author: Grant, J.

text:
    CLINE v. WIXSON.
    1. Mortgages — Title to Property — Forged Deed.
    A mother died, leaving a husband and five children her surviving. The husband and a son forged a deed purporting to convey her real estate to the husband, and the latter then conveyed the property to the son, who in turn conveyed to another son, having knowledge of the forgery, the latter giving a mortgage back on the property, which was assigned to a third person. Held, that the mortgage was a valid lien on a two-fifths interest in the land, in so far as there was a valid consideration therefor, as the deed from the brother operated to pass his interest as heir.
    2. Equity Practice — Forged Instrument — Estoppel.
    One who has defended an action at law relying on a deed known by him to have been forged cannot afterwards maintain a bill for equitable relief based on the fact of such forgery.
    Appeal from Sanilac; Beach, J.
    Submitted June 24, 1901.
    Decided September 25, 1901.
    Bill by Kate M. Cline and Leo E. Cline against Philip L. Wixson and Walter" S. Wixson to set aside a foreclosure sale. From a decree for defendants, complainants appeal.
    Affirmed.
    One Jane Cline died intestate August 28, 1892, leaving five children, viz., William M., Sewell, and John Cline, and Lillian Carey and Selina Burch. Her husband, Jacob Cline, also survived her. Sewell Cline died June 8, 189?. Complainant Kate Cline is his widow, and complainant Leo is his son. Jane, at the time of her death, was seised in fee of 120 acres of land. Some time before her death, negotiations were pending for the sale of the land to one Emma Kimball, and she had signed and acknowledged a deed to Mrs. Kimball, and delivered it to her son William, to be delivered to Mrs. Kimball upon the performance of certain conditions, which were never performed, and the deed was never delivered to Mrs. Kimball. After Jane’s death, Jacob and William erased the name of Mrs. Kimball in the deed, inserted the name of Jacob Cline, and recorded it. Subsequently Jacob conveyed the land to William, and he conveyed it to Sewell, and Sewell executed to William a mortgage for $1,200. Afterwards defendant Philip L. Wixson became the purchaser of the undivided interests of Mrs. Carey, Mrs. Burch, and John Cline, and defendant Walter S. Wixson purchased the mortgage, for which he paid $550. He foreclosed the mortgage by advertisement, whereupon complainants filed the bill in this cause to set aside that sale. The theory of the complainants is that the deed to Jacob was a forgery, and that Sewell had no title to mortgage, and that, therefore, the mortgage is void. Defendant Philip, after he obtained his title to the three undivided interests, brought an action of ejectment. Complainants in this suit, the defendants in the ejectment suit, relied upon the deed to Jacob and from Jacob to William and from William to Sewell. The jury found that the deed to Jacob was forged, and rendered a verdict for plaintiff, Philip L. Wixson, for the undivided three-fifths of the land. After this case was heard in the court below, complainants paid the costs of the ejectment suit, and took a new trial, thus again asserting the validity of the deed to Jacob. Proofs were taken in open court, and a decree entered holding that the deed to Jacob was forged, and that defendant Philip was the owner of the undivided three-fifths, that his interest was not subject to the mortgage, that complainants were the owners of an undivided two-fifths, and that their interest was subject to a lien of two-fifths of the mortgage, $480, and interest. From this decree complainants have appealed. Defendant Walter has not appealed.

      JE. C. Babcock, for complainants.

      Avery Bros. & Walsh, for defendant Philip L. Wixson.

      Quinn & Wixson, for defendant Walter S. Wixson.
   Grant, J.

(after stating the facts). Sewell Cline, when he executed the mortgage, was the owner of the undivided two-fifths of the land. He knew that the deed to Jacob was forged, and that the deed from William to him conveyed only William’s undivided one-fifth. The mortgage was valid as to the two-fifths then owned by Sewell. His heirs, whose rights are the same as his were, will not be permitted to defend a suit at law relying upon the validity of those deeds, and then to maintain a suit in equity upon the ground that they were void because of the forgery of the deed to Jacob. It is alleged in the bill that the mortgage was given to secure a life maintenance for Jacob Cline, but there is no evidence to sustain the allegation. Complainants have failed to prove that there was not a valid consideration for the mortgage. The decree gives them all they are entitled to, and is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    HART v. DOYLE.
    1. Deeds — Descriptions—Government Survey.
    Whether a deed of a given subdivision of land “according to the government survey ” may pass title to land which would fall within the lines of such subdivision if extended, but which, by reason of an intervening meandered stream, is platted as part of another subdivision, — qucere.

      2. Trespass — Pleading—Locus in Quo.
    Where, in an action of trespass, it appeared that the Zooms in quo had been treated locally, for purposes of taxation and otherwise, to the knowledge of all parties, as part of a certain government subdivision, the use of such description in the declaration, though not technically accurate, could not have' misled defendant, and was sufficient.

      3. Same — Adverse Possession.
    Where plaintiff in trespass establishes a title by adverse possession, his failure to make a paper title is unimportant.
    4. Adverse Possession — Sufficiency of Finding.
    A finding by the trial court that plaintiff had exercised acts of ownership and possession over the land in dispute for more than 15 years will be treated, in support of the judgment, as a finding of title by adverse possession, where it is apparent that it was intended as such finding, and there is evidence to sustain it.
    5. Trespass -Treble Damages — Burden of Proof.
    In trespass under 3 Gomp. Laws, § 11304 et seq., for cutting timber, defendant, if he would avoid the penalty of treble damages, must show that the trespass was casual and involuntary.
    6. Appeal — Practice—Supplemental Briefs.
    An appellant is not entitled to a consideration of alleged errors first brought to the attention of the court by supplemental brief.
    Error to Van Burén; Carr, J.
    Submitted May 7,1901.
    Decided September 25, 1901.
    Trespass by Roswell Hart, guardian of Maria Hart, an incompetent, against Stephen Doyle, for cutting timber. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Thomas J. Cavanaugh, for appellant.

      Benjamin F. Heckert, for appellee.
   Montgomery, C. J.

This is an action of trespass. The first count of the declaration describes the land upon which the alleged trespass was committed as “the land of the said Maria Hart, known and described as being the west half of the west half of the northeast quarter of section fourteen, situate in the township of Hartford,” etc. In the second count the words, “ containing forty acres of land, be the same more or less, according to the United States survey,” were added. Judgment was rendered under the first count.

The map of the government survey was introduced, •showing that the Paw Paw river runs through the N. of section 14, and is a meandered stream. The portion of the section north of the river is marked, “N. Frac. -33.50 Ac.” A subdivision south of the stream is marked, “W. £ N. E. J, 64.87 Ac.” The land upon which the alleged trespass was committed is seven acres lying immediately east of the quarter line of section 14, and north of the river. The north half of the section also contains three other subdivisions, marked, on the map of the government survey, “E. \ N. E. “E. % N. W. and “ W. % N. W. respectively. Abraham P. Grant, the original patentee of the entire N. \ of section 14, conveyed “the east half of the north half” to Samuel P. Case. Plaintiff holds by mesne conveyances from Samuel P. Case, all of which describe either the W. of the N. E. £ as containing 80 acres of land, more or less, according to the government survey thereof; or the N. W. ¿ of the N. E. £ as containing 40 acres, more or less, according to said survey; or the N. -J- of the W. \ of the W. of the N. E. i as containing 20 acres, more or less, according to said survey; or the W. i of the W. of the N. E. i as ■containing 40 acres, more or less, according to said survey. The court found that these deeds conveyed to plaintiff the seven acres in dispute.

The court also found that plaintiff, with her husband, entered into possession of the so-called “forty” in 1875, ■and that they built a little house on the part south of the river; that her son cut basswood timber on the seven acres in dispute for the purpose of building this house; that firewood was cut from that seven acres more or less every year from that time until six or seven years ago; that the seven acres was pastured for seven or eight years, with the consent of plaintiff’s husband, by an adjoining neighbor, who built fences on the north side of said seven acres, and on the west side, from the north line of said section southward to a cat-hole near the river, in consideration for the pasture; that saw-logs to the value of $150 were cut from the seven acres in 1881 by the plaintiff’s son, with her knowledge and consent.

“In short, that the plaintiff, by herself, her husband, and her son, has exercised acts of ownership and possession over the seven acres in dispute for over 15 years, and she was in possession thereof at the time of the alleged trespass.”

There is testimony to support these findings.

The court also found that the so-called ‘ ‘ forty acres ” has been assessed to plaintiff’s husband ever since,1871, and that he has paid taxes thereon, which includes the seven acres; and that the defendant, as supervisor, assessed the so-called “ forty,” including the seven acres in dispute, to the plaintiff, two successive years. These findings were based upon the fact that the land, for purposes of taxation, was described as the “west half of the west half of the northeast quarter of section 14, — 40 acres,” and that defendant testified that he supposed the seven acres north of the river was included in his description on section 11; apparently showing that the subdivision north of the river was not assessed, unless as a part of this 40, while defendant was supervisor. It does not appear from the testimony that the north fractional 33.50 acres has ever been assessed for taxation as a separate description.

