author: McAlvay, J.

text:
    BACKUS v. COWLEY.
    1. Taxation — Purchase op State — Notice to Redeem.
    One claiming title by quitclaim from the original purchaser of State tax lands, is limited to the amount and interest which she proves, and in case of her failure to show a tax deed for more than one year, will be limited to that year, although other taxes were unpaid at the time of the purchase.

      2. Same — Deeds—Quitclaim—Good Faith.
    Those who take by quitclaim deed are not bona fide purchasers, and take only the interest which their grantor had.
    3. Principal and Agent — Trust Relation —Adverse Interest op Agent.
    The purchaser of timber, upon land which is held for delinquent taxes that the owner directs the purchaser to pay, and charge to her acccount, becomes her agent, for that purpose.
    4. Same — Statute op Frauds — Trusts.
    The defense of the statute of frauds is not available to an agent that purchases, in his own name, without the knowledge or consent of his principal, State tax lands which he has been directed to redeem on behalf of the owner from funds to be paid her for timber purchased.
    5. Same — Fraud.
    Such a purchase is a fraud on the principal.
    6. Same — Trusts—Statutes.
    And would be governed by the exception to the statute prohibiting resulting trusts. 3 Comp. Laws, §§ 8835, 8836.

      7. Same — Fiduciary Relations.
    While the relation so created was not a strict fiduciary relation, the vendee of the timber owed the vendor loyalty and good faith.
    8. Taxation — State Tax Lands — Laches — Bona Fide Purchaser.
    A purchaser of tax titles more than six years old, by quitclaim deed, who pays less than the amount required for redemption, carinot be considered a bona fide purchaser, and has notice of the stale character of the claim. Act No. 58, Pub. Acts 1907.
    9. Same — Principal and Agent — Attorney.
    Such notice and knowledge is chargeable to the attorney and adviser, who accepted a conveyance of her interest from the purchaser of the tax interest.
    Appeal from Alcona; Connine, J.
    Submitted June 7, 1910.
    (Docket No. 3.)
    Decided September 27, 1910.
    Bill by Newton D. Backus, administrator of the estate of Sarah E. Backus, deceased, against Lilian N. Cowley, the Au Sable River Lumber Company, and John H. Killmaster to set aside certain deeds. Defendants Cowley and Killmaster filed an answer in the nature of a cross-bill to quiet title to said land. Prom a decree for defendants, complainant appeals.
    Reversed, and decree entered for complainant.

      Albert McClatchey, for complainant.

      John H. Killmaster (Ward B. Connine, of counsel), for defendants.
   McAlvay, J.

The bill filed by Sarah E. Backus as complainant in this case prayed that a certain State tax deed be decreed void, and that the cloud upon her title created thereby be removed; she claiming to be the owner of the lands described in said deed. After filing her bill, and before a hearing of the cause, Mrs. Backus died. In the original bill of complaint the Au Sable River Lumber Company and Lilian N. Cowley were parties defendant. After complainant’s death, the cause was revived in the name of her administrator, and an amended bill was filed by him, setting up the fact of her death and the revival of the cause, and also making John H. Killmaster a party defendant by reason of a conveyance of part of the land in question to him by defendant Cowley. The bill of complaint was taken as confessed by defendant Au Sable River Lumber Company. Defendants Cowley and Kill-master answered separately, denying complainant’s equities and each asked for affirmative relief. Upon the issues joined, the cause was heard, resulting in a decree dismissing complainant’s bill, and granting defendants Cowley and Killmaster the affirmative relief prayed, decreeing and confirming title in said lands in fee in them, as claimed. Complainant has appealed.

Sarah E. Backus during the later years of her life resided with her son, Henry N. Backus, in Detroit. She owned about 2,000 acres of land in Alcona county, including the lands involved in this suit. Her son, Henry, attended to some of her business. Philip Curran had general charge of these lands for Mrs. Backus, and looked after her interests for 14 years. On November 2, 1901, Curran, in the name of H. N. Backus, entered into an agreement in writing with defendant Au Sable River Lumber Company for the sale and delivery of certain logs, posts, ties, etc., to be cut and delivered for the prices stipulated, and to be paid for by defendant company as fast as banked on Backus Creek. Under this agreement, Mr. Curran caused this timber to be cut from these lands and delivered according to its terms, beginning in November, 1901, and finishing in March following. While so engaged. Curran was notified by the State trespass agent that there were unpaid taxes against the land which must be paid, or the cutting discontinued. Curran then went to the defendant company’s office, and stated to its secretary that the taxes must be paid, and asked for an advance of money to pay them to be charged up to this timber contract. This was agreed upon, and the secretary sent the money and paid these taxes to the amount of $354.88, being the amount of taxes on these lands for the years 1895 to 1899, inclusive, and charged that amount against this Backus timber contract account, and the same was paid in full by charging it as a payment made on the timber delivered under it. This also appears from a letter written by defendant company to H. N. Backus on January 11, 1902, stating that the above contract had been made, requesting a confirmation of it and asking advice as to how payment for timber should be made. The letter proceeds:

“Since buying the logs we have paid up $350 back taxes on the land after being asked to do so by Mr. Cur-ran; this we have charged up to Mr. Curran. Since making the contract we have learned that this timber and land stands in the name of Sarah E. Backus. Such being the case, this contract should include her as one of the first parties and another very important thing for us to know is whether these scale bills are all to be paid to Phil Curran or whether you want us to hold back the stump-age.”

It also appears that the timber account was kept in the name of Curran, and that a written statement of such account made out and delivered to Curran shows $354.88, amount paid for taxes charged by defendant company. After this statement more timber was delivered. On February 4th money was due and payable from defendant company on the above contract over and above the amount paid for taxes, which was withheld for instructions asked for in letters. Curran on that date telegraphed H. N. Backus:

“Wire Au Sable River Lumber Co. regarding their letters to you; they defer payment awaiting your reply.”

Not satisfied with the answer to this telegram which evidently contained an error in transmission, defendant company on February 6, 1902, wrote Sarah E. Backus, acknowledging the receipt of the telegram, giving its wording as received and asking confirmation. The letter further stated:

In reference to the pine and cedar you did not say anything about this. * * * Kindly advise us how the payments are to be made on white pine and cedar.”

At the time operations under the contract ended, March 8, 1902, the defendant company had been paid all claims and owed $125 for a bridge torn down by its men, which it agreed to pay. Nothing was heard of this transaction relative to the payment of these taxes until about six fears later, January 22, 1908, when Mrs. Backus received statu, tory notice from defendant L. N. Cowley to redeem from tax title these lands for the years for which defendant company had paid them for complainant, with a statement that she had acquired title by virtue of a conveyance from the Au Sable River Lumber Company, “ said company having become the purchaser of the taxes against said lands for the years mentioned,” the amount claimed as necessary to redeem being $642.94.

Defendant Cowley was dealing in tax titles. Defendant Killmaster is her attorney who advised her to buy these titles from defendant Au Sable River Lumber Company. The claimed interest of defendant company was conveyed to her for the aggregate consideration of $130 by two quitclaim deeds dated, respectively, January 4, and January 10, 1908. On January 31, 1908, defendant Cowley quitclaimed two of these descriptions of land to defendant Killmaster. In 1907 defendant Cowley purchased from the State tax titles on these lands for years 1902 to 1905, inclusive, gave notice to redeem to Mrs. Backus, redemption was made, and she conveyed her interest to her. In showing title from the State to defendant Au Sable River Lumber Company defendants put in evidence but one State tax deed dated January 6, 1902, which conveyed these lands to said company for taxes for the year 1897 for the sum of $68.44. No showing whatever was made by tax receipts, certificates, or deeds that taxes for the years 1895, 1896, 1898, and 1899 had been paid as a condition of purchase when the State deeded to the company. There is no dispute in this record upon the facts. That the company was the agent of and acting for Mrs. Backus in paying taxes at the request of her agent as shown by this record is proved beyond dispute. The contesting defendants do not admit this.

Defendant company, by allowing this bill of complaint to be taken as confessed, has admitted, not only the allegation that it was a Michigan corporation, but also that all of the facts charged in the bill of complaint against it relative to its relations with complainant’s decedent are true. Upon this branch of the case, it would be a waste of time to repeat the facts for the purpose of showing that a valid contract in writing was entered into between the parties by their agents relative to the sale of certain timber, the ratification of the contract by the principals, and its complete performance.

