author: Grant, J.

text:
    McGEE v. WALKER.
    Estates of Decedents — Emblements.
    As between the heirs and the administrator, the latter is entitled to crops growing on lands of the deceased.
    Appeal from Kent; Adsit, J.
    Submitted May 3, 1895.
    Decided October 1, 1895.
    Bill by Richard McGee against Jacob W. Walker, administrator of the estate of Bernard McGee, deceased, to restrain the defendant from interfering with complainant’s possession of certain lands. From a decree for complainant, defendant appeals.
    Reversed.

      Maher & Salsbury, for complainant.

      Turner & Carroll (Joseph Kirwin, of counsel), for defendant.
   Grant, J.

This is another suit growing out of the same transaction stated in McGee v. McGee, 105 Mich. 602. After that suit was instituted, and a preliminary injunction issued to restrain the defendants from interfering with the possession of complainant to the real estate described in the deeds to him, he filed this bill, setting forth that the defendant, as administrator of the estate of Bernard McGee, had included the growing wheat upon his land in the inventory, and had appraised it as part of said estate, and claimed the right to the possession and control of the land, and prayed for an injunction. The defendant answered, claiming the crop of wheat, and praying that it be decreed to be a part of the assets of said estate. A preliminary injunction was issued, which, upon the hearing, was made perpetual.

The principal controversy over this land was decided in McGee v. McGee, the result of which is to leave the title in the heirs. Between the heirs and the administrator, the latter is entitled to the growing crop. Crosw. Ex’rs & Adm’rs, § 349. In such case the rule in Rough v. Womer, 76 Mich. 375, has no application.

The decree is reversed, with costs of both courts to the defendant.

Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    CAMPBELL v. HUDSON.
    1. Plea in Abatement — Sufficiency—Abuse of Process.
    Pleas in abatement setting up an abuse ol the process of the court are to be treated as meritorious, and not merely dilatory or captious, and as such they should be liberally construed, A plea, therefore, alleging that defendant, u, non-resident, was “ decoyed” into the county where suit is brought, at the instigation of the plaintiff, for the purpose of obtaining service upon him, is sufficient.
    2. Writ of Error — Plea in Abatement — Demurrer—Judgment.
    A writ of error will lie from an order overruling a demurrer to a plea in abatement, since such order is in effect a final determination. The proper practice, however, is to enter a judgment quashing the writ to which the plea is interposed.
    Error to Eaton; Smith, J.
    Submitted April 17, 1895.
    Decided October 1, 1895.
    Case by Ella Campbell against Lester S. Hudson for malicious prosecution. From an order overruling a demurrer to a plea in abatement, plaintiff brings error.
    Affirmed.

      Smith, Lee & Day and William A. Fraser, for appellant.

      M. V. Montgomery, for appellee.
   McGrath, C. J.

This cause comes here upon a writ of error from a judgment of the circuit court for the county of Eaton, overruling a demurrer to a plea in abatement. The plea alleges, in substance, that defendant, a resident of Ingham county, was decoyed into Eaton county at the instigation of the plaintiff for the purpose of' obtaining service upon him of a copy of the declaration. After the allegations of residence in Ingham county at the time of the service and hitherto, and negativing residence in Eaton county, the plea avers that—

“Said defendant was decoyed into- said county of Eaton, and, as said defendant is informed and believes, by the instigation and direction of said plaintiff, upon the pretense that he, said defendant, was wanted in said county of Eaton by a man who had with him, said defendant, some important matter of business; and that, at the time of the service of the copy of the declaration on file in this case upon him, said defendant, he, said defendant, was within said county of Eaton solely by reason of the invitation of said plaintiff, through said letter so instigated and inspired by her; and that service of said copy of said declaration in this cause upon him, said defendant, was procured only by his h-aving been so induced by the writer of said letter in behalf -of said plaintiff to go into said county of Eaton; and that he, said defendant, did not, and has not, and never has, consented to the service of said' copy of said declaration, nor has said defendant ever consented to be sued in this cause, nor has he in any way submitted himself to the jurisdiction of the circuit court for the county of Eaton.”

The plea concludes as follows:

“And so this defendant avers that said service of said -copy of said declaration was made upon him, and his presence in said county of Eaton was procured, by and through the instigation of said plaintiff, by a trick and by fraud, and for the sole and only purpose of .securing .said defendant’s presence in said county of Eaton, so that service of said copy of said declaration might be made upon him, as defendant is informed and verily believes. And all these things said defendant is ready to verify.
“.Wherefore he, said defendant, prays judgment if said plaintiff ought to be answered to her said declaration.”

The causes of demurrer assigned are as follows:

“1. For that the said plea, admitting service of the -declaration in this cause, does not show unto the court sufficient cause why said defendant should not answer to the said declaration.
“2. For that the said plea, in -averring that said defendant was decoyed into said county of Eaton, only .avers a conclusion, and sets forth ho facts.
“3. For that the said plea, in averring the belief of the defendant that defendant was decoyed into tbe county of Eaton at tlie instigation and direction of the plaintiff upon a certain pretense that the said defendant was wanted in the county of Eaton by a man who had important business with the defendant, only states a conclusion, and avers no facts sufficient to maintain said plea.
“4. For that the said plea does not set forth, exhibit, or show unto the court here any sufficient fact or facts from which the court can determine that the service of said declaration upon the defendant was improperly made, or that the defendant was decoyed into the county of Eaton by a trick and by fraud, in order to obtain service of the declaration in said cause.
“5. For that the said plea is insufficient, and fails to state any facts to the court sufficient to show that the said defendant was not lawfully served with a declaration in this cause, and the prayer of said plea is based upon conclusions averred in the plea, and not on facts sufficiently stated; and also that the said plea is in other respects informal, uncertain, and insufficient.”

Counsel for appellant do not attempt to point out any theory, consistent with the allegations of the plea, upon which the service might be sustained, or any inference that is not rebutted by the averments of the. plea. The allegation that defendant was decoyed into the county of Eaton is a statement of fact. It cannot be said to be the mere inference of the pleader. The word “decoyed” is synonymous with “inveigled.” In Metcalf v. Clark, 41 Barb. 45, the allegation in the motion was that defendant had been, “through the instrumentality of the plaintiff or of those acting in his behalf, inveigled into the State for the purpose of effecting service upon him of the summons in this action.” In Higgins v. Dewey, 13 N. Y. Supp. 570, the averment was that defendant “had been inveigled by plaintiff to come within the jurisdiction of the .court.” The question of the sufficiency of this averment is discussed by the court in the latter case, and the court say: “To inveigle, in a legal sense, is to induce a party, to come within the jurisdiction of the court, by some scheme, subterfuge, fraud, trick, device, or misrepresentation, that he may be served with process.”

It is not necessary that the evidence should be set forth in the pleading, or to state circumstances which merely tend to prove the truth of the fact stated. “The dry allegation of the fact, without detailing a variety of minute circumstances which constitute the evidence of it, will suffice.” 1 Chit. PI. chap. 3, pp. 214, 225. The same rules do not apply to a plea as to an affidavit for a capias. The statement of facts must be sufficiently complete and certain, so that the conclusion of law prayed for may be predicated thereon. A plea in abatement must be so complete and certain that the court can see that no answer can be made to its allegations but a denial of their truth or sufficiency. 1 Chit. PI. p. 446. But pleas involving the abuse of the process of the court are not regarded with the same strictness as pleas setting up a mere failure of process or the jurisdiction of the court. They are not treated as captious or dilatory pleas, but as meritorious. Puter. PI. & Prac. p. 151. The highest degree of certainty is required only in such pleas as are odious or unfavorably regarded in law. Dilatory pleas are so regarded, because the object is to defeat suits upon grounds unconnected with the merits. Gould, PI. p. 76, § 58.

In Copas v. Provision Co., 73 Mich. 541, 545, it is said:

“Courts will not permit jurisdiction of non-residents to be acquired by fraud, either in procuring personal or constructive service of its process. * * * And while we think a plea in abatement would have been the better practice, we are not prepared to hold that it could not be set up, as in this, case, in a notice of defense under the general issue. Here there has not been a failure of proper process. In such a case the failure affects only the defendant, while here the fraud affects the integrity of the process of the court.”

In Wallace v. Clark, 3 Woodb. & M. 359, it was held that a plea to the jurisdiction, on the ground that a demand had been colorably assigned in order to evade-a discharge under the insolvent law, was not to be treated as dilatory and captious, like some pleas in abatement, but was to be liberally construed.

In Scott v. Waller, 65 Ill. 181, the plea, after alleging a residence in McLean county, and negativing a residence in Cook county, alleged that defendant had “not-been found or served with process in said county of Cook, or elsewhere than in said county of McLean,” and it was held good, upon the ground that it was not a plea to the jurisdiction, but in abatement of the writ only. Kenney v. Greer, 13 Ill. 432; Hamilton v. Dewey, 22 Ill. 490; Humphrey v. Phillips, 57 Ill. 132.

In Hurlburt v. Palmer, 39 Neb. 158, a plea that all the defendants were, at the time of the commencement of the action, residents of another county; that by the abuse of the criminal process of the State a codefendant was taken from a jail in the county where all the defendants resided to the county in which the suit was brought, and there served with process, and thereafter returned to said jail; and that such abuse of criminal process and service was resorted to for the purpose of obtaining jurisdiction of the persons of the defendants who so pleaded, — was held good.

As is said in Chubbuck v. Cleveland, 37 Minn. 466, the objection, strictly, is not that the court has not jurisdiction of the person, but that it ought not, by reason of the alleged fraud, to take or hold jurisdiction of the action.

In Townsend v. Smith, 47 Wis. 623, 626, the court say:

“This remedy is not given upon the ground that, by reason of the fraud, the court did not get jurisdiction of the person of the defendant by the service, but upon the ground that the court will not exercise its jurisdiction in favor of the plaintiff who has obtained service of his summons by unlawful means.”