Defendant asked the court to find that the lands where the trespass is claimed to have been committed are not described in plaintiff’s declaration, and took exception to the refusal of the court to so find. The court found that “the defendant is liable in trespass in this case, and that the plaintiff’s single damage is $20, and that she is entitled, under the statute, to three times the amount of the damage,” and entered judgment accordingly. Defendant excepted “to the court finding as a matter of law that judgment should be entered in favor of plaintiff, as against 'said defendant, for $60 and costs of suit.” But the only assignment of error bearing upon this point reads: “ The court erred in entering judgment in the above entitled cause for the plaintiff on the findings so made by bim.” Defendant did not request any finding upon the point of whether the trespass was casual or involuntary.

Appellant claims:

1. That plaintiff was not the owner of the land where the alleged trespass was committed, either by virtue of the deeds offered in evidence or by adverse possession, claiming that the evidence fails to support the finding of plaintiff’s possession.

2. That the land upon which the alleged trespass was committed was not described in plaintiff’s declaration, and that the action must therefore fail.

3. That the court was not warranted in trebling the damages. (This point is made only in the supplemental brief.)

We find it unnecessary to determine whether, in view of the qualifying words in the conveyances under which plaintiff claims, namely, “according to the government survey,” the title passed by the conveyance to plaintiff or not. It does appear by the findings that the locus in quo was treated locally, and for purposes of taxation, by the plaintiff, and by the defendant himself, as a part of the W. i¿ of the N. E. \ of the section. This being so, we think the description in the declaration could not have misled the defendant.

The finding shows possession in the plaintiff for more than the statutory period. This, of itself, would prima facie perfect plaintiff’s title, and under this title plaintiff was' entitled to maintain the action. Some criticism is made upon the wording of the finding, as being insufficient to show all the elements of title by adverse possession. This criticism is very evidently an after-thought, as, in the statement of facts in defendant’s original brief, he states that the court found that there was title by user. There is nothing in the record to indicate that the attention of the court was called to this defect, and the general assignment of error in this court is not sufficiently specific to challenge attention to such error. See Hecock v. Van Dusen, 96 Mich. 573 (55 N. W. 1024). We have no doubt that the court intended to be understood as finding that the plaintiff had held, during the period of 15 years, adverse possession. The finding is construed with all reasonable intendments in its favor, and in support of the judgment. Peabody v. McAvoy, 23 Mich. 526; Neib v. Hinderer, 42 Mich. 451 (4 N. W. 159).

It is also claimed that the evidence fails to support this, finding of adverse possession; but an examination of the record convinces us that there is abundant testimony upon which to base the finding.

The point that the damages ought not to have been trebled is only mentioned in the supplemental brief, and defendant is not in a position to insist that it be considered. But the point is without merit, as the plaintiff, if entitled to recover, was prima facie entitled to have her damages trebled. Michigan Land & Iron Co. v. Leer Lake Co., 60 Mich. 143 (27 N. W. 10, 1 Am. St. Rep. 491).

The judgment will be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    WILKINS v. CITY OF FLINT.
    1. Municipal Corporations — Defective Sidewalks — Question for Jury.
    Where some of the planks in a sidewalk had been removed, leaving an abrupt drop in the walk of from four to six inches, the question whether the walk was reasonably safe was for the jury. Williams v. City of West Bay City, 126 Mich. 156, followed.
    2. Same — Claims—Presentation—Sufficiency.
    A charter provision requiring the itemization of all claims and accounts presented to the council for allowance does not make it the duty of a claimant for personal injuries to specify the amount claimed for each particular injury.

      3. Personal Injuries — Evidence—Mortality Tables.
    Where, in an action for permanent injuries, the claim that plaintiff was not of average health was disputed, the mortality-tables were properly admitted in evidence, to be used or not by the jury, according to their conclusion on the question of fact.
    4. Municipal Corporations — Defective Sidewalks —Notice— Question for Jury.
    Where, in an action for injuries caused by a defective sidewalk, it was shown that the walk was inspected ten days before the accident, but there was proof that it had been out of repair for three weeks, and that the inspector was informed of it during the time, the question whether the city had notice of the defect was properly submitted to the jury.
    5. Evidence — Self-Serving Declarations — Parts of Connected Conversation.
    In an action for injuries caused by a defective sidewalk, the admission of the testimony of plaintiff’s companion, that plaintiff stated she was not thinking of the condition of the walk at the time of the accident, was not improper, where brought out on redirect examination as a part of a conversation drawn out on cross-examination.
    6. Trial — Evidence—Harmless Error.
    The rejection of certain evidence was harmless error where the same was given without objection on a repetition of the question.
    7. Same — Personal Injuries — Argument of Counsel.
    It was not reversible error to permit plaintiff’s counsel in an action for personal injuries to comment to the jury on defendant’s failure to introduce as witnesses two doctors who had examined plaintiff on defendant’s behalf, and to assert that defendant did not dare to put them on the stand.
    8. Same.
    A judgment for personal injuries will not be reversed because plaintiff’s counsel, in the course of his argument, urged the jury either to do justice by the plaintiff “ or send her to the county-house at once,” where such remark was invited by the comment of defendant’s counsel, and it does not appear that injustice has resulted.
    Error to Genesee; Wisner, J.
    Submitted June 6, 1901.
    Decided September 25, 1901.

      Case by Rebecca Wilkins against the city of Flint for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Daniel Heims {Ed. 8. Lee, of counsel), for appellant.

      Everett L. Bray, for appellee.
   Hooker, J.

The defendant has appealed from a judgment of $8,000 in favor of a woman who claims to have received severe and permanent injuries from a fall upon a defective sidewalk. The sidewalk was of plank laid upon four-inch stringers, and it is plaintiff’s claim that the plank had been removed for a space of some feet, and that while walking upon the'walk, the night being dark, she stepped off from the plank unexpectedly, going down from four to six inches, and that, turning her ankle, she fell upon the ground, and is now bedridden with paralysis, from which it is unlikely that she will ever recover, as a consequence.

It is claimed by the defense that the walk was reasonably safe, and that the court should have so instructed the jury, under the rule in the case of Shietart v. City of Detroit, 308 Mich. 309 (66 N. W. 221). We are of the opinion that the case of Williams v. City of West Bay City, 126 Mich. 156 (85 N. W. 458), justifies the course taken of submitting the question to the jury.

It is next contended that the notice and claim filed with the common council did not conform to the requirements of the law. Among other defects alleged is that the claim was not itemized. We think the notice was quite definite, and that the statement of all of the specific injuries that had then developed was sufficient. It. was unnecessary to attach to each an aliquot part of the damages claimed. This case presents no new features relating to the subject of statutory notice that would be of interest, and we omit further reference to the particulars of the notice.

It was claimed that the injury was permanent, and after some evidence to that effect had been heard, the mortality tables were introduced, against the general •objection that they were incompetent and immaterial. It is now claimed that the plaintiff was not a woman of average health at the time of the accident, and that the tables should have been excluded, under the authority of Denman v. Johnston, 85 Mich. 387 (48 N. W. 565). Had the fact that she was not an ordinarily healthy person been admitted or undisputed, the tables would have had no bearing, but, being disputed, they were admissible, to be used or not by the jury, according to their conclusion upon the question of fact. As the only assignments of error relating to the charge are based upon refusals to give certain requests, we assume that the charge of the court upon this subject was correct.

It was shown that the walk was inspected some ten days before the accident, but there was proof that it had been out of repair for three weeks, and that the inspector was informed of it during the time. It was, therefore, competent to leave the question of notice to the jury.

Error is assigned upon the admission of the testimony of plaintiff’s companion that on her way home she said that she was not thinking of the condition of the walk; but this was upon redirect examination, and a part of a conversation drawn out upon his cross-examination.

Error is assigned upon the alleged exclusion of the testimony of Murphy in relation to the condition of the walk cn the morning after the accident; but the record shows that the testimony was given without objection on a repetition of the question.

Error was assigned upon the following remarks of counsel:

“The city has refused to put these two doctors on the stand, Dr. Burr and Dr. Campbell. We have asked them to do it, and they have not offered to do it. They dare not do it, because their mouths would be closed against the fact that this girl had been injured. They dare not put Dr. Burr and Dr. Campbell on the stand.”

By Mr. Bray: “ But, gentlemen of the jury, if by any mischance you should not be able to do justice by her,, then, gentlemen, I beg of you not to let injustice take the form of another disagreement. Either make the city of Flint do what is right by this girl, or send her to the. county-house at once.”

It is claimed that these remarks were not excepted to,, but the record shows otherwise. The record shows that they were not consecutive. The allusion to Drs. Burr and Campbell was followed by an exception, when Mr. Heims,, counsel for defendant, said:

“Now, gentlemen of the jury, Mr. Bray will tell you that, unless you render a judgment in favor of the plaintiff, she will have to go to the poor-house. Be that as it may, if she has to go to the poor-house, the city of Flint will pay its portion of the expense.”

The counsel for the plaintiff is accused of making a somewhat pathetic appeal for sympathy to the jury, which contained the remainder of the language excepted to.

The remarks relating to Drs. Burr and Campbell were, perhaps, justified by the case of Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075). The other language is similar to that used in the case of Leach v. Railway, 125 Mich. 373 (84 N. W. 316), decided after this cause was tried, and should have been omitted. We are reluctant to disturb a judgment in a case that was well and fairly tried, unless there has been manifest injustice, which does not appear; and, as the remark was invited by the comment of defendant’s counsel, we think this point should not reverse the case.

