author: Blair, J.

text:
    ESCANABA TIMBER LAND CO. v. RUSCH.
    1. Appeal and Error — Review—Questions Considered.
    This court on review confines its attention to the questions determined by the court below, and raised by counsel in the original brief, and does not consider questions raised for the first time on the oral argument and in the supplemental brief. ,
    2. Taxation — Tax Sales — Redemption—Right—Prooe op Title.
    Notice to a tax title purchaser by the register in chancery that the requisite amount to redeem his tax titles has been deposited with such register, together with the fact that the title of the person making the deposit, acquired subsequent to the publication of the notice to redeem, is of record, constitutes sufficient notification and proof of the depositor’s right to a deed to require the tax title holder to execute the deed, without affirmative proof of the depositor’s title, in the absence of a demand for such proof.
    3. Same — Time to Redeem — Statute—Application.
    Where the return of proof of service by publication of a notice to redeem from tax sales was filed before Act No. 142, Pub. Acts 1905, took effect, the time to redeem began to run from the date of filing such return, and not from the date of the first publication as provided by the act.
    Appeal from Gogebic; Cooper, J.
    Submitted January 22, 1907.
    (Docket No. 79.)
    Decided March 26, 1907.
    Bill by the Escanaba Timber Land Company against Albert H. Rusch to redeem certain land from tax sales. From a decree for complainant, defendant appeals.
    Affirmed.

      J. F. Carey, for complainant.

      O. H. Feed, for defendant.
   Blair, J.

We adopt the memorandum opinion of the circuit judge as a sufficient statement of the facts of this case and the questions involved, as follows:

“This is a bill to redeem from tax titles held by the defendant upon certain lands set forth and described in the bill of complaint. It appears that the defendant bought the land from the State for various years, and, after procuring his deeds, placed them on file, and proceeded to give the tax notice, as provided by the tax law of Michigan. The sheriff returned that he was unable to find the owners within the State of Michigan, or their address, so that the notice could be served by mail, and thereafter the defendant proceeded to give notice under the statute by publication. At the time of the purchase of the land by Albert H. Rusch, the defendant, the complainant did not own the land, but became the owner thereafter, and, within six months from the time of the filing of the proof of publication with the register of the tax notice, given as above specified, the complainant deposited with the register the amount necessary to redeem all of the land, together with one hundred per cent, additional, and costs, as provided by statute, and requested that the defendant execute a quitclaim deed. The register notified the defendant that such money was deposited with him, and requested him to furnish a quitclaim deed, but he refused to do so. The defendant contends that the right to redeem expired six months after the first publication of the tax notice. If his contention is correct in this, then at the time the money was deposited with the register the time to redeem had expired, as it was more than six months from the date of the first publication. I hold, however, that the time for redemption did not run until the return of proof of publication was filed, and that the redemption was made within six months from the time of such filing.
“I also-find that the complainant is the owner of the fee of the land in question, and was properly entitled to redeem at the time it made the attempt to do so.
“The decree will therefore be entered requiring the defendant to execute a quitclaim deed of the lands in question to the complainant, and in default thereof that the decree shall operate as such deed.”

Counsel for defendant and appellant states defendant’s position in his original brief as follows:

“ (1) That in the aosence of any affirmative showing to the defendant that the complainant company had acquired the right, title, and interest of the original owners, Charles Latimer and William H. McCurdy, the defendant owed no such obligation to the complainant company during the six months subsequent to April 13, 1905.
" (2) That because of these lands being vacant and unoccupied and no writs of assistance being necessary to put the tax purchaser in possession, the six months period began to run from July 16, 1904, the date of the first publication of the tax notice. Act No. 142, Pub. Acts 1905.”

We shall therefore confine our attention to the two questions determined by the court and raised by counsel in the original brief, and shall not consider questions apparently raised for the first time on oral argument and in the supplemental brief.

By stipulation of the parties, it was agreed that complainant had acquired the original title to the lands in question at the time it sought to redeem, although it was not the owner of such title at the time of the first publication of the notice. As stated by counsel in the brief for defendant:

"The contention is not urged that the complainant is not under any circumstances entitled to a reconveyance, but the contention is urged that any party who acquires the rights of another party upon whom notice is served, and subsequent to the time when service is made, is bound to affirmatively show, to the tax purchaser that he has such rights, otherwise there is absolutely no protection to the last tax purchaser.”

We think that the notice to defendant by the register in chancery that the requisite amount to redeem his tax titles had been deposited with such register, together with the fact that complainant’s title was of record, constituted sufficient notification and proof of complainant’s right to a deed to require defendant to execute the deed, without affirmative proof of complainant’s title, at least, in the absence of a demand for such proof.

The circuit judge correctly held that the time for redemption .did not begin to run until the return of proof of publication was filed, unless such ruling is rendered incorrect by the amendment of section 142 by Act No. 142 of the Public Acts of 1905. Pike v. Richardson, 136 Mich. 414. Act No. 142 of the Public Acts of 1905 was approved and took effect May 25, 1905. The return of proof of service by publication was filed with the county clerk April 13, 1905, and fixed the beginning of the period of redemption under our decision above cited. We think it manifest that Act No. 142 was not intended to apply to such a case.

The decree is affirmed, with costs to complainant.

Carpenter, Montgomery, Ostrander, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    JURKIEWICZ v. AMERICAN CAR & FOUNDRY CO.
    1. Master and Servant — Injuries to Servant — Contributory N EGLISENOE — FELLOW-SERVANTS.
    Where the employé of a oar manufacturer was killed while passing between cars which he knew were liable to be moved at any time, and it is claimed that the brakeman employed to give warning of the movement was not at his post, and that if the proper warning had been given and heeded the injury would not have occurred, the negligence was either that of decedent or that of a fellow-servant, for neither of which the master was liable.

    2. Same — Safe Place to Work — Duty of Master — Fellow-Servants.
    Though there is a duty on the part of the master to provide a safe place, machinery, and appliances, the duty does not extend so far as to require that he shall see at his peril that such machinery and appliances are properly used; reasonable regulations must be made for their use, but when this is done, and the fault of one servant makes a place unsafe, which, but for such fault, would be safe, the rule of nonliability for the fault of a fellow-servant applies.
    Error to Wayne; Frazer, J.
    Submitted January 22, 1907.
    (Docket No. 71.)
    Decided March 26, 1907.
    Case by Victor Jurkiewicz, administrator of the estate of Alexander J urkiewicz, deceased, against the American Car & Foundry Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Washington I. Bobinson, for appellant.

      Angelí, Boynton, McMillan & Bodman, for appellee.

      As to who are fellow-servants, apart from statute, where there is no question of vice priifcipalship, see note to Sofield v. Guggenheim Smelting Co. (N. J.), 50 L. R. A. 417.

   Montgomery, J.

This action .was instituted by the administrator of the estate of Alexander Jurkiewicz under the death act. Decedent met his death while in defendant’s employ through what is claimed to he actionable negligence of the defendant. The circuit judge directed a verdict for defendant. Plaintiff brings error.

The decedent, who was 22 years of age, commenced work for defendant as a painter on the 7th day of October, 1902, and received the injuries from which he died two days later. The defendant’s plant is an extensive one, employing from 4,000 to 5,000 men, and covering a considerable area of ground, upon which are located a number of different large buildings and shops, among which is one building known as the “erecting shop.” There are 16 tracks altogether in the erecting shop. The steel bottoms of the cars are brought from the steel plant, where they are put together, and then sent over to the erecting shop to get the woodwork on them. The defendant company employs two engines for said work; the crew for each engine consisting of an engineer and two switchmen. One Joseph Roseman was employed as yardmaster in the defendant’s yard, and had full charge of the men on the engines, and the direction of their work in switching the cars in and out of the different shops. This yardmaster had nothing to do with hiring and discharging the painters, as they worked under another man. The deceased was injured on what is known as “track 11 ” in the erecting shop, at about the hour of 10 o’clock on the morning of October 9, 1902. He was employed painting upon cars in defendant’s premises, a distance from the paint shop, and at the time of the accident was going from the place where he had been painting to the paint shop for the purpose of getting more paint, and had his paint pail in his hand. In going to the paint shop he was obliged to cross certain railroad tracks upon the premises, and more especially track 11 in the erecting shop, which tracks it appears were filled with cars, and that about four feet inside the erecting shop there was a space of about two feet left open between the cars for employés to get through. The evidence shows that when switching was not going on an open space between cars was left outside the erecting shop to admit of employés passing across the track. The defendant’s testimony tended to show that this space was always open except when switching was going On. The plaintiff’s witnesses testified that he had seen this space closed a couple of times when crews were not engaged in switching.

The case made by plaintiff’s testimony can be best understood by quoting from the testimony given by the one witness who gave testimony on his behalf as to the main facts. Frank Sieleski, a fellow employé, testified as follows:

“I was going to the pump at lunch time to take a drink, and there was a space opening between the cars— opening two feet or so; and I got between the cars, and he got between the cars, and I looked both ways, and I didn’t see any engine there at all, and I never expected to see any cars moving there. Somebody was supposed to be right there every time. When I was going through, at the same time he was coming through, too, and I looked up both ways, and there was no engines at all, and nobody standing up there. I thought we might as well go right through. He had a pail of paint, and I didn’t want to get slobbed up with paint, and I says, ‘ Go right through first,’ and he said, ‘All right,’ and he looked towards that way, and towards that way [illustrating], and he could not see anything, and never saw anything, and could see no engine, and all at once he got squeezed in the cars. * *' *
“There was no different place to go through. There was a space supposed to be open, and somebody was always supposed to be there. Before that, the brakeman always came right at the end and stopped a person going through; but at the same time then there was nobody in there, and you could not see in. I was supposed to look if there was anything there, and I ran to get through first, and that fellow was coming, and he got through himself. * * *
Q. Did you look to see if there was anybody else there ?
“A. Yes, sir.
Q. Why ?
“A. To see if there was anybody there to keep a fellow from going through there.
Q. Was there ordinarily a brakeman ahead ?
“A. There was no one' around.
Q. But generally, other times, there was a brakeman there ahead ?
“A. Yes, sir, always coming ahead.”

