text:
    Henry M. Rice, Administrator, etc., v. The Third National Bank of Detroit, Garnishee of Charles W. Gauthier.
    [See 97 Mich. 414.]

      Garnishment — Liability of bank.

    In proceedings against a bank as garnishee of a depositor, the officers of the bank testified to an agreement with the depositor that he should at all times keep a balance to his credit of $1,000 to cover his liability on returned drafts. At the time-of the service of the writ of garnishment the depositor’s balance was less than $1,000, and it appeared from the testimony of the plaintiff that both before and after' such service said balance had been and was far below that sum. And it is held that proof of the existence of said agreement was not negatived by said last-mentioned testimony, the same being entirely consistent therewith.
    Error to Wayne. (Frazer, J.)
    Argued January 9, 1895.
    Decided February 26, 1895.
    Garnishment proceedings. Defendant brings error.
    Reversed, and judgment entered in this Conrt for defendant.
    The facts are stated in the opinion, and in 97 Mich. 414,

      O. E. Warner, for appellant.

      Charles W. Gasgrain, for plaintiff.
   McGrath, C. J.

This cause was before this Court in 97 Mich. 414. A second trial resulted in a verdict for plaintiff.

The testimony of the officers of the bank as to the existence of the agreement that a balance of $1,000 should be kept on deposit to cover Gauthier’s liability on returned drafts was not disputed, unless it can be said that the testimony that at times both before the service of the writ and afterwards such balance did not appear by the books of the bank to have been retained tends to negative the fact of the existence of such an agreement. On November 20, when the writ was served, there was a balance of $979.23 to the credit of the principal defendant. On November 21 this balance was reduced by debits, and on November 22 it was reduced to $7.94. It was also shown that at various times before the service of the writ, and after the date last given, the balance to the credit of the principal defendant was much below the $1,000. These facts were shown from the books by one who was an employé of the bank during the period covered by the transactions, but had no knowledge of their nature. He testified that—

“Gauthier was accustomed to bring in, from time to time, a large number of drafts in one deposit. They were deposited as cash, and were placed to his credit on the day they were deposited. These drafts were forwarded for collection, and, in case they were returned unpaid, any of them, we would charge them back to Mr. Gauthier’s account. The credit which was given to Gauthier upon these drafts upon the day that they were deposited was nothing more than a temporary credit, subject to be offset by these drafts returned unaccepted and unpaid.”

The witness could not tell whéther the debits were on account of unaccepted drafts or not. He further testified that—

“We do not charge back these drafts'until we get them back, and find them unpaid.- I do not know anything about this account in particular. I .am only speaking of it as a representative of a class of' accounts. We would not assume that any particular draft would come unpaid. We waited till it did come back, and then charged it up to the account. All the entries on this account were made by Mr. McDonald, who is still in the city. * * * Gauthier had three ways of raising money; that is, by depositing the actual cash or cash items, by deposits of ■unaccepted drafts, and by deposits of discounts. The method in detail of doing business with Gauthier was as follows: Gauthier was engaged in the fish business, — forwarding fish. He would forward fish, generally to parties in the East, and at the time he shipped the fish, or shortly -afterwards, he would draw upon them for the value of the .shipments. Those drafts he would deposit with us. We would give him credit for the face of them, and we would then forward them to our correspondents, wherever the party might be located on whom they were drawn, for collection, and when the drafts were paid they would remit the proceeds, and that would reimburse us for what we had credited him; ‘ or, if it was not, it would be returned to him, and we would charge it back to him, and reimburse ■ourselves.
“ Q. In other words, wipe out the credit that he had got on the basis of the drafts the day they were drawn?
“A. Yes, sir.
Q. Suppose he had this balance of $975, and he had went in there with a check for $900, would you have honored the check or thrown it out?
“A. Ordinarily, we would have refused it, except as in the case of granting a man an overdraft, if he can show—
Q. Would you have honored it, or wouldn’t you?
“A. I cannot answer that by yes or no, because we might have one time and we might not. It would be -optional with us. These things depend very largely upon the circumstances of the case.
Q. You might have honored it under those circumstances when it would be optional whether you. would or not?
A. We might have honored it when it was optional with us, I mean. The bank had nothing to do with Mr. Rice, the plaintiff in this case, at all. As I understand, so far as this question is concerned, it is merely a question between our bank and Mr. Gauthier.”

Testimony was introduced by defendant which tended to show that the items charged to the depositor on November 21 and November 22, by which the balance was reduced, were for returned drafts, although it was conceded that one debit of $5 was on account of cash paid upon a check drawn by Gauthier. The bank continued, after the service of the writ, to deal with Gauthier as formerly, and it was shown that two drafts of $500 each, which had been credited to Gauthier prior to the service of the writ, were afterwards returned to'the bank, and charged up against Gauthier.

It does not follow that, because the balance was at times reduced- below the sum named, the agreement did not exist. The reduction of the balance may have been due to the return of the unaccepted drafts, or may have been permitted because no drafts were outstanding. Proof of the existence of the agreement is not negatived by proof of a fact or circumstance entirely consistent with the existence, of such agreement.. The circumstance shown is not necessarily associated with or related to the fact which plaintiff sought to establish, viz., that no such agreement •existed.

The defendant was entitled to a verdict, and the judgment is reversed, and one entered here for defendant.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    Florence A. Sanborn v. Mariette C. Sanborn.

      Husband and wife — Abandonment by former — Suit by wife— Parties — Homestead—Deed—Fraud—Mortgage—Absolute conveyance as security — Bill to redeem.

    1. Where .a husband, in order to avoid arrest for a confessed crime, abandons his family and abjures the realm, his wife, for the purpose of suing and being sued, will be regarded by the court as a feme sole.

    2. A husband is not a necessary party to a suit by his wife to set aside a deed of their homestead, the sole issue in the case being whether or not fraud was practiced upon the wife in the procurement of the deed.
    8. A husband, after inducing his wife to join with him in a deed of their homestead, left the country. The wife filed a bill to set aside the deed as fraudulently procured, or, if not annulled, that it be declared a mortgage, and she be allowed to redeem therefrom. And it is held that, regarding the bill as one to redeem, for the protection of both complainant and defendant the husband should be brought in as a party by publication.
    4. A deed will not be set aside at the suit of a wife who joined with her husband in its execution to secure his creditor, which indebtedness the wife had advised her husband to secure, on the ground that she was ignorant of the contents of the deed, where it appears that no misrepresentations were made to her at the time she executed the deed, and that she made no inquiry as to its form or contents.
    5. A son was indebted to his mother, and, on the third day before leaving the country to avoid arrest for a confessed crime, he executed to his mother a deed, in which his wife joined, of all of his real estate, including his homestead. He took the deed, as also a bill of sale of his interest in a vessel, to his mother, and told her that he "had some papers to deliver to her, and, upon being asked by her what they were, answered that she “need not worry any more.” At about the same time he executed to his mother a bill of sale of all of his remaining personal property, and placed the same on file in the office of the city clerk. The mother had no knowledge, until after her son had left the country, of the execution of the second bill of sale. The greater portion of the indebtedness was evidenced by promissory notes, which were not delivered to the son, nor was anything said about their surrender. And it is held that the deed is in fact a mortgage, and the only proper remedy open to the grantee is by a bill to foreclose the same.
    Appeal from Saginaw. (Wilber, J.)
    Argued January 10, 1895.
    Decided February 26, 1895.
    Bill to set, aside a deed on the ground of fraud and ■duress, or, if not set aside, to hare it decreed to be a mortgage, and for an accounting. Cofnplainant appeals.
    Decree reversed, and one entered in this Court in accordance with the opinion.
    The facts are stated in the opinion.

      L. T. Durand,'for complainant.

      W. G. Gage (Camp & Brooks, of counsel), for defendant.
   Grant, J.

Complainant and Lewis D. Sanborn, the son of the defendant, were married February 25, 1885. He was engaged in business in Saginaw, where his mother resided. After their marriage, they lived for some months with the defendant. It is evident that the relations between the complainant and the defendant were not cordial. From the view we take of the case, it is unnecessary to locate the’ blame. He purchased a home at a cost of about $10,000, in which they lived until the transaction hereinafter stated. They had one child, a girl, born in 1888. Mr. Sanborn committed heavy forgeries, for which he fled December 6, 1890. The defendant had loaned her son money to a large amount, stated by him to his wife to be $12,000, and claimed by the defendant to be about $15,000. On the third day before he fled he ■signed and executed a deed of all his real estate in Saginaw, including the homestead, to the defendant. The deed was drawn by his attorney, and was executed in his cffice by Mr. Sanborn. Mr. Sanborn then procured a notary public and a witness, and took them to his house, where complainant signed and acknowledged the deed. He then took the deed, together with a bill of sale of his interest in a vessel, made out to his mother, and delivered 'them to her. About the same time he executed to her bills of sale of all his household, office, and stable furniture, including horses and carriages, which he filed in the office of the city clerk. Mr. Sanborn went to his wife’s parents, in Milford, Mich., where he was secreted some-three or four months,-when he fled the country, and when, last heard from was in South America. Complainant had had no communication from him for two years prior to the giving, of her testimony. His mother, however, was in correspondence with him. The perfidious course and conduct of Mr. Sanborn towards complainant need not be stated. Complainant has lived in and occupied the homestead in Saginaw since his flight, except when visiting her old home. Some time after his departure, defendant sold her own homestead, and she and her daughter went to live-with the complainant. They had the exclusive use of a. sleeping room, and occupied the rest of the house in common, except the rooms which complainant rented, and by which she largely supported herself and her child. 111. feeling between them was soon manifested. Defendant, claimed to own the house, and instituted summary proceedings to eject the complainant. Complainant thereupon filed this bill, praying that the deed be set aside because-of the oppression, cruel treatment, and fraudulent conduct, practiced by her husband and by defendant upon her, or,, if not annulled, that it be decreed to be a security, and. that an accounting be had to determine the amount-due the defendant, and that the homestead and dower rights of the complainant be protected and preserved for herself and child. Upon filing the bill, a preliminary injunction was granted by the court, Judge Gage presiding, restraining the defendant from selling the'property,, and from interference with the complainant's possession.An answer, accompanied by affidavits, was' filed, and a. motion to dissolve the injunction denied. Testimony was-taken before a commissioner, and the case brought to a hearing upon pleadings and proofs. The court, JudgeTVilber presiding, declined to pass upon the merits of the-controversy, but entered a decree that the questions raised, should not be determined without making Mr. Sanborn a. party, that the defendant was entitled to the possession of.' the premises, and that the case stand over for such reasonable time as would enable complainant to proceed against him by publication. Complainant appeals, and brings the entire case before us’for review.

