text:
    VILLAGE OF RED JACKET v. PINTON.

    Adverse Possession —Street Line — Evidence—Constructive Notice.
    When defendant purchased his lot, in 1873, a fence ran a zigzag course in front of the lot, and éncroached on the street line. The street was a mere roadway, such as a small population and primitive surroundings required, and apparently it was not considered necessary that any proprietor should fence with regard to the line. In 1890 defendant moved a building onto the lot, and located it so that it encroached on the street. At various times he admitted the encroachment, and said he would move the building back when his neighbors should move theirs. In 1896 he built the wall of a new building flush with the old, but, on being informed of the true line, and ordered to tear down the wall, did so, and placed it on the true line. In 1898 the old building burned, and his attempt to rebuild on the same line was sought to be enjoined by the village. Held, that defendant’s possession was not of such character, and under such circumstances, as would warrant the conclusion that the village authorities had notice of a claim of adverse possession, and acquiesced therein.
    Appeal from Houghton; Haire, J., presiding.
    Submitted November 13, 1900.
    Decided April 2, 1901.
    Bill by the village of Red Jacket against Joseph Pintón to restrain the erection of a building encroaching upon the street. From a decree dismissing the bill, complainant appeals.
    Reversed.

      W. J. McDonald {J. T. Finnegan, of counsel), for complainant.

      Dunstan & Hanchette, for defendant.

       Rehearing denied July 19, 1901.

   Hooker, J.

Pine street, in the village of Red Jacket, runs east and west, and the defendant’s premises lie upon the south side of the street. In 1890, after occupation of 23 years, the defendant erected a foundation wall and building, which are shown by the proof to encroach about six feet upon the street. In 1898 or 1899 this building was partially destroyed by fire, and the bill in this cause was filed by the village authorities to restrain the defendant from rebuilding it, or any portion of it, upon the land within the street line as surveyed. The defendant relies upon title by adverse possession, and the learned circuit judge, being of the opinion that he had established that defense, decreed that the injunction be dissolved, with costs to be taxed, and that he recover against the complainant the amount of damages sustained by reason of the wrongful suing out of the injunction, and that it be referred to a commissioner to take proofs relative to said damages, and report the same, with his conclusions, to the court.

It is conceded that the defendant’s building encroaches upon Pine street 5.16 feet at one corner and 2.78 feet at the other corner. Defendant’s former building was erected in 1890. Prior to that no other building was upon it, except an old log cabin. This cabin was built by a squatter, and either he or some one else — it does not appear who — built a fence around it. The place was new, and the street full of stumps. Defendant testified, “Between my house and the center of this road the condition of the land was rough, with stumps.” It is evident that no one paid any particular atténtion to the true boundaries of the street in building their fences. As is common in new places, each one put up his fence as he chose, according to the size of the garden lot he wished to have. This fence was not regular, but zigzag in shape. One Willmes, a fitness for the defendant, testified that “twenty-two years ago the fences were zigzag all over.” Another witness testified that “twenty-three or twenty-four years ago the fence was an old one, made out of boards and logs, so low that a man could step over it easily.” No one who had built a fence or building into the street built it upon the same line; some being in the street farther than others, while still others built inside the correct line. Defendant did not know whether the fence was on the line, and did not concern himself about it. There is no reason for his belief that it was a line fence, and I think it evident that he had none. In 1896 he began to lay the foundation for a blacksmith shop on the line of the other building, which he moved upon the land in 1890. The village authorities notified him that it encroached upon the street, and showed him where the true line was. He evidently recognized the correctness of the line as then pointed out to him, complied with the notice of the authorities, and placed the front wall of his shop on the true line. A witness who occupied the lot in 1873, and who sold the house standing thereon to defendant, testified:

“ In 1873 there was an old fence, made out of brush, boards, and rails, in front of that property bordering the street. * * * I have no knowledge myself of how that fence came there at all. It was a fence all along there. Some was in and some out; a kind of zigzag fence. The country was rather new there at that time. There was a street there right in the middle; that is all; and grass all around. There was some sidewalks in front of some of the properties. They put them there themselves; but there was no sidewalk in front of that lot. The street was simply used in the middle for teams to pass up and down. * * * The house that I bought stood back on the lot over 15 feet from the roadway. It was a little shanty.”

There was other testimony of a similar character.

When defendant’s building was destroyed by fire, and he was rebuilding, the village authorities notified him to place his new building upon the line. Upon his refusal this bill was filed to enjoin the encroachment upon the street. Defendant recognized that he encroached upon the street, and said that his neighbors were on the street just as much as he was. It is in evidence that there was a general understanding between those whose buildings encroached upon the street and the authorities that when they rebuilt they should build upon the true line. In 1893 defendant admitted to a member of the street committee, Mr. Johnson, that his building was over the line, and said he would move it back when the rest did.

I think this is a case where those settling upon the street at an early day built their buildings and their fences without any regard to the line, or without any right to believe that they were within the line of the street. There was then only such a roadway as the scarcity of population and primitive surroundings required. Neither the public authorities nor the lot owners considered it necessary that the fences erected should be upon the line, and each was left to build as he chose. It is evident from this record that, as soon as it became necessary to raise the question, all those residing upon the street, who had built regardless of the true line, recognized the correct line, and were permitted to retain possession of their encroachments until they rebuilt. The structures were evidently of a somewhat temporary character.

When one seeks to obtain land against the public by adverse possession of a part of a street, he should make out a clear case, and the possession should be of such a character, and under such circumstances, as to warrant the conclusion that the municipal authorities must be held chargeable with notice of the adverse possession and with acquiescence therein. I do not think such a case has been made out by this record, and the decree should be reversed, and decree entered in this court for complainant.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J. Grant, J.

license: Public Domain

text:
    BROWN v. SNIDER.
    1. Sales — Orders for Goods — Separate Contracts —Statute of Frauds — Question for Jury.
    Where the testimony was conflicting as to whether or not two separate orders for goods, both bearing the same date, but one specifying an immediate and the other a future delivery, were meant to constitute a single contract, so that acceptance under the first would take the whole out of the statute of frauds, the question was properly left to the jury.
    2. Same — Cancellation of Order.
    But, in any event, it appearing that the whole order was canceled before any of the goods were delivered, the vendor could not rely on a subsequent acceptance under the first order as reviving the transaction and taking the whole out of the statute.
    Grant, J., dissenting.
    Error to Mecosta; Palmer, J.
    Submitted December 4, 1900.
    Decided April 2, 1901.

      Assumpsit by Frank E. Brown and John Sehler,. copartners as Brown & Sehler, against Jacob Snider, for goods bargained and sold. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Charles IS. ■ Ward and C. H. Thrall, for appellants:
    The transaction should have been held to constitute but a single contract, as a matter of law. Benj. Sales (Bennett’s Ed.), §§ 134, 141, 167, 168, 173; Blackb. Sales, 17; 21 Am. & Eng. Enc. Law, 545; Baldey v. Parker, 2 Barn. & C. 37; Elliott v. Thomas, 3 Mees. & W. 170; Scott v. Railway Co., 12 Mees. & W. 33; Bigg v. Whisking, 14 C. B. 195; Gilman v. Hill, 36 N. H. 318; Allard v. Greasert, 61 N. Y. 1; Rickey v. Tenbroeck, 63 Mo. 563; Mills v. Hunt, 17 Wend. 333; Damon v. Osborn, 1 Pick. 476 (11 Am. Dec. 229); Farmer v. Gray, 16 Neb. 401; Gault v. Brown, 48 N. H. 183; Pope v. Porter, 102 N. Y. 366 (7 N. E. 304); Cherry Valley Iron Works v. Florence Iron River Co., 12 C. C. A. 306, 64 Fed. 569; Norrington v. Wright, 115 U. S. 203, 6 Sup. Ct. 12; Cleveland Rolling-Mill Co. v. Rhodes, 121 U. S. 255, 7 Sup. Ot. 882.

      Frank Dumon, for appellee.
   Moore, J.

The plaintiffs live in Grand Rapids, and are wholesale dealers in robes, blankets, and harnesses. The defendant resides at Remus, and is a retailer of the same line of goods. On the 31st day -of May, 1899, the agent of plaintiffs visited the defendant at his place of business, having with him samples of his goods, from which defendant made selections of goods which he orally agreed to purchase. The agent made in triplicate two lists of the goods ordered, one of which he gave to defendant, and one was forwarded to the plaintiffs. The heading.of the first of these lists reads as follows:

“Date, May 31st, ’99. Brown & Sehler,
“Salesman, D. D. Grand Rapids, Mich.
“ Sold to J. Snider.
“Ship to Remus, via D., G. R. & W., at once.”
Then followed a list of goods amounting to $29.62.
The heading of the other list reads as follows:
“Date, May 31st, ’99. Brown & Sehler,
“Salesman, D. D. Grand Rapids, Mich.
“ Sold to Jake Snider.
“ Ship to Remus, Oct. 1st, ’99.”

Then followed a list of goods amounting to $95.05.

Both of these lists were signed by Brown & Sehler, per D. D., but neither of them was signed by defendant.

On the following day the defendant'wrote the plaintiffs as follows:

“Remus, Mich., June 1, 1899.
“Mr. Brown Sehler, Esq.:
“Please cancel my whole order given to Mr. D. Drummond, as I have found out he had been to Mr. Huber and tried to sell him some goods, and as I do not want to trade with you if Huber & Farwell are your customers. Hear you have taken care of Huber & Farwell first. So please cancel my whole order, as I won’t accept it under circumstances, and oblige, Respectfully,
“Jacob Snider.”

To which the plaintiffs replied, under date of June 3d, as follows:

“Jacob Snider,
“Remus, Mich.
“Dear Sir: Replying to your favor of the 1st, will say that our Mr. Drummond did not sell Huber & Farwell anything we sell you. You do not buy light harness of us, and he sold them some light harness, and that is all he sold them. If. you bought harness of us, we would give you the exclusive sale in the town; but, as you do not, you could not ask us not to sell any one else in the town. We will ship your goods.
“Yours truly,
“Brown & Sehler.”