Several questions of minor importance are presented, but an examination of them has satisfied us that there is no error.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    GRABOWSKY v. BAUMGART.

    1. Sale — Consideration—Evidence—Value of Goods.
    On an issue whether the purchaser of a stock of goods, in addi-' tion to the admitted money consideration therefor, agreed to discharge a debt of some $7,000 owing to him by the seller, evidence of the value of the goods is admissible.
    2. Same — Witnesses—Competenoy.
    A witness who has merely “glanced over” a stock of clothing, going about among the tables on which it was placed, but examining none of the goods, is not competent to express an opinion as to the value of the stock.
    ■3. Trial — Pleadings—Argument op Counsel.
    In an action for goods sold, defendant, under the general issue, gave notice that a settlement between the parties had canceled any balance due on the stock in question, if there was any, but denied that there was any such balance. On the trial he admitted the balance, but claimed that it was canceled by the settlement, and testified that he never saw the notice with the plea, and knew nothing of it. Held, that it was error to permit plaintiff’s counsel to make the denial the basis of a vituperative argument to the jury.
    4. Settlement — Burden of Proof.
    Where defendant admitted the original indebtedness sued on, but claimed that it had been settled in a subsequent transaction between the parties, he had the burden of proving such settlement, though, as part of the transaction, plaintiff gave him promissory notes for a considerable sum.
    Error to Wayne; Frazer, J.
    Submitted June 6, 1901.
    Decided September 25, 1901.

      Assumpsit by Anna Grabowsky against Joseph Baumgart to recover the purchase price of a stock of goods. From a judgment for plaintiff, defendant brings error.
    Beversed.

      Stevenson, Merriam, Eldredge & Butzel, for appellant.

      Maybury & Lucking, for appellee. .

       Rehearing denied November 4, 1901.

   Long, J.

This action was brought to recover for the purchase price of a stock of clothing sold by plaintiff to defendant in January, 1896, for $4,000. The defendant, under the plea of the general issue, gave notice that in December, 1898, all matters of difference between the parties were settled in connection with the sale of another stock of goods from defendant to the plaintiff, by which it was then and there agreed, by and between the parties, that the sale by said defendant to plaintiff of said stock of goods, and the acceptance by defendant of a certain sum of money, should constitute a settlement of all claims of either party against the other, including the balance due said plaintiff from said defendant for the purchase price of the stock of goods sold in 1896, if any such balance existed, “which this defendant denied and now denies.”

It appears that at first defendant was in plaintiff’s employ as a clerk; then as a partner. He borrowed money of plaintiff, and gave due-bills, from time to time, until, in 1895, this indebtedness amounted to $3,326.44. In 1896 plaintiff sold to him a stock of goods on Gratiot avenue, Detroit, for $4,000, so that his indebtedness to her amounted to something over $7,000. Defendant had taken some goods from a partnership in Lansing, and put into the Detroit store on Gratiot avenue, and continued to do business there. In April, 1898, defendant married a granddaughter of plaintiff, and after this plaintiff seems to have aided defendant in selling goods, and, the lease of the store having expired, she took a lease of it in her own name. Trouble thereafter arose. The parties called upon one Jacobs, a mutual friend, hoping he might bring about a settlement of their affairs, and he undertook to do so. An inventory was taken of the stock in the store. It is claimed by defendant that this inventory footed up to $12,325.44, not including the store fixtures or the good will of the business. The inventory was completed on Saturday, and defendant claims that it was arranged that plaintiff, with Mr. Jacobs, should meet the defendant and a Mr. Blumenthal on the next day (Sunday), and effect a settlement.

It is the contention of defendant that the parties did so meet and settle all differences, as follows: The plaintiff to buy from defendant the stock of goods then in the store, and pay therefor in cash or good notes $3,5(30, pay the' indebtedness on the stock, amounting to $2,300, and also cancel the claim she (plaintiff) had against defendant of $7,300; this amount of indebtedness being for the stock purchased by him from her in 1896, $4,000, and money borrowed from time to time, amounting to about $3,300. The plaintiff contended and testified on the trial that she on that day purchased defendant’s stock of goods, and was to pay therefor in cash or notes $3,500, and the indebtedness on the stock of $2,300, but that nothing was said about the indebtedness due her from defendant of $7,300. It appears that, whatever the arrangement may have been about the $7,300 claim, the parties met on Monday morning, a bill of sale was given by defendant to plaintiff for the goods in the store, and defendant received Mr. Jacobs’notes for the $3,500; that immediately after this was done, and on the same day, this suit was commenced, and Jacobs was garnished on the notes. The cause came on for trial, and the court left the issue thus made between the parties for the consideration of the jury, who returned a verdict in favor of plaintiff for $4,228.49.

It is the contention of counsel for defendant that, the court erred in admitting testimony on behalf of plaintiff bearing upon the question of the actual value of the goods conveyed by defendant. The question was asked plaintiff by her counsel:

“Q. How did the stock compare in size and kind when you sold him?
“A. It was not in a good condition. It was moth-eaten, and it was odds and ends, — some coats that were nothing but moth-eaten. * * * It was not in a good condition at all. * * *
“Q. In paying or agreeing to pay him $3,500 and the debts, $2,300, state whether, in your judgment, that was a full price for the stock which you bought of him. Was that all the stock was worth ?
“A. Yes, sir.”

One Charles Goldsmith was called as a witness for plaintiff, and testified:

“I looked at this stock of goods. I think I was there after the sale. I always manufactured goods, and know what they are worth. I did not go there for the purpose of examining the stock. I am able to judge of the stock by examining it. I examined this stock. I don’t mean I took an inventory. I glanced it over. I was not asked about it at the time. From a glance at the time, I know what the stock was worth. It was a very poor stock,— an old stock.”

The court asked :

“Q. What examination did you make of the stock ?
“A. Not any. After she told me what the inventory was, I looked through the stock. I went through table by table, and glanced over it, — just glanced through them on the tables. I looked through the piles from the outside,— lifted one up. I did not count them, and do not know how many pieces there were.
“Q. Do you know within a thousand how many pieces there were ?
“A. No, sir.”

The court allowed the witness to state that the stock was worth not to exceed $5,000. All the above testimony was taken under objection.

We think the testimony as to the value of the stock, except Goldsmith’s, which will be referred to later, was properly admitted. It was a circumstance which the jury might consider in determining which of the parties was entitled to belief as to the agreement for the purchase of the stock. Such testimony is admissible. Banghart v. Hyde, 94 Mich. 49 (53 N. W. 915). See, also, Richardson v. McGoldrick, 43 Mich. 476 (5 N. W. 672); Misner v. Darling, 44 Mich. 438 (7 N. W. 77); Shakespeare v. Baughman, 113 Mich. 551 (71 N. W. 874).

The testimony was very conflicting upon the question of the agreement. The contract of settlement was shown to have been made in the presence of different witnesses. Mr. Blumenthal was called in by the defendant, and Mr. Jacobs by the plaintiff. Mr. Immerman and Mr. Frankenstein, it is claimed, were also there. Mr. Blumenthal testified that he was present when the contract was made; that—

“After Mrs. Grabowsky and Mr. Jacobs had a conference in another room, she backed out of that proposition [the proposition which had been made by defendant], and would not take $5,000 for her claim; and defendant, Baumgart, said it was getting late, and he wanted to know one way or the other; that he would take$3,500 for his claim in the business in place of $4,000. Then Mr. Jacobs took a pencil and paper, and marked it down, and said: ‘Now, Mrs. Grabowsky, remember, if you don’t want to take $5,000 for your claim, that you have to pay Mr. Baumgart $3,500, and $7,300 in your claim, and $2,300 on the indebtedness against the stock, which will figure up $13,100, and the stock would cost you about 100 cents on the dollar. Are you satisfied to take the stock at 100 cents on the dollar?’ And she says: ‘All right; I will take it.’ The items which made up the $13,100 were the $7,300 which she claimed Baumgart owed her, $2,300 indebtedness against the stock, and $3,500 which Joe [Baumgart] was to take for his share.”

Mr. Immerman testified substantially that the agreement was that the plaintiff was to take the stock and pay to defendant $3,500, to creditors $2,300, and cancel her claim of $7,300 against defendant. On the other hand, Mr. Jacobs testified that plaintiff was to pay defendant $3,500 for the stock, and creditors $2,300. When asked about the indebtedness of $7,300, he stated that defendant said he would pay that a little at a time, as he was able.' Mr. Selling, a witness also produced by plaintiff, testified that on Monday morning plaintiff called him to the store; that he there had a talk with defendant, in which he stated that he was selling his stock to plaintiff for $3,500, and she was to pay the debts; that he did not owe the plaintiff anything, and that had nothing to do with the matter.

We think, however, that the court was in error in permitting witness Goldsmith to give his opinion as to the value of the stock. His examination of it, according to his own testimony, was very superficial, and he apparently was not sufficiently familiar with it to judge of its value. His testimony should have been stricken out. We are unable to say that it was not prejudicial to the rights of the defendant.

