author: Stone, J.

text:
    STATE v. VENICE OF AMERICA LAND CO.
    1. Appeal and Error — Review—Equity.
    Upon the appeal of a cause in equity to the Supreme Court, the entire record is open for examination, while a judgment at, law may only be reviewed to ascertain whether or not the evidence supports the findings of the lower court.
    2. Indians — Land Grants — Conveyances.
    Grants of land to settlers by Indians made in the latter part of the eighteenth century were not recognized by either the American or British government.
    3. Public Lands — Grants—Presumptions—Lost Instruments.
    No presumption exists that a grant of lands near the Canadian boundary at the mouth of the St. Clair river was executed by the British government to early settlers, who obtained Indian deeds of the property and made several ineffectual attempts to confirm their title through the tribunals of Canada and the United States, and finally secured an aotof congress recognizing their title to other adjacent lands, but failed to claim at any such times the existence of a prior British grant, or the loss of papers relating thereto.
    4. Same — Patents oe Land — Description—Estoppel.
    The acceptance of such patent of lands from the United States with definite descriptions of the parcels granted estops the grantee from claiming adjacent public lands not included thereby or otherwise conveyed.
    6. Same — Great Lakes — Navigable Waters.
    Unsurveyed lands within the meander lines of Lake St. Clair at the mouth of the river, partly submerged at all times and wholly overflowed at regular intervals, included in Harsen’s Island, are held to be a part of the bed of Lake St. Clair, and to have passed to the State by virtue of its admission to the Union.

    6. Same — Evidence.
    The depth of water upon submerged land is not important' in determining the ownership.

      7. Same.
    Its condition, when the State was admitted into the Union, is conclusive of the question of title to the land.

      S. Same.
    The State of Michigan holds title to the bed of the Great Lakes in trust in its sovereign capacity for the use of the people.
    9. Trusts — Statute of Limitations.
    As to such lands held under the express trust, no statute of limitations runs against the State.
    Appeal from Macomb; Erskine, J.
    Submitted January 22, 1910.
    (Docket No. 117.)
    Decided April 1, 1910.
    Bill by the State of Michigan to enjoin the Venice of America Land Company from taking possession of, platting, and selling certain land. From a decree for complainant, defendant appeals.
    Affirmed.

      John E. Bird, Attorney General (Lincoln Avery and Grant Fellows, of counsel), for complainant.

      Frank T. Wolcott, Robert E. Frazer, and Alex. J. Groesbeck, for defendant.

       As to title to land under water, see note to Goff v. Cougle (Mich.), 42 L. R. A. 161.

   Stone, J.

The State of Michigan, through its attorney general, filed its information or bill of complaint in the circuit court for the county of St. Clair, in chancery, alleging that it is the owner of all that part of Harsen’s Island lying south of what is known as the “Private Claims,” being situate in the township of Clay, St. Clair county, Mich. The information was filed on April 26, 1906, and process, including a writ of injunction, was served on the defendant on April 27, 1906. The case was removed to the county of Macomb.

It is claimed on behalf of the State that it has title to the land in question upon two theories: First, by virtue of the swamp land act passed by the Federal congress in 1850; and, second, that the premises in question were covered with water and formed a part of the bottom of Lake St. Clair at the time Michigan was admitted into the Union of States in 1837, and that by the act admitting the State into the Union the State acquired title as trustee for the uses and benefits of the people.

The information was filed to restrain the defendant from selling lots in part of the territory bounded on the north by private claim No. 3, on the south by the waters of Muscamoot Bay, and on the east by unsurveyed land. The defendant had advertised in a newspaper published in the city of Detroit offering for sale lots within this territory, a part of which advertisement included a map of the St. Clair Flats and Harsen’s Island, upon which was indicated in black ink the territory claimed by the defendant. The information also stated that the State of Michigan in 1899 passed an act, being Act No. 175, Pub. Acts 1899, providing for the sale, disposition, and control of the swamp and overflowed lands in the township of Clay, St. Clair county, which had the effect to withdraw the same from sale, and reserve it for the use of the people of the State of Michigan as a hunting and fishing resort, which resort has been under the supervision, care, and control of the game warden of the State since July 23, 1899, the date of the approval of said act.

The defendant answered, claiming: That it is the owner in fee through a direct chain of title from one Jacob Harsen (through mesne conveyances), who obtained title from the British government, antedating the title of the United States to this territory, and denying that the State of Michigan was the owner of these premises either through the swamp land act, or the act admitting the State into the Union. That the lands have never been determined to be swamp lands, and that the government has withheld its patent from the complainant under the swamp land act (Act Cong. Sept. 28, 1850, chap. 84, 9 U. S. Stat. 519). That the upper portion of said lands has never been overflowed with water or swamp, but is dry, tillable, and fertile land, and that only a small portion of the lower one-third has ever been rendered unfit for cultivation by the overflow of water. In short, that fully two-thirds of the lands claimed by defendant are dry and high, and not even of a swampy character. The defendant also answered that the complainant’s right of action is barred by the statute of limitations, being section 9724, 3 Comp. Laws. Defendant also claimed in its answer that the State of Michigan is estopped from claiming title to any of this territory, under the swamp land grant, because the same was not included in the list of lands selected, by virtue of the act of the legislature, from the surveyor general’s list in 1852. It also claimed that the grantors of defendant have always claimed title to the unsurveyed portion of the island for over 100 years, and that its title has never been questioned by the United States.

A large mass of testimony, covering over 1,200 pages of the printed record, was taken, most of it before the circuit judge who heard the case. The case was submitted to the learned circuit judge, who found for the complainant, and because of the superior advantage which he had in seeing and hearing the witnesses testify, and because of the clearness of his opinion, we quote the same at large:

“This is an information in the nature of a bill in equity exhibited by the State of Michigan against the Venice of America Land Company, a corporation, to restrain the latter from taking possession of and platting and selling certain lands on the lower and un surveyed portion of Harsen’s Island, situate in the township of Clay, St. Clair county, and being a part of the territory embraced within the delta of the St. Clair river.
“The State claims to have derived title to all the unsurveyed part of this island from two sources: First, by the general swamp land grant of 1850, by which congress conveyed to the several States all of the swamp and overflowed lands within their borders. Second, by the act of congress of 1837, admitting it into the Union [Act Jan. 26, 1837, chap. 6, 5 U. S. Stat. 144], by virtue of which that part of St. Clair Flats including the lands in controversy vested in the State in trust for its people; the same being, a part of Lake St. Clair.
“The defendant denies title in the State and alleges that the lands in controversy were originally owned by Jacob Harsen, its ancestor in title, who many years ago acquired a grant of the island from the British government.
“ The testimony shows that the upper part of the island was settled by Jacob Harsen about the year 1785, and it has been occupied by himself and those claiming under him ever since, except a short period during the war of 1812, when it was temporarily abandoned on account of hostilities. After the treaty of 1783, it became a part of the United States, but remained in the zone of disputed territory until the boundary line was definitely settled by the boundary commission in 1821. The Harsens in 1783 obtained a deed from the Chippewa Indians of a portion of the island, which grant was confirmed by a later deed in 1797, embracing the whole island. But Indian deeds were not recognized by the American or British governments, and Jacob Harsen on July 2, 1790, applied to the British land board, assuming jurisdiction of the territory in question, for a grant of the island, alleging that it contained 700 acres of land. Action on this application was deferred until July 11, 1793, when, as appears by the minutes of the executive council, the highest tribunal in the province, the application was disposed of and it was ordered not granted. No further application was made by Harsen to a British land board for a grant.
“In 1805 the heirs of Jacob Harsen applied to the American land board at Detroit, a tribunal authorized by congress to entertain and dispose of land claims of this nature; but that board declined to receive the claim because of its unwillingness to act on claims to islands in the straits and lakes along the national boundary before the national boundary had been defined. After the determination of the boundary dispute, the Harsens again applied to the American land board at Detroit and were allowed, in pursuance of a partition agreement made between them on August 6, 1821, 640 acres of land each. These claims were numbered 1 to 5, inclusive, embraced the upper part of the island, and constitute what is known as the ‘ surveyed land.’ The survey of these claims was made by the United States governmentin 1828 and certain monuments, spoken of as ‘mounds/ were erected at the lower part of the surveyed land.
“Below these private claims are the lands known as the ‘unsurveyed5 or ‘government5 lands. They are low and marshy and of gradual descent to Muscamoot Bay, a part of Lake St. Clair. On the South Channel side of these lands, a belt or ridge extends from the island down into the lake, upon which has been erected during recent years, with the aid of dredging, filling, and sheet piling, numerous clubhouses and cottages. On the Middle Channel side a similar projection extends down into the lake; but the buildings are here not so numerous nor pretentious. All of these structures were erected without title or color of title; the occupants being simply squatters. Between these strips of land lies Muscamoot Bay, and the distance this extends towards the surveyed lands depends upon the stage of water in Lake St. Clair. In periods of high water the unsurveyed portion is practically submerged, while during the low stage there are portions upwards of two feet out of the water and capable of tillage. But these are only small fractions of the area involved, the general character of the lands being low and boggy, covered with marsh grass, cattails, rushes, flags, and other subaquatic vegetation, and constituting an ideal brooding ground and resort for certain wild game, as ducks, snipe, etc. The State, realizing this, has set it aside as a game preserve and has patrolled it with its game wardens.
“The area of the unsurveyed portion at the average stage of water is upwards of 8,000 or 4,000 acres, including the ponds, sloughs, and bogs. About one-half of this is land, the other half water, and a greater portion of this land but a few inches above the water and not capable of cultivation.
“The lands claimed by the defendant at the time the bill was filed commenced at or near the lower part of the surveyed lands and extended to Muscamoot Bay, a distance of two miles and upwards. The boundaries of this claim are indefinite and somewhat elastic; but it is estimated they embrace some 800 acres, and they include the highest portions of the unsurveyed land. The title relied upon by the defendant is by conveyance from a small fraction of the Harsen heirs, and from others claiming squattérs’ rights on a small portion of the premises.
“With this general statement of the facts, I will take up the questions involved in the litigation in the following order:
“1. As to the Claim of a British Grant to Jacob Harsen of the Island in Question. No grant was produced, nor record thereof offered in evidence; but the court-is asked to find as a necessary inference from the facts and circumstances in evidence that such a grant was in fact made, and that it covered the entire island. In support of this position, the defendant relies upon the testimony of alleged family tradition, long-continued occupancy, and claim of title of the island, by the Harsens, notice to the British government of their claim under Indian deeds, together with the alleged policy of that government to expel persons so occupying without permission or authority from the crown, loss or mutilation of the records of land boards, and various facts which defendant claims amounted to a recognition of title in the Harsens by the British and American authorities.
“ The defendant seeks to explain the nonproduction of the alleged grant by testimony which, if competent, tends to show that it was destroyed many years ago by fire resulting from an accidental explosion of a keg of gunpowder in the Harsen home, which, it is claimed, destroyed all the title papers and family records, including the family Bible. It appears, however, that the Harsen heirs in 1821 filed with the American land board at Detroit an Indian deed under which they claimed title, and it is not shown how this particular instrument escaped the fire.
“ Some of the Harsen heirs testified to the alleged tradition of a British grant, and say that it was freely talked of in the family by Francis and the other children, while others of the heirs of equal or superior means of information never heard of it. This is particularly significant in the testimony of Mary L. Stewart, a daughter of Francis, and Augustus Harsen, a son. The testimony relating to the alleged tradition, assuming that it is competent, is so indefinite and inconsistent with the facts of the case that I am unable to give it any weight. James May, an attorney of ability, appeared before the land board at Detroit, for the Harsen heirs, in 1821. It appears from his testimony before the board that he was acquainted with the Harsens and personally knew of their occupation of the island, its abandonment in 1812, its reoccupation, and its improvement. It also appears that he drafted the Grave-rat deed for Jacob Harsen in 1789. He also appeared before the land board in 1805, for the Harsen heirs, and was evidently their family attorney. Had there been a British grant, he would either have known of it personally or received information of its existence from the family. He knew undoubtedly that the treaty of 1814 between Great Britain and the United States expressly provided that grants made by either party thereto during its possession of the disputed islands should be valid. It also appears that Francis Harsen, one of the persons from whom the tradition is alleged to have originated, was before the board a3 a witness. Yet the British grant was not mentioned, and claimants were content to support their claim on the invalid Indian deed, coupled with occupancy, and to accept a grant of part of the island when they were in fact, as they now allege, already vested with a deed of the whole.
“ The reason why the executive council in 1793 rejected the application of Jacob Harsen does not appear from the records. The probabilities are that it was because the island was in disputed territory. Mr. Burton knew of no British grants of islands in this territory after the signing of the treaty of peace in 1783. Our land boards of 1805 declined to entertain applications of this nature for the same reason. This policy would prevent any subsequent reconsideration by the executive council of the Harsen claim, especially after the evacuation of Detroit in 1796. It is claimed that it was the policy of the British government to expel settlers on land whose occupancy was based solely upon Indian deeds, and the fact that Harsen was not molested argues in favor of the existence of a grant from the crown. But Harsen certainly had no grant up to 1793, when his application was refused by the executive council, and had occupied in peace under the Indian deed given in 1783.
“ It appears from the report of the land board to Lord Dorchester, dated October 17, 1789, that the whole tract of land from the Point Au Plage in Lake Brie to Lake Huron was claimed by individuals under Indian grants, and the records fail to show that any of these settlers were ejected. There appears to have been a marked disinclination on the part of the local officers intrusted with that duty to oust actual settlers, and the instructions and proclamations on the subject were evidently in terrorem.
“ In view of these circumstances, coupled with the policy of both countries not to actively interfere in the disputed territory until the boundary was defined, I do not think any inference in favor of a grant can be drawn from the unmolested occupancy of the island.
“I have been unable to find any recognition by the British government of title in the Harsens. As a matter of fact, the British had parted with title to the island by the Treaty of 1783, which probably antedated the Harsen occupancy. At this time the Walpole (South Channel) was the common ship channel, and the island was thrown naturally to the American side. It was not until later that the North Channel, by reason of its supposed greater depth, came more into general use. It is true the British claimed the island as crown land, but they knew their title was disputed by the American government. D. D. Smith, surveyor general of Canada, in 1799, included it in his list of islands in Upper Canada, and Thomas Smith, deputy surveyor, on November 24,1809, reported that all islands in the St. Clair river fell to the British side under the cession of 1783. He stated he had taken it upon himself to so announce to the settlers, but adds, however, that the United States had extended its jurisdiction to some of these islands. Notwithstanding the zeal of the surveyor general’s department, the executive council apparently refrained from too active jurisdiction over the disputed territory.
“On the part of the American government, it was never informed of the alleged claim of a British grant. Its land board in 1805 declined to pass on the Harsen and other similar claims till the boundary was settled. This is evidenced by the report of the commissioners on land claims in 1823 when they referred to the notoriety of the fact that former boards were at all times unwilling to act on claims to islands in the straits and lakes along the national boundary before the national boundary had been defined, established. The land board m 1821 was simply informed that the Harsens claimed under an Indian deed and occupancy. These claims were allowed and subsequently confirmed by congress in 1828, and patents issued therefor and accepted by claimants. If there was any recognition of title, it was on the part of the Harsens of the title of the United States.
“ There was no possession by the Harsens of the unsurveyed lands. During high water, the lands were covered with the waters of the lake. During low water, their cattle pastured portions of it in common with those of the other occupants of the island. Marsh grass was also cut in common on the unsurveyed portion, except on such lands as were occupied by squatters. No fences were built in the early day below the claims, and, when this part of the island became attractive to cottagers, they located apparently at will. It is true that McQueen, at the Fox Holes, made more or less forcible protests against squatters; but whether this was on the strength of the Harsen title or his occupancy does not clearly appear. McDonald took up quite a large piece of the unsurveyed land adjoining the private claims, and occupied for years, and, although neighbors of the Harsens, no claims were made by the latter of ownership until the Bartholomew survey in 1887. The defendant company platted and advertised for sale over a section of this land without protest from the Harsens, and it was not until this suit was commenced that it became impressed with the value of the Harsen title.
“I do not think that the older generation of Harsens ever made any serious claim of title to the lower part of the island. Some of their descendants in later years, probably influenced by the fact that the island was called ‘ Harsen’s Island/ and by the litigation on Dickinson Island, have set up a claim to it. The cottagers and other occupants of the unsurveyed lands were undoubtedly anxious to obtain color of title to support their possession, and McQueen was able to make conveyance for a small consideration in a few instances; but I do not think that either party to these transactions was much impressed with the value to the interest conveyed. No doubt for a similar reason an effort was made by some of these people to get on the tax roll, and the supervisors may have been willing to accommodate them. I do not think this fact works an estoppel against the State to now claim these lands, especially as it does not appear that any of the Harsens were assessed or paid taxes on these lands.
“For the reasons given, I conclude that the Harsens never had title to the unsurveyed portion of the island.
2. The Title of the State. I am of the opinion that the United States has not title to these lands, but that the State acquired title thereto, either on its admission into the Union, the lands being then lake bottom, or by virtue of the swamp land grant of 1850. Whether the lands were in fact a part of the lake would depend upon their character in 1837, when the State was admitted into the Union. I apprehend that the depth of water upon submerged lands is not important in determining its ownership. The fee of the adjoining proprietor does not extend to land covered by the waters of the Great Lakes. The title to such land is in the State in trust for the people, The public is not only interested in navigation,’ but has the right to hunt and fish in such waters; and it is immaterial whether they are deep or shallow or grown up with aquatic plants. Applying this test, what was the character of this land at the time the State was admitted to the Union?
“While in the Great Lakes there are no appreciable tides, yet the water level varies materially from time to time. During a period of years, the*waters in Lake St. Clair gradually rise, followed thereafter by a gradual fall.
‘ ‘ This is a matter of such frequent occurrence that many sailors have it that the water rises and falls every 14 years. The water level is also subject to variations during the different seasons of the year, and, so far as it relates to this island, is materially affected by ice jams in St. Clair river that occur during the spring of the year. High southerly winds also raise the water on the lower part of the island from a few inches to a foot; and during the winter months the unsurveyed lands are covered with ice, with the exception perhaps of a few ridges, or where the land has been artificially raised.
“ The highest water on the islands within the recollection of witnesses was in 1837 and 1838; the latter year seeing the culmination of the rise. During this period, some tillable lands on the mainland were abandoned, and a distillery belonging to Stewart on the fiats on the surveyed portion was washed away, and he was compelled to move his house to higher ground. The government chart of 1873-74, of Lake St. Clair, refers to the ‘high water of 1838 ’ as an epoch of high water, and by comparison shows how far the water levels of 1861 to 1872, inclusive, were below the high water of that period. It is inferable therefore that the water of 1858-59, an intervening period, was not as high as the water of 1837-38. The tables on this chart show that the waters of Lake St. Clair were 1.9 feet lower in 1871, the year the chart was in preparation, than in 1838. The water levels for 1871 show the mean level for that year to be 576.255; so that the water in 1838 was 578.155.
“We have no record of the water levels prior to 1819. In McNiff’s report of July, 1793, to the commandant at Detroit, he stated that the island contains nearly 300 acres fit for cultivation. In Harsen’s application for a grant in 1790, he stated that the island contained 700 acres. Assuming about one-half of the island was unfit for cultivation, the estimate of Harsen agrees substantially with that of McNiff. The latter was a surveyor, and made his report in the course of his duty, and it is probable it was reasonably correct. It would therefore appear that the lower part of the island was lake bottom at the time Harsen applied for a grant to the British authorities.
“ Testimony of the witnesses clearly shows that the unsurveyed portion of the island in periods of high water was covered with water. This also appears from the government chart of 1873-74, just referred to. The chart was made from topographic as well as hydrographic surveys, and shows nearly all the lands claimed by defendant company to have been covered with the waters of the lake at the time the survey was made.
“ It is my opinion that the lower part of Harsen’s Island, including the lands in controversy, was covered by the waters of Lake St. Clair when the State was admitted into the Union, and that the State was vested with the title thereto, in trust, and is entitled to the relief asked.”