Mr. Sanborn has abandoned his family and his homestead, and abjured the realm. He is in voluntary banishment and hiding, a confessed criminal, to avoid arrest and punishment for a great crime. A wife, under those circumstances, is regarded by the law as a feme sole for the-purpose of suing and being sued. Story, Eq. Pl.§ 71; 6-Amer. & Eng. Enc. Law, 734; Clark v. Valentino, 41 Ga. 145; Love v. Moynehan, 18 Ill. 278; Gregory v. Pierce, 4 Metc. 478. If the sole issue in this case were fraud in the procurement of the deed, the husband would not be a. necessary party in a suit by her to protect her homestead, interests. McKee v. Wilcox, 11 Mich. 358. But, regarding, this as a bill to redeem, we think that, for the protection, of both complainant and defendant, the husband should be-made a party, to be brought into the suit by publication. This will foreclose his interest, and secure a good title to the purchaser at the sale. Complainant will therefore be allowed to amend her bill accordingly.

The court should have passed upon the merits of the case, and entered a decree in accordance with his views-Even if it had been proper to postpone the hearing in order to make Mr. Sanborn a party, the complainant should have been left in possession until the final hearing and a decree entered determining the rights of the parties.

We are not aware of any case where this Court has -ever before been called on to determine the merits of a -chancery suit which have not been passed upon by the ■circuit court. It would be proper practice to remit the -case for such determination. The litigation, however, between these parties should be tefminated as soon as possible. This is of special importance to the complainant, who has no means to carry it on. We are therefore disposed to determine the controversy. We think the complainant has failed to make out a case of duress or fraud. No misrepresentation was made to her at the time of the execution of thfe deed. She knew she was executing a paper to secure the debt which she knew her husband owed the defendant. She had advised him to secure the debt. If she chose to sign and execute the instrument without any inquiry as to its form, or what it contained, she cannot now have it set aside upon the ground that she was ignorant of its contents. A detail of the evidence is unnecessary.

We think it established by a fair preponderance of the evidence that this deed was given as security, and as well the bills of sale. Complainant knew nothing about the execution of the bills of sale until after her husband had fled. Neither did defendant have any knowledge of the execution of the bills of sale, except that of the vessel, until after that. The greater part of the indebtedness was, evidenced by promissory notes, which she then held, and still holds, against her son. Nothing was said at the time or afterwards about their surrender or cancellation. She had no knowledge uof his intention to execute to her these instruments. When he went to her house to deliver them, he called his sister into the room with his mother, and what he then said is thus told by the defendant:

“ ‘ I have some papers, mother. I want to put them in your hands. Mr. Weadock wanted me to, before a witness/ I asked him what they were, and he said, You need not worry any more/”

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. She received in dividends from the vessel a sum admitted to be $1,300, after which she sold the interest for $9,000.

The decree of the court below will be reversed, and decree entered in this Court declaring the deed to be a mortgage, and that an accounting be had between the parties to determine the amount due. Upon this accounting defendant will be charged with the amounts received from the sale of the vessel, with the amounts received from the sale of other personal property, and with the value of that, if any, that she has not sold, but used, and also with the rents and payments received. She will be allowed the actual amount of money due from her son at the date of the deed, but not for any sum which she afterwards loaned him. She will also be allowed for taxes and repairs, and for the amounts paid upon a prior mortgage upon the property. Complainant will be given one year within which to redeem, during which time she will be entitled to the possession of the homestead. Under the statute, no sale could be had until the expiration of a year after filing the bill. It is therefore equitable and right that she should have the time to redeem that the statute gives. If complainant redeems from the decree when entered, she will be entitled to an assignment of the decree to her. If she fails to redeem, the premises will be sold under the usual notice to be provided for in the decree. The proofs already taken will stand as part of the record, and either party will be permitted, under the rules and direction of the court, to take such further proofs upon the accounting as they shall deem material. The complainant will recover the costs of both courts.

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


author: Montgomery, J.

text:
    The People’s Building & Loan Association of Saginaw County v. John W. Billing and Mary A. Billing.

      Constitutional law — Class legislation — Building and loan associations — Ultra vires — Premium—Foreclosure of mortgage — Forfeiture of stock — Husband and wife — Tenancy in entirety.

    1. Act No. 50, Laws of 1887, which provides for the incorporation and regulation of building and loan associations, is not unconstitutional as class legislation.

    2. Certain provisions of the original act are construed as follows: a — The fact that, on making a loan, the joint obligation of the member to whom the loan is made, and another, who is not a member, is taken, or that the loan is secured by a mortgage executed by a third person, will not open the defense of ultra vires, under section 8, which provides that “no loan shall be made by said corporation except to its own members, nor in any sum in excess of the amount of stock held by such members borrowing.”
    b — The receipt or retention by the association of a premium out of the loan is not in excess of the'powers of the corporation under section 8, which provides that “the board of directors shall hold such stated meetings as may be provided by the by-laws, at which the money in the treasury, if more than the amount fixed by the by-laws as the full value of a share, shall be offered for loan in open meeting, and the stockholder who shall bid the highest premium for the preference or priority of loan shall be entitled to receive a loan of not more than the amount fixed by the by-laws as the full value of a share of stock (less the premium bid) for each share of stock held by said stockholder.”
    c — Under section 10, which provides that in the event of the repayment of a loan by a borrower before the expiration of the eighth year after the organization of the association, or the . date of issue of the series of stock in such association on which the loan may have been made, there shall be refunded to such borrower one-eighth of the premium paid for every year of the said eight years then unexpired, a borrower has no right to a deduction on account of premium paid, except in case of a voluntary payment of his debt before maturity.
    d — Section 9, which provides that, in case of non-payment of installments. or interest and fines by borrowing stockholders for the space of six months, payments of principal and interest and fines, without deducting the premium paid or the interest thereon, may be enforced by proceedings against their securities, according to law, upon the order of the board of directors, was not beyond the power of the Legislature to enact.
    8. The contention that the premium should have been computed upon the amount of money received, and not on the face of the loan, is untenable, where the borrower understands in advance that the latter mode of computation is to be followed, and accepts the money and executes the securities'after the premium has been so computed, and the amount thereof deducted from the face of the loan.
    4. A mortgage executed by husband and wife upon land owned by them as tenants in the entirety, to secure a loan made to the'husband alone, is valid.

    5. A wife joined with her husband in the execution of a bond given to secure a loan made to him alone. The loan was-further secured by a mortgage upon land owned by both as tenants in the entirety. A bill was filed to foreclose the mortgage, in which the bond was set forth, but a personal decree was asked for as against the husband only. And it is held that the wife was not personally liable on the bond, and that it was competent for the court to enter a personal decree against the husband, without reforming the bond or the pleadings.

    6. The bond given by a member of a building and loan association, on making a loan of the association, provided that, in case of default in its conditions, the shares of stock held by the member, which were transferred as collateral to the bond, might be declared forfeited to the association as for non-payment of dues, and should thereupon revert to the association as forfeited stock, and the withdrawal value' thereof, at the option of the association, might be applied to the satisfaction of the indebtedness secured by the bond. And it is held that no formal foreclosure is necessary for the purpose of making such application; that it is contemplated that the payments on the stock, together with its earnings, shall remain in the hands of the association, and be applied, without foreclosure, to the reduction of the claim, — at least, at the option of the association.
    Appeal from Saginaw. (McKnight, J.)
    Argued January 10, 1895.
    Decided February 26, 1895.
    Bill to foreclose a mortgage. Both parties appeal.
    Decree entered in this Court for complainant.
    The facts .are stated in the opinion.

      O. B. M’Cutcheon (W. J. Lamson, of counsel), for complainant.

      William L. Webber,'

       for defendants.

       This act; as amended by Act No. 247, Laws of 1889, stands as-chapter 119a, 3 How. Stat., and was further amended by Act lío. 269, Laws of 1895.

       See Reeve v. Association, 18 L. R. A. 129, and note on “Usury in loans by building associations.”