And' on cross-examination, in describing the circumstances of the injury, he testified as follows:

“ I told him there was no brakeman because he was going slow there. A brakeman should be there to take care of the cars. A brakeman should be there when they are switching them. I did not know they were switching those cars. I looked because they had to be on the end there. A brakeman is supposed to be on the end when they are switching. He does not have to be on the end all day long. I looked for a brakeman, because I thought they were switching those cars, and there would be a brakeman there. Jurkiewiczsaid, ‘ All right ’ before he was hit. He looked for a brakeman himself. He looked for a brakeman to see if there was a brakeman waving for him to get out of there. I knew there was no brakeman. I did not know they were switching them cars. Because I do not see no engine there I was looking for a brakeman. Because, if there was a brakeman, I would not get through.”

The plaintiff’s counsel contends that defendant failed to perform the duty which it owed to decedent to provide a safe place to work, and to travel upon its premises in the performance of his work; to guard and protect the opening or passage left between cars when employés were required to cross; and to warn decedent of the dangers with which he was confronted. The danger of passing between cars which might be expected to be moved was as obvious to decedent at a glance as it would have been with the fullest explanation. It is made to appear that decedent knew that these cars were liable to be moved under some circumstances, for it is in testimony that he was looking out for a brakeman to give warning. The defendant’s testimony tended to show that warning was in fact given. This was, however, a controverted fact. The important fact is that decedent knew enough of the custom to expect a warning, and knew that this was the provision made by defendant for his protection. The place was therefore safe enough if properly used by decedent and defendant’s other servants. If the proper warning had been given and heeded the injury to decedent could not have occurred. The negligence was either that of decedent himself or that of a fellow-servant. The duty of providing a safe place, machinery, and appliances, is recognized; but the duty of the master does not extend so far as to require that he shall see at his peril that such machinery and appliances are properly used. Reasonable regulations must be made for their use; but when this is done, and the fault of one servant makes a place unsafe, which, but for such fault, would be safe, the rule of nonliability for the fault of a fellow-servant applies. Frazee v. Stott, 120 Mich. 624, and cases cited. The direction was proper.

Judgment affirmed.

Carpenter, Blair, Ostrander, and Moore, JJ., concurred.


text:
    FLINT LAND CO. v. GRAND RAPIDS TERMINAL RAILWAY CO.
    Writ of Assistance — Propriety of Remedy — Title to Land— Tax Title.
    An application for a writ of assistance by a purchaser of the State’s bid for taxes to recover possession of the land from a purchaser at a subsequent municipal tax sale is properly dismissed; the proceeding not being appropriate to try the question of title involved.
    Appeal from Kent; Wolcott, J.
    Submitted January 22, 1907.
    (Docket No. 70.)
    Decided March 26, 1907.
    Petition by the Flint Land Company, Limited, against the Grand Rapids Terminal Railway Company and others for a writ of assistance. From a decree dismissing the petition, petitioner appeals.
    Affirmed.

      McFarlan & Wilson, for petitioner.

      Glapperton & Owen and L. W. Harrington, for defendants.
   Blair, J.

This is an application for a writ of assistance to put the applicant into possession of certain lands under the decree of the circuit court in the above matter, made on the 20th day of March, 1901, for the sale of said lands, for the taxes assessed thereon for the year 1898. February 25, 1905, appellant purchased these lands from the State, receiving deeds for the State, county, and school taxes for the years 1890 to 1899, inclusive, except 1895, certificate of purchase for the taxes of 1901; and tax receipts for the taxes of 1900, 1902, and 1903. The city of. Grand Rapids had also, under its charter, proceeded against these lots for its delinquent municipal taxes, and had at various times bid them in, and on April. 15, 1905 (49 days after the purchase by appellant), these municipal taxes were purchased by George Clapperton as' trustee for the two respondent railway companies, and he received deed therefor. This deed was for the city, highway, and special improvement taxes for the years 1893 to 1904, inclusive, and purported to convey a title in fee simple absolute. At the time of the purchase of these lots from the State by appellant, they were vacant, and appellant caused the statutory notice of reconveyance to be served upon the original owner, also upon the individual stockholders, and also upon George Clapperton as trustee, the only parties in interest, according to the records. No question is raised upon the regularity of the notice of re-conveyance, or of the service of the same, and it is admitted that the six months provided by law was allowed to expire without any attempt having been made to secure reconveyance pursuant to the statute. Appellees, or some of them, were in actual possession of the property, claiming to hold under paramount title. Under this state of facts, the court dismissed the application for the writ, holding that a question of title was involved, to try which petition for the writ of assistance did not afford an appropriate remedy.

Whatever rights the appellees claim are under proceedings subsequent to the entry of the decree, the determination of which was not involved in the proceedings culminating in the decree. The decree has a direct bearing upon the character and extent of appellant’s title, and it may have an important indirect bearing upon the title of appellees, but it never attempted to and necessarily could not pass upon titles obtained upon tax sales had subsequent to its .entry. If the deed, based upon sales by the city under its charter for delinquent taxes of subsequent years not involved in the decree, was valid, then appellees acquired a good title. If the city deed was invalid, it was not because the decree so determined, but because the city could not lawfully sell the lands for taxes while the title stood in the name of the State. Under the specious guise of enforcing the decree of 1901, the petitioner is attempting to try the validity of a title acquired in 1905, which depends upon questions, and involves parties which were not before, and could not be before, the court in 1901.

We think the appellant has misconceived his remedy. The decree is affirmed, with costs to appellees.

Carpenter, Montgomery, Ostrander, and Moore, JJ., concurred..


author: Hooker, J.

text:
      In re MERRIAM’S ESTATE.
    Taxation — Inheritance Tax — Property Subject — Nonresident Owner.
    A debt secured by mortgage on lands in this State is sub-ject to the succession tax of this State, though owned by a resident of another State, and the note and mortgage were in his possession there.
    Error to Wayne; Frazer, J.
    Submitted January 23, 1907.
    (Docket No. 87.)
    Decided March 26, 1907.
    Perry F. Powers, auditor general, appealed to the circuit court from an order determining that certain property was not subject to an inheritance tax. There was judgment for the estate, and James B. Bradley, auditor general, brings error.
    Reversed, and remanded to the circuit court with directions to certify the same to the probate court with directions to impose the tax.

      John F. Bird, Attorney General, and Thomas Ambrose Lawler and J. Bhurly Kennary, Assistant Attorneys General, for appellant.

      Francis J. Bwayze {Barbour & Field, of counsel), for appellee.
   Hooker, J.

Henry W. Merriam, a resident of New Jersey, died possessed of a promissory note for $10,000 secured by a mortgage upon real estate in Detroit. Both note and mortgage were in his possession in New Jersey up to the time of his death. It is claimed that upon his death the title to this note and mortgage passed to his heirs by inheritance under and by virtue of the laws of New Jersey. The auditor general asserted a claim on behalf of this State under the inheritance tax law, upon the theory that this transfer was subject to the inheritance tax law of Michigan. The decision of the circuit court was adverse, and the auditor general appealed.

The learned circuit judge filed an opinion in which he held that the right of the heir to the note and mortgage does not rest on the law of Michigan, but that it was de-» pendent upon the law of New Jersey, and that the succession tax was not designed to apply to a case where the inheritance depended on the law of another State.

In re Stanton’s Estate, 142 Mich. 491, unqualifiedly holds that an inheritance tax may be levied in this State upon notes and mortgages of, and contracts relating to, land in this State, owned by a resident of another State; but which notes and mortgages have always been kept in Michigan for the purpose of collection and reinvestment, though they might have been temporarily taken to New York. This seems to have been predicated upon the theory that the State where such property has a situs may control the right of succession and practically does so, so that the transfer depends upon its laws. It is a complete answer to the reason given by the circuit judge, if it is sound.

This has the sanction of the Federal Supreme Court. Blackstone v. Miller, 188 U. S. 203-206, which applies the doctrine to a bank deposit, which it is perhaps unnecessary to say established the relation of debtor and creditor. The case does not seem to turn upon the situs of the evidence of indebtedness. We are not called upon to consider so extreme a case, for in the case before us the situs of the evidence of indebtedness, i. e., the record of the mortgage, and the land was in Michigan, as it was also in the Stanton Case.

It is contended that we copied this law from the New York statute, and that we therefore took it with the construction that had theretofore been given it, and that construction was in accord with the claim of the heir. The case, Matter of Bronson, 150 N. Y. 1 (34 L. R. A. 238), held that bonds of and certificates of stock in a New York corporation, owned by, and in the possession of, a nonresident, at his domicile out of the State, at the time of his death, were not subject to taxation, under the transfer tax law, and it was followed in Matter of Preston, 75 App. Div. (N. Y.) 250, which involved bonds which were secured by mortgages on lands in New York; said bonds and mortgages being at the domicile of the owner at the time of her death. It is possible that the Case of Bronson may conclude us, when such a case arises, but the case now before us differs in two particulars: First, there was a credit secured by mortgage on lands in this State; second, the evidence of indebtedness had a situs here. The Preston Case is not an adjudication of a court of last resort. We think the case is ruled by the Case of Stanton, supra. See, also, Common Council of Detroit v. Board of Assessors of Detroit, 91 Mich. 91 (16 L. R. A. 59).