The plea being a meritorious one, the same rules are applicable thereto as to other pleadings of that character, and it must be regarded as sufficient.

The court below did not enter judgment, but merely entered an order overruling the demurrer, and it is contended by appellee that the order was not final, and therefore not appealable. The order, although not in form final, was in substance and effect a final determination, and the court should have entered judgment quashing the writ. Puter. PI. & Prac. 150; Gould, PI. 277; Steph. PI. 134; Kerr v. Willetts, 48 N. J. Law, 78; Clark v. Latham, 25 Ark. 16; 1 Enc. Pl. & Prac. 30.

The judgment is affirmed.

The other Justices concurred.


author: McGrath, C. J. Grant, J.

text:
    CITY OF GRAND RAPIDS v. BENNETT.
    1. Eminent Domain-Necessity — Evidence.
    In proceedings to condemn land for the opening of a street, opinion evidence as to the necessity for the proposed improvement is inadmissible.
    2. Same — Opening Street Across Railroad — Measure op Damages;
    Where a street is opened across a railr >ad right of way, an exclusive use is not acquired by the public, and therefore the value of the land is not a proper measure of damages Per McGrath, C. J.
    3. Same — Damages—Form op Verdict.
    In the absence of a statutory requirement, the jury in condemnation proceedings need not itemize the damages awarded. Per McGrath, C. J.
    4. Same — Opening Street Across Railroad — Damages—Safety Gates.
    The compensation to be made to a railroad company on the opening of a street across its tracks should include the expense of constructing, maintaining, and operating a gate or tower, if the jury find the same to be necessary for the protection of the Dublic. McGrath, O. J., dissenting.

      Appeal from superior court of Grand Bapids; Burlingame, J.
    Submitted May 3, 1895.
    Decided October 1, 1895.
    Proceedings by the city of Grand Bapids under 3 How. Stat. § 300-la et seq., against Joseph A. Bennett and others, to condemn land for the opening and ex .'nsion of Campau street. Bespondents appeal from an order confirming the verdict of the jury.
    Reversed.

      More & Wilson, Hatch & Wilson, T. J. O’Brien, and J. H. Campbell, for appellants.

      William Wisner Taylor, for appellee.
   McGrath, C. J.

This is a proceeding to open Campau street, now a cul-de-sac, through to Ferry street.

Error is assigned upon the admission of the opinions of witnesses as to the necessity of the proposed opening. Eight witnesses were asked one of the following questions :

“What have you to say about its being or not being a necessary public improvement?
“From your knowledge of that part of the pity, and your acquaintance with its past and present condition and its present growth, state to the jury what reasons you have why the opening of this street is or is not a necessary public improvement, if you have any reasons to give.”

One witness answered as follows:

“Well, sir, I consider the opening of Campau street as the next improvement to the taking of Grab Corners in the center of the city. I am satisfied, from my knowledge of the neighborhood and the condition of the property and the business there, that it is a necessary public improvement. I believe that the people who are directly interested are sufficient, enough of them, with those who use the street, to call them part of the public at least; and I think, for the interests of the city in the west, with those thoroughfares established and used, that it should be opened.”

Another said:

“Well, I consider the necessity of the improvement, in the first place, as a general necessity to the public; and, on the other hand, it is a necessity from the property interests down there on that street, on this end and on the other, and also the heavy traffic from the west and north-west part of the city to the south-west part or to the depots, as you might say. I have noticed, — I have done business on the street for the last eight or nine years, and I have noticed that the heavy traffic has almost invariably gone around that way, seeking an outlet to the depots, avoiding Monroe street. That is another reason why I consider it a public improvement. And, of course, the property holders down there, they have interests there that require an opening up of the street. It is a necessity, the same as any other street is, as I consider it, in any other part of the city.”

Another answered as follows:

“That property down there is quite central property. It is not residence property; it is business property. And Campau street is partly opened now, and the future of the city will demand that it must be opened some time; and the property is destined to be built over,is being built over all the time with buildings, and this space that is now sought to be taken for a street will be built on; and when it becomes a necessity, which can no longer be put off, to open the street, it is going to cost the city a great deal more to open it than it is at the present time. And another thing, the street should be opened, and the grade line established, so that people building on either side of the street could know where they are setting their buildings. One building should not be set up above another; there should be some authority — some regularity — in regard to the establishment of that class of buildings; and we all know very well, if this ground was not platted —Now if there is a plat made and presented to the board of public works, with the street half opened, they would throw it out in a moment; they would say that the streets must be dedicated to the public. It is a public necessity.”

It was the province of the jury to determine the question of the necessity for the opening. It was competent to show the location; that it was in the central and business portion of the city; that there was a great deal of heavy traffic through that district; that other parallel streets, through which traffic was forced, were occupied by street-car tracks; that the traffic often became congested in existing streets; that there was a heavy grade in such streets; that the grade was much less on the line of the proposed street; that business blocks were being erected and other improvements made in the locality; and other facts from which the necessity for the street might properly be inferred. The objection to the questions put is that they were calculated to draw out, and did actually bring out, not only opinions, but arguments, rather than facts. There is ruo valid reason why the jury, aided by arguments coming from counsel, rather than from witnesses, cannot in such a case form an intelligent opinion upon the question of the necessity for the taking without the aid of opinion evidence. City of Detroit v. Brennan, 98 Mich. 338.

The proposed street crossed the right of way of the Grand Rapids & Indiana Railroad Company, and error is assigned on behalf of that company. The court instructed the jury that—

“The damages done to the railroad company by having a highway run across their right of way must necessarily include all the additional expenses entailed upon them by reason of such crossing, which, in a city like this or in this city, must necessarily involve considerable outlay in making and keeping in repair the crossings convenient and safe, putting in gates and towers, if such you find to be necessary, and providing guards against accident, or, in the language of Judge Sherwood in another case somewhat similar to this, as far as the railroad interests are concerned, that, in addition to the damage for the use of the land occupied by a street in crossing this right of way, there should be added to that any extra expense created by the use of such right of way for the street in the ordinary use of respondent’s road, and such other damage as it may sustain for injury to its track, right of way, and franchises occasioned by the crossing, and which may properly be considered as the natural, necessary, and approximate cause thereof. The rule here stated does not include expenses made necessary in order to comply with the police regulations of the State or municipality, but such damages only as arise in making the structural changes necessary to comply with statutory regulations, which must necessarily continue in the future operation of the respondent's road, as well as full value for all lands taken that are not included in their right of way, and all damages caused thereby to their remaining premises, if any such you find. I have referred above to gates and towers. Among other structural changes in this case may be found the putting down and keeping in repair of approaches to and crossings of this right of way, and the tracks thereon, of planks or other suitable material, the making and putting in of sidewalks, such structural changes as the law requires at street crossings in this city.
“There is some little testimony, I believe, in regard to one of the side tracks being used for storing cars. In addition to such other damages, you should, in fixing just compensation, take into consideration the fact, if you find by the evidence that it exists, that the railroad company has now a side track upon which it sometimes stores its cars, upon its right of way upon this proposed street crossing, and allow such compensation for the interrupting of such use of such side track for storage purposes as will fully compensate the company for the interference therewith. In short, you are to render such just compensation for all damages to the respondents as will leave them all just as well off pecuniarily as you now find them. * * *
“You will determine whether or not it will be necessary, for the safety of persons crossing the tracks, that gates shall be maintained in the street on each side o>f the tracks. If you find that it will be necessary to have such gates, you must allow to the company the cost of such gates and apparatus to operate the same. If you find that such gates will be necessary, and that they should be operated by a tower at Oampau street, and not from the tower now standing at Waterloo street, you must allow the cost of the tower.”

The following is a sketch of the land sought to be taken:

The railroad property is parcels numbered 2 and 3. The company operates four tracks, which occupy the southerly portion of No. 3 and all of parcel 2 of the railroad property. Counsel for the railroad company insist that the railroad company is entitled to the full value of parcels 2 and 3; that the value of the land is the only measure of compensation under the Constitution. There is no force in this contention. The right of a railroad company to the exclusive use of its right of way is unquestioned. That is the property right which is sought to be taken. The property of a railroad company may be taken for public use, whenever the necessities of the public require it, to an extent not absolutely necessary to successfully carry out the object and purposes of the franchises granted to the company; and the land occupied by the company as its right of way may be taken under the power of eminent domain, subject to the single limitation mentioned, to the same extent as the land of any private citizen, for either the use of another company or for a public highway. Grand Rapids, Newaygo, etc., R. Co. v. Grand Rapids & Ind. R. Co., 35 Mich. 265; Toledo, etc., R. Co. v. Detroit, etc., R. Co., 62 Mich. 564. The public do not by thé condemnation proceedings acquire an exclusive use, but a concurrent use, and the railroad company is deprived of the exclusive use. There is no more difficulty in determining the 'compensation to be awarded than in case of a railroad crossing or in case of an added burden imposed upon a highway or street. In neither case would the value of the land be the measure of damages.

Counsel requested the court to instruct the jury that they should, in their verdict, specify separately the item or items of damages awarded: First, the value of the lands; second, damage to that portion of the whole parcel not taken; third, value of improvements taken; fourth, cost of improvements made necessary by the opening of the street, — in the case of the railroad company, the sum allowed for crossings, the sum allowed for gates, the sum allowed for tower, and the sum allowed for repairs and maintenance of crossings, gates, and tower, and pay of operator. We know of no rule of law requiring the jury to itemize the compensation awarded or damages found. In City of Detroit v. More, 76 Mich. 515, it was held that the jury could not offset the benefits in a street-opening proceeding against the compensation awarded, and simply report the balance found; but thát was under a statute requiring a separate determination and report of each. Act No. 354, Local Acts 1885, p. 343.

