author: Moore, J.

text:
    BULLOCK v. TOMPKINS’ ESTATE.

    1. Trial — Order of Proof.
    An. objection to evidence of the transactions of an alleged agent on the ground that the agency is not shown becomes immaterial, as one going merely to the order of proof, where the agency is in fact established later in the trial.
    2. Novation — Principal and Agent — Authority—Question for Jury.
    An agent of deceased, who was in the habit of loaning money for her on real estate on his own judgment as to the sufficiency of the security, and of keeping the bonds and mortgages in his possession, and of taking deeds to mortgaged land in his own name, paying prior liens thereon, and after sale accounting to her for the proceeds, accepted a conveyance of certain lands to secure loans made for deceased, and verbally agreed to assume the payment of a debt which the grantor owed plaintiff, and which constituted a lien on part of the lands so taken. Held, in an action against decedent’s estate to enforce payment of the debt, thatthe question whether the agent was clothed with such powers as would enable him to make a contract of novation that would bind his principal was properly submitted to the jury.
    S. Evidence — Ownership of Property.
    Evidence that money loaned for deceased by her agent was appraised as her property, and was spoken of as her property in the affidavits of her daughter and of her son-in-law and of her agent, was sufficient to justify a finding that it was her property, and not that of her husband’s estate.
    4. Same — Contract with Deceased Person — Witnesses—Competency.
    Under 8 Comp. Laws 1891, § 10212, providing that, when a suit is prosecuted or defended by the heirs or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify to matters which, if true, must have been equally within the knowledge of such deceased person, a' witness is not disqualified from testifying as to a contract made by a decedent on behalf of a third person in an action to enforce such contract against the third person’s estate.

      Error to Livingston; Smith, J.
    Submitted October 2, 1900.
    Decided October 31, 1900.
    Cordelia E. Bullock presented a claim against the estate of Charlotte 'Tompkins, deceased, based upon a contract of novation. The claim was allowed by the commissioners, and an appeal taken to the circuit court. From a judgment for claimant, defendant brings error.
    Affirmed.

      Fred H. Warren and William P. Van Winkle, for appellant.

      A. J. Saivyer & Son (M. Wallace Bullock, Shields & Shields, and Louis E. Howlett, of counsel), for appellee.

       Rehearing denied January 15, 1901.

   Moore, J.

The plaintiff presented a claim in the probate court against defendant. The case was appealed to the circuit court, where she obtained a judgment upon a verdict rendered by a jury. The case is brought here by appeal. The record contains upwards of 300 pages, while the briefs are very exhaustive. The questions involved, however, are almost wholly questions of fact, and we shall not attempt a detailed discussion of the 141 assignments of error.

Mrs. Tompkins, in her lifetime, was a widow residing in the State of’New York. Her husband, in his lifetime, was in the habi fc of loaning money in Michigan. Mr. Wad-dell acted as his agent in making these loans until,Mr. Waddell’s death, when Mr. Montague became his agent. After Mr. Tompkins’ death, Mrs. Tompkins loaned money in Michigan, Mr. Montague acting as her agent.

Prior to 1891, Mr. Bullock and Mr. Phinney were engaged in real-estate transactions in Gratiot county, and had built up a town known as. the “Village of Perrinton.” They were also the owners of land at the village of Ashley. Mr. Bullock sold his interest in the business to Mr. Phinney, and the latter agreed to hold Mr. Bullock harmless from the debts. The firm was indebted to the plaintiff in this proceeding in the sum of $3,825. For the purpose of securing her, Mr. Phinney deeded to her certain real estate, and took back a land contract covering the same and other lands, and agreed to pay her said debt on or before 10 years, with 7 per cent, interest, and to pay the taxes on the real estate.

Bullock and Phinney had borrowed money of Mr. Montague belonging to Mrs. Tompkins, and had given to her a mortgage of $6,000 on real estate at Perrinton, and had also borrowed other large sums of money, for which they had given their notes, and turned over to Mr. Montague mortgages and land contracts; so that in December, 1891, these debts amounted to nearly $24,000. Mr. Phinney was becoming embarrassed, and had said to Mr. Montague that, if it became necessary to do so, he would deed to him the real estate to secure the debts he owed to Mrs. Tompkins. In November he sent him a deed containing a general description of a large quantity of real estate. This deed was not put upon record. Later, in response to a letter from-Mr. Phinney asking him to come, Mr. Montague went to Perrinton and Ashley, when Mr. Phinney and his wife deeded to him a large quantity of real estate, the deeds reciting, “ Said lands are sold subject to all contracts given by A. H. Phinney, and to all incumbrances.” Stocks and personal property were also assigned to Mr. Montague at this time. It is the claim of plaintiff that Mr. Montague agreed, as part of the consideration for these conveyances, to pay Mrs. Bullock the amount to become due upon her land contract, and that he was acting for Mrs. Tompkins, and that Mrs. Tompkins, from that time on, stood in the place of Mr. Phinney, so far as this contract was concerned, and that Mrs. Bullock assented to this agreement, and never after looked to Mr. Phinney for the payment of her debt. The position of defendant is that no such agreement was made; that Mr. Montague had no authority to make such agreement; that, if made, it would not bind the estate of decedent; that, if it was made, it was void under the statute of frauds, and was void for want of consideration, and the only remedy plaintiff has is a suit in equity to foreclose her land contract.

Counsel for defendant complain very earnestly because the circuit judge allowed the acts and conduct of Mr. Montague in relation to other transactions to be given in evidence before showing that he was the agent of decedent, and say in doing this he prejudiced the jury against defendant, and the case ought for that reason to be reversed; citing Bond v. Railroad Co., 62 Mich. 646 (29 N. W. 482, 4 Am. St. Rep. 885). Later in the case, by consent of counsel, a disclosure made by Mr. Montague in a garnishee case, and an appraisement made in the estate of Mrs. Tompkins in the surrogate’s court, were offered in evidence, in which it appeared that in the various transactions about which testimony was given Mr. Montague was acting for Mrs. Tompkins; so that the objection simply becomes one as to the order of the proof, and is not within the case cited by counsel.

It is insisted upon the part of the defendant that, taking the most favorable view of the testimony given, it does not show a novation, and that the court should have directed a verdict for defendant. We cannot agree with counsel in this respect. Attached to the proceedings in the surrogate court was the affidavit of Mr. Newcomb, the son-in-law, in which he swore :

“ I knew Charlotte Tompkins in her lifetime. She was my wife’s mother, and lived with me for 10 years last past. I knew of her having money invested in bonds and mortgages in Livingston county, Michigan. Howell is the county seat. Her agent there to invest such moneys was Luke S. Montague. He had charge of her business for about 10 or 12 years, and had possession of her bonds and mortgages. He had furnished statements from time to time showing condition of the property on the 1st of January in each year.”

Mrs. Newcomb, who was the daughter of Mrs. Tompkins, testified in the same proceeding that Mr. Montague took charge of the securities, and continued loaning, collecting, and reinvesting according to his own judgment, and that the securities remained in his hands and under, his control in Michigan, and that none of them had ever been in the State of New York. In the same proceeding Mr. Montague testified:

“ Since about January 1, 1882, I have had charge of all of the property of Charlotte Tompkins, late of Rochester, N. Y., in the State of Michigan, as her agent. Have made loans, taken securities almost entirely in mortgages, and have foreclosed mortgages whenever it became necessary, and all in her name. I have now charge of all securities for moneys loaned for her in the State of Michigan and belonging to her at the time of her death, and they are now actually in my possession, and have been in my possession since they were taken, as shown by their dates, except those that were loaned by my late partner, Mr. Waddell; and they came to my hands a short time after Mr. Waddell’s death, which occurred December 10, 1881. The securities taken by him and those taken by me have always been actually within the State of Michigan, and in his possession or mine, at all times. The investments made by him were made by him on his own judgment, and those made by me upon my own judgment.”

In the disclosure in the garnishee proceeding he testified that, in receiving the deeds from Mr. Phjnney, he was acting for Mrs. Tompkins and Mr. Newcomb. It is true that he gives a different version of what the agreement was from the one given by the witnesses for the plaintiff, but that does not go to the question for whom he was acting when he made it. There was testimony tending to show that, while acting for Mrs. Tompkins, Mr. Montague had taken deeds of the property covered by mortgages in his own name in payment of the mortgages, and after-wards sold the property at such prices as he saw fit, and accounted for the money; that he assumed and paid prior liens upon the property so taken, and charged the amount so paid up to the loan; that he loaned money on second mortgages, thereby rendering it necessary to assume and pay the first mortgage to make the second security good; that he loaned money and took deeds in his own name as security, and held the title until the loan was paid, and then deeded back the property; that he purchased supplies for the farms so taken, made repairs upon the buildings, and built sidewalks, paid insurance and taxes, paid costs upon foreclosures, paid for recording tbe papers when the deed was in his own name; that he did all these things without consulting Mrs. Tompkins, and only notified her of the fact after it had been done.

The witnesses for the plaintiff gave testimony in support of the claim that there was a novation. Under these circumstances and this proof, we do not think the court would have been justified in taking the case from the jury. Mulcrone v. Lumber Co., 55 Mich. 622 (22 N. W. 67); Finan v. Babcock, 58 Mich. 301 (25 N. W. 294); Gleason v. Fitzgerald, 105 Mich. 516 (63 N. W. 512).

It is claimed that, even if a complete novatory contract was made, it would not bind the estate of Mrs. Tompkins, because Mrs. Tompkins was acting as the executrix of her husband, and as executrix she could not make a contract of novation, and could not authorize her agent to do the things she could not herself do. Plaintiff replies to this proposition that the point was not made in the court below, and it is too late to make it here. She also says the record shows the fund belonged to Mrs. Tompkins, and not to her as executrix. There is an abundance of testimony in the record tending to show that the fund belonged to Mrs. Tompkins personally, and not to her as executrix. It was appraised as her property, and is spoken of as her property in the affidavits of her daughter, her son-in-law, and Mr. Montague.

