied the strip of land in dispute for more than 15 years prior to the commencement of this suit, and have occupied that portion of said lot 1 bordering on said Souwesconning creek and up to the center of the channel thereof openly and notoriously, and adversely to any other claimants, for more than 15 years prior to the commencement of this suit, and for the same period of time the east and west fences on the north boundary of the land described in the Eliza M. Hawgood deed have extended to the water’s edge. Plaintiff’s predecessors and grantors in said title have claimed and exercised the fishing rights on their side of the creek for more than 15 years prior to the commencement of this suit. One Baumhauer and one David Shawl have, at various times, leased fishing rights from a former owner, John Brigham. A row of spiles was formerly driven on the east side of said channel, which row of spiles were used by the Sage Land & Improvement Company which then owned lot 6 of said section 8. A row of spiles was also formerly driven on the west side of said Souwesconning creek, which were used by other parties.
“ (8) Souwesconning creek has no current, and really is only an arm of the Saginaw river, but is navigable; the water being over six feet deep.
“Conclusions of Law.
“ (1) The deed from Eliza M. Hawgood, guardian of John Bourn, an imbecile, to John C. Arnold, actually conveys the land intended to have been conveyed. The description of the land in the probate court proceedings to obtain a license to sell as being in range á east, instead of range 5 east, is a clerical error, as the land intended to be sold was that actually described in the guardian’s deed. As there was a license to sell the land and a deed duly executed, the defendant cannot have such acts declared void (3 Comp. Laws, § 9165) by bringing it into question collaterally in this proceeding.
“(2) I find that defendant, John J. Brechtel, has done such acts in respect to the strip of land in dispute as to make him a necessary party defendant. The defendant’s wife is a proper, but not a necessary, party.
“(3) While the meandered lines of Souwesconning creek, as shown by the government survey, do not actually coincide with the banks of the creek, yet some parts of the stream do lie within the meandered lines, and in other portions the east meandered line lies in the stream itself. I do not find such gross error in the government survey as to take the case out of the general rule of law that the center of the channel of the stream, and not the meandered line, is the boundary.
“ (4) Furthermore, plaintiff and his predecessors in title having occupied the strip of land in dispute up to the water’s edge of Souwesconning creek for 15 years and upwards, openly, notoriously, and adversely to any other claimants. For this reason, also, I hold that plaintiff is entitled to the land up to the center of the channel of Souwesconning creek.
“ (5) Defendant, Brechtel, not having any title to the land on the west side of Souwesconning creek, is a trespasser; and, plaintiff having been originally in possession of the land in dispute, the plaintiff has the better right to the land, and is entitled to judgment in the usual form in ejectment, awarding him the land described in the next paragraph.
“(6) I find that the plaintiff is entitled to a judgment against the defendant for, and is the equitable and legal owner and entitled to, the possession of the following described lands: A piece of land in fractional section 8,. town 13 north, range 5 east, bounded by a line commencing at a point on the north line of lot 1, 53J rods west from the meander or government stake at the northeast corner of said lot; running thence due south 60 rods; thence east to the center or thread of Souwesconning creek; thence southerly along the center or thread of said creek; 18.28 rods, more or less, to the south line of said lot 1; thence due west on the south line of said lot to a point 57.58 rods east of the southwest corner of said lot; thence due north 78.28 rods to the north line of said lot; thence east to the point or place of beginning, excepting the right of way of the Cincinnati, Saginaw & Mackinaw Railroad Company, now known as the Grand Trunk Railway Company, containing 16 acres, more or less.”

On the trial, a drawing marked Exhibit A was offered in evidence. It is not claimed to be an official drawing, but gives a general idea of the surroundings, and for that purpose is here inserted.

Plan of Section 8, Township 13 N., Range & E. Showing true location of Souwesconning Creek as Compared with Apparent Location of Meander Lines.

In the original declaration filed in said cause, the land described comprised in part a strip of land 18.28 rods in width, extending easterly from lot 1, across lots 6 and 73 belonging to the defendant and his wife, to the center of the Saginaw river. During the trial, counsel for plaintiff stated that no claim was being made to any property in lots 6 and 7 of section 8, and, in order that no question might arise with reference to it, that he be allowed to amend his declaration so that the easterly boundary of plaintiff’s claim be the center of the creek instead of the Saginaw river. This amendment was allowed by the court over the objection of defendant’s counsel. The formal amended declaration was not filed until after rendering judgment; but the court had the amendment in mind, because the judgment says:

“Said plaintiff ought to recover against said defendant the possession of the premises described in plaintiff’s declaration, as amended in this cause.”