We think, also, that the court was in error in permitting plaintiff’s counsel to make the argument he did at the close of the testimony. Counsel said:

“ What are his written pleadings ? 'He comes into this court after stating the facts to his counsel. He puts it down in writing, and he comes in here and says, ‘ I was undertaking to defraud her.’ Why do I say that? Because he admits under oath that he owed her every penny at that time. Now, he says in writing, at the beginning of this suit, £ I denied that I owed her a cent, and I deny it now.’ That is what he said at the beginning of the suit. Now he comes into court and says: £ I don’t care about the value of this property. She agreed to take it under those circumstances, whatever they were. She is bound by it. She agreed to take it for $14,000,- — mainly old goods that nobody would give $6,000 for. She made the bargain. Let the chattel mortgage be enforced. Take the goods. She agreed to it. I don’t offer a word of evidence of what the stock was worth. Here is an inventory. She agreed to it. That is the evidence in the case.’ Agreed to it, when he is a self-confessed robber of the grandmother of his wife! He admits in writing that he denied owing her a cent when he owed her $8,600. I am repeating that often, because it is the turning point in this case. You may stamp her as a robber if jmu choose by your verdict; but I say his written admissions are, together with his oath as given now, that he is a self-confessed attempted robber. Denying that he owed her money, and then attempting to force her into a bargain by which he would get away with $3,500, and all she had, practically, — to start over again in life after all these years of labor. And they come into court', and whitewash him, and call him ‘ Honorable Joe;’ and all that depends upon whether you find he denied this debt. If he didn’t deny this debt, you find for him. If he did deny this debt, he is a villain; he is a scoundrel; he is. an attempted robber. If you find that he did deny it, if you find that what his counsel said in writing at the beginning of this case is true, then you must find against him.”

The court should not have permitted this argument. The issues of the case did not warrant it. It is true that Mr. Selling testified that defendant told him he did not owe the plaintiff anything, but that was at a time when the defendant claimed the settlement had been made. Mr. Jacobs testified that defendant admitted the indebtedness, and all the other witnesses to the transaction also so testified. The defendant did not deny on the trial that he owed the $7,300, but claimed it was settled for in the purchase of the goods by plaintiff. The notice under the plea did deny the indebtedness, but defendant did not draw the notice, and he testified that he never saw it, and knew nothing of what was set up in it. Under these circumstances, the argument indulged in by counsel was unwarranted, and must have been very prejudicial to defendant’s case. On the trial the defendant did not deny that he owed plaintiff before the settlement $7,300, but claimed this was taken into account in the settlement. Plaintiff denied that this indebtedness of $7,300 to her was taken into account in the settlement. This was the issue, and the court should have compelled counsel to keep within it.

We think the court was not in error in saying to the jury that the burden of showing the settlement claimed by him was on the defendant.

For the errors pointed out, the judgment must be reversed, and a new trial granted.

The other Justices concurred.


text:
    NOWLEN v. HALL.
    1. Ejectment — Equitable Title — Validity of Government Patent.
    An equitable claimant to real estate, whose claim is prior to a government patent therefor issued to an adverse claimant, cannot attack the validity of the patent in ejectment, but must seek his remedy in equity.
    2. Same — Adverse' Possession.
    The failure of a plaintiff in ejectment to show a legal paper title becomes unimportant where he establishes a complete title by adverse possession.
    3. Tenancy in Common — Adverse Possession — Ouster.
    Where the owner of land conveys an undivided interest therein, taking back a mortgage for the purchase price, which he assigns to a third person, his subsequent occupancy cannot be said to be adverse to his co-tenant, in the absence of a clear showing of ouster.
    4. Ejectment — After-Acquired Title.
    A plaintiff in ejectment cannot recover on a title acquired subsequent to the date of ouster alleged in his declaration.
    5. Tax Sales — Prospective Statute.
    The tax law of 1885 (Act No. 153) was prospective only in its operation, and.a sale thereunder for taxes previously assessed was void.
    6. Same — Validity of Decree — Dollar Mark.
    A tax deed is void where the decree on which it is based, by reason of the omission of the dollar mark, fails to show that any sum of money was adjudged against the land.
    7. Same — Subpcena.
    A decree of sale in a tax proceeding under the law of 1889 (Act No. 195) was void where no subpoena was issued to the delinquent tax payer, a resident of the State.
    8. Same — Certificate of Error.
    A tax deed may be impeached in an action of ejectment by a certificate of error issued by the auditor general under 1 Comp. Laws, § 3921.
    9. Same — Vested Bights — Adverse Possession.
    Whether such certificate may be effective in a case where the claimant under the deed has occupied adversely for the five-year period of limitations prescribed by the statute, — qucere

      Error to Berrien; Coolidge, J.
    Submitted May 7, 1901.
    Decided September 25, 1901.
    Ejectment by Albert R. Nowlen against Charles "W. Hall and others. From a judgment for plaintiff, defendant Hall brings error.
    Modified and affirmed.

      Samuel H. Kelley, for appellant.

      A. Plummer, for appellee.
   Montgomery, C. J.

This action is ejectment. It is complicated by the fact that two separate pieces of property are involved, and as to each numerous titles are to be considered. One description of property, referred to in the case as “acreage property,” is described as the W. § of that part of the N. W. ^ of the N. E. J of section 24, town 4 S., of range 19 W., which lies south of the territorial road. The other property comprises lots in B. C. Lewis and Others’ addition to Benton Harbor, and in block 31 of the original plat of Benton Harbor. The cáse was tried before the court without a jury, and determined upon a special finding of facts and law, to which reference will be had in proper order.

Considering first the acreage property, the title shown by plaintiff was derived through Belmont C. Lewis. Lewis acquired his title by conveyance from Green and Willard, who held a certificate of purchase. After conveying to Lewis, Green and Willard assigned their certificate to James E. Miller, and the lands, were patented to him. It is contended that plaintiff cannot attack this patent in an action of ejectment. The authorities seem to sustain the defendant’s contention that a prior equitable claimant should make his attack upon a' patent from the government by a proceeding in chancery. See Tied. Real Prop. § 746. In this State the legal title must prevail in ejectment. See Buell v. Irwin, 24 Mich. 145; Harrett v. Kinney, 44 Mich. 457 (7 N. W. 63). The court, however, finds that plaintiff, and those under whom he derives title, had maintained 15 years’ adverse possession, and this would be sufficient to cut off the Miller title, and vest the plaintiff with the legal title as against the Miller claimants.

The court further finds:

“ November 4, 1869, Lewis conveyed an undivided one-half of these lands to one Boughton. Boughton conveyed the same to Hurley and McOmber, August 13, 1883. The title of Hurley and McOmber became vested in the defendant on July 15, 1889. By a chain of deeds the defendant thus apparently became the owner of one undivided one-half of the land.
“ On September 25, 1867, Lewis mortgaged the lands to R. D. Parker. Parker foreclosed his mortgage in chancery, and at the foreclosure sale bid off an undivided one-half of the lands. I find this to be the one-half which Lewis had not conveyed away, and that Boughton and Parker then became the owners, each, of an undivided one-half of the lands. January 16,1882, Parker conveyed to one Cook, and on January 17, 1882, Cook conveyed to the plaintiff. The plaintiff thus became the owner of an undivided one-half, through the Parker deed.
“ The plaintiff, however, entered upon the lands in 1887, and occupied the whole, claiming to be the owner of the whole premises. The foundation of this claim is as follows: When Lewis conveyed to Boughton, November 4, 1869, he took back a mortgage for $3,000 from Boughton upon the lands conveyed. This mortgage was assigned to plaintiff by Lewis, October 21, 1870. The mortgage was foreclosed in chancery, and on April 10, 1877, the plaintiff bid in an undivided one-half at such sale.
“I find that Boughton practically abandoned the premises in 1872, and left Lewis in the sole occupancy. Lewis occupied the same until April, 1874, when he died, leaving a widow. By his will Lewis devised these lands to his widow. She occupied these premises till 1887, when the plaintiff went into possession, and he remained in possession till 1889. June 28, 1887, the widow conveyed the lands to the plaintiff. I find that from 1872 there was adverse possession by Lewis as against Boughton till Lewis’ death, in April, 1874, followed by adverse possession by the widow till she conveyed to the plaintiff, in 1887, and that this was followed by adverse possession by the plaintiff till. 1889. The adverse possession as against Boughton and his privies and grantees, therefore, lasted more than fifteen years.”

The defendant excepts to this finding that title to the Boughton interest was acquired by adverse possession. We cannot discover that this finding is supported by the testimony. It must have been based upon a misapprehension of legal principles. We are not able to find anything showing that Boughton abandoned the premises, unless leaving his co-tenant in charge can be deemed an abandonment. Furthermore, Lewis, having assigned to the plaintiff the mortgage of Boughton, was not in position to assert title by adverse possession against this interest until a right of entry had been acquired by foreclosure ; particularly as, in the meantime, he (Lewis) was a tenant in common with Boughton, and his possession was presumptively in the interest of his co-tenant. We discover no evidence in the record of any actual ouster of Boughton. Furthermore, plaintiff testifies that he took possession under his foreclosure of the Boughton interest, and understood that the remaining Lewis interest, then held by Parker, was entitled to possession of the other 'undivided one-half. This possession of plaintiff was claimed to have been taken in 1877. Wé find that, while the adverse possession found by the court had the effect to cut off the Miller title, it did not defeat the Boughton title, which subsequently vested in the defendant. The commissioner’s deed on foreclosure of the Boughton mortgage did not cover this land at all. The title, therefore, derived through Lewis, was vested one-half in plaintiff and one-half in defendant.