It further appears from the record that on the 2d day of’June, 1899, the plaintiffs shipped to the defendant the goods for immediate delivery, and sent to him by mail an invoice of the same. The writer of the letter of June 3d did not know the goods had been shipped when he wrote the letter. When these goods arrived at Remus, they were received and accepted by the defendant, and subsequently paid for; he paying the plaintiffs on the 18th day of August, 1899, their entire account, which included the goods shipped June 2d. On the 1st day of September, 1899, the defendant wrote the plaintiffs as follows:

“Mr. Brown & Sehler: Have you canceled my order for horse blankets? If not, then cancel same, as I will be unable to accept them, and save further trouble, and oblige, Respectfully,
“Jacob Snider.”

This letter was received by plaintiffs on the morning of the 3d day of September. On the 1st day of September, 1899, the plaintiffs shipped to the defendant, at Remus, the goods specified in the second list, which consisted of horse blankets, and mailed him an invoice thereof. The defendant refused to receive the goods, and on the 16th day of September wrote the plaintiffs as follows:

“ Brown & Sehler,
“ Grand Bapids, Mich.
“Gentlemen: Your bill of horse blankets I strictly refuse, as I have notified in time; lies here subject to my cancellation, and subject to your disposal. Please look after them, and oblige,
“ Yours respectfully,
“Jacob Snider.”

Other correspondence followed, and finally this suit was brought. A verdict was rendered in favor of the defendant. The plaintiffs have brought the case here by writ of error.

It is the theory of the plaintiffs that there was in fact but one transaction between the parties, that the orders constituted but one contract, that such contract was partly performed when the defendant received and accepted the goods which were for immediate shipment, and that the case was taken out of the statute of frauds by the act of the defendant in accepting and receiving such goods, and that when the plaintiffs had set apart the remainder of the goods, and delivered them to the carrier, consigned to the defendant, and the term of credit had expired, their right of action was complete; and they asked the court to direct a verdict in their favor for the amount of the claim.

On the part of the defendant it is claimed that the orders, although given at the same time, were distinct and separate contracts; that the one was an order for goods to the amount of $29.62, to be delivered at once, and that this order was not affected by the statute of frauds; that the second order was for goods to the amount of $95.05, to be delivered several months later, and not until after the terms of credit given on the first order had expired; that, upon the undisputed facts of the case, the last order was void under the statute of frauds, and was not taken out of the operation of the statute of frauds by reason of the fact that the defendant received and paid for the goods specified in the order for immediate delivery; and he asked that the court direct a verdict in his favor. The court denied the requests of counsel for the respective parties, and submitted the case to the jury upon the theory advanced by each, and explained to them in his charge the claims of the respective parties.

It is the claim of the plaintiffs that, under the undisputed facts in the case, the transaction was one entire contract, and the court should have so instructed the jury; citing a good many authorities. The authorities cited undoubtedly establish the proposition that because a separate price was agreed upon for each article of merchandise, or because some of the articles purchased were to be delivered at one time and some at another, it would not follow that the transaction was not a single transaction, constituting but one contract. In this case, however, we think there is a difference of testimony as to what the transaction was, which made it a question for the jury as to whether on May 31st but one contract was made. Marcott v. Railroad Co., 47 Mich. 1 (10 N. W. 53); Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645), and the many cases there cited.

There is another view of the case which I think would preclude a recovery by the plaintiffs. If what occurred on May 31st was an entire transaction, it was void because of the statute of frauds. It was, at most, on the part of the defendant, an offer to buy the goods, which might be revoked at any time before he accepted them. Smith v. Brennan, 62 Mich. 349 (28 N. W. 892, 4 Am. St. Rep. 867); McCormick Harvesting-Machine Co. v. Cusack, 116 Mich. 647 (74 N. W. 1005). Before any of the goods were received by the defendant, he wrote plaintiffs, canceling the entire order. He never renewed the order, or agreed to accept the second list of goods. It is true, he accepted the goods which were shipped him on the 2d of June, and paid for them; but at no time after his letter of June 1st did he give plaintiffs to understand he would accept the balance of the goods, but, on the contrary, he again (September 1st) wrote them he would not accept the goods which were to be shipped October 1st. I think the judge would have been justified in directing a verdict for defendant. Instead of doing so, he submitted the question to the jury, who found against the claim of plaintiffs.

Judgment is affirmed.

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

Grant, J.

(dissenting). There is no dispute upon the

facts in this case. Both parties agree as to what took place at the date of the sale. There was but one transaction, and one order. The mere fact that the order was taken on different pieces of paper is of no more significance than as though the whole order was placed upon one piece, with a designation that the goods be shipped at different times. That defendant regarded it as one transaction is evident from his letter, in which he says, “Cancel my whole order.” There is no dispute, and the question became one of law for the court. I think, under the authorities, there was but one order, and that the acceptance and payment of the goods ordered shipped immediately, took the case out of the statute of frauds.

The second point in my Brother’s opinion is not raised in the briefs of counsel. We have not, therefore, the benefit of an argument upon it. I cannot concur, however, in my Brother’s conclusion. Defendant canceled his entire order by letter' of June 1st. Had he stood upon that, plaintiffs could not recover. But plaintiffs replied, explaining the situation, and notified defendant that they would ship the goods. Both letters treated the transaction as one, and referred to all the goods ordered. The first goods were shipped and accepted. It was not necessary to renew the order. The explanation appeared to be satisfactory to defendant, and his acceptance of the goods first shipped was a ratification of the original contract, and a notification to plaintiffs that their explanation was satisfactory.

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


author: Moore, J.

text:
    McCRATH v. MYERS.
    1. Mortgages — Conditions—Breach—Discharge.
    Where a purchase-money mortgage provided that it should be discharged if the vendor should fail during his lifetime to convey or cause to be conveyed to the vendee a perfect title, free from all incumbrances, specifying particularly an outstanding interest which he was to obtain, together with an incident claim for rents and profits, the failure to secure a release of such claim for rents and profits, and of a mortgage which the vendor had given when he bought the land, some 38 years before his death, was a breach of the condition of the mortgage from the vendee, and discharged the same.
    3. Same — Maturity—Limitations.
    It cannot be presumed that the statute of limitations has run against a mortgage, even after the lapse of a long term of years, in the absence of proof as to when the same matured.
    Appeal from Kent; Wolcott, J.
    Submitted January 9, 1901.
    Decided April 2, 1901.
    Bill by John W. McCratb, administrator of the estate of David Haynes, deceased, against William H. Myers and William H. Myers, Jr., to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Maher & Salsbury, for complainant.

      John E. More, for defendants
   Moore, J.

In 1890 Daniel R. Slocum, administrator of the estate of David Haynes, deceased, filed this bill in chancery to foreclose a mortgage made by defendant William H. Myers in July, 1870. Mr. Slocum after-wards died, and in April, 1898, Mr. McCrath was substituted as complainant herein. In March, 1900, the bill of complaint was dismissed. From the decree the complainant has appealed. A reference to the accompanying plat will help to explain the situation. In July, 1870, David Haynes was the owner of an undivided five-sixths interest of lots 1 and 2 in section 27 in township 9 N., of range 10 W. His daughter was the owner of the other undivided one-sixth interest. The conveyance to Mr. Haynes was of lots 1 and 2 of said section, containing 79 acres, more or less. The record discloses that the government survey of these lots was made in 1835 or 1836. Mr. Myers testified that as early as 1847 inside the meandered line much of the land had not been covered with water for many years; that adjoining lot No. 1, within the limits of the N. W. of section 27, was a large quantity of land covered with timber, mostly oak, from 18 to 30 inches in diameter. The record also shows that when Mr. Haynes obtained title to some of the land from Charles Knapp, in 1839, he gave him a mortgage for part of the purchase price, which in July, 1870, was undischarged of record.

Mr. Myers desired to buy of Mr. Haynes all of the land on the N. W. \ of section 27, which he claims he and Mr. Haynes estimated to be 120 acres, and that Mr. Haynes undertook to make a good title not only to lots 1 and 2, but to all of the land on the N. W. of section 27, estimated by them to be 120 acres. July 8, 1870, the parties met at the office of Judge Champlin for the purpose of having the- necessary papers drawn. They had with them an abstract of title, and the situation of the title was talked over. Judge Champlin testified, against the objection of counsel, in part, as follows, about the transaction:

“The parties stated to me at that time that Mr. Haynes was selling the northwest fractional quarter; that his deed from his wife did not include anything but lots 1 and 2, which described them according to their fractions; together they amounted to 79 acres,— the fractions. But Mr. Haynes stated, and Mr. Myers, also, that he was purchasing all the land there was on that quarter; and the question came up as to the title, — how it stood at that time. Mr. Haynes claimed that he would obtain title from the United States government to all the land on that section, which he thought and which he said would amount to 120 acres, and that he would sell 120 acres, and make a good title to it. They had also there a couple of deeds from some of the heirs of Eliza Haynes. It was talked there were six heirs to that property, and they had a couple of deeds there. He had gone to work, after his wife died, to get the titles from his children; the land formerly having been in David Haynes, and he had deeded it so it came around to his wife. Haynes had deeded it to Stinson, and Stinson deeded it to his wife, and she died; and that left the title in the heirs to lots 1 and 2, and soon after her death he undertook to get the title from the children. December 18th, it seems, he caused some deeds to be drawn up, which were not executed until later. Those deeds from his children all bore the same date, — December 18th. At that time they had in the office a quitclaim deed from Dorothy S. Hill, Adelia H. McCollier, Belmont P. Haynes, and Sophronia, his wife; and, in looking at that deed, I discovered that the premises described were simply lots Nos. 1 and 2, section 27, township No. 9 north, range 10 west, containing 79 acres, more or less. This deed was not executed until later than the date of it. * * * He had another deed there, from Alfred B. Haynes, Augusta, his wife, and Henrietta Dean. As I understood it, Alfred was his son, and Henrietta Dean was a daughter of Eliza Haynes. This •contained the same description of those lots 1 and 2, containing 79 acres, more or less. It was acknowledged the 14th day of January, 1869, and recorded the 8th day of July, 1870, — the day the deed was drawn.
“Q. I will ask you whether this deed was presented to you at that time, — deed from Knapp to Haynes ?
“A. I think Mr. Haynes had this deed at that time. This was a deed of lots 1 and 2, section 27. (The deeds and abstract were offered in evidence.)
“Mr. Maher: I make objection to the deeds and the abstract,- — -that they relate to transactions preceding the making of this mortgage, and are incompetent for that reason.
“A. (continuing). Mr. Myers stated to Mr. Haynes that he would not pay him $5,000 for 79 acres of land, as described in those two deeds, and, if he paid him $5,000, he wanted a clear, straight title from the government of the balance to make up the 120, which Mr. Haynes said he would do. Then it was determined that he would make him a conveyance of that 120 acres of the northwest fractional quarter for the consideration of $5,000, and $1,000 should be retained until certain conditions, which they had talked at that time, were performed; that, besides obtaining the title to the quantity of land over the 79 acres up to 120, the further condition was that he should obtain Marion’s interest by proper deed of conveyance to Mr. Myers, and acquittance of any claim that she had or might have to the rents and profits or her share of the use of the land as one of the heirs, and a discharge of the Knapp mortgage of record. He requested me to draw a mortgage embodying those conditions, which I did. For that $1,000 he would not give any personal obligation; he was to give simply a mortgage upon the land, without any note or bond. * * * Haynes said he gave the mortgage as shown on the abstract there, and never had paid it, — never had paid anything on it. There was nothing said about when the mortgage matured, that I have any recollection of, but it was a time mortgage. It was given for the purchase money of the property; but he would pay it and cause it to be discharged of record, so that the title would be unincumbered upon the record and clear. ”