The case is here on appeal by defendant after decree.

We have examined the evidence, documentary and oral, upon the subject of the claimed British grant to Jacob Harsen of the island in question. The evidence strongly tends to negative any such grant. In fact, the evidence satisfies us that the older generation of Harsens never made any real claim to the lower portion of the island, being the unsurveyed land. When the patents were issued for the five parcels, or lots, it is evident that this satisfied the claim made at that time. Every case must be governed by the evidence therein.

It is true that in State v. Dickinson, 129 Mich. 221 (88 N. W. 621), this court held that a grant of lands of which there is no direct evidence may be presumed from facts and circumstances, even as against the State. That case related to Stromness Island. It was an action of ejectment, and was tried by the circuit judge, who prepared and filed voluminous findings of fact and conclusions of law. This court was only permitted, under the rules of law, to look into the evidence for the single purpose of ascertaining whether there was any evidence tending to support the finding of the circuit judge. This was found and the finding affirmed.

In the present case the whole record is before us, and is open for examination. It appears that Jacob Harsen made application to the British land board in July, 1790, for such a grant, claiming that the island contained 700 acres. The application was considered by the executive council of the Province on July 11, 1793. This council seems to have been the only tribunal then authorized to confirm a title, or authorize a grant, outside of the crown. It refused the application. The evidence shows that Jacob Harsen settled upon this island in the early eighties, and, inasmuch as he made an application for his grant in 1790, it would seem to be conclusive from this that no grant or confirmation of his claim had been made prior to that time. Before this application he had an Indian deed to a portion of the high land at the upper end of the island. About four years after said refusal of the executive council, and after the British had evacuated Detroit in 1796, two sons of Jacob Harsen obtained a second Indian deed, which refers to the first Indian deed. But Indian deeds were not recognized by either the American or British governments. In 1805 one James May, the family attorney for the Harsens, appeared before a Federal board or commission seeking to have the claim of the Harsens confirmed. He was informed by this board, as appears by his testimony before the American land board, at a later date, that the then board had no authority to confirm titles in the territory of the disputed boundary between Canada and the United States. For this reason no action was taken by that board. It would seem a natural inference, therefore, that there then was no British grant of this territory to the Harsens prior to 1805.

In 1807 an act of congress provided for a commission, consisting of the secretary of the Territory of Michigan, the register of the public land office, and the receiver of public moneys of the land office at Detroit, giving the commission, or a majority of it, power to hear and decide claims to lands. Act March 3, 1807, chap. 34, 2 U. S. Stat. 437. This commission was continued in existence by two subsequent acts of congress. Many claimants for land, and among them the Harsen heirs and those claiming under them, appeared before this commission. This commission reported recommending the confirmation of the title of Jacob Harsen’s heirs to the upper portion of this island, and in April, 1828, congress passed an act confirming the title to those heirs, or claimants under them, who appeared before this commission. Subsequently patents were issued for the said five lots or private claims, in the upper part of the island. In State v. Fishing & Shooting Club, 127 Mich. 580 (87 N. W. 117), there appears a map which fairly represents the island, and the location of the five lots and claims, that were patented. In all these proceedings (and there were a number of witnesses, including James May, before the commission) no mention seems to have been made of any British grant. Nor does there appear to have been any claim of the loss of any papers relating to a grant. It is fair to suppose that all of the evidence accessible was produced. Manifestly the refusal of a grant cannot be the basis of a presumption of a grant.

We think that the record in this case does not correspond with the record in the Dickinson Case, but that there is a clear distinction between them. We shall not point out all of these disagreements. In the Dickinson Case it appeared that his grantors had always claimed the whole island, and had driven oft intruders from all parts of it. In this case it appears that the territory in question was used, occupied, and enjoyed, in so far as the same was capable of being used, occupied, and enjoyed, by any one who saw fit. Dickinson and his predecessors had always paid taxes on the entire of Stromness Island. In this case the record declares that no Harsen had paid taxes on the unsurveyed premises. Unlike the Dickinson Case, it appears here that any one who desired to take up territory below the mounds did so without objection from the Harsens. Indeed, it appears that the defendant platted the land in controversy here, and offered it for sale to the public, to the extent of several hundred acres, without protest from the Harsens, and it was not until after the bill in this case was filed that the defendant acquired the so-called “ Harsen title.”

There is force in the contention of the complainant that the acceptance by the Harsen heirs of patents from the United States government which contain a definite description estops them from claiming land outside of those descriptions. Manning v. San Jacinto Tin Co., 9 Fed. 726; Ross v. Doe, 1 Pet. (U. S.) 656; Samson v. Smiley, 13 Wall. (U. S.) 91. See many cases cited in 26 Am. & Eng. Enc. Law (2d Ed), pp. 387, 388. We shall not discuss this branch of the case further. We are willing to leave this question, including the claimed family traditions, where the circuit judge left it, simply citing Cline v. Catron, 22 Grat. (Va.) 378.

Any attempt to here review in detail the testimony as to the condition of the premises in question would extend this opinion beyond any reasonable limit. We shall, however, quote from two or three- of the witnesses of the defendant as to the conditions at different times.