When at agent Curran’s request defendant company paid the demand of the State against the lands in question and charged the amount paid as agreed against the logging contract, such act was in effect a payment and redemption by the owner, Mrs. Backus, and was so treated by defendant company and admitted in the letters written by it in relation thereto. Hoffman v. Auditor General, 136 Mich. 691, 692 (100 N. W. 180 ). As agent of Mrs. Backus to pay taxes and redeem her land, this defendant could not obtain title by purchasing in its own name because it owed duties to her which were incompatible with it. Kimball v. Ranney, 122 Mich. 160 (80 N. W. 992, 46 L. R. A. 403, 80 Am. St. Rep. 548). Defendant company never made any claim or asserted any right in said lands to the original owner or her representatives by reason of the purchase in its own name, and could not acquire a title by taking a deed, under the circumstances, in its own name, without the knowledge or consent of the owner. Linsley v. Sinclair, 24 Mich. 380; McCreary v. McCreary, 90 Mich. 478 (51 N. W. 545). It appears from the record that no such claim was ever asserted by putting its deed upon record. On January 8, 1908, defendant Cowley caused to be recorded a deed purporting to convey to defendant An Sable River Lumber Company the title of the State of Michigan to the lands in question for taxes for the year 189?. Said deed being dated January 6, 1902, and recorded on the same date, she caused to be recorded the first quitclaim deed from the company to her dated January 4, 1908. The second quitclaim to her was dated January 10, 1908, and recorded January 15, 1909. The only tax deed from the State to defendant company she produces was for taxes for the year 189? in consideration of $68.44. Her notice to redeem dated January 16, 1908, claiming a payment aggregating $642.94, plus sheriff’s fees, was served on Mrs. Backus in Detroit January 29, 1908. This was the first notice to her of the claimed title arising from the payment and redemption of taxes made as already recited for her by defendant company.

In proving her claimed title from the State, defendant Cowley has shown title for taxes of but one year. She claims through defendant company, however, tax titles, for five years without other showing than the quitclaim deed to her. Her claim for the amount necessary to redeem is not supported or warranted by her proofs. Her right and title, if valid, is limited to such as she has proved. Whether she has shown title for one year or five years will not in this case affect the result. The real question is what interest defendant company conveyed to her by its quitclaim deeds.

In Briggs v. Boardman, 135 Mich. 329 (97 N. W. 767), the grantee by deed of the owner of a tax title was denied a writ of assistance because his grantor, who had in writing agreed with the attorney of the original owner to accept an amount less than provided by statute to redeem, on tender made of the amount, refused to accept before the time agreed upon or the statutory limit had expired. In that case the court said:

"It is immaterial whether the contract between Griffin and the respondents be called a contract relating to the sale of lands, or one relating to the payment of a tax lien. The offer was in writing, the acceptance was in writing, and the agreed price tendered in time. The transaction was valid and its effect was to avoid the tax deed. The title was then in Mr. Griffin and the petitioner took no greater interest in the property by the conveyance than Mr. Griffin had, and he had no interest.”

It is also well settled in this State that “those who take by quitclaim deed are not bona fide purchasers, and take only the interest which their grantors had.” Peters v. Cartier, 80 Mich. 129 (45 N. W. 73, 20 Am. St. Rep. 508); Moore v. Township of Kenockee, 75 Mich. 332 (42 N. W. 944, 4 L. R. A. 555); Beakley v. Robert, 120 Mich. 210 (79 N. W. 193); Messenger v. Peter, 129 Mich. 98 (88 N. W. 209).

In our view of the case at bar already given, defendant company was the agent of the owner to pay taxes and redeem her land; consequently the defense of the statute of frauds is not available. The act of defendant company 'in taking title in its name without her knowledge or consent was a fraud upon the original owner, and there is no evidence in the record of any intention to create a trust; but, if considered as a.case where a trust has resulted, complainant would not be prohibited from recovering by reason of the statute of uses and trusts (section 8835, 3 Comp. Laws), as defendants contend, for the reason that this case would be within the provisions of section 8837, 3 Oomp. Laws, which qualifies the section relied on. It provides:

“The preceding seventh section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the knowledge or consent of the persons paying the consideration, or when such alienee in violation of some trust shall have purchased the lands so conveyed with moneys belonging to another person.”

Linsley v. Sinclair, supra, and notes; McCreary v. McCreary, supra; Connolly v. Keating, 102 Mich. 4 (60 N. W. 289). The relations between Mrs. Backus and defendant company relative to this transaction have been called fiduciary. Strictly speaking they were not, but were such as required loyalty on the part of the agent, and a duty resting upon it to deal in good faith with its principal, and is one of the relations within the statute and recognized by the authorities cited.

In addition to what has been said relative to the status of defendant Cowley under the quitclaim deeds as a bona fide purchaser, it may be added that there is evidence relative to the purchase by her which indicates want of good faith. She for less than the statutory amount necessary to redeem for the one year took the quitclaims, the next day making claim for the entire statutory amount for the five years. From this record there is no evidence of a right to make such demand.

She did this after a lapse of six years from the claimed purchase by defendant company, no demand or claim ever having been made under it. It was therefore on its face a stale claim, which was sufficient to put her upon her reasonable inquiry. She was acquainted with the owner in a business way. She had bought tax titles for subsequent years against these lands, had given Mrs. Backus notice to redeem, and on payment of her demands had made a reconveyance to her. She knew that the owner was protecting these lands against a later title than the one she was then buying, yet she made no inquiry of her as to this stale claim. The legislature had before that time fixed a limitation of five years as barring all right to assert such title or claim of lien by reason of a tax purchase. Act No. 58, Pub. Acts 1907. This is the limitation considered by the legislature as reasonable. We do not decide that this sale, is within that statute, but we do hold that defendant Cowley cannot be considered a bona fide purchaser of this stale claim after the lapse of six years. What has been said relative to defendant Cowley and the title she acquired by the transfers to her is equally applicable to defendant Killmaster. He was her attorney and adviser, chargeable with her conduct and knowledge. In all respects he must be considered in exactly ner position and relation to these lands. He acquired by the conveyance from her no other or greater interest than she was entitled to assert.

It is not necessary to consider any further questions. In no view of the case can the decree of the circuit court be affirmed. It is reversed and a decree will be entered in this court in favor of complainant for all the relief prayed, and denying the defendants affirmative relief. If there are other tax titles claimed by these defendants, or either of them, against these lands which they desire to present for redemption, that course is probably open. It is not necessary to dispose of them in this case. The only titles here involved are those arising from the claimed sale by the State to defendant Au Sable River Lumber Company which are held by us to be absolutely void.

Complainant will recover costs of both courts against all of the defendants to be taxed.

Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BACKUS v. KILLMASTER.
    1. Equity — Practice—Stipulation—Evidence.
    Under a stipulation that testimony taken in one cause may apply to another so far as may be competent, it is proper to refer on appeal to the record in the related cause.
    2. Taxation — Redemption—Tender—Register in Chancery.
    Where the owner of land sold for delinquent taxes sends a post-office order for a sufficient sum to redeem the property to the register in chancery, who indorses the same, and tenders it to the purchaser from the State, within the period of redemption, a sufficient payment was made to redeem the property.
    3. Same — Remedies—Register in Chanoert.
    If, by the conduct of the register in chancery, the tax purchaser has lost the money, his remedy is against the officer.
    Appeal from Alcona; Connine, J.
    Submitted June 7, 1910.
    (Docket No. 18.)
    Decided September 27, 1910.
    Bill by Newton D. Backus, administrator of the estate of Sarah E. Backus, deceased, against John H. Killmaster to set aside certain deeds. Defendant filed an answer in the nature of a cross-bill to quiet title to said land. From a decree for defendant, complainant appeals.
    Reversed, and decree entered for complainant.

      Albert McClatchey, for complainant.

      John H. Killmaster (Ward B. Connine, of counsel), in pro. per.

   McAlvay, J.

This is a case in some respects similar to the case of Backus v. Cowley, ante, 585 (127 N. W. 775). From the record in that case we find that,

“ By agreement between solicitors for both parties and the court, testimony was taken to apply in this cause and also in the case of Newton D. Backus, Adm’r, v. John H. Killmaster, as far as might be competent.”

We also find a statement in this record to the same effect. In the certificate to the record in this case is contained a protest by counsel for appellee in a measure restricting the agreements of record made in both cases in open court by insisting that opposite counsel shall not in this case make reference to the first case. Counsel on both sides are bound by the above agreements upon which this court has acted in the examination and determination of both cases, and counsel have the right to make all proper and necessary references in each case to the other. The instant case involves two of the descriptions of land, the title to which was in dispute in the other case, and which are the descriptions in that case stated to have been conveyed by defendant Cowley to defendant Killmaster. The determination of this court in that case declaring the title in Cowley void and that defendant Killmaster acquired nothing by the transfer from her makes it unnecessary in this case to consider that question.

Defendant Killmaster in this case also claims title to this land through other tax sales for the years 1902 and 1904 made by other parties and by quitclaim deeds from them to Killmaster. Afterwards he sent to Mrs. Backus, at Detroit, the statutory notice that he held a tax deed on the lands for the year 1902, giving the amount required to redeem each description. Within six months thereafter Mrs. Backus gave such notice with money sufficient to redeem to her son to send the required amount to make such redemption. For the purpose of transmitting this money, he obtained a post-office money order at Detroit for the full amount, payable to Greorge Rutson, who was register in chancery, and the proper officer to receive such redemption money, and inclosed the same in a letter stating its purpose, and sent it to him. It was duly received and accepted by him, and he on the same day, and before the expiration of the six months, personally told defendant that he had received the same to pay for the redemption from said tax title. He indorsed the order and offered it to defendant for that purpose, but defendant would not take the money order for the reason that he claimed it was not legal tender and therefore refused to receive it. Defendant did not offer or tender to said officer any tax deed, receipt, or quitclaim deed, or reconveyance. The money order was retained by this officer during the balance of his term of office, and passed over by him to his successor in office. Mrs. Backus, hearing of this situation, and that defendant claimed title under the tax deed from which she thought she had redeemed, caused the bill of complaint in this case to be filed praying to remove the cloud of said tax deed from her title, and that such deed be decreed to be delivered up and canceled, and defendant be decreed to convey to her all of his interest in said lands. Defendant answered, asking affirmative relief in the nature of a cross-bill. Issues were joined and a hearing had. The court denied complainant any relief, dismissing the bill of complaint, and granting defendant a decree confirming his title in fee simple to the land.