       See note at end of opinion.

        DEED TO HUSBAND AND WIPE.
      For cases bearing upon tbe question of the estate created by a joint deed to husband and wife, see:
      1. Fisher v. Provin, 25 Mich. 347, where land was conveyed to Wilber Fisher and Jane Fisher, his wife, their heirs and assigns, forever.” And it was held that the grantees did not take as tenants in common; that on the death of the husband the whole title inured to the wife; that there is nothing in the provisions of the ■Constitution and statutes relating to the rights of married women which will convert such estate into a tenancy in common.
      2. Insurance Co. v. Resh, 40 Mich. 241, where a married man, who was with his wife in possession of a house granted to him and his wife by the same deed, obtained insurance on the’ house, describing it as “his frame building, occupied by assured-for residence and hotel,” etc. In his application for the insurance the assured stated that his title to and interest in the property was absolute. In a suit upon the policy the insurance company defended on the ground, among others, that the assured had misdescribed his interest. And it was held that the misrepresentation of the title was in the highest degree important; that the assured had no absolutely inheritable interest at all; that he was neither a tenant in common nor an ordinary joint tenant; that his estate, in case of his death, went by survivorship to his wife, and during their lives, whatever his right may have been, it was not an ■undivided half of the property.
      3. Manwaring v. Powell, 40 Mich. 371, where a husband and wife were joint purchasers at a foreclosure sale, and the commis-. sioner’s deed was made to them jointly. And it was held that the grantees took by entireties, and whatever would defeat the husband’s title would also defeat that of the wife.
      4. Jacobs v. Miller, 50, Mich. 119, 124, where, pursuant to an order for the sale of lands belonging to infants, the guardian conveyed the land to “Leo E. Taufkirch and Margaret Taufkirch, his wife, ■their heirs and assigns.” And it wa3 held that the grantees did not take by moieties, but became seised of the entirety; that the surviving grantee took the whole; that during their joint lives neither could alien so as to bind the other; and that the estate •conveyed was not affected by the statute of partition.
      5. Vinton v. Beamer, 55 Mich. 559, where a life estate in land was conveyed to a husband and wife, and the survivor of either ■of them. And it was held that the interest of the husband' in the land could not be lawfully levied upon and sold under an execution issued upon a judgment against him alone.
      6. Speier v. Opfer, 73 Mich. 35, where a husband and wife contracted for the erection of a building upon land which had been deeded to them jointly. And it was held that, the land being held by husband and wife jointly, by entireties, it could not be treated as the separate property of the wife, so as to make her liable under the contract.
      7. Bassett v. Budlong, 77 Mich. 338, 347, where a quitclaim deed from a husband, purporting to convey to his wife, and to her heirs and assigns, forever, the farm on which they resided, was declared to be upon certain express conditions and reservations following the habendum clause, namely, that the grantee should not convey' or mortgage the land during the lifetime of the grantor without, his written assent or his joining in the - conveyance, and, in case of the death of the wife prior to the husband’s death, the land should revert to him and to his assigns. And it was held that the deed did not convey the land to the grantee in fee-simple absolute, but that the effect of the arrangement entered into was that, the title should, in the event of the death of either of the parties, pass to the survivor.
      8. Dowling v. Salliotte, 83 Mich. 131, and Auditor General v. Fisher, 84 Id. 128, holding that, if the fact of the relationship of' the grantees as husband and wife is not stated in the conveyance,, it may be shown by parol testimony.
      9. In re Lewis Appeal, 85 Mich. 340, holding that a husband and wife take as tenants by entirety, and not as joint tenants, under a joint deed to both, and that the estate thus created, with the attendant right of survivorship, is not affected by a decree of divorce. This case overrules the decision in Dowling v. Salliotte, 83 Mich. 131, in so far as it holds that under our statute husband and wife, under a grant to them jointly, do not take by entire-ties.
      10. Newlove v. Callaghan, 86 Mich. 297, where a judgment-creditor’s bill was filed to reach the interest of the husband in lands conveyed to himself and wife jointly. At the time of the purchase of the land, which was paid for by the husband and wife jointly, the husband was indebted to the complainant in the-amount of his judgment. The defendants owned jointly other real estate of the value of $20,000, purchased prior to the origin, of the debt due complainant, and the husband owned no separate property; The answer set forth that the object of taking the title-to the lot in question in the joint names of the husband and wife-was- “ simply that the survivor should own the same, as they had no children.” And it was held that estates in entirety cannot be created at the expense of creditors, and held in fraud of their rights.
      11. Naylor v. Minock, 96 Mich. 182, holding that a mortgage executed by a wife upon land owned by herself and. husband as tenants in the entirety, to secure the ¡repayment to their son of money expended in the defense of his father on a criminal charge,. and to be expended in bis maintenance at an asylum to which he was about to be sent on his acquittal on the ground of insanity, is invalid in its inception to convey any estate, and is ineffectual ■to convey the title acquired by the wife on the death of the husband.

       For cases bearing upon the question of the liability of married women upon general contracts, see Mosher v. Kittle, 101 Mich. 845, and note.

   Montgomery, J.

This is a proceeding to foreclose a mortgage given by defendants to complainant to secure a loan of money made to defendant John W. Billing, who was at the time of making the loan a member of the complainant association. The property mortgaged was real estate owned by defendants as tenants in the entirety. The application for the loan was made in the usual way. The face of the loan was $1,500. The premium paid was 37 per cent., so that defendant John W. Billing received but $1,049.07. The loan was secured by a joint bond executed by the two defendants, by the mortgage upon the property in question, and by a deposit of stock held by John W. Billing, of the face value of $1,500, but upon which there had been paid but $165.75. Tlje court decreed foreclosure, and both parties appeal, — the complainant on the ground that the decree was too small, and the defendants on various grounds, which will be considered in order.

It is contended that the loan was made to defendant John W. Billing and another, not a member of the association, and that for this reason it is ultra vires. Section 8 of Act No. 50, Laws of 1887, under which the complainant was organized, provides that—

"No loan shall be made by said corporation except to its own members, nor in any sum in excess of the amount of stock held by such members borrowing."

The bill alleges that defendant John W. Billing bid for the loan, and that the loan was made in accordance with said bid. It is true the bill further sets out the giving of the joint bond and mortgage, and avers that thereby the defendants, John W. Billing and Mary A. Billing, became jointly indebted to the complainant. But, taken as a whole, these averments show a loan- to John W. Billing, and the giving of an undertaking, joint in form, by John W. Billing and Mary A. Billing, as security for the loan. Whether this undertaking created a personal liability on her part or not, the averment is not inconsistent with the proofs, which showed a loan made to John W. Billing; and, when the loan is so made, the fact that the joint obligation of the member and another is taken, or that the loan is secured by a mortgage executed by a third person, does not open the defense of ultra vires. End. Bldg. Ass’ns, § 382; Massey v. Association, 22 Kan. 624; Association v. Mixell, 84 Penn. St. 313; Kadish v. Association, 47 Ill. App. 608.

It is next urged that the transaction was a discount, and not a loan, and that, as the corporation is given no banking powers, discounting paper is beyond the scope of its business and authority, and that the contract is for this reason ultra vires. To sustain this contention, counsel cites the case of Anderson v. Association (Tex. App.), 16 S. W. Rep. 298. But the same court, in Sweeney v. Association (Tex. Civ. App.), 26 S. W. Rep. 290, holds that, under a statute similar to ours, the receipt or retention of a premium out of the loan is not in excess of the powers of the corporation.- Section 8 of the statute provides:

The board of directors shall hold such stated meetings as may be provided by the by-laws, at which the money in the treasury * * * shall be offered for loan in open meeting, and the stockholder who shall bid the highest premium for the preference or priority of loan shall be entitled to receive a loan of not more than the amount fixed by the by-laws as the full value of a share of stock {less the premium bid) for each share of stock held by said stockholder.”

The transaction was plainly within the powers conferred by this section.

It is contended that the interest of Mary A. Billing was not bound by the mortgage; and, to sustain this contention, counsel cites Naylor v. Minock, 96 Mich. 182, and argues that under the authority of this case, if she had executed the mortgage herself, merely as a surety for her husband, it would have been void. This is true, for the reason that she could not pass the title to lands of which she was a tenant in the entirety, by her separate deed. But there is no such difficulty here. The husband and wife join. This is the only method by which such an -estate can be alienated, and the mortgage in this case was valid.

It is contended that, if the transaction is not ultra vires, it is not a loan, as far as Mary A. Billing is eon■cerned, and the complainant can have only the money loaned, with interest, as any other lender would be entitled to under like circumstances. This contention of defendants is sufficiently answered by the discussion- under the first head of this opinion. If it is competent for the borrower to secure the payment of a loan made to him by furnishing a mortgage given by a third person, it follows that the association can enforce such security. See the authorities cited.

It is contended that the mortgage is given for too large a sum, for the reason that the premium should have been reckoned on the amount of money received, and not -on the face of the loan. We are not able to see the force ■of- this contention. It would be immaterial by which method the computation was made, if the one intended were understood in advance; and it is evident that defendant did understand it in this case, for he accepted the money and executed the papers after the computation of the premium had been made, and the amount deducted from the face of the loan.