The order is reversed, and the cause will be remanded to the circuit court, with directions to certify the same to the probate court, with directions to proceed to impose the tax. The appellant will recover a judgment here for costs of both courts.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    HOSKEN v. CARR.
    Pleading — Issues—Evidence Admissible.
    Under a declaration on the common counts in assumpsit and a bill of particulars stating an account between the plaintiff and defendant for items furnished defendant, evidence of an account for items furnished defendant’s deceased husband, and that defendant promised that, if plaintiff would mate no expense and would release the estate, she would pay the bill, is inadmissible.
    Error to Jackson; Parkinson, J.
    Submitted January 23, 1907.
    (Docket No. 96.)
    Decided March 26, 1907.
    Assumpsit by Fuller H. Hosken against Frankie J. Carr for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Eeversed.

      John W. Miner {Grove H. Wolcott, of counsel), for appellant.

      William K. Sagendorph, for appellee.
   Montgomery, J.

This action was instituted in justice’s court. The declaration was on the common counts in assumpsit. A bill of particulars was filed which stated an account between the plaintiff and defendant for items furnished in connection with putting down a well amounting to $115, upon which a judgment of $25 was credited. On the trial it appeared that these items were furnished to Charles Carr (defendant’s husband) in his lifetime. The plaintiff was permitted to show that the well was put down on a farm owned by the defendant and her husband as tenants by the entirety, that shortly after the indebtedness was incurred Charles Carr died, and that a few days later the defendant promised plaintiff that, if he would make no expense and would release the estate, she would pay the bill. All this testimony was introduced over defendant’s objection and exception. ' The plaintiff recovered, and defendant brings error.

The common counts were by the bill of particulars limited, in effect, to counts for goods sold and delivered to defendant ana work and labor performed by plaintiff for defendant. The pleadings contained no suggestion of a claim that by a new contract the defendant had made herself liable to plaintiff for goods before then sold to another. The contract sued upon and the one upon which recovery was had were quite different. There was no offer to amend the declaration or bill of particulars, but recovery was had upon the pleadings as they stood. In these circumstances we cannot ignore the objection. The evidence was not admissible under the pleadings. 1 Chitty on Pleadings (16th Am. Ed.), p. 357; Pennsylvania Mining Co. v. Brady, 14 Mich. 260.

Judgment reversed, and new trial ordered.

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


author: Moore, J.

text:
    BEHRNS v. QUALMAN.
    Cancellation of Instruments — Deeds — Incompetence of Grantor — Evidence — Sufficiency.
    On a bill to set aside a deed, evidence examined, and held, not to establish by a preponderance that at the time the deed was made the grantor was mentally incompetent to make it.
    Appeal from Macomb; Tucker, J.
    Submitted January 24, 1907.
    (Docket No. 101.)
    Decided March 26, 1907.
    Bill by Henry Behrns, an incompetent, by Charles Scheer, guardian, against Charles Qualman and Augusta Qualman to set aside a deed. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Franz G. Kuhn and Robert F. Eldredge, for complainant.

      John A. Weeks, for defendants.
   Moore, J.

The questions involved are so clearly stated in a written opinion filed by the trial judge that we insert it here:

“The bill in this case was filed December 23, 1902, to set aside a deed given by Henry Behrns to Charles Qualman, the defendant, on the 4th day of January, 1902.
‘ ‘ This deed purported to convey to the defendant about 60 acres of land in section 20 of the township of Warren, Macomb county, Mich. The consideration expressed in the deed is $6,000.
“ This consideration was paid by mortgage of $3,500 on the land in question, $2,000 in cash alleged to have been deposited to the credit of complainant at his request in the City Savings Bank of Detroit on or about January 5,1902, and a note for $500 given by defendant to his son William Qualman, at the request of complainant, for the purpose of repaying William Qualman for services performed and to be performed by him for complainant.
“Complainant claims that he was by the excessive use of alcohol mentally incompetent to execute the deed in question at the time it was executed, that the consideration paid was entirely inadequate, and that he was unduly influenced by defendant to execute the deed.
“ The complainant is a man some 53 years of age. He had two daughters. His wife had died on August 30, 1901. His daughters remained with him and looked after his house for a time after the death of their mother, when, owing to some differences between them and their father, both left home to work out, leaving complainant to his own resources. He and the defendants had been friends for some time, and complainant secured defendant’s son William to come to his house and look after it and work on the farm.
“ Complainant had for many years been addicted to the use of intoxicating liquors. He had also been a hard working, industrious man, and had accumulated quite a little property. He was always considered a fairly good business manager and entirely competent to manage his own affairs. After the death of his wife, he kept liquor and beer in large quantities in the home, and used it to such excess that there were undoubtedly many times when he was utterly unfit for business, and he finally became such a physical wreck and so generally demoralized that he concluded to sell out his farm and personalty and live at some other place than on his farm. The evidence shows that this intention was formed with some deliberation, and steps to carry it out were intelligently taken. His motives were easily understood and were not unreasonable. Some negotiations were had between him and the defendant, and it was finally agreed that defendant was to purchase the farm for $6,000; that defendant’s son William was to remain some little time longer with complainant and look after the place, and was to receive as compensation $500, for which amount defendant was to give William Qualman his note, and was to receive credit on $6,000 to be paid complainant for that amount.
“ Defendant seems to have had some doubt of complainant’s mental soundness, and secured witnesses for the transaction with a view of establishing the fact that he was competent. On January 4, 1902, the parties met at complainant’s house, and the deed from Behrns to Qualman was executed. A note from Qualman, Sr., to William Qualman, his son, executed, which was to apply on the purchase price of the farm and pay for whatever services had been and were to be rendered by William Qualman for the complainant. A mortgage covering the farm was executed by Qualman and wife to complainant for $3,500, and the sum of $2,000 in cash was delivered to complainant by defendant and redelivered to defendant to be deposited by him to complainant’s credit in the City Savings Bank of Detroit. This made up the entire consideration.
“Was complainant mentally competent to execute this deed? There are four things of which I feel convinced. The consideration paid, viz.: $6,000, was entirely adequate and all the farm can be said to be reasonably worth. There was no undue influence, nor fair evidence of fraud, that I can see. The deposit to complainant’s credit in the City Savings Bank was at complainant’s request, and was made in good faith, and, if any loss resulted, it must be complainant’s loss. Complainant was usually, up to the time of the execution of this deed, fairly competent mentally to do, and did as a matter of fact, transact his usual business. He knew and realized that his wife had died, that his children were dissatisfied and would not live with him, and that it would be better for him to sell out, and he insisted on a fair price for the place. There were certainly many times subsequent to his wife’s death, and perhaps before, when complainant was at least temporarily utterly incompetent to transact business of any kind. One of which times was January 3d, the day before this deed was executed.
“Was he competent on the 4th? He was certainly much weakened physically and mentally by his continued excessive use of alcohol. The evidence is conclusive that on the 3d, the day before this deed was executed, complainant was utterly incompetent to do business of any kind. Several reputable witnesses testify that on the 4th, when this deed was executed, he was entirely competent, appeared to fully understand the details of the transaction, and in fact dictated all the terms himself. There were certainly some circumstances which might be assumed to throw suspicion upon his competency. He arranged to pay William Qualman, the boy who took care of the house for him, what seems rather an exorbitant sum considering what service he had rendered. There were large sums of money received by him for which no one seems able to account. He was cértainly a physical wreck at the time this business was done.'
“ The rule laid down by the Supreme Court, in the case of Williams v. Williams, 133 Mich. 21, seems to be that, no matter how addicted to the excessive use of liquor a man may have become, or how much he may be weakened generally speaking, mentally or physically, or both, by his excesses, if, at the particular time of a disputed transaction, he appears to reputable witnesses, who may have seen him but a few times sober, in the full possession of his faculties, and to know what he desires and intends to do, he is to be held competent to transact the business then in hand.
“Using that standard, I feel constrained to hold that, at the time this deed was executed, viz., the afternoon of January 4, 1902, the complainant, Henry Behrns, was mentally competent to transact business and to execute the deed in question. ”

A decree was made in accordance with the opinion, and the case is brought here by appeal.

The following appears in the record:

‘ ‘ The testimony of this witness, as well as other witnesses of the complainant, tended to show that the consideration agreed to be paid by the defendants for the deed was inadequate and much below the real value of the land. Defendants offer testimony contradicting this, and, as it is not the claim of counsel for complainant that the weight of such testimony in favor of such inadequacy is sufficient to justify them in asking the Supreme Court to reverse the decree entered in the circuit court, on the ground of such inadequacy of consideration, none of the testimony touching that point is set forth herein.”

This, of course, eliminates the question of inadequacy of consideration.

Was the complainant incompetent to make the deed ? The solicitors for the complainant- concede the burden is upon their client (see Gibbons v. Dunn, 46 Mich. 146), but insist he has met it, and that the trial judge would have so found had he not labored under a misconception of the decision of this court in Williams v. Williams, 133 Mich. 21. It must be conceded that the testimony is very conflicting. Some of it offered on each side is from interested witnesses. Some of it, given by witnesses who have no apparent interest, is contradictory and irreconcilable. The testimony of the family doctor, who was also a witness to the deed, and of the notary who drew the deed, is to the effect that Mr. Behrns understood perfectly what he was doing, and was competent to do it. Counsel, however, say that this testimony is in conflict with that of other witnesses. We quote:

“ It is true that Dr. Flynn and the scrivener Harwood are not interested financially, but they are professionally, since, having witnessed and approved of the transaction, they would stultify themselves to now admit the plain incompetency of Behrns. The real key to their testimony lies in the phrase that each uses: ‘ If I had thought he wasn’t (competent), I should not have executed them.’ And: ‘ If I had thought he wasn’t, I would not have witnessed the deed.’ Having put themselves where they had, they felt that they must stand by their guns.”

