text:
    SMITH v. SMITH.
    Divorce — Drunkenness—Extreme Cruelty.
    Evidence having a tendency to show that defendant during one summer drank intoxioating liquors more freely than he ought, resulting in his becoming quarrelsome and offensive on two or three occasions, that he took hold of complainant and shoved her on one such occasion and threatened to shoot her, but not within her hearing, did not warrant a decree for divorce.

    Appeal from Huron; Beach, J.
    Submitted June 4, 1912.
    (Docket No. 8.)
    Decided October 1, 1912.
    Bill by Addie Smith against Robert Smith for divorce. From a decree for defendant, complainant appeals.
    Affirmed.

      Gteorge M. Clark and Robert E. McKisson, for complainant.

      Paul Woodworth {Wilbur J. Beach, of counsel), for defendant.

       As to who is an habitual drunkard within the meaning of divorce laws, see note in 6 L. R. A. (N. S.) 914.

   Bird, J.

The complainant filed her bill of complaint praying for a decree of divorce from the defendant on the grounds of extreme cruelty and habitual drunkenness. After a hearing in which both sides were heard, the trial court denied the relief sought and dismissed the bill.

The parties were married in March, 1890, and went to live on defendant’s farm four miles from Caseville, in Huron county, where they resided for nearly 20 years. Complainant is now 55 years of age, and defendant is nearly 60. Both parties had been previously married, and at the time of their marriage complainant had one child and defendant had seven, whose ages ranged from 4 to 16 years. By the marriage two more children were born to them. They have lived on this farm and raised all the children and accumulated property worth between twelve and fifteen thousand dollars.

Not much complaint is made about defendant’s conduct prior to the winter of 1908 and 1909. The principal charges of cruelty and drunkenness are laid after that date. The only act of personal violence complained of was in the summer of 1909. Defendant had been drinking, and during a quarrel with complainant he took hold of her and shoved her away from him. The hired man was present, and he persuaded defendant to leave her and go to the barn with him. Later in the day, while annoyed about some rumors going about the neighborhood concerning him, he inquired of the hired man where the rifle was, and remarked that if he could find it a funeral procession would leave the yard before morning. This threat, however, was not made to complainant, nor in her hearing. The complainant and her daughter gave testimony tending to show that during the summer of 1909 defendant indulged to excess in intoxicating liquors; that on Saturday night he would go to Caseville, and nearly always returned to his home at a late hour in a state of intoxication. Other witnesses outside of the family gave testimony that they had seen him under the influence of liquor, but not frequently. The charges of drunkenness were denied by defendant and by other members of his family; and several business people in Caseville, who saw him frequently and did business with him, testified that they had never seen him drunk. Defendant admitted that he had indulged in malt liquors ever since and before his. marriage to complainant, but denied the acts of drunkenness with which he was charged.

We think it appears from the record that defendant drank more freely than he ought during the summer of 1909, and that at some of these times he was disagreeable and quarrelsome, and on two or three occasions he was very offensive to complainant; but we do not think that the,proofs make out a case of habitual drunkenness, nor of extreme cruelty, under the statute. Meathe v. Meathe, 83 Mich. 150 (47 N. W. 109); Tierney v. Tierney, 169 Mich. 600 (135 N. W. 654); Lentz v. Lentz, 171 Mich. 509 (137 N. W. 229).

We are also impressed that when complainant went away to Cleveland in the fall of 1909 she did not regard defendant’s conduct as seriously as she does now. Complainant’s life had been a hard and busy one, looking after her work and caring for her large family, and in the early summer of 1909 she showed signs of failing health; and in the fall of that year she went to Cleveland to remain with a daughter for a time to secure rest and Christian Science treatment. When she went away, she was on good terms with defendant. She remained in Cleyeland until July, 1910, and during her stay she wrote several letters to defendant, in which she spoke of and discussed subjects in which they were mutually interested, such as her health, the children, the improvements that were being made in the house at Caseville, and on several occasions urged defendant to come down to Cleveland for a visit. In these letters she addressed him affectionately and closed them by sending her love to him and the children. It is more than probable that when complainant returned to Caseville in July, 1910, she would have gone to her home and resumed her marital relations, had not certain rumors reached her as soon as she arrived that defendant had been paying undue attention to his housekeeper. These rumors were very disquieting to complainant and gave rise to many suspicions in her mind of improper conduct, and she refused to go to her home and later commenced this suit. We have read with care these reports and what gave rise to them, together with the explanation of the parties; but, without going over them in detail, it is sufficient to say that the testimony does not furnish a reasonable basis from which inferences of improper conduct ought to be drawn. The housekeeper was the wife of defendant’s cousin. The husband lived at defendant’s home, with his wife and children, most of the time complainant was away. They came before complainant went away, and their coming had her consent.

The trial court evidently thought that these people, after living together for nearly 20 years and accumulating a nice property and raising a large family, should not be legally separated at a time in complainant’s life when her ill health would not permit her to see and judge of things clearly and as they were. We agree with him, and his decree will be affirmed. No costs will be allowed to defendant.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    WEST MICHIGAN PARK ASSOCIATION v. PERE MARQUETTE RAILROAD CO.
    1. Dedication — Ejectment—Streets, Pares, and Public Places —Summer Resort Associations.
    As the basis of an action of ejectment, plaintiff could not assert title to streets and parks of a summer resort that it had previously dedicated to the public by executing and filing a plat.
    3. Same — Public Rights — Foreclosure op Mortgages.
    The stockholders of a resort association, the public, and owners of lots not made a party to a suit for the foreclosure of a mortgage covering the resort property, were not bound by the decree therein, never having had their day in court.
    8. Mortgages — Covenants—Deeds—Warranty op Title — Estoppel in Pais.
    The mortgagor of land who warrants his title and makes the usual covenants is estopped from asserting against the mortgagee an after-acquired title.
    4. Res Judicata — Mortgages—Judgment—Foreclosure.
    After a delay of over twelve years from the date of a foreclosure suit which progressed to a decree and sale, a corporation that executed the instrument may not attack the validity of the mortgagee’s title acquired upon the sale of the mortgaged premises, on the alleged ground or claim that a majority of the stockholders never consented to or authorized the mortgage of which they were shown to have had notice in a meeting subsequent to the execution thereof, and by a printed report of the president, also receiving the benefit of the borrowed money in improvements on the property.
    5. Mortgages — Limitation op Actions — Sheripp’s Deed.
    The action was also barred by 8 Comp. Laws, § 9714, limiting the time for commencing an action to five years, where the person in possession claims through a sheriff’s or executor’s deed.
    6. Same — Statute op Limitations — Equity.
    Nor was the defense of the statute of limitations affected by the fact that certain stockholders of plaintiff had secured an injunction against a third person who claimed rights under the decree of foreclosure, neither plaintiff nor defendant having been a party to the injunction bill.

      7. Same — Ejectment.
    Plaintiff in ejectment may prevail only by the strength of his own title.
    Error to Ottawa; Padgham, J.
    Submitted April 15, 1912.
    (Docket No. 143.)
    Decided October 2, 1912.
    Ejectment by the West Michigan Park Association against the Pere Marquette Railroad Company and another. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Swarthout & Master {Bundy, Travis & Merrick, of counsel), for appellant.

      Bills, Streeter, Parker & Shields {George A. Farr, of counsel), for appellees.
   Steere, J.

This is a suit in ejectment brought to recover title to, and obtain possession of, a platted tract of land located in the township of Holland, Ottawa county, Mich., and known asOttawa Beach,”on Macatawa’ Bay, Lake Michigan. The declaration is in the usual form, describing the premises sought to be recovered as—

“All of fractional lot 8 and all of fractional lot 4, being part of section 33, town 5 north, range 16 west, except a strip 1,025 feet wide off the north end of said fractional lot 4, and also the fraction beginning at the center of section 33, thence east along the quarter line of said section 33, 1,500 feet, thence north 17£ degrees east, 111 feet, thence north 72 degrees west, 593 feet, thence north 23 degrees west, 740 feet, thence north 83 degrees west, 691 feet, to the north and south quarter line of said section 33, thence south, along the east line, 1,075 feet, to the place of beginning, excepting the platted lots numbered 1 to 150, and excepting the right of way of said Pere Marquette Railroad Company, where actually occupied by the tracks of said Pere Marquette Railroad.”

Defendants pleaded the general issue, with special notice that the suit had not been commenced within five years next after the cause of action set out in plaintiff’s declaration accrued. Claim was also filed, under the statute, by defendants for the value of improvements made on the premises, in case plaintiff should recover.

Plaintiff was originally organized as a summer resort association under Act No. 151, Laws of 1869, and now claims its legal existence under Act No. 280, Pub. Acts 1897. The purpose of its incorporation, as expressed in its articles of association, was “the building, keeping and maintaining on the property of this association suitable houses and grounds for park and recreation purposes on Macatawa Bay.” The property involved in this controversy is embraced within a tract of substantially 50 acres, to which plaintiff acquired title by warranty deed dated May 21, 1886. The tract lies between Lake Michigan and the outlet, of Black Lake, a navigable body of water extending several miles in length inland from Lake Michigan. These grounds, being attractively located, have developed into a popular summer resort, in the neighborhood of 100 cottages being located thereon, with a hotel, railroad connections, and other improvements.

During the same year it acquired title, plaintiff platted said property under the name “West Michigan Park,” putting the plat of record in the office of the register of deeds of Ottawa county, Mich. It adopted a plan of procedure, fixing its capitalization at $10,000, divided into 400 shares of $25 each, which was to be distributed among 100 members, each to have 4 shares of stock, and, in that connection, be entitled to select one lot, according to the recorded plat. One hundred members were procured, each paying the $100, receiving his stock and selecting his lot accordingly. These members and their assigns are claimed to constitute the stockholders and membership of the corporate body. A liberal portion of this plat was devoted to streets, parks, and other public places, and so delineated on the plat. The lots deeded by the association were described as part of the platted land according to the numbers they bore on said plat, and the portions devoted to the public use were so recognized and used by the lot owners and public generally as occasion required, except that from time to time the association put certain buildings and improvements thereon, in furtherance of the general scheme of development for a summer resort, as it is claimed. Matters progressed without incident of importance here until 1889, when the plaintiff, needing funds, through its officers mortgaged this property to secure a loan of $20,000. The mortgagee named in the instrument was Henry Springer, trustee, who at that time was also president of the association, in the interest of the bondholders, as it is claimed. The instrument has the peculiarity that said Springer mortgaged the property to himself, acting officially in one capacity as mortgagor and in another capacity as mortgagee. This mortgage contained the following warranty of title:

“And the party of the first part, for its successors and assigns, do covenant, grant, bargain and agree to and with the said party of the second part, as trustee, as aforesaid, and his legal successors, that at the time of the en-sealing and delivering of these presents, they are well seized of said premises in fee simple; that they are free from all incumbrances and charges whatever, and they will, and their successors and assigns shall forever warrant and defend same against all lawful claims whatsoever.”

Default having been made in the payment of interest on this mortgage, it was foreclosed in chancery. There was no appearance, and decree was rendered on an order pro confesso. The circuit court commissioner of Ottawa county deeded the property on foreclosure sale to Charles M. Heald for a consideration of $5,100.

In the foreclosure proceedings a decree was also taken for deficiency which amounted to some $15,600. Execution therefor was issued and levy was made upon the same property, which was again Sold thereunder to the said Charles M. Heald, who received a sheriff’s deed thereto; thus holding the property under a commissioner’s deed pursuant to foreclosure in chancery and the sheriff’s deed pursuant to levy and sale under execution for deficiency. The sheriff’s deed is dated February 1, 1897; the commissioner’s deed May 1, 1895. Under these proceedings, said Heald and his successors in interest, the defendants in this case, beginning in the winter of 1895-96, assumed control of said property, taking possession and making changes and improvements for its further development as a summer resort, working along lines similar to those followed by plaintiff, but in various ways more aggressively and extensively occupying the public places and thereby restricting the privileges and rights of lot owners, as plaintiff contends. The defendant Central Land Company is the successor in title of said Heald. The railroad was originally extended into this tract by the Chicago & West Michigan Railway Company, of which said Heald was general manager. The defendant the Pere Marquette Railroad Company is successor of the Chicago & West Michigan Railway Company, and the defendant Central Land Company is a subsidiary corporation of said Pere Marquette Railroad Company.

Neither plaintiffs nor defendants appear to have fully and consistently treated the portion devoted to parks, streets, and public places as public property at all times. Early in the history of the association, plaintiff granted a railroad right of way across it, erected on it a hotel, store, pavilion, boathouse, ice house, pumping plant, etc., and mortgaged the tract for $8,000, which, it is testified, was used in furnishing the hotel. Defendants have since made similar but more extensive use of the parks and streets for various buildings and other improvements. They have erected a larger hotel in another location, built a store, power house, docks, and other structures, and run a line of electric light poles and wires along the streets and across the parks as found most convenient.

It is charged as an act of usurpation that, in exercising control over the property, they prevent any one but their licenses from delivering goods .upon public streets of the resort and from landing boats at the docks along Black Lake. Most of the improvements mentioned as located on the parks and streets were semi-public in character, for the furtherance of public utilities and amusements. In 1897 a man named Comstock, with permission from Heald, in whose name the property then stood, began the erection of some cottages on one of the parks, and a preliminary injunction was granted at the instance of certain lot owners by the circuit court of Ottawa county in chancery restraining such action and the sale or any other disposition of any portion of such parks. Before final hearing of the suit, a partial adjustment was reached, and a stipulation entered into withdrawing objection to the erection of cottages Comstock was then building, but leaving the temporary injunction to stand as to other buildings and other matters. Said suit is-still pending and undetermined beyond the provisions of such stipulation.

The mortgage, under foreclosure of which defendant claims title, and which plaintiff now attacks as void, describes the property, title to which it warrants, as follows:

“All of fractional lot number three, and all of fractional lot number four, being part of section 33, township number 5 north, of range 16 west, county of Ottawa and State of Michigan, containing 50-^V acres more or less according to the government survey, excepting a strip 1,025 feet wide off the north end of said fractional lot four; and also the following described land: Beginning at the center of said section 33, in said township, and running thence along the quarter line of said section 33 1500 feet, thence north 17i degrees east, 111 feet, thence north 72 degrees west, 643 feet, thence north 23 degrees west 708 feet, thence north 83 degrees west 691 feet, to the north and south quarter lines of said section 33, thence south along said line 1,075 feet to place of beginning, including all buildings at present erected, or hereafter to be erected, belonging to the West Michigan Park Association, together with all water works, steam pumps, machinery, pipes and connections, wind mill and water tanks, ice and cold storage houses, owned by the West Michigan Park Association located on the above described land, except the streets dedicated and 150 lots platted as appears on the records and books of the corporation at the date hereof, and further excepting a right of way 66 feet in width along the margin of Black Lake to front of Hotel Ottawa for railway purposes.”

The value of the property is not clearly shown. Plaintiff’s witness Davis gives testimony from which an approximate value of $100,000 might be inferred, consisting chiefly of the buildings and improvements; the value of the land exclusive of improvements being less than $20,000.

The case was tried before the cpurt without a jury. A brief finding of facts was made, plaintiff’s objection to which is that they “ are not sufficient and do npt support the judgment,” together with the following conclusions of law:

“ (1) That the mortgage and the title thereunder have no validity in law.
“ (2) That since 1895 the plaintiff has acquired an independent title to these premises.
“ 1st. The first reason advanced for the invalidity of this mortgage is that at the time of its execution the West Michigan Park Association did not own the legal title to these premises, for the reason that they had previously been dedicated to the public.
“In my view, it is unnecessary to determine whether the plaintiff did own the premises at that time or not. A mortgagor will not be permitted to deny that he held title to mortgaged premises at the time he executed the mortgage.” 11 Am. & Eng. Enc. Law, p. 395; Jones on Mortgages (4th Ed.), art. 682, 1483.
“The second contention is that, even if the plaintiff owned the property at the time of the giving of the mortgage, it was not authorized under the law to alienate by mortgage the title to this property.
“At the time of the execution of this mortgage, the statute under which plaintiff existed cpntained the provision that the corporation should be * capable in law of owning, holding or purchasing and disposing of, in such manner as the stockholders may direct, any real or personal property or estate whatsoever, not exceeding in value $30,000.’
“It is further alleged that the mortgage in question was never authorized by the stockholders of the plaintiff, as the law of plaintiff’s incorporation requires. In my judgment, this position is not sustained by the proofs. The corporation record book of the plaintiff was last known to be in the hands of a former officer of the plaintiff, and is now said to be lost. In the absence of proof, the presumption is that a mortgage, which is regular upon its face, which has stood unchallenged for many years, and under which title has been purchased at a foreclosure sale, was properly authorized, and that is the situation in the case at bar. .
“ I do not think that the proofs show the acquisition of an independent title by the plaintiff since the foreclosure of the mortgage. If the alleged dedication of this property in 1886 passed the title to the public, I am satisfied that there has been no subsequent act of the legislature, whose effect would be to take the title from the public and revest it in the plaintiff. If, on the other hand, there was no dedication of this property to the public, then whatever legal title remained in the plaintiff at the date of the mortgage passed to the defendant under the mortgage and is a bar to this action.
“For the reasons above stated, I am constrained to hold that plaintiff has not sustained the burden of proof cast upon it in this action, and judgment must be for the defendants.”

It is the contention of the plaintiff, as stated in the foregoing conclusions of the trial judge, that it had dedicated the property in controversy to the public for public uses by the plat which it executed, filed, and recorded in 1886, and therefore had no power to convey or incumber the same. Resting on this proposition, it would follow that plaintiff cannot now assert a title with which it had previously parted, as a ground of recovery in this ejectment suit. Plaintiff seeks to avoid this by the provisions of Act No. 230, Pub. Acts 1897, relative to summer resort associations, under which it is claimed the legislature has re-vested plaintiff with the title of all streets, parks, and public places in said plat for the use and benefit of stockholders of the company; it being said in that connection:

“ No one was made a defendant in the foreclosure proceeding as representing the rights of the public and cottagers in the parks and streets. Neither the county, the township nor the cottagers were made parties. These interests have never had their day in court.”

This is manifestly true. A judgment or decree binds those only who are parties to it, and those parties who have never had their day in court are free to have it when contingencies arise on which they desire to act. It is to be observed that the statute referred to makes provision for the protection of lot owners and maintenance of parks, roads, or walks appearing on the plat of a summer resort association in case such corporation shall for any reason be wound up or dissolved by the termination of its charter or otherwise.

The plaintiff in this case, whether owning the legal title or not, at the time of giving this mortgage or subsequently, executed the same, therein representing that it owned the property mortgaged, embodying in the instrument a warranty of title. If plaintiff did not have the title at the time of giving the mortgage, and subsequently acquired it, under such warranty, the subsequently acquired title would redound to the benefit of the mortgagee :

“ Where one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance. ” Smith v. Williams, 44 Mich. 240 (6 N. W. 662).

The conveyance under consideration as above quoted contains full covenants of title and warrant to defend the same.

Furthermore, the law is settled by abundance of authority that a mortgagor cannot deny he held the title to mortgaged premises at the time the same was executed.

“If the parties did intend to cover this property, then it is clear that the defendant Snyder, the mortgagor, is estopped from saying that he was not the owner of it at the time he made the mortgage. Having represented it to be his by the making of the mortgage,' he cannot now be heard to say that it belonged to some other person. This proposition is so elementary as to scarcely need the citation of authorities.” Myers, Tice & Co. v. Snyder, 96 Iowa, 107 (64 N. W. 771).

See, also, Stewart v. Anderson, 10 Ala. 504; Barber v. Harris, 15 Wend. (N. Y.) 615; Stockton v. Gardner, 1 Doug. (Mich.) 546; Concord, etc., Ins. Co. v. Woodbury, 45 Me. 447; Boisclair v. Jones, 36 Ga. 499; Woods v. Soucy, 184 Ill. 568 (56 N. E. 1015); Roderick v. McMeekin, 204 Ill. 625 (68 N. E. 473); Dobbins v. Cruger, 108 Ill. 188; 11 Am. &Eng. Enc. Law (2d Ed.), p. 395; Jones on Mortgages (4th Ed.) §§ 682, 1483; Wiltsie on Mortgage Foreclosures, § 388, p. 463.

Since the trial of said action, the record book of plaintiff’s meetings, which the trial judge states “was last known to be in the hands of a former officer of the plaintiff and is now said to be lost,” is claimed to have been found, and profert was made of it to this court, with the request that it be received in evidence under section 211, 1 Comp. Laws, it being said that it absolutely substantiates plaintiff’s claim that the mortgage was not authorized by a majority of the stockholders, and that in all fairness plaintiff should be allowed to establish the same. An examination of said record discloses that at a meeting of the stockholders held in June, 1886, they authorized the board of directors to mortgage the property for $8,000, which was done; that subsequently the mortgage under consideration was given and included the refunding of said $8,000 mortgage and other indebtedness, the surplus to be used to the extent it might go in building an annex, and for other improvements. The report of the association for 1892, compiled by the president, was printed. It contained a full, detailed financial statement of the affairs of the association. Under the heading, in capital letters “ Outstanding indebtedness, Mortgage Account,” appeared “ To secure bonds — $20,000.00.” At the annual meeting of the stockholders, held in 1893, each member having previously received a printed copy of such annual report, the same was submitted to the meeting, and, on motion duly made and supported, it was accepted. This record shows no meetings of the stockholders or directors after 1893.

Without passing upon its admissibility at this time, and conceding that the giving of the mortgage was not authorized by vote of the stockholders, as provided for by statute, but was, as stated in the mortgage, “ in pursuance of a resolution duly adopted by the board of directors,” is plaintiff in a position to raise that question in this collateral proceeding in ejectment after a decree of foreclosure against it has long since been rendered and the mortgage passed into a final judgment F This mortgage was given in 1889, 19 years before this action was begun, and a commissioner’s deed following chancery foreclosure was given in 1895, followed by a sheriff’s deed on execution under deficiency decree dated February 1, 1897, since which time defendants have taken plaintiff’s place in the control and development of said property, openly and notoriously under a claim of ownership.

This mortgage cannot be said to be void and ultra vires as an excess of corporate powers; at most, it is only ultra vires and voidable at the instance of stockholders. The statute under which plaintiff was organized and existing at the time of giving the mortgage made plaintiff capable in law of “owning, holding or purchasing and disposing of, in such manner as the stockholders may direct, any real or personal property or estate whatsoever, not exceeding in value $30,000.” The corporation had inherent power to own, hold, purchase, and dispose of real estate. Its board of directors having mortgaged its real estate without a vote of the stockholders, the instrument might be repudiated by the stockholders taking prompt and proper proceedings for that purpose. The provisipn requiring conveyance of property to be authorized by vote of the stockholders is manifestly for their protection. Beecher v. Rolling Mill Co., 45 Mich. 103 (7 N. W. 695); Texas, etc., R. Co. v. Gentry, 69 Tex. 625 (8 S. W. 98); Boyce v. Coal Co., 37 W. Va. 73 (16 S. E. 501); In re New York Economical Printing Co., 110 Fed. 514, 49 C. C. A. 133.

Section 9714, 3 Comp. Laws, provides that—

“ No person shall bring or maintain any action for the recovery of any lands, or the possession thereof, * * * unless such action is commenced * * * within five years, where the defendant claims title to the land in question, by or through some deed made upon a sale thereof .by an executor * * * or by a sheriff, or other proper ministerial officer, under the order, judgment, decree or process of a court, or legal tribunal of competent jurisdiction within this State.”

This suit was not brought until 15 years after a commissioner’s deed on decree of foreclosure, made by a court of competent jurisdiction, was given.

Counsel for plaintiff say in their brief:

“We submit that even if we were bound by the five-year statute, under the peculiar circumstances of this case the defendants — being bound by the injunction issued in Long v. Heald (the injunction suit by certain lot owners heretofore mentioned) — could not set up this statute as a shield against their own acts. No statute of limitations could avail against this injunction.”

We see no force in such contention. Plaintiff was not a party to that suit. It bears no relation to this. In 1889 plaintiff mortgaged the premises, and warranted its title to them, obtaining $20,000 on the strength of such mortgage and warranty. It defaulted, permitted the mortgage to be foreclosed, and made no defense. Under deeds based on such foreclosure, defendants have had possession of this property, and management of the resort connected with it, since 1897, expending large sums in its development. Plaintiff lay idly by, apparently dormant and disorganized. Its present president testified that it was reorganized in 1910, shortly before this suit was begun, which it is now claimed is in a representative and fiduciary capacity in the interest of the cottagers. It had the same rights and duties in 1897, after passage of the summer resort act, that it has now, and could have asserted them at any time. If equities are in issue, they do not prevail in favor of the plaintiff, apparently endeavoring at this late date to take advantage of its own wrong.

This case is an action at law, a suit in ejectment to try right of possession to the property involved, as between plaintiff and defendant. Plaintiff can only win by the strength of its own title. Estoppel by deed, estoppel by judgment, and the statute of limitations combine to defeat recovery.

The judgment is affirmed.

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    NELSON v. WIGGINS.
    1. Deeds — Confidential Relations — Undue Influence — Evidence.
    That decedent, an illiterate lumberman, had long been associated with defendant in business matters, deferring to defendant’s business judgment and being guided by his advice, was not evidence of undue influence, and would not invalidate the voluntary deed of decedent to defendant’s wife and daughter.
    3. Same.
    Undue influence must be established by evidence of threats, misrepresentations or undue flattery, fraud, or coercion sufficient to overpower the volition and freedom of action of the grantor.

      Appeal from Shiawassee; Miner, J.
    Submitted April 5, 1912.
    (Docket No. 42.)
    Decided October 2, 1912.
    Bill by Sylvester Nelson against Stephen Wiggins and others for the cancellation of certain deeds. From a decree for defendants, complainant appeals.
    Affirmed.

      Snow & Snow, for complainant.

      George B. Brooks and Kilpatrick & Pierpont, for defendants.
   Steere, J.

In this case complainant has appealed from a decree of the Shiawassee county circuit court, in chancery, dismissing his bill of complaint, which was filed for the purpose of having set aside four certain warranty deeds, previously given by his father, John Nelson, since deceased, conveying to defendants Frances R. Wiggins and Marion F. Richards 200 acres of farm land, in Rush township, in said county. It is claimed by complainant that said conveyances were procured without consideration, by fraud and undue influence, imputable chiefly to the control defendant Stephen L. Wiggins exercised over John Nelson, with whom he had been closely related as a patron, counselor, and partner in stock raising for many years. Defendant Stephen L. Wiggins has filed a disclaimer, asserting that he has no personal interest in the controversy beyond the fact that defendant Frances Wiggins is his wife and defendant Marion F. Richards a foster child, and he makes no claim of legal interest in, or right to, the property involved. Said John Nelson was a farmer and lived upon the land in controversy for over 30 years preceding his death, most of the time alone. He died in the house on the farm November 19, 1909. At the time of his death he was about 60 years of age, and on the hearing of this suit in the circuit court about a year later Mr. Wiggins, who is charged with exerting an undue influence over Nelson which deprived complainant of his rightful inheritance, was 82 years old. Complainant’s position in this controversy is outlined in the following statement in his solicitor’s brief:

“Mr. Wiggins’ complete control and influence over Nelson is demonstrated by the fact that they were partners in stock raising, that they kept a bank account, and that Wiggins exercised exclusive control over the same. He used the money as he saw fit, always deposited it and always drew it out. Nelson was never permitted to do anything of this kind, and appears to have been a mere tool in the hands of Wiggins, who for years had exercised and used absolute and complete control over all matters pertaining to Nelson’s business and the disposition of his property.”

At the time these two men became acquainted, some 32 years prior to Nelson’s death, Wiggins owned, and resided with his family upon a farm in Buena Vista township, near the city of Saginaw. He was running his farm and also engaged in lumbering in partnership with his brother. Nelson came to him seeking employment, and was given work upon the farm. He was at that time a young unmarried man, a common laborer, ignorant and illiterate, with no home or fixed place of abode, working in mills, lumber camps, and wherever else he found employment, of good disposition and a hard worker when employed, but without resources and improvident, given at times to excesses in the use of intoxicating liquors and other dissipations, characteristic of many of the men who followed the woods and mills in those days. He occasionally indulged in these relaxations from a temperate and steady life up to the time of his death, which was reported to have been the culmination of one of them, though, after he settled upon his farm, they were not so frequent or of such long duration as to seriously interfere with his efficiency. Wiggins found him honest, a hard worker, and of agreeable disposition, and took an interest in him, giving him a home and employment on the farm when not at work in the Wiggins Bros, camps in the woods. In October, 1877, Wiggins bought of his brother the E. ½ of the S. E. ½, section 28, town 8 N., range 2 W., for $2,000, the deed to which he directed should be made to Nelson, which was done, the latter giving back to the brother a mortgage thereon for $2,000. Wiggins later paid this mortgage in an adjustment of partnership matters with the brother, and took an assignment of it.

Nelson had married the preceding March, and, after acquiring title to this land, moved upon it with his wife. There were few improvements on the property, and no suitable buildings. With Wiggins’ assistance, he built a house and barn; Wiggins paying for the material and carpenter work. While he lived with his wife on the farm, one child, a daughter, was born, who died in early childhood. Within two years his wife left him, taking with her most of their household effects. He remained on the farm, living in the same house, much of the time alone and doing his own household work, until his death, having obtained a divorce. A few months after his wife left Nelson, complainant was born. Nelson claimed complainant was not his son, and apparently took no interest in him. Complainant testified he first saw his father by a chance meeting on the street when three years of age, and again under like circumstances when five years old. When 15 years of age complainant went to the farm and saw his father, staying long enough to have dinner, and again in 1895. There was no mutual recognition or apparent knowledge of each other from then until November, 1909, when complainant called, two days before his father’s death, had dinner, and went on to Owosso. His father was then unconscious. Wiggins, whom he met there, promised to send him word of the result of the sickness, and did so when it terminated fatally. These facts are material only as bearing on the existence or nonexistence of paternal and filial relations and sentiments between them and the motives actuating John Nelson in making the conveyances complained of. On that subject Wiggins testifies:

“ He never appeared to have very much interest in him; didn’t show that.
“Q. What did he ever say to you about it ?
“A. Well, he always said to me that Sylvester didn’t belong to him, and he wasn’t his child. He didn’t care a damn about him. That is what he has told me.
“Q. What, if anything, did you ever say, directly or indirectly, to lead John Nelson to say that ?
l‘A. I never did anything, or said anything, that I wanted it to appear or make him feel hard toward him (complainant) or to cultivate that feeling. I done and said a good deal towards him. I claimed to him that he was his boy — that he better treat him in that way. His treatment toward his son was always, as I have said, except the last time, I thought he acted and talked a little more favorable toward him. That was in 1904 or 1905.”

After the termination of Nelson’s married life, Wiggins continued on friendly terms with him, manifestly having confidence in and disposed to sustain and assist him. He had helped to erect the buildings on the land, and furnished him money from time to time to purchase necessaries and make improvements. Nelson’s acquisition of this real estate was engineered and financed by Wiggins, and it seems evident that they were mutually interested in its use and development. For a number of years Nelson, living there alone and working industriously on the farm, made little headway except to improve the place, though, with the assistance of Wiggins, he began to occasionally employ help as early as 20 years before his death. Prior to 1897 Wiggins purchased an adjoining 80 acres, being the E. •£• of the N. E.J- of section 82, from certain parties named Camp & Brook for $900, subsequently paying therefor in full and having the deed, bearing date January 5, 1897, made to John Nelson, and in 1903 the other 80 acres of the 240-acre farm was purchased by Wiggins from the same parties, being the N. £ of the N. W. of section 33, and deeded by his direction to John Nelson for the expressed consideration of $1; its estimated value at that time being $800. Some 16 or 18 years before Nelson died a partnership arrangement was entered into between him and Wiggins for the raising of stock and operating the farm ,to that end. The beginning of the herd was furnished from Wiggins’ farm near Saginaw. During the summer this stock was driven to pasture on wild lands in Midland county belonging to Wiggins, and during the winter they were fed and cared for by Nelson on the farm. This enterprise appears to have proven profitable, and their partnership assets increased both in live stock and accumulation of farm tools, and other personal property on the place. Up to the time this stock was put upon the farm, Nelson had made little, and saved no money. He had only bettered his condition to the extent of the increase in value of the land and improvements he made upon it. After they went into the stock business, their affairs became more prosperous, and a reasonable profit was realized for six or seven years before Nelson died, during which time they had a modest bank account carried in Nelson’s name, but handled by Wiggins, as were most of their outside business matters. Nelson during these years increased his education only to the extent of learning to write his name. An officer of his township testified that at elections he always required assistance in preparing his ballot. He was industrious and attentive to the affairs of the farm, was liked by his neighbors, and considered honest and obliging, but was reticent as to his private affairs, living quietly alone on the farm, except as he had help, or members of the Wiggins family were there occasionally. His friendship and relations with Wiggins and his family remained unbroken until his death. He was treated as one of that family, and so regarded himself. The evidence clearly shows that Nelson and Wiggins had mutual regard for and confidence in each other, and each trusted the other.

Wiggins was a business man of extensive experience. He was engaged in lumbering operations for 30 years, at times handling large interests and in affluence, at other times meeting reverses. Nelson’s business ability and experience were limited. He was a farmer and laborer. That he relied upon Wiggins, deferred to his business judgment, and was guided by his advice is not to be doubted. Such relations do not imply coercion or undue influence. Confidence in, respect for, and desire to please another, or the influence of long association, affection, or gratitude, are neither coercion nor undue influence. McFadin v. Catron, 138 Mo. 197 (38 S. W. 932, 39 S. W. 771); Campbell v. Carlisle, 162 Mo. 634 (63 S. W. 701). It is claimed, and the testimony tends to show, that at one time Wiggins put certain of his property in his wife’s name and his investments in these lands in Nelson’s name to evade certain creditors who held paper on which he was liable. The record shows that in 1889 Nelson deeded the E. $ of S. E. section 28, to Wiggins for a stated consideration of $2,000; that Wiggins and wife deeded it back to him in 1896 for a stated consideration of $8,000, Nelson giving Wiggins a mortgage on the property for $5,000 on the same date. This mortgage was discharged of record in December, 1901. On November 10, 1903, Nelson gave two deeds of -this property, one of a half interest and one of full title, to Wiggins’ wife, Frances R., one of the defendants in this case, and on the same date he deeded the N. % of N. W. 1, section 33, to defendant Marion F. Richards. December 23, 1905, he gave to said Frances R. Wiggins a deed of an undivided one-half of the E. i of N. E. ■£, section 32; thus disposing of all the farm but 40 acres. In each of these later deeds the expressed consideration was $1. If Wiggins, in the first instance, put this property in Nelson’s name to sequester it from creditors, he could not legally recover it. Thereafter, as between themselves, it belonged to Nelson, who could dispose of it as he saw fit. As suggested by counsel for complainant, such transfers, if for such a purpose, are evidence derogatory to Wiggins’ integrity and credibility. They might also have some bearing in explanation of Nelson’s motive in conveying the property to Wiggins’ family. Of their mutual interest in this land, Wiggins testifies:

ts He was supposed to own a portion of that land always, and I was always supposed to own a portion, and he wanted his portion to go where he deeded it and I wanted mine to go the same. * * * My wife did not know the history of this land at all, except when Nelson used to tell it. * * * Since I met John 35 years ago I have been more or less closely associated with him. * * * I had confidence in him, and had no hesitation in turning over my property to a man such as he was. I didn’t charge anything up against him on the ground óf intoxication.”

Irrespective of whether he acted on Wiggins’ request or advice, or on his own initiative, and irrespective of his reasons or motives, Nelson could convey this property during his lifetime as, and to whomsoever, he chose. These conveyances are valid on their face, and not to be disturbed unless the claim of complainant is established, by a preponderance of competent evidence, that they “were obtained through fear and undue influence and coercion of said Stephen L. Wiggins over said John Nelson.” Wiggins positively denies this, and there is no direct proof of any intimidation, demand, threats, or even persuasion on the part of any one. In 1894 Nelson, of his own volition so far as shown, went to an attorney of his acquaintance, whom he had before consulted in regard to his private matters, and had a will drawn, which he executed, leaving his property to the Wiggins family, stating his reason for so doing. The attorney who drafted the will, an elderly and respectable member of the bar, testified from memory as to its contents. He could not recall any descriptions of property, but remembered that everything went to the Wiggins family; Nelson stating “something about their giving him a home and that the family had been his friend, or something of that kind, which he wanted put in the will,” and that he also provided in the will a certain sum, $300 or $400, to defray half of the cost of a monument for the family lot, with a request that his name be put on the monument, and he be buried in the lot. Such request was complied with, and he was buried where he had requested. This will was afterward destroyed at his dictation. Wiggins states the reason and circumstances as follows:

“ I knew he made a will some years ago, and willed his property as he wanted it to go, as I understand. I don’t know that I ever read the will or ever heard it read — not all of it — and it ran along for quite a number of years, I wouldn’t say how long, and he got it in his head he had heard about people breaking wills so much. He said one time, says he, I’m going to destroy that will; have it burned up and deed my property to the one I want it to go to, and then there won’t be no fighting over will.’ And he did this. * * * The will he gave to my wife and told her to burn it up, and I see her put it in the stove. That is all I know about a will. * * * He was buried in Forest Lawn, Saginaw. His name was put on the monument before it was put up. His name has been there for years.”

Shortly after the will was destroyed, he requested Wiggins to accompany him to an attorney’s office to make out the deeds as he had declared his intention to do. He there stated to the attorney what he wanted and what papers he desired to make. The two deeds of November 10, 1903, were drawn up and executed by him. He told the attorney he did not intend they should be delivered until after his death. The attorney testifies:

I told him it would be necessary to deliver them in escrow to a third party, to be delivered at his death, and, as Mr. Wiggins states, he said he would deliver them to Mr. Wiggins — that is, Mr. Nelson said that, for delivery at his death — and they were handed to him, and that is the last I know about the transaction.”

When Nelson died, Wiggins sent complainant notice, and later an amicable settlement was made covering all partnership matters connected with the stock raising and other operations on the farm, Wiggins paying complainant $1,500 for his interest. As the only heir of John Nelson, he would also inherit the undivided E. £ of N. E. section 32, which was not included in any of the deeds in controversy.

To establish undue influence, it must be made of threats, or misrepresentation, or undue flattery, or fraud practiced, or physical or moral coercion sufficient to overpower volition, destroy free agency, and impel the party upon whom it is practiced to act against his inclination and will. Herster v. Herster, 122 Pa. 289 (16 Atl. 342, 9 Am. St. Rep. 95). Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient.

“ It is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.” Boyse v. Rossborough,, 6 H. L. Cas. 2.

The facts proven by complainant are not sufficient, in our opinion, to even shift the burden of proof upon the defendants to show that the conveyances were not obtained by coercion and undue influence, though they have introduced much affirmative testimony along those lines. Nelson’s disposition of his property was consistent with the history of its accumulation, his associations and friendships, and an expressed purpose of many years’ standing.

The decree dismissing complainant’s bill is affirmed, with costs.-

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    MICHIGAN CENTRAL RAILWAY CO. v. MILLER.
    1. Eminent Domain — Petition—Demurrer.
    In eminent domain proceedings by a railroad corporation to acquire land for a passenger depot, streets to provide acoess thereto, and other accommodations for the public, it .was proper to overrule a demurrer to the petition which set forth the purpose for which petitioner required the land, alleged a public necessity for the taking, and action on the part of petitioner determining that they were required, and showing that petitioner was in possession under previous condemnation proceedings which proved to be defective, and that it had made a bona fide effort to purchase the property.
    2. Same — Res Judicata.
    When the original proceeding proved abortive, petitioner was warranted by statute (2 Comp. Laws, § 6251, 3 How. Stat. [2d Ed.] § 6604) in bringing a new proceeding; the first judgment (Michigan Cent. R. Co. v. Ferguson, 162 Mich. 220 [127 N. W. 320]) did not bar its right to aoquire the property.
    8. Same — Adjacent Ground to Main Line.
    While the depot was not to be constructed upon the ground in question, which was covered by tracks and train sheds, and by public and private driveways, it could not be said that the property was not adjacent to the main line of defendant, within the intent of the statute, the evidence showing that the railroad oompany had acquired all lands intervening between the right of way and the property in question.
    4. Same — Certainty—Tentative Project.
    Though petitioner’s project appeared to be tentative and uncertain in the original proceedings, after $2,500,000 had been spent and a detailed plan prepared and partly executed, there was no further basis for such objection.
    5. Same — Public Necessity — Approaches—Streets.
    Petitioner was also justified in condemning land for proper access to its grounds, under an ordinance of the city requiring the corporation, as a condition, to furnish lands to be used as a street, under petitioner’s tracks, although no power is conferred by the statute to condemn land solely for street purposes.

      6. Same.
    Land required to obtain proper light and space was also taken justifiably for petitioner’s use.
    7. Same — Map—Petition.
    Under Act No. 128, Pub. Acts 1905, no map was required to be certified and filed. (2 Comp. Laws, § 6232, as amended, 3 How. Stat. [2d Ed.] § 6585.)
    8. Same — Municipal Corporations — Highways and Streets.
    The city of Detroit was authorized to vacate certain streets and alleys which the council determined it was a public necessity to vacate in conjunction with the plan of petitioner, and the latter was entitled to acquire the abutting property. Detroit Charter (1904), § 169.
    9. Same — Vacation op Street.
    Upon vacating a public street or alley by the proper authority the title reverts to the abutting owners.
    10. Same — Fee.
    And condemnation of the lots carries with it all rights of the owners in ways appurtenant to the premises.
    11. Same — Value—Good Faith.
    An attempt on petitioner’s behalf to purchase for §8,000 property for which the jury awarded §7,900, and which the city assessors valued at §3,000, and no witness for petitioner valued at more than $5,000, could not be held to have been made in bad faith.
    12. Same — Damages.
    An award of $7,900 as damages for the land taken was not inadequate, notwithstanding that one of the respondents purchased property of another for $11,250, which, the record showed, was in excess of its value and was paid in furtherance of a scheme to secure a sum greater than the true value.
    13. Same — Verdict—Blank Finding.
    A blank finding, as prepared by counsel for petitioner, containing proper spaces for a verdict for or against petitioner, was not improperly submitted to the jury.
    Appeal from Wayne; Hosmer, J.
    Submitted January 25, 1912.
    (Docket No. 34.)
    Decided October 2, 1912.
    Eminent domain proceedings by the Michigan Central Railway Company against Edwin Miller and Burr Lobdell to take private property for railroad purposes. From a verdict for petitioner awarding damages, respondents appeal.
    Affirmed.

      Albert MeClatchey and Bralcie J. Orr, for appellants.

      J. W. Dohany and Cray & Gray, for appellee.
   Brooke, J.

This is the second time this case has been before the court. It will be found reported at 162 Mich. 220 (127 N. W. 320). We there held that the petition was not, upon its face, so defective as to deprive the court of jurisdiction, but dismissed the action because the proofs failed to show that the petitioner had taken the necessary corporate action to determine that the land in question was required for corporate purposes, and also because the evidence wholly failed to prove any attempt to purchase the land described in the petition. It was also intimated that the contemplated improvement might require the making, certification, approval, and filing of a map.

After obtaining leave from the circuit court, petitioners filed an amended petition, which sets out, among other things, the following:

‘' jfourth. That your petitioner requires, for the purpose of constructing, operating, and maintaining its railroad and appurtenances, and its stations, depots, and other accommodations, the property adjacent to its main line and situated in the city of Detroit, in the county of Wayne, State of Michigan, described as follows, to wit: Lots numbered two hundred fifty-nine (259) and two hundred sixty-three (263) of the subdivision of part of private claim four hundred seventy-three (473), known as the Stanton farm, as per plat recorded in Liber 47 of Deeds, pages 558 and 559, Wayne county records. That said property, together with other property acquired by your petitioner for said purposes, and to be used in connection therewith, constitute premises which adjoin the main line of your petitioner’s railroad.
“Fifth. That the taking thereof is necessary for the public use.
“Fifth A. That your petitioner by proper action has heretofore determined that the said land hereinbefore described is required, and that the same be acquired for its corporate purposes hereinbefore mentioned, and that this petition is filed in pursuance of such action. That the purposes for which said land is so needed by your petitioner are those hereinbefore mentioned and described.”
“Seventh. Your petitioner shows that it is now in the actual possession and occupancy of the said premises, having entered into such possession and occupancy by virtue of proceedings had in the circuit court for the county of Wayne for the condemnation thereof for public use for railroad purposes, which said proceedings have been dismissed by an order of the Supreme Court of the State of Michigan, entered in a cause pending therein, entitled the Michigan Central Railroad Co., Petitioner v. Elizabeth Ferguson, Edwin Miller, and Burr Lobdell, Respondents, known as file No. 23,291, to which order and the opinion filed therein, on July 14, 1910, and the files, records, proceedings, and cause in which the same are made, reference is hereby made for greater certainty as to the nature, extent, and effect thereof.
Eighth. That your petitioner has endeavored to acquire the title to said premises by agreement from the owners thereof, and has been unable so to do, for the reason that the owners thereof refuse to accept a reasonable sum of money therefor, which your petitioner has offered, and which is a sum of money far in excess of what your petitioner believes is the fair value thereof, and that said owners decline and refuse to name any sum which they will accept in payment therefor.”

A demurrer was interposed by respondents, which was overruled. Inasmuch as we held the former petition sufficient to confer jurisdiction, and as the averments in the amended petition are fuller and, to some extent, more specific than those contained in the original, we must hold that the order overruling the demurrer was properly entered.

It is contended by respondents that the matter at issue in this proceeding is res adjudícala because of our former decision. To sustain this contention would be to hold that, where condemnation proceedings prove abortive because of lack of jurisdiction or failure of proof, the petitioner is thereafter debarred from commencing a new proceeding and correcting the errors in the earlier proceeding.

We think the statute (3 Comp. Laws, § 6351, 3 How. Stat. [3d Ed.] § 6604) confers the right upon the petitioner to bring a new proceeding when the original one has proven abortive. Matter of Convers, 18 Mich. 459; Peninsular R. Co. v. Howard, 20 Mich. 18; Chicago, etc., R. Co. v. Sanford, 23 Mich. 418. See, also, Lehigh Valley R. Co. v. Railroad Co., 43 N. J. Law, 528; Ligare v. Railroad Co., 166 Ill. 349 (46 N. E. 803).

After the trial of the original case, and on September 33, 1909, the city of Detroit, by ordinance, vacated certain streets and alleys, in order that the petitioner might carryout its project of constructing a new passenger depot in the city of Detroit. After the award in the original case, the petitioner took possession of the property in question under the statute; and it appeared upon the second trial that respondents’ lots were at that time, for the most part, covered by heavy steel structures, to be used in connection with the proper handling of petitioner’s business at the new depot. While the depot itself is not to be built upon the ground in question, more than half thereof is covered by tracks and the train shed. A further portion will be occupied by the private driveway to the baggage-room. The balance thereof will be used, with other lands, to form what is known as the “Depot Esplanade” — a way devoted to the use of the public generally, but particularly necessary for the accommodation of that portion of the public going to and from petitioner’s new depot, and to afford the light and air necessary for said structure.

The evidence introduced at this trial shows affirmatively that petitioner’s board of directors passed upon the tentative plan in 1907, and upon the general or detailed plan on December 34, 1910, and that at the time of the trial some two and one-half millions of dollars had been spent by petitioner upon the enterprise; and the plans and drawings produced at the time of the trial and submitted to this court, as well as the testimony, show affirmatively that petitioner had acquired and paid for all the lands lying between their original right of way and the -property in question, the title thereto at present being held by the Union Trust Company for the sake of convenience, to get the entire property, in its integrity, subject to one conveyance. Under the facts made to appear at this trial, we do not think it can be said that the lots in question are not “adjacent” to the main line of the railroad, within the meaning of the statute.

In our former opinion we held that the whole matter appeared to be “tentative and indefinite.” What was then indefinite has now been made certain; and there can no longer be doubt that the petitioner is proceeding with energy and in good faith to complete this great project, under plans which have received the necessary corporate sanction.

Appellants contend that under the law petitioner has no power or right to condemn land for the purpose of dedicating it to the public as a public highway for general public travel. The record shows that the ordinance of the city of Detroit vacating certain streets and alleys, to be covered in part by the new depot, imposes upon the petitioner, as a condition, the duty of furnishing to the city certain lands described, to be used as a street, which street traverses a portion of the two lots in question partly under the tracks of petitioner.

We think a sufficient answer to this proposition is found in the claim of petitioner that all of this property is necessary for railway purposes. That portion of these lots used to provide for the public the necessary means of ready access to the facilities to be provided for the accommodation of the public is devoted to a railway purpose no less than that portion actually covered by the structures of the petitioner. It is shown that the portion over which the public is granted the right of passage by dedication is necessary, in order to afford the requisite light and air, as well as access, to the structure itself; and that it would have been necessary, even though the general public were denied passage over it. In any event, the question would seem to be set at rest by the verdict of the jury, which recites:

“We did and do hereby ascertain and determine that the public necessity did and does require that all the real estate and property described in said petition should be taken for public use.”

This verdict was rendered under a charge upon this point as follows:

“ I charge you, under the evidence in the case, that the railroad company is entitled to acquire a reasonable amount of land for the purpose of having proper light and access to its depot, provided, gentlemen of the jury, you find that there is a necessity, as claimed by the petitioner; and the mere fact that if intends to grant to the city of Detroit a right of way over a certain part of the premises in question is not inconsistent with its acquirement of the premises for railroad purposes; is not inconsistent with or prohibitive of its use for railroad purposes, or for access of light to its station and accommodations in connection therewith.”

We approve the language of this instruction. We have no doubt that under our statute petitioner has no power to condemn land solely for a public street. Chicago, etc., R. Co. v. Galt, 133 Ill. 657 (24 N. E. 674). But, where such land is necessary for railroad purposes, the incidental use thereof as a street by the public does not destroy that power.

The instant proceeding is not defective because of the failure of petitioner to make, certify, and file a map. 2 Comp. Laws, § 6243, was amended by Act No. 80 of the Public Acts of 1901. (3 How. Stat. [2d Ed.] § 6596.) As amended, the section, which sets out the requirements of the petition, contains no provision requiring an allegation that a map or survey has been filed. Detroit, etc., R. Co. v. Campbell, 140 Mich. 384 (103 N. W. 856).

2 Comp. Laws, § 6232 was amended by Act No. 128 of the Public Acts of 1905 by adding to the section the following proviso:

“Provided, further, that a map shall not be necessary as a basis for condemnation proceedings affecting the property sought to be obtained for railroad purposes and situated adjacent to the main line of the petitioner’s railroad.” (3 How. Stat. [2d Ed.] § 6585.)

As before pointed out, the petitioner having acquired and being in possession of all the lands lying between its main line and the property sought to be condemned, that property was properly held by the learned circuit judge to be “adjacent,” within the meaning of the statute.

There has been no change in the main line of the petitioner at this point. The property acquired is all adjacent to that line as it has existed for a great many years. Petitioner attacks the validity of the ordinance of the city of Detroit which vacates certain streets and alleys upon condition that the petitioner comply with certain requirements therein set forth. The right of the municipality to vacate a street or alley by proper proceedings, when deemed necessary in the public interest, is clear. Detroit Charter (1904), § 169. It is the claim of petitioner — and the claim is borne out by the testimony and exhibits in the case— that petitioner has acquired the lands abutting upon the streets and alleys vacated by the ordinance. It is elementary that upon the vacation of a street or alley the land reverts to the abutting owner or owners. Schmolt v. Nagel, 151 Mich. 502 (115 N. W. 411).

While the owners of the lots in question had undoubted rights in the street in front of said lots, the condemnation by the jury of the lots themselves includes all rights in the ways appurtenant thereto. Cincinnati, etc., R. Co. v. Railroad Co., 106 Mich. 473 (64 N. W. 471).

Appellants urge further that the petitioner did not attempt, in good faith, to acquire the land amicably before commencing these proceedings. The record shows that an offer of $8,000 in cash was made on behalf of petitioner by persons duly authorized to act in the premises. It is said that the agents for petitioner knew, or had good reason to believe, that such offer would be rejected; and therefore it was made in bad faith. We do not think the conclusion is warranted by the premise. The property was assessed at #3,000. No witness for petitioner (and several experts were sworn) valued the property at more than #5,000. *

The evidence introduced as to what was paid by petitioner for property in the immediate vicinity clearly indicates that the offer was reasonable, if not liberal; and the verdict of the jury, fixing the value at $7,900, with interest from December 6, 1909 (the date when petitioner took possession of the premises under the abortive proceedings), is a refutation of respondents’ claim that the offer was inadequate, or made in bad faith. The fact that the parties disagreed and had been in litigation has no bearing upon the question. All the statute requires is that a bona fide effort be made to acquire the property by purchase. Cincinnati, etc., R. Co. v. Railroad Co., supra.

It is urged that the award is inadequate. Inasmuch as respondent Lobdell claimed to have paid Mrs. Ferguson $11,250 for the property, respondents contend that the jury should have been instructed to award at least that amount. There is no merit in this contention. We think the record clearly shows an attempt on the part of respondents to enhance their claim for damages, to the end that they might receive from the petitioner in condemnation proceedings a sum much in excess of the true value of the lands in question. The statute was never intended as an aid to such an end. It seeks to and does protect the owner in the possession of his property until it is shown that his private rights must yield to a larger public necessity. When such private rights are made so to yield, just compensation must be made.

The verdict of the jury, both as to. necessity and compensation, met with the approval of the court below, and it meets with ours.

A verdict was prepared by counsel for petitioner and submitted to the jury by the court at the conclusion of the charge. This verdict contained the formal language necessary for a finding either way, and blanks were left wherein the jury must insert their findings as to necessity, either for or against, and as to the amount of the award. "We do not find the submission of such a paper to the jury erroneous. Manistee, etc., R. Co. v. Fowler, 73 Mich. 217 (41 N. W. 261).

Error is assigned upon the admission of certain testimony and upon the charge of the court. These assignments have been examined, but have been found to be without merit.

The judgment is affirmed.

Moore, C. J., and Steere, McAlvay, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    HALL v. HALL.
    1. Amendment — Pleading—Equity — Divorce — Bill oe Complaint.
    The question of amendments to a bill for divorce being one that addresses itself to the court’s discretion, this court will not reverse a cause in which the bill alleged generally and , without sufficient particularity the facts upon which complainant relied, where, upon objection being made at the hearing, complainant’s solicitor offered to file an amended pleading covering the objections, but did not .do so until the proofs were all closed; the trial court offering defendant such additional time as he might require to meet the amended averments.
    2. Divorce — Drunkenness—Extreme Cruelty.
    The occasional or temperate use of alcoholic stimulants, or even occasional drunkenness, does not constitute habitual drunkenness; but occasional intoxication, accompanied by cruel conduct and abusive language, may be held to constitute extreme cruelty, and to justify a divorce on that ground.

    3. Same — Alimony—Appeal and Error.
    That defendant sinoe the hearing in the circuit has inherited a portion of his father’s estate, does not warrant the appellate tribunal in modifying the award of alimony in consideration of his changed financial condition; complainant’s remedy is by application to the court below.
    Appeal from Wayne; Hosmer, J.
    Submitted June 6, 1912.
    (Docket No. 36.)
    Decided October 2, 1912.
    Bill by Agnes L. Hall against B. Frank Hall for divorce. From a decree for complainant, both parties appeal.
    Affirmed.

      JRalph B. Wilkinson, for complainant.

      Edward Cahill, for defendant.

      For drunkenness as a ground for divorce, see note in 34 L. R. A. 449.

   Brooke, J.

Complainant seeks a divorce from her husband, the defendant, charging him with drunkenness and extreme cruelty. The defendant denies all her charges and contests her right to any relief. He asserts that he feels the highest regard and affection for complainant, and that he believes a reconciliation can and should be effected. The parties were married in January, 1907, and lived together until December, 1910. Two children were born of the union; the last one a few days after their separation. This child was born in Detroit, at the home of complainant’s father; complainant having gone there for her accouchment by reason of the alleged cruelty of the defendant. Thereafter and until March, 1911, defendant paid frequent visits to his wife in Detroit, and many attempts were made to arrange a modus vivendi between the parties. All these, however, proved abortive, and complainant filed her bill of complaint March 3,1911. This course was caused, or at any rate hastened, because the defendant, a day or two previous, had come to Detroit, and, without the knowledge or consent of the complainant, had taken their elder child, a little girl between three and four years of age, from the kindergarten in Detroit to his father’s home in Lansing.

The complainant immediately went to Lansing, and, using some violence to effect an entrance to the home of her father-in-law, repossessed herself of the infant, and at once sought the aid of the court. After a hearing lasting several days, a decree was made, granting complainant a divorce upon the ground of extreme cruelty. The custody of the children was given to the mother, and alimony was fixed at the sum of $75 per month. Both parties have appealed; the complainant to secure an increase in the allowance made for alimony and solicitor’s fees, and the defendant to obtain a reversal of the entire decree.

The original bill is somewhat general and vague in its averments. When the complainant was placed upon the stand and offered testimony of specific acts of drunkenness and cruelty on the part of the defendant, objection was made that the pleadings were insufficient to support the proofs. Complainant’s counsel thereupon offered to file an amended bill setting out in detail the facts to be covered by the testimony. This amended bill was not filed, however, until the last day of the hearing, when the proofs were all in. The court allowed it to be filed, over the objection of the defendant. It is now urged by defendant that the court should not have permitted the filing of the amended bill, and that the testimony supporting the allegations contained therein should not be considered. While the practice followed by complainant is not to be commended, we are nevertheless convinced that no injustice was done the defendant in permitting the amended bill to be filed. This is a matter which addresses itself peculiarly to the discretion of the trial judge, who should exercise his power to permit amendments liberally in the furtherance of justice; care being taken that the rights of the opposite party are properly protected.

In the case here under consideration, the court offered to grant to the defendant any time necessary to answer or procure testimony to meet the allegations of the amended bill. No delay was thought by defendant to be necessary; and this, we think, was obvious, as the charges contained in the amended pleading had been fully covered by the proofs upon both sides.

It would be profitless to the parties or to the profession to discuss at large the testimony contained in this voluminous record upon the questions of drunkenness and extreme cruelty.

While the occasional or temperate use of alcoholic stimulants, or even occasional drunkenness, do not, under the statute, constitute valid grounds for divorce, we are of opinion that even occasional intoxication, accompanied by cruel conduct and abusive language, may be held to be extreme cruelty under the statute.

“Extreme cruelty” is an exceedingly elastic term. Those acts, or that conduct and language, which in some walks of life would pass as the ordinary incidents of the marital relation, might constitute, in other social phases, the very refinement of cruelty.

We are convinced, after a careful perusal of the record before us, that the learned circuit judge reached a proper result, and that complainant was justified in seeking the aid of a court of equity to put an end to a relation which had become intolerable to a woman of refinement.

Since the hearing in the court below, the defendant has inherited a portion of his father’s estate. We are asked to consider his changed financial condition in determining the question of alimony. This we cannot do; nor are wé disposed to disturb the decree made below upon the showing there made, either as to alimony or solicitor’s fees.

The decree stands affirmed; but complainant, if she is so advised, may apply to the circuit court for a modification of the alimony feature thereof, basing her application upon defendant’s altered financial condition. A counsel fee of $50, in addition to taxable costs, is allowed complainant upon this appeal.

Moore, O. J., and Stone, Ostrander, and Bird, JJ., concurred.


text:
    KOLLEN v. SOOY.
    1. Deeds — Effect of Acceptance — Assumption of Mortgage— Contracts.
    Acceptance of a deed containing a condition that the grantees should assume an incumbrance upon the property, and should pay an indebtedness secured thereby, operated as an agreement of the joint grantees to assume and pay the mortgage debt.

      2. Vendor and Purchaser — Assumption of Mortgage.
    Having assumed to pay an outstanding mortgage, the grantees in the deed could not escape their liability by conveying the property to third parties.
    3. Deeds — Mortgages.
    Such an agreement or covenant, made with the grantor, inures to the benefit of the mortgagee, who may treat both vendor and purchaser as his debtors and enforce the obligation in ' foreclosure proceedings.
    4. Same — Subrogation—Mortgages.
    Upon being compelled to pay such incumbrance, the purchaser becomes, by subrogation, an equitable assignee of the mortgage, and, where he procures an assignment in writing from the mortgagee, does not cancel the instrument by paying the debt, but obtains a right to enforce the agreement to assume the obligation, as against the vendor.
    5. Mortgages — Foreclosure—Equity.
    Mortgages can only be foreclosed by statutory publication or by a foreclosure suit: equity has jurisdiction only pursuant to statutory provisions.
    6. Same — Personal Decree — Deficiency.
    The power to render a" personal decree against persons obligated to pay a mortgage is based on statute, and, apart from chancery proceedings for foreclosure, there is no authority for a suit in equity to recover against the obligors therein.
    7. Same — Trust.
    Nor was any trust created by the contract to assume the mortgage that can be enforced in equity.
    Appeal from Ottawa; Padgham, J.
    Submitted June 10, 1912.
    (Docket No. 54.)
    Decided October 2, 1912.
    Bill by George E. Kollen against Mortimer A. Sooy and another for the recovery of a money decree. From a dismissal of complainant’s bill he appeals.
    Affirmed.

      Gerrit J. Diekema, for complainant.

      Mortimer A. Sooy (Charles H. McBride, of counsel), for defendants.
   Steere, J.

This is an appeal by complainant from a decision of the Ottawa circuit court in chancery by which his bill, filed for the recovery of $396.42 claimed due from the defendants under an agreement to relieve certain property from incumbrance, was dismissed. Defendant Sooy answered. Defendant Post was defaulted for want of answer.

On and for some time prior to the 24th day of May, 1907, Jennie Smith, of Grand Rapids, Mich., was and had been the owner of part of lots 5 and 6, block 62, city of Holland, Kent county, Mich., worth $1,000 to $1,200, subject to two unpaid mortgages, certain taxes and mortgage foreclosure expenses, but, in the opinion of competent witnesses, worth the sum of $235 above incumbrances. One mortgage was given to John W. Bosmanon November 4, 1903, for $600 purchase money, on which about $200 had been paid, and assigned to William H. Van Den Berge. The other mortgage was made to Fred Heiftje for $233.75. On said 24th day of May said Jennie Smith was adjudged insane, and one Maggie Brown was appointed her guardian. As such guardian said Brown, under an order of the probate court, sold the property in dispute to defendants Mortimer A. Sooy and Richard H. Post, subject to all existing liens and incumbrances, said Sooy and Post paying to said guardian $237.50, “subject to said liens and incumbrances, which said parties assume and agree to pay,” as specified in the deed to them, which deed was duly recorded in the Ottawa county register of deed’s ofiSce. On the 3d day of June, 1907, Post, assuming to act for himself and Sooy, negotiated a sale of the same to one Cass Denny on contract for the sum of $1,300, $25 down, balance at $10 per month. On the 9th day of July following Mortimer A. Sooy and wife quitclaimed the property to Post. On the 15th day of July, 1907, the date of the recording of the quitclaim deed above referred to, Post and wife conveyed the property to complainant, subject to the Cass Denny contract, on which said Denny had then paid about $35. Complainant knew that said mortgages were unpaid, but accepted a deed from Post, believing Sooy and Post would carry out their agreement set out in their deed and pay the same.

The mortgage to Heift je was paid in full by one or both of defendants, and $250 and some interest, on the Van Den Berge mortgage; Post promising the balance would be paid according to the terms of the deed. Upon learning the fee of the land was in complainant, Van Den Berge, through his agents, demanded, payment of the balance due on his mortgage, threatening foreclosure if the same was not paid. Prior to calling upon complainant, the said agent of Van Den Berge had called upon the defendant Sooy to pay the same, who refused, denying any interest or responsibility in the matter, notwithstanding his agreement in said deed to do so. Post had at that time become irresponsible, and left that locality. In order to avoid foreclosure, which Van Den Berge was about to begin, complainant was compelled to and did pay, on the 20th of October, 1910, the balance of $396.42 remaining unpaid on said mortgage, and received an assignment of the same and the note accompanying it, which assignment he recorded on October 26, 1910. Complainant’s bill alleges that this sum of $396.42, withheld by defendants, constituted a trust fund in their hands to be used by them for the payment of said mortgage, and which defendant, now lawfully entitled to the same, can only recover in a court of equity.

The prayer of the bill asks—

“ That said defendants may be decreed to pay to your petitioner the said sum of $396.42 and interest thereon from the said 20th day of October, A. D. 1910; that the said defendants may be decreed to be trustees in favor of your petitioner of the sum of $396.42, with interest thereon since the 20th day of October, A. D. 1910; that said defendants may be ordered as such trustees to account to your. petitioner for said moneys and may be ordered to pay said sum thus in their hands as such trustees to your petitioner; that it may be decreed that the obligation of the said defendants, when they agreed to pay the said mortgage, inure to the benefit of your petitioner to the amount remaining unpaid on said mortgage; that it may be decreed that your petitioner has become subrogated to the rights of the said Jennie Smith to compel said defendants to fulfill their undertaking by which they had become responsible for said mortgage.”

Defendant Sooy, answering, makes categorical and elaborate denial of the allegations in complainant’s bill so far as it concerns himself and so far as he has knowledge of the matters alleged. He denies any knowledge of, or participation in, the various transactions detailed, except-that he admits a quitclaim deed of said premises was executed by himself and wife to defendant Post. He particularly denies that he at any time purchased the premises with defendant Post or authorized the use of his name as one of the grantees, or that he in any way, by word or act, ratified the same, or assumed, or agreed to pay, the incumbrances upon said property. In conclusion, he submits to the 'court—

“That, if all the facts well pleaded in said bill were admitted to be true, complainant has failed to make a case that would entitle him to the relief sought, and asks to have the same benefit of these defects as if he had demurred to said bill, because defendant’s obligation to pay said mortgage could be enforced only in case there was a deficiency on the foreclosure of said mortgage. And that complainant has an adequate remedy at law.”

The testimony of numerous witnesses was taken at the hearing in this case; the only marked issue of fact being defendant Sooy’s interest in the property in question. It was his claim that he had no interest whatever except to secure payment of the Heiftje mortgage, which was in his hands for collection. It is undisputed that he knew, by reason of holding this mortgage, the situation in relation, to the property and called defendant Post’s attention to it, telling him there was a chance to make an advantageous purchase. Post was a real estate dealer. Acting on Sooy’s suggestion, he proceeded to negotiate for the property and purchased it. At-the consummation of such purchase, the deed, with a promise to pay existing mortgages, was made to both defendants. The active handling of the property was by Post. He conducted both the purchase and sale. About the time he sold the property to complainant he obtained from Sooy and his wife a quitclaim deed, after which he, together with his wife, conveyed to complainant. Without reviewing the abundance of conflicting testimony, we are well satisfied with the conclusion of the trial judge that Sooy was a party with Post and interested in the purchase of this property. He does not, however, appear to have been an active participant in the negotiations relating to it, either when it was bought or sold, and there is nothing in the testimony to indicate any assumption of liability by him in connection with the incumbrances upon the property beyond what is shown in the deed to himself and Post. Post subsequently proved a defaulter and absconded.

In disposing of this case, we must assume it established by tbe testimony that there was a delivery of the guardian’s deed to Sooy and Post and an acceptance of it by them, with actual or implied knowledge of its contents. The acceptance by defendants of the deed in question conveying this property to themselves subject to certain specified incumbrances, with an express provision in said deed that they should assume and pay the same, bound them as effectually as though they also had signed the instrument, and, after they accepted the deed, the provision became an agreement on their part to assume and pay. A subsequent conveyance by them of the property to other parties, responsible or irresponsible, will not operate to relieve them of the obligation..

Such an agreement, though made with the grantor of the property, inures to the benefit of one having a mortgage upon it. He may treat both the buyer and seller as his debtors, and enforce it in a bill to foreclose. Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 10, 13; Taylor v. Whitmore, 35 Mich. 97, 99; Carley v. Fox, 38 Mich. 387, 389; Hicks v. McGarry, 38 Mich. 667, 668; Higman v. Stewart, 38 Mich. 513, 523; Manwaring v. Powell, 40 Mich. 371, 374; Winans v. Wilkie, 41 Mich. 264, 266 (1 N. W. 1049); Booth v. Insurance Co., 43 Mich. 299, 301 (5 N. W. 381); Unger v. Smith, 44 Mich. 22, 24 (5 N. W. 1069); Gage v. Jenkinson, 58 Mich. 169 (24 N. W. 815); Jehle v. Brooks, 112 Mich. 131 (70 N. W. 440).

Complainant, being a purchaser of the property covered by this mortgage, when threatened with foreclosure and compelled to act to protect his title and save his property, could pay the incumbrance, and by so doing would thereby become an equitable assignee and owner of the mortgage, subrogated by operation of law, or legal subrogation, to the rights of the original mortgagee, and the mortgage, though in one sense paid, would yet remain uncanceled and still be operative, in full force and effect for his benefit. 3 Pomeroy’s Equity Jurisprudence, § 1212. In this case, however, complainant secured an assignment of the mortgage in writing, and therefore also holds by conventional subrogation. In either case he has the benefit of the mortgage, kept alive as to him, to enforce for his own benefit within the scope of the powers it gave to his assignor.

The serious question in this case is the right to recover in a court of equity against one only obligated by acceptance of a deed to pay a mortgage on property covered by the deed, without foreclosure proceedings taken in that connection, looking first to the land for payment, with contingent right of recovery against the obligee for deficiency.

In this State mortgages can only be foreclosed by statutory publication or a foreclosure suit in chancery. The jurisdiction of equity in foreclosure proceedings is purely statutory.

Section 519, 1 Comp. Laws, provides:

“ If the mortgage debt be secured by the obligation or other evidence of debt of any other person besides the mortgagor, the complainant may make such person a party to the bill, and the court may decree payment of the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases.”

The power to make a personal decree against the makers of a mortgage upon real estate, or against others charged with its payment, comes entirely from the statute providing for chancery foreclosure. Winsor v. Ludington, 77 Mich. 215 (43 N. W. 866); Vaughan v. Black, 63 Mich. 215 (29 N. W. 523); McCrickett v. Wilson, 50 Mich. 513 (15 N. W. 885); Kelly v. Gaukler, 164 Mich. 519 (129 N. W. 703). There is no statutory authority for a chancery suit independent of foreclosure proceedings to recover against either the maker of the mortgage or others obligated to pay it.

Counsel for complainant, however, seek in this proceeding to establish trust relations between the parties so as to bring the case within the general jurisdiction of courts of equity in the enforcement of trusts. To that end, the bill of complaint asks that defendants may be decreed to be trustees in favor of petitioner of the sum of money required to pay this mortgage, and that they be ordered, as such trustees, to account to complainant for such moneys, and ordered to pay the same over to him as such trustees, contending that, being barred from proceedings in a court of law and now having title to the property, which he cannot, or does not desire to, foreclose against himself, complainant may file a bill in chancery setting up the facts as they exist, and, without asking foreclosure, have a decree for a money judgment, with the same force and effect as in a suit at law.

We are unable to discern any trust relations between the parties which come within the purview of chancery jurisdiction, considering the alleged obligation as a bare promise to pay a debt. Separated from the mortgage, it is nothing more. This is not authorized by any provisions of the statute under which alone chancery has jurisdiction. The obligation is contingent on, and appurtenant to, the mortgage in relation to which only a money judgment for deficiency is authorized by the statute giving chancery courts jurisdiction.

Under the statute and former decisions of this court, we are of opinion that the bill cannot be sustained. The decree of the trial court dismissing the same is affirmed, with costs.

Moore, C. J., and McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.