Judge Champlin also testified that part of the $4,000-was made up of one note of $300 and one of $500, neither of which was negotiable, and that those notes were left with Judge Champlin, not to be delivered to Mr. Haynes until he had procured a deed from his daughter of the one-sixth interest. As a result of the talk between the-parties, Judge Champlin drew a warranty deed running-from Mr. Haynes to Mr. Myers, reciting the consideration to be $5,000, conveying lots 1 and 2, section 27, township-9 N., of range 10 W., being the N. W. fractional quarter of said section, containing 120 acres of land. At the same time the mortgage which it is sought in this proceeding to foreclose was given. Those parts of the mortgage material to this discussion read as follows:

Whereas, as David Haynes, of Courtland, in the-county of Kent and State of Michigan, has this day conveyed to William H. Myers, of the same place, by warranty deed, all of the following described lots or parcels of land, situated, lying, and being in the town, county, and State aforesaid, known and described as follows, viz. :• Lots numbered one (1) and two (2) in section twenty-seven (27) in township number nine (9) north, of range-number ten (10) west, being the northwest fractional quarter of said section, for the consideration of five-thousand dollars;
“And whereas, the said David Haynes has agreed to-obtain and convey or cause to be obtained and conveyed to the said William H. Myers, his heirs or assigns, a good, sure, perfect, and indefeasible title in fee simple of said real estate, free and clear of all incumbrances;
“And whereas, a daughter of said David Haynes, named Marion (formerly Marion Stinson), is an heir at law of Eliza Haynes, deceased, and as such is the owner-of and entitled to one undivided one-sixth of the real estate above described, which undivided one-sixth aforesaid of' said real estate the said David Haynes has agreed to cause-to be conveyed to the said William H. Myers, his heirs or assigns, in consideration of the purchase price aforesaid, without costs or expenses to him, said Myers, his heirs or assigns, and also to save harmless and indemnify said Myers, his heirs and assigns, against any and all claims of said Marion now or hereafter to be made for any share-of the profits made on said premises, or for any claim for the use thereof, and for all costs and expenses on account thereof which he may be put to or suffer;
“And whereas, it has been and is hereby mutually agreed that the sum of one thousand dollars, parcel of the purchase price aforesaid, shall be retained and kept back by said Myers until the said Haynes makes or causes to be made to the said Myers, his heirs or assigns, a perfect title in fee simple of said lands, free and clear from all incumbrance, and especially the undivided one-sixth owned by said Marion as heir at law aforesaid, and until full acquittance shall be obtained from her, her executors, administrators, heirs, or assigns, for any and all claims of any share of the profits made on said premises, and for all claims for the use thereof, up to the time of such conveyance of her interest to said Myers, his heirs or assigns, until the conveyance to him, his heirs and assigns, of the said Marion’s interest in said land, and against any claim she may make as aforesaid, and all costs and expenses on account thereof;
“And it is further mutually agreed that, in case the said David Haynes shall die before perfecting said title as aforesaid, then on the happening of that event the said William H. Myers, his heirs, representatives, or assigns, shall be fully discharged from all liabilities to pay said sum of one thousand dollars, or any part thereof, and this mortgage shall cease and be null and void;
“And whereas, it has been agreed that, subject to the foregoing recited agreement, the payment of said sum and interest shall be secured on said premises, to become due and payable when the foregoing agreements set forth in the foregoing recitals are fully performed and complied with by said David Haynes, but in no event sooner than ten years from the date hereof, should such title be perfected and acquittance made during the lifetime of said David Haynes, and sooner than that time;
‘Noiv, therefore, this indenture witnesseth that William H. Myers, party of the first part, for and in consideration of the sum of one thousand dollars to him in hand paid by David Haynes, party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, and sold, and by these presents does grant, bargain, and sell, unto the said party of the second part, forever, all those certain pieces or parcels of land situated, lying, and being in the town of Courtland, county of Kent, and State of Michigan, known and described as follows: Lots one (1) and two (2) in section twenty-seven (27) in township nine (9) north, of range ten (10) west, being the northwest fractional quarter of said section, containing one hundred and twenty acres of land, — together with the hereditaments and appurtenances thereunto belonging or in any wise appertaining; to have and to hold the above-bargained premises unto the said party of the second part, his heirs and assigns, forever: Provided, always, and these presents are upon these express conditions, that the said party of the first part shall pay or cause to be paid to said party of the second part one thousand dollars, and interest at ten per cent., payable annually at the house of said party of the first part, in Courtland, Kent county, Michigan, when the said party of the second part perfects the title in said William H. Myers to the land hereinbefore described, and fully fulfills, performs, and complies with the agreements mentioned in the recitals in the preamble to this indenture, which said agreements as recited in said preamble are hereby made a part of the conditions of these presents, the same as if said agreements were fully incorporated Herein: Provided, nevertheless, that, in case of the death of said party of the second part before the said agreements are fulfilled and performed by said party of the second part, the said payment shall be thereby discharged, and said party of the first part shall be thereby fully acquitted and discharged from the payment of said sum or any part thereof, and these presents shall thenceforth cease and become null and void: And provided, further, that in no event shall the said principal sum become due and payable in a less period than ten years from the date hereof.”

Upon this mortgage were several indorsements, the first and the last of which read, respectively, as follows:

“Courtland, July 8th, 1871.
“Paid on the within mortgage one hundred dollars. This is paid under protest.
“David Haynes.”
“July 5th, 1877.
“ Received on the within mortgage one hundred dollars ($100.00) due at this date, and thirty dollars to apply on interest due in 1878.
“David Haynes.”

After these papers were drawn, Mr. Haynes procured a quitclaim deed from Marion conveying all of lots 1 and 2 on section 27, town 9 N., of range 10 W., lying and being in the county of Kent and State of Michigan, containing 79 acres, more or less. The deed was acknowledged in the State of Kansas October 22,1870. The record does not disclose any other deed or acquittance from her. This deed was delivered to Judge Champlin, and he delivered to Mr. Haynes the $300 and the $500 notes which had been left with him to be delivered when this deed was obtained.

In January, 1876, the land department of the Grand Rapids & Indiana Railroad Company caused a survey to be made of section 27 and the E. \ of section 28, claiming that all of the lands within the meandered line were within the limits of their land grant, and, not having been conveyed by the United States, belonged to them. It does not appear that any further action was taken in the matter by the railroad company. Mr. Haynes never obtained any other title to the land in question than what has been stated. After he sold the land to Mr. Myers, he went to Indiana. The interest for 1874 was left by Mr. Myers with Saunders & Morris, at Rockford. At the time Mr. Haynes called for it, he told Mr. Morris he could not get up the Knapp mortgage, and never expected to do so; that all he expected to get out of the Myers mortgage was the interest, of $100 a year, as long as he lived. Knowledge of the survey of the railroad company came to Mr. Myers, and he consulted Judge Champlin about it. The latter wrote to the commissioner of the general land office, and was informed that legislation by Congress would be necessary before anything could be done about the land within the meandered lines. When Mr. Haynes came up from Indiana in July, 1877, to get his interest, he called on Mr. Myers for it at his house in Courtland. Mr. Myers refused to pay it without coming to Grand Rapids and taking counsel with Judge Champlin, to ascertain whether, in view of this claim of the railroad company, he was still bound to pay the interest. Mr. Myers and Mr. Haynes, came to Grand Rapids and saw Judge Champlin. Mr. Myers asked him if, in view of this claim of the railroad company, he was bound to pay the interest, and he was advised that he would have to pay the interest under the terms of the mortgage. Mr. Haynes then stated to Mr. Myers and Judge Champlin that he could not perfect the title in accordance with the agreement, that it was impossible for him to get up the Knapp mortgage, that he had no means to do it, and that Mr. Myers would have to protect himself against that mortgage, and against the claim of the railroad company or the United States as to all the land in excess of the government survey of lots 1 and 2. Mr. Myers paid Mr. Haynes the interest due on July 8, 1877, and also advanced to him $30 to apply on the interest which would fall due in 1878, on the statement of Mr. Haynes that it was necessary to save his home from being-sold for taxes. Mr. Haynes died about the 1st of August, 1877, having done nothing further towards perfecting the-title than has been stated.

The record in which the Knapp mortgage was recorded was destroyed by fire years ago. The mortgage itself was. ndt offered in evidence. An abstract showing the date and amount of the mortgage, but not when it was payable, was received in evidence. All the testimony in relation to said mortgage and its maturity has been stated, except that Mr. Myers said the last time he saw Mr. Knapp was. in 1851, and Judge Champlin testified on cross-examination:

“Q. You never have heard of anybody demanding the payment of the Knapp mortgage, have you ?
“A. Yes; I heard there was.
“Q. When?
“A. Well, it was along about 1872; along there somewhere; 1872 or ’73.
“Q. There never have been any efforts made to enforce its payment?
“A. Nothing that I know of.”

