text:
    HORNER v. CITY OF EATON RAPIDS.
    1. Municipal Corporations — Electric Lighting — Use op Streets.
    The fact that individuals, after obtaining a contract from a city to light by electricity certain of the public streets, are permitted, without protest, to light a few private business houses along the line of such streets, will not entitle them, when, at the expiration of their contract, they are directed by the city to remove their poles and fixtures, to set up rights in the streets based upon the private lighting.
    2. Same — Charter Provisions — Easements.
    A charter provision giving to the common council of a city the right to provide for the public lighting of the streets confers no power on the council to grant a perpetual easement in the streets for the maintenance of poles and wires for use in private lighting.
    Appeal from Eaton; Smith, J.
    Submitted October 25, 1899.
    Decided December 2, 1899.
    Bill by Charles S. Horner and Edward E. Horner to restrain the city of Eaton Rapids from removing from the streets complainants’ electric-light poles and fixtures. From a decree for complainants, defendant appeals. Reversed.

      Complainants, in 1888, owned a water-power in the' defendant city, with which they operated a woolen mill. The population of the city was about 2,000. The records-of the common council for April 24, 1888, show the following :
    “Petition of Horner Brothers, asking permission to set poles and string wires in public streets and alleys, was received and read. A proposition was received from C. S. and E. E. Horner to light the public streets by electric light, arc lights, for the consideration of seventy dollars for the light per year for six or more lights, and to keep same in good condition at their own expense; settlement- and payments to be made monthly. Alderman Hamilton moved that the chairman be authorized to appoint a committee to whom shall be referred the proposition of Horner Brothers for investigation. Motion prevailed. Chairman appointed as such committee Aldermen Hamilton, Springer, and West. Motion that the petition of Horner Brothers to set poles and string wire in streets be referred to the city committee. Motion prevailed.”
    At a meeting on May 8th the committee reported:
    “Tour committee to whom was referred the petition of Horner Brothers for the privilege of erecting poles in the streets and alleys of the city, upon which to string electric-light wires, have had the same under consideration, and are in favor of allowing the privilege asked for; the poles to be erected under the full direction of the committee on streets. * * * Alderman West moved that Horner Brothers be granted the permission of placing poles and wires in the streets, under the full supervision of street committee, which motion prevailed.”
    At the same meeting the committee to whom was referred the proposition of complainants to light the streets-asked further time for consideration, which was granted.. On May 22d the committee reported, recommending a contract to be made with Horner Brothers for lighting the streets, and fixing the location of each light. The report was amended, and as amended adopted. That proposition was not accepted by complainants, and on June 15th, at a special meeting of the council, another resolution was passed, fixing terms for lighting the city, and providing that, if it be accepted by complainants, a contract should be drawn. A committee was appointed to prepare such contract. The contract was reported June 19th, and ratified. That contract ran for one year. At various times subsequently, petitions were presented for new street lamps. Some were rejected and some granted. Meanwhile contracts had from time to time been executed between complainants and the city for lighting its streets, one of such contracts running for the period of five years. On August 31, 1898, the city, having made a contract with another party for lighting its streets, notified complainants that their contract then 'existing was terminated, and that they must remove their poles, wires, and lamps within 10 days, and that the new company had been granted permission to erect and maintain its poles and wires in the same places as those which were then in use by the complainants. Complainants thereupon filed this bill to enjoin the city from removing their poles, etc.
    Complainants claim that their plant cost them from eight to ten thousand dollars, which includes the cost of the dam and remodeling the flume. They, are using the same dynamo which was originally put in. There is no testimony of the value of this plant at the time of instituting the suit. One of the complainants testified that he did not know what it is worth today. There is therefore no evidence of the actual damage which complainants will suffer by being compelled to remove their poles and wires from the streets. They had already removed their lamps, for it appears conceded that their contract with the city was properly terminated. The plant had a capacity for 30 lamps, of which 21 were used in lighting the city when the above notice was served. They had made no extensions except as required by their contract with the city, had never extended their system into the residence portion of the city, and had only lighted a few buildings along the streets used for city lighting. They bought the dynamo, and were preparing to erect their plant, three months before they had any permission from, or contract with, the city. The lamps for lighting the streets were put in and started before any were used for private lighting. One of the complainants testifies that at one of the meetings of the common council the question of whether they were to have the exclusive right to do commercial lighting, and whether they would install a plant for doing the public lighting alone, was discussed. The case was heard upon pleadings and proofs, and decree entered for complainants, declaring that they had the right to maintain their poles and wires as now existing in the streets, and giving them a perpetual right to use the same.

      J. B. Hendee (Huggett & Smith, of counsel), for complainants.

      Fred J. Slayton, City Attorney (Bussell O. Ostrander, of counsel), for defendant.
   Grant, C. J.

(after stating the facts). Did the petition, the permission granted by the council, the erection of the poles, the lighting of the city under the several contracts for nearly 11 years, and the use made of them to furnish light to a few private business houses, create a permanent contract between complainants and the city, and give them a perpetual, vested right in the streets? This is the sole question presented. If answered in the affirmative, easements in our public highways can be created in a very loose manner, and rest upon very slight foundations. Complainants had acquired no franchise from the State. Those cases (and many are cited by complainants) holding that where the State has granted to corporations the right to use the public highways for telegraphic and telephonic purposes, and the municipalities, under the authority vested in them, have by general ordinance provided for their erection so as not to interfere with or injure the public, contract relations exist, which the municipalities cannot afterwards take away, do not apply to this case. Complainants have only such rights as the common council had the power to grant. It is important to determine first just what was granted. Complainants concede that they have no perpetual contract with the city for lighting, and that they have no rights based upon such contracts. If, therefore, the permission granted to erect these poles was granted upon the basis of contracts to light the streets of the city, complainants could be compelled to remove them when such contracts were at an end. They do not claim a right to extend their lines beyond those actually in use, and the decree so limits them. Their claim, therefore, of perpetual, vested rights, must rest entirely upon the proposition that they obtained permission to put in a commercial electric-lighting plant, and that the city lighting was incidental to that. The records of the common council contain not a word to indicate that the proposition was so understood by the •council. Public policy requires record evidence of the actions of common councils in municipal matters. They cannot rest in parol. The sole testimony in this case is the loose testimony of one of the complainants that there was a talk before the council about commercial lighting, and their having the exclusive right to do it. Complainants themselves did not understand that they were obtaining vested rights in the streets. Complainant Edward testified: “I never considered it in the light of a perpetual right at all; never claimed to have a perpetual right.” Complainants had no contracts with any one prior to the erection of the poles. They undoubtedly erected their plant upon the belief that they would be able to make contracts with the city, and the first lighting was done for the city. That complainants may have intended to do some commercial lighting was no concern of the city, and was not binding upon it. The fact that they stretched other wires along their poles, and extended them into a few business houses, without protest from the city, gave them no rights, nor is it any evidence •of what the original contract was. For 11 years they made no extensions except as ordered by the city. We think it entirely manifest that the common council dealt: with the complainants upon no other basis than that of' furnishing lights for the city. Their conduct for 11 years renders this conclusion apparent. The furnishing of light, to private citizens was merely incidental.

The control of the public highways is in the State, and not in the municipalities. Municipalities have only such control over the streets and highways as is conferred upon them by the legislature, either by express enactment or by necessary implication. In a recent and very carefully-considered opinion, written by my Brother Montgomery,. we held that “the power of a municipality to grant an easement in the street to a street-railway company is not inherent, but is derived from the legislature.” Detroit Citizens’ St. Ry. Co. v. City of Detroit, 110 Mich. 384 (35 L. R. A. 859, 64 Am. St. Rep. 350). See, also, City of Detroit v. Detroit City Ry. Co., 76 Mich. 425. When, therefore, private parties claim permanent easements in the streets, they must show clear title. There is no presumption in their favor. The presumption is against them. The right to erect poles in the public highway is as much an easement as the right to lay tracks for a street railway. No authority is found in the charter of the defendant for granting perpetual easements in its streets. The charter provisions relied upon are those giving power to the common council “to control and regulate the setting of awning and other posts and shade-trees in the streets and other public places in said city ”~(Act No. 347, Local Acts 1881, § 16), and “to provide for the public lighting-of said city with gas or otherwise” (Id. § 12). Under these provisions the city undoubtedly had the power to-contract with complainants to light the city. Putnam v. City of Grand Rapids, 58 Mich. 416; Attorney General v. City of Detroit, 55 Mich. 181. But these cases are no authority for granting perpetual easements'in the streets-under the provisions of this charter. Stevens v. City of Muskegon, 111 Mich. 72 (36 L. R. A. 777), does not apply. The improvement by the construction of a sewer in that case was a permanent one, and was so intended. The public health of the city demanded it. The city had authority to provide for the construction of sewers. There was no contract for its use for a specified time upon payment of a certain amount by the city. The city was relieved from taxation. ■ It received a sufficient consideration for the rights granted to Stevens. Chicago Municipal Gas Light & Fuel Co. v. Town of Lake, 130 Ill. 42.