It is contended by counsel for the railroad company that the company is entitled to compensation for the expenses it will be put to in the construction and operation of a gate or tower. Grand Rapids v. Grand Rapids, etc., R. Co., 58 Mich. 641, and Commissioners of Parks v. Chicago, etc., R. Co., 91 Mich. 291, are relied upon to sustain this contention; also Commissioners of Parks v. Michigan cent. R. Co., 90 Mich. 385. Neither of these cases contains any discussion of the question here presented. In the first case cited, no claim was made for a gate, tower, or flagman, nor was any testimony introduced relative to any such possible or probable necessity. In the subsequent oases, simple reference is made to the language used in that case. The statute 'requires the maintenance of crossings, and the construction and maintenance of cattle guards and warning signs; and the language used in that case must, I think, be held to apply to such safeguards as are required by law to be maintained by railroad companies. The determination of the jury imposes no obligation upon the railroad company, and the company is under no obligation, to construct gates or towers at crossings, or to maintain them, unless ordered so to do by the railroad commissioner. I find no authority elsewhere for the allowance of compensation in condemnation proceedings for either probable or possible contingencies. The authorities all hold that the damages must be real, tangible, and proximate. In the case of Old Colony, etc., R. Co. v. Inhabitants of Plymouth Co., 14 Gray, 155, it was expressly held that, in case of the opening of a street across the right of way of a railroad company, the latter was entitled to compensation for the expense of erecting and maintaining signs and cattle guards at the crossing, and for keeping the same in repair, but not on account of its liability to be compelled by the county commissioners to build a bridge for the highway over its track. In Searle v. Railroad Co., 33 Pa. St. 57, it was held that contingent future disadvantages should not be taken into consideration as an element of damages, in a proceeding to condemn lands for railway purposes. In Peoria & Pekin Union R. Co. v. Peoria & Farmington R. Co., 105 Ill. 110 (10 Am. & Eng. R. Cas. 129), and in Chicago, etc., R. Co. v. Joliet, etc.,R. Co., 105 Ill. 388 (14 Am. & Eng. R. Cas. 62), the court held that the damages sustained by one company, in case of a crossing by another, by the delay, inconvenience, and trouble in stopping before crossing, was not a proper element for consideration, nor was the increased danger to traffic. Reference must be had to the immediate consequences. Sater v. Plank-Road Co., 1 Iowa, 386; Brannin v. Johnson, 19 Me. 361; Henry v. Railroad Co., 2 Iowa, 288; President, etc., of Schuylkill Nav. Co. v. Thoburn, 7 Serg. & R. 411; Watson v. Railroad Co., 37 Pa. St. 469; Troy & Boston R. Co. v. President, etc., of northern Turnpike Co., 16 Barb. 100; Richmond & Lex. Turnpike Road Co. v. Rogers, 1 Duv. 135; Stone v. Railroad Co., 68 Ill. 396; White River Turnpike Co. v. Vermont Cent. R. Co., 21 Vt. 590; Eaton v. Railroad Co., 51 N. H. 504; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 30 Ohio St. 604.

The present case affords an illustration of the attempted application of the rule contended for by appellants. Testimony was offered respecting the cost and expense of erecting and maintaining a gate, and of the wages of a gateman, and also the cost of constructing, maintaining, and operating a tower; but there has been no voluntary determination by the company as to which it shall employ, and there is no obligation upon its part to maintain either, and it may never construct either gate or tower; yet counsel insist that the measure of its damages is the cost of constructing and maintaining a gate, and a sum of money the interest upon which will pay the expense of a watchman for all future time. I am not prepared to say that, in a case where the testimony tended to show that the protection of the company’s property necessitated a gate, flagman, or tower, that question should not be presented to the jury, and an award properly made covering such expense; but the provisions of the statute relating to gates and flagmen are designed, primarily, at least, for the protection of the public in the use of the street or highway, and the testimony in the present case relating to the possible necessity for a gate or flagman wns predicated upon that danger, and not upon the possible need of protection to the company’s property. There was no testimony tending to show such an exposure to danger of railroad property as would have warranted the jury in placing the necessity for gates on a flagman upon that ground, nor is such danger so apparent as to obviate the necessity for. proof upon that question. The rule laid down in the cases to which counsel have referred should be limited to such expense as the statute makes imperative.

For the error in the admission of the opinions referred to, the judgment must be reversed, and a new trial awarded.

Grant, J.

We concur in the opinion of our brother,

the Chief Justice, upon the question of the opinion evidence. We hold that the question of damages is ruled by the following cases: Grand Rapids v. Grand Rapids, etc., R. Co., 58 Mich. 641; Commissioners of Parks v. Chicago, etc., R. Co., 91 Mich. 291; Commissioners of Parks v. Michigan Cent. R. Co., 90 Mich. 385.

Long, Montgomery, and Hooker, JJ., concurred with Grant, J.


text:
    HODGES v. PHINNEY.
    Lire Tenant — Dower—Payment or Mortgage — Contribution— Interest.
    It is the duty of a life tenant to pay the interest on incumbrances existing at the time the tenancy was created, and, in case the premises are redeemed, to contribute to the payment of the principal according to the value of his interest in the land. A dowress, therefore, who purchases and seeks to foreclose a mortgage covering lands admeasured to her as dower, the amount of which mortgage was deducted from the value of the land in making the apportionment, should be charged with the present value of an annuity for the remainder of her life equal to the annual interest on the mortgage debt, to be computed, however, at the legal rate of interest, irrespective of that stipulated in the mortgage.
    Appeal from Gratiot; Daboll, J.
    Submitted June 4, 1895.
    Decided October 1, 1895.
    Bill by Amelia Hodges against Ansel H. Phinney, David Robinson, Jr., and Harriet F. Newcomb, to foreclose a mortgage. From a decree for complainant, defendant Newcomb appeals.
    Reversed.
    The agreed facts in this case are as follows: The bill was filed to foreclose a mortgage executed by Alvin Hodges and wife, the complainant, to William Dutton, August 27, 1877, for $1,200, due five years from its date, with interest payable annually at ten per cent, per annum. Interest was paid thereon to August 27, 1883, and indorsed on the mortgage. Alvin Hodges died intestate March 8, 1882, and left surviving him his daughter, Estella M. (his only child and sole heir), and his widow. Estella M. died without issue during the administration of the estate, leaving her mother, complainant, the sole heir of the estate. May 7, 1884, the 80 acres of land incumbered by this mortgage was duly set off as such widow’s right of dower in 440 acres of land of which her husband, Alvin Hodges, died seised. October 13, 1884, complainant, with money belonging to her, and in no way belonging to the estate of her husband, purchased this note and mortgiage of the mortgagee, William Dutton, and took from him an assignment thereof to herself, and caused the assignment to be duly recorded.
    July 5, 1887, the 80 acres so set off to complainant for her dower, and incumbered by the mortgage, was by the administrator of said estate duly sold to William L. Baker for $1,500, subject to complainant’s right of dower, and also subject to her mortgage in this cause. On the same day, — July 5, 1887, — said William L. Baker conveyed by quitclaim deed to Miles W. Bullock, for $2,000, his interest so acquired at said administrator’s sale in the 80 acres of land so set off to complainant as dower. On the same day Bullock and wife executed two mortgages on this same land, — one to David Bobinson, Jr., for $500, and one to Charlotte Tompkins, for $1,500. These deeds and mortgages were recorded July 15th. February 1, 1889, Miles W. Bullock amd wife, by quitclaim deed, for $1, conveyed the 80 acres of land to Ansel H. Phinney, subject to the Bobinson and Tompkins mortgages. Charlotte Tompkins foreclosed the mortgage from Bullock to her, in chancery, without making complainant herein a party to the foreclosure suit, and she (Tompkins) received a commissioner’s deed for the 80 acres March 14, 1892. Charlotte Tompkins died August 8, 1892, leaving Harriet F. Newcomb her sole devisee and legatee.
    The estate was insolvent. If appears from the report of the commissioners assigning dower that they appraised the real estate at the sum 'of $13,400; that there were loans upon it to the amount of $3,850, leaving an amount over the loans of $9,550; that they set off to complainant, as dower, this 80 acres, which they valued at $3,183.33 aside from this mortgage loan, then amounting to $1,250.

      W. E. & J. H. Winton, for complainant.

      Luke S. Montague, for appellant.
   Grant, J.

(after stating the facts). The question, as stated by the complainant’s counsel, is: Could she buy the mortgage upon the land admeasured to her as dower, and enjoy all the rights thereunder that Dutton, the original mortgagee, had? As stated by the defendant’s counsel the question is: Is not a widow endowed, owning a mortgage covering the land set off to her as dower, bound to keep the interest down?

It is the duty of the life tenant to pay the interest on incumbrances existing at the time the tenancy was created. A dowress forms no exception to the rule. 4 Kent, Comm. 74; House v. House, 10 Paige, 158. In the case before us the entire real estate was mortgaged. One-third of it was assigned to the complainant as her dower, 'burdened with one-third of the entire mortgage debt. The mortgage was past due. If we adopt the complainant’s view, she can recover the entire amount of the mortgage against the remainder-man, - and her estate will be enlarged to the extent of the payment. In that event the land in which she was endowed would be worth about $4,400, instead of $3,100, which was the value assigned to her. Such holding would be not only contrary to law, but to equity as well. Whether the life-tenant or the remainder-man redeems or takes an assignment of the! mortgage, each must contribute to the payment of the principal according to the value of his interest. Much conflict formerly existed among the authorities upon this point, but the well-settled rule now is that the dowress must pay the present value of an annuity based upon the annual interest which the law requires her to pay. The • rule is thus stated in an early and leading case:

“How is the plaintiff [a dowress] to contribute ratably to discharge the mortgage debt? If she was to pay one-third of the debt and interest (exclusive of costs) paid by the defendant, together with interest on that one-third from the time the defendant paid it, there could be no •doubt that this would be, to the defendant, a satisfactory contribution. But the plaintiff has only a life interest in the dower, and payment of the entire one-third of that debt would be unjust. It would be making her pay for a life estate equally as if it was an estate in fee. The more accurate rule would appear to be that she should 'keep •down’ one-third of the interest -of the mortgage debt, by paying, during her life, to the defendant, the interest of one-third part of the aggregate amount of the principal and interest of the mortgage debt paid by the defendant, to be computed from the date of such payment. But, as it would be inconvenient and embarrassing to charge her with such annuity, then let the value of such annuity from the plaintiff (her age and health considered) be ascertained by one of the masters of this court, and be deducted from the amount of the rents and profits so coming to her; and, if that value should exceed the amount of the rents and profits so coming to her, that then the residue of such value be deducted from the dower to be assigned to her, out of the house and land mentioned' in the bill. The question is, if an estate in fee in one equal third part of the premises ought to pay the one equal third part of the mortgage debt and interest paid by the defendant, then what proportion ought the plaintiff’s life estate in that one-third part to pay? I apprehend the value of such an annuity would be that result.” Swaine v. Perine, 5 Johns. Ch. 482. .