The trial judge evidently knew these men, and refers to them as roputable witnesses. Is it not more likely that, as testified by them, the one would not have drawn the deed, and the other would not have been a witness to it, if they had thought the grantor was incompetent, than that they now commit perjury ? There are some facts appearing in the record which we think have great significance. The deed was made on the 4th of January. $2,-000 was paid over at that time, and at the request of the complainant was deposited in a bank in his name. A bank book was issued to and delivered to him. At least a month before the sale was made, complainant stated to witnesses that he intended to sell the farm. Ten days after the land was sold, complainant had an auction of his personal effects. A brother-in-law, one of the most important witnesses for complainant to establish his incompetency all through the month of January, was at the auction sale, and did not hesitate to purchase from him a horse and buggy for $182. The man who was later appointed guardian was present at the auction sale. On the 17th of January, and again on the 22d of the same month, the complainant told the cashier of the bank at Warren that he had sold his farm because the girls had left him; that he had sold it for $6,000, and thought it best to do so. After the bank failed, complainant told one of the witnesses he had lost $2,150 in the Detroit City Savings Bank. The defendant Qualman testified that complainant got a letter from the receiver and turned in his bank book. One of the solicitors for the complainant produced the bank book at the trial, and stated he got it from the Union Trust Company. Under date of January 7th, there was entered to complainant’s credit $2,000. A check was also made out by the Union Trust Company under date of November 18, 1902, payable to the order of Henry Behrns, for $430.15, as dividend No. 1 on payee’s claim against the savings department of the City Savings Bank.

As already appears, this case was commenced December 23,1902. Cases having more or less bearing upon the effect of intoxication upon the act of executing papers are Pierce v. Pierce, 38 Mich. 412; Carpenter v. Rodgers, 61 Mich. 384; Wright v. Fisher, 65 Mich. 275. See, also, 17 Am. & Eng. Enc. Law (2d Ed.), p. 401. We do not think it is established by a preponderance of the evidence that at the time the deed was made the grantor was incompetent to make it.

The decree is affirmed, with costs.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    PLEFKA v. DETROIT UNITED RAILWAY.
    1. Assumpsit — Waiver of Tort — Action Against Carrier.
    Where a married woman is injured while a passenger on a street railway, her husband’s action against the railway to recover money paid out for medical attendance is in tort, and he has no right to waive the tort and sue in assumpsit.
    2. Justices of the Peace — Certiorari—Review—Merits.
    Section 948, 1 Comp. Laws, authorizing the court on certiorari to a justice of the peace to render judgment in accordance with the right of the matter, disregarding technical errors, does not authorize affirming a judgment for plaintiff in assumpsit where the form of action should have been case.
    Error to Wayne; Mandell, J.
    Submitted January 24, 1907.
    (Docket No. 12.)
    Decided March 26, 1907.
    Assumpsit by John Plefka against the Detroit United Railway for money had and received. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Corliss, Leete & Joslyn, for appellant.

      William Van Dyke, for appellee.
   Montgomery, J.

The plaintiff brought this action in justice’s court in assumpsit, and declared on the common counts. On the trial he offered evidence to show that his wife, Celia Plefka, sustained an injury while riding upon a car of defendant through defendant’s negligence, and that this negligent act of defendant had made it necessary for plaintiff to expend $43 for medical attendance. Defendant contended that there could be no recovery under the pleadings. The contention was overruled, and judgment was entered for the plaintiff. Thereupon defendant sued out a writ of certiorari to the circuit court, where the judgment was affirmed. Error is brought to review this ruling of the circuit judge.

It is said that in some cases a passenger who while being transported in pursuance to a contract receives injuries through the negligent fault of the carrier may bring assumpsit or case at his election. 3 Hutchinson on Carriers, § 1403. In the present case, the action is not brought by the passenger, nor any one in direct contract relations with defendant. The damages which the plaintiff seeks to recover are consequential, and arise out of the duty which he owes to care for his injured wife. There was no contract between the plaintiff and defendant. Can the plaintiff, being entitled to maintain an action on the case to recover these damages, waive the tort and sue in assumpsit ? At the common law a party suffering injury through the tortious wrong of another could waive the tort and sue in assumpsit only in case the tort arose out of contract relations between the parties or the tort consisted of a conversion of plaintiff’s property into money or money’s worth. Watson v. Stever, 25 Mich. 386; Tuttle v. Campbell, 74 Mich. 652; Williams v. Rogers, 110 Mich. 418. This rule has been modified by statute, and the right to waive the tort and to maintain assumpsit extended to cases of trespass on lands or injury to lands direct or consequential (3 Comp. Laws, § 11207) and to cases of fraudulent representations or conduct of any person producing an injury either to the person, property, or rights of another for which an action on the case may by law be brought. 3 Comp. Laws, § 10421. It is obvious that neither of these statutes has application to the case under consideration. As to plaintiff’s case the rule of the common law prevails, and there exists no right to waive the tort and sue in assumpsit.

It is contended that the judgment of the justice should be affirmed on the ground that substantial justice was done, and that under the statute (1 Comp. Laws, § 948) •the court on error is authorized to render judgment in accordance with the right of the matter. We have in many cases held that technical errors which do not affect the rights of the parties may and should be ignored on certiorari. The writ has been used however to correct errors of law resulting in a judgment not authorized by the pleadings and evidence. Bullock v. Ueberroth, 121 Mich. 293. This is such a case.

Judgment reversed, with costs of both courts.

Blair, Ostrander, Hooker, and Moore, JJ., con•curred.


text:
    PEOPLE v. RIVERS.
    1. Rape — Statutory Offense — Prosecution — Evidence — Sufficiency.
    Evidence of slight penetration is sufficient to justify a conviction of rape upon a female child under the age of 16 years.
    2. Same — Information—Issues—Proof—Sufficiency.
    Evidence of a completed act of sexual intercourse, including sufficient penetration to constitute rape, does not sustain a conviction of the offense of taking indecent liberties with. the person of a female child without committing or intending to commit the crime of rape.
    Error to Oakland; Smith, J.
    Submitted January 24, 1907.
    (Docket No. 149.)
    Decided March 26, 1907.
    Bert Rivers was convicted of taking indecent liberties with the person of a female child under the age of 14 years without the intent to commit the crime of rape, and sentenced to imprisonment for not less than two nor more than ten years in the State prison at Jackson.
    Reversed, and prisoner discharged.

      jRockwell & Zimmerman, for appellant.

      Frank L. Covert, Prosecuting Attorney, and Charles S. Matthews, Assistant Prosecuting Attorney, for the people.
   Blair, J.

Respondent was convicted of, and sentenced to State prison for, feloniously assaulting and taking indecent liberties with the person of Flora Peer, his stepdaughter, a child under the age of 14 years, without committing or intending to commit the crime of rape. The information contained two counts; the first charging rape, the second charging felonious assault and taking indecent liberties. The prosecuting attorney, in opening the case to the jury, said:

“May it please the court and gentlemen of the jury: The respondent in this case is charged with having committed the crime of rape upon his stepdaughter at his home in Wixom on or about July 27, 1905. There is no claim that the girl was physically injured at that time, that he put his person in far enough to cause pain or rupture the hymen, but we do claim he had sexual intercourse with the girl at that time. * * * We propose to show that he did have, as far as he was able to do without physical injury to her, have intercourse with her, and we shall insist that we show that it constitutes the offense charged.”

The only testimony as to the offense was given by Flora Peer, who testified as to the details of a completed act of sexual intercourse, although with slight penetration of her person. The trial judge, however, correctly held that there was evidence of sufficient penetration, if believed, to justify a conviction. People v. Courier, 79 Mich. 366; People v. Sheffield, 105 Mich. 117; People v. Bernor, 115 Mich. 692; People v. Scouten, 130 Mich. 620.

Respondent’s counsel contend that the evidence is inconsistent with the charge of which he was convicted, and that he is entitled to his discharge. We are constrained to hold that this contention is correct. People v. Partridge, 86 Mich. 243; People v. Miller, 96 Mich. 119; People v. Cahoon, 88 Mich. 456.

Judgment and sentence vacated, and respondent discharged.

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


text:
    PERRY v. JOHN HANCOCK MUTUAL LIFE-INSURANCE CO.
    1. Life Insurance — Action on Policy — Instructions — Harmless Error.
    Where, in an action on a life-insurance policy, the evidence shows that assured was in good health at the time of signing her application for the policy, unless she had heart disease, and the jury find that she did not have heart disease, an instruction capable of the construction that the policy would not be avoided if assured did not know she had heart disease and answered the questions honestly, is not prejudicial to defendant.
    2. Same — Special Verdict — Effect.
    A special finding that a physician was treating assured immediately previous to the time she made application for insurance is not conclusive for defendant, where, by another special finding, the jury find that at that time she had not the disease he claimed to be treating her for, and from which she died.
    3. Same — Forfeiture—Waiver—Knowledge of Agent.
    Where the agent of a life-insurance company, who took an application for insurance at assured’s residence, wrote assured’s occupation therein as housewife, under such circumstances that he must have known her to be a prostitute, a special finding that the company’s manager never was in assured’s house is unimportant on the question of waiver of the forfeiture.

      Error to Wayne; Hosmer, J.
    Submitted January 25, 1907.
    (Docket No. 107.)
    Decided March 26, 1907.
    Assumpsit by Lucinda Perry against the John Hancock Mutual Life-Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Van Zile & Brownson, for appellant.