Capt. Albert E. Stewart, of Detroit, was born on this island in 1846. He testified on direct examination as follows:

Q. Do you know where Rattray’s is ?
“A. Yes.
“ Q. It is next to Rattray’s place ?
“A. Oh, well, there is land there. I have been there within three years; saw corn grow back there.
Q. How was it in 1864 ? Fit for cultivation ?
“A. Well, I couldn’t say in ’64; it must have been in ’64, because I was cutting hay down there at the Fox Hole, and I assume that the water was low that year. The water gets high and low. Sometimes this whole country has been inundated, and at other times it would be dryland.
Q. That is, the ice may back up the water ?
“A. Yes, that would be only for a period, short period; but I have seen the water high there for a whole summer.
Q. On what land ?
“A. Why, in the whole island, for that matter, nearly, I have seen it so that we had to hitch the boat to our garden fence to my place; now it is as high land as there is there, for a whole season as that I couldn’t get from my place to the river without a boat.
“Q. That is on the surveyed portion?
“A. Yes, sir.
“Q. Can you recall what year that was in, Captain ?
“A. No, I cannot. I know we always kept a boat there during that whole year, perhaps other years; and in fact I know there were other years when the water was very high. My father has always contended that the water was higher and lower at stated years; that is, that there would be a period of years in which it would be high, and then there would be a period in which the water would be low. In fact, he has taken me to what is now water is hardly low enough now to raise crops on; and you can go there now today, if you want to, and you can find the dead furrows where it has been plowed, plowed before my time. In fact, I can’t remember when it was plowed. It was plowed before that. You can go and pace off so many paces for plowed land there, they call them dead furrows, so many paces. You will find if you step off seven paces, about 21 feet, you will find out you strike a dead furrow nearly every time.
“Q. What portion of the island is that on ?
“A. That is the surveyed portion. * * *
“Q. We have a table of the level of the water there, Captain, appearing on page 501 of the record in the Olds Case. Now, by looking at that, you can state, the year 1864 and the years previous to that time, about how the one compared with the other ?
“A. Oh, at times.
”Q. That is a government record.
“A. Well, I notice it varies here some, but not very much.
“Q. Well, for a few years back of 1864, did it vary materially ?
“A. ’64?
“Q. Yes.
“A. There is some difference in it, of course. In’62, 575, we will say, taking a record, 577 in August we will say, and 576 in ’63 in August, 576 in ’64 in August, of course a fraction of a foot; I have seen the water there two feet high in a whole year, whole season.
“Q. The whole island ?
“A. The whole island, notwithstanding the record.
“Q. Well, that would affect the land on the shore just the same, would it not ?
“A. It certainly would.
“Q. Both on the American and Canadian shore ?
“A. Yes.”

And on cross-examination he testified as follows:

“Q. Now, I take it from what you say, that there are periods of high and low water during the times that you have lived on the island ?
“A. Yes, sir.
“Q. That period of high water, it takes about seven years for it to come up to the highest point, doesn’t it ?
“A. I couldn’t say that. I don’t know the number of years. I said my father discussed that.
“Q. Isn’t that the tradition of the island that it takes seven years for the water to come up to its highest point and seven years for it to recede to the lowest point P
“A. You don’t want me to say that because I don’t know that.
“Q. I was asking you if you had heard that tradition or talk among the old settlers ?
“A. I can’t state the number of years; but I know it takes a period, as you say.
“Q. Don’t you know there are periods of years when it is some years until it comes to the extreme high point, and then it will take some years until it gets to the low point ?
“A. I will assume that might be true, in any case.
“Q. Then that is true of Harsen’s Island; in other words, there are periods of high water and periods of low water, and that varies, and then it takes some time for it to get up to a period of extreme high water, and then from extreme high water it takes some time for it to go to a period of extreme low. water, that is correct, isn’t it, Captain ?
“A. I assume that might be true; yes, sir.
“Q. And the number of years it takes to go from one extreme point to the other extreme point, you are not able to state ?
“A. No, sir.
Q. Now, during the periods of extreme high water as you remember them on the unsurveyed portion of the island, it would be practically covered with water wouldn’t it ?
“A. Yes, sir; I think it would.
Q. And also a considerable of the surveyed portion?
“A. Certainly.
Q. The place you speak of as the Fox Hole is one of the highest points on the unsurveyed part of the island, isn’t it ?
“A. I don’t know.
Q. Well, as you recollect it, isn’t it ?
“A. I couldn’t say that.
Q. What other points are there on the unsurveyed portion of the island where you have been to cut hay ?
“A. There isn’t any.
Q. What was the character of the hay that you cut at the Fox Hole ?
“A. Well, prairie hay.
Q. Prairie hay?
“A. Yes.
Q. Coarse hay, you mean ?
“A. Why, yes.
Q. Not timothy, is it ?
“A. Oh, no; it isn’t timothy, nor even redtop.
Q. Not clover ?
“A. No.
Q. What you would call coarse marsh hay, isn’t it, Captain ?
“A. Well, it was hay such as we fed our cattle.
“Q. I mean, it was such hay as grows on marshy ground.
“A. Certainly not marsh ground, but prairie ground. I wouldn’t say marsh; that kind of hay would be too coarse. The cattle couldn’t eat it.
“Q. The speaking of it as prairie land don’t mean similar to the western prairies ?
“A. Oh, no; I don’t know anything about that, not the alfalfa.”

Capt. Eber Ward, called by the defendant, was 84 years old at the time his testimony was taken. He had, during his earlier life, sailed a small side-wheeler steamer running from Detroit to Port Huron; going up one day and down the next, passing through the South Channel along the territory in question. His boat was named the “ Huron,” and was 180 feet long, and drew from 4£ feet to 5 feet of water. On cross-examination he testified:

tlQ. I understand this channel you speak of near Algonac is a cut-off; it cuts off a portion of Harsen’s Island ?
“A. Yes, Harsen’s Island, and the upper end is called ‘ Russell’s Island.’
“Q. It is the cut-off that is there today ?
“A. Yes, but it is not navigable.
“Q. Since the olden times that has been dredged out some?
“A. Maybe it is, I don’t know about that.
“Q. At the time you were running on the lakes, you thought there was enough water in there to float the Huron ?
“A. Yes, sir.
“Q. At the time of the high water in ’38 that you speak of, what was the condition of the lower part of Harsen’s Island ? Was it practically submerged ?
“A. No, there was water in the marshes. It wasn’t exactly submerged. There was rushes and grass.
“Q. The vegetation appeared above the water, but wasn’t the land itself submerged ?
“A. The land itself ?
“Q. Was it always submerged ?
“A. I think it was always submerged.
“Q. And the part that appeared above the water was simply the vegetation ?
“A. Yes, the rushes.
“Q. And you thought the lower part of the island below the woods wasn’t of any great value ?
“A. There was no buildings or anything, and it wasn’t worth anything. There was a building that somebody built there. It was all vacant. I wouldn’t take it as a gift.
“Q. Where Bedore’s is, and the little church is, that was all practically submerged and low marsh land ?
“A. Yes, sir.
“Q. The steering that you did by the bank that was by reason of the difference in the color in the water, you could tell where the bank was ?
“A. We could tell where it was usually by the color.
“Q. And in the summer time after the vegetation grew up you could tell by the vegetation ?
“A. We had that to guide us, of course.
“Q. You speak of the high water of ’38, had it commenced to get high water, or had the water commenced to come up, before that year ?
“A. In ’37 the water was, I don’t know as it was high then, but in ’38 it rained tremendously, and heavy snows that winter, and the water came up high.
“Q. Have you any recollection one way or the other whether from ’34 the water commenced to rise culminating in ’38 ?
“A. I wasn’t here in’34.
“Q. Have you a recollection whether in’37 the water was above normal ?
“A. It was above normal, but not as near high as ’38. It kept going up until ’38 and then stopped.
“Q. With a stiff wind from the south, the water would come up much higher ?
“A. Yes, raise it along the river St. Clair and the flats.
Q. In the winter time would the ice cover the lower part of the island, I mean below the woods ?
“A. No, it didn’t go on to the land, the ice didn’t. It would go up to the bank.
Q. Have you seen the water when it would be high enough so there would be ice on the island ?
“A. Perhaps, but I never seen much ice on the island.
“ Q. Have you sailed in the winter ?
“A. I have sailed as late as January.
“Q. But not during the season when the ice would be along there ?
“A. The ice would make some years earlier than others.
“Q. A considerable part of this lower part where the buildings now are, the clubhouses and cottages is on made ground ?
“A. Yes, they dug the channel or canal and threw up the earth, and that makes it or raises it.
“Q. And they put their buildings on there ?
"A. Yes.
“Q. And some of the buildings were built on piles ?
“A. Lots of them are built on piles. I would rather take the land higher up.”

Abram Smith, one of the defendant’s witnesses, swore generally, upon direct examination, that the condition of the island in general appearance about the year 1838 was as it is now.

“Q. Now, previous to 1838, did you see cattle feeding on the lower part of Harsen’s Island ?
“A. Yes, sir; going by on boats.
“Q. How far down would they go ?
“A. Oh, well, I didn’t see them down a great ways; I probably saw them down a half a mile.”

And on cross-examination he testified as follows:

“Q. This high water that you speak of in 1837, that washed away buildings, was that building on the surveyed land ?
“A. Sir ? On the surveyed land ?
“Q. Yes.
“A. Why, yes; it was. The Stewart section 1 building was; and the other was on the Harsen, Jacob Harsen, section.
‘ ‘ Q. Both of them on what we call the £ private claims ?’
“A. Yes.
“Q. So that the water in 1837 was high enough to wash away buildings that were on the—
“A. I don’t know; it was about that time. I wouldn’t be specific, it was along there, ’37 or ’38, you know. It washed away buildings or land so that they moved the buildings. I don’t know that it washed away the land on which Jacob Harsen’s house was on; but it made it very unpleasant, so they moved the house back.
“Q. But it was about 1837 ?
“A. Yes, ’37 or ’38.
“Q. And that was as high water as you saw along in those years ?
“A. I think so; I wouldn’t say. It might— Yes, it was as high as I saw, that I know of.
“Q. And that water was so high that the lower portion of the island, the portion that is called the £ unsurveyed land,’ was all covered ?
“A. No, I don’t think it was. Most all of it was, though.
“Q. Practically all of it ?
‘‘A. Yes, sir.”