It is contended that the statute authorizing the formation of building and loan associations is class legislation, and unconstitutional. This contention is not supported by the authorities. On the contrary, such legislation has been upheld in a number of the states, while we have found but a single authority sustaining the contention of defendants counsel, — the case of Association v. Johnson, 88 Ky. 191. We think the reasoning of the authorities which sustain the constitutionality of such statutes is in accord with sound principle and the previous holdings of this Court. As was said in Holmes v. Smythe, 100 Ill. 413:

The statute under which the association was organized is a general law, applicable to all the citizens of the state who choose to bring themselves within the relations and circumstances provided for by it.”

See, also, Association v. Read, 93 N. Y. 474; McLaughlin v. Association, 62 Ind. 264; Trust Co. v. Whithed, 2 N. D. 82; People v. Bellet, 99 Mich. 151.

It is said by defendants* counsel that, under the practical operation of the law, those who take stock and are not borrowers earn large profits at the expense'of those who are borrowers, and especially the weaker members, who make default and suffer fines. On the other hand, it may be said that the organizations open a way for people of limited means, and wage earners, to acquire-homes, by making small payments at stated intervals, and that, if the system adopted places a premium on thrift and promptness, it is in harmony with all laws of economy. But these arguments relate rather to the wisdom of such, provisions than to their constitutionality.

In the decree the court below directed that the bond be reformed by striking the name of Mary A. Billing therefrom. This order was unnecessary. While the bond was in the form of a bond of both defendants, yet as the-p roofs showed that Mary A. Billing was a married woman, the wife of the defendant, and was not personally liable-upon it, and no personal decree was sought against her, it was competent for the court to enter a personal decree-against her codefendant, who was the only one personally bound by the instrument, and this could be done without-any reformation of the pleadings.

The only remaining questions which we think require-discussion are those relating to the method of stating the-account. The defendants insist that there should be a. foreclosure of the stock before resort is had to the mortgage, or that, at least, the bill should ask for a foreclosure-of the stock in connection with the mortgage foreclosure. A copy of the bond is attached to the bill, and contains the provision that, if default be made in the payment of the installments of the principal money or interest, etc., for the space of six months,—

“ The said 15 shares of stock of the first series, on which the said loan is obtained, and all other stock issued by the said obligee, and this day transferred as collateral hereto, may at any time thereafter be declared forfeited to the obligee as for non-payment of dues, and thereupon revert to said obligee, its successors or assigns, as forfeited stock, and the withdrawal value thereof, at the option of the obligee, its successors or assigns, be applied to the satisfaction of the above indebtedness; and, in such ' case or cases of default in payment, the whole principal debt aforesaid, and interest, shall, at the option of the obligee, its successors or assigns, immediately thereupon become due and recoverable, and payment of said principal sum. and all interest thereon, as well as any payment on said' shares of stock subscribed for and pledged, and all fines and taxes as aforesaid then due, may be enforced and recovered at' once,” etc.

It -is evident that no formal foreclosure is contemplated as necessary for the purpose of applying the value of the stock to the extinguishment of the debt. It is contemplated that the payments on the stock, together with its earnings, shall remain in the hands of the company, and, be applied, without foreclosure, to the reduction of the claim, — at least, at the option of the company. In the present case the complainant stands ready to credit the earned value of the stock on the mortgage, and has made. such application.

Section 10 of the act provides that—

“A borrower may repay a loan at any time, and in the event of the repayment thereof before the expiration of the eighth year after organization of the association, or. the date of issue of the series of stock in such association on which the loan may have been made, there shall be refunded to such borrower one-eighth of the premium paid for every year of the said eight years then unexpired: Provided, that, at the time of such repayment, the stock upon which such loan is based shall be withdrawn in the manner provided in section 6 of this act relative to withdrawing stockholders.”

Section 9 provides that—

In case of non-payment of installments or interest and fines by borrowing stockholders for the space of six months, payments of principal and interest and fines, without deducting the premium paid or the interest thereon, may be enforced by proceedings against their securities, according to law, upon the order of the board of directors.”

Section 11 provides that—

Corporations organized under this act being of the nature of co-operative associations, therefore no premium, fines, nor interest on such premiums that may accrue to the said corporation, -according to the provisions of this act, shall be deemed usurious.”

We think the language of this statute is very plain, and susceptible of but one interpretation, and that is one which excludes any right in the borrower to a deduction on account of premium paid, except in case of a voluntary payment of his debt before maturity. It must be admitted that this is a seemingly harsh provision, but we do not think it was beyond the power of the Legislature to enact such a provision, and it does not rest with us to overturn the plain provisions of the statute.

We think the complainant was entitled to a decree amounting on the 7th of January, 1895, the date of the ■computation, to $1,4,11.22. The decree will be for this sum, with interest, less the credit for certain insurance money now in the hands of the American Commercial and Savings Bank of Saginaw, deposited to await the determination of the suit, the avails of which will be applied on the decree. Complainant will recover costs of both courts.

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

       The mortgage was given December 5, 1888.


text:
    Albert Hesselbacher v. Thomas S. Sprague and Joseph S. Visger.

      Lis pendens — Discharge—Rights of purchaser pendente lite.

    One member of a firm, formed for the purpose of dealing in lands, filed a bill for an accounting of the partnership affairs. Before the termination of the suit, the defendant sold certain lands, the title to which, as alleged in the bill, was held by the defendant for the benefit of the copartnership, to a third party. The purchaser filed a bill to discharge the lis pendens filed at the commencement of the suit for an accounting, and which covered the lands in question, as constituting a cloud upon his title. And it is held that the suit cannot be maintained.
    Appeal from Wayne. (Lillibridge, J.)
    Argued January 11, 1895.
    Decided February 26, 1895.
    Bill to require defendant Sprague to discharge a lis jpendens. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      John H. Bissell, for complainant.

      George W. Radford and Edward A. Barnes, for defendant Sprague.
   Montgomery, J.

This is an appeal from the circuit ■court for the county of Wayne, in chancery.- A bill was filed by complainant praying for a . decree requiring de'fendant Sprague to vacate and discharge from the record in the office of the register of deeds a lis pendens filed December 1, 1891, giving notice of a suit pending between defendant Sprague as complainant and Yisger as defendant, for a copartnership accounting, and affecting the lands in question. The present case was heard on pleadings and proofs, the bill dismissed,- and complainant appeals.

It appears that Sprague and Yisger, in June, 1890, formed a copartnership for the purpose of dealing in lands. Before-the formation of this copartnership, Yisger and Sprague, with two other parties, Downie and Yemans, had made a-contract with one Julia F. Owen, by which they, as real-estate agents, undertook to sell the land described in the-bill, for the profit of both parties to the contract. The-title to the land remained in Mrs. Owen. A .price was-fixed upon the land, which was to be paid to Mrs. Owen,, with interest and expenses; and the proceeds of the sale-above these items were to be considered as profits and divided into two parts, one of which should go to Mrs. Owen and the other to Yisger, Sprague, Downie, and Yemans. In April, 1891, Downie, Yemans, and Spragueassigned their interest in the contract to Yisger. Negotiations were subsequently opened by Visger with Hesselbacher, who finally purchased the land for $94,000. At this price-there was -a profit on the sale of $34,458.54, one-half of' which would go to Yisger, as assignee of Sprague, Downie, and Yemans. Before the sale to Hesselbacher, Sprague- and Yisger quitclaimed to Mrs. Owen. On November 23,. 1891, complainant purchased the lands in question of Mrs. Owen. By the purchase Hesselbacher took a half interest, in the contract, and Yisger also agreed to take a half interest, and to advance $10,000 of the purchase price. Yisger did not have $10,000 in cash to make this payment,, but offered to turn in some real estate which stood in his name, but which Sprague claims was copartnership property. This was taken at a valuation of $10,500, but with the understanding between Yisger and Mrs. Owen that-he would receive back the same real estate at the same-price, to apply on the profits to be paid him. Hesselbacher made his first payment on the contract with Mrs,. Owen, and then immediately assigned a half interest inn the contract to defendant Yisger, Mrs. Owen assenting to-the assignment.

On December 1, 1891, Sprague filed his bill in the Wayne circuit, in chancery, against Yisger, asking for an accounting of the partnership affairs of Yisger and Sprague, setting out the partnership agreement, and alleging that'“Yisger now holds, for the benefit of the said copartnership, either the legal title, or some other title or interest,, in the following pieces or parcels of land, all in the county of Wayne,” describing them, and including the land in question. A lis pendens was filed on the same date, and’ subsequently an agreement was entered into between the-complainant and defendant Sprague, by the terms of whichSprague agreed to give quitclaim deeds for lots as they were sold, upon the condition that the proceeds all bn applied upon the purchase of the tract; and releases were-made under this agreement by Sprague, and lots sold to-the amount of $40,000.

The bill alleges that “on the 23d day of November,. 1891, complainant sold and assigned for a valuable consideration one undivided half of his interest under said; contract [referring to the contract between the complainant and Mrs. Owen] to the defendant Joseph S. Yisger,” and that “subsequently, in November, 1892, said defendant Visger resold and assigned to complainant his entire right in said land contract for a valuable consideration, then paid; and complainant is now the sole owner of said land contract, and all rights in said lands under it.”