When this case was tried Mr. Montague was dead. Witnesses were allowed to testify to the arrangement made by him upon which plaintiff bases her claim. This is said to be error; citing section 10212, 3 Comp. Laws 1897. This section provides as follows:

“That when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all to' matters which, if true, must have been equally within the knowledge of such deceased person.”

This is not a claim against the estate of Mr. Montague, and the letter of the statute does not apply.

It is said, though the strict letter of the statute does not apply, the spirit of the statute would exclude the testimony. This statute has been construed many times, and against this contention of defendant. Wheeler v. Arnold, 30 Mich. 307; Jones v. Beeson, 36 Mich. 214; Ward v. Ward, 37 Mich. 253; Cotherman v. Cotherman's Estate, 58 Mich. 467 (25 N. W. 467); Doolittle v. Gavagan, 74 Mich. 11 (41 N. W. 846); Wilson v. Wilson's Estate, 80 Mich. 472 (45 N. W. 184); Lyttle v. Railway Co., 84 Mich. 289 (47 N. W. 571); Smith v. Smith's Estate, 91 Mich. 7 (51 N. W. 694).

We have disposed of the controlling questions in the case, and do not deem it necessary to discuss the other assignments of error.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    CROSBY v. MONTCALM CIRCUIT JUDGE.
    1. Estates of Decedents — Contingent Claim — Appeal.
    A statement of claim filed in October, 1892, with the commissioners in a decedent’s estate showed that it was subject to be reduced by the application of the proceeds of a certain contract bearing date November, 1891. In December, 1892, the commissioners reported the claim as disallowed. There was nothing to indicate that the contract had not then been performed, so that the proceeds could be credited. Claimant appealed from the disallowance. Held, that an order dismissing the appeal on the ground that the claim was a contingent one, and therefore not subject to appeal, was erroneous.
    2. Same — Report of Commissioners — Contradiction by Affidavits — Dismissal of Appeal — Limitations.
    Where an estate has caused its appearance to be entered in the circuit court upon an appeal taken by one whose claim was reported by the commissioners as disallowed, it will not be permitted, after sufficient time has elapsed for the statute of limitations to run' against the claim, to have the appeal dismissed on a showing by affidavit of the commissioners that they never actually passed upon the claim.

      Mandamus by James S. Crosby to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order dismissing an appeal.
    Submitted October 2, 1900.
    Writ granted October 31, 1900.

      N. O. Griswold, for relator.

      Charles L. Barden and Edward J. Bowman, for respondent.
   Moore, J.

The relator claims that the estate of Nathaniel Slaght is indebted to him in the sum of upwards of $73,000. After Nathaniel Slaght died, commissioners on claims were appointed. On the 18th of October, 1892, the relator presented a claim against said, estate to said commissioners, charging said estate with upwards of $130-000, and crediting it with upwards of $60,000, leaving a balance due claimant, according to the statement, of upwards of $70,000. Below the statement of this balance were the following words:

“The entire proceeds (except the amount paid to Can-field to complete title, if any) of the property turned over to A. McPherson, trustee, as per contract of Nov. 1,1891, is to be applied on above indebtedness.”

This statement was sworn to by Mr. Crosby.

On December 20, 1892, the commissioners made a report to the probate court of the claims allowed and disallowed by them. Among the claims reported as disallowed is the claim of Mr. Crosby. Mr. Crosby took an appeal in regular form and in time from the action of the commissioners. His appearance was entered in the circuit court by his attorney, and an appearance on the part of the estate was also entered by an attorney, and the case was continued over the term several times. A stipulation between the attorneys in relation to the pleadings was filed. In October, 1898, a motion was made to dismiss the appeal, among other reasons, because the claim had never been passed upon by the commissioners on claims; and, second, because it was a contingent claim, and therefore an appeal from the action of the commissioners would not lie. The motion was based upon the affidavit of the two commissioners, who state in their affidavit, among other things, that no proofs were offered in support of the claim, and that they understood it was withdrawn. They further say that upon making their report as such commissioners, not knowing what else to do with the claim, they reported it as disallowed by them. The affidavit of C. C. Ells-worth, the attorney of Mr. Crosby, was filed in opposition to said motion. He stated, among other things, that Mr. Crosby presented a sworn statement of his claim against said estate, that no one appeared in opposition to it, that nothing was said about abandoning the claim, and that said commissioners did not indicate that they should disallow the claim. In April, 1899, the circuit judge dismissed the appeal for the reasons: First, because it was not passed upon by the commissioners; and, second, because it was a contingent claim.

It is said the claim upon its face shows it to be a contingent claim, and therefore not subject to an appeal; citing 3 Comp. Laws 1897, § 9411 et seq.; Buchoz v. Pray, 36 Mich. 429; Campau v. Miller, 46 Mich. 148 (9 N. W. 140); Osmun v. Oakland Circuit Judge, 107 Mich. 27 (64 N. W. 949).

There can be no doubt but that commissioners are not authorized to pass upon contingent claims, but must content themselves with reporting the facts to the court. The commissioners did not return any proofs to the court, but did report the claim as disallowed. A fair construction of the statement filed, we think, is that the relator had a claim of upwards of $130,000 against said estate, which had been reduced upwards of $60,000 by credits, and that it might be further reduced by an application of the proceeds of the property turned over to Mr. McPherson as per contract of November 1, 1891. It will be seen that more than a year elapsed after the date of this contract before the report of the commissioners was filed, and there is nothing to indicate but that it had been performed, and that an application of the proceeds of the contract could then be credited upon the claim, and a final disposition made of it. We. do not think it can be said this was a contingent claim in the sense that the commissioners might not pass upon it. See Osmun v. Oakland Circuit Judge, 107 Mich. 27 (64 N. W. 949).

The commissioners reported. the claim as disallowed. An appeal was taken to the circuit court. Both parties entered their appearance in the case. For proper reasons the case was continued from term to term for nearly six years, when the case is dismissed, and the claimant is turned out of court, upon the oral statement of the commissioners that their report to the probate court is untrue. The statute of limitations has doubtless run, and, if the claimant ever had a valid claim, he has lost it because he relied upon the report of the commissioners as being true, and took the appeal at the time and in the manner provided by statute. We do not think this order of dismissal should stand. See Shurbun v. Hooper, 40 Mich. 503; Green v. McCutcheon, Id. 244; Finley v. Dubay, 112 Mich. 334 (70 N. W. 885).

The writ of mandamus will issue directing the circuit judge to vacate the order dismissing the appeal and to reinstate the case.

The other Justices concurred.


text:
    LACHMAN v. OTTAWA CIRCUIT JUDGE.
    Mortgages — Foreclosure—Degree—Redemption.
    The rights of the parties in foreclosure proceedings being fixed by the decree, a deed issued upon a sale under a decree entered before the taking effect of Act No. 200, Pub. Acts 1899, giving a six months’ right of redemption, should not be indorsed with the redemption clause.

      Mandamus by Adam Lachman to compel Philip Padgham, circuit judge of Ottawa county, to vacate an order setting aside the action of a circuit court commissioner in indorsing upon a deed on foreclosure sale the redemption clause provided for by Act No. 200, Pub. Acts 1899.
    Submitted October 2, 1900.
    Writ denied October 31, 1900.

      Jerome E. Turner, for relator.

      John H. Tatem (Myron H. Walker, of counsel), for respondent.
   Moore, J.

May 24, 1899, George A. Parr filed a bill, on the chancery side of the circuit court for the county of Ottawa, for the purpose of foreclosing a mortgage. The relator, who was the owner of a subsequent mortgage, was made a party to the bill. In August, 1899, a decree was granted authorizing a sale of the mortgaged premises any time after May 20, 1900. The decree contained the usual provisions of a chancery decree. On August 30th this decree was assigned by Mr. Farr to the relator. The commissioner sold the property under the decree July 24, 1900. Mr. Lachman bid for the land $1,435.65. Mr. Fitzgerald bid $1,500, and the land was sold to him. The commissioner issued a deed to Mr. Fitzgerald, and indorsed thereon, without his knowledge, a statement to the effect that the parties interested could redeem the property at any time within six months after said sale, and the deed was filed with the register of deeds. July 25, 1900, the usual nisi order confirming the sale was entered. When Mr. Fitzgerald learned about the indorsement upon the deed, he protested against its being recorded by the register of deeds. Mr. Lachman then caused a petition to be filed in the original case, in which, among other things, it was averred that, when the premises were sold by the commissioner, he supposed he had six months in which to redeem, and, if he had not so supposed, he would have bid the amount of the liens upon the property. He asked to have.the sale set aside, and that a decree might be entered in the cause providing for a redemption of the premises according to the previsions of Act No. 200, Pub. Acts 1899. The circuit judge was of the opinion that the rights of all the parties were fixed by the decree, and that the provisions of Act No. 200 do not apply to this case, and denied the prayer of the petitioner. In his answer, filed in this proceeding, the circuit judge returns that upon the hearing before him, in open court, the solicitor for relator waived all claim of relief except that prayed for as follows: “That a decree be entered providing for redemption according to the terms of Act No. 200, Pub. Acts 1899, and for any further or different relief in the premises that shall be according to equity and good conscience;” and that the specific relief asked for was an order of court providing for six months’ redemption under said sale, and that the indorsement of the circuit court commissioner upon the deed be allowed to stand.