Mary L. Stewart, granddaughter of the original settler, testified to the condition on the unsurveyed portion as follows:

“Q. I understand you to say that when it was high water the biggest part of the unsurveyed portion would be covered with water ?
“A. Yes, sir.
“Q. And at ordinary times a considerable portion of it would be covered.
“A. Yes.
“Q. And wouldn’t the majority of it be covered at ordinary water; that is, from the mounds down ?
“A. Yes, sir.”

We do not mean to indicate by the above quotations that all of the defendant’s witnesses testified to the conditions as stated by these witnesses. The defendant examined a large number of witnesses, and it is impossible to reconcile all of the testimony in the case, as there is a sharp conflict. Many of the witnesses were old people, of varying intelligence and recollection.

There is unnecessary criticism of witnesses by counsel upon both sides. In the nature of things, and according to the experience of any person at all accustomed to hearing and weighing oral evidence of this nature, it generally appears that witnesses will vary in the recollection of facts or conditions existing from a quarter to a half century ago, in a very large degree. It is the duty of a court to weigh the reasonableness of such testimony, and try to get at the truth. Of course, we know that witnesses are at times prone to allow their interest or partisanship to warp their recollection.

That these were unsurveyed lands, and within the meandered lines, is significant. Upon this whole record we are satisfied that the circuit judge reached the right conclusion upon the facts in the case, and there is no profit in a further discussion of the evidence. By a preponderance of the evidence, both oral and documentary, we conclude, as did the circuit judge, that the premises in question were in fact a part of the bed of Lake St. Clair at the time of the admission of the State of Michigan into the Union, and that the title to the fee passed to the State by virtue of the admission.

The depth of water upon submerged land is not important in determining the ownership. The condition of this territory when the State was admitted into the Union is the condition which must control. That the State of Michigan holds these lands in trust for the use and benefit of its people — if we are correct in our conclusion — cannot be doubted. The State holds the title in trust for the people, for the purposes of navigation, fishing, etc. It holds the title in its sovereign capacity. People v. Silberwood, 110 Mich. 103 (67 N. W. 1087, 32 L. R. A. 694); State v. Fishing & Shooting Club, 127 Mich. 580 (87 N. W. 117).

An exhaustive discussion'of the nature of the State’s title to the land beneath the waters of the Great Lakes, and of the question whether any part of such territory can be acquired, as against the State, by adverse possession, will be found in the minority opinion of Justice Hooker in the last above case. It there clearly appears from an abundance of authority that title to submerged lands in the Great Lakes held by the State cannot be devested by adverse possession; it being held in trust for the public, according to the original cession from Virginia and the ordinance of 1787. The late case of Illinois Steel Co. v. Bilot, 109 Wis. 418 (84 N. W. 855, 85 N. W. 402, 83 Am. St. Rep. 905), supports this view. Olds v. Commissioner of State Land Office, 150 Mich. 134 (112 N. W. 952); Ainsworth v. Hunting & Fishing Club, 159 Mich. 61 (123 N. W. 802).

The questions of water line and estoppel are answered by the above authorities.

The trust in the State is an express trust; and the rule is too well settled to need citation of authorities that, as against the State as the trustee of an express trust, the statute of limitations will not run. 1 Cyc. p. 1113, and cases cited.

The decree below is affirmed, with costs.

Montgomery, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    SCHMIDT v. BARCLAY.
    1. Mortgages — Equity—Foreclosure of Deed as Mortgage.
    While the burden of proof is on one who seeks to show that a conveyance absolute in form is in fact a mortgage, a preponderance of the evidence is sufficient, and complainant is not required to satisfy the court beyond a reasonable doubt.
    3. Same — Evidence—-Weight.
    The adequacy of price is a consideration of great weight in determining the character of such an instrument.
    8. Same — Conveyances—Deeds as Mortgages.
    Upon a review of the evidence it is held, as a matter of fact, that a deed of real property worth upwards of $75,000, incumbered by a mortgage of $38,000, for a consideration of $16,516.93 was given as a mortgage.
    Appeal from Wayne; Murphy, J.
    Submitted January 14, 1910.
    (Docket No. 79.)
    Decided April 1, 1910.
    Bill by Ida W. Schmidt against William L. Barclay to have a deed absolute in form declared to be a mortgage. From a decree for complainant, defendant appeals.
    Affirmed.

      James Q. McHenry (A. B. Hall and John T. Nichols, of counsel), for complainant.

      Edward E. Kane and Allan H. Frazer (William L. Carpenter, of counsel), for defendant.
   MOORE, J.

The trial judge filed a written opinion in this case, from which we quote as follows:

“ The complainant herein seeks relief appropriate to the theory that a deed, absolute in form, executed and delivered by her to the defendant upon July 15, 1905, was mutually intended to be, and in legal effect is, a mortgage. She filed her bill of complaint April 24, 1908. Amended bills were subsequently filed as of the respective dates May-23, 1908, February 11, 1909, and March 16, 1909, the last-mentioned one, the only one signed by the complainant herself, being filed during the progress of the hearing. The cause is at issue upon the answer filed to the original bill, counsel for the defendant having stated during the hearing that in their view no necessity for any other or further answer had arisen by reason of the filing of the amended bill, and that the answer first filed might be regarded as interposed to the bill as finally amended.
“ The facts established by the proofs I find to be as follows: Prior to the delivery of the deed, each of the parties hereto owned an undivided half of the northerly half of lot number 38, in section 8, of the Governor and Judges’ plan of the city of Detroit. This property is situated upon the west side of Woodward avenue, between State street and Grand River avenue, In the heart of the choicest retail section of the city. This northerly half has a frontage of 30 feet on W oodward avenue. The southerly half of the lot is owned by a third party. Upon the entire 60 feet there stands a modern business structure erected in 1890 at a cost of $49,000.
“The complainant acquired her interest in the property through the death of her father, who died intestate in 1897. His ownership wasacquiredin 1889. After his death, his heirs seem to have made an amicable division of his estate. In the allotment this property was assigned complainant at a valuation of $45,000, this sum, though an undervaluation, being agreed upon as equitable because of a corresponding undervaluation placed upon certain realty assigned the widow, who was the stepmother of complainant.
“From 1872 until the time of his death, complainant’s father, Traugott Schmidt, and the defendant, had been acquainted. As the years progressed, the former placed great reliance in Barclay. The latter gave his time chiefly to the conduct of a carpet and furniture business. For at least eight years this business was carried on by a corporation, Detroit Carpet & Furniture Company, of which Mr. Schmidt was president and Mr. Barclay vice president, though Mr. Schmidt’s active attention was given to other interests. The intimacy increased after Schmidt purchased the parcel in 1889. He bought from defendant’s sisters. Very soon thereafter the construction of the building referred to was begun; Barclay having sole supervision of the work.
“When completed, the entire charge of the Schmidt interest, as well as his own, was intrusted to Barclay. He collected the rents, decided upon and superintended repairs, and was, indeed, given sole management. Mr. Schmidt’s confidence in Barclay was shared by other members of the Schmidt family. When Mr. Schmidt died, though the complainant had not theretofore been personally acquainted with Barclay, she unhesitatingly continued to permit the management, after she had acquired ownership, to be exercised solely and unquestionably by the latter. This situation continued without interruption to the day of the execution of the deed in controversy.
“For many years complainant had been an invalid, unable to walk, and requiring the constant attendance of a maid. Upon the hearing, seated in an invalid chair, she spoke with manifest physical effort. While of a certain alertness of mind, she is, as her business dealings show, and as, perhaps, is not unnatural in one who has long labored under great and constant physical distress, lacking in that business capacity which sees danger and guards against it. Her share of her father’s estate had in July, 1905, been largely dissipated, either in speculation or profitless business projects, some of which latter were always regarded as chimerical by others. Upon the realty in question there was in July, 1905, a mortgage of $28,-000. She was then being pressed and harassed by creditors, and judgments had been taken against her. She had in hand a business venture, in which she had great faith, but which needed finances. The only productive portion of her heritage, and practically the only remaining piece, was this property.
“ She had implicit faith in the defendant. He, in turn, knew her true condition financially. He knew the other difficulties under .which she labored, including an estrangement from the members of her family. The one source whence she expected disinterested guidance was from this defendant. In her dilemma she turned to him. He had always advised her against parting with the property in dispute. If retained, it would insure her ample support during all her days. And so she sought him with a project for raising further money.
“ If there is any one thing conclusively established by this record, it is that at the time of the giving of the deed this property at its very lowest value was worth $75,000. I think it correct to say that the bare land was worth that sum, and that a true valuation must include in addition thereto, one-quarter of the then worth of the building, which may conservatively be put at $12,500. * * * In her extremity, complainant asked the defendant for funds, agreeing that the property should be held by him to secure repayment. * * * The entire arrangement was concluded solely by complainant and defendant. It resulted in the adoption of a plan by which he was to take a deed of her interest, coupled with an agreement to reconvey, to be contained in a separate instrument. In figuring up her financial needs she estimated that the difference between the figure at which she accepted the property, $45,000, and the incumbrance upon it, including accrued interest, would be sufficient for her purposes. This gave her $16,516.92. She was to have the right to redeem after three years. * * *
“ Fortunately complainant is not without very satisfying corroboration of her version of these interviews. This is furnished by the witness Grace Brown Tyree, who was maid to complainant at the time and until November, 1905. This witness was intelligent, frank, and honest. * * *
“ The gross inadequacy of the consideration, the distress of the complainant, the improbability that she would part with the one thing in the world to which she could assuredly look for support — these are circumstances strongly supporting the facts which are established by the" words of living witnesses.
“Much stress is laid upon the discrepancies between the original bill and the several amended bills. This is a situation deserving careful attention. Nor has it been overlooked. However, it finds explanation in the complainant’s condition of health and in a dissatisfaction with foreign counsel, who, at the outset, had charge of this litigation. It is significant, too, that at one time the complainant manifested distrust of counsel proffered by her brother, though later this was removed, for to this solicitor was confided the laboring oar upon the hearing. The one bill herein signed by herself is drawn in conformity with the proofs adduced. What led to the signing of the other bills by counsel is not disclosed, save as the facts just recited may be a disclosure.
“ These conclusions are reached with due regard for the high character given by the law to an instrument executed with the formality requisite to a deed absolute, and one so complete and unambiguous upon its face. The true course in controversies such as this was indicated by Judge Graves, in an analogous situation :
“ ‘Each case/ he said, ‘must be decided in view of the peculiar circumstances which belong to it and mark its character, and * * * the only safe criterion is the intention of the parties, to be ascertained by considering their situation and the surrounding facts, as well as the written memorials of the transaction.’ Cornell v. Hall, 22 Mich. 382.
“ * * * As to the character of the proof required to be adduced by complainant in sustaining the onus of her case, I think, upon the authority of the following cases, that a preponderance of the proof is sufficient, and that the complainant has amply met this duty. Sanborn v. Sanborn, 104 Mich. 184 (62 N. W. 371); Kellogg v. Northrup, 115 Mich. 328 (73 N. W. 230); Cady v. Burgess, 144 Mich. 531 (108 N. W. 414).
‘ ‘ While the defendant would not be permitted to profit by his fraud in withholding the collateral agreement, a parol agreement to reconvey upon repayment is of itself sufficient to constitute the deed a mortgage. Wall v. Albion College, 130 Mich. 528 (90 N. W. 321).
“The bill was prematurely filed, as the right to redeem did not accrue until July 15, 1908, whereas suit was begun April 24, 1908. This objection would have been good upon demurrer. This objection appears upon the face of the bill. No benefit of demurrer is claimed in the answer. * * *
“ I think the issue raised by the answer herein and the taking of proofs upon it preclude the defendant from asserting this objection at a time long subsequent to the day when complainant’s right of action accrued. To turn the complainant from the court at this time and subject her, the defendant, and the court itself, to a repetition of the pleadings and a reiteration of the proofs, does not commend itself to one’s sense of right. Nor is it required by right practice. Sarter v. Gordon, 2 Hill Ch. (S. C.), 137; Lowry v. Lawrence, 1 Caines (N. Y.), 69; Bemis v. Faxon, 4 Mass. 263; Cheetham v. Lewis, 3 Johns. (N. Y.) 42; Waring v. Yates, 10 Johns. (N. Y.) 119.
“No agreement appears to have been made as to the interest to be paid by complainant upon the money advanced her. An agreement to pay interest is, however, implied by the law, and this will be fixed at the legal rate. Justices Sherwood and Champlin. in McMillan v. Bissell, 63 Mich. 71 (29 N. W. 737).
“A decree may be entered conformable to this opinion and to the prayer of the bill.”