In chapter 24,1 Scrib. Dower, the subject will be found very fully and ably discussed, and the authorities fully cited.

This annuity cannot, however, be based upon the rate of interest contained in the mortgage, but must be based upon the legal rate of interest at the time the first decree' is rendered. The contest is no longer between the mortgagee and those whose duty it is to pay, but between the latter, who are required to contribute, and as between whom there is no agreement to be bound by the rate fixed in the mortgage. Their relation is none other than that where one pays money for the benefit of another without any agreement as to the rate of interest. The legal rate of interest (6 per cent.) must control.

The decree will be reversed, with costs, and the case remanded to the court below, with instructions to enter a final decree in accordance with this opinion.

The other Justices concurred.


author: Montgomery, J. Grant, J.

text:
    FELL v. NEWBERRY.
    1. Breach of Contract — Damages—Loss of Profits.
    Loss of profits arising from the breach of a contract may be recovered if they were within the contemplation of the parties at the time the contract was executed, and if they can be determined with a reasonable degree of certainty, so as not to fall within the rule precluding a recovery of speculative or conjectural damages.
    3. Same.
    Defendant, the owner of a shingle mill, entered into a contract with plaintiff whereby the latter was to operate the mill for a specified time, furnishing his own help, and defendant was to supply the mill with timber, and pay plaintiff a stipulated price per thousand for cutting the shingles. Upon defendant’s refusal to permit plaintiff to run the mill, suit was brought for breach of the contract. Held, that plaintiff was entitled to recover the profits that he might have made under the contract had defendant not prevented its performance. Grant, J., dissenting.
    3. Same — Overruled Oases.
    The case of Taleott v. Crippen, 53 Mich. 633, was overruled by Leonard v. Beaudry, 68 Mich, 313, so far as the cases are in conflict.
    Error to Emmet; Adams, J.
    Submitted June 4, 1895.
    Decided October 1, 1895.

      Assumpsit by Sylvester O. Fell against Jay L. New-berry for work and labor, and for damages in being prevented from performing a sawing contract. Plaintiff brings error from a judgment in his favor for less than the amount claimed.
    Reversed.

      Lyon & Looting, for appellant.

      B. T. Halstead and A. L. Cruickshank, for appellee.
   Montgomery, J.

The facts are sufficiently stated in Ihe opinion of Mr. Justice Grant. The question involved is whether the plaintiff is entitled to recover as damages the amount of such profit as he might have made by per forming the contract if performance had not been prevented by the defendant.

The general and simplest rule of damages is that the injured party is entitled to compensation for the loss sustained. In actions on contract this rule is so far qualified as to limit the recovery to such damages as can be said to have been in the contemplation of the parties. A further limitation to the general rule is that damages which are speculative or conjectural cannot be recovered. To this class belong profits that cannot be fairly estab lished by proof, not because the loss of profits should not be compensated, but solely because of the inability to estimate or determine the amount. It has been frequently held by this court that when the breach of contract results in the loss of profits to .the plaintiff, and the contract is one in which a profit accruing to the plaintiff was contemplated, the amount of such profit is recoverable. Atkinson v. Morse, 63 Mich. 281; Leonard v. Beaudry, 68 Mich. 312, 80 Mich. 163; Burrell v. Salt Co., 14 Mich. 34. See, also, 5 Am. & Eng. Enc. Law, 32, note. In the case of Allis v. McLean, 48 Mich. 428, it was held that, for the failure to furnish machinery to the owner of a sawmill as agreed, the owner could not recover for profits which he would have made in the general conduct of the lousiness. Mr. Justice Cooley, speaking of the profits claimed in that case, said:

“They depend on many circumstances, among which are capital, skill, supply of logs, supply and steadiness of labor; and one man may fail while another prospers, and the same man may fail at one time and prosper at another, though the prospective outlook seems equally favorable at both times.”

It will be seen that the case of Allis v. McLean was not a case in which the plaintiff was proceeding under contract with the defendant or with a third party to manufacture at a stipulated price; and in the precisely analo-

gous case of John Hutchinson Manfg. Co. v. Pinch, 91 Mich. 156, the case of Allis v. McLean was followed. On the other hand, in Leonard v. Beaudry, supra, it was held that the owner of a sawmill, who was defeated of the profits which he might have made under a contract with the defendant, could recover such profits on showing what it would cost him to manufacture the lumber. We think the latter case, if followed, rules the present. There is no element of uncertainty in the present case which there was not in that. The only difference is that in that case the amount of lumber to be cut was fixed, while in the present the plaintiff was entitled to the profits which he might malee by cutting up to the capacity of the mill for a given time. Breakdowns and' interruptions affect the cost in the one case as well as in the other, but this fact Was not in that case, nor should it in this, be deemed an insuperable obstacle to recovery. A workman engaged with a team may meet with an accident to Ms wagon or break a logging chain, but we apprehend that, if this be the only element of uncertainty, he would be entitled to recover the prospective profits >of an employment. The rule ought not to be different in the case of the owner of a mill. In Leonard v. Beaudry, 68 Mich. 322, Mr. Justice Champlin very pertinently said:

“It is a mistake to suppose that sawmill owners are without the protection of the law, or that their business is so hazardous and uncertain that parties dealing with them can violate their contracts with impunity.”

In Petrie v. Lane, 67 Mich. 454, plaintiff failed to show that his mill was not as profitably employed during the season as it would have been by fulfilling the contract.

It may be difficult to reconcile the case of Talcott v. Crippen, 52 Mich. 633, with Leonard v. Beaudry, but, in so far as the two cases conflict, the latter, it must be held, has overruled the former.

Plaintiff was entitled to have the jury consider his loss of profits by the breach of Hie contract.

Judgment should be reversed, and a new trial ordered.

McGrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J.

Grant, J.

(dissenting). This is an action of assumpsit to recover for work and labor performed in repairing a shingle mill for the defendant, and to recover as damages prospective profits which plaintiff claims he might have made if he had been permitted to run the mill for six months under a parol contract made with the defendant.

The contract, as stated by the plaintiff, is as follows:

“The arrangement was that I was to go up to Germfask, and see to getting the mill into running order, and, after it was ready to run, I was to run the mill by the thousand, for six months. I was to hire my own help, and he was to pay me for cutting, by the thousand, one dollar, for the clear, fifty cents for the seconds, and twenty-five cents for culls. That was Mr. Newberry’s proposition. I accepted it at the time I looked the mill over. He was to furnish the mill with stock, and to keep the mill running. He said the parties there with whom he had a contract would stock it, and I said, ‘That is very uncertain;’ and he said, ‘I will see that it is stocked, because I want that mill to run every day until I get my money out of it.’ He said the timber was pine, and it would run three-quarters star. Under the arrangement, I was to furnish the oil and the files and the incidentals. I was to employ the hands. Payments were to be made monthly. The amount of shingles were to be counted up at the end of each month, and the payment was to be made the 15th of the next succeeding month. I was to pile the shingles up in the yard away from the fire. When the mill was about ready to operate, — I had the men all engaged at that time, — I had a conversation with Mr. Newberry in reference to getting a filer, one particular man. He said he thought he could get me a good filer, and made an effort of that kind. I had the men all engaged to operate the mill. Some of them had been employed for quite a while before the mill was ready. Most of them, for a number of days, had been ready whenever the mill was ready. They were all engaged August 14, 1893, and were all there in the neighborhood,handy, where I could find them.”

The mill was ready for operation about August 14th. It was then proposed by the defendant to reduce their contract to writing. They disagreed as to the terms. Plaintiff refused to sign the contract prepared by the defendant, insisting that it was not in accordance with their parol agreement, for the breach of which this action is brought.

Plaintiff’s testimony on the question of damages is as follows:

“I have no knowledge of my own as to the capacity of that mill, as I came away before the mill was run. Based upon my knowledge of the business and my experience as a shingle maker, with the material such as Mr. New-berry agreed to furnish, I would say the capacity of the. mill was from 40 to 50 thousand shingles a day. I saw some of the timber there at the mill. With the timber of the quality it was agreed to be furnished, it would run, I should think, three-quarters stars, — an average of three-quarters stars, — and, of the balance, three-quarters to four-fifths seconds, and the remainder culls, would not be far out of the way.
“Q. Would the proportions of the different classes or qualities of shingles be affected by the manner of manufacturing?
“A. Oh, in a certain degree, yes, sir; but more in timber. It is supposed to be in a workmanlike manner. I know of the skill or ability to manufacture shingles of most uf the crew of men that I had employed, and I got the best men I could for that line of business. For band irons, nails, oil, etc., we figure, as a usual thing, five cents per thousand. That has been my experience. Five cents a thousand would cover it thoroughly. I know what wages I had agreed to give those men who were to run this mill for me. On a basis of 40 thousand, my profit would have been from $15 to $17 per day; that is, including myself and son’s work.”