Plaintiff offered in evidence a tax deed to one Ida M. Allen, and a conveyance by her to plaintiff, bearing date December 23, 1897. But the declaration counts on a possession by plaintiff on October 1, 1897, and an ouster by defendants. It was held in De Mill v. Moffat, 49 Mich. 125 (13 N. W. 387), that a recovery could not be had in ejectment on a title acquired by plaintiff after the dates set forth in the declaration as those on which he had possession and defendant entered.

Defendant also offered in evidence tax deeds purporting to be for the taxes assessed on the acreage property in the years 1882, 1887, 1888, and 1889. As to the tax deed for the taxes of 1882, it appeared that the sale was made under the provisions of the tax law of 1885, which was held in Hall v. Perry, 72 Mich. 202 (40 N. W. 324), to be prospective only in its operation. See, also, Humphrey v. Auditor General, 70 Mich. 292 (38 N. W. 214). The deed in question, therefore, was void. As to the tax deeds on sales for taxes of the years 1887 and 1888, the record shows that there were no dollar marks or other indications to show that the figures in the decrees set opposite the descriptions indicated money. These decrees were void, under the rule in Millard v. Truax, 99 Mich. 157 (58 N. W. 70). As to the tax deed for the taxes of 1889, the court proceedings to enforce this tax were taken under the general tax law of 1889, and there was no subpoena issued directed to the party against whom the tax was assessed, and, of course, no return of inability to secure service. The court acquired no jurisdiction to decree the tax, under the case of Fowler v. Campbell, 100 Mich. 398 (59 N. W. 185). See, also, Taylor v. Deveaux, 100 Mich. 581 (59 N. W. 250).

This disposes of all the contentions relating to the acreage property, and our conclusion is that as to this property the plaintiff is the owner of an undivided one-half, and defendant of the other one-half.

As to the city property, the defendant makes no claim to any of the lots except through his tax deeds and adverse possession. There is no finding which supports the defendant’s claim of adverse possession. Defendant claims title to lot 13 of block 34 of Lewis’ addition by virtue of a tax deed for the taxes of 1893, sold for said taxes December 2, 1895, the deed to defendant bearing date June 3, 1897. The plaintiff introduced in evidence a certificate of cancellation of said tax deed, made by the auditor general under authority of 1 Comp. Laws, § 3921. That authority existed to so cancel the deed under the certificate has been held in numerous cases. See Kneeland v. Wood, 117 Mich. 174 (75 N. W. 461); Wood v. Bigelow, 115 Mich. 123 (73 N. W. 129); Hand v. Auditor General, 112 Mich. 597 (71 N. W. 160); Northrup v. Maneka, 126 Mich. 550 (85 N. W. 1128).

A different question is presented as to lots 1, 2, and 3, block 31, of the original plat of Benton Harbor. Here, also, a certificate of cancellation was offered in evidence, which is of the same effect as in the case of lot 13, block 34, unless defendant’s claim that he entered into possession under these deeds, and had occupied the premises, claiming title, for a period of more than five years before the commencement of this suit, can be sustained. Defendant contends that a title thus acquired by adverse possession cannot be cut off by the cancellation of the tax deed. There is much force in this contention, but, as already stated, there was no finding of adverse possession by defendant. It is true, defendant, by his counsel, presented a request to the court to find that the defendant had been in occupancy of the lots for five years under the tax deeds, and has excepted generally to the refusal of the court to find as requested, and it is stated in the brief of defendant’s counsel that defendant testified without contradiction that prior to the commencement of this suit, for a period of more than five years, he had been in possession of these lots, they being inclosed, with other property he owned, by a fence. A careful reading of the testimony of defendant discloses that he gave no such testimony, nor is any testimony pointed out in the record which supports these statements.

Our conclusion is that the judgment should be affirmed as to the city property, and modified as to the acreage property, so-called. The plaintiff is entitled to recover one-half of the latter. The defendant will recover costs in this court, and the plaintiff will be awarded the costs in the court below.

The other Justices concurred.


text:
    VALENTINE, ex rel. DUDLEY, v. BERRIEN SPRINGS WATER-POWER CO. BERRIEN SPRINGS WATER-POWER CO. v. HOFFMAN.
    1. Navigable Waters — Dams —• Authority of Boards of Supervisors.
    The hoard of supervisors of a county has ample authority, under section 4, art. 18, of the Constitution, and 1 Comp. Laws, § 2494 et seq., to grant the right to construct a dam across a navigable stream.
    2. Same — Right of Navigation — Looks.
    The constitutional inhibition against prejudicing “the right of individuals to the free navigation of the stream” does not mean that every such dam must be provided with a lock for the passage of vessels, but only that the stream, so far as navigable, shall remain a public highway.
    3. Water-Power Companies — Scope of Statute.
    Act No. 202, Pub. Acts 1887 (2 Comp. Laws, § 6806 et seq.), authorizing the formation of corporations to dam and improve water-courses, and to use, lease, or sell the water power appurtenant thereto, is not, by section 9, subd. 3, limited in its operation to Berrien county, but is sufficiently broad in its terms to authorize corporations to be organized under it in any county in the State.
    4. Same — Purposes of Corporation — Transmission of Eleotrio Power.
    Under section 11 of the act, the purposes of such a corporation may legitimately include that of producing and supplying a municipality and its inhabitants with electricity for lighting and other purposes.
    5. Same — Navigable Streams.
    The act is not limited in its operation to nonnavigable streams.
    6. Same — Dams—Federal Consent — Quo Warranto — Issues.
    On quo warranto by the State to determine the validity of a franchise granted by a board of supervisors to construct a dam across a navigable stream, the right of respondent to build the dam without the consent of the Federal authorities is not in issue.

      7. Same — Increasing Height of Dam — Notice.
    Where a franchise has been regularly granted to construct a dam 16 feet high, the right to increase its height to 20 feet may be granted without further public notice, — particularly on a showing that options have been secured for the purchase of all flowage rights necessary for a dam of the latter height.
    8. Same — Sale of Franchises — Options on Flowage Rights— Implied Warranty — Estoppel—Equity Jurisdiction.
    A sale by the stockholders of a water-power company of all of their stock therein, together with the corporate franchises and property, including a franchise to dam a given stream, and certain options for the purchase of flowage rights incident thereto, carries with it an implied warranty on the part of the vendors of the validity of such franchise and options, and estops them from afterwards questioning the same; and a bill in equity will lie, at the suit of the corporation, for relief against the action of any of such stockholders, or their confederates, in procuring conveyances and options on their own behalf antagonistic to those previously given to the company.
    9. Corporations — Stockholders—Assignability of Interests.
    A subscriber to the articles of association of a corporation becomes at once'a stockholder to the amount subscribed, and may assign his rights as such in advance of the issue of certificates for his shares.
    Error to Berrien; Peck, J., presiding.
    Submitted April 16, 1901.
    Decided September 25, 1901.

      Quo warranto proceedings by George M. Valentine, prosecuting attorney of Berrien county, on the relation of Gus M. Dudley, against the Berrien Springs Water-Power Company, to determine the validity of a franchise to dam a navigable stream. From a judgment of ouster on demurrer to the plea, respondent brings error.
    Reversed.

      Fred A. Baker (Fred P. Delafield and O’Hara & O’Hara, of counsel), for appellant.

      M. L. Howell and G. M. Valentine, for appellee.
    Appeal from Berrien; Peck, J., presiding. Submitted April 16, 1901. Decided September 25, 1901.

      Bill by the Berrien Springs Water-Power Company against John U. Hoffman, impleaded with Charles A. Chapin and others, to protect the enjoyment of such franchise. From a decree dismissing the bill on demurrer, complainant appeals.
    Reversed.

      Fred A. Baker (Fred P. Delafield and O'Hara & O'Hara, of counsel), for complainant.

      Sam H. Kelley and M. L. Howell (.Lawrence O. Fyfe, of counsel), for defendant.