After the death of Mr. Haynes, one of the heirs called on Mr. Myers in the early part of 1879 and demanded payment. She was informed by Mr. Myers that, as Mr. Haynes had failed to comply with the conditions of the mortgage in his lifetime, there was no liability under it. Nothing further was done about the mortgage until the foreclosure bill was filed, in 1890.

The administrator stands in the same relation to Mr. Myers that Mr. Haynes would occupy if he were living. If Mr. Haynes could foreclose the mortgage, the administrator could. If Mr. Haynes could not, the administrator could not.

The solicitors for the complainant insist that it is sought to go outside of the deed and mortgage, and to establish by parol that Mr. Haynes was agreeing to sell 120 acres, and that, if he failed to obtain a conveyance of more than ■one-third of that amount from the United States government in his lifetime, the mortgage was to be forfeited, and say parol evidence is not competent; citing Martin v. Hamlin, 18 Mich. 354 (100 Am. Dec. 181); Ortmann v. Bank, 39 Mich. 518, 519; Kulenkamp v. Groff, 71 Mich. 675, 679 (40 N. W. 57, 1 L. R. A. 594, 15 Am. St. Rep. 283); Nichols, Shepard & Co. v. Crandall, 77 Mich. 401, 411 (43 N. W. 875, 6 L. R. A. 412); Phelps v. Abbott, 114 Mich. 88, 92 (72 N. W. 3). Without passing upon the question as to how much may be shown by parol in relation to the consideration for a deed or mortgage, we think it clear, from the papers themselves, that Mr. Haynes undertook to convey to Mr. Myers the title to the N. W. ^ of this section. The testimony is all agreed that there was embraced within this N. W. at least 120 acres of land, while the actual survey shows it to embrace upwards of 140 acres. It was the duty of Mr. Haynes in his lifetime, and before the mortgage could be foreclosed, as stated in the mortgage, to convey or cause to be obtained and conveyed to the said William H. Myers, his heirs or assigns, a good, sure, perfect, and indefeasible title in fee simple of said real estate, free and ■clear of all incumbrances.

Has he done so? The daughter, Marion, quitclaimed her one-sixth interest in lots 1 and 2, containing 79 acres, but she did not release any interest she had for rents and profits; nor did she release any interest she might have to any portion of the N. W. fractional quarter of section 27 outside of lots 1 and 2, if she had any such interest. It is conceded that the Knapp mortgage was not discharged of record, but counsel insist that the provisions of the mortgage related simply to the perfecting of the title to the one-sixth interest held by Marion, and that as the Knapp mortgage is not named as a cause of forfeiture, while the procuring of the sixth interest of Marion is, “the maxims, ‘ Expressio unius est exclusio alterius,’ and ‘ Noscitur a sociis,’ are both applicable to the transaction ; that general terms employed in a written instrument are limited by special recitals; and that, when the deed from Marion was procured, Mr. Haynes had performed what he agreed to do.” As before stated, when these papers were drawn, an abstract of title was before the parties, which showed the Knapp mortgage as an outstanding mortgage. The daughter was not the possessor of any incumbrance against the property. She owned an undivided one-sixth of it. Provision was made not only for obtaining her interest, but also for clearing-the land of all incumbrances. Can there be any doubt that the parties then had in mind the Knapp mortgage ?' We think not. And this view is strengthened by the fact that Mr. Haynes, upon repeated occasions after these papers were drawn, acknowledged his duty to pay this, mortgage and have it discharged.

Counsel say that so much time has elapsed that the mortgage must be presumed to be paid. They urge:

“There being no evidence that any specified time was-fixed for the payment of the Knapp mortgage, there, is ne legal presumption that it was payable at any particular time, but it is to be presumed that it was payable presently or on demand, or, at the furthest, within a reasonable time, like any other contract where credit is extended. without specifying the time for payment. Kimball v. Kimball, 16 Mich. 212, 219. The statute of limitations begins to run against such a demand from its date. Palmer v. Palmer, 36 Mich. 487 (24 Am. Rep. 605); Home Sav. Bank v. Hosie, 119 Mich. 131 (77 N. W. 625); Citizens’ Sav. Bank v. Vaughan, 115 Mich. 159 (73 N. W. 143).”

It is undoubtedly true that when a debt is payable on demand it is payable presently, and the statute will at once begin to run. But it does not appear that this mortgage was payable on demand. On the contrary, Mr. Haynes stated to Judge Ohamplin that it was a time mortgage, while he recognized but a few weeks before his death his duty to pay it. It is a matter of common knowledge that mortgages are sometimes given for long periods of time. We cannot say, in the absence of any proof as to when the mortgage matured, that the statute of limitations has run against it.

It is also claimed that, by virtue of the conveyance to Mr. Haynes, he obtained title to the N. W. £ of the section. It is said meander lines are not intended to be boundary lines; they are to designate the quantity of land to be paid for when purchased from the government, and not to define the limit of ownership; the patent from the United States conveyed the entire subdivision, without reference to the meander lines of the survey,— citing Rev. Stat. U. S. § 2396, subd. 3; Palmer v. Dodd, 64 Mich. 474 (31 N. W. 209); Hardin v. Jordan, 140 U. S. 371 (11 Sup. Ct. 808); Railroad Co. v. Schurmeir, 7 Wall. 272. On the part of the defendants it is insisted that the record shows that at least 31 acres of land south and east of lot 1 were covered with heavy oak timber, which shows that at the time it was surveyed it was not part of the lake, and therefore the meander line was an untrue line, and left at least 31 acres of good land unsurveyed, the title to which was left in the United States; citing Horne v. Smith, 159 U. S. 40 (15 Sup. Ct. 988).

We do not deem it necessary to pass upon this question. As we have before stated, it was the duty of Mr. Haynes in his lifetime to convey or cause to be conveyed to Mr. Myers title to the entire N. W. {-. To do this it was necessary to clear the land of the incumbrance of the Knapp mortgage, and to procure from his daughter, Marion, an acquittance of any claim she might have for use and profits of the land in question. Curtis v. Goodenow, 24 Mich. 18. This was not done. But it is said that the case of Legare v. Semple, 32 Mich. 438, is a complete answer to the contention of defendants. We do not so read the case. The court did hold in that case that, as Mrs. Peacock had no right of dower in the land, there was nothing for her to release, and therefore a failure to obtain a release from her could not be set up as a defense to one of the notes, and that complainant was in a position to foreclose as to that note. It also held that as to the second note the complainant seemed to be in a condition to comply with the restrictive clause of the second note, but it also held that, if complainant did not comply with the restrictive clause, the bill should be dismissed. It not only does not appear that Mr. Haynes was in a position in his lifetime to comply with the conditions of the mortgage, but, if we are to believe the testimony, but a short time before his death he admitted that he had not complied with its conditions, and did not expect to do so.

The decree is affirmed.

Long and Grant, JJ., concurred. Montgomery, C. J., and Hooker, J., did not sit.


author: Hooker, J.

text:
    CARPENTER v. CARPENTER.
    1. Deeds — Record—Certified Copy — Error Cured.
    Error in admitting in evidence a certified copy of the record of a deed attacked as invalid is cured by the striking of the ' copy and the introduction of the original.
    S. Same — Validity—Witnesses.
    A deed without witnesses is effective to convey title.
    3. Same — Execution and Delivery — Evidence.
    Proof of the signatures of the grantor, the sole subscribing witness, and the acknowledging officer in a deed, with evidence of its possession 20 years thereafter by the attorney of the assigns of the grantee, is sufficient to establish prima facie the execution and delivery of the deed.
    4. Adverse Possession — Occupancy by Widow — Rights of Heirs.
    The contention that a widow acquired title by adverse possession to premises in which she had dower rights, as against the heirs, based on the alleged facts that she made the statement during her occupancy that she could hold the premises as against the children, and considered herself the owner, that .those of the children who continued to live with her did so in subordination to her control, and that she devised the property to a son and a daughter, is not sustained, where it appears, further, that it was agreed by the heirs, on the death of the ancestor, that the widow might occupy the premises in consideration of her promise to build a house thereon, that she at no time denied the right of the heirs to the property after her death, and that the devise was not of the specific property, but of “all of her property” generally.
    b. Same — Res Judioata.
    In an action of ejectment, the evidence tended to show that in a previous ejectment suit involving other lands, brought against plaintiff’s husband by defendant’s grantor, the latter asserted title by adverse possession; that a certain deed to the plaintiff was there put in evidence, and the claim of adverse possession resisted by her husband with her acquiescence and in her behalf; that she herself was called as a witness; that the jury sustained the adverse claim; and that, while the judgment therein related to other lands, the title depended on the identical questions raised in the later suit. Held, that, even if the facts were not so conclusively established as to show that the question of adverse possession was res judicata as a matter of law, at least the jury might find it so.
    6. Ejectment — Ouster—Admission in Plea.
    In an action of ejectment, the plea and notice of defendant, being part of the record, need not be formally introduced in evidence to make them available for any admission of ouster they contain.

      1. Same — Appeal—Res Judicata.
    Where, on appeal in an action of ejectment, it was held that ouster was admitted by defendant’s plea and notice, the question is not open on a subsequent trial.
    8. Same — Husband and Wife — Co-Defendants—Admissions.
    In an action of ejectment against a husband and wife, admissions made by the husband are admissible as against himself.
    Error to Ingham; Person, J.
    Submitted January 29, 1901.
    Decided April 2, 1901.
    Ejectment by Cora M. Carpenter against Augustus D. Carpenter and wife. , From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      Frank L. Carpenter (Bussell C. Ostrander, of coun-' sel), for appellants.

      Smith & Hood, for appellee.
   Hooker, J.