On cross-examination he testified as follows:

“ I have resided in Petoskey about nine years. I ran a shingle mill in Petoskey about two years. It was a steam mill. The engine in our mill was nothing like as heavy as this mill up there. The power was mot so good power. The other machinery was just about the same make, mostly. We ran from 30 to 35 thousand on an average, but we were running cedar at that time; we did not run pine. The capacity of pine is about a third more than it is cedar. It was five or six years ago that I ran that mill. I could not state how many months I ran during the first year. I think, we ran it more than half of the year. I do not know how many months we ran it the second year. I employed 12 to 14 men about the mill. Sometimes we ran kind of short-handed, and again ran full-handed; but I am speaking of what it requires to run a mill full. Sometimes we cannot get a man that is capable, very conveniently. It has been here, years before, a difficult matter to get a capable man. When I was in business, it was hard to get capable men some parts of the year. I have operated one out near Charlevoix, something like four or five years ago: It was six miles this side of Charlevoix. That mill burned up after I came away from there. I was employed to fake charge of it during the latter part of the time I was there. I went there as a hand in the first place. I worked at different things, mostly cutting off, I think. I was there quite a while during the winter. They had a saw-mill connected with it. We used the same machinery north as we used both at Charlevoix and Petoskey. Since leaving the shingle mill in Petoskey, and up to- the time I went up- north to this mill in question, I have been in the fish business in the summer time. * * * With my experience of mills, this mill had a capacity of about 4() to 45 thousand per day, with a good crew. That would be a good mill. It depends somewhat on the timber. The output would depend upon the mill, the saw, and the sawyer.”

On redirect examination he said:

“Based upon my knowledge and experience in the shingle manufacturing business, and my knowledge and obsc rvation of the mill and machinery at Germfa.sk, I would say that, taking that machinery in good order, when getting ready to run, it would run at least 20 to 25 days in the month.”

Walter Fell, the plaintiff’s son, testified that he had worked in shingle mills for about eight years, off and on; that he considered this a very good one-machine mill; that, based upon his knowledge of and experience in the manufacture of shingles and the observation of other machines, he would say that the capacity of that mill per day, if properly run, was about 40,000; that the timber furnished was good; that while he w'as there the mill made from 38,000 to 43,000; that the average was 40,000; that the quality was very good, running not quite three-quarters stars., and the balance about two-thirds seconds and one-third culls. On cross-examination he testified that a good deal of the time they did not run a full day; that the well gave out, which hindered considerably; that a lot of poor whisky had a good deal to do with it part of the time; that several of the crew were inclined to use a good deal of whisky; and that another reason was on account of the stock. On redirect examination he testified that under good management a mill ought to run at least 20 to 21 days a month.

George Howser, a witness for plaintiff, had worked in similar mills four or five years. His testimony is as follows:

“Q. You must have some ideia, then, of the capacity of that kind of machine?
“A. That depends a good deal on timber, a good deal on men, and a good deal on how the mill is put up.
“Q. How much would you say was the capacity of this mill up there?
“A. Well, I should think that mill, everything in good running order, would cut 40,000 a day right along, average that, kept stocked, and have good machinery, not including stoppages, but just the days it run.
“Q. Whether or not, when properly handled by competent men, it would average that day in and day out, month in and month out?
“A. No; I don’t think it.
“Q. How much would it average, including stoppages and every tiling?
“A. Well, I couldn’t say for that. It is something that is hard to get at. They are a good ways, in that country, from a machine shop. A little thing would shut you down for 2 or 3 days. I should say the capacity of this mill up there, with everything in good running order, would be 40,000 a day. I could not tell the number of days the mill did run. There were days I worked that the mill did not run. We had some trouble with the well after we started up; it ran dry; and then we had to dig a trench to the river, and it was a week or 10 days that the mill stood still while we were fixing that. It would cost somewhere in the neighborhood of $22, counting everything, to operate that mill.
“Q. How much would the gross earnings of the mill be per day?
“A. I have never figured it. Of course, you can’t count on breakdowns. Shingle mills never run steady. They break down. The men get full with too much whisky. That is the great trouble with shingle men. A good deal of the trouble up there after the 14th of August was that the men got full. They got too much whisky. The men would go on a tear once in a while, and would not be able to work. The mill, if properly run, would run about 20 days per month, allowing 5 or 6 days to the month for accidents that naturally happen. Of course, we cannot always tell in a mill, but I should think 5 or 6 days to the month would be sufficient to cover all accidents, or rather breakdowns,” etc.

On cross-examination he testified as follows:

“I have had charge of mills; run them by the thousand, by the day, and by the piece, and every way pretty near. The manufacture of shinglete is not a certain industry at all. I have found it full of chances and possibilities. I have noticed two men who have started out with shingle mills, men who appeared to be of the same qualifications; the one would prosper, and the other would fail. The chances are about the same one way as the other. Whether the man will make money in the operation or not would depend some on the kind of men he had, — whether the men become sick after running the mill, and whether the men are sober and industrious, or the contrary, or the attention or neglect a man would give to the machinery, so as to cause it to break down. If the well fails, the plant stops. The jointer'is the main man in the mill. Another accident that would affect the mill, as to whether it would pay or lose, would be the matter of breakage of machinery. The cost of running that mill was $22 a day. I arrived at that by taking the items, wages, and adding them up, and made a rough estimate of band iron and oil at 25 cents a thousand. We run 10 hours a day during October, November, and December. Jf there was a break, we stopped. The men all got their pay for the day, and the mill lost'it. Of course, I have goit on my book the number of hours I worked.”

The above is all the material testimony on the part of the plaintiff. The. mill was run by the defendant with the same crew that Mr. Fell had engaged. He gave evidence tending to controvert the plaintiff’s claim, and to show that during the time he ran the mill, a period of six months, there was an actual loss of $45, and that the cost of manufacturing exceeded the value of all the shingles manufactured.

It requires no argument to show that the damages claimed are purely speculative and uncertain. Plaintiff did not own the mill, did not lose the use of any capital, was put to no expense in employing men, and recovered for his labor in putting the mill in repair. There is no showing that he lost any time from his customary employment. This, therefore, is not a case of idle capital or idle labor. The law in this State does not permit the recovery of prospective profits under the facts of this case as shown by the plaintiff’s own evidence. Maltby v. Plummer, 71 Mich. 588; Petrie v. Lane, 58 Mich. 527, 67 Mich. 454; John Hutchinson Manfg. Co. v. Pinch, 91 Mich. 156; Talcott v. Crippen, 52 Mich. 635; Allis v. McLean, 48 Mich. 428. The language used in Allis v. McLean, at page 432, is especially applicable to the present case.

It follows that the circuit judge was correct in instructing the jury that plaintiff was not entitled to recover for the loss of profits.

The judgment should be affirmed.


author: Hooker, J.

text:
    HULL v. BERNATZ.
    1. Trover — Action by Assignee of Mortgage — Defenses,
    It is no defense to an action of trover by the assignee of a chattel mortgage agAinst an attaching officer that the attachment was issued before plaintiff’s assignment was executed, where there is evidence of subsequent acts of conversion.
    2. Same — Damages—Reduction of Mortgage Debt.
    In trover by a mortgagee for the conversion of a part of the mortgaged chattels, the amount at which the plaintiff bid in the remaining property at mortgage sale, rather than the amount for which he afterwards sold the same, should be applied in reduction of the mortgage debt in determining the amount of his damages.
    8. Same.
    In trover by the assignee of a chattel mortgage against an attaching creditor of the mortgagor, the defendant cannot complain that moneys collected by the plaintiff upon certain accounts assigned as collateral to the mortgage, instead of being credited thereon, were applied to the payment of other claims against the mortgagor, to secure which plaintiff held a second assignment of the accounts, executed prior to the levy.
    4. Same.
    A., with a view to securing certain creditors, executed a chattel mortgage to B., assigning some accounts as collateral, and then gave a bill of sale of the accounts and the mortgaged property to O. The latter purchased B.’s mortgage, taking an assignment to D., who was interested with O. in the claims secured by the bill of sale. The accounts were turned over to C., who collected the same, and applied the amount upon his debt. In trover by D. against an officer who had seized the goods on attachment against A. subsequent to the several transfers, it was held that the defendant had no cause to complain of the application made of the moneys so collected.
    Error to Wayne; Brevoort, J.
    Submitted June 13, 1895.
    Decided October 1, 1895.
    Trover by Charles B. Hull against Jacob Bernatz. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Avery Bros. & Walsh, for appellant.

      Elliot G. Stevenson, for appellee.
   Hooker, J.

The plaintiff recovered a judgment against the defendant, an officer, for the conversion of certain chattels, which defendant seized by attachment as the property of one Smith. Previous to the connection of either of the parties to this action with the transaction, Smith was indebted to Hartsuff and to the Commercial Bank, and he gave to each a mortgage to cover the several claims. He also assigned some accounts as collateral security. At the same time a mortgage of $1,000 was given upon the same property to Smith’s wife; and on November 24, 1891, a bill of sale was made to Gordon, McLean, and Hutchings to cover other debts owned by them and the concerns represented by them. Hull, the plaintiff, was a member of one of these firms. On November 21,1891, Armstrong & Graves, other creditors, seized the property upon an attachment; but this attachment suit was discontinued, and another begun, and levy made upon the goods on December 16,1891. The property continued in the possession of the defendant, and was ultimately sold upon execution issued in said action. On the day of the levy, viz., December 16,1891, a controversy having arisen between Hartsuff and the bank, on the one side, and Gordon and McLean, on the other, over the book accounts, it was adjusted by the purchase by them (i. e., Gordon and McLean) of the mortgages given Hartsuff and the bank, which were duly assigned to Hull, the plaintiff. Subsequently trover was brought by him against the officer, who has brought error upon the judgment rendered against him. The plaintiff sold the property on foreclosure, and purchased the same at the sale. He subsequently sold it at an advance on the price paid.