The only question necessary to discuss in this case is whether complainant’s decedent complied with the law and redeemed her land and was entitled to a reconveyance. , Defendant’s contention and defense is entirely technical, and we think absolutely without merit. It is not disputed but that Mrs. Backus transmitted a sufficient amount of money within the required time to the proper officer to satisfy defendant’s demand, and he was notified by such officer. She can be required to do nothing more if her method of transmission was legal. After notice of what she had done, the duty rested upon this defendant to offer his reconveyance and demand his money. The conduct of this register in chancery was not very creditable. He was an old officer, and, as he testifies, well acquainted with these transactions. He had received post-office orders before, and knew that, when he paid the money to a tax title holder, he should receive the deed, etc., as the law provides. Instead of taking the ordinary course, he indorsed the order to Killmaster, who declined to accept it. This the officer did contrary to the instructions of the letter of transmission. The inference from his testimony is strong that he did so because he was unfriendly with the Backus people. It is not to the credit of defendant that he was willing to take advantage of this conduct, evidently because the time for redemption expired the next day. It is a matter of common knowledge that the transmission of money by post-office order is lawful, customary, and safe. This post-office order received by the register in chancery, kept and indorsed by him, amounted to a payment by Mrs. Backus for the purpose indicated in the letter to him. Because of the conduct of this officer, she, having done all that was required by the law to redeem her lands, will not be held to be in default, and, in such case—

“Equity will take notice of the facts as entitling the party to relief, and will hold the redemption which has failed in form, to have been effected for all purposes of protecting the estate against a forfeiture.” 2 Cooley on Taxation (3d Ed.), p. 1048.

Whether defendant had the deeds as claimed or not to both descriptions of this land is of no consequence. Complainant so understood at the time, and acted upon such understanding.

The amount paid covered both descriptions. The statute provides that — “By such payment the tax title * * * shall become void and of no' effect against the lands thus redeemed.” Act No. 226, Pub. Acts 1905, § 141. Consequently complainant was entitled to the relief asked. The decree dismissing complainant’s bill of complaint and granting defendant affirmative relief is reversed, and a decree will be entered in this court granting complainant full relief, declaring the tax title of defendant á cloud upon her title, and declaring it void and to be delivered up to complainant for cancellation, and that defendant do reconvey all of his claimed right, title, and interest in said lands and produce and surrender all deeds and papers as provided by law in case of payment, and, in default thereof, that such decree duly recorded shall stand as and for such reconveyance, and, if by the conduct of the register in chancery complainant has lost the money sent to him, defendant be left to his remedy, if any he has, against said officer, if otherwise, complainant do pay into court for said defendant that amount less costs of this suit, and that complainant recover against defendant costs of both courts, to be taxed.

Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred.


text:
    BROOKS v. HARGRAVE.
    Appeal and Error — Questions Reviewable — Motions—Dismissal and Nonsuit — Jurisdiction.
    The denial of a motion to dismiss, for want of jurisdiction, a bill of complaint in chancery against an executor, for an accounting, to which he had filed an answer, subsequently presenting in probate court his final account covering the same matter, may not be reviewed on appeal, since the order is not a final adjudication of rights.
    Bill by Rae Brooks and another against Edward C. Hargrave and others for an accounting. From an order denying a petition to dismiss the bill for want of jurisdiction, defendant Hargrave appeals: On motion to dismiss.
    Submitted June 7, 1910.
    (Calendar No. 24,056.)
    Motion granted September 27, 1910.

      Weadock & Weadock (Miles J. Purcell, of counsel), for the motion.

      M. L. Courtright (Q-illett & Clark and F. W. Defoe, of counsel), contra.

   McAlvay, J.

Complainants filed their bill of complaint in the circuit court for Saginaw county in chancery, asking for an accounting with defendant Edward C. Hargrave, as executor, individually, and as surviving partner of E. J. Hargrave & Son, charging fraud against him in his management of the estate, and the affairs of the partnership. This defendant was appointed executor of his father’s estate in 1887. He filed an inventory and appraisal of the estate, showing property of the value of $50,000, since which time he had filed no account whatever. Complainants are grandchildren of E. J. Hargrave, deceased, having an interest in his estate.

Defendants are all the other parties in interest. Defendant Edward C. Hargrave, as executor, individually, and as surviving partner, answered the bill of complaint, as also did some others of the defendants. Some were defaulted. The cause, being at issue, was duly noticed for hearing in open court, and was set down for a certain day. On motion of defendant Edward O. Hargrave the time’ for the hearing was extended to a later date. He then filed what purported to be his final account in the probate court for Saginaw county as executor, and at once filed a. petition in this case showing that he had filed a final account, praying that the bill of complaint be dismissed because of want of jurisdiction in the court to proceed against him as executor for an accounting. Upon a hearing this petition was denied. He then took a general appeal to. this court from the order denying such petition.

Complainants have made a motion before this court to-dismiss the appeal. It would seem that appellant, after answering fully complainants’ bill, in which he denied that, he had any assets, and expressed a willingness to have an accounting, now desires, after he has filed an account in probate court, by this motion, to have a question arising in that suit determined in advance, and in the brief filed this is admitted. In chancery cases an appeal will only lie to this court from a final order. He did not elect to raise the question by demurrer, in which case he would have been strictly within the statute and entitled to an appeal, if his demurrer was overruled. The order is not a. final one. Appellant is not deprived of any supposed right, nor does it fix upon him any liability. Kingsbury v. Kingsbury, 20 Mich. 212. The cases of Hitchcock v. Wayne Circuit Judge, 144 Mich. 362 (107 N. W. 1123), and Warren v. Lenawee Circuit Judge, 160 Mich. 572 (125 N. W. 712), cited by appellant, are not in point, nor is there any indication in either of them that such an order as the one here appealed from is a final order. This court has recently held that an order denying a motion to strike a bill of complaint from the files was not a final order. Williams v. Olson, 151 Mich. 265 (114 N. W. 1031). The fact that by the petition the jurisdiction of the court was challenged does not determine the question whether the order made was a final and appealable order. As was said in the case last cited, that is determined by its effect upon the rights of the parties..

This has always been the rule in this State. The motion to dismiss is granted.

Bird, C. J., and Brooke, Blair, and Stone, JJ.,, concurred.


author: Brooke, J.

text:
    HANNA v. HURLEY.
    1. Fraudulent Conveyances — Change of Possession.
    A bill of sale of a stock of merchandise, made without a compliance with the bulk-sales law (Act No. 228, Pub. Acts 1905), executed soon after the grantor executed a bond for costs of an action, which he subsequently became liable to pay, the conveyance being placed on record only the day after judgment was rendered on the bond, and not being accompanied* at the time of executing the transfer, by a change of possession, is properly held to be fraudulent as to the obligee in the bond.

    2. Same — Creditor—Bulk-Sales Law.
    A creditor is one who has a right to require of another the fulfillment of a contract or obligation.
    3. Same.
    A bond to pay a judgment and costs on appeal from justice’s court creates the relation of debtor and creditor between the surety and obligee, before the breach of its condition, within the meaning of the provisions of Act No. 223, Pub. Acts 1905.
    Error to Kent; McDonald, J.
    Submitted June 8,1910.
    (Docket No. 26.)
    Decided September 27, 1910.

      Replevin by George N. Hanna against William J. Hurley. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      8. Wesselius, for appellant.

      George O. Brown, for appellee.

       As to statutory requirements on sale of stock of goods in bulk, see note to Everett Produce Co. v. Smith (Wash.), 2 L. R. A. (N. S.) 381; and note to Young v. Lemieux (Conn.), 20 L. R. A. (N. S.) 160.

   Brooke, J.