The allowing of the amendment was discretionary in the court below, and we will not review it.

The title to lot 6 of section 8 is in John J. Brechtel and Amelia A. Brechtel, his wife, jointly, creating in them an estate by the entirety. It is claimed that Mrs. Brechtel is a necessary party defendant, and that the court had no jurisdiction in the case because of the absence of the wife as an indispensable party defendant. This is largely based upon the fact that the original declaration covered portions of lots 6 and 7; but, as has been stated, no claim was made to either lot 6 or 7 on the trial, and the declaration was amended to exclude them. The point at issue, and the only one controverted, was what right Brechtel as an individual, not claiming to act for any one except himself, had to trespass upon plaintiff’s possession of that portion of lot 1 west of the creek. It does not appear that Mrs. Brechtel ever set up any claim to the premises either personally or through her husband. In actions of ejectment the general rule is:

“ Where the premises are occupied the person in the actual occupation or possession of the premises is in all cases a necessary party, and he is the only necessary party in the absence of the statutes requiring others having an interest in the controversy to be joined, as a judgment against him binds all persons who are in privity with him. Furthermore, in the absence of statute providing otherwise, the actual occupant is the only party who may be sued in ejectment, and no other person is a proper party defendant.” 15 Cyc. p. 82.

Section 10950, 3 Comp. Laws (5 How. Stat. [2d Ed. ] § 13150), with reference to suits in ejectment, provides:

“ If the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named a defendant in the declaration; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein at the commencement of the suit; and alb persons claiming any title to the premises adverse to that claimed by the plaintiff, may in all cases be made defendants in such action.”

Under the facts in this case, the defendant, John J. Brechtel, was the only necessary party to be made defendant.

It is urged that the court erred in admitting in evidence, over several objections of defendant’s counsel, the deed from Eliza M. Hawgood, guardian of John Bourn, to plaintiff, dated March 1, 1907. It is contended that the land in question is in township 13 north, range 5 east, while the petition filed, the order of hearing made, publication of such order had, testimony of freeholders under oath taken, oath administered to guardian, sale, report of sale, and order confirming such sale, all recite that the lands are situated in township 13 north, of range 4 east. The trial court found that this was a clerical error, and that the Souwesconning creek is often called the Saginaw river, and for that reason the error in the deed arose as to the description of the stream.

Under our statute, being section 9165, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11315), such a deed cannot be attacked collaterally. The section provides:

“If the validity of any sale, made by a guardian under the provisions of this chapter, shall be drawn in question by any person claiming adversely to the title of the ward, or claiming under any title that is not derived from or through the ward, the sale shall not be held void on account of any irregularity in the proceedings: Provided, it shall appear that the guardian was licensed to make the sale by the proper probate court, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises.”

It is also urged that the deed is void because of interlineations and alterations. The deed is regular on its face; and, while it can be claimed that it conveys more than was actually intended to be conveyed, the description locates clearly the land claimed by plaintiff, and it would not result in a conveyance of the surplus. The rule is general that, when alterations are unexplained, it will be presumed that they were made before execution; and it is for the party attacking the instrument to show otherwise. In the case of Munroe v. Eastman, 31 Mich. 283, 285, Mr. Justice Cooley, speaking for the court, said:

“The writing of a word over an erasure may or may not be suspicious. The judge who had the deed before him seems to have thought in this case it was not, and we cannot say without inspection that he has erred. The presumption commonly is, where nothing suspicious appears on the face of the deed beyond the fact that an erasure is manifest, that the alteration was made before the deed was executed. 2 Cool. Bl. Com. 308, note, and cases cited.”

We have the original deed before us, and, after a careful inspection, cannot say that there is anything appearing on the face of the instrument that would give rise to the suspicion that the alterations were made subsequent to the execution of the instrument. Brand v. Johnrowe, 60 Mich. 210 (26 N. W. 883); Brown v. Kennedy, 132 Mich. 464 (93 N. W. 1073).