The solicitor for the relator in his brief contends that the sole question is whether the indorsement made by the commissioner upon the deed is legal and binding. He answers the question affirmatively, because, he urges, it complies with the law under which he made the sale; citing State Sav. Bank of Detroit v. Matthews, 123 Mich. 56 (81 N. W. 918). The case cited differs from this one, because in that case the decree was entered after Act No. 300 took effect, while in this case it was entered before. It also differs from the case of Gillam v. Foster, 124 Mich. 685 (83 N. W. 784), for the same reason; that is, because there was no decree under which sale could be made until after the act took effect. These decisions, then, do not decide this case. In construing the statute, we must construe three of the sections together, if we would arrive at its meaning. 1 Comp. Laws 1897, §§ 516, 522, 523. The first of these sections provides what the decree shall contain. The second of them provides how sales under such a decree shall be made. The third section provides for the form of the deed after the sale is made. The decree is the basis of the sale, and it should follow the provisions of the statute in force at the time when the decree was entered. See State Sav. Bank of Detroit v. Matthews, supra. The decree made in this case did follow the statute as it then existed. The sale provided for by the statute must be made under the decree which was made in the case. Without the decree a sale could not be made, nor could it be made contrary to the terms of the decree. 9 Enc. Pl. & Prac. pp. 510-518; 3 Freem. Ex’ns, § 300. If the position taken by the relator prevails, it results in having the terms of the decree changed by the action of the officer who is charged with the duty of executing the decree. It is apparent from a reading of the act that the amendments provided therein were all intended to take effect at the same time, and that the provisions of section 118 relate only to such decrees as are made by virtue of section 111. The provisions of the amendment to section 118 did not take effect until the amendment to section 111 took effect, and would only apply to cases where the decree was taken after that section was amended.

The application for the writ is denied.

The other Justices concurred.


author: Long, J.

text:
    OWEN v. WARD’S ESTATE.
    Writ of Error — Final Order — Appeals prom Probate Court.
    An order of the circuit court affirming a probate order denying a petition for the appointment of an administrator de bonis non, the question of fact as to whether there are assets yet to be administered being decided against the petitioner, is a final order, and reviewable on writ of error, the proceeding in which it is entered being analogous to a suit at common law.
    ■ Petition by Tubal C. Owen, residuary legatee under the last will and testament of Eber B. Ward, deceased, for the appointment of an administrator de bonis non. The petition was denied in probate court, and petitioner appealed to the circuit court. From a judgment affirming the order of the probate court, petitioner brings error. On motion of Orrin W. Potter, former executor, to dismiss the writ.
    Submitted October 2,1900.
    Denied October 31, 1900.

      Wells, Angelí, Boynton & McMillan, for the motion.

      Alfred Bussell, contra.

   Long, J.

A petition was filed in the probate court by Mr. Owen, residuary legatee under tbe will of Eber B. Ward, for tbe appointment of an administrator de bonis non. The former executor, Mr. Potter, appeared, and claimed that he had administered all the assets of the estate. The probate court of Wayne county, where the petition was filed, denied the petition, and the petitioner removed the case by appeal to the Wayne circuit court. The case was there heard before the court without á jury, and the order of the probate court affirmed. The petitioner brings the case into this court by writ of error.

It appears that the case was heard in the circuit court upon evidence introduced by the estate tending to show that there were no assets not administered. It is claimed in this court on the part of the estate that the case is not reviewable on writ of error, because it is not a common-law proceeding. On the other hand, it is contended by counsel for petitioner that statutory proceedings in inferior courts brought into the circuit court by appeal become analogous to suits at common law, and are therefore reviewable in this court by writ of error, where the decision sought to be reviewed is final, and not interlocutory.

It was said by this court in Brinsmade’s Appeal, 52 Mich. 537 (18 N. W. 346):

“ It has been decided in this court several times that a writ of error is only allowable to bring up such controversies and questions as are according to the course of the common law. Probate appeals sometimes involve such questions where there is a contest over the will itself or over contested claims. In other cases they include equitable matters, as in case of accounting, and matters involving more or less discretion. Where no such issue is involved as could ever be a common-law question, the relief must be had by some other process, if it can be had at all.”

In the present case the question raised in the circuit court as to whether there were assets not administered belonging to the estate of Mr. Ward might have been submitted to a jury. If there were assets not administered, plainly an administrator de bonis non should have been appointed. It was a question of fact to be determined, and the decision of the circuit court upon that question was final, and not interlocutory, so that the petitioner had a right to remove the case into this court by some form of procedure. We think a writ of error will lie in such case.

The writ of error was held to be the proper proceeding in John Hancock Mut. Life Ins. Co. v. Hill’s Estate, 108 Mich. 126 (65 N. W. 758). In that case the insurance company had judgment upon a contingent claim against the estate, and one Clara K. Hanna, an heir of the deceased, brought error. It was held that the writ of error was the proper remedy.

In Re Nugent’s Estate, 77 Mich. 500 (43 N. W. 889), an appeal was taken from the probate court to the circuit court from an order appointing an administrator, and the case came into this court by writ of error from a judgment of the circuit court dismissing the petition. The case was heard upon the record, and returned, upon the writ of error. While the question does not seem to have been raised as to whether error would lie, the proceedings were entertained in this court, and the order of the circuit court was reversed, and the former one of the probate court appointing an administrator was affirmed.

The case of Buss v. Buss’ Estate, 75 Mich. 163 (42 N. W. 688), came into this court by writ of error. In that case an order of the probate court denying the petition of a residuary legatee for the appointment of an administrator to complete the administration of the estate was affirmed in the circuit court. The orders of the circuit and probate courts were reversed in this court, and a direction given to the circuit court to enter the order prayed for, and certify the same to the probate court. It was said in that case:

“She [the residuary legatee] does not seek by her petition to reopen the account of the executor already settled and adjudicated, but asks that she may have the aid of an administrator in her endeavors to ascertain her interests, and the extent thereof, under the will; and this is a right of which no legatee can be deprived.”

It was also said that the order holding the executor’s account correct was not an adjudication that there was no estate left for the residuary legatee.

In Mower’s Appeal, 48 Mich. 441 (12 N. W. 646), the case came into this court by writ of error. It was upon the final accounting of an administrator. It was said:

“Where the proceeding in the probate court involves common-law questions, and stands in the place of a suit at law, it naturally assumes the form of a common-law suit in the circuit court, and it is very proper, and not unusual, to provide for the making up'of a common-law issue. The trial of such an issue will not be different from any common-law trial, and exceptions may be settled and writ of error had as in other cases. But appeals from interlocutory orders cannot take that form, * * * nor proceedings for the removal of an administrator, * * * or for the appointment of a guardian. * * * But in Several cases appeals from the final accounting of an administrator have been proceeded in as common-law cases without difficulty or confusion. * * * On writ of error, this court reviews the action of the court below on questions of law only, but examines the conclusions of that court on questions of fact for the purpose of determining such questions of law as arise upon them.”

It is evidently the rule that no interlocutory proceedings can be reviewed by error; but this was a final order. The defense of Potter, the former executor, is that he administered all the assets, and he'put in testimony to show that. The petition asserted that there were assets not administered. This was the issue. Under such circumstances, we see no reason why the writ of error was not the proper remedy.

The motion to dismiss the writ must be denied.

The other Justices concurred.


author: Hooker, J.

text:
    CONOVER v. HEWITT.
    Trusts — Construction—Vested Estates.
    Where a trust deed declared that after the death of the cestui que trust, leaving a wife and child or children, the trustee should receive the profits, and apply the same to the use of the wife and children during the wife’s life, and that at her death the estate should vest absolutely in such children, one of the children, on the death of the cestui que trust, took a vested interest in the estate, of which she could dispose by will.
    Appeal from Bay; Shepard, J.
    Submitted October 2, 1900.
    Decided October 31, 1900.
    Bill by Richard F. Conover, executor of the last will and testament of Alida E. Fitzhugh, deceased, and Cornelia F. Conover, against John C. Hewitt, trustee, Anne E. Fitzhugh, Anne D. "Wright, and Edward F. Fitzhugh, to construe a trust deed and to terminate the trust. From a decree for complainants, defendant Wright appeals.
    Affirmed.

      E. S. Clark, for complainants.

      C. L. Collins, for appellant.
   Hooker, J.

Daniel H. Fitzhugh placed in the hands of a trustee certain real estate for the benefit of his son William D. Fitzhugh, by deeds all containing the following provisions, viz.:

“This conveyance is made to and accepted by the said Frank Fitzhugh in trust and for the use of his brother William Dana Fitzhugh, of Livingston county, State of New York, with the power on the part of said trustee to receive the rents, issues, profits, and income of said real estate, and apply the same during the natural life of the said William for his use, and at his death, leaving a wife and child or children surviving him, then to receive said rents, issues, profits, and income thereof, and apply the same to the use of said wife and child or children, share and share alike, during the natural life of said wife, and at her death then the said real estate shall vest absolutely in said child or children; and in case of the death of said William leaving a child or children surviving him, and no wife, said real estate shall vest absolutely in said child or children at the death of the said William. ’ In case of the death of the said William leaving a wife and no child or children or descendants, then said rents, issues, profits, and income shall be applied to the use of such wife during her natural life, and at her death the same shall vest absolutely in the brothers and sisters of the • said William then living, and the representatives or descendants of any of those who may be dead. In case of the death of the said William leaving no wife, child, children, or descendants, then said real estate shall vest at his death in his brothers and sisters then living, and the representatives or descendants, if any, of those who may have died. Said trustee shall also have power in his discretion at any time to sell, convey, and convert said real estate, or any part thereof, into money, and invest the same in good securities, and in such case the rents, issues, profits, and income of such fund shall be applied and the fund disposed of as hereinbefore provided in relation to the real estate embraced in this conveyance.”

William D. Fitzhugh died in 1889, and left surviving a widow, Anne E. Fitzhugh, and the following son and daughters: Anne D. Wright, Cornelia Gr. Fitzhugh (now Cornelia F. Conover), Edward F. Fitzhugh, and Alida K. Fitzhugh. There were no issue of deceased children nor any descendants of William D. Fitzhugh living at his death, other than those above named. On February 20, 1898, one of these children (Alida K. Fitzhugh ) died, leaving a will, in which complainant Richard F. Conover, who is the husband of the complainant Cornelia F. Conover, was named as executor, and in accordance with which appointment letters testamentary have been issued. Complainant Cornelia F. Conover was made the sole legatee and devisee, except as to certain life interests granted to her mother, Anne E. Fitzhugh. The latter subsequently released and conveyed all these interests to Mrs. Conover, so that, when this bill was filed, Cornelia F. Conover was in the position of absolute and sole legatee and devisee of Alida K. Fitzhugh. Since the death of William D. Fitzhugh, the existence of the life estate of the widow, Anne E. Fitzhugh, has alone prevented the winding up of the trust estate and the distribution of the property. It was agreed by all concerned that the trust estate should be concluded by the extinguishment of the life estate. In accordance with this agreement, Anne E. Fitzhugh, under date of November 22, 1899, executed a formal deed of release to the other beneficiaries, for the purpose of extinguishing her life interest with the same force and effect as if it had been extinguished by her death. This instrument has been given this effect by the court, and from this part of the decree none of the parties have appealed.