This case was tried by the court without a jury. Certain findings of fact and law were filed by the court, which sufficiently disclose the nature of the controversy. They are as follows:

“Facts.
“ (1) I find that on April 33, 1908, George D. Hanna became surety upon an appeal bond on appeal to this court from the justice court of Grand Rapids by Joseph Dahrooge from a judgment rendered against him in favor of Nathan Kronman. Said bond was in the usual form. Plaintiff in this cause, George N. Hanna, was engaged in business in the city of Grand Rapids. Said George D. Hanna was a cousin of George N. Hanna, of the age of 34 years or thereabouts, and was prior to the 33d day of April, 1908, engaged in the retail grocery business in the city of Grand Rapids, and was indebted to divers and sundry wholesale houses for goods and merchandise.
“ (3) Judgment in said appeal case was rendered by this court against said Dahrooge and said George D. Hanna as surety on January 19, 1909.
“(3) On February 10, 1909, execution was issued against said Dahrooge and George D. Hanna on said judgment, and on March 9, 1909, defendant in this action, the sheriff of Kent county, by virtue of said execution, levied on the property involved in this action as being the property of said George D. Hanna. Said property consists of a retail stock of groceries and kindred articles and the fixtures pertaining thereto.
“(4) On March 10, 1909, the plaintiff in this action, George N. Hanna, replevined the property in question from the sheriff, claiming to own the same by virtue of bill of sale executed to him by said George D. Hanna May 13, 1908 [and recorded January 30, 1909].
“(5) I find as to this sale from George D. Hanna to George N. Hanna, as evidenced by the bill of sale referred to, that this sale came within the terms of the bulk-sale law of this State, being Act No. 333 of the Public Acts of 1905, and that its provisions were not complied with in this sale.
“ (6) I further find that at the time of said sale the said George D. Hanna was personally in possession of the said property, and continued in possession thereof personally from the date thereof until the levy of the said execution on said property by the defendant in this action, and that the said sale was not accompanied by an immediate delivery and followed by an actual and continued change of possession of said property, and that the said vendee, George N. Hanna, has not made it appear that .said sale was made in good faith and without any intent to defraud the creditors of said George D. Hanna so as to overcome the presumption of fraud as provided by section 9530, 3 Comp. Laws.
“ (7) I further find that said sale was not made in good faith, but was made with the intent to hinder, delay, and defraud the creditors and other persons within the terms of section 9533, 3 Comp. Laws, and that both George D. Hanna and George N. Hanna participated in such intent.
“ Conclusions of Law.
“(1) I find as a conclusion of law that Nathan Kronman was a creditor of George D. Hanna, within the terms of Act No. 333 of the Public Acts 'of 1905 at the time of the sale of said property to George N. Hanna, May 13, 1908, and that, the provisipns of said act not being complied with, said sale was void as to him, and therefore as to him said property remained the property of George D. Hanna, and was subject to said execution at the time of said levy.
“(3) I find as a further conclusion of law that Nathan Kronman was a creditor of George D. Planna within the terms of section 9530, 3 Comp. Laws, and that said sale not having been accompanied by an immediate delivery and followed by an actual and continued change of possession of the property sold, and said vendee, George N. Hanna, having failed to make it appear that the same was made in good faith and without any. intent to defraud the creditors of said George D. Hanna, so as to overcome the presumption of fraud arising by virtue of the provisions of said section, such sale is held void as to the said Nathan Kronman, and said property, therefore, remained the property of said George D. Hanna subject to said execution at the time of said levy.
“ (3) I find as a further conclusion of law that Nathan Kronman was a creditor of George D. Hanna within the terms of section 9533, 3 Comp. Laws, and that said sale, having been made with the intent to hinder, delay, and defraud the creditors of the said George D. Hanna, was void as against the said Nathan Kronman, and said property was therefore subject to said execution at the time of the levy thereof as the property of said George D. Hanna.”

It would serve no purpose of value to the profession to set out or examine the evidence upon which the court below based its conclusions as to the facts. Upon this point, it is sufficient to say that we think the evidence fully warranted the finding of the trial court that the sale in question was made for the express purpose of avoiding liability upon the appeal bond. Two facts only will be noted as bearing upon the good faith of the parties: First, the bill of sale was made within a few days after George D. Hanna had become surety upon the appeal bond, and after he had been advised by counsel that he might in consequence thereof be obliged to pay the judgment; and, second, the instrument was kept from record until the day after judgment had been rendered against him upon said bond.

The only question of law requiring consideration is: Was Kronman, the obligee in the appeal bond, a creditor of George D. Hanna, the surety on such bond, prior to the conditions of the bond becoming absolute within the terms of Act No. 223, Pub. Acts 1905, commonly called the “ bulk-sales act ?” It is urged by appellant that George D. Hanna’s liability upon the bond could not be fixed until judgment upon appeal, and therefore that the obligee in the bond was not, at the time of the sale, one of his creditors. A creditor is one who has a right to require of another the fulfillment of a contract or obligation.” 11 Oye. p. 1193, and cases cited in the note. It cannot be said that George D. Hanna’s liability was not fixed at the moment he signed the bond. It was fixed in amount, though contingent upon the failure of his principal to prosecute his appeal, and reverse or pay the judgment. A similar question was considered in Cutler v. Steele, 85 Mich. 627 (48 N. W. 631), where the court said:

“But complainant insists that Steele did not become a debtor to the bank until the maturity and protest of the note. It is true that the ultimate liability of Steele depended upon a contingency; still he had made a contract fixed and definite. The bank was under no obligation to pursue the maker of the note, but might look solely to the indorser. It is just as important in commercial trans-' actions that the financial condition of indorsers, guarantors, and sureties be known as that of the principal debtors. In fact, credit is often given in reliance upon their standing rather than upon that of the principal debtors. We are therefore of the opinion that the term ‘ creditors,’ used in the statute, includes those who have entered into contracts with parties as indorsers, guarantors, or sureties.”

See, also, Jackson v. Seward, 5 Cow. (N. Y.) 67; Karst v. Gane, 61 Hun (N. Y.), 533 (16 N. Y. Supp. 385); Bowen v. State, 121 Ind. 235 (23 N. E. 75); Carlisle v. Rich, 8 N. H. 44; Russell v. Stinson, 4 Tenn. 1; Kerber v. Ruff, 4 Ohio S. & C. P. Dec. 406; In re Appeal of Surety, 5 Ohio S. & C. P. Dec. 571. George D. Hanna was accepted as surety upon the appeal bond solely on account of his ownership of the stock of goods in question. To permit him to dispose of his stock immediately thereafter, without notice to the obligee in the bond, thus rendering the bond worthless, would result in encouraging the very fraud which the statute was designed to prevent. The statute is remedial in character, and should be given such a construction as will effect the plain legislative intent.

The judgment is affirmed.

Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


author: McAlyay, J.

text:
    HERPEL v. HERPEL.
    1. Appeal and Error — Sating Questions por Review.
    On appeal from a decree in chancery no modification will be made in favor of a party who does not appeal.
    2. Statute op Frauds — Lipe Estate — Contracts.
    As between a grantor who has reserved a life estate in real property, and the remainderman, an oral agreement evidenced by no writing modifying the terms of the original conveyance, by providing for possession by the remainder-man and for the support of the tenant for life is invalid.
    3. Life Estate — Remainder—Landlord and Tenant — Improvements.
    Permanent improvements made by a remainderman of his own accord, who assumes possession and cultivates the property for the life tenant, are presumed to be made for his own benefit.
    4. Same — Vendor and Purchaser — Remedies—'Waiver.
    Where premises were conveyed subject to a life lease, and possession reserved in the grantor, failure to institute ejectment proceedings to dispossess the remainderman, who assumes to take possession of the premises, does not operate as a waiver of the stipulated installments constituting the agreed purchase price.
    6. Same — Rental—Evidenoe.
    • A decree for rent due from the remainderman in possession to the life tenant, is improper, where the evidence is insufficient to determine the rental value of the premises.
    Appeal from Saginaw; Gage, J.
    Submitted June 9, 1910.
    (Docket No. 33.)
    Decided September 27, 1910.
    Bill by Ernst Herpel against John O. Herpel to set aside a deed. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      George B. Brooks (James H. Davitt, of counsel), for complainant.

      Eugene Wilber and Fred L. Eaton, for defendant.
   McAlyay, J.

Complainant and his wife were the owners of a farm of 250 acres in Saginaw county; the title of 75 acres of which was in the husband and wife jointly and the balance in the wife. This land was conveyed by them jointly to defendant December 24, 1904, subject to a certain incumbrance of $200. As part of the same transaction, and in consideration of such conveyance, defendant at the same time made, executed, and delivered to complainant the following written agreements :

“Saginaw, Mich., Dec. 24, 1904.
“ I hereby agree to pay the taxes on the Herpel farm, to pay $25.00 per month to Ernest Herpel and Katherina M. Herpel as long as they both or either of them do live, in consideration of their deeding to me free of all incumbrance, except mortgage now on file, their farm known as the Herpel Farm, and on which they now live.
[Signed] “John C. Herpel.”
“Saginaw, Mich., Dec. 28,1904.
“ In consideration of one dollar to me in hand paid and other valuable consideration, I hereby agree to lease and rent to Ernest Herpel and Katherina M. Herpel, his wife, the following described farm being situated in the township of Taymouth, county of Saginaw and State of Michigan, and described as follows: Lots 2 and 3 except the north 15 acres thereof, and all of lots 4, 5, 9 and 10 in section 7, town 10 N., Range 5 East, they, the said Ernest Herpel and Katherina M. Herpel his wife, to have and to hold peaceable possession of the same and to have the entire use of the entire premises above described, including all of the buildings and appurtenances thereunto belonging as long as they both or either do live.
“ In witness whereof, I have hereunto set my hand and seal this 23rd day of December, 1904.”

Complainant and his wife were old people, of the age of about 80 years, at the time of this transaction, and it is charged in the bill of complaint filed asking that the conveyance be set aside that it was procured by fraud and undue influence, that the grantors did not understand that they were making conveyance of their property, and that the wife at the time was mentally incompetent to transact business, and weak from long sickness caused by an incurable malady. Complainant also charged that defendant was financially irresponsible. The bill contained a prayer for general relief. The value of this land conveyed to defendant was about $6,000.