Such a decree was entered, and the case is brought here by appeal. In the omitted portions of the opinion the trial judge analyzed and characterized the testimony from his point of view. The printed record contains more than 400 pages. There are seven carefully prepared briefs, and the case was argued orally at length by very able solicitors. The legal questions involved are not complicated, as like questions have been repeatedly before, and decided by, this court.

The solicitors for the defendant contend as follows in their brief:

‘The burden of proof in Michigan, as elsewhere, where it is sought to show a conveyance absolute in form was intended as a mortgage, is upon him who asserts the defeasible character of the instrument. Kellogg v. Northrup, 115 Mich. 327 (73 N. W. 230).
“ The rule in the State of Michigan is stated by Judge Graves as follows:
“‘The natural and prima facie effect of aconveyance expressing no condition and regularly executed in the presence of attesting witnesses, and duly acknowledged as an absolute deed, ought not to be controlled and qualified by oral evidence, and brought down, to the effect due to a mere security on a slight showing. The great current of authority is distinct in holding that the party thus seeking to modify the operation of the instrument and prove himself entitled against the terms of his own deed to an equity of redemption is not only bound to make out that the transaction was in truth and justice nothing more than the giving of security, but is required to do so by a force of evidence sufficient to command the unhesitating assent of every reasonable mind.’ Tilden v. Streeter, 45 Mich. 533, 540 (8 N. W. 502).
“This language of Judge Graves is approved in toto in Etheridge v. Wisner, 88 Mich. 166 (48 N. W. 1087). The rule in Tilden v. Streeter, supra, is just another way of saying that the evidence required must satisfy the court beyond a reasonable doubt, and confirms a previous opinion of the Michigan Supreme Court, wherein it was said:
“‘It would, we think, be exceedingly dangerous, and tend to weaken confidence in titles generally, if the effect of deeds of conveyance, leases, or other written evidences of title could be thus changed by a verbal agreement, except in very clear cases where the contract is proved to the entire satisfaction of the court. It should never be done upon a slight preponderance of evidence. The court should be satisfied beyond a reasonable doubt.’ Case v. Peters, 20 Mich. 303.
“ ‘ To divest title on parol evidence alone, the preponderance of evidence should be clear, and the evidence should be so convincing as to leave no reasonable doubt upon the mind. ’ Hunter v. Hopkins, 12 Mich. 228.
“Judge Campbell, in Reynolds v. Campbell, 45 Mich. 531 (8 N. W. 581), where a bill was filed to correct a deed so as to make the conveyance subject to mortgages, and excepting a crop of wheat from its operation, says:
“ ‘But it is enough to say that without a very convincing preponderance of evidence in favor of complainant no relief can be granted.’
“ Judge Graves, in concurring with Judge Campbell in the same case, quoted the opinion in Case v. Peters, supra, including the rule:
“ ‘The court should be satisfied beyond a reasonable doubt.’ ”

It is undoubtedly the law that the burden of proof is upon the one who seeks to show that a conveyance absolute in form is in fact a mortgage. Kellogg v. Northrup, 115 Mich. 327 (73 N. W. 230). But we do not understand it to be the rule that this must be shown beyond a reasonable doubt, as contended by counsel.

It has been said:

‘ ‘ There is no fixed or definite standard by which the court can determine the sufficiency of evidence that will justify the declaring an instrument on its face a deed to be a mortgage; it being impossible to lay down any decisive tests and fixed rules by which it can be ascertained with mathematical accuracy whether in any particular case clear and convincing proof has been adduced that an instrument prima facie a sale was in reality a mortgage. But every case must of necessity depend upon the circumstances peculiar to itself.” 20 Am. & Eng. Enc. Law (2d Ed.), p. 954, and note 2.