The complainant, on the trial, gave testimony tending to show that at the time of the sale to Visger of the undivided half interest in the contract, in November, 1891, it was agreed that complainant should, have the option of repurchasing such interest at any time within one year by paying $10,000 therefor; but this fact is not set out in the bill, so that complainant’s right must depend upon the question whether he had a right, after the filing of the ■Us pendens by defendant Sprague, to purchase Visger’s interest, and apply to a court for a discharge of the Us pendens, for the reason that it constituted a cloud upon his title. We think he had no such right. We do not undertake to determine, nor has the defendant Sprague, by his line of testimony, undertaken to litigate, the question of the equities between himself and Visger. The attitude which the complainant occupies is that of a purchaser of land after the filing of a Us pendens and before the termination of the suit.

It is contended by the complainant that at the time of the purchase from. Mrs. Owen, by reason of the quitclaim deed from Sprague and Visger to Mrs. Owen, the land was ■cleared of all equities in Sprague’s favor. However this may be, it did not prevent an attaching of equities upon the acquisition of an interest in the land by Visger, acting for the copartnership; and upon the case made by the bill, if such a right did attach, — and that is the question to be litigated in the suit between Sprague and Visger, — the complainant, by his repurchase in November, 1892, was a purchaser pendente Ute, and nothing more.

It is also contended by complainant that Visger’s only interest in the land was by way of lien or equitable mortgage for the money advanced by him to Hesselbacher towards the first payment; but it is sufficient answer to say that this aver-. ' ment is inconsistent with the bill.

It is also contended that defendant Sprague has not prosecuted his suit against Visger with sufficient diligence, but we think this statement is not sustained by the .proofs.

On the whole case, the decree should be affirmed, with costs.

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


author: Long, J.

text:
    Rebecca A. Thomas v. Samuel A. Watt.

      Election of remedies — Trover—Pleading.
    A debtor secured Ms creditor by a bill of sale. The creditor, in violation of his agreement that in case of the non-payment of the debt he would sell the property at public sale, and, after satisfying his demand, pay the surplus to the debtor, sold the property at private sale, and refused to account for such surplus. The debtor sued the creditor in assumpsit to recover the surplus, and the case was dismissed for the failure of the debtor to give security for costs. The debtor then sued the creditor in trover for the same property. And it is held that the debtor, by suing in assumpsit, elected his remedy; that he thereby elected to treat the title to the property as in the creditor; and that this defense is admissible in the trover suit under the plea of the general issue alone.
    Error to Kent. (Adsit, J.)
    Argued January 24, 1895.
    Decided February 26, 1895.
    Trover. Defendant brings error.
    Reversed, and judgment entered in this Court for defendant.
    The facts are stated in the opinion.

      George E. é M. A. Nichols and F. H. Stowe, for appellant.

      Griffin, McDonald & LaGrou, for plaintiff.
   Long, J.

This is an action in trover for the conversion of one bay stallion named “Lurcher,” one bay gelding, one bay mare, and certain book accounts.

It appears that the plaintiff became financially involved in the year 1891, and had given chattel mortgages upon the property in question to several different parties. Some of the mortgages were being foreclosed, when plaintiff called upon the defendant, and requested him to take them up, and take security upon the property described. Prior to that she had become indebted to defendant in the sum of about $140, and to secure him had turned out these book accounts, authorizing him to collect them. He had collected about $78. The amount of the mortgages, costs, and expenses was figured up, to which was added the sum due defendant, making a total of $476. Plaintiff claims that she was to give defendant a chattel mortgage for this amount. Defendant claims that a bill of sale was to be given. It appears that a bill of sale was given, though as security, as plaintiff was to pay the amount within 60 days with interest, and to have the property back. Defendant took possession of the property, but claims that the bay gelding was taken from his possession thereafter by Mr. Finch, who claimed to have purchased it before the bill of sale was made to defendant. The money not being paid within 60 days, defendant sent to plaintiff, requesting payment, which was refused, and defendant contends that plaintiff at that time sent word to him to do what he pleased with the horses, but she would not execute a written release. Defendant thereafter sold the mare and stallion at private sale, but claims they did not bring enough to pay the indebtedness due him from plaintiff. Plaintiff thereafter commenced a suit in the Kent circuit court in assumpsit, setting up in her declaration the transaction as to the giving of the bill of sale, and charging that the defendant was to sell the horses at pub-lie sale, and, after satisfying his demand, was to pay the surplus to her; but that, disregarding his promises, and contriving and intending to injure her, he sold them at a sacrifice, at, private sale, and had not turned over the surplus in his hands remaining from the sale of such property, for which she brought suit. To this declaration was added the common counts in assumpsit. A bill of particulars was also filed, claiming the value of the stallion, $800; value of the mare, $200; value of the horse, $150; use of mare from July, 1891, to February, 1892, 7 months, at $1 per day, $182; use of stallion for season of 1892, $536; book accounts, $100. After issue was joined, a motion to dismiss the cause for want of compliance with the order to file security for costs was made, and the court thereupon made an order dismissing the cause by consent of plaintiff's counsel.

It is admitted that the property for which this action of trover is brought is the identical property mentioned in the declaration and bill of particulars in the suit in assumpsit theretofore brought. The defendant in the present action pleaded the general issue. At the outset of the trial the question was raised whether the plaintiff had not elected her remedy in assumpsit in the former suit, and whether she could now maintain her present action of trover in consequence. Proofs were offered showing the commencement of the former action, what the declaration and bill of particulars contained, and the dismissal of that cause. The proofs were ruled out by the trial court. Plaintiff thereupon introduced testimony tending to support her theory of the ease, and the value of the property alleged to have been converted. Defendant also introduced testimony tending to show his theory, and the value of the property. The jury returned a verdict for plaintiff of $584.14. After the plaintiff had rested her case, counsel for defendant again offered in evidence the files and records in the case of Rebecca A. Thomas v. Samuel A. Watt in the suit commenced in assumpsit by her for this property. This was objected to as incompetent under the pleadings, and was ruled out.

The contention now made by counsel for plaintiff is that these proofs were incompetent under the general issue, for the reasons:

1. That such defense is matter in confession and avoidance, and notice of such defense must be given under the plea of the general issue.

2. That in bringing the suit the plaintiff does not take an inconsistent or contradictory position to the action of assumpsit first commenced.

3. That it is not shown, and no offer is made to show, that plaintiff had knowledge of the fraud at the time of bringing the first action.

4. That the relative rights of the parties are the same in both actions.

5. That both actions were brought for the recovery of the value of this property; and that the first one was not prosecuted to judgment, but the case dismissed, because no security for costs was filed therein.

It cannot be said that the bringing of the action of trover is not inconsistent with the claim made by the plaintiff in bringing the action of assumpsit. The facts, as claimed by plaintiff in the present suit, are that she gave defendant a chattel mortgage on the property only, and did not give a bill of sale, and that, if a bill of sale was signed by her, she supposed it to be a chattel mortgage, and that, at least, it was only given by way of security, and not with intent on her part to part with the title of the property described; that the defendant sold 'this property, and converted the proceeds to his own use. The action of trover is for the conversion of property, the title to which she' still claims, and has never parted with. She had the right to waive the tort, and sue in assumpsit. Under her claim, therefore, in bringing the action of assumpsit, she elected to treat the property as in the defendant', waived her right to claim the title, and asked' judgment for the value, or. what was equitably her due. It was an action for money had and received for her use and benefit. She treated the property as sold to the defendant, or at least treated the sale made by him of the property to third parties as valid, and elected to hold the defendant for the proceeds of the sale. Under these circumstances she must be held to have elected her remedy, and it would not matter that the suit in assumpsit had not gone to judgment. The election was made by the commencement of the action in that form.

It was said in Thompson v. Howard, 31 Mich. 309, 312, that—

A man may not take contradictory positions, and, where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge or the means of knowledge of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again."

The plaintiff in that case sued the defendant in an action on the case to recover of him for having, as he alleged, enticed into his service and harbored his minor son. The main defense to the action consisted of evidence, admitted under objection, that shortly before the action was brought the plaintiff sued the defendant in assumpsit before a justice to recover on the basis of a contract for the minor’s services. It was held that this precluded a recovery in an action on the case for enticing away.

In Nield v. Burton, 49 Mich. 53, it was held that waiving the tort of a conversion and suing in assumpsit amounts to an election to regard the defendant, as owner of the property converted, and estops the plaintiff from bringing trover against the defendant’s vendee; and the fact that the first action was brought in a court which did not have jurisdiction does not destroy the effect of such election so far as the vendee is concerned.

These eases were followed in Farwell v. Myers, 59 Mich. 179. There an action of replevin was brought upon rescinding a sale for fraud, and only part of the goods taken. The plaintiff thereafter sought to recover for the value of the balance of the goods as in an action of assumpsit, based upon the original contract, and it was said, “One theory is totally at variance with the other.”

In Button v. Trader, 75 Mich. 295, it was held that a vendor who retains the title on a sale of personal property until paid for makes such sale absolute by electing to take a judgment against his vendee for the unpaid purchase money. See, also, Black v. Miller, 75 Mich. 323; Elwell v. Martin, 32 Vt. 217; McDonald v. McDonald, 67 Mich. 122; Conrow v. Little, 115 N. Y. 387.

The fact that the suit in assumpsit had not proceeded to judgment could not affect the question here presented. The plaintiff elected her remedy by the commencement of her suit in assumpsit. Nield v. Burton, supra.