Defendant was not related to complainant and his wife. They had no children. Defendant at the age of two years was left with them by his father in 1857, and was brought up by them as a member of the family, until he was married in 1879, and went to live upon 69 acres of .land complainant’s wife had given him. He lived on this farm about a year, and then came back and was furnished a house to live in on the farm of complainant and his wife. In 1882 he sold the land which had been given him and moved to South Dakota, where he engaged in the implement business. He afterwards went through bankruptcy, and had nothing left over and above exemptions. The date of bankruptcy is not fixed by defendant, who thinks it was 18,99. After the papers above set forth were given, defendant returned to South Dakota, leaving complainant and his wife in possession of the farm, and the record shows that he made payments as agreed. He ■came back on account of the illness of complainant’s wife .shortly before her death, which occurred January 8, 1906. During that visit, he claims that he made a verbal agreement with complainant, at his request, to come back and take the farm and certain personal property, and take care of complainant and give him a home for the rest of his life. Defendant did return in March, 1906, and claims he did this at great financial loss, and that under this verbal agreement he has since operated the farm and cared for the complainant. Complainant denied that any subsequent agreement was ever made, claiming that defendant returned and took charge of the farm without authority, and assumed to make repairs and improvements without consulting him; that on account of harsh and violent treatment complainant left the farm in September, 1908, and went to live with a relative of his deceased wife, and remained away until June, 1909, when defendant brought him back about two weeks before this case was heard. After defendant took charge of the farm in April, 1906, no monthly payments were made by him to complainant. In November, 1907, defendant, alleging that he was interested as a son, petitioned for, and secured the appointment of, a special guardian of complainant’s estate on the ground of mental incompetency; the petition stating that there was no real estate,- and $433 personal estate, and that an application for a general guardian was then pending.

Upon the hearing in this case a decree was granted complainant, determining that he held a life estate in’said lands, and also that there was due him $717.58 unpaid payments under his written agreement from the time defendant took possession under the claimed verbal agreement; and it was also decreed that defendant pay $25 monthly during complainant’s lifetime, and that defendant pay to complainant $150 as rental of the farm from September, 1908, to June, 1909, and $100 per year thereafter as long as he remained in possession, and also that these and all amounts due and to become due from defendant were declared a lien upon the land. Defendant has appealed. The complainant has not appealed.

From an examination of this record we are satisfied that the court below in the main determined the case correctly. There is no dispute but that the conveyance and written agreements were entered into as alleged. Complainant has not appealed from a decree establishing and affirming such conveyance, and it will therefore not be modified or changed in his favor. Proctor v. Robinson, 35 Mich. 284, and notes. As between these parties, a life estate was reserved by complainant and his wife, and the survivor of them, by the terms of the written agreements. The later verbal agreement claimed by defendant is not satisfactorily established by his testimony, and, if established under the circumstances of this case, would be invalid, and would not operate to divest the complainant of his interest in these lands, because not in writing.

Defendant upon this appeal makes but two objections to this decree. The principal objection is that the court should not have charged him with the aggregate amount of the payments due under his written agreement after he took charge of the farm. This claim is founded upon his claimed verbal agreement, and that he has made permanent improvements upon the farm and taken care of complainant. We have already disposed of the verbal agreement, and it requires no further consideration. Since he assumed charge of this farm, defendant has had all the benefit of all the income therefrom without accounting to complainant. The complainant under his life lease was entitled to the full and absolute possession of the premises, and to the monthly payments of the consideration for the conveyance agreed to be made by defendant. The fact that during that time no proceedings were instituted to eject defendant is no waiver of the complainant’s right to the payments. Complainant did not make, and on account of his weakened mental and physical condition as shown by defendant could not have made, any binding agreement waiving these payments. During nine or ten months of the period complainant did not reside with defendant and was not supported by him. The record shows that he has paid no more money to complainant on this agreement since April, 1906, than was credited to him by the court in its decree. He has expended money in permanent improvements. As the remainderman, subject to the life estate of complainant, such improvements having been made of his own accord, will be presumed to have been made for his own benefit. All the money paid by defendant since the conveyance to him is but a small part of the value of the premises. The court was justified from the record in finding the amount stated in the decree as a balance on account of the agreed monthly payments.

The other objection is to that part of the decree requiring defendant to pay a rental of the farm of $150 from September, 1908, to June, 1909, and afterwards at the rate of $100 per year. It is claimed that this is not supported by the evidence, nor warranted under the bill of complaint. While we are satisfied that under the general prayer for relief the court might dispose of all matters between these parties arising out of the relations between them in their dealings with this property, yet, we do not think that, from the evidence in this record, the court could say what would be a reasonable amount per annum which complainant should receive as the value for the use and occupation of these premises, and therefore in that respect the decree should be modified. The court correctly decided that, under the written agreement between the parties, the complainant held a life estate in the premises with full right to possession. He had been deprived of that possession by defendant, and under the rule adopted by this court, where a court in chancery has jurisdiction of the parties and of the subject-matter, complete relief will be granted, and all questions arising out of the controversy will be disposed of, this matter should be passed upon in this case. The court will therefore remand the cause to the circuit court for the sole purpose of taking proofs as to the value of the use and occupation of the premises during the time actually occupied by defendant, the court to find said amount from said proofs and charge the same against defendant to be added to the amount already found due complainant. In other respects the decree of the circuit court is affirmed, with costs of both courts in favor of complainant.

Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred.


author: Hooker, J.

text:
    ATTORNEY GENERAL, ex rel. LINNELL, v. GAY.
    1. Corporations — Franchise — Termination — Constitutional Law.
    A mining corporation, organized in 1853, ceased to exist as a corporation de jure at the expiration of 30 years, at which .time there was no constitutional method of extending the term of its franchise.
    2. Same — Laches op State — Quo Warranto.
    No right to exercise the corporate franchise could be gained by estoppel or laches on the part of the State officials, since there was no authority under statute or otherwise to revive the corporation.
    3. Same — De Facto Existence — Reinoorporation — Constitutional Law.
    An invalid attempt to extend the life of the corporation, made in 1882, was not validated by the constitutional amendment of 1889, and the enactment of Acts Nos. 129 and 142, Pub. Acts 1889, which require specific action to renew corporate life. Const, of 1850, Art. 15, § 10.
    4. Quo Warranto — Right to Institute — Parties — Public Grievance.
    A plea to an information in quo warranto, claiming in defense to the writ that no public grievance exists, and the writ is prosecuted for the private benefit of relator, and that he is estopped to assert any defects arising from the expiration of the corporate charter, does not constitute a sufficient defense to the information.
    Quo -warranto proceedings by John E. Bird, attorney general, on the relation of John W. Linnell, Jr., against Joseph E. Gay and others to determine their right to exercise the franchises and privileges of a corporation: On demurrer to certain pleas filed by defendants.
    Submitted June 14, 1910.
    (Docket No. 49.)
    Demurrer sustained September 27, 1910.

      Miller, Smith, Paddock & Perry, for relator.

      Bobson & George, for respondents.
   Hooker, J.

An information was filed by the attorney general upon the relation of John W. Linnell, Jr., against a number of persons, charging them with exercising the franchises and privileges of a corporation of this State without authority of law. Several defendants united in four pleas, to which the attorney general has demurred. The question before us is, therefore, whether these pleas state a good and valid defense to the charge.

A brief statement of the allegations of these pleas will suffice to show the nature of the case and the questions to be decided. The Evergreen Bluff Mining Company, a valid corporation, was organized in this State in August, 1853, for the purpose of mining copper. It carried on business until the expiration of the constitutional period, when it had a tract of valuable land and perhaps other property. It has never parted with the land unless it be by operation of law. In March, 1883, it undertook to extend its corporate life for a further period of 30 years under the provisions of Act No. 16, Pub. Acts 1882, by a full compliance with the provisions of said act. From that time to this the stockholders have exercised the rights, powers, and privileges, and fulfilled the duties and liabilities of a corporation, all of which has been well known to the attorney general, the people, and the relator. Act No. 16 aforesaid has been amended twice by the legislature, but has been held by this court to have no application to a corporation, which had been organized and exercised corporate powers for the constitutional period of 30 years. Mason v. Perkins, 73 Mich. 303 (41 N. W. 126). In April, 1889, the electors of the State adopted the following amendment to the Constitution:

“Seo. 10. No corporation except for municipal purposes or for the construction of railroads, plank roads and canals, shall be created for a longer time than thirty years; but the legislature may provide by general laws applicable to any corporations for one or more extensions of the term of such corporations while such term is running not exceeding thirty years for each extension, on the consent of not less than a two-thirds majority of the capital of the corporation; and by like general laws for the corporate re-organization for a further period not exceeding thirty years, of such corporations whose terms have expired by limitation, on the consent of not less than four-fifths of the capital: Provided, That in cases of corporations where'there is no capital stock the legislature may provide the manner in which such corporations may be reorganized.” Const. art. 15, § 10.