The purpose of the bill was :

First. To obtain a formal winding up of the trust estate, and a distribution of the property among the beneficiaries. .
Second. To establish the right of complainants, as representatives of Alida E. Fitzhugh, deceased, to succeed to that share of the trust estate which would have belonged to the deceased beneficiary if she had lived.

Complainant Cornelia F. Conover joins in the bill both as beneficiary in her own right and as the devisee of her deceased sister. The complainants, therefore, unite the interests of two of the children of W. D. Fitzhugh. The other two children, Anne D. Wright and Edward F. Fitzhugh, together with the widow and the trustee, were made defendants, and all entered their appearance in the cause. All those in any way interested in the trust property are before the court. Complainants claim the right to receive one-half of the estate, being the share of two of the four children. Defendant Anne D. Wright claims that the share of the deceased child was extinguished, and that the living children should therefore each have one-third of the estate. The finding of the court sustained all the allegations of the bill, and held that the complainants were entitled to receive one-half of the property as claimed, leaving the remaining one-half to be equally divided between the defendants Anne D. Wright and Edward E. Eitzhugh. The decree provides for an immediate winding up of the estate, and a distribution of the property in the proportions above named. Defendant Anne D. Wright alone appeals, and only from that part of the decree which fixes the shares of the parties.

The only question that we are called upon to decide is whether at the death of William D. Eitzhugh his children, who were then all living, had or took a vested interest in the property and its income, or whether the vesting of such interest was postponed until the extinguishment of the interest of the widow, Anne. Complainants maintain that, if it occurred upon or before the death of William D. Eitzhugh, Alida had an interest which she might transfer by will. Defendant does not seem to question this, but insists that the interest did not vest until the widow made a deed of her interest, which was after Alida’s death.

Upon the death of William D. Eitzhugh, Alida, as one of four children, became entitled to the corresponding aliquot part of the income of the estate; and by his death it was also definitely determined that, after the inevitable extinguishment of Anne’s estate, the property should vest in the children who at his death survived, and not alone such as might survive Anne, his widow. There was no element of uncertainty left, either in the property or the persons who should receive it when Anne should die. There was therefore- no legal impediment to the vesting of an equitable interest in each of the children at once, if the grantor so intended; and the conclusion that he did so intend would be favored by the law, in the absence of evidence in the deed of a contrary intent. The only thing that may be said to indicate such contrary intent is that the deed contains a provision in behalf of the brothers and sisters, and the descendants of deceased brothers and sisters, in a certain contingency, viz., William’s death, “leaving no wife, child, children, or descendants ” him surviving. It would seem that the design was to exclude the brothers, sisters, etc., not only in favor of W. D. Fitzhugh’s children, but in favor, as well, of their children and descendants to the greatest possible dégree of remoteness ; and not only that, but in favor of the descendants of his child or children whom he might survive, and who, according to defendant’s contention, were excluded by the terms of the deed. We are of the opinion that the provision that, upon the death of the widow, the estate “ shall vest absolutely ” in said child or children, does not show an intention to forbid the children from taking a vested interest earlier, but, at most, emphasizes the provision that the property should remain intact in the hands of the trustee, for the widow’s protection and benefit, and that upon her death, only, should the legal estate of the trustee terminate, and become an absolute and full legal estate in fee simple in the “ said children ” by operation of the deed itself, which thereby created a remainder in “said children ” upon the termination of the life of Anne.

We might discuss the authorities bearing upon this question at length, but we do not discover any conflict in them upon the proposition that the law favors the vesting of estates when the contrary intention is not apparent; and, as we think that the intention that it should vest is to be found in the deed, we omit further reference to this.

The decree of the learned circuit judge will be affirmed, with costs.

The other Justices concurred.


text:
    BRETZLAFF v. EVANGELICAL LUTHERAN ST. JOHN’S SICK-BENEFIT SOCIETY.
    1. Mutual Benefit Associations— Membership — Restrictions— Constitution — Violation.
    B. and others organized a sick-benefit society, and adopted a constitution which provided that members should not belong to any other sick-benefit society. B. signed an application reciting that he had read the constitution, and was willing to submit to it. At the time B. joined the society he was a member of a mutual benefit association, and so continued till his death, but the officers of the society had no knowledge of such fact until after his death, when they offered to refund the dues paid by him. Held, that the constitution restricted the membership to those who did not belong to any other sick-benefit society, and, since B. must be deemed to have known of this provision, he was bound by it, and his contract of membership was void.
    2. Same — Conditions—Reasonableness—Public Policy.
    Where a sick-benefit society was organized among members of a particular church, and the members were required to visit and care for sick members, a provision of the society’s constitution that its members should not belong to any other sick-benefit society was not unreasonable nor against public policy, since, in the absence of such restriction, a member might join so many similar organizations as to be unable to perform the duties he owed to the society.
    Error to Wayne; Carpenter, J.
    Submitted October 2, 1900.
    Decided October 31, 1900.

      Assumpsit by Adelena Bretzlaff against the Evangelical Lutheran St. John’s Sick-Benefit Society to recover a death benefit. Defendant prevailed in justice’s court, and plaintiff removed the cause to the circuit court by certiorari. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Graves & Hatch, for appellant.

      William E. Henze, for appellee.
   Moore, J.

The question involved in this proceeding is whether or not the defendant is liable to the plaintiff upon the following statement of facts: The plaintiff is the widow of Carl Bretzlaff, who in September, 1898, with others, organized the defendant society, and participated in framing its constitution. Article 3 reads as follows:

“Only such persons can be members of the society that adhere and belong to the Evangelical Lutheran Church, their congregation belonging to the Synodical Conference. They must lead a moral and virtuous life, and must not belong to any secret society or any other sick-benefit society. Members that leave the above-named church thereby lose their membership in the society.”

Mr. Bretzlaff and his wife both signed the application blank, which contained the following provision:

“I have read the constitution and by-laws of the society, and am willing to submit myself to the same. Should it appear later on that the statements made by me are false, the society has the right to expel me, and I relinquish all rights of benefits and payments made to the society and bund.”

At the time Mr. Bretzlaff joined the defendant society he was a member of the Arbeiter Bund, a mutual benefit association, and continued to be a member thereof until he died. The officers of the defendant society had no knowledge that Mr. Bretzlaff was a member of any other mutual benefit association until after his death. After this knowledge came to them, they offered to return the dues which had been paid by Mr. Bretzlaff to the administrator of his estate.

It is urged on the part of the plaintiff that her husband, as a matter of fact, was a member of the defendant society; that article 3 does not provide for a forfeiture when one of its members becomes a member of another sick-benefit society. It is also said the provision in question is not valid, because it is unreasonable and against public policy. We do not think either of these contentions can be maintained. The members of the defendant society had a right to provide in its constitution who might become members of it. It did so provide. One of the requirements was to restrict its membership to those who did not belong to any other sick-benefit society. Mr. Bretzlaff must be deemed to have known of this provision, and he was bound by it. 3 Am. & Eng. Enc. Law (2d Ed.), 1081-1083; 1 Bac. Ben. Soc. § 217; Douville v. Insurance Co., 113 Mich. 158 (71 N. W. 517).

It cannot be said the limitation was unreasonable or against public policy. The society is organized among the members of a particular church. Its members may be called upon to visit and care for the sick, and to use part of the income of the society in their care. If Mr. Bretzlaff might join one other sick-benefit association, he might join so many of them that he might not be able to perform the duties he owed to this association. We do not think it unreasonable or against public policy to make such a provision as this in the constitution of such an association. See 3 Am. & Eng. Enc. Law (2d Ed.), 1079.

The judgment of the court below is reversed, and the case is remanded, with directions to the circuit court to set aside its judgment, and enter a judgment in favor of defendant for the costs against the parties to- the certiorari bond.

The other Justices concurred.


author: Montgomery, C. J.

text:
    ABREY v. SCHELLENBERG.
    Land Contracts — Purchase Prioe — Payment—Interest—Substituted Agreement.
    Where a contract for the sale of real estate, by the terms of which the price was payable March 1, 1898, with interest at 7 per cent, until due, and at 8 per cent, after due till paid, was indorsed, under date of April 26th, with an acknowledgment that, certain moneys had been paid on the principal and that the interest had been paid in full to July 26th, and with a provision that “the balance of principal, with interest at 6 per cent., shall be paid before October 1st,” the purchaser was thereby relieved from the obligation to pay interest at 8 per cent, on sums unpaid after due, and was only required to pay interest after October 1st, as well as between July 26th and October 1st, at the rate of 6 per cent.
    Appeal from Wayne; Hosmer, J.
    Submitted October 2, 1900.
    Decided October 31, 1900.
    Bill by Catherine A. Abrey against Harry L. Schellenberg, George T. Abrey, and others to foreclose a land contract. From a decree for complainant for less than the amount claimed, she appeals.
    Affirmed.

      Graves & Hatch, for complainant.

      Franklin L. Lord, for defendant Schellenberg.
   Montgomery, C. J.

On October 1,1897, Catherine A. Abrey, the complainant, contracted in writing to sell George T. Abrey, one of the defendants, certain real estate in Detroit for $9,375. The provision regarding purchase price recites that said purchase price George T. Abrey—

“ Hereby agrees to pay the party of the first part on or before the first day of March, 1898, with interest from the date hereof on all sums at any time unpaid hereon at the rate of seven per cent, per annum till due, and thereafter at the rate of eight per cent, per annum till paid, payable semi-annually herefrom.”

On April 26, 1898, George T. Abrey sold, assigned, and conveyed all his interest in the contract and the lands described therein to the defendant Harry L. Schellenberg, who assumed and agreed to perform all the terms of the contract not yet performed by said George T. Abrey, and also agreed to save said George T. Abrey and the property harmless from mechanics’ liens on the brick building then in process of construction. At the same time the complainant signed a receipt indorsed on the back in the following words:

“Received on the within contract the sum of eighteen hundred and seventy-five ($1,875.00) dollars, leaving a balance due on the principal of seven thousand five hundred ($7,500.00) dollars at this date, — April 26th, ’98. I also acknowledge receipt of all interest on this contract up to July 26th, 1898. The said balance of principal, with interest at 6 per cent., shall be paid before Oct. 1st, 1898.”

Defendant Schellenberg thereupon went into possession of the property. He has paid nothing upon either principal or interest. On February 17, 1900, complainant filed the bill in this case for the purpose of foreclosing the land contract. On May 11, 1900, Schellenberg made a tender of $8,348 to complainant’s solicitor, claiming this sum to be all that was due for principal, interest, and costs of this suit incurred to that date. The tender was refused, because a sufficient sum was not tendered, according to complainant’s claim. The sum tendered was computed on the theory that the balance of the prinbipal bore only 6 per cent, interest, payable annually, from July 26, .1898, till paid. Complainant claimed the balance of principal bore 6 per cent, interest from July 26, 1898, to October 1, 1898, and 8 per cent, interest, payable semi-annually, after October 1, 1898. This constitutes the only controversy between the complainant and the defendant Schellenberg to be passed upon in this appeal. The decree made fixes the amount due the complainant from defendant Schellenberg, sustaining the latter’s contention. Complainant appeals from this determination.

The circuit judge was of the opinion that the indorsement was meant to change the entire clause with reference to the payment of interest. The complainant contends that the only effect of the indorsement was to postpone the due day, and that the provision for payment of 8 per cent, after the maturity of the contract remained in force. It is to be noted, however, that the terms of the agreement as originally written were to pay 7 per cent, per annum till due, and 8 per cent, thereafter. The contract became due March 1, 1898. The indorsement was made thereafter, viz., on April 26, 1898, and related to the delinquent payment, which the first agreement provided should bear interest at 8 per cent. The indorsed agreement reduced this ratio from 8 per cent, to- 6 per cent., and made no provision for a larger ratio on default. The default under the first contract had occurred, and the parties have, by contract, obviated the penalty of an increased rate. We agree with the conclusion of the circuit judge.

The cases cited by complainant’s counsel are unlike the present. In North v. Walker's Adm'r, 66 Mo. 453, the note bore interest at 10 per cent. By agreement the time of payment was extended one year, the payor agreeing to pay 9 per cent, during the extended time. The court, in effect, held that the terms of the second agreement limited the reduction of interest to the extended period, and only operated as a temporary suspension of the rate specified in the note. In the present case the substituted agreement does not, in terms, limit -the rate of interest fixed therein to the extended period. The case of Hibernia Sav. & Loan Soc. v. Wackenreuder, 111 Cal. 471 (44 Pac. 168), is quite unlike the present. In that case, a note by its terms providing that the interest should be compounded monthly, the payee agreed that the loan might be allowed to run at 6 per cent, (a reduced rate). It was held that this concession related solely to the rate, and did not abrogate the agreement as to compounding.

The decree is affirmed, with costs to defendant.

The other Justices concurred.


author: Grant, J.

text:
    MURDOCH v. BILDERBACK.
    Wills — Construction—Bequest to Widow.

      In the first clause of testator’s will he bequeathed to his half-brother a specific piece of land. By the second clause he bequeathed another specific piece to his sister. By the third clause he gave and bequeathed unto his wife “all the statute of the State of Michigan allows a widow.” By the fourth clause he bequeathed the remainder of his estate, both real and personal, to his brother and two sisters, “after my wife receives what the statute of the State of Michigan allows a widow.” Held, that, as the testator died without issue, his widow is entitled to one-half of his real estate, which the statute gives her.

      Certiorari to Cass; Carr, J.
    Submitted October 2, 1900.
    Decided October 31, 1900.
    Ellen J. Tice appealed from an order of the probate court construing the last will and testament of William H. Tice, deceased. John Bilderback, administrator with the will annexed, appeared for the estate. The order was sustained in the circuit, and George H. Murdoch, Jr., administrator of the estate of said Ellen J. Tice, brings certiorari.

    Reversed.
    One William H. Tice died testate. His will reads as follows:
    “1. I give and'bequeath unto my half-brother, Talmage Tice, the following-described piece and parcel of land, described as follows: The west one-half of the southeast fr. i in section thirty, town five, range sixteen west; all being in Cass county and State of Michigan.
    • “2. I give and bequeath unto my sister Susan Gilbert the following-described piece and parcel of land, described as follows: The east one-half of the southeast fr. ¿ in section thirty, town five south, range sixteen west; all being in Cass county and State of Michigan.
    “3. I give and bequeath unto my wife, Ellen Tice, all the statute of the State of Michigan allows a widow.
    “4. I give and bequeath unto my brother Myron Tice, and my sisters Mary Armstrong and Almira Schermerhorn, all the remainder of my estate, both real and personal, to be divided equal after my wife receives what the statute of the State of Michigan allows a widow.”
    Tice died without issue. The widow elected to take under the will. The court below held that Talmage Tice and Mrs. Susan Gilbert took the entirety of the lands devised to them, free and clear of all debts, subject to the widow’s right of dower, and that Myron Tice, Mary Armstrong, and Almira Schermerhorn took the residue of all the real estate, subject to the dower interest of said widow, and further subject to all the debts and expenses of administration.

      Andrews & Murdoch, for appellant.

      F. J. Atwell, for appellee and residuary legatees.

      Coy W. Hendryx, for devisees Talmage Tice and Susan Gilbert.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). The statute gives to the widow whose husband has died without issue one-half of his estate. 3 Comp. Laws 1897, § 9064, subd. 2. The testator is presumed to have known this law. The decision of the court below holds that this provision is excluded by the will, and that the widow has only her right of dower. The intent of the testator in this case is to be determined from the four corners of the instrument. The law favors that construction of the will which conforms most nearly to the general rule of inheritance. Rivenett v. Bourquin, 53 Mich. 10 (18 N. W. 537); In re Lamb’s Estate, 122 Mich. 239 (80 N. W. 1081). As to the construction to be placed upon the language of a will, see In re Lamb’s Estate, supra, and cases there cited; also In re Gotzian, 34 Minn. 159 (24 N. W. 920, 57 Ann. Rep. 43).

"What the extent of the testator’s estate was does not appear in this record. It is stated in the brief of counsel for one of the appellees that all the real estate of testator was disposed of by his will. The statute as clearly gives the widow, where there is no issue, one-half of the real estate, as it gives her any other part of the estate. Twice the testator bequeaths to his widow all that the statute allows her. The language is comprehensive, and includes all the statutory provisions for her benefit. It clearly makes the other specific bequests subject to her rights. Kelly v. Reynolds, 39 Mich. 464 (33 Am. Rep. 418).

The judgment is reversed, with costs of both courts, and judgment entered in this court for plaintiff.

The other Justices concurred.


text:
    COUNTY OF MONTMORENCY v. WILTSE.
    County Treasurer — Action on Bond — Defenses—Change of Venue.

       1. The mere fact that some county records had been lost, and vouchers destroyed, after settlements have been made with the county treasurer, does not prevent a recovery upon the treasurer’s bond, where there is evidence showing errors in the settlement.
    2. The treasurer and his bondsmen cannot defend upon the ground that he received township orders and duebills from his predecessor, where he entered them as cash upon his books. Held, further, that, if such defense could be maintained, it failed in this case, because the defendant did not show, or offer to show, that none of these orders or duebills were collected by him.
    3. 'Where there has been a change of venue, a party cannot, upon the'trial in the court, to which the venue was changed, raise the question of the regularity of the proceedings to transfer.
    Error to Cheboygan; Sharpe, J., presiding.
    Submitted October 3, 1900.
    Decided October 31, 1900.

      Assumpsit by the county of Montmorency against Charles H. Wiltse, principal, and William B. Comstock, surety, upon a county treasurer’s bond. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    Defendant Wiltse was county treasurer for the county of Montmorency for the years 1891 and 1892. The board of supervisors made settlements with him in October, 1891, 1892, and January 4, 1893. At the last settlement he paid to his successor the amount found by the board to be due from him to the county. The first item in his account is as follows: "February 6, 1891. Cash on hand, $3,344.42.” This was the amount acknowledged by the account to have been received from his predecessor. This suit is against Wiltse and his bondsman to recover for amounts which plaintiff claims he had received, but which by mistake were not included in the settlements with the supervisors. The case was tried twice in the county of Montmorency, and the juries disagreed, whereupon the court entered an order for a change of venue to the county of .Cheboygan, where the case was tried, and verdict rendered for plaintiff for $3,442.37. During defendant’s term of office the county seat was at Hillman,- and in 1893 it was removed to Atlanta. Many of the records were lost, and some years after the last settlement the vouchers were destroyed by order of the board of supervisors. These settlements appear in full in the record.

      The court, after instructing the jury as to the items on which there was no dispute, instructed them as follows:
    “But as to the subsequent items of claims (that is, different items of tax money that came into his hands, — in the hands of Mr. Wiltse) there is considerable difference between what the plaintiff seeks to show he received, and what his books of account show he received, and what the settlement with the board of supervisors shows he received. Those amounts have been gone over fully by Mr. Francis with you, and I will not enumerate them. It was the duty, of course, of Mr. Wiltse to account for all the tax moneys that he received, no matter what source they came from, and it is his duty in this suit, and the duty of his bondsman, to account for all that, or any other class of moneys which came into his hands as county treasurer; and if you find that he received a greater amount of money from these different sources, by checks or other payments, than his books and the settlement with the supervisors charge him with, and that that money has not been in any other way paid to the county of Montmorency, or paid out for its use, he is chargeable with it. ”
    The court also instructed the jury that these settlements were presumed to be correct, and the onus probandi was on the plaintiff to show that they were not correct.