Decree reversed and bill dismissed, with costs of both courts.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    PEOPLE v. ALLEN.
    Statutory Offenses — Complaint—Negativing Exemption.
    A complaint for a violation of Act No. 63, Pub. Acts 1893, § 1, making it unlawful for any person to practice dentistry unless he has received a certificate from the State board of examiners, “provided,” that the act shall not apply to “any person who is now located and lawfully in actual practice ” in the State, need not negative the exemption contained in the proviso.
    Exceptions before judgment from Kent; Adsit, J.
    Submitted October 26, 1899.
    Decided December 2, 1899.
    Walter L. Allen was convicted of illegally practicing dentistry.
    Affirmed.

      Dunham & Dunham, for appellant.

      Horace M. Oren, Attorney General, and Frank A. Rodgers, Prosecuting Attorney (Rodgers, McDonald & Minor, of counsel), for the people.
   Hooker, J.

Section 1, Act No. 63, Pub. Acts 1893, provides:

“It shall hereafter be unlawful for any person to practice dentistry in this State unless such person has received a certificate of qualification from the board of examiners provided by this act: Provided, that the' provisions of this act shall in no way apply to or affect any person who is now located and lawfully in actual practice in this State.”

' The defendant was prosecuted under a complaint based upon this section, which contained no allegation that he was not, at the time of the passage of said law, “ located and lawfully in actual practice in this State.” It is contended that the conviction cannot be sustained, under the cases of People v. Telford, 56 Mich. 541; People v. Pendleton, 79 Mich. 317; People v. Haas, Id. 449. Those were cases where it was necessary to plead exceptions contained in the enacting clause or statute. This is a case where the defendant may have been within an exemption contained in a proviso. The distinction is pointed out in the early casé of Myers v. Carr, 12 Mich. 71, and recognized and applied in many later cases. Lynch v. People 16 Mich. 472; People v. Richmond, 59 Mich. 570; People v. Phippin, 70 Mich. 6; People v. Pendleton, 79 Mich. 317; People v. Curtis, 95 Mich. 212. See, also, Attorney General v. Oakland County Bank, Walk. Ch. 90.

Several questions are raised upon the introduction of evidence. Our examination has convinced us that they are without merit, and . the „ testimony admitted was so obviously pertinent that we think it unnecessary to discuss them.

The conviction is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    STEPHENS v. LEONARD.
    1. Husband and Wife — Dower—Contract Purchaser.
    Under 3 Comp. Laws 1897, § 8918, giving the widow dower in all lands whereof her husband was seised of an estate of inheritance at any time during the marriage, a wife is not dowable in lands held by her husband under contract of purchase, the legal title remaining in the vendor.
    2. Same.
    A contract purchaser of land, at whose direction the vendor* conveys the land to a third person as security for money to complete payment of the purchase price, is not seis.ed of a legal title, so as to entitle his wife to dower therein.
    3. Same — Alienation of Homestead — Signature of Wife.
    A writing signed by a contract purchaser of land and by his wife, directing the vendor to make the deed to a third person, is effectual to cut off the wife’s homestead rights, under 3 Comp. Laws 1897, § 10363, which provides that a mortgage or “other alienation” of the homestead, to be valid, must bear the signature of the wife.
    4. Mortgages — Partial Release — Foreclosure.
    Where a mortgage of a homestead and other property, given to secure the payment of eight notes of equal amount, contains a provision that, on payment of the three notes first maturing, the homestead shall be released, the property other than the homestead is alone liable, in case of payment of such three notes, for the balance of the debt; but, if such notes are not paid, the mortgagee may claim the whole as security, and will not be required to release the homestead in case enough should be realized from a sale of the other property to pay the three notes in question.
    Appeal from Wayne; Frazer, J.
    Submitted October 26, 1899.
    Decided December 2, 1899.
    Bill by Albert L. Stephens against Henry B. Leonard and Annie E. Leonard to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      Wells, Angelí, Boynton & McMillan, for complainant.

      George W. Radford, for defendants.
   Montgomery, J.

In 1894 the Leonard & Carter Furniture Company purchased from Thomas T. Leete and wife, on land contract, 30 feet front on Gratiot avenue, Detroit (referred to in the record as the “ Gratiot-A venue Property ”). The purchase price was $40,000, upon which $5,000 was paid down. The defendant Henry R. Leonard, on the 1st of April, 1890, had bought from the trustees of the Brush estate a lot on.Eliot street, Detroit (called in the record .the “Eliot-Street Property”), at the price of 45,830, only $830 of the purchase price having been paid. The furniture company had erected a building on the Gratiot-avenue lot at a cost of about $60,000, and Mr. Leonard had built a residence on the Eliot-street property. In February, 1895, Mr. Leonard desired to purchase the interest of the Leonard & Carter Furniture Company, and, in order to raise the money to do so, gave the complainant the securities in question in this case to secure a loan of $40,000. It appears that the trustees of the Brush estate had assigned the contract for the Eliot-street lot to the State Savings Bank, and had executed a deed running to Leonard, which was left at the bank, to be delivered when the payments were completed. To secure complainant, the contract from Leete to the Leonard & Carter Furniture Company was assigned by it to Leonard, and by Leonard to complainant. ■ The deed of the Eliot-street lot from the trustees of the Brush estate to Leonard, which had been prepared, but not delivered to Leonard, was destroyed,' and a new deed made by the trustees direct to complainant, complainant paying the unpaid purchase money. Mr. and Mrs. Leonard signed the following authority:

“Detróit, February, 1895.
“Trustees Brush Estate:
“ We hereby surrender to you deed dated February 8, 1893, conveying to Henry R. Leonard lot 15, and the easterly 3 feet of lot 14, in block 10, Brush Farm, and instruct you to make a deed for the same-described premises to Albert L. Stephens, of Detroit, Michigan.
[Signed] “Annie E. Leonard.
“Henry R. Leonard.”

Eight promissory notes, in the sum of $5,000 each, were executed by Mr. Leonard, and an agreement was signed by the parties, in which, after reciting the above-named •transfers to Stephens and the advances for which they were security, it was provided, among other things, that, ■upon payment 'of the first three of the notes, the Eliot-street property should be reconveyed to Leonard. This agreement also provided that Leonard should pay all the taxes, and should keep the property insured, $10,000 on the Eliot-street house, and $30,000 on the Gratiot-avenue building, with loss, if any, payable to Stephens. On the 17th of October, 1897, the store building on Gratiot avenue burned. Only $10,000 insurance was carried on the building, and this proved valueless. Mr. Leonard defaulted in his payments, and complainant filed this bill to foreclose. The court decreed foreclosure, and defendants appeal.

There is only one disputed question of fact which we regard as material in disposing of the case. It is claimed by Mrs. Leonard that she signed the authority to the trustees of the Brush estate above quoted without understanding the purpose for which it was to be used. Indeed, she testifies that she has no recollection of having signed the paper; that she at times did sign papers presented to her by her husband without reading them, and she seems unable to account for her signature to this paper except on the hypothesis that this was one of the occasions. The complainant testifies that, in company with Mr. Hayes, president of the Preston National Bank, he called at the Leonard home, and that the subject of the loan was fully talked over in the presence of Mrs. Leonard, and her .attention specially called to it. In this he is corroborated by Mr. Hayes. Mr. and Mrs. Leonard deny that any such, interview took place. A careful reading of the testimony convinces us that Mr. and Mrs. Leonard are at fault in their recollection on this point, and that Mrs. Leonard did fully understand the nature of this transaction, and assented to it, so far as it affected the Eliot-street house, by signing the authorization above referred to.

It is contended that the defendant Annie E. Leonard had a dower interest in the Gratiot-avenue lot, which was not cut off by the assignment of the contract; that she not only has a dower, but a homestead, interest in the Eliot-street lot, and that neither has been barred. The rights, of Leonard in each of the two descriptions of property • were those of a contract purchaser, the legal title remaining in another. The question is, therefore, whether the purchaser of lands under a land contract has such a title as to vest in the wife an inchoate dower right. The statute (section 8918, 3 Comp. Laws 1897) reads as follows:

“ The widow of every deceased person shall be entitled to dower, or the use during her natural life of one-third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage,, unless she is lawfully barred thereof.”

Under this section, the wife of the contract purchaser, who has no legal title to lands, is not entitled to dower. Daily v. Litchfield, 10 Mich. 29; Beebe v. Lyle, 73 Mich. 114. See, also, 1 Scrib. Dower, p. 413 et seq.

Defendants’ counsel insists that Leonard was seised of a legal title, inasmuch as Stephens’ title under his contract and deed was only equitable. The fact is, however, that there never was a complete conveyance by Leete, the holder of the original title of the Gratiot-avenue property, to the defendant, nor was there such a conveyance by the trustees of the Brush estate of the Eliot-street property. The legal estate has never rested in the defendant Henry R. Leonard in either case. Counsel cites, the case of Clapp v. Galloway, 56 Mich. 272, as authority for the claim that a widow is dowable in lands held by her husband under contract of purchase. It would seem that the utterance of Mr. Justice Sherwood in that case was dictum. It is not in harmony with the decisions in this State, both before and after.

The homestead right is open to other considerations. It is conceded that the defendant Annie E. Leonard had a homestead right in the Eliot-street property, but it is contended that it was subjected to complainant’s claim by her, intelligently and legally. Under section 10363, 3 Comp. Laws 1897, the homestead right may be cut off by a mortgage or other alienation of the land, signed by the wife. In this case there was a written authority, signed by both husband and wife, directing the owners of the legal title to convey the same to complainant. This was an effective and legal mode of alienating the homestead.

The decree includes a charge for expense incurred in caring for the Gratiot-avenue property after the fire, and for interest on the Leete contract. Defendants contend that these two items should not, in any view of the case, be made a charge against the homestead. We think these items are clearly proper charges. The security is upon the whole property, and is not severable. The agreement between Stephens and Leonard contained a promise that, upon payment of the first three notes maturing, Stephens would release the Eliot-street lot. It is now contended that complainant is bound to collect the amount of the first three notes from the Gratiot-avenue property, and, if the amount of the three notes is realized by a sale of the property, the Eliot-street property is released. If the contract be so construed, the homestead has at no time been a security for any portion of the claim, if we recognize the fact that the interest in the Gratiot-avenue property is worth more than the amount of the first three notes, as it doubtless is. This view does violence to the intention of the parties. The mortgagee is entitled to the whole mortgaged property as security. In re Scofield Buggy Co., 89 Mich. 15; High v. Fifth National Bank, 97 Mich. 502 (21 L. R. A. 822). The true intent of this provision was that if, while the security .of the Gratiot-avenue property remained, the defendant paid down the first three notes, the complainant would accept the Gratiot-avenue property as sufficient security for the remainder of the claim, and release the Eliot-street lot. Pierce v. Kneeland, 16 Wis. 672 (84 Am. Dec. 726); Commercial Bank of Iron Mountain v. Hiller, 106 Mich. 118. The decree provides that, if the defendant pay the amount of the first three notes and interest before sale, the Eliot-street lot shall be released. This is sufficiéntly favorable to defend-’ ants.

The decree is affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    LINN v. LINN.
    Equity Jurisdiction — Mortgages—Revivor—Forged Signature —Foreclosure.
    Where the owner of two purchase-money mortgages discharged them, and accepted in their stead a new mortgage, which, while it purported to be signed by the mortgagor’s wife, was in fact forged as to her, and such mortgage was foreclosed and the premises bid in by the mortgagee’s administrator in the belief that the wife’s claim of forgery was merely a pretense to secure dower and homestead rights, such administrator is entitled, upon its subsequently appearing that the wife’s claim is true, to maintain a bill in equity to revive the earlier and genuine mortgages, the same as if the fraudulent mort" gage had not been foreclosed. Palmer v. Sharp, 112 Mich. 420, followed.
    Appeal from Ingham; Person, J.
    Submitted October 27, 1899.
    Decided December 2, 1899.
    Bill by Peter Linn, administrator with the will annexed of the estate of Lawrence Linn, deceased, against Kate F. Linn and others, to revive certain mortgages. From a decree dismissing the bill on demurrer, complainant appeals.
    Reversed.

      Smith & Hood (John J. Zimmer, of counsel), for complainant.

      A. M. Cummins and L. B. McArther, for defendants.
   Moore, J.

This proceeding is in chancery. The bill of complaint states, in substance, as follows: The complainant is administrator with the will annexed of the estate of Lawrence Linn, deceased, who was a resident of Wyoming county, N. Y. The defendant Kate F. Linn is the widow, and the remaining defendants are the children and heirs at law, of John B. Linn, a late resident of the county of Ingham, and a son of said Lawrence Linn. _ John B. Linn died about February 9, 1892. Lawrence Linn died some time afterwards. Late in the winter of 1883, John B. Linn moved into the county of Ingham, and purchased of John J. Rehle, Sr., the S. % of the N. E. i of section 8, in township 3 N., range 1 E., for a consideration of $3,100, paying a portion in money and giving back a purchase-money mortgage for the sum of $1,600. In order to procure a portion of the purchase price, and to establish the homestead, said John B. Linn procured of Amos D. George the sum of $1,250 by mortgage dated March 1, and acknowledged April 5,1883, on the premises so purchased. On the 26th day of June in the same year, said John B. Linn loaned from his father, Lawrence Linn, the sum of $1,600 by way of mortgage on said premises, for the purpose of paying, and with which he actually did pay, the Rehle purchase-money mortgage, and on the same day Rehle discharged said purchase-money mortgage. On the 4th day of March, 1886, Lawrence Linn purchased the George mortgage. Shortly prior to the 27th day of June, 1888, John B. Linn negotiated with his father for a renewal and extension of time for the pay- . ment of the mortgages held by him, and was to give to him a mortgage on the premises, signed by both himself and his wife, Kate F. Linn. On June 27, 1888, John B. Linn went to B. D. York, a lawyer and notary public residing at Williamston, Mich., and caused to be executed a note and mortgage for the sum of $3,000, payable 10 years after date, with interest after October 1, 1888, at the rate of 6 per cent., with the privilege of paying $50 or more at any time. This third mortgage covered the property hereinbefore described. It purports to have been executed and acknowledged by John B. Linn and by Kate F. Linn, his wife. Lawrence Linn was not present at the time said mortgage was executed, and received the same believing it was a genuine mortgage executed by both John B. Linn and Kate F. Linn, his wife; and because of such belief, and relying upon it, he, on the same day, discharged the two mortgages held by him.

After the death of John B. Linn, Kate F. Linn made several payments of interest on the mortgage, until the death of said Lawrence Linn. After the death of Lawrence Linn, Kate F. Linn denied that she joined in the execution of said mortgage, and refused to pay further-interest thereon. Some time shortly prior to the 6th day of April, 1897, through W. F. Cairns, an attorney residing at Williamston, complainant caused said mortgage to be foreclosed by advertisement. On the foreclosure sale the whole of said premises was purchased by said administrator in behalf of said estate on the 1st day of July, 1897, for the full amount of the mortgage then due, and costs of foreclosure. At the time of the sale, Kate F. Linn served a notice upon the sheriff making such sale that said mortgage was never signed by her, and claimed dower and homestead rights in said mortgaged premises, and claimed that such sale should be made subject to her homestead and dower rights. Complainant, at the time of said foreclosure sale, and for a long time thereafter, believed that said Kate F. Linn executed the mortgage in question. Mr. York, the attorney and notary by and before whom said mortgage was made and acknowledged, was a person of good standing in the village of Williams-ton, and a man worthy of credit and belief, and complainant believed he would not have made and signed the certificate of acknowlédgment had said Kate F. Linn not executed said mortgage, and complainant believed that the claim of said Kate F. Linn to the effect that she did not execute the said mortgage was only a pretense. The whole of the mortgaged premises was a very scant security for the sum due on said premises, and complainant purchased said premises for the full amount of said mortgage, together with costs, because he then believed that said Kate F. Linn executed said mortgage notwithstanding said pretense to the contrary, and because he had been advised by said Cairns to bid the full amount of said mortgage and costs, for the reason that no decree for deficiency could be obtained for any balance due in case the premises were purchased for less.