In 1859, Benjamin Carpenter died seised of two village lots in Lansing, being lots 10 and 12 in Seymour’s subdivision. They descended in equal shares to his five children, subject to the rights of his widow, Maria Carpenter. The widow maintained possession of the premises until her death, in 1885, under an oral arrangement that she should be permitted to do so, consented to by all of the children soon after Benjamin Carpenter’s death, and subsequently acquiesced in, not only by them, but by the grantees who claimed title under the oldest daughter, Miriam; under which arrangement the widow erected a house on lot 10. This daughter, Miriam, being under obligations to one Abigail C. Rogers, a teacher of Miriam, and an acquaintance and friend of the family, gave her a quitclaim deed of her interest in the two lots. This deed was executed in 1864, and had but one witness. In 1869, Abigail C. Rogers died,' leaving a will devising both lots to Delia Rogers, from whom John , I. Carpenter, a brother of Miriam, obtained a quitclaim deed of both lots 'in September, 1885, and who in turn deeded to his wife, the plaintiff, on September 30, 1885; the last deed not being recorded until 1888.

The defendants do not deny that upon the death of Benjamin Carpenter the land descended to his five children, subject to the right of dower of Maria, but they allege that John I. Carpenter- parted with his interest through a deed to Augustus, given in 1885, and that he never acquired title to Miriam’s interest, for the reason that Abigail C. Rogers took no title under the quitclaim from Miriam, because — First, said deed was not lawfully executed, having but one witness; and, second, its delivery was not proved. We may remark, parenthetically, that, if this point- is well taken, John I. inherited an undivided interest from Miriam in 1880, and that it passed to Augustus under the deed from John I. in 1885. There is still another claim made by the defendants. It is that Maria, the widow, acquired title to these lots by adverse possession against all of her children, or at least against Abigail C. Rogers and her grantees; and that upon her death it passed, under her will, to Frank and Lucy, two of the five children of Benjamin Carpenter, and subsequently to Augustus, by deed from Frank and Lucy. Moreover, it is said that this claim of adverse possession was adjudicated and upheld in a former proceeding. The will of Maria Carpenter is not printed, but the statement is made in the record that it contained a residuary clause devising and bequeathing all of her property, except lot 13, to her daughter Lucy C. Jones and son Frank L. Carpenter, share and share alike. The circuit judge directed a verdict for the plaintiff, and defendants have appealed.

The questions in the case may be summarized as follows:

1. Did plaintiff show a prima facie title? (a) Was the deed to Abigail effective? (b) Was there proof of delivery? ‘ (c) Should either of these questions have been left to the jury ?

2. Was there evidence tending to show that Maria obtained title in fee by adverse possession?

3. (a) Has there been an adjudication of that question sustaining such title; and (6) if so, is it conclusive in this case ?

4. Some questions relating to the introduction of evidence.

The defect in the execution of Miriam’s deed was the absence of a second witness, the only witness being the notary who took the acknowledgment, and who also attested the signature under the words “Signed, sealed, and delivered in presence of.” This deed was recorded after it came to the possession of John I. Carpenter, and a certified copy was introduced in evidence, against defendants’ objection; but it was subsequently stricken from the record, and the original deed was introduced. By striking the certified copy from the record, any error arising from its admission was cured. It is settled in this State that a deed without witnesses is effective to convey the land described in it. See Dougherty v. Randall, 3 Mich. 581; Price v. Haynes, 37 Mich. 487; Baker v. Clark, 52 Mich. 22 (17 N. W. 225); Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65).

John I. Carpenter testified that he was a brother of Miriam. He identified the deed from her to Miss Abigail C. Rogers as one which was turned over to him by Mr. Robson, who had charge of Miss Delia Rogers’ property, in the year 1885, at a time when he procured a deed from Delia Rogers. He testified that he was familiar with Miriam’s signature, and that her signature was upon said deed; and that, upon the day the deed was made, Miriam said that she was at Wiley’s office, and deeded her interest in her father’s estate to Abigail C. Rogers; and that she showed some money, which she'said that she had received in part payment for the same from Miss Rogers. The signature of Wiley as subscribing witness and notary was also proved. It is contended that the declarations of Miriam were not admissible; but we think it unnecessary to pass upon that question. There was sufficient uncontradicted evidence to establish prima facie the execution and delivery of the deed to Abigail C. Rogers, without the declarations of Miriam. The only testimony that can be urged as showing a want of delivery is an admission by John I. Carpenter on cross-examination that on a former occasion he told a Mrs. Smith that in settling up his father’s and mother’s estates ‘ ‘ we found a deed to Miss Rogers, which was not recorded.” This admission is not necessarily inconsistent with all of the other testimony in the case, and can be readily reconciled with it. We are of the opinion, therefore, that the judge was warranted in finding delivery proved by undisputed evidence.

We have next to inquire whether the question of adverse possession should have been left to the jury. The widow had an unquestioned right of dower in these premises. She was in possession with her husband, and continued such possession. So far from claiming them as her own at the outset, she insisted on her right to occupy them, and negotiated with the children regarding such privilege. She agreed with them to build a house, and did so, as a consideration for their agreement to permit her to hold the premises. It cannot be claimed that such was a consideration for them relinquishing all title, for in that case they would not reap any benefit. It would be no more than an agreement on her part to build a house on the land if they would give it to her. It is clear that such was not the understanding, as one or another of the children occupied the premises with her as long as she occupied them; in subordination to her right of control, it is true. There is testimony that the widow told her son Frank and daughter Lucy, to whom she devised her property, that she considered that she had title or an ownership in the land; that she could hold against all parties, — her children, Miss Rogers, or anyone else; and Frank told her that, so far as the children were concerned, except John, he thought there was no question but that they agreed with her. Augustus testified that he had heard his mother say that she had taken counsel about the nature of her occupancy, and would hold possession whether they liked it or not, and claimed that she was the complete owner, and that he recognized it. But it is said that all of this time she was occupying under a tenure, which had for its foundation her right of dower, supplemented by the consent of the children. From the first she maintained that she ought to have the place because her money paid for it; but it is plain that all knew that the title was not in her, and her conduct was inconsistent with an intention to claim the fee against the children, or a denial of a remainder in the children after the termination of her interest. We think that she asserted no other title than her dower interest, and that the case falls within the cases which hold that the statute does not run against the heir during such an occupancy. The undisputed proof shows that the widow occupied in privity with the heirs when she arranged for exclusive possession in consideration of the house which she agreed to build and afterwards built upon the premises. We find nothing to change this relation, or in contravention of it, except the testimony that when Miss Rogers’ deed was mentioned, and afterwards, she asserted that she could hold the premises against the children, or any deed they might give, and considered herself the owner of the land. It is claimed she afterwards devised the lot; but she only devised her property, whatever it was. During her occupancy one or another of the children lived on the premises with her, and part of the time some, if not all, of them were minors. She did not enter in opposition to their rights, and we do not find an expression of an intention to deny their rights to the property after her death. Campau v. Lafferty, 50 Mich. 114 (15 N. W. 40); Lumley v. Haggerty, 110 Mich. 552 (68 N. W. 243, 64 Am. St. Rep. 364); Bowen v. Brogan, 119 Mich. 218 (77 N. W. 942, 75 Am. St. Rep. 387); Brown v. Moore, 74 Mo. 633; Null v. Howell, 111 Mo. 273 (20 S. W. 24).

The claim that her adverse title has been sustained .by a former adjudication rests upon the following facts: In 1887, John I. Carpenter and a man named Sautelle, whom he had put in possession of the south three acres of lot 10, were sued in ejectment by Frank and Lucy Carpenter, who claimed to own the premises under the will of their mother. It is claimed by the defendants that upon the trial of that case the deed from John I. Carpenter to this plaintiff was put in evidence, and Cora Carpenter was present as a witness, and that in opposition thereto the claim that Maria obtained title by adverse possession was made, and the jury found in favor of the plaintiffs. It is contended that the verdict concludes this case, because both lots 10 and 12 were included in all of the deeds from Miriam to Cora Carpenter, and Frank and Lucy took both lots under the will of their mother; that Sautelle was placed in possession by John, acting as agent for Cora; and that, while not a party of record, she was a witness upon that trial, and the defense was made upon her behalf by John I. Carpenter, her husband, with her acquiescence. The evidence in the case tends to show the adjudication of the question involved in this action. True, it related to other lands, but the adjudication as to such lands, if held by both parties under the same titles and claims as are relied on here, depended on the identical question raised here, and, being decided once, is conclusive between the parties. The action was brought against Cora Carpenter’s tenant and agent, and there is testimony tending to show that it was defended by her through her agent, if not personally. She clearly knew of the action, and was present, asserting her title as a witness, while her husband and agent and her tenant conducted the defense. See Herm. Estop. § 152, and notes. We are of the opinion that the testimony was sufficient to justify a charge that the question was res adjudicatet. At least, there was a question for the jury.

It is contended that the plea and notice in the cause-should not have been admitted to prove ouster. The plea and. notice were part of the record, and need not have been formally introduced to make them available for any admission they contained. See Cir. Ct. Rule No. 7. Upon, a former hearing of this cause (119 Mich. 167, 77 N. W. 703) it was held that ouster was admitted by this plea and notice, which settled the question for subsequent trials. It is not an open question on this record.

Upon the trial, plaintiff called A. D. Carpenter as a. witness. It was objected that, being the husband of his-co-defendant, he could not be permitted to testify without her consent. This objection was sustained. John I. Carpenter was then called, and permitted, against defendants’’ objection, to testify to statements made by A. D. Carpenter upon another occasion. It is urged that such admissions were open to the same objection. This is doubtless true so far as the interests of the wife are concerned, but, as he was himself a defendant, his admissions, if not his testimony, were admissible against him.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    PEERLESS MANUFACTURING CO. v. BAGLEY.
    Liability of Landlord — Injury to Tenant’s Goods.