In Juile, 1889, the legislature enacted such a law as was contemplated by said amendment. Apparently respondents have not since taken the prescribed steps to reorganize under such statute. Act No. 129, Pub. Acts 1889. Meantime said stockholders in the name of and as such corporation have regularly elected officers, filed reports, transferred stock on its books, and sold and conveyed property, and claimed to be a corporation, all of which the attorney general and other State officers and relator knew. The pleas allege, further, that, knowing these things, relator, who was a stockholder of the Mass Consolidated Mining Company, which had for five years tried to purchase the mining lands and property of the Evergreen Company by direct purchase, or by obtaining a controlling interest in its capital stock, in order to accomplish that at such price and on such terms as he should dictate, has purchased 4,958f shares of the stock of said corporation, and caused the same to be transferred on the books of the corporation, and on the same day asserted that respondents were not a valid corporation, and, failing to obtain respondent’s stock, threatened to institute these proceedings through the attorney general to cause the winding up of the concern and the sale of its property. It was alleged, further, that the former owners of said 4,958f shares of said stock remained stockholders and participated in the acts of said corporation until they sold their stock to relator and his associates.

Counsel for respondents contend that the information should be quashed for the following reasons:

(1) The acquiescence, delay, and laches of the State.

(2) There is, in fact, no public grievance and the writ is prosecuted for the private benefit of the relator.

(3) There being no public grievance, relator is estopped from asserting the alleged defects in the mining company’s charter.

The pleas in the case show that the defendant corporation existed as such for the full constitutional period of 30 years, and that, while it attempted to continue its life through a reorganization, that was not accomplished because the Constitution forbade. It is obvious that it is not and has not been a corporation dé jure for many years, although it has gone on conducting its business as a corporation, and claims to be at least a corporation de facto. It is certain that the life of this corporation ended when the constitutional period of 30 years expired, and it is no less certain that at that time there was under the Constitution no lawful method of extending its life or reviving it. Mason v. Perkins, 73 Mich. 303 (41 N. W. 426). It would seem as obvious that, if there was no authority anywhere to do either of these things, the same cduld not be accomplished through estoppel or laches, for it would be extraordinary if a person or officer could accomplish by recognition an act which he .was not authorized or was forbidden to do by express and unqualified direct action. See Attorney General v. Marr, 55 Mich. 445 (21 N. W. 883).

The contention that the action of the legislature at the session of 1889 after the adoption of the amendment had the effect to validate the action taken in 1882 to extend the corporate life does not appeal to us. Aside from any question of vested legal or equitable rights in the stockholders after the expiration of corporate life and the effect thereof on the validity of legislation attempting to subject interests of nonconsenting stockholders to the action of others, we find intrinsic evidence in these acts indicating an absence of such intention, as they expressly require action of specific kind to accomplish a renewal of corporate life. See Acts Nos. 129 and 142, Pub. Acts 1889. We think it unnecessary to discuss the claim that this is a de facto corporation. Eaton v. Walker, 76 Mich. 579 (43 N. W. 638, 6 L. R. A. 102).

The remaining question requiring notice is the claim that, there is no public grievance, and we may add the claim that the action of the relator is inequitable.

We cannot say that there is no public grievance when, the stockholders of a corporation continue to act as such after the limitation prescribed by the Constitution has been reached, thereby usurping powers not belonging to them. The attorney general is expressly authorized (not to say required) to file án information upon his own relation, or upon relation of any private party,—

“ When any association or number of persons shall act as a corporation within this State without being legally incorporated.” 3 Comp. Laws, § 9939, subd. 3.

In a sense there is always a public grievance when corporate powers are being unlawfully exercised, and we are of the opinion that we should not ordinarily question the exercise by the attorney general of the discretion which the law cited confides to him. We do not say that in no case can we refuse judgment of ouster, but it would be a very exceptional case that should lead us to deny such judgment to the State where the infraction of law is clear and undisputed. We do not mean to imply that there is any obligation upon the attorney general under this section to file an information when, in his judgment, there are proper reasons of policy for not doing it, or any obstacle to a refusal to do so when solicited by private persons in the furtherance of their own interests, provided State interests, do not require it. See 32 Cyc. pp. 1432, 1433.

There is nothing in these pleas that, if proved, would constitute a valid defense to the information. What judgment should be rendered may depend upon the proofs taken in the case. 32 Cyc. p. 1434. It follows that the demurrers should be sustained. A period of 30 days is allowed to defendants to file other pleadings in the cause.

Ostrander, Moore, McAlvay, and Brooke, JJ.;; concurred.


author: Ostrander, J.

text:
    SWANTEK v. JARMOSZKI.
    1. Justices op the Peace — Appeal — Pleading — Plea Puis Darrein Continuance — Special Defense.
    The defense, on appeal from justice’s court, that the judgment in the court below was rendered while the justice was absent from the jurisdiction, should not be presented by a plea puisdarrein continuance, but by a special notice of defense.
    2. Same — Certiorari—Appeal—Jurisdiction.
    The circuit court has no jurisdiction to review by certiorari a. justice’s judgment which has been removed by appeal of the opposite party to the circuit court, before the writ of certiorari was issued.
    3. Same — Certiorari—Discretion.
    The circuit court may exercise some discretion in refusing to permit an appeal from justice’s court to toe dismissed by the appellant.
    4. Same — Judgment—Defenses—Record.
    The entry of judgment upon the docket of the justice imports the presence of the justice within the jurisdiction, constitutes the best evidence of such presence, and may not be disputed on appeal.
    Error to Kent; McDonald, J.
    Submitted June 14, 1910.
    (Docket No. 62.)
    Decided September 27, 1910.
    ' Assumpsit by Peter Swantek against Stephan Jarmoszki for work and labor. Plaintiff recovered judgment for an insufficient amount, and appealed to the circuit court. A judgment sustaining defendant’s plea puis darrein continuance, and dismissing the appeal, is reviewed by plaintiff on writ of error.
    Reversed.

      George Hollway, for appellant.

      Hatch & Raymond, for appellee.
   Ostrander, J.

Plaintiff appealed to the circuit court from a judgment in his favor rendered in justice’s court. The return on appeal was made and filed May 19, 1908, and shows a valid judgment rendered May 11, 1908. Thereafter, on June 9, 1908, the attorney for the defendant made an affidavit for a writ of certiorari which was allowed and issued June 10, 1908, and to this writ the justice made a return dated June 30, 1908. The use first made of the return to the writ of certiorari and the effect given to it in the circuit court is indicated by the opinion of this court reported in 159 Mich., at page 99 (123 N. W. 573). The cause, having been remanded, came on for trial of the said appeal on March 8, 1910, at which time defendant filed a plea puis darrein continuance, setting up that after the last continuance of the cause— that is, after January 25, 1909, and on May 5, 1909— said judgment of the justice had been reversed and annulled by the judgment of said circuit court in said certiorari proceedings, which said judgment of the circuit court was in force. It set up also that the judgment was void and the justice lost jurisdiction “to make and return the appeal ” because, after the cause was submitted, on May 8, 1908, and before he decided the case, the justice left the city of Grand Rapids and did not return thereto within the time limited by law for deciding the case, but decided the case ‘ and rendered said judgment ” when in the county of Benzie, in Michigan, beyond his territorial jurisdiction. In support of this plea, and over the objections of the plaintiff, the defendant offered in evidence the return of the justice to the writ of certiorari, the judgment in certiorari, and the testimony of the justice’s clerk. The court dismissed the appeal, finding that the justice had no jurisdiction to render the judgment. The return of the justice of the peace to the writ of certiorari states that he was in fact absent from the city of Grand Rapids, in another county of this State, on the day the judgment was rendered, and that he transmitted his decision, by mail, to the clerk of his court, who entered the same in the docket, which was later signed by the justice. He returns, also, that, after the cause was submitted to him, he announced that he would take four days in which to decide it, and that his letter to his clerk, containing his decision, dated May 11th, reached the clerk on May 12th, and that he did not return to Grand Rapids until more than the four days had elapsed.

The case now presented is not, in its facts, precisely the case considered by this court at the former hearing, in this, that there has since been a judgment rendered in the certiorari proceeding. The practice was, in any event, irregular. The matter set out in the plea puis darrein should have been treated as special matter of defense (People, ex rel. Esper, v. Plank-Road Co., 125 Mich. 366 (84 N. W. 290); Burt v. Wayne Circuit Judges, 90 Mich. 520 (51 N. W. 482); Circuit Court Rule 9, Stevens’ Notes), and the trial should have proceeded upon the issue theretofore joined and the alleged special matter.

The meritorious question was, if not directly, at least practically, determined by tho former opinion of this court. The circuit court became possessed of this cause when the return to the appeal was filed, “the same as if it had been originally commenced in said appellate court, subject to the same rules and regulations.” 1 Comp. Laws, § 918. There was then no judgment of the justice to be affected by any other proceeding. The right to review the judgment of the justice in certiorari proceedings did not exist because there was no judgment to be reviewed. The circuit court had no jurisdiction in certiorari, and this appears, affirmatively, by the record. The judgment in certiorari is therefore void. It is suggested that in a similar case the plaintiff may dismiss his appeal, and the justice’s judgment may be thus revived after the time limited for suing out a statutory writ of certiorari has expired. We apprehend no trouble will ever arise out of such a state of facts. The common-law writ of certiorari issues in proper cases, and the circuit court may also exercise some discretion in refusing to permit an appeal to be dismissed. The law contemplates a trial upon the merits, in some court, in cases like the one before us, and such a trial this defendant may have in the circuit court.