During the month of July, 1898, complainant, still acting under the advice of said Cairns, commenced a proceeding before the circuit court commissioner to get possession of the said mortgaged premises; and, at the trial of said matter before said commissioner, said Kate F. Linn testified as a witness in her own behalf that she never signed said mortgage, and claimed dower and homestead rights in the premises, by reason of which said commissioner dismissed said complaint, because the trial of the title to real estate was involved. Complainant, after hearing such testimony, became convinced that said Kate F. Linn did not execute said mortgage; and the amended bill states that Kate F. Linn did not execute the last-named mortgage. Said bill of complaint is filed in this cause to revive and foreclose the mortgage given by said John B. Linn to said Amos D. George, and afterwards assigned to said Lawrence Linn, and also the first mortgage, of $1,600, given by said John B. Linn and wife to said Lawrence Linn. The bill asks that the mortgage foreclosed by said administrator may be declared defective, imperfect, and partially invalid, and insufficient to bind the homestead and dower rights of defendants, because said mortgage was not executed by said Kate F. Linn, and that complainant may be subrogated to the rights which Lawrence Linn held under said mortgages. It also contains a general prayer for relief.

The defendants, by their demurrer, and in argument, urge the following, among other, objections against the relief sought in the bill:

1. That complainant has a plain, adequate remedy at law.

2. That the bill of complaint does not state such facts as, if true, would enable the court to grant any relief whatever.

3. That, if the last mortgage designated in said bill of complaint was signed by Kate F. Linn, the complainant is. now the owner of the fee simple in said lands, and has a complete, adequate remedy at law to gain possession of the same.

4. If said mortgage was not signed by her, that fact was well known to the agent and attorney of said Lawrence Linn, and said complainant has not urged any fraud on the part of said defendant, or her husband, or any other person. The allegations of fraud contained in said bill of complaint are too indefinite and uncertain to be-made the basis of any relief whatever.

5. The facts stated in said bill, taken .as a whole, do not entitle said complainant to any relief in a court of equity.

6. On the argument of said demurrer, said defendants urge the further objection, ore terms, that complainant was not entitled to have the $1,600 Linn mortgage revived, for the reason that the certificate of acknowledgment does not show that the execution of said mortgage was acknowledged by her, and that by reason thereof said mortgage was not a valid release, pro tanto, of h.er dower-rights.

The circuit judge sustained the demurrer. He was of the opinion that'the fraud alleged in the bill is sufficient to entitle complainant to relief, and said he would have no doubt of the equity of the bill had it not been that, after the administrator knew of the claim of Mrs. Linn, he foreclosed the mortgage, and bought the land at the foreclosure. This had the effect, in his opinion, to give him a valuable interest in the land, which has ripened into a title . in fee. This title he holds, and does not, in the bill, offer to surrender. The circuit judge was also of the opinion that, while the administrator might bid in the land, after purchasing it he had no power to sell it, or to surrender the title, except upon license by the probate court.

The solicitors have filed able briefs, in which the various phases of the case are carefully discussed. We do not deem it necessary to follow that discussion in this opinion. We agree with the learned circuit judge that the case presented by the bill is an equitable one. It appears by the bill that all the money obtained from the elder Linn was applied upon the payment of this real estate, in which the widow of John B. Linn now claims homestead and dower interests, which she seeks to preserve, because the mortgage which was foreclosed by newspaper advertisement was not in fact executed by her, though it purported to be executed and acknowledged by her. If her claim is true, — and for the purposes of this case it must be regarded as true, — a forged mortgage was palmed off upon the elder Linn as genuine, and, relying upon its genuineness, he was induced to discharge two mortgages which he then held. One of these mortgages was given to him for money he had loaned his son to enable him to take up the JRehle purchase-price mortgage. The other was given to Mr. George for money he let John B. Linn have to pay directly upon the purchase of the farm. The equities of the bill are strongly with the complainant. Fournier v. Chisholm, 45 Mich. 417; Converse v. Barnard, 114 Mich. 622. The right of complainant to have the earlier mortgages revived because of the fraud which was perpetrated upon the elder Linn, although the administrator had caused the last mortgage to be foreclosed, supposing it to be a genuine mortgage, is very clearly established in the late case of Palmer v. Sharp, 112 Mich. 420.

If the circuit judge was right in holding that, after the purchase of the land at the foreclosure sale, the administrator could not surrender it, his offer to do so, in the bill of complaint, would be an idle ceremony, and to us it seems an additional reason why the court of equity, which can work out complete relief to all the parties, and protect all their rights, should take jurisdiction.

The decree of the court below is reversed, and the case remanded. The defendants are given 15 days in which to answer after a copy of this decree is served upon their solicitors.

•The other Justices concurred.


author: Long, J.

text:
    AUDITOR GENERAL v. AYER.
    1. Taxation — Boards of Supervisors — Record of Equalization.

      Auditor General v. Sparrow, 116 Mich. 574, affirming the sufficiency of a record of equalization of taxes, by a board of supervisors, approved.
    2. Same — Boards of Review — Sufficiency of Certificate.
    Under section 37 of the tax law of 1893, providing that if it shall appear to the board of supervisors, at its October session, that any certificate, paper, or record submitted to it is not properly certified, the board may authorize and require such defect or omission to be corrected, it is immaterial that the certificate of the board of review to an assessment roll is dated in the October following the review.
    3. Same — Fixing Valuations — Invalid Agreement.
    An arrangement by a board of review that all lands owned by several taxpayers in the north half of the township shall be assessed at a uniform value is invalid.
    4. Same — Subsequent Entry on Roll.
    • Where the board of review meets and acts upon the question of values at the time provided by law, it is immaterial that the eqtry upon the roll of the values so fixed is not made until afterwards.

      Appeal from Gogebic; Haire, J.
    Submitted October 26, 1899.
    Decided December 2, 1899.
    Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by Frederick Ayer and others. From a decree for petitioner, defendants appeal.
    Affirmed.
    <7. JE. Miller, for petitio.ner.

      M. J. Sherwood, for defendants.
   Long, J.

This is an appeal from the decision of the circuit court in chancery of Gogebic county in a proceed- ' ing by the auditor general under the statute for the sale of lands for the taxes delinquent for 1895. The taxes involved are the state and county taxes for the year 1895 in the townships of Bessemer, Wakefield, Watersmeet, and Marenisco, and the entire of the taxes in the township of Ironwood. The respondents contend that these taxes are Yoid for the reasons:

(1) That the pretended equalization of the board of supervisors was not in accordance with the statute, in that it did not show the additions and deductions made by the board in reaching the equalized valuations.

(2) That it was an attempted equalization, if anything, of the entire property of the cities and townships, both real and personal.

(3) That the total equalized valuation, as fixed by the board, was not so fixed by the judgment of the board.

(4) That large quantities of personal property and $125,000 of real property in the township of Bessemer were not added into the. total valuations in the said roll, and were not considered by the board in fixing its equalized valuation.

(5) That no statements of the value of property were called for or received by the assessing officer in the township of Wakefield or in the city of Ironwood.

(6) That the board of supervisors, though large additions and deductions were made in the various rolls, never found as a fact or determined that the real property had not been uniformly estimated at its cash value by the various assessing officers and boards of review.

The court below overruled these objections, and entered a decree for the sale of the lands in accordance with the petition of the auditor general; and the respondents, who are the owners of the lands, have appealed.

1. It is unnecessary to set out here the action of the board of supervisors in the equalization of the taxes any further than to remark that the record shows the action to be similar to that in Auditor General v. Sparrow, 116 Mich. 574, and in which it was" held that the record of the equalization was sufficient. In that case this whole question was discussed at length, and settles against the respondents the question raised here. ' .

2. There is nothing in the record showing or tending to show that the board of supervisors undertook in any way to change the value of personal property as fixed by the assessing officer.

3. There is no proof in this record tending to show that any real or personal property was omitted by the board of review which should have been included. In regard to respondents’ claim that $125,000 of personal property was assessed in the township of Bessemer upon which no taxes were assessed, we have examined the original assessment roll, and are satisfied that counsel for respondents is mistaken as to what the roll shows. The assessment of the personal property mentioned does not read $125,000, but $12,500, and the tax is carried out upon that amount.