       A landlord agreed with his tenant to put in the building an automatic sprinkler system, designed for extinguishing fire. The landlord was inexperienced in the requirements and construction of the system, and employed an experienced, independent contractor to construct the plant. The independent contractor was guilty of negligence in putting in sprinkler heads designed to fuse at too low a temperature, in consequence of which damage resulted to the tenant. Held, that , the landlord was liable to the tenant for the negligence of the contractor, and that the landlord’s remedy was against the contractor.
    Error to Wayne; Frazer, J.
    Submitted February 1, 1901.
    Decided April 2, 1901.
    Case by the Peerless Manufacturing Company against John N. Bagley and others for negligence in the construction of a sprinkler system in premises leased to plaintiff. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    The facts in this case are undisputed. Plaintiff was engaged in the manufacture of clothing, and was tenant of a building owned by defendants. Throughout the building had been placed a number of water pipes, constituting an automatic sprinkler system, intended for extinguishing fire. On an extremely hot Sunday, — July 4, 189?, — in the afternoon, a sprinkler head in a pipe in this automatic sprinkler system opened, and the water flooded the building, damaging plaintiff’s goods. The sprinkler head was beneath a skylight in the roof of the building. The skylight had glazed sloping sides and vertical ends standing above the roof. A vertical section of the skylight formed substantially an inverted V. Across the bottom, and about in the line of the roof, was a sash containing panes of glass. Beneath this glass, curtains, which could be moved, ran on wires. Two or three panes of glass had been taken out of the bottom sash, through one of which the water pipe ran up. It then turned, and ran horizontally lengthwise of the skylight somewhat below the point where the sloping sides of the skylight united. Upon the top of this pipe were set the sprinkler heads, from one of which the water was discharged. The skylight was nearly 20 feet long by about 12 feet wide, and it was 4 feet 3 inches vertically from the bottom sash to the top of the skylight. The head itself was so made that at about a given temperature an alloy in it would fuse, and release a cap, and thus afford release for the water in the pipe by gravity pressure from a tank on the roof. It was intended that the alloy in these heads in question should stand a temperature of about 155° Fahrenheit before fusing, and they were stamped “155” to indicate that fact. On July 10, 1897, after this accident, the head which up to that time remained intact fused when the temperature in the skylight was 146°. The heads used in the skylight were of the same kind as those used elsewhere throughout the building. Near the top of each end of the skylight was an opening leading to a short pipe which opened into the air. Beneath each opening was a swinging window for ventilation. These ventilating windows, in hot weather, were usually kept open. They were closed Saturday, July 3d, at 1 p. m., and remained closed till after the accident.
    The following facts are established by the testimony:
    1. That the relation of landlord and tenant, and no other, existed between the parties.
    2'. That there was no written lease, whether or not there was an agreement for one.
    3. That there was no covenant forming part of the oral agreement for leasing that the premises were free from ■defects and fit for use, or that the landlord would keep them in repair and fit for use; that that oral agreement was simply that the plaintiff should occupy the premises for a certain period at a certain rental.
    4. That an agreement — which, if plaintiff’s testimony is believed, was, in effect, a part of the agreement as to tenancy — was made by defendants, at the instance and for the benefit, at least in large part, of plaintiff, that there should be installed upon the demised premises a sprinkler ■system like that about to be installed in Burnham, Stoepel & Co.’s premises, and that this agreement was, without damage to plaintiff, performed as early as the September following the May or June which was the date of plaintiff’s entry upon the premises demised to it.
    5. That from September, 1896, to July, 189?, the sprinkler head had been part of the demised premises, which were in the actual occupancy of the plaintiff.
    6. That defendants had no notice of any defect in the sprinkler head up to the time of the accident.
    7. That the defendants did not plan, or by their servants install, the sprinkler system, but that they committed the whole work of installation, including planning, labor, and material, to the General Fire Extinguisher Company, under a clear and distinct contract; that that company is an experienced, competent, and reputable concern in its line of business; that defendants did not interfere with, or exercise supervision- over, the work of installing, but left the work wholly in the hands of the extinguisher company.
    8. That the work was inspected by an experienced insurance inspector before reduced insurance rates on the building and stock were procured.
    9. That it is proper practice to put sprinkler heads in skylights.
    10. That the extraordinary heat of the sun on July 4, 1897, caused a head in the skylight to open, which, under ordinary circumstances, remained closed.
    11. That, if such opening is due to the fault of any one, it is to the fault of the General Fire Extinguisher Company.
    The declaration charges neglect against the defendants, plaintiff’s landlord, in negligently constructing an automatic sprinkler system. The court instructed the jury that the fact that the defendants “had used all ordinary precaution in employing suitable people to put this system-in, and letting the contract to a reputable concern to put it in, was of itself no defense against the action in this case.” In other words, the defendants were held responsible for the negligence, if any, of the party who put in the sprinkler system. The jury found that the apparatus was negligently constructed, and rendered a verdict for the plaintiff.

      Wells, Angelí, Boynton & McMillan, for appellants..

      Maybury & Lucking, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). It appears conceded that there was evidence of negligence on the part of' the General Fire Extinguisher Company in putting in the sprinkler heads in the skylight arranged to fuse at 155°. That temperature proved too low. They should have been arranged to fuse at a higher temperature. The sprinkler plant was installed in September. In the following July, with a temperature outside at 94°, one of the sprinkler heads fused. A few days afterwards the remaining sprinkler head, when the temperature outside was about the same, fused when the temperature in the skylight had reached 146°. It was undoubtedly assumed, on the part of the agents of the extinguisher company, that the temperature within the skylight would not reach that degree; but they made no effort to determine the degree-of temperature of the skylight in hot weather. If they relied upon experiences elsewhere, it is not shown upon this record. An experienced witness for the defendants-testified that they should be set with a leeway of about 30°, and that he would not locate a 155° sprinkler head at a place where he knew the temperature would reach over 135°. We must, therefore, enter upon a determination of the defendants’ liability with the fact established that their contractor, the extinguisher company, was guilty of negligence.

It is also established that the defendants had had no experience with, or knowledge of, the construction of the ¡sprinkler apparatus; that they employed a standard company of long experience and of good reputation, and that the system was one in common use. They had, therefore, exercised that prudence which the law requires in choosing independent contractors, and no negligence is directly attributable to defendants. It was to the interest of the ■defendants, as well as that of the plaintiff, to have a proper apparatus supplied. In case of flooding, both would be damaged.

Did the employment of such a contractor relieve the defendants from liability to plaintiff ? They insist that it did; that the case is within the rule that, when one employs a competent, experienced, and independent contractor to do a lawful work, he is not liable, either for defects in the system or in the apparatus or machinery. The learned counsel cite Devlin v. Smith, 89 N. Y. 470 (42 Am. Rep. 311); King v. Railroad Co., 66 N. Y. 181 (23 Am. Rep. 37); Engel v. Eureka Club, 137 N. Y. 100 (32 N. E. 1052, 33 Am. St. Rep. 692); McCafferty v. Railroad Co., 61 N. Y. 178 (19 Am. Rep. 267); Miller v. Railroad Co., 125 N. Y. 118 (26 N. E. 35). None of those cases involve the relation of landlord and tenant. They are cases coming clearly within the rule as to non-liability for the negligence of independent contractors. There is, however, another rule, and which may be called .an exception to that above stated, viz., that, where one owes an absolute duty to another, he cannot acquit him¡self of liability by delegating that duty to an independent contractor. To apply the rule to the present case, it may be thus stated: Where a landlord undertakes to make repairs or improvements for his tenant, he cannot relieve himself of the consequences of neglect in the performance of his agreement by employing an independent contractor. Thus, where a landlord undertook to put a new roof on the building of his tenant, and he let the contract to an independent contractor to perform the work, and the ¡goods were damaged by rain through the negligence of the contractor, the landlord was held liable. Wertheimer v. Saunders, 95 Wis. 573 (70 N. W. 824). Where the landlord made repairs, and a joint of pipe was improperly-constructed, whereby the water flowed from the roof through onto the plaintiffs goods, the landlord was held liable. Worthington v. Parker, 11 Daly, 545. Where a drain had been constructed by an independent contractor, and after its acceptance the water flowed through it into an adjoining cellar, through the negligence of the contractor, the owner of the building was held liable. Sturges v. Theological Society, 130 Mass. 414 (39 Am. Rep. 463). A landlord assuming to make repairs, though not required to do so by his lease, is responsible for his lack of skill in making them. Gill v. Middleton, 105 Mass. 477 (7 Am. Rep. 548); Gregor v. Cady, 82 Me. 131 (19 Atl. 108, 17 Am. St. Rep. 466).

Plaintiff had agreed with defendants that they should' put in a sprinkler system. They could adopt whatever system they chose, and could make whatever contract they chose for putting it in. There was no contractual relation between plaintiff and the General Fire Extinguisher Company. We think that in reason, as well as-authority, the rule of law is that the plaintiff can hold defendants for the negligence resulting in damage to it, and that the defendants have their remedy against the extinguisher company.

Counsel liken the case to that of one buying an appliance of a reputable dealer, which, through its negligent, construction or make, works damage to a third person, and invoke the rule that a vendor or purchaser is not liable for latent defects in machinery; citing McKinnon Manfg. Co. v. Alpena Fish Co., 102 Mich. 221 (60 N. W. 472), Walden v. Finch, 70 Pa. St. 460, and other cases. We think this is not a case for the application of that doctrine. There was no defect here in the system or in the.' apparatus. The former was good, and the latter properly constructed. There was no latent defect. The sole difficulty was that the extinguisher company erred in not. determining the temperature at which the sprinkler head should be set. Walden v. Finch was a case between bailor and bailee. The bailor had deposited- his property in the warehouse of the bailee. The building fell through improper construction. It was held that the bailee, having done all in his power to erect a safe structure, was not liable for its occult defects. McKinnon Manfg. Co. v. Alpena Fish Co. involved the shaft of an engine, which broke from hidden and unknown defects.

Judgment affirmed.

The other Justices concurred.


text:
    COUNTY OF WAYNE v. REYNOLDS.
    1. Public Officers — County Clerk —Extra Compensation — Board of Supervisors — Ultra Vires Action.
    1 Comp. Laws 1897, § 2477, prescribing the duties of the county clerk as clerk of the board of supervisors, requires him to perform such other duties as the board may by resolution require. Act No. 425, Local Acts 1895, fixes the salary of the clerk of Wayne county, and provides that he shall not receive any additional compensation for the performance of any duties imposed upon him by law. The clerk of said county was appointed by the board of supervisors as secretary of a subcommittee of the board, under a resolution giving him extra compensation for services rendered as such secretary. Held, that he was not entitled to such compensation, and that the action of the board awarding the same was ultra vires.