The points relied on are (1) that the conversion occurred before the assignment to plaintiff, which did not have the effect to assign a right of action therefor; (2) that the jury were permitted to render a verdict for more than the balance due upon the mortgages; (3) that the amount collected on the accounts assigned as security for the mortgage debts should have been applied in reduction of such balance; (-1) that the amount received by plaintiff for said goods, and not the amount bid by him at the sale, should have been applied in reduction of the mortgages.

1. There is no force in defendant’s first point, for the reason that it does not conclusively appear that the second attachment preceded plaintiff’s purchase of the mortgages. If it did, he was not obliged to treat such attachment as a conversion, and apparently may not have done so, as there is testimony of a conversation with defendant at a later time in which the latter is said to have denied plaintiff’s right to the goods, which he still had in possession.

2. We think the amount bid at the foreclosure sale, and not the price subsequently received by plaintiff, was the sum to be applied upon the mortgage debt.

3. The court instructed the jury that they should render a verdict for the balance due on the mortgages only, deducting from the face of the mortgages amounts received by Hull from whatever source. He stated then that they might apply the amounts collected on the book accounts assigned as collateral, if they thought it should be done. Later, however, he stated that the application of the amount collected on the accounts to the claim of Gordon rt al. under the assignment to them, instead of upon the mortgages, was not a matter that the defendant could complain of. This assignment or bill of sale to Gordon et al. was of all goods, accounts, etc., subject to the mortgages. It does not appear to have been recorded, but possession was taken immediately; and it is claimed by the assignees that it was not taken by way of security, but as a purchase, although Smith claims otherwise. McLean proceeded to collect the accounts, and the amounts received were deposited to their credit in the bank. When the mortgages were bought by them, they paid for them in part by their note, and gave a check for the balance against their account. The mortgages were assigned to Hull for their benefit and by their direction, and the accounts in the hands of the mortgagees were surrendered to them. It therefore appears that neither the bank nor Hull made collections of any accounts pledged as collateral, and the collections made by Gordon and McLean were lawfully applied upon their own claim. We agree with the learned circuit judge that the defendant has no cause to complain that they were not applied upon the mortgages.

This disposes of the questions discussed, and the judgment must be affirmed.

The other Justices concurred.


author: Long, J.

text:
    TRUFANT v. NUNNELEY.
    Wills — Perpetuities.
    A testator gave a life estate in specific tracts of land to each of his three children, with remainder over in each case to the “ body heirs ” of all of such children, share and share alike. Held, that, since such heirs could not be determined until the death of all three children, and in the meantime there would be no persons by whom an absolute fee could be conveyed, the power of alienation was suspended for a longer period than two lives in being, and the remainders were therefore void, under 3 How. Stat. §§ 5530, 5531.
    Appeal from Macomb; Eldredge, J.
    Submitted June 11, 1895.
    Decided October 1, 1895.

      Bill by John R. Trufant against Julia Florence and others to construe the will of Emery Trufant, deceased. From a decree for defendants, complainant appeals.
    Reversed.
    The provisions of the will were as follows:
    “I, Emery Trufant, considering the uncertainty of life and the certainty of death, ,do make, publish, and declare this my last will and testament, in manner following, that is to say:

      “First. I direct that all my debts and all expenses pertaining to the settlement of my estate be paid from my personal estate.

      “Second. I give to my beloved wife, Charlotte, the direction and control of all my real and personal estate so. long as she shall live, subject to the uses hereinafter created and made.

      “Third. I give and bequeath to my said wife the use of all my personal estate so long as-she shall live, subject to the annual payment to my son-, John R. Trufant, and my daughters, Julia Florence and Alice Maude, of the sum of five hundred dollars each; and the above bequests to my said wife are in lieu of dower, or of any and all rights and interest which she could • or might receive under the statutes of this State in and to my estate.

      “Fourth. I give, bequeath, and devise to my said son, John, the use during his life of those certain lands in the township of Clinton, in said county, consisting of about one hundred and nine acres of cleared land, on which I mow live with my family, and also give, devise, and bequeath to my said son, John, the use during his life of the north-east quarter of the north-wmst quarter of section twenty-six in said township, being town two north, range thirteen east, with right of way to and from the same for the purpose of drawing such firewood as said son may need for the use of his family, and such timber as he may require for repairs and for building fences and buildings upon the one hundred and nine acres aforesaid; the use in the said forty acres of timber being given and created for and restricted to those purposes.

      “Fifth. I give and bequeath to my daughter Julia Florence the use during her life of those certain lands in said township known as thirteen acres situate in the soutli-west corner of section twenty-three, and -also the west half of said north-west quarter and the sfvSMgueast quarter of the said north-west quarter of said section twenty-six.

      “Sixth. I give and bequeath to my daughter Alice Maude the use during her life of farming lands equal in value to that last above described (the use of which has been given to my daughter Julia Florence), and in case I should not be the owner in fee of such farming lands of equal value suitable for a home and farming purposes in the State of Michigan, then and in that case I direct my said wife, Charlotte, to select and purchase suitable and sufficient for that purpose, that my said daughter Alice may have the use and benefit during her life of r'eal estate equal in value and productiveness to that of my said daughter Julia Florence; -and should the lands for such use be purchased by my said wife as above provided for, I direct it to be so taken as to give Alice Maude a life estate in the said Mnds, with remainder over to the body heirs of my said son, J oh-n, and daughters-, Florence and Alice.

      “Seventh. I hereby give and grant unto my said wife, Charlotte, full power and authority to sell and convey any and all real estate of which I may dlie seised and possessed (other than that hereinbefore specifically described, of which the use is given to my said son and daughters) when, in her opinion, it is expedient or advisable so to do. And I give and grant unto my said wife, Charlotte, full power and authority to sell and convey any and all personal estate, of whatever nature and character, and to 'collect and discharge any and all bonds, mortgages, or other evidences of indebtedness, and to receive the money and proceeds so arising from such sale -of real and personal estate, or from such or any collections made by her, and to invest any or all moneys received by her in stocks, bonds, mortgages, and other evidences of indebtedness, in such amounts and in such maintenance as may seem to her most judicious, expedient, profitable, and safe.

      “Eighth. All my personal estate I give and bequeath to my said son, John, and my said daughters, Florence and Alice, share and share alike, subject, however, to the use, control, and trust above provided for and created.

      “Ninth. The real estate of which I may die seised and possessed remaining unsold at the death of my said wife, Charlotte (save and except that above specifically described, and the use of which has been given to my said son and daughters during their lives), I give and devise to my said son, John, and my daughters, Julia Florence and Alice Maude, share and share alike.

      “Tenth. The real estate above specifically described, and such, if any, as may at any time hereafter be purchased for the use of my said daughter Alice Maude, as hereinafter provided for, I -give and devise to the body heirs of my said son and daughters, share and share alike.

      “Eleventh. I direct my said son and daughters to pay all taxes and assessments of whatever mature and character which may at any time be levied and assessed upon the lands used and occupied by them respectively.

      “Twelfth. Should it so happen that my said son or either of my said daughters should die without issue before my said wife, Charlotte, then and in that case I give the use of the real estate hereinbefore given to such son or daughters to my said wife, Charlotte, during her life, with remainder over to the body heirs of my said son and daughters, share and share alike.

      “Thirteenth. If, in the providence of Cod, it should be so declared that my said son and daughters should each and all die, leaving their mother them surviving, and leaving no body heirs, then, on the determination of the use and trust hereinbefore created in my said wife, Charlotte, by her death, I give, bequeath, and devise my real and personal estate to the heirs of my said wife, Charlotte.

      “Fourteenth. In case of any loss by fire or otherwise, so that the income, profit, and use of said personal estate should fall short of a sum sufficient to make the annual payment of five hundred dollars to my son, John, and my said daughters in any one year, then it is directed that such sum as may be realized by my said wife to enable her to make such payment shall be equally divided between them, that each party shall bear their portion of the deficiency.

      “Fifteenth. I hereby appoint my said wife, Charlotte Trufant, and my respected brothers-in-law, Samuel M. Gibbs and Albert Kennedy, executors of this my last will and testament.

      “In witness whereof I have hereunto set my hand and seal this nineteenth day of July, A. D. 1873.
    [Signed] “Emery Trufant. [L. S.]”

      Bowen, Douglas & Whiting, for complainant.

      Crocker & Crocker, for defendants.
   Long, J.

Emery Trufant died in Macomb county, this State, April 27, 1875, leaving a last will and testament, a copy of which is set out in the statement. This bill is filed for construction of the will.

The court below was asked by complainant to decree:

1. That the property mentioned and described in the fourth paragraph of the will is by the will given to th'e complainant for life, and on his death to his issue; but in case of his death without issue, then, subject to a life estate in the defendant Charlotte Trufant, to the issue of his two sisters.

2. That the property described in the fifth paragraph of the will should go to defendant Julia F. Nunneley for life, and, on her death leaving issue, to said issue; but in case of her death without issue, said property, subject to the life estate of the defendant Charlotte Trufant, should go to the issue of complainant and the defendant Alice Maude Schoemaker.

3. That the property purchased by the executors under the instructions contained in the sixth paragraph of said will should go to defendant Alice Maude Schoemaker for life, and, on her death leaving issue, to her issue; but in case of her death without issue, then said property, subject to the life estate of the defendant Charlotte Trufant, should go to the issue of complainant and defendant Julia F. Nunneley.

There is no dispute but that it was the intent of the testator first to devote his estate to the use of his wife, Charlotte Trufant, such use to be subject to the annual payment by her of $500 to each of his three children, the complainant and the two defendants Julia F. Nunneley and Alice Maude Schoemaker; that on the death of his wife all his personal estate and all his real estate, except the three pieces specifically devised to complainant and the two defendants Julia F. Nunneley and Alice Maude Sch comaker, was to go to the said three children, share and share alike. The question is raised as to the testator’s intention regarding the three pieces 'of i*eal estate devised to his three children.