      Washington I. Robinson and Clarence P. Milligan, for appellee.
   Blair, J.

This case was before the court at the January term, 1906, and is reported in 143 Mich. 290. A second trial resulted in a verdict for plaintiff, and defendant again brings the record to this court for review upon writ of error, contending that the court should have directed a verdict for defendant, or, failing that, should have entered judgment for defendant upon the special findings of the jury, because: *

“First. She misrepresented in her statement as to her occupation. In her application are the following questions and answers: * * *
“ (4) Present occupation ?
“A. Housewife.
“ (5) What other occupation have you been engaged in for the last two years ?
“A. None. < .
< “ Second. She misrepresented as to the condition of her health:
“ (6) Are you now in good health ?
“A. Yes.
Third. She misrepresented as to consulting a doctor:
“ (8) When did you last consult a doctor, and for what ?
“A. Three months ago; pneumonia; recovered.”

The present record, so far as the testimony and points raised are concerned, is substantially the same as the previous record, upon which our decision was rendered establishing the law of this case. We held, upon the record here before, that there was a case for the jury, and the case was .therefore properly submitted to the jury, unless there was some error in the court’s instructions; and judgment was properly entered upon the general verdict, unless it was inconsistent with material special findings of the jury. Special questions were propounded to the jury, which were answered as follows:

“First. At the time Annie Yoakes, the assured, made application for the insurance in question, was she a prostitute and engaged jn keeping a house of prostitution at 105 Franklin street in this city ?
“Second. Was Superintendent Fentress at the house of Annie Yoakes at any time prior to her death, and did he know prior to that time that she was a prostitute engaged in keeping a house of prostitution ?
Third. Was the cause of death of Annie Yoakes primary cause heart disease, secondary cause dropsy, as stated in the certificate of death ?
“Fourth. Was Annie Yoakes on the 29th day of August, 1903, three months and nine days before she died on December 8, 1903, affected with heart disease ?
“Fifth. Did Dr. Albert L. McGough attend Annie Yoakes for the purpose of prescribing and treating her at any time during the month of August, 1903, prior to August 29, 1903 ?”
“ The jury, after retiring to consider their verdict, returned into court and returned a general verdict for the plaintiff in the sum of $280.20, and returned their answers to the special questions submitted, as follows: To the first question the answer is, ‘Yes.’ To the second question the first part is answered, ‘No;’ the second part, ‘Yes.’ To the third question the answer is, ‘Yes.’ To the fourth question the answer is, ‘ No.’ To the fifth question the answer is, ‘Yes.’”

Counsel argue that the court erred in charging the jury, in substance, that if deceased, at the time of making the warranty of sound health, did not know of her unsoundness of health, and answered the questions honestly, it would not avoid the policy. The portion of the charge complained of does not necessarily bear the construction placed upon it by defendant’s counsel. The court charged the jury explicitly that:

“If the assured was not in sound health — if she had any disease at the time she made this warranty that affected her general health in any way- — -it would be a breach of warranty, and would avoid the policy.”

What the court further said upon this question was to the effect that the applicant would know whether she was in good health as well as the medical examiner, and whether she had heart disease, and, if she did not make an honest statement to the physician, it would avoid the policy; but, if she made an honest statement, the jury “ would not be justified in finding that she had heart disease simply from the testimony which followed that she died at a certain date, and it was impossible that she was not suffering from heart disease at that time.”

It clearly appears from the evidence in the case that the applicant was in good health at the time of signing the application in the case, unless she had heart disease. There was no pretense that there was anything else the matter with her at that time, on the part of defendant’s witnesses. Defendant’s counsel propounded to the jury the special question whether the applicant had heart disease on August 29, 1903, and the jury answered, “ No.” The answer of the jury, if supported by any testimony, disposes of the question of the applicant’s health, and renders the errors complained of, if such they were, harmless. I think that the finding of the jury was not only supported by testimony, but by the great preponderance of the evidence.

It is further contended that the answer, “ Yes,” to the fifth special question, must be deemed conclusive for defendant. Dr. McGough, whose testimony is much relied upon by defendant, testified from memory of personal observation, and not from any treatment of or information from the insured or personal examination, that he knew she had heart disease. Defendant’s medical examiner who made the examination in this instance certified, among other details, that the appearance of the applicant indicated “health and vigor;” that the sounds and action of the heart were “ regular and normal;” that there was “no indication of disease of the heart or blood vessels;” and, finally, that thb applicant was “in perfect health and safely insurable.” Nonmedical witnesses testified to the good health of the applicant during the period covered by Dr. McGough. The testimony of Dr. McGough was entirely inconsistent with that of the defendant’s medical examiner, and the jury had a right to believe the medical examiner and other witnesses in preference to Dr. Mc-Gough. The finding that Dr. McGough treated applicant in August prior to the 29th is not, therefore, conclusive, since the jury have found that the applicant did not have the disease he claims he treated her for. The general verdict implies, and the jury must have found, that Dr. McGough’s treatment was not for a serious complaint.

The finding that Mr. Fentress, defendant’s Detroit manager, was never in the house occupied by applicant, is not important, so far as the question of waiver is concerned. It was not claimed on either trial that Mr. Fen-tress was present when the application was taken, but the agent appointed by the company in Boston, who had charge for the company of securing such applications. The court properly said to the jury:

“ It does not seem to me that it is a conclusive question, because I think, if the money was paid, if the agent at the time he took this application knew of her character, and they gave her occupation as housewife, instead of prostitute, that I still think the company would be liable, ahd in this case I do not think the question is a conclusive question.”

The instruction as to the effect of the agent’s knowledge was in accordance with our previous decision, and the judgment is affirmed.

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


author: Ostrander, J.

text:
    HARTNETT v. OWOSSO SUGAR CO.
    1. Master and Servant — Personal In juries — Fellow-Servants.
    In an action by a servant for injuries sustained in operating a dredge, evidence examined, and held, that,if the fireman was negligent in testing the machinery at the moment plaintiff slipped and placed his hand on it, it was clearly the negligence of a fellow-servant.
    2. Appeal and Error — Questions Considered — Sufficiency*1 of Assignments.
    In an action by a servant for personal injuries, requests to charge that no recovery can be had on either count of the declaration, exceptions to their refusal and error specifically assigned upon such exceptions are sufficient to raise the question of the application of the rule of fellow-servant.
    Error to Bay; Collins, J.
    Submitted February 2, 1907.
    (Docket No. 2.)
    Decided March 26, 1907.
    Case by Daniel Hartnett against the Owosso Sugar Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    Plaintiff was employed on a dredge operated by defendant. The dredge was 78 feet long, 31 feet wide, and had a main deck, cabin roof, and upper cabin roof. There were three anchors, called “spuds,” two of them at the forward and one at the rear end of the dredge, used to keep the dredge in position, raised, when it was desired to move the dredge, by machinery, and falling of their own weight into the earth at the bottom of the canal or channel. The accompanying picture shows the spud and connecting apparatus above the cabin roof or upper deck of the dredge.
    The piston, connecting with the clamp at the left, lower part of the picture, is operated by steam from a cylinder on the deck below. The action forces the clamp instantly against the side of the spud and lifts the spud. Releasing the steam releases the clamp and allows the spud to fall. The operation is simple. ' About 9 o’clock on the morning of December 10, 1904, it was reported that the rear spud was stuck. The engineer sent a fellow workman of plaintiff to go on deck and attend to the matter. This workman called to plaintiff to go with him, and, having remedied the trouble, which was in the cylinder, told plaintiff to get an oil can and oil the parts. While doing this, he slipped, threw out his hand, caught the clamp at the instant that the fireman on the deck below tested the working order of the cylinder. His hand was pinched between the clamp and the spud. Plaintiff was 43 years old. Two or three years before he was hurt he had worked on a dredge and handled the front spuds, which worked the same as those on the dredge in question. He had handled and worked the forward spuds, or one of them, on the dredge in question. The rear spud was in charge of a man (called “ John Doe ” in the declaration) named Howard. His duties were to fire the boiler and to raise and lower this spud. Plaintiff did whatever he was told to do, and had been employed by defendant from October 20th to the date of his injury. Testimony on the part of plaintiff tended to prove that the second deck, on which he stood when he was hurt, was sloping, was covered, in places, with ice, and had no railing. There was testimony, also, which tended to prove that the fireman was either careless or incompetent in managing the boiler; none that he was careless or incompetent in working the spud. There was no testimony tending to prove that the want of railings or barriers, or that imperfect machinery or apparatus, had anything to do with plaintiff’s injury, or that it occurred in any way other than is above described.

      The declaration contains three counts. In the first two, the negligence of defendant averred is the employment, as fireman upon the dredge, of a person who “ did then and there negligently, carelessly, and unskilfully start, run, operate, and put in motion, without any signal being given him therefor, said steam cylinder and the machinery connected therewith and operated thereby on said dredge, thus causing serious and permanent injury to the person of plaintiff.” The third count alleges that certain machinery and apparatus had been allowed to become worn and loose, and out of repair. That there was no rail, guard, or barrier around this apparatus or around the outer edge of the deck to prevent employes from falling or from being thrown off the deck into the water.
    ‘ ‘ That on the day and at the pláce last aforesaid, while plaintiff was in the performance of his duties, at and about said spud on said dredge, in obedience to the orders and commands of defendant, said spud, which had theretofore been raised, by reason of the fault and negligence, as aforesaid, of defendant in suffering and permitting said dredge, machinery, tools, and appliances to be and remain in an unsafe and dangerous condition, and not keeping and maintaining said spud and the machinery and appliances connected with it and by which it was started, operated, and controlled, in such a condition of repair that it would be safe for defendant’s employés, said spud, suddenly and without warning, fell and dropped, causing serious and permanent injury to the person of plaintiff, as hereinafter stated. That, as a result of the negligence and carlessness of defendant in employing and retaining in its employ, said Doe, as aforesaid, and in suffering and permitting its dredge and steam cylinders, cogs, spuds, machinery, tools, and appliances therein and thereon to be and become unsafe, dangerous, and to be and remain out of repair, the spud aforesaid suddenly and rapidly dropped and fell as aforesaid, and caught the left hand of plaintiff in and between the cogs, teeth, wheels, machinery, and appliances in, on, and about said spud.”
    The case was submitted to the jury upon the theory of defendant’s negligence in employing and in keeping in its employ the fireman; the jury being instructed that whether he was incompetent and unfit, whether due care was employed in hiring and in keeping him, and whether his incompetency and unfitness in the performance of his duty was the cause of the injury, were questions to be determined from the evidence.