It.is contended, however, that the defendant could not raise this question under the general issue, but that, in order to take advantage of the former suit as an estoppel or bar to the present one, proper notice must be given . under the plea of the general issue. In all the cases above cited, except Black v. Miller, the plea of the general issue only was interposed. It is true, that exact question was not raised in those cases, but we think the proofs could be introduced under the general issue without notice. The general issue is a denial of plaintiff’s cause of action. If a denial of the conversion, any matter showing or tending to show that the plaintiff had not title to the property. would be competent. If the bringing of the suit in assumpsit be regarded as an estoppel, it would not be necessary to plead it in order to make proof of the fact in the trover suit. Dean v. Crall, 98 Mich. 591. The defense, however, is admissible for the purpose of showing that the plaintiff had elected to treat the turning over of the property to the defendant as a sale, and this could be shown under the general issue.

To entitle the plaintiff to recover, two points were essential to be proved:

1. Property in herself, and a right of possession at the time of the conversion.

2. A conversion of the property by the defendant to his •own use.

Under the general issue the defendant had the right to prove by any competent evidence that the title to the goods was in himself as general owner. Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489, 493. Under the general rules of practice of 4 Wm. IV. the general issue in trover was regarded as a denial of the conversion only, and not •of plaintiff’s title; but these rules have not been adopted into our practice, and the general issue in this. State in actions of trover, as formerly in England, puts the whole declaration in issue. Eureka Iron & Steel Works v. Bresnahan, supra; Leake v. Loveday, 4 Man. & G. 972.

The rule was adopted into the Massachusetts practice. In a case where plaintiff had brought trover the defendant was permitted to show a prior judgment in defense under the general issue. The court said:

“If the judgment be an adjudication between’the same parties and against the plaintiff of issues which tend directly to disprove the allegations, * * * then it is admissible in evidence under an answer denying those allegations.” Foye v. Patch, 132 Mass. 105, 110.

What was sought to be shown in the present case was that the plaintiff, by the commencement of the suit in assumpsit, had elected to treat the title of the property as in the defendant; that, having so elected, she could not afterwards claim the title in herself. It must be held that'under’ the plea of the general issue the defendant would have the right, not only to disprove plaintiff’s right to possession, but also her title. This proof offered would conclusively estop the plaintiff from claiming title, and defeat the action. The court was therefore in error in refusing to permit proofs to be made.

In this .view of the case, all the other questions are unimportant.

The judgment of the court below must be reversed, and judgment entered here for defendant, with costs of both courts.

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


author: Hooker, J.

text:
    John W. Stofflet v. Freeman H. Estes, Highway Commissioner, etc., and John C. Langdon.

      Waters and water-eourses — Navigable stream — Bridges—Injunction.
    1. A stream capable in its natural condition of floating logs at. some seasons of the year was made navigable for a steamer of more than 15 tons burden, belonging to the owner of a flouring mill, by the.erection of the dam which furnished the water power for the mill. Two .bridges spanning the stream above the dam were, under an arrangement with the township authorities, furnished by the owner of the mill with draws for the accommodation of the steamer, which was used to transport the products of the mill up the stream, and through the lake in which it had its rise, to a railroad station near the lake, for shipment. The bridges were afterwards .. rebuilt, and placed sufficiently high above the stream to per-/ mit the steamer to pass under them, the extra expense being borne by the mill-owner. .One. of the bridges broke down, and ' ' the township authorities prepared to rebuild it in such- a way as to prevent the passage of the steamer, and the mill-owner filed a bill to enjoin such action on their part. No testimony was offered upon the hearing of the cause tending to show that complainant’s right of flowage was in any way limited, or that he had not the right so to run his boat at all seasons. And it is held that the complainant cannot be thus deprived of his right to navigate the stream without condemnation and compensation.
    2. The stream being navigable, the township officers had no right to erect the bridge without action by the board of supervisors under How. Stat. § 495, which provides that, when any township officers shall wish to construct any bridge across any stream at a point where the same is navigable for boats or vessels of 15 tons burden or more, they shall apply to the board of supervisors by petition for permission to do so.
    Appeal from St. Joseph. (Loveridge, J.)
    Argued January 23, 1895.
    Decided February 26, 1895.
    Bill to restrain the rebuilding of a bridge in such a way as to prevent the passage of complainant’s boat. Complainant appeals.
    Decree reversed, and one entered in this Court as prayed.
    The facts are stated in the opinion.

      R. R. Pealer, George F. Miller, and B. F. & L. F. Andrews, for complainant.

      H. P. Stewart and George L. Yaple, for defendants.
   Hooker, J.

Flowing from Portage lake, in St. Joseph county, is a stream called “Portage River,” upon the banks of which, some distance below the lake, at a place called Parkville, the complainant maintains a dam and operates a flouring mill. He is also the owner of a steamboat capable of carrying something over 15 tons, which he and his grantors before him have used in transporting the product of the mill up the Portage river, through the lake, and up Bear creek, to Portage Lake station, upon the Grand Rapids & Indiana Railroad. The river above the dam has, for many years, been spanned by two bridges. The dam and mill were erected at an early day. The boat was bnilt in 1877 by a former owner of the mill, who, under an arrangement with the authorities of the township, caused draws to be constructed in the two bridges then existing for the accommodation of his boat. In 1881 the lower bridge was rebuilt, and, .upon petition of some of the inhabitants of the vicinity, it was placed sufficiently high above the stream to permit the boat to go under it, the expense of raising the abutments and grading the road being paid by the owner of the boat. In 1885 the upper bridge was rebuilt under a similar arrangement. The lower bridge broke down under a threshing machine in 1892, and the township authorities prepared to rebuild it in such a way as to prevent the passage of complainant’s boat, whereupon the bill in this cause was filed to restrain them, and a temporary injunction was issued. The bill being dismissed upon the hearing, complainant has appealed.

The testimony in this case satisfies us that this stream, in its natural condition, was sufficiently large and deep to permit of the floating of logs at some seasons of the year, but that it was not large or deep enough to float this steamer from Parkville to the lake until the dam was built. This, however, was sufficient to fix the character of the stream and the rights of riparian owners and the public in it. In Moore v. Sanborne, 2 Mich. 519, it was held that—

“The true test in determining the right of public .use in fresh-water streams, as public highways, is whether a stream is inherently and in its nature capable of being used for the purposes of commerce for the floating of vessels, boats, rafts, or logs. Where a stream possesses such a character, the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it.”

In that case it was held that the easement existed, though the stream was not continually capable' of such use.

Again, in the case of Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336, Mr. Justice Cooley reiterated the doctrine that the easement existed during the seasons when the water was sufficient for the purposes of commerce, but that it extended no further than the use of the natural flow of water. After a discussion of the authorities, the distinguished jurist continues as follows:

“The dootrine, then, which we derive from the cases, is that.a stream may be a public highway for floatage when it is capable, in its ordinary and natural stage, in the seasons of high water, of valuable public use. The inference •sought to be drawn from it is' that a navigable stream must, in contemplation of law, be navigable at all times, •and under all circumstances; that there can be no such thing as a highway which is only open to the public use periodically, but that, when once the public character of the way is established, the right of the public to the easement is paramount to all private rights; and that nothing ■done to facilitate the public use can be the foundation of a right of action, unless in itself unreasonable, when the •due subordination of private to public rights in the stream is considered and properly allowed for. But no such'inference is warranted by the decisions. The highway they recognize is one sui generis, and in which the public rights •spring from peculiar facts. It is a public highway by nature, but one which is such only periodically, and while the natural condition permits of a public use. During that time, the public right of floatage and the private night of the riparian proprietors must each be exercised with due consideration for the other, and any injury which the latter receives, in consequence of a proper use of the •stream for floatage, he must submit to as incident to his .situation upon navigable waters. Middleton v. Booming Co., 27 Mich. 533. But, at periods when there is no highway at all, there is no ground for asserting a right to create a highway by means which appropriate or destroy private rights. The doctrine that this may be done with-cut compensation to parties injured is at war with all our ideas of property and of constitutional rights. The most that can be said of this stream, during the seasons of low water, is that it is capable of being made occasionally navigable by appropriating for the purpose the water to-the natural flow of which the riparian proprietors are entitled. It is highly probable, in view of the large interests which are concerned in the floatage, that the general public good would be subserved by so doing, but this fact, can have no bearing upon the legal question. It is often the case that the public good would be subserved by forcing a public way through private possessions, but it neither should be nor can be done under any circumstances without observing the only condition on which it can be permitted in constitutional government, namely, that the private proprietor be compensated for the value which he surrenders to the public.”

The complainant and his grantors had a right to maintain the dam and pond, which last the defendants claim to have extended to the .lake, raising the water all the way, and making the river navigable for this boat. This was a private pond, and nothing indicates that he had not. a right to run his boat there at all seasons. No testimony was offered tending to show that his rights were in any way limited, and, for aught that appears, he may have owned the fee of all the land covered by the pond. His right to use the pond for running the steamboat was. recognized when it was asserted, and the bridges were reconstructed to permit its exercise, and again when the bridges were rebuilt. A decade or more after, when it became necessary to rebuild the lower bridge, the local authorities concluded to cut off his use of the stream. To do this they propose to cut down the abutments and the approaches, instead of using them as they are, and to entail a-loss upon him which is unnecessary. Many interesting questions suggest themselves in connection with the case, but under the proofs we think that the complainant cannot be deprived by the township officers of what appears to be his right without condemnation and compensation.