4. It is contended that all the taxes for 1895 are invalid in the township of Ironwood, and it is asserted 'that the board of review, or some party without authority, altered the valuations of the lands of the respondents after the board of review had fixed the valuations at the several meetings of the board; that the valuations of the supervisor throughout the entire roll were thus altered and changed on lands other than the respondents’. Counsel for respondents claims that the testimony shows that Mr. Longyear, who is one of the respondents, acting for himself and as the agent of the other contestants, appeared before the board of review at its second meeting, on May 27th, and again on the following day; that three members of the board of review were present, and at Mr. Long-year’s request the board unanimously fixed the valuation of the lands of the respondents lying north of the line extending through the middle of township 48 north at $1.25 per acre, and agreed that the lands lying south of that line should remain as fixed by the supervisor; that at that time none of the valuations as fixed by the supervisor had been changed by the board of review; that early in July a part of the roll had been changed, and the column for the “Valuations as Fixed by the Board of Review” had been filled in for the descriptions in the north part of the town, but that the roll as finally completed showed alterations in the valuations of lands, not only in the north part, but all over the township, and the valuations of many of the lands of respondents had been fixed above $1.25 per acre, and that many of the supervisor’s valuations had been changed, some being raised and some lowered; that no certificate of the board of review was attached until October 18, 1895.

It is apparent that the date of the certificate can have no effect upon the question of the validity of these taxes, as, under the tax law of 1893, by section 37, it is provided that, whenever it shall appear to the board of supervisors that any certificate, paper, or record is not properly certified, the board may authorize and require such defect or omission to be corrected. It must be presumed that the certificate was made as required by law.

We think the testimony in the case does not bear out the contention made by counsel for respondents. It appears from the testimony that the board made no memorandum of its arrangement made with Mr. Longyear, and that there was no evidence of the value of these various descriptions introduced before the board of review; that some of these lands were worth much more than $1.25 an acre, and some much less; and that Mr. Longyear did not own all these lands. It appears that, if the board had carried out this agreement, the result would have been that the property of some of these taxpayers would have been assessed much higher than the real value, and some much lower. The board did not carry out the agreement, and it was not in error in not doing so. No arrangement could legally be made by which the whole or half of a township should be assessed at a uniform value. Bach parcel must be assessed at its true cash value, so that there may be protection to each taxpayer, and in no other way could the taxpayer be protected. There is no testimony tending to show that the board of review met after the time fixed by the statute. It is true that there is testimony showing that the entries of the amounts fixed by the board were not made at that time; but the carrying out of the amounts fixed by the board was mere clerical work, and, if the board actually acted upon the question of values at the time fixed, the fact that such values were not carried out in the appropriate column within the time was but an irregularity, which would not make the taxes void. The case is not like Auditor General v. Sparrow, supra. In that case the agent of Mr. Sparrow went to the township of Watersmeet for the purpose of a hearing before the board of review. The agent found the roll completed to page 27 only; and it was held that all taxes appearing upon the roll after that page were invalid. As to the taxes in the township of Wakefield, the record showed that on the 28th and 29th of May the board had passed a general resolution making sweeping alterations in the roll by way of reduction. It was held that the board 'had no right at that meeting to take the action it did. In that case, however, no question arose but that the board acted in changing valuations after the time provided by law. In the present case the record does not show the amounts as originally assessed against the lands of the respondents, and this court cannot say as a matter of fact that the valuations upon the lands of these respondents were raised at all. Therefore it does not appear that the respondents are in any manner injured by the action taken.

The court below was not in error in the decree made. That decree must be affirmed, with costs.

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


author: Per Curiam.

text:
    HALL v. NESTER.
    Equity Jurisdiction — Continuing Trespass — Injunction — Damages.
    Where complainant was the owner of improvements along certain rivers, constructed for the purpose of driving logs down such rivers, and defendants, by force, seized such ments, and retained them for several weeks, and proposed retain them during an entire logging season, and wex-e using them in such manner that lands belonging to complainant were damaged, and liable to suffer further damage, the tres-1 pass being a continuing one, complainant was entitled to equitable relief by injunction and assessment of damages.
    Appeal from Marquette; Stone, J.
    Submitted October 27, 1899.
    Decided December 2, 1899.
    Bill by Lewis A. Hall against John F. Nester and others for an injunction. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      Clark & Pearl, for complainant.

      CTiadbourne & Bees, for defendants.'
   Per Curiam.

The opinion of the learned circuit judge so clearly states the issue and the principles of law and equity involved that we adopt it:

“The bill of complaint in this cause states that in 1891 the complainant and Robert H. Munson and William O. Busch organized a corporation known as the ‘ Yellow Dog River Improvement Company,’under the provisions of our statute, for the improvement of a small stream in said county, known as the ‘Yellow Dog River,’ a stream that flows through certain lands therein described; that said company also improved a stream known as ‘Iron River,’ which is the outlet into Lake Superior; that said improvement was for the purpose of assisting and facilitating the driving of logs down the said stream in the season of high water; that said company deepened the said streams, blasted out rock in their beds, and constructed a dam across the stream, and also constructed a dam, at the outlet of Lake Independence, across the said Iron river, for the purpose of raising the water in the said lake to furnish artificial floods with which to drive logs down the said Iron river into Lake Superior; that the said improvement company was the owner of all the lands surrounding said Lake Independence, except certain lots specified; and that said company improved said streams and erected said dams at an expense of $18,000. The bill states that on the 11th day of March, 1897, the said corporation was duly dissolved, and a receiver appointed; that, upon a request of all the parties in interest, the said receiver deeded all of the property of said late corporation to the complainant on the 3d day of May, 1898; that by said conveyance complainant became vested with the title to all of said lands, as well as the said dams and other improvements on the banks of the said streams, out to the thread or chan-' nel of the stream, ■ including the said dams specifically described in said bill; that complainant is the owner of the land upon which the dam on the said Yellow Dog river is situated.
“The bill states that the defendants have, during the past winter, lumbered and banked in the said stream about twelve million feet of pine sawlogs, and that said defendants have, without obtaining permission from complainant, or from said receiver, or from any other person having authority from complainant, taken possession of complainant’s said property, — not only his structures for raising water, but have also put in slash-boards, so as to flood complainant’s said land above the said dam, and have been flooding the same for about six weeks, and, without permission from complainant, defendants have been flooding the said land of complainant, which is covered largely with hard wood and mixed timber, which is liable to be damaged and killed by such floods; that the defendants assert that it is their purpose to use the said property of complainant by force, and without consent of •complainant, to aid in the driving of said twelve million feet of sawlogs down and through the said streams, without paying therefor, and to the detriment and damage of ■complainant; that said defendants entered upon the land of complainant near the said Lake Independence, and have taken possession of the logging-house belonging to complainant, and have occupied it as a logging-camp, without, permission and as trespassers, and have also taken possession of the gates belonging to the said dam at the outlet of Lake Independence, on complainant’s land, and have held the same by force, and that said defendants have .threatened to throw the employe of complainant, in charge of the said property, into the stream, and drown him, if he interferes with their occupation and use of the said property in any way. The bill proceeds to state the value •of the use of said property, and prays that the defendants be enjoined from using the structures of complainant upon his said land, and from taking complainant’s gates and slash-boards, and from closing the natural flow of said stream for the purpose of creating said storage of water and floods as aforesaid, and from building, placing, constructing, repairing, and maintaining or operating the said dams upon the said streams so as to cause complainant’s said lands to be used as storage ground for water and for reservoirs of water for producing floods as aforesaid, and from operating the dams on said, streams in any place from which the waters in said streams would be backed up and flowed on complainant’s said lands. The bill then prays for an accounting touching the amount due complainant by way of damages for flowage of said lands, and the destruction of timber, and for the use and occupation of said lands and water privileges, and also prays for general relief.
The bill was filed on May 6, 1898. I ordered that an injunction issue, but provided that, if defendants would •execute .a bond to complainant, conditioned to pay him the damages that he had sustained from the injury of the property of complainant named in the bill, and for the use and occupation of the same by defendants, the said injunction should be dissolved. I made this order because I did mot want to oppress the defendants, and because it seemed to me that to stop the logs where they were would cause them great damage. The bond was given, and no injunction was ever served. This bill has been demurred to upon the grounds that the facts as stated in the bill do not entitle complainant to an injunction, for the reason that no irreparable damage was alleged, and no damage is shown which cannot be fully, completely, and adequately compensated in damages recoverable in a suit at law, and because complainant has an adequate remedy at law, and the damages, if any, should be assessed by a jury. In considering this demurrer we must take the statement of facts in the bill as true. If this bill is true, the trespass here complained of is not a casual trespass. It presents a case where the defendants propose to usurp and seize the lands and property of the complainant, and use them for an entire season, — for the' court will take notice that to drive twelve million feet of logs down this stream would take an entire season; in fact, counsel for defendants, upon the argument, admitted that all of the logs had not yet been run down; and when the bill was filed defendants had been in possession of-some of the property for six weeks. The bill prays for a perpetual injunction to restrain defendants from a similar trespass in the future. This fact alone might furnish a reason why the court, should hold the case, and why damages alone might not-furnish an adequate relief.
‘ ‘ The first question to be answered is, Does the bill state-a case entitling complainant to an injunction? I think that the modern rule has enlarged the jurisdiction of equity in cases of trespass and other like cases. Mr. Pomeroy, in his Equity Jurisprudence, at section 1357, states the law to be this:
“ ‘ If a trespass to property is a single act, and is temporary in its nature and effects, só that the legal remedy of an action at law for damages is adequate, equity will not interfere. The principle determining the jurisdiction embraces two classes of cases, and may be correctly formulated as follows: (1) If the trespass, although a single act, is or would be destructive, if the injury is or would be irreparable, — that is, if the injury done or threatened is of such, a nature that, when accomplished, the property cannot be restored to its original condition, or cannot be replaced, by means of compensation in money, — then the wrong will be prevented or stopped by injunction. (2) If the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts, taken by itself, may not be destructive, and the legal remedy may, therefore, be adequate for each single act if it stood alone, then, also, the entire wrong will be prevented or stopped by injunction, on the ground of avoiding a repetition of similar actions. In both cases the ultimate criterion is the inadequacy of the legal remedy. All the cases, English and American, have professed'to adopt the inadequacy of legal remedies as the test and limit of the injunctive jurisdiction; but in applying this criterion the modern decisions, with some exceptions among the American authorities, have certainly held the injury to be irreparable, and the legal remedy inadequate, in many instances and under many circumstances where Chancellor Kent would probably have refused to interfere. It is certain that many trespasses are now enjoined which, if committed, would fall short of destroying the property or of rendering its restoration to its original condition impossible. The injunction is granted not merely because the injury is essentially destructive, hut because, being continuous or repeated, the full compensation for the entire wrong cannot be obtained in one action at law for damages. "While the same formula is employed by the courts of equity in defining their jurisdiction, the jurisdiction itself has practically been enlarged. Judges have been brought to see and to acknowledge — contrary to the' opinion held by Chancellor Kent— that the common-law theory of not interfering with persons until they shall have actually committed a wrong is fundamentally erroneous, and that a remedy which prevents ‘a threatened wrong is in its essential nature better than a remedy which permits the wrong to he done, and then attempts to pay for it by the pecuniary damages which a jury may assess. The ideal remedy in any perfect system of administering justice would he that which absolutely precludes the commission of a wrong, not that which awards punishment or satisfaction for a wrong after it is committed.’
“See foot-note for particular instances in which injunction has been granted. See Id. §§ 138, 170, 220, 221, 1346; Troe v. Larson, 84 Iowa, 649 (35 Am. St. Rep. 336); Shields v. Arndt, 4 N. J. Eq. 234; Holsman v. Bleaching Co., 14 N. J. Eq. 343.
“ Concurrent jurisdiction should be exercised when the object sought is incapable of being accomplished by courts of law; as, for instance, a perpetuál injunction, or a preventive process, to restrain trespass, nuisance, or waste. It may be said, therefore, that concurrent jurisdiction of equity extends to all cases of legal rights when, under the circumstances, there is not a plain, adequate, and complete remedy at law. Story, Eq. Jur. §§ 76, 926-929. If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action of law, there is no ground to justify interference in equity. But if a party thréatens to or does take possession of a man’s farm, or mill, or other real estate for a whole season, to the exclusion of the owner, must the owner stand by, and content himself with figuring out his damages ? I think not. So I conclude that the bill entitled the complainant to an injunction: That he did not get one is not his fault. The court had jurisdiction. The principle that equity, having once acquired jurisdiction, will retain it, to give such full relief as will finally dispose of the controversy, is well settled. Whipple v. Farrar, 3 Mich. 436 (64 Am. Dec. 99); Miller v. Stepper, 32 Mich. 194; Wallace v. Wallace, 63 Mich. 326; Drayton v. Chandler, 93 Mich. 383, 388; In re Axtell, 95 Mich. 244; Chase v. Boughton, 93 Mich. 285; George v. Light Co., 105 Mich. 5. The court sometimes sends the complainant to a court of law, as it did in Brown v. Gardner, Har. Ch. 299, cited by defendants’ counsel; but one of the reasons there stated was that the court did not feel called upon to keep the parties in the Supreme Court, and send an issue down to the court to try the question of trespass, and then, if so found, to assess damages. The general rule is, as stated above, to hold the case for the purpose of giving damages. The parties have all appeared, and are before the court. A bond has been given to pay any damages that may be found due. This court has the power, if deemed wise, to call a jury, and take its advice as to the damages, and I see no reason why the bill should be dismissed. As it is, the court will have power to order a perpetual injunction as to the future, and thus save another suit. The demurrer will be overruled, and the defendants given 20 days in which to answer, on payment of the costs of the demurrer to be taxed. ”

Decree affirmed, with costs, and the case remanded for further proceedings.


text:
    MILLER v. BROWN.
    Tax Sales — Validity of Decree — Failure of Court to Remain in Session.
    A decree for the sale of land for taxes is void where, on the day-fixed for hearing the auditor general’s petition, the court adjourned to a day six days later, and on that day adjourned to a day four days later, on which day the decree was ren- . dered; the taxpayer being entitled, under section 66 of the tax law (Act No. 206, Pub. Acts 1893), to five court days, after the day fixed for the hearing, in which to ask leave to file objections to the tax.
    Appeal from Kalkaska; Aldrich, J.
    Submitted October 27, 1899.
    Decided December 2, 1899.
    Bill by Cassius E. Miller against Frank E. Brown and John Sehler to quiet title. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      James H. McFarlan, for complainant.

      Wolcott & Ward, for defendants.
   Montgomery, J.

This is a bill to quiet title: The bill was dismissed, and complainant appeals. The complainant claims under a tax deed from the auditor general for taxes of 1893, on a sale made under a decree rendered October 4, 1895. It is contended that the decree authorizing sale was unauthorized, for the reason that the owner was not allowed five days in term within which to present application for leave to file objections. The order fixed the day of hearing as September 24, 1895. The circuit judge was not present on that day, but sent an order to adjourn the court to Monday, the 30th, which was done. The court was in session on the 30th, and adjourned to October 4th, when the decree was rendered.

Section 66 of the tax law (Act No. 206, Pnb. Acts .1893) provides that:

“ If, within the first five days after the day fixed in such notice for the hearing of such petition, it shall be made to appear to the court that any person has been prevented from filing objections to any tax, without fault on his part, such further time may be granted for that purpose as may seem proper, not exceeding five days.”

We think the owner of lands is entitled under this section to five court days; i. e., five days in which he can make it appear to the court that he has been prevented from filing objections* etc. See McGinley v. Mining Co., 121 Mich. 88. This does not mean five consecutive days, but five days in which the proceedings authorized may be taken. The case is unlike Gates v. Johnson, 121 Mich. 663. In that case it appeared that the court was adjourned from day to day for the express purpose of receiving applications, and that it was a fair inference that the judge was ready to appear in court at any time to hear any taxpayer desiring to present his claim. This was held sufficient. But in this case there was no opportunity to present an application to the court before September 30th, and after that date no other opportunity until October 4th.