Error is alleged because of the alleged attempt made by plaintiff’s counsel to impeach the government survey. There does not seem to be any dispute in the evidence that the meander lines of Souwesconning creek do not coincide with the actual course of the stream. The defendant insists that the description of the land and the original government survey filed in the general land office, as made by the surveyor general from the field notes, are conclusive, and the section lines and corners, as laid down in the description and plat, are binding upon the general government and upon all parties concerned.

The plaintiff relies upon the well-settled rule announced in 5 Cyc. p. 899:

“ The general rme adopted by both State and Federal courts is that meander lines are not run as boundaries of the tract surveyed, but for the purpose of defining the sinuosities of the banks of the stream or other body of water, and as a means of ascertaining the quantity of land embraced in the survey. The stream, or other body of water, and not the meander line as actually run on the ground, is the boundary,” etc.

If defendant’s contention is sustained, he would have the right to go beyond the creek, which is the westerly boundary of his land, and over and upon the high land upon the westerly side of the creek. Brewster, in his work on Conveyancing, § 96, said:

“Where, as is often the case, the map does not correctly represent the actual portion of land as staked out or otherwise marked on the earth, and there is a conflict between the map and the monuments on the land, the monuments will control the description. These monuments on the land are facts. Plats and maps and notes regarding them are but descriptions which serve to assist in ascertaining the facts. Parol evidence will therefore be received to show that the map as drawn does not correspond with the survey as made and marked on the ground.”

In the case of Palmer v. Dodd, 64 Mich. 474, 475 (31 N. W. 209), this court said:

“ The meanders have no significance as boundaries, and are not intended as such. They are run simply to afford a means of computing the area contained in the fraction which the United States requires payment for on sale of the public domain.”

See, also, Butler v. Railroad Co., 85 Mich. 246 (48 N. W. 569, 24 Am. St. Rep. 84.); Grand Rapids Ice & Coal Co. v. Coal Co., 102 Mich. 227 (60 N. W. 681, 25 L. R. A. 815, 47 Am. St. Rep. 516).

In the case of Brown v. Parker, 127 Mich. 390, 392 (86 N. W. 989, 990), cited by defendant, this court said:

“The meander lines of rivers and inland lakes, where the title to the bed is in the riparian owner, are of comparatively little significance, and it has frequently been said that they were not run to bound the possessions of the riparian owner, whose title might extend beyond them.”

As we are of the opinion that plaintiff’s claim in lot 1 is not bounded by the meander line, but rather by the creek, it follows that he has riparian rights which extend to the middle of the stream. Lorman v. Benson, 8 Mich. 18 (77 Am. Dec. 435); Twogood v. Hoyt, 42 Mich. 609 (4 N. W. 445); Pere Marquette Boom Co. v. Adams, 44 Mich. 403 (6 N. W. 857).

There was no proof of a patent; but the rule is that it may be dispensed with where plaintiff shows conveyance through a long term of years from persons in actual, undisputed possession. Gamble v. Horr, 40 Mich. 561; Crawford v. Corey, 99 Mich. 415 (58 N. W. 332).

Plaintiff’s grantors have been in possession of the land in controversy for 20 years and upwards; and the record discloses that it has been used for pasture, timber cut upon it, partly plowed, and that different persons have had cabins or shanties upon the premises. These acts of possession on the part of plaintiff’s grantors, in our opinion, are sufficient to bring them under the rule above set forth.

The other assignments of error do not warrant a reversal of the case. The judgment is therefore affirmed, with costs.

Steere, C. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
    UNION TRUST CO. v. KIRCHBERG.
    I. Equity — Practice—Hearing.
    While the court will affirm the action of the trial court in dismissing a bill of complaint brought by a party that has no legal interest in the subject-matter, although the testimony was not all taken in the case, the proper practice is to determine suits in which issues of fact are raised upon all the testimony, and the appeal should bring up the whole record.
    3. Executors and Administrators — Parties—Fraud—Special Administrator — Authority.
    The powers of a special administrator conferred by statute do not include the right to recover by suit in equity title to real property held by third persons under a conveyance alleged to have been fraudulently procured from deceased, if decedent left heirs or devisees. 3 Comp. Laws, §§ 9336-9330, Act No. 341, Pub. Acts 1905 (4 How. Stat. [3d Ed.] § 11043 et seq.).