      Keena, Lightner & Oxtoby, for appellant.

      Brakie J. Orr, for appellee.
   Ostrander, J.

(after stating the facts). It will be unnecessary to consider most of the assignments of error which are relied upon by counsel for appellant. It is evident the trial court was of opinion that no recovery could be had under the third count of the declaration. The jury were not so instructed; but we assume it was understood, from the charge delivered, that to support a verdict for plaintiff it must, among other things, be found ‘ ‘ that it was Howard’s (the fireman’s) incompetency and unfitness in the performance of his duty; and the doing of an act which was the result of his unfitness and incompetency that caused the injury,” and that the jury so found. The only act of the fireman which contributed to the injury of the plaintiff was the turning of steam into the cylinder. No one pretends to say that he did not do this act in a proper way. As to whether he did it at a proper time, the evidence is that, when it is desired to move the dredge, whistles are blown as signals, and there is evidence tending to show that no whistle was blown on this occasion. But the undisputed evidence is, also, that it was a proper thing for the firemen, the spud having stuck and been released, to ascertain whether it was in working order. The fireman could not see plaintiff. The testing of the apparatus was attended ordinarily with no danger to any one. Three concurrent acts made the injury possible— the slipping of plaintiff on the deck, the clutching of the clamp, the turning of steam into the cylinder. The competency or incompetency of Howard, as a fireman, had nothing to do with it; and if he was competent to perform that duty, and his action was, in any respect, negligent, it was clearly the negligence of a fellow-servant of plaintiff. Bergstrom, v. Staples, 82 Mich. 654.

It is asserted in the brief for appellee that there are no assignments of error, relied upon, which permit this court to consider the question of the application of the fellow-servant rule. We find specific requests to charge that neither under the first nor the second count of the declaration can a recovery be had, exceptions to the refusal to so charge, and error specifically assigned upon such refusal. The twelfth request to charge is to the effect that plaintiff assumed the risk of the negligence of a fellow-servant, and error is assigned upon the refusal to charge as requested. ' It is assumed, and correctly, in the brief for appellant, that the injury was occasioned because of the action of a fellow-servant of plaintiff, and some 16 pages of the brief is devoted to a discussion of the subject of negligence in the employment of the fireman and negligence in retaining him. Bergstrom v. Staples, supra, and Walkowski v. Consolidated Mines, 115 Mich. 629 (41 L. R. A. 33), are expressly relied upon. There was no evidence to support a verdict under either count of the declaration, and the jury should have been so told.

The judgment is reversed, and a new trial granted.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    RODGERS v. ROBSON.
    1. Limitation of Actions — Part Payment — Indorsement—Necessity of Consideration.
    A mere indorsement of part payment on a mortgage note without consideration will not serve to prevent the running of the statute of limitations respecting the foreclosure of mortgages (§ 9725, 3 Comp. Laws).
    2. Same — Acknowledgment—What Constitutes.
    A letter from mortgagor to mortgagee stating that the mortgagor has an opportunity to sell a part of the land “you have a mortgage on ” and asking whether the mortgagee will release the part described for a consideration named is not sufficient to suspend the statute of limitations.
    3. Same — Interruption of Statute — How Accomplished.
    Whether the running of the statute of limitations respecting mortgage foreclosures can be interrupted for any cause other than payment, qusere.
    Appeal, from Clinton; Searl, J.
    Submitted February 15, 1907.
    (Docket No. 153.)
    Decided March 26, 1907.
    Bill by Daniel S. Rodgers against John H. Robson, executor of the last will and testament of David A. Hayt, deceased, to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    This is a suit brought to foreclose a mortgage dated December 5, 1883. It was given to secure a note for $550, executed by the defendant’s testate, and was payable December 5, 1888. The record does not show the date of filing the bill. It was heard in open court March 24, 1906, and decree entered April 23, 1906, dismissing the bill. It is conceded that the mortgage is barred by the statute of limitations, unless it was kept alive by an indorsement upon the note of $300, dated October 16, 1901, or by a letter written by the mortgagor to the complainant, the mortgagee, on July 15, 1903, in which the mortgagor stated:
    ££ I have a chance to sell 26f acres of land you have the mortgage on. I would like to know, if I pay you $500, if you will release the mortgage on the 26-1 acres? [describing it].”
    To the letter complainant made no reply.
    The sole evidence of the circumstances under which the indorsement of the $300 was made is that of the complainant himself, who testified as follows:
    “ Q. What took place, and what was said between you at the time this indorsement was made, at your place ?

      “A. I told him I would give him $400 on the mortgages and he said he would do what he could about raising the money. He offered his place for $2,000, and if he could sell it he would pay me. * * * I don’t remember as anything more was said. The indorsement was made.

      “ Q. He was there when you indorsed it ?

      “A. Yes, sir.
    “ Q. Did he see you indorse it ?

      “A. I suppose he did. He sat right there.
    ‘£ Q. How far was he from you ?
    ££ A. Well, he sat not far.
    ££ Q. Did you have these notes there?

      “ A. Yes, sir.
    “ Q. Did he see you have the notes ?
    ££ A. I think so.
    “ Q. Did he see you writing on them ?
    ££ A. Yes, sir.
    _££ Q. What did you say to him in reference to having him indorse something on them ?

      “A. I told him I would give him $400 on the mortgages. That is all that was said.
    “ Q. What did he say in reply to that?
    “ A. I don’t remember.”

      O. G. Yerkes, for complainant.

      A. G. Shepard, for defendant.
   Grant, J.

(after stating the facts). The statute on the subject (3 Comp. Laws, § 9725) reads as follows:

“No suit or proceeding shall be maintained to foreclose a mortgage on real estate, either at law or in equity, unless commenced within fifteen years from and after such mortgage shall be due and payable, or within fifteen years after the last payment was made on said mortgage.”

Payment implies that the payor has parted with money or other valuable thing, and that the payee has received it in part liquidation of the debt. It is not indorsement that satisfies the statute. It is actual payment. Otherwise it would be an easy matter for a payee to avoid the statute. An agreement to forbear a part or whole of the debt without any consideration is void. The mortgagor in this case paid nothing. The mortgagee received nothing. It would be a misnomer to call such a transaction a payment within the meaning of the statute. Blanchard v. Blanchard, 122 Mass. 558; Erpelding v. Ludwig, 39 Minn. 518; Young v. Alford, 113 N. C. 130; Areaux v. Mayeux, 23 La. Ann. 172; 19 Am. & Eng. Enc. Law (2d Ed.), p. 326.

The letter did not operate to suspend the statute. It is not sufficient under the general statute of limitations (3 Comp. Laws, chap. 268, § 9740), requiring the acknowledgment or promise to be in writing, even if we should hold that section 9740 was applicable to the foreclosure statute. It contained no new promise to pay, and was not an acknowledgment of the entire debt. It was merely an inquiry to ascertain if the mortgagee would discharge the mortgage as to a part of the land if the mortgagor would pay $500. The statute had nearly run against the right to foreclosure. A mortgagor cannot maintain a bill to set aside the mortgage after action is barred by the statute; and, if barred, the mortgagor might have been willing to obtain a release of part by paying a certain sum. Carr v. Carr, 138 Mich. 396; Halladay v. Weeks, 127 Mich. 363; Throop v. Russell, 145 Mich. 482; Currier v. Lockwood, 40 Conn. 349; 6 Current Law, p. 480; Bell v. Morrison, 1 Pet. (U. S.) 351. In the last case, the payor wrote the payee: “I know that we are owing you, and I am anxious it should be settled,” and offered to pay $7,000 in full settlement. It was held that the letter did not take the case out of the statute.

Whether the running of the statute can be interrupted fdr any cause other than payment — queere. As it is not necessary to the determination of the case, we do not decide the question.

Decree affirmed, with costs.

Me Alva y, C. J., and Carpenter, Blair, and Montgomery, JJ., concurred.


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    EWING v. LAMPHERE.
    1. Judgment — Probate Orders — Equitable Relief — Fraud.
    Equity has jurisdiction to set aside an order of the probate court in administration proceedings on the ground that it was procured by the fraudulent concealment of a will of the decedent.
    2. Equity — Jurisdiction—Remedy at Law.
    There is no adequate remedy at law barring equitable jurisdiction to set aside an order of distribution by a probate court and to protect the estate on behalf of legatees.
    3. Same — Pleading—Verification.
    The verification of a bill to set aside an order of the probate court by one or more complainants, though not by all, is sufficient.
    4. Same — Laches—Fraud—Concealment of Will.
    Where, by the fraudulent concealment of decedent’s will, his heirs procured an order of distribution in administration proceedings instituted by them, and the legatees, on discovering that there was a will, immediately commenced proceedings to have it probate_d, a suit in chancery four years later, while the probate proceedings were still pending, to have the order of distribution set aside and to protect the funds of the estate, is not barred by laches.
    5. Same — Jurisdiction—Situs oe Property.
    A bill to set aside an order of distribution of a decedent’s estate, and to prevent the dissipation of the fund and declare the parties holding it trustees, prays relief against persons and not property, so that the court is not deprived of Jurisdiction, though a part of the property involved is without the State.
    Appeal from Wayne; Brooke, J.
    Submitted February 18, 1907.
    (Docket No. 48.)
    Decided March 26, 1907.
    Bill by Augusta Ewing and others against Helen Lamphere and others to enjoin the dissipation of an estate. From an order sustaining a demurrer to the bill, complainants appeal.
    Reversed.
    Maybury, Lucking, Emmons & Helfman, for complainants.