The decree will be affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    TUCKER v. CHICACO & GRAND TRUNK RAILWAY CO.
    1. Railroads — Injury at Crossing — Contributory Negligence.
    Plaintiff stopped his horses 93 feet from a railroad crossing, and looked and listened, but neither saw nor heard an approaching train. He did not look again, but told his 15-year-old daughter to keep watch, and she appeared to him to be doing so. They were struck by a train which must have been visible to the daughter, had she looked, from any point within 75-feet of the crossing. The statutory signals, it was claimed, were not given. Held, that plaintiff could not recover.
    2. Same — Late Train.
    The fact that one approaching a railroad crossing knows that it is not the scheduled hour for any train does not relieve him of the duty to look and listen, he being chargeable with notice that trains often run behind scheduled time.
    Error to Eaton; Smith, J.
    Submitted November 14, 1899.
    Decided December 2, 1899.
    Case by Servetus H. Tucker against the Chicago & Grand Trunk Railway Company for personal and other injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.
    About three-quarters of a mile westerly of Bellevue station, plaintiff, while riding in a top buggy drawn by two gentle horses, with its sides and back closed, was struck upon the highway crossing by the defendant’s fast train, running at the rate of from 45 to 55 miles an hour. His daughter (15 years old) and his horses were killed, and he was seriously injured. For this injury he brought suit, and recovered a verdict upon the ground that the statutory signals were not given. Defendant’s roadbed runs in a south-westerly direction. The highway approaches it from the north and east at an acute angle. Plaintiff was driving westerly, and the train was westward bound. Plaintiff testified that, when about 93 feet from the track, he stopped, looked, and listened, and neither heard nor saw a train; that he walked his horses a few feet, and then started them in a trot at a gait of about 5 miles an hour, and neither saw nor heard the train, nor heard any signals, before he was struck; that he sat upon the right of the buggy, and his daughter upon the left, towards the approaching train; that he was familiar with the crossing, and regarded it as a dangerous one; that he told his daughter to keep watch; that she leaned forward, with one hand on the dashboard, looked in the direction of the approaching train, but gave no notice to him of its approach; and that the hearing and the eyesight of both were good. It is demonstrated by the plaintiff’s own evidence that, at a point 100 feet northerly in the highway from the center of the track, one could see a man on the track 825 feet easterly of the crossing, and a train or engine 1,073 feet from the crossing. According to the defendant’s testimony, from actual experiments, the train would be visible for about 1,500 feet. It is also conclusively established that, at any point in the highway within 75 feet of the crossing, the train was plainly visible as far as the station.

      JE. W. Meddaugh (Geer & Williams, of counsel), for appellant.

      Powers & Stine, for appellee.
   Grant, C. J.

(after stating the facts). Plaintiff himself did not look or listen while going 93 feet. A look at any time within 75 feet would have disclosed the coming train. Either his daughter did not look, or, if she looked, gave no warning. That she could have seen is unquestioned, for there was nothing to obstruct her vision. Defendant was running its cars at a lawful rate of speed. It was in the country. There was no occasion for slacking speed until some danger was apparent. The fact that the train was late is immaterial. Travelers are charged with notice of the fact that trains are often behind time, and their duty to look and listen is not lessened by the fact that the schedule time of a train is past. The case is clearly within the following decisions; Grostick v. Railroad Co., 90 Mich. 594; Gardner v. Railroad Co., 97 Mich. 240; Osborn v. Railway Co., 115 Mich. 102. In those cases other authorities are cited. See, also, Artz v. Railroad Co., 34 Iowa, 153; Pittsburgh, etc., R. Co. v. Fraze, 150 Ind. 576 (65 Am. St. Rep. 377); Chicago, etc., R. Co. v. Pounds, 27 C. C. A. 112, 82 Fed. 217; Southern R. Co. v. Smith, 30 C. C. A. 58, 86 Fed. 292 (40 L. R. A. 746).

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    GURD v. AUDITOR GENERAL.
    Tax Sales — Void Deed — Refunding Purchase Money — Mandamus to Auditor General.
    Under section 98, snbd. 3, of the tax law of 1893, authorizing the auditor general to refund the purchase price of lands sold for taxes in case the sale was made in contravention of any of the provisions of the act, mandamus will lie to compel the auditor to cancel a deed of state tax land, and to refund the amount paid therefor, where the notice of the original sale on which the deed is based was published in a newspaper printed in the Holland language. Following Visscher v. Ottawa Circuit Judge, 116 Mich. 666; Cockburn v. Auditor General, 120 Mich. 643.

      Mandamus by Alfred T. Gurd to compel Roscoe D. Dix, auditor general, to refund the purchase money on a void tax sale.
    Submitted November 14, 1899.
    Writ granted December 2, 1899.

      Thomas, Cummins & Nichols, for relator.

      Horace M. Oren, Attorney General, for respondent.
   Moore, J.

In February, 1897, the relator purchased from the State certain State tax lands, obtaining a tax deed therefor in the following June. He seeks now to have said deed canceled because it is void, and his money refunded. At the annual tax sale in 1894 in Ottawa county, the lands in controversy were bid in by the State for the taxes of 1892. The notice of the sale of these lands was published in a newspaper named De Grondwet, a newspaper published in the Holland, or Dutch, language. It is not claimed by the auditor general that this was a proper publication. He bases his refusal to refund the amount paid for these lands upon the ground that he has no authority to refund except as expressly provided by statute, and that it did not clearly appear to him that the statute in this case authorized him to refund.

Section 98 of the general tax law (subdivision 3) authorizes the auditor general to refund the amount paid by the purchaser “if the sale was in contravention of any of the provisions of the act.” I think it can hardly be contended that a sale would not be in contravention of the provisions of the act if no notice had. ever been published. If a void notice is published, how is the sale brought within the provisions of the act? In Visscher v. Ottawa Circuit Judge, 116 Mich. 666, where a notice like this was published in the same newspaper as the one publishing this notice, it was held the notice was void; and we think it follows that this notice, and all subsequent proceedings based upon it, including the deed which was issued to the relator, are void. In Cockburn v. Auditor General, 120 Mich. 643, it was held that the deed issued to the relator was, by virtue of the decision in Hughes v. Jordan, 118 Mich. 27, void, and should be so treated in that proceeding. It was also held, in effect, that the money paid to the auditor general by the relator in that case must be treated as the money of tin relator, and, when supplemented by a further payment, equal to the amount due the State and the taxes which were a lien upon the land, he should be entitled to a deed of the land for which he had applied. This case comes within the principle of that •case. It would not be contended that, if relator’s deed was held void by some court, he would not be entitled to have his money refunded. Neither will it be contended but that it would be the duty of a court to hold it void in a proper proceeding. We do not see how any good purpose can be served in requiring such a proceeding to be brought before the relator could obtain his money. The sale made by the auditor general of these lands was in contravention of the statute. The case comes within the provisions of the statute, and the writ of mandamus should issue. It is so ordered.

The other Justices concurred.


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    REED v. ST. CLAIR CIRCUIT JUDGE.
    1. Mandamus — Certiorari to Probate Judge — Jurisdiction of Circuit Court.

      Mandamus will not lie to compel a circuit judge to set aside a judgment reversing on certiorari an order of the probate court, upon the ground that the respondent had no jurisdiction to hear the matter on certiorari, since his action in assuming jurisdiction is reviewable on writ of error.
    3. Same — Order to Show Cause.
    The fact that an order to show cause was issued on an application for mandamus is not conclusive that mandamus is the proper remedy.

      Mandamus by Ann Reed to compel Watson Beach, presiding as circuit judge in St. Clair county, to vacate a judgment.
    Submitted November 14, 1899.
    Writ denied December 2, 1899.

      John L. Black and Herman W. Stevens, for relator.

      John B. Mcllwain and Frank Whipple, for respondent.
   Long, J.

Relator presented her petition to the probate court of St. Clair county, alleging she was the widow of Peter W. Reed, deceased, and asking statutory allowance out of his estate. From an order granting an allowance, the matter was removed by certiorari to the circuit court. Although a motion was made to dismiss the certiorari, the case went to hearing on its merits, and a final judgment was rendered reversing the order of the probate court. Relator now applies for mandamus to compel the circuit judge to set aside that final judgment.

The circuit judge returns that the facts were all agreed to, as follows:

1. That on December 26, 1863, Ann Reed left the» home of Peter W. Reed, deceased, in the city of Port Huron, during his absence, taking with her her daughter, and leaving in the house two little sons, and never thereafter returned or lived with him as his wife or as a member of his family.

2. That her remaining apart from him after that time was against his will, and in disregard of his repeated requests that she should return to him.

3. That in January, 1867, deceased went to live in Indiana, and on April 29, 1868, he obtained a divorce from Ann Reed in the court of common pleás of Vigo county, Ind., a court of competent jurisdiction; that he returned to Port Huron, July 3, 1868, and on July 22, 1868, was joined in marriage at St. Clair, Mich., to Caroline Jones, and immediately took up his residence in Port Huron, where he resided until his death, May 9, 1898, engaged during all that time in the practice of medicine, the said Caroline Jones Reed living with him openly and publicly as his wife until the fall of 1897, when they separated, and on March 6, 1898, were divorced, on her application, by the circuit court of St. Clair county.