      Joseph H. Oobb (Frank Fmerick, of counsel), for appellants.

      James Francis, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). ' It is urged that the court should have directed a verdict for the defendants. Counsel do not argue the proposition, but, in their brief, merely say, “Under the above state of facts, the defendants claim the court should have taken the case from the jury.” It would be sufficient to state that the record fails to show that defendants made any such request. Aside from this, however, we think there was sufficient evidence to go to the jury upon the question of mistake in the settlement. The mere fact that some of the records were lost, and vouchers destroyed, is not con-elusive against the plaintiff’s right of recovery, in the presence of evidence tending to show that legitimate charges were omitted.

Defendant testified that he did not receive from his predecessor’, one Meyers, any cash, but that the entire amount consisted of township orders, and duebills held against saloon keepers. He also testified that he did not receive that amount in any form, by at least $500. Mr. Wiltse gave, as he was obliged to, a bond, before he could receive any money from his predecessor. He was under no obligation to receive any order or duebill as cash. He, however, did receive it as cash. Having so .received it, he must be charged with it as cash. There is no testimony to show that the supervisors were notified of this fact until the first settlement with Wiltse. We think that both Wiltse and his bondsmen were bound by his action in receiving these orders and duebills. Besides, no offer is shown by the record to have been made by the defendant to show how much he received upon these orders and duebills. He is certainly accountable for what he received, and it was incumbent upon him to show that he received nothing on them, or, if anything, how much. But as to this the record is silent. The question whether he did not in fact receive from his predecessor $500 of that sum was left to the jury.

It is urged that the circuit court for the county of Cheboygan had no jurisdiction in this case, because the circuit court of Montmorency county had no jurisdiction to make an order for the change of venue. Upon the opening of the trial, counsel objected to the trial of the cause, because of this change of venue. The proceedings in the circuit court for the county of Montmorency are not in the record. In reply to the objection of counsel, the court said that the order transferring the cause seemed to be regular. The precise ground, as we understand it, is that no application was made by either party for a change of venue, but that the order was made by the court upon its own motion, after two trials in the former county. This is not shown by the record. If the defendants desired to object to this action, they should have tested its legality by the writ of mandamus. They cannot wait until the case is called for trial, and then object to the jurisdiction of the court because of defects in the proceedings for change of venue. It was contended in Lewis v. Wiedenfeld, 114 Mich. 581 (72 N. W. 604), that the State court had no jurisdiction to try the case, because the order of the United States court remanding the case was erroneous. It was held that the action of the federal court in remanding the cause could not be reviewed on appeal from a final decree entered in the State court. So in this case this court will not review the action of the court of Montmorency county in removing the cause to the county of Cheboygan for trial.

Affirmed.

The other Justices concurred.


author: Montgomery, O. J.

text:
    McNAB v. COMMON COUNCIL OF BAY CITY.
    Public Officers — Police Matron — Probationary Appointment —Removal—Legality.
    Where the appointment of a police matron by a board of police commissioners was expressly made “on probation, during the pleasure" of the commissioners, the appointee could not contest the legality of her subsequent removal on the ground that there was no written order stating the cause of removal, as required by Act No. 109, Pub. Acts 1897, § 2, .in the case of a regular appointee.

      Certiorari to Bay; Maxwell, J.
    Submitted October 3, 1900.
    Decided October 31, 1900.

      Mandamus by Catherine McNab to compel the common council of the city of Bay City to audit and allow a claim for services as police matron. From an order granting the writ, respondent brings certiorari.

    Reversed.

      James Van Kleech, for relator.

      Brakie J. Orr, for respondent.
   Montgomery, O. J.

This is certiorari to review mandamus proceedings. The relator sought and obtained a peremptory writ of mandamus to compel the common council to audit and pay her claim for compensation for services as police matron for the month of October, 1899. The petition for mandamus set up the relator’s appointment by the board of police commissioners as police matron; that an attempt was made to remove her, but that no legal cause for such removal was assigned by the board, and that she had had no hearing, and has not been removed by the board of police commissioners.

The statute provides for the appointment of a police matron. Act No. 109, Pub. Acts 1897. The first section provides that the board of aldermen, or, in cities having a police commission, the police commission, shall designate one or more station houses, or a separate department in any such station house or county jail, for the detention of women and children under arrest. Section 2, in its main provisions, reads as follows :

“Immediately upon such designation of a station house in any city, the mayor thereof, or, in counties where the prisoners of the county seat as a city are confined in the county jail, the sheriff, shall appoint for each station house so designated one or more resp'ectable women, none of whom shall be under twenty-five years of age, who shall be known as police matrons. No woman shall be appointed police matron unless recommended for such office in writing by at least twenty women in good standing, and residents in the city in which such appointment is made. The police matron shall not be appointed for any definite term, but shall hold office until removal. She may be removed at any time for cause by the mayor, or, in cities having a police commission, by said commission, or, in county jails where appointed by the sheriff, by said sheriff, by a written order stating the cause of removal. Upon the death, resignation, or removal of a police matron, her successor' shall be appointed in the manner aforesaid as soon as may be: Provided, that, in cities having a board of police commissioners, the appointment of such police matron shall be made by such board, or, in counties where the prisoners of the county seat as a city are confined in the county jail, the sheriff of said county shall appoint said matron.”

The answer of respondent denies that any designation of separate departments of the station house for the detention of women and children has been made, and sets up that Bay City is the county seat of Bay county, and that the prisoners of the county seat as a city are confined in the county jail. It is contended that, as no issues were framed, the answer must be taken as true, and that there is no authority to appoint a police matron until there has been a designation of a department of a station house for the detention of women and children under arrest; and, further, that, under the statute, the authority to appoint a police matron is given to the sheriff, and not to the police commissioners, when the prisoners of a city are confined in a county jail.

We prefer, however, to rest our decision on other grounds. The record shows that on the 3d day of February, 1898, relator was, by a vote of the board of commissioners, appointed police matron; that at the same meeting it was voted that her appointment be merely on probation, and during the pleasure of the board, and that the appointment take effect at a future day, to be fixed by the board. On the 9th of June following, the relator addressed a letter to the commissioners, stating that she had been appointed on February 3d, “the appointment being merely on probation, during the pleasure of, and to take effect at a future date to be fixed by, the board,” and asking the board to confirm her appointment, and to fix a day for entering upon the duties of her office. The board assigned her to duty to begin June 13, 1898. The board subsequently dispensed with her services, and later on appointed another. Can the relator insist that this power was not reserved ? It is undoubtedly true that the statute contemplates an appointment until removed for cause; but the relator was not given such an appointment, but a probationary appointment during the pleasure of the board only, and accepted such appointment, and asked to be assigned to duty under such an appointment and no other. If there was irregularity in the appointment, the relator was not compelled to accept it, and we do not think she is in a position to now assume an entirely different character of appointment.

The order will be reversed.

The other Justices concurred.


text:
    BELDING-HALL MANUFACTURING CO. v. SMITH.
    Chattel Mortgages — Validity —Resulting Trust — Common-Law Assignment.
    S. executed an instrument purporting to chattel mortgage and convey to defendant, in trust, all the goods, chattels, and effects in three lumber yards, for the purpose of securing certain specific debts, and providing that S. should not remove any of the property without the consent of the trustee, but authorizing S. to sell it in the usual course of business, accounting to the trustee for the proceeds thereof, and providing that, in case of default in the payments specified, the trustee should take possession of the property, dispose of it at public or private, sale, pay the secured indebtedness, and turn over the balance of the proceeds, if any, to S. Held, that the instrument constituted a valid chattel mortgage, and was not void as to creditors on the ground that it created a resulting trust, or was a common-law assignment with preferences.
    Error to Lenawee; Chester, J.
    Submitted October 3, 1900.
    Decided October 31, 1900.

      Garnishment proceedings by the Belding-Hall Manufacturing Company against Joseph H. Smith, as garnishee of Augustus W. Slayton. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      McGfarry & Nichols, for appellant.

      Watts, Bean & Smith, for appellee.
   Moore, J.

The sole question involved in this case is what construction is to be put upon the following instrument :