      Bowen, Douglas, Whiting & Murfin, for defendants Lamphere.
   Hooker, J.

The bill of complaint avers: 1. That A. P. McIntyre died a resident of Wayne county, Mich., on May 13, 1900, leaving approximately $100,000 of personal property, and-$30,000 in reál estate. His heirs at law were two brothers, Franklin and Delos, both residents of New York, and a niece, Helen S. Lamphere, of Yassar, Mich.

2. Proceedings were 'had in Wayne county probate court to administer the estate, final account was rendered July 2, 1901, and an order of distribution of the residue of the estate was made on July 2, 1901, and the heirs had previously, and on May 16, 1901, partitioned the real estate among themselves by mutual deeds.

3. That A. P. McIntyre had been a widower for many years, and that he left a will, by which the brothers were disinherited, provision was made for the niece mentioned, and the larger portion of his property was left to the complainants. They are Augusta Ewing, Emma DuBois, and Susan Stringer, nieces of the alleged testator’s wife, Almond Harris, a nephew of said wife, Bessie Russell, Alice Burton, and Archibald Kenyon, daughters and son of one Eva D. Kenyon. It does not appear what if any relation they sustained to the testator.

4. That the defendants, or some of them or their agents, wrongfully destroyed, suppressed, or lost the aforesaid will, and the proceedings for administration were wrongfully and collusively begun, conducted, and hurried, and the property partitioned as aforesaid, and the defendants, who are pecuniarily irresponsible, are fraudulently disposing of the property.

5. That in the summer of 1901 complainants first heard of sáid will, and in August, 1901, received from one who had been a housekeeper for deceased (and who was a devisee of a hotel by the terms of said will)' an alleged memorandum copy or draft of said will, and upon August 24, 1901, complainant Augusta Ewing, presented to the probate court of Wayne county, Mich., her petition for the probate of said will, and that when this bill was filed, viz., on January 2, 1906, the same was pending and ready for hearing a third time in the circuit court for said county, said cause having previously been heard in the Supreme Court twice where opinions favorable to complainants had been twice filed. [133 Mich. 459, 141 Mich. 506.]

6. The bill asserts that the property became trust funds in the hands of the defendants by reason of the premises, that there is danger of their being dissipated and'lost to them, through the collusion and prodigality of the defendants; and its prayer is (a) that defendants be decreed to be trustees holding the moneys and property, as trust funds, for the benefit of the complainants; (6) that they be required to come to an accounting with complainants, regarding the same, and the income, profits, and proceeds; (c) that it be decreed to be still the property and assets of the estate of said McIntyre, and subject to complainants’ claims; (d) that it be decreed that the defendants took, received, and hold the same unlawfully and fraudulently; (e) that all of said assets, proceeds, and increase be held to answer the bequests and devises of complainants when said will shall have been finally established; (/) answers from each defendant to special interrogatories set forth in the bill; (g) a temporary injunction, restraining further disposition of said property, to be made perpetual on the entry of the decree; (h) a prayer for general relief.

A demurrer to the bill was filed on behalf of four out of the ten defendants. The grounds alleged were:

(1) an adequate remedy at law; (2) no cause for equitable jurisdiction; (3) want of proper verification; (4) laches constituting a bar; (5) want of jurisdiction of property outside of the State.

A motion to dissolve the ex parte injunction was also made. Upon a hearing the demurrer was sustained, and the bill was dismissed, and by consent the further order was made continuing the preliminary injunction in force, pending the decision of the Supreme Court of the proposed appeal from said decree.

The complainants disavow asking that the will be established in the chancery court, and say that they seek relief against the dissipation of the estate. We have held that our probate courts have jurisdiction over the probating of lost wills. See Ewing v. McIntyre, 133 Mich. 463. In view of the pendency of the proceeding for probate and the above-mentioned disavowal, we need not now pass upon the question whether equity would in all cases, or even in a case like the present, have jurisdiction to admit the lost will to probate. Jurisdiction is invoked upon other grounds; and they are, first, that there is a necessity to protect the fund pending the proceedings in probate court; second, that a judgment fraudulently obtained be set aside, without which the fund could not well be reached.

That equity may assume jurisdiction in both classes of cases does not admit of doubt (see 1 High on Injunctions [4th Ed.], § 688), and, while equity will not lightly interfere to suspend the effect of judgments, it is no uncommon thing for it to do so, to prevent the collection of a judgment obtained, upon filing a bill to vacate the judgment on the ground of fraud in procuring it. See 1 High on Injunctions (4th Ed.), §§ 190 et seq., 207, 232, 233, 235. It is noticeable that section 207 indicates that a preliminary injunction issued in the case there cited. Gainty v. Russell, 40 Conn. 450. See, also, 1 High on Injunctions (4th Ed.), §§ 3, 4, 5a, 8, (and notes 40, 42, 43), 19. The jurisdiction to set aside judgments on the ground of fraud is equally well supported. See cases cited above. 1 Story on Equity Jurisprudence (13th Ed.), § 252; 12 Am. & Eng. Enc. Law (1st Ed.), pp. 139-142. Especially should this be true where the court which rendered the judgment is powerless to give relief. Grady v. Hughes, 64 Mich. 540, 80 Mich. 184; Corby v. Wayne Probate Judge, 96 Mich. 11; Maney v. Casserly, 134 Mich. 258.

It was clearly competent, therefore, for the complainants to bring this suit to set aside the orders of the probate court in the administration proceeding, upon the ground that they were obtained by fraud, although the court should, perhaps, defer a final determination of the question until the question of the fraudulent suppression of the* will, upon, which it depends, shall have been tried out in probate court, on the application to admit it to probate. As already indicated, we need not determine whether, having jurisdiction for the purposes named, it might dispose of the whole matter, thus practically probating the will and distributing the property, as it is unnecessary.

The bill is apparently filed upon the theory that the whole controversy might be settled in equity. Perhaps it might be, and possibly equity would be, a better tribunal to deal with these questions than the probate court, but counsel for the complainants have proceeded in probate court, and on a former occasion in this court and case have insisted that the probate court alone has jurisdiction to probate the will. Moreover, as already stated, they disavow any intention to claim that this court should deal with that question. .We are of the opinion that the substance and the prayer of the bill state a case within the cognizance of a court of equity.

The grounds of demurrer are not sound.

1. There is no adequate remedy at law either to set aside the order of distribution or to protect the fund.

2. We think the verification of the bill by one or more complainants, though not by all, is sufficient.

3. There is no substance to the claim of laches.

4. The bill does not ask the court to act upon the property, either outside of or within the State, but upon the parties.

Whether the preliminary injunction should be dissolved on the coming in of the answer is not a question for us to decide. It is within the discretion of the circuit judge.

The decree is reversed, and the demurrer is overruled. The usual order giving defendants time to plead may be taken. Complainants will take costs of this court.

McAlvay, C. J., and Carpenter, Ostrander, and Moore, JJ., concurred.


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    DUKE v. BEATTY.
    Replevin — Separate Liens — Judgment—Statutes.
    Under section 10675, 3 Comp. Laws, where each of two defendants in replevin has a separate lien and claim against the property replevied, and waives a return of the property, the court has power to render a separate judgment in favor of each defendant for the amount of his lien.
    Error to Van Burén; Des Voignes, J.
    Submitted February 21, 1907.
    (Docket No. 117.)
    Decided March 26, 1907.
    Replevin by Marcus B. Duke and Edward Ingraham against Peter Beatty and Lemuel Beatty. There was judgment for plaintiffs on a verdict directed by the court, and defendants bring error.
    Reversed.

      Barnard & Lewis, for appellants.

      Cook & Chandler {Thomas J. Cavanaugh, of counsel), for appellees.
   Moore, J.

This is a suit in replevin. Plaintiffs were the owners of a merry-go-round which they were running in the State of Indiana. They gave a chattel mortgage thereon October 30, 1903, to Mrs. Meyers for $135, which came due in January, 1904. They had some talk with defendants about helping them to raise money to take up this mortgage. The result of their negotiations was that they gave a bill of sale to the defendants of the property which is described in the writ of replevin. The bill of sale is not returned to this court, but is stated to have been in the ordinary form, running to Peter Beatty and Lemuel Beatty, the consideration named therein being $135. All the parties are agreed that while the bill of sale, by its terms, was absolute, that it in fact was given to secure defendants.

It is the plaintiffs’ claim that the defendants were secured against loss by reason of signing a note in the sum of $125; that the note was subsequently paid, by moneys taken in by all the parties while running the merry-go-round, and the lien was discharged.

It was the claim of defendants that the bill of sale was given, not only to secure them because of their signing the note, but that they were to go with the machine, and help run it; that they were to be paid; that they were also to be reimbursed for money advanced; and that each of them worked and advanced money for which they had not been reimbursed — all of which was secured by the bill of sale. The circuit judge was of the opinion that, as the evidence disclosed the claim of each of defendants was an individual one, the amount each claimed as a lien could not be determined in this action, and directed a verdict in favor of the plaintiffs.