       Section 21. “Every such board of supervisors shall have power, within their respective counties, to permit or prohibit the construction of any dam or bridge over or across any navigable stream. They shall also have power to provide for the removal of any obstruction arising from the erection of booms or collecting of logs or rafts in such streams by any individual, and to direct the time in which, and places where, persons having logs, rafts, and boats in such streams shall be allowed to remain, and when the same shall be removed; and may impose such penalties as they deem necessary to enforce such regulations, and authorize the sheriffs or their deputies to carry into effect the regulations made under the provisions of this act.” . Act No. 165, Laws 1851.
      Sec. 22. “Whenever any person or persons, or any incorporation, shall wish to construct a dam across any such stream as is mentioned in the preceding section, such person or persons or corporation shall present to the board of supervisors, or file with their clerk, to be presented to them at their next meeting, a petition praying for leave to construct such dam, and setting forth the purpose, location, height, and description of such dam, and wheiher it is proposed to construct a lock or chute or apron, and of what description, for the passage of boats, vessels, rafts, or timber; and, before the same shall be heard and determined by such board, it shall be made to appear to the board that notice of such application, signed by the petitioners, and stating substantially the contents of such, petition, has been published in some newspaper printed in each county through which such stream runs, if there be a newspaper published in such county, and also in one newspaper, at least three weeks previous to the hearing of such application, published in the city of Detroit; and on such hearing any person or persons shall be heard in favor of and in opposition to the prayer of the petition; and such board may adjourn such hearing to any other time or place; and they may grant or refuse the prayer of such petition, and the determination shall be entered at length upon the record of said board; and, if such board shall allow the said dam to be constructed, the petitioners shall be at liberty to construct the same by complying fully with the terms and conditions.set forth in their petition; and after having obtained such right, and constructed such dam, such petitioners, their heirs, successors, or assignees, may, if such dam be destroyed or decayed, construct a new dam, subject to all the same terms and conditions, on the same site, without again applying to such board: Provided, that nothing in this act contained shall be construed as giving to such board of supervisors any power to grant the right to any person or persons or corporation to flow, or in any manner to take or injure, the lands of any person or persons by or in consequence of constructing such dam.” Act No. 129, Laws 1878.
      Seo. 23. “Whenever any person or persons, township officers, or corporation shall wish to construct any bridge across any stream at a point where the same is navigable for boats or vessels of fifteen tons burden or more, they shall apply to the board of supervisors by petition, and shall give notice of the same, in like manner, as near as may be, as provided in section twenty-two of this act; and the powers and the mode of proceeding of such board shall be the same, as near as may be, as provided in the last-named section. Every such petition shall set forth the kind and description of the bridge proposed to be constructed, and whether the same is to be constructed with a draw, or whether any, and what, provision is to be made for the passage of vessels or boats; and such board shall have the power to grant or refuse the prayer of such petition upon such terms as they may deem just and reasonable, and to prescribe what description of bridge may be constructed, or to prohibit the construction of any bridge on the proposed location, as in their judgment the public interest shall require.” Act No. 156, Laws 1851.
      Seo. 34. “Every such board of supervisors shall have power to make general rules and regulations as to the kind of bridges, and the mode of constructing the same, over any such stream as mentioned in section twenty-one of this act, when such stream shall not be navigable for boats or vessels of fifteen tons burden, or to grant permission for building the same, without the notice or hearing above provided, in such manner as shall be judged proper with reference to the passage of boats, rafts, and timber.” Id.

   Long, J.

On the 3d day of January, 1895, the board of supervisors of the county of Berrien granted the respondent, the Berrien Springs Water-Power Company, a franchise to build a dam across the St. Joseph river at Berrien Springs. The principal case here is an information in the nature of a quo warranto to determine the validity of this franchise. The information was filed in the circuit court of that county on April 30, 1900. It alleges a usurpation of the franchise by the respondent, and that “said company claims the right to build, and is about to build, said dam.” The first plea of respondent sets forth the action and proceedings of the board of supervisors making the grant exactly as they appear of record on the journal of the board. The dam was to have a height of 16 feet. The second plea sets forth the record of the proceedings of that board supplementary to and amendatory of the original grant, increasing the height of the dam to 20 feet. The relator filed a demurrer to these pleas, containing 26 special causes of demurrer, to the effect that both the original and supplementary grants are illegal and void. The case was heard on the demurrer before Judge Peck of the Jackson circuit, who sustained the demurrer, and entered judgment of ouster. The'respondent brings error.

In the case of the Berrien Springs Water-Power Company against John U. Hoffman and others, the bill was filed to protect the complainant in the enjoyment of the franchise granted by the said board of supervisors. Defendant Hoffman filed a demurrer to this bill. The demurrer raised the question whether the grant by the board of supervisors is legal and valid, and also the question whether, under the facts stated in the bill, the complainant is entitled to any equitable relief against the defendants. The case was heard in the court below on the demurrer with the quo warranto proceedings, most of the questions being the same in both cases. In the chancery case the court also sustained the demurrer. The complainant appeals from that decree. The two cases will be discussed together here.

The court below held substantially:

1. That the statute under which the Berrien Springs Water-Power Company was organized does not apply to navigable rivers, and that the St. Joseph river is navigable.

2. That, if the statute be given the scope claimed for it by the complainant, viz., to authorize a corporation organized under it to dam a navigable river, and furnish the water to other persons or companies on such rental as might be agreed upon by and between it and those desiring to obtain the water, the law would be unconstitutional, as it provides no protection and safeguard for those who might thereafter desire to navigate the river, no method of determining the proper charges to be made for water, and no limitations beyond which complainant might not extend its charges.

3. That the board of supervisors did not acquire jurisdiction to grant leave to construct a 20-foot dam, because notice of the application for such construction was not published as the law requires.

4. That no individual or company, even if authorized by the State, could construct the dam until empowered to do so by the United States.

We think the court was in error in sustaining these demurrers. Section 4, art. 18, of the Constitution of this State, provides:

‘■No navigable stream in this State shall be either bridged or dammed without authority from the board of supervisors of the proper county under the provisions of law. No such law shall prejudice the right of individuals to the free navigation of such streams, or preclude the State from the further improvement of the navigation of such streams. ”

The legislature, by Act No. 156, Laws 1851, provided that boards of supervisors should have power, within their respective counties, to permit or prohibit the construction or maintenance of any dam or bridge over or across any navigable stream. Section 21 of this act was amended at the same session (Act No. 165, Laws 1851), and section 22 was amended by Act No. 129 at the session of 1873, The act, as amended (1 Comp. Laws, § 2494 et seq.), will be found in the margin. It is contended by counsel for the water-power company that the characteristic features of the constitutional provision and of this legislation are:

1. That, under the Constitution, a franchise to dam or bridge a navigable river cannot be granted by the legislature except with the consent and approval of the board of supervisors of the proper county; such consent and approval to be given under such statutory regulations as the legislature may prescribe.

2. That the provision of the Constitution that “ no such law shall prejudice the right' of individuals to the' free navigation of such streams ” does not mean that the navigability of the. streams may not be obstructed by bridges without draws or dams without locks; that all it means is that no exclusive rights to navigate the streams shall be granted, and that, so far as they are navigable, they shall be public highways, open to use by all the world.

3. That the statutory regulations make no distinction between persons, or between persons and corporations, or between corporations; that the boards of supervisors are given power to grant franchises to bridge or dam any navigable river to any person whosoever or to any corporation whatsoever; that a grant .can be made to any corporation, and,- if it has no use for the franchise under its corporate powers or business, it may assign and transfer the grant to some person or corporation that has use for it; that private corporations can be organized in Michigan only under general laws, the policy of the State being to give every one an equal right to have and enjoy corporate franchises; that this policy is so clearly expressed in the Constitution, and has been so thoroughly sustained by the Supreme Court of the State, that there is no occasion to cite authorities in its support.

4. That the statutory regulations do make an important distinction between navigable rivers; that, if the stream is not capable of being navigated with a vessel of 15 tons burden, no public notice or public hearing is necessary when a grant is made by the supervisors to build a bridge across it, either with or without a draw; in other words, that such a stream may have a barrier built across it in the shape of a bridge without any public hearing before the board of supervisors.

In Shepard v. Gates, 50 Mich. 497 (15 N. W. 879), Mr. Justice Campbell, speaking of this statute and of the constitutional provision in relation to this subject, said:

“ The objection that no authority had been given by the board of supervisors to build the bridge would have required attention if it did not appear that this branch of the Au Gres was only used for floating logs, and does not appear to have been adapted, in its natural condition, to any valuable boat or vessel navigation. The clause in the Constitution providing that ‘ no navigable stream in this State shall be either bridged or dammed without authority from the board of supervisors of the proper county, under the provisions of law,’ has been understood as adopted in furtherance of the policy of the Ordinance of 1787, which stipulated that ‘the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free,’ etc. Ordinance 1787, art. 4. That has been considered as referring to navigation in its proper sense, by some sort of boats used as means of carriage. At the date of the ordinance, the largest portion of the carrying trade in the Northwest was conducted in moderate-sized boats, and the cargoes, and sometimes the boats themselves, were taken across the portages or carrying places dividing one stream or stretch of navigable waters from another. The legislature of 1851 so construed the Constitution by confining the necessity of special leave from the supervisors for constructing bridges to streams navigable by boats or vessels of 15 tons burden or more, while the supervisors were authorized to make general regulation in regard to shallower streams. Act No. 156 of 1851, §§ 23, 24. In the absence of anything appearing to the contrary, we do not think that a bridge which does not interfere with convenient floatage can be regarded as having been built illegally in completing this highway.”

The Berrien Springs Water-Power Company was incorporated under Act No. 202, Pub. Acts 1887 (2 Comp. Laws, § 6806 et seq.). This act granted the right to organize water-power companies, giving such corporations the right to all the franchises and powers conferred by the act, or by the general provisions of the statutes relating to corporations. The articles of association of the company, in stating the purposes for which it was organized, followed the language of the statute, and set forth:

(а) The damming of the St. Joseph river at or near the village of Berrien Springs, in the county of Berrien.

(б) The excavating and constructing, maintaining, repairing, and improving of any canal it might wish to excavate and construct.