“I, Augustus W. Slayton, of the village of Tecumseh, county of Lenawee, and State of Michigan, party of the first part, do hereby chattel mortgage and convey to Joseph H. Smith, of said Tecumseh, as trustee, in trust for the following-named purposes, the property herein after mentioned: All the goods, chattels, credits, and effects of every sort and character situated in and belonging to my lumber yard at the village of Royal Oak, Oakland county, Michigan, and commonly designated as the ‘Royal Oak Lumber Yard,’ said property consisting of a land contract, lumber, shingles, lath, hardware, coal, agricultural implements, scales, tools, book accounts, bills receivable, lime, cement, fertilizer, buildings, and office furniture; also all the goods, chattels, credits, and effects of every sort,and character situated in and belonging to my lumber yard in the city of Detroit, Wayne Í county, Michigan, and commonly designated as ‘A. W. Slayton’s Wholesale Lumber Yard,’ being situated at the crossing of Twenty-Fourth street and the Michigan Central Railroad in said Detroit, said property consisting of lumber, horses, harnesses, dray, carts, chains, office furniture, bills receivable, and book accounts; also all the goods, chattels, credits, and effects of every sort and character situated in my yard and office in said village of Tecumseh, and commonly designated as ‘A. W. Slayton’s Lumber Yard,’said property consisting of shingles, lumber, office furniture, bills receivable, book accounts, and promissory notes.
“This mortgage is 'made to the said Joseph H. Smith as trustee, and in trust for the following purposes: In case said party of the first part shall not comply with the terms of this instrument, and shall not pay the debts hereinafter mentioned, and in case of foreclosure, said trustee shall first pay himself the expenses of this trust, including legal expenses and expenses for labor; (2) the Tecumseh State Savings Bank, of said Tecumseh, $1,383; (3) Mrs. C. M. Slayton, $1,270.55; (4) [other creditors, whose names and amount of indebtedness were given].
“Said party of the first part agrees to pay the amount first herein designated on demand, and each of the other said sums on or before one (1) year from the date of this instrument.
‘ ‘ Said party of the first part agrees not to remove any of said property from the place or places where situated, to wit, the village of Royal Oak, the city of Detroit, and the village of Tecumseh, without the written consent of the said party of the second part; also agrees to beep said property insured for the benefit of said second party, and hereby assigns the insurance on said property to said party of the second part; also, if he shall make default in any payment hereby secured, or in any of the covenants or agreements herein contained, said party of the second part may, at his option, during said default, declare the whole sum or sums secured hereby due and payable, and a demand of possession, or seizure of any part of said property shall be sufficient notice of his election to declare the same due.
“Said party of the second part agrees that until possession is taken, or demand of the property herein mortgaged, the same shall remain in the possession of the party of the first part, and he may use and sell said property in the usual course of business, accounting for the proceeds of such use and sale to said party of the second part.
“It is further agreed that, in case of default in any of the agreements herein specified by the said party of the first part, said party of the second part is hereby authorized and empowered to enter upon any premises wherever any of said property may be located, and take possession of the same, and hold it at the said place of business, or remove it to such other place or places as he may desire, and there retain the same at the risk and expense of said party of the first part, and then to sell the same at either private sale or public auction, in bulk or in parcel, and, if at public sale, after giving ten days’ notice by one or more written or printed notices to be posted up in the township or city where sale is to be made, and out of the moneys to arise from such sale to pay, first, himself a reasonable compensation for carrying on this trust; (2) the expense of such seizure, holding, removal, and sale; and (3) the sums of money owing hereunder in the order above mentioned; and the balance, if any remaining, to said party of the first part.
“Two certain mortgages of even date herewith are given by said party of the first part, covering certain real estate owned by him, to secure further a part of said debts; and this security is to be exhausted before said real-estate security is sold under the terms of said real-estate mortgages.”

The circuit judge held it a chattel mortgage, and valid and enforceable as a chattel mortgage for the benefit of the creditors therein mentioned, in the order mentioned.

The plaintiff is a creditor of the principal defendant, against whom it has a judgment, and insists the instrument is void for two reasons: First, it is in violation of the statute as to resulting trusts; second, it is nothing more nor less than a common-law assignment with preferences, and is therefore void. It is claimed that, though the instrument is crudely drawn, it does convey the property mentioned to the trustee; that the words “sell” and “ convey,” when the latter word is used as it is used here, are synonyms. 7 Am. & Eng. Enc. Law (2d Ed.), 485, and the cases there cited. It is insisted the effect of the language used is to pass the title of the property to Mr. Smith at once; that it creates a resulting trust, and is nothing more nor less than a common-law assignment, and void for preferences, — citing 3 Comp. Laws 1897, § 9514; Kendall v. Bishop, 76 Mich. 640 (43 N. W. 645). It is said the instrument cannot be sustained as a mortgage, because there is no defeasance clause in it; that by its terms it was not intended the title to the' property should revert- to Slayton, or that it should be returned to him; and comes within the following cases: Kendall v. Bishop, supra; Burnham v. Haskins, 79 Mich. 35 (44 N. W. 341); Pettibone v. Byrne, 97 Mich. 85 (56 N. W. 236); Hill v. Mallory, 112 Mich. 387 (70 N. W. 1016); Conely v. Collins, 119 Mich. 51 (78 N. W. 555),

The case of Kendall v. Bishop, supra, is very unlike this case. A conveyance of all the property and assets, wheresoever the same might be found, was made to the trustee. He was empowered to continue the business, to buy further material to help in the profitable winding up of the business, and to sell at private sale or public sale. In disposing of the case the court said:

‘ ‘ By this grant of powers it is evident that the company, having put everything in his hands, could not possibly do anything to pay debts or redeem the mortgage, while the intermingling of new and old business would deprive execution creditors of any means of getting a sale of the residue belonging to the mortgagor, if in fact there should be, as the law and the instrument both assume there might be, one. In other words, Mr. Kendall not only took an interest by way of security for debts which by law any execution creditor would have a right to redeem, but he also took title to the surplus, with power to manage and dispose; and a trust was created for the company, which would not be subject to execution, as a mere equity in the proceeds, and not an ownership in the property. * * * The direct effect of this instrument, as made, is to put the entire assets, legal and equitable, into the hands of a trustee for sale and distribution.”

In the case at bar there is nothing in the written instrument to indicate that all the property of Mr. Slayton was conveyed to the trustee; nor was he authorized to continue the business; nor was he entitled to the possession of the property, except in cáse of default.

In the case of Pettibone v. Byrne, supra, property of great value was. conveyed to the trustee to secure debts amounting to $160,000. Creditors representing from $16,000 to $32,000 of the indebtedness did not consent to the trust. The company had property valued at only between $3,000 and $4,000 which was not transferred. The trustee took possession of the property, and continued the business, as he was authorized to do by the transfer, and had conducted it for upwards of a year when the case was tried. He bought upwards of a million feet of timber, and other supplies, and borrowed large sums of money, for which he had given a chattel mortgage on property. The court held:

“ The instrument in question, and the action thereunder, which seems to have been contemplated, operated as a fraud upon the creditors who had not accepted the benefits of the trust. It is not a mortgage merely, for the reason that the property is conveyed absolutely to the trustee, and is beyond the reach of the creditors.”

The case of Hill v. Mallory, 112 Mich. 387 (70 N. W. 1016), was decided upon another point, and is so unlike this case as not to be an authority in favor of the contention of the plaintiff.

In the case of Conely v. Collins, 119 Mich. 519 (78 N. W. 555), the assignment conveyed an absolute title in all the property to the trustee of the lumber company, and is unlike this case.

In this case the instrument starts out by saying that Mr. Slayton does hereby chattel mortgage and convey certain property. It does not appear from the instrument that all his property is included in the instrument. Further along the instrument reads, “This mortgage is made to the said Joseph H. Smith as trustee, and in trust for the following purposes.” It is agreed in the instrument that Mr. Slayton will not remove the property without the written consent of the trustee, and will keep it insured. It recites that the possession of the mortgaged property is to remain with Mr. Slayton until possession is taken or demand is made by the trustee. The instrument further recites: “It is further agreed that, in case of.default in any of the agreements herein specified by the said party of the first part, said party of the second part is hereby authorized and empowered to enter upon any premises wherever any of said property may be located, and take possession of the same.” In the last clause of the instrument the .expression is used, “This security is to be exhausted before said real-estate security,” etc. We cannot read the instrument without coming to the conclusion from the language used therein that the parties thereto intended to create a lien upon the property therein described by giving a chattel mortgage thereon. We do not doubt that if Mr. Slayton, at any time before the trustee had taken possession of the property, had paid the indebtedness named therein, it would have ended the interest the trustee had in the property; nor do we see any reason which would have prevented a creditor from levying upon the property, and selling it subject to the lien created by the mortgage. See Warner v. Littlefield, 89 Mich. 348 (50 N. W. 721); Austin v. Bank, 100 Mich. 620 (59 N. W. 597); McMorran v. Moore, 113 Mich. 103 (71 N. W. 505).

Judgment of the court below is affirmed.

The other Justices concurred.


text:
    GOTTESMAN v. CHIPMAN.
    1. Attachment — Exemptions—Purchase Price.
    Goods entering into a merchant’s stock in trade are not exempt from attachment to satisfy claims for the purchase price. 3 Comp. Laws 1897, § 10324.
    2. Same — Replevin — Identity of Property — Question for Jury.
    On replevin of property attached to satisfy claims for the purchase price, evidence by the seller that all the goods levied on had been sold to plaintiff within 60 days of the levy, and by plaintiff that a part of the goods were bought the previous year, raises a question for the jury as to whether all the goods were of the recent invoice.
    8. Same — Misjoinder of Plaintiffs — Copartners.
    Copartners cannot join in an action of replevin for their individual exemptions in the partnership property.
    Error to Wayne; Donovan, J.
    Submitted October 3, 1900.
    Decided October 31, 1900.

      Replevin by Max Gottesman and Jacob Schnabel, co-partners as Gottesman & Schnabel, against Harry F. Chipman, sheriff, Daniel J. Spinning, constable, and Archie H. Jackson and Joseph F. Jacobs, copartners as Jackson & Jacobs. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Lehmann Bros. & F. J. Biggs, for appellants.

      Selling & Hatch, for appellees.
   Hooker, J.

The plaintiffs were copartners engaged in the clothing trade. On October 11, 1898, Berman, Wein & Co. attached their stock; defendant Spinning, a constable, making the levy and taking possession. Abraham Jacobs was left in charge. On October 14th, Spinning inventoried the stock, and had it appraised. It amounted to $666.68. On the same day Spinning levied an attachment upon the property, subject to the Berman, Wein & Co. attachment, in behalf of Jackson & Jacobs, seizing goods amounting to $134.50. These goods are described in the record, and include nine ulsters. On October 19th, M. King & Son attached the goods taken upon the two attachments mentioned, subject to said levies, upon a writ issued out of the circuit court. Defendant Chipman, as sheriff, levied the writ. The plaintiffs thereafter replevied this property, claiming it as their exemptions. They maintain that they were not given the opportunity to select their exemptions, and that, therefore, the several officers were trespassers in seizing it. The circuit judge directed a verdict for the defendants. The property consisted of pants and vests and nine ulsters. The court held that the several claims were for the purchase price of goods sold to them by the attaching creditors, respectively, and that said goods were not exempt from levy to satisfy claims for the purchase price.

The correctness of the holding that property is not exempt from levy for the purchase price is shown by the case of Lillibridge v. Walsh, 97 Mich. 459 (56 N. W. 854), 104 Mich. 153 (62 N. W. 172).