4. That, at the time of deceased’s return to Port Huron, Ann Reed was a resident of said city, and continued to reside therein practically all the time to within three or four years of Dr. Reed’s death, and for several years within a block of him, on the same street; that she learned of the Indiana divorce shortly after his return, and knew that he and his second wife were living together as man and wife from shortly after their marriage, in 1868, to the fall of 1898, over 30 years, and took ho steps to assert any rights she might have as wife, or to question the Indiana divorce, until November, 1881, as hereinafter stated, and from 1868 to 1881 she supposed she was legally 'divorced from Peter W. Reed.

5. That on November 28, 1881, Ann Reed filed a bill for separate maintenance against Peter W. Reed in the circuit court for St. Clair county, in chancery, claiming to be his lawful wife, on the hearing of which a decree was rendered by said court in her favor, the court finding (a) that Ann Reed is, and was, at the time of the commencement of this suit, the lawful wife of Peter W. Reed; (b) that Peter W. Reed was of sufficient ability to support and maintain her, and did neglect and refuse to provide at all for or contribute towards her maintenance; that that case was reviewed by the Supreme Court, the decree below reversed, and the bill dismissed. Reed v. Reed, 52 Mich. 117.

6. That, upwards of four years prior to Dr. Reed’s death, Ann Reed was not a resident of the State of Michigan, but was living with her son, in the State of Dakota, and came to Port Huron, after his death, in response to a telegram from her son, and has remained here, at her son’s request, looking up evidence to contest the will of the deceased.

7. That Peter W. Reed died testate, disposing of his entire estate, which will was admitted to probate in the probate court of said county, from which an appeal was taken by the son and granddaughter to the circuit court, where the same is now pending.

8. That the order of the probate court granting the allowance to Ann Reed, as widow, was made May 2, 1899. Certiorari was promptly taken to the circuit court, and although a demurrer was interposed, and a motion to dismiss filed, they were not disposed of as preliminary matters, but, by agreement, the certiorari was brought on for hearing on its merits, and a final judgment entered thereon, July 8, 1899, setting aside the order of the probate court.

It is the contention of counsel for respondent (1) that mandamus is not the proper remedy, and that the case should come to this court by writ of error; (2) that the stipulated facts show that Ann Reed is not the widow of Peter W. Reed, deceased, nor a member of his family, and that the order of the probate court was an illegal exercise of authority, in excess of his jurisdiction, and therefore the case was properly brought into the circuit court by writ of certiorari, and that court properly set aside the order of the probate court. The main contention of cpunsel for relator here is that the probate court had jurisdiction to make the order, and, if the order was an appealable one, it must have been removed to the circuit court by appeal, and not by certiorari, and therefore that the order made by the circuit court is void.

It is well settled that mandamus does not lie when the remedy sought is the revision of a final judgment on matters of record, and when everything necessary to a determination may be returned on a writ of error. Olson v. Muskegon Circuit Judge, 49 Mich. 85. Neither will mandamus lie where there is any other adequate remedy. See Mardian v. Wayne Circuit Judge, 118 Mich. 353, and cases there cited. The same rule was applied in Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270, and it was said: “If the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case, the writ of mandamus ought not to issue.” In Olson v. Muskegon Circuit Judge, supra, it was said: “ On examination of the record, it is plain that the court is asked to revise the final judgment of the circuit court upon grounds and matters which appear of record, and where everything necessary to a determination would be regularly returnable on writ of error. That the jurisdiction by mandamus is not suitable is clear,” — citing Stall v. Diamond, 37 Mich. 429; O’Brien v. Tallman, 36 Mich. 13; Mabley v. Judge of Superior Court, 32 Mich. 190; Wiley v. Allegan Circuit Judge, 29 Mich. 487.

The fact that an order to show cause was issued in the present case did not rule the question that mandamus was the proper remedy. As was said in Olson v. Muskegon Circuit Judge:

“It frequently occurs, no doubt, that the court will not even go so far as to make an order; but, when this is so, it is because the case is so clear against the relator on the presentation of his papers that the court is not disposed to assent to any step which contemplates further cost. But the application being ex parte, it is not to be supposed that the court, though it allow an order, will consider itself or the defendant, who has not been heard, concluded on the question of the validity and propriety of the remedy.”

Since the return of the present case into this court, we are able to see just what the real controversy is, and what was stipulated to in the court below. The circuit court held that it had jurisdiction to hear the case from the probate court on certiorari. Relator contends that the circuit court had no jurisdiction to hear it on certiorari. The case falls so squarely within what was said by us in Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge on this point that no further discussion is necessary to show that mandamus is not the proper remedy. In view of this, we are not called upon to discuss or decide the other questions.

The writ of mandamus must be denied.

The other Justices concurred.


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    RATTENBURY v. COMMON COUNCIL OF VILLAGE OF NORTHVILLE.
    Intoxicating Liquors — Suppression of Sale — Hotels.
    A room in a hotel, set apart for the sale of intoxicating liquors at retail, is a saloon, within 1 Comp. Laws 1897, § 2769, subd. 7, authorizing villages to suppress saloons for the sale of liquors.

      Certiorari to Wayne; Carpenter, J.
    Submitted November 22, 1899.
    Decided December 2, 1899.

      Mandamus by George Rattenbury to compel the common council of the village of North ville to approve a liquor bond. From an order denying the writ, relator brings certiorari.

    Affirmed.
    Relator, desiring to sell intoxicating liquors at retail under the provisions of the general liquor law of the State, presented to the common council a bond, duly executed, and being in form such a bond as is required to be approved by the common council and filed with the county treasurer before the applicant is entitled to enter upon the business. The respondent was organized under the village incorporation act of 1895 (1 Comp. Laws 1897, chap. 87). The common council refused to approve the bond. Thereupon the relator applied to the circuit court for the county of Wayne for the writ of mandamus to compel its approval. That court denied the writ, and the case is now before us for review upon the writ of certiorari. In his petition for the writ of mandamus, relator alleged that he had purchased certain real estate in the village of North-ville, and was reconstructing a building situated thereon into a hotel, and that it was his purpose to conduct therein a hotel; that “he does not intend to keep a saloon for the sale of intoxicating liquors, but he desires to sell spirituous, fermented, and other liquors in connection with the keeping of said hotel, and the entertainment ■of guests therein, and as provided by the laws of this State.” The answer alleges that “it is the purpose and intention of said relator to conduct a bar for the sale of spirituous, intoxicating, and other liquors in connection with, and as a part of, a hotel.” The council refused its approval, “because there is an ordinance on the books of the village suppressing the sale of spirituous and intoxicating liquors. ” The ordinance provides that ‘ ‘ all saloons for the sale of spirituous and intoxicating liquors in the village of Northville shall be prohibited and suppressed,” and further provides a penalty for its violation.

      C. C. Yerkes (John J. Speed, of counsel), for relator.

      T. E. Tarsney and W. G. Fitzpatrick, for respondent.
   Grant, C. J.

(after stating the facts). In disposing of this case we shall treat the bond as sufficient. The sole question, therefore, is, Is that place in a tavern or hotel, where intoxicating liquors are sold, within the inhibition of the ordinance ? The statute provides that villages may, by ordinance, “ suppress saloons for the sale of spirituous and intoxicating liquors, and license taverns.” 1 Comp. Laws 1897, § 2769, subd. 7. Counsel for relator maintain that the room of a hotel, set apart for the sale of intoxicating liquors at retail, is not a saloon, within the meaning of the statute. The vice aimed at by the statute and the ordinance is the traffic in intoxicating liquors. The paraphernalia of the room in a tavern for selling liquors is the same as that of the place where the proprietor is solely engaged in that business. Its effect upon the community is the same. Probably no village tavern could afford to pay the United States government license and the State tax for the sole purpose of selling liquor to travelers alone. Residents will resort to the hotel saloon as frequently as they would resort to any other saloon. The general liquor law makes no distinction between the tavern keeper or the grocery man who is a retail dealer in. intoxicating liquors and those who engage exclusively in the business. They are all subject to the same regulations and restrictions. The tavern keeper is not restricted to sales to travelers who are his guests. The subterfuges to which many engaged in this business resort in order to evade the law is a matter of common knowledge, and we cannot close our eyes to this fact. It is the business, and not the place where it is carried on, which constitutes the saloon. It is manifest that, were the relator’s contention to prevail, the power conferred upon villages to suppress this traffic would be practically annulled. Any one desiring to keep a saloon would set up as a tavern keeper, keeping a few rooms ostensibly for the accommodation of travelers, while his real business is the liquor traffic. Boarding houses would also soon develop into taverns.

The, judgment is affirmed.

The other Justices concurred.