Moreover, the stream being navigable, the local authorities have no right to build a bridge without action by the board of supervisors, who may direct how it should be built. Const. art. 18, § 4; How. Stat. §§ 493, 495, 496. The record indicates that the board has never authorized » bridge at this place, and there is no pretense that the •change proposed has been sanctioned. There are many streams in the State which have been made deeper by •dams. In ponds so formed, sometimes extending for miles, good-sized boats may float, where formerly only logs could float in times of freshets. In such cases, if the stream is navigable for any purpose, the private rights of individuals are protected against arbitrary action by local authorities, who may only act when and in such way as the supervisors permit, and then not in contravention of private rights.

The decree of the circuit court will be reversed, and one entered here in favor of the complainant in accordance with the prayer of his bill, with costs of both courts.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, C. J., did not sit.


text:
    Anthony Valin v. William H. McKerreghan and George H. Potter.

      Evidence — Cross-examination—Instructions to jury,

    1. Where a plaintiff has introduced testimony which the jury might consider as corroborative of the testimony of the witness on a given point, it is competent for the defendant to cross-examine the witness on the same subject.

      H. An instruction which gives the jury distinctly to understand that the trial judge has a decided opinion that the plaintiff is entitled to recover is objectionable.

      Error to Bay. (Maxwell, J.)
    Submitted on briefs; January 23, 1895.
    Decided February 26, 1895.

      Assumpsit. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.
    Pratt, Van Kleech & Gilbert, for appellants.
    ! T. A.. E. é J. O. Weadock, for plaintiff.
   Montgomery, J.

Plaintiff sues as assignee of A. J.. Shanley. Shanley, in the summer, of 1893, had a contract' for painting one of the school buildings in Bay City for the stated price of $365. On July -17, 1893, Shanley gave to the defendants a written order upon the board of' education for the contract price of the. work. Upon this-order defendants drew the money, and plaintiff, as assignee of Shanley, brings suit to recover the balance claimed to-be due from defendants.

Plaintiff’s claim, which is supported by Stanley’s testimony, is that, when the order was given, it was understood that defendants were to retain out of the order payment for materials then and thereafter to be furnished upon the job, amounting to $155.58, and to turn over the balance to Shanley to pay his men, to whom he was indebted to the amount of $179.

Defendants claimed, and gave testimony tending to show, that, at the time that Shanley made arrangements with them to furnish him material and supplies for the school house, they had a store bill against Shanley to the amount of $L67.06; that Shanley then agreed, if they would furnish the supplies with which to do this work, he would pay out of the proceeds of the job for the supplies, and also the old store bill; that the supplies were furnished in pursuance of this agreement; that afterwards Shanley assigned to’ them the school order; that, at the date of the assignment, part of the old account was represented by a note; that it was then agreed that said note should be renewed, if renewal could be secured at the' bank, and, if not, that the same would have to be paid; that after-wards, on July 20, a $95 note was given to be used by defendants at the bank, and on the 21st of July another note held by defendants was reduced to $72.06, and a new note for this amount was given; that, after the school! order was paid to defendants, they sought to make-arrangements at the bank to extend the notes when they fell due, but that the bank refused to extend the notes, and notified the defendants that the notes must be retired when they fell due; that defendants then took up the-notes at the bank, and paid Shanley over the balance of' the money, after deducting the value of the supplies furnished and the old store account represented by the two-notes, the balance being $42.36, and at the same time-offering him his two notes.

Error is assigned upon the rejection of testimony and', on the- charge of the court.

On the direct examination of the witness Shanley, he-had testified that the balance above the amount of the-supplies was to be returned to him to pay men in his-employ, to whom he was indebted in the sum of $179. On cross-examination he was asked how much was due his-workmen, and this question was excluded, on the ground that it was immaterial and irrelevant. As plaintiff had himself ofEered testimony on the subject which the jury might have considered corroborative of' Shanley’s testimony, we do not perceive why it was not competent for defendant to cross-examine the witness on the same subject.

In his charge to the jury the circuit judge said:

“Now, the parties to this agreement ought to have carried it out on both sides in absolute good faith. Such is .-tbe basis of honest dealing in the world,- — good faith and honesty. The notes were discounted in the bank, and were lying there when this money fell due. You all know what a money panic we had last summer, and how difficult it ¡was to obtain discount on even the best of paper. I think :fche defendant, in answer to my question, admitted that he mould not get any new discount when he offered them there • at a subsequent date. If he could have renewed that paper by letting it lie in the bank and maturing easier than he ■mould get a new discount from the bank after paying these motes, his conduct injured the plaintiff in the case.
“Now, I charge you that an undue note or paper is no ¡set-off. It is not the kind of a claim that prevented the ■assignment of the claim, as it existed at the day without regard to the date. The result of it is that if this assignment was made at' the date of it, as it appears, and there was that amount due the plaintiff, he would seem to be entitled to your verdict to the amount of the claim. • But tu you is given the sole authority to settle this conflicting testimony. You must decide which of these gentlemen is telling the truth, which you believe, and reconcile the testimony of both as well as you can, and find the result.”

• Exception is taken to that portion of the instruction reading:

“If he could have renewed that paper by letting it lie in the bank and maturing easier than he could get a new discount from the bank after paying these notes, his conduct injured the plaintiff in the case;” and that part reading as follows: “ The result of it is that if this assignment was made at the ‘date of it, as it appears, and there was that amount due the plaintiff, he would seem to be entitled to your verdict to the amount of the claim.”

Under the defendants’ theory, they were entitled to apply the proceeds of the order- in payment of the notes. Yet, under these instructions, the jury, doubtless, understood that defendants were bound to let the notes lie in the bank until maturity before attempting to ascertain whether the bank would extend the time; and, when this instruction is taken ■ in connection with the succeeding language, it gave the jury very distinctly to understand that the judge had a decided opinion that the plaintiff was entitled to recover. We think this was error. Perrott v. Shearer, 17 Mich. 48; Letts v. Letts, 91 Id. 596.

. Judgment will be reversed, with costs, and a new trial ordered.

The other Justices concurred.


text:
    Eli Gemberling et al. v. James H. Spaulding.

      Mortgage — Compromise — Consideration—Attorney and client— Ratification — Garnishment.

    After the assignment of a mortgage, the mortgagor was garnished by a creditor of the mortgagee. Soon thereafter the assignee reassigned the mortgage to the mortgagee, who withheld the reassignment from record. The assignee then filed a bill to foreclose the mortgage. The mortgagor answered, setting up as defenses that the assignee did not own the mortgage, and the pendency of the garnishment proceedings. After the suit against the mortgagee had been decided in his favor, the mortgagor died, and his administrator made several payments to the solicitor for the complainant in the foreclosure suit, who was also attorney for the mortgagee in his suit, to apply on the mortgage, and finally paid the remainder of the mortgage debt to the solicitor, less a small sum deducted on account of interest accruing while the garnishment proceedings were pending. The solicitor agreed to discharge the mortgage, but failed to do so, and the mortgagee caused the reassignment to be placed on record.- Thereupon the heirs of the mortgagor, against whom the foreclosure. suit had been revived, filed a bill to discharge the mortgage. The mortgagee defended upon the grounds:
    a — Want of - consideration for the discharge of the mortgage for a less sum than the amount due thereon.
    b — Want of authority on the part of the solicitor to compromise the mortgage by virtue of his employment to foreclose it.
    The mortgagee had receipted to the solicitor, in the name of the complainant, for a certain sum, legs the amoimt claimed by the solicitor as his fees, disbursements, and expenses on the foreclosure, as the “ balance due on the mortgage collection.” He testified that, at the time he signed the receipt, he supposed that the papers had been turned' over to the administrator. The solicitor testified that when he reported the settlement to the mortgagee he made no objection, but, on the contrary, gave his approval. And it is held:
    a — That the assignee was not, under the circumstances, entitled to foreclose the mortgage during the pendency of the garnishment proceedings; that costs could properly have been awarded to the mortgagor in the foreclosure suit, and this was a sufficient consideration for the reduction allowed upon the mortgage.
    b — That, under the testimony, the circuit judge was authorized to find that the mortgagee ratified the settlement.
    Appeal from St. Joseph. (Yaple, J.)
    Argued January 23, 1895.
    Decided February 26, 1895.
    Bill by the heirs of a mortgagor to compel the discharge by the mortgagee of a mortgage claimed to have been paid by the administrator of the estate of the. mortgagor. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      R. R. Pealer and George E. Miller, for complainants.

      H. O. Bliss and Hi. P. Steioart, for defendant.
   Montgomery, J.

This hill was filed to compel the defendant to discharge a certain mortgage given by Edward Gemberling in his lifetime, by the complainants, who are his heirs at law. Defendant answered, setting up that the mortgage had not been paid, and praying by way of affirmative relief a foreclosure of the mortgage.