The contention of the defendants is that the expression at the end of the sixth paragraph of the will, to wit: “I' direct it to be so taken as to give Alice Maude a life estate in said lands, with remainder over to the body-heirs of my said son, John, and daughters, Florence and Alice;” and the tenth paragraph iof the will, to wit: “The real estate above specifically described, and such, if any, as may at any time hereafter be purchased for the use of my said daughter Alice Maude, as hereinafter provided for, I give and devise to the body heirs of my said son and daughters, share and share alike;” and the twelfth paragraph, to wit: “Should it so happen that my said son or either of my said daughters should die without issue before my said wife, Charlotte, then and in that case I give the use of the real estate hereinbefore given to such son or daughters to my said wife, Charlotte, during her life, with remainder over to the body heirs of my said son and daughters, share and share alike,” — indicate an intention on the part of the testator to digress from the manner in which the great bulk of his estate was apportioned, and adopt a new rule of disposition for' the three pieces of real estate; a disposition which, defendants contend, would give, on the death of complainant, the piece of land left him for life, not to his heirs, but to his body heirs jointly with the body heirs of his two sisters, Julia F. Nunneley and Alice Maude Schoemaker.

The argument of counsel for complainant is that, unless the construction which he asked the court below to give is placed upon the will, it would be possible that one of the testator’s children, through his children, might obtain a far larger share than his equal proportion of the testator’s estate; that, should either of said children have died before the widow of the testator, the result would hare been that the children of that child would be practically homeless, a result not intended by the testator; that, for instance, should Julia F. Nunneley have died before her mother, the property devised to her for life, and of which she is in possession, would be divided equally among the nine grandchildren of the testator, and the two children of Julia F. Nunneley would each receive an undivided one-ninth of the land, or, should Julia F. Nunneley now die, her children would each receive an undivided one-tenth, as, since the filing of the bill, another child has been b'orn to defendant Alice Maude Schoemaker. Complainant further contends that, if this construction cannot be given to the will, then that portion of it must be held void under section 5531, 2 How. Sta.t., as it creates a restriction upon alienation for a longer period than two lives in being.

The court below made a decree declaring that complainant is entitled to the use during his life of the lands mentioned and described in the fourth clause of the will; that the defendant Julia F. Nunneley is entitled to the use for her life of the lands described and mentioned in the fifth clause; that the defendant Alice M. Schoemaker is entitled to the use during her life of the lands purchased aind conveyed in pursuance of the sixth clause; and that, subject to the said life estates, the defendants Emery T. Nunneley, Albert V. Nunneley, Thomas T. Schoemaker, Charlotte T. Schoemaker, Kate T. Schoemaker, Fred T. Schoemaker, Arthur E. Trufant, Kate E. Trufant, J ohn R. Trufant, and Robert Trufant have each an equal undivided vested interest in the remainder of all of said lands, subject to be reopened to let in children hereafter born of the said son and daughters of said testator.

In any view of the case, we are satisfied that the will cannot be sustained as to these three parcels of land. The conditions of this will aré such that there is no one who can convey so as to cut off future rights of as yet unascertained persons; for, until the death of testator’s three children, it cannot he ascertained-who are the body heirs of these three persons. Complainant’s body heirs cannot be ascertained until his death, and so with the body heirs of the daughters. So 'the estate in these lands is tied up during the life of the son and two daughters, making three lives, and then the remainder over is to the body heirs of all the children of .testator. Until all these contingencies happen, there is no person or persons in whom the estate can vest in fee simple absolute, and hence no person in being who could convey. Chapl. Suspen. § 127; Kilpatrick v. Barron, 54 Hun, 322; Graham v. Fountain, 2 N. Y. Supp. 598. It follows that the will must be held void as affecting the pieces of land described, and, as to the remainder in them, they must be distributed under the statute.

The decree of the court below must be reversed, and a decree entered here in accordance with these views. The costs of this court and of the court below will be paid out of the estate.

The other Justices concurred.


text:
    GAMBLE v. COOK.
    Replevin — Rights of Vendee in Land Contract — Timber Cut by Trespasser.
    The vendee under a land contract giving the right to cut and remove timber can maintain replevin for timber cut on the land by a mere trespasser.
    Error to Ogemaw; Sharpe, J.
    Submitted June 18, 1895.
    Decided October 1, 1895.

      Replevin by Henry Gamble against Adam Cook and George Cook. From a judgment for defendants, plaintiff brings error.
    Reversed.
    October 11, 1875, plaintiff made a contract in writing to purchase the S. W. ¿ of section 9, township 21 N., range 2 E., in Ogemaw county, which was wild and uncultivated, and valuable chiefly for the timber upon it. His vendors in fact owned the entire title to one 40, and the undivided half interest in the other three 40’s, as shown by the record. The entire purchase price was paid within a year. By the terms of the contract, plaintiff was entitled to possession, and to cut and remove the timber. He went into possession soon after, established camps, and in two years cut and removed the greater part of the timber. He did not obtain his deed to which he was entitled. After removing what timber he did, he did not pay the taxes nor actually occupy the land. He either went over it himself occasionally, or sent men over, to see that no trespasses were committed. In the fall and winter of 1893-94 the defendants cut and removed from this land timber of the value of $498.45. Upon discovering this, and finding the timber banked along the line of the Michigan Central Railroad Company, plaintiff instituted this suit of replevin, and recovered possession. Upon this state of facts, the circuit court entered judgment in favor of the defendants for the value of the timber, for the reason that plaintiff had not the legal title to the land, nor was he in the actual possession.

      F. L. Snodgrass (O. E. M’Cutcheon, of counsel), for appellant.

      W. A. Weeks (Devere Hall, of counsel), for appellees.
   Grant, J.

(after stating the facts). We think that the learned circuit judge was in error. The basis of the judgment appears to be that since plaintiff had not the legal title, and was not in the actual occupancy, and therefore could not maintain an action of trespass, he could not, for the same reason, maintain replevin for timber cut and removed by a trespasser. The actions of trespass and replevin do not always depend on the same state of facts, and are not always concurrent. One will-often lie where the other will mot. Cobbey, Repl. §§ 17, 18. Had plaintiff either the actual or constructive possession, he could maintain either trespass, replevin, or both. In replevin he would be entitled to recover the value of the timber severed, and in trespass damage for the injury to the freehold other than the value of the timber. When the timber was severed, it became personal property. In whom was the title? Was it in the vendors or vendee, parties to the land contract, or in the trespassers, who had cut it? Clearly, it was not in the vendors, for they had sold it to plaintiff, and authorized him to cut and remove it, and had no further “interest in it. It is equally clear that the trespassers had no right to it by title or possession. If plaintiff had purchased by written contract only the standing timber, with the right to cut and remove it, and a stranger had severed and taken it away, clearly the title would have been in plaintiff, and he could have recovered it in an action of replevin. This, in effect, was done. The sale of the timber was expressly provided for in the contract, and ihe right to it is mot affected by the fact that it also- provided for a sale of the land. The title to land is not involved in this case, but only the title to timber. Nor does the title to the timber depend upon the title to the land. The law does not give to irresponsible timber thieves and trespassers the advantage which this doctrine, if sustained, would afford them. Plaintiff had a good title by virtue of his contract, as against naked trespassers. The defendants showed no title in themselves or any right of possession. One of them admitted that he had no such right, by commencing lien proceedings after this suit was commenced. Cook v. Cook, ante, 164. By the record, therefore, they appear as mere trespassers.

Judgment will be reversed, and entered in this court for plaintiff, with the costs of both courts.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.


author: Montgomery, J.

text:
    SCOTTEN v. CITY OF DETROIT.
    1. Municipal Corporations — Eminent Domain — Procedure—Conclusiveness of Judgment — Enjoining Collection of Assessment,
    The general statute authorizing the taking of private property for public use in cities and villages (3 How. Stat. chap. 83) provides that the petition to the court thereunder shall recite the adoption by the common council of the prescribed resolution of necessity; that notice shall be given to the owners of lands sought to be taken; that, no sufficient cause to the contrary being shown, the court may impanel a jury to determine the questions of necessity and compensation; and that the judgment of the court confirming the verdict of the jury shall be final and conclusive as to all persons interested therein. Held, that the statute contemplates a judicial determination of the questions raised by the averments of the petition; that a judgment of confirmation necessarily includes a determination by the court that the proceedings were properly instituted; that such judgment is not open to collateral attack; and that, therefore, judgment having been properly entered, a taxpayer cannot maintain a bill to restrain the collection of an assessment for benefits derived from the improvement on the ground that the resolution of the council was not legally adopted.
    2. Same — Opening Street — Crossing of Public Alley.
    In proceedings to open a street, it is not necessary to condemn a public alley crossed thereby, since the condemnation of the land abutting on the alley leaves no one who is in position to complain of its use for a public street.
    Appeal from Wayne; Carpenter, J.
    Submitted June 18, 1895.
    Decided October 1, 1895.

      Bill by Daniel Seotten against the city of Detroit and Albert H. Stoll, receiver of taxes, to restrain the collection of an assessment. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Alfred Lucking (John D. Conely, of .counsel), for complainant.

      John J. Speed, for defendants.
   Montgomery, J.

This is a bill filed to restrain the collection of an assessment levied by the common council to pay for the opening of Toledo avenue. It is contended that the proceedings for the opening of this street were fatally defective and without jurisdiction, and that, this being so, the assessment of complainant’s property is without authority of law.

The proceedings were taken under the general statute providing for the taking of property for public use in cities and villages, being chapter 83, 3 How. Stat. Section 2 of the act provides that—

“Proceedings may be commenced and prosecuted under this act whenever' the common council * * * shall have declared a public improvement to be necessary, * * * and shall declare that they deem it necessary to take private property, describing it, for such public improvement, designating it, and that such improvement is for the use or benefit of the public. They -shall by resolution direct the city or village attorney * * * to institute the necessary proceedings in behalf of the municipality, * * * in the proper court, to carry out the object of the resolution in regard to taking private property by the city, village, or county.”