The judgment is reversed, and the record remanded so that a trial may be had.

It is inferred from the course pursued in this case that the matter now twice successfully urged in the circuit court by defendant will again be urged, if it is possible to do so, as special matter of defense, or otherwise, upon the trial of the cause. It is therefore proper to say that the alleged controlling fact upon which defendant relies, namely, that the judgment was rendered by the justice at a time when he was not in the jurisdiction, is not available to defendant on the trial of the appeal. The day on which a justice renders judgment is required to be entered on his docket. The entry, when made, imports his presence within the jurisdiction, as well as the fact and amount of the judgment. As to such occurrences the docket is the best evidence and may not be disputed by him. Weaver v. Lammon, 62 Mich. 366, 368 (28 N. W. 905). The opinion of this court in Toliver v. Brownell, 94 Mich. 577 (54 N. W. 302), emphasizes the rule, but in the conclusion appears to treat the fact of the presence or absence of the justice, on judgment day, one which may be established by parol. We approve the doctrine stated, but not the conclusion which was reached.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    GODA v. MAURER.
    1. Appeal and Error — Directing Verdict — Question op Fact.
    In cases where a verdict has been instructed, the case made by the party ruled against must be taken as true in determining, on error, whether there was anything to be submitted to the jury; and the strength or weakness of the evidence presented by the opposite party need not be considered.
    3. Master and Servant — Assumed Risk —Scappolds— Negligence.
    A common laborer employed to wheel brick, does not assume the risk of negligence in constructing a scaffold built according to the employer’s direction, by a method which was insufficiently strong, although the employé himself aided in the work and observed the method, but had no knowledge of how scaffolding should be constructed.
    Error to Monroe; O’Mealey, J.
    Submitted June 14, 1910.
    (Docket No. 52.)
    Decided September 27, 1910.
    Case by John Goda against John Maurer and Charles Maurer, copartners as Maurer Bros., for personal injuries. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Willis Baldwin and Ira G. Humphrey, for appellant.

      E. B. Gilday and Thornton Dixon, for appellees.
   McAlvay, J.

This was an action for damages for personal injuries received by plaintiff, as he claims, by reason of the negligence of defendants. Defendants were co-partners, engaged in business as contractors and builders, and, at the time plaintiff was injured, were engaged in the construction of a brick building in the city of Monroe. Plaintiff, a common laborer, had worked for defendants prior to his injury for over two months, while they were engaged upon other contracts. On this building his work, that of a common laborer, was wheeling brick. While so employed on the day in question, he was ordered by one of the defendants to assist in building a scaffold in said building, under the direction and in the manner ordered by said defendant, and afterwards was ordered by said defendant to go upon said scaffold, to work in placing brick which were tossed up to him, and while so employed about 30 feet in length of the scaffold gave way, as he claims, because of insufficient nailing, and plaintiff was precipitated about 12 feet to the floor, with the brick upon him, and was severely and probably permanently injured.

After hearing all of the evidence of the parties, the court instructed a verdict in favor of defendants, on the ground that plaintiff had assumed the risk. Judgment was accordingly entered, and plaintiff, upon writ of error, asks for a reversal, upon the ground, principally, that the court erred in instructing a verdict for defendants.

As has been very frequently stated by this court in cases where a verdict has been instructed, the case made by the party ruled against must be taken as true in determining whether there was anything to be submitted to the jury. The strength or weakness of the evidence presented by the opposite party need not be considered.

The evidence of the plaintiff and his witnesses tends to show that he was a common laborer, employed up to the day of the accident in wheeling, brick or other common labor; that on this day he was ordered to assist this defendant in building this scaffold, under his direction and orders and in his presence; that he was ordered by him not to use more than three nails in nailing the support of the scaffold called the “ledger board,” and not to drive them clear up, but to leave sufficient to get the hammer claw under the heads of the nails, so that they could be easily drawn without splitting the boards; that plaintiff followed such instructions ; that this was the first scaffold he had ever built, and he had no knowledge of how scaffolding should be built to be sufficiently strong, and did this work and went upon the scaffold relying upon the judgment and obeying the ordérs of defendants, without any knowledge of its weakness; that this defendant assured plaintiff the scaffold was strong enough to hold an elephant, and he thought that was enough; that a scaffold so nailed, to he used for the purpose this one was used, was not sufficiently nailed, and not safe; and that it fell because this nailing pulled apart and let it down. This brief outline of plaintiff’s case is sufficient to show that there was a case proper to be submitted to the jury. This should have been done by the court under proper instructions. It was error for the court to instruct a verdict for defendants.

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

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


author: Moore, J.

text:
    CHAPMAN v. STRONG.
    1. Highways — Automobiles—Motor Vehicle Law — Negligence —Contributory Negligence.
    Under conflicting claims and evidence of the respective parties, in an action for negligent conduct in operating an automobile, resulting in plaintiff’s horse becoming frightened and overturning his buggy, the question of contributory negligence held to be a question of fact.

      2. Same — New Trial — Weight oe Evidence.
    On motion for a new trial the verdict is held not to be against the weight of the evidence.

      3. Same — Negligence—Directing Verdict.
    Evidence that defendant did not stop his automobile when plaintiff signaled to stop, and that he failed to turn out sufficiently to permit plaintiff to pass, although contradicted by defendant’s witnesses, raises an issue of fact as to the negligence of the defendant.
    4. Trial — Instructions to Jury — Refusal.
    No error is committed in refusing requests to instruct the jury, which are covered by the general charge.
    .5. Same — Special Questions — Statutes.
    It is proper to refuse to submit a special question which does not meet the statutory requirements. 3 Comp. Laws, § 10237.
    6. Same — Cross-Examination.
    The circuit judge did not abuse his discretion in permitting cross-examination of defendant and his witnesses relative to their whereabouts on the day of the injury and the amount of intoxicants used by them.
    Error to Kent; McDonald, J.
    Submitted June 14, 1910.
    (Docket No. 5.)
    Decided September 27, 1910.
    Case by Charles M. Chapman against James M. Strong for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Powers & Eardley, for appellant.

      Myron H. Walker, for appellee.

       As to duty and liability of operator of automobile with respect to horses encountered on highways, see note to Mahoney v. Maxfield (Minn.), 14 L. R. A. (N. S.) 251.
      As to law governing automobiles generally, see note to Christy v. Elliott (Ill.), 1 L. R. A. (N. S.) 215.

   Moore, J.

Plaintiff, in July, 1908, was driving his horse down a long hill, when he met an automobile driven by the defendant. His horse became frightened. The buggy was overturned. The plaintiff was hurt. Claiming it was the negligence of defendant which caused the injury, the plaintiff sued him. The case was tried before a jury. A judgment of $550 was recovered by the plaintiff, and the case is brought here by writ of error.

In view of the questions raised, the charge of the court becomes important. After stating the claims of the parties, the jury was instructed:

“ The burden of proof is on the plaintiff to establish by a fair preponderance of the evidence every fact necessary for his recovery in this action. Before he can recover he must satisfy you by a fair preponderance of the evidence of two things: First, that the defendant was negligent, and that such negligence was the proximate cause of the injury which the plaintiff received. Second, that he himself was not guilty of negligence which contributed in any degree to the injury. Unless the plaintiff has established both of these propositions by a fair preponderance of the evidence, he cannot recover.
“When an injury is received by one person which is in part due to the negligence of another person, but it also appears that the person injured contributed to the injury in some degree by his own negligence, the law does not undertake to compare the relative negligence of each, but lays down the rule that, if the person injured contributed in any degree to the injury by his own negligence, he cannot recover, even though the other person was more negligent. For that reason the plaintiff in this case must show that the injury was caused by the negligence of the defendant, and that his own negligence did not contribute thereto.
“Negligence is defined as a failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. It is sometimes defined as a failure to perform a duty implied by law which one person owes to another person; it is in another sense the want of ordinary care. Ordinary care is such care as an ordinarily prudent person would take under the same or like circumstances. An automobile has the same right upon our public roads as carriages and other conveyances, but their construction and operation is such as to make them objects of fright to horses and other animals. To insure the safety of travelers and those who have to use the horse as a means of conveyance upon the highways, our legislature has defined the duties of a man who uses the automobile, and I will read to you some of those sections of the laws of 1905 and 1907 which have any application to this case. Section 14 provides :
“ ‘Upon approaching a person walking in the roadway of a public highway, or a horse or horses, or other draft animals, being ridden, led, or driven thereon, a person operating a motor vehicle shall slow down to a speed not exceeding ten miles per hour and give reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person or animal, and in case of a horse, or horses, or other draft animals, to prevent frightening the same.’ [Act No. 196, Pub. Acts 1905.]
“ Section 15, which has more particular application to the case we have before us, reads as follows:
“ ‘Any person operating a motor vehicle shall at request or on signal, from a person riding, leading, or driving a horse or horses, or other draft animals, guide such motor vehicle to the right of the wrought or traveled portion of the highway, and immediately bring such motor vehicle to a stop, and if requested, shall cause the motor of such vehiole to cease running so long as shall be reasonably necessary to prevent accident, and insure the safety of others. And it shall also be the duty of any male chauffeur or driver of any motor vehicle, and other male occupants thereof, over the age of fifteen years, while passing any horse or horses or other draft animals which appear badly frightened, or upon the request of the person in charge of and driving such horse or horses or other draft animals, to give such personal assistance as would be reasonable to insure the safety of all persons concerned to prevent accident.’ [Act No. 196, Pub. Acts 1905.]
“ Section 16 reads as follows:
“ ‘ Whenever a person operating a motor vehicle shall meet on a. highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, and there being no occasion to stop as above provided, the person operating such motor vehicle shall seasonably turn the same to the right of the center of the traveled portion of the highway; while the person approaching' shall likewise turn from the center of the traveled portion of the-highway so as to pass the motor vehicle on the opposite side of the center of the highway to which the motor vehicle has been turned. And any person so operating any motor vehicle shall, at the intersection of a public highway, keep to the right of the intersection of the centers of such highways, when turning to the right and pass to the right of such intersection when turning to the left.’ [Act No. 196, Pub. Acts 1905.]
“ That has not so much application to this case as section 15, which I have referred to in regard to signals and the warning to automobiles.
“Now the plaintiff claims that the defendant that day on the highway near Sparta disregarded and neglected the duties imposed upon him by the law, which I have just read, that is, that he didn’t stop his machine when signaled so to do; that he did not guide it to the right side of the traveled portion of the highway and give the plaintiff an opportunity to pass safely.
“ If you find that he was thus negligent, and that such negligence caused plaintiff’s injury, the plaintiff would be entitled to recover, providing he himself was not guilty of any negligence which contributed to the injury. But independent of these acts of the legislature which I have just read to you, the law imposes the duty upon the defendant of using reasonable care and caution in managing his automobile upon the public road. He is held to an exercise of ordinary and reasonable care in the management of his automobile so as to save others from injury.
“ Now, then, if, in applying these rules to this case, you find that plaintiff’s claim is true, namely, that his horse became frightened at defendant’s automobile, and that he and his companion Rhodes signaled and called to the defendant, and that defendant saw or should have seen and heard them, but did not guide his automobile to the right side of the road and stop it and give plaintiff an opportunity to pass, he, the defendant, would be guilty of negligence, and if such negligence was the proximate cause, that is, the cause which produced the injury, the plaintiff would be entitled to recovery, provided, of course, as I have stated, that he himself was not guilty of any negligence that contributed to the injury. If the plaintiff has failed to show by a fair preponderance of evidence that the defendant was negligent, and that such negligence was the proximate cause of the injury — I say if the plaintiff has failed to show that, then you need not give the case further consideration, and your verdict should be for defendant.
“ But if you find that the defendant was guilty of negligence that caused the injury, you will then consider the second question, namely, Was the plaintiff himself guilty of any negligence that contributed to the injury ? The plaintiff is held to the exercise of ordinary care for his own protection, such care as an ordinarily prudent man would use for his own protection under the same circumstances. This care should be commensurate with the apparent danger. Did the plaintiff, Chapman, at the time of this accident use ordinary care in protecting himself against danger ? In determining this fact you must consider the nature and disposition of the horse as shown by the evidence and the plaintiff’s knowledge of it. Also the danger as it appeared to him at the time, the character of the hill and road, and the appearance of the automobile, are all important matters for you to consider in determining whether the plaintiff used ordinary care in avoiding every apparent danger.
“ If the plaintiff’s horse was fractious, and plaintiff knew it, and if he believed that defendant would exercise ordinary care in managing his automobile, and yet danger to him was apparent, he would be negligent in driving toward'the automobile under such circumstances. But plaintiff had a right to drive down the hill, and that act would not be negligent, providing he exercised ordinary care for his own safety in doing so. The plaintiff had a right to assume that the defendant would obey the law and stop his machine when requested, or when he saw evidence of fright in the horse, and so plaintiff had a right to continue down the hill if he believed he could safely do so by the exercise of ordinary care.
“These are questions for you to determine from the evidence. Did the plaintiff use ordinary care in protecting himself from apparent danger and dangers as they appeared to him under the circumstances at that time ? As I have stated, if you find that the plaintiff was himself guilty of any negligent act, which in any degree contributed to his injury, he could not recover, and your verdict should be for the defendant. I also said that if the defendant was guilty of negligence, and such negligence was the proximate cause of the injury, and the plaintiff was free from negligence, then your verdict should be for the plaintiff.”
Three special questions were submitted to the jury, which were .answered by them as follows:
“(1) Was plaintiff entirely free from negligence even the slightest at time the accident occurred ?
“A. Yes.
“ (2) Could the plaintiff by the exercise of ordinary care have avoided the accident ?
“A. No.
“(3) How far was the plaintiff from defendant when defendant first discovered the horse was frightened ?
“ A. About 60 feet.”

A motion was made for a new trial, which motion was overruled.

The errors relied upon are stated by counsel to be the following:

“(1) The court erred in denying defendant’s motion to direct the verdict for defendant on the ground that the testimony showed plaintiff guilty of contributory negligence which contributed to the injury and precluded him from recovering damages therefor.
“(2) The said judgment and verdict is erroneous, because the evidence shows the plaintiff guilty of contributory negligence and precludes his recovery.
“(3) That the said judgment and verdict is erroneous in that it is against the weight of evidence in the case.
“(4) That said judgment and verdict is erroneous, because there is no evidence showing negligence on the part of the defendant.
“(5) The court erred in refusing to instruct the jury as requested by the defendant in his fourth request.
“(6) The court erred in refusing to instruct the jury as instructed by the defendant in his sixth request.
“(7) The court erred in instructing the jury that the plaintiff was entitled to damages for the loss of his time.
“ (8) The court erred in refusing to submit to the jury special question No. 4 as requested by the defendant.
“ (9) The court erred in allowing counsel for plaintiff, against defendant’s objection, to ask the witnesses Strong, Noble, and Ryan as to their whereabouts and as to whether or not they were drinking and intoxicated on the day of the accident, subsequent to the time it occurred.
“ (10) The court erred in saying in the presence of the jury, while defendant’s counsel was asking the plaintiff on cross-examination this question:
‘Q. You thought and believed Mr. Strong should have stopped, and you did not have to stop, is that it ?
“ ‘ The Court: What difference does that make ?
‘Mr. Powers: It is bearing on his negligence.
‘The Court: I don’t see how it has any bearing on this case at all, and I will sustain the objection. (Exception taken by Mr. Eardley.) ’
“ These remarks of the court were prejudicial and led the jury to believe that it would not be the duty of the plaintiff to stop, even if he knew his safety demanded it.
“ (11) Because the verdict and judgment is the result of bias and prejudice on the part of the jurors against owners of automobiles.”

1 and 2 may be considered together. They are based upon the claim. We quote from the brief of counsel:

“ Plaintiff did not know, as he admits, whether defendant saw him signal or not. He knew his horse was afraid and knew he would have trouble, but still he drove on toward the oncoming automobile in a dangerous place, where the road is only 15 to 20 feet wide, and an embankment on the side of the road. The plaintiff did nothing whatever to apprise the defendant of the frightened condition of his horse. We submit that he should ask Mr. Rhodes to help him in controlling the horse, or that he should have had Mr. Rhodes get out and warn defendant, or that he should have stood up or in some way attracted the attention of the defendant. As a matter of fact, the signal given was no signal at all, but he drove on because he wanted the horse to know that he could control her. We insist that it was gross negligence in the plaintiff to drive rapidly down the hill knowing the actual danger, and this, too, when he did not know whether the defendant saw or heard the signal, and when there was nothing in the action of the horse to indicate to him that it was frightened.”

This statement is a one-sided one of what the record shows. There is testimony to the effect that, while the horse was a spirited one, it could be controlled; that plaintiff did not see the automobile until he had started down the hill; that he could not well turn around; that there was room to pass; that plaintiff would have been successful in passing if defendant had turned to the right and given part of the highway; and that the defendant paid no attention to the plaintiff. Upon the record made, the question of the contributory negligence of plaintiff could not be decided as a legal one.

3. In disposing of the motion for a new trial, the judge held that the verdict was not contrary to the weight of the evidence. After reading the record, we are satisfied he was right about that phase of the case.

4. There is an abundance of evidence in the record that defendant did not stop when signaled to do so, and that he failed to give a share of the road. While the testimony was contradictory, it was not so conclusive that it could be said as a matter of law that defendant was not negligent.

5 and 6. So far as the requests mentioned were good law they were fully covered by the general charge.

7. The record discloses in great detail what plaintiff was able to do before the accident, what he was able to do afterwards, and what he did do. It cannot be said, in the absence of any request or any intimation to the court, that what he said about damages for loss of time was likely to be misunderstood, or that it was misunderstood. The amount of the verdict would not indicate that the jury was misled.

Question No. 4 was not so framed as to meet the requirements of the statute.

Mr. Strong was the defendant; Mr. Noble and Mr. Ryan were with him in the automobile. Each of them as a witness had given his version of the occurrence. The trial judge did not abuse the discretion possessed by him in allowing the cross-examination of these witnesses about which complaint is made.

It is not necessary to discuss the other assignments of error. The case was carefully tried.

Judgment is affirmed.

Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred.