author: Mooke, J.

text:
    STATE SAYINGS BANK OF DETROIT v. MATTHEWS.
    1. Mortgages — Foreclosure — Redemption — Amended Law — Obligation oe Contracts — Impairment.
    Act No. 200, Pub. Acts 1899, which amends the mortgage foreclosure law so as to authorize the circuit judge to decree a sale of the land after the lapse of six months (instead of one year, as theretofore provided) from the filing of the,, bill to foreclose, and allows the mortgagor six months in which to redeem, affects the remedy only, and makes no change which amounts to an impairment of the obligation of existing contracts.
    2. Same — Pending Proceedings.
    Foreclosure decrees entered after the amendatory law became operative should conform to the provisions of the amendment, even though the suits in which they are rendered were commenced before the amendment took effect.
    Appeal from Wayne; Frazer, J.
    Submitted January 3, 1900.
    Decided February 20, 1900.
    Bill by the State Savings Bank of Detroit against James N. Matthews, Jessie W. Radeliffe, and others, to foreclose a mortgage. A decree of foreclosure was rendered, and the request of defendant Radeliffe that it be entered under the provisions of Act No. 200, Pub. Acts 1899, being denied, she appeals.
    Reversed.

      Walker & Spalding, for complainant.

      James T. Keena, for appellant.
   Mooke, J.

This is an appeal of a second mortgagee in possession from a decree of foreclosure of a real-estate mortgage authorizing a sale one month after decree entered, and providing that there shall be no redemption from such sale. The appellant appeared in the court below, and asked that a decree he entered providing for redemption according to the terms of Act No. 200 of the Public Acts of 1899. The sole questions are on the constitutionality and applicability of that act. The mortgage foreclosed was made in February, 1897, the bill of complaint was filed February 5, 1898, and the decree was ■entered November 23, 1899. It is contended that the law, as amended, should not control the proceedings in this ease:,

First. Because, the mortgage having been executed before the passage of the amendment, which amendment, by its terms, materially changes the rights and remedies of the mortgagee, the act, as to such mortgage, would be unconstitutional, as impairing the obligation of contracts.

Second. Because, even if the act can be construed as affecting prior mortgages, it should not be construed to affect proceedings instituted before the act took effect, and the proceedings in this cause must, therefore, be governed by the old law.

Third. Because it is clear, by the reading of the amended law, that it was intended to apply only to foreclosure proceedings instituted in the future, and not to proceedings pending at the time the law went into effect.

It is said the statute in force at the execution of the mortgage must govern, and Act No. -200 of the Public Act of 1899, as applicable to such mortgage, is unconstitutional, as impairing the obligation of contracts; citing Stevens v. Brown, Walk. Ch. 41; Mundy v. Mon roe, 1 Mich. 68; Cargill v. Power, Id. 369.; Blackwood v. Van Vleet, 11 Mich. 252; Neivton v. McKay, 30 Mich. 380; and Barnitz v. Beverly, 163 U. S. 118.'

2 How. Stat. § 6701, reads as follows:

“Whenever a bill shall be filed for the foreclosure or satisfaction of a mortgage, the court shall have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the costs of suit; but the circuit judge shall not, by such decree, order any lands to be sold within one year after the filing of the bill of foreclosure.”

The amended section reads just the same as the.original section down to the words ‘ ‘ one year, ” which are stricken out, and the words “six months” are inserted in lieu thereof. Then comes a provision for the redemption of the land any time within six months after the sale. Is this such a change in the law as to impair the contract made between the mortgagor and the mortgagee, or does it simply relate to the remedy ? Prior to the passage of the law of 1843 (Act No. 62, Laws 1843) the title to the land was in the mortgagee. He was entitled to its possession, and to the. rents and profits accruing therefrom. The law of 1843 took from the mortgagee the right of possession, and did not allow him to bring ejectment until the expiration of the right of redemption after the foi’eclosure of the mortgage. Of course, this deprived him of the use of the premises, and of the rents and profits, to. which he was entitled prior to the passage of the law. The court, in Mundy v. Monroe, supra, and Blackwood v. Van Vleet, supra, very properly held that this deprived the mortgagee of a contract right, and impaired the obligation of a contract. The same reason applies in the case of Barnitz v. Beverly, 163 U. S. 118. Under the law of 1844 (Act No. 40, Laws 1844) the mortgagor had 'the legal right to remain in possession of the premises two years after the foreclosure sale. This law was changed so as to make the period of redemption run but one year. In Cargill v. Power, 1 Mich. 369, it was held this change in the law would not apply to existing mortgages. It is apparent from reading the opinion that the reason of this holding was that to rule otherwise would be to deprive the mortgagor of the right of possession for one of the two years to which he was entitled under the law before it was amended. It is hardly necessary to add that this would deprive him of a valuable right. In Mundy v. Monroe, 1 Mich., at page 71, it is said:

“It seems to be conceded by all who have written on this subject that, where the law sought to be invalidated affects the remedy only, and does not touch the right of the party secured by the contract, it is not repugnant to that provision of the Constitution which declares that no State shall pass any law impairing the obligation of contracts. ”

In the case of Sturges v. Crowninshield, 4 Wheat. 200, so often referred to upon questions of this kind, the late chief justice of the United States says:

“ The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified, as the wisdom of the nation shall direct.”

In Tennessee v. Sneed, 96 U. S. 69, the rule is stated as follows:

“The case of Sturges v. Crowninshield, 4 Wheat. 122, is among the first of the class where the question arose upon the abolition of the right of imprisonment of the debtor as a means of compelling payment of his debt. Mason v. Haile, 12 Wheat. 370, was a case of the same class. Mr. Justice Thompson says: ‘Imprisonment of the debtor * * * may be allowed as a means of inducing hjm to perform his contract; but the State may refuse to inflict this punishment, * * * and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation.’ On the general subject, and for numerous illustrations, reference is made to the following cases, which it is not necessary to examine in detail: Bronson v. Kinzie, 1 How. 311; Von Hoffman v. City of Quincy, 4 Wall. 535; Bruce v. Schuyler, 9 Ill. 221 (46 Am. Dec. 447), — in each of which a large number of cases is collected. If a particular form of proceeding is prohibited, and another is left or is provided which affords an effective and reasonable mode of enforcing the right, the obligation of the contract is not impaired. Bronson v. Kinzie, supra; Huntzinger v. Brock, 3 Grant, Gas. 243; Evans v. Montgomery, 4 Watts & S. 218; Read v. Frankfort Bank, 23 Me. 318. The rule seems to be that, in modes of proceeding and of forms to enforce the contract, the legislature has the control, and may enlarge, limit, or alter them, provided that it does not deny a remedy, or so embarrass it with conditions and restrictions as seriously to impair the value of the right.

See, also, Connecticut Mut. Life Ins. Co. v. Cushman, 108 U. S. 51; Morley v. Railway Co., 146 U. S. 162; Von Baumbach v. Bade, 9 Wis. 559.

If we compare the law as amended with it as it was before the amendment occurred, we will find it does not change the time of possession either of the mortgagor or of the mortgagee. It changes the form of the decree. It shortens the time after the suit is brought when sale may be made, but it adds a period of redemption after the sale which did not exist before. We do not think it can be said that there is any such material change in the relation of the mortgagor to the mortgagee, or to the rights of each, as to amount to an impairment of the obligation of contracts.

Does the statute, as amended, apply to cases already begun ? They are not excepted from the terms of the act. When the amended section became operative, it took the place of the original section, and the provisions of the original section ceased to exist. This occurred before the decree was made. We think the terms of the act applied to this case, and that the decree for which the defendant prayed should have been entered.

The decree of the court below is reversed, and one will be entered here in accordance with this opinion. -

The other . Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    H. M. LOUD & SONS LUMBER CO. v. TOWNSHIP OF ELMER.
    Taxes — Payment Under Protest — Ownership of Lands — Subterfuge Sale.
    Where, in an action against a township to recover taxes paid under protest on the ground that the assessing officer had notice, before the assessment, that the lands had been sold and deeded to a nonresident, the agent of plaintiff, a lumber company, admitted on the stand that the sale was for a merely nominal consideration, and that the company afterwards continued to lumber the lands without giving credit to the grantee, and that the purpose of the transaction was really to place the property where it would not be subject to taxes, the court should have directed a verdict for defendant upon the ground that the alleged sale was a mere subterfuge to escape taxation.
    Error to Oscoda; Simpson, J.
    Submitted January 3, 1900.
    Decided February 20, 1900.

      Assumpsit by the H. M. Loud & Sons Lumber Company against the township of Elmer to recover taxes paid under protest. From a judgment for plaintiff, defendant brings error. Reversed.

      John A. McMahon (De Vere Hall, of counsel), for appellant.

      Main J. Connine, for appellee.
   Long, J.

The plaintiff was the owner of a quantity of pine lands in the defendant township, Oscoda county, prior to March, 1894. These lands were deeded by a deed of quitclaim to one Charles Crofoot, of Plattsburg, Ohio, in March, 1894. The deed was sent to the office of the register of deeds of Oscoda county, but was not recorded, on account of unpaid taxes on the lands described. These lands were assessed to the plaintiff in April, 1894, by the supervisor of the township. It appears that on April 7, 1894, Mr. George A. Loud, vice-president of the plaintiff, wrote the supervisor of defendant township that these lands had been conveyed to Crofoot, and asked that they be assessed to him. The supervisor, however, declined to do this, and assessed the lands to plaintiff. The plaintiff paid the taxes under protest on February 36, 1895, and on March 5, 1895, commenced this suit to recover the moneys so paid. On the trial the plaintiff called Mr. George A. Loud as a witness, who testified to the transfer of the lands to Mr. Crofoot. On cross-examination he testified as follows:

“A large portion of these lands in 1894 were stripped of timber previous to that time. I could not say how long previous. It ranges from a considerable space of time to one, two, or three years. The timber was taken from them from 1891 to 1894, inclusive. By ‘ 1894 ’ I mean the winter of 1893-94. We did not get through lumbering there in the spring of 1894 on all of them. On the last page of the exhibit there were three descriptions still had timber on them, partly. All of the others were presumed to be stripped. There was another description that had not been lumbered,- — up in 10, — making four. The plaintiff did the lumbering, and at the time it was done the title stood in the plaintiff, I think. I do not know from whom the plaintiff purchased these lands. It buys lands from different persons. Most of them have been owned for a number of years. I knew Mr. Crofoot. He was a farmer. His wife’s name is Martha. She is my cousin. I acted for the corporation in making the deal by which the lands were sold to Crofoot. It was at Oscoda, and Mr. Crofoot was there. He did not go to look at the lands. I described the nature of them to him, and the deal was made at that time. * * * The lands were all included in one instrument, — a quitclaim deed. I cannot reqall the exact consideration, but it was a nominal consideration. I believed the timber had all been removed from the lands, practically.
Q. And these lands were put in his name because he was a nonresident of the State, were they not, Mr. Loud ?
“A. They were sold to him because we did not want them.
Q. Wasn’t it for the purpose of placing them where you would know your property would not be subject to a levy for the taxes ?
" A. I presume that would be a fair statement of the proposition. We had no further use for them, and gave them away for a nominal consideration.
Q. Now, you found the taxes, I suppose, somewhat of a burden on those lands ?
“A. We did.
Q. And the purpose in so placing them was to have that burden removed. Have I got that right ?
“A. Practically.”

The witness further testified that, after the conveyance to Crofoot, plaintiff drew the deeds from Crofoot when any of the lands were sold, acted as adviser about sales, fixed the prices for which sales should be made, and took timber from the lands as before the deed was made; that the timber removed belonged to plaintiff, and was mixed with the remaining timber taken from its other lands, and no account thereof kept, and no credit given Crofoot therefor; that it was the understanding that it should continue to own the timber, although not reserved in the deed; that, after the deed to Crofoot, no direction was given the wood superintendent, Mr. Parks, to mark the lands off his plat-book, and that on his and George A. Loud’s books the lands still appeared as plaintiff’s; that it had deeded other lands to Crofoot under similar arrangements; that George A. Loud, without consulting Crofoot, bought other lands from the receivers of the Potts Salt & Lumber Company in his (Crofoot’s) name, fixed the price to be paid therefor, and took the timber therefrom; that, when the deed was delivered to Crofoot, it was handed back to witness, to be placed on record; that the deed remained in plaintiff’s control until after the second Monday of April, 1894.

At the close of the testimony, counsel for defendant asked the court to charge the jury:

(2) The deed to Crofoot would not prevent the supervisor assessing the land to plaintiff unless it was the intention of the parties thereto to convey and receive title thereunder, and, if such was not the intention, the assessment for the year 1894 to plaintiff was legal and valid.”
‘ ‘ (4) If you find that plaintiff owns any interest in the lands deeded to Crofoot, notwithstanding the deed to him,, plaintiff cannot recover the taxes assessed thereon.
“ (5) The good faith of the parties to the deed may be determined by facts and circumstances regarding plaintiff’s dealings with the lands after deed was delivered,— the fact that plaintiff sold the lands for a nominal consideration ; that Crofoot made no examination of the lands before the purchase; that sales of said lands have been made through plaintiff’s officers since such deed was delivered; that plaintiff sent the deed to the register of deeds for record; that plaintiff lumbered some of the lands since they were deeded; that the Potts lands were bought by plaintiff in Crofoot’s name, and timber removed by it, without consultation with him; and such other facts and circumstances, if any, as create the belief in your minds that the transaction was not had in good faith.”
“(8) Notwithstanding notice was given the supervisor that the lands had been sold to Crofoot, he would be authorized to assess them to plaintiff if the purpose of the conveyance was merely to avoid taxation, and not to make a sale in good faith to Crofoot.”

These requests were refused. The court, after stating to the jury that the deed was made to Crofoot, said:

“Now, gentlemen of the jury, if by that deed that company absolutely transferred their title and interest in that land to Mr. Crofoot, Mr. Randall had no right to put it into the rolls against them; and that is the only question you have got to settle. Because, if he hadn’t any right to put it there, they have a right to recover the entire amount of that tax, with interest at 6 per cent, from the time they paid it up to the present time, for the taxes and charges which they have paid. And, if they are entitled to recover anything, they are entitled to recover the whole of it. If they are not entitled to recover the whole of it, they are not entitled to recover anything. There can be no compromise in this matter, or any division. If they conveyed that land and parted with their title to it to Mr. Crofoot, and Mr. Randall was notified of it (and he was; there is no question on that), then I say the land was illegally assessed against them, they did not own it, and they had no more right to pay it than you would if it had been assessed to you; and, I say, if you find that to be the fact, then they are entitled to recover the whole amount,— every cent of it, — with interest at 6 per cent. We are not here to divide anything. We are here to do what we do properly. Now, then, gentlemen of the jury, they did convey it, they did make a deed, and they did notify Mr. Randall; but the defense (the.township of Elmer, by its officers) in this case claims that this was not an actual transfer. They dispute it and deny it, and that has led to considerable controversy and considerable evidence. That has led into an examination of how the transfer was made, and where it was made, and when it was made, and what was done about it, and what has been done since with the lands. The defendant claims that this was merely a subterfuge, and that it was not a fact, and says that, although a deed was made, no title was transferred; and it claims that the plaintiff owned it just as much after it was made as before. Of course, as I stated to you before, the transaction must be such a one as to make the ownership of the lands belong to Crofoot. You all know what that is,- — -what passing the ownership from one man to the other is. The making of a deed is evidence of a transfer; the making and delivery of it transfers the title; and the only question you have got to settle in this case is, not whether the deed was made, because that is settled, it was made; not whether Mr. Randall knew it, because that is settled, he did know it, — but was there an actual sale of the land itself, transferring the property from the H. M. Loud & Sons Lumber Company to Mr. Crofoot? If there was, they are entitled to recover, — the company is entitled to recover in this case. Of course, if there was not, then they would have to pay the taxes on it; and that is a question of fact that you have got to settle. When you come to that point, I am done. * * *”

The court should have given the requests tendered by counsel for defendant. It was admitted by Mr. Loud that the purpose of making the deed was to place the property where it would not be subject to taxation; and it is evident from his further examination that it was not intended, in making the deed, to place the title absolutely in Mr. Crofoot, or, at least, it was the intention of the parties that the plaintiff should have such control over the lands that it could cut and remove any timber remaining thereon, and finally to have charge and control of any sales that might thereafter be made of the lands. It is apparent that this deed to Crofoot was a mere subterfuge, and made for the very purpose of escaping taxation; and the court, under the testimony of Mr. Loud, should have directed the verdict for defendant as to all taxes, except on the Burrows & Rust and Mosher descriptions. We think the testimony was not sufficient to warrant the instruction that plaintiff was bound to pay the taxes on these lands, and that the court correctly stated the law as to the rights of the parties in relation to the taxes on those descriptions.

Judgment below must be reversed, and a new trial granted.

The other Justices concurred.

       Appellant’s application for rehearing on this point was denied May 18, 1900.


author: Moore, /J.

text:
    TRUMBULL v. JANUARY.
    Deceit — When Lies.
    An action for deceit will lie where plaintiff is induced to part with her property to defendant by his deceit and fraud, and she receives nothing therefor, though he promises to pay.
    Error to Wayne; Frazer, J.
    Submitted January 5, 1900.
    Decided February 20, 1900.
    Case by Emma A. Trumbull against William L. January for fraud and deceit. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Lehman Bros. & F. J. Biggs, for appellant.

      Edioin F. Gonely and Orla B. Taylor, for appellee.
   Moore, /J.

This action was commenced by declaration. The declaration contained two counts. In the first count, plaintiff avers that Thomas Paulger was threatening to make her trouble concerning certain land, and that, being ignorant of her rights in the premises, she sought the advice of defendant, who held himself out as an attorney-at-law. She then avers that it became the duty of the said defendant to honestly, faithfully, and correctly advise her of her rights, and to protect her in the possession and ownership of said land, and to advise her that she had a good title, yet the defendant disregarded said duty, and, on the contrary, with intent to cheat and defraud her of said land, defendant falsely, deceitfully, and fraudulently represented to her that she would lose said land, and that she had better have $50 than nothing, and that she had better convey the land to defendant for protection, and that, after the said Thomas Paulger was quiet, he would pay her for said land or reconvey to her. She avers that she believed the defendant, relied upon what he said, and was deceived by what he said, and induced to execute a deed of said premises, and delivered the same to the defendant, without any consideration whatever, and that the same was obtained from her by fraud and deceit. She further avers that no trouble occurred with said Thomas Paulger, and that the defendant did not re-convey the land to her or pay her the value, but wrongfully, deceitfully, and fraudulently, without her consent or knowledge, conveyed said land to one John Sutton, and fraudulently converted the proceeds to his own use, to her damage $600.

The second count declares against the defendant in an action on the case in the nature of an action for deceit and fraud, averring that the plaintiff was the owner of a house and lot in the village of Plymouth, as described in the first count; that she obtained it from John Paulger on account of care bestowed upon him during his declining years, and that said deed was delivered to her after th© said Paulger’s death; that she faithfully cared for the said John Paulger during his lifetime, but that Thomas Paulger, a son of John Paulger, threatened to make her trouble, and for that reason she sought the advice and assistance of the said defendant to protect her in her rights and her ownership and possession of said land, said defendant holding himself out as an attorney-at-law. She avers that it was the duty of the defendant to faithfully, honestly, and truly inform her of her rights, and to protect her in said property, and to advise her that her title to said lands was valid, yet the said defendant disregarded his duty, and wrongfully and fraudulently made false and fraudulent representations to her, by means of which she was deceived, and induced to execute and deliver a deed of said land to said defendant without receiving any consideration therefor, and that the defendant wickedly, wrongfully, and unlawfully cheated and defrauded her of her right, title, and interest in said land, and fraudulently, wrongfully,i and knowingly induced plaintiff to convey said land to him without any consideration, and then and there, by means of false and fraudulent pretenses, cheated and defrauded her of said land and the value thereof, to her damage $600.

The attorney for the plaintiff proceeded to make an opening statement, when a colloquy occurred between him and the circuit judge and the counsel upon the other side. The judge informed the attorney for the plaintiff that he had mistaken his remedy, and could not recover in this action, and that he would, in his charge, cover the questions involved, so as to make a case that could be reviewed here. The judge then charged the jury as follows:

“Gentlemen of the Jury: This suit is brought by Emma A. Trumbull against William L. January. This action is known in law as an ‘action for fraud and deceit/ The basis of the plaintiff’s claim is this: His client, Mrs. Trumbull, then living under the name of Emma A. Blanck, was the owner of a certain piece of property in the village of Plymouth, in this county. That property consisted of a small piece of land, with a cottage upon it, and was valued in the neighborhood of $300 or $350. Some difficulty had arisen between her and one Paulger as to her ownership of that property, and she placed her matters in the hands of one Starkweather, of the village of Plymouth. Mr. Starkweather had called in to his assistance in the determination of her rights in this controversy a man named Stanton, an attorney at this bar; and Mr. Stanton visited her at her residence in Detroit on several occasions, and solicited that she go to the office of William L. January concerning this matter in controversy. After two or three solicitations upon the part of Mr. Stanton, sh'e went to the office of William L. January, and there Mr. January had a conversation with her, the purport of which was that Paulger had a lot of money,— more money than she had, — and that he could beat her in this trouble or suit, or give her a good deal of trouble in this controversy, and that they advised her .to dispose of the property. She was inclined to do so, — inclined to dispose of it to Mr. January, — he offering to purchase it. She at first declined it, but on a subsequent consultation with her husband, Mr. Trumbull, with whom she was •then living, they decided to go back and get what they could out of him; and they did go back, and agreed to sell it to Mr. January on the promise that January was to pay to her at the time of the execution of the conveyance the sum of $50, and that when he could ascertain whatever the property was worth, upon inspection, he would pay her whatever the property was worth over and above the $50, and that, if they could not ágree upon what the property was worth upon inspection, he would return the property to her, — reconvey it to her, — the plaintiff in this suit. Upon the execution of the deed, William L. January did not pay the $50 that she had expected, from the conversation with him, would be paid then and there, without further delay, but told her that he would go out to look at the property, and that she could come in on a subsequent Friday, and that he would pay her the $50.' She came in on that Friday, and on a number of times afterwards, but William L. January never paid her the $50, or any part of it, or any other part of the consideration. In fact, the claim is, upon the part of the plaintiff, that he obtained the conveyance of this land from her without one cent of consideration whatever. In other words, he obtained it by fraud and misrepresentation, and the conveyance from her to him represented nothing to her, — she got nothing for it; that Mr. January subsequently deeded this property to one John R. Sutton; and that John R. Sutton subsequently deeded it to somebody else.
“The claim of the plaintiff is that under these circumstances she can recover for the fraud and deceit practiced by Mr. January upon the plaintiff in this suit, and that the measure of damages in that case would be the whole value of the property; and it is upon this opinion that counsel for the plaintiff has of the law that this suit is based. Now, mind you, I do not pass upon the merits of this case at all. But if the plaintiff’s case is true, that William L. January has practiced this fraud upon this woman, she is entitled to recover this money back, ought to recover it back, because nobody is justified in obtaining property without paying for it, or practicing any such fraudulent representations as this woman claims Mr. January practiced on her in this matter; and it would be my duty and yours, if these facts were made out, to permit the recovery of this money. But I think it is my duty to say to you that this recovery must be had under the forms of law pointed out by the law itself. My opinion of the law is that the plaintiff has not sought the proper remedy; neither you nor I deciding whether they have got any remedy or not, but admitting that the statements made by plaintiff’s counsel are true, for the purpose of deciding upon whether the proper remedy has been selected. Of course, Mr. January could put in his defense if the case ever comes to trial, to find out whether it was true or not; but, for the purpose of this trial, we must presume at this stage of the case that these statements on the part of the plaintiff are true. But, if they were true, the remedy pointed out by the law is twofold: First, if the fraud is adhered to, that is, if the plaintiff’s claim that this fraud was perpetrated is adhered to, then the remedy on the part of the plaintiff is to seek a remedy in a court of chancery, where fraud is a matter of jurisdiction; that is, fraud is a head of equity jurisprudence; and, if this fraud can be established in a court of equity, this conveyance would be set aside, and Mr. January would be compelled by the decree of the court to reconvey the property to the plaintiff in this suit.
“But the plaintiff’s counsel claims that,'on account of the conveying of this property to somebody else by Mr. January, she would lose her remedy; that is, that the court could not enforce this decree to reconvey, as against the innocent grantees of Mr. January. That would be true, but this does not prevent the plaintiff from adhering to the fraud, and having a remedy in chancery, because it is my opinion that if it should be found that a decree of the court could not be carried out, for the reason that there had been a reconveyance of this land by Mr. January to an innocent holder, the court, having had jurisdiction of the case, — the subject-matter of the controversy between the parties, — would retain jurisdiction of the case for the purpose of making a fair adjustment of the matters between the parties. No matter whether the original remedy would have been by law, the chancery court having. had proper jurisdiction, under the rules of law it would retain that jurisdiction, and make a decree requiring Mr. January, if this conveyance could not be made by him, to pay the money, for which an execution from the court of chancery might issue, — whatever the court should find was due in this transaction, as a matter of justice, between Mr. January and the plaintiff, who would be the complainant in that case in chancery. But that remedy has not been sought by the plaintiff in this case, but she has sought to recover here in an action for fraud and deceit. Fraud and deceit would not be the remedy, because the fraud and deceit in such a transaction is a matter over which the chancery court has exclusive jurisdiction ; but she could waive that fraud and deceit, and say: ‘ I will affirm this conveyance. I will concede that I made this conveyance. Mr. January made the promise that he would pay me $50 for it, and also whatever else it can be found it would be worth;’ and she could sue, not in an action of fraud and deceit, but in an action of assumpsit, based upon the promise of Mr. Janúary. This could not be done unless she had waived the fraud; so that the way to recover back this money would be to waive this fraud, and to sue in assumpsit. Then, gentlemen of the jury, if this action had been based that way in a court of law, this question could go to you for your consideration; but that is not the form of action the plaintiff has selected, and therefore I think, under the statement of counsel, there is nothing here upon which I can submit this case to you at all, but simply hold that the remedy sought by the plaintiff is not the remedy pointed out by law, and, until she does seek the proper remedy pointed out by law, the matters of difference between these parties cannot be adjusted in a court.”

He then directed the clerk to receive the verdict of the jury in favor of defendant.

Counsel argue several questions in their briefs which were not before the court, but we decline to consider them here. It is evident that the circuit judge was of the opinion that plaintiff could- not recover in an action at law, except in an action of assumpsit. "We think he was in error. In Jewett v. Petit, 4 Mich. 508, it was held that, where a creditor is induced by the fraudulent representations of the debtor to compromise and receive part of his demand, he cannot, on discovery of the fraud, retain the sum paid, and sue in assumpsit for the balance, but he may retain the payment, and maintain an action on the case for damages sustained by the fraud. Justice Douglass, speaking for the court, said:

‘ ‘ The authorities last cited show, also, that one who has his election whether he will affirm a particular contract must elect either to affirm or disaffirm it altogether. He cannot adopt that part which is for his own benefit, and reject the rest. If he elects to disaffirm on the ground of fraud, he must do so as soon as the fraud is discovered, and must restore the other party, so far as it then can be done, to the same situation he would have been in if the contract had never been made. 2 Pars. Cont. 277, and cases there cited. In Pierce v. Wood, 3 Fost. (N. H.) 520, it was held that this rule was inapplicable to the case of the compromise of a debt on receiving a percentage thereon, and that, if the compromise was voidable for fraud of the debtor, the creditor might disaffirm it, and maintain assumpsit for the balance of the debt, without returning what he had received. But I must be permitted to express a doubt whether this decision is in accordance with sound principles. The court seemed to have thought that, unless this was so, the creditor might be compelled to incur the risk of losing what he had received, in order to recover that out of which he had been defrauded. But we think no such consequence would follow; for, if the creditor did not choose to incur the risk, he might affirm the compromise, and maintain an action on the case to recover damages for the fraud. 1 Smith, Lead. Cas. (5th Am, Ed.) 253, and cases there cited; Wilson v. Fuller, 3 Adol. & E. (N. S.) 68; Taylor v. Ashton, 11 Mees. & W. 401; Harrington v. Stratton, 22 Pick. 510; Ward v. Wiman, 17 Wend. 193.”

This case was quoted with approval in Walsh v. Sisson, 49 Mich. 423 (13 N. W. 802). See, also, Galloway v. Holmes, 1 Doug. (Mich.) 343; Picard v. McCormick, 11 Mich. 68; Warren v, Cole, 15 Mich. 265; Dayton v. Monroe, 47 Mich. 193 (10 N. W. 196).

In People v. Shaw, 57 Mich. 403 (24 N. W. 121, 58 Am. Pep. 372), it was held that fraud in obtaining the possession of money may supply the place of a trespass in taking it, so as to make the conversion of it felonious. The same doctrine is held in People v. Martin, 116 Mich. 446 (74 N. W. 653). In Upton v. Vail, 6 Johns. 181 (5 Am. Dec. 210), Justice Kent uses the following language:

“ The case went, not upon any new ground, but upon the application of a principle of natural justice, long recognized in the law, — that fraud or deceit, accompanied with damage, is a good cause for action. This is as just and permanent a principle as any in our whole jurisprudence.”

See Millar v. Taylor, 4 Burrow, 2345; M’Farlane v. Moore, 1 Tenn. 174 (3 Am. Dec. 752); Medbury v. Watson, 6 Metc. (Mass.) 259 (39 Am. Dec. 726); Pasley v. Freeman, 3 Term R. 52; Dowd v. Tucker, 41 Conn. 197.

It is the claim of the plaintiff that she was induced to part with her property by reason of the deceit and fraud of the defendant. She has received nothing. There is nothing for her to tender back. The case, as stated by her counsel, is something more than a conveyance upon her part, based upon the promise of Mr. January to pay. She claims the conveyance was obtained by deceit. We think she was entitled to go to the jury with the case as outlined by counsel.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Montgomery, C. J.

text:
    HOFFMAN v. PACK, WOODS & CO.
    1. Tax Deeds — Validity—Collateral Attack.
    A tax deed cannot be attacked collaterally upon the ground that the land was held by the State under former bids at the time of the filing of the auditor general’s petition, and was therefore improperly included therein. Peninsular Sav. Bank v. Ward, 118 Mich. 87, followed.
    2. Same — Loss of Files.
    Nor will it be defeated, in a collateral proceeding, by the fact of the loss from the files of the proof of publication of the petition and order of hearing, or of the county treasurer’s, report of sale.
    3. Same — Failure to Record Decree.
    Nor is it void for failure of the clerk to record the decree. Hooker v. Bond, 118 Mich. 255, followed.
    4. Same — Authority to Issue Deed — Constitutional Law— Remedial Legislation.
    Conceding that, under the saving clause (section 111) in the tax law of 1891, conveyances of the State’s interest in lands thereafter bid off to it for taxes delinquent at the time the act became operative (i. e., the taxes of 1889 and 1890) should have been executed by the auditor general, and not by the county treasurer, deeds issued by the treasurer under such circumstances were expressly validated by section 124 of the tax law of 1893; and, the State having the right to dispose of its lands in such manner as it should see fit, such, legislation is not open to the constitutional objection referred to in Hall v. Perry, 72 Mich. 202.
    Error to Iosco; Simpson, J.
    Submitted October 4, 1899.
    Decided February 20, 1900.
    Replevin by Wesley L. Hoffman against Pack, Woods & Company and the Oscoda Boom Company. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      O. B. Henry ( Or. L. Alexander, O. E. McCuteheon, and De Vere Hall, of counsel), for appellees.
   Montgomery, C. J.

This is an action of replevin to recover logs cut from land in Crawford county, of which the plaintiff’s assignor, John M. Hoffman, appears to have held the original title. The defendants claim title to the logs through John Rasmussen, who held tax titles for the years 1875 to 1889, inclusive, and who cut the logs in 1894, and sold the same to defendants. The circuit judge sustained the tax titles for the years 1885, 1886, and 1889, and directed a verdict for defendants for the value of the logs, with interest, the return of the property having been waived.

The objections made to the title based on the taxes assessed in 1889 will be first considered. These objections are:

1. That the land, having been bid in by the State for the previous years, and being still held by the State, should not have been included in the petition.

2. That there was on file no proof of publication of the petition and notice of sale, or entry on the calendar showing that such papers were filed.

3. That no report of sale was found in the clerk’s office.

4. That the decree was not entered of record.

The first of these objections cannot be raised collaterally. Peninsular Sav. Bank v. Ward, 118 Mich. 87, 93 (76 N. W. 161, 79 N. W. 911).

As to whether there was proof of publication of the petition and notice of sale was a question of fact. The present clerk testifies that he failed to find these papers in his office, or any calendar entries showing that they were filed. John Nederer, who was deputy clerk when the proceedings were had, testified that an affidavit of publication was filed before the hearing of the petition. The decree recites that such publication was had. It appears that, at the close of the testimony, the plaintiff’s attorney requested the circuit judge to direct a verdict, evidently considering the question one for the court. It would appear from the testimony, which is uncontradicted, that the proof of publication was duly filed, but has since been lost or mislaid. The loss of papers cannot, in a collateral proceeding, be held to have defeated the jurisdiction. Rorer, Jud. Sales (2d Ed,), § 62; Casey v. People, 165 Ill. 49 (46 N. E. 7); Stoddard Manfq. Co. v. Mattice, 10 S. Dak. 253 (72 N. W. 891).

The objection that the decree was not entered in the decree book is answered by the decision in Hooker v. Bond, 118 Mich. 255 (76 N. W. 404). The recording of the decree is the act of the clerk, and his omission does not invalidate a decree properly signed.

The claim that no report of sale was filed rests upon the fact that no such report is now found; but the county treasurer and deputy clerk both testify that such a report was filed in proper time, and this is corroborated by the fact .that the record of the account between the county clerk and county treasurer shows the entry of items which must have been taken from the report.

The only remaining objection to the title derived under the decree is that the conveyance of the State’s title was made by the county treasurer, and not by the auditor general. The sale was made under Act No. 200, Pub. Acts 1891, and it is contended that the authority conferred upon the county treasurer did not extend to the assessments of 1889; that, as to the title derived under the sale for taxes of that year, the saving clause in the statute of 1891 left the act of 1889 in force. If this be conceded, Act No. 206, Pub. Acts 1893, § 124, validates deeds made by county treasurers. It is contended that the legislature did not possess the power to validate sales by county treasurers. We think this objection without force. Cooley, Const. Lim. (6th Ed.) 469, 470. The case of Hall v. Perry, 72 Mich. 202 (40 N. W. 324), is unlike this. In that case the sale attempted to be validated was a sale of the interest of the original owner in a proceeding in invitum. The court held that the sale, having been void, could not be validated by subsequent legislation. In this case the title had vested in the State. The right to sell depended on the will of the State expressed by effective legislation. If it had the right to sell, it had the right to adopt or validate a sale already made. We think the title of defendants was made out under this tax deed, and it becomes unnecessary to consider the others.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    CALKINS v. ANGELL.
    1. Mutual Benefit Associations — Assessments —Liability of Members.
    A member of a mutual benefit association organized under the provisions of 2 Comp. Laws 1897, § 7497 et seq., imposing an obligation upon the association to pay death claims, and authorizing assessments to be made for the purpose, is impliedly liable for the payment of such assessments, when levied to meet claims accruing during his membership.
    2. Same — Authority of Beceiver.
    It being provided by the organic act that a receiver appointed for such an association may continue the business for the purpose of paying death claims which have accrued at the time of his appointment, and that he may make assessments upon the members liable therefor, an assessment by a receiver, to meet claims accruing before the filing of the petition for dissolution, is as binding as if made by the board of trustees.
    3. Same — Terms [of Application.
    An application for membership in a mutual benefit association, wherein the applicant agrees “to make punctual payment of all dues and assessments for which I may become liable,” of itself amounts to a promise to pay all assessments which the association or its representative is authorized to levy.

      Error to Kent; Grove, J.
    Submitted January 9, 1900.
    Decided February 20, 1900.

      Assumpsit by Charles W. Calkins, receiver of the Masonic Life, Association, against Crawford Angelí, to recover an assessment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Thompson & Temple (Walter W. Drew, of counsel), for appellant.

      L. G-. Rutherford, for appellee.
   Hooker, J.

The Masonic Life Association was a mutual insurance or benefit association organized under the laws of Michigan. See 2 Comp. Laws 1897, § 7497 et seq. On August 23, 1896, its officers instituted proceedings for the winding up of its affairs, under chapter 282, 2 How. Stat. (chapter 300, 3 Comp. Laws 1897). On December 12, 1896, a decree was entered by the Kent circuit court, sitting in equity, dissolving the corporation, appointing Charles W. Calkins receiver, directing that all property of the company be turned over to the receiver, and that he be at liberty to apply to the court for further directions from time to time. No question is raised over the authority of the receiver to do anything that a receiver. may lawfully do in the premises. Death claims to the amount of $57,000 have been approved and allowed, of which $12,000 to $14,000 were for claims allowed by the court since the appointment, of the receiver, and the remainder represents claims allowed by the board of trustees of the association before the petition for dissolution was filed. A dividend of 20 per cent, was paid upon these claims from amounts which came to the hands of the receiver. Afterwards, upon petition of several claim, ants, the court ordered and the receiver made a report,

dated November- 23, 1897, showing assets and liabilities as follows:

Amount of approved claims...................- $57,000 00

Amount of contested claims________________ 11,000 00

Paid on approved claims ....................... 11,400 00

Cask on hand the 12th day of March, 1898 ______ 8,801 96

Assessments required to pay approved claims -.. 45,600 00

Estimated amount of overlay required to meet expenses, uncollected assessments, and costs.. 45,600 00

On the basis of this report, the court ordered the receiver to levy an assessment upon the members of the association shown by his report to be liable therefor, i. e., to have been members when in fact death claims became liabilities against the association. The receiver was directed to collect said assessment by suit, if necessary. The total aggregate of the amount assessed was $91,216.08. The assessment against the defendant, Crawford Angell, in said order, amounted to $76.70. The defendant was a member and policy holder at the time the petition for dissolution was filed, and. this action was brought by the receiver to enforce payment of his assessment. The court directed a verdict for the defendant, and the plaintiff has brought error.

The principal claim, by way of defense to the action, is that the contract is unilateral, and that payment of assessments cannot be enforced. It is contended that it is the right of a member to decline to pay an assessment at any time, and the only consequence is that his policy lapses and he ceases to be a member. It is claimed, further, that, if wrong in this, there is no liability for an assessment made after dissolution, and that no assessment not made by the board of trustees of the association is valid. Counsel seem to agree that the defendant cannot be held liable unless the statute, or a promise, express or implied, in his contract of insurance, makes him so. We need not, therefore, cite authorities upon that point, and will proceed to examine the statute and contract.

The act under which this association is organized is No. 187, Pub. Acts 1887 (2 Comp. Laws 1897, § 7497 et seq.): As said by Mr. Justice Graves in Russell v. Berry, 51 Mich. 289 (16 N. W. 651): “The supremacy of the organic act will 'not be questioned.” The members are certainly subject to the liabilities prescribed by such act. It consists of 34 sections, and these must be construed together. Section 1 provides for the incorporation of mutual benefit associations. Section 5 fixes the time when they become corporations. They are under supervision of the insurance department of the State. Every policy holder becomes a member, and section 15 requires his policy to be written for a definite amount, and creates an' obligation upon the association to pay. The only method of obtaining money to discharge such obligations is by assessments, and authority is given to make them. Section 22 provides for winding up the affairs of the association through the appointment of a receiver, whq may, by order of the court, continue the business for the purpose of paying all death claims which have accrued at the time of his appointment, which claims are made preferred claims, and he may by such order be directed to make assessments upon all members liable therefor, but only to the extent to which they are liable according to the rates and plans and under the contract by which they are severally insured, to provide for such losses and expenses.

It is argued upon behalf of defendant that the provision last quoted should be construed as limiting the liability of the member to such obligations as his policy and the bylaws create, and that under these there is no liability, because there is no promise. It is urged that, by the articles and by-laws, a unilateral contract is provided for, and payment of assessments is optional, nonpayment being followed by a forfeiture of the policy. It seems obvious that the legislature intended that the death claim should constitute a valid obligation, yet this intention would be defeated if the trustees were under no legal obligation to levy, and the members under no obligation to pay, assessments. It would be an idle ceremony to authorize a receiver to levy assessments to pay preferred claims if the assessed were under no legal obligation to pay them. By-laws and policies which established rates and plans susceptible of such construction would violate the spirit of the organic act, which must mean that the members in good standing when the death of a fellow member occurs are subject to assessment to pay the benefit, if it has any meaning. A similar question, though differing somewhat, perhaps, is discussed in Russell v. Berry, supra. There it was claimed that the organic act, which made members liable for losses, was modified and restricted by the articles which the incorporators had seen fit to adopt, but it was held that they could not have such effect.

The policy was issued upon an application signed by the defendant containing the following language: “I agree to make punctual payment of all dues and assessments for which I may become liable.” It is contended that this is not a promise to pay assessments, because there is no legal liability to pay any assessments. Then this language is meaningless. It is the rule that language in a writing should be given effect if it can be consistently done. We must suppose that the parties understood that circumstances might arise creating a liability for assessment, or this promise would not have been made. Counsel cites four cases which are supposed to support his contention. All recognize the liability when there is a contract. In re Protection Life Ins. Co., 9 Biss. 188, was a case where the question rested entirely on the contract, “and not upon the general laws or charter.” Hence the court said, “ The obligations of the parties must be found wholly in the terms of the contract,” and it was held that there was no promise to pay in the contract. The case of Lehmann. Clark, 174 Ill. 279 (51 N. E. 222, 43 L. R. A. 648), supports defendant’s contention, though there was no direct promise to pay, as in this case, but the by-law, which was a part of the contract, provided that, upon the death of a member, each member remaining should be assessed and pay according to his class. The court held this to be a unilateral contract, upon the theory that payment was not obligatory, and said: “Under these authorities [principally Illinois cases], a contract for insurance in any benevolent association is a unilateral contract.” This is the strongest case that defendant produces. In the Equitable Reserve Fund Life Ass’n Case, 131 N. Y. 369 (30 N. E. 117), it was said that the rights of members must be measured by the constitution, by-laws, and certificate, and the case sustains the proposition that a provision may be implied, as in any other case. The case differs materially from the one before us, and appears to have been a dispute over the disposition of funds on hand. One more caséis cited in support of the defense, i. e., Fulton v. Stevens, 99 Wis. 307 (74 N. W. 803). The application contained the same language that is found in this case. It was held that, while a failure to pay an assessment seasonably would terminate the membership, it would leave the member legally liable nevertheless for the assessment, and for all other assessments as well, regularly made and noticed to him prior to such termination. See, also, McDonald v. Ross-Lewin, 29 Hun, 87; Smith v. Down, 75 Hun, 231 (27 N. Y. Supp. 11); Fllerbe v. Barney, 119 Mo. 632 (25 S. W. 384, 23 L. R. A. 435); 2 Joyce, Ins. § 1270.

We have no doubt that the defendant was liable to assessment by the receiver for deaths which occurred previous to the filing of petition for dissolution.

The judgment is reversed, and a new trial ordered.

Moore, Long, and Grant, JJ., concurred. Montgomery, O. J., did not sit.


text:
    CONLEY v. AUDITOR GENERAL.
    Tax Sales — Rehearing—Res Judicata.
    A petition to the chancery court to set aside its decree for the sale of land for taxes, and to permit petitioner to come in and defend, because of the failure of the treasurer to resort to personal property for the collection of the tax, and because of a premature return of the tax warrant, is in effect an application for rehearing, and could be based only on errors in the proceedings in that court; and hence its dis-missal is not res judicata as to the validity of a sale by the auditor general of the State’s interest in the land, which was bid off to it for the amount of the.tax, which sale is void, not because of any defect in the proceedings of the chancery court or invalidity in its decree, but because of the failure of the purchaser to pay the subsequent taxes which had become a lien on the land, as required by section 84 of the tax law of 1893.

      Mandamus by Catherine Conley and others to compel Boscoe D. Dix, auditor general, to set aside a sale of State tax land, and to issue a deed therefor to relators.
    Submitted January 3, 1900.
    Writ granted February 20, 1900.

      Bacon & Yerkes, for relators.

      Horace M. Oren, Attorney General (Dwight N. Lowell, of counsel), for respondent.
   Montgomery, C. J.

This is an application for a mandamus to require respondent to set aside a sale of lands and to issue a deed to relators. The relators are in actual possession of the land which is the subject of the controversy. At the sale in December, 1896, this land was bid off to the State for the taxes of 1894. On the 12th day of February, 1897, Alexander McMillan and Charles Cannell filed an application with the auditor general for the purchase of this land, and' paid the auditor general at that time the sum of $10.79, the amount of the State bid, together with interest thereon, and received from the auditor general a certificate of purchase of the same. At the time McMillan and Cannell purchased this land, the taxes of 1896, amounting to $6.09, were unpaid, and were a lien upon the land. These taxes remained unpaid until the 1st of March, 1897, at which time the relator Catherine Conley paid the same to the township treasurer, and received a receipt therefor. On the 25th day of October, 1899, relators applied to the auditor general to purchase said lands for the taxes of 1894, and at the time of such application filed the receipt for the taxes of 1896, and paid to the auditor general the sum of $15, being the whole amount necessary to purchase said lands for said taxes assessed thereon in 1894, as they were informed by said auditor general, and requested the auditor general to issue a certificate of error canceling the certificate of purchase issued to said Alexander McMillan and Charles Cannell, and any deed which may have been issued thereon, and to issue a deed of said lands to relators. On the 6th of November, 1899, the auditor general refused relators’ application, basing his refusal upon the fact that the relators were barred by the decision rendered by this court in the case of Conley v. McMillan, 120 Mich. 694 (79 N. W. 909). Respondent in his answer admits all the foregoing facts, and alleges that the mandamus should not be granted, for the reason that the relators filed a petition in the circuit court for the county of Macomb, in chancery, to set aside the decree in said cause, and that, on the appeal from the circuit court to this court, the petition was dismissed, and that such proceedings were an adjudication, and were conclusive and binding upon all parties, and estop relators, as well as respondent, from questioning the title for any cause known or existing at the time such petition was presented to the said circuit court.

It is clear that the sale to McMillan and Cannell was void under the holding in Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134), and the relators are entitled to the relief prayed, unless the question is res judicata by the decision in Conley v. McMillan, supra. That case was a petition filed by relatorS in the circuit court for the county of Macomb, in chancery, to set aside the decree of that court made in the matter of the petition of the auditor general of the State of Michigan for the sale of certain lands for the taxes of 1894, and to permit the relators to come in and defend, for two reasons, viz.: (1) Because the treasurer failed to resort to personal property on the premises for the collection of the tax; and (2) because the warrant for the collection of taxes was returned to the county treasurer on February 26th, instead of March 1st. This petition was granted by the circuit court, but was dismissed by this court, thereby affirming the validity of the decree.' This petition was, in effect, an application for rehearing, and could only be based upon errors in the proceedings in the circuit court for the county of Macomb, in chancery, and nothing except such errors would be within the jurisdiction of the court in such a proceeding. The effect of the dismissal of the petition was simply to affirm the proceeding had in the circuit court for the county of Macomb, and could have no effect whatever upon the proceedings taken by the auditor general subsequent to the sale by the county treasurer, as the validity or invalidity of the decree of the circuit court for the county of Macomb would have no bearing whatever upon such sale. It would have been impossible for the relators to litigate the question of the validity of the sale by the auditor general to Alexander McMillan and Charles Cannell in the petition filed in the circuit court for the county of Macomb, in chancery, as that was a matter over which the circuit court would have no jurisdiction on the application for a rehearing. The only question before the circuit court on that application was as to the regularity of the proceedings in that court. While the dismissal of the' petition of relators by this court, in the case of Conley v. McMillan, might foreclose the relators as to any irregularity in the proceedings prior to the decree, it could have no effect whatever on their right to question the validity of the sale made by the auditor general subsequent to such decree.

A question entirely analogous was ruled in Bonker v. Charlesworth, 33 Mich. 81, which was an action of ejectment where the plaintiff attacked the validity of a mortgage foreclosure, and it was objected by the defendant that he was estopped from so doing by virtue of a decree rendered in the circuit court in chancery in a suit brought by the plaintiff to contest the validity of the mortgage on the ground of fraud. It was said:

“Looking into the record of the chancery suit, it is apparent that the regularity of the foreclosure was not put in issue or contested. * * * The question whether the plaintiff was legally bound to have brought the proceedings into the chancery suit is one of more difficulty, but, on reflection, we are not satisfied he has lost the right to dispute them by the failure to do so in that suit. The validity of the mortgage and the regularity of the foreclosure are not necessarily connected. They present different controversies altogether. They do not stand in relation to each other as two distinct grounds of invalidity in the mortgage would; for then the controversy would be one, however numerous might be the grounds of reliance. Suppose one were to file a bill to set aside a judgment as having been obtained by fraud; could he, if he failed in that suit, be debarred from contesting at law a void salé on execution, because he had failed to put it in issue in his chancery suit ? We thiflk not. And the reason would be the same there as here: The validity of the sale was neither attacked in the suit in equity, nor were the proceedings necessarily in any way involved in that controversy.”

The sale from the auditor general to Alexander McMillan and Charles Cannell is void, not because of any defect in the proceedings had in the circuit court for the comity of Macomb, in chancery, nor because the decree is invalid, but because no legal sale of the State’s title to this land has been made by him to Alexander McMillan and Charles Cannell. In other words, the title to this land is still in the State, and subject, under the decisions of tbis court, to purchase by the relators at the auditor general’s office, for the reason that Alexander McMillan and Charles Cannell did not pay to the auditor general the taxes of 1896, which, it is conceded, were a lien on the lands at the time they purchased.

The writ will issue as prayed.

The other Justices concurred.


text:
    SMITH, STURGEON & CO. v. GROSSLIGHT.

    1. Bond to Jail Limits — Escape—Voluntary Return — Pleadings — Amendment at Trial.
    The defendant sureties, in an action upon a bond to the jail limits, should be allowed to amend their plea at the trial to cover a point then brought for the first time to the attention of their counsel, that their principal had voluntarily returned within the jail limits before the commencement of suit; since that fact, if established, would, under 3 Comp. Laws 1897, § 10513, constitute a complete defense.
    3. Same — Liability of Sureties.
    A bond to the jail limits of a county merely substitutes for the custody of the sheriff the custody of sureties, whom only the act of God or the public enemy will excuse for failure to keep the principal within the county.
    3. Same — Absence to Answer Criminal Process.
    Where the principal in such a bond voluntarily left the county named therein, and went into an adjoining county, to answer to a criminal charge before a justice of the peace, he was guilty of an escape, though the examination occupied only a short time, and he immediately thereafter returned to the jail limits.

      Error to Wayne; Lillibridge, J.
    Submitted January 9, 1900.
    Decided February 20, 1900.
    Debt by Smith, Sturgeon & Company, a corporation, against Fred L. Grosslight, principal, and Louis R. Gross-light and James D. Burns, sureties, upon a bail bond. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      Bowen, Douglas & Whiting, for appellants.

      Warner, Codd & Warner, for appellee.

      Plaintiff filed an application for rehearing, asking that the reversal be without costs, which was denied April 3, 1900.

   Long, J.

In an action begun by capias, Smith, Sturgeon & Co. obtained a judgment in the Wayne circuit court against the defendant Fred L. Grosslight, who was subsequently arrested on a capias ad satisfaciendum. He, with the two other defendants, executed a bond to the jail limits to the sheriff of the county of Wayne, and was released. Afterwards, and on the 16th day of April, 1898, and while still under bail to the jail limits, on a criminal complaint made before a justice of the peace of the county of Macomb, Fred L. Grosslight was arrested in the city of Detroit by a' deputy sheriff of Macomb county, and taken before the justice who issued the warrant. The justice set his examination for the 27th day of April, 1898, and thereupon he and the defendant Louis R. Grosslight, on the 16th day of April, 1898, did enter into a recognizance in the sum of $500 for the appearance of said Fred L. Grosslight before said justice at 2 o’clock in the afternoon of April 27, 1898. Afterwards, and on the 27th day of April, 1898, and by and with the advice of counsel, who was conversant with all the facts, Fred L. Gross-light, in pursuance of the proceedings already had before said justice of the peace, appeared before the justice at the city of Mt. Clemens, in Macomb county, and submitted to an examination, and was then and there discharged by the justice of the peace, and did immediately return to the city of Detroit. Plaintiff’s counsel, having seen in the papers something about the arrest, employed a detective to ascertain for what date the examination had been set, and, learning that it would he had on the 27th day of April, did on that day telephone to Mt. Clemens, and, on being told that Fred L. Grosslight was in that city, obtained from the sheriff of the county of Wayne an assignment of the bond to the jail limits, and commenced an action on the bond against the appellants. There was some question as to what time this suit was begun; witness Codd testifying that, to the best of his recollection, it was begun somewhere between 2:30 and 2:45, and the indorsement placed upon the summons in the office of the sheriff showing that it was received by the sheriff at 3:05. Fred L. Grosslight testified that he and his counsel left Mt. Clemens to go to Detroit at half past 1 of the same day; that there was some delay at Leesville, and that the car stayed there 10 or 12 minutes; and that they reached the city hall in Detroit before 3 o’clock. His attorney, John Miner, testified that the proceedings at Mt. Clemens on April 27th. were ended in very short order, and that he and Grosslight hastened at once to catch the car that was on the point of leaving; that his recollection was not distinct as to the time they left, but he did recollect that the car was delayed some minutes at Leesville, in Wayne county. He also testified that he accompanied Grosslight and the officer when Grosslight was arrested, and that on the 27th day of April he again went to Mt. Clemens with Grosslight, and at that time told him he was answerable under his recognizance, or subject to rearrest. This dispute as to the time of leaving Mt. Clemens and the return of Grosslight to the limits of Wayne county on April 27th had not been brought to the attention of appellants’ counsel until the trial, and then counsel asked for leave to amend the plea so as to cover that point. Permission to do so was refused, and the court struck out, against appellants’ objection, all testimony relative to the time of the return, and directed a verdict for the appellee. Afterwards appellants made a motion for a new trial, based on the files and records and the affidavit of Frederick W. Whiting. This motion was denied. Defendants bring error.

But few errors are assigned. It is claimed by counsel for defendants that the court erred:

1. In refusing to direct the verdict for defendants.

2. In striking- out the testimony relative to the time of return of defendant to Wayne county on April 27, 1898.

3. In refusing to permit the defendants to amend the plea by giving notice of the return to Wayne county of defendant Fred L. Grosslight before the commencement of the action.

Section 10513, 3 Comp. Laws 1897, provides that: “In every suit brought by a sheriff on such bond [that is, a bond to the jail limits], the defendants may give notice of a voluntary return of the prisoner to the liberties of the jail from which he escaped, or a recaption of such prisoner by the sheriff from whose custody he escaped, before the commencement of such suit, and may give evidence thereof in bar of such action;” and section 10523 provides that, when the action is brought by the assignee of the bond, the defendants shall be entitled to give this notice. At the time of filing the plea in the case, counsel for defendants gave no notice that a defense would be made that Grosslight had. returned to the county before the suit was commenced on the bond. On the trial, however, defendant Fred L. Grosslight testified that he returned from Mt. Clemens, and arrived in the city of Detroit before 3 o’clock; that he looked at the city hall, and saw it was not yet 3 o’clock, when he reached there. So, if his testimony be true, he must have been within the jail limits before the writ was issued by which this suit was commenced. If this be the fact, it would be a bar to the action. After this testimony was introduced, counsel for defendants asked permission to amend the notice under the plea by setting up the fact that defendant was within the jail limits when the suit was commenced. We think the court should have allowed the amendment, and submitted that question for the determination of the jury. This statute of amendments should be liberally construed. It was said in Beecher v. Wayne Circuit Judges, 70 Mich. 367 (38 N. W. 324):

“This statute has always been very liberally construed, and this court has said in numerous cases that courts should be liberal in permitting notice of special matter of defense to be given or amended in furtherance of justice; ” citing Browne v. Moore, 32 Mich. 254; Johnson v. Kibbee, 36 Mich. 269; Hopkins v. Briggs, 41 Mich. 175 (2 N. W. 199).

See, also, Willet v. Railroad Co., 114 Mich. 411 (72 N. W. 260), and cases there cited.

The further claim of defendants’ counsel is that, under the facts here shown, the court should have directed the verdict in favor of defendants; in other w;ords, it is contended that there was no escape within the meaning of the bond. We think this contention cannot be sustained. Grosslight was upon the jail limits of the county under a bond which provided, in substance, that he should not at any time or in any manner escape or go without the jail limits of the county of Wayne until legally discharged. His sureties undertook, by executing the bond, to keep him within the jail limits. He was as much within the custody of the sureties on the bond as he would have been in the custody of the sheriff had he remained in jail. The jail-limits bond is, in effect, a substitute for the custody of the sheriff. Kruse v. Kingsbury, 102 Mich. 100 (60 N. W. 443). As was said in' Meredith’s Adm’x v. Duval, 1 Munf. 83: “ The bond taken by the sheriff for keeping the rules is as much a muniment of safety in behalf of the creditor as the keys of the jail are in relation to a prisoner in close custody.” The liability of the bondsmen on these bonds is strict and absolute; and “if the defendant, having once been taken in execution, be afterwards seen at large for any, the shortest time even, before the return of the writ, it is an escape, unless it be by consent of the plaintiff himself given previously to or at the time of the discharge.” 1 Burrill, Prac. 312. In Fairchild v. Case, 24 Wend. 381, the action was brought against the sheriff for an escape. A verdict was returned for plaintiff. Defendant’s counsel moved for a new trial, upon the ground, among others, that a question to a witness, “By what means and in what manner did the prisoner break jail?” was overruled. The court, by Cowen, J., said:

“The question put and overruled as to the means or manner of escape is not shown to have been relevant. It might have been answered by saying that the escape was effected by means and in a manner which took from the charge of negligence in the sheriff without showing any real excuse, as that it was by the act of God or the enemies of the country. The latter seem to be the only excuses as to manner and means which the sheriff can set up.”

The same rule is laid down in Brown v. Tracy, 9 How. Prac. 93; Wheeler v. Hambright, 9 Serg. & R. 390, 396; Browning v. Hanford, 5 Hill, 588 (40 Am. Dec. 369); Green v. Hern, 2 Pen. & W. 167; Bissell v. Kip, 5 Johns. 89; Rainey’s Fx’rs v. Dunning, 2 Murph. (N. C.) 386; State v. Halford, 6 Rich. Law, 58; Patten v. Halsted, 1 N. J. Law, 277.

The rule seems, therefore, well settled, that nothing but the act of God or the enemies of the country will excuse the sheriff for an escape; and the same rule is applicable as against the sureties on the bond to the jail limits. This is also the rule of the federal courts. In Servis v. Marsh, 38 Fed. 794, the court distinguished between the rule in case of an escape on final process and upon mesne process. It was said:

“But in arrest upon final process of execution, he must have the body ready at all times to be produced before the court, and, if he do not, but voluntarily suffer the prisoner to depart out of his control for never so brief a time, he cannot retake him, but makes himself personally liable to the plaintiff for his debt and costs.”

The rule is laid down in 1 Burrill, Prac. 99, that if the defendant, after he is arrested, and before he is committed to prison, be rescued from custody, such rescue will excuse the sheriff from having his body in court at the return of the writ; but, if rescued after committal, the sheriff is not excused, but will be answerable as for an escape. That same rule is laid down in Brown v. Tracy, 9 How. Prac. 93. Under the circumstances here shown, it does not appear but that the defendant went out of the county voluntarily on April 27, 1898. Under the rule of the common law, the bondsmen would be liable as for an escape; and the only question in the case is whether the suit was commenced during the time that the principal defendant was without the jail limits. This may be shown as a bar to the action, under section 10523, 3 Comp. Laws 1897; and, as we have said before, that question should have been submitted to the jury.

The judgment must be reversed, and a new trial awarded.

The other Justices concurred.


text:
    BENJAMIN v. EARLY.
    1. Estates of Decedents — Letters op Administration — Collateral Attack.
    Letters of administration cannot be collaterally attacked by showing that the evidence of death presented to the probate court from which the letters issued was not of a convincing nature.
    2. Same — Failore to Present Claim — Availability as Set-Off.
    One who fails to present to commissioners, for allowance, a claim against a decedent’s estate, will not be permitted' to introduce it in evidence, by way of set-off, in an action on a note given by him to the decedent, even though the probate judge advised him that it could be so used, and therefore need not be presented.

      3. Same — Note Due Decedent — Indorsement by Administrator —Agent for Collection. '
    One who loans money to an administratrix, receiving from her as security a note given to decedent and indorsed by the administratrix to his order, which he agrees to collect, and account for the proceeds over and above the amount of the loan, is, an agent for collection, authorized to bring suit on the note in his own name.
    Error to Mackinac; Adams, J.
    Submitted January 10, 1900.
    Decided February 20, 1900.

      Assumpsit by Robert H. Benjamin against Peter Early on a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James J. Brown, for appellant.

      James McNamara, for appellee.
   Long, J.

This action was brought upon a promissory note of which the following is a copy:

“$125.00 St. Ignace, April 1, 1897.
“April 1st, 1898, I promise to pay to the order of Matt Elliott one hundred and twenty-five dollars at the First National Bank, St. Ignace, Mich. Value received. With interest before and after due at 7 per cent, per annum.
“Peter Early.”

Indorsed on the back was the following:

“ Pay to the order of R. H. Benjamin.
“Mrs. M. Elliott, Administratrix.”

On the trial in the circuit court the plaintiff offered the note in evidence, and also the proceedings of the probate court of Mackinac county showing the appointment of Mrs. M. Elliott as special administratrix of the estate of Matt Elliott, deceased. Plaintiff also offered in evidence the indorsement on the back of the note signed by Mrs. Elliott as administratrix, and that the indorsement was made by her as administratrix. This evidence was given under objection of counsel for defendant. The plaintiff also testified that he did not own the note, but that he took it as security for $75 he loaned the administratrix to carry on the administration of the estate, and that he agreed to collect the note for her, and bring suit thereon, if necessary, and from the proceeds deduct the amount coming to him, giving her the balance.

On the part of the defendant it was claimed, and some proof offered to show, that the last seen of Matt Elliott, whose estate was being administered, was in April, 1897, when he was crossing the ice from Cheboygan to Mackinac Island. It was also shown by defendant that a note similar to the one in suit was given by defendant to Matt Elliott before his disappearance as aforesaid, and that the note in suit was made the same as the old note, which disappeared with Elliott; that this note was given in place of the old one, to Mrs. Elliott, in October, 1897; and that she was to hold this note as an acknowledgment of the lost note. Defendant then offered to show by the judge of probate that the only evidence of the death of Matt Elliott presented in the probate court, upon which the letters of administration given to Mrs. Elliott were issued, was that Mr. Elliott was seen on the ice, crossing from Cheboygan to Mackinac Island, in April, 1897. The court refused to receive this evidence, on the ground that the decree of the probate court could not be attacked collaterally. The defendant then offered in evidence, by way of set-off, a claim, in writing, of several items, amounting to $109.60, due from Matt Elliott to Doud Bros, for merchandise, and which claim had been duly assigned to defendant in writing, dated April 9, 1898. He showed that he had agreed to take the claim in March, 1897, though he had not paid for it until April, 1898. The court below refused to receive this evidence, on the ground that the claim should have been presented to the judge of probate, who was shown to have acted as commissioner on claims in the Matt Elliott estate, for allowance. The defendant also offered to show that, before the allowance of claims was closed, he had a conversation with the judge of probate in reference to this claim, and that the judge said it was not necessary to file the claim for allowance before him, as it could be used as a set-off against this note. The court refused to receive this evidence, and thereupon, directed the jury that if they found that the plaintiff held the note merely as security for the $75 loaned to the administratrix, and an agreement was made by which the plaintiff was to collect the note, and account to her for the proceeds of the collection, 'the verdict must be for plaintiff.

The assignments of error cover the whole case as presented, and as above set forth. We think the court was not in error in any of these rulings. The plaintiff was the agent of the administratrix, and could sue on the note in his own name. Moore v. Hall, 48 Mich. 143 (11 N. W. 844). The defendant could not set his claim off against the note. The judge of probate had acted as commissioner on claims, and the claim was not presented to him for allowance. Boltwood v. Miller, 112 Mich. 664 (71 N. W. 506), and 3 Comp. Laws 1897, § 9380,

The judgment must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    KESLER v. JOHNSON.
    Deeds — Quitclaim—Innocent Purchasers.
    Where one having an interest in lands conveys the same by quitclaim deed, under a parol agreement that the grantee shall institute proceedings to perfect the title for the grantor, the latter cannot, upon a breach of suoh agreement, recover the land, as against an innocent purchaser thereof for value.
    Appeal from Wayne; Waite, J.
    Submitted January 11, 1900.
    Decided February 20, 1900.