In Ferris v. McQueen, 94 Mich. 367 (54 N. W. 164), where a question of fraud was involved, Justice Long, speaking for the court, said:

“In speaking of the other claims of fraud made by counsel for defendant, the court stated to the jury:
‘“Fraud must be proved, and must not be inf erred from slight circumstances. Fraud may be proved, however, by circumstantial evidence as well as positive proof. Where fraud is charged, express proof is not required. It may be inferred from strong presumptive circumstances. Fraud will not be presumed upon slight circumstances or mere suspicion, but the circumstances must be such as to amount to clear proof before a party can be held liable for fraud, and it must be consistent with the acts of fraud charged, and inconsistent with honesty and good faith.’
“ It is claimed that this was error; that it was misleading to the jury; that the court was in error in stating that ‘fraud must be proved, and must not be inferred from slight circumstances;’ and again, in saying that ‘ it may be inferred from strong presumptive circumstances. ’ In O'Donnell v. Segar, 25 Mich. 378, it appears that the jury were told by the trial court that ‘ they could not infer fraud, and that it could not rest upon implication.’ It was said by this court:
“ ‘We know of no such rule of evidence in reference to the question of fraud. It is, like any other fact, to be proved by any facts and circumstances which satisfy the mind of its existence, and may be, and generally is (when found), inferred from circumstances, and cannot often be proved in any other way.’
“The court in the present case, however, told the jury that fraud could ‘ be proved by circumstantial evidence as well as positive proof;’ and yet a limitation was placed upon this by adding that these facts and circumstances must not be slight, and the inference could only be drawn from strong presumptive circumstances, which must amount to clear proof. The rule is that fraud may be proved, like any other fact, by facts and circumstances which satisfy the mind of its existence, and it is a question for the jury when there is any evidence to warrant the finding. Ás was held in Freedman v. Campfield, 92 Mich. 118 (52 N. W. 630), when there is a scintilla of evidence, the verdict will not be disturbed. We think the court was not justified in the use of this language, and that the rule laid down is not upheld by the cases. In Watkins v. Wallace, 19 Mich. 77, Mr. Justice Campbell, speaking of the charge in that case, says:
“ ‘ We think, however, that in charging the jury concerning the proof of fraud, the language used had a tendency to mislead the jury into a belief that more stringent proof was necessary than the law requires.’
“The judge charged them that ‘fraud will not be presumed from slight circumstances. The proof must be clear and conclusive.’ This was held error, and the case reversed. It is a little difficult to see any distinction between such a charge and the one given here. The court did not say that the proof must be conclusive, but did say that it must be clear, and, in effect, that it could not be inferred except from strong presumptive circumstances. As in Watkins v. Wallace, supra, it may be said that:
“ ‘ It might have misled the jury as to the amount and quality of proof required. No such rigid rule prevails in any civil case. Common sense teaches every one to be cautious in arriving at conclusions which are prejudicial to character and honesty; but, if the testimony produces a rational belief, a civil jury cannot be required to discard it because it is not conclusively established.’
“We think the court was in error in this part of the charge.”

In Kellogg v. Northrup, 115 Mich. 327 (73 N. W. 230), where the question involved was whether a conveyance absolute in form was a mortgage, Justice Grant, speaking for the court, said:

“ The onus probandi is upon him who asserts that a written instrument is not what it imports upon its face to be. A deed may be shown to be a mortgage. McMillan v. Bissell, 63 Mich. 66 (29 N. W. 737). While the court in that case were equally divided as to the effect of the proofs, all the justices agreed that a deed absolute upon its face maybe shown to be defeasible by parol upon adequate proof. Justice Sherwood recognized the rule that in such case the proofs must be clear and convincing, and said:
“ ‘Something more than a bare preponderance of proof should be required to change the character of the instrument expressed upon its face.’
‘ ‘ Chief Justice Campbell stated that that was one of the very few cases where an attempt was made on the part of the grantee to declare the deed defeasible, and said:
“ ‘ It ought not to be done without entirely satisfactory proof.’
“Undoubtedly, either a grantor or a grantee may establish the defeasible character of the instrument. Such suits usually arise in courts of equity, either on the part of the grantor to redeem, or upon the part of the grantee to declare the deed a mortgage, and to foreclose. In either case the onus is upon him who seeks to change its character. * * * A preponderance of evidence is sufficient. Ferris v. McQueen, 94 Mich. 367 (54 N. W. 164).”

In Sanborn v. Sanborn, 104 Mich. 180 (62 N. W. 371), the bill was filed to set aside a deed on the ground of fraud and duress, or, if not set aside, to have it decreed to be a mortgage, and for an accounting. It was said:

“We think it established by a fair preponderance of the evidence that this deed was given as security. * * * It follows that the deed was in fact a mortgage, and the only proper remedy for the defendant was by a bill in chancery to foreclose it. ”

An accounting was ordered. See Cady v. Burgess, 144 Mich. 523 (108 N. W. 414); Sowles v. Wilcox, 127 Mich. 166 (86 N. W. 689); Wall v. Albion College, 130 Mich. 526 (90 N. W. 321); McNaughton v. Smith, 136 Mich. 368 (99 N. W. 382).

A consideration which should have great weight in characterizing the transaction is whether the price was adequate. In a case where the question was whether a conveyance absolute in form was a mortgage the court said:

“In such cases the pecuniary embarrassment of the grantor, his indebtedness to the grantee, and inadequacy of consideration are circumstances the court looks to in determining the true character of the instrument. They were all set forth in the bill. And of the three inadequacy of consideration is the most important. For without that, why declare a deed a mortgage F No good would come of it, and there would be nothing to warrant the inference of undue advantage always relied on by the court and made the basis of its action in this class of cases.” Emerson v. Atwater, 12 Mich. 314.

See Reilly v. Brown, 87 Mich. 163 (49 N. W. 557).

In McArthur v. Robinson, 104 Mich. 540 (62 N. W. 713), the court said:

“We think, on the whole record, that the complainant has sustained her case by a preponderance of the testimony. It is settled that it is competent to show by parol that a deed absolute in form was in fact made as security for a loan. McMillan v. Bissell, 63 Mich. 69, 70 (29 N. W. 737). It is true that in this class of cases the proof ought to be clear and convincing, and sufficient to overcome the presumption that the instrument in question truly represents the transaction in its entirety; but in weighing the testimony in such cases the fact that there was a considerable inadequacy of consideration, which fact appears in this case, as well as the fact that the original application was for a loan, which appears beyond a question to have been the fact here, are deemed of weight and importance in determining the main question. See 1 Jones on Mortgages (6th Ed.), §§ 266, 329.”

In Reed v. Reed, 75 Me. 264, in deciding a case involving the same question as the one before us, the court said:

“In examining a transaction of the kind now before us the embarrassed circumstances of the grantor are material. And the inadequacy of the sum advanced, compared with a fair cash value of the premises conveyed, is of great moment ; for property holders are not obliged to sell their property for a sum much less than its fair value, since they can readily realize its real value in the open market. And it is much more reasonable that they should give security on it than sell it for much less than what they can thus realize. Rich v. Doane, 35 Vt. 125.
“ ‘When no fraud is practiced,’ said Mr. Justice Curtis, in Russell v. Southard, 12 How. (U. S.) 148, ‘ and no inequitable advantages taken of pressing wants, owners of property do not sell it for a consideration manifestly inadequate, and therefore, in the cases on this subject, grea.t stress is justly laid upon the fact that what is alleged to have been the price bore no proportion to the value of the thing said to have been sold.’
“ See, also, the oases cited by him. So the general current of authorities holds that courts incline against conditional sales, as they do against forfeitures; and when, upon all the circumstances, the mind is uncertain whether a security or a sale was intended, the courts, guided by prudential reasons, will treat it as the former. 1 Jones on Mortgages (6th Ed.), § 279, and cases cited in note 8; Conway v. Alexander, 7 Cranch (U. S.), 218.
“ ‘ Courts of equity,’ said Poland, C. J., in Rich v. Doane, 35 Yt. 125, 128, ‘have followed the rule of regarding the mortgagor as the weaker party, dealing at a disadvantage and needing protection, so that such cases have been watched with jealousy; and, if enough is proved to render it fairly doubtful whether the conveyance was a mere security for a debt, or an absolute conveyance with right of repurchase, the premises have been held redeemable.’
“ Under such circumstances, such a decision ‘is more likely to subserve the ends of abstract justice and avert injurious consequences.’ 1 Jones on Mortgages (6th Ed.), § 279, and cases in note 2.”

See Cobb v. Day, 106 Mo. 278 (17 S. W. 323); Wilson v. Patrick, 34 Iowa, 362; Gossum v. Gossum (Ky.), 15 S. W. 1057.

Great stress is put by solicitors for defendant upon the differences which appear between the original bill of complaint and the amended bills of complaint. They also argue with much detail th^ alleged inconsistencies in the testimony of the complainant and her maid, while the solicitors for the complainant criticize severely the testimony and conduct of defendant. The record, though long, has had our careful attention. It would profit no one to go into detail as to what it shows in relation to the pivotal question in the case, which was one of fact. As to this question, there is a direct conflict between the complainant and defendant. The circuit judge possessed the great advantage of seeing and hearing the witnesses. He, also, without doubt, knew the property involved, as it is in the heart of the best retail district of the largest city of the Commonwealth. He regarded it as conclusively established that the property conveyed was, at its lowest value, worth $75,000. This conclusion is warranted by the testimony of many of the most competent real estate dealers in Detroit. There was a $28,000 mortgage upon the property. The complainant was paid $16,516.92, while the record clearly shows that her interest in the property was worth at least $46,000. The property was among the most valuable real estate in Detroit, located where it was constantly increasing in value. It is unbelievable that one would sell an interest in real estate worth $46,000 for $16,516.92. We think the conclusion is very clear that the parties did not contemplate an absolute sale.

The decree is affirmed, with costs.

Hooker, McAlyay, Brooke, and Blair, JJ., concurred.


author: Hooker, J.

text:
    HATHAWAY v. HATHAWAY.
    Specific Performance — Deeds—Conditions Subsequent — Support of Grantor.
    The specific enforcement of provisions in a deed of land to a son, conditioned upon the support of his aged mother, will be compelled by requiring him to provide a reasonable maintenance for her except during such time as she should elect to live with him, where the infirmity and trying disposition of the mother render the performance of the contract by living in one household impracticable.
    Appeal from Shiawassee; Miner, J.
    Submitted January 12, 1910.
    (Docket No. 39.)
    Decided April 1, 1910.

      Bill by Catherine Hathaway against Frank Hathaway and others for the specific performance of a land contract. From a decree for complainant, defendants Hathaway appeal.
    Modified and affirmed.

      Albert L. Chandler, for complainant.

      Walsh & Pardee, for appellants.
   Hooker, J.

The complainant, a woman about 72 years of age at the time, made a contract with her son for her support. She then resided upon premises worth about $1,200, of which her husband had been seised when, a few years earlier, he had died intestate. Her . other children conveyed their interests in the premises to defendant, upon condition that he make this contract, and she also made a deed to him of her interest, and he entered under said deeds and the contract. The bill complains of ill treatment, constituting a breach of the contract, and of such a character as is alleged to have justified her withdrawal from the home, and is filed to compel defendant to specifically perform the contract, and prays, in case of his failure to comply with its requirements, an enforcement of the lien provided for in said contract, by sale of the premises and application of the proceeds to her support under direction of the court. The cause was heard on pleadings and proofs taken in open court, and the learned circuit judge determined that the complainant “was entitled to equitable relief,” and decreed that defendant pay to the complainant, or her solicitor, the sum of $9 a month, each and every month, except during such time as she should live with him, if she should thereafter elect to return to his house. The decree also provided:

“And that said amount of money be and is hereby made a lien upon lot 11, in block A, of Mary A. Ghipman’s addition to the city of Owosso, which lien may be enforced by execution against said premises, provided defendants shall make default in such payment.”

Defendants Hathaway have appealed.

Our examination of the testimony leads us to the conclusion that the complainant was of a trying disposition, and we do not find any indication of a desire or attempt on the part of the defendant to avoid his duty under the contract. It is noticeable that the decree omits to find a breach of the contract specifically, and merely states that the complainant is entitled to equitable relief — which, perhaps, implies a breach. In our opinion, that can only be justified by taking into consideration the infirmity of age and the illness of the complainant, which must be, and probably were, considered by the learned circuit judge in determining the measure of kindness and forbearance contracted for — a greater degree of forbearance than defendant and his wife succeeded in showing complainant; and, when we consider the discomfort of persons under circumstances such as these, we incline to some sort of a decree which shall relieve them, if the law will justify it, realizing that the trial judge, who saw the witnesses and heard them testify, was in a much better situation to judge accurately on these questions of fact than we are.

Again, his sisters have given up their interests to defendant, for the support of the mother, and it would be hardly just to allow him to avoid any contribution after it becomes evident that it is impracticable for them to live as one household. We therefore determine that in making this contract defendant overestimated his ability to perform his obligation of kindness, and that, failing therein, he should be required to substitute some other kind of support for his mother than that provided, and, in requiring that, we are of the opinion that the decree is a fair and just one, and therefore affirm it, with costs, and a modification, viz., that after the word “premises” there be inserted the words “upon petition to, and order of, the circuit court.”

The decree is thus modified and affirmed.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


text:
    WELSH v. MICHIGAN MAPLE CO.

    1. Sales — Breach—Severable Contract — Payment.
    Failure to pay for shipments of lumber at the times fixed by a contract of sale, under which it was to be shipped at the rate of 100,000 feet a week, and to be paid for in fifteen days from the date of each invoice, constitutes only a breach of a severable condition, and does not justify a rescission, in the absence of an intention on the part of the buyer to abandon his contract, or facts authorizing the seller to believe that he so intended.
    2. Evidence — Appeal and Error.
    A ruling excluding evidence of the buyer’s insolvency is not reversible error where the fact was admitted by the testimony of the buyer.
    Error to Osceola; Sessions, J., presiding.
    Submitted January 21, 1910.
    (Docket No. 109.)
    Decided April 1, 1910.
    Assumpsit by Thomas R. Welsh against the Michigan Maple Company for breach of a contract for the sale of lumber. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Harris & Buegsegger, for appellant,

      Howard F. Withey, for appellee.

       Rehearing denied July 15, 1910.

   Hooker, J.

The parties entered upon the performance of a written contract which required the defendant to ship to the plaintiff 3,000,000 feet of a given grade of lumber at the rate of 100,000 feet per week, a bill of lading to pass from the First National Bank of Reed City, where payment was to be made on or before 15 days from the date of invoice, less 2 per cent, discount. From November 8, 1906, to July 24, 1907, the defendant shipped all but 660,000 feet of said lumber, and, according to defendant’s claim, all but 582,168 feet.

Upon the claim that the plaintiff had broken the contract, by reason of his persistent failure to make payments seasonably throughout the period, and existing arrearages, the defendant refused further performance, and plaintiff brought this action to recover damages for defendant’s failure to perform the contract, and recovered a verdict and judgment for $2,457.93, from which defendant has appealed.

Plaintiff’s brief appears to admit that he did not make payment according to the terms of the contract and concedes that:

“Defendant had the right to insist on a strict performance of the contract, and that if plaintiff failed to fulfill his obligations, after being notified to that effect by defendant, the latter would have been justified in refusing to make further shipments under the contract, provided it itself had performed its obligations with the same strictness that it demanded of plaintiff.”

It claims, however, that the parties modified the contract (a) by express agreement; (b) by a tacit waiver of strict performance. The contract requires payment within 15 days after the date of invoice. Inasmuch as the logs were shipped, with draft attached to bill of lading, the plaintiff could not obtain the lumber without paying the draft, and he was obliged to forego the credit or permit the lumber to remain on the car subject to demurrage.

It is claimed that, in view of this situation, the defendant consented to allow the bank to permit plaintiff to receive the lumber, the bank promising to become responsible for his payment of the draft, and that such practice was followed and acquiesced in. This arrangement is not very satisfactorily proved, and there is little reason for saying that plaintiff was a party to it, while defendant denies it in toto, and its acts have been inconsistent with it. We are of the opinion, however, that it has little to do with the crucial question in the case. Whether the agreement was made or not, the bank would be liable if the lumber was delivered without payment, and in either case it would not make plaintiff’s failure to pay within 15 days any the less a breach of the contract. It is not claimed, as we understand it, that the alleged agreement with the bank contained any release of the plaintiff from his obligation to pay in 15 days, or that the time was extended. At the very most, it can only be claimed to have been a waiver by the defendant of the requirement of payment before delivery. The same may be said regarding the tacit waiver. Such waiver would go no further, unless it be said that, because the defendant did not in every instance exact payment before making another shipment, it bound itself to follow the practice, and ship all the lumber contracted whether the plaintiff should continue in arrears or not. The proof shows that for a time the shipments conformed to the contract. After that they did not at times, but in such instances the plaintiff was in arrears as to payment for logs already received. The correspondence shows that defendant was at all times insisting on payment, every shipment was accompanied by express instructions to the bank not to deliver until payment was made, while the bank as regularly disobeyed these instructions, of which we fail to find any evidence that defendant was informed.

We are unable, however, to distinguish this case from West v. Bechtel, 125 Mich. 144 (84 N. W. 69, 51 L. R. A. 791), in principle. The contracts differ only in the provision of the latter for the security afforded by the delivery through the bank, thereby making payment a condition precedent to the delivery of any installment. There is nothing in this or any other provision of the contract which justifies the contention that the contract is not separable, or that the general rule applicable to such contracts should not apply. Under this contract, payment, not shipment, is the dependent promise, and, while delivery in its terms may be dependent on payment, that fact does not relieve defendant from the duty of performance by shipment. The undisputed facts made it proper for the learned trial judge to instruct the jury that there was nothing in the case to indicate that the plaintiff intended to abandon his contract, or to authorize defendant to act upon such belief.

Counsel for defendant ask that the cause be reversed for the reason that the trial judge excluded certain testimony tending to show the plaintiff’s insolvency. The testimony of Mr. Welsh showed that he was the Welsh Manufacturing Company, and that in July, 1907, shortly before defendant’s refusal to perform the contract, that concern was insolvent. Necessarily, if that was true, he was insolvent, for he was the company, which we understand was not a corporation. It was an admitted fact, therefore, that Welsh was insolvent in July, 1907. The several assignments relied on to cover this point do not give the pages of the record where the testimony was offered and excluded, and we are unable to find that they refer to anything on the subject of insolvency, not placed beyond dispute by Welsh’s testimony. Our attention is not called to any assignment of error upon the charge or refusal to charge upon this subject.

The judgment is affirmed.

Montgomery, C. J., and Ostrander, Moore, and Stone, JJ., concurred.