The question involved is, Did the judge err in directing a verdict ? As before stated, the action is replevin with the usual declaration in replevin. The plea was the general issue. Upon the trial the defendants waived a return of the property, and asked that the amount of their several liens be fixed. The plaintiffs claimed the lien, secured by the bill of sale was discharged. We have already stated the claim of defendants. This difference in the respective claims made a question of fact for the jury, unless the judge was right in holding that because the suit was brought against the two defendants, that each of them could not have a lien, the amount of which could be determined in this litigation. Sweetzer v. Mead, 5 Mich. 107, is authority for the proposition that where each of two defendants has an independent lien for separate claims, that the two liens will not support a joint judgment. Our attention has not, however, been called to a case holding that each of them might not have a judgment for the amount of his lien. We think section 10675, 3 Oomp. Laws, contemplates that, when either of the parties to an action of this kind has a' lien or special property in the goods described in the writ, the court may render such judgment as shall be just between the parties. See the cases cited in the note to section 10675, 3 Comp Laws.

Judgment is reversed, and new trial ordered.

McAlvay, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


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    DIXON v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Master and Servant — Places for Work — Delegation of Duty. »
    Keeping switches closed and locked while not in use is not one of the absolute duties of a railroad company to its employés, but is one of its assignable duties which can properly be delegated to an employé.
    2. Same — Fellow-Servant—Application of Rule.
    A railroad company is. not liable for injuries to a crossing tender caused by the negligence of a switchman in leaving a switch unlocked, since the injuries were due to the act of a fellow-servant.

    Error to Calhoun; .North, J.
    Submitted February 15, 1907.
    (Docket No. 114.)
    Decided March 26, 1907.
    Case by Alexander Dixon against the Grand Trunk Western Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      H. Geer and L. G. Stanley, for appellant.

      J. M. & J. L. Powers, for appellee.

      As to who are fellow-servants, apart from statute, where there is no question of vice principalship, see note to Sofield v. Guggenheim Smelting Co, (N. J.), 50 L. R. A. 417.

   Blair, J.

Plaintiff, a crossing tender in defendant’s employ, brought this action to recover damages for injuries alleged to have been received on the 28th day of February, 1903, through the negligence of the defendant (1) in not keeping a certain switch east of the crossing to which plaintiff was assigned securely locked and fastened when not in use; (2) in not employing competent and careful persons to take care of and attend to switches and to keep the same safely and securely locked when not in use.

“ That said defendant for a long space of time, to wit, on said 28th day of February, 1903, and for a long space of time prior to that date, to wit, for the period of three months or more prior to said date, wholly neglected and refused to employ competent and careful servants to attend its said switches so set to the eastward of said crossing, but trusted and delegated the care of same to incompetent, careless, and negligent persons, by reason whereof said switches during said period were frequently left unattended, unfastened, and unlocked, and liable to be opened by the jarring caused by passing trains, or engines, or some portions thereof off from the track upon which they were approaching said crossing. * * *
“And the said plaintiff avers that while he was so standing in the performance of his said ■ duty, in such a position that he could not see said approaching train, the engine of said train passed over said switch which had been so negligently left unlocked as aforesaid, and a portion of the cars drawn by said engine passed over said unfastened switch, but by doing so loosened and opened said switch so that a portion of said train, while running at a high and dangerous rate of speed, passed from the track upon which it was approaching said crossing through said open switch, and was drawn from the rails and propelled violently over said crossing where the said plaintiff was standing, and with great force and violence struck and injured the said plaintiff without any fault or negligence on his part.”

At the close of the testimony, defendant’s counsel requested the court to direct a verdict in its favor, which request was refused, and the assignment of error upon this refusal presents the main subject for discussion in the briefs of counsel for the respective parties.

The theory of negligence upon which the court submitted the case to the j ury is stated in the charge as follows:

“ Now, from what I have said, gentlemen, I think you will understand that the plaintiff, if he can recover at all under the evidence in this case, it is upon the theory that while he, the plaintiff, was employed in the proper discharge of his duties and without negligence on his part, he was injured by the negligence of the defendant in failing to provide the plaintiff a reasonably safe place in which to discharge his duties, the duty to provide such a place being upon the defendant and being such a duty that it cannot avoid responsibility for resulting injury if incurred by shifting this duty or delegating its discharge to its servants or agents.”

We think that the court erred in holding that the doctrine of safe place applied to this case. The duty of keeping switches closed and locked while not in use was not one of the absolute duties of the defendant, but an assignable duty relating to a detail of operation which could properly be delegated to an employé. St. Louis, etc., R. Co. v. Needham, 63 Fed. 107 (25 L. R. A. 833); Harvey v. Railroad Co., 88 N. Y. 481; Walker v. Railroad, 128 Mass. 8; Roberts v. Railway Co., 33 Minn. 218; Miller v. Railway Co., 20 Or. 285; Henry v. Railroad Co., 140 Mich. 446. Upon this record, defendant’s request for an instructed verdict should have been granted.

The judgment is reversed, and a new trial granted.

McAlvay, C. J., and Carpenter, Grant, and Montgomery, JJ., concurred.


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    SMITH v. GARDNER.
    Cancellation op Instruments — Evidence—Suppioienoy.
    On a bill to cancel a discharge of a mortgage and to restore the mortgage and notes accompanying it, evidence examined, and held, to support a decree granting the relief prayed, on the ground that the mortgagee was mentally incompetent and unduly influenced to execute the discharge.
    Appeal from Berrien; Coolidge, J.
    Submitted February 13, 1907.
    (Docket No. 132.)
    Decided March 26, 1907.
    Bill by Myra Smith, administratrix of the estate of Aaron E. Gardner, deceased, against Edward B. Gardner and Marie Gardner for the cancellation'of a discharge of a certain mortgage, and to restore said mortgage and notes accompanying it. From a decree for complainant, defendants appeal.
    Affirmed.
    On January 14, 1902, one Aaron Gardner and his wife conveyed 160 acres of land to the defendant Edward, their son. The title was in Aaron Gardner. The purchase price “was $6,400, of which $400 represented personal property upon the farm. Edward paid $200 at the time of purchase. _ He gave three promissory notes for the balance, one for $2,200 due in five years, one for $2,200 due in 10 years, and one for $1,800 due in 15 years, secured by a mortgage on the farm. On August 16, 1904, Aaron Gardner discharged this mortgage, and the discharge was duly recorded. When the conveyance was made, Aaron and his wife were living upon the farm. He was 74 years old. He died December 14, 1904. He was then a little past 76 years of age. Before he executed the discharge he was stricken with paralysis, and became very feeble. Shortly after the sale to his son he bought a small lot in a nearby village for $40, moved a small tenement house upon it, and there lived until his death. He had lived with his wife 50 years. At the time of making the conveyance and taking back the mortgage, he talked with his wife and children about it. He left surviving him his widow, two sons, Myra Smith, his daughter, the complainant in this case, and the son of a deceased daughter.
    The discharge was executed under the following circumstances: Aaron Gardner and his wife visited Edward August 15th, and remained with him that night. On the next day he and his father went to the village of Buchanan to the office of a lawyer, where the discharge was drawn and executed. Its execution was, by an understanding between the father and son, kept secret. Neither the widow nor either of the other children knew about it until after the death and funeral of Mr. Gardner. Edward’s wife on the day of the funeral stated that the mortgage was discharged. Both the mortgage and the notes were kept by the deceased in the usual place, and were found there at his death. Search was then made for the new notes stated to have been executed at the time of the discharge, but were not then found. Subsequently the widow discovered them on March 11,1905, in a drawer among her papers. The new notes were three in number, for $1,800, $1,900, and $2,200, respectively, maturing in 10, 15, and 20 years, and the rate of interest reduced from 6 to 5 per cent. Complainant filed this bill to procure a cancellation of the discharge, and to restore the mortgage and notes accompanying it. Proofs were taken in open court, and decree rendered for the complainant.

      Will B. Stevens {N. A. Hamilton, of counsel), for complainant.

      James O’Hara, for defendants.
   Grant, J.

(after stating the facts). The grounds upon which recovery is sought are incompetency, undue influence, and want of consideration.

Under the established facts in the case, the defendant Edward, then 39 years old, had no property except $200, which he paid his father. His father desired to sell the farm to him upon a contract. He refused to accept a contract, and insisted upon a deed and mortgage. His father and mother assented. He then procured the discharge in question. The effect is to leave the widow without a dollar for her support. It is in the power of Edward to dissipate the entire estate. He is financially irresponsible. This action on the part of the husband and father is unnatural. The mortgage and notes accompanying it were not surrendered. Edward testified to the only reason which can be given for his father’s retaining them, and is found in a conversation between him and his father at the execution of the discharge. His testimony is excluded by the statute as equally within the knowledge of the deceased. But if it were not, we should not hesitate to disbelieve it. No good reason is given for virtually disinheriting his wife with whom he had lived for half a century, and for a desire to keep the discharge a secret from her.

The defendant filed his answer April 1, 1905, evidently in ignorance of the fact that the notes had been found. He alleged that the three notes were one for $1,500, and two for $2,200 each, and that one was due in 7 years, one in 12, and one in 17. A transaction so important to him made so little impression upon his memory that he had forgotten the amounts and times of payment. The facts of the condition of Aaron Gardner at the time must be considered in connection with the unnaturalness of the transaction. The evidence disclosed, as stated by his physicians, that: “ He had all the symptoms of senile decay. He was worn out, and was not competent to transact business of importance.”

We think the learned circuit judge reached the correct conclusion, and the decree is affirmed.

McAlvay, C. J., and Carpenter, Blair, and Montgomery, JJ., concurred.