    Appeal from Wayne; Mandell, J.
    Submitted October 11, 1912.
    (Docket No. 44.)
    Decided March 20, 1913.
    Bill by the Union Trust Company, special administrator of the estate of Christian Kirchberg, deceased, against William M. Kirchberg and others to set aside certain conveyances. From a decree dismissing the bill of complaint, complainant appeals.
    Affirmed.

      Frederic T. Harward, for complainant.

      Oscar E. Angstman (Alfred Lucking, of counsel), for defendants Kirchberg.
    Pending proceedings to determine whether Christian Kirchberg, deceased, died testate or intestate, complainant was appointed special administrator of the estate. It was also the executor nominated in the instrument proposed as a last will. As special administrator it filed a bill of complaint in the circuit court, in chancery, the purpose of which is to have canceled and declared void á certain conveyance of real estate which it is charged was fraudulently obtained from said Christian Kirchberg in his lifetime, in which conveyance said Christian Kirchberg was the grantor, and defendant William M. Kirchberg the grantee. The same property is devised in the instrument proposed and presented for probate as the last will and testament of Christian Kirchberg to said William M. Kirchberg for his life, .and to his wife for her life, if she survives her husband, with remainder (1) to the lawful issue of the body of William M. Kirchberg, and, issue failing, then (2) to a designated charitable institution. It is a prayer of the bill that said William M. Kirchberg and his wife may be decreed to release and convey to complainant all right, title, and interest in the said real estate excepting as heirs at law or devisees of said Christian Kirchberg. It is charged in the bill that Millie K. Wagner, a daughter of the deceased, claims title to two of the parcels of real estate described in said aforementioned deed and in said will by virtue of a conveyance made to her by her father and his wife, and that no provision was made for her in the will of her father because said percels had been so conveyed to her; that there is now no lawful issue of the body of William M. Kirchberg living. Leave was given to file a supplemental bill, from which, when filed, it appeared that since the commencement of the suit this court had by its decree determined that Millie K. Wagner is owner in fee of said two parcels of real estate, and in consequence complainant disclaimed any interest in said parcels and dismissed its bill as to said Millie K. Wagner. It is not charged that the deceased has creditors, but is charged—
    “ That, should it be unnecessary to resort to the premises hereinbefore described for the payment of debts and expenses of administration, said William M. Kirchberg would, under the last will and testament of said deceased, be entitled to possession of said premises; that he is now in possession, but claims his right to such possession under said pretended deed,” etc.

      Each defendant answered, the cause Was put at issue, and, in open court, the solicitor for complainant made what is called in the record an opening statement, and the solicitor for the defendants Eirchberg likewise made a statement, both accompanied by colloquy between counsel and the court. Upon a day to which the hearing was adjourned, a copy of the will of Christian Eirchberg and a copy of the deed in question were offered and received in evidence, and it was admitted that Christian Eirchberg died April 17, 1911, leaving what purports to be a last will and testament which was proposed for probate and contested, and that the deed to William M. Eirchberg was filed for record May 26, 1911. A witness, one of the persons who witnessed the will, was sworn and testified that deceased owed nothing to speak of. No other testimony was taken. Counsel for .defendants Eirchberg then moved the court upon the authority of Pratt v. Millard, 154 Mich. 112 (117 N. W. 552), to dismiss the bill without further taking of proofs. A decree was entered April 24, 1912, dismissing the bill, and it is recited therein that complainant has no interest in the subject-matter for which the suit is brought and is not a proper party to bring the same. Complainant has appealed, and in its brief advances the following propositions:
    “ (1) The special administrator being the only possible party who could at this time bring this suit, a court of equity will recognize the necessity of the case, and, to prevent fraud and irreparable damage, permit this action to be brought in the name of the Union Trust Company as special administrator.
    “ (2) Defendants should have demurred to the bill.”
   Ostrander, J.

(after stating the facts). The second of the propositions stated ought to be first considered. It amounts to this: That the court prematurely made a decree and should have proceeded to hear the testimony and thereafter determine the issues and make and enter a decree. In Pratt v. Millard, there was an appeal to this court from a decree dismissing a bill of complaint; the decree going upon the ground that the complainant in the case had no interest whatever in the matter in issue. It appeared beyond question that the complainant, who was appellant, had no interest in the subject-matter and no right or authority to institute or conduct the suit. There was in the answer the usual general demurrer clause, and the court below permitted it to be urged upon the hearing before the testimony was taken. This court was presented the alternatives of remanding the record with directions to take the testimony offered — a proceeding which would have entailed expense without possible benefit to any one and with a legal result already accomplished— and of affirming the decree of the court below and ending the litigation. It chose the latter alternative and affirmed the decree. It was advised of the former ruling in Gray v. Eldred, 144 Mich. 23 (107 N. W. 719), and pointed out the distinction in the cases and made plain the reasons for each decision.