(c) The water power appurtenant thereto.

(id) The use and control of the same for the purpose of accumulating, storing, conducting, selling, furnishing, and supplying, upon agreed rental, water and water power.

(e) For mining, milling, manufacturing, domestic, municipal, and agricultural purposes.

(/) And for the purposes of navigation.

An additional purpose stated is that of producing and supplying the village of Berrien Springs and its inhabitants with electricity for lighting, heating, and motive purposes.

We think this act is broad enough in its terms to authorize corporations to be organized under it in any county of the State. The third subdivision of section 9 does not limit the operation of the act to Berrien county, but merely gives power to any corporation organized under the act to divert the waters of Lake Paw Paw, or Paw Paw river, or any tributary stream in Berrien county, into any canal excavated or constructed under the act. The act in terms applies to the whole State, and contemplates the organization of corporations for the improvement of the watercourses of the State, whether navigable or nonnavigable, by the construction of dams, the excavation of canals, and the deepening of channels. Corporations making such improvements are authorized to use the water power of the dam by leasing or selling the power, or by using it themselves; and they are also authorized to do a transportation business upon the navigable water-ways constructed and maintained by them. By the sixth subdivision of section 9 of this act such corporations are given the same power to condemn property to the public use as is possessed by.railroad companies. This is done to enable such corporations to so improve the water-courses of the State as to make them navigable and useful public highways for the use and enjoyment of the people of the State. By section 11 of the act such corporations are also given the right to supply water to other persons or companies for mining, manufacturing, milling, domestic, municipal, or agricultural purposes on such rent as shall be agreed upon, or to use the same themselves in any class of manufacturing purposes. We think the additional purposes stated in the articles of association are fully authorized by this section of the act.

The right to use such navigable streams is referred to by this court in Stofflet v. Estes, 104 Mich. 208 (62 N. W. 347). It was there said:

“Moreover, the stream being navigable, the local authorities have no right to build a bridge without action by the board of supervisors, who may direct how it should be built. Const, art. 18, § 4; 1 How. Stat. §§ 493, 495, 496. The record indicates that the board has never authorized a bridge at this place, and there is no pretense that the change proposed has been sanctioned. There are many streams in the .State which have been made deeper by dams. In ponds so formed, sometimes extending for miles, good-sized boats may float where formerly only logs could float in times of freshets. In such cases, if the stream is navigable for any purpose, the private rights of individuals are protected against arbitrary action by local authorities, who may only act when and in such way as the supervisors permit, and then not in contravention of private rights.”

The title and body of the act each provide for dams and excavations for two purposes, viz., for the purpose of obtaining water power, and the purpose of deepening the water-way so as to make it more useful for navigation. It is apparently conceded that a 20-foot dam at Berrien Springs will so deepen the St. Joseph river as to set the water back for a distance of some 10 miles, and thus improve its navigation to that extent. The learned circuit judge, however, was of the opinion that it is not competent to build a dam across a navigable stream unless the dam be provided with a lock so as to permit the passage of vessels. Such a rule cannot be sustained. There is no constitutional prohibition, and the legislature has left the matter of damming such streams to the judgment and discretion of the board of supervisors of each county in the State. It is admitted that St. Joseph river, above Berrien Springs, is navigable only in a qualified sense. It is navigable only as many other rivers of the State are navigable. It has dams built across it in many places above Berrien Springs. Grand river is navigable in the same sense as is the St. Joseph river above Berrien Springs, and yet Grand river is obstructed by numerous dams above Grand Rapids. The future prosperity of many places in the State is largely dependent upon the use which may be made of rivers of this character. If dams cannot be built, and water power (the cheapest in the world) thus furnished, water supplied, and the navigation of rivers improved, these cities, villages, and country towns will lose the greatest benefits which nature has placed within their reach.

The act under which the Berrien Springs Water-Power Company was incorporated is not limited to nonnavigable streams. The act construed in Clay v. Improvement Co., 34 Mich. 204, was limited to the-improvement of the navigation of rivers, and it was held not to apply to streams that are not navigable in any sense of the term. The act construed in Nelson v. Navigation Co., 44 Mich. 7 (5 N. W. 998, 38 Am. Rep. 222), and Attorney General v. McArthur, 38 Mich. 204, was limited in the same way; and so was the act passed upon in Benjamin v. Improvement Co., 42 Mich. 628 (4 N. W. 483). It was said in the last-named case, at page 634: “ Free navigation, therefore, does not necessarily mean navigation of the streams in their natural condition, unobstructed and unimpeded.”

This is a proceeding in behalf of the State to determine the validity of a franchise emanating from the State. It is not a proceeding on behalf of the Federal Government. The State and the prosecuting attorney of Berrien county have no authority to represent the Federal Government; and it must be assumed that, if Congress has any jurisdiction over the St. Joseph river at" Berrien Springs, the consent of Congress, or of some officer of the United States duly authorized by it, will be obtained before the dam is built.

We think also that no public notice of the petition to increase the height of the dam from 16 to 20 feet was necessary. The original franchise authorized the construction of a 16-foot dam. This would be just as much an obstruction to the river as a 20-foot dam would be. The public were not interested in the height of the dam. The ■act authorizing the board of supervisors to grant such a franchise provides that “nothing in this act contained shall be constrhed as giving to such board of supervisors any power to grant the right to any person or persons or corporation to flow, or in any manner to take or injure, the lands of any person or persons by or in consequence of •constructing such dam.” 1 Comp. Laws, § 2495. It appears that the petition for an increase in the height of the dam states, and the second plea of the respondent alleges, that “options for the purchase of flowage rights for a 20-foot dam have been secured from all lands affected thereby.” This obviated the necessity for the publication of notice.

The court was in error in sustaining the demurrer to the pleas. The order below must be reversed, the demurrer overruled, and the judgment of ouster reversed, and judgment entered here in favor of respondent.

The demurrer in the chancery case raised the question whether the grant by the board of supervisors is legal and valid. That question has been disposed of. It also raised the question whether, upon the facts stated in the bill, the complainant is entitled to any equitable relief against the defendants in that bill. It appears by the bill that the Berrien Springs Water-Power Company was organized by 29 residents of Berrien Springs, each of whom subscribed for $1,000 of the capital stock of the company; that the articles of association fixed the capital stock at $50,000, divided into 500 shares of $100 each; that, after obtaining the grant from the board of supervisors, the corporation proceeded to acquire the right to overflow the lands bordering on the St. Joseph river above Berrien Springs; that it obtained conveyances of the right of flowage over 7 different parcels of land, and obtained options for the purchase of rights of flowage over 30 other parcels of land; that these conveyances and options cover nearly all of the lands that would be overflowed by the construction of the proposed dam; that thereupon all of

the original stockholders transferred their interests to one James Du Shane and certain others. The bill then states substantially:

1. The by-laws of the Berrien Springs Water-Power Company contained a provision that all the power developed by the dam and canal contemplated by the company should be employed and utilized in the village of Berrien Springs and in the township of Oronoko, in which the village is situated. Before the original stockholders of the company sold out their interests and transferred the same to James Du Shane and his associates, to wit, on May 12, 1898, they adopted an amendment to the by-laws striking this provision out of them. The object of this amendment was to permit the corporation to transmit electric power to points outside of Berrien Springs, and to the city of South Bend, an important manufacturing city in the State of Indiana, and to other towns and places in the State of Michigan and the State of Indiana.

2. Charles A. Chapin is a capitalist residing in Chicago. He is the principal owner of the South Bend Electric Company, a corporation engaged in furnishing electric light and power to the city of South Bend and vicinity. If the Berrien Springs Water-Power Company transmitted electric power to South Bend and vicinity, it would compete with Mr. Chapin’s company, and for that reason he was interested in defeating the construction of a dam at Berrien Springs; and, if the dam was constructed, he was interested to have the ownership and control of it, if possible.

3. Almon B. Ayers, Isaac N. Savage, and Fred Mc-Omber were among the original stockholders of the Berrien Springs Water-Power Company. Mr. Ayers and Mr. McOmber were members of its board of directors, and Mr. Savage was its secretary, prior to the time when all of the original stockholders sold out their interests. In addition to this, Mr. Ayers had given the corporation an option for the purchase by it of the right to overflow about 75 acres of land at or near Berrien Springs for the agreed consideration of $5,600.

4. Notwithstanding the sale in which Ayers, Savage, and McOmber participated, and the obligations created by their relations to said sale as vendors, they entered into a conspiracy with Charles A. Chapin to defeat the enterprise and improvement for which the Berrien Springs Water-Power Company had been incorporated and sold. As a part of the same transaction, Ayers had agreed to •extend his option, the same having expired November 11, 1899; the consideration for such extension being an increase in the purchase price of $200. Du Shane and his ■associates relied upon this agreement of Ayers when they boüght out the original stockholders. A new option was prepared for him to- execute, and he took it away with him to obtain the approval of his attorney to the form of it. He never returned it to the company, or to any one connected with it. On the contrary, he executed to Charles A. Chapin, or to John U. Hoffman, of Chicago, as a friend and trustee of said Chapin, an option or deed covering the right of fiowage he had agreed to convey to the Berrien ■Springs Water-Power Company. John U. Hoffman is made a party defendant in the bill because he holds the “title to the fiowage rights Ayers had conveyed, or had agreed to convey, to Chapin. Hoffman acted simply as a trustee for Chapin.