    2. Same — Moneys Illegally Paid — Recovery 'by County.
    The action of a board of supervisors in passing upon and allowing the claim of a public officer for services which, under the express provisions of the statute, could not properly be made the basis of a charge against the county, will not preclude the county from recovering back from such officer moneys paid in reliance on such action. Advertiser & Tribune Co. v. City of Detroit, 48 Mich. 116, distinguished; County of Wayne v. Randall, Id. 187, overruled.

      Error to Wayne; Rohnert, J.
    Submitted February 1, 1901.
    Decided April 2, 1901.

      Assumpsit by the county of Wayne against Henry M. Reynolds to recover back money paid to defendant as extra compensation for services rendered while clerk of said county. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for appellant.

      Jasper G. Gates, for appellee.
   Hooker, J.

The defendant was the clerk of the county of Wayne, and during the time that he was such clerk he was appointed secretary of a committee of the board of supervisors having in charge the erection of a court-house for the county. His appointment was under the following resolution:

“Resolved, that Henry M. Reynolds be, and- he is hereby, appointed secretary of the committee on public buildings during the erection and completion of the new Wayne county building, to the end of the fiscal year.”

About four months later the board passed the following resolution:

Resolved, that the county auditors be, and they are hereby, instructed to pay Henry M. Reynolds the sum of $25 per month for the time he has acted as secretary of the committee on site and public buildings; and be it further
“Resolved, that the county auditors be, and they are hereby, instructed hereafter to pay the secretary of said committee the sum of $25 per month during the term of the committee.”

Other similar resolutions of later date, covering other periods, appear. Mr. Reynolds performed the services, and received from the board of auditors of the county the sum of $525 for such services. This is an action brought b>y the county to recover from the defendant this sum, with interest. The circuit judge directed a verdict for "the defendant, and the plaintiff has taken a writ of error, upon which the case is before us.

There are two questions:- First. Was he lawfully •entitled to such compensation ? Second. Was the action of the board in making payment conclusive and final ?

The following sections of the statutes are cited as hearing upon this controversy:

Act No. 425, Local Acts 1895, provides:

“ Section 1. That the * * * county clerk * * * of the county of Wayne shall receive a salary of three ■thousand five hundred dollars per annum; * * * and that the said salary of said * * * county clerk * * * shall be full payment for services performed by said officer for said county, or for the patrons of [his] office, and shall be in lieu of all fees, commissions, or perquisites payable to said officer under the laws of'this State for the performance and discharge of any duties required by [his] office, or any office the duties of which [he] exercises by virtue thereof, and in lieu of all fees or commissions collectible by said officer for the performance of the respective ■duties of [his] said office where the said fees are not fixed by law; and that said officer shall receive no other or further compensation for the duties imposed upon [him], but all fees or commissions made payable to or that may he charged by [him] by virtue of said office shall be received by and on account of said county.
“Sec. 2. No officer whose salary is fixed by this act •shall be entitled to any fees, commissions, or added compensation by reason of any new duties hereafter added to the office held by him.
“Sec. 3. The said county clerk * * * of Wayne county shall receive or collect no other compensation, except the salary above provided, for the performance or discharge of any of the duties of [his] office, but [he] shall pay the fees, commissions, or charges provided by law to be paid, or that [he] may fix or charge, for the performance or discharge of such duties, or any duties in [his] said office, to the county treasurer, ón the last Saturday of every month, and the same shall be for the use of said county, and placed to the credit of the general fund.’;

Section 2477, 1 Comp. Laws 1897, provides:

“The county clerk of each county, or in his absence his. deputy, shall be the clerk of the board of supervisors of such county. It shall be the duty of such clerk: * * l!:
“Fourth. To preserve and file all accounts acted upon, by the board, and on no account to allow such accounts, to be taken from his office. * * *
“Sixth. To perform such other and further duties’ as such board may, by resolution, require.”

Section 6, art. 10, Const. Mich., provides:

“A board of supervisors, consisting of one from each organized township, shall be established in each county,, with such powers as shall be prescribed by law.”

Section 38, art. 4, Const. Mich., provides:

“ The legislature may confer upon * * * the board of supervisors of the several counties such powers of a local, legislative, and administrative character as they may deem proper.”

The authority of the board of supervisors of the county of Wayne in the matter of the erection of this court-house was settled in the case of Board of Auditors v. Wayne Circuit Judge, 114 Mich. 44 (72 N. W. 19). In doing this work the board of supervisors availed itself of the services of a subcommittee and the county clerk, as we have seen. We cannot say that the clerk was not required by law to perform this service, as required under the sixth subdivision quoted. He clearly was, and, that being so, the law expressly denies his right to compensation over- and above his salary therefor. Ewing v. Ainger, 96 Mich. 587 (55 N. W. 996); Hewitt v. White, 78 Mich. 117 (43 N. W. 1043); Plummer v. Township of Edwards, 87 Mich. 621 (49 N. W. 876); Board of Managers of Michigan Soldiers’ Home v. Auditor General (decided December 4, 1900, without opinion). The statute cited not only fixed the compensation of the clerk, but expressly forbids the payment or reception of any further sum for the duties imposed upon him by law. Rectitude of intention upon his part and that of the auditors does not change the character of the transaction, which is ultra vires.

A somewhat similar question arose in the case of American Steamship Co. v. Young, 89 Pa. St. 191 (33 Am. Rep. 748), and the right to recover back money was asserted and sustained in favor of a private person against an officer who took illegal fees.

The case of County of Allegheny v. Grier, 179 Pa. St. 639 (36 Atl. 353), was much like the present case. It was. said:

“ Public revenues are but trust funds, and officers but. trustees for its administration- for the people. It is no. answer to a suit brought by a trustee to recover private trust funds that he had been a party to the devastavit. * * * With much the stronger reason is this doctrine applicable where the interests of the whole people are involved. * * * It is obviously immaterial whether the illegal payment be through design or mistake.”

In Virginia the attorney general claimed and was allowed and paid extra compensation, and it was recovered back by the State in an action brought for the purpose. Com. v. Field, 84 Va. 31 (3 S. E. 882).

Story says:

“If an agent pays money for his principal, by mistake or otherwise, which he ought not to have paid, the agent, as well as the principal, may maintain an action to-recover it back. * * * If an agent pays money under a mistake of fact for the principal, the latter may recover it back from the party who has received it; and, if it be paid under a mistake of the legal obligation of his principal, it may be recovered back.” Story, Ag. (6th Ed.). §§ 398, 435.

See, also, Stevenson v. Mortimer, Cowp. 805.

“The act of the agent is not considered as the act of' the principal except when it is within the limits of his authority. * * * But, however it may be when the money is paid by the supposed debtor, no case has gone so far as to decide that an unauthorized payment by an agent, from an erroneous opinion of the legal obligation of his principal, shall be binding on the principal, and that he cannot recover back money thus unduly paid.” U. S. v. Bartlett, 2 Ware, 24, 27 (Fed. Cas. No. 14,532).

We do not lose sight of a substantial difference between the case of money paid by an officer, such as a treasurer, in the routine of. his office, and money .paid upon warrant after allowance by a board authorized to adjudicate upon claims, and from whose determination the law forbids an appeal, like the board of supervisors in other counties, and the board of auditors in Wayne county. As has been held in the case of Advertiser & Tribune Co. v. City of Detroit, 43 Mich. 116 (5 N. W. 72), where such a board has once passed upon a claim which it had authority to pass upon, it cannot be reviewed, and money paid upon such adjudication cannot be recovered back in an action upon the ground that the charge was excessive. To permit it would be to reopen every case where an excessive allowance had been made for services rendered, and for which there is an obligation to pay something. We have found no case which precludes such recovery when a board has allowed a claim which was wholly fictitious or ■expressly forbidden by law, and, with one or (possibly) two exceptions, the same may be said of claims which the law does not recognize as lawful charges against the municipality.

.Our law prescribing the duty of boards of supervisors is taken from New York, where similar duties and powers are imposed and granted. It has never been held in that State that money once allowed and paid could not be recovered back in a case where the law did not recognize the claim allowed as one that could be a proper charge against the county. Thus, in the case of Board of Supervisors v. Ellis, 59 N. Y. 620, it was held that a board of supervisors had no power to audit and allow an account not legally chargeable to the county, and that if they did, and it was paid, such payment was not voluntary, and that an action lay to recover back the money paid. The case was much like the present one in all of its features. Folger, J., said:

“Doubtless, if a board of supervisors at one time acts-finally upon a matter of which they have jurisdiction, and as to which they have a lawful right to act, a succeeding board may not undo what they have done, to the immediate detriment of third parties. * * , * A board of supervisors has no power to audit and allow accounts not legally chargeable to their county, and, if it attempts so to do, it is an act in excess of jurisdiction, done without, the power to make it valid, and is null and void.”

See, also, Smith v. City of Newburgh, 77 N. Y. 130.

A more recent case contains an elaborate discussion of' this subject. Under a law which permitted the issue of bonds for the raising of funds to build waterworks, but which forbade their sale at less than par, a contract was. made which was ultimately held to be within the prohibition. The water board undertook to compromise this, matter, and the court held that it was outside of their jurisdiction. Mr. Justice Yann said:

“The statute forbade the payment from the funds of the water board, and action forbidden by statute is void. A void act is no act, and a void payment is no payment. Such a payment is not voluntarily made by the corporation, but by its agent, in excess of his authority and in defiance of its rights. It is not the act of the corporation itself, but. of one who without authority assumed to act for it. * * * It is a matter of grave public concern to protect municipal corporations from the unauthorized and illegal acts of their agents in wasting the funds of the taxpayers. It is only with the utmost difficulty that municipal officers and agents can be kept within the bounds of their authority now; but once let it go forth as the settled law of the State that an illegal contract can become the basis of a lawful compromise entered into between the contractor and an agent guilty of the illegal action, and a new door will be open to municipal spoliation. If a paving contract is let to the highest instead of the lowest bidder, in violation of a statute requiring competition, a compromise with the contractor, followed by payment of a gross sum equal to all the profits that he could have made on the contract if executed, should not enable him to keep the spoils and defy the public. Sound public policy will not permit the courts to countenance this dangerous method of evading a statute, for it will always be done under the claim of good faith, and the fraud beneath will be hard to discover.” Village of Ft. Edward v. Fish, 156 N. Y. 363, 374 (50 N. E. 973).