It appears that the mortgage in question was given to secure the payment of $3,500 in annual installments of $500 each, the first of which fell due March 25, 1883. The mortgage bore date March 25, 1882, and was made by Edward Gemberling and wife to defendant. June 16, 1885, defendant assigned the mortgage to his brother* Franklin Spaulding. June 20, 1885, Franklin Spaulding reassigned the mortgage to defendant, James H. Spaulding. In the meantime, and on June 18, 1885, suit was com-menced by one Pierson against James H. Spaulding, and on the 19th a writ of garnishment was served on Edward Gemberling, who answered. May 6, 1886, Franklin Spaulding commenced foreclosure proceedings in chancery, and Gemberling answered in that suit, denying that Franklin Spaulding was the owner, and setting up the fact that he had been served with a writ of garnishment in the suit pending against James H. Spaulding. On the 16th of December, 1886, another suit in garnishment was instituted, the purpose of which is not quite apparent, lufc which was probably intended to reach the installments-becoming due on the mortgage after the date of the service of the first writ of garnishment. On the 12th of April, 1888, the Pierson suit was ended by judgment for the defendant, and in May, 1888, Edward Gemberling died. Subsequently various payments were made by the administrator of Gemberling to S. M. Constantine, the attorney who represented the complainant in the foreclosure suit, and who represented James H. Spaulding in the Pierson suit; and finally, in January, 1889, a settlement was made by the administrator paying to the attorney the total amount, less $66.14, Constantine agreeing to have the mortgage discharged. This was not done, however, but, on the contrary, the defendant, who had prior to this time withheld the reassignment to him from record* caused the same to be recorded.

The defendant contends that there was no consideration for a discharge of the mortgage for a less sum than the face, and that an agreement to release for a less sum was nudum pactum; and, further, that Constantine, as solicitor and attorney, had no right to compromise the mortgage by virtue of his employment to foreclose it.

It is very evident that Gemberling’s defense to the foreclosure was justified. Franklin Spaulding was not, under the circumstances described, entitled to foreclose the mortgage while a suit was pending in garnishment against Gemberling as garnishee of defendant. Gemberling could properly have been awarded costs in that proceeding, and this was a sufficient consideration for a reduction upon the mortgage. It was further claimed by the Gemberlings that it was inequitable for them to pay interest on the money accruing during the time it was tied up by the garnishment proceedings. There is nothing to impugn the good faith of the administrator or of Constantine in the matter of this settlement.

Upon the question of authority, it appears that in September, 1889, defendant signed a receipt in the name of Franklin Spaulding, as the proceedings had been conducted in his name, reading as follows:

■ “Deceived of S. M. Constantine 12,875, less amount claimed by him as attorney fees, disbursements, and expenses, — that is $975; balance due on Gemberling mortgage collection.”

Defendant testified, in answer to the question whether at the time he signed this receipt he knew the papers had been delivered over to Gemberling, that he did not know it, but he further testified as follows:

. “ Q. You were told so? .
“A. Why, I thought so when I signed that. Coffinbury said he thought that was the case. Of course, I didn’t know anything about it, but that was his supposition.
Q. Didn’t he tell you that that was the case?
“A. He didn’t say that was the case; he said he.thought it might be the case.
Q. You supposed it was so at the time, or that was your best impression?
“A. Yes, sir.”
Constantine testified as follows:
“ Q. When yon reported to Mr. Spaulding the settlement with Mr. Gemberling, whether he made any objection to that?
“A. No, sir; we talked before I wrote him in regard to the matter. In my advice of a settlement everything was understood by him, and it was satisfactory to him.
“ Q. And he gave his approval?
“A. Of course, like any other client, he thought he ought to have all the interest, but I advised him to make that arrangement.”

Under this testimony the circuit judge was certainly authorized to find that defendant ratified the settlement, even if it may not be inferred that he authorized it in advance.

The decree of the court below will be affirmed, with costs.

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


text:
    The City of Detroit v. Mary Bruder.

      Eminent domain — Opening street — Map—Sufficiency—Damages.
    The map accompanying the petition in a street-opening case showed the location of the proposed improvement, and of each and all of the parcels of land to be taken, but failed to show the boundary line between a parcel of land only a portion of which was to be taken and the land adjoining the remainder of said parcel. The parcel was admitted by the city attorney to be of a certain depth, and all of the testimony was based upon this assumption. And it is held that the jury, who were permitted to take the map to the jury room, could not have been misled by the omission to define thereon said boundary line.
    Appeal from recorder’s court of Detroit. (Chambers, J.)
    Submitted on briefs January 25, 1895.
    Decided February 26, 1895.
    Street-opening proceedings. Respondent appeals.
    Affirmed.
    The facts are stated in the opinion.

      Morse Rohnert, for appellant.

      Frank A. Rasch, city attorney, for petitioner.
   Montgomery, J.

This is an appeal from proceedings taken to condemn lands for street purposes in the city of Detroit.

. The appellant is the owner of a piece of land 59 feet by 739 1-5 feet in dimension. The land is bounded on the east by Mt. Elliott avenue, with a frontage of 59 feet; •on the south by Berlin lane, with a frontage on said lane of 739 1-5 feet; on the west by Ellery street, with a frontage of 59 feet. It is proposed to widen the Berlin lane, so called, to a street 50.12 feet in width, and this will require the southern 31.28 feet of appellant’s land, being the strip next adjoining Berlin lane, and extending from Ellery street to Mt. Elliott avenue.

For convenience in estimating the damages accruing to the appellant, the witnesses on the trial divided appellant’s holding into parcels as follows:

Parcel 1, the 81.28 feet fronting Ellery street, and extending báck 107 1-5 feet.
Parcel 2, the 31.28 feet fronting Mt. Elliott avenue, and extending back 105 feet.
Parcel 3, 527 feet fronting on Berlin lane, as at present known, extending northerly 31.28 feet.
Parcel 4, the 27.72 feet, with a depth of 107 1-5 feet, comprising that portion of the Ellery stre.et front remaining.
Parcel 5, the 27.72 feet front on Mt. Elliott avenue, extending back 105 feet.
Parcel 6, the rest of appellant’s land, lying adjoining parcel 3, and in the rear of the same, and between parcels 4 and 5.

Berlin lane, as at present platted, is 18.84 feet wide, running from Mt. Elliott avenue to Ellery street. The property on the south of this street has been platted into lots 30 by 107 feet. The jury awarded damages to appellant of §3,865.40. She applied to the court below for ;a new trial, and on its refusal appeals, and insists that it appears conclusively by the testimony that the award of •damages was insufficient.

The parties are not disagreed as to what the testimony .showed the value of parcels 1 and 2 to be, or the value of the improvements upon the property, with the exception that the appellee’s counsel insists that the gross estimate .as to the damages to shrubbery and trees is not necessarily •conclusive upon the jury. It appears by this testimony that .parcel 1 was valued at §725, and parcel 2 at §938.40; that the least estimate on the house, barns, etc., is §837.20; .and that the appellant herself placed a value on the shrubbery and trees of §200, — making a total estimate of these items of damages of §2,700.60. Deducting this from the .amount of the award leaves §1,164.80. Appellant’s coun■sel concedes that it was open to the jury to find that parcels 4 and 5 were not damaged- by the taking of the •other land, so that the §1,164.80 is said by him to be the •compensation to Mrs. Bruder for the damages sustained by parcels 3 and 6 by the taking of parcel 3, and it is urged •that the proper method of ascertaining whether this is •compensation under the testimony is to consider what is rthe value of the parcels, taken together, as the property is mow situated, and what is the value of parcel 6 after parcel '3 has been taken, and ascertain the difference.

The witnesses called by the city made their estimates on parcels 3 and 6 on the basis of acreage, considering the land worth $3,000 per acre. On this basis the value of parcel 3 is $1,134. It is sought by appellant to show, and some of the witnesses did testify, that lots could be platted fronting Berlin lane, which would have a value ranging from $6 to $10 per foot frontage, with a depth of 59 feet, and it is contended that this value conclusively appears; and, further, that the parcel left after an appropriation of the 31.28 feet in depth of the front portion, and comprised in parcel 6, will practically be of no value. But neither of these propositions is conclusively established by the testimony. Mr. Homer Warren, a witness in the case, testified:

“When you cut a lot below 80 feet deep, it is almost impossible to sell it. I had a lot 76 feet deep once, and found, when I got below 80 or 85 feet, it is hard to sell it for anything.”

And there was testimony adduced by the city to show that the most practicable way of platting the lands was by opening courts and fronting the lots on the court, the court being at right angles with Berlin lane (or street, when widened); and there was testimony tending to show that, platted in this way, the remaining land would be worth substantially as much as before appropriating the •front 31.28 feet.

We have examined the testimony with care, and while, if we were called upon to pass upon the facts, we might reach a different result than the jury has, yet, in view of the fact that the jury saw the property, and of the conflicting testimony, we are not prepared to say that the testimony is so overwhelming as to warrant us in disturbing their conclusion upon the question of fact.

Objection was made to the introduction of the map, for the reason that it is said it was calculated to mislead the jury, inasmuch as it did not separate the holding of the appellant from the adjoining land. The statute provides that the jury may take with them, when they retire, the petition in the case, and a map showing the location of the proposed improvement, and of each and all of the parcels of property to be taken. 3 How. Stat. § 3064*. The map conformed to these requirements, but it did not show the line between the remaining property of the appellant and the adjoining owner. It was conceded, however, by the city, on the trial, that the Bruder piece was 59 feet wide, and all the testimony was based upon this assumption. It is impossible that the jury could have been misled by the omission to mark the line between appellant's and the adjoining land.

The judgment of condemnation appealed from will be affirmed.

The other Justices concurred.