The record does not contain all of the testimony taken upon the trial, but there is testimony tending to show that the nine ulsters were not purchased from Berman, Wein & Co., nor from Jackson & Jacobs. Gottesman testified unqualifiedly that:

“The ulsters came from King. * * * lowed him money for goods, and these goods included the ulsters. * * *
“ He sued you for money you owed for goods?
“Yes, sir.
“And, among these, nine ulsters, were there not?
“Yes, sir.”

The learned circuit judge thereupon held that it conclusively appeared that the possession of the defendants was lawful as to the ulsters. Counsel for plaintiffs insist this was erroneous so far as Spinning and Jackson & Jacobs are concerned, because Spinning was not justified in seizing them on the claims of Berman, Wein & Co. and Jackson & Jacobs, and that they were, therefore, trespassers to the extent of the ulsters. Jackson testified that all of the property levied upon for the claims of Jackson & Jacobs, except the ulsters, had been sold by them to plaintiffs within 60 days of the levy. Gottesman testified that six pairs of the pants were bought the previous year, or the year before that, from Jackson & Jacobs, and it is claimed that those were not liable to attachment, as the claims of the attachment creditors did not include the price for such pants. We think this raised a question of fact for the jury as to said six pairs of pants, and that the judge was not warranted in deciding that they were a part of a recent invoice. This necessitates a reversal of the judgment, unless the defendants’ counsel are correct in saying that there is a misjoinder of plaintiffs.

The plaintiffs’ contention that the copartners might bring replevin because of the alleged trespass is not sound. The remedy by replevin is expressly forbidden to a defendant in attachment, except in a single instance, viz., where he is entitled to attached property under the exemption law. 3 Comp. Laws 1897, § 10652. If the copartnership, as such, were entitled to exemptions, such an action would lie by the copartners; but in this State the right is individual in the copartners, and each must decide for himself whether he will claim an exemption or not. If neither chooses to do so, the firm cannot maintain an action for all the property levied upon, based upon the claim that the levy was a trespass, any more than it could recover the value in trover. It was not a trespass against the firm. Their property was all subject to the levy. But the individual copartners had rights of exemption, which they were at liberty to assert, or to refrain from asserting, at will. The statute contemplates the replevin of property exempt by the person entitled to it. His right to replevin is limited to the property which he has a right to claim. As he is entitled to the possession of all copartnership property against a wrong-doer, so he cannot be defeated by the claim that he is not the sole owner because the partners have not agreed upon his exemptions. We think the copartners should not have joined, as neither has any interest in the other’s exemption. This view is sustained by the case of Russell v. Lennon, 39 Wis. 570 (20 Am. Rep. 60), which was quoted with approval in Rogers v. Raynor, 102 Mich. 475 (60 N. W. 980), where this question was discussed in an action of trover.

The judgment is affirmed.

The other Justices concurred.


text:
    DAGES v. BRAKE.
    1. Replevin — Description oe Property — Abbreviations — Judicial Notice — Parol Evidence — Quashing Proceedings.
    Where goods taken on a writ1 of replevin are described in the writ by words and abbreviations which have a well-understood meaning among those who deal in such goods, but which are not in such common use as to make them subjects of judicial notice, parol testimony is admissible to explain such meaning. Hence, it is error for the court to quash the writ on preliminary motion, for insufficiency of description, in a case susceptible of proof of this character.
    e2. Same — Writ oe Error — Bill oe Exceptions.
    Where the affidavit, writ, and declaration in replevin were quashed on motion, before any issue was joined, for an alleged insufficient description of the property, it was not necessary to file exceptions and frame a bill of exceptions in order to present the question for review on writ of error.
    Error to Sanilac; Beach, J.
    Submitted October 3, 1900.
    Decided October 31, 1900.
    Replevin by John W. Dages and William H. Andrews, survivors of themselves and John Dages, deceased, co-partners as Dages, Andrews & Co., against Forest B. Brake. From an order quashing the writ, plaintiffs bring error.
    Reversed.

      James A. Muir, for appellants.

      William H. Aitkin and John H. Farley, for appellee.
   Hooker, J.

The plaintiffs’ writ of replevin contained the following description of articles constituting the subject of the action, and, with a few slight inaccuracies, the articles described in the affidavit attached to the writ and the declaration 'were the same.

Number. Pairs.
39 6'Woman’s Dong. Polish 3-J to 6’s at §1.50______§9 00
681 13 Child’s Dong. Pol. 8* to 18 at .75______ 9 00
411 12 pair Misses’ Dong. Pol. 13’s to 2’s at .90...... 10 80

—And other similar items. A portion of the goods only were taken under the writ, as shown by the inventory. After the declaration was filed, the defendant made a motion to quash the affidavit, writ, declaration, and all proceedings, for the reasons:

“1. That the affidavit, writ, and declaration do not describe any goods and chattels.
“2. That said writ of replevin does not sufficiently describe the property to be replevied.
“ 3. That said declaration does not describe the property as mentioned in said writ.”

The motion does not refer to any affidavit or paper as a basis, but copies of the affidavit, writ, and declaration were attached, and we will therefore assume it to have been based upon the record. We find in the printed record affidavits made by the defendant and his attorney that no other writ or declaration had been served, and we will assume that to be true.

Upon the hearing of this motion the proceedings were quashed. Subsequently plaintiffs asked the court to vacate the order, and to permit an amendment to the writ and declaration by the insertion of the words, “Footwear, consisting of boots, shoes, and slippers, as follows,” immediately before the list. This motion was based upon the files and records and affidavits attached. The latter show that the defendant purchased the articles in question from the plaintiffs, who were shoe dealers, that said purchase was fraudulent, and that defendant received said goods by an invoice which described them in the identical terms used in the writ, and that the defendant aided the sheriff in identifying said goods at the time he took them under the writ. It is also shown that such goods have a settled description known and used by the trade in conformity to said writ. This motion was denied, and the case is before us upon error. The errors assigned are:

1. In rendering judgment for the defendant.
2. In sustaining the motion to quash for the reasons set forth in the motion.
3. In denying the application to amend.
4. In confirming the motion to quash.

There is really but one question in the case, and that is whether the writ and other papers contain a valid description of the property sought to be replevied. We cannot take judicial notice that the words and abbreviations used have a well-understood meaning with those who have to do with such articles. There are abbreviations in such common use that courts take judicial notice of their meaning, and determine it without proof. Glenn v. Porter, 72 Ind. 525; Belford v. Beatty, 145 Ill. 414 (34 N. E. 254); Keith v. Sturges, 51 Ill. 142; Salisbury v. Shirley, 66 Cal. 223 (5 Pac. 104); United States Express Co. v. Keefer, 59 Ind. 263; Frazer v. State, 106 Ind. 471 (7 N. E. 203); South Missouri Land Co. v. Jeffries, 40 Mo. App. 360; Moseley’s Adm’r v. Mastin, 37 Ala. 216. See Ripley v. Case, 78 Mich. 126 (43 N. W. 1097, 18 Am. St. Rep. 428), where the court took judicial notice that the abbreviation “ M. C. R. R.” is the recognized name of the Michigan Central Railroad. There are others perhaps none the less certain in their meaning, to those who understand them, than those involved in the cases cited, but which are not in such common use as to make them the subjects of judicial notice, but which, nevertheless, are susceptible of proof, and parol testimony is admissible to explain such meaning. Barry v. Coombe, 1 Pet. 653; U. S. v. Hardyman, 13 Pet. 176; Shattuck v. People, 5 Ill. 477; Rowley v. Berrian, 12 Ill. 200; Sheldon v. Benham, 4 Hill, 129 (40 Am. Dec. 271); Collender v. Dinsmore, 55 N. Y. 200 (14 Am. Rep. 224); De Lavallette v. Wendt, 75 N. Y. 579 (31 Am. Rep. 494); Barton v. Anderson, 104 Ind. 578 (4 N. E. 420 ); Hite v. State, 9 Yerg. 357. While it is possible that an alleged description may be void because it does not describe anything, that cannot be said of every description where a court may not understand the meaning of the term used. If it actually does stand for something, and is so known and understood by the parties, it is enough; and this should not be determined and the proceedings quashed upon a preliminary motion, without an opportunity being given to show such fact. Indeed, in such case it may raise a proper question of fact for a jury. . Cobbey, Repl. § 554.

It is obvious, therefore, that the question should not have been summarily disposed of on motion. The writ states that “the following goods and chattels,” naming them as above, are detained by the defendant. The court should not assume that these abbreviations are not lawful names for such goods and chattels, especially where it can be proved that they have been bought and sold under such names. It is held in many cases that a description is sufficient if it can be made definite by pointing out the property. Cobbey, Repl. § 547; Farwell v. Fox, 18 Mich. 166; Sexton v. McDowd, 38 Mich. 148; Bolton v. Nitz, 88 Mich. 357 (50 N. W. 291). These decisions presuppose an opportunity to make the description definite by proof, and necessarily preclude the quashing of the writ upon preliminary motion in a case plainly susceptible of proof. This is not the first time that such descriptions as these have been used. See Reeder v. Moore, 95 Mich. 594 (55 N. W. 436). In that case, however, the chattels were otherwise designated. It was erroneous for the court to quash this writ upon motion.

Counsel for the appellee offer several technical objections to the consideration of this question, but we think they should not prevail. The first and second assignments of error show that the decision of the motion to quash was complained of, and the record shows that nothing was involved in that motion but the sufficiency of the description (substantially identical in all the papers) upon the face of the record. The case is ruled by Conely v. Dud ley, 111 Mich. 122 (69 N. W. 151). Error affirmatively appears upon the record.

Again, it is urged' that there are no exceptions, and that no bill of exceptions is returned. It is not a case where exceptions and a bill of exceptions are required. There was no trial; not even an issue was joined. The writ brings up the files and journal entries, and if from these error appears it is sufficient.

The judgment is reversed, with costs, and the record will be remanded for further proceedings.

The other Justices concurred.