See, also, Ellis v. Board of State Auditors, 107 Mich. 536 (65 N. W. 577).

Counsel cites two Michigan cases which are said to be opposed to this doctrine. One is Advertiser & Tribune Co. v. City of Detroit, 43 Mich. 116 (5 N. W. 72); the other, County of Wayne v. Randall, 43 Mich. 137 (5 N. W. 75). In the former the claimant had a valid claim, but was allowed more than the statutory price for the work. It was claimed that as to this excess the action was void, and that the amount should be recoverable in an action by the city. It was held otherwise. In the Randall Case, Randall, as circuit court commissioner, had charged against the county certain fees in a fraudulent debtor proceeding prosecuted before him. The board of auditors took advice and allowed his claim, and after-wards an action was brought to recover back the amount. It was held not recoverable. The only possible, distinctions between these two cases and the present case are that in one the entire claim was not invalid, and that in the latter the claim was for services not a lawful charge against the county, while in the present case the statute expressly forbids payment beyond the salary provided. We think both cases” are inconsistent with the doctrine announced in the cases hereinbefore cited. If the circuit court commissioner’s fees were not a proper charge against the county, the board had no just reason for allowing them; and, also, if the statute fixed a limit to the price paid for printing, it had no just reason for allowing double price, or, what was equivalent, double measure. But if it be said that the last case is distinguishable, and was one where the board had jurisdiction to allow some part of the claim, that cannot be said of the Randall Case; for he had not rendered any services for the county for which the county was in any way or to any extent liable, or for ■which the board had any authority to pay, unless it is to be said that it has jurisdiction to hear and unalterably •determine, by allowance or disallowance, any kind of a •claim that may be set up, not expressly prohibited by law. In the case now before us the prohibition is positive; in the other it is negative; and we see no difference in principle. Unless we are to follow these cases, we must overrule the later, if not the earlier as well, or make a distinction where there is no substantial difference. We all ;are of the opinion that the Randall Case should be overruled. It is not so clear that the other case should be, for •there is force in the claim that the board had authority to •determine the quantity of work done, and that its decision was final. As the case may fairly be distinguished from the present case and the Randall Case, we leave it for further consideration when occasion may arise.

The judgment is reversed, and a new trial ordered

The other Justices concurred.


text:
    WRIGHT v. HUBBARD.
    Estates of Decedents — Allowance of Claims — Effect—Set-off —Payment of Mortgage.

      W. and wife executed a mortgage to P. Subsequently W. and P. agreed that P. should board at W.’s, and the price of the board should apply pro tanto in payment of the mortgage. P. assigned the mortgage, when past due, to her daughter. After P. died, W. procured administration of her estate. W. and wife presented separate claims against her estate, which were allowed. W. and wife then filed a bill in equity to procure a cancellation of the mortgage, on the ground that the allowed claims were of greater value than the mortgaged premises, and should be applied in payment of the mortgage debt. Held:

      1. The allowance of the claims by the probate court did not bind the assignee of the mortgage, who was not a party to-that proceeding.
    2. There was no agreement that compensation for the wife’s-services in caring for P. should be applied in payment of the-mortgage, and her claim could not be made an offset to her husband’s debt.
    Appeal from Sanilac; Beach, J.
    Submitted March 8,. 1901.
    Decided April 2, 1901.
    Bill by Austin Wright and Elizabeth Wright against Estella J. Hubbard and Miles Simmons, administrator of the estate of Clarissa Poland, deceased, for the cancellation of certain mortgages. From a decree for complainants, defendant Hubbard appeals.
    Reversed.
    Complainants are husband and wife. He owned a farm of 120 acres in Sanilac county, Mich. In 1888 he borrowed $1,900 of Mrs. Poland, the sister of Mrs. Wright, for which he gave two mortgages upon this land, —one for $1,100, and the other for $800. The mortgages-were signed by Mrs. Wright. • Mrs. Poland lived in Chicago. In July, 1891, she went to the home of the complainants, — whether first as a visitor, as claimed by defendant, is immaterial. She remained there until November, 1892, when she went to the home of her daughter, defendant Hubbard, in Chicago. Mrs. Hubbard visited her mother at complainants’ home in the summer of 1892. An agreement was then made that- : Mrs. Poland should pay $10 a month for her board, to be applied on the mortgage debts. This was the usual price for board in that locality at that time. Board for 12 months for that time ($120) was indorsed on one of the notes, and $40 from July 28, 1892, to November 28, 1892, on the other note. Mrs. Poland remained with her daughter in Chicago until May, 1894, when she again went to complainants, and lived with them until December, 1895, when she returned again to Chicago. In August, 1896, she returned to complainants, intending to take her household goods and return to Chicago to live. She was taken ill, and died at complainants’ home, December 5, 1896. Mr. Wright applied for letters of administration upon her estate. Letters were issued, commissioners appointed, and Mr. and Mrs. Wright presented separate claims against the estate, which were allowed. There was no opposition to their allowance, no one appearing to defend them. Whether defendant Hubbard or any of her other children knew of this proceeding does not appear. They had no actual notice of the proceedings. On August 7, 1896, these mortgages and notes were assigned by Mrs. Poland to her daughter, Mrs. Hubbard. Within a few weeks thereafter complainants were notified thereof by Mrs. Poland.
    Mr. Wright’s claim was for “board, etc., funeral and probate expenses, $653.65.” Mrs. Wright’s bill was for “nursing, washing, etc., $2,977.” After the allowance of the claims, complainants filed the bill in this case for the cancellation of the mortgages, claiming that they were paid by the board, nursing, etc., which had been allowed by the probate court. The bill does not expressly allege any agreement that the board and nursing were to be applied in payment of the mortgages. The only allegation in regard to the matter is this:
    “That on or about the 7th day of August, A. D. 1896, the said Clarissa Poland assigned the said mortgages to her daughter, one Estella Hubbard; but such assignment was made without consideration, and after the maturity of all of said mortgage indebtedness that was remaining unpaid.”
    The defendant Hubbard, who is the only real and necessary defendant, answered, virtually admitting the agreement as to the board, but denied any payments by reason of nursing or attendance, and claimed the benefit of a cross-bill for a foreclosure of the mortgages. To the cross-bill the complainants answered, in which they aver:
    “That, at the time said mortgages were assigned, the said mortgagee, Clarissa Poland, had received a - large amount of payments thereon by reason of said complainants’ nursing, supporting, and attending said mortgagee, but the same had not been indorsed on said notes or mortgages.”
    The mortgages were past due when assigned. The land is not worth the amount of the claims allowed by the commissioners, and the court decreed that the mortgages should be canceled.

      Charles F. Cates and Arthur F. Divine, for complainants.

      W. H. Burgess, for appellant.

       Head-notes by Grant, J.

   Grant, J.

{after stating the facts). The proceedings of the probate court are immaterial to the controversy between the parties. Defendant Hubbard was not a party to the proceedings before the commissioners, and their finding does not bind her as the owner of the mortgages. The mortgages had been assigned to her. No claim is or can be made that she did not then become the owner of them, and entitled to all that remained due after deducting all legitimate payments. There was nothing in the proceedings before these commissioners, had she been notified thereof, that the claims were designed to offset her mortgages. It was unnecessary for Mr. Wright to have any claim allowed before the probate court under his agreement with Mrs. Poland that the price of her board should be applied pro tanto. In fact the estate of Mrs. Poland owed him nothing for the board, because he and Mrs. Poland had agreed to apply it on the mortgages. If there was a dispute as to how much the payments were, that question could only be settled in the foreclosure proceedings, or upon a bill filed by the mortgagor to annul the mortgages on the ground of payment. The questions, therefore, that are raised as to the validity of the proceedings before the commissioners, need not be discussed.

That there was an agreement to apply the board of Mrs. Poland upon these mortgages is conceded. It is claimed by defendant that the first agreement for $10 per month covered all the time. During 1891 that was the customary price for board. It does not appear whether there was any change in the price afterwards. Nothing was said about the price on the other occasions, nor was any settlement afterwards made. Mr. Wright now claims $20 a month from May 20, 1894, to December 20, 1895, and in 1896. For board alone upon a farm, especially when Mrs. Poland furnished her own rooms, this would be extravagant. Considering that she was ill part of the time, and that her meals were served in her room, the price may thereby be properly enhanced, and we are inclined to let the amount stand at $20 per month. The expenses of the funeral were paid by Mr. Wright, and Mrs. Hubbard conceded that they might be allowed against the mortgages.

The record is barren of any language implying an agreement to pay Mrs. Wright for nursing, and apply the same upon the mortgages. Whether her claim was a legitimate one against Mrs. Poland’s estate is a question upon which we pass no opinion. Except in 1896, Mrs. Wright attended to all her household and family duties. In 1896 they had a hired girl. Her charge for nursing and washing was, first, $2 per day, then $3, and in 1896 $4. These charges exceed those of trained nurses, and the action of the commissioners in allowing them seems a little strange. But, however this may be, this was a debt from Mrs. Poland to Mrs. Wright, and not to-Mr. Wright, who alone was under obligation to pay the notes. Mr. Wright is now seeking to offset a debt due to his wife against mortgages and notes executed by him. We disposed of this question in Wolff v. Jasspon, ante, 11 (85 N. W. 260).

There is evidence that Mrs. Poland stated that Mrs. Wright should be well paid for nursing and caring for her. But no inference can be drawn from this that she was to be paid by applying the value of her services upon her husband’s debt. It is very apparent that the scheme to pay these mortgages in this manner was an afterthought on the part of Mr. Wright. After the death of Mrs. Poland, he offered to deed the land to Mrs. Hubbard if she would pay the funeral expenses and give him what it would cost to foreclose, $200. Such a proposition cannot be rejected from the consideration of the court on the ground that it was an offer to compromise. It was an offer which very clearly shows that Mr. Wright still considered himself indebted upon the mortgages to nearly the value of the premises, and that he desired to save something if he could.

The decree will be reversed, and a decree entered in this court in accordance with this opinion for the balance due Mrs. Hubbard, with the usual decree of sale, with costs of this court.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.