The decision in Pratt v. Millard was not intended to be an invitation to trial courts to determine suits in chancery in which issues of fact have been joined upon questions raised in the course of the trial. It is still the rule that they shall be determined upon the testimony offered by the parties and that appeals from decrees shall bring up the whole record.

It is said, however, that in the case before us, as in Pratt v. Millard, it conclusively appears that complainant has no interest in the subject-matter and no authority to inquire into the conduct of defendants in the premises; that the court below has made a decree which must inevitably be the decree after all the testimony has been taken and considered. It is the contention of complainant that it is the proper party to begin this suit—

“And the only party who at this time could bring this suit, and that it was necessary at this time to file a lis pendens and commence action, and give notice to the world that the deed was questioned, as otherwise William M. Kirchberg, having the record title, during all the time the contest was being waged over the will, and it has now been over a year, might dispose of the property to a bona fide purchaser for value, and the damage wrought be beyond redemption.”

The statute, 3 Comp. Laws, §§ 9326-9330, as amended by Act No. 241, Pub. Acts 1905 (4 How. Stat. [2d Ed.] § 11042 et seq.), provides for the appointment of, and, in a general way, defines the duties and the powers of a special administrator. The powers of a special administrator cease whenever letters testamentary, or of administration, are granted. His statute powers, meanwhile, are, generally, to collect all the goods and chattels and debts of the deceased and preserve the same for the executor or administrator, who may afterwards be appointed. In the section providing for his appointment (9326), the purpose for which he may be appointed is stated to be * ‘ to act in collecting and taking charge of the estate of the deceased until an executor or administrator shall be appointed.” The condition of the bond required of a special administrator is further indicative of the special and limited nature of his powers and duties. The powers of an administrator and the statutory powers of an executor are more extensive than are those of a special administrator. Among them is the power conferred by section 9363, which is that when there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate with intent to defraud his creditors, the executor or administrator may commence and prosecute to final judgment any proper action or suit for the recovery of the same and may recover, for the benefit of the creditors, all such real estate so fraudulently conveyed. In general terms, an executor and administrator are given the right (section 9354) to the possession of all real estate of the deceased, but it is a right to be exercised for the purposes and during the period of the settlement of the estate. Subject to the rights of creditors, the title to real estate passes to the heirs or devisees, in the one case upon the death of the owner, in the other upon the probating of the will. The present action is not brought under the authority of section 9363 to recover lands fraudulently disposed of by the decedent in his lifetime, and the foregoing observations are addressed to the subject of the limited nature of complainant’s powers. It is brought to recover for the heirs or devisees, as the case may be, lands, the apparent title to which is alleged to have been procured from the decedent by fraud practiced upon him — an action which he, if alive, might maintain to recover his lands, or to cancel the evidence of apparent title which defendant holds. It is precisely such an action as Pratt v. Millard, supra. We have examined with care the reasons given by complainant’s counsel for distinguishing the cases. None of them seems to us to be sound. It is pointed out that in that case there were heirs capable of maintaining the action. But the decision goes, not upon the fact that there were heirs, but upon the ground of the right of the heirs and absence of the right of the special administrator to maintain the suit. We have examined the cases to which we are referred, and others, especially Wilmarth v. Reed, 83 Mich. 44 (46 N. W. 1031), which is said to resemble the one at bar in many respects. It seems to us to be wholly dissimilar. Looking at all provisions of the statute, we are obliged to say that it cannot be construed as giving to a special administrator a right to maintain an action to recover real estate, or the title thereto, alleged to be held by a third person against the right of the deceased and his heirs or devisees. It may be observed, further, that there are heirs of Christian Kirchberg; perhaps there are devisees.

Under the circumstances, we do not feel required to reverse the decree of the court below. It will stand affirmed, without costs to either party.

Steers, C. J., and Moors, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.