      Bill by Charles H. Kesler against Ransom C. Johnson, James D. Johnson, James B. Gardner, and Frank Updike to set aside certain conveyances of real estate. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    One John C. Casler died testate in 1867. Two clauses of his will read as follows:
    “I give and bequeath to Albert Austin Casler, Willie Casler, and Charles Henry Casler all the north half of the northwest quarter of the northwest quarter of section six (6), town six (6) north, of range eight (8) east; my beloved wife, Ellen C. Casler, to have the use and occupation of said described premises so long as she shall personally occupy the same.
    “ I give and bequeath to my beloved wife, the said Ellen C. Casler, the northeast quarter of the northwest quarter, and the northwest quarter of the northwest quarter, of section six (6), town six (6) north, of range eight (8) east, for her sole use and benefit during her natural life, and, at and after her decease, then to be equally divided between the heirs of my beloved daughter, Nancy, the possession and title to vest, in them severally when they become of full age, and after the death of my said wife, Ellen Casler.”
    In 1870 his widow remarried, rented the farm, and went to the city of Flint to reside, where she died in 1891. August 10, 1883, Albert and Willie Casler quitclaimed their interest in said land to complainant. On August 13th of the same year, complainant conveyed by quitclaim deed the undivided one-half interest in said land to defendant James D. Johnson. On June 6, 1891, Johnson, in consideration of $500, conveyed the same interest to defendant Gardner. Subsequently, but the precise date does not appear, Updike, who had lived upon the place six or seven years as the tenant of the widow, entered into a land contract for the purchase of the 40 acres including the land in dispute, for $1,600, upon which he had paid, at the time this suit was brought, $900. Complainant seeks to have all these conveyances set aside. The theory

      of the bill is that he agreed, in consideration of this deed, with Ransom C. Johnson, an attorney-at-law, that Johnson would bring suit and recover said land for complainant; that the deed was made to James, a brother of Ransom, at the suggestion of Ransom, because it would not look well to convey it directly to him; that Ransom did not take any steps or institute any proceedings to recover the land as he had promised and agreed to, and therefore he is entitled to recover it.
    The case was commenced in Genesee county, and was transferred to Wayne county for hearing. It was heard upon proofs taken in open court. When complainant rested, the court announced that the estate of Casler had not been settled, and that the case involved an interpretation of the will, which should have been had in the probate court. It was arranged to postpone the argument upon this point until the afternoon, and that meanwhile Mr., Gardner and Mr. Updike might be sworn upon the question of good faith. Both testified to paying a valuable consideration, and without any notice of any defect in the title. The testator’s daughter, Nancy, was the wife of Mr. Gardner. She had three children by Mr. Gardner, one of whom is still living. Upon the reconvening of the court in the afternoon, Mr. Gold, the solicitor for Mr. Johnson, announced that he had witnesses present to show that R. C. Johnson fully paid for and settled with the complainant for the land. The court, upon its own motion, dismissed the complainant’s bill upon three grounds:
    1. That the estate was not settled.
    2. That Gardner and Updike were bona fide purchasers, and had the right to rely upon the quitclaim deed of the complainant.
    3. That, since Updike and Gardner were good-faith purchasers, the deed to Johnson could not be set aside, and that complainant’s remedy against Ransom C. Johnson was at law.

      James M. Goodell, for complainant.

      George B. Gold (Mark W. Stevens, of counsel), for defendants.
   Grant, J.

(after stating the facts). It is urged on behalf of defendants that complainant obtained only a life estate in the land, contingent upon the death of the widow before the children of Nancy became of full age. In our view of the case, it is unnecessary to'determine this question. It being determined that Gardner and Updike purchased without notice of the parol agreement between the complainant and Ransom G. Johnson, the question is, Are they bona fide purchasers, and as such to be protected, or did they take their title by quitclaim subject to this parol agreement ? The learned counsel relies upon the doctrine enunciated in the following cases: Peters v. Cartier, 80 Mich. 129 (45 N. W. 73, 20 Am. St. Rep. 508); Cartier v. Douville, 98 Mich. 24 (56 N. W. 1045); Thorkildsen v. Carpenter, 120 Mich. 420 (79 N. W. 636). Those cases do not apply. This is not a case where the grantQr had no title to convey by his quitclaim deed, or where any other parties had outstanding equities. It was held in Johnson v. Williams, 37 Kan. 179 (14 Pac. 537, 1 Am. St. Rep. 243), that a quitclaim deed conveyed to the grantee all the rights, interests, title, and estate of the grantor in and to the land, unless otherwise specified by the deed itself. Complainant claims to own the title which he conveyed. He might have inserted in his deed a defeasance clause, which would have been notice to the world. Instead, he chose to convey whatever title he-had to Mr. Johnson, under a parol agreement that Johnson would do certain things for him. After 12 years, during which the title has passed into the hands of others, who purchased without any notice, and who have paid full consideration therefor, he seeks to recover the land, because the very title which he conveyed was burdened by a parol agreement. There is no justice or equity in the claim. If some third party at the time of the conveyance to Johnson had had a prior outstanding interest in the land, then the rule of the above cases might apply. Equity does not permit a party to convey his title, even by quitclaim, and make a contemporaneous parol agreement by which the title may be- defeated in the hands of a subsequent grantee without notice. We are cited to no authority holding the doctrine contended for. Under complainant’s own statement, Ransom C. Johnson, the attorney, failed to carry out his agreement. If he failed to perform it, he has ample remedy at law against Johnson, but equity will not permit him to recover the land from bona fide purchasers. It is due to Ransom C. Johnson to say that no opportunity was given him by the court to make a. defense.

We think the defendants were entitled to the costs as taxed.

Decree affirmed.

The other Justices concurred.


text:
    BROWN v. O’DONNELL.

    1. Execution — Irregular Sale — Collateral Attack.
    An execution sale of land in one parcel, which should have been sold in separate parcels, is voidable only, and not void, . and cannot be attacked in a collateral proceeding.
    2. Same — Homestead—Appeal—Question Not Raised Below.
    The question whether a sale under execution of two tracts as one parcel was void because one of the tracts was a homestead, not having been raised below, could not be considered on appeal.
    Error to Marquette; Stone, J.
    Submitted January 12, 1900.
    Decided February 20, 1900.
    Ejectment by Jennie E. Brown against Ellen O’Donnell. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Plaintiff obtained a judgment against the defendant. The sheriff, under the execution, levied upon the N. £ of the S. E. £ of section 32, township 47 N., of range 24 W., Marquette county, and sold the land under the execution to the plaintiff as one parcel. The time of redemption expired, after which she instituted this action in ejectment. With her plea of the general issue, defendant gave notice that the N. E. £ of the S. E. £ of said section was and is a homestead, and owned and occupied by her as such, and was of the value of less than $1,500, and was, therefore, exempt from levy and sale upon execution. Defendant did not know of the sale until after the time of redemption expired. Upon the trial it was stipulated between counsel that as defendant was uncertain whether the improvements and the house were on the east or west 40 acres, and the evidence was conflicting, such house and improvements should be considered as being on the west 40 acres; and that, if the jury should find her entitled to a homestead exemption out of said premises, verdict and judgment should 'be in defendant’s favor for the said west 40 acres, subject to the right of either party to move the court to amend the record to correspond with the fact, if it should be subsequently ascertained that such house and improvements were on the east 40. Plaintiff introduced evidence tending to show that no part of the premises was occupied as a homestead. That question was submitted to the jury, and the jury found that defendant was entitled to the homestead, and judgment was rendered for her as to the N. W. £, and for the plaintiff as to the N. E. £.

      J. L. Heffernan (H. J. Mapes, of counsel), for appellant.

      Charles JR. Brown & Son, for appellee.

       Rehearing denied May 18, 1900.

   Grant, J.

(after stating the facts). The court instructed the jury, in accordance with the stipulation, that, if there was no homestead, plaintiff was entitled to a verdict for the whole amount; if there was a homestead, plaintiff was entitled to a verdict for tbe 40 not claimed as a homestead.

While various statutes require separate tracts or parcels of land to be sold separately on judicial sales, we have uniformly held that such sales are voidable only, and not void, and cannot be attacked in collateral proceedings. Rhode v. Hassler, 113 Mich. 56 (71 N. W. 461), and authorities cited.

But the main contention now is that the sale is absolutely void, because one parcel was a homestead. Counsel for plaintiff assert that this question was not raised in the court below, and therefore cannot be urged here. The case was submitted to the jury upon the stipulation made at the close of the proofs. Defendant’s counsel preferred no request. If counsel desired to present the question in this court, he should have raised it in the court below for adjudication. It cannot be raised here for tbe first time. It is a fair inference from the record that no such issue was there made. The question is an interesting one, and has never before been presented to this court. We do not, however, feel called upon to determine it upon this record. Under the issue presented to the court below, defendant obtained judgment for all the land to which she was entitled.

Other questions are raised, but we do not consider them of sufficient importance to discuss. We find no error in them.

Judgment affirmed.

The other Justices concurred.