5. Other parties who had given options to the Berrien Springs Water-Power Company were also approached on the theory that they were still dealing with the Berrien Springs Water-Power Company, and conveyances and •options were obtained from them for the purpose of defeating the enterprise of the Berrien Springs Water-Power Company. These conflicting conveyances and options were obtained by Isaac N. Savage, Charles A. Chapin, Hugh H. Hosford, and Almon B. Ayers, and the conveyances were made to them, or to one of them, or to John XT. Hoffman, as the friend and trustee of Chapin.

6. Other misconduct on the part of Savage, Ayers, Hosford, McOmber, and Chapin, to which Hoffman does not appear to have been a party, is alleged in the eighteenth paragraph of the bill.

The question presented by this appeal is whether the Berrien Springs Water-Power Company has any rights in the premises which a court of equity can protect against JohnU. Hoffman.

The prayer of the bill is in part as follows:

“1. That said Almon B. Ayers may be decreed and required to execute to your orator an option for .thé sale and conveyance from him to it, for the sum of $5,800, of the right to overflow his lands bordering on the St. Joseph river, as described in this bill.
“2. That the options, deeds, and conveyances obtained, by said defendants, or any of them, or in the name of any other person for them, or either of them, may be declared null and void as against your orator, and that said defendants, and each of them, may be required and decreed to execute to your orator assignments, deeds, or conveyances transferring to your orator all rights of flowage so-acquired by them, or either of them.”

The court was in error in sustaining the demurrer to-this bill. We have seen that the franchise was properly granted to the corporation by the board of supervisors,, and that under the act of incorporation the parties had the-right to proceed to acquire flowage rights. The sale by the-original stockholders of the company of all their stock therein, together with the corporate franchises and property, including the franchise granted by the hoard of supervisors and the options for flowage rights, carried with it an implied warranty on the part of the vendors that they had title to the stock, and that the corporate-franchise, and the franchise to dam the St. Joseph river at Berrien Springs, were legal and valid, and that the options for the purchase of flowage rights were subsisting obligations; and we think the complainant is entitled to-equitable relief against John U. Hoffman.

It cannot be said that the subscription contracts of the original stockholders are not assignable. When a person signs articles of association of a corporation, the subscription itself constitutes the subscriber a stockholder, and he becomes liable to pay the amount, and the corporation becomes obligated to issue the stock to him upon payment-of the amount. It is a mutual contract, and such rights-are assignable. 1 Mor. Priv. Corp. (2d Ed.) § 56.

The order of the court below sustaining the demurrer must be vacated, and the demurrer overruled. Defendants must be given 20 days in which to answer the bill. Complainant will recover costs of this court.

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


author: Moore, J.

text:
    CHAPMAN v. NEHMAN.
    Summary Proceedings — Landlord and Tenant — Plea of Title —Jurisdiction.
    Where, in summary proceedings to recover the possession of land, the proofs make out a case under the statute (3 Comp. Laws, § 11164), defendant cannot deprive the court of jurisdiction by setting up a claim of title. So held where complainant claimed that, by her consent, defendant’s grantor constructed a stairway over her land, for use in connection with his adjoining premises, upon the understanding that he would remove it on request, and defendant sought to show that the stairway was in fact on his side of the true dividing line.
    Error to St. Clair; Atkinson, J.
    Submitted June 24, 1901.
    Decided September 25, 1901.
    Summary proceedings by Sarah A. H. Chapman against Michael Nehman to recover the possession of land. From a judgment for complainant, defendant brings error.
    Affirmed.

      Avery Bros. & Walsh {Frank Whipple, of counsel), for appellant.

      John B. Mellwain, for appellee.
   Moore, J.

Complainant brought summary proceedings to recover the possession of a strip of land about four feet wide. It was her claim that Dr. McGurk was the owner of the south half of a lot, and she was the owner of the other half; that he desired temporarily to build a stairway upon her land, leading to the upper story of his building; that he agreed to1 remove it whenever she wanted him to do so; that he agreed to build a gutter to take care of the water, and would make it right for the use of the land; and that she consented to this. It was the claim of defendant upon the trial that he and his grantor occupied the property so long that the line cannot now be disturbed. It is the claim of counsel for defendant in their brief that “the sole question in the case was, Where is the boundary line between the north half and the south half of lot 4 ? and this question cannot be tried in this form of action; ” while counsel for complainant says the real question is, Did the grantor of defendant enter into possession of the land as the tenant of complainant ? The court below held that the question of title could not be litigated in this proceeding.

The following special questions were submitted to the jury, all of which were answered in the affirmative:

“1. Did Dr. McGurk in 1876 obtain possession of a strip of land 32 inches in width along the south line of the north half of lot 4, in block 1 north, of range 1 east, according to Walker’s plat of the village of Capac, from the plaintiff, as her tenant ?
“2. Before the stairway was built on the McGurk building, was the center line of lot 4 in question agreed to by plaintiff and Dr. McGurk,' and marked by a stake set by Dr. McGurk ?
“3. Did Dr. McGurk build a stairway on his building 32 inches north of the line agreed to by plaintiff ?
“4. After the stairway was built, did Dr. McGurk cut a notch in the door sill on a line with the stake, to mark said line ?
“5. Did Robert McGurk inform the defendant, before he deeded to him, that the stairway extended over on plaintiff ? ”

An inspection of the record shows there was an abundance of testimony to justify the findings of the jury. Where the relation of landlord and tenant has existed, the statute provides when summary proceedings may be commenced. 3 Comp. Laws, § 11164, and the many cases cited in the note. The court is not devested of jurisdiction simply because defendant pleads title. Butler v. Bertrand, 97 Mich. 59 (56 N. W. 342). If the proofs bring the case within the terms of the statute, the court retains jurisdiction. Butlero v. Bertrand, supra; Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32). We think the case was carefully and properly tried.

Judgment is affirmed.

The other Justices concurred.


text:
    FERGUSON v. ARTHUR.

    1. Contracts — Sale of Timber — Removal—Reasonable TimeParol Evidence.
    Where a written contract for the sale of standing timber is silent as to the time for its removal, a reasonable time will be implied, and parol evidence is inadmissible to show that a specific time was agreed on.
    2. Same — Passing of Title — Replevin.
    Where defendant contracted in writing to sell to plaintiff all the hemlock timber on certain land for a specified price per M., payable according to the scale bills on the sale of the property by plaintiff, and plaintiff entered upon the land pursuant to the contract, he became vested with the title to the timber; and, defendant having cut and removed a portion of it before the expiration of the reasonáble time allowed plaintiff for that purpose by the terms of the contract, plaintiff could maintain replevin for the timber so removed.
    Error to Ogemaw; Sharpe, J.
    Submitted October 10, 1900.
    Decided October 1, 1901.
    Eeplevin by James Ferguson against Amelia Arthur. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff and defendant entered into the following contract :
    “This contract, made this 26th day of July, 1897, between Amelia Arthur, party of the first part, and James Ferguson, party of the second part, witnesseth as follows, to wit: The party of the first part agrees to sell to the party of the second part all the hemlock timber standing and down on the east half of the northeast quarter of section eight, town twenty-one, range one east. The party of the second part agrees to pay the party of the first part fifty cents per one thousand feet when the party of the second part receives remittances and scale bills from the party he sells to.”
    During the winter following, plaintiff entered upon the lands, and cut and removed 90,000 feet of timber. Defendant, claiming that plaintiff had not complied with the contract in removing the balance of the timber, afterwards entered into possession, and cut the logs in controversy, which the plaintiff replevied. Upon the trial he recovered verdict and judgment.

      Merrie H. Abbott and Charles S. Abbott, for appellant.

      Boss & Harris, for appellee.

       Rehearing denied November 4, 1901.

   Grant, J.

{after stating the facts). The contract, being silent as to time, provided for a reasonable time for performance on the part of the plaintiff. It was therefore incompetent for defendant to show that any specific time was agreed upon. This would be in violation of the terms of the contract. Stange v. Wilson, 17 Mich. 342. The ruling of the court in this regard was correct.

The court instructed the jury, in substance, that, by the terms of the contract, the title to the timber had passed from the defendant to the plaintiff, and that, if plaintiff had failed to remove it within a reasonable time, he could not recover; but, if he had not had reasonable time in which to remove it, he was entitled to recover. We think the court correct in holding that the title to the timber had passed. See Whitcomb v. Whitney, 24 Mich. 486. Upon the execution of the contract, all the delivery which was possible was made. The plaintiff entered upon the land, and took all the possession possible to take. The defendant had nothing more to do. The price was fixed, and the amount was to be determined by the scale bills made when plaintiff had sold the property. The entire dominion and control over the subject-matter of the contract was, by its terms, lodged in the plaintiff. Whether the title revested in the defendant upon the failure of the plaintiff to remove the timber within the reasonable time provided by the contract is not before us, and is not argued by counsel. The instruction that, if plaintiff had failed to remove it within a reasonable time, he could not recover, and the converse of the proposition, were as favorable instructions as the defendant was entitled to.

Judgment affirmed.

The other Justices concurred.