The resolution adopted by the common council in this case did not receive the signature of the mayor, and the evidence shows that it was not presented to the mayor for his signature, as is required by the city charter in case of resolutions providing for the expenditure of money. We assume for the purposes of this case that the resolution in question required the signature of the mayor. The question then arises whether the determination of the recorder’s court is conclusive upon the question of whether the antecedent steps were properly taken. This involves an examination of the act in question.

By section 2, jurisdiction is conferred upon the circuit court for the county, and, in case of cities, upon the recorder’s court, in all cases brought under the act. Section 3 provides that the city clerk shall make, and deliver to the attorney, a copy of the resolution provided by section 2, duly certified, and it shall be the duty of such attorney to prepare and file, in the name of the city, in the court having jurisdiction of the proceedings, a petition signed by him in his official character, and duly verified, to which petition a certified copy of the resolution of the common council shall be annexed, which certified copy shall be prima facie evidence of the action taken by the common council. “The petition shall state, among other things, that it is made and filed as commencement of judicial proceedings by the municipality, * * * in pursuance of this act, to acquire the right to take private property for the use or benefit of the public. * * * The petition shall also state that the common council * * - * has declared such public improvement to be necessary, and that they deem it necessary to take the private property described in that behalf for such improvement, for the use or benefit of the public.” Succeeding sections provide for the issue of summons, and for service. Section 6 provides that on the return day of the summons, or on some subsequent day to which the proceedings were adjourned, if no sufficient cause to the contrary has been shown, the court may order the impaneling of a jury. Section 8 provides for the determination by the jury of the necessity for the proposed improvement. Section 10 provides that the' verdict of the jury may be set aside by the court, and a new trial ordered, as in civil cases at law in the circuit courts of this State. Section 11 provides that motions for a new trial shall be made within two days, and that, if such motion is not made, the court shall enter an order or judgment confirming the verdict of the jury, and such judgment of confirmation, unless reversed by the Supreme Court, shall be conclusive and final as to all persons interested therein. Section 21 provides that the common council shall not have power to discontinue proceedings under this act after rendition of the verdict of the jury. Section 15 of the act provides for an assessment of property for benefits from the opening of the street.

It is apparent, we think, that the legislative purpose • was to provide for a judicial determination of the questions involved and stated in the petition. While it is true that the common council, in the first instance, is the body to determine the necessity for instituting the proceedings, it is clearly contemplated that the question of whether this action by the council has been had shall be open to determination by the court, for it is provided that the petition shall set forth and state the fact of the adoption of such resolution. It is one of the questions puit in issue by the petition, which is the pleading in the case, and it is only in case no sufficient cause to the contrary has been shown that the court proceeds to impanel a jury; and, when the judgment is finally entered by the court, it is declared that it shall be final and conclusive as to all persons interested therein. If this is a judicial proceeding, can it be said that it is open to attack by any party in a collateral proceeding? We think not. We think, when the judgment was pronounced by the court, this bound the city, and compelled the authorities to make compensation to the owners of the land. The power to dismiss the proceedings voluntarily by the city terminated at the rendition of the verdict of the jury. Where the owner of the property has the opportunity to have a hearing, we think the determination of the court that the proceeding is properly instituted is conclusive in all collateral proceedings. See Lewis, Em. Dom. § 605, and cases cited; Van Fleet, Coll. Attack, § 62; Dyckman v. Mayor of New York, 5 N. Y. 434; Borgman v. City of Detroit, 102 Mich. 261; Lehmer v. People, 80 Ill. 601.

It is urged by counsel that, while the j udgment may be good as against the respondents in that proceeding, it is not good as against the taxpayer. But this statute provides for two different proceedings, — one proceeding by which the street is to be opened, and in this proceeding in the court the city and the owner of the land sought to be taken are parties. The other proceeding is by the assessment of property benefited by the opening, for the benefits conferred. The first proceeding has been had. The highway is opened. This is accomplished in fact and in law. It is not open to the city to assert that its legal representative acted without authority, nor is it open to the respondents in that case to make that assertion. That was one of the .questions litigated and determined by the court in that proceeding. ' How, then, shall the compensation for the opening ef the street be made? This the statute also provides for, and it provides that proceedings shall be taken by the common council to determine the benefits, and to cause the same to be assessed, upon receipt of a certified copy of the verdict of the jury and of the judgment of confirmation. This proceeding is based upon the judgment, and, if it be binding in law upon the city, it furnishes a sufficient basis for the assessment of benefits derived from the opening. Counsel for complainant contend that it is incumbent upon the city to take precisely the steps marked out by the statute, before jurisdiction can exist to assess the tax. But we think the basis of the assessment is the judgment entered in the recorder’s court under the authority of the statute. There can be no doubt that the statute might have provided that 'all preliminary proceedings might be dispensed with, and the questions of necessity and compensation have been submitted to that tribunal without the intervention of the common council at all. While this is not done, the fact remains that the statute does provide for a determination by the.court, which shall he conclusive that all prior proceedings have been taken. The fact, then, of a public highway is accomplished, and what the statute contemplates is an assessment of benefits from that public highway.

The case of Hoyt v. City of East Saginaw, 19 Mich. 89, is cited to sustain the contention of the complainant. Under the charter of East Saginaw, the determination of necessity and the assessment were both made by a jury, which was a special tribunal constituted for that purpose; and there was no provision of the statute which, either in direct terms or by fair implication, provided for a determination of the question of jurisdiction, or whether the precedent steps had been taken, by the court, which clearly, as we think, distinguishes that case from the present. Counsel also cite the case of Mulligan v. Smith, 59 Cal. 206. That case, however, presents the same question as was involved in Hoyt v. City of East Saginaw. It was contended that the preliminary question, namely, whether the petition was signed as required by the act, had been conclusively determined — First, by the certificate of the mayor; and, second, by the judgment of the county court confirming the report of the board of public works. The court say:

“The statute required the petition to be made to the mayor, but he was charged with no duties in connection with it. He was not authorized to enter into any investigation of the frontage as represented by the petition, or to adjudicate its sufficiency, or to make any record in reference to it. He did append to it a certificate, but this certificate was unauthorized, and it is difficult to see how the unauthorized certificate to a document of a ministerial officer constitutes an estoppel.”

With reference to the action of the county court, the court said:

“Its entire duty, as derived from the statute, was to approve and confirm the report, or refer it back to the board for the purpose of changing it in such respects as the court might, by its orders, direct. * * * Nowhere in the statute is the petition made part of the report, or of the data or documents used in making it. Nor is it anywhere required that the board or the mayor shall return it to the court, or file it there or elsewhere. The court had, therefore, no jurisdiction of the petition, — noi power to adjudge upon its execution; and it could not assume jurisdiction of it, or, by its judgment, decide upon its sufficiency and validity so as to conclude the defendant.”

That the court did not intend to hold that jurisdiction could not be conferred upon the county court which would enable that court to finally determine the sufficiency of the proceedings to obtain jurisdiction is apparent from the case of In re Grove Street, 61 Cal. 438, subsequently decided. The case of Mulligan v. Smith was subsequently construed in Zeigler v. Hopkins, 117 U. S. 683, and was followed. The court, at page 688, say:

“With this conclusion we are entirely satisfied. It is supported by both reason and authority. The opinions of J ustices M’Kee, Sharpstein, and Ross, which are found in the report of the case, leave nothing further to be said on the subject: ‘A petition from the owners of a majority in frontage of the property to be Charged with the cost of the improvement was necessary to set the machinery of the statute in motion,’ and ‘no step could be taken, under the provisions of the statute, until the requisite petition had been presented.’ Neither the mayor nor the county court was ‘authorized to enter into iany investigation of •the frontage as represented by the petition, or to adjudicate its sufficiency, or to make any record in reference to it.’ ‘The 'only powers which the county court, as a court of limited jurisdiction, was authorized to exercise,’ were such as related to the matters contained in the report of the board of public wiorks, and this did not include the petition.”

And in Zeigler v. Hopkins, with the evident purpose of excluding any implication of a holding that a determination of a court might not be deemed conclusive, the question is stated, at page 687, to be—

“Whether, in an action of ejectment brought to recover the possession of lands sold for the nonpayment of taxes levied to defray the expenses of opening Montgomery avenue generally, and not in obedience to an order of a court of competent jurisdiction to meet some particular liability which had been judicially established, the landowner is estopped from showing, by way of defense, that the petition for the opening presented to the mayor was not signed by the owners of the requisite amount of frontage.”

But in the present case there has been a judicial determination of the sufficiency of the petition, and we think the land-owner is estopped.

Counsel also refer to In re Buffalo, 78 N. Y. 362. The question in that case was whether the city might apply for an order to set aside an order appointing commissioners after the adjudication was had. The court held that this might be done. In the course of the opinion it is implied that, because of the failure to pass the resolution required by the act, the taxpayers might resist an assessment. This, however, was not necessary to a determination of the case. But it was said in this case that though the jurisdiction of the court depended upon the existence of fact, and it had power to find whether the fact existed, and though it did find and declare that it existed, and thus got jurisdiction, it would afterwards hear proof that there was error, and that the fact did not exist, and, by vacating its order, absolve itself from the error of taking jurisdiction, in favor of a party who had no standing in court. That was a direct proceeding in the very matter, and before the same court, and the question presented is very different from that which we are called upon to determine.

It is claimed that that portion of certain alleys which were crossed by the street was not condemned -in the proceeding to open the street, and that, therefore, there is not a continuous street by virtue of these proceedings. The property abutting on the alley, and necessary for opening the street, was condemned. The alley had already been devoted to a public use, and, the abutting property having been condemned, there is no one who is in position to complain of its use for a public street. See Fagan v. City of Chicago, 84 Ill. 227.

We think the decree of the court below dismissing the bill should be affirmed, with costs.